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Item 4(vi) LRB-2022-48

Perth and Kinross Council · 20 December 2022
Back to Local Review Body — 20 December 2022 and its agenda

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4(vi)
LRB-2022-48
LRB-2022-48
22/00175/FLL - S42 application to remove condition 3
(occupancy) of planning permission 04/00351/FUL Staff
Accommodation, Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, PH16 5EQ
INDEX
(a) Papers submitted by the Applicant (Pages 581-618)
(b) Decision Notice (Pages 607-608)
Report of Handling (Pages 609-615)
Reference Documents (Pages 617-618 and 621-633)
(c) Representations (Pages 635-640)
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4(vi)(a)
LRB-2022-48
LRB-2022-48
22/00175/FLL - S42 application to remove condition 3
(occupancy) of planning permission 04/00351/FUL Staff
Accommodation, Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, PH16 5EQ
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 100595392-001
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
Burness Paull LLP
Jemma
Hughes
Bothwell Street
120
Aurora
0141 273 6931
G2 7JL
United Kingdom
Glasgow
jemma.hughes@burnesspaull.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
CRAIGVRACK HOTEL
Perth and Kinross Council
38 WEST MOULIN ROAD
West Moulin Road
38
Craigvrack Hotel
PITLOCHRY
PH16 5EQ
PH16 5EQ
Scotland
758752
Pitlochry
294265
Global Hotels Limited
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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)
Section 42 Application for removal of Condition 3 (Occupancy Condition)
Please see Notice of Review Statement in the Supporting Documents.
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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.
Appendix 1 - Decision Notice dated 23 May 2022 Appendix 2 - Report of Handling Appendix 3 - Email from Surveyor
22/00175/FLL
23/05/2022
02/02/2022
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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: Miss Jemma Hughes
Declaration Date: 19/08/2022
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ACTIVE: 111500509v2
Notice of Review Statement
on behalf of Craigvrack Hotel,
Pitlochry 
in respect of the refusal of an application for removal of Condition
3 (Occupancy Condition) of Planning Permission Reference:
04/00351/FUL
Craigvrack Hotel, 38 West Moulin Road, Pitlochry, Perthshire,
PH16 5EQ
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ACTIVE: 111500509v2
CONTENTS
1 EXECUTIVE SUMMARY 1
2 BACKGROUND 3
3 DETERMINATION OF NOTICE OF REVIEW 4
4 MATERIAL CONSIDERATIONS 6
5 GROUNDS FOR REVIEW 8
6 CONCLUSION 14
7 LIST OF DOCUMENTS 15 
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ACTIVE: 111500509v2 1
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
1 EXECUTIVE SUMMARY
1.1 On 2 February 2022, Burness Paull LLP submitted an application in terms of Section 42 of the
Town and Country Planning (Scotland) Act 1997 to remove Condition 3 (Occupancy Condition) of
Planning Consent Reference 04/00351/FUL (“the Application”) on behalf of Craigvrack Hotel,
Pitlochry (“the Appellant”) to Perth and Kinross Council (“the Council”).
1.2 Planning Permission (“the Planning Permission”) was obtained for the erection of replacement
one and a half storey extension for owner’s accommodation at Craigvrack Hotel, Pitlochry (“the
Property”)) dated 3 May 2004.
1.3 On 23 May 2022, the Council issued its Decision Notice (Appendix 1) refusing the Application for
the following reasons: 
“The retention of the condition is necessary, relevant to planning and to the development
permitted, it is enforceable, precise, and reasonable in all other respects and consistent with
Circular 4/1998.”
“The proposal is not in accordance with Circular 4/1998.” 
1.4 The Appellant submits that the Proposal complies with the Perth and Kinross Local Development
Plan (“the LDP”) and the material considerations support the proposal.
1.5 The Appellant submits that the Council has erred in its approach to the assessment of the
Application and failed properly to consider the residential extension as a separate planning unit
from the hotel. The Council has failed to take proper account of the current state of the Property
and the surrounding area and its assessment of the impact of the application is flawed and
unreasonable.  
1.6 The Appellant is seeking a review of the Council’s decision on the following grounds: 
1.6.1 The Council misinterpreted Planning Circular 4/1998;
1.6.2 The Council erred in their approach to the Application by considering paragraph
83 instead of Circular 4/1998; 
1.6.3 The Council failed to consider the Property as a separate planning unit to the
Craigvrack Hotel; and 
1.6.4 The Council failed to consider the Application’s benefits to the surrounding area
in compliance with the LDP and material considerations.
1.7 This Notice of Review demonstrates that the Application complies with the LDP and that the
material considerations support this proposal. The Appellant submits that the Council’s
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ACTIVE: 111500509v2 2
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
assessment of the Application is unreasonable and for the reasons set out in this Notice of Review
the Local Review Body (“the Review Body ”) should reverse the Council’s decision and grant the
Application for the removal of Condition 3 (Occupancy Condition) of Planning Consent Reference
04/00351/FUL. 
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ACTIVE: 111500509v2 3
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
2 BACKGROUND
2.1 Planning Permission for the erection of replacement one and a half storey extension for owner’s
accommodation was obtained for the Property on 3 May 2004. The Planning Officer’s Delegated
Report noted that the scale of the building was modest and would not detract from the established
hotel. The Delegated Report also noted that the area is screened from the car park by fencing and
there were no amenity objections. A condition restricting occupation was recommended.
2.2 Three planning conditions were attached to the Planning Permission. Condition 3 states:
“The occupation of the dwellinghouse hereby approved shall be restricted to an owner,
manager or employee of the associated Craigvrack Hotel.
Reason: In the interests of visual and residential amenity; to ensure a satisfactory standard
of local environmental quality and to avoid over-intensive development of the site.”
2.3 The Planning Permission was implemented and extension constructed.
2.4 The Appellant bought the Property in 2018. It is the Appellant’s intention to sell the Property in the
future for residential purposes. Currently, Condition 3 is constraining the Appellant’s plans.
Feedback from the Appellant’s surveyors is that it is not possible to conduct a valuation on the
Property due to the occupancy restriction. This is restricting the Appellant’s ability to proceed with
plans for the business as the Appellant is unable to sell and expand the portfolio of the Property.
An email from the Appellant’s surveyor is attached at Appendix 3. Although the surveyor has
incorrectly referenced the restriction as a planning obligation, they have carried out their exercise
on the correct assumption. The same conclusion would apply if the surveyor had referred to this
as a condition. 
2.5 Condition 3 is overly restrictive and is unnecessarily burdening the Property, particularly where
staff do not rely on the Property for accommodation. 
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ACTIVE: 111500509v2 4
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
3 DETERMINATION OF NOTICE OF REVIEW
3.1 The Application complies with the LDP and is supported by material considerations. The Appellant
submits that there is no proper, factual justification for the refusal of the Application and that the
Council’s decision is erroneous and unreasonable. The Appellant respectfully submits that the
Review Body should uphold the review application and grant the Application for the removal of
Condition 3 (Occupancy Condition) of Planning Consent Reference 04/00351/FUL. 
3.2 Under Section 42 of the Town and Country Planning (Scotland) Act 1997 (“the Act”), when
determining an application to vary or remove an existing condition, the Planning Authority can only
consider the acceptability of the relevant condition. They are not entitled to reconsider whether or
not the development is acceptable in principle. Accordingly, the only thing that should be
considered in determining this application is whether or not the requirement for the occupancy
restriction, as set out in Condition 3, is acceptable.
Determining issues
3.3 Under Section 25 of the Act, determination of this application is to be considered in accordance
with the Development Plan, unless material considerations indicate otherwise. The Development
Plan comprises the TAYplan Strategic Development Plan (Approved October 2017) and the Perth
and Kinross Local Development Plan which was adopted on 29 November 2019.
TAYplan Strategic Development Plan (Approved October 2017) (“TAYplan”)
3.4 The Strategic Development Plan sets out the overall planning vision for the whole of Dundee and
Perth area, including North Fife and parts of Angus and Perth and Kinross. TAYplan sets out a
spatial strategy which aims to deliver a sustainable pattern of development. The strategy is
supported by a framework for delivery to promote and secure economic growth and the delivery
of housing in the most sustainable locations.
3.5 Policy 4 of TAYplan states that:
“Developing new homes and refurbishing existing homes is important in growing TAYplan’s
economy. Good quality homes and communities directly affect economic competitiveness and
people’s health and quality of life.” 
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ACTIVE: 111500509v2 5
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
The LDP
3.6 The town of Pitlochry is recognised as a Tier 3 Principal Settlement within the Highland Housing
Market Area in the LDP. Tier 3 settlements are existing local services centres which will
accommodate a very small share of new development to support their continuing growth.
3.7 The Written Statement of the LDP explains the spatial strategy and sets out detailed policies and
proposals. The spatial strategy explains the development strategy for the area, including where
development is planned, and the policies explain the Council’s approach to particular types of
development in particular locations, and how development should be designed. The proposals
identify sites where development or land use change is proposed, or where land is safeguarded
