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TO: EXECUTIVE 12 NOVEMBER 2013

APPROPRIATION OF LAND BETWEEN QUELM PARK ROUNDABOUT AND WATERSPLASH LANE, , Director of Corporate Services – Legal/Director of Environment, Culture and Communities

1 PURPOSE OF REPORT

1.1 This report seeks the decision of the Executive as to whether or not land between the Quelm Lane roundabout and Watersplash Lane, Warfield should be “appropriated” (i.e. changing the designated purpose for which the Council holds the land) from open space to use for planning purposes. It is the first of two reports which will consider issues relating to the bringing forward of proposals for developments to the north of in accordance with the Site Allocations Local Plan. The later report, to be considered at a subsequent meeting of the Executive, will concern the Section 52 covenant which currently limits the use of the Blue Mountain Golf Course to use as open space/for recreational purposes. A public consultation is currently underway on that issue.

2 RECOMMENDATION

2.1 That the land the subject of this report be appropriated from use from open space to use for Planning purposes.

3. REASONS FOR RECOMMENDATION

3.1 As set out in Section 5 of this report.

4 ALTERNATIVE OPTIONS CONSIDERED

4.1 Not to appropriate the land for use for Planning purposes. However, the consequence would be that the land would continue to be used as open space and the link road proposed to be constructed over the site would not be constructed, which would prejudice the delivery of one of the major sites for residential development as proposed by the recently adopted Site Allocations Local Plan (“SALP”).

5 SUPPORTING INFORMATION

Background

5.1 The site comprises approximately 6,010 square metres and is shown on the plan which comprises Annexe A to this report. The site was transferred to the Council by Berkshire Land Limited pursuant to the Section 106 Agreement which was entered into between the Council and relevant owners when planning permission was granted for the Quelm Park development in 1994. The transfer to the Council took place in 2003 and contained a restrictive covenant (given by the Council) that the land would only be used as public open space. In addition, when Berkshire Land Limited acquired the land a covenant was imposed “not to carry out any development of a residential or Unrestricted

commercial nature on any land to be transferred to the local authority for use as public open space and playing fields other than the erection of buildings or structures incidental to such use”

5.2 The Council has recently adopted SALP which now forms part of the statutory Development Plan under Town and Country Planning legislation. SALP Policy SA9 is shown as Annexe B to this report. The policy proposed a “comprehensive designed mixed use development” including (inter alia) 2,200 residential units. The policy further stipulates that the infrastructure required to support the development includes a “new north-south spine road linking the Quelm Park roundabout and the Three Legged Cross junction, unless an alternative solution is agreed with the Council”. The suggested route of the link road is shown on the plan at Annexe A.

The Legal Framework

5.3 The Council can only hold land for a purpose which it is permitted to do so by statute. The current purpose for which the Council holds land is that of open space. Section 122 of the Local Government Act 1972 permits the Council to appropriate land for any purpose for which the Council is authorised to acquire land by agreement if the land “is no longer required for the purpose for which it is held immediately before the appropriation”. In addition, in the case of land which is used as open space the Council cannot appropriate the land to a different purpose unless it advertises its intention to do so in a local newspaper for two consecutive weeks (which public notice must specify the land in question) and considers any objections. The appropriation proposed by this report has been so advertised

5.4 Accordingly, in order for the land to be appropriated for use for planning purposes the Executive must:-

(a) be satisfied that the land is (now) not required to be used as open space (i.e. the continued use of the land as open space is not needed now in the public interests of the locality)

(b) that the Council does have statutory power to acquire land by agreement for planning purposes, and

(c) that it would be appropriate to make the proposed appropriation, paying particular regard to the issues raised by the objections and the interference with private rights which will be consequent upon the appropriation (paragraph 5.8 refers).

