Agenda Document Pack - Planning and Regulatory Services Committee - 27/05/2025
Moray Council · 27 May 2025
Back to Planning and Regulatory Services Committee — 27 May 2025 and its agenda
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Planning and Regulatory Services Committee Tuesday, 27 May 2025 NOTICE IS HEREBY GIVEN that a Meeting of the Planning and Regulatory Services Committee is to be held at Council Chambers, Council Office, High Street, Elgin, IV30 1BX on Tuesday, 27 May 2025 at 09:30. BUSINESS 1. Sederunt 2. Declaration of Group Decisions and Members Interests * 3. Minute of meeting dated 11 March 2025 7 - 26 4. Written Questions ** Guidance Note 27 - 28 5. Planning Application 24/01884/APP Report by Appointed Officer Proposed two borrow pits within the site of the consented Berry Burn Wind Farm extension on Land At Berry Burn Wind Farm Dunphail Forres Moray for BB2 Wind Farm Ltd 29 - 50 6. Planning Application 25/00352/APP Report by Appointed Officer Section 42 application to vary condition 1 (time period for implementation of planning permission 21/01901/EIA for proposed maltings) on Land at Greens of Rothes Rothes Moray for Simpsons Malt 51 - 72 Page 1
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7. Consultation on Section 36 Proposal to Construct and Operate a wind farm (10 turbines at 200m high) and associated infrastructure with generating capacity between 50mw and 100mw at Craig Watch, Cabrach Report by Depute Chief Executive (Economy, Environment and Finance) 73 - 102 8. Consultation on Section 36 application to erect a wind farm of 8 turbines 149.9 metres high, battery storage facility and associated infrastructure at Kellas Drum Wind Farm, Kellas Report by Depute Chief Executive (Economy, Environment and Finance) 103 - 158 9. Consultation on Section 36 application for the construction and operation of a 349MW battery energy storage system (BESS) with associated infrastructure including access roads, substation building, supporting equipment, fencing, drainage, and landscaping on land at Gibston farm, Blackhillock, Keith Report by Depute Chief Executive (Economy, Environment and Finance) 159 - 210 10. Proposal of Application Notice - 25/00490/PAN Report by Depute Chief Executive (Economy, Environment and Finance) 211 - 216 11. Information Reports - if called in Information Reports - Not for Discussion at this Meeting Any member wishing to call in a noting or information report from one meeting shall give notice to Committee Services at least 48 hours before the meeting for which the report is published. The Notice shall be countersigned by one other elected member and shall explain the reason for call in including any action sought. Page 2
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Information Report - Enforcement of Tobacco and NVP legislation by Trading Standards Report by Depute Chief Executive (Economy, Environment and Finance) 217 - 236 Information Report - Moray Trusted Trader Report by Depute Chief Executive (Economy, Environment and Finance) 237 - 246 Information Report - Truecall Callblockers Report by Depute Chief Executive (Economy, Environment and Finance) 247 - 254 Summary of Planning and Regulatory Services Committee functions: Town and Country Planning; Building Standards; Environmental Health; Trading Standards; Weights & Measures, Tree Preservation Orders, and Contaminated Land issues. Watching the Meeting You can watch the webcast live by going to: http://www.moray.gov.uk/moray_standard/page_43661.html Webcasts are available to view for 1 year following the meeting. You can also attend the meeting in person. If you wish to attend in person, please come to the High Street entrance door and a member of staff will let you into the Chamber. Page 3
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GUIDANCE NOTES * Declaration of Group Decisions and Members Interests - The Chair of the meeting shall seek declarations from any individual or political group at the beginning of a meeting whether any prior decision has been reached on how the individual or members of the group will vote on any item(s) of business on the Agenda, and if so on which item(s). A prior decision shall be one that the individual or the group deems to be mandatory on the individual or the group members such that the individual or the group members will be subject to sanctions should they not vote in accordance with the prior decision. Any such prior decisions will be recorded in the Minute of the meeting. ** Written Questions - Any Member can put one written question about any relevant and competent business within the specified remits not already on the agenda, to the Chair provided it is received by the Proper Officer or Committee Services by 12 noon two working days prior to the day of the meeting. A copy of any written answer provided by the Chair will be published on the Council’s committee management system by 4pm the day before the meeting. The Member who has put the question may, after the answer has been published, ask one supplementary question directly related to the subject matter at the meeting, but no discussion will be allowed. No supplementary question can be put or answered more than 10 minutes after the Council has started on the relevant item of business, except with the consent of the Chair. If a Member does not have the opportunity to put a supplementary question because no time remains, then he or she can submit it in writing to the Proper Officer who will arrange for a written answer to be provided within 7 working days. Page 4
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MORAY COUNCIL Planning and Regulatory Services Committee SEDERUNT Councillor David Gordon (Chair) Councillor Donald Gatt (Depute Chair) Councillor Neil Cameron (Member) Councillor Tracy Colyer (Member) Councillor Theresa Coull (Member) Councillor John Cowe (Member) Councillor John Divers (Member) Councillor Amber Dunbar (Member) Councillor Jérémie Fernandes (Member) Councillor Sandy Keith (Member) Councillor Marc Macrae (Member) Councillor Paul McBain (Member) Councillor Draeyk van der Horn (Member) Councillor Sonya Warren (Member) Clerk Name: Lissa Rowan Clerk Telephone: 07765 741754 Clerk Email: committee.services@moray.gov.uk Page 5
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MORAY COUNCIL Minute of Meeting of the Planning and Regulatory Services Committee Tuesday, 11 March 2025 Council Chambers, Council Office, High Street, Elgin, IV30 1BX PRESENT Councillor Neil Cameron, Councillor Tracy Colyer, Councillor Theresa Coull, Councillor John Cowe, Councillor John Divers, Councillor Amber Dunbar, Councillor Jérémie Fernandes, Councillor Donald Gatt, Councillor David Gordon, Councillor Sandy Keith, Councillor Marc Macrae, Councillor Paul McBain, Councillor Draeyk van der Horn, Councillor Sonya Warren ALSO PRESENT Councillor Harris (Item 5) and Councillor Ross (Item 5 and Items 10-12) IN ATTENDANCE Acting Head of Economic Growth and Development, Neal MacPherson, Acting Development Management and Building Standards Manager, Richard Smith, Principal Planning Officer, Andrew Miller, Acting Principal Planning Officer, Strategic Planning and Development Manager, Head of Environmental and Commercial Services (Agenda Item 7/Minute Para 7), Diane Anderson, Senior Engineer (Transportation) (all items with the exception of Agenda Item 7/Minute Para 7), Climate Change Officer, Systems Manager and Lissa Rowan, Committee Services Officer ALSO IN ATTENDANCE BY INVITATION Carol Anderson, Landscape Architect, Landscape Associates Ltd (Agenda Item 10/Minute Para 10) 1 Chair Councillor Gordon chaired the meeting. 2 Declaration of Group Decisions and Members Interests In terms of Standing Orders 21 and 23 and the Councillors’ Code of Conduct, there were no declarations from Group Leaders or Spokespersons regarding any prior decisions taken on how Members will vote on any item on the agenda or any declarations of Member’s interests in respect of any item on the agenda. 3 Minutes Page 7
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The Minute of the special meeting dated 27 November 2024, and the meeting dated 17 December 2024 were submitted and approved. 4 Written Questions The Committee noted that no written questions had been submitted. 5 Notice of Motion - Councillors Harris and Gordon In terms of Standing Order 35(1), a Notice of Motion (NoM) was submitted by Councillor Harris, seconded by Councillor Gordon, in the following terms: Background • Committee notes its previous decision (Planning and Regulatory Services Committee, 26 June 2023) not to lodge a formal objection to the Clashindarroch Extension windfarm application, currently under consideration by the Energy Consents Unit (ECU) and Scottish Government ministers. The committee agreed that a suite of significant concerns should be raised, and a number of conditions should be added to any consent granted. • Committee notes that Moray Council Officers sent a Section 36 consultation response letter and a list of suggested conditions to the ECU on 27 June 2023. • Committee notes that formal objections from statutory consultees, such as SEPA have been addressed and that there has been work ongoing with other consultees to address their objections to the proposals. • Committee notes that concerns noted by Moray Council have yet to be the subject of discussion with ECU and to date there has been no feedback. • Committee further notes that the ECU has yet to reach a final conclusion. • Moray Council recognises the Cabrach as a fragile community in the process of regeneration and that the work of the Cabrach Trust in leading community regeneration projects is exemplary and continuing. • Committee notes that since June 2023 there have been other Wind Farm projects contiguous to the Cabrach and the planned Clashindarroch Extension that have been agreed and/or are awaiting approval, which are raising concerns from Moray communities and businesses about the future cumulative impact of windfarms in key areas. Action • Committee agrees that in view of the time that has elapsed since the sending of the consultation response letter and list of suggested conditions, the Head of Economic Growth and Development should write to the ECU to ask: Page 8
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➢ if there has been any discussion about the concerns raised by Moray Council; and ➢ request an update on a timeframe for the final decision on the application through a formal response from ECU. Financial implications There are no financial implications associated with this motion Prior to Councillor Harris introducing the NoM, Councillor Keith sought a ruling on the competency of the NoM given that no preview of the requested letter had been included in line with the NoM template that had been previously circulated to Elected Members. In response, the Legal Services Manager advised that, in her view, the NoM was competent and that, with regard to requested letters being included with NoMs, this was only if the letter is to be written by an Elected Member and, as this letter was being written by the Head of Economic Growth and Development, this was an operational matter and therefore did not have to be included with the NoM. Having considered the response from the Legal Services Manager, Councillor Keith further stated that it was his understanding that it was a decision of the Council to adopt the current position and if there was to be any communication with the ECU it should be with an Elected Member and not a Council Employee and, without sight of this letter, stated that he would not be able to make a decision in relation to the NoM. At this point, Councillor Gatt raised a point of order in relation to Standing Order 56 stating that Councillor Keith appeared to be raising a point of order however had not stated which Standing Order he was referring to. In response, Councillor Keith stated that he was merely pointing out that the NoM had not followed the template that had been circulated to the Elected Members. In response, the Legal Services Manager advised that the NoM asked for an Officer to write a letter to the ECU and that it was the Chair's decision as to whether the NoM is competent. The Chair confirmed that he was content that the NoM was competent. Councillor Harris outlined the terms of her NoM which was seconded by the Chair. Councillor Gatt accepted that the NoM was competent however acknowledged that the ECU would have a procedure to follow and that he did not believe it was appropriate to pressurise the ECU as the Committee did not know the process the ECU had to follow, and moved that the Committee take no further action at this time. This was seconded by Councillor Keith. The Legal Services Manager advised that as the request had been made in June 2023 this could not be considered as pressurising the ECU. On a division there voted: Page 9
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For the Motion (9): Councillors Gordon, Cameron, Coull, Colyer, Dunbar, Fernandes, McBain, van der Horn and Warren For the Amendment (5): Councillors Gatt, Keith, Cowe, Divers and Macrae Abstentions (0): Nil Accordingly, the Motion became the finding of the Committee, and it was agreed that in view of the time that has elapsed since the sending of the consultation response letter and list of suggested conditions, the Head of Economic Growth and Development should write to the ECU to ask: • if there has been any discussion about the concerns raised by Moray Council; and • request an update on a timeframe for the final decision on the application through a formal response from ECU. 6 Planning Application 24/01376/APP Erect maturation warehousing development and ancillary buildings/structure (sprinkler tanks/pump house/shed/charging shed/welfare building) land engineering (cut and fill bridging of Core Burn and associated engineering and infrastructure works including formation of access and sub-station on Land to South of Crisp Maltings Portgordon Buckie Moray for William Grant & Sons Distillers Ltd The Committee had before it a report by the Appointed Officer recommending that, for reasons detailed in the report, planning permission be granted to erect maturation warehousing development and ancillary buildings/structure (sprinkler tanks/pump house/shed/charging shed/welfare building) land engineering (cut and fill bridging of Core Burn and associated engineering and infrastructure works including formation of access and sub-station on Land to South Of Crisp Maltings, Portgordon, Buckie, Moray for William Grant & Sons Distillers Ltd. The meeting noted that the application had been referred to Committee in terms of the Scheme of Delegation as the application is a major application as the proposal involves construction of storage buildings which exceed 10,000 sqm and the site exceeds 2 hectares. During discussion surrounding the track road that leads on to the main Portgordon Road, concern was raised that this road would be used as a short cut for vans and cars, and it was queried whether assurance could be given that this would not happen. In response, Diane Anderson, Senior Engineer (Transportation) advised that this was a private track for access into an individual property and that Condition 9 could be amended so that the Construction Traffic Management Plan ensures that access to the development via this track during construction and thereafter is not permitted. Page 10
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Following consideration, the Committee unanimously agreed to grant planning permission, as recommended, in respect of Planning Application 24/01376/APP, subject to the following conditions and reasons with an amendment to condition 9 so that the Construction Traffic Management Plan ensures that access to the development via this track during construction and thereafter is not permitted. 1. The development to which this permission relates must be begun not later than the expiration of 3 years beginning with the date on which the permission is granted. Reason: The time limit condition is imposed in order to comply with the requirements of section 58 of the Town and Country Planning (Scotland) Act 1997 as amended. 2. Construction works (including vehicle movements) associated with the development audible at any point on the boundary of any noise sensitive dwelling shall be permitted between 0800 - 1900 hours, Monday to Friday and 0800 - 1300 hours on Saturdays only, and at no other times out with these permitted hours (including National Holidays). The above construction hours shall apply, unless otherwise agreed in writing with the Planning Authority, and where so demonstrated exceptional operational constraints require limited periods of construction works to be undertaken out with the permitted construction hours. Reason: To protect local residents from noise nuisance in ensuring the construction phase is restricted within permitted hours. 3. Prior to development commencing, a Construction Environmental Management Plan (CEMP) shall be submitted to and agreed in writing by the Planning Authority in consultation with the Environmental Health Manager. The plan shall include measures to minimise construction related noise (including vibration), dust and artificial lighting and a waste management plan. Thereafter the development will be carried out in accordance with the agreed plan. Reason: In order that environmental emissions are considered and managed at the construction phase, in order to protect local residents; and to ensure the efficient management / reduction of waste. 4. Unless otherwise agreed in writing with the Council as Planning Authority in consultation with the Environmental Health Manager, external operations or vehicle movements relating to the operation of the warehouses shall only take place between 0600 to 2300 hours Monday to Saturday and no external operations or vehicle movements shall take place on Sundays, Christmas Day or Boxing Day. Reason: In order to minimise noise pollution in the interests of the amenity of neighbouring residents. 5. The rating level of noise associated with the development shall not exceed 43 dB at the nearest noise sensitive dwelling which is lawfully existing or has planning permission at the date of this permission, during the nighttime period permitted (0600 to 0700 hours). The rating level associated with this condition is Page 11
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defined within BS 4142: 2014 + A1:2019 Methods for rating and assessing industrial and commercial sound, and for the avoidance of doubt the reference time interval for the nighttime period is 15 minutes. Reason: To protect local residents from noise nuisance due to the use of the development. 6. The rating level of noise associated with the development shall not exceed 44 dB at the nearest noise sensitive dwelling which is lawfully existing or has planning permission at the date of this permission, during the daytime period permitted (0700 to 2300 hours). The rating level associated with this condition is defined within BS 4142: 2014 + A1:2019 Methods for rating and assessing industrial and commercial sound, and for the avoidance of doubt the reference time interval for the daytime period is 1 hour. Reason: To protect local residents from noise nuisance due to the use of the development. 7. Prior to the development commencing details of the operational site lighting shall be submitted to and agreed in writing by the Planning Authority, in consultation with the Environmental Health Manager. Thereafter, the agreed lighting details shall be maintained throughout the lifetime of the development. Reason: To protect residents from light nuisance due to the use of the development. 8. No works in connection with the development hereby approved shall commence unless an archaeological written scheme of investigation (WSI) has been submitted to and approved in writing by the planning authority and a programme of archaeological works has been carried out in accordance with the approved WSI. The WSI shall include details of how the recording and recovery of archaeological resources found within the application site shall be undertaken, and how any updates, if required, to the written scheme of investigation will be provided throughout the implementation of the programme of archaeological works. Should the archaeological works reveal the need for post excavation analysis the development hereby approved shall not be occupied or brought into use unless a post- excavation research design (PERD) for the analysis, publication and dissemination of results and archive deposition has been submitted to and approved in writing by the planning authority. The PERD shall be carried out in complete accordance with the approved details. Reason: To safeguard and record the archaeological potential of the area. 9. No development shall commence until a Construction Traffic Management Plan (CTMP) has been submitted to an agreed in writing by the Planning Authority in consultation with the Roads Authority. Thereafter the development shall be carried out in accordance with the agreed CTMP at all times. For the avoidance of doubt the CTMP shall include as a minimum the following information: • duration of works; • construction programme; • number of vehicle movements (i.e. materials, plant, staff, components); Page 12
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• volumes/tonnages of any bulk materials to be removed form site; • schedule for delivery of materials and plant; • parking provision, loading and unloading areas for construction traffic; • full details of temporary arrangements to safeguard pedestrian movements during the construction period; • full details of any temporary access; • measures to be put in place to prevent material being deposited on the public road; • traffic management measures to be put in place during works including any specific instructions to drivers; • full details of construction traffic routes from/to the site, including any proposals for temporary haul routes and routes to be used for the disposal of any materials from the site; this shall not include use of the private track network which runs between the southeast corner of the site and joins onto the A98 and A990 public roads, 630m and 510m to the south and east respectively; • a programme of monitoring for all routes identified within the CTMP during construction will be required. Thereafter, no operational traffic shall be permitted to access the site via the abovementioned private track network which runs between the southeast corner of the site and the A98 and A990 to the south and east (630m and 510m respectively) for the lifetime of the development, unless otherwise agreed by the Council, as Planning Authority. Reason: To ensure an acceptable form of development in terms of the arrangements to manage traffic during construction works at the site. 10. No development shall commence until evidence of a satisfactory Wear and Tear Agreement has been submitted to and agreed in writing by the Planning Authority in consultation with the Roads Authority. The scope of the Wear and Tear Agreement shall be agreed with the Planning Authority in consultation with the Roads Authority and shall include a condition survey of the network undertaken jointly by the developer and a representative from the Council. The survey shall include the full extent of the agreed construction traffic route(s) (within Moray) between the site and the A98. In addition, the wear and tear agreement shall also include condition surveys of all roads identified as ‘unsuitable’ which must be agreed with the Planning Authority in consultation with the Roads Authority. Reason: To mitigate the potential risks from damage to the public road occurring during the construction phase of the development. 11. No development shall commence until evidence of a financial guarantee or bond or suitable equivalent and a Wear and Tear Agreement have been put in place to ensure the repair of the public road serving the site in the event that the road is not maintained in a safe condition during the construction phase of the development and to restore the road to its pre-development condition within 1 year of the development becoming operational has been submitted to and agreed in writing with the Council, as Planning Authority. For the avoidance of doubt the agreement shall cover the section of the A990 Enzie - Portgordon - Buckie Road from the A98 to the site entrance as a minimum and all roads Page 13
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identified as routes for off-site disposal of bulk material/soil. Reason: To mitigate the potential risks from damage to the public road occurring during the construction phase of the development. 12. No water shall be permitted to drain or loose material be carried onto the public footway/carriageway. Reason: To ensure the safety and free flow of traffic on the public road and access to the site by minimising the road safety impact from extraneous material and surface water in the vicinity of the new access. 13. No development shall commence until the following details for the provision of an Electric Vehicle (EV) charging space have been submitted for approval by the Planning Authority in consultation with the Roads Authority: • A detailed drawing (scale 1:200) showing the type and specifications of the proposed EV charging units(s) to serve a minimum of 1 space with a minimum power output of 22Kw (Rapid Charger). EV charging unit is to be connected to an appropriate electricity supply and should include details (written proposals and plans) to confirm the provision of the necessary cabling, ducting, and consumer units capable of supporting the future charging unit. Thereafter the EV charging facilities shall be provided in accordance with the approved details prior to the development becoming operational or opened and maintained for use thereafter unless otherwise agreed in writing by the Planning Authority in consultation with the Roads Authority. Reason: In the interests of an acceptable form of development and the provision of infrastructure to support the use of low carbon transport, through the provision of details currently lacking from the submission. 14. The land identified on plan EC22743:SK:057 B, coloured yellow, shall be reserved for the future widening of the A990. This land shall be kept free from development and obstructions until such time as it is required by Moray Council for the widening of the A990 (widening, alignment and other associated works e.g. road drainage and culvert works) or other A990 improvement works. This land shall also be made available to any relevant party, acting on behalf of Moray Council or as authorised by Moray Council, without hinderance or consideration for road improvement works on the A990, where those road improvement works are deemed necessary for road safety reasons and/or are required to discharge a planning condition relating to any future road widening scheme. Reason: To facilitate the provision of a contribution towards future road improvements by restricting the use of and reserving land that is required to enable future improvements to be undertaken by, or on behalf of Moray Council. 15. No development shall commence (unless an alternative timescale is agreed), until the following information has been submitted to and approved in writing by Page 14
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the Council, as Planning Authority: a) A landscape phasing plan detailing timescales for all planting (tree/woodland, wildflower, and grass) across the site, incorporating advanced woodland/wildflower planting around the site edge. b) An updated Mitigation and Biodiversity Plan, drawing number 2215 L01 Revision E, which includes the provision of a further 4 bat boxes in addition to the 2 currently shown (providing 6 in total), to be mixed type to target different species, including specification details of the boxes. c) Specification details of the 8 bird boxes referred to the abovementioned plan, to be mixed type to target different species (kestrel, barn owl and smaller bird species) and details of the insect homes also referred to (to number at least 8 in total). d) Details regarding the long-term monitoring and maintenance of biodiversity measures and landscaping/woodland management on site (for a 30-year period) to secure long-term retention. This shall be closely based on the supporting document titled “Landscape Management and Maintenance Plan” and include monitoring by an ecologist after 2 years and again after 5 and 10 years to assess the ecological condition of the wildflower meadows. Subsequent adjustment of management or reseeding should follow the applicant’s ecologist’s recommendations. e) An Invasive Non-native Species (INNS) Management Plan. This shall follow the recommendations set out in section 5.9 of the supporting document titled “Preliminary Ecological Appraisal Report (PEA) dated 28 August 2024”, prepared by Affric Ltd, and include treatment of all surrounding areas that the applicant has control over (and adjoining land where neighbouring landowners have given permission for treatment to be undertaken) and run for a 30-year period. Thereafter the approved landscaping/woodland and biodiversity measures shall be implemented and maintained in accordance with the approved details, unless otherwise agreed by the Council, as planning authority. Reason: To ensure that the landscaping and woodland is provided timeously and maintained for the lifetime of the development; and to also provide biodiversity enhancements and ensure eradication of invasive species, as identified in the supporting Preliminary Ecological Appraisal Report. 16. The mitigation recommendations as detailed within the supporting documents titled “Protected Species Survey, dated 20 November 2024”, prepared by Wild Surveys Ltd and “Preliminary Ecological Appraisal Report (PEA) dated 28 August 2024”, prepared by Affric Ltd, shall be fully implemented by the developer, unless otherwise agreed in writing by the Council, as Planning Authority. Reason: To ensure that the development does not have an adverse impact on protected species. 17. No trees other than those identified for removal in the supporting document titled “Tree Survey and Arboricultural Impact Assessment, dated 11 November 2024”, prepared by ROAVR GROUP Consultants shall be removed without the prior written approval of the planning authority. The tree protection measures as set out within this document shall be fully adhered to by the developer and Page 15
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appointed contractor, unless otherwise agreed in writing by this Council. Reason: To ensure tree removal is adequately controlled and that suitable protection is afforded to existing trees. 18. No development shall commence (unless an alternative timescale for provision is agreed), until a finalised layout plan and details of all fencing has been submitted to and approved by the Council, as Planning Authority. This shall be closely based on the drawing titled Fencing layout and details number EC22743:PH2: 97:001 A, which contains indicative details. Thereafter, the approved fencing shall be implemented in accordance with the agreed details. Reason: To ensure an acceptable form of development and as the details submitted are indicative only. 19. No development shall commence until a construction phase surface water management plan has been submitted to and approved by the Council, as Planning Authority in consultation with Moray Flood Risk Management. Thereafter the development shall be carried out in accordance with the agreed details. Reason: To prevent surface water flooding and pollution during construction works and minimise risk to the adjacent watercourse. 20. The surface water drainage arrangements for the development shall be provided and maintained in accordance with the supporting document titled “Drainage Impact Assessment, dated 29 August 2024”, prepared by Blyth and Blyth, and approved drawing titled Proposed Drainage layout, no. EC22743:PL017:PH2 rev A, unless otherwise agreed by the Council, as Planning Authority. These shall be installed and operational prior to the first use of the buildings hereby approved. Reason: To ensure that surface water drainage is provided timeously and complies with the principles of SuDS in order to protect the water environment. 21. Notwithstanding the provisions of the Town and Country Planning (Use Classes) (Scotland) Order 1997 (or any order revoking and re-enacting that order) the approval hereby granted only relates to the use of the proposed warehouse buildings as Whisky Cask Storage and for no other use or purpose without the prior approval of the Council, as Planning Authority. Reason: In order to retain Local Authority control over the use of the site and to ensure that consideration can be given to the effects and impact of uses other than that approved herewith. 22. Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (or any order revoking and re- enacting that order) no development specified in Article 3, Schedule 1, Part 3, Class 12 shall be carried out without the approval of the Council, as Planning Authority. Page 16
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Reason: In order to retain control over the use of the site and to ensure that consideration can be given to the effects and impact of uses other than that approved herewith. 23. All measures identified in the supporting document titled “Community Wealth Building Statement” shall be implemented during the course of the development, unless otherwise agreed in writing with the Council, as Planning Authority. Reason: To ensure that the development proceeds in accordance with the submitted Community Wealth Building statement, to ensure compliance with National Planning Framework 4, Policy 25 – Community Wealth Building. 24. All measures identified in the approved document titled ‘Portgordon Carbon Reduction Statement Revision C’ shall be implemented during the course of the development, unless otherwise agreed in writing with the Council, as Planning Authority. Reason: To ensure that the development proceeds in accordance with the submitted Carbon Reduction Statement, to ensure compliance with National Planning Framework 4, Policy 2 – Climate Mitigation and Adaptation. 25. A buffer strip at least 6 metres wide shall be provided and maintained between the development and open channel of the adjacent watercourse along the northern site boundary for the lifetime of the development. Reason: To allow for access and maintenance of the watercourse. 26. No development shall commence (unless an alternative timescale is agreed), until final details of the material finishes/colours of all buildings (warehouses and ancillary buildings) have been submitted to and approved in writing by the Council, as Planning Authority. For the warehouses, these shall be finished in RAL 6003 olive green (or equivalent) as indicated in the submitted supporting information with the application. Thereafter the development shall be implemented in accordance with these details as approved. Reason: To ensure a satisfactory form of development and as full details in this regard have not been provided with the proposal. 27. Prior to the commencement of any works associated with the development hereby approved, final detailed design proposals and associated methodology statement for any works located within the 30m wayleave area relating to the TC BEATRICE OFTO Limited cable shall be submitted for the written approval of the Planning Authority in consultation with TC BEATRICE OFTO Limited. The detailed design proposals shall include a Cable Protection Methods Statement, Risk Assessment Method Statements outlining measures to ensure the OFTO cable is suitably protected during the construction and operational phases of the approved development. The construction and where relevant operation of the development shall be undertaken in accordance with the agreed final design details and the Cable Protection Methods Statement. Page 17
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Reason: To ensure the development is designed and operated to avoid any impact on national transmission infrastructure. 7 Planning Application 24/01087/APP Erect 24 affordable homes 40-bed space student accommodation and associated shared facilities 4 custom-build plots and 6 housing innovation plots and associated landscaping infrastructure roads and drainage on Phase 1 at R6 Dallas Dhu Mannachie Road Forres Moray for Moray Council The Committee had before it a report by the Appointed Officer recommending that, for reasons detailed in the report, planning permission be granted to erect 24 affordable homes, 40-bed space student accommodation and associated shared facilities, 4 custom-build plots and 6 housing innovation plots and associated landscaping infrastructure roads and drainage on Phase 1 at R6 Dallas Dhu, Mannachie Road, Forres, Moray for Moray Council. The meeting noted that the application had been referred to Committee in terms of the Scheme of Delegation as the proposal is a major development, as defined under the Scottish Government's hierarchy of development, as it involves a development of a site for housing that exceeds 2 hectares. Following consideration, the Committee unanimously agreed to grant planning permission, as recommended, in respect of Planning Application 24/01087/APP subject to the: i) acknowledgement of a Section 75 legal agreement with the Registers of Scotland to the Council; and ii) following conditions and reasons: 1. The development to which this permission relates must be begun not later than the expiration of 3 years beginning with the date on which the permission is granted. Reason: The time limit condition is imposed in order to comply with the requirements of section 58 of the Town and Country Planning (Scotland) Act 1997 as amended. 2. No development shall commence until a scheme of tree protection measures has been submitted to and approved in writing by the Council, as Planning Authority. This scheme shall show measures that conform to BS5837 and ensure protection is offered to those root protection areas of those trees shown in approved drawing number 001.1 (Tree Constraints Plan) hereby approved. Thereafter the measures shall be provided in full prior to any works commencing on site and retained until completion of the development hereby approved (unless otherwise agreed in writing by the Council, as Planning Authority). Reason: To ensure sufficient protection is provided to trees adjoining the site during the course of construction works. Page 18
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3. Prior to the commencement of development details of the affordable housing specification shall be submitted to and approved by the Council, as Planning Authority in consultation with the Housing Strategy and Development Manager regarding the detailed arrangements for the delivery and provision of the affordable housing on the site (i.e. all houses permitted by this consent excluding the 10 self-build plots and student accommodation), which shall include confirmation of the identity of the organisation (or other similar agency) responsible for the provision and management of all affordable housing provided on the site for the lifetime of the development. Thereafter the development shall be implemented in accordance with the approved details. Reason: To ensure all the residential units approved on site are affordable, managed, and retained accordingly. 4. No works in connection with the development hereby approved shall commence unless an archaeological written scheme of investigation (WSI) has been submitted to and approved in writing by the planning authority and a programme of archaeological works has been carried out in accordance with the approved WSI. The WSI shall include details of how the recording and recovery of archaeological resources found within the application site shall be undertaken, and how any updates, if required, to the written scheme of investigation will be provided throughout the implementation of the programme of archaeological works. Should the archaeological works reveal the need for post excavation analysis the development hereby approved shall not be occupied or brought into use unless a post excavation research design (PERD) for the analysis, publication and dissemination of results and archive deposition has been submitted to and approved in writing by the planning authority. The PERD shall be carried out in complete accordance with the approved details. Reason: To safeguard and record the archaeological potential of the area. 5. Prior to any development commencing and notwithstanding the approved landscape scheme, a detailed landscape scheme which shows the species and heights and maturity of the landscaping indicatively shown in the approved landscaping plan (drawing number 1228-H+M-LLP-0002 Rev A) shall be submitted to and approved in writing by the Council, as Planning Authority. This scheme shall also show the timing for the provision of landscaping (as well as the Landscape Pavillion Artwork forming part of the approved Public Art Strategy) and thereafter all landscaping shall be delivered in accordance with the approved details including timing, unless otherwise agreed in writing with the Council, as Planning Authority. Reason: To ensure that consideration can be given to the maturity of the landscaping proposed and ensure timeous provision of planting and public art. 6. Prior to any development commencing, a scheme for the long-term ongoing maintenance of the landscaping as required under condition 5 shall be submitted to and approved in writing with the Council, as Planning Authority. Any trees which are damaged or die within the first 5 years following first residential occupation of the development must be replaced by the developer. As part of the 5 year maintenance regime, a review must be undertaken by a Page 19
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suitably qualified ecologist as to the state and need to re-seed any areas of species rich/windflower mix if required. Reason: In order to ensure the landscaping is maintained appropriately. 7. All play equipment and associated surfacing, the seating ring, and community growing area must be installed in accordance with the approved landscaping plan (drawing number 1228-H+M-LLP-0002 Rev A). Unless otherwise agreed in writing with the Council, if any of the play equipment becomes unusable or damaged it must be replaced with the same, or similar style of play equipment which shall first of all been approved by the Council, as Planning Authority. Similarly, if the safety matting and surfacing within play areas become excessively damaged or a hazard as determined by the Council, as Planning Authority, it must be replaced with a toxin free material of similar suitable standard. The play areas and community growing area must be fully installed and operational within 12 months of the development commencing on site, excluding the play area to the north of plot 6 which shall be fully installed and operational prior to completion of plots 5 – 8 of the development hereby approved. The seating ring shall be fully installed and operational prior to first use of the student accommodation hereby approved. Reason: To ensure that the play equipment is kept in good condition in perpetuity and in the interests of public health and safety. 8. All public art, as specified in the approved “Public Art Strategy” shall be provided in full accordance with the approved details. The entrance identity shall be provided to each house prior to its first use or occupation (whichever is the soonest), whilst the student accommodation shall be completed in accordance with the decorative cladding at the main entrance. Thereafter these measures shall be retained unless otherwise agreed in writing with the Council, as Planning Authority. Reason: To ensure delivery of the approved public art strategy. 9. No development shall commence until a Community Wealth Building Plan has been submitted to and approved in writing by the Council, as Planning Authority. The measures, timetable and monitoring shall thereafter be implemented in accordance with the plan unless otherwise agreed in writing with the Council, as Planning Authority. Reason: To support a new strategic approach to economic development that helps to build a wellbeing economy in accordance with National Planning Framework Policy 25 - Community Wealth Building. 10. No development shall commence until a Construction Environment Management Plan (CEMP) has been submitted to and approved in writing by the Council, as Planning Authority in consultation with the Environmental Health Manager. This plan shall include: a) Site Waste Management Plan which should cover the management of soil on site. b) Construction Method Statement. c) Measures to ensure that there will be no pollution or discharge of Page 20
