(The Chairperson (Councillor Whyte), The Deputy Chairperson (Councillor Maskey) and Councillor Groogan re-joined the meeting at this point in proceedings)
(Councillor Whyte resumed the Chair.)
The Planning Manager reminded the Committee that the application had previously been listed for consideration by the Committee at the Special meeting on 27th June 2022. However, the Committee had agreed to defer consideration of the application at that meeting in order that the Committee could undertake a site visit in respect of it. The site visit had taken place on 5th August, 2022.
He advised the Committee that, since the publication of the Committee report, a late objection had been received from the Ulster Architectural Heritage (UAH), which stated that:
• the proposal was contrary to Policies BH10 and BH12 of the PPS 6 and the SPPS;
• the existing building made a positive contribution to the Conservation Area despite the absence of essential maintenance;
• it also referenced Development Management Practice Note 5 and the former Athletics Store judgement and the former DoE failing to properly take into account the relevant policy tests for demolition; and
• it was contrary to the Malone Park Conservation Guide and limitation on plot coverage.
The Planning Manager advised the Members that the Malone Park Residents Association had raised a similar objection previously.
He outlined that officers had considered the policy presumptions against development contained within PPS6 and the Malone Park Conservation Guide and afforded them their full presumptive weight. There were, however, a number of other relevant material considerations which were set out in the case officer’s report of 27th June. The question of weight was a matter for the Committee. The case officer’s report dealt with the issue of demolition of the existing building, including consideration of the merits of the existing building, application of PPS 6, including engagement of Policies BH10 and BH14. It also had regard to the previous appeal decision which was not subject to challenge. The report also considered the SPPS, Policy BH2 of the draft Plan Strategy and Section 104(11) of the Act. In that regard, officers believed that the assessment was in accordance with the UAHS decision.
Another late objection had also been received from a neighbour. The objection stated that:
• previous proposals for a replacement building on the site had been refused
• the presumption under Policy BH14 of PPS 6 was to retain the building;
• the current proposal was not significantly different and would be overly cramped;
• the proposal failed the test in the Conservation Area Guide that plot coverage should be no more than 1.5 times the original dwelling; and
• an approval would set an undesirable precedent.
The Committee was advised that those issues had been considered within the Case officer’s report.
The Planning Manager presented the Members with the main issues which had been considered during the assessment, including:
· the principle of development;
· the impact on the character and appearance of the Malone Park Conservation Area;
· the setting of a Listed Building;
· trees and landscaping;
· the impact on residential amenity;
· access, movement and parking; and
· the impact on Protected Species
He explained that, in the BUAP, Draft BMAP 2004 and 2014, the site was un-zoned “white land” within the development limits of Belfast. The site was located within the Malone Park Conservation Area. He outlined that there had been a previous appeal decision for a replacement dwelling under references 2016/A0016 and 2016/A0017 which was a material consideration.
The Committee noted that 11 letters of objection had been received to date, including 3 representations on behalf of the Malone Park Residents Association. The objections had focused on the following issues:
· the objectors felt there was a clear policy presumption in favour of retention and no evidence had been provided as to why that was an exception, and that the existing dwelling should be demolished;
· the historical significance of the existing dwelling;
· objections to intensification, design, scale, height, massing and plot coverage of the proposed dwelling;
· the proposal was contrary to PPS6, PPS7, SPPS and the Malone Park Design Guide;
· the proposal did not preserve or enhance the Conservation Area;
· the adverse impact upon the setting of a listed building;
· destabilisation / damage to adjoining properties from excavation and construction;
· significant damage to important trees and landscape features;
· a loss of privacy, light, overshadowing, dominating impact on neighbouring properties;
· the impact on an active badger sett; and
· geology and flooding.
Those matters had been addressed in detail in the Case officer’s report.
