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Appendix 1

Derry City and Strabane District Council Planning Committee Report

COMMITTEE DATE: 1st February 2017

APPLICATION No: A/2008/0125/F

APPLICATION TYPE: Full Planning Application

PROPOSAL: Redevelopment of Site to provide proposed Housing Development comprising

8 no. Semi-Detached Two-Storey Dwellings, 3 no. Detached Two-Storey

Dwellings, Roadway for Private Streets Determination and New Footpath

Provision on Ballygudden Road.

LOCATION: Nos. 11 Ballygudden Road, Eglinton (and associated outbuildings)

APPLICANT: MAM Development Limited

AGENT: Moore Design

ADVERTISEMENT: 22.02.2008 RE-ADVERTISEMENT 22.07.2015

STATUTORY EXPIRY: 12.03.2008 12.08.2015

RECOMMENDATION: Refuse

REASON FOR PRESENTATION TO COMMITTEE: Housing development over 5 units

All planning application forms, drawings, letters etc. relating to this planning application are available

to view on www.planningni.gov.uk

1. Description of Proposed Development

The application was initially submitted for the re-development of both sites no. 11 and 15 Ballygudden

Road - for 10 apartments, 15 no. terrace dwellings and 6 no. semi-detached (31 units in total). The

application was amended during the processing of the application and is now for 8 no. Semi-Detached

Two-Storey Dwellings and 3 no. Detached Two-Storey Dwellings on lands at 11 Ballygudden Road.

2. EIA Determination

An EIA determination was carried out as the initial site submitted was greater than 0.5ha; however, it

was determined that no Environmental Statement was required as there would be no significant

environmental impacts. The potential impact of this proposal on Special Protection Areas, Special

http://www.planningni.gov.uk/

Appendix 1

Areas of Conservation and Ramsar sites has also been assessed in accordance with the requirements

of Regulation 43 (1) of the Conservation (Natural Habitats, etc) Regulations (Northern Ireland) 1995

(as amended), and Shared Environmental Services considered that the proposal would not be likely to

have a significant effect on the site integrity of Lough Foyle SPA/Ramsar or be likely to have a

significant effect on the features of any other European site provided conditions are attached to any

subsequent planning approval.

3. Site and Surrounding Area

Appendix 1

The site is number 11 Ballygudden Road and at one point did comprise of an existing dwelling and

agricultural building, these appear to have been demolished. To the south is an existing farm holding,

agricultural buildings and sheds, to the north is an existing dwelling. On the opposite side of the road,

there are a number of single dwellings and farm sheds.

Existing entrance into application site.

Application site located to the right of the picture

4. Site Constraints

The site is within close proximity to a potential archaeological site or monument. Historic Environment

Division were consulted on the application. See later section in this report.

Appendix 1

5. Neighbour Notification Report

ReferenceNumber

Neighbour Address DateNeighbourNotified

1 A/2008/0125/F 16 Ballygudden Road,Muff,Eglinton,BT47 3AF 9/27/162 A/2008/0125/F 18 Ballygudden Road,Muff,Eglinton,BT47 3AF 9/27/16

3 A/2008/0125/F

9 BallyguddenRoad,Muff,Eglinton,Waterside,Londonderry,BT473AF 9/27/16

4 A/2008/0125/F

15 BallyguddenRoad,Ballygudden,Eglinton,Eglinton,Londonderry,BT47 3AF, 9/27/16

5 A/2008/0125/F2 GranchesterPark,Muff,Eglinton,Londonderry,BT47 3XR, 9/27/16

6 A/2008/0125/F

11 BallyguddenRoad,Muff,Eglinton,Eglinton,Londonderry,BT473AF, 9/27/16

7 A/2008/0125/F9, Ballygudden Road, Eglinton, Eglinton,Londonderry, Northern Ireland, BT47 3AF 9/27/16



10 A/2008/0125/F

9 Ballygudden Road Muff Eglinton Eglinton Londonderry BT47 3AF 9/27/16

11 A/2008/0125/F

16 Ballygudden Road Muff Eglinton Eglinton Londonderry BT47 3AF 9/27/16


6. Relevant Site History

A/2006/0287/O - 15 Ballygudden Road - Redevelopment of farm yard to provide site for residential

development. Application was withdrawn on 22.05.2007

A/2006/0359/O – 11 Ballygudden Road - Demolition of existing dwelling and agricultural buildings for

redevelopment of site to provide residential development. Application was withdrawn on 17.05.2007.