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sediment to the surrounding area including water courses. d) Measures to minimise construction related noise, dust, and artificial lighting. e) Pre-construction surveys as recommended in section 5 of the approved Ecological Assessment Report dated June 2023. f) Measures to ensure that any felling or vegetation clearance works happen outside of the nesting bird season (typically March - August, inclusive) and if this is not possible, then a pre-start breeding bird survey must be carried out by a suitably qualified and experienced ecologist to confirm that no breeding birds will be disturbed must be completed. Thereafter construction shall proceed in accordance with the approved plan. unless otherwise agreed in writing with the Council, as Planning Authority. Reason: In order to minimise the impacts of the development upon the environment from construction works and to ensure that environmental emissions are considered and managed at the construction phase, in order to protect local residents. 11. Prior to any development commencing, a detailed scheme of the off-site biodiversity enhancement on the land identified in drawing number 213 L(PL) 009 Rev A hereby approved, shall be submitted to and agreed in writing with the Council. This shall comprise a full scheme to deliver the cherry laurel removal and grass land habitat enhancement, along with timescales for its provision and details of long-term maintenance. Thereafter the biodiversity enhancement measures shall be provided and maintained in full accordance with the approved details, unless otherwise agreed in writing with the Council, as Planning Authority. Reason: To secure the agreed offsite biodiversity enhancement measures proposed by the applicant. 12. For the avoidance of doubt, the 10 self-build house plots permitted by this permission are consented as serviced house plots and all residential units developed on these will require a further grant of planning consent from the Council, as Planning Authority. All housing to be developed on the six plots identified as “Housing Innovation Plots” on the approved plans shall be designed to comply with the “Plot Passport” for each respective plot contained within the Plot Passport document hereby approved. Reason: To ensure that housing developed on the approved serviced house plots are designed in accordance with the design approach proposed as part of this development and the Dallas Dhu Masterplan, in the interests of the character, amenity and appearance of the development and wider area. 13. Notwithstanding the details submitted showing the Moray Council Adopted Areas on Drawing 213L (PL) 008 Rev A (Which are not accepted due to the extents of the adopted areas) Prior to commencement of development, details (Plans Scale 1:500 min) shall be submitted for approval in writing by the Planning Authority in consultation with the Roads Authority which show the agreed Moray Council Adoption Areas. Page 21
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Reason: The provision of details currently lacking or unacceptable on the submitted particulars to date. 14. Prior to the commencement of development details shall be submitted for approval in writing by the Planning Authority in consultation with the Roads Authority to confirm the timing for provision, management, operation and maintenance arrangements and responsibilities for all on-street communal bin storage areas within the development in all respects, for the safety of all road users including but not limited to the following; a) Arrangements and responsibilities (details of organisation and contact details) for routine and emergency cleansing to ensure waste materials do not impact on the use of the public road or safety of road users; b) Arrangements and responsibilities (details for the operation and controls to prevent misuse) for control of access doors to prevent the risk of damage to vehicles or injuries to road users. Thereafter unless otherwise agreed in writing by the Planning Authority, the bin storage areas shall be provided, managed, maintained, and operated in accordance with the approved details. Reason: In the interests of road safety and the submission of details currently lacking from the submitted particulars to date. 15. Notwithstanding the detail shown on Drawing 213 L (PL) 003 Rev E and the “Connection to Dava Way to be delivered as part of Phase 1 works”, prior to commencement of development plan(s) (Scale 1:500 min) shall be submitted to confirm the extent of the path connection from the site to the Dava Way which is to be provided together with long sections and cross sections of the path and slopes and details for the construction and surface finish of the path and any safety barriers/railings. Thereafter unless otherwise approved in writing by the Planning Authority, the path and infrastructure shall be provided in accordance with the approved details. Reason: In the interests of accessibility and sustainable travel and the provision of details currently lacking from the submitted particulars to date. 16. Prior to commencement of development, details (Plans scale 1:200 min) for road improvements (dropped kerb crossings and tactile paving) at Allan Drive and Mannachie Terrace, shall be submitted for approval in writing by the planning authority in consultation with the Roads Authority. Thereafter the road improvements shall be completed in accordance with the approved details prior to completion of the first house. Reason: To ensure an acceptable infrastructure is provided on the route to/from the development in the interests of road safety and the provision of details currently lacking on the submitted particulars to date. 17. No works shall commence on site until a Construction Traffic Management Plan (CTMP) has been submitted to and approved in writing by the Council, as Planning Authority in consultation with the Roads Authority. The CTMP shall include the following information: a) duration of works; Page 22
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b) construction programme; c) number of vehicle movements (i.e. materials, plant, staff, components); d) anticipated schedule for delivery of materials and plant; e) full details of any temporary construction access; f) measures to be put in place to prevent water discharging onto the public road or loose material being deposited on the public road; g) measures to be put in place to safeguard the movements of pedestrians; h) traffic management measures to be put in place during works including any specific instructions to drivers (No construction traffic shall access or egress the site from the south via Mannachie Road.); and i) parking provision, loading and unloading areas for construction traffic. Thereafter, the development shall be implemented in accordance with the approved details. Reason: To ensure an acceptable form of development in terms of the arrangements to manage traffic during construction works at the site. 18. Prior to commencement of any construction on innovation plots 1-6 or the communal parking areas associated with the plots, the following details shall be submitted for approval in writing by the Planning Authority in consultation with the Roads Authority: a) Details (Plans scale 1:500 min) for the parking/waiting/turning arrangements for delivery/service vehicles (long wheel base vans/7.5t lorries). b) Detailed drawing(s) (scale 1:200 min) confirming the location and specifications of Electric Vehicle (EV) charging unit(s) to serve each plot, including details of the necessary cabling, ducting, and consumer units capable of supporting the charging unit. Thereafter unless otherwise agreed in writing by the Planning Authority, the infrastructure for delivery/service vehicles shall be completed in accordance with the approved details and available for use prior to completion of the first innovation plot and the EV charging infrastructure shall be provided prior to the completion of each plot it is associated with. Reason: To ensure acceptable infrastructure is provided for servicing of the plots in the interests of road safety, and the provision of infrastructure to support the use of low carbon transport and the provision of details currently lacking on the submitted particulars to date. 19. Prior to the completion of any plot or the student accommodation, the works to form the Mannachie Road improvements, site access junction and cyclepath and crossing point(s) as shown in approved drawing numbers E13982-WRD-XX XX DR C 90022 Rev P04 and E13023-WRD-XX XX DR C 90030 Rev P02 shall be completed and provided for use in accordance with the approved details. Reason: To ensure an acceptable infrastructure is provided on the route to/from the development in the interests of road safety. 20. Notwithstanding the details submitted for EV charging for Plots 1-12 and the student accommodation (which are insufficient). No development works shall Page 23
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commence until detailed drawing(s) (scale 1:200) have been submitted to and approved in writing by the Council, as Planning Authority in consultation with the Roads Authority confirming the location and specifications of Electric Vehicle (EV) charging unit(s) including details (written proposals and/ or plans) to confirm the provision of the necessary cabling, ducting, and consumer units capable of supporting the charging unit; and thereafter the EV charging infrastructure shall be provided in accordance with the approved drawing and details prior to the first occupation of plot or the student accommodation which it serves. Reason: In the interests of an acceptable form of development and the provision of infrastructure to support the use of low carbon transport, through the provision of details currently lacking. 21. Parking provision (including cycle parking and facilities for EV charging where relevant) shall be provided for use in full for use for each respective plot identified on the approved plans, including all parking for the student accommodation prior to its first use. Thereafter the parking shall be provided and maintained in accordance with the approved details unless otherwise agreed in writing with the Council, as Planning Authority. Reason: To ensure the permanent availability of the level of parking necessary for residents/visitors/others in the interests of an acceptable development and road safety. 22. No boundary fences, hedges, walls or any other obstruction whatsoever over 1.0 metre in height and fronting onto the public road shall be within 2.4 metres of the edge of the carriageway, measured from the level of the public carriageway, unless otherwise agreed in writing by the Council, as Planning Authority in consultation with the Roads Authority. Reason: To enable drivers of vehicles leaving driveways to have a clear view over a length of road sufficient to allow safe exit, in the interests of road safety for the proposed development and other road users. 8 Consultation on Section 36 Application to erect a wind farm of 8 turbines (6 turbines 185m high, 2 turbines 175m high), battery storage facility and associated infrastructure at Kellas Drum Wind Farm, Kellas The Chair confirmed that the Committee had been advised via email the previous day that this report had been withdrawn from the agenda and deferred to a future meeting of this Committee. 9 Proposal of Application Notice - 25/00046/PAN Proposed development for a battery storage sysytem (BESS) with associated infrastructure with capacity up to 49.9mw on land near Quarrywood, Elgin Page 24
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The Committee had before it a report by the Depute Chief Executive (Economy, Environment and Finance) advising that a Proposal of Application Notice (PAN) had been submitted on 14 January 2025 on behalf of OPDE UK Limited. During discussion, the Committee asked that the Applicant consider the following points when submitting the formal application: • due care and consideration be given when accessing the site as there is a fast corner on the B9012; • ensure a comprehensive fire safety plan is in place; • note the Committee's concern in relation to the use of prime agricultural land for the development; and • ensure that the concerns of the nearby communities are considered. Thereafter, the Committee unanimously agreed: (i) to note the terms of the report and asked that the following provisional views/relevant issues be recorded and forwarded to the Applicant in order to inform the development of their proposed formal application for planning permission: • due care and consideration be given when accessing the site as there is a fast corner on the B9012; • ensure a comprehensive fire safety plan is in place; • note concern in relation to the use of prime agricultural land for the development; and • ensure that the concerns of the nearby communities are considered; and (ii) that the matters raised by the Committee also be forwarded to consultees likely to be involved in any formal application for planning permission for the proposal. 10 Moray Woodland and Forestry Strategy Under reference to paragraph 4 of the Minute of the meeting of Moray Council dated 24 April 2024, a report by the Depute Chief Executive (Economy, Environment and Finance) asked the Committee to note responses received to the draft Moray Woodland and Forestry Strategy and agree the final version of the Strategy. During discussion surrounding community ownership of woodland crofts and woodlots, it was noted that there was no reference to hutting which is an important form of engagement with forestry, and it was queried whether this could be included in the strategy. In response, the Strategic Planning and Development Manager agreed to add in a reference to hutting within the strategy. During further discussion surrounding compensatory planting, it was noted that there was no metric means to measure loss of potentially whole ecosystems should planners suggest the removal of significant amounts of planting, and it was queried whether this could be added to the strategy. Page 25
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In response, the Strategic Planning and Development Manager agreed to add a reference to mitigation hierarchy within the strategy which states that compensatory planting should be the last option for planners to explore. Thereafter, the Committee unanimously agreed: (i) to note responses received to the draft Strategy as set out in Appendix 1 of the report; and (ii) the final version of the Strategy as set out in Appendix 2 of the report. 11 Planning Policy Guidance - Biodiversity A report by the Depute Chief Executive (Economy, Environment and Finance) asked the Committee to approve planning policy guidance for National Planning Framework 4 (NPF4) Policy 3 to support delivery of the Moray Development Plan. Following consideration, the Committee unanimously agreed: (i) to approve the planning policy guidance for NPF4 Policy 3 as set out in Appendix 1 of the report; (ii) to delegate authority to the Head of Economic Growth and Development to update the guidance with non-material changes such as photographs and web links; and (iii) that the planning policy guidance set out in Appendix 1 of the report will be used as a material consideration in the determination of planning applications. 12 Street Naming and Numbering Charges for 2025/2026 Under reference to paragraph 7 of the Minute of the meeting of Moray Council dated 12 December 2023, a report by the Depute Chief Executive (Economy, Environment and Finance) asked the Committee to approve the Street Naming and Numbering Charges for 2025/26. Following consideration, the Committee unanimously agreed the Street Naming and Numbering Charges for 2025/26 as set out in paragraph 4.1 of the report. Page 26
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GUIDANCE NOTE PRODUCED FOR PLANNING AND REGULATORY SERVICES COMMITTEE MEETING OF 27 MAY 2025 REPORT ON APPLICATION “Note for guidance of the Committee where the decision of the Planning and Regulatory Services Committee is contrary to the recommendations of the Depute Chief Executive (Economy, Environment and Finance) in respect to a Planning Application.” Any Councillor putting forward a motion to refuse an application, contrary to recommendation, shall clearly state the reasons for refusal. These reasons should be based on policies contained in the approved National Planning Framework 4 (NPF4), Local Development Plan or some other material consideration. Time should be allowed to ensure that these reasons are carefully noted for minuting purposes. Where Councillors put forward a motion to approve an application, contrary to recommendation, an indication should be given of any specific matters which should be subject of conditions along with reasons which should be based on policies in the approved Local Development Plan or some other appropriate consideration. Note for guidance where the decision of the Planning and Regulatory Services Committee is to depart from the Development Plan (NFP4 and or Local Development Plan) Where a Councillor is convinced that there is reason to depart from Development Plan policy; then the Councillor’s reasons for making the motion should be clearly stated for minuting purposes. Any matters which should be subject to conditions drafted subsequently by the Depute Chief Executive (Economy, Environment and Finance) should be indicated. If the Committee remains of a mind to approve such an application then the whole matter will be subject to statutory procedures as apply. In such cases, Councillors should be aware that the application may require to be advertised as a departure and any objections reported to the next available meeting of the Planning and Regulatory Services Committee. It also may be necessary to convene a hearing to consider the views of objectors. There are three potential consequences if Committee takes a decision where the proper procedures have not been followed in whole or in part. Firstly, the person aggrieved by a decision may apply to the Supreme Courts in Scotland for an Order either compelling the Council to act according to law, quashing the decision altogether or declaring a decision to be unlawful coupled with an order to prevent the decision being implemented. A referral to the Supreme Courts in these circumstances is known as applying for Judicial Review. Secondly, in addition to the application for Judicial Review when questions of alleged failure, negligence or misconduct by individuals or local authorities in the management of public funds arise Page 27
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and are raised either by or with the External Auditor of the Council and where an individual can be blamed the sanctions available are:- Censure of a Councillor or an Officer Suspension of a Councillor for up to one year Disqualification of a Councillor for up to five years In the case of the Council being to blame, recommendations may be made to the Scottish Ministers about rectification of the authority’s accounts. Ministers can make an order giving effect to these recommendations. Thirdly, whilst the Ombudsman accepts that Planning authorities have the freedom to determine planning applications as they wish procedural impropriety may be interpreted as maladministration. This can also lead to recommendations by the Ombudsman that compensation be paid. Consistent implementation of departure procedures maintains public confidence in the planning system and is consistent with the time and effort invested in preparing the NPF4 and Local Development Plan. Page 28
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WARD 08_17 24/01884/APP 6th January 2025 Proposed two borrow pits within the site of the consented Berry Burn Wind Farm extension on Land At Berry Burn Wind Farm Dunphail Forres Moray for BB2 Wind Farm Ltd Comments: • This application is referred to Committee as it is a major planning application (For the extraction of Minerals where the site area exceeds 2 ha). • Application was advertised for Neighbour Notification and as development defined under Schedule 3 of The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013. • No representations have been received. Procedure: • None. Recommendation Grant Planning Permission – Subject to the following: - Conditions/Reasons 1. Unless otherwise agreed in writing with the Council, as Planning Authority permission for the borrow pit is for a limited period only, expiring 18 months from the date of consent. This period is inclusive of the time taken to restore the borrow pit. Reason: In order to ensure the temporary period of consent is clear, and in order to make the clear the timing of the restoration works. 2. The development hereby granted forms part of and is related to a development granted consent under Section 36 of the Electricity Act 1989 and deemed planning permission under section 57(2) of the town and country planning (Scotland) Act 1997 under decision letter dated 8 December 2021 (Energy Consents Unit reference ECU00000718) where;- The conditions as attached to that permission are hereby re-iterated and remain in Page 29
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force in so far as they relate to the development hereby approved, in particular conditions: 5, 9-11, 14-15, 17-20, 23-25, 27, 28, 30, 31-33 and 36. Reason: In order to ensure the borrow pits hereby approved accord and comply with the wider implementation and mitigation for the Berryburn windfarm extension. 3. Vibration monitoring At the reasonable request of the Planning Authority, following a complaint relating to vibration from blasting operations to form borrow pits, the developer shall measure at its own expense ground vibration to ensure compliance with the above condition. The results of such monitoring shall thereafter be forwarded to the Planning Authority. Reason: To ensure the provision of an acceptable form of development and to protect the amenity of nearby residential premises. 4. The development must proceed in line with the Water Environmental Appraisal and Borrow Pit Scheme of works submitted. In the event that the wholesomeness or adequacy of any private water supply becomes affected by construction activity, all users of such supplies and the Environmental Health Manager of Moray Council must be contacted by the applicant/developer to agree remediation measures within 14 calendar days from the date the wholesomeness or adequacy of the supply has been affected. Thereafter, repair of any affected private water supply must be carried be to the satisfaction of the Council as Planning Authority in consultation with the Environment Health Manager. The Council shall be the final arbiter whether any supply has been affected by this development. Reason: In order to safeguard and maintain the wholesome provision of any private water supply where affected by the development. 5. The post extraction restoration works, as detailed under (e) of ‘ED1385 Berry Burn – Scheme of Works’ and shown on ‘Indicative Borrow Pit 1 Design’ (ref: ED13835/009 B, dated 22/01/2025) and ‘Indicative Borrow Pit 2A Design’ (ref: ED13835/010 B, dated 22/01/2025) must be implemented following the cessation of operations on site. Prior to restoration, details of the proposed re-seeding mix for the borrow pit basin must be submitted to and approved in writing by the Council, as Planning Authority. Reason: To retain control over this temporary form of development and ensure that the site is appropriately restored in the interests of the protection of the visual appearance, landscape character and water environment. Reason(s) for Decision The Council’s reason(s) for making this decision are: - The proposal complies with the relevant policies of the National Planning Framework Page 30
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4 and Moray Local Development Plan 2020 and there are no material considerations that indicate otherwise. LIST OF PLANS AND DRAWINGS SHOWING THE DEVELOPMENT Reference No. Version No. Title/Description ED13835/009 B Indicative Borrow Pit 1 Design ED13835/010 B Indicative Borrow Pit 2A Design ED13835/002 D Location Plan ED13835/003 D Wider Location Plan Page 31
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Plans, drawings and other material submitted to the local authority are protected by the Copyright, Designs and Patents Act 1988 (section 47). You may only use material which is downloaded and/ or printed for consultation purposes, to compare current applications with previous schemes and to check whether developments have been completed in accordance with approved plans. Further copies must not be made without the prior permission of the copyright owner. Maps shown in the Planning Committee Report can only be used for the purposes of the Planning Committee. Any other use risks infringing Crown Copyright and may lead to prosecution or civil proceedings. Maps produced within this Planning Committee Report can only be reproduced with the express permission of the Moray Council and other Copyright holders. This permission must be granted in advance. PLANNING APPLICATION COMMITTEE SITE PLAN Site Address: Land At Berry Burn Wind Farm Dunphail Forres Planning Application Ref Number: 24/01884/APP Location Plan Applicant Name: BB2 Wind Farm Ltd Page 32
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Location plan Page 33
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Wider site plan 16/01664/APP Page 34
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Indicative borrow pit 1 16/ Page 35
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Indicative borrow pit design 2A 16/ Page 36
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Borrow Pit 1 16/ Page 37
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Borrow Pit 1 16/ Page 38
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Borrow Pit 1 16/ Page 39
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View North towards borrow pit 2A 16/ Page 40
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View north-east towards borrow pit 2A 16/ Page 41
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PLANNING APPLICATION: 24/01884/APP In the event that a recommendation on this planning application is overturned the Committee is reminded of the advice contained on the front page of the agenda for Reports on Applications 1. THE PROPOSAL • Proposal for two borrow pit search areas within the site of the previously consented Berry Burn Windfarm Extension (20/01026/S36). • Involves the winning and working of aggregate from two borrow pits. • Borrow Pit 1 (BP1) – Previously utilised borrow pit under 20/01026/S36, proposed to increase in size to 9.04ha. • Borrow Pit 2A (BP2a) – Proposed new borrow pit approx. 5.04ha in area. • Borrow Pits are required for the duration of the construction of the Berry Burn Windfarm Extension – anticipated 18 months duration. • An EIA Screening was undertaken and the adopted Opinion was that an EIA was not required (24/01216/SCN). 2. THE SITE • The sites are located approximately 12 kilometres (km) south of Forres on the Altyre Estate and covers an area of approximately 14.08ha. The sites are be located approximately 7km south of Dallas. • The site is open moorland, with the exception of Borrow Pit 1 which incorporates a now restored borrow pit, associated with the operational Berry Burn Windfarm (04/02473/S36 refers). • The sites form part of the wider Berry Burn Windfarm Extension site (approved under 20/01026/S36). These areas also sit within close proximity to the existing Berryburn windfarm. • The site areas are not subject to any international, national, regional or local landscape, built environment or nature conservation designations and there are no archaeological assets within the sites. No part of the site would lie within the Special Landscape Areas within Moray and the site lies approximately 9km northeast of the Cairngorms National Park. 3. HISTORY 24/01424/PAN - Proposal of application notice (PAN) for proposed two borrow pits within the site of Berry Burn Wind Farm Extension. This was reported to the Planning and Regulatory Services Committee on 22 October 2024. There were no matters raised by members. 24/01216/SCN – Screening opinion adopted on 28 August 2024 for proposed development of two borrow pits within the site of the consented Berry Burn Windfarm Extension. Assessment confirmed the proposal to be a Schedule 2 Page 42
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development but not likely to result in significant environmental effects and therefore not required to be subject of EIA procedures. 20/01026/S36 – Section 36 application for an extension to the operational Berry Burn Windfarm, Altyre Estate, Forres, Moray. Granted by Scottish Ministers on 8 December 2021 but not yet commenced. This consent included two borrow pit search areas (Borrow Pit 1 and Borrow Pit 2) 04/02473/S36 - Section 36 application for a wind farm at Berry Burn, Altyre Estate, Forres, Moray. 29 turbines at 104m in height. Operational since 2014 and producing approximately 66mW. This windfarm is located immediately west of the Berry Burn Windfarm Extension site, with the proposed Clash Gour windfarm in the similar vicinity to the east. 4. POLICIES National Planning Framework 4 1 - Tackling the climate and nature crises 2 - Climate mitigation and adaptation 3 - Biodiversity 4 - Natural places 5 - Soils 6 – Forestry, Woodland and Trees 7 - Historic assets and places 11 - Energy 12 - Zero waste 13 - Sustainable transport 14 - Design, quality and place 18 - Infrastructure first 22 - Flood risk 23 - Health and safety 25 - Community wealth building 29 – Rural Development 33 – Minerals Moray Local Development Plan 2020 PP2 Sustainable Economic Growth PP3 Infrastructure and Services DP1 Development Principles DP9 Renewable Energy DP10 Minerals EP1 Natural Heritage Designations EP2 Biodiversity EP5 Open Space EP7 Forestry Woodland and Trees EP12 Management and Enhancement Water EP14 Pollution, Contamination and Hazards Page 43
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5. ADVERTISEMENTS 5.1 The application has been advertised for neighbour notification purposes and as development defined under Schedule 3 of The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013. 6. CONSULTATIONS Environmental Health – No objection subject to conditions relating to blasting, appointment of a Planning Monitoring Officer and conditions controlling vibration. Contaminated land – No objection. Private Water Supplies – No objection subject to condition requiring the development to proceed in line with the Water Environmental Appraisal and Borrow Pit Scheme of Works submitted. Transportation – No objection. SEPA – No objection following submission of additional information relating to peat excavation, storage and restoration. Health and Safety Executive (Quarries) – No response received. Finderne Community Council – No response received. Heldon Community Council - No response received. Archaeology – No objections subject to a condition requiring a Written Scheme of Investigation (WSI). 7. OBJECTIONS-REPRESENTATIONS No representations received. 8. OBSERVATIONS 8.1 Section 25 of the 1997 Act as amended requires applications to be determined in accordance with the Development Plan i.e., the adopted National Planning Framework 4 (NPF4) and adopted Moray Local Development Plan 2020 (MLDP) unless material considerations indicate otherwise. 8.2 The main issues are considered below. 8.3 Pre-application Consultation Report The application is accompanied by a Pre-Application Consultation (PAC) Report, as prescribed under section 35C of the 1997 Act. This outlines the statutory consultation that the applicant undertook with the local community in Page 44
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relation to this application. The form and scope of the pre-application consultation was considered to be suitable and agreed by the Council in response to Proposal of Application Notice 24/01424/PAN as outlined above under History. 8.4 The PAC Report outlines the feedback received as part of the PAC process. It notes that between the two consultation events, 26 people attended, and that comments were raised regarding construction traffic, community benefit funds and co-ownership opportunities relating to the consented Berry Burn Windfarm Extension. Whilst comments raised at the events were related to the consented windfarm extension only and not the proposed Borrow Pit application, the PAC report addresses how the points raised have been responded to. 8.5 Environmental Impact Assessment As noted from the history, the proposed development was previously screened in relation to the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017. Having considered the characteristics of the development, the location of the development and characteristics of the proposed development it was concluded that the proposal is not an EIA development. 8.6 Minerals and Principle of Development NPF4 Policy 33(e) Minerals supports development proposal for borrow pits where: i. The proposal is tied to a specific project and is time-limited; ii. The proposal complies with the mineral extraction criteria (outlined in NPF4 Policy 33(d)) taking into account the temporary nature of the development; and iii. Appropriate restoration proposals are enforceable. 8.7 The use of on-site borrow pits to extract rock material prevents the costly and unnecessary import of material, and large number of HGV vehicle movements to and from the site on the public road and is in principle, supported by NPF4 Policy 33(e). 8.8 It is also noted that the principle of borrow pits has already been established through the consented, but not yet operational Berry Burn Windfarm extension (Borrow Pit 1 and Borrow Pit 2). The submitted Soil and Peat Appraisal document outlines the results of Ground Investigation carried out in December 2023 which showed that Borrow Pit 2 did not have sufficient viable material for use as a borrow pit and therefore this application seeks to extend Borrow Pit 1 and to create the new Borrow Pit 2A to provide sufficient aggregate to construct the consented windfarm extension. 8.9 The Planning Statement submitted with the application details that Borrow Pit 1 should be sufficient to provide the entire volume of stone required on site for the construction of the consented Windfarm extension. Borrow Pit 2A would be utilised should issues with stone quality arise, due to geological variation. 8.10 The borrow pits are required for the construction phase of the consented Berry Burn Windfarm extension only (anticipated 18 months) and a condition is recommended to limit the consent to this period only. Page 45
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8.11 In terms of appropriate restoration, drawings have been provided showing both existing and indicative restoration profiles for each borrow pit and these are supported by a Borrow Pit Scheme of Works. A condition is recommended requiring the implementation of all post extraction restoration works following the cease of operations on site. 8.12 Overall therefore, the general principle of borrow pits on the site has already been established via earlier consents and is supported due to the likely reduction in HGV vehicle movements to and from the site and therefore subject to compliance with conditions, the proposal is deemed acceptable in terms of NFP4 Policy 33(e). 8.13 Soils and Waste NPF4 Policy 5 Soils seeks to minimise disturbance to soils from development and supports the siting of essential infrastructure on carbon rich soil where this a specific locational need. Mineral extraction in association with renewable energy production is supported on carbon rich soils, due to the contribution towards greenhouse gas emissions reductions targets (policy 5 c) ii). 8.14 MLDP 2020 Policy EP16 outlines that for mineral proposals, development will only be permitted where it has been demonstrated that unnecessary disturbance of soils, geological interests, peat and any associated vegetation is avoided. EP16 also outlines that mineral proposals on areas of peat will only be permitted where the economic, social and/or environmental benefits of the proposal outweigh any detrimental effect on the environment, and it has been clearly demonstrated that there is no viable alternative. 8.15 NPF4 Policy 12 seeks to reduce the waste of materials in construction and requires (part c) waste management plans for developments that will generate waste. 8.16 The proposed borrow pits would result in interruption of some upland rich carbon soils however site surveys have been carried out which show that most of the borrow pit site areas are comprised of shallow peat (less than 1m in depth) or peaty soils (less than 0.5m in depth). Measures to mitigate any impact on peat and soils will be mitigated through the Peat and Soils Appraisal submitted as part of this application and the Peat Management Plan (PMP) which was required as a condition of the consented windfarm extension. 8.17 SEPA were consulted on the application an initial objection was raised with regard to peat restoration (whether there would be any excess peat) and storage (where any excess peat would be stored). Updated drawings and an updated ‘Scheme of works’ were provided to show that there would be no anticipated excess peat and that both borrow pit would be restored progressively with any temporary peat storage areas shown on the plans provided. SEPA also commented that the Peat Management Plan was in draft form and that this should be updated to include the borrow pit proposals. The agent confirmed that this would be done when Condition 19 of 20/01026/S36 is discharged. Following submission of additional information, an updated SEPA consultation response was returned to the Council with no objections. Condition 19 of 20/01026/S36 is recommended to be reiterated as part of this consent. Page 46
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8.18 In light of these considerations and subject to compliance with conditions, the proposals are deemed to comply with NPF4 Policies 5 and 12 and MLDP 2020 Policy EP16. 8.19 Biodiversity NPF4 Policy 3 and MLDP Policy EP2 require all development to contribute to the biodiversity enhancement of the site. 8.20 Whilst the borrow pit sites in isolation offer limited opportunities for biodiversity enhancements, the application is related to the previous Section 36 windfarm extension which is controlled by a series of environmental and biodiversity enhancement conditions. These conditions include the requirement for habitat management plans to deliver tree planting and peatland restoration to the wider site. Condition 11 (Habitat Management Plan) is recommended to be reiterated on this consent. 8.21 Therefore, whilst there is limited opportunity to provide biodiversity enhancement as a result of the borrow pit application alone, the biodiversity enhancement to be carried out as part of the previous Section 36 consent is considered acceptable and therefore the proposal is considered to comply with NPF4 Policy 3 and MLDP Policy EP2. The borrow pit restoration will provide some diversity to habitat in otherwise open moorland that is likely to see vegetation colonising sheltered locations and possible ledge nesting habitat. 8.22 Impact on Protected Species/Ecology NPF4 Policy 4 Natural Places states that development proposals that are likely to have an adverse effect on species protected by legislation will only be supported where the proposal meets the relevant statutory tests, with MLDP Policy EP1 Natural Heritage Designations having similar requirements. 8.23 The submitted Ecological Appraisal Report outlines that the following surveys have been carried out on the proposed borrow pit sites within the last two years; Extended Phase 1 habitat survey; National Vegetation Classification (NVC) survey; Terrestrial mammal and protected species survey; Preliminary ground level roost assessment for bats; and, Ornithology surveys. The surveys found that there were a variety of ecologically viable habitats to support a range of protected species and priority habitats (Mire and Heath) were identified as sensitive ecological receptors. 8.24 It is noted that any land-take as a result of the borrow pits will be temporary and that whilst the maximum footprint for each borrow pit has been considered within the Ecological Appraisal Report (9.01ha for BP1 and 5.02ha for BP2a) for land-take purposes, these are search areas only and during excavation only part of these areas will be temporarily lost. All habitats will be reinstated following the completion of the construction works in line with the Construction Environment Management Plan (CEMP) and bog restoration will also be in be in excess of that required under Condition 11 of the Section 36 Windfarm consent which is recommended to be reiterated on this consent. 8.25 Therefore, it is considered that through appropriate mitigation, the proposed borrow pits would not result in any residual negative effect on any sensitive ecology and nature conservation receptors. Page 47
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8.26 Access and Transport NPF4 Policy 18 Infrastructure First, MLDP Policy PP3 Infrastructure and Services and DP1(iii)(a) Development Principles set out requirements for development to be served by suitable infrastructure, including the provision of a safe entry and exit from developments. 8.27 The use of borrow pits will result in fewer HGV movements to and from the site as the intention is that the majority of materials required to construct the windfarm extension can be extracted on site. Moray Council Transportation Section have been consulted and have raised no objections. Condition 20 of 20/01026/S36 requiring a Traffic Management Plan is recommended to be reiterated as part of this consent. Therefore, the proposals are considered to comply with NPF4 Policy 18 and MLDP 2020 Policies PP3 and DP1 in terms of road safety. 8.28 Pollution NPF4 Policy 23 and MLDP 2020 EP14 require that development proposals that may cause significant air, water soil light or noise pollution must be accompanied by a detailed assessment report on the levels, character and transmission of the potential pollution with measures to mitigate impacts. Where significant or unacceptable impacts cannot be mitigated, proposals will be refused. 8.29 The supporting statement outlines that the blasting of rock will likely be required to achieve rock fragmentation and excavation. Whilst noise and vibration are expected to occur, blasting was considered as part of the consented Section 36 Windfarm application which also included borrow pits and was not considered to be significant. Environmental Health have been consulted and no objections have been raised subject to conditions limiting the days/times of blasting and requiring the level of ground vibration permitted to be agreed with the Council prior to any blasting occurring on site. Further conditions require the appointment of a Planning Monitoring Officer, prior to development works commencing and the requirement for the developer to measure ground vibration should a complaint arise due to blasting operations. This would fall in line with Planning Monitoring Officer role approved as part of the wider windfarm extension. Compliance with these conditions will ensure no significant or unacceptable impacts will occur as a result of the development. 8.30 The excavation works are also likely to create dust however it is considered that any impact would be limited to the immediate area sounding the borrow pits and mitigation will be set out in the CEMP (required under condition 14 of 20/01026/S36 and recommend to be reiterated as part of this consent). This will ensure that any significant adverse impact on air quality are highly unlikely. 8.31 A Water Environment Appraisal has been submitted which concludes that there are no more than minor adverse effects as a consequence of the proposed development and no requirement for additional mitigation. Again, the CEMP will also ensure avoidance of any potential adverse effect occurring. Page 48
