Councillors voted to support a world renowned music venue in the knowledge that their decision may be unlawful.
Barristers had advised both Milton Keynes Council and the developers behind plans for homes near The Stables that a decision to impose a Deed of Easement may be considered ‘ultra vires’, or not within its powers.
Councillors, in their overwhelming vote on Thursday to give the go-ahead to 79 of the 134 homes planned by Abbey Homes, also decided to go against the advice of one of their senior officers that it could be better to refuse the application instead.
Two councillors wanted to refuse the application for the first 79 homes phase of a 134 housing development.
The overall principle of development had already been granted by the council with no mention of noise mitigation, in what may also cause the planners problems if the developers decide to challenge the decision either at appeal or in the courts, councillors heard.
Backed by an unprecedented crowd of people who packed respectfully around the council chamber, planning lawyer Tim Taylor, speaking in support of The Stables, urged councillors to “tell the developer to stop moaning and get on with it.
“The Stables needs all the protection it can get,” he said.
A Deed of Easement would mean that future residents would have to be told that The Stables has a right to generate noise. This would stop private legal action against the venue which could effectively close it if huge costs are imposed.
Speaking on behalf of Abbey Homes, chartered town planner Robert Gillespie, said they had already agreed to enhanced noise mitigation measures and were “shocked” to have a Deed of Easement imposed.
He said the council had not mentioned restriction of noise when the principle of building on the site had been approved. He added that other parcels of land closer to The Stables already have planning permission for housing without noise mitigation measures.
“Why single this out now?” said Mr Gillespie. “There is no logic with this, whatsoever. To treat this site differently would be inconsistent and unjustified.”
The applicant has also shown, in figures supported by council planners, that there are already 100 homes closer to The Stables than those planned for the plot under consideration, which is 250 metres away.
Councillors took the fact that The Stables has obtained its own legal advice on a Deed of Easement being within the law as the opportunity to go against the advice of its own barrister and planning officers.
Cllr Andrew Geary (Cons, Newport North and Hanslope) said: “Legal opinions vary but I think what it comes down to is what has materially changed since we decided to impose a Deed of Easement on the whole site?
“There is only one place where this will be resolved and that is in the courts.
“I think we are doing absolutely the right thing. I hope that this does not end up in the courts. The developer could find it is cheaper to go with the Deed of Easement than go through the courts.”
The committee also heard that among the tangle of possibilities is that the developer still has time to appeal against an earlier decision to impose a Deed of Easement on the whole site.
Cllr Terry Baines (Cons, Campbell Park & Old Woughton) said: “I believe it will stand up in the courts.” He added that The Stables deserves the council’s support as a “massive part of the heritage and culture of Milton Keynes.”
And Cllr Ric Brackenbury (Lib Dem, Campbell Park & Old Woughton) added: “I think The Stables is worth fighting for. I don’t believe that the applicant has anything to fear, they should go with the Deed of Easement and make a success of the site.”
One of the council’s top officers, the director of growth, economy and culture, Tracy Darke, suggested that councillors could take the option of refusing the application on grounds of lack of noise mitigation.
But Cllr Geary said he believed that refusing the application would make the council “look silly” and would fudge the issue. But he admitted that the advice meant he was “struggling” to come to a conclusion.
However, as councillors had agreed that the development was a good one, he decided to go ahead with adding a Deed of Easement as a condition to giving it permission.
Cllr Petchey said: “I am going to vote against the proposal because I think it’s a better way of getting rid of the whole thing. I think it is a poor proposal and we should vote against it in its entirety.”
Councillors voted by a majority to approve the application, adding the Deed of Easement.