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Hunterston Construction Yard 2200717LUE

North Ayrshire Council · 23 November 2022
Back to Planning Committee — 23 November 2022 and its agenda

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NORTH AYRSHIRE COUNCIL 
Planning Committee 
Locality  North Coast and Cumbraes
Reference 22/00717/LUE
Application Registered 12th October 2022
Decision Due 12th December 2022
Ward North Coast 
Recommendation  Certificate Issued 
__________________________________________________________________ 
Location  Hunterston Construction Yard Fairlie Largs Ayrshire 
Applicant  Clydeport Operations Ltd 
Proposal  Certificate of Lawfulness for existing general industrial
use (Class 5)
___________________________________________________________________ 
1. Description 
This Certificate application seeks to confirm that the use of the site for general industrial
(Class 5) uses is lawful. The site is some 51ha in area, including access road. The access
road connects to the west side of the Hunterston Roundabout on the A78. The access road
is currently closed to traffic but provides access to the site and secondary access to the
Former Hunterston Coal Terminal and to the Hunterston Power Station. The main site itself
projects to the north from the mainland and is an irregular hexagonal shape. The main site is
some 46.5ha in area. 
A Class 5 (General Industrial) use is defined by the Town and Country Planning (Use
Classes) (Scotland) Order 1997 ("the GPDO") as any industrial process not falling within
Class 4 (Business). Class 4 allows any industrial process "which can be carried on in any
residential area without detriment to the amenity of that area by reason of noise, vibration,
smell, fumes, smoke, soot, ash, dust or grit." 
The application site is identified as part of the Hunterston Strategic Development Area and
as a site suitable for Business and Industry in the Local Development Plan. 
2. Consultations and Representations

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Neither any neighbour notification nor publicity measures are required for a Certificate of
Lawfulness applications and no consultations were undertaken on this application. 
3. Analysis 
Section 150 of the Town and Country Planning (Scotland) Act 1997, allows an application to
be made for a Certificate of Lawful Use or Development (CLUD) to ascertain whether any
operations, use of land or building or a breach of a planning condition is or would be lawful.
It is not equivalent in law to a grant of planning permission but the purpose of a CLUD for an
existing use is usually to secure immunity from enforcement action by the Planning
Authority or to provide certainty for future planning applications. 
In this case of a Class 5 (General industry) use, if the use has been in existence for ten
years or more, it is immune from planning enforcement action and a CLUD has to be issued.
The legislation makes it clear that the onus of proof rests with the applicant. In order to
justify the issuing of a CLUD for such an existing use, the applicant must be able to
demonstrate that the use has existed for at least ten years prior to the date of the
application.  The relevant test of such applications is on 'the balance of probability' rather
than 'beyond reasonable doubt.' 
The planning history for the site dates back to the mid-1970s. In July 1975, the Secretary of
State for Scotland granted consent for the construction of the yard. In January 1988
planning permission was granted for the continued use of the site, enlargement of the
platform and associated land reclamation. This permission was subject to a condition which
limited the duration of the use. This permission was extended in December 2005 and May
2011. 
On the 31st of August 2016, planning permission was granted for the removal of the
condition which limited the duration of the use, which meant that the planning permission
would not lapse for the use of the land as a construction yard. This permission allowed the
use of the site for construction and repair. A subsequent application to vary they types of
structures which could be constructed, repaired, or decommissioned was granted 25th of
April 2018 and remains extant. Other planning permissions granted for the site since 2002
include permissions allowing the erection of up to three wind turbines for the purposes of
testing. 
The applicant has submitted evidence of how the site has been used during the above
period. Following creation of the yard until 1985, the site was leased by various engineering
companies undertaking infrastructure projects including construction of oil rig platforms.
Copies of the leases and information of the projects undertaken is provided. For the period
1988 until 1996 the applicant has submitted evidence of further leases by engineering firms.
The construction yard was extended during this period and work carried out included the
construction of the floating Trident Dry Dock. Local newspaper extracts reporting on this
work are also provided. A marketing brochure from the mid-1990s, describing the dry dock
as recent and stating the site is suitable for a range of "marine construction projects," is also
submitted. The brochure includes photographs of a gravity base tank for an oilfield and a
steel platform. A provided newspaper extract places the steel platform work to sometime
after 1993.

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For the period from 1998 onwards, further details of short leases taken of the site by
fabrication and engineering companies are provided. From 2014 evidence of the permitted
wind turbines, erected for the purposes of testing, being constructed on site is submitted.
The applicant has provided evidence of the use of the site for a period of more than 10
years, as far back as 1975. Whilst this evidence is not consecutive, it provides a picture of a
site where various industrial projects has been undertaken. 
The Council has no evidence to the contrary of these supporting documents. Indeed, the
information the Council, as Planning Authority, retains supports the applicant's narrative as
to the use of the site. This evidence includes the planning records for the site and various
photographs. The Council has photographs of the site from 1995, 2003, 2011 and 2016
which show either industrial processes being undertaken, or the site being occupied by
buildings and structures required for carrying out industrial processes. 
Whilst the above evidence shows a site where various industrial projects have been
undertaken, it is acknowledged that the evidence is not consecutive and there have been
periods where no works on site appear to have occurred. Periods of non-use do not
necessarily affect the lawful use of a site. In planning terms non-use will only affect the
lawful use of a site if it has led to the site being 'abandoned.' Abandonment is considered in
several terms including (i) the period of non-use; (ii) the physical condition of the site; (iii)
whether there has been an intervening use; and (iv) evidence regarding the owner's
intentions. Whilst the evidence of use, particularly for the last 10 years, is intermittent, the
site has been in use for industrial processes. There is no long period of sustained non-use in
the history of the site. The site has been kept throughout in a condition that would allow for
its use for industry. There has been no intervening use of the site that would not fall within
Class 5 of the GPDO. 
The landowner's intentions have been for industrial use as evidenced by the planning
history and the marketing material. The current Local Development Plan (LDP) identifies the
site as being suitable for industrial development. This LDP was adopted in 2019. The
previous LDP was adopted in 2014 and also identified the site as being an industrial area.
The identification of the site for industry was a continuation from the North Ayrshire Local
Plan (excluding Isle of Arran) adopted 2005, the Ayrshire Structure Plan adopted 1999 and
likely prior. Although planning policies have no bearing on the determination of a CLUD, the
policy history shows the long-term identification of the site with industrial uses. 
It is therefore considered that any use of the site for general industrial purposes has not
been abandoned. 
Given all of the above it is considered, on the balance of probability, that the lawful use of
the site is Class 5 (General industry). It is noted that this conclusion would not prejudice any
future planning applications. The principle of the use of the site for industrial purposes has in
effect already been established by the LDP allocation. Planning permission would be
required for development of new buildings and any use which did not fall within general
industry including mixed or 'sui generis' uses, such as scrap yards and waste disposal. 
4. Full Recommendation 
Certificate Issued

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James Miller 
Chief Planning Officer           
For further information please contact Mr Iain Davies on 01294 324320.

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Appendix 1 – Location Plan           
DO NOT SCALE Reproduced from the Ordnance Survey mapping with the permission of the Controller of Her Majesty’s Stationery
Office © Crown Copyright.  Unauthorised reproduction infringes Crown copyright and may lead to prosecution or civil proceedings.
North Ayrshire Council Licence Number 100023393.