Issues (a) and (c) are dealt with in the section below which considers the objections made. As to (b), Section 227 of the Town and Country Planning Act 1990 (“the 1990 Act”) provides that the Council may acquire by agreement any land which it could be authorised to compulsorily acquire. Section 226 of the 1990 Act stipulates that land may be compulsorily acquired on one (or both) of two grounds, namely:-

(i) if the Council considers that the acquisition [in this case appropriation] will facilitate the carrying out of development or improvement on or in relation to the land [i.e. the land being acquired/appropriated] but only if the Council “thinks that” the development/improvement is likely to Unrestricted

contribute to the achievement of any one or more of the following objectives, namely:-

(A) the promotion or improvement of the economic well being of the Borough;

(B) the promotion or improvement of the social well being of the Borough; or

(C) the promotion or improvement of the environmental well being of the Borough.

(ii) the land is required for a purpose which it is necessary to achieve in the interests of the proper planning of the area in which the land is situated.

As to (ii), the land is required in order to construct the link road which is referred to in SALP SA9 and that purpose is considered to be in the interests of the proper planning both of the immediate area of the land and the Borough as a whole. It is also considered that ground (i) is satisfied in that:-

• the appropriation will facilitate the carrying out of development of the land, namely the construction of the link road, and

• the construction of the link road will facilitate the carrying out of development in accordance with SALP SA9 which will promote the economic, social and environmental well being of the Borough

5.5 As referred to above the land is subject to restrictive covenants stipulating that it is used as public open space. The construction of the link road would be a clear breach of those covenants. Section 237 of the 1990 Act provides that restrictive covenants and other rights can be “overridden” if certain requirements are met. “Overriden” means that construction and other works may be carried out upon the land and/or the land may be put to a particular use notwithstanding that the works or use constitute a breach of the restrictive covenants or interference with other private rights. The requirements to be met for Section 237 to apply are:-

(a) the land has been acquired or appropriated for planning purposes, and

(b) the works and/or use are carried out in accordance with a planning permission.

5.6 Accordingly, should the Executive decide that the land should be appropriated for planning purposes the restrictive covenants will be overridden if development is carried out upon the land (namely, the construction of the link road) in accordance with a planning permission. The 1990 Act does provide that those persons who have the benefit of the restrictive covenant or other rights overridden are entitled to the payment of compensation. The right to compensation accruses when the development is carried out, not when the land is appropriated. Compensation is (broadly) assessed in accordance with compulsory purchase legislation.

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5.7 This report is brought before the Executive at this juncture as the developer proposing to develop one of the major SALP SA9 sites has indicated that they intend to submit an application for planning permission shortly and they have requested that the appropriation be made. Appropriation at this stage is considered to be appropriate as it is not considered that the land is now required for its current use as open space and the appropriation will provide the developer with confidence to pursue its planning application for development in accordance with SALP SA9 as well as facilitating the entering into negotiations between the Council and the developer as to the arrangements to be put in place to secure the construction of the link road. No agreement has yet been put in place between the Council and the developer as to the transfer of the land to the developer or the grant of any right to go on to the land to construct the link road. Should the Executive agree to the proposed appropriation it will be essential in order to protect the financial interests of the Council that it is provided with a “cast iron” indemnity to ensure that the Council does not have to meet the cost of any compensation payments.

5.8 Notwithstanding that the 1990 Act provides for the payment of compensation to those having the benefit of restrictive covenants or other rights which are overridden, the overriding of rights under Section 237 does constitute an interference with private rights. Article 1 of the First Protocol to the European Convention on Human Rights affords general protection to private rights. In this regard, appropriating land for planning purposes with a view to engaging the overriding provisions of Section 237 is akin to the compulsory purchase of land. Government advice on the use of compulsory purchase order powers is that a c.p.o. should only be made where there is a compelling case in the public interest. Authorities should be sure that the purposes for which they make a c.p.o. (in this case appropriation) sufficiently justify interfering with the human rights of those with an interest in the land. In this instance it is considered that test is met, the compelling public interest being to facilitate development in accordance with SALP SA9.

The Objections

5.9 As referred to previously, the proposed appropriation of the land has been advertised in accordance with the requirements of the 1972 Act concerning open space. In addition, a site notice was displayed.