so as not to prejudice a certain type of development occurring or an existing use continuing, or to
ensure an area can be considered as a potential future development location.
3.8 Policy 1A: Placemaking requires development to contribute positively to the quality of the
surrounding built and natural environment. The design, density and siting of development should
respect the character and amenity of the area.
3.9 Policy 17: Residential Areas states that the LDP identifies areas of residential and compatible
uses inside settlement boundaries where existing residential amenity will be protected and where
possible, improved.
3.10 The adopted Placemaking Supplementary Guidance (“the SG”), page 39, deals with parking
arrangements. The SG states that off-street parking will often be required to accommodate
residential parking. Parking should not dominate the front gardens of houses. Courtyards and side
parking can provide useful alternatives to this approach.
3.11 The SG also considered the effects of new development on neighbouring properties.
Consideration must be had to the privacy and amenity of neighbours and the spacing of dwellings
to adjoining houses and gardens. 
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ACTIVE: 111500509v2 6
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
4 MATERIAL CONSIDERATIONS
4.1 The material considerations support the grant of the Application. The material considerations
which are considered relevant to the Application are as follows:
Circular 4/1998 
4.2 The Circular sets out six tests for determining whether planning conditions are validly imposed or
not. These state that planning conditions must be:-
4.2.1 necessary;
4.2.2 relevant to planning;
4.2.3 relevant to the development to be permitted;
4.2.4 enforceable;
4.2.5 precise; and
4.2.6  reasonable in all other respects.
4.3 Section 37(1) of the Act enables the Planning Authority to grant planning permission “either
conditionally or subject to such conditions as they think fit”. The power to impose conditions is not,
however, as wide as it appears.
4.4 Under Section 42 of the Act, the Planning Authority can grant such permission unconditionally or
subject to different conditions, or they can refuse the application if they decide that the original
conditions should continue. The original planning permission continues to subsist whatever the
outcome of the application under Section 42.
4.5 The application of the individual tests to Condition 3 are considered in the Determination of the
Appeal section above and the Discussion section that follows.
4.6 The Circular also deals with the use of occupancy conditions. In particular, paragraph 91 states
that:
“ Conditions restricting occupancy to a particular occupier or class of occupier should only
be used when special planning grounds can be demonstrated and where the alternative
would normally be refusal of permission”
4.7 Paragraph 99 limits the use of occupancy conditions as follows:
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ACTIVE: 111500509v2 7
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
“Conditions tying the occupation of dwellings to that of separate buildings (eg requiring a
house to be occupied only by a person employed by a nearby garage) should be avoided.
However, exceptionally, such conditions may be appropriate where there are sound
planning reasons to justify them, eg where a dwelling has been allowed on a site where
permission would not normally be granted. “
Chief Planner Letter 4 November 2011
4.8 The Chief Planning issued a letter on 4 November 2011 clarifying the use of conditions to restrict
the occupation of rural housing. This letter is a material consideration in the determination of the
Application. Whilst the Council have not defined ‘rural’ within the Development Plan, Pitlochry is
classified as being ‘remote rural’ in the Scottish Government’s Rural Scotland Key Facts 2021
guidance.
4.9 Of particular note, the Chief Planner recognised in the letter that some people had found it difficult
to get a mortgage to buy a house where an occupancy condition is in place. Others have found it
difficult to sell the house where there is an occupancy condition in place. The letter also notes that
occupancy conditions can be intrusive, resource intensive and difficult to monitor and enforce. In
summary, the Scottish Government confirmed that occupancy restrictions are rarely appropriate
and should be avoided.
Scottish Planning Policy
4.10 Paragraph 83 of SPP states (emphasis added):
“In remote rural areas, where new development can often help to sustain fragile communities,
plans and decision-making should generally:
…
support and sustain fragile and dispersed communities through provision for appropriate
development, especially housing and community-owned energy;
include provision for small-scale housing and other development which supports sustainable
economic growth in a range of locations, taking account of environmental protection policies and
addressing issues of location, access, siting, design and environmental impact;
…
not impose occupancy restrictions on housing.” 
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ACTIVE: 111500509v2 8
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
5 GROUNDS FOR REVIEW
5.1  The Appellant is seeking a review of the Council’s decision on the following grounds: 
5.1.1 The Council misinterpreted Planning Circular 4/1998;
5.1.2 The Council erred in their approach to the Application by considering paragraph 83 of
Circular 4/1998; 
5.1.3 The Council failed to consider the Property as a separate planning unit to the Craigvrack
Hotel; and 
5.1.4 The Council failed to consider the Application’s benefits to the surrounding area in
compliance with the Local Development Plan and other material considerations. 
5.2 The Appellant submits the Review Body should reverse the Council’s Decision and grant the
removal of Condition 3 (Occupancy Condition) of Planning Consent Reference 04/00351/FUL
for the reasons set out in detail below. 
Ground for Review 1: The Council Misinterpreted Planning Circular 4/1998 
5.3 The Decision Notice was supported by a Report of Handling recommending the Application be
refused (Appendix 2). The Report of Handling demonstrates that the Council took an erroneous
and unreasonable approach to the determination of the Application. 
5.4 At page 5 of the Delegated Report dated 20th May 2022, the Council noted:
“The planning circular on conditions (Circular 4/1998) confirms that a condition can be used to
make a minor modification to a proposal, however a condition that would make a development
substantially different from that set out in the application should not be used.”
The above reflects paragraph 83 of Circular 4/1998. However the Council then noted,
“By extension, this principle applies to a case where the removal of a condition would
significantly change the nature of the development.” 
This extension of the principle is not set out anywhere in the Circular 4/1998 and it is the
Appellant’s view that this is an error in the reading of the Circular 4/1998 by the Council. The
Council then applied this flawed reading of Circular 4/1998 to their determination of the
Application, giving the reason for their decision as “The proposal is not in accordance with
Circular 4/1998.”. 
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ACTIVE: 111500509v2 9
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
5.5 The Appellant therefore submits that the Review Body should review the Application as the
reason the Council gave for refusing the Application was based on an error in the Council’s
reading Circular 4/1998. 
Ground for Review 2: the Council erred in their approach to the Application by
considering paragraph 83 of Circular 4/1998
5.6 The Appellant submits that the Council should not have considered paragraph 83 of Circular
4/1998. The Appellant submits that the Council should have considered paragraphs 5 and 13 of
Circular 4/1998 and by reading those paragraphs the Review Body will be able to determine that
the proposal is acceptable in terms of Circular 4/1998. 
Circular 4/1998
5.7 Paragraph 5 sets out a Planning Authority’s power to vary or remove the effect of conditions as
follows: 
“Section 42 of the Act provides for applications for planning permission to develop land without
complying with conditions previously imposed on a planning permission. The planning authority
can grant such permission unconditionally or subject to different conditions, or they can refuse
the application if they decide that the original condition(s) should continue. The original planning
permission will continue to subsist whatever the outcome of the application under section 42.
This section will not apply if the period within which the development could begin, as specified
in the previous condition, has expired without the development having begun.”
5.8 Paragraph 13 sets out the test for the necessity of a condition as follows:
“In considering whether a particular condition is necessary, authorities should ask themselves
whether planning permission would have to be refused if that condition were not to be imposed.
If it would not, then the condition needs special and precise justification. Planning authorities
should also avoid imposing conditions through anxiety to guard against every possible
contingency, however remote. The argument that a condition will do no harm is no justification
for its imposition; as a matter of policy a condition ought not to be imposed unless there is a
definite need for it. The same principles, of course, must be applied in dealing with applications
for the removal of a condition under section 33 or 42 of the Act; a condition should not be retained
unless there are sound and clear-cut reasons for doing so.”
5.9 At page 5 of the Delegated Report dated 20th May 2022, the Council noted:
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ACTIVE: 111500509v2 10
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
“The application had been made under section 42 of the Act and if the removal of the condition
were to be granted this would not lawfully amend the permission for the original development
which would remain as an extension to Craigvrack Hotel to form managers accommodation.
Accordingly, the application to remove the condition should fail.”
5.10 The Appellant submits that the Council failed to give a sound and clear-cut reason as to the
definite need to retain Condition 3 and failed to consider that this condition is overly restrictive,
particularly where Craigvrack Hotel’s staff do not rely on the Property for accommodation. 
Ground for Review 3: the Council failed to consider the Property as a separate planning
unit to the Craigvrack Hotel