7. Policy Framework

Appendix 1

RDS 2035 Policy RG8: Manage housing growth to achieve sustainable patterns of residential

development.

Derry Area Plan 2011- The site is located on ‘white land’ as identified in Derry Area Plan, within the

settlement limit of Eglinton.

Policy BE1 Urban Design requires development proposals to make a positive contribution to

townscape and be sensitive to the character of the area surrounding the site in terms of design, scale

and use of materials.

Policy H1 Housing Design and Layout – requires a high standard of Design and Layout in all new

housing developments.

Strategic Planning Policy Statement for NI – The SPPS is a statement of the Department’s policy on

important planning matters that should be addressed across NI. The provisions of the SPPS apply to

the whole of NI and are material to all decisions on applications. Sustainable development is at the

heart of the SPPS, which includes key principles for development and also strategic policies on housing,

natural heritage etc. The SPPS also contains a wide range of environment and amenity considerations,

including noise and air quality, which should be taken into account by planning authorities.

PPS 3 Development Control: Roads Considerations – sets out the planning policies for vehicular and

pedestrian access, transport assessment, and the protection of transport routes and parking.

PPS 6 Planning, Archaeology and the Built Heritage– sets out the policies for the protection and

conservation of archaeological remains and features of the built heritage.

PPS 7 Quality Residential Environments - The Council seeks to achieve residential developments that

promote quality and sustainability in their design and layout, are in harmony with their townscape or

landscape setting and which will ultimately make a positive contribution to the character and

appearance of the country’s settlements. Policy QD 1 of this PPS lists the criteria to be met by housing

schemes.

Planning Policy Statement 8: Open Space, Sport and Outdoor Recreation - Sets out the policies for

the protection of open space, the provision of new areas of open space in association with residential

development.

Creating Places/Living Places – this is guidance to aid designers in creating quality residential

developments.

Appendix 1

8. Consultee Responses

Environmental Health - are not satisfied that there would not be a detrimental impact on the amenity

of the proposed residential development from Odour and Noise from the adjacent land uses and

therefore recommended that planning permission be refused for the housing development proposal.

Transport NI - Infrastructure improvements / works are required at the junction of Main Street and

Ballygudden Road. The agreed contribution required towards the cost of these works is required to

be paid to TransportNI prior to approval issuing, or, it will be necessary for the applicant to enter into

an A122 Agreement, before planning approval would issue on the application. These works are outside

the red outline of the application site, and whilst they are related to the application they do not form

part of the application, and therefore the payment of money cannot be conditioned as part of this

planning application.

The site layout plans are generally acceptable; however amendments would be required to the PSD

drawings in terms of colouring and details of drainage, gullies and service strips, if Members were

minded to approve the application.

Shared Environmental Services – The proposal was assessed by Shared Environmental Services on

behalf of Derry City and Strabane District Council, the competent authority responsible for assessing

the project in accordance with the requirements of Regulation 43 (1) of the Conservation (Natural

Habitats etc.) Regulations (Northern Ireland) 1995 (as amended). In carrying out the assessment, SES

took account of the current conservation objectives of Lough Foyle SPA. SES has no objections subject

to conditions.

Archaeology and the Built Heritage - Historic Monuments Unit has considered the impacts of the

application and on the basis of the information provided is content with the proposal.

Water Management Unit - has considered the impacts of the proposal on the surface water

environment, and on the basis of the information provided is content with the proposal subject to

conditions.

Loughs Agency – has no objections to the proposal subject to conditions.

Appendix 1

9. Representations

One objection was received on the application in 2008 from the owner of 9 Ballygudden Road. The

issues raised in this objection included; Privacy, character of area is rural, overbearing impact, objector

has stables at boundary of the proposed development and raised concerns regarding the welfare of

their animals.

A total of 8 further representations were then received from three properties, number 15, 16 and 9

Ballygudden Road when the application was amended and neighbours were re-notified of the

amended scheme in September 2016. The issues raised are set out below:

The main issue relating to odour is one which Planning officials have allocated determining weight,

thus recommending refusal based on the unacceptable impacts on residential amenity from odour,

and would agree with the objectors on this matter. See Section 10 later in this report for consideration

of the odour issues. Consideration of other issues raised are set out in ‘italics’ below.