5.10 The consultation has resulted in twelve representations being received which are set out in Annexe C (representations have also been received from landowners who claim the benefit of the restrictive covenant but they have not been set out as they are not relevant for current purposes). The names of objectors have been redacted other than in those instances where they have confirmed that they are happy to be named even though this report is publically available and published on the Council’s web site. The issues in those representations have been summarised into 33 objections with each being responded to. Therefore the table in Annexe C provides:

• a verbatim copy of the objection; • a summary of the objection; and • the response of the Director of Environment, Culture and Communities to each summarised objection.

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Overall, the 33 summarised objections can be divided into three main categories:

1. The loss of the open space and impact on Larks Hill, its community orchard and the Quelm Stone; 2. Concerns regarding the consultation process; and, 3. The construction of the road and the principle of the wider Warfield development and related issues.

1. The loss of the open space and impact on Larks Hill, its community orchard and the Quelm Stone

The main relevant objections received relate to the opposition to the loss of the open space and the effect on the remaining part of Larks Hill including the meadow, community orchard and historic Quelm Stone. The majority of Larks Hill will be retained and (if development is carried out in accordance with SALP) linked to other open space (new and existing) by a new East to West Greenway. The Quelm Stone and community orchard will also not be affected by the new link road. From the objections it is clear that the amenity of this open space area is highly valued by some residents. It should be noted that it is proposed by SALP that the open space function lost due to the construction of the link road will be replaced in full elsewhere within the Warfield site. Whilst the timing of the re-provision will be a mater for detailed consideration it will be related to the actual construction of the road. It is important though to bear in mind that in order for the proposed appropriation to be lawfully made the Executive must consider that the land is not required for use as open space at this juncture, irrespective of whether or not further areas of open space will be secured through subsequent planning process. It is considered that adequate public open space would continue to be provided by the remaining area of Larks Hill and the neighbouring sites of Garth Pond, Garth Meadows and Piggy Wood. Because it has been a long term intention to build the road across the land being considered for appropriation, the Council has not actively managed the land proposed to be appropriated. The masterplanning and application process for the Warfield development will need to consider and establish :

• the detailed design of the road; • the detail and location of the replacement open space • the details of the land which will comprise part of the appropriation land and a residual part of Larks Hill between the western side of the new road and Quelm Lane; and • the detail of the piece of appropriation land on the eastern side of the new road.

2. Concerns regarding the consultation process

The proposed appropriation was advertised for two consecutive weeks in the Bracknell Standard and a site notice was displayed.

3. The construction of the road and the principle of the wider Warfield development and related issues

The details of the link road will require planning permission with the rest of the Warfield development which will be the subject by planning consultation Unrestricted

processes at that time. The principle of development in the area has been established through the production of:

• The Core Strategy Development Plan Document - Policy CS5 land north of and Quelm Park (Feb 2008); • The Site Allocations Local Plan (SALP) - Policy SA9 Land at Warfield (July 2013) and, • The Warfield Supplementary Planning Document (SPD) (February 2012)

For clarity, the first two of these documents were produced following statutory procedures including undertaking stages of consultation, sustainability appraisal, evidence and examination by independent Government Inspectors. Both were found to be sound and adopted as part of the Borough’s Development Plan. The Warfield SPD was also produced following evidence, appraisal and consultation.

6 ADVICE RECEIVED FROM STATUTORY AND OTHER OFFICERS

Borough Solicitor

6.1 The Borough Solicitor is the co-author of this report.

Borough Treasurer

6.1 The Borough Treasure concurs with the advice set out in paragraph 5.7 of this report.

7 CONSULTATION

Principal Groups Consulted

7.1 The process of public consultation is described in Section 5 of this report.

Method of Consultation

7.2 As per 7.1.

Representations Received

7.3 Please see Section 5 and Annexe C.

Background Papers File of Borough Solicitor (exempt)

Contact for Further Information Alex Jack, Borough Solicitor – 01344 355679 [email protected]

Simon Cridland, Team leader Design, Environment, Culture and Communities – 01344 351186 [email protected]

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