5.11 The Appellant submits that the Council unreasonably exercised their discretion in not varying
the condition as the Council failed to consider whether the Property is a separate planning unit
from the Craigvrack Hotel. The Appellant submits that in relation to this issue the below should
be considered by the Review Body when reviewing the Application.  
5.12 The Appellant would also draw the Review Body’s attention to the principle that the question of
what constitutes the planning unit is one of fact and degree for the planning officer to determine.
However, Bridge J in Burdle v Secretary of State for the Environment [1972] 1 WLR 1207, set
out a useful test to be applied when determining a ‘planning unit’;
(i) the whole unit of occupation should be considered whenever it was possible to
recognise a single main purpose of the occupier's use of land to which secondary
activities were incidental or ancillary; 
(ii) the entire unit of occupation might aptly be considered when the occupier carries
on variety of activities and it is impossible to say that one was incidental or
ancillary to another, which was well settled for a composite use with component
activities fluctuating in their intensity from time to time but with the different
activities not confined in separate and physically distinct areas of land; and 
(iii) where separate and distinct areas within a single unit of occupation were occupied
for substantially different and unrelated purposes, each area used for a different
main purpose (together with its incidental and ancillary activities) was to be
considered as a separate planning unit.
Later in his judgement Bridge J set a working rule, that it should be assumed that the unit of
occupation is the appropriate planning unit, unless and until some smaller unit can be recognised
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ACTIVE: 111500509v2 11
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
as the site of activities which amount in substance to a separate use both physically and
functionally. 
The Appellant would also draw the Review Body’s attention to Duffy v Secretary of State for the
Environment [1981] J.P.L. 811 where a premises formerly used as a staff hostel in connection
with a hotel was held to form a separate planning unit from the hotel.
5.13 The Appellant submits that Craigvrack Hotel’s staff do not rely on the Property for
accommodation. Owing to this and the layout of the two properties the Appellant submits it would
be unreasonable for the Review Body to determine that the Property and the Craigvrack Hotel
constitute one planning unit.
5.14 Following from this the Appellant submits that the Review Body should consider Condition 3 as
overly restrictive and should grant this Application to remove this condition. 
Ground for Review 4: the Council failed to consider the Application’s benefits to the
surrounding area in compliance with the LDP and other material considerations.
5.15 The proposal is supported by a number of material considerations, including compliance with
Local Development Plan policies as set out below. 
Circular Tests
5.16 Condition 3 fails to meet the Circular Tests. The removal of Condition 3 should be approved for
the reasons set out below.
5.17 The Scottish Government’s guidance on planning conditions as set out in the Circular provides
that, in order for a condition to be valid, it must be necessary; relevant to planning; relevant to
the development to be permitted; enforceable; precise; and reasonable in all other respects.
5.17.1 The relevant tests from Circular are considered in turn below:
Necessary
5.17.2 The Condition is not necessary in planning terms. There is no proper planning reason for the
inclusion of the condition. The use of the Property for residential purposes is supported by
the LDP. The Property is located within the Pitlochry Settlement Area. There is no harm to
residential amenity as the Property is already within a predominately residential area. There
were no objections to the Application.  The reasons for Condition 3 no longer apply as it is
not in the interests of the visual or residential amenity to restrict the use to staff
accommodation. In addition, the use of the Property for staff accommodation is not required
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ACTIVE: 111500509v2 12
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
as was first envisioned. Members of staff do not rely upon the use of the Property for their
accommodation. The Condition fails the test of necessity.
Relevant to planning
5.17.3 The Condition is not relevant to planning. There are no planning reasons for the condition
being applied. The reasons applied to Condition 3 are vague which in itself suggests that the
condition has no proper justification. The phrases used in Condition 3 are general and
obscure and have not been clearly explained. The condition fails the test of relevance.
Enforceable
5.17.4 The Appellant cannot reasonably be expected to comply with Condition 3, especially where
this hinders the ability to sell the Property. The requirement to comply with the condition
cannot reasonably be enforced. The condition fails the test of enforceability.
Reasonable in all other respects.
5.17.5 Condition 3 is unduly restrictive. The imposition of the condition means that the Appellant is
unable to take the necessary steps to sell the Property as the Property cannot be valued
with the occupancy restriction. It will also make it difficult for potential purchasers to get a
mortgage to buy the Property with the occupation restriction. This is having a detrimental
affect on the Appellant.
5.17.6 The use of occupancy conditions is not supported by the Scottish Government, as is
evidenced in the Chief Planner’s letter and the SPP. SPP clearly states that within remote
rural areas, occupancy conditions should not be imposed on housing. The Chief Planner has
confirmed that occupancy conditions should be avoided and are rarely appropriate. There
are no proper planning reasons for the condition and the condition is not reasonably justified.
The condition fails the reasonableness test. 
Local Development Plan
5.18 The removal of Condition 3 is supported by the Local Development Plan.
5.19 The use of the Property for residential purposes is supported by Policy 1A. The use of the
Property for residential purposes will make a positive contribution to the area which is already
predominately residential. The use of the Property for residential purposes will contribute to the
character and amenity of the area and the use as a residential property works in the local
context.
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ACTIVE: 111500509v2 13
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
5.20 Policy 17 supports the residential use as this is compatible to the settlement boundary of
Pitlochry. Tier 3 settlements are existing local services centres which will accommodate a very
small share of new development to support their continuing growth. Pitlochry is a growing rural
town which will require housing to support its growth.
5.21 The removal of Condition 3 is supported by the SG and will have no detrimental impact on the
privacy and amenity of neighbours. Existing essential amenity will be protected and there will be
no detrimental impact on the surrounding residential area.  Again, there were no objections to
the Application.
5.22 The proper infrastructure is already in place for residential use including parking arrangements.
The car park will have an allocated parking space which complies with the SG. The use of off-
street parking is also supported by the SG. This emphasises the point that there will be no
detrimental impact on the residential amenity of the area.
Representations
5.23 There were no objections made against the Application. The Appellant submits this adds support
to their Application, and reflects that the removal of Condition 3 would not have a determinantal
impact on the amenity of the surrounding area. 
5.24 For the reasons set out above, the removal of Condition 3 is supported by the development plan
and material considerations. The Appellant submits on this basis that the Review Body remove
Condition 3. 
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ACTIVE: 111500509v2 14
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
6 CONCLUSION
6.1 The Council erred in their assessment of Circular 4/1998, consequently the reasons given in the
Decision Notice for refusing this Application were flawed and not in the spirit of the LDP or other
material considerations. 
6.2 Condition 3 restricts the Property to being used as Craigvrack Hotel staff accommodation, the
Property is no longer relied upon by staff. The Application therefore seeks to remove this as it is
the Appellant’s view that this is an onerous condition and there is not a definitive reason for this
to be retained. 
6.3 The Council’s assessment of the Application is flawed and unreasonable as it failed in its
application of the Circular 4/1998 and to take proper account of the current state of the Property
and the surrounding area.  
6.4 The Application complies with Circular 4/1998, the LDP and is supported by a number of material
considerations. On that basis, the LRB should reverse the Council’s decision and grant the
removal of Condition 3 (Occupancy Condition) of Planning Consent Reference 04/00351/FUL. 
BURNESS PAULL LLP
Solicitors, Edinburgh
AGENT FOR THE APPELLANT
18 August 2022
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ACTIVE: 111500509v2 15
NOTICE OF REVIEW
Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, Perthshire, PH16 5EQ   
7 LIST OF DOCUMENTS
7.1 Appendix 1 – Decision Notice dated 23 May 2022
7.2 Appendix 2 – Report of Handling 
7.3 Appendix 3 –  Email from Surveyor
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Page 1 of 3
Global Hotels Limited
c/o Burness Paull
Fiona Closs
Union Plaza
1 Union Plaza
Aberdeen
AB10 1DQ
Pullar House
35 Kinnoull Street
PERTH  
PH1  5GD
Date of Notice:23rd May 2022
TOWN AND COUNTRY PLANNING (SCOTLAND) ACT
Application Reference: 22/00175/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 February 2022 for
Planning Permission for S42 application to remove condition 3 (occupancy) of planning
permission 04/00351/FUL Staff Accommodation Craigvrack Hotel 38 West Moulin
Road Pitlochry PH16 5EQ
David Littlejohn
Head of Planning and Development
Reasons for Refusal
1.   The retention of the condition is necessary, relevant to planning and to the
development permitted, it is enforceable, precise, and reasonable in all other respects
and consistent with Circular 4/1998. 
Justification
The proposal is not in accordance with Circular 4/1998.
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
607