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8.32 It is again noted that the overall principle of the borrow pit development is to extract rock material onsite which prevents the costly and unnecessary import of material, and large number of HGV vehicle movements to and from the site on the public road. This will, in turn, likely reduce the emissions from vehicles which would have ordinarily been entering the site to bring materials for the construction of the consented windfarm. Overall, therefore the proposals are considered to comply with NPF4 Policy 23 and MLDP 2020 Policy EP14 in terms of any potential pollution. 8.33 Water Supplies MLDP Policy DP1 Development Principle requires development proposals to provide acceptable water provision, which includes protection of existing water supplies. 8.34 EP14 requires development proposals which may cause significant water pollution to be accompanied by a detailed assessment on the levels, character and transmission of the potential pollution with measures to mitigate impacts. 8.35 Moray Council Private Water Supplies were consulted and raised no objections subject to a condition requiring remedial measures to be agreed where the wholesomeness or adequacy of any private water supply becomes affected by construction activity. 8.36 Therefore, subject to the conditions recommended, it is considered that any existing private water supplies will be adequately protected during construction works. 8.37 Archaeology The submitted Cultural Heritage Technical Advice Note outlines that there are no designated heritage assets within the application sites or within 2km of the sites. There are also no non-designated heritage sites within the application sites however there do exist non-designated heritage assets within 2km of Borrow Pit 1. 8.38 The Council’s archaeologist has been consulted and no objections have been raised. Condition 25 is 20/01026/S36 is recommended to be reiterated on this consent which requires submission of a Written Scheme of Investigation and thereafter a post-excavation research design (PERD) should any archaeological works reveal the need for post-excavation analysis. Compliance with this condition will ensure that the archaeological potential of the area is safeguarded and recorded in an appropriate manner to ensure compliance with NPF4 Policy 7 and MLDP 2020 Policy EP8. 8.39 Other Policy Matters – National Planning Framework 4 (NPF4) NPF4 Policy 2 – Climate Mitigation and Adaptation seeks to encourage, promote and facilitate development that minimises emissions and adapts to the current and future impacts of climate change. In this case, this is a specific application which relates to the implementation of an overarching Section 36 consent (20/01026/S36 refers) for an extension to an existing windfarm. The Section 36 consent was not subject to NPF4 Policy 2 as this application predated the adoption of NPF4. As such a Carbon Statement has not been sought on this occasion however the overall aim of the proposals is to win Page 49
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materials on site for the construction of the consented windfarm and therefore the principle of the development would reduce carbon emissions from HGV vehicles that would have been required to bring materials to the site. 8.40 NPF4 Policy 25 – Community Wealth Building and the Council’s guidance on the topic requires a Community Wealth Building Plan to be provided with certain developments. Whilst this is a major development, it relates to an overarching Section 36 consent for a windfarm extension which was not subject to this Policy and therefore is not deemed necessary for this application. The nature of the development, and temporary nature of the borrow pits, would limit the opportunity to achieve any wider community wealth building. REASON(S) FOR DECISION The Council’s reason(s) for making this decision are: - The proposal complies with the provisions of National Planning Framework 4 and the Moray Local Development Plan 2020 and there are no material considerations that indicate otherwise. Author/Contact Officer: Fiona Olsen Acting Senior Planning Officer Ext: 01343 563189 Neal MacPherson Acting Development Management & Building Standards Manager Page 50
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WARD 01_17 25/00352/APP 31st March 2025 Section 42 application to vary condition 1 (time period for implementation of planning permission 21/01901/EIA for proposed maltings) on Land at Greens of Rothes Rothes Moray for Simpsons Malt Comments: • No site visit required. • This application is a major application. • The proposal has been advertised for neighbour notification purposes. • No representations received. Procedure: • None. Recommendation Approve subject to conditions. Conditions/Reasons 1. The development to which this permission in principle relates shall be begun no later than 31 December 2030. Reason: Section 59 of the Town and Country Planning (Scotland) Act 1997 requires a condition to be attached to planning permissions in principle limiting their duration. The period requested by the applicant is in excess of that specified in section 59 but is considered acceptable given the justification provided with the application. 2. The approval hereby granted is for planning permission in principle and prior to the commencement of the development approval of matters specified in conditions, including the siting, design and external appearance of the building(s), plant and other structures; the means of access thereto; drainage; and the landscaping of the site shall be obtained from the Council, as Planning Authority. Reason: In order to ensure that the matters specified can be fully considered prior to the commencement of development. Page 51
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3. The grant of planning permission in principle hereby granted for the proposed development shall be carried out only in accordance with detailed drawings which shall previously have been submitted to and approved by the Council, as Planning Authority. These drawings shall show the matters specified in conditions numbered 3-8 below. Reason: As the approval is granted for planning permission in principle only and in order that detailed consideration can be given to the matters specified. 4. Plans, sections and elevations of all building(s), plant and structures proposed with details of the type and colour of all external materials and finishes shall be submitted in accordance with condition no. 3 above. Reason: As the approval is granted for planning permission in principle only and in order that detailed consideration can be given to the matters specified. 5. The proposed layout of the site showing the exact position of the site boundaries, the position of all buildings, the means of access, areas for vehicle parking and the arrangements for the disposal of foul and surface water (i.e. a SUDS system or equivalent) shall be submitted in accordance with condition no. 2 above. Reason: As the approval is granted for planning permission in principle only and in order that detailed consideration can be given to the matters specified. 6. Details of the exact extent, type and finish of all other works including walls, fences and other means of enclosure (including noise attenuation bunds) and screening shall be submitted in accordance with condition no. 2 above. Reason: As the approval is granted for planning permission in principle only and in order that detailed consideration can be given to the matters specified. 7. Sections through the site showing the development on its finished levels in relation to existing levels shall be submitted in accordance with condition no. 2 above. Reason: As the approval is granted for planning permission in principle only and in order that detailed consideration can be given to the matters specified. The conditions below relate to the approved plans and supporting documentation as approved under planning application reference 21/01901/EIA, dated 16 February 2023. 8. Landscaping proposals which reflect the planting shown in the EIA Site Layout Plan, drawing number SML-001-013 hereby approved and detail any existing trees/hedges/shrubs to be retained or removed together with details of the type, position and number of all planting to be undertaken and details of all surfacing Page 52
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materials shall be submitted in accordance with condition no. 2 above. The landscaping proposals shall be maintained in accordance with the maintenance details specified in section 10.212 of the EIA Report hereby approved. Reason: As the approval is granted for planning permission in principle only and in order that detailed consideration can be given to the matters specified. 9. For the avoidance of doubt, the height of the buildings, structures and plant hereby approved, shall be in accordance with the indicative heights specified in section 10.24 of the approved Environmental Impact Assessment Report as well as those indicated on the LVIA Massing Elevation drawing. Reason: To ensure the development is carried in accordance with the detail contained within the information that accompanied the application, the landscape and visual impact of the development having been assessed against this. 10. Prior to development commencing, a phasing plan for the development, which includes timing for provision of the buildings and plant permitted, along with any infrastructure, landscaping and bunding shall be submitted and approved in writing by the Council, as Planning Authority. Thereafter, the development shall proceed in accordance with the approved phasing plan, unless otherwise agreed in writing with the Council, as Planning Authority. Reason: To allow consideration to be given to the phased delivery of the development. 11. A Waste Management Plan shall be submitted to and approved in writing by the Council, as Planning Authority prior to development commencing. The Waste Management Plan shall relate to the operation of the development hereby approved and include information on the following: a) identification of the likely waste sources associated with the operation of the development; b) proposed waste management requirements, including provisions to maximise waste reduction and waste separation at source; and c) proposed waste management and storage strategy, which shall include details of: i. measures to minimise cross-contamination of materials; ii. storage of waste and by-products (including measures to ensure waste is secure from wind/weather); iii. provision of access for collection of waste, and iv. recycling and localised waste management facilities. Thereafter, the Waste Management Plan shall be implemented in full accordance with the details hereby approved prior to the completion or first operation of development hereby approved (whichever is the soonest). Reason: To ensure waste is minimised as a result of the operation of the proposed Page 53
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development, in accordance with National Planning Framework 4 Policy 12 - Zero Waste. 12. Prior to any development commencing, a Decarbonisation Strategy shall be submitted to and approved in writing by the Council, as Planning Authority. The Decarbonisation Strategy shall include detail of: a) Measures to improve the efficiency of the operation of the development (including, but not limited to industrial processes and building operations) in order to reduce potential carbon emissions; and b) Commitment to continually review operations, improve efficiencies and further reduce carbon emissions throughout the lifetime of the development, should new technology/methodologies allow. Thereafter the development shall be developer and operated in accordance with the approved decarbonisation strategy, unless otherwise agree in writing with the Council, as Planning Authority. Reason: To ensure carbon emissions are minimised during the operation of the development, in accordance with National Planning Framework Policy 26 - Business and Industry. 13. Prior to any development commencing, a scheme which shows biodiversity mitigation and enhancement measures shall be submitted and approved in writing by the Council, as Planning Authority. The scheme shall demonstrate how the mitigation measures (as outlined in sections 8.277 - 8.291 of the Environmental Impact Assessment Report approved as part of this application) have been incorporated into the final design of the development hereby approved and provide timing for the delivery of the measures. Thereafter all measures shall be provided in full accordance with the approved details. Reason: To ensure timeous delivery of biodiversity mitigation and enhancement, as identified in the Environmental Impact Assessment Report that accompanied this application, in the interests of the environment. 14. Unless otherwise agreed in writing with the Council, as Planning Authority (and in consultation with Moray Flood Risk Management and SEPA), there shall be no development or land-raising within the functional floodplain as outlined in Figure 7 within the Flood Risk Assessment (Ref. P20-083 SM Rothes EIA/RPT Rothes Detailed FRA and DIA). Reason: To ensure there is no increased flood risk as a result of the development. 15. Prior to development commencing, a Construction Environmental Management Plan (CEMP) shall be submitted to and agreed in writing by the Council, as Planning Authority in consultation with the Environmental Health Manager, Moray Flood Risk Management, NatureScot (SNH) and Scottish Gas Networks. The plan shall include: Page 54
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a) measures to minimise construction related noise, vibration, dust and artificial lighting on nearby residential properties and ecology, including nearby water courses; b) a waste management strategy that includes: i. identification of the likely waste sources associated with the operation of the development; ii. proposed waste management requirements, including provisions to maximise waste reduction and waste separation at source; and iii. proposed waste management and storage strategy, which shall include details of measures to minimise cross-contamination of materials, storage of waste (including measures to ensure waste is secure from wind/weather), provision of access for collection of waste, and recycling and localised waste management facilities; c) measures to ensure soil disturbance is minimised during construction; d) a scheme of surface water management to prevent run-off from the site during construction works; e) protection measures for trees adjacent to the site to be provided during the course of works; f) a scheme of works for any development within 35 metres of the high pressure gas pipeline that passes through the site, along with detail of any construction or land movement on or in close proximity to the high-pressure gas main. The above measures shall be accompanied by information for the timing of their provision. Thereafter the development shall be carried out in accordance with the details hereby approved unless otherwise agreed with the Council, as Planning Authority, in writing. Reason: In order to ensure environmental impacts are suitably managed and maintained during the construction phase. 16. Construction works (incl. vehicle movements) associated with the development that are audible above background noise levels at the boundary of any noise sensitive dwelling shall be permitted between 0700 - 1900 hours, Monday to Friday and 0800 - 1700 hours on Saturdays only, and at no other times out with these permitted hours (including National Holidays) shall construction works be undertaken except where previously agreed in writing with the Council, as Planning Authority and where so demonstrated that operational constraints require limited periods of construction works to be undertaken out with the permitted/stated hours of working. Reason: In order to ensure the times of construction are controlled so as to prevent noise disturbance to neighbouring residential amenity. 17. As part of condition 6, 3 metre high acoustic bunds shall be provided along the northern and western site boundaries of the development, as illustrated in dark green in figure 3.1 and figure 3.2 and also described in Table 6.1, page 20, of the noise impact assessment prepared by The Airshed, 5 Lauder Place, East Linton, titled "Environmental Noise Assessment for Proposed Maltings Rothes. Report Ref. Page 55
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AS 0806, dated 16th November 2021" within Appendix 11.1 of the Environmental Impact Assessment Report supporting document. The final selected acoustic barrier in terms of chosen material, design, surface density shall be submitted in a plan and agreed in writing with the Council, as Planning Authority prior to the use being established, and shall thereafter be installed and retained throughout the lifetime of the development in full accordance with the details hereby approved prior to the development becoming operational or its completion (whichever is the soonest). Reason: To ensure an acceptable form of development as these details are lacking from the application. 18. Prior to the development commencing, a detailed Light Impact Assessment undertaken by a competent person shall be submitted to and agreed in writing with the Council, as Planning Authority. The findings arising from the assessment shall thereafter be implemented and retained throughout the lifetime of the development in full accordance with the details hereby approved prior to the development becoming operational or its completion (whichever is the soonest). Reason: To ensure an acceptable form of development as these details are lacking from the application. 19. Fixed plant noise emissions associated with the development shall not exceed Noise Rating Curve (NR) 25, as determined within the bedroom of the nearest noise sensitive property with the window moderately open, during the night-time hours of 2300 to 0700 hours. This limit would apply and be determined over a minimum of 5 minutes duration within the night-time hours of 2300 to 0700 hours. Reason: In order to protect local residents from noise nuisance by limiting noise emissions from the development. 20. The rating level of noise associated with the development ventilation shall not exceed the background sound level by more than 5 dB (A) at the nearest noise sensitive dwelling. Measurement and assessment to demonstrate compliance with the rating level shall be undertaken in accordance with BS 4142: 2014 Methods for rating and assessing industrial and commercial sound. For the purpose of measurement and assessment using this above standard, the background sound level has been determined as an L A 90 of 39 dB, as stated within the "Proposed Design Criteria" section of the noise impact assessment prepared by The Airshed, 5 Lauder Place, East Linton, titled "Environmental Noise Assessment for Proposed Maltings Rothes. Report Ref. AS 0806, dated 16th November 2021" within Appendix 11.1 of the Environmental Impact Assessment Report supporting document. Reason: To protect local residents from noise nuisance by limiting noise emissions from the development. 21. Prior to the development commencing and in order to demonstrate compliance with condition 19 above, a further detailed Noise Impact Assessment (NIA) shall be Page 56
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submitted to and approved in writing by the Council, as Planning Authority. The NIA shall be undertaken in accordance with BS 4142:2014 Method for rating and assessing industrial and commercial sound. The approved operational noise rating levels arising from this further NIA shall not be exceeded during the operational lifetime of the development. Reason: In order to ensure that in the final design selected a further assessment of noise impact shall be undertaken and can demonstrate no noise nuisance to local residents. 22. Prior to the development commencing, a detailed noise management plan for operational noise at the development shall be reported in writing to and approved by the Council as Planning Authority. Thereafter the development will be carried out in full accordance with the agreed plan for the operational lifetime of the development. Reason: In order to ensure noise impacts are suitably managed and maintained during the operational phase. 23. Unless otherwise agreed in writing with the Planning Authority, access and egress by HGV vehicles to the development during the operational phase shall not be permitted between 1800 and 0800 hours. Reason: In order to ensure the times of HGV vehicle access and egress is controlled so as to prevent noise nuisance to local residents. 24. No works in connection with the development hereby approved shall commence unless an archaeological written scheme of investigation (WSI) has been submitted to and approved in writing by the planning authority and a programme of archaeological works has been carried out in accordance with the approved WSI. The WSI shall include details of how the recording and recovery of archaeological resources found within the application site shall be undertaken, and how any updates, if required, to the written scheme of investigation will be provided throughout the implementation of the programme of archaeological works. Should the archaeological works reveal the need for post excavation analysis the development hereby approved shall not be brought into use unless a Post- Excavation Research Design (PERD) for the analysis, publication and dissemination of results and archive deposition has been submitted to and approved in writing by the planning authority. The PERD shall be carried out in complete accordance with the approved details. Reason: To safeguard and record the archaeological potential of the area. 25. Notwithstanding the options submitted and prior to the completion of development or the development becoming operational (whichever is soonest), details shall be submitted for approval in writing by the Planning Authority in consultation with the Roads Authority which demonstrate the provision of a pedestrian connection between the development and New Street in Rothes (including any associated works Page 57
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required). Thereafter the pedestrian connection shall be provided in accordance with the approved details prior to the completion of the development or the development becoming operational (whichever is soonest). Reason: To ensure an acceptable development in road safety terms through the provision of details to be agreed. 26. There shall be no obstructions over 0.26 metres in height measured from the nearest edge of the carriageway and all boundary walls/fences/hedges set back to a position behind the visibility splay as shown in drawing LGR-WSP-XX-XX-DR-C-006 Rev A. Thereafter prior to completion of the site access or the access becoming operational the visibility splay shall be provided in accordance with the approved details and maintained in accordance with a schedule of maintenance to be agreed in writing by the Council, as Planning Authority. Reason: To ensure an acceptable development in terms of visibility splays, road safety and non-vehicular accessibility, through the provision of details currently lacking and/or incorrectly shown on the submitted particulars to date. 27. No part of the development shall be completed or become operational until evidence has been submitted to demonstrate that the statutory process to promote and implement any new speed limit(s) on the B9015 required as a consequence of the proposed development, have been completed by Moray Council. Reason: To ensure an acceptable development through the provision of details currently lacking and/or incorrectly shown on the submitted particulars to date. 28. No works shall commence on site until a Construction Traffic Management Plan has been submitted to and approved in writing by the Council, as Planning Authority in consultation with the Roads Authority. The Construction Traffic Management Plan shall include the following information: a) duration of works; b) construction programme; c) number of vehicle movements (i.e. materials, plant, staff, components); d) anticipated schedule for delivery of materials and plant; e) full details of any temporary construction access; f) measures to be put in place to prevent material being deposited on the public road; g) measures to be put in place to safeguard the movements of pedestrians; h) traffic management measures to be put in place during works including any specific instructions to drivers; and i) Parking provision, loading and unloading areas for construction traffic. Thereafter, the development shall be implemented in accordance with the approved details. Reason: To ensure an acceptable form of development in terms of the arrangements Page 58
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to manage traffic during construction works at the site. 29. Notwithstanding the details submitted (which do not include sufficient detail of the proposed staff and operational parking within the proposed development), no development shall commence until the following have been submitted for approval in writing by the Planning Authority in consultation with the Roads Authority: A Parking Assessment to demonstrate adequate parking provision including but not limited to the following provisions: a) Car spaces for staff and visitors (including disabled parking spaces). b) Operational parking for HGV's. c) Secure and weatherproof cycle parking. d) EV charging spaces (in accordance with the Moray Local Development Plan 2020 and supplementary guidance). A plan (Scale 1:500 min) of the proposed locations for parking and internal roads within the site serving the parking, including swept paths at locations to be agreed with the Roads Authority. Thereafter, unless otherwise approved in writing by the Planning Authority, the development shall be completed in accordance with the approved details and no part of the development shall become operational until the parking associated with it has been provided and is retained and available for use at all times. Reason: To ensure the permanent availability of parking and the provision of infrastructure to support the use of low carbon transport, through the provision of details currently lacking in the interests of an acceptable development and road safety. 30. No boundary fences, hedges, walls or any other obstruction whatsoever over 1.0 metre in height and fronting onto the public road shall be within 2.4 metres of the edge of the carriageway, measured from the level of the public carriageway, unless otherwise agreed in writing by the Council, as Planning Authority in consultation with the Roads Authority. Reason: To enable drivers of vehicles leaving driveways to have a clear view over a length of road sufficient to allow safe exit, in the interests of road safety for the proposed development and other road users. 31. All drainage shall be designed in accordance with the details specified in the "Detailed Flood Risk Assessment and Drainage Impact Assessment" hereby approved. Reason: To ensure surface water drainage is provided in accordance with the approved details. Reason(s) for Decision Page 59
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The Council’s reason(s) for making this decision are: - The proposed variation to condition 1, extending the period of consent for the maltings is considered suitable and complies with the requirements of the development plan (i.e. National Planning Framework 4 and the Moray Local Development Plan 2020). There are no material considerations that indicate otherwise List of Informatives THE DEVELOPMENT MANAGEMENT & BUILDING STANDARDS MANAGER has commented that: - The conditions as listed on this decision notice have been subject to a grant of consent for approval of matters specified in conditions applied to 21/01901/EIA via permission ref. 23/01227/AMC. For the avoidance of doubt, 23/01227/AMC remains live and associated to this planning permission in principle which extends the period of planning permission, and no further applications are necessary in respect of the information already approved as part of 23/01227/AMC. The applicant should be mindful of the need for Hazardous Substances Consent under the Planning (Hazardous Substances) (Scotland) Act 1997 where hazardous substances are to be stored on site at levels above those specified in the regulations. THE CONTAMINATED LAND SECTION has commented that: - This development has been identified from historical Ordnance Survey maps as being located on the route of a former railway. Moray Council does not have any further information as to whether the ground is contaminated. Safe development is the responsibility of the developer. You should consider investigating this matter further prior to proceeding with the proposed works. Should contamination be encountered, contact the Environmental Health section immediately (email contaminated.land@moray.gov.uk Tel 0300 123 4561) to agree an appropriate course of action. SCOTTISH GAS NETWORKS have commented that: - Contact should be made with Pipeline Engineer Colin Borthwick at: colin.borthwick@sgn.co.uk in advance of any work starting on site. If you plan to dig, or carry out building work to a property, site, or public highway within our gas network, you must: 1. Check your proposals against the information held at https://www.linesearchbeforeudig.co.uk to assess any risk associated with your development. THE TRANSPORTATION MANAGER, DIRECT SERVICES has commented that: - Page 60
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Resurfacing and profiling over full width of the B9015 junction and a design for the roads drainage will be required to correct for the road camber as a result of the road widening to form the access junction. Before commencing development, the applicant is obliged to apply for Construction Consent in accordance with Section 21 of the Roads (Scotland) Act 1984 for new roads. The applicant will be required to provide technical information, including drawings and drainage calculations, and provide a Road Bond to cover the full value of the works in accordance with the Security for Private Road Works (Scotland) 1985 Regulations. Advice on this matter can be obtained from the Moray Council web site or by emailing transport.develop@moray.gov.uk Construction Consent shall include a CCTV survey of all existing roads drainage to be adopted and core samples to determine the construction depths and materials of the existing road. A Stage 2 Road Safety Audit for the modifications to the existing public road (including works to form a pedestrian connection to Rothes) will be required. Requirements for a Stage 3 or 4 Road Safety Audit will be determined through the Roads Construction Consent process or subsequent to the road construction. Requirements for any traffic calming, road construction materials and specifications and any SUDs related to the drainage of the public road must be submitted and approved through the formal Roads Construction Consent process. Planning consent does not carry with it the right to carry out works within the public road boundary and the applicant is obliged to contact the Transportation Manager for road opening permit in accordance with the Roads (Scotland) Act 1984. This includes any temporary access joining with the public road. If required, street furniture which needs to be repositioned will be at the expense of the developer. Advice on this matters can be obtained by e-mailing transport.develop@moray.gov.uk Street lighting will be required as part of the development proposal. No building materials/scaffolding/builder's skip shall obstruct the public road (including footpaths) without permission from the Roads Authority. The applicant shall be responsible for ensuring that surface/ground water does not run from the public road into their property. The applicant shall ensure that their operations do not adversely affect any Public Utilities, which should be contacted prior to commencement of operations. The applicants shall free and relieve the Roads Authority from any claims arising out Page 61
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of his operations on the road or extension to the road. The Transportation Manager must always be contacted before any works commence. This includes any temporary access, which should be agreed with the Roads Authority prior to work commencing on it. No retaining structures or embankments shall be constructed along the edge of the road, whether retaining the public road or ground adjoining the public road without prior consultation and agreement of the Roads Authority. Comments received from SCOTTISH WATER are attached for your information. LIST OF PLANS AND DRAWINGS SHOWING THE DEVELOPMENT Reference No. Version No. Title/Description A.56.071 Location plan SML-001-013 Site layout plan Page 62
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Plans, drawings and other material submitted to the local authority are protected by the Copyright, Designs and Patents Act 1988 (section 47). You may only use material which is downloaded and/ or printed for consultation purposes, to compare current applications with previous schemes and to check whether developments have been completed in accordance with approved plans. Further copies must not be made without the prior permission of the copyright owner. Maps shown in the Planning Committee Report can only be used for the purposes of the Planning Committee. Any other use risks infringing Crown Copyright and may lead to prosecution or civil proceedings. Maps produced within this Planning Committee Report can only be reproduced with the express permission of the Moray Council and other Copyright holders. This permission must be granted in advance. PLANNING APPLICATION COMMITTEE SITE PLAN Site Address: Land At Greens Of Rothes Rothes Planning Application Ref Number: 25/00352/APP Location Plan Applicant Name: Simpsons Malt Page 63
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Approved Site Plan Page 64
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Approved Site Layout Plan 16/01664/APP Page 65
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PLANNING APPLICATION: 25/00352/APP In the event that a recommendation on this planning application is overturned the Committee is reminded of the advice contained on the front page of the agenda for Reports on Applications 1. THE PROPOSAL • Application under section 42 of the Town and Country Planning (Scotland) Act 1997 (as amended) to vary condition 1 to extend the time period of implementation of planning permission in principle 21/01901/EIA. • Application ref: 21/01901/EIA granted planning permission in principle for the erection of a maltings, which was permitted by this committee following a special meeting convening a pre-determination hearing on 15 February 2023, with a decision notice issued on 16 February 2023. • A subsequent approval of matters specified in conditions application (ref: 23/01227/AMC) was granted consent by this committee at its meeting of 19 December 2023, with a decision notice issued on 21 December 2023. • The time limit for implementing the consent was covered under the planning permission in principle (21/01901/EIA), which was granted subject to a condition (number 1) stating development must be begun not later than whichever is the later of the following dates: - • the expiration of 3 years from the date of the grant of planning permission in principle (i.e. 15 February 2026); or • the expiration of 2 years from the final approval of the matters specified in conditions or in the case of approval on different dates the final approval of the last such matter to be approved (i.e. 20 December 2025, two years post decision for 23/01227/AMC). • Accordingly, consent for the maltings is due to expire on 15 February 2026 and works in the course of erecting the development would need to commence prior to this date. • The supporting information provided with the application notes that the application was originally made to allow the applicant to produce sustainable malt and meet growth in malt demand, in particular growth driven by demand for Scotch Whisky. • This application therefore requests that condition 1 be amended to allow the period of planning permission for the maltings to be extended to 31 December 2030. 2. THE SITE • A 15.8 ha area of agricultural land at Greens of Rothes, to the north east of Rothes. • The roughly triangular shaped site is bounded by the B9015 Rothes to Mosstodloch road to the north west, further agricultural land to the north east, and the Broad Burn to the south (with Rothes CoRDe, a gas distribution site and distillery warehousing beyond). Page 66
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• The Broad Burn meets the River Spey to the west of the site. • The closest residential properties are Orchard Cottage to the north west on the opposite side of the B9015, and four dwellings to the east (Thistledown Cottage, Millburn, Morar and Drumoak). • A high pressure main gas pipeline bisects the site on a north east - south west axis, following a former railway line between Rothes and Orton. • The site lies adjacent to the Rothes Settlement Boundary as zoned in the Moray Local Development Plan 2020 (MLDP) and lies within the Spey Valley Special Landscape Area Designation (SLA). • The River Spey and Broad Burn are designated as part of the River Spey Special Area of Conservation (SAC), whilst the River Spey itself is also a Site of Special Scientific Interest (SSSI). • A large part (approx. 10.9 ha) of the application sits on Prime Agricultural Land type 3.1 - land capable of producing consistently high yields of a narrow range of crops. • Part of the eastern side of the site is identified as being at risk from flooding from the River Spey on SEPA flood maps (1 in 200 and 1 in 1000 year events). • As noted, the site has planning permission for the erection of a maltings and associated infrastructure. 3. HISTORY 25/00353/APP - Section 42 application to vary condition 1b of planning permission 23/02089/EIA to extend period of consent to 31 December 2030, pending consideration along side this application and to be determined under delegated powers (see below for description of 23/02089/EIA). 23/02089/EIA - Planning permission granted for the installation of heat, power and water connections between CoRDe Energy Centre and proposed new maltings, and installation of treated waste water outfall on land at Greens of Rothes granted planning permission under delegated powers on 18 April 2024. 23/01227/AMC - Approval of Matters Specified in Conditions 1 – 32 on Planning Permission in Principle 21/01901/EIA for erection of an 85,000 tonnes per annum malt production facility at Greens of Rothes granted by the Planning and Regulatory Services Committee on 21 December 2023. 21/01901/EIA - Planning Permission in Principle (PPiP) granted by the Planning and Regulatory Services Committee for erection of a 100,000 tonnes per annum malt production facility on land at Greens of Rothes on 16 February 2023. Application was granted following a statutory pre-determination hearing held on 15 February 2023. 20/01207/SCN - Screening Opinion sought by Simpsons Malt Limited for a proposed 100,000 tonnes per annum malt production facility on land at Greens of Rothes. Moray Council adopted a Screening Opinion on 9 October 2020 stating the proposal would require to be subject to Environmental Impact Assessment. Page 67
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21/00284/SCO - Scoping Opinion sought by Simpsons Malt Limited for a proposed 100,000 tonnes per annum malt production facility on land at Greens of Rothes following adoption of Screening Opinion 20/01207/SCN. The Scoping Opinion was adopted by Moray Council on 13 April 2021 and detailed the scope of information and assessment required to form an EIAR. 21/00740/PAN - Proposal of application notice (PAN) submitted by Simpsons Malt Limited for a proposed 100,000 tonnes per annum malt production facility on land at Greens of Rothes. The PAN level of consultation proposed was considered suitable by Moray Council on 3 June 2021. The PAN was reported to the Planning and Regulatory Services Committee, where members provided feedback on the proposal. 4. POLICIES National Planning Framework 4 Policy 1 - Tackling the climate and nature crises Policy 2 - Climate mitigation and adaptation Policy 3 - Biodiversity Policy 5 - Soils Policy 6 - Forestry, woodland and trees Policy 7 - Historic assets and places Policy 9 - Brownfield, vacant and derelict land and empty buildings Policy 12 - Zero waste Policy 13 - Sustainable transport Policy 14 - Design, quality and place Policy 22 - Flood risk Policy 23 - Health and safety Policy 26 - Business and industry Policy 29 - Rural development Moray Local Development Plan 2020 PP1 Placemaking PP2 Sustainable Economic Growth PP3 Infrastructure and Services DP1 Development Principles DP5 Business and Industry EP1 Natural Heritage Designation EP2 Biodiversity EP3 Special Landscape Areas EP5 Open Space EP6 Settlement Boundaries EP7 Forestry Woodland and Trees EP12 Management and Enhancement Water EP13 Foul Drainage EP14 Pollution Contamination Hazards Page 68
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5. ADVERTISEMENTS 5.1 Application advertised for neighbour notification purposes. 6. CONSULTATIONS Scottish Gas Networks - No objections. NatureScot - No objections. SEPA - No objections. Health and Safety Executive - Does not advised against granting of consent. Scottish Water - No response received at time of writing report. Aberdeenshire Council Archaeology Service - No objections, noted that mitigation already completed for this site. Speyside Community Council - No response received at time of writing report. Spey Fishery Board - No response received at time of writing report. Environmental Health - No objections to variation, subject to all other conditions being reiterated. Transportation Manager - No objections to variation of condition 1 only in respect of time period for implementation. Strategic Planning and Development - No comments to make on requested variation to condition 1 as change relates solely to the time period of implementation of planning permission 21/01901/EIA. Moray Flood Risk Management - No objections, conditions 14 and 15 should remain unchanged (NOTE – They are not subject to review under this application). Developer Obligations - No obligations sought. 7. OBJECTIONS-REPRESENTATIONS No representations received. Page 69
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8. OBSERVATIONS 8.1 Section 42 of the Town and Country Planning (Scotland) Act 1997 as amended allows applicants to apply to develop land without compliance with conditions previous attached to a planning consent. In determining such an application, the Council, as Planning Authority can only consider the conditions subject to which planning permission should be granted and may: • grant permission unconditionally (i.e. remove the conditions attached to the planning consent); • grant permission conditionally with differing conditions; or • refuse the application (i.e. keep the conditions attached to the planning consent). 8.2 The principle of the development as a whole cannot be reconsidered. 8.3 Section 25 of the 1997 Act as amended requires applications to be determined in accordance with the Development Plan i.e., the adopted National Planning Framework 4 (NPF4) and adopted Moray Local Development Plan 2020 (MLDP) unless material considerations indicate otherwise. 8.4 The main issues are considered below. 8.5 Policy Considerations In determining whether the proposed alternative condition is acceptable, consideration must only be given to whether or not the proposed variation to conditions complies with planning policy. The planning principles of the wider development are not open for consideration. 8.6 21/01901/EIA and 23/01227/AMC were considered under the provisions of the development plan that is currently in force (i.e. NPF4 and the MLDP). There has been no change to planning policy in the intervening period. Therefore, there is no change in policy position with regards to the consented maltings. 8.7 The supporting statement from the applicant notes that since the applications were granted, exports of Scotch Whisky have declined by 3.7% and it is likely to experience ongoing uncertainty throughout 2025 due to a combination of pressures on consumer spending, increased taxes and regulations and turbulent global trade. 8.8 There is no reason, under planning policy terms, to refuse this requested variation to condition 1. 8.9 Environmental Impact Assessment Regulations This application has been screened under regulations 6 – 9 of Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017. The Council, as Planning Authority, has adopted an opinion that no EIA is required (over and above that already undertaken as part of planning application 21/01901/EIA). Page 70
