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Item 5(i) LRB-2021-27

Perth and Kinross Council · 11 July 2022
Back to Local Review Body — 11 July 2022 and its agenda

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5(i)
LRB-2021-27   
LRB-2021-27
21/00001/FLL – S42 application to delete condition 6
(access upgrade) of permission 20/01319/FLL, land 180
metres south west of Powmill Cottage, Rumbling Bridge 
INDEX 
(a) Papers submitted by the Applicant (Pages 321-358) 
(b) Decision Notice (Pages 333-334) 
Report of Handling (Pages 341-349) 
Reference Documents (Pages 335-339 and 361) 
(c) Representations (Pages 363-370) 
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5(i)(a)
LRB-2021-27   
LRB-2021-27
21/00001/FLL – S42 application to delete condition 6
(access upgrade) of permission 20/01319/FLL, land 180
metres south west of Powmill Cottage, Rumbling Bridge 
PAPERS SUBMITTED
BY THE
APPLICANT 
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Pullar House 35 Kinnoull Street Perth PH1 5GD  Tel: 01738 475300  Fax: 01738 475310  Email: onlineapps@pkc.gov.uk
Applications cannot be validated until all the necessary documentation has been submitted and the required fee has been paid.
Thank you for completing this application form:
ONLINE REFERENCE 100445799-001
The online reference is the unique reference for your online form only. The  Planning Authority will allocate an Application Number when
your form is validated. Please quote this reference if you need to contact the planning Authority about this application.
Applicant or Agent Details
Are you an applicant or an agent? * (An agent is an architect, consultant or someone else acting
on behalf of the applicant in connection with this application)  Applicant  Agent
Agent Details
Please enter Agent details
Company/Organisation:
Ref. Number: You must enter a Building Name or Number, or both: *
First Name: * Building Name:
Last Name: * Building Number:
Address 1
Telephone Number: * (Street): *
Extension Number: Address 2:
Mobile Number: Town/City: *
Fax Number: Country: *
Postcode: *
Email Address: *
Is the applicant an individual or an organisation/corporate entity? *
  Individual    Organisation/Corporate entity
JJF Planning
Joe
Fitzpatrick
Aytoun Crescent
35
07974426615
KY3 9HS
United Kingdom
Burntisland
joe.fitzpatrick390@gmail.com
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Applicant Details
Please enter Applicant details
Title: You must enter a Building Name or Number, or both: *
Other Title: Building Name:
First Name: * Building Number:
Address 1
Last Name: * (Street): *
Company/Organisation Address 2:
Telephone Number: * Town/City: *
Extension Number: Country: *
Mobile Number: Postcode: *
Fax Number:
Email Address: *
Site Address Details
Planning Authority:
Full postal address of the site (including postcode where available):
Address 1: 
Address 2:
Address 3:
Address 4:
Address 5:
Town/City/Settlement:
Post Code:
Please identify/describe the location of the site or sites
Northing Easting
Mr
Kevin
Perth and Kinross Council
O'Reilly
As per S42 application - 21/0001/FUL
698388 301658
joe.fitzpatrick390@gmail.com
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Description of Proposal
Please provide a description of your proposal to which your review relates. The description should be the same as given in the
application form, or as amended with the agreement of the planning authority: *
(Max 500 characters)
Type of Application
What type of application did you submit to the planning authority? *
  Application for planning permission (including householder application but excluding application to work minerals).
  Application for planning permission in principle.
  Further application.
  Application for approval of matters specified in conditions.
What does your review relate to? *
  Refusal Notice.
 Grant of permission with Conditions imposed.
  No decision reached within the prescribed period (two months after validation date or any agreed extension) – deemed refusal.
Statement of reasons for seeking review
You must state in full, why you are a seeking a review of the planning authority’s decision (or failure to make a decision). Your statement
must set out all matters you consider require  to be taken into account in determining your review. If necessary this can be provided as a
separate document in the ‘Supporting Documents’ section: *  (Max 500 characters)
Note: you are unlikely to have a further opportunity to add to your statement of appeal at a later date, so it is essential that you produce
all of the information you want the decision-maker to take into account.
You should not however raise any new matter which was not before the planning authority at the time it decided your application (or at
the time expiry of the period of determination), unless you can demonstrate that the new matter could not have been raised before that
time or that it not being raised before that time is a consequence of exceptional circumstances.
Have you raised any matters which were not before the appointed officer  at the time the  Yes   No
Determination on your application was made? *
If yes, you should explain in the box below, why you are raising the new matter, why it was not raised with the appointed officer before
your application was determined and why you consider it should be considered in your review: * (Max 500 characters)
S42 application 21/0000/FLL to delete condition 6 (access upgrade) of permission 20/01319/FLL  Land
180 Metres South West Of Powmill Cottage Rumbling Bridge   
See attached correspondence of 16th July 2021 - Notice of Review - 21/00001/FLL S42 application to delete condition 6 (access
upgrade) of permission 20/01319/FLL Land 180 Metres South West Of Powmill Cottage Rumbling Bridge 
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Please provide a list of all supporting documents, materials and evidence which you wish to submit with your notice of review and intend
to rely on in support of your review. You can attach these documents electronically later in the process: * (Max 500 characters)
Application Details
Please provide the application reference no. given to you by your planning
authority for your previous application.
What date was the application submitted to the planning authority? *
What date was the decision issued by the planning authority? *
Review Procedure
The Local Review Body will decide on the procedure to be used to determine your review and may at any time during the review
process require that further information or representations be made to enable them to determine the review. Further information may be
required by one or a combination of procedures, such as: written submissions; the holding of one or more hearing sessions and/or
inspecting the land which is the subject of the review case.
Can this review continue to a conclusion, in your opinion, based on a review of the relevant information provided by yourself and other
parties only,  without any further procedures? For example, written submission, hearing session, site inspection. *
 Yes   No
In the event that the Local Review Body appointed to consider your application decides to inspect the site, in your opinion:
Can the site be clearly seen from a road or public land? *  Yes   No
Is it possible for the site to be accessed safely and without barriers to entry? *  Yes    No
Checklist – Application for Notice of Review
Please complete the following checklist to make sure  you have provided all the necessary information in support of your appeal. Failure
to submit all this  information may result in your appeal  being deemed invalid.
Have you provided the name and address of the applicant?.  *  Yes   No
Have you provided the date and reference number of the application which is the subject of this  Yes   No
review? *
If you are the agent, acting on behalf of the applicant, have you provided details of your name  Yes   No   N/A
and address and indicated whether any notice or correspondence required in connection with the
review should be sent to you or the applicant? *
Have you provided a statement setting out your reasons for requiring a review and by what  Yes   No
procedure (or combination of procedures) you wish the review to be conducted? *
Note: You must state, in full, why you are seeking a review on your application. Your statement must set out all matters you consider
require to be taken into account in determining your review. You may not have a further opportunity to add to your statement of review
at a later date. It is therefore essential that you submit with your notice of review, all necessary information and evidence that you rely
on and wish the Local Review Body to consider as part of your review.
Please attach a copy of all documents, material and evidence which you intend to rely on  Yes   No
(e.g. plans and Drawings) which are now the subject of this review *
Note: Where the review relates to a further application e.g. renewal of planning permission or modification, variation or removal of a
planning condition or where it relates to an application for approval of matters specified in conditions, it is advisable to provide the
application reference number, approved plans and decision notice (if any) from the earlier consent.
LIST OF DOCUMENTS Document 1 – Perth and Kinross Council Decision Notice 21/00001/FLL. Document 2 –
Supporting Statement. Document 3 – Report of Handling 21/00001/FLL. Document 4 - Planning Application Form
21/00001/FLL
21/00001/FLL
19/04/2021
02/01/2021
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Declare – Notice of Review
I/We the applicant/agent certify that this is an application for review on the grounds stated.
Declaration Name: Mr Joe Fitzpatrick
Declaration Date: 16/07/2021
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Joe Fitzpatrick 
Planning Consultant
Joe.fitzpatrick390@gmail.com
07974426615
01592874360 
The Secretary
Local Review Body
Perth and Kinross Council
Committee Services
Council Building
2 high Street
Perth
PH1 5PH 
16th July 2021 
Dear Cllrs, 
Notice of Review - 21/00001/FLL S42 application to delete condition 6 (access upgrade)
of permission 20/01319/FLL Land 180 Metres South West Of Powmill Cottage
Rumbling Bridge 
Before launching into this Review submission, I would first of all like to thank the Local Review
Body for the opportunity to have this matter reconsidered. 
You will by now have read all the information I submitted with the application as well as the
Council’s Report of Handling. However, in breaking with convention, you’ll be glad to hear that
I’m not intending to do a blow by blow rebuttal on the many points raised in the Report of
Handling. I’m also not intending to exhaustively repeat all information previously submitted by
myself in support of this case. As you will have noted, the case is set out in detail under my
correspondence of the 3rd January 2021 which was submitted in support of the application.
Suffice it to say that the terms of Condition 6 clearly breach the provisions of the Scottish
Government’s Conditions Circular (Circular 4/1998), mainly due to the unreasonableness of
imposing a £350,000.00 burden on the applicant before they even look at any development
on the site itself. In this regard, the Council’s assertion that “the personal financial
circumstances of the applicant” are irrelevant, does not in any way obviate the situation or
provide absolution from the moral imperative to try and find a way forward. It’s not like this is
a situation where, had it not been for the “personal financial circumstances of the applicant”,
it would have been otherwise reasonable to impose such a huge financial burden.   
I’m also not intending to get involved in issues of blame as to how we’ve arrived at the current
stalemate position. The key issue is whether it is reasonable to expect someone who is
seeking to establish a business use with an associated dwellinghouse, to pay £350,000.00 to
install the access roadway, without any prospect of being able to secure any form of
reimbursement from the other property owners who will then benefit from the road.  The
prospect of such an outcome could have easily been avoided by a requirement for all
applicants to enter into a Section 75 agreement that would ensure joint responsibility for the
cost of installing the road. 
To the contrary, this statement focuses on finding a way to break the stalemate and enable
development of the wider employment land site to progress through positive cooperation
between all the parties involved. Although it is recognised that there is no right of appeal on/ 
_____________________________________________________________________________________________________
35 AYTOUN CRESCENT            BURNTISLAND            FIFE            KY3 9HS 329