The Committee was advised that DFI Roads, HED, NI Water, DAERA, Environmental Health and the Trees and Landscaping Section had all been consulted in respect of the application and had offered no objection to the proposal. The Council’s Conservation Officer had objected on the basis that the existing building made a material contribution to the Conservation Area and its demolition was therefore unacceptable and the proposed replacement scheme was inappropriate by way of its form, design, massing and building coverage. The Committee was advised that it was considered that greater weight should be given to the conclusions of the PAC on the extent to which the existing building contributed to the Conservation Area and the quality of the replacement scheme given its status as an independent appeals tribunal.
The Planning Manager explained that the principal consideration in the assessment of the application was the effect of the proposed replacement dwelling on the character and appearance of the Malone Park Conservation Area.
He explained that the appeal against the earlier application had been dismissed on the basis that the previous proposal would harm the character and appearance of the Conservation Area. In the case of the current application, he outlined that the footprint of the proposed replacement dwelling had been reduced, there was greater distance to the boundaries and a new landscaping plan had been provided which showed the retention of existing tree coverage, particularly the trees along the boundary with 30 Malone Park. It was considered that landscaping would remain dominant having regard to the Malone Park and Adelaide Park Conservation Guide.
The Committee was advised that the existing dwelling only made a modest positive contribution to the character and appearance of the area and was in poor condition. It was considered that the proposed replacement dwelling was well designed and that the character and appearance of the Conservation Area would be enhanced. He explained that officers considered that the grounds for dismissal of the previous appeal had been addressed and that the proposal complied with Policies BH12 and BH14 of PPS 6, paragraph 6.18 of the SPPS, Policy BH2 of the Belfast LDP Draft Plan Strategy and Section 104(11) of the Act.
He drew the Members attention to the Malone Park/ Adelaide Park Conservation Guide which stated that “In order to allow landscape to remain dominant the established relationship between building mass and gardens should be respected and retained where possible. In no circumstances should building coverage be more than one and half times that of the original dwelling”. He explained that, for the purposes of this 1.5 times limit, the Guide did not provide a definition of “original dwelling”. The Committee was advised that officers considered that the “original dwelling” was that present or existing from the beginning when first constructed.
He explained that the 1944 Building Control plans had been used to inform the extent of the original building footprint which in turn had allowed an assessment of building coverage. The original dwelling included an attached outbuilding to the side of dwelling which was shown in the oldest historic map dating back to around 1900, as well as the 1944 building control maps. Officers were of the opinion that the attached outbuilding should be considered as part of the original dwelling.
The Members were provided with the figures both including and excluding the outbuilding. in both cases the proposal exceeded the 1.5 times limit and the proposed replacement dwelling would fail to comply with the Conservation Guide as the proposed building coverage would be 1.9 times that of the original dwelling if including the outbuilding or 2.3 times if excluding the attached outbuilding. The Committee was advised that the applicant had been asked to reduce the scale of the proposed dwelling by officers and had done so to an extent but not to below 1.5 times the original dwelling.
The Planning Manager explained that, whilst the Guide was strongly worded, in that “under no circumstances” should permission be granted for building coverage of more than one and a half times that of the originaldwelling, it remained the case that planning policy was not a straitjacket for the planning authority and that the Council was entitled to depart from the Guide where material considerations indicated otherwise providedthat the appropriate weight was attached to the Guide. He outlined that the proposed landscaping plan included the retention of the existing landscape features along with the planting of 34 new trees and a holly hedge boundary. In addition to the proposed planting, an extensive front and rear lawn had been incorporated within the design – with a depth of 21metres to the front boundary and 29metres to the rear, thereby allowing the landscape
to remain dominant within the Conservation Area.
He explained that officers felt that the proposed dwelling was of a betterment over the existing dwelling, where it sat much closer to the north western boundary with the existing garage 1metre from the boundary and the existing dwelling 5.2metres from the boundary. The new replacement was sited in a more central position, thereby allowing it to sit more comfortably within the plot. The proposed building coverage made up around 15% of the site and, overall, it was considered that the expanse of garden was in scale with the proposed dwelling and that it would read as a dwelling set within a mature landscaped garden with well-defined boundaries.