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8.10 The findings of the EIA Report that accompanied application 21/01901/EIA remain valid. Matters relating to ecology remain valid and up to date on the basis they require further survey work for breeding birds and suitable mitigation are in place as part of this consent for badgers. 8.11 Consultees have raised no objections to this application, subject to reiteration of conditions applied to 21/01901/EIA covering a variety of technical matters that were considered as part of the EIA Report for that application. 8.12 Appropriate Assessment - Habitats Regulation Appraisal In this instance, Moray Council will adopt the appraisal as modelled by NatureScot and this appropriate assessment is detailed below. 8.13 The proposed development will be located to the north/west of the River Spey and Broad Burn, part of the River Spey Special Area of Conservation (SAC) and River Spey Site of Special Scientific Interest (SSSI). The site's status means that the requirements of the Conservation (Natural Habitats, &c.) Regulations 1994 as amended (the "Habitats Regulations") apply. Consequently, Moray Council is required to consider the effect of the proposal on the designations and their qualifying interests before it can be consented. 8.14 As was considered as part of the original application (21/01901/EIA and 23/01227/AMC), the site is adjacent to the River Spey and the Broad Burn tributary, therefore the proposal has the potential to result in release of sediment and other pollutants into the river and burn and affect qualifying interests of the River Spey SAC and SSSI which are dependent on the water environment. There is also potential for light emissions during construction and operation to adversely affect qualifying interests of the nearby water courses. The SAC and SSSI have been selected for the River Spey's populations of Atlantic salmon, European otter, freshwater pearl mussel and sea lamprey. 8.15 The proposal is not directly connected with or necessary for the conservation management of the SAC and SSSI, hence further consideration is required. The proposal has the potential to result in release of sediment and other pollutants during construction activities and subsequent discharge of surface/foul water which may adversely affect the water environment. There is also potential for light emissions during construction and operation to adversely affect qualifying interests of the nearby water courses. 8.16 NatureScot previously advised Moray Council that the proposal is likely to have a significant effect on the interests of the SAC. Accordingly, suitable mitigation measures will be required to ensure the development does not adversely affect the interests of the SAC and SSSI. NatureScot advised the following mitigation be undertaken: • A Construction Environment Management Plan detailing measures to be put in place to ensure no release of sediment and other pollutants to the River Spey and Broad Burn. • Suitable drainage arrangements for surface and foul water from the development. • Measures to ensure light pollution from the construction process (and operation) do not impact on the qualifying interests that may be present in the river/burn. Page 71
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8.17 These matters were secured by condition that will be repeated as part of this section 42 application - and on this basis, the proposal will not adversely affect the integrity of the site: including the conservation objectives of its qualifying interests. Conclusion and Recommendation The proposed variation is consistent with planning policies in place (noting there has been no change to policy since the original grant of consent). The findings of the EIA report also remain relevant and there is no requirement for further supporting information over and above that already approved. Approval of this request variation would support the whisky industry in a period of economic uncertainty, and accordingly it is recommended that condition 1 applied to planning permission 21/01901/EIA is varied as per the request. All other conditions are to be reiterated as part of this recommendation. REASON(S) FOR DECISION The Council’s reason(s) for making this decision are: - The proposed variation to condition 1, extending the period of consent for the maltings is considered suitable and complies with the requirements of the development plan (i.e. National Planning Framework 4 and the Moray Local Development Plan 2020). There are no material considerations that indicate otherwise. Author/Contact Officer: Andrew Miller Acting Principal Planning Officer Ext: 01343 563274 Neal MacPherson Acting Development Management & Building Standards Manager Page 72
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Report to: Planning and Regulatory Services Committee Meeting Date: 27 May 2025 Report by: Depute Chief Executive (Economy, Environment and Finance) Report No: EGD/019/25/NM Author: Neal MacPherson, Acting Development Management and Building Standards Manager Contact Email: neal.macpherson@moray.gov.uk Subject: 22/00913/S36 - Construct and operate a wind farm (10 turbines at 200m high) and associated infrastructure with a generating capacity between 50mw and 100mw at Craig Watch, Cabrach. 1. PURPOSE ☒ For Decision ☐ For Information 1.1 The purpose of this report is to consider the consultation received from the Energy Consents Unit (ECU) of the Scottish Government in relation to an Electricity Act 1989 Section 36 application (which includes deemed planning permission) for a new windfarm. This Section of the Electricity Act relates to consenting onshore electricity generation. 1.2 This report is submitted to Committee in terms of Section III (E) (1) of the Council's Scheme of Administration relating to exercising the functions of the Council as Planning Authority. 2. SUMMARY 2.1 This report considers the consultation request from the Scottish Government for a proposed wind farm at Craig Watch, Cabrach comprising 10 turbines up to 200m in height. This report recommends that the Council object to the windfarm as there are Landscape and Visual Impact Assessment concerns, and unresolved matters relating to Transportation and Noise issues. Page 73
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3. RECOMMENDATIONS – 3.1 It is recommended that Committee: i) considers and note the contents of the report, as set out in Appendix 1, including the conclusions about the planning and wider merits of the development (see Section 5 below) where taking into account National Planning Framework 4, Moray Local Development Plan 2020 and all other relevant material considerations, it is recommended that Moray Council objects to the Section 36 application; ii) consider responding to the consultation from the Energy Consents Unit, lodging an objection to the currently proposed development on the basis of the recommendations set out at the end of Appendix 1, in particular in terms of the considered unacceptable significant landscape and visual impacts (including heritage) that would arise from the lack of mitigation in the design of the proposed windfarm. Object also on the grounds that at the time where Moray Council were obliged to respond, both Transportation and Noise matters had not been resolved; and iii) that in the event of approval and prior to determination, the Council request it be consulted on proposed conditions to be attached to any consent, with delegated authority being granted to officers to agree such conditions with the ECU. These conditions would cover the matters raised by the Council internal consultees. 3.2 It also falls to Committee to either wholly object for the reasons given or other planning reasons considered appropriate or to raise no objection to the Section 36 consultation, but officers recommend the approach suggested in 3.1 ii) above. Author Name - Neal MacPherson Job Title - Acting Development Management and Building Standards Manager 4. BACKGROUND AND CONTEXT 4.1 As the proposal seeks consent for a windfarm with associated battery energy storage scheme with an output that will exceed 50mW (in this case between 50-100 mW), the proposal is to be determined by the ECU within the Scottish Government. Responsibility for consultation with statutory consultees, relevant local authorities, receipt of representations and determination lies with the ECU. In these circumstances the role of the Council, as planning authority, is as a consultee rather than being the determining authority. The ECU has invited the Council to comment on the proposed variation to the wind farm development within a specific timeframe along with other consultees. Where the Council objects to a Section 36 consultation, this will usually trigger a Public Local Inquiry (PLI). 4.2 This application having first been submitted to the Energy Consents Unit on 14 June 2022 was the subject of internal consultation, but aware that the application had been subject of objections from other consultees, the applicants sought to amend the proposals Page 74
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(particularly in relation to its potential impact on Craig Dorney Hillfort in Aberdeenshire). Amendments were intimated, and the application effectively put on hold awaiting possible amendments. Some considerable time later in November 2024, Supplementary Environmental Information (SEI) was submitted amending the proposals by removing one turbine and the Battery Storage Unit, and increasing the size of the substation. 4.3 With the passage of time, noise matters needed re-visited as the Garbet and Clashindarroch Extension windfarm applications have been approved/submitted in the intervening period, and the potential cumulative noise matters were the subject of ongoing discussions with the applicant, but had not been concluded. Similarly with a review of the revised proposals from a Landscape and Visual Impact Assessment perspective discussions were ongoing about mitigation impacts. Lastly, the applicant was passed queries and concerns from the Transportation Manager in late 2022, and whilst some of these issues may be addressed in the 2024 SEI not all matters had been covered and required further interaction with the Council as Roads Authority. The planning case officer had not yet clarified with the Transportation Section what matters remained to be resolved at the time of writing this report. 4.4 The Energy Consents Unit having re-consulted the Council, granted an extension of time until May 2025 to respond to the consultation, have not agreed to any further extension of time until the August committee to allow for further efforts to be made to achieve the resolution or conclusion of the above matters. This has meant that Officers now have to make a recommendation to committee on the current situation, rather than risk the Energy Consents Unit recording the Council as having not responded to the Section 36 consultation. Of note, Aberdeenshire Council, whose jurisdiction covers the northern half of the proposed development, have yet to respond to the consultation. The applicant has stated they will continue to respond to the outstanding matters in the interim, in part to conclude and inform any suite of conditions that might be presented at the next stage of the Section 36 process. 5. PROPOSALS 5.1 The current proposal seeks permission for up to 10 turbines, up to 200m in height. The site access, permanent meteorological mast, substation and 7 of the turbines lie within Moray, while the remaining 3 turbines to the north-east and proposed borrow pit would sit within Aberdeenshire Council’s jurisdiction. 5.2 The proposal seeks a 33-year consent to generate electricity, after which time the development would be decommissioned and turbines, etc removed from site. The height of the proposed turbines would require visible aviation lighting. The site would take access from the A941 Rhynie to Dufftown Road. The proposed would utilise and expand an existing private access track, currently serving one property. This would see the increase in size of private access junction serving the property known as Rinturk on the A941 5.3 Within Moray there are some areas of blanket bog, national woodland inventory, potential Groundwater Dependent Terrestrial Ecosystems (GWDTEs) and some archaeological records. The forestry plantation is likely to offer some upland edge habitat, but there are no notable other environmental designations covering the Moray portion of the site. Page 75
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Aberdeenshire may hold records on the remainder of the site to the north-east under their jurisdiction. 6. SUMMARY OF IMPLICATIONS 6.1 The table below shows whether risks and implications apply if the recommendations are agreed: SUBJECT YES NO Corporate Plan and 10 Year Plan (Local Outcome Improvement Plan) x Policy and Legal x Financial x Risk x Staffing x Best Value and Transformation x Property x Information Communications Technology/Digital x Equalities. Social Inclusion and Economic Impact x Climate Change and Biodiversity Impact x 6.2 Corporate Plan and 10 Year Plan (Local Outcomes Improvement Plan (LOIP)) Improved Collaborative Leadership, as part of continuous improvement through Best Value, will better enable the Council to fulfil the ambitions set out in its strategic plans. a) Links to Council Corporate Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following Council Plan strategic priorities: ☐ Tackle Poverty and Inequality. ☒ Build Stronger Greener Vibrant Economy. ☐ Build Thriving, resilient, empowered Communities. b) Links to Local Outcomes Improvement Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following Local Outcomes Improvement Plan priorities: ☒ Developing a diverse, inclusive, and sustainable economy ☐ Building a better future for our children and young people in Moray. ☐ Empowering and connecting communities. ☐ Improving wellbeing of our population 6.3 Policy and Legal The application is made for consent under section 36 of the Electricity Act 1989 to Scottish Government. If consented, planning permission is deemed to be granted for the development. For planning purposes, proposals require to be determined in accordance with the development plan unless material considerations indicate otherwise. If granted Page 76
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by Scottish Government, the responsibility for the discharge of (planning) conditions attached to the formal decision to grant consent will pass to the Council. 6.4 Financial If this committee is minded to object to the proposal, a Public Local Inquiry may be arranged by Scottish Government. The Council would be expected to attend and participate in the Inquiry process, including any pre-Inquiry arrangements with resultant costs, including officer, legal representation and consultant costs where required/appropriate. A substantive fee (£40,000) was submitted to the Council (as its share of the ECU fee) and the cost of any PLI would likely use up the majority of the sum. Whilst support to Development Management would be provided by Legal Services it is likely in the event of a PLI that additional legal representation, possibly including Counsel, would be needed to assist in the preparation and presentation of the Council’s case. At Inquiry, the applicant may seek an award of costs against the Council if it is considered the Council has acted unreasonably. 6.5 Risk If the Council fail to respond in May 2025 it would be open to Scottish Government to proceed and determine the application, without the input of Moray Council. If deciding to object, the outcome of any Public Local Inquiry held to consider this proposed development is uncertain: it might uphold and support the Council’s decision to object, but equally the objection could be dismissed and consent granted for the development. 6.6 Staffing In the event of a Public Local Inquiry, staff time and resources (potentially Elected Members, planning and legal officers) will be required for preparation and attendance at any Inquiry. 6.7 Best Value and Transformation None. 6.8 Property None. 6.9 Information Communications/Technology/Digital None. 6.10 Equalities, Social Inclusion and Economic Impact None. 6.11 Climate Change and Biodiversity Impacts As detailed in Appendix 1 report, the proposed varied development has the potential to make a considerable contribution toward the generation of low carbon based electricity Page 77
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generation so significant weight is attached to this element. Switching to renewable sources of energy is acknowledged to make a large contribution toward climate change goals. Biodiversity and other environmental impacts are sought to be mitigated by those measures proposed within the Environmental Impact Assessment Report. 7. CONSULTATION 7.1 This report has been prepared in consultation with the Depute Chief Executive (Economy, Environment and Finance), the Acting Head of Economic Growth and Development, the Legal Services Manager, the Acting Development Management and Building Standards Manager, the Equal Opportunities Officer, the Strategic Planning and Development Manager, and the Democratic Services Manager and any comments made have been incorporated into the report. 8. BACKGROUND PAPERS 8.1 Appendix 1 inclusive of information pack Page 78
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APPENDIX 1 MORAY COUNCIL Response to Consultation issued by Scottish Government on APPLICATION FOR S.36 CONSENT CONSTRUCT AND OPERATE A WIND FARM AND ASSOCIATED INFRASTRUCTURE WITH A GENERATING CAPACITY BETWEEN 50MW AND 100MW AT CRAIG WATCH WIND FARM, CABRACH. (MORAY COUNCIL REFERENCE 22/00913/S36) INTRODUCTION The applicant, Craig Watch Wind Farm Limited has applied for consent under Section 36 of the Electricity Act 1989 for an onshore wind energy development for eleven turbines up to 200m in tip height, Craig Watch Wind Farm, Cabrach, Moray. The application will be determined by the Scottish Government Energy Consents Unit (ECU) and not by Moray Council, as local planning authority. In determining the Section 36 application, the views of Moray Council, as local planning authority are being sought by the Scottish Government: the Council’s role in the process is therefore as a statutory consultee. In responding with comments, the Council has a right to object or not to the application, as well as commenting on the conditioning of the consent. If the planning authority objects to the proposed development and the objection is not later withdrawn, or the areas of objection cannot be addressed by conditions then the ECU are likely to convene a Public Local Inquiry. Prior to determination, the Scottish Government is responsible for affording publicity of the proposal and taking account of all representations received, whether from the general public or interested parties, and for consulting with agencies and organisations (consultees). Internal consultation with relevant Services/Sections of the Council has been undertaken in order to provide a comprehensive response in responding to the consultation. THE PROPOSAL • Up to 10 wind turbines, each up to a maximum tip height of 200 m; • Associated permanent turbine foundations and crane hardstanding; • A permanent free-standing meteorological mast including associated foundation and hardstanding; • A total of approximately 6.85 km of on-site tracks with associated water crossings, passing place and turning heads, of which 2.18 km would be formed through upgrading existing tracks. Additionally, a total of approximately 760 m of onsite emergency access track; • A main Site entrance for use during construction and operation, designed to accommodate abnormal indivisible loads required for turbine component delivery as well as to provide parking for component deliveries; Page 79
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THE SITE • The site lies across two boundaries, sitting within both Moray and Aberdeenshire Council areas. • A portion of the site within Moray sits within for forestry plantation, with the majority of the site within Aberdeenshire sitting within the same forest. Turbines 1 and 2 within Moray, sit in an area of open moorland. • The site fall is host to national forest inventory, deep peat, and has potential for other habitats, but it not covered by any national environmental designations. HISTORY For the site. None Relevant wind energy developments in the wider area. 23/00047/S36 - Up to 21 wind turbines, thirteen of which with a maximum blade tip height of 200 metres (m) and nine with a maximum tip height of 180m to be known as Clashindarroch Extension. Moray Council did not object but did raise concerns. This Section 36 application is still being considered by the Energy Consents Unit. 21/00020/EIA – Proposed wind energy development comprising of seven turbines up to a height of 190m located at a Garbet, approximately 2km north of Clashindarroch Extension. Moray Council refused this planning application in November 2021 as the proposal “fails to integrate into the landscape and adversely impacts on landscape and visual amenity and would have significant combined cumulative impact on the Open Uplands with Settled Glens”. The refusal was subsequently overturned by the Scottish Ministers at appeal. A further turbine has been consented within this development and development now effectively comprises of 8 turbines. 08/01200/S36 - Dorenell windfarm consisting of 59 turbines, all 126m in height to blade tip and associated development including a substation/compound area and composite tower transmission line running northward from the site. The site is located approximately 4km west of Clashindarroch Extension site and has been in operation since 2019. In Aberdeenshire Clashindarroch II windfarm proposes to develop fourteen turbines, each with up to a 6MW capacity and with a tip height of 180m. The proposal has been to Public Inquiry in 2022 and lies within Aberdeenshire adjacent to the existing Clashindarroch windfarm. Page 80
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Clashindarroch Windfarm – Eighteen turbines at 110m. The site is located immediately east of the currently proposed windfarm site and has been in operation since 2015. There are a number of other windfarms in the wider locality within Moray and Aberdeenshire such as Kildrummy to the south, Cairnborrow to the north-east, Edintore to the north and many that can be seen from elevated viewpoints and landmark hills within Moray. All have been noted and taken into consideration whether within or outwith Moray. There is also an awareness of project at the scoping stage, as reflected in the EIA Report. ADVERTISEMENTS Advertisements will have been carried out by the ECU who is the determining authority for the application. CONSULTATIONS Strategic Planning & Development;– Whilst the benefits of the proposal in terms of renewable energy generation are fully recognised, the proposed development will result in significant adverse landscape and visual effects, including cumulative, within Moray and in particular on views from Ben Rinnes, the Upper Deveron Valley and Auchindoun Castle. As limited scope of mitigation has been applied and the development does not maximise net economic impact, the proposal is considered to be contrary to the NPF4 Policies 2, 4, 7, 11, 25, 29 & associated PPG, MLDP Policies DP1, DP9, EP3 & EP8 and the LSS 2023. Limited information has been provided to demonstrate how the proposal has maximised net economic impact. Should the recommendation be to support the proposal, the provision of a NEIMP which address community wealth building, community benefit and other socio-economic benefits which the proposal will deliver must be conditioned. An OHMP and PMP has been submitted in support of the application, the principles of which comply with NPF4 Policy 3 and MLDP Policy EP2. A total of 26.70 ha of woodland requires to be felled to facilitate the proposed development, which will require compensatory planting, to be agreed with Scottish Forestry and Moray Council and provided on-site or within Moray. Strategic Planning & Development object to the proposal for the reasons outlined. The Council’s Landscape Adviser has recommended the following conditions to reduce the level of impact and while applying all the recommended conditions will not mitigate all policy concerns, these will be sufficient to remove this objection: • Remove Turbines 1 and 2 and reducing the height of Turbines 3 and 4 to avoid visibility to avoid visibility from Auchindoun Castle and, in respect of Turbines 1 and 2, likely to mitigate effects of the wind farm from the A941 and hills near Page 81
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Dufftown although significant adverse effects on the Deveron valley would remain. • The applicant should actively consider further mitigation of visible aviation lighting, taking advantage of any progression in current negotiations with the CAA undertaken by other wind farm developers on radar activated lighting which would significantly reduce the duration of lighting. • The requested 100m micro-siting allowance could potentially increase visual intrusion in key views and therefore any micro-siting of the turbines should only be agreed on the basis of detailed ZTV and wireline visualisations being produced to demonstrate that no exacerbation of effect occurs to currently predicted views from key locations including Auchindoun Castle, the upper Deveron valley and Ben Rinnes. Environmental Health – Noise issues discussed with the applicant recently but not concluded sufficiently, such that Environmental Health are able to recommend approval subject to suitable conditions. Aberdeenshire Archaeology Service – no objection subject to an archaeological programme of works. Transportation Manager – Transportation responded in 2022 identifying various specific locational comments along the proposed delivery route and other general comments regarding wear and tear, removal of roadside vegetation removal. The Supplementary Environmental information submitted 2 years later addressed some of these issues, but the Development Management case officer had not yet completed a review how much of this addressed the 2022 Transportation comments. The passage of time had also seen other windfarm developments consented in the area, with enabling works possibly committed under consented developments. Moray Flood Risk Management (MFRM) – No objections Building Standards – A Building Warrant will be required for the control building and any foul water treatment required. REPRESENTATIONS All objections/representations in the relation are to be submitted directly to the Scottish Government Energy Consents Unit, who is the determining Authority. They will be considered by the ECU and do form part of the Moray Council consideration (as consultee to the Section 36 process). DEVELOPMENT PLAN POLICIES National Planning Framework 4 NPF1 - Tackling the Climate Page 82
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NPF2 - Climate mitigation and adaptation NPF3 - Biodiversity NPF4 - Natural Places NPF5 - Soils NPF6 - Forestry, woodland and trees NPF7 - Historic assets and places NPF11 - Energy NPF13 - Sustainable transport NPF18 - Infrastructure first NPF20 - Blue and green infrastructure NPF22 - Flood risk NPF23 - Health and safety NPF25 - Community wealth building NPF29 - Rural development NPF30 - Tourism NPF33 – Minerals Moray Local Development Plan 2020 PP2 Sustainable Economic Growth PP3 Infrastructure and Services DP1 Development Principles DP5 Business and Industry DP9 Renewable Energy DP10 Minerals EP1 Natural Heritage Designation EP2 Biodiversity EP3 Special Landscape Areas OBSERVATIONS The proposed Craig Watch submission seeks consent under Section 36 of the 1989 Electricity Act and also a direction under Section 57(2) of the Town and Country Planning (Scotland) Act 1997 as amended for the development to be deemed to be granted. Officers have considered the proposal against National Planning Policy 4 (NPF4) and material considerations including Climate Change (Scotland) Act 2009, the Scottish Government Onshore Wind Policy Statement 2022, Scotland’s Energy Statement and the Onshore Wind Sector Deal for Scotland. It is noted that the Energy Strategy and Just Transition Plan is still at a draft stage. As Moray Council is a consultee for the Section 36 process, some matters within the Observations will be assessed differently had it been assessed as a planning application where Moray Council are the determining authority. Matters such as, for Page 83
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example, impact on aviation and the water environment will be informed by direct consultation with the Ministry of Defence or SEPA, as they will be consulted separately and will reply directly to the ECU. Similarly detailed consideration of ornithology will be best commented upon by consultees such as the RSPB and Nature Scot. The Council’s consideration of some matters will therefore be less involved where the ECU are consulting directly themselves on particular areas of interest best addressed by other specialist consultees. Legislative Context For consent under Section 36 of the Electricity Act 1989, the decision-making process specified under Section 25 and 37 (2) of The Town & Country Planning (Scotland) Act 1997, as amended is not a statutory requirement. However, the development plans (NPF4 and Moray Local Development Plan 2020 (MLDP)) and Moray Wind Energy Landscape Sensitivity Study 2023 would remain material considerations but does not take primacy as would be in the case of a planning application. It and all other material considerations are given the appropriate weighting in the consideration of the Section 36 consultation requests from the ECU. Whilst a Section 36 consent application, with a wide scope of consideration to review, NPF4 and the Moray Local Development Plan 2020 are mainly used to determine the majority of development taking place in Moray and remains highly relevant. Its policies are included for reference in the report, in general terms the policy position and criteria for renewable energy proposals and non- statutory guidance are relevant as a consideration in the Section 36 process and reflect local knowledge. Specifically, the onshore windfarm planning advice published by the Scottish Government (including advice about design and mitigation) have been taken into consideration. Relationship of proposal to national renewable energy policy/guidance National Planning Framework 4 (NPF4) which was adopted this year nationally effectively becomes the top tier development plan for use by all planning authorities or bodies making planning related decisions. The Climate Change (Scotland) Act 2009 places a duty on public bodies to act sustainability and meet emissions targets. They are Onshore Wind Sector Deal for Scotland, The Scottish Government’s Programme for Scotland 2020-21, The Environment Strategy for Scotland, February 2020, Climate Change (Emissions Reductions Targets) (Scotland) Act 2019, Scottish Government Climate Change Plan (2018), Scottish Government Onshore Wind Policy Statement 2017 and Scottish Energy Strategy (2017). These generally stress the need to reduce carbon emissions (for which wind energy will clearly play a part) but do qualify this with the need to protect landscapes, built and natural heritage, residents and other interests. The Scottish Government also publishes other advice for the determination of onshore wind energy projects. Page 84
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The applicants have submitted a Planning Statement and an updated statement in Nov 2024 which identifies the pertinent national policy and guidance in relation to the onshore wind energy proposals. Consideration has been given to these various policies and guidance documents. Of particular note, there is a recurring theme in favourable of renewable energy proposals within national guidance and NPF4 Climate Change and Principle of Renewable Energy Proposal (NPF4 Policy 1, 2, 11 and DP9 and Moray Council onshore windfarm guidance) NPF4 Policy 1 ‘Tackling the climate and nature crises’ states that significant weight must be attached to the global climate and nature crisis. It aims seeks to reduce emissions and supports development that addresses these goals. Development of renewable energy is one such development and therefore significant weight must be attached to its contribution toward emissions reductions. Similarly, Policy 2 ‘Climate Change and adaptation’ seeks to encourage, promote and facilitate development that minimises emissions and adapts to the current and future impacts of climate change. This can directly be linked to other wider objectives of NPF4 in creating sustainable places and the production and transmission of clean energy is part of the spatial strategy or the north of Scotland. Policy 11 ‘Energy’ states that project design and mitigation will demonstrate how the various impacts are addressed and these are listed in section e) of the policy. One within section e) being significant landscape and visual impacts, recognising that such impacts are to be expected for some forms of renewable energy. Where impacts are localised and/ or appropriate design mitigation has been applied, they will generally be considered to be acceptable. This goes beyond the comparable MLDP policy DP9 by implying that under certain circumstances, even significant landscape impacts are to be accepted. MLDP Policy DP9 Renewable Energy (informed by Moray Councils - Moray Wind Energy Landscape Sensitivity Study 2023) states that all renewable energy proposals will be considered favourably where they meet criteria identified in policy. DP9a)i) where proposals should be compliant with policies to safeguard and enhance the built and natural environment, while DP9a)iii) gives a list of impacts that must be avoided to prevent an overall unacceptable significant adverse impact occurring. While many of these are addressed or can be addressed via condition one of these states that unacceptable significant adverse landscape and visual impacts must be avoided to be considered favourably. This element specifically departs from the position present in NPF4 Policy 11. In this instance taking the instruction from the Chief Planners letter the NPF4 position must take precedence and therefore the greater tolerance to significant impacts must be applied. At 200m in height the proposed turbines exceed the height, even within an Areas with ‘Potential for Wind Farm Development’ the proposed turbines exceed the maximum height permissible in local guidance. The landscape and visual impact implications are discussed below. Page 85
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Moray Wind Energy Landscape Sensitivity Study (LSS) 2023 and LVIA review. The LSS 2023 is a material consideration for development management purposes and highlights that there is very limited scope to accommodate further large-scale wind turbine developments in Moray in landscape and visual terms. The proposed development is located within Assessment Unit (AU) 14 Open Uplands with Settled Glens, as defined in the LSS. This landscape extends across the lower rounded hills which form the eastern boundary of Moray and includes the elevated shallow bow of the Cabrach, contained by an arc of hills and the sparsely settled upper reaches of the Deveron which flows through a narrow glen. AU14 is assessed as having a High sensitivity to turbines over 150m. Constraints and guidance for development in this AU include: • Potential sequential and simultaneous views of multiple developments along the skyline around the 360-degree bowl of the Cabrach seen from the A941. • Cumulative effects on views from the adjacent smaller scale and settled Narrow Farmed Valleys (AU7), the Deveron valley within neighbouring Aberdeenshire and on the setting of landmark historic features such as Auchindoun Castle. • Visual confusion and an absence of rationale which could occur between large turbines sited in simple and more expansive upland areas and the same size of turbine also located within the more settled valleys and basins of this landscape. • Turbines should be sited to avoid significant impact on valued features, including on views from Auchindoun Castle. • Visible aviation lighting on turbines would likely to increase the duration and nature of effects given the dark skies which are characteristic of this sparsely settled landscape and surrounding area. The Council’s appointed Landscape Adviser undertook a detailed review of the original proposal against the Moray Landscape Capacity Study [since superseded by LSS]. The assessment concluded that: • The siting of this proposal within a relatively little visited upland area and the screening by higher hills to the west, reduces the extent of visibility and degree of visual intrusion likely to be experienced from the more well-settled parts of Moray. • The proposal would have some significant adverse landscape and visual effects, including some non-compliance with the key constraints identified in the Landscape Capacity Study [superseded by LSS]. It adjoins the consented Garbet Wind Farm and although the turbines are a similar size, they are not compatible in their siting and relationship to landform resulting in them being more prominent in some key views. • The most significant areas of close visibility will occur from the summits and upper slopes of Ben Rinnes and nearby hills popular with walkers, from the Upper Deveron valley and from Auchindoun Castle. Page 86
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• Significant adverse effects would occur on views from 14 of the 19 representative viewpoints appraised including from Ben Rinnes, Meikle Conval, Little Conval, the Upper Deveron Valley, Auchindoun Castle and from the north-east, particularly from the A920 as it approaches Moray from Aberdeenshire. • Significant and adverse direct and indirect effects would occur on part of the LCT, whilst indirect significant adverse effects would also occur on the Narrow Farmed Valleys LCT (LCT13 [superseded by AU7]). • The proposed development would have significant adverse effects on landscape character and on views when seen together with the operational Dorenell and/or Clashindarroch Wind Farms and the recently consented Garbet Wind Farm. • The site and surrounding area have notably dark skies and the conclusions of the LVIA on the significant adverse effects of visible aviation lighting is supported, particularly in relation to views from the popularly accessed hills, including Ben Rinnes, where small numbers of walkers may choose to stay on the hill to view the night sky. There will be cumulative effects with the lighting of five turbines within the adjacent consented Garbet Wind Farm, which has a condition the review the lighting strategy as technical solutions to radar activated lighting becomes available. • The proposed development would be principally seen together and sequentially with the operational Dorenell and Clashindarroch Wind Farms and would be likely to result in significant combined cumulative effects from Ben Rinnes and nearby hills, the A941 and the Upper Deveron valley. The consented Garbet Wind Farm and application-stage Clashindarroch Extension Wind Farm would intensify and extend these significant effects. • Significant adverse effects are likely to occur on Newton of Glenmarkie and Easter/Wester Braetown, where the proposed development would be visible from principal elevations of the properties. Combined effects in conjunction with the consented Garbet Wind Farm could be considered overbearing in nature and visible aviation lighting would extend the duration of significant effects on these properties. • An objection on landscape and visual grounds should be raised, however this objection could be lifted should the scheme be redesigned to omit Turbines 1 and 2 and reduced the height of Turbines 3 and 4 to avoid visibility from Auchindoun Castle. Omission of Turbines 1 and 2 would additionally be likely to mitigate effects of the wind farm from the A941 and hills near Dufftown. Following submission of the Supplementary Environmental Information (SEI) on November 2024, the Landscape Adviser undertook a detailed review of the revised proposal. This assessment concluded that: • The revisions to the proposal would result in no change to the landscape and visual effects of the wind farm that were highlighted in their 2022 appraisal. • The view reached in the SEI (paragraph 3.9.4) was agreed, acknowledging that the removal of Turbine 9 and adjustments to hub height would have no material effect on the level of landscape and visual effects of the proposal. • In respect of cultural heritage effects on Auchindoun Castle, effects on views experienced by highly sensitive receptors from this important visitor Page 87
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destination and on the perception of its landscape setting would still be significantly and adversely affected by the revised scheme. • The proposal does not comply with all of the key constraints identified in the LSS. • Omitting Turbines 1 and 2 and reducing the height of Turbines 3 and 4 to avoid visibility from Auchindoun Castle and, in respect of Turbines 1 and 2, likely to mitigate effects of the wind farm from the A941 and hills near Dufftown although significant adverse effects on the Deveron valley would remain. The proposed development will result in significant adverse landscape and visual effects, including cumulative, within Moray and in particular on views from Ben Rinnes, the Upper Deveron Valley and Auchindoun Castle. Given the very limited scope of mitigation proposed, the proposal is considered to be contrary to the LSS 2023. It should be noted that the above LVIA assessment forms part of a wider planning assessment, and the mitigation proposed was the subject of further consideration by officers. The above suggested mitigation was the starting point for current discussion about what level of mitigation would be required, and would have taken into account the wider national and local policies along side relevant planning history if windfarm development in Moray. The level of mitigation required may not have been precisely aligned to the landscape advisor suggestions above, but these discussions had not concluded at the time of writing this report. Water Supplies (DP1) Policy DP1 requires adequate protection of water resources and a Private Water Risk Assessment was also undertaken which concludes that no known private supplies should affected. Volume 2, Figure 11.2 shows that no private water abstraction takes place near the proposed new turbines or tracks. It is further noted that SEPA have commented on this matter also as separate consultee to the ECU. Impact on cultural heritage (NPF4 policy7 EP8 and EP10) NPF4 Policy 7 Historic assets and places and Policy EP8 Historic Environment seeks to protect historic and archaeological assets. EP10 Listed Buildings states that development proposals will be refused where they would have a detrimental effect on the character, integrity or setting of a listed building. Structures such as windfarms have the potential to affect the setting of listed buildings other cultural heritage assets some distance away. It is considered that the windfarm design has not adequately mitigated effects on Auchindoun Castle where the turbines the proposal is likely to incur significant adverse landscape and visual effects on views experienced by this highly sensitive receptor, a Scheduled Monument and important visitor destination. Further mitigation would be required to reduce its impact, particularly from proposed turbines T1 and T2. This discussion had not however been concluded, and the applicants were willing do discuss possible amendments to turbine heights. Access and traffic impacts (NPF4 policy 13 and DP1) Page 88