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a Breach of Conditions Notice if my client fails to comply with the terms of Condition 6 (which
is a very real prospect unless he wins the National Lottery), given that the ultimate recourse
will then be to the Procurator Fiscal, I’m hoping that my client’s willingness to try and find a
solution will be reciprocated by the Local Review Body.  
As it stands, if the matter comes before the PF then the clear breach of Circular 4/1998 is
likely to result in a decision by the PF not to take any further action. The terms of Condition 6
will then become null and void and the Council will be unable to secure any improvement to
the access. However, my client recognises the need for an improved access to be formed and
is willing to cooperate with a reasonable approach from the Council in order to achieve this. 
The solution my client is offering involves entering into a formal Section 75 Agreement to form
the portion of the access road immediately adjoining his property in accordance with the
specification submitted with the application. In addition, my client is willing to agree to make a
contribution towards formation of the bell mouth at the access of the site with the A977 and
any portions of the access track which require a similar cost sharing agreement, it being the
case that the full access track is not fronted by proposed development.  
The Local Review body will note that this offer has already been made as part of the
application but rejected on the basis that such an offer will “fail to provide an appropriate
delivery mechanism for the upgrade of the entire access track” as stated in the reason for
refusal. Therefore, by implication, if this proposed solution where to be considered an
appropriate mechanism which would lead to the upgrade being achieved, then the proposals
would be considered acceptable. In this regard, given that every other property owner along
the access track is faced with the same restrictions under their respective planning
permissions, it is unclear why the Council considers that the solution already proposed will not
work. 
If a relaxation to the terms of Condition 6 is granted to my client then he will build the section
of road in front of his property in accordance with the submitted details and also agree to
contribute to the shared responsibility for the works at the access bell mouth etc. All the other
property owners who have planning permission along this route will then retain the full burden
to provide the roadway which has also been imposed on their planning permissions. To
remove such a planning condition these other property owners will then need to enter into the
same agreement with the Council – or face the prospect of having to pay £350,00.00 to install
the road in accordance with their planning conditions. It’s not difficult to see what option they
will chose. 
Although it is acknowledged that the solution is not ideal in that the road will not be built in one
single phase, progress towards completion will nevertheless be achieved in relation to the
scale of demand for the use of the road. In my clients case, although there will be portions of
the road to the east of his property which will not be improved until the land owners to the east
undertake similar works, the existing track eastwards is perfectly suited to providing adequate
access pending such more substantial improvements being made. 
Also, although the road will not be constructed to the full specification of an adoptable road,
the standard proposed under this application is more than adequate to provide for the level of
development. In this regard my client would also be more than happy to agree to shared
maintenance of the access roadway, thereby relieving the Council of an ongoing maintenance
burden. 
We have a situation here where errors in the past in dealing with successive planning
permissions over many years has resulted in a stalemate which is preventing any form of
development taking place. How can one person reasonably be expected to raise development/ 
_____________________________________________________________________________________________________
35 AYTOUN CRESCENT            BURNTISLAND            FIFE            KY3 9HS 330

