Agenda item

This application seeks permission for the change of use of the adopted highway (referred to as the lane in this report) to private driveway and erection of 2m high gates. [Clifton Ward]

Members considered a full application for 4 Government House Road York YO30 6LU for the change of use of adopted highway to private driveway and erection of 2m high gates.

The Development Manager gave a presentation on the application, followed by an update to the Committee.  He explained that an additional consultation response from Yorkshire Water had removed the objection relating to access and  therefore officers had amended the recommended refusal reason to the following:

The change of use of the adopted highway to private drive and the erection of gates would prevent access from this part of the highway for no. 5 Government House Road. The road is considered to serve a highway purpose and the proposal would not provide for unrestricted access to this neighbouring property and would result in a loss of residential amenity. The proposal would not comply with paragraphs 110 (b) and 130 (f) of the National Planning Policy Framework (2021).

In response to questions from Members, officers clarified the location of the highway in relation to the garage for property no. 5 and the area of land within the public highway.

Public Speakers

Adam Kraemer-Dent, resident of 5, Government House Road, spoke in opposition to the application.  He explained that he had lived at the property since 2010, that there were no issues with privacy as vehicles and pedestrians turned round before reaching the lane to his garage.  He stated that the application would deny access to his garage.

In response to questions from Members, he explained that their property deeds provided for access to the garage and that the garage was only used for storage, not a car.

Rachel Gilbert-Cornish, the applicant, spoke in favour of the application. She stated that the plans were designed to make their drive private and noted that the objection from Yorkshire Water had been addressed and removed.  She questioned the validity of the other objections which had been registered by neighbours and stated that the Department for Transport were the decision makers for Stopping Up Orders. 

In response to questions from Members she confirmed that Yorkshire Water would be provided with manual and electronic access to the public sewerage system.  When asked about access for their neighbour, the applicants referred to section 66 of the Highways Act and stated that they had not given vehicle rights over their land.  They reported that an increase in car and pedestrian traffic had been observed since the removal of the private road signage.

Members asked the Highways Principal Development Control Engineer to clarify the status of the adopted highway.  She reported that the road had been mapped as adopted in 1967 and been fully maintained by the council since then.  In 2021, it was established that the adoption had not been legally undertaken due to an error in the handling of Ministry of Defence (MOD) land.  The council had written to the residents and asked if they wanted to apply for the road to be adopted in accordance with section 228 of the Highways Act.  All the residents, except the applicant, responded and applied for the road to be adopted.  The criteria for adoption was complied with and the road was formally adopted in 2021.  This had been subsequently challenged by the applicant through a Judicial Review and an appeal, both of which had been refused.  She noted that section 228 did not allow for partial adoption of the road.

The council’s Senior Solicitor stated that the whole of Government House Road had been lawfully adopted under section 228 in 2021.  Section 66, referenced by the applicant, was not a relevant consideration.

The Development Manager confirmed, with reference to the neighbour’s garage, that planning permission had not been applied for, however it was now considered lawful due to the passage of time. He further clarified that it would not be fair to assume that permission would not have been granted at the time, had an application been submitted.

Following debate, Cllr Orrell moved the amended officer recommendation to refuse the application.  This was seconded by Cllr Melly.

Members voted unanimously in favour of the motion and it was:

Resolved:            that the application be refused.

Reason:              The change of use of the adopted highway to private drive and the erection of gates would prevent access from this part of the highway for no. 5 Government House Road. The road is considered to serve a highway purpose and the proposal would not provide for unrestricted access to this neighbouring property and would result in a loss of residential amenity. The proposal would not comply with paragraphs 110b) and 130f) of the National Planning Policy Framework (2021).