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The Proposed Development is located approximately 8 km to the southeast of Dufftown and would be accessed directly from the A941 which has varying widths and, in places, narrow verges. Abnormal loads associated with the wind turbines will access the Site from the Port of Dundee. Loads will travel from the Port of Dundee to the Site via the A90, A96, A920 and A941.The A941 road will be used for both the Abnormal Indivisible Loads (Wind Turbine Components-AiDs) delivery and general construction purposes. The proposed turbines would be situated in close proximity the existing Dorenell Wind Farm. The Dorenell Wind Farm access is located approximately 2.2 km towards northwest of the proposed Craig Watch Wind Farm access. As a part of the Dorenell Wind Farm development project, the section of A941 from the A920 to the Dorenell Wind Farm site access was upgraded to cater for the delivery of the turbine components and other construction vehicle movements. However, the proposed turbines are larger than the existing turbines at Dorenell Wind Farm. Therefore the works required to facilitate the delivery of the turbine components would extend beyond the areas previously required to the deliver the existing turbines at Dorenell Wind Farm. The submitted documents include within the EIA, an assessment of the impact of the development and a detailed route assessment for the delivery of the turbine components. The Transportation team submitted detailed comments/queries in relation to the original EIA Report and the route assessment submitted in 2022, but these matters were not addressed until Nov 2024 Supplementary Environmental Information (SEI) submission. Prior to seeking a revised consultation response from Transportation, the planning officer sought to review if the SEI covering a variety of issues required Transportation additional/updated information beyond that commented upon in 2022. This review had no been concluded at the time of writing this report, such that the Transportation Section could not conclude their consultation and potentially volunteer appropriate conditions. If approved a number of conditions from the Transportation Section would likely be sought, including wear and tear agreement (including a bond), conclusion of a Construction Traffic Management Plan and abnormal loads deliveries. Paths and access (NPF Policy 13, PP3, DP1 and DP9) NPF4 policy 13 Policy Sustainable transport, DP1 Developer Requirements and PP3 Infrastructure & Services require new development public access through new developments to be enhanced or protected. Policy DP9 Renewable Energy seeks to ensure that wind energy proposals do not impact upon public access to upland areas. There appears to be very limited public access onto the site from the Moray side, with little evidence that Garbet Hill is accessed routinely from the southern approach. There is therefore limited opportunity to enhance access through this particular site, beyond what the new ttacks would provide. Natural environment including biodiversity (NPF4-policy 1, 2, 3, 5 EP1, EP2 and EP12) NPF4 policies 1 ‘Tackling the climate and nature crises’ and 2 ‘Climate mitigation and adaption’ as a wider perspective on the natural environment see tackling climate change via carbon reduction, as one of the major priorities. Policy 1 says avoiding the Page 89
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ongoing nature crises as being hand in hand with climate change, and to address both NPF sees development of renewable energy as part of that solution. Policy 3 Biodiversity however seeks to enhance biodiversity so not withstanding allowances made for energy generation in upland areas elsewhere in NPF4 efforts should still be made to enhance the local biodiversity as a result of development. Of note, Naturescot and RSPB will respond separately on aspect such as ornithology and Groundwater dependent terrestrial ecosystems (GWDTE). In MLDP EP1 Natural Heritage Designations it is noted that the site has few environmental designations but clearly provides a substantial area of upland habitat. Policy EP12 Management and Enhancement of the Water Environment, and EP2 Biodiversity seeks to ensure proposals do not have an adverse effect on protected species. The EIA Report and SEI updates identify a range if mitigation measures and enhancements, which would be conditioned for implementation in the event the Section 36 was consented. Impact on soil resources/minerals (NPF4 Policy 5 and EP16) NPF4 Policy 5 does state that while generally carbon rich soils should be avoided by development, c)ii. within the policy states generation of energy from renewable sources that optimises the contribution of the area to greenhouse gas emissions reductions targets may be accepted in peatland. Policy EP16 Geodiversity and Soil Resources states that for large scale (over 20MW) renewable energy proposals, development will only be permitted where it has been demonstrated that unnecessary disturbance of soils, geological interests, peat and any associated vegetation is avoided. Evidence of the adoption of best practice in the movement, storage, management and reinstatement of soils must be submitted along with any relevant planning application, including, if necessary, measures to prevent the spread of invasive non-native species. The formation of many new tracks, proposed formation of the turbine and crane pads, and upgrading of existing tracks have led to permission being sought for a borrow pit in Aberdeenshire. It should be noted that the commercial forestry operations covering most of the peat areas too has seen significant historic disruption to the landscape. It is not considered that the proposals depart from national or local policy in this regard. Impact upon Woodland (NPF4 policy 6 and EP7) NPF Policy 6 ‘Forestry, woodland and trees’ seeks to protect and expand forests, woodland and trees and MLDP Policy EP7 Forestry, Woodlands and Trees is relevant to the issue of any felling that may take place. Forestry felling within Moray is proposed, with more felling to occur within the Aberdeenshire side of the development. A total of 81.53 ha of woodland requires to be felled to facilitate the proposed development. 54.83 ha of this is temporary felling and will be replanted in situ following the completion of the construction phase. The remaining 26.70 ha of felling is permanent and compensatory planting will be provided on-site, subject to the agreement of landowners. Page 90
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The compensatory planting will need to be carefully sited, on-site or within Moray and be subject to the highest standards of design. Moray Council and Scottish Forestry should be consulted on the location and composition of this. The Council’s emerging Woodland and Forestry Strategy (Consultation Draft 2024) should be taken into account in the selection of a suitable planting site. Subject to a condition requiring the provision of compensatory planting (26.70 ha), to be agreed with Scottish Forestry and Moray Council and provided on-site or within Moray, the proposal complies with NPF4 Policy 6 and MLDP Policy EP7. It is noted that Scottish Forestry will be separately consulted on the Section 36 and will inform the ECU on this matter also. If the windfarm were to be approved, conditions about compensatory planting should be attached. Socio Economics (NPF4 – 11, 25 and DP9) NPF4 Policies 11 states that proposals will only be supported where they maximise net economic impact, including local and community socio economic benefits. Policy 25 states developments that contribute towards local/regional community wealth building strategies and are consistent with local economic priorities will be supported. These NPF4 policies are new and post-date the applicants’ submissions. The relevant chapter of the EIA Report seeks to address the economic implications or opportunities arising from the proposed development. The applicant within the submitted Supplementary Environmental Information also sought to update on the implications of NPF4 which came into force after the initial EIA report was prepared. Policy DP9 Renewable Energy states that the contribution proposals make towards meeting renewable energy generation targets, its effect on greenhouse gas emissions and net economic impact, including socio-economic benefits such as employment is a consideration. Similarly this must strike a balance with protecting the natural and built environment. Noting the economic activity the proposals would generate during construction, in terms of any concern over the impact it may have upon recreation and tourism it is worth noting the recent decision of the Scottish Government in relation to Pauls Hill II windfarm. The Reporter concluded that notwithstanding the proximity of the development to specific tourist accommodation, more generally there is little evidence to suggest that wind energy proposals harm or deter tourism. Given that Moray Council has advanced its own guidance relating to NPF4 community wealth building and the need under policy 11 Energy to demonstrate that the development maximises the net economic impact, in the conclusion below it is raised that the applications have to do more to demonstrate that local benefits would be achieved. Arrangements for decommissioning and site restoration (Policy 11 and DP9) Development of this nature has a limited lifespan and permission is sought for a 33-year period and if permitted it would fall to the ECU to determine the period of energy production commencement. The EIA Report contains information about decommissioning and site reinstatement, which would see the preparation of a restoration scheme prior to decommissioning. The ECU would condition appropriate decommissioning requirement or provision of a bond to ensure that the development is in place only for the operational lifetime of the equipment and the site is appropriately Page 91
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restored at the end of that period, the proposal is considered to comply with the restoration requirements of Policy DP9. CONCLUSION The below recommendation follows a balanced assessment of the above-mentioned legislation and considerations. Of note the significant support for onshore renewable energy (as reflected in the planning history of wind energy proposals in Moray) is taken into consideration. The assessment also considers the collective impact of the development from both within Moray and Aberdeenshire, and the various impacts and effects cross-boundary have been reviewed. Recommended decision to Committee It is recommended that Moray Council responds to the Energy Consents Unit raising objections to the proposed windfarm at Craig Watch on the following grounds, albeit acknowledging that some of these matters were the subject of ongoing discussion with the applicant. 1. At the time of consideration Noise matters (including cumulative noise matters with other windfarms proposals/consented and/or built) have not been satisfactorily concluded so as to ensure an unacceptable noise impact would not occur to noise sensitive properties. Moray Council Environmental Health Section is not therefore in a position to offer conditions that would ensure noise can be satisfactorily controlled. 2. Transportation matters raised previously in 2022 have resulted in the submission of Supplementary Environmental Information (SEI) in November 2024 inclusive of updates and additional information around delivery of wind farm components. At the time of consideration, planning officers had yet to confirm with Transportation colleagues which SEI matters had been adequately addressed from their initial response, and if subsequent changes had occurred elsewhere (such as other windfarm consents, road improvements) that effected their initial response. 3. Notwithstanding ongoing discussions regarding possible design mitigation at the time of consideration the proposal as amended in November 2024 would result in unacceptable significant adverse landscape and visual effects, including cumulative effects. These include the avoidable heritage impact upon Auchindoun Castle. Whilst not specific grounds for objection Moray Council would raise the following comments a) Whilst accepted that the proposed development will have a moderate beneficial effect on the economy of Moray, it is considered that insufficient information has been provided to demonstrate that the development maximises the net economic impact. The developers should prepare and submit a Net Economic Impact Maximisation Plan (NEIMP) which address community wealth building (suggest the use Moray Local Development Plan - Community Wealth Building Planning Guidance and Moray Councils Development Plan Guidance – Maximising Net Economic Impact NPF4 Policy 11 c)), community benefit and Page 92
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other socio-economic benefits which the proposal will deliver. Should the proposal be supported, the provision of a NEIMP should be conditioned. b) The requested 100m micro-siting allowance could potentially increase visual intrusion in key views and therefore any micro-siting of the turbines should only be agreed on the basis of detailed ZTV and wireline visualisations being produced to demonstrate that no exacerbation of effect occurs to currently predicted views from key locations including Auchindoun Castle, the upper Deveron valley and Ben Rinnes. Consider a restriction upon micro-siting such that it is permitted only with the written approval of the relevant Planning Authority and Ministry of Defence. c) Moray Council’s emerging Woodland and Forestry Strategy (Consultation Draft 2024) should be taken into account in the selection of a suitable compensatory woodland planting site. Page 93
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Plans, drawings and other material submitted to the local authority are protected by the Copyright, Designs and Patents Act 1988 (section 47). You may only use material which is downloaded and/ or printed for consultation purposes, to compare current applications with previous schemes and to check whether developments have been completed in accordance with approved plans. Further copies must not be made without the prior permission of the copyright owner. Maps shown in the Planning Committee Report can only be used for the purposes of the Planning Committee. Any other use risks infringing Crown Copyright and may lead to prosecution or civil proceedings. Maps produced within this Planning Committee Report can only be reproduced with the express permission of the Moray Council and other Copyright holders. This permission must be granted in advance. PLANNING APPLICATION COMMITTEE SITE PLAN Site Address: Craig Watch Wind Farm Planning Application Ref Number: 22/00913/s36 Location Plan Applicant Name: Craig Watch Wind Farm Limited Page 94
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Site layout 16/ Page 95
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Site layout 16/01664/APP Page 96
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Indicative Anemometer Mast Page 98
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View north east towards Aberdeenshire Page 99
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View south from windfarm towards Bridgend Page 100
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View west from site towards Dorenell Page 101
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Report to: Planning and Regulatory Services Committee Meeting Date: 27 May 2025 Report by: Depute Chief Executive (Economy, Environment and Finance) Report No: EDG0013/25 Author: Andrew Miller, Acting Principal Planning Officer Contact Email: andrew.miller@moray.gov.uk Subject: 24/00486/S36 Consultation on Section 36 application to erect a wind farm of 8 turbines 149.9 metres high, battery storage facility and associated infrastructure at Kellas Drum Wind Farm, Kellas 1. PURPOSE ☒ For Decision ☐ For Information 1.1 The purpose of this report is to consider the consultation received from the Energy Consents Unit (ECU) of the Scottish Government in relation to an Electricity Act 1989 Section 36 application (which includes deemed planning permission) for a new windfarm. This Section of the Electricity Act relates to consenting onshore electricity generation. 1.2 This report is submitted to Committee in terms of Section III (E) (1) of the Council's Scheme of Administration relating to exercising the functions of the Council as Planning Authority. 2. SUMMARY 2.1 This report considers the consultation request from the Scottish Government for a proposed wind farm at Kellas, comprising 8 turbines 149.9 metres high, battery storage and associated infrastructure. It recommends the Council raise no objection to the consultation response, subject to a suite of recommended planning conditions to mitigate the impact of the wind farm on local infrastructure and the amenity of the surrounding area. 3. RECOMMENDATIONS 3.1 It is recommended that Committee: i) consider and note the contents of the report, as set out in Appendix 1, including the conclusions about the planning and wider merits of the Page 103
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development (see Section 5 below) where taking into account National Planning Framework 4, Moray Local Development Plan 2020 and all other material considerations, it is recommended that Moray Council does not object to the Section 36 application; and ii) agree to respond to the consultation from the Energy Consents Unit, raising no objection to the currently proposed development on the basis of the recommendations set out in Appendix 1 and conditions in Appendix 2. 3.2 It also falls to the Committee to either wholly object to raise no objection to the Section 36 consultation, but officers recommend the approach suggested in 2.1 (ii) above. Author Name: Andrew Miller Job Title: Acting Principal Planning Officer 4. BACKGROUND AND CONTEXT 4.1 As the proposal seeks consent for a windfarm with associated battery energy storage scheme with an output that will exceed 50MW (in this case 68.4MW), the proposal is to be determined by the ECU within the Scottish Government. Responsibility for consultation with statutory consultees, relevant local authorities, receipt of representations and determination lies with the ECU. In these circumstances the role of the Council, as planning authority, is as a consultee rather than being the determining authority. The ECU has invited the Council to comment on the proposed variation to the wind farm development within a specific timeframe along with other consultees. Where the Council objects to a Section 36 consultation, this will usually trigger a Public Local Inquiry (PLI). 4.2 This consultation was reported to this Committee on 11 March 2025, (para 8 of the minute refers) however the applicant had written to the Council confirming they were willing to reduce the height of all turbines to 149.9 metres, and the item was subsequently withdrawn from the agenda. Following this, the applicant was not willing to agree an extension to the period for the consultation response to be submitted to the ECU. The period for consultation for the Council expired on 17 March 2025, and in order to ensure the Council’s right to a PLI was held, a holding objection was submitted subject to ratification by this Committee. 4.3 Following amendments to the scheme, the Council were re-consulted on the scheme on 3 April 2025, with a period of 30 days to respond. At the time of writing this report an extension of 21 days has been sought to ensure a response can be provided in line with this committee date. 5. PROPOSALS 5.1 This application is described as a wind farm of 8 turbines 149.9 metres in height and battery energy storage scheme with associated infrastructure, as shown in Appendix 3. This site incorporates a site with a live planning permission (ref: 13/00615/EIA) for the erection of four wind turbines (max height 110 metres). That consent was approved by this Committee at its meeting of 11 November 2014 (para 3 of the minute refers). Whilst the planning permission is described as 8 turbines, it was limited to 4 turbines by condition. Page 104
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5.2 The recommendation by Officers is to raise no objection, subject to conditions as outlined in Appendix 2. While the turbines may seem large compared to those to in place nearby, and still result in cumulative concerns in the surrounding area, the history of previous appeals and Public Local Inquiries (PLI) show the Council and community concerns over landscape and visual impact and cumulative effects have been given limited weight by decision makers. In the Scottish Government determinations reached, these issues are viewed in the wider context of national planning policies and renewable targets and have not been supported as grounds for refusal. For context, no refusal of, or objection to, a large wind energy development in Moray on landscape grounds has been supported by the Scottish Government in over 20 years. 6. SUMMARY OF IMPLICATIONS 6.1 The table below shows whether risks and implications apply if the recommendations are agreed: SUBJECT YES NO Corporate Plan and 10 Year Plan (Local Outcome Improvement Plan) x Policy and Legal x Financial x Risk x Staffing x Best Value and Transformation x Property x Information Communications Technology/Digital x Equalities. Social Inclusion and Economic Impact x Climate Change and Biodiversity Impact x 6.2 Corporate Plan and 10 Year Plan (Local Outcomes Improvement Plan (LOIP)) Improved Collaborative Leadership, as part of continuous improvement through Best Value, will better enable the Council to fulfil the ambitions set out in its strategic plans. a) Links to Council Corporate Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following Council Plan strategic priorities: ☐ Tackle Poverty and Inequality. ☒ Build Stronger Greener Vibrant Economy. ☐ Build Thriving, resilient, empowered Communities. b) Links to Local Outcomes Improvement Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following Local Outcomes Improvement Plan priorities: ☒ Developing a diverse, inclusive, and sustainable economy ☐ Building a better future for our children and young people in Moray. ☐ Empowering and connecting communities. ☐ Improving wellbeing of our population Page 105
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6.3 Policy and Legal The application is made for consent under section 36 of the Electricity Act 1989 to Scottish Government. If consented, planning permission is deemed to be granted for the development. For planning purposes proposals require to be determined in accordance with the development plan unless material considerations indicate otherwise. If granted by Scottish Government, the responsibility for the discharge of (planning) conditions attached to the formal decision to grant consent will pass to the Council. 6.4 Financial If this committee is minded to object to the proposal, a Public Local Inquiry may be arranged by Scottish Government. The Council would be expected to attend and participate in the Inquiry process, including any pre-Inquiry arrangements with resultant costs, including officer, legal representation and consultant costs where required/appropriate. A substantive fee (£75,000) was submitted to the Council (as its share of the ECU fee) and the cost of any PLI would likely use up the majority of the sum. Whilst support to Development Management would be provided by Legal Services it is likely in the event of a PLI that additional legal representation, possibly including Counsel, would be needed to assist in the preparation and presentation of the Council’s case. At Inquiry, the applicant may seek an award of costs against the Council if it is considered the Council has acted unreasonably. 6.5 Risk If the Council decide not to respond within the agreed period it would be open to Scottish Government to proceed and determine the application. If deciding to object, the outcome of any Public Local Inquiry held to consider this proposed development is uncertain: it might uphold and support the Council’s decision to object, but equally the objection could be dismissed and consent granted for the development. 6.6 Staffing In the event of a Public Local Inquiry, staff time and resources (potentially Elected Members, planning and legal officers) will be required for preparation and attendance at any Inquiry. 6.7 Best Value and Transformation None. 6.8 Property None. 6.9 Information Communications/Technology/Digital None. 6.10 Equalities, Social Inclusion and Economic Impact None. Page 106
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6.11 Climate Change and Biodiversity Impacts As detailed in the Appendix 1 report, the proposed varied development has the potential to make a considerable contribution toward the generation of low carbon based electricity generation so significant weight is attached to this element. Switching to renewable sources of energy is acknowledged to make a large contribution toward climate change goals. Biodiversity and other environmental impacts are sought to be mitigated by those measures proposed within the Environmental Impact Assessment Report as well as the suggested mitigation as shown in the recommendation conditions in Appendix 2. 7. CONSULTATION 7.1 This report has been prepared in consultation with the Depute Chief Executive (Economy, Environment and Finance), the Acting Head of Economic Growth and Development, the Legal Services Manager, the Acting Development Management and Building Standards Manager, the Equal Opportunities Officer, the Strategic Planning and Development Manager, and the Democratic Services Manager and any comments made have been incorporated into the report. 8. BACKGROUND PAPERS 8.1 Appendix 1 and 2 attached Page 107
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APPENDIX 1 MORAY COUNCIL Response to consultation issued by Scottish Ministers THE ELECTRICITY ACT 1989 – SECTION 36 ELECTRICITY (APPLICATIONS FOR CONSENT) REGUALTIONS 1990 CONSTRUCT A WIND FARM COMPRISING UP TO 8 TURBINES TO A MAXIMUM TIP HEIGHT OF 149.9M, ASSOCIATED TRACKS, SUBSTATION & CONTROL BUILDING, METEOROLOGICAL MAST, 2 BORROW PITS, TEMPORARY CONSTRUCTION COMPOUND AND 30MW ENERGY STORAGE COMPOUND AT KELLAS DRUM, DALLAS, MORAY (MORAY COUNCIL REF: 24/00486/S36, ECU REF: ECU00005054) 1. INTRODUCTION 1.1. On 19 March 2024 Kellas Drum Limited submitted an application under section 36 of the Electricity Act 1989 requesting Scottish Ministers’ grant consent to construct and operate a wind farm of up to 8 turbines and battery storage at Kellas located approximately 11 km southwest of Elgin and 4.5km east of Dallas. 1.2. This application will be determined by Scottish Ministers via the Scottish Government’s Energy Consents Unit (ECU), and not by Moray Council as the local planning authority. 1.3. In determining the Section 36 application, the views of Moray Council, as local planning authority are being sought by the ECU. The Council’s role in the process is therefore as a statutory consultee. In responding with comments, the Council has a right to object or not to the application, as well as commenting on the conditioning of the consent. If the Council objects to the proposed development and the objection is not later withdrawn, or the areas of objection cannot be addressed by conditions then ECU/Scottish Ministers are likely to convene a Public Local Inquiry. 1.4. Prior to determination, the ECU are responsible for affording publicity of the proposal and taking account of all representations received, whether from the general public or interested parties, and for consulting with agencies and organisations (consultees). Internal consultation with relevant services/sections within the Council has been undertaken in order to provide a comprehensive response in responding to the consultation. 2. SITE HISTORY 2.1. Planning permission was granted under consent reference 13/00615/EIA by the Council’s Planning and Regulatory Services Committee for the erection of eight wind turbines of a maximum tip height of 110 metres (restricted to four turbines Page 108
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by condition) on 12 November 2014. This consent was accompanied by an Environmental Impact Assessment and was conditioned to four turbines to minimise the landscape and visual impact of the wind farm, with a particular emphasis on reducing visual impacts on the B9010. This consent has been implemented, albeit no turbines have been erected, and thus the consent has not lapsed. 3. THE SITE • The proposal would be located on the Kellas Estate approximately 11 km south west of Elgin and 4.5 km east of Dallas. • The site is on the northeastern slopes of the hill of Mill Buie (342 m high) and is predominantly a mixture of heath and with areas of blanket bog, with a number of water courses in the northern part of the application site. • The site includes land on the southern slopes of the River Lossie valley, south of Kellas and west of Glenlatterach Reservoir. • Electricity pylons run through the site on an east-west axis between Cairn Uish and Blackhillock Substations. • The proposed Beauly to Peterhead 400kV line by Scottish and Southern Electricity Networks Transmission would be to either the north should this proposal be approved and development, or south should this proposal be refused/not developed. At the time of writing this report there is no formal application for this and these routes are the preferred option of SSEN. • The closest wind farms to this proposal are the operational Rothes I and II wind farms which are to the immediate south of the site. Consent is also in place for further expansion beyond this (Rothes III wind farm). The operational Berryburn and Paul’s Hill I wind farms lie approximately 10 km and 11 km to the south west of this site. • The site is not within any landscape designations, with the closest Special Landscape Areas being: o The Pluscarden Valley approx. 4.5 km to the north o The Spey Valley approx. 7.5km to the south; o Quarrelwood approx. 9.8 km to the north. • The Cairngorms National Park is 19km south west of this site. • There are no designated heritage assets within the site, though the category A listed Kellas House and B listed Kellas House Gate Lodge lie 250m north of the proposed development site, approx. 1.5 km from the nearest turbine forming part of this proposal. • There are no ecology designations within the site, however the following statutory designations - Sites of Special Scientific Interest (SSSI) - are within 5km of the site boundary: Designation Distance to Site Boundary (closest point) Qualifying Interests Kellas Oakwood SSSI 325 metres north west Upland oak woodland Buinach and Glenlatterach SSSI Immediate east Lowland dry heath Upland birch woodland Upland oak woodland Gull Nest SSSI 3 km south west Blanket bog Page 109
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4. PROPOSAL • The proposed Kellas Drum Wind Farm as currently presented consists of 8 wind turbines up to a maximum 149.9 metres to tip height that would have an indicative generation capacity of 38.4 MW. • A Battery Energy Storage System (BESS) is proposed within the site with a capacity of 30 MW. • An anemometry met mast 125 metres height is also proposed for siting alongside the proposed wind farm. • Associated infrastructure would comprise the following: o 3.5 km of upgraded access tracks o 4.97 km of new access track (4.7 km cut, and 0.27 km floated) o Twelve watercourse crossings o Turbine foundations and crane hardstandings for each turbine o Underground cabling o Substation compound with substation, control building and ancillary equipment o Battery storage compound o Two borrow pits o Temporary construction compound • Access to the site would be via an upgraded access from the B9010 to the immediate south of Kellas House. • Turbines would be delivered from the port of choice (likely Inverness) via the A96 trunk road, exiting the A96 at Newton to the west of Elgin then: o South towards Miltonduff on the C26E road; o East towards Elgin on the C3E Elgin to Pluscarden Road; then o South on the B9010 from Pittendreich to the Site Access at Kellas House. • An alternative delivery route has been identified requiring turbines to travel from Inverness to Barmuckity (east of Elgin), turn back through Elgin to Pluscarden Road, then south on the B9010 at Pittendreich. • All other construction traffic will utilise the B9010, including non-abnormal HGV movements between the site access and Elgin to access the site. • Consent is sought for a temporary operational period of 35 years, after which the proposal would be decommissioned should there be no further consents to extend the period of operation. • The area subject to this proposal is not covered by any international, national, regional or local landscape, built environment or nature conservation designations, but there are several archaeological assets within the site. Groundwater dependent Terrestrial Ecosystems (GWDTE’s) and areas of peat are present on site. • The proposal was amended in April 2025 to reduce the height of the turbines to 149.9 metres, which were initially proposed as 6 no. 185 metre tall and 2 no. 175 metre tall turbines. 5. ADVERTISEMENTS Page 110
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• Advertisements will have been carried out by the ECU who is the determining authority for the application. 6. CONSULTATIONS 6.1. As noted above, consultations are limited to Council services. Consultations with external bodies such as SEPA are undertaken directly by the Energy Consents Unit. Internal consultation responses from Council departments are summarised as follows: 6.2. Strategic Planning and Development - Additional information was provided in April 2025 which reduced the height of the turbines to 149.9m, removing the need for aviation lighting, and proposed additional landscape and biodiversity enhancement within the Lossie valley. These steps taken to mitigate impacts are welcomed. For clarity, whilst these steps are noted, Strategic Planning & Development have significant concerns but do not object to the proposed development. 6.3. Whilst the benefits of the proposal in terms of renewable energy generation are fully recognised, the proposed development will result in major, significant adverse landscape and visual effects, including cumulative. As limited design mitigation has been applied and the development does not maximise net economic impact, the proposal is considered to be contrary to the NPF4 Policies 11, 25 & 29, MLDP Policies DP1 & DP9 and the LSS 2023. 6.4. Should the recommendation be to support the proposal, an appropriate planning condition must be applied to secure an CWBP and monitoring statement to be agreed with Strategic Planning & Development and the Planning Authority. 6.5. An updated OHMBEP has been submitted in support of the application which proposes additional biodiversity enhancements, including riparian broad- leaved woodland planting along the steeper parts of the River Lossie, in compliance with NPF4 Policy 3 and MLDP Policy EP2. 6.6. A total of 3.25 ha of woodland requires to be felled to facilitate the proposed development, which will require compensatory planting, to be agreed with Scottish Forestry and Moray Council. 6.7. Transportation – Following discussions with applicant and formation of revised abnormal load delivery routes, no objections subject to conditions requiring further information and mitigation in respect of construction access (including abnormal load deliveries), wear and tear agreements and upgrades to the local road network to accommodate abnormal/heavy deliveries. 6.8. Environmental Health – Suite of conditions recommended in respect of noise, vibration and shadow flicker from the proposal, including further assessment of the proposed Battery Energy Storage System, independent monitoring of noise during first year of operation and limits to construction hours. 6.9. Private Water Supplies – Holding response yet to be resolved. 6.10. Moray Flood Risk Management – No objections. Page 111
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6.11. Aberdeenshire Archaeology – Having reviewed the EIA Report submitted with the application, request that conditions be applied ensuring the mitigation measures specified in the Cultural Heritage chapter be implemented, namely requiring an archaeological written scheme of investigation (WSI) to be undertaken along with protective fencing to be provide protection for any historic environment features to be protected during the course of works. 7. REPRESENTATIONS Third party representations are submitted to the ECU for their consideration in dealing with the S36 application. 8. RELEVANT POLICIES AND GUIDANCE National Planning Framework 4 Policy 1 - Tackling the Climate Policy 2 - Climate mitigation and adaptation Policy 3 - Biodiversity Policy 4 - Natural Places Policy 5 - Soils Policy 6 - Forestry, woodland and trees Policy 7 - Historic assets and places Policy 11 - Energy Policy 13 - Sustainable transport Policy 18 - Infrastructure first Policy 22 - Flood risk Policy 23 - Health and safety Policy 25 - Community wealth building Policy 33 - Minerals Moray Local Development Plan 2020 PP2 Sustainable Economic Growth PP3 Infrastructure and Services DP1 Development Principles DP9 Renewable Energy DP10 Minerals EP1 Natural Heritage Designation EP2 Biodiversity EP3 Special Landscape Areas EP7 Forestry Woodland and Trees EP8 Historic Environment EP12 Management and Enhancement Water EP13 Foul Drainage EP14 Pollution Contamination Hazards EP15 MOD Safeguarding EP16 Geodiversity and Soil Resources Page 112
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Moray Wind Energy Landscape Sensitivity Study 2023 9. OBSERVATIONS 9.1. The proposal seeks consent under Section 36 of the 1989 Electricity Act andalso a direction under Section 57(2) of the Town and Country Planning (Scotland) Act 1997 as amended for the development to be deemed to be granted. 9.2. As Moray Council is a consultee for the Section 36 process, some matters within the Observations will be assessed differently had it been assessed as a planning application where Moray Council are the determining authority. Matters such as, for example, impacts on aviation and the water environment will be informed by direct consultation with the Ministry of Defence or SEPA, as they will be consulted separately and will reply directly to the ECU. Similarly detailed consideration of ornithology will be best commented upon by consultees such as the RSPB and NatureScot (formerly SNH). The Council’s consideration of some matters will therefore be less involved where the ECU are consulting directly themselves on particular areas of interest best addressed by other specialist consultees. 9.3. Officers have considered the proposal against National Planning Policy 4 (NPF), the Moray Local Development Plan 2020 (MLDP) and material considerations including the Climate Change (Scotland) Act 2009, the Scottish Government Onshore Wind Policy Statement 2022, and Scotland’s Energy Statement. It is noted that the Energy Strategy and Just Transition Plan is still at a draft stage. It should also be noted that as the application is being considered under the Electricity Act 1989, rather than the Town and Country Planning (Scotland) Act 1997, the development plan does have primacy under Section 25 of the 1997 Act like a planning application would. 9.4. Environmental Impact Assessment This proposal was considered to be an EIA development under The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 by the applicant who submitted a request for a Scoping Opinion to the ECU on 11 February 2022. As part of this process there is a statutory requirement to consult with the planning authority. Moray Council officers responded to this consultation via delegated powers with queries on access, drainage, noise and tree loss/compensatory planting on 30 August 2022. The ECU adopted a Scoping Opinion on 8 September 2022 which has been used to inform the EIA Report that accompanies this proposal. 9.5. Pre-Application Consultation Prior to submitting the Section 36 application the applicants undertook consultation with various community groups and communities and have submitted with the EIA Report a Pre-Application Consultation (PAC) Report summarising the details and outcomes of the public consultation undertaken. 9.6. The applicant held two public exhibitions in Houldsworth Hall, Dallas on 28 November 2022 and 1 February 2023 which were advertised in the local press as Page 113
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well as publicised with local members and the community council. 8 attended the first event whilst 28 attended the second. The PAC Report also details consultation that was undertaken with relevant stakeholders such as the ECU and consultees via the “gatecheck” process. 9.7. Analysis of the responses from the public consultation notes 93% of feedback was from those living closest to the proposal. Whilst the majority support renewable energy development in general, concerns raised from the public about this development included landscape impact, hydrology and private water, ecology, noise and shadow flicker impacts. 9.8. The applicant has responded to the feedback by listing their proposed mitigation via relevant assessments forming part of the EIA Report. 9.9. Principle of Proposal National projects sit at the top of the hierarchy of development, comprising developments that are specified in NPF and considered to be of national importance. Within Annexe A of NPF, it states that “their designation means that the principle of the development does not need to be agreed in later consenting processes”. All onshore energy generating developments in excess of 50 MW fall within the definition of national development in NPF (Annexe B, 3. Strategic Renewable Electricity Generation and Transmission Infrastructure). 9.10. NPF Policy 1 (Tackling the Climate and Nature Crises) states that significant weight must be attached to the global climate and nature crisis. It aims seeks to reduce emissions and supports development that addresses these goals. Development of renewable energy is one such development and therefore significant weight must be attached to its contribution toward emissions reductions. Similarly, NPF Policy 2 (Climate Change and Adaptation) seeks to encourage, promote and facilitate development that minimises emissions and adapts to the current and future impacts of climate change. This can directly be linked to other wider objectives of NPF in creating sustainable places and the production and transmission of clean energy is part of the spatial strategy for the north of Scotland. 9.11. NPF Policy 11 (Energy) seeks to encourage, promote and facilitate all forms of renewable energy development onshore and offshore. Part (a) (i) of the policy supports wind farms, but other parts of the policy, in particular part (e) sets out how proposals should demonstrate impacts on a number of aspects have been designed and mitigated. These matters are considered below, but the general position of Policy 11 in respect of supporting renewable energy development should be noted with regards to the principle of this development. 9.12. The supporting EIA Report notes this proposal would generate 126,144 MWh per year, displacing an equivalent amount of fossil fuel generated electricity and a subsequent reduction in CO2 emissions. The estimated carbon pay back of the proposal (i.e. energy required to form the proposal) would be paid back within approximately 2 years of electricity generation. Page 114