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finance to cover a £350,000.00 cost which will not then be reflected in the resulting asset
value. Unless this stalemate is broken this innovative employment land model, a model which
directly promotes current moves towards working from home, will remain undeveloped in
perpetuity. 
This innovative employment land model is one which the Council should be actively seeking
to promote and although the above solution represents a compromise on the “platinum gold
standard”, it does at least mean that progress can be made towards the delivery of a very
worthwhile and forward thinking employment land model, the benefits of which far outweigh
the scale of the compromise the Council is being asked to make.         
In closing, I’ve kept this submission fairly brief so as to focus on the key issue. If there’s
anything more that the Review Body needs in terms of wider information to support your
assessment then I will make sure this is provided by return.   
Yours sincerely, 
Joe Fitzpatrick BSc(Hons) MRTPI       
__________________________________________________________________________________________________
35 AYTOUN CRESCENT            BURNTISLAND            FIFE            KY3 9HS 331

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Page 1 of 3 
Mr Kevin O'Reilly
c/o JJF Planning
Joe Fitzpatrick
35 Aytoun Crescent
Burntisland
KY3 9HS 
Pullar House
35 Kinnoull Street
PERTH  
PH1  5GD 
Date of Notice: 19th April 2021 
TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 
Application Reference: 21/00001/FLL 
I am directed by the Planning Authority under the Town and Country Planning (Scotland)
Acts currently in force, to refuse your application registered on 2nd January 2021 for
Planning Permission for S42 application to delete condition 6 (access upgrade) of
permission 20/01319/FLL Land 180 Metres South West Of Powmill Cottage Rumbling
Bridge   
David Littlejohn
Head of Planning and Development 
Reasons for Refusal 
1 The development requires the upgrade of the access for pedestrian and road safety
reasons and therefore there is considered to be a sound justification for the existing
condition in accordance with the requirements of Policy 60B of the Perth and Kinross
Council Local Development Plan 2 (2019) and the National Roads Development Guide in
order to serve the development of the E23 allocated Employment site.  The proposal, as
submitted, fails to provide an appropriate delivery mechanism for the upgrade of the
entire access track.  Whilst the personal and financial circumstances of the applicant are
noted, these are not considered to be sufficient to outweigh the requirements of the
Development Plan. 
Justification 
The proposal is not in accordance with the Development Plan and there are no
material reasons which justify departing from the Development Plan. 
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2
Notes 
The plans and documents relating to this decision are listed below and are
displayed on Perth and Kinross Council’s website at www.pkc.gov.uk “Online
Planning Applications” page 
Plan Reference 
01 
02 
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____________________________________________________________________________________________________
35 AYTOUN CRESCENT                    BURNTISLAND                   FIFE                   KY3 9HS 
Joe Fitzpatrick  
Planning Consultant 
Joe.fitzpatrick390@gmail.com  
07974426615      
01592874360 
Development Management 
Corporate and Democratic Services
Perth and Kinross Council
Pullar House 
35 Kinnoull Street 
PERTH 
PH1 5GD 
3rd January 2020 
Dear Sir/Madam 
Section 42 Application Relating to Condition 6 of Planning Permission 20/01319/FLL Land 180 Metres South
West Of Powmill Cottage Rumbling Bridge 
I act on behalf of Kevin O’Reilly The Ochil, Newbigging Farm, Fossoway. This correspondence is submitted to
Perth and Kinross Council for consideration in support of the application under Section 42 of the Town and
Country Planning (Scotland) Act 1997 relating to Condition 6 of planning permission 20/01319/FLL for the
erection of a dwellinghouse and office. Condition 6 of planning permission 20/01319/FLL states: 
Prior to the development hereby approved being completed or brought into use, all matters
regarding access, car parking, road layout, design and specification, including the disposal of
surface water, shall be in accordance with the standards required by the Council as Roads
Authority. Reason - In the interests of pedestrian and traffic safety and in the interests of free
traffic flow. 
The Report of Handling Associated with the planning permission sets out the Council’s expectation in relation
to achieving compliance with the terms of Condition 6 and links this to the Road Construction Consent (RCC)
that was obtained by a third party prior to my clients acquisition of the site in May 2018. This RCC relates to
the overall development of the wider Perth and Kinross Local Development Plan Site E23. As such the RCC
relates to a roadway construction extending over 300m from the A977 to the furthest dwellinghouse access
at Plot 1, the neighbouring site to the west of the approved development site. 
The outcome of the intention of the above planning condition is that despite the RCC relating to the wider
development of Site E23, comprising up to 7 dwellings with associated Class 4 office units, the full burden of
the cost associated with provision of the roadway will fall on the dwellinghouse which is completed first. A
preliminary costing exercise carried out by my client in relation to provision of an adoptable roadway,
including construction of a temporary road to maintain access to properties beyond during construction,
indicates that the cost of implementing the works to fully adoptable standard will be in the order of £320k -
£350k. 
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35 AYTOUN CRESCENT                    BURNTISLAND                   FIFE                   KY3 9HS 
As such the intended terms of Condition 6, if related to the RCC as suggested within the Report of Handling
(Ref; 20/01319/FLL), are considered to fail to satisfy the various test of a planning condition set out under
Scottish Government Circular 4/1998 – The Use Of Conditions in Planning Permissions. In addition, the
position is fundamentally at odds with guidance set out within the SPP relating to rural development which
states that the planning system should encourage rural development that supports prosperous and
sustainable communities and businesses (SPP – Para 75). In this regard, the financial burden imposed by the
intended outcome of Condition 6 renders the approved development financially unviable. 
As a further consideration, the approach adopted under Condition 6, if related to the RCC, is also
fundamentally at odds with the terms of the Chief Planners Letter of 18th Jan 2016 relating to a requirement
to align Planning and Road Construction Consents. In particular the Chief Planners Letter states: 
Based on all the work to date I hope that you will agree that alignment of these consents will be
a positive step to support more effective delivery and that Planning and Roads services should
now support that. 
Although the Chief Planners Letter refers primarily to the delivery of housing land, adoption of the alignment
principle also extends to wider land use types such as the delivery of employment land. In this regard, in
order to achieve such alignment between the RCC and the wider Site E23 with which it is directly linked, it is
considered that the Council had an opportunity to do so within the context of the allocation of Site E23 under
the Perth and Kinross Local Development Plan. Given that the RCC is directly associated with the wider Site
E23 then a requirement that development of the overall site be subject to a mechanism to ensure shared
responsibility for implementation of the RCC, the terms of which have been known since 2012, would have
represented best practice. As it stands the LDP allocation makes no reference to the RCC, or any burden
relating to the provision of access within the Site Specific Developer Requirements. 