- Adverse impact on rural area and character – The site is within the settlement limits of Eglinton,

within the village limits, and not within the defined countryside.

- A map was submitted by one of the objectors which identifies their farm house and buildings, and

two slurry tanks within boundary. The agent advised in correspondence that these where to be de-

commissioned, which the objector states this is untrue and they have not given permission for this.

- The slurry tanks will be used more as they are expanding their farm.

- Busy farm with farm machinery and stock moving a lot of time, the proposal will bring added danger

to general public.

- Traffic and site entrance visibility concerns raised. Transport NI were consulted on the application

and have no objections. See later section in this report.

- Adverse impacts on privacy, overbearing impact. The proposed site layout complies with PPS 7 in that

the dwellings are positioned within the site so that there be no unacceptable adverse impacts on

residential amenity in terms of privacy.

- Existing stables are located to the west of the site boundary, which house 4 horses permanently over

winter months (Nov - May). The Stables are used daily during the remainder of the year. Other

additional horses use sand arena adjacent to home.

- There is a muck heap for stable waste on top of a slurry tank which is used to catch run off and

effluent.

Appendix 1

- Objector has a right-of-way into the yard used for agricultural and horticultural vehicles, potential

hazard close to the site.

- Neighbouring farmer assured that there is no intention of de-commissioning the slurry tank.

- There is reference on plans to a way-leave to be agreed on the objector’s property. Objector states

he will not be agreeing to this. This is a civil matter.

- Wildlife in the area including birds, hedges, foxes, rabbits and badgers. Housing development will

displace wildlife due to noise and light pollution and additional traffic. NIEA Natural Heritage were

consulted on the application and had no objections.

- Road is unsuitable for 2 way traffic. Footpaths will narrow the road further. The footpath is required

along Ballygudden Road for pedestrian safety should the development be considered acceptable. The

developer has indicated he will provide a new footway which will link into the existing footway

network. This is on the opposite side of the public road, with suitable crossing points. Transport Ni has

no objection to the footway element.

-- Information provided on plans submitted by agent are incorrect. The sheds on land adjacent to no

16 are not being developed as property

- Objectors land has been marked as sheds cleared for dwelling. Sheds are cleared; however there is

no new additional dwelling. Extending the existing family bungalow.

- A slurry tank is marked on the plan as being de-commissioned, this is incorrect

- Housing development would not benefit the area and would set a precedent for further unwelcome

development in a quiet country location.

- Disagree with the findings of the odour impact assessment.

- Smells and noise with livestock in adjacent sheds.

- Three slurry tanks on nearby the farm

- Existing slurry tank is substantial in size and capacity. No intention of this tank being

decommissioned.

- Odour assessment is flawed, calculations are based on data from Met Office. Prevailing winds,

smells.

- Conclusions of the odour report are hypotheses not fact, ‘Commercial Earth’ did not have access to

their property. Calculations are computer generated.

10. Planning Assessment, including Other Material Considerations

Section 6 (4) of The Planning Act (Northern Ireland) 2011 requires the Council to make planning

decisions in accordance with the local development plan, unless material considerations indicate

otherwise.

Appendix 1

This proposal has been assessed against the provisions of the Derry Area Plan, as well as other material

considerations including the Regional Development Strategy; the Strategic Planning Policy Statement

for Northern Ireland; PPS 8 Open Space and Outdoor Recreation; PPS 7 Quality Residential

Environments; PPS 3 Access Movement and Parking, and supplementary guidance in ‘Creating Places’,

as well as consultation responses and the representations received

The Strategic Planning Policy Statement for NI (SPPS)

The SPPS supports and strengthens PPS 7. All new housing should demonstrate a high quality of

design, layout including road infrastructure considerations and landscaping. Good design contributes

to the creation of places to live that are safe and attractive and is also a key element in achieving

sustainable development.

There are a wide range of environment and amenity considerations, including noise and air quality,

which should be taken into account by planning authorities.

Derry Area Plan 2011

The application site is located on ‘white land’ and is within the settlement limits of the village of

Eglinton. In principle, the site could be considered acceptable for housing.