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9.13. The extant planning consent (see section 2 above) does establish the principle of a wind farm on this site, however full consideration has to be given to the merits of this proposal. 9.14. On the basis the principle of a wind farm in this location is established, the following evaluation will consider the impact of this proposal in terms of: • Landscape and Visual Impacts • Noise • Shadow Flicker • Natural Environment • Flood Risk and Drainage • Cultural Heritage • Access and Traffic • Paths and Access • Impact on soils resources and minerals • Woodland • Aviation • Socio-economics • Decommissioning and restoration 9.15. Landscape and Visual Impacts NPF Policy 11 states that project design and mitigation must demonstrate how the various impacts of energy developments are addressed and these are listed in part (e) of the policy. Part (e)(ii) notes that significant landscape and visual impacts, recognising that such impacts are to be expected for some forms of renewable energy. Where impacts are localised and/ or appropriate design mitigation has been applied, they will generally be considered to be acceptable. This goes beyond the comparable MLDP Policy DP9 (Renewable Energy) by implying that under certain circumstances, even significant landscape impacts are to be accepted. 9.16. MLDP Policy DP9 (supported by Moray Council’s - Moray Wind Energy Landscape Sensitivity Study 2023) states that all renewable energy proposals will be considered favourably where they meet criteria identified in Policy DP9 (a)(i) where proposals should be compliant with policies to safeguard and enhance the built and natural environment, while DP9 (a)(iii) gives a list of impacts that must be avoided to prevent an overall unacceptable significant adverse impact occurring. Whilst many of these are addressed or can be addressed via condition one of these states that unacceptable significant adverse landscape and visual impacts must be avoided in order for proposals to be considered favourably. This element specifically deviates from the position present in NPF Policy 11. 9.17. Section 24 of the Town and Country Planning (Scotland) Act 1997 (as amended) states that should there be any conflict between the adopted National Planning Framework and the adopted local development plan, the most recently adopted shall prevail. It is acknowledged that Section 25 of the 1997 Act does not apply in this instance (as noted under para 9.4). Nonetheless, the provisions of the Page 115
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development plan are a consideration. Given the approach advocated under Section 24, as NPF was adopted most recently its position must take precedence and therefore the greater tolerance to significant impacts must be applied. 9.18. The EIA Report prepared in support of this proposal contains a Landscape and Visual Impact Assessment (LVIA). This assesses the potential significant effects of the proposal on landscape, views and visual amenity. It is based on an initial 45km study area, and focuses on smaller study areas for detailed consideration of potentially significant effects. This LVIA generally accords with best practice set out in the Guidelines for Landscape and Visual Impact Assessment and its conclusions are mostly acceptable to Council, following advice/review by the Council’s Landscape Adviser. 9.19. Provision of additional information associated with the reduction in height of the turbines to 149.9 metres as currently presented demonstrates the judgements of levels of effect found in the original LVIA remain as originally identified, however views at the edge of the Zone of Theoretical Visibility would be reduced and impacts on the core path running from Pikey Hill to Burn of Rothes would be reduced to nil (zero visibility from this point). However, reduction of the height of turbines will clearly reduce their presence and be closer in scale to the adjacent turbines at Rothes I and II Wind Farms. 9.20. The Moray Wind Energy Landscape Sensitivity Study This vast majority of the site falls within Landscape Character Type (LCT) 10 – Upland Moorland and Forestry (apart from a small area of the initial access track which falls under 5 – Rolling Farmland and Forest), as classified by NatureScot. The Moray Wind Energy Landscape Sensitivity Study 2023 (LSS) utilises these LCTs to consider their sensitivity to wind turbine developments, albeit naming them Assessment Units (AU). In respect of the LCT/AU in which this proposal mainly falls, the LSS states the landscape:- 9.21. “comprises a gently undulating plateau-like landform with smooth even slopes although some more defined and higher hills are present on the outer edges of this Assessment Unit. This landscape is predominantly large scale, sparsely settled and covered with a simple pattern of coniferous forestry and moorland although some smaller scale farmed and settled areas are present on the outer fringes of this landscape in the upper Lossie valley and Upper Knockando areas. Visibility of the interior of these uplands is restricted from surrounding roads and settlement but the outer edges of parts of this landscape are prominent from the coastal plain of Moray and from the Spey valley.” 9.22. The LSS recognises that the simple landform and large scale of the interior plateau areas and the sparsely settled nature of much of this landscape reduces susceptibility to wind energy development but the study also identifies the following relevant constraints for wind energy development sited in this AU: 9.23. ‘The extensive operational and consented wind farms already located in this Assessment Unit which severely limits opportunities for further development Page 116
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to be located whilst minimising effects on adjacent more sensitive landscapes and on views. 9.24. The hills and ridges on the outer edges of this landscape which form the backdrop to the smaller scale and sensitive Findhorn and Divie valleys, Glen Rothes and the Lossie valley between Kellas and Dallas’. 9.25. The guidance set out in the study for this AU is as follows: 9.26. “While the predominantly large scale and simple landcover of this Assessment Unit reduces susceptibility to larger wind turbines this upland plateau is not extensive and thus lies relatively close to smaller scale and more settled valleys. Importantly, the extent of operational and consented wind farms already located in these uplands severely limits opportunities to site further wind energy development while minimising landscape and visual effect on adjacent more sensitive landscapes. The outer edges of these uplands adjoining more settled landscapes, and especially the landmark hills of Mill Buie, Carn na Cailliche, Hunt Hill and Brown Muir, are particularly sensitive in this respect. There would be a High sensitivity to turbines >150m and a High-medium sensitivity to turbines <150m. 9.27. Turbines should be set well back into the interior of these uplands, avoiding significant intrusion on the ridges and hills which form prominent skylines to the adjacent smaller scale settled Rolling Farmland and Forest, Narrow Wooded Valleys and the Broad Farmed Valley. Turbines should not be sited on, or close-by, the landmark hills of Mill Buie, Carn na Cailliche, Hunt Hill and Brown Muir. Cumulative effects on views from the minor road between Dallas and Knockando should be minimised by siting turbines away from the diverse moorland and regenerating native woodland which provides an attractive feature particularly seen to the west of this route. Significant cumulative effects on the Dava Way and on the A95 and the B9102 should also be avoided.“ 9.28. The LSS clearly advises that wind turbines should be set well back into the interior of these uplands to avoid significant intrusion on smaller scale settled landscapes. Viewpoints 1 (from Kellas War Memorial) and 6 (from Brown Muir) of the LVIA submitted in support of this proposal illustrate how the proposed development is (contrary to the guidance) located on the outer edge of the Upland Moorland and Forestry AU/LCT and effectively appears to ‘tip down’ into the smaller scale Lossie valley. The Lossie valley lies in the adjacent Rolling Farmland and Forests LCT/AU and this proposal would have a significant adverse effect on this smaller scale and diverse landscape. 9.29. Effects on Landscape Character A Zone of Theoretical Visibility was produced to assess the theoretical visibility of this proposal. It illustrates that visibility will generally be curtailed by the uplands within the southern part of the study area and more extensive from the area of lowland towards the Moray coast. This is based on a “bare earth” scenario, so visibility will be reduced to some degree. The LVIA states there will be significant visual effects within 5.5 km to the west and approximately 8km to Page 117
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the north west of the proposal. This visibility is reduced further by the reduction of in height of turbines to that currently presented. 9.30. The proposed development is located in the Upland Moorland and Forestry Landscape Character Type identified in both NatureScot’s online classification and as an Assessment Unit in the LSS. This is a generally large-scale landscape with a simple landform and landcover pattern which reduces susceptibility to wind energy development. This landscape already accommodates the operational Rothes I and II wind farm and other consented wind farm development will also be located in this LCT/AU, further reducing susceptibility. While the effects of the proposal would be significant and adverse on part of this LCT/AU, these effects would not be of the greatest magnitude due to the factors outlined above. 9.31. The location of this proposal on the outer northern edge of these uplands would result in substantially increased intrusion and influence on the character of part of the adjacent smaller scale, settled Lossie Valley which lies in the Rolling Farmland and Forests LCT. These effects are illustrated in the LVIA visualisations from the B9010 at Kellas War Memorial (Viewpoint 1) and Dallas Castle (Viewpoint 2). The effects of the proposal will be most severe across the Lossie valley between Dallas Castle and approximately to Upper Bogside to the east. The proposed wind turbines would be perceived as lying on the southern sides of the valley rather than in the upland landscape. While the operational Rothes wind farm and a transmission line already influence character in this part of the Lossie valley, the closest existing Rothes wind turbines at 100m high are smaller than the 149.9m high wind turbines of this proposal and they are also set back further into the upland plateau such that much of the turbine tower is screened by landform (see Figure 5-9b Kellas War Memorial Viewpoint 1). It is considered that a major significant adverse effect would occur on this part of the Lossie valley (and the Rolling Farmland and Forests LCT which it lies in). 9.32. Following the reduction in height of the turbines, the character of the wider Lossie valley (and remainder of the Rolling Farmland and Forests LCT) would be unlikely to be significantly affected by the proposal due to the screening offered by the wooded ridges which form a key characteristic of this landscape. When viewed from these extremities, the turbines sit better within the landscape and are of a more relatable scale to the adjacent Rothes I and II wind farms. 9.33. NPF Policy 11 (e) (ii) states that significant landscape and visual impacts are generally considered acceptable where these are localised. Given the significant impacts are now more focused on the Kellas area of the Lossie valley, as demonstrated by the updated wire lines provided in the additional information, the proposed effect on landscape character, is significant and the degree of design mitigation applied is limited. However, this localised significant landscape impact is not considered to be at odds with NPF Policy 11. 9.34. Effects on Visual Receptors The LVIA undertaken considers the proposal, from five of the fifteen viewpoint locations, results in a significant visual effect. These are focused on the Lossie Page 118
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valley, and to the east and north east of the proposal to Brown Muir and Pikey Hill to the south of Elgin. 9.35. The wooded ridges lying to the north-west of the Lossie valley reduce the extent of visibility of this proposal. While more extensive visibility is shown on the ZTV to the south and west, this would largely affect sparsely settled upland areas. Extensive visibility would occur across the coastal plain and coast of Moray further north beyond the wooded ridges although the proposal would largely be seen at distances of between 15-20km (and would additionally be seen in conjunction with other operational and consented wind farms on the upland skyline) thus reducing the magnitude of effect. 9.36. The most severe significant adverse effects would principally occur on the Lossie valley within 3km of the proposed development. Viewpoint 1 illustrates this view. Major significant and adverse effects would occur on views from the B9010, from Rights of Way and from settlement in the Kellas area, however the reduction in height has mitigated this to a degree. The reduction in height of turbines is welcomed, and it has a subsequent benefit of removing the need for aviation lighting, with a subsequent benefit for receptors. 9.37. Residential Visual Amenity Impacts The LVIA contains a Residential Visual Amenity Assessment (RVAA) that considers effects on residential properties lying within 2.5km of the proposal. The assessment identifies 15 individual/groups of residential properties, 42 properties in total. The closest property at Craighead, to the south of the River Lossie, will be 1.3km from the nearest wind turbine. A high magnitude of change is concluded likely to occur from the majority of the residential properties assessed. The RVAA appears thorough and whilst the findings on the likely nature of visibility and magnitude of change are considered to be accurately assessed as part of the LVIA, the conclusions as to whether the Residential Visual Amenity Threshold is likely to be reached seem subjective (particularly in relation to the ‘sense of distance’ judged likely to occur from the proposal for residents). 9.38. Visualisations have been generated from Kellas House, an important listed building occupying an elevated position in the Lossie valley to the south of the site. These visualisations demonstrate that an existing belt of woodland (principally comprising Scots pine) located on steep slopes below the house and above the B9010 would largely screen the proposed development. It is noted that Historic Environment Scotland do not object to the proposal but they nonetheless state in their consultation response dated 2 May 2024 to the Energy Consents Unit that they…’disagree with the applicant’s reliance on screening by vegetation to mitigate views’. The pine trees are all of even-age, and their location on a more exposed bank would make them potentially prone to wind throw. If these trees were not there, major significant adverse effects would occur on views from this property. 9.39. Cumulative Landscape and Visual Effects Cumulative effects would occur with the operational Rothes I and II wind farm. The proposal would be seen in close proximity with this existing development Page 119
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and whilst there will be a contrast in the size of wind turbines, this will be more apparent within the more localised vicinity of Kellas, as illustrated in viewpoints 1 (Kellas War Memorial), and to a lesser extend viewpoint 2 (B9010 at Dallas Castle). Views from further afield such as viewpoints 5 (Pikey Hill) and 6 (Brown Muir) show the turbines as now presented related better to the existing turbines at Rothes 1 and II wind farm. 9.40. The consented Clash Gour, Berry Burn Extension and Meikle Hill wind farms will, in combination with this proposal, result in significant cumulative effects on the Lossie valley between Upper Bogside and Dallas Castle and extending into the upper Lossie valley south of Dallas and seen sequentially from the B9010 and the road between Dallas and Knockando. This proposal would obviously contrast with these generally more extensive wind farms in being located on the outer edges of the uplands and much closer to a settled valley rather than being associated with the more expansively scaled and simple interior of the upland plateau. 9.41. Effects on Local Landscape Designations The proposal would not be located in an area designated for its landscape or scenic quality. 9.42. The Pluscarden Valley Special Landscape Area (SLA) is the closest landscape designation to the proposal. The Zone of Theoretical Visibility (ZTV) map in Figure 5-1 of the LVIA indicates some visibility from the valley floor/lower south- facing valley sides around Pluscarden Abbey. A far greater extent of visibility from the more open valley floor is associated with the current Kellas Drum proposal when compared with the consented Kellas Wind Farm (see Figure 5- 32). The applicant has undertaken further analysis on the impact on this proposal on the SLA, which shows the actual visibility of the proposal from the SLA will be minimal (tips only due to woodland coverage and rising topography), therefore proposal is considered to have limited impact on the SLA and will not affect its key qualities (and thus is not in conflict with NPF Policy 4 (d) (i) and MLDP Policy DP3). 9.43. It is not likely that other SLAs lying within the LVIA study area would be significantly affected by this proposal. 9.44. Landscape and Visual Impacts – Conclusion NPF Policy 11(e) requires project design and mitigation to demonstrate how impacts on communities and significant landscape and visual impacts are addressed. In terms of significant landscape and visual impacts, 11(e) (ii) states that such impacts are to be expected for some forms of renewable energy and where impacts are localised and/or appropriate design mitigation has been applied, they will generally be considered to be acceptable. NPF provides no guidance on the definition of what constitutes ‘localised’ effects. 9.45. It is considered that the landscape and visual effects of this proposal as now presented (at 149.9 m in height) are considered to be localised in extent (principally affecting character and views within part of the Lossie valley around Kellas), and this is of the highest degree of severity. This is due to the size of the Page 120
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wind turbines proposed and their location on the outer edge of the uplands (which results in them being perceived as being sited on the southern slopes of the Lossie valley). Cumulative effects (principally wide disparities in turbine size) and the contrast which occurs in the siting of this proposal when compared with the more ‘set back’ location of operational and consented wind farms in the Upland Moorland and Forestry LCT/AU, contribute to these major, significant and adverse effects on landscape character and on views. The LVIA acknowledges that the scale of the proposed turbines creates significant visual effects. 9.46. The proposal does not comply with the guidance set out in the 2023 Moray Wind Energy Landscape Sensitivity Study in being sited on the outer edge of the Upland Moorland and Forestry AU/LCT and subsequently fails to comply with MLDP Policy DP9, however the primacy of NPF (as identified in paras 9.16 and 9.17) should be kept in mind. 9.47. A degree of mitigation has been applied to the design of this proposal to alleviate some of the most severe landscape and visual effects. The turbines at 149.9 m high now sit more comfortably when viewed from the wider area, albeit still with a significant, localised impact on the Kellas area as demonstrated in Viewpoint 1. This mitigation has been carried out in line with advice received by the Council’s Landscape Adviser, who initially raised concerns about the scheme as originally submitted, but advised that reduction in height of the turbines to 149.9 metres would offer a suitable level of mitigation. 9.48. The significant localised landscape and visual impact of the proposal is therefore not considered to be contrary to NPF Policy 11, and it would not be justifiable to raise an objection to the consultation response on the basis of the landscape and visual impact of the proposal. 9.49. A condition is recommended to ensure that the wind farm already consented under 13/00615/EIA is not implemented in conjunction with this proposal, noting that it has not been considered as part of the LVIA of this application. 9.50. Noise NPF Policy 11 (e) (i) and MLDP Policy DP9 (a) (ii) both require noise impacts of renewable energy development to be mitigated as part of the design of a development. This is also the case for NPF Policy 23 (Health and Safety) and MLDP Policy EP14 (Pollution, Contamination and Hazards), both of which require noise generated from proposed developments to be an acceptable level or suitably mitigated. Where this is not the case, development will not be supported. The EIA Report contains a chapter which considers noise from the construction and operation of the proposal. This has been prepared and assessed in line with national guidelines and current good practice, in consultation with Moray Council. 9.51. With regards to construction noise, this was largely scoped out of the detailed noise assessment as typical noise limits referred to in relevant guidance will be met at noise sensitive receptors located in the vicinity of this proposal for the majority of the time. There may be temporary impacts associated with track Page 121
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construction and construction traffic accessing the site, however this has been assessed as not significant in the EIA Report. Construction noise could however be controlled and minimised as much as possible during the construction phase of the development though implementation of a Construction Environment Management Plan (CEMP). 9.52. Predicted operational noise from the wind turbines have been assessed and compared with relevant noise limits for the proposal acting in isolation, alongside cumulative impacts with other consented/operational wind farms in the vicinity of this site. The findings of these assessments have been agreed with the Council’s Environmental Health Service. The findings are such that the noise effects of the proposal (either in isolation or alongside other windfarms) are not significant. 9.53. The Council’s Environmental Health Service has reviewed the submission and not objected from a noise perspective but has recommended a number of conditions with regards to noise from the wind turbines, substation and battery storage, limits on construction hours and details of blasting methods. 9.54. As such there is no conflict with the aforementioned policies in respect of noise. 9.55. Shadow Flicker NPF Policy 11 (e) (i) and MLDP Policy DP9 (b) (ii) require impacts of renewable energy development to be either avoided or mitigated as part of the design of a development, including shadow flicker. Shadow flicker can arise from the passing of the moving shadow of a wind turbine-rotor blade over a narrow opening such as a window of a nearby house. Similar effects can also occur when gloss blades of a rotating wind turbine reflect the sun, causing a flashing light. These flickering effects can cause disturbance and annoyance to residents, but it is not possible to cause photosensitive epilepsy. 9.56. Shadow Flicker effects can occur within 130 degrees either side of North and within 10 rotor diameters of the turbine position (1550m for the case of the Proposed Development). There are seven properties within potential shadow flicker impact distance of the proposed turbines. Climate adjusted modelling of proposed turbine locations has demonstrated there are no significant effects anticipated on receptors. 9.57. The Council’s Environmental Health service has recommended a condition that would require the wind farm operator to investigate and instigate appropriate mitigation measures to minimise the effects of shadow flicker should there be complaints received regarding shadow flicker. 9.58. Natural Environment NPF policies 1 and 2 as a wider perspective on the natural environment see tackling climate change via carbon reduction, as one of the major priorities. NPF Policy 1 views the ongoing nature crises as being an issue considered hand in hand with climate change, and to address both it sees development of renewable energy as part of that solution. Page 122
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9.59. NPF Policy 3 (Biodiversity) and EP2 MLDP (Biodiversity) however both seek to enhance biodiversity, so not withstanding allowances made for energy generation in upland areas elsewhere in NPF, efforts should still be made to enhance the local biodiversity as a result of development. Of note, NatureScot and RSPB will respond separately on aspects such as ornithology and Groundwater dependent terrestrial ecosystems (GWDTE). 9.60. NPF Policy 4 (Natural Places) and MLDP Policy EP1 (Natural Heritage Designations) seek to ensure proposals do not have an adverse effect on protected species. 9.61. NPF Policy 11 (e) (ix) and MLDP Policy DP9 (a) (iii) and (b) (ii) require renewable energy projects to ensure they do not have an adverse impact on ecology and biodiversity. 9.62. Chapter 6 on Ecology in the EIA Report identifies that 65.4 ha of habitat will be loss or distributed. Measures to protect, mitigate and enhance habitats are set out within an Outline Habitat Management and Biodiversity Enhancement Plan (OHMBEP). The Plan focuses on solutions directly within the development site despite there being opportunities beyond the confines of the site to provide significant biodiversity enhancement that would link and strengthen habitat connectivity. As part of the additional information submitted in April 2025, an updated OHMBEP has been submitted by the applicant which proposes additional riparian broad-leaved woodland planting along the steeper parts of the River Lossie. This will contribute to significant biodiversity enhancement that would link and strengthen habitat connectivity. 9.63. Surveys have found there are no predicted effects on statutory wildlife sites within the vicinity of the development, and ecological surveys have not found the presence of protected species within the site. It states that proposed mitigation including a requirement for Environment/Ecological Clerk of Works and the requirement for pollution control measure to be implemented will ensure the proposals impact is non-significant. The proposals are therefore considered to comply with NPF Policy 3 (b) and MLDP Policy EP2. 9.64. Flood Risk and Drainage SEPA will be consulted separately, but given the elevation and slope of the site it is noted that no flooding is anticipated across the site. Moray Flood Risk Management team have raised no issues with proposal from a flood management perspective. There is therefore no conflict with flood risk and drainage policies – NPF policies 11 (e) (viii) and 22 (Flood Risk and Water Management), and MLDP policies DP9 (a) (iii) and EP12 (Management and Enhancement of the Water Environment). 9.65. Cultural Heritage NPF Policy 7 (Historic Assets and Places) and MLDP Policy EP8 (Historic Environment) seeks to protect historic and archaeological assets. MLDP Policy EP10 (Listed Buildings) states that development proposals will be refused where they would have a detrimental effect on the character, integrity or setting of a listed building. Structures such as windfarms have the potential to affect the Page 123
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setting of listed buildings other cultural heritage assets some distance away. Cultural heritage and archaeological impacts were concluded to be not significant in the submitted Cultural Heritage chapter of the EIA Report. Mitigation measures including protection/demarcation of heritage assets and a requirement for an archaeological written scheme of investigation were identified in the EIA Report. Aberdeenshire Council Archaeology service have recommended conditions requiring these mitigation measure to be undertaken should the ECU approve the proposal. 9.66. The EIA Report notes that there is a potentially significant moderate adverse effect on the setting of Kellas House, a category A listed building. Historic Environment Scotland’s (HES) remit includes considering the impact of developments on the setting of category A listed buildings. Whilst they have not objected to the proposal, they disagree with the position of the applicant’s reliance on screening from vegetation to mitigate the adverse impacts from the proposal on the setting of Kellas House. No additional mitigation has been proposed by the applicant in light of these comments, however, as HES are a statutory consultee on these matters, their position of no objection is noted. 9.67. As such this proposal is not at odds with historic environment policies NPF Policy 6 and MLDP Policies EP9 and EP10, as well as NPF Policy 11 (e) (vii) and MLDP Policy DP9 (b) (ii). 9.68. Access and Traffic NPF Policy 13 (Sustainable Transport) and MLDP policies PP3 (Infrastructure and Services) and DP1 (Development Principles) contain criteria which seek to ensure the transport impact of a proposal is acceptable, with an emphasis of minimising traffic generation and mitigating impacts on the existing transport network. With specific reference to energy developments, NPF Policy 11 (e) (vi), and MLDP Policy DP9 (a) (iii) require proposals to consider impacts on the road traffic and the road network. 9.69. The proposed delivery routes for Abnormal Indivisible Loads (AIL) have been amended following discussions with the Council’s Transportation team. As a result of these discussions, two delivery routes have been identified: Delivery Route 1 • Inverness Harbour, through Highland Council area to Moray on A96. • Enter Moray at Brodie and head east on A96 to Newton (west of Elgin). • AILs will then turn right and leave the A96 and travel south towards Miltonduff along the C26E road. • At Miltonduff, AILs turn left onto the Elgin - Pluscarden Road/Main Road (C3E) and continue to east. • The AILs then turn right and join the B9010 southbound towards Dallas and continue for approximately 7.5km before turning left onto a private access track which forms the access to the site. Delivery Route 2 (alternative) • AILs follow the initial route but travel on A96 east through Elgin to Barmuckity, rather than turn off at Newton. Page 124
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• At Barmuckity, the AILs will turn back on themselves on the A96 at the roundabout for Elgin Business Park and head west back through Elgin. • The AILs will then reach the roundabout on the A96 next to Dr Gray’s Hospital, and continue west on Pluscarden Road (B9010) out of Elgin; • The vehicles would then turn left to continue on the B9010 at Pittendreich, after which the alternative route re-joins the original route to the site. 9.70. In considering these routes, there a several bridges along them including two railway bridges which might be impacted by AIL deliveries. Both railway bridges have significant humps and the applicant has failed to provide sufficient information to demonstrate the deliverability of AILs along these bridges. Conditions are recommended by the Transportation Manager requiring further details of the deliverability of the AILs. 9.71. The traffic data that informed the Transport Assessment for the B9010 (Forres - Dallas - Elgin Road) along with data held by Moray Council is 15 years old, therefore it is not considered this represents an accurate baseline on which to assess the impact of this proposal as well as monitor traffic should complaints be raised during the construction process. Up to date traffic data will be sought by condition. 9.72. HGV traffic for the construction would use the B9010, which has varying road widths, tight bends, and limited visibility. The Transportation Manager has recommended permanent passing places and bend widenings to accommodate increased traffic, especially for HGVs. Passing places proposed by the applicant have not been accepted due to inaccurate road width data. As such a condition is recommended requiring a comprehensive assessment of existing passing places along with improvement works where passing places are found to be inadequate. 9.73. The Transport Statement confirms that HGV construction traffic would access the site via the B9010 from Elgin rather than Forres. The applicant has proposed a CCTV system to be implemented at the site entrance to monitor adherence to this route, and a condition is recommended by the Transportation Manager requiring this to be provided. LGVs, vans, and cars could still use the B9010 between Forres and the site access, therefore 3 new passing places would be required along this stretch of road. 9.74. There are concerns about the impact of construction traffic on the fabric of the public road, particularly potential damage due to heavy vehicles given the B9010 is identified as an Agreed Timber Transport route. To mitigate this a security bond will be sought by the Transportation Manager to cover the repair of the road to ensure it can be restored to a safe standard on completion of the development. 9.75. To accommodate this proposal, the Transportation Manager has requested all carriageway on the B9010 be widened to 6 metres on a permanent basis, but has stated that temporary unbound surfaces could be used for abnormal loads during construction such as at bends on the delivery route. Road safety Page 125
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measures, such as cones and barriers, would be required along with suitable reinstatement measures for any temporary surfaces. 9.76. Visibility at the site access to the B9010 would require suitable visibility splays which may require works to the public road to accommodate this. AILs may also impact on woodland adjacent to the public road, however this is considered below under Woodland (section 9.81). 9.77. Subject to conditions as recommended by the Transportation Manager, the proposal complies with NPF Policies 13 and 11 (e) (vi), and MLDP Policies PP3 (a) (vi), DP1 (ii) and DP9 (a) (iii). 9.78. Paths and Access A public Right of Way runs from Kellas to Aultnahulish (on the Knockando to Dallas Road) and passes through this site. It is not clear from the submitted EIA Report whether access is clearly covered/suitably mitigated as part of this proposal. However, should the ECU be minded to approve this proposal, a condition could be placed requiring public access to be maintained during construction (e.g. via temporary diversion) and operation of the proposal. Subject to a condition, the proposal would comply with NPF Policies 13 and 11 (e) (iii), and MLDP Policies PP3, DP1 and DP9 (b) (ii). 9.79. Impact on soil resources/minerals NPF Policy 5 (Soils) does state that while generally carbon rich soils should be avoided by development, part (c) (ii) within the policy states generation of energy from renewable sources that optimises the contribution of the area to greenhouse gas emissions reductions targets may be accepted in peatland. 9.80. MLDP Policy EP16 (Geodiversity and Soil Resources) states that for large scale (over 20MW) renewable energy proposals, development will only be permitted where it has been demonstrated that unnecessary disturbance of soils, geological interests, peat and any associated vegetation is avoided. Evidence of the adoption of best practice in the movement, storage, management and reinstatement of soils must be submitted along with any relevant planning application, including, if necessary, measures to prevent the spread of invasive non-native species. The formation of new and upgraded access tracks, and turbine and crane pads, have led to permission being sought for up to 2 borrow pits. 9.81. Approximately 15% of the site (all above 225m elevation) has small pockets of shallow peat between 0.5 and 1 metre in depth, scattered across the site. A further 3% of the site is covered in deeper peat between 1 and 2 metres deep. A Peat Management Plan and Peat Landslide Hazard Risk Assessment have been submitted as part of the EIA Report. These have determined that approximately 5,200 cubic metres of peat will be excavated during construction, of which 700 cubic metres will be directly reinstated. 9.82. The ECU in their remit have reviewed the findings of these reports and following provision of additional information, consider the overall level of assessment Page 126
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suitable. SEPA have no objection to the proposal in light of the information provided on peat. 9.83. The EIA Report considers this proposal does not adversely affect the hydrology of private water supplies, of which there are two within 2km of the proposed development site with no hydrological connectivity to this site. The Council’s Private Water Supplies team have placed a holding comment on this proposal. It is therefore considered suitable that a requirement for a drinking water protection plan be required by condition in light of this. 9.84. Whilst MLDP Policy EP16 requires applicant to demonstrate that unnecessary disturbance is avoided before support within the policy can occur, the allowance of NPF Policy 5 take precedence given it was the latest policy to be adopted. On this basis the proposal is considered suitable in respect of the requirements of NPF Policy 5. 9.85. Woodland NPF Policy 6 (Forestry, Woodland and Trees) seeks to protect and expand forests, woodland and trees. Policy EP7 (Forestry, Woodlands and Trees) is relevant to the issue of any felling that may take place. This proposal would result in the loss of 3.28 ha of woodland. In responding to the ECU, Scottish Forestry have not objected to the proposal, noting that the proposed compensatory planting would be equal to the area of woodland being felled and compliant with the Scottish Government’s Control of Woodland Removal Policy. However, they do require that the compensatory planting be agreed with the planning authority (i.e. Moray Council) and that that all forestry operations should be carried out in accordance with the UK Forestry Standards. 9.86. At the request of the Council, the applicant has also assessed instances where ancient woodland may be impact by AIL movements. This has found that an area to the south of the A96 at Newton may require scrub removal and tree branch trimming. Were this proposal to be approved by the ECU, the Council would request a condition would be applied requiring these works to be agreed in advance of any tree trimming works. 9.87. Subject to these matters being addressed by condition should the proposal be approved, the proposal complies with the aforementioned policies on woodland. 9.88. Aviation When considering impacts on aviation, the ECU have consulted with relevant consultees. The Ministry of Defence, NATS (who are responsible for air traffic control in UK air space) Highland and Islands Airports Ltd. (HIAL) and Aberdeen Airport have raised no objections to the ECU. 9.89. Battery Storage - Health, Hazards and Safety NPF Policy 23 (Health and Safety Intends) to mitigate risk arising from safety hazards. MLDP EP14 (Pollution, Contamination and Hazards) while focussing on hazardous sites and polluting development states its aim is to ensure that new developments do not create pollution which could adversely affect the Page 127
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environment or local amenity. Pollution can take various forms including run off into watercourses, noise pollution, air pollution and light pollution. 9.90. The proposal including a battery storage area adds the need to ensure such a compound has been fully thought through, and anecdotally it is understood that where issues such as fire occurs on energy storage/management facilities, they are very difficult to extinguish and can cause wider environmental damage. While not normally a planning matter, the above policies do reasonably trigger the need for the applicant to demonstrate that they have fully considered the hazard risks of having a battery storage area in an upland peaty moor. Limited information has accompanied the application in respect of its design. It is recommended in the event of approval a condition seeking a contingency plan in the event of an incident at the compound, as well as ensuring the proposal is designed in accordance with best practice contained in the National Fire Chiefs Council’s Guidance on Grid Scale Battery Energy Storage. 9.91. The ECU will be aware that there are national working groups working with the government to provide planning guidance and advice on battery storage. This would inform their assessment of battery storage but there are currently no specific planning policy or national guidance restrictions on battery storage. 9.92. Socio-Economics NPF Policy 11 states that proposals will only be supported where they maximise net economic impact, including local and community socio economic benefits. NPF Policy 25 (Community Wealth Building) states developments that contribute towards local/regional community wealth building strategies and are consistent with local economic priorities will be supported. For new wind energy projects consideration is being given as to how net economic benefits might be realised. 9.93. No planning obligations contributions are due as such development would not have any impact on community facilities, schools etc. It has been deemed previously in the Scottish planning system "Community Benefit Funds" are not a matter for the development management system. The setting up of a Community Benefit Fund should not be a matter that influences the planning decision and would be arranged separate to the planning process in the event that permission is granted. This approach is highlighted in Annex A ‘Defining a Material Consideration’ of the Circular 3/2013: Development Management Procedures. The applicant has referred to contributing to a Community Benefit Fund in submissions, and it is noted that there was no condition applied for community wealth building matters on the consented wind farm. 9.94. At its meeting on 24 April 2024, Moray Council agreed the draft Maximising Net Economic Impact Supplementary Planning Guidance for public consultation. The guidance requires developers to prepare and submit a Net Economic Impact Maximisation Plan (NEIMP) which address community wealth building, community benefit and other socio-economic benefits which the proposal will deliver. Any approval of this proposal by the ECU will need to condition provision of a NEIMP. Page 128
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9.95. The EIA Report Chapter 12 “Socio-Economics, Tourism and Recreation” states that the construction of the proposal will have a minor beneficial effect on the economy of Moray. As the proposal moves to the operational stage, which could potentially deliver up to 113 direct job years across the region, the socioeconomic impact is considered to be negligible. However, the proposal does not clearly set out how the development will deliver beneficial effects of construction and operation on the local economy nor has tangible detail been provided as to how the development contributes to local or regional community wealth building strategies. Moray Council have produced further guidance to support delivery of NPF Policy 25, which includes the submission of a Community Wealth Building Plan (CWBP). 9.96. In light of the above observations, and in the absence of case law or national guidance relating to NPF Policy 11, it is unclear if this policy has been complied with. As NPF is a national development plan for the ECU as much as Moray Council as the local planning authority, they too require to determine compliance with policies NPF Policies 11(c) and 25 (a). We would expect the applicant to be asked to provide a NEIMP and CWBP, and more fully identify how local maximisation of net economic impact is being realised. Again, this is a matter where a call for supplementary guidance from the Scottish Government is being sought to help planning authorities and the ECU implement NPF policies 11 and 25. In light of this position, conditions are recommended requiring this information to be provided/secured. 9.97. Decommissioning and Restoration NPF Policy 11 (e) (xi) and MLDP Policy DP9 (b) (ii) both require renewable energy developments to provide appropriate provision for decommissioning and restoration, whilst NPF Policy 11 (e) (xii) requires proposals to include measures to safeguard or guarantee availability of finance to effectively implement decommission and restoration. The ECU and Scottish Ministers have a standard set of decommissioning and site restoration requirement conditions that would be imposed in the event of approval. 10. CONCLUSIONS AND RECOMMENDATION 10.1. The adoption of NPF has strengthened further the support for onshore windfarm development but also the need to maximise net economic impact from these developments and the promotion of community ownership. This, added to the undeniable support and approval of almost all larger wind energy proposals previously in Moray has to be given significant weighting. More generally NPF sees tackling climate change and achieving next zero as the driver for many of its policies, and continued support for onshore renewable development is one of the sectors is which these goals will be achieved. The phrase ‘significant weight’ is given and referred to in policies 1 and 11 of the NPF to development that tacking climate change. NPF Policy 11 being a new policy nationally does not provide any calibration of how ‘localised’ significant landscape impact to be expected extend. 10.2. Following amendments, the turbines as proposed at 149.9 metres high still have a significant impact on the Kellas area and its immediate surrounds, which is acceptable under the terms of NPF Policy 11. A suite of conditions is Page 129