In conclusion, whilst the proposed replacement dwelling would fail to comply with the Malone Park Conservation Area Guide in terms of the 1.5 times limit, the Committee was advised that the breach of policy was considered to be outweighed by the proposed landscape design which would ensure that landscaping still remained dominant along with a well-designed and detailed replacement dwelling which was considered sympathetic to the Conservation Area, taking into the account the conclusions reached in the previous appeal by the Commissioner. It was therefore considered that criteria (f) and (g) of Policy BH 12 of PPS 6 were satisfied.
The proposal was also considered to comply with Policy BH10 and BH12 of PPS 6, paragraph 6.18 of the SPPS, Policy QD1 of PPS7, Policy BH2 of the draft Plan Strategy and Section 104(11) of the Act.
The Planning Manager highlighted that, subject to the notification of the application for Conservation Area Consent for demolition to the Department under Section 29 of the Planning Act (Northern Ireland) 2011, it was recommended that the application be approved subject to conditions.
The Chairperson welcomed to the meeting, Mr. M. Worthington, representing the Malone Park Residents Association and Mr. J. Anderson, Ulster Architectural Heritage Vice Chair, who were all objecting to the application. Dr. B. Austin, a neighbour, was also on the call but was having technical difficulties and Mr. Anderson read out a statement on his behalf. Together they stated that:
· the application represented a pivotal point in time for all Conservation Areas in Belfast;
· the Council’s Planning officer, the Conservation officer and the Planning Appeals Commission all agreed that 28 Malone Park made a positive contribution to the character of the area and hence the policy presumption against complete demolition in BH14 PPS6 was engaged;
· if the application was to be approved, the Council would be misdirecting itself as the application was premised on the building making a significant positive contribution which was not the test set out in BH 14;
· the Council had also sought to diverge even further from its own decision in May regarding the Design Guide, by indicating that a footprint at least 1.9 times the size of the original dwelling was now acceptable;
· the Residents Association implores the Committee to refuse the application;
· Belfast Conservation Areas were important in protecting communities of buildings which with their surroundings and character, add individuality and a sense of their historic place and purpose;
· it was worrying that the Council was prepared to override the expert advice of its Conservation officer to retain 28 Malone Park especially given that there was no sign that the Council had taken any action to monitor the condition of no. 28 or to encourage the owner to maintain the house/gardens to prevent further deterioration;
· in 2016, the PAC stated that the house, if left, would deteriorate further;
· in response, the Council should have heeded that warning and exercised its Conservation Area duty of care;
· that the current application was, in all material respects, identical to the 2015 application;
· there could be no doubt that the case for demolition which had been rejected twice and dismissed on appeal had not been altered one iota;
· the proposal for a replacement building was without significant change and grossly violated the strongly worded Design Guide intended to protect the Conservation Area;
· the question for the Committee was whether it found any credible basis for the baffling and indefensible reversal in planning service’s viewpoint; and
· should the application be granted, the Council would be responsible for the sounding of the death knell of the Adelaide/Malone Park Conservation Area, the enormous precedent arising from such an act will announce an open season for property development in the Conservation Area.