Planning Policy Statement 3 Access Movement and Parking

The issues raised in the objections relating to traffic impacts and road safety were considered

throughout the processing of the application. Transport NI has assessed the application under PPS3

and have no objections to the development subject to minor amendments which would be required

to the PSD drawings. Infrastructure works are required at the Main Street junction with Ballygudden

Road (mini roundabout required), so the developer has agreed to make a financial contribution to

Transport NI for the works. These works cannot be conditioned as part of any planning approval;

therefore the developer will be required to enter into an Article 122 with Transport Ni or pay the

money in advance of planning permission being issued.

PPS 7 Quality Residential Environments: Policy QD1 Quality in new Residential Development

All of the QD1 criteria (a-i) are expected to be met. This proposal has satisfied all of the criteria with

one exception, Criteria h has not been met, see consideration below;

Appendix 1

Due to the proximity of existing slurry tanks/pits on adjacent sites, the proposed design and layout

will conflict with the adjacent agricultural land uses. Despite both the farm and the proposed site being

within the development limits of Eglinton, the working farm must be considered as a material

consideration. Planning officials have considered the advice of Environmental Health, on several

consultation responses, and it is evident that there would be an unacceptable adverse effect on the

proposed properties in terms of odour/noise. Criteria h of PPS 7 has therefore not been met, as the

design and layout of the proposal conflicts with the surrounding context, as there is an unacceptable

adverse effect on the proposed properties due to odour/noise disturbance.

Material Considerations

The proposal has been reduced several times since its initial submission in both numbers and a

significant reduction from the original red line. The current submission, layout received by email 7th

December 2016 is for 11 dwellings comprising 0.4 Hectares. Whilst other concerns throughout the

application have been addressed, unfortunately the issue with regards to the impact of odour/noise

emanating from the nearby sheds and slurry tanks/pits cannot be addressed satisfactorily. The

concern is that the potential occupants would be subject to an unacceptably detrimental impact on

their residential amenity by way of an unacceptable odour/noise issue. It should be noted that the

original submission had this land within the red line and therefore odour may not have been an issue

as the tanks/pits would have been decommissioned to allow development of the entire site. However,

Appendix 1

during the course of the application, the red line was reduced and therefore the existing farm, and its

associated operations, became a material consideration in arriving at a recommendation to

Committee.

Aerial photograph showing the application site in the context of nearby existing agricultural buildings.

The concerns relating to odour were raised in the Environmental Health Department’s consultation

reply of 15/04/16, where in addition to the potential impact on future residents, it was also noted that

the adjacent slurry tank is currently in use with no plans to de-commission. The Environmental Health

official also noted that there was a further tank in the vicinity which would obviously compound the

problem. As a result, Environmental Health, through Planning, requested details of all slurry tanks

within the vicinity so a definitive response could be formulated. As part of this consultation reply a

previous odour assessment submitted on behalf of the applicant by “Commercial Earth” was assessed

but was challenged by Environmental Health as to the findings. This was due to the modelling that

Commercial Earth used to establish the worst case scenario which would not be in line with the

methodology applied by the Environmental Health Department.

In the interests of trying to find an agreeable solution a meeting between the agent, applicant,

Planning and Environmental Health was convened on the 10th November 2016. The slurry tanks/pits

were again identified to the agent and an opportunity was given to submit any additional information

for further consideration by Planning/Environmental Health. A report was submitted by MKA Planning

on behalf of the applicant dated 7th December 2016. The report sought to put more emphasis on the

adherence to other Planning Policy rather than providing any real mitigation measures to address the

odour problems. The current proposal, in MKA’s opinion, satisfies all other policies contained within

the Derry Area Plan, SPPS and Planning Policy statements. The conclusion of the report was to

Appendix 1

advocate the inclusion of a “Buyer Beware” informative to the proposal advising prospective buyers

that there is an odour issue adjacent to the site; however, this solution would not acceptably address

the problem.