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recommended to ensure the impact of the wind farm can be mitigated in terms of impacts on infrastructure, amenity, biodiversity and access/rights of way, as well as compliance with community wealth building policies. 10.3. Accordingly, the recommendation to members is to raise no objection to the consultation response to the proposed Kellas Drum Wind Farm, subject to conditions as identified in Appendix 2. Page 130
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APPENDIX 2 - Recommended conditions for Kellas Drum Wind Farm by Moray Council TRANSPORTATION CONDITIONS 1. No development shall commence until: i. a detailed drawing (scale 1:500 or 1:1000 which shall also include details to demonstrate control of the land through evidence of ownership or provision of third party agreement.) showing the visibility splay 4.5 metres by 160 metres at both directions onto the public road (including the 160m forward sightline for the vehicles travelling eastbound) with all boundaries set back to a position behind the required visibility splay, and a schedule of maintenance for the splay area has been submitted to and approved in writing by the Council, as Planning Authority in consultation with the Roads Authority; and ii. thereafter the visibility splay shall be provided in accordance with the approved drawing prior to any works commencing (except for those works associated with the provision of the visibility splay); and iii. thereafter the visibility splay shall be maintained at all times free from any obstruction exceeding 0.6 metres above the level of the carriageway in accordance with the agreed schedule of maintenance. Reason: To enable drivers of vehicles leaving/entering the site to have a clear view over a length of road sufficient to allow safe exit/entry, in the interests of road safety for the proposed development and other road users. 2. No development shall commence until a Construction Traffic Management Plan (CTMP) has been submitted to an agreed in writing by the Planning Authority in consultation with the Roads Authority. Thereafter the development shall be carried out in accordance with the agreed CTMP at all times. For the avoidance of doubt the CTMP shall include as a minimum the following information: • duration of works; • construction programme; • number of vehicle movements by daily/weekly/monthly frequency broken down by vehicle type/size and expected construction traffic generation during the peak construction periods are required as opposed to the average traffic generation over a period of time (i.e. materials, plant, staff, components); • schedule for delivery of materials and plant; • full details to demonstrate the safety of the pedestrian/cyclist and vehicular movements on the Palmerscross Railway bridge during the construction period; • parking provision, loading and unloading areas for construction traffic; • full details of temporary arrangements to safeguard pedestrian movements during the construction period; • full details of any temporary access; • measures to be put in place to prevent material being deposited on the public road; • traffic management measures to be put in place during works including any specific instructions to drivers. Page 131
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• full details of construction traffic routes from/to the site, including any proposals for temporary haul routes and routes to be used for the disposal of any materials from the site; (The section of the B9010 from Forres to site access must not be used by HGV construction traffic associated with the proposed development) • a programme of monitoring for all routes identified within the CTMP during construction will be required Reason: To ensure an acceptable form of development in terms of the arrangements to manage traffic during construction works at the site. 3. No development shall commence until evidence of a satisfactory Wear and Tear Agreement has been submitted to and agreed in writing by the Planning Authority in consultation with the Roads Authority. The scope of the Wear and Tear Agreement shall be agreed with the Planning Authority in consultation with the Roads Authority and shall include a condition survey of the network undertaken jointly by the developer and a representative from the Council. The survey shall include the full extent of the agreed construction traffic route(s) (within Moray) between the site and the ‘A’ class road network. In addition, the wear and tear agreement shall also include condition surveys of all roads identified as ‘unsuitable’ which must be agreed with the Planning Authority in consultation with the Roads Authority as a part of condition ‘2’ above. Reason: To mitigate the potential risks from damage to the public road occurring during the construction phase of the development. 4. No development shall commence until evidence of a financial guarantee or bond or suitable equivalent and a Wear and Tear Agreement have been put in place to ensure the repair of the public road serving the site in the event that the road is not maintained in a safe condition during the construction phase of the development and to restore the road to its pre-development condition within 1 year of the development becoming operational has been submitted to and agreed in writing with the Council, as Planning Authority. For the avoidance of doubt the agreement shall cover the length of the B9010 from A96 to site access and the finalised AiL delivery route as a minimum and all roads identified as ‘unsuitable’ as in condition ‘2’ above. Reason: To mitigate the potential risks from damage to the public road occurring during the construction phase of the development. 5. Prior to the commencement of any part of the development, the following must be submitted for approval by the Planning Authority: a) Detailed proposals for undertaking trial runs and also delivery of abnormal indivisible loads, must be submitted for approval by the Planning Authority in consultation with Roads Authority. Details must include, measures proposed to protect the public road and structures, traffic management (including Page 132
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temporary waiting restrictions), vehicle holding areas and non-vehicular management during deliveries, time restrictions for deliveries i.e. outwith school arrival and departure times b) Detailed plans (1:200 min) of all works to accommodate the proposed abnormal indivisible deliveries must be submitted and approved by the Planning Authority in consultation with the Roads Authority. c) Details of an Assessment of the adequacy of the existing passing places along the Elgin - Rafford - Forres Road (B9010) Road for the increased HGV construction traffic, including the distances between the existing passing places. The assessment should identify the improvements required for the existing passing places to provide a passing width of 6m over a 20m length with 10 metre tapers at each end. Third party land may be required to meet the required standard. Adjacent Passing places should be intervisible and have a maximum spacing not exceeding 150m. d) Detailed plans (1:200 min) of all temporary and permanent works proposed to the public road (based on the details of part ‘b’ and ‘c’ of the condition 5) must be submitted and approved by the Planning Authority in consultation with the Roads Authority. e) Following the preliminary design for the required permanent and temporary roadway improvements, a ‘Stage 01 Road Safety Audit’ must be submitted and approved by the Planning Authority in consultation with the Roads Authority to understand the road safety implications along B9010 as a result of the increase in HGV’s associated with the proposed development using this route and to propose appropriate mitigatory measures. f) Detailed plans (1:200 min) of all forestry clearance works related to the proposed wind farm development project along with the full details of the routes used for the timber traffic and associated enabling works must be submitted and approved by the Planning Authority in consultation with the Roads Authority. g) Detailed plans (1:200 min) of three passing places on the section of B9010 road from Forres to Site access to accommodate the increased in LGVs/Vans/Cars must be submitted and approved by the Planning Authority in consultation with the Roads Authority. h) Details of an assessment of the suitability of the existing structures such as culverts and bridges along the finalised AiL delivery route and B9010 Road (from site access to A96) to identify the impacts from the increased HGV movements. The assessment should identify any strengthening and/or improvements where required for the existing culverts and bridges to accommodate the anticipated construction traffic. i) Details of an assessment of the structural integrity of the road pavement to demonstrate that the selected roads are capable of sustaining the level of development traffic generated during construction. The assessment should Page 133
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identify any strengthening and/or improvements where required for the existing road pavement to accommodate the anticipated construction traffic. j) Notwithstanding the details submitted which are not accepted, classified traffic surveys over a 4-week period will be required for a neutral period out-with school/public holidays prior to development commencing. The counts will be required at locations to be agreed with Moray Council Transportation (Traffic) on the following separate sections of B9010. A) Wester Pittendreich – Cloddach, B) Cloddach – Dallas, C) Dallas – C12E (Hatton – Dallas – Branchill Road) D) C12E – Forres k) Details of proposed CCTV camera system which will be implemented at the site entrance to monitor adherence to the designated construction route. Thereafter, the development shall be completed in accordance with the approved details. Reason: To ensure an acceptable development in road safety terms through the provision of details currently lacking from the submission. 6. Prior to the commencement of construction and deliveries; a) The proposed new vehicular access on to the B9010 shall be developed to accommodate vehicle swept paths and have a maximum gradient of 1:20 measured for the first 5.0m from the edge of the public carriageway. The first 15 m of the access track, measured from the edge of the public road, shall be constructed to the Moray Council specification and surfaced with bituminous macadam. The level of the road at site access point shall be raised by 0.6m to establish the required visibility on the vertical plane. The additional temporary widening area should only use during the AILs deliveries and should be protected by an agreed barrier system to avoid entering other vehicles and to protect the edge of the road. b) A 50 metre length of hot rolled asphalt shall be provided on the B9010, 25 metres either side of the centreline of the access and the B9010 shall be widened to at least 6 metres over the length of the hot rolled asphalt section of the road at the new access junction including appropriate tapers, so that the delivery/construction vehicles do not have to overrun the verges when negotiating at the access junction. c) All suspensive works approved through condition (1 ,2,3,4 and 5), must be completed in accordance with the approved plans. Any works undertaken are to be permanent for the duration of the operation of the development unless otherwise agreed in writing with the Roads Authority. Page 134
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Thereafter, the development shall be completed in accordance with the approved details. Reason: The provision of details currently lacking and in order to ensure that acceptable infrastructure is provided on the route to/from the development in the interests of road safety. 7. Prior to any abnormal indivisible load being delivered to the site, a) All suspensive works approved through conditions (1 2, 3, 4, 5, 6a and 6b), must be completed in accordance with the approved plans. Any works undertaken are to be permanent for the duration of the operation of the development unless otherwise agreed in writing with the Roads Authority. b) Abnormal load trial run(s) must be undertaken after all mitigation works have been completed to confirm the works are acceptable and to identify any other restrictions not previously addressed and the frequency and location of abnormal load passing places/oncoming vehicle holding areas required. Representatives from Moray Council Transportation (Traffic), and Police Scotland must be invited to the trial run. Thereafter, the development shall be completed in accordance with the approved details. Reason: To ensure that acceptable infrastructure is provided on the route to/from the development in the interests of road safety. 8. No water shall be permitted to drain or loose material be carried onto the public footway/carriageway. Reason: To ensure the safety and free flow of traffic on the public road and access to the site by minimising the road safety impact from extraneous material and surface water in the vicinity of the new access. NOISE CONDITION 9. The rating level of noise immissions from the combined effects of the wind turbines (including the application of any tonal penalty and amplitude modulation (AM) penalty) when determined in accordance with the attached Guidance Notes (to this condition), shall not exceed the values for the relevant integer wind speed set out in, or derived from, the tables attached to these conditions at any dwelling which is lawfully existing or has planning permission at the date of this permission and: a) The wind farm operator shall continuously log power production, wind speed and wind direction, all in accordance with Guidance Note 1(d). These data shall be retained for a period of not less than 24 months. The wind farm operator shall provide this information in the format set out in Guidance Note 1(e) to the Page 135
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Local Planning Authority on its request, within 14 days of receipt in writing of such a request. b) No electricity shall be exported until the wind farm operator has submitted to the Local Planning Authority for written approval a list of proposed independent consultants who may undertake compliance measurements in accordance with this condition. Amendments to the list of approved consultants shall be made only with the prior written approval of the Local Planning Authority. c) Within 21 days from receipt of a written request from the Planning Authority following a complaint to it from an occupant of a dwelling alleging noise disturbance at that dwelling, the wind farm operator shall, at its expense, employ a consultant approved by the Local Planning Authority to assess the level of noise immissions from the wind farm at the complainant’s dwelling in accordance with the procedures described in the attached Guidance Notes. The written request from the Local Planning Authority shall set out at least the date, time and location that the complaint relates to and any identified atmospheric conditions, including wind direction, and include a statement as to whether, in the opinion of the Local Planning Authority, the noise giving rise to the complaint contains or is likely to contain a tonal component, or is likely to contain an amplitude modulation (AM) component. d) The assessment of the rating level of noise immissions shall be undertaken in accordance with an assessment protocol that shall, prior to the commencement of any measurements, have been submitted to and approved in writing by the Local Planning Authority. The protocol shall include the proposed measurement location identified in accordance with the Guidance Notes where measurements for compliance checking purposes shall be undertaken, whether noise giving rise to the complaint contains or is likely to contain a tonal component and/or amplitude modulation (AM) component and also the range of meteorological and operational conditions (which shall include the range of wind speeds, wind directions, power generation and times of day) to determine the assessment of rating level of noise immissions. The proposed range of conditions shall be those which prevailed during times when the complainant alleges there was disturbance due to noise, having regard to the written request of the Local Planning Authority under paragraph (c), and such others as the independent consultant considers likely to result in a breach of the noise limits. e) Where a dwelling to which a complaint is related is not listed in the tables attached to these conditions, the wind farm operator shall submit to the Local Planning authority for written approval proposed noise limits selected from those listed in the Tables to be adopted at the complainant’s dwelling for compliance checking purposes. The proposed noise limits are to be those limits selected from the Tables specified for a listed location which the independent consultant considers as being likely to experience the most similar background noise environment to that experienced at the complainant’s dwelling. The rating level of noise immissions resulting from the combined effects of the wind turbines when determined in accordance with the attached Page 136
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Guidance Notes shall not exceed the noise limits approved in writing by the Local Planning Authority for the complainant’s dwelling. f) The wind farm operator shall provide to the Local Planning Authority the independent consultant’s assessment of the rating level of noise immissions undertaken in accordance with the Guidance Notes within 2 months of the date of the written request of the Local Planning Authority for compliance measurements to be made under paragraph (c), unless the time limit is extended in writing by the Local Planning Authority. Unless otherwise agreed in writing by the Local Planning Authority, the assessment shall be accompanied by all data collected for the purposes of undertaking the compliance measurements, such data to be provided in the format set out in Guidance Note 1(e) of the Guidance Notes with the exception of audio data which shall be supplied in the format in which it is recorded. The instrumentation used to undertake the measurements shall be calibrated in accordance with Guidance Note 1(a) and certificates of calibration shall be submitted to the Local Planning Authority with the independent consultant’s assessment of the rating level of noise immissions. g) Where a further assessment of the rating level of noise immissions from the wind farm is required pursuant to Guidance Note 4(c), the wind farm operator shall submit a copy of the further assessment within 21 days of submission of the independent consultant’s assessment pursuant to paragraph (d) above unless the time limit has been extended in writing by the Local Planning Authority. Table 1: Between daytime (07:00 to 23:00 hours) – Noise limits expressed in dB LA90,10 minute as a function of the standardised wind speed (m/s) at 10 metre height as determined within the site averaged over 10 minute periods Location Standardised 10m height wind speed (m/s) 4 5 6 7 8 9 10 11 12 Craighead 37 37 39 42 45 46 47 46 45 The Lodge 37 37 39 42 44 46 48 50 50 Kellas House 37 37 39 41 44 46 48 50 50 Allt na Craoibh 37 37 39 41 44 46 48 50 50 Riverwood Cottage 37 37 37 39 42 44 47 49 49 An Halle 37 37 37 39 42 44 47 49 49 Milltown of Kellas 37 37 37 39 42 44 47 49 49 Post Office House 37 37 37 39 42 44 47 49 49 Mill of Kellas 37 37 37 39 42 44 47 49 49 Muir Cottage 37 37 37 39 42 44 47 49 49 Chapelstane 37 37 37 39 42 44 47 49 49 Old School House 37 37 37 39 42 44 47 49 49 The Old School 37 37 37 39 42 44 47 49 49 Brokentore 37 37 37 37 40 43 45 47 47 Mossend 37 37 37 37 40 43 45 47 47 Glenlatterach Farm 37 37 37 37 37 40 41 43 42 Glenview 38 37 37 39 42 44 47 49 49 Page 137
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Blackhills 38 37 37 37 40 43 45 47 47 Clashconnachie House 37 37 37 39 42 44 47 49 49 Clashconnachie 38 37 37 39 42 44 47 49 49 The Point 38 38 37 37 38 40 42 43 43 Table 2: Between night time periods (23:00 to 07:00 hours) – Noise limits expressed in dB LA90,10 minute as a function of the standardised wind speed (m/s) at 10 metre height as determined within the site averaged over 10 minute periods Location Standardised 10m height wind speed (m/s) 4 5 6 7 8 9 10 11 12 Craighead 37 37 37 36 38 41 45 48 47 The Lodge 37 37 37 37 40 42 44 46 45 Kellas House 37 37 37 37 39 42 44 46 45 Allt na Craoibh 37 37 37 37 39 42 44 46 45 Riverwood Cottage 37 37 37 37 36 37 40 45 44 An Halle 37 37 37 37 36 36 40 45 44 Milltown of Kellas 37 37 37 37 36 36 40 45 44 Post Office House 37 37 37 37 36 36 40 45 44 Mill of Kellas 37 37 37 37 36 36 40 45 44 Muir Cottage 37 37 37 37 36 36 40 45 44 Chapelstane 37 37 37 37 36 36 40 45 44 Old School House 37 37 37 37 36 36 40 45 44 The Old School 37 37 37 37 36 36 40 45 44 Brokentore 37 37 37 37 37 38 41 44 43 Mossend 37 37 37 36 36 38 41 44 43 Glenlatterach Farm 37 37 37 37 36 36 37 42 40 Glenview 38 37 37 37 37 37 41 45 45 Blackhills 38 37 37 37 36 38 41 44 44 Clashconnachie House 37 37 37 37 37 37 41 45 45 Clashconnachie 38 37 37 37 37 37 41 45 45 The Point 38 38 37 37 37 37 38 42 41 Table 3: Co-ordinate locations of the dwellings listed in Tables 1 and 2: Receptor Grid Reference Easting Northing Craighead 317423 854083 The Lodge 316721 853985 Kellas House 316598 853919 Allt na Craoibh 316715 854017 Riverwood Cottage 316843 854134 An Halle 316874 854170 Milltown of Kellas 317171 854326 Post Office House 316887 854208 Mill of Kellas 317237 854386 Muir Cottage 316916 854262 Chapelstane 316922 854313 Page 138
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Old School House 316946 854339 The Old School 316885 854379 Brokentore 318211 854929 Mossend 315563 853497 Glenlatterach Farm 319907 854341 Glenview 317498 854930 Blackhills 315227 853158 Clashconnachie House 316558 854648 Clashconnachie 316778 854754 The Point 319315 854860 Note to Table 3: The geographical coordinate references are provided for the purpose of identifying the general location of dwelling to which the noise limits apply. Reason: to protect the amenity of nearby dwellings and to prevent nuisance Guidance Notes for Noise Condition These notes are to be read with and form part of the noise condition. They further explain the condition and specify the methods to be employed in the assessment of complaints about noise immissions from the wind farm. The rating level at each integer wind speed is the arithmetic sum of the wind farm noise level as determined from the best-fit curve described in Guidance Note 2 of these Guidance Notes and any tonal penalty applied in accordance with Guidance Note 3, and any Amplitude Modulation (AM) penalty applied in Guidance Note 5. Reference to ETSU-R-97 refers to the publication entitled “The Assessment and Rating of Noise from Wind Farms” (1997) published by the Energy Technology Support Unit (ETSU) for the Department of Trade and Industry (DTI). Guidance Note 1 (a) Values of the LA90,10 minute noise statistic should be measured at the complainant’s property, using a sound level meter of EN 60651/BS EN 60804 Type 1, or BS EN 61672 Class 1 quality (or the equivalent UK adopted standard in force at the time of the measurements) set to measure using the fast time weighted response as specified in BS EN 60651/BS EN 60804 or BS EN 61672-1 (or the equivalent UK adopted standard in force at the time of the measurements). This should be calibrated in accordance with the procedure specified in BS 4142: 1997 (or the equivalent UK adopted standard in force at the time of the measurements). Measurements shall be undertaken in such a manner to enable a tonal penalty to be applied in accordance with Guidance Note 3. (b) The microphone should be mounted at 1.2 – 1.5 metres above ground level, fitted with a two-layer windshield or suitable equivalent approved in writing by the Local Planning Authority, and placed outside the complainant’s dwelling. Measurements should be made in “free field” conditions. To achieve this, the microphone should be placed at least 3.5 metres away from the building facade or any reflecting surface except the ground at the approved measurement location. In the event that the consent of the complainant for access to his or her dwelling to undertake compliance measurements is Page 139
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withheld, the wind farm operator shall submit for the written approval of the Local Planning Authority details of the proposed alternative representative measurement location prior to the commencement of measurements and the measurements shall be undertaken at the approved alternative representative measurement location. (c) The LA90,10 minute measurements should be synchronised with measurements of the 10-minute arithmetic mean wind and operational data logged in accordance with Guidance Note 1(d), including the power generation data from the turbine control systems of the wind farm. (d) To enable compliance with the conditions to be evaluated, the wind farm operator shall continuously log arithmetic mean wind speed in metres per second and wind direction in degrees from north at hub height for each turbine, and at any on site meteorological mast(s), if available, together with the arithmetic mean power generated by each turbine, all in successive 10- minute periods. All 10 minute arithmetic average mean wind speed data measured at hub height shall be ‘standardised’ to a reference height of 10 metres as described in ETSU-R-97 at page 120 using a reference roughness length of 0.05 metres . It is this standardised 10 metre height wind speed data, as determined from whichever source is agreed in writing with the Local Planning Authority as being most appropriate to the noise compliance measurements being undertaken, which is correlated with the noise measurements determined as valid in accordance with Guidance Note 2, such correlation to be undertaken in the manner described in Guidance Note 2. All 10-minute periods shall commence on the hour and in 10- minute increments thereafter. (e) Data provided to the Local Planning Authority in accordance with the noise condition shall be provided in comma separated values in electronic format. (f) A data logging rain gauge shall be installed in the course of the assessment of the levels of noise immissions. The gauge shall record over successive 10- minute periods synchronised with the periods of data recorded in accordance with Note 1(d). Guidance Note 2 (a) The noise measurements shall be made so as to provide not less than 20 valid data points as defined in Guidance Note 2 (b) (b) Valid data points are those measured in the conditions specified in the agreed written protocol under paragraph (d) of the noise condition, but excluding any periods of rainfall measured in the vicinity of the sound level meter. Rainfall shall be assessed by use of a rain gauge that shall log the occurrence of rainfall in each 10 minute period concurrent with the measurement periods set out in Guidance Note 1. (c) For those data points considered valid in accordance with Guidance Note 2(b), values of the LA90,10 minute noise measurements and corresponding values of the Page 140
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10- minute standardised ten metre height wind speed, as derived from the site measured wind speed source(s) agreed in writing with the Local Planning Authority in accordance with Guidance Note 1(d), shall be plotted on an XY chart with noise level on the Y-axis and the standardised mean wind speed on the X-axis. A least squares, “best fit” curve of an order deemed appropriate by the independent consultant (but which may not be higher than a fourth order) should be fitted to the data points and define the wind farm noise level at each integer speed. Guidance Note 3 (a) Where, in accordance with the approved assessment protocol under paragraph (d) of the noise condition, noise immissions at the location or locations where compliance measurements are being undertaken contain or are likely to contain a tonal component, a tonal penalty is to be calculated and applied using the following rating procedure. (b) For each 10 minute interval for which LA90,10 minute data have been determined as valid in accordance with Guidance Note 2 a tonal assessment shall be performed on noise immissions during 2 minutes of each 10 minute period. The 2 minute periods should be spaced at 10 minute intervals provided that uninterrupted uncorrupted data are available (“the standard procedure”). Where uncorrupted data are not available, the first available uninterrupted clean 2 minute period out of the affected overall 10 minute period shall be selected. Any such deviations from the standard procedure, as described in Section 2.1 on pages 104-109 of ETSU-R-97, shall be reported. (c) For each of the 2 minute samples the tone level above or below audibility shall be calculated by comparison with the audibility criterion given in Section 2.1 on pages 104 to 109 of ETSU-R-97. (d) The average tone level above audibility shall be calculated for each wind speed bin, each bin being 1 metre per second wide and centred on integer wind speeds. Samples for which the tones were below the audibility criterion or no tone was identified, a value of zero audibility shall be substituted. (e) The tonal penalty for each wind speed bin is derived from the margin above audibility of the tone according to the figure below. Page 141
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Guidance Note 4 (a) If a tonal penalty is to be applied in accordance with Guidance Note 3 the rating level of the turbine noise at each wind speed is the arithmetic sum of the measured noise level as determined from the best fit curve described in Guidance Note 2 and the penalty for tonal noise as derived in accordance with Guidance Note 3 at each integer wind speed within the range specified by the Local Planning Authority in its written protocol under paragraph (d) of the noise condition. (b) If no tonal penalty is to be applied then the rating level of the turbine noise at each wind speed is equal to the measured noise level as determined from the best fit curve described in Guidance Note 2. (c) In the event that the rating level is above the limit(s) set out in the Tables attached to the noise conditions or the noise limits for a complainant’s dwelling approved in accordance with paragraph (e) of the noise condition, the independent consultant shall undertake a further assessment of the rating level to correct for background noise so that the rating level relates to wind turbine noise immission only. (d) The wind farm operator shall ensure that all the wind turbines in the development are turned off for such period as the independent consultant requires to undertake the further assessment. The further assessment shall be undertaken in accordance with the following steps (e) To this end, the steps in Guidance Note 2 shall be repeated with the required number of turbines shut-down in accordance with Guidance Note 4(d) in order to determine the background noise (L3) at each integer wind speed within the range requested by the Local Planning Authority in its written request under paragraph (c) and the approved protocol under paragraph (d) of the noise condition. (f) The wind farm noise (L1) at this speed shall then be calculated as follows where L2 is the measured level with turbines running but without the addition of any tonal penalty: Page 142
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(g) The rating level shall be re-calculated by adding arithmetically the tonal penalty (if any is applied in accordance with Note 3) to the derived wind farm noise L1 at that integer wind speed. (h) If the rating level after adjustment for background noise contribution and adjustment for amplitude modulation and/or tonal penalties (if required in accordance with Guidance Note 3 and 5 ) at any integer wind speed lies at or below the values set out in the Tables attached to the conditions or at or below the noise limits approved by the Local Planning Authority for a complainant’s dwelling in accordance with paragraph (e) of the noise condition then no further action is necessary. If the rating level at any integer wind speed exceeds the values set out in the Tables attached to the conditions or the noise limits approved by the Local Planning Authority for a complainant’s dwelling in accordance with paragraph (e) of the noise condition then the development fails to comply with the conditions. Guidance Note 5 (a) Where, in accordance with the assessment protocol agreed under the noise condition, noise immissions at the location or locations where compliance measurements are being undertaken contain or are likely to contain an amplitude modulation component, an amplitude modulation penalty is to be calculated and applied using the following rating procedure. (b) The analysis of amplitude modulation shall be undertaken using the Institute of Acoustics (IOA) metric described in “A Method for Rating Amplitude Modulation in Wind Turbine Noise” dated 9th August 2016 or any update of that method. The value of AM obtained with the IOA metric for each ten- minute period shall be converted to a penalty in decibels in accordance with the graph below. At each integer wind speed, a penalty for AM would be based on the arithmetic average of the calculated penalties for all valid periods assessed at this wind speed. Page 143
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Guidance Note 6 1. At each integer wind speed, the tonal penalty determined in accordance with Guidance Note 3 and the amplitude modulation penalties determined in accordance with Guidance Note 5 would be added arithmetically, except where the AM penalty and the tonal penalty relate to the same characteristic (e.g. amplitude modulated tones), only the larger of the AM or tonal penalty should be applied. AMENITY CONDITIONS 10. There shall be no Commencement of Development unless full details of the proposed wind turbines (including the power rating, sound power levels, and tonality assessment carried out on the selected turbine) have been submitted to and approved in writing by the Planning Authority. Reason: to allow the Planning Authority to monitor compliance with controls on noise imposed by conditions on this consent. 11. Prior to the development commencing, a detailed noise impact assessment of the selected substation and battery storage development associated with the wind farm shall be carried out and reported in writing to the Planning Authority. Reason: to protect the amenity of nearby dwellings and other noise- sensitive properties and prevent nuisance. Page 144
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. 12. The wind farm operator shall employ an independent consultant, approved by the Planning Authority, to measure and where necessary calculate, at the operator’s own expense, the level of noise immisions from the wind turbines within the first year of the operation of the turbines. The measurement procedures, which may include filtering data according to wind direction, shall be agreed with the Planning Authority prior to commencement. The results of any measurement exercise shall be forwarded to the Planning Authority as soon as practicable after the completion of the monitoring exercise. Reason: to check compliance with the immission limits set in the Noise Condition above and thereby to protect the amenity of nearby dwellings and prevent nuisance 13. a) Construction work shall only take place on the site between the hours of 07.00 to 19.00 on Monday to Friday inclusive and 07.00 to 16.00 on Saturdays , with no construction work taking place on a Sunday or on national public holidays or bank holidays other than concrete pouring if started within those hours , turbine erection and emergency works . The developer shall notify the Planning Authority of such works if carried out outside the permitted hours within two working days of their occurrence b) Heavy Goods Vehicles (HGV) movements to and from the site (excluding abnormal loads) during construction of the wind farm shall be limited to 07.00 to 19.00 Monday to Friday, and 07.00 to 16.00 on Saturdays, with no HGV movements to or from site taking place on a Sunday or on national public holidays or bank holidays unless otherwise agreed in writing by the Planning Authority. c) Turbine delivery may be made out with these construction hours, where necessary, and as agreed in writing in advance with the Planning Authority. For the avoidance of doubt the public holidays or bank holidays are detailed as follows: • New Year's Day, if it is not a Sunday or, if it is a Sunday, 3rd January; • 2nd January, if it is not a Sunday or, if it is a Sunday, 3rd January; • Good Friday; • The first Monday in May; • The first Monday in August; • 30th November, if it is not a Saturday or Sunday or, if it is a Saturday or Sunday, the first Monday following that day; • Christmas Day, if it is not a Sunday or if it is a Sunday, 27th December; and Boxing Day, if it is not a Sunday or, if it is a Sunday, the 27th December Reason: To protect local residents from noise nuisance in ensuring the construction phase is restricted within permitted hours. Page 145
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14. Prior to the commencement of the development and in accordance with the Outline Construction Environmental Management Plan in Technical Appendix 15.1 of the Environmental Statement supporting document by Atmos Consulting, dated March 2024 and titled “Kellas Wind Farm”, a detailed construction Environmental Management Plan shall be submitted and approved by the Council as Planning Authority. Thereafter, the development’s construction phase shall be carried out in accordance with the approved details described here. Reason: In order that environmental emissions are considered and managed at the construction phase, in order to protect local residents. 15. Prior to the commencing of any blasting operations for the formation of borrow pits associated with the development, a scheme for the monitoring of blasting including the location of monitoring points and equipment to be used shall be submitted to the planning authority for written approval. All blasting operations shall take place only in accordance with the scheme as approved or with subsequent amendments as may receive the written approval of the planning authority. Reason - In order that vibration emissions from blasting are considered and managed at the construction phase, in order to protect local residents. 16. In the formation of borrow pits, blasting times shall be restricted as follows: a) No blasting shall be carried out on the site except between the following times (1000 and 1200 hours) and (1400 and 1600 hours) on Mondays to Fridays and (1000 and 1200 hours) on Saturdays. b) There shall be no blasting or drilling operations on Sundays, Bank Holidays or National Holidays. c) The above condition shall not apply in cases of emergency when it is considered necessary to carry out blasting operations in the interests of safety. The Planning Authority shall be notified in writing immediately of the nature and circumstances of any such event. Reason: to protect the amenity of nearby dwellings from noise, vibration from blasting and to prevent nuisance 17. Ground vibration as a result of blasting operations to form borrow pits at the site shall not exceed a peak particle velocity of 10mms-1 in 95% of all blasts and no individual blast shall exceed a peak particle velocity of 12mms-1 as measured at vibration sensitive buildings. The measurement shall be the maximum of 3 mutually perpendicular directions taken at the ground surface at any vibration sensitive building. Page 146
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Reason: to protect the amenity of nearby dwellings from noise, vibration from blasting and to prevent nuisance 18. At the reasonable request of the Planning Authority, following a complaint relating to vibration from blasting operations to form borrow pits, the developer shall measure at its own expense ground vibration to ensure compliance with the above condition. The results of such monitoring shall thereafter be forwarded to the Planning Authority. Reason: to protect the amenity of nearby dwellings from noise, vibration from blasting and to prevent nuisance 19. At the reasonable request of the Planning Authority following a complaint the wind farm operator shall investigate and instigate appropriate mitigation measures to minimise the effects of shadow flicker. Reason: to protect the amenity of nearby dwellings from shadow flicker and to prevent nuisance. ARCHAEOLOGY 20. No works in connection with the development hereby approved shall commence unless an archaeological written scheme of investigation (WSI) has been submitted to and approved in writing by the planning authority and a programme of archaeological works has been carried out in accordance with the approved WSI. The WSI shall include details of how the recording and recovery of archaeological resources found within the application site shall be undertaken, and how any updates, if required, to the written scheme of investigation will be provided throughout the implementation of the programme of archaeological works. Should the archaeological works reveal the need for post excavation analysis the development hereby approved shall not be brought into use unless a post- excavation research design (PERD) for the analysis, publication and dissemination of results and archive deposition has been submitted to and approved in writing by the planning authority. The PERD shall be carried out in complete accordance with the approved details. Reason: To safeguard and record the archaeological potential of the area. 21. No works in connection with the development hereby approved shall commence unless a site protection plan has been submitted to and approved in writing by the planning authority. Site protection measures shall be shown on a layout plan accompanied by descriptive text and shall include: a) The location of the historic environment features to be protected during construction works; and b) The position and details of the warning signs and protective fencing to be erected. No works in connection with the development hereby approved shall commence unless the site protection measures have been implemented in full in accordance with the approved details. All protective fencing and warning signs shall be retained Page 147