In relation to Circular 4/1998 there is a requirement that a planning condition meets a range of tests. In this
regard Circular 4/1998 states:   
While the power to impose planning conditions is very wide, it needs to be exercised in a
manner which is fair, reasonable and practicable. Planning conditions should only be
imposed where they are:  
• necessary 
• relevant to planning 
• relevant to the development to be permitted 
• enforceable 
• precise 
• reasonable in all other respects 
The Secretary of State attaches great importance to these criteria being met so that there
is an effective basis for the control and regulation of development which does not place
unreasonable or unjustified burdens on applicants and their successors in title.
In relation to the necessity test, it is clearly the case that a single dwellinghouse would not require to be
served by a fully adoptable roadway. The condition is clearly aimed at addressing wider development
considerations associated with Site E23 as opposed to the site specific development consideration for which
planning permission has been granted. The terms of any condition relating to the site need to be defined in
accordance with the development proposed and not in relation to the wider potential for development under
Site E23. In this regard, although Circular 4/1998 permits a condition relating to an access to be related to
occupation of development, the terms of the Circular clearly state that this should be related to the relevant
buildings involved, not one single building forming part of the relevant group.  
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35 AYTOUN CRESCENT                    BURNTISLAND                   FIFE                   KY3 9HS 
The above consideration is of particular relevance given that the potential currently exists for no other
development to take place associated with Site E23. In such circumstances the provision of a fully adoptable
specification of roadway, as proposed under the RCC, to serve only one dwellinghouse, would be completely
unnecessary.  In addition, the provision of the portion of roadway beyond the site to the west is not necessary
in relation to the approved development.
Also, in terms of the necessity test, the dwellinghouse approved under planning permission 20/01319/FLL
represents only the fourth residential unit extending along the track from Craigton, the three other
dwellinghouses comprising Craigton House, Craigton Steading and Craigton Bungalow. Although planning
permission (Ref: 15/01348/FLL) for a further dwellinghouse had previously been granted to the immediate
west of the approved development site, this permission has now lapsed. However, even if planning
permission were to be granted for this neighbouring site given it’s location within Site E23, this would be the
last dwelling capable of being constructed, thereby bringing the total number of residential units to only 5.
The SCOTS National Road Development Guide states at paragraph 2.1.4 Design Guidance and Adoption
Standards, that: 
Generally 5 or fewer dwellings (more if a ‘brownfield site’, eg redeveloped farm steadings)
will be served by a ‘private access’ which, as there is no right of public access, will not
require Construction Consent and will not be available for adoption. 
Therefore, the intention of Condition 6 also fails the necessity test in that the National Guide does not require
the access to the property to be constructed to adoptable standard.       
Given the above considerations relating to necessity, with the exception of the provisions of Condition 6
relating to car parking within the curtilage of the dwelling, it is clearly the case that the intended outcome
also fails to satisfy the test of relevance to the development to be permitted. In this regard Circular 4/1998
states: 
Unless a condition fairly and reasonably relates to the development to be permitted, it
will be ultra vires. It is not, therefore, sufficient that a condition is related to planning
objectives: it must also be justified by the nature of the development permitted or its
effect on the surroundings. (paras 23 and 24) 
Given the above, in terms of the proportionality of the intended outcome of Condition 6 compared to the
impact of approved development, the details approved under the RCC clearly represents a standard which is
not relevant in terms of scale to the development that has been permitted. This consideration is further
supported in that the relevant standard of access associated with the development has already been set
under the National Guide which confirms that the existing private access is sufficient to serve the approved
development.     
In relation to the test regarding whether a condition is enforceable, paragraph 37 of Circular 4/1998 advises
that: 
It is unreasonable to impose a condition worded in a positive form which developers
would be unable to comply with themselves, or which they could comply with only with
the consent or authorisation of a third party 
It will be noted that the existing private access is not owned by my client and that the consent of third parties
would be required in order to implement the intended terms of Condition 6. This requirement of Circular
4/1998, when considered against the clear failure to satisfy other tests of necessity and relevance under the
Circular, is sufficient to support a case that the terms of Condition 6 also fail to meet the test relating to
enforceability.   
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35 AYTOUN CRESCENT                    BURNTISLAND                   FIFE                   KY3 9HS 
In addition to the above, one enforcement option open to the Council would be to serve a Breach of
Conditions Notice (BCN) in the event of non-compliance with the intended outcome of Condition 6.  In this
regard Annex J to Circular 10/2009 – Planning Enforcement, advises that: 
It is important that any conditions imposed on a planning permission should reflect the
current guidance on the use of conditions (see SODD Circular 4/1998) (para 3)  
Therefore, given the failure of Condition 6 to meet the tests of Circular 4/1998 relating to necessity and
relevance, the above terms of Circular 10/2009 provides further support for the case that the condition also
fails the requirements to Circular 4/1998 relating to enforceability. 
In relation to the test of precision set out under Circular 4/1998, it is noted that the terms of Condition 6 do
not actually require any works to be carried out in order to achieve compliance. Instead, the condition simply
states that: 
“all matters”….”shall be in accordance with the standards required by the Council as
Roads Authority.” 
Given that an approved RCC exists for the site then full compliance with the terms of Condition 6 has already
been achieved. This consideration is also relevant to matters relating to the necessity and enforceability tests
under Circular 4/1998.   
A further test under Circular 4/1998 requires that a condition be reasonable in all other respects. Given the
above consideration relating to necessity, relevance to the approved development and enforceability it is
considered that the terms of Condition 6 also fail the requirement that a condition be reasonable. In terms
of proportionality, the intended requirement to provide a fully adoptable access extending some 300m from
the site eastwards to the A977 and some 20m westwards to service the full extent of Site E23, in accordance
with the RCC, is clearly an unreasonable requirement to impose on a development comprising a single
dwellinghouse. 
In addition, to impose a condition based on speculation regarding further development as part of Site E23,
rather than in relation to the current circumstances associated with the approved development, is considered
to be unreasonable. 
In terms of the financial burden that the intended outcome of Condition 6 would impose, Circular 4/1998
advises at paragraph 35 that: 
Even where a condition would not be so unreasonably restrictive as to be ultra vires, it
may still be so onerous that as a matter of policy it should be avoided. For example, a
condition which would put a severe limitation on the freedom of an owner to dispose
of his property, or which would obviously make it difficult to finance the erection of