There was also a reference stating that the land would now be blighted, thus precluding any

opportunity for development on not only this site but any other in the immediate area. Planning

officials would point out that the application has been recommended on the current situation and

Council would be remiss in its duties to ignore what is now a demonstrable problem. However, this

situation could change if the slurry pits where to be de-commissioned in the future, allowing the

proposal to be looked at afresh. The statement also indicated that there was a large swathe of land

currently for sale within the development limits that wraps around the remaining boundaries of the

site. This would amount to a total of 13 acres of development land that taking the Area Plan

consideration into account, would be acceptable in principle. However, the same amenity

consideration would apply and any future proposal would need to demonstrate acceptability on all or

part of that land.

In responding to this report, the Environmental Health Department of Derry City and Strabane District

Council stated that proposed units numbers 4, 5 and 6 are approx. 36 metres from a cattle shed/slurry

tank. The MKA report claims that both the Department Of Environment and Planning Appeals

Commission (PAC) have accepted in previous applications and appeals, that if the proposed new

dwellings are no closer than the existing or former third party dwelling they are acceptable. It is

inferred in the Statement that the amended proposal meets this historical threshold i.e. 44 metres.

Even if this standard were to be applied, property units 4, 5 and 6 are only approx. 36 metres from the

existing cattle shed.

Environmental Health also stated that the previous unacceptable Odour Impact Assessment by

‘Commercial Earth’ was not amended to take into account the shed adjacent to the south western

boundary, and there has been no consideration of this is the revised site layout. EHD therefore re-

iterated their previous objection to the proposal. It was also noted that a third party objection

confirmed that the surrounding sheds are being used for cattle. The odour impact assessment did not

take account of the potential cumulative odour impact of other slurry tanks/odour sources in the

vicinity of the proposed development. EHD is not satisfied that a full and comprehensive assessment

of all potential generating sources has been carried out.

Appendix 1

Ultimately the agent has submitted an Assessment on the odour situation but unfortunately

Environmental Health has confirmed that this has failed to demonstrate that the impact of odour

emissions from all relevant surrounding odour sources, i.e. the slurry tanks/pits, can be adequately

addressed due to their proximity to the proposed site and would therefore have an adverse impact

on the amenity of the proposed dwellings at the site. There is the potential for residential amenity of

the proposal to be seriously impacted by odour and therefore EHD recommend that planning

permission be refused for the proposed development.

With regards to issues relating to Noise, Environmental Health have advised that noise will be

prevalent from the daily undertakings associated with the adjacent cattle farm at No 15 Ballygudden

Road to the south/south east and from the equine farm holding with stables (incorporating a sand

arena) at No 9 Ballygudden Road to the south/south west, west and north west of the proposal. Due

to the close proximity of both of these to the proposal, noise associated with both undertakings could

have the potential to adversely impact on residential amenity with the potential for increased levels

of noise when activities associated with the housing and/or movement of livestock is taking place, as

well as the transport of animals and movement of agricultural vehicles along the boundary of the site

to the south and south west of the proposal.

11. Conclusion and Recommendation

In summary, the proposed development is contrary to the Strategic Planning Policy Statement for

Northern Ireland (SPPS), and PPS 7 Quality Residential Environments. These proposed houses are in

very close proximity to a working farm and an established horse enterprise, with resultant problems

of potential nuisance for future residents from farmyard activities; especially noise and odours. The

agent has failed to demonstrate that the occupants of the proposed dwellings would not be subjected

to unacceptable odours and noise from both the adjacent farm and horse enterprise.

This planning application has been submitted for almost 9 years, and there has been multiple meetings

and correspondence to resolve the issues. However the noise/odour issue remains unresolved, and

given that the adjacent farms and horse enterprise are objecting and are unlikely to cease operation,

the proposal is unacceptable. It is therefore recommended that the Council’s Planning Committee

Refuse planning permission for the proposed housing development for the following reasons:

Appendix 1

1. The proposal is contrary to the SPPS and Policy QD1 of Planning Policy Statement 7 (PPS7) Quality

Residential environments in that it has not been demonstrated that the development meets the

requirements of criteria (h) as the design and layout of the proposal conflicts with the surrounding

context as there is an unacceptable adverse effect on the proposed dwellings due to odour and noise

disturbance.

2. The applicant has failed to demonstrate that the odour / noise impacts from all odour/noise sources

within the locality have been adequately addressed and there is insufficient information provided to

demonstrate that odour/noise will not adversely impact on the amenity of the proposed dwellings.

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