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2
Plan Reference
01
02
03
04
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1 
REPORT OF HANDLING 
DELEGATED REPORT 
Ref No 22/00175/FLL
Ward No P4- Highland
Due Determination Date 1st April 2022 extended to 1st May 2022
Draft Report Date 19th May 2022
Report Issued by DN Date 20/05/22 
PROPOSAL:  S42 application to remove condition 3
(occupancy) of planning permission
04/00351/FUL    
LOCATION:  Staff Accommodation Craigvrack Hotel 38
West Moulin Road Pitlochry PH16 5EQ 
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. 
SITE VISIT: 
In line with established practices, the need to visit the application site has been
carefully considered by the case officer.  The application site and its context
have been viewed by a variety of remote and electronic means, such as aerial
imagery and Streetview, in addition to photographs submitted by interested
parties. 
This information has meant that, in this case, it is possible and appropriate to
determine this application without a physical visit as it provides an acceptable
basis on which to consider the potential impacts of this proposed
development. 
SITE  PHOTOGRAPHS 
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2 
BACKGROUND AND DESCRIPTION OF PROPOSAL 
This application relates to the Craigvrack Hotel located on the West Moulin
Road, Pitlochry. The existing hotel, which is currently operational, is a former
Victorian manse that has been quite significantly altered and extended over
the years, with large flat roofed extensions on the front and side that obscure
much of the original building. The surrounding area is residential with housing
immediately to the north, east and south of the site. 
In 2004 permission was granted for the erection of a one and a half storey
extension on the rear of the hotel which was specifically stated as being
owners' accommodation associated with the operation of the hotel. This
accommodation is physical attached the rear of the existing hotel with an
internal door affording access between the managers accommodation and the
hotel. Access and parking are taken via the existing car park to the rear of the
hotel. 
Due to the relationship with the existing hotel and to avoid any confusion
regarding the use of the accommodation, this permission was granted subject
to the following occupancy condition (Condition 2): 
“The occupation of the dwellinghouse hereby approved shall be restricted to
an owner, manager or employee of the associated Craigvrack Hotel.” 
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3 
Planning permission is now being sought to remove the occupancy condition.
The supporting statement submitted with the application states that the
objective of removing the condition is to enable the accommodation to the
occupied as a private residential dwellinghouse, independent of the existing
hotel. 
SITE HISTORY 
02/00711/FUL Change part of garden into 10 additional car parking spaces at
5 June 2002 Application Approved 
91/01788/FUL ALTERATIONS/REPLACEMENT BEER CELLAR AT 29
October 1991 Application Approved 
92/00717/FUL ERECTION OF CANOPIES ON WEST ELEVATION OF 3
June 1992 Application Approved 
97/00768/FUL Renewal of consent to erect canopies on west elevation of
craigvrack 23 June 1997 Application Approved 
04/00351/FUL Erection of replacement one and a half storey extension for
owners' accommodation 5 May 2004 Application Approved 
20/01516/FLL Formation of raised decking 18 December 2020 Refused but
upheld by LRB 
PRE-APPLICATION CONSULTATION 
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
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4 
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 1A: Placemaking   
Policy 1B: Placemaking   
Policy 5: Infrastructure Contributions   
Policy 8: Rural Business and Diversification 
Policy 17: Residential Areas   
Policy 60B: Transport Standards and Accessibility Requirements: New
Development Proposals 
OTHER POLICIES 
None 
CONSULTATION  RESPONSES 
Development Contributions Officer
No contributions required 
Scottish Water
No objection 
Transport Planning
No objection 
REPRESENTATIONS 
No representations received. 
ADDITIONAL STATEMENTS 
Screening Opinion  EIA Not Required
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5 
Environmental Impact Assessment (EIA):
Environmental Report
Not applicable
Appropriate Assessment Habitats Regulations AA Not
Required
Design Statement or Design and Access
Statement
Not Required
Report on Impact or Potential Impact eg Flood
Risk Assessment
Not Required 
APPRAISAL 
Section 42 of the Town and Country Planning (Scotland) Act 1997 enables the
determination of applications to develop land without compliance with
conditions previously attached. The legislation specifies that on such an
application the planning authority shall consider only the question of the
conditions subject to which planning permission should be granted, and if they
decide that planning permission should be granted subject to conditions
differing from that subject to which the previous permission was granted, or
that it should be granted unconditionally, they shall grant planning permission
accordingly. If they decide that planning permission should be granted subject
to the same conditions as those subject to which the previous permission was
granted, they shall refuse the application. 
This application seeks to remove condition 2 which clarifies the use of the
extension to the existing hotel as accommodation for the owner, manager or
employee of the associated Craigvrack Hotel. 
Policy 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 2016 and the adopted
Perth and Kinross Local Development Plan 2 (2019).   
The determining issues in this case are whether; the development without
compliance with part of the condition in contention would be consistent with
the relevant provisions of the adopted Local Plans; or if an exception to these
provisions is justified by other material considerations. 
The planning circular on conditions (Circular 4/1998) confirms that a condition
can be used to make a minor modification to a proposal, however a condition
that would make a development substantially different from that set out in the
application should not be used. By extension, this principle applies to a case
where the removal of a condition would significantly change the nature of the
development. The application had been made under section 42 of the Act and
if the removal of the condition were to be granted this would not lawfully
amend the permission for the original development which would remain as an
613