The Chairperson then welcomed Mr. D. Stelfox, an accredited conservation architect who was advising the applicant and his architects on their proposals, to the meeting. He advised the Committee that:
· he had submitted heritage impact assessments which concurred with planning officers to approve the applications;
· the first application had been submitted in 2015 and, even at that stage, the property was already in a very poor condition and beyond economic repair, as confirmed by an independent report by Construction Procurement Delivery (CPD), commissioned by the Council and accepted by the PAC;
· the facts established by the initial application, its refusal and the following appeal were of great significance to the determination of the revised application;
· the relevant policy test was whether the rebuilding proposal made a contribution to the character and appearance of the Conservation Area which was at least equal to, and where possible, greater than the existing building on the site;
· the PAC judgement had stated that the existing property made only a limited contribution to the character and the significance of the area and was not of the standard of the rest of the Park;
· the proposed design of the replacement dwelling was also found to be of high quality and appropriate for the Park and that the scale, size and proportion of the footprint of the house was compatible with policy;
· the appeal had been lost on landscaping grounds and the revised application had addressed those issues in respect of criteria (f) and (g) of Policy BH 12 of PPS 6;
· in addition, further requests had been agreed to with regards to the moving of the dwelling away from the boundary with 30 Malone Park, and reducing it in size;
· the dwelling would be similar in scale to the neighbouring property at no. 30 and, critically, HED had concluded that there was no harm to the setting of no. 30;
· the PAC judgement had also commented on the plot ratio, stating that the numerical figures regarding site coverage were not as important as the desired outcome of the landscaping remaining dominant;
· in other words, if it could be demonstrated that existing or enhanced landscaping was the dominant characteristic of the site then it would be deemed compliant with policy and not simply because it failed a numerical test;
· the proposal also had a plot ratio considerably lower than a number of properties within Malone Park;
· the delay has caused significant visual impact on the area, was unsafe to enter and was having a significant negative impact on the character of the Park; and
· implored the Committee to agree with the officers recommendation to approve the applications.
Due to a technical difficulty, the Chairperson invited Dr. Austin to address the Committee briefly. He stated that the plot ratio which Mr. Stelfox had referred to was nothing to do with the guidelines in Malone Park, which talked about the increase of ground coverage, and that the current proposal grossly exceeded the 50% ratio.
In response, Mr. Stelfox, advised the Committee that the policy regarding the relationship between the building and the landscaping and the surroundings, and the plot ratio, was a relevant factor, as it lead to an understanding of how a building sat within its landscaped setting, which he suggested was one of the overriding policies in the Malone Park Conservation Area Guide.
In questions for officers, a Member was provided with clarification on the separation distances of other detached properties within Malone Park.
She also asked for clarification in respect of the status of a PAC judgement, in that policy was not a straitjacket, and that things changed over time. The Planning Manager advised that the PAC was a formally recognised as an independent appeals tribunal and its decisions had an elevated legal status because of that. It was therefore important that the previous appeal decision was not challenged and therefore it held very significant weight. He added that officers’ advice to the Committee was that consideration should be narrowed down to whether or not the grounds for dismissal of the previous appeal had been addressed by the current application.
In response to a Member’s question in terms of the policy tests for demolition, the Planning Manager explained that the PAC did consider those particular issues in terms of viability and the condition of the building and that the full details were included as part of the Case officer’s report.
A Member sought clarity on the demolition of the existing property, given the Conservation officer’s objection. The Planning Manager explained that the Conservation officer felt that the property made a significant contribution to the Conservation Area, however, it was considered that greater weight should be given to the conclusions of the PAC on the extent to which the existing building contributed to the Area and the quality ofthe replacement scheme, given its status as an independent appeals tribunal.
Moved by Councillor Groogan
Seconded by Councillor Hanvey
That the Committee rejects the application as it is contrary to Policy BH 12 (g) “the development conforms with the guidance set out in conservation area documents” – in that the replacement dwelling is contrary to the conservation area guide in terms of the 1.5 calculation by a considerable degree and the new setting of the building means that the landscaping does not remain dominant, (for example, the close relationship to no. 30 Malone Park and the impact on the setting of trees) as highlighted by the conservation officer as well.
As such the application also fails on BH12 (a) as it does not preserve or enhance the character and appearance of the area;
In turn, BH14 is also not met as there is no appropriate redevelopment to justify demolition;
and to delegate authority to officers to formalise the wording of the refusal reasons
On a vote, five Members voted for the proposal and eight against and it was accordingly declared lost.
Moved by The High Sheriff (Councillor Hussey)
Seconded by Alderman Rodgers,
That, subject to the notification of the application for Conservation Area Consent for demolition to the Department under Section 29 of the Planning Act (Northern Ireland) 2011, the Committee approves the applications, subject to conditions, and grants delegated authority to the Director of Planning and Building Control to finalise the wording of conditions.
On a vote, eight Members voted for the proposal and five against and it was accordingly declared carried.