the permitted building by borrowing on mortgage, should be avoided on these
grounds. An unduly restrictive condition can never be made acceptable by offering the
prospect of informal relaxation of its effect. 
Given that the financial burden imposed by the intended outcome of Condition 6 would render the approved
development financially unviable, it is considered unreasonable under the terms of Circular 4/1998. 
Finally, in relation to Circular 4/1998 and the reasonableness test, it is understood that the SCOTS National
Roads Development Guide relating to a permissible limit of 5 dwellinghouse units being served off a private
access is a standard applied elsewhere by the Council. In view of this it is considered wholly unreasonable for
the Council to elect not to do likewise in relation to this development when there is clearly no reasonable
prospect of any further development beyond the 5 unit standard being applied elsewhere.      
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35 AYTOUN CRESCENT                    BURNTISLAND                   FIFE                   KY3 9HS 
Clearly, the intention of Condition 6 with respect to the access etc is such that compliance with the RCC is
not a definite requirement of the condition, given that no direct mention is made of the RCC as the standard
that must be adopted. Instead, the condition refers to matters being in accordance with the standards
required by the Council as Roads Authority. Therefore, notwithstanding above considerations, not least of
which relating to the fact that the terms of Condition 6 do not actually require any works to be carried out,
my client recognises that some minor improvement to the existing private access may be justified and on this
basis, he would be happy to enter into discussion with the Council.   
I trust that the above matters will be taken into consideration as part of the assessment process for this
application. 
Yours sincerely, 
Joe Fitzpatrick 
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1 
REPORT OF HANDLING 
DELEGATED REPORT 
Ref No 21/00001/FLL
Ward No P8- Kinross-shire
Due Determination Date 1st March 2021 Extended to 1st May 2021
Draft Report Date 14th April 2021
Report Issued by  Date 
PROPOSAL:  S42 application to delete condition 6 (access
upgrade) of permission 20/01319/FLL    
LOCATION:  Land 180 Metres South West Of Powmill Cottage
Rumbling Bridge   
SUMMARY: 
This report recommends refusal of the application as the development is considered
to be contrary to the relevant provisions of the Development Plan and there are no
material considerations apparent which justify setting aside the Development Plan. 
DATE OF SITE VISIT:  Not undertaken due to Covid 19 restrictions 
SITE  PHOTOGRAPHS 
None 
BACKGROUND AND DESCRIPTION OF PROPOSAL 
Planning permission under Section 42 of the Planning Act is sought to delete
condition 6 of permission 20/01319/FLL which relates to the upgrade of the existing
access road serving an application site where a dwellinghouse with associated office
accommodation has been approved.  The site is located within allocated
employment site E23 which is located to the north west of Powmill.  The access also
serves properties to the west beyond the allocated site, Craigton House, Craigton
Bungalow and The Steading and a working farm.  The access is also part of the core
path network (FSWY/141). 
The application is made under Section 42 of the Town and Country Planning
(Scotland) Act 1997 (as amended) and is an application for planning permission for
the development of land but without compliance with a condition or conditions
attached to a previous planning permission. 
The applicant wishes to proceed with the development of the house and office
accommodation on this site without complying with condition 6 which reads as
follows: 
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"Prior to the development hereby approved being completed or brought into use, all
matters regarding access, car parking, road layout, design and specification,
including the disposal of surface water, shall be in accordance with the standards
required by the Council as Roads Authority. 
Reason - In the interests of pedestrian and traffic safety and in the interests of free
traffic flow." 
Whilst not explicitly stated in the condition, the principle purpose of this condition is
to ensure the upgrade of the access serving the site to Roads Construction Consent
standards and this has been recognised in the historic permissions granted on this
site. 
There have been numerous permissions granted on this site for dwellighouses with
associated office accommodation all of which include the requirements of condition 6
to upgrade the access.  The requirement to upgrade the access has been a historic
requirement of this site since the initial approval was granted in 2003 and this
requirement has been applied to each permission granted since then. 
SITE HISTORY 
08/00267/OUT Formation of business use development (Class 4) at plot 3 (in
outline) 3 June 2008 Application Approved 
11/00600/IPL Renewal of planning consent 08/00267/OUT Erection of four
dwellinghouses with associated business use development (Class 4) (in principle) at
Plot 3 3 June 2011 Application Approved 
14/00748/IPL Renewal of permission (11/00600/IPL) Erection of four dwellinghouses
with associated business use development (Class 4) (in principle) at Plot 3 10 July
2014 Application Approved 
15/01258/FLL Erection of dwellinghouse, workshop and office (Class 4) 17
September 2015 Application Approved 
18/00925/FLL Application under Section 42 of the Town and Country Planning
(Scotland) Act 1997 to develop land without complying with Condition 3
(office/workshop ownership) of planning permission 15/01258/FLL (Erection of
dwellinghouse, workshop and office (Class 4)) 27 June 2018 Application Approved 
18/02124/FLL Erection of a dwellinghouse and office (Class 4) 31 January 2019
Application Refused 
19/00631/FLL Erection of a dwellinghouse and office (Class 4) 28 May 2019
Application Approved 
20/00764/FLL S42 application to modify condition 6 (access and road) of permission
19/00631/FLL 4 August 2020 Application Withdrawn 
20/01319/FLL Erection of a dwellinghouse and office (class 4) 26 October 2020
Application Approved
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3 
PRE-APPLICATION CONSULTATION 
Pre application Reference: None 
NATIONAL POLICY AND GUIDANCE 
The Scottish Government expresses its planning policies through The National
Planning Framework, the Scottish Planning Policy (SPP), Planning Advice Notes
(PAN), Creating Places, Designing Streets, National Roads Development Guide and
a series of Circulars.   
DEVELOPMENT PLAN 
The Development Plan for the area comprises the TAYplan Strategic Development
Plan 2016-2036 and the Perth and Kinross Local Development Plan 2 (2019). 
TAYplan Strategic Development Plan 2016 – 2036 - Approved October 2017 
Whilst there are no specific policies or strategies directly relevant to this proposal the
overall vision of the TAYplan should be noted.  The vision states “By 2036 the
TAYplan area will be sustainable, more attractive, competitive and vibrant without
creating an unacceptable burden on our planet. The quality of life will make it a place
of first choice where more people choose to live, work, study and visit, and where
businesses choose to invest and create jobs.” 
Perth and Kinross Local Development Plan 2 – Adopted November 2019 
The Local Development Plan 2 (LDP2) is the most recent statement of Council policy
and is augmented by Supplementary Guidance. 
The principal policies are: 
Policy 15: Public Access   
Policy 60B: Transport Standards and Accessibility Requirements: New Development
Proposals 
OTHER POLICIES 
None 
CONSULTATION RESPONSES 
INTERNAL 
Transport Planning – objection on grounds of lack of appropriate mechanism to
secure upgrade of entire access track. 
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EXTERNAL 
Fossoway Community Council – objection due to concerns that deletion of condition
would impact on road safety and result in the access track not being upgraded. 
There is a historic requirement to upgrade the access serving the E23 allocation. 