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6 
extension to Craigvrack Hotel to form managers accommodation. Accordingly,
the application to remove the condition should fail. 
The supporting planning statement has been reviewed however there is
nothing contained within the statement to outweigh the findings above. If there
was an intention to utilise the extension as a separate planning unit from the
main hotel operations, there would still be a requirement to apply to change
the use. However, it should be noted that the existing accommodation, by
virtue of its relationship with the hotel raises significant concerns in respect to
the ability to provide an acceptable level of amenity and its potential impact on
operation of the hotel. As such, it is likely that any application for a change of
use would not be supported. 
Roads and Access 
The proposal does not raise any issues in concerns in respect to roads or
access related matters. 
Developer Contributions 
The Developer Contributions Guidance is not applicable to this application
and therefore no contributions are required in this instance. 
Economic Impact 
The economic impact of the proposal is likely to be minimal. 
VARIATION OF APPLICATION UNDER SECTION 32A 
This application was not varied prior to determination. 
PLANNING OBLIGATIONS AND LEGAL AGREEMENTS 
None required.   
DIRECTION BY SCOTTISH MINISTERS 
None applicable to this proposal. 
CONCLUSION AND REASONS FOR DECISION 
To conclude, the condition is necessary, relevant to planning and to the
development to be permitted, enforceable, precise and reasonable in all other
respects. The removal of the condition is not considered to adhere to Circular
4/1998. On that basis the application is recommended for refusal. 
Accordingly, the proposal is refused on the grounds identified below. 
Conditions and Reasons 
614

