AGENDA ITEM 4 (ix)

SUBJECT: ABERGAVENNY REGENERATION PROJECT -DEED OF

VARIATION TO HENRY BOOT

MEETING: Cabinet

DATE: 5th September, 2007

DIVISION/WARDS AFFECTED: Abergavenny

1. PURPOSE:

1.1 To consider granting a Deed of Variation to Henry Boot Lid designed to progress redevelopment of the current Abergavenny Cattle Market site following the refusal of their planning application and the subsequent lodging of an appeal.

2. RECOMMENDATIONS:

2.1 To agree a Deed of Variation to the current Agreement with Henry Boot, giving an extension of the "long stop" date for obtaining a valid planning consent to 12th July 2009 in recognition of Henry Boot, as developer and (where appropriate) Asda as operator;

.Discontinuing the appeal against the planning refusal determined by the Local Planning Authority .

.Restricting the food/non food Supermarket split to 75% food, 12.5% "George" goods and 12.5% other non-food offerings, reviewable by the Council after 5 years.

.Restricting the restaurant/cafeteria area to 2,000 square feet. .Agreeing not to operate franchised outlets (such as a pharmacy) within the supermarket

3. KEY ISSUES:

3.1 The Council, as landowners of the current Abergavenny Cattle Market site entered into an Agreement with Henry Boot Lid. for the re-development of the site consequent upon vacant possession being delivered. The Agreement provided, inter alia, that Henry Boot must obtain a valid planning consent to re-development proposals approved by the Council (as landowner) by 12th July 2008. Failure to so deliver would result in the Agreement being terminated.

3.2 The Agreement further provided that, in the event plans approved by the Council in its capacity as landowner failed to receive planning consent, the developer was obliged to obtain Counsels opinion on the likelihood of success at appeal. If that opinion was for a greater than 50% chance of success, the developer was obliged to pursue such an appeal. Counsel's opinion was obtained and as this suggested a greater than 50% chance of success at appeal, an appeal has been lodged.

3.4 Following the planning refusal the Cabinet Member, supported by officers, entered into widespread consultation, including consultation with a sub- group of the Abergavenny Forum. Key concerns identified were the design concept, the food/non-food split, the planned 5.000 square feet restaurant and the operation of franchised outlets.

3.5 Subsequent complex negotiations with Henry Boot and Asda identified the possibility of working up a new planning application to an agreed outline specification, with a design competition to select the best solution for the site. Cabinet agreed to this proposal at its meeting of 25th July 2007. In addition the negotiations produced the proposals now brought forward for consideration. As with any negotiation, both parties have had to make compromises one of which is the change from the draft specification to a 2,000 square foot cafeteria when Asda would have wanted 5,000 square feet and the Council preferred that no provision be made.

4. REASONS:

4.1 To avoid the delay, costs and possible loss at appeal, thereby enabling progress to be maintained with the project in the most expedient and community focused manner.

5. RESOURCE IMPLICATIONS:

5.1 The Local Planning Authority will need to provide a robust defence at any appeal. This can only be undertaken by the use of consultants given that the officer recommendation was for approval. Timescales are now running and costs have already been incurred. It is already past the time when the Council would have expected to appoint a planning barrister, planning consultant and expert witnesses (3). A conservative estimate of these costs is £90,000 but these may increase significantly if the appellant is successful at appeal and his costs are awarded against the Council.

6. CONSULTEES:

Cabinet

Corporate Management Team

Results of Consultation

No adverse comment received

7. BACKGROUND PAPERS:

Nil

8. AUTHOR:

Steve Greenslade, Corporate Director- RER

9. CONTACT DETAILS:

Tel: 01633644266

Ernail: stevegreenslade@monmouthshire.aov.uk

CABINET DECISION RECORDING LOG

DECISION DETERMINED ON: 5th SEPTEMBER 2007

DECISION WILL COME INTO EFFECT ON: 14th SEPTEMBER 2007

{Subject to "Call-in" by appropriate Select Committee)

SUBJECT: ABERGAVENNY REGENERATION -DEED OF VARIATION TO

HENRY BOOT

DIVISION/IWARD AFFECTED: Countywide

PURPOSE:

To consider granting a Deed of Variation to Henry Boot Ltd designed to progress redevelopment of the current Abergavenny Cattle Market site following the refusal of their planning application and the subsequent lodging of an appeal.

DECISION:

To agree a Deed of Variation to the current Agreement with Henry Boot, giving an extension of the "long stop" date for obtaining a valid planning consent to 12th July 2009 in recognition of Henry Boot, as developer and (where appropriate) Asda as operator;

.Discontinuing the appeal against the planning refusal determined by the Local Planning Authority .

.Restricting the food/non food Supermarket split to 75% food, 12.5% "George" goods and 12.5% other non-food offerings, reviewable by the Council after 5 years.

.Restricting the restaurant/cafeteria area to 2,000 square feet.

.Agreeing not to operate franchised outlets (such as a pharmacy) within the Supermarket

REASONS:

To avoid the delay, costs and possible loss at appeal, thereby enabling progress to be maintained with the project in the most expedient and community focused manner.

RESOURCE IMPLICA TIONS:

The Local Planning Authority will need to provide a robust defence at any appeal. This can only be undertaken by the use of consultants given that the officer recommendation was for approval. Timescales are now running and costs have already been incurred. It is already past the time when the Council would have expected To appoint a planning barrister, planning consultant and expert witnesses (3). A conservative estimate of these costs is £90,000 but these may increase significantly if the appellant is successful at appeal and his costs are awarded against the council.

CONSUL TEES:

Cabinet

Corporate Management Team

CABINET MEMBERS PRESENT:

W.A.L. Crump, P.A. Fox, R.J.W. Greenland, E.J. Hacket Pain, B.R. Hood, E. Saxon

OTHER ELECTED MEMBERS PRESENT:

D.J. Ashwin, P.R. Clarke, J.D. Harris, R.G. Harris, P.A.D. Hobson, S.G.M. Howarth,

R.G. Stewart, J. Sullivan, S. White, A.M. Wintle

INTEREST DECLARED:

Nil

AUTHOR:

Steve Greenslade - Corporate Director - RER

CONTACT DETAILS:

Tel: 01633644266

Ernail: stevegreenslade@monmouthshire.aov.uk