Concerns are also expressed regarding impact on use of core path which runs along
the access. 
REPRESENTATIONS 
The following points were raised in the 1 representation received from the Fossoway
Community Council: 
• Impact on road safety
• Planning history
• Impact on use of core path 
The above issues are addressed within the appraisal section below. 
ADDITIONAL STATEMENTS 
Screening Opinion  Not Required
Environmental Impact Assessment (EIA):
Environmental Report
Not Required
Appropriate Assessment AA Not Required
Design Statement or Design and Access
Statement
Not Required
Report on Impact or Potential Impact  Supporting Planning
Statement 
APPRAISAL 
Sections 25 and 37 (2) of the Town and Country Planning (Scotland) Act 1997
require that planning decisions be made in accordance with the development plan
unless material considerations indicate otherwise.  The Development Plan for the
area comprises the approved TAYplan and the adopted LDP2. 
The determining issues in this case are whether; the proposal complies with
development plan policy; or if there are any other material considerations which
justify a departure from policy. 
Assessment 
The submission includes a Supporting Statement which considers that condition 6
fails to meet the various tests set out in Scottish Government Circular 4/1998 - The
Use of Conditions in Planning Permissions and that the condition is at odds with
guidance set out in Scottish Planning Policy (SPP) regarding rural development.  It
states that the condition puts a financial burden on the developer and renders the
approved development financially unviable.  It goes on to state that the Council
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should have secured delivery of the access upgrade through some form of
mechanism to ensure shared delivery of the access upgrade and that this could have
been done through the recent adoption of the LDP2.   
In summary the submission indicates that the condition fails to meet the six tests
outlined in the circular, namely they require to be: 
• Necessary
• Relevant to planning
• Relevant to the development permitted
• Enforceable
• Precise
• Reasonable in all other aspects 
The submission concludes that a single dwellinghouse and associated office would
not require to be serviced by a fully adoptable roadway and therefore the condition is
not relevant to the development permitted and states that the condition clearly seeks
to cater for the wider development of the E23 allocated site.  The submission goes
on to state that the total number of dwellinghouses being served by the access
would be 5 and questions whether there is a need for the access to be brought up to
adoptable standards as the National Roads Development Guide states in para 2.1.4
that generally 5 or fewer dwellings will be served by a "private access" which will not
be available for adoption. The submission also indicates that the access is owned by
a third party and points out that delivery of the upgrades would require the
permission of third parties and that Circular 4/1998 advises that it is unreasonable to
impose a condition worded in a way which the developer would be unable to comply
with or which they could only comply with the consent of a third party. 
The deliverability of allocated sites is a key issue in planning currently and the
Council is currently investigating how this can be amalgamated into Local
Development Plan allocations through Delivery Strategies for Allocated Sites. 
However, this mainly references larger scale housing development sites but the
strategic issue is relevant to this permission.  This issue is recognised nationally in
the Scottish Government publication Local Development Plans - Deliverability of Site
Allocations: Research.  The deliverability of allocated sites has come into greater
focus in NPF3 and SPP.  It is therefore clear that the issue of deliverability has been
given larger focus recently.  Whilst this issue is recognised and acknowledged, this
particular site has a long standing allocation which dates back to the Kinross Area
Local Plan 2004 which was long before the issue of delivery strategies for sites was
a key focus.  On discussion with the Planning and Strategy team there was some
consideration during the preparation of the LDP2 as to whether a delivery strategy
could be secured for this site.  However, given the allocated site was no longer in the
ownership of one party and that the plots had been sold off it was considered that it
would not be possible to secure a delivery strategy for the site. 
Need for Access Upgrade 
The original permission on this site which dates back to 2003 has always specified
the need to upgrade the access into the site and a detailed layout of the upgrade
accompanied that application.  The access is required to be upgraded to an
adoptable standard and this longstanding requirement for this allocated site has
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been transferred down to each subsequent permission which has been granted on
the E23 site.  The applicant's submission appears to focus on the site and E23
allocation as dwellinghouses and frequently mentions dwellinghouses within the
submission.  It references dwellinghouses when it refers to associated policy
guidance.  Allocated site E23 is an employment site which allows for associated
residential development.  Therefore each permission which has been granted on the
allocated site allows for this and the upgrade of the access is required on this basis.
The traffic levels for each plot are considered to be higher than that of a normal
residential development given the presence of employment/office based uses on
each plot.  There is potential for visiting members of the public and employees to
utilise the access track in addition to the traffic associated with the dwellinghouses
and the upgrade of the track is required in order to cater for this increased usage
together with ensuring the safety of users of the core path which runs along the
access.  Therefore, the reference solely to dwellinghouses within the Supporting
Statement is flawed. 
Nevertheless, it was considered to be prudent to assess whether the upgrade of the
access to an adoptable standard was necessary in light of current guidance and
policy.  The applicant has submitted a sectional drawing which indicated a reduced
specification for the access and it is noted that this is not to an adoptable standard
and would not be subject to the same maintenance requirements as an adoptable
road. 
It is also necessary to consider how this revised specification could actually be
delivered along the entire 300 metre length of the access track which serves the E23
allocation. 
Delivery of the Proposed Upgrade 
The condition which is currently applied to this permission and other live permissions
along the access requires the upgrade of the entire length of access track (approx
300 metres) from the western end of plot 1 to the access bellmouth with the A977
public road.  As mentioned above this is a longstanding requirement for new build
development within the E23 allocation for the access to be upgraded and has been
applied to all permissions for employment/dwellinghouses uses granted to date. 
The developer has indicated that the upgrade of the track to serve the entire site is
not appropriate given that the permission relates to one dwellinghouse and that this
particular permission (20/01319/FLL) does not seek to develop out the entire E23
allocated site.  The submission therefore concludes that it is unreasonable to apply a
condition of this nature as it is not relevant to the development which is proposed. 
Whilst this view is noted, the condition has been consistently applied to permissions
on this site and the applicant would have been aware of the requirements of this
condition when purchasing the land. 
The applicant's agent was asked to outline how any proposal to delete or amend
condition 6 would work in practise as there is still a requirement to secure the
upgrade of the access to serve the allocated E23 site.  The recommendation of the
applicant's agent is that the developer of each plot upgrade the access as it fronts
onto that specific plot.  The agent has suggested that the other plot owners are ready