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7 
The retention of the condition is necessary, relevant to planning and to the
development permitted, it is enforceable, precise, and reasonable in all other
respects and consistent with Circular 4/1998. 
Justification 
The proposal is not in accordance with Circular 4/1998. 
Informatives 
None 
Procedural Notes 
Not Applicable. 
PLANS AND DOCUMENTS RELATING TO THIS DECISION 
01 
02 
03 
04 
615

Page 38

616

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1
Fiona Closs
Subject: FW: Craigvrack - Pitlochry, Mr Sharma
Begin forwarded message: 
From: Roy Hudghton MRICS <
Subject: RE: Craigvrack - Pitlochry, Mr Sharma
Date: 15 March 2019 at 11:48:47 GMT
To: Craigvrack 
Mr Kaushik, 
 
 
I refer to your email, and whilst I understand the nature of the request, in this case there is no 
separate value of the owners accommodation, as it is subject to a Section 75 Planning restriction, 
rendering it capable of being occupied only by the owners or hotel staff, and incapable of being sold 
separately from the business premises. 
 
 
That renders it simply additional accommodation, which cannot be marketed on its own. The rate 
per room arrived at as a result of the analysis of comparable sales, reflects only those with similar 
owners space, and so it is lost in the overall valuation. In the case of Craigvrack, there is even an 
argument that, with some minor reconfiguration, there could be owners accommodation within the 
hotels main walls, without the loss of any letting rooms. 
 
 
We do not, therefore, consider that there is any way an opinion of the value of the annexe can be 
given in this case. 
 
 
I trust that this satisfies your current requirements. 
 
 
Regards 
 
 
Roy Hudghton MRICS
Director 
17 Corstorphine Road Edinburgh EH12 6DD
www.dmhall.co.uk 
Read our new digital commercial property magazine: Commercial Scape
617

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2
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Take a look at our Privacy Notice 
DM Hall LLP is a Limited Liability Partnership registered in Scotland with Registration number SO301144 Registered office: 17 Corstorphine Road,
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618

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4(vi)(b)
LRB-2022-48
LRB-2022-48
22/00175/FLL - S42 application to remove condition 3
(occupancy) of planning permission 04/00351/FUL Staff
Accommodation, Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, PH16 5EQ
PLANNING DECISION NOTICE (included in
applicant’s submission, pages 607-608)
REPORT OF HANDLING (included in applicant’s
submission, pages 609-615)
REFERENCE DOCUMENTS (part included in
applicant’s submission, pages 617-618)
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620