to submit similar Section 42 applications to amend their permissions, similar to this
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current application and has argued that this would allow the Council to secure the
upgrade of the access elsewhere along the remaining track.  There is, however, no
evidence to suggest that this is the case and none of the other land owners have
approached the Council on this basis.  From reviewing the planning history of the
E23 allocation it is noted that the following situation is evident: 
• Plot 1 (the furthest west of the plots) had a permission in 2015 (15/01348/FLL)
which has since expired. 
• Plot 2 (the furthest east of the plots) now has permission for a 5 berth caravan
park (19/01073/FLL) which is accessed directly from the bellmouth and
therefore does not require to utilise the track for access and there is no
condition on this permission which requires the upgrade of the access. 
• Plot 3A is the site subject to this application. 
• Plot 3B and 3C have a live permission for the erection of 2 dwellinghouses
and offices (21/00809/FLL) which is subject to the same condition regarding
access upgrade. 
• Plot 3D (located to the immediate west of Powmill Cottage) had a permission
in 2016 (16/01058/FLL) which has since expired. 
The plan below is taken from an earlier approval on the site but helps to provide
some context: 
There is an extensive length of access track which requires to be upgraded from the
public road to the east, along to plot 1 to the very west of the allocated site.  There
are therefore sections of the length of the access track which would be not upgraded
based on the proposal which has been put forward by the applicant's agent for each
owner to only upgrade the section immediately adjacent to their plot.  This includes
the track infront of the existing house (Powmill Cottage), together with the stretch
from Powmill Cottage to the public road and the land outside plots 1 and 3D which
do not have a current permission.  The Council would therefore have no mechanism
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to secure the upgrade of the entire length of access track based upon the proposal
which has been put forward in this submission. 
There is a long standing historic requirement for the upgrade of the access
associated with the E23 allocation and it would be for the applicant/developer on
each plot of land to be aware of this when they purchased the land.  The
apportioning of costs/sections of the access for upgrade is not considered to be a
material planning consideration and is a civil matter which requires to be resolved
between the owners/developers of the relevant plots which are to be served by the
access. 
On that basis it is suggested to the applicant that discussions are undertaken with
the other owners and any future developers to consider how the cost of the works to
upgrade the access are apportioned to each site owner as it is not considered to be
the remit of the Planning Authority to split up and apportion costs and upgrade works
for sections of the access track.  Furthermore, there is also no guarantee that the
other developers will come forward and develop out the remaining sites or seek a
Section 42 application for their particular plot which limits the ability of the Council to
secure the upgrade and may result it parts of the track being upgraded and other
parts left in its current state for a considerable period of time.  Therefore, the
proposed delivery mechanism for the upgrade of the track which has been put
forward by the agent is fundamentally flawed and would offer no guarantees to the
Council that the access would ever be entirely upgraded.  Therefore the delivery
mechanism for securing the upgrade of the access at a future date is not acceptable. 
The key question to ask is at what point would the required upgrade of the access be
undertaken should the condition be deleted.  Ultimately if the condition is deleted or
amended to only require the applicant to upgrade the length of track which fronts
their plot, the burden and cost of upgrading the remainder of the access would then
fall on the next dwellinghouse and office to be developed, which is also not
considered to be appropriate.  If the Council approved this application to delete or
amend condition 6, this would set a precedent for the deletion or amendments of the
conditions on all other plots being served by this access and there would be a strong
possibility that the entire E23 allocated site could be developed without the
appropriate upgrades to the access serving the new development to the detriment of
pedestrian and road safety.  The Council has considered what mechanisms are
available to secure the upgrade of the entire length of access following discussions
between Strategy & Policy and Development Management. No solutions are
apparent which would deliver the upgrade of the full extent of the track. 
Ultimately it is the responsibility of a developer to ensure that the conditions on a
planning permission can be adequately addressed and the role of a solicitor to
consider this when purchasing land.   Some sort of collaboration agreement should
have been entered into with the other sites at the time of purchase to ensure the
requirements of the planning permissions could be delivered.  This is considered to
be the applicant's risk and not a matter which the Planning Authority can adequately
resolve without compromising the delivery of the access upgrades for the wider site. 
PLANNING OBLIGATIONS AND LEGAL AGREEMENTS 
None required.  
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DIRECTION BY SCOTTISH MINISTERS 
None applicable to this proposal. 
CONCLUSION AND REASONS FOR DECISION 
The development requires the upgrade of the access for pedestrian and road safety
reasons and therefore there is considered to be a sound justification for the existing
condition in accordance with the requirements of Policy 60B and the National Roads
Development Guide.  Whilst it is considered that there may be some scope to reduce
the requirements of the condition in terms of the specification of the access upgrade,
there is still a requirement to secure an appropriate and robust delivery mechanism
for the access upgrade and the proposal put forward by the applicant's agent fails to
demonstrate any indication of an appropriate mechanism for delivery of the entire
access upgrade. 
Whilst the personal and financial circumstances of the applicant are noted these are
not considered to be sufficient to outweigh the requirements of the Development
Plan.  On that basis the application to amend or delete condition 6 is recommended
for refusal. 
Reasons 
The development requires the upgrade of the access for pedestrian and road safety
reasons and therefore there is considered to be a sound justification for the existing
condition in accordance with the requirements of Policy 60B of the Perth and Kinross
Council Local Development Plan 2019 and the National Roads Development Guide
in order to serve the development of the E23 allocated Employment site.  The
proposal, as submitted, fails to provide an appropriate delivery mechanism for the
upgrade of the entire access track.  Whilst the personal and financial circumstances
of the applicant are noted these are not considered to be sufficient to outweigh the
requirements of the Development Plan. 
Justification 
The proposal is not in accordance with the Development Plan and there are no
material reasons which justify departing from the Development Plan. 
Informatives 
None 
Procedural Notes 
Not Applicable. 
PLANS AND DOCUMENTS RELATING TO THIS DECISION 
01 
02
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5(i)(b)
LRB-2021-27   
LRB-2021-27
21/00001/FLL – S42 application to delete condition 6
(access upgrade) of permission 20/01319/FLL, land 180
metres south west of Powmill Cottage, Rumbling Bridge 
PLANNING DECISION NOTICE (included in
applicant’s submission, pages 333-334) 
REPORT OF HANDLING (included in applicant’s
submission, pages 341-349) 
REFERENCE DOCUMENTS (part included in
applicant’s submission, pages 335-339) 
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360