Page 43

38 West Moulin Road, Pitlochry
Craigvrack Hotel
Scale: 1:1,250 (at A4)
Centre Coordinates: 294245.060194 E,
758749.076806 N
Reference: 22-0230523B-1
This map contains Ordnance Survey data.
Reproduction in whole or part is prohibited without the prior
permission of Ordnance Survey.
The representation of road, track or path is no evidence of a
boundary or right of way. The representation of features as
lines is no evidence of a property boundary.
Produced: 01/02/2022
© Copyright and database rights  2022 Ordnance Survey Licence 100050103.
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Active: 108853275 v 5
Supporting Planning Statement
On behalf of 
Craigvrack Hotel, Pitlochry
Application for removal of Condition 3 (Occupancy Condition) of
Planning Permission Reference: 04/00351/FUL
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Active: 108853275 v 5
CONTENTS
1 EXECUTIVE SUMMARY 1
2 BACKGROUND TO APPLICATION 2
3 PLANNING POLICIES 2
4 MATERIAL CONSIDERATIONS 4
5 DISCUSSION 6
6 CONCLUSION 8
7 APPENDICES 9 
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SUPPORTING PLANNING STATEMENT
EXECUTIVE SUMMARY
1 EXECUTIVE SUMMARY
1.1 This Supporting Statement has been prepared in support of Craigvrack Hotel’s (“The Applicant”)
application to remove Condition 3 (Occupancy Condition) of Planning Consent Reference
04/00351/FUL.  A copy of the Planning Permission forms Appendix 1 annexed to this Supporting
Statement.  
1.2 Planning Permission (“the Planning Permission”) was obtained for the erection of replacement
one and a half storey extension for owner’s accommodation at Craigvrack Hotel, Pitlochry (“the
Property”)) dated 3 May 2004.
1.3 Condition 3 of the Planning Permission is as follows:
1.3.1 “The occupation of the dwellinghouse hereby approved shall be restricted to an owner,
manager or employee of the associated Craigvrack Hotel
Reason: In the interests of visual and residential amenity; to ensure a satisfactory standard
of local environmental quality and to avoid over-intensive development of the site.”  
1.4 Condition 3 is no longer manageable for the Applicant and they require removal of this in order to
allow for the Property to be sold on the open market with the potential to be used for residential
purposes.  As it stands, Condition 3 is so restrictive that the Applicant has been unable to move
forward with a valuation for sale on the open market. Condition 3 is hindering the Applicant’s ability
to progress with plans to sell the Property. 
1.5 The Property is situated within a predominately residential area and there will be no harm to the
residential amenity by removing Condition 3. There is no planning justification for Condition 3 to
remain in place as there are no visual or residential amenity issues which were originally identified
by the Council. This Application is not seeking further development at the Property and there is
no risk of over development on the site.  The Council’s reasons for requiring Condition 3 are not
justified on planning grounds and are no longer relevant.  
1.6 The removal of Condition 3 and the potential use of the Property for residential purposes is
supported by the Development Plan and material considerations. The imposition of Condition 3
fails the tests set out in Circular 4/1998, in particular the tests of necessity, relevance, enforcement
and reasonableness. The general use of occupancy conditions in a rural area such as Pitlochry is
not supported by the Chief Planner or Scottish Planning Policy. 
1.7 The Application should therefore be approved as outlined in this Supporting Statement.
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SUPPORTING PLANNING STATEMENT
DRAWINGS/APPENDICES
2 BACKGROUND TO APPLICATION 
2.1 Planning Permission for the erection of replacement one and a half storey extension for owner’s
accommodation was obtained for the Property on 3 May 2004. The Planning Officer’s Delegated
Report noted that the scale of the building was modest and would not detract from the established
hotel. The Delegated Report also noted that the area is screened from the car park by fencing and
there were no amenity objection. A condition restricting occupation was recommended. 
2.2 Three planning conditions were attached to the Planning Permission. Condition 3 states: 
“The occupation of the dwellinghouse hereby approved shall be restricted to an owner,
manager or employee of the associated Craigvrack Hotel. 
Reason: In the interests of visual and residential amenity; to ensure a satisfactory standard
of local environmental quality and to avoid over-intensive development of the site.”  
2.3 Development has commenced pursuant to the Planning Permission and has complied with the
planning conditions to date. 
2.4 The Applicant bought the Property in 2018. It is the Applicant’s intention to sell the Property in the
future for residential purposes. Currently, Condition 3 is constraining the Applicant’s plans.
Feedback from the Applicant’s surveyors is that it is not possible to conduct a valuation on the
Property due to the occupancy restriction. This is restricting the Applicant’s ability to proceed with
plans for the business as the Applicant is unable to sell and expand the portfolio of the Property.
An email from the Applicant’s surveyor is attached at Appendix 2. Although the surveyor has
incorrectly referenced the restriction as a planning obligation, they have carried out their exercise
on the correct assumption. The same conclusion would apply if the surveyor had referred to this
as a condition. 
2.5 Condition 3 is overly restrictive, particularly where staff do not rely on the Property for
accommodation. 
3 PLANNING POLICIES 
3.1 Under Section 42 of the Town and Country Planning (Scotland) Act 1997 (“the Act”), when
determining an application to vary or remove an existing condition, the Planning Authority can only
consider the acceptability of the relevant condition.  They are not entitled to reconsider whether
or not the development is acceptable in principle.  Accordingly, the only thing that should be
considered in determining this application is whether or not the requirement for the occupancy
restriction, as set out in Condition 3, is acceptable.  
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SUPPORTING PLANNING STATEMENT
DRAWINGS/APPENDICES
3.2 Under Section 25 of the Act, determination of this application is to be considered in accordance
with the Development Plan, unless material considerations indicate otherwise.  The Development
Plan comprises the TAYplan Strategic Development Plan (Approved October 2017) and the Perth
and Kinross Local Development Plan which was adopted on 29 November 2019.
TAYplan Strategic Development Plan (Approved October 2017) (“TAYplan”)
3.3 The Strategic Development Plan sets out the overall planning vision for the whole of Dundee and
Perth area, including North Fife and parts of Angus and Perth and Kinross. TAYplan sets out a
spatial strategy which aims to deliver a sustainable pattern of development.  The strategy is
supported by a framework for delivery to promote and secure economic growth and the delivery
of housing in the most sustainable locations.
3.4 Policy 4 of TAYplan states that: 
“Developing new homes and refurbishing existing homes is important in growing TAYplan’s
economy. Good quality homes and communities directly affect economic competitiveness and
people’s health and quality of life.”
Perth and Kinross Local Development Plan (“the LDP”)
3.5 The town of Pitlochry is recognised as a Tier 3 Principal Settlement within the Highland Housing
Market Area in the LDP. Tier 3 settlements are existing local services centres which will
accommodate a very small share of new development to support their continuing growth.
3.6 The Written Statement of the LDP explains the spatial strategy and sets out detailed policies and
proposals. The spatial strategy explains the development strategy for the area, including where
development is planned, and the policies explain the Council’s approach to particular types of
development in particular locations, and how development should be designed. The proposals identify
sites where development or land use change is proposed, or where land is safeguarded so as not to
prejudice a certain type of development occurring or an existing use continuing, or to ensure an area
can be considered as a potential future development location.
3.7 Policy 1A: Placemaking requires development to contribute positively to the quality of the
surrounding built and natural environment. The design, density and siting of development should
respect the character and amenity of the area.
3.8 Policy 17: Residential Areas states that the LDP identifies areas of residential and compatible
uses inside settlement boundaries where existing residential amenity will be protected and where
possible, improved. 
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SUPPORTING PLANNING STATEMENT
DRAWINGS/APPENDICES
3.9 The adopted Placemaking Supplementary Guidance (“the SG”), page 39, deals with parking
arrangements. The SG states that off-street parking will often be required to accommodate
residential parking. Parking should not dominate the front gardens of houses. Courtyards and side
parking can provide useful alternatives to this approach. 
3.10 The SG also considered the effects of new development on neighbouring properties.
Consideration must be had to the privacy and amenity of neighbours and the spacing of dwellings
to adjoining houses and gardens. 
4 MATERIAL CONSIDERATIONS
4.1 As stated above, this application must be determined in accordance with the Development Plan
unless material considerations indicate otherwise.  The following section sets out those material
considerations which support the removal of Condition 3.  
Circular 4/1998 (“the Circular”)
4.2 The Circular sets out six tests for determining whether planning conditions are validly imposed or
not.  These state that planning conditions must be:-
4.2.1 necessary;
4.2.2 relevant to planning;
4.2.3 relevant to the development to be permitted;
4.2.4 enforceable;
4.2.5 precise; and
4.2.6 reasonable in all other respects.
4.3 Section 37(1) of the Act enables the Planning Authority to grant planning permission “either
conditionally or subject to such conditions as they think fit”.  The power to impose conditions is
not, however, as wide as it appears.  
4.4 Under Section 42 of the Act, the Planning Authority can grant such permission unconditionally or
subject to different conditions, or they can refuse the application if they decide that the original
conditions should continue.  The original planning permission continues to subsist whatever the
outcome of the application under Section 42.
4.5 The application of the individual tests to Condition 3 are considered in the Discussion section that
follows.
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SUPPORTING PLANNING STATEMENT
DRAWINGS/APPENDICES
4.6 The Circular also deals with the use of occupancy conditions. In particular, paragraph 91 states
that:
“ Conditions restricting occupancy to a particular occupier or class of occupier should only
be used when special planning grounds can be demonstrated and where the alternative
would normally be refusal of permission”
4.7 Paragraph 99 limits the use of occupancy conditions as follows:
“Conditions tying the occupation of dwellings to that of separate buildings (eg requiring a
house to be occupied only by a person employed by a nearby garage) should be avoided.
However, exceptionally, such conditions may be appropriate where there are sound planning
reasons to justify them, eg where a dwelling has been allowed on a site where permission
would not normally be granted. “
Chief Planner Letter 4 November 2011
4.8 The Chief Planning issued a letter on 4 November 2011 clarifying the use of conditions to restrict
the occupation of rural housing. This letter is a material consideration in the determination of the
Application. Whilst the Council have not defined ‘rural’ within the Development Plan, Pitlochry is
classified as being ‘remote rural’ in the Scottish Government’s Rural Scotland Key Facts 2021
guidance. 
4.9 Of particular note, the Chief Planner recognised in the letter that some people had found it difficult
to get a mortgage to buy a house where an occupancy condition is in place. Others have found it
difficult to sell the house where there is an occupancy condition in place. The letter also notes that
occupancy conditions can be intrusive, resource intensive and difficult to monitor and enforce. In
summary, the Scottish Government confirmed that occupancy restrictions are rarely appropriate
and should be avoided. 
Scottish Planning Policy
4.10 Paragraph 83 of SPP states (emphasis added):
“In remote rural areas, where new development can often help to sustain fragile communities,
plans and decision-making should generally:
…
support and sustain fragile and dispersed communities through provision for appropriate
development, especially housing and community-owned energy;
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include provision for small-scale housing and other development which supports sustainable
economic growth in a range of locations, taking account of environmental protection policies and
addressing issues of location, access, siting, design and environmental impact;
…
not impose occupancy restrictions on housing.” 
5 DISCUSSION
5.1 As noted above, in determining this application it is the appropriateness of the condition which is
relevant.  
Circular Tests
5.2 Condition 3 fails to meet the Circular Tests. The removal of Condition 3 should be approved for
the reasons set out below.
5.3 The Scottish Government’s guidance on planning conditions as set out in the Circular provides
that, in order for a condition to be valid, it must be necessary; relevant to planning; relevant to the
development to be permitted; enforceable; precise; and reasonable in all other respects.  
5.4 The relevant tests from Circular are considered in turn below:
5.4.1 Necessary
The Condition is not necessary in planning terms. There is no proper planning reason for the
inclusion of the condition. The use of the Property for residential purposes is supported by the
LDP. The Property is located within the Pitlochry Settlement Area. There is no harm to residential
amenity as the Property is already within a predominately residential area. The reasons for
Condition 3 no longer apply as it is not in the interests of the visual or residential amenity to restrict
the use to staff accommodation. In addition, the use of the Property for staff accommodation is
not required as was first envisioned. Members of staff do not rely upon the use of the Property for
their accommodation, with the exception of the Applicant who is the owner of the hotel and
Property. The Condition fails the test of necessity.
5.4.2 Relevant to planning
The Condition is not relevant to planning. There are no planning reasons for the condition being
applied. The reasons applied to Condition 3 are vague which in itself suggests that the condition
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has no proper justification. The phrases used in Condition 3 are general and obscure and have
not been clearly explained. The condition fails the test of relevance.
5.4.3 Enforceable
The Applicant cannot reasonably be expected to comply with Condition 3, especially where this
hinders the ability to sell the Property. The requirement to comply with the condition cannot
reasonably be enforced. The condition fails the test of enforceability. 
5.4.4 Reasonable in all other respects.
Condition 3 is unduly restrictive. The imposition of the condition means that the Applicant is unable
to take the necessary steps to sell the Property as the Property cannot be valued with the
occupancy restriction. It will also make it difficult for potential purchasers to get a mortgage to buy
the Property with the occupation restriction. This is having a detrimental affect on the Applicant. 
The use of occupancy conditions is not supported by the Scottish Government, as is evidenced
in the Chief Planner’s letter and the SPP. SPP clearly states that within remote rural areas,
occupancy conditions should not be imposed on housing. The Chief Planner has confirmed that
occupancy conditions should be avoided and are rarely appropriate.  There are no proper planning
reasons for the condition and the condition is not reasonably justified. The condition fails the
reasonableness test. 
Local Development Plan
5.5 The removal of Condition 3 is supported by the Local Development Plan.
5.6 The use of the Property for residential purposes is supported by Policy 1A. The use of the Property
for residential purposes will make a positive contribution to the area which is already
predominately residential. The use of the Property for residential purposes will contribute to the
character and amenity of the area and the use as a residential property works in the local context. 
5.7 Policy 17 supports the residential use as this is compatible to the settlement boundary of Pitlochry.
Tier 3 settlements are existing local services centres which will accommodate a very small share
of new development to support their continuing growth. Pitlochry is a growing rural town which will
require housing to support its growth. 
5.8 The removal of Condition 3 is supported by the SG and will have no detrimental impact on the
privacy and amenity of neighbours. Existing essential amenity will be protected and there will be
no detrimental impact on the surrounding residential area.
5.9 The proper infrastructure is already in place for residential use including parking arrangements.
The car park will have an allocated parking space which complies with the SG. The use of off-
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street parking is also supported by the SG. This emphasises the point that there will be no
detrimental impact on the residential amenity of the area. 
5.10 For the reasons set out above, Condition 3 does not comply with the Circular and the removal of
Condition 3 is supported by the development plan and material considerations. Condition 3  should
therefore be removed. 
6 CONCLUSION
6.1 Condition 3 is not compliant with Circular 4/1998 and in particular fails to meet the tests of
necessity, relevance, enforceability and reasonableness. There are no planning reasons which
justify the requirement for an occupancy condition on the Planning Permission.
6.2 The Property is in a residential area in Pitlochry with the required supporting infrastructure, such
as parking, already in situ. The removal of Condition 3 would allow the Property to be used for
residential purposes which is supported by the Development Plan and material considerations.  
6.3 It is respectfully submitted that Condition 3 is unduly restrictive and that the Application should be
approved as outlined in this Supporting Statement. 
BURNESS PAULL LLP
Solicitors, Aberdeen
AGENT FOR THE APPLICANT 
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7 APPENDICES
Appendix 1 – Planning Permission
Appendix 2 – Email from Surveyor 
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4(vi)(c)
LRB-2022-48
LRB-2022-48
22/00175/FLL - S42 application to remove condition 3
(occupancy) of planning permission 04/00351/FUL Staff
Accommodation, Craigvrack Hotel, 38 West Moulin Road,
Pitlochry, PH16 5EQ
REPRESENTATIONS
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