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361

Page 44

362

Page 45

5(i)(c)
LRB-2021-27   
LRB-2021-27
21/00001/FLL – S42 application to delete condition 6
(access upgrade) of permission 20/01319/FLL, land 180
metres south west of Powmill Cottage, Rumbling Bridge 
REPRESENTATIONS 
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364

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365

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366

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Comments to the Development Quality Manager on a Planning Application
Planning
Application ref.
21/00001/FLL Comments
provided by
Lachlan MacLean
Project Officer – Transport Planning
Service/Section Transport Planning Contact
Details
TransportPlanning@pkc.gov.uk
Description of
Proposal
S42 application to delete condition 6 (access upgrade) of permission
20/01319/FLL
Address  of site Land 180 Metres South West Of Powmill Cottage, Rumbling Bridge
Comments on the
proposal
The applicant is seeking to delete Condition 6 from planning application
20/01319/FLL for the erection of a dwellinghouse off of Craigton Farm Lane
in Powmill.  Condition 6 stated:
The applicant is seeking to delete the condition above but has provided no
details as to what they are seeking to deliver.  Without this information, it
would not be appropriate to delete this condition.  In order for a full
assessment of the application to be undertaken, the applicant should come
forward with a proposal that can be considered by the Transport Planning
Team.
More information is requested from the applicant to allow this application to
be determined.  Without this information, the Transport Planning Team are
unable to support this application.
Recommended
planning
condition(s)
Recommended
informative(s) for
applicant
Date comments
returned 16 February 2021
367

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368

Page 51

Comments to the Development Quality Manager on a Planning Application
Planning
Application ref.
21/00001/FLL Comments
provided by
Lachlan MacLean
Project Officer – Transport Planning
Service/Section Transport Planning Contact
Details
TransportPlanning@pkc.gov.uk
Description of
Proposal
S42 application to delete condition 6 (access upgrade) of permission
20/01319/FLL
Address  of site Land 180 Metres South West Of Powmill Cottage, Rumbling Bridge
Comments on the
proposal
The applicant is seeking to delete Condition 6 from planning application
20/01319/FLL for the erection of a dwellinghouse off of Craigton Farm Lane
in Powmill.  Condition 6 stated:
The applicant is proposing a reduced specification for the access, as shown in
the image below.   It is important for the applicant to note that the
specification proposed would not be to an adoptable standard.  For the
access to be to an adoptable standard a Road Construction Consent
application would be required.  The applicant has advised that an ongoing
maintenance could be put in place for the track to avoid the track becoming
adopted once the road is formed.  However, the supporting statement gives
doubt to a maintenance agreement being put in place, as it advises:
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The delivery method proposed by the application may lead to sections of the
track remaining in an unsurfaced state, as the applicant is proposing the plot
holders undertake the formation of in front of their plots.  There is a concern
that there may be sections of the track with no frontage or live consent,
which will lead to sections of the track left in its current state for a
considerable time.  If this application was to be approved, there is no
guarantee that the remaining applicants would come forward with a similar
proposal.
It is considered that if all the plot owners are in agreement to an alternative
delivery method, they should all come forward with an agreed method,
clearly stating who will delivering what areas of the track, to ensure that the
track can be surfaced as per the previous consent for the wider site.  
Currently, the delivery method and agreement of other plot owners can not
be ascertained from this planning application.
Recommended
planning
condition(s)
Recommended
informative(s) for
applicant
Date comments
returned 16 April 2021
370