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during the construction period in accordance with the approved details and no works shall take place at any time within the protected areas. Reason: In the interests of protecting known features of the historic environment. BATTERY ENERGY STORAGE SAFETY 22. Prior to development commencing, a detailed plan addressing the procedures and operations to tackle and extinguish a fire or other polluting incident at the battery storage unit adjacent to the substation must be submitted to and approved by the Council (as Planning Authority) in consultation with the HSE, the Building Standards Section of Moray Council and Fire and Rescue Scotland. This should include contingencies for subsequent wild/moorland fire. Reason: In order to ensure full consideration can be given to the suitability of site for such a use, and to ensure that development has contingencies in place to minimise damage or risk to human health. ACCESS PLAN 23. No development shall commence until an Access Plan has been submitted to and approved in writing by the Planning Authority. The Access Plan will include the consideration of the upgrade of the existing tracks, the formation of new tracks and other improvements to provide enhanced access opportunities and improvements to track surfaces across the proposed development area. Reason: to improve public access to the site. COMPENSATORY PLANTING 24. No development shall commence unless and until a woodland compensatory planting plan (CPP) in accordance with the Scottish Government Control of Woodland Removal Policy (or such replacement as may be in place at the time that the CPP is submitted for approval) has been submitted to and approved in writing by the Planning Authority in consultation with Forestry Scotland (FS). The CPP shall provide details of the planting of woodland within the Site. The CPP shall include:- (a) The location and details of the proposed planting, timescales for implementation and its maintenance for the operational period of the Development; and (b) A silvicultural proposal for compensatory planting and a protection plan for the life of the development. Reason: to enable appropriate woodland removal to take place in accordance with the current Scottish Government Control of Woodland Removal Policy. HABITAT MANAGEMENT AND BIODIVERSITY ENHANCEMENT PLAN 25. No development shall commence until a detailed Habitat Management and Biodiversity Enhancement Plan (HMBEP) has been submitted to and approved in Page 148
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writing by the Planning Authority in consultation with NatureScot, SEPA and RSPB. This shall be prepared in accordance with and follow on from the approved document “Technical Appendix 6-4: Outline Habitat Management and Biodiversity Enhancement” for Kellas Drum dated January 2025. Unless otherwise approved in advance in writing with the Planning Authority, the approved HMBEP shall be implemented in full. Reason: In the interests of the protection of the habitats of those species identified in the EIA Report and provision of biodiversity enhancement. COMMUNITY WEALTH BUILDING 26. Prior to development commencing, a Community Wealth Building Plan shall be submitted to and approved in writing by the Council, as Planning Authority. The plan shall be prepared in accordance with the Moray Council’s adopted “Community Wealth Building Planning Guidance” and shall also be accompanied by a monitoring statement, which shall demonstrate how the development will deliver beneficial effects to the local economy from the construction and operation of the approved wind farm. Thereafter the development shall be implemented in accordance with the approved details, unless otherwise agreed in writing with the Council as Planning Authority. Reason: To ensure compliance with National Planning Framework 4 policies 11 and 25 with regard to community wealth building. PLANNING PERMISSION 13/00615/EIA (KELLAS WIND FARM) 27. The development hereby approved forms part of, and is related to a development granted planning permission under formal decision notice 13/00615/EIA dated 12 November 2014 and no part of the development hereby approved shall be exercised in conjunction with, or in addition to, the details already approved for that development except in so far as the previously approved details have been completed at the date of this decision notice. Reason: To ensure a satisfactory form of development and that only one permission is implemented, the development hereby approved being considered as an acceptable alternative to that already approved and not an addition thereto. DRINKING WATER PROTECTION PLAN 28. In the event that the wholesomeness or adequacy of any private water supply becomes affected by construction activity, all users of such supplies and Environmental Health Manager of Moray Council must be contacted to discuss remediation measures as a priority. Thereafter repair of any affected private water supply must be carried be to the satisfaction of the Council as Planning Authority in consultation with the Environment Health Manager. The Council shall be the final arbiter whether any supply has been affected by this development. Reason: To ensure that the adequacy and wholesomeness of private water supplies are protected at all phases of the project. Page 149
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INFORMATIVE NOTES MORAY COUNCIL TRANSPORTATION Please note that there are several sensitive receptors adjacent the proposed delivery routes such as Mosstowie Primary School, Dr Gray’s Hospital, The Grove Care Home, Miltonduff settlement and Ark Childcare centre. This would need to be considered while preparing the Construction Traffic Management Plan. Additional safeguarding may be required to mitigate any impacts on these locations. Based on the Swept Path Analysis, all public road widening to accommodate vehicle overrun areas up to 6m, curve widening areas (more than 6m), widening to provide better two-lane approaches and required improvements to junction turning facilities should be permanent full road construction and only additional widening to be considered as temporary. All marginally widening of carriageway should not be less than 1m wide to allow for proper compaction and construction with the formation of a stepped linear joint into carriageway. At any locations where kerbing is provided as an edge of the existing carriageway, this must be replicated at the edge of any permanent widening. Any permanent widening must consider the impact on road drainage especially additional run off areas. All alterations either permanent or temporary must not be to the detriment of any existing road drainage, which must be retained, relocated or reinstated to the satisfaction of Roads Maintenance on completion of all abnormal traffic movements. Roads Maintenance have concerns over structural capability of some of the council roads proposed for the delivery of abnormal loads, in particular Miltonduff-Lochside Road (C26E) and section of B9010 from Cloddach to site access. Therefore, road coring would be required to show that abnormal loadings on these minor roads would not have a detrimental effect on the road structure during the abnormal load deliveries and increased HGV movements. At the junction between the B9010 and the Elgin - Pluscarden - Rafford Road (C3E), Roads Maintenance have drainage assets beyond the road boundary fence on the east side of the junction. If Route 2 (alternative) was selected to deliver abnormal loads, additional details would be required to demonstrate how the drainage assets would be protected during abnormal load deliveries. The integrity of the verge alongside the Coalkettich Burn opposite Viewhill on the Miltonduff-Lochside Road (C26E) is of a particular concern to Roads Maintenance. The ground conditions in this area are akin to running sand and any verge works would require to be constructed with a rock pitching toe and rock armoured side slopes. There are several areas where developer would be required to deal with mature trees in third party land on the outskirts of Elgin. Therefore, it is important to draw the attention Page 150
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of the developer regarding the practicalities of using B9010 and other rural roads for the delivery of proposed abnormal loads given the amount of obstructions on third party lands. Temporary parking restrictions will be required on the Pluscarden Road, between Dr Gray’s Roundabout and Grant’s Road (limited to busiest times during construction period). Where substantial earthworks are required to accommodate over sail areas (e.g. bends east of Kellas), these areas should be considered as permanent earthworks and a minimum verge upstand of 300mm would be required to discourage vehicle overrun. If the carriageway is widened to 6m or wider than 6m in these areas, a 100mm upstand would be sufficient. Signs which are in place for road safety reasons must be socketed, removed as AiL’s approach and reinstated immediately after the vehicles pass. It is not acceptable to overrun central refuge / splitter islands, they are not constructed to take vehicle loadings. Proposals submitted must show how this will be managed during deliveries. It is also not appropriate to remove signing for the duration of the abnormal loads therefore confirmation of how signs will be managed during the delivery phase needs to be agreed. Some of the side tracks which join the public road may appear to be part of the public road as they have a thin layer of tar on them. It is unlikely that there is suitable road construction under any of them and where they are being utilised each location should be assessed and reconstructed if necessary. Prior to completion of the development, all areas of temporary over-run must be reinstated to an appropriate standard. Example 300mm thick dressed topsoil and reseeded appropriate for the surroundings. Additional details for all areas of road widening and new passing places must also include drainage details to accommodate the additional road surface area. Transport Scotland must be consulted with respect to all deliveries proposed via the Trunk Road. The neighbouring Local Authorities, through which the delivery route may pass, must be consulted as appropriate. The applicant is obliged to apply for a road opening permit in accordance with Section 85 of the Roads (Scotland) Act 1984. Advice on this matter can be obtained by emailing roads.permits@moray.gov.uk and reference to the following page on the Council web site Road Opening: http://www.moray.gov.uk/moray_standard/page_79860.html Planning consent does not carry with it the right to construct a new road or any part of a road. In accordance with Section 21 of the Roads (Scotland) Act 1984 Construction Consent for new roads (includes passing places), that will form part of the public road will be required. Advice on this matter can be obtained by emailing Page 151
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Transport.Develop@moray.gov.uk and reference to the following pages on the Council web site. Checklist: http://www.moray.gov.uk/downloads/file68812.pdf RCC: http://www.moray.gov.uk/moray_standard/page_65638.html Specification http://www.moray.gov.uk/downloads/file68813.pdf Technical Approval will be required for the proposed new vehicular access on to the B9016. The applicant is obliged to apply for permission to modify the existing public road, in accordance with Section 48 of the Roads (Scotland) Act. The applicant will be required to provide technical information, including drawings and drainage calculations, a programme for the proposed works. Advice on the application process can be obtained by emailing transport.develop@moray.gov.uk Public utility apparatus may be affected by this proposal. Contact the appropriate utility service in respect of any necessary utility service alterations which have to be carried out at the expense of the developer. If required, street furniture will need to be repositioned at the expense of the developer. In addition any existing roadside ditch may require a pipe or culvert. Advice on these matters can be obtained by emailing road.maint@moray.gov.uk The applicants shall be responsible for any necessary diversion of any utilities or drainage present at the locations where works are to be undertaken. The applicants shall meet all costs of improvements to the road infrastructure, which are required as a result of the development. The applicants shall meet all costs of removal and re-erection of road signage, which are required as a result of the delivery of the abnormal loads. The applicants shall meet all costs of diverting any footpath or cycleway during the construction period, including signage. The applicants shall free and relieve the Roads Authority from any claims arising out of his operations on the road or extension to the road. No retaining structures or embankments shall be constructed along the edge of the road, whether retaining the public road or ground adjoining the public road without prior consultation and agreement of the Roads Authority. Bridges and Structures – It is required to undertake an assessment of all bridges on the delivery route within the Moray Council area. The developer must contact the Senior Engineer for Bridges and Structures to discuss the proposals via structures@moray.gov.uk Construction Traffic Management Plan - The developer must contact the Senior Engineer Transportation discuss the proposals via transport.develop@moray.gov.uk Page 152
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Plans, drawings and other material submitted to the local authority are protected by the Copyright, Designs and Patents Act 1988 (section 47). You may only use material which is downloaded and/ or printed for consultation purposes, to compare current applications with previous schemes and to check whether developments have been completed in accordance with approved plans. Further copies must not be made without the prior permission of the copyright owner. Maps shown in the Planning Committee Report can only be used for the purposes of the Planning Committee. Any other use risks infringing Crown Copyright and may lead to prosecution or civil proceedings. Maps produced within this Planning Committee Report can only be reproduced with the express permission of the Moray Council and other Copyright holders. This permission must be granted in advance. PLANNING APPLICATION COMMITTEE SITE PLAN Site Address: Kellas Drum Wind Farm, Kellas Planning Application Ref Number: 24/00486/S36 Location Plan Applicant Name: EPower Limited Page 153
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Site Context Plan Page 154
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Site Location Plan Page 155
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Site Layout Plan 16/01664/ APP Page 156
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Indicative Turbine Elevations (185m) 16/ Page 157
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BESS Indicative Layout and Container Elevations/Plan 16/ Page 158
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Report to: Planning and Regulatory Services Committee Meeting Date: 27 May 2025 Report by: Depute Chief Executive (Economy, Environment and Finance) Report No: EDG006/25 Author: Richard Smith Principal Planning Officer Contact Email: richard.smith@moray.gov.uk Subject: 25/00043/S36 Consultation on Section 36 application for the construction and operation of a 349MW battery energy storage system (BESS) with associated infrastructure including access roads, substation building, supporting equipment, fencing, drainage, and landscaping on land at Gibston farm, Blackhillock, Keith 1. PURPOSE ☒ For Decision ☐ For Information 1.1 The purpose of this report is to consider a consultation received from the Energy Consents Unit (ECU) of the Scottish Government in relation to an Electricity Act 1989 Section 36 application (which includes deemed planning permission) for a new Battery Energy Storage System. This Section of the Electricity Act relates to consenting onshore electricity generating stations. 1.2 This report is submitted to Committee in terms of Section III (E) (1) of the Council's Scheme of Administration relating to exercising the functions of the Council as Planning Authority. 2. SUMMARY 2.1 This report considers the consultation request for a proposed Battery Energy Storage System with a storage capacity of up to 349 megawatts. It recommends that the Council raise no objection to the consultation, subject to a suite of recommended planning conditions to mitigate the impact of the proposed BESS development on the environment, local infrastructure, and amenity of the surrounding area. 3. RECOMMENDATIONS Page 159
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3.1 It is recommended that Committee: i) consider and note the contents of the report, as set out in Appendix 1, including the conclusions regarding the planning and wider merits of the proposed development (see Section 5 below), where taking into account the National Planning Framework 4, Moray Local Development Plan 2020 and all other material considerations, it is recommended that Moray Council does not object to the Section 36 application; and ii) as such agree to respond to the consultation from the Energy Consents Unit, raising no objection to the proposed development on the basis of the recommendations set out in Appendix 1 and conditions in Appendix 2. 3.2 i) It is also open to the Committee to object to the Section 36 application, but officers recommend the approach suggested in 3.1 ii) above. ii) Author Name: Richard Smith Job Title: Principal Planning Officer 4. BACKGROUND AND CONTEXT 4.1 As the proposal seeks consent for a Battery Energy Storage System with a storage capacity that will exceed 50MW, the proposal is to be determined by the Energy Consents Unit within the Scottish Government. Responsibility for consultation with statutory consultees, relevant local authorities, receipt of representations and determination lies with the ECU. In these circumstances the role of the Council, as planning authority, is as a consultee rather than being the determining authority. The ECU has invited the Council to comment on the proposed application within a specific timeframe along with other consultees. The period for consultation for the Council expires on 13 May 2025 and an extension to this period has been granted to accommodate referral to this Committee. Where the Council objects to a Section 36 consultation, this will usually trigger a Public Local Inquiry (PLI). 5. PROPOSALS 5.1 The application seeks consent to construct and operate a 349MW capacity Battery Energy Storage System (BESS) with associated infrastructure including access roads, substation buildings, acoustic fencing, drainage, and landscaping on a 9.1hectare site located immediately to the east of Blackhillock Substation, as shown in Appendix 3. The development would comprise two compounds containing 208 battery containers separated by overhead powerlines, and associated equipment built on several tiers and would connect into the adjacent Substation via a short underground cable. 5.2 The application and associated supporting information have been assessed against National Planning Framework 4, the Moray Local Development Plan 2020 and other material considerations. The assessment has also been informed by responses from relevant internal consultees. The report and recommendation are set out in Appendix 1. 5.3 The proposed BESS represents a significant infrastructure development that would support the continued development of renewable energy sources and enhance the Page 160
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National Grid network, to ensure sufficient supply of stable energy. The proposal would be in accordance with national and local plan policies which support the expansion of renewable energy and would contribute towards net zero emission targets. The development is strategically located in close proximity to the existing Blackhillock substation, avoiding the need for lengthy transmission cables and ensuring an efficient connection to the grid, and has been designed with proposed mitigation to ensure that there are no unacceptable adverse impacts on the natural, built and cultural heritage resources, and will avoid significant adverse impacts on the environment. 5.4 Based on these conclusions, in responding to the request for consultation, it would be appropriate for the Council to advise the Scottish Government that it wishes to raise no objection to the proposal to install a Battery Energy Storage System and associated infrastructure at the site and recommends the conditions (Appendix 2) to be attached to any consent granted by the Energy Consents Unit. 6. SUMMARY OF IMPLICATIONS 6.1 The table below shows whether risks and implications apply if the recommendations are agreed: SUBJECT YES NO Corporate Plan and 10 Year Plan (Local Outcome Improvement Plan) X Policy and Legal X Financial X Risk X Staffing X Best Value and Transformation X Property X Information Communications Technology/Digital X Equalities. Social Inclusion and Economic Impact X Climate Change and Biodiversity Impact X 6.2 Corporate Plan and 10 Year Plan (Local Outcomes Improvement Plan (LOIP)) Improved Collaborative Leadership, as part of continuous improvement through Best Value, will better enable the Council to fulfil the ambitions set out in its strategic plans. a) Links to Council Corporate Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following Council Plan strategic priorities: ☐ Tackle Poverty and Inequality. ☒ Build Stronger Greener Vibrant Economy. ☐ Build Thriving, resilient, empowered Communities. b) Links to Local Outcomes Improvement Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following Local Outcomes Improvement Plan priorities: ☒ Developing a diverse, inclusive, and sustainable economy ☐ Building a better future for our children and young people in Moray. Page 161
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☐ Empowering and connecting communities. ☐ Improving wellbeing of our population 6.3 Policy and Legal The application is made for consent under section 36 of the Electricity Act 1989 to the ECU. If consented, planning permission is deemed to be granted for the development and the responsibility for the discharge of (planning) conditions attached to the permission will pass to the Council. 6.4 Financial If the Council raises an objection to the proposal, a Public Local Inquiry (PLI) would be arranged by the ECU. The Council would be expected to attend and participate in the Inquiry process, including any pre-Inquiry arrangements with resultant costs, including officer, legal representation, and consultant costs where required/appropriate. As officers have recommended no objection it should be noted that any case presented to a PLI would need to be made by the relevant Councillors who moved against the officer recommendation. At Inquiry, the applicant may seek an award of costs against the Council if it is considered the Council has acted unreasonably. One off Costs: Service Area Budget Budget Years Proposed Spend this Year Virement From Other Comments n/a n/a n/a n/a n/a Only if objection. PLI costs – estimate. Annually Recurring Costs: Service Area Budget With Effect From Annual Net Impact Virement From (if applicable) Other Comments n/a n/a n/a n/a n/a n/a 6.5 Risk If the Council decide not to respond within the agreed period, it would be open to Scottish Government to proceed and determine the application. 6.6 Staffing In the event of a Public Local Inquiry, staff time and resources (Members, legal and planning officers) will be required for preparation and attendance at any Inquiry. 6.7 Best Value and Transformation None. 6.8 Property Page 162
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None. 6.9 Information Communications/Technology/Digital None. 6.10 Equalities, Social Inclusion and Economic Impact None. 6.11 Climate Change and Biodiversity Impacts As detailed in the Appendix 1 report, the proposed development would support the continued development of renewable energy sources meeting net zero targets and enhance the National Grid network, to ensure sufficient supply of stable energy. Biodiversity and other environmental impacts are sought to be mitigated by measures proposed within the application. 7. CONSULTATION 7.1 This report has been prepared in consultation with the Depute Chief Executive (Economy, Environment and Finance), the Acting Head of Economic Growth and Development, the Legal Services Manager, the Acting Development Management and Building Standards Manager, the Equal Opportunities Officer, the Strategic Planning and Development Manager, and the Democratic Services Manager and any comments made have been incorporated into the report. Page 163
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APPENDIX 1 MORAY COUNCIL Response to consultation issued by Scottish Ministers THE ELECTRICITY ACT 1989 – SECTION 36 ELECTRICITY (APPLICATIONS FOR CONSENT) REGUALTIONS 1990 CONSTRUCTION AND OPERATION OF A 349MW BATTERY ENERGY STORAGE SYSTEM (BESS) WITH ASSOCIATED INFRASTRUCTURE INCLUDING ACCESS ROADS, SUB-STATION BUILDINGS, SUPPORTING EQUIPMENT, FENCING, DRAINAGE AND LANDSCAPING ON LAND AT GIBSTON FARM, BLACKHILLOCK, KEITH (MORAY COUNCIL REFERENCE 25/00043/S36) 1. INTRODUCTION 1.1 On 13 January 2025 Blackhillock Flexpower Ltd submitted an application under Section 36 of the Electricity Act 1989 requesting Scottish Ministers’ grant consent to construct and operate a 349MW Battery energy storage system on land at Gibston Farm, Blackhillock 1.5km south of Keith. 1.2 This application will be determined by Scottish Ministers via the Scottish Government’s Energy Consents Unit (ECU), and not by Moray Council as the local planning authority. 1.3 In determining the Section 36 application, the views of Moray Council, as local planning authority are being sought by the ECU. The Council’s role in the process is therefore as a statutory consultee. In responding with comments, the Council has a right to object or not to the application, as well as commenting on the conditioning of the consent. If the Council objects to the proposed development and the objection is not later withdrawn, or the areas of objection cannot be addressed by conditions then the ECU are likely to convene a Public Local Inquiry. 1.4 Prior to determination, the ECU are responsible for affording publicity of the proposal and taking account of all representations received, whether from the general public or interested parties, and for consulting with agencies and organisations (consultees). Internal consultation with relevant services/sections within the Council has been undertaken in order to provide a comprehensive response in responding to the consultation. 2. THE PROPOSAL 2.1 The proposed development comprises the following elements: Page 164
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• A compound containing 208 battery containers, 3m in height, along with associated 104 inverter units and 52 transformers. • The containers will be laid out in sections with between 36 and 12 containers in each section. Within each section the containers are grouped in pairs. The sections are set out on 9 terraces within the site. The site will be split into roughly north and south deployment areas due to the wayleave required for the overhead lines that run north-east across the site. • Two inverters and two transformers will be sited at the end of each section and each terrace will be provided with short access tracks for accessibility and maintenance. • A 400kV substation will be provided at the south-west of the site, accommodating the infrastructure which will comprise of two 33/400kV super grid transformers and gas insulated switchgear, contained within a building of varying height up to 10m, length up to 50m and width up to 20m. • Associated equipment will comprise 7 x emergency diesel (back up) generators, 7 x 33kV substations, 7 x control room/containers, a main control room, amenities building, storage containers, CCTV, and lighting. • Earth bunds (maximum height of 2m) will be formed at the south, south-east, and west boundaries of the site. • Acoustic baffles, ranging between 2 – 4m tall, surrounding the site perimeter as well as each individual section. These shall be, where possible, mounted on bunds (2m) or supportive structures to reduce wind loading whilst maintaining the height from ground required to reduce noise propagation. • A large SUDs Pond / reservoir will be provided towards the north of the site, with a water pump room / value room located adjacent. Additional attenuation ponds are also proposed along the south / south-east boundary of the site. • Water channel runs will be provided around each terrace and additional catchment ponds will be created downstream to collect water for pumping back to SUDs Pond. • Green painted metal or close boarded timber security fencing between 2.4m and 4m in height around the site. • Access to the site will be provided from the gates to the north from Blackhillock Road U43H. An emergency access is proposed to connect to Gibston Farm and associated access, to the west of the site. This will be fitted with crash gate and only accessible to emergency vehicles. • An underground cable will connect the BESS facility to the Blackhillock substation which will run under the public highway. • Consent is sought for an operational period of between 25 and 40 years, after which the proposal would be decommissioned and site restored to agricultural use, should there be no further consents to extend the period of operation. • Landscaping is proposed to provide visual screening and enhance biodiversity. This includes native trees and structure planting across the site and around the site edge, wildflower, hedgerow and shrub and meadow grassland planting, and a pre-planted ivy screens on earth bunds, with further native planting to assimilate the terraces into the sloping landform. • Supporting documents in addition to formal application documents comprising the accompanying plans, sections, and elevations include: • Planning and Policy Compliance Statement • Community Wealth Building Plan (CWBP) Page 165
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• Pre-Application Consultation Report (PACR) • Design and Access Statement (DAS) • Confidential Ecological Survey Report • Confidential Protected Species Report • Biodiversity Net Gain Feasibility Report • Heritage Impact Assessment • Transport Statement • Landscape Visual Appraisal and Landscape Strategy • Noise Impact Assessment • Drainage Impact Assessment • Ground Investigation Report • Topographical Survey • Construction Traffic Management Plan (CTMP) • Carbon Assessment • Fire Assessment 3. THE SITE • The application site covers an area of 9.1 hectares and lies 1.5km to the south of Keith, on the western side of the A96. • It comprises agricultural land to the east of Gibston Farm and is an irregular shape. Boundaries are defined by post and wire fences. To the north and south is further agricultural land. To the east is the A96. • The land falls from west to east, towards the A96 east of the site. The boundaries to the site are generally open, being formed by scrub and watercourse to the southeast and field boundaries to the north and south. There are no trees or hedgerows on the site. The Blackhillock U43H Road forms the boundary to the west of the existing agricultural steading and from which the site has access. • Overhead high voltage power lines run through the site in a southwest to northeast direction, with three set of pylons contained within or in close proximity to the site boundary. • The site is bounded by the Blackhillock electricity sub-station to the immediate west, on the other side of the U43H road and which is on a slightly elevated level than that of the site. The smaller Beatrice Onshore Substation - Offshore Windfarm lies further to the west of the substation. A permanent building compound associated with an HVDC convertor station lies to the south of the site, which contains portacabin type buildings, a large hard surfaced area, and the ruins of an old steading. The Cairdshill Quarry lies further to the south. • The SEPA indicative flood maps show the site is not at risk from surface water flooding or river flooding. • There are no known sites of local archaeological interest within the site boundary. • The 1km buffer for the regional high pressure gas pipeline runs through the western half of the site. • The land is class 3.2 ‘capable of supporting mixed agriculture’ and not prime agricultural land. Page 166
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• There are no ecology designations within or immediately surrounding the site; the closest are the Mill Wood and Den of Pitlurg Sites of Special Scientific Interest (SSSI) 2km northeast and 3km south of the site boundary. 4. HISTORY For the site: 23/00744/PEMAJ - Preliminary enquiry for proposed installation of 349MW battery energy storage system (BESS) including associated infrastructure and landscaping on land at Gibston Farm, Keith. 23/01032/S36SCN - EIA Screening Opinion issued in relation to a proposed 349MW Battery Energy Storage System (BESS) with associated infrastructure including access road, storage units, fencing and landscaping on land to rear of Gibston Farm, Keith - issued 28 July 2023. Response confirmed development is not EIA development. For the area: 24/00986/APP – Planning permission granted 23 October 2024 for variation of conditions 6, 13, 15 and 18 imposed on 22/00067/S36 to address change in bund dimensions at BESS on land south of Blackhillock Substation. This lies 800m to the south of the application site. 22/000067/S36 – Section 36 consent granted (by ECU) 30 September 2022 to install a battery energy storage system (BESS) with associated infrastructure on land south of Blackhillock Substation. 21/01777/APP - Planning approval granted 1 March 2022 for the installation of synchronous compensators with electrical connection to adjacent substation and associated infrastructure on land adjacent Blackhillock and Beatrice Onshore Substations. This lies 820m to the west of the application site and is nearing completion. 15/00631/EIA – Planning approval granted 3 November 2015 for the erection of electricity substation/convertor station at Blackhillock with access road ancillary works and underground cable link to Portgordon all to service Beatrice Offshore Wind Farm on land between Portgordon and Blackhillock Croft, Keith, Moray. 12/01774/EIA – Planning approval granted 22 February 2013 for the erection of electricity substation/convertor station with access road ancillary works and underground cable link to Portgordon to service Beatrice Offshore Wind Farm at Blackhillock Croft, Keith, Moray. 5. ADVERTISEMENTS • Advertisements are carried out by the ECU who is the determining authority for the application. 6. CONSULTATIONS Page 167
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As noted above, consultations are limited to Council services. Consultations with external bodies are undertaken directly by the Energy Consents Unit. Internal consultation responses from Council departments are summarised as follows: Strategic Planning & Development – The proposal and supporting information complies with relevant National Planning Framework policies 1, 2, 3, 11, 25, 29, associated Moray Planning Policy Guidance and Moray Local Development Plan (MLDP) 2020 policies DP1, DP9, and EP2. It is located on land which is identified in the Keith Green Energy & Infrastructure Framework as being suitable for battery storage developments. The proposed development is a National Development and, at 349 MW, will contribute towards net zero emission targets and a stable energy supply. A locational need for the site has been established through the adjacent Blackhillock Substation as the proposal requires to be close to the facility in order to effectively provide a variety of services to the electricity transmission network. A Landscape & Visual Impact Assessment (LVIA) has been submitted in support of the application and concludes that the scale and degree of change on the landscape character would be slightly adverse, however this would be mitigated through landscaping to a moderate effect. Whilst the development is of a large-scale, the proposal integrates the development into the landscape through its siting, design, and landscaping and as a result will be largely visually associated with the adjacent Substation. Proposed landscaping, ivy-clad acoustic fencing and colour palettes will help integrate the development into the landscape and minimise any potential landscape and visual impacts. A Landscaping Plan has been provided which sets out indicative details for the site. As far as possible, this planting should be provided prior to development to advance the mitigation that it will provide. An appropriate planning condition should be sought for a detailed Landscaping Plan which sets out detailed information about species, specifications, and numbers as well as timescales for planting and ongoing maintenance. In compliance with NPF4 Policy 2 and associated Moray PPG, a Carbon Assessment has been submitted in support of the application which sets out how the proposed development minimises emissions and any barriers to achieving net-zero. A Community Wealth Building Plan (CWBP) has been submitted in support of the application setting out how the proposal maximises local employment and skills opportunities and stimulates local supply chain opportunities through construction and operational stages of the development. The principle of the document is welcomed although this lacks detail regarding local engagement, apprenticeship opportunities, training schemes and further community benefit. Subject to an appropriate planning condition to secure an updated CWBP addressing these points, and a monitoring statement, the proposal complies with NPF4 Policies 11, 25 and associated PPG. The application has been supported by an ecology report, relevant protected species reports and a Biodiversity Net Gain (BNG) feasibility report. The increase in habitat units Page 168
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is welcomed however, NPF4 Policy 3 and associated Scottish Government draft guidance have wider requirements which should be addressed in updated information to include the following: • Connectivity and mitigation hierarchy – as mitigation for badger and otter, consideration should be given to planting scrub/trees/hedges within the southwest part of the site between the main substation and minor public road to the west. • Confirmation whether an ecological clerk of works will be on site. • Nature based solutions – attenuation basin to permanently hold water and have native planting scheme with careful consideration given to species due to proximity to other waterbodies. The proposal, in principle, complies with NPF4 Policy 3 and MLDP Policy EP2, subject to appropriate planning conditions to secure, prior to commencement of development and in agreement with the Council: • Further species assessments and mitigation identified in the Ecology Report and relevant Protected Species reports. • A Construction Environmental Management Plan. • A Habitat Management Plan. • A detailed Landscaping Plan. • Long-term management and monitoring plan of biodiversity and landscaping. Transportation Manager - No objection, subject to conditions regarding the widening of the U43H (to a minimum of 6.0 metres together with associated works including road drainage) for distance of 100 metres, measured from the site access southwards to the bend where the road continues eastwards towards the A96, provision of new vehicular access to accommodate vehicle swept paths and constructed to Moray Council specification and surfaced with bituminous macadam, a 50m length of hot rolled asphalt to be provided over the road centred on the proposed development access, provision of visibility splay at the vehicular access, Construction Traffic Management Plan and a Wear and Tear Agreement covering agreed traffic routes. Notes that the Transport Statement (TS) submitted in support of the application states: “During pre-app discussions MC highway officers highlighted the need to widen the access road to 6.5m to facilitate two-way HGV movements during construction, however, it is considered that due to the low number of construction vehicles anticipated at the site and the use of platooning to control the movement of construction vehicles to the site, that widening the highway to accommodate two-way flows will not be necessary as at no point are construction contra-flows expected.” From the Construction Traffic Management Plan (CTMP) submitted in support of the application the construction phase is indicated to take in the region of 18 months. The CTMP indicates a maximum of 10 HGV’s are anticipated each day for construction and these would be managed by platooning their arrival to reduce the duration of deliveries and chance for conflicting vehicle movements. Section 4.4 of the TS sets out that approximately 3 abnormal indivisible loads (AILS) are anticipated to be associated with the delivery of inverters/transformers and that these would require the U43H to be widened on the approach to the site access from the south. Page 169
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Notwithstanding the supporting information and proposals submitted, which are contrary to the pre-application advice provided, Transportation notes that the following issues would be addressed by road widening: • There is a current lack of detail in terms of the anticipated volumes and tonnages of bulk materials which are likely to be taken to or removed from the site. • There is insufficient intervisibility between passing opportunities on the final single lane section of the U43H leading to the site access. • The current width of the U43H on the final 100m section approach to the site is currently single track with no passing places. • The proposals will require widening to accommodate AIL’s, therefore the works for these should be in part formed by permanent widening to 6.0m with any additional width required formed by temporary works. The Transportation Section considers that the permanent road improvements are necessary to mitigate for the impact during construction and future operation of the proposed development. A continuous section of the U43H approximately 100m in length measured from the proposed site access southwards to the left hand bend where the road then heads east, requires to be improved by widening the road to 6.0m together with associated improvements including road drainage to allow cars and HGV’s to pass as a minimum. Environmental Health – No objection subject to conditions regarding hours of construction works, a Construction Environmental Management Plan (to minimise construction related noise, dust and artificial lighting), noise level limits during daytime and nighttime, submission/approval of a further detailed Noise Impact Assessment to inform assessment of the final design details of all plant and equipment and to demonstrate compliance with noise level limits, provision of battery fan outlets, inverters, earth bunds and acoustic enclosures, and blast wall in accordance with Noise Impact Assessment and details of operational site lighting. Environmental Health, Private Water – No objection subject to a condition requiring the submission and approval of a Private Water Supply Management Plan to include mitigation and resolutions for any affected sources identified, during all three stages of development (construction, operation and decommissioning), as identified in the supporting Drainage Impact Assessment and subsequent documentation from Moray Council, to safeguard and maintain the wholesome provision of any private water supply where affected by the development. Environmental Health, Contaminated Land - No objection. Moray Flood Risk Management – No objection. Aberdeenshire Archaeology Service – No objection. Developer Obligations – No developer obligations sought. Building Standards – A warrant would be required or any amenities buildings in which people have access, and any foul water drainage arrangement associated with amenities. Page 170
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7. REPRESENTATIONS 7.1 Third party representations are submitted to the ECU for their consideration in dealing with the S36 application. 8. RELEVANT POLICIES AND GUIDANCE National Planning Framework 4 Policy 1 - Tackling the Climate Policy 2 - Climate mitigation and adaptation Policy 3 - Biodiversity Policy 4 - Natural Places Policy 5 - Soils Policy 7 - Historic assets and places Policy 11 - Energy Policy 12 – Zero Waste Policy 13 - Sustainable transport Policy 18 - Infrastructure first Policy 22 - Flood risk Policy 23 - Health and safety Policy 25 - Community wealth building Moray Local Development Plan 2020 PP2 Sustainable Economic Growth PP3 Infrastructure and Services DP1 Development Principles DP9 Renewable Energy EP1 Natural Heritage Designation EP2 Biodiversity EP7 Forestry Woodland and Trees EP8 Historic Environment EP12 Management and Enhancement Water EP13 Foul Drainage EP14 Pollution Contamination Hazards The Keith Green Energy and Infrastructure Framework 9. OBSERVATIONS 9.1 The proposal seeks consent under Section 36 of the 1989 Electricity Act and also a direction under Section 57(2) of the Town and Country Planning (Scotland) Act 1997 as amended for the development to be deemed to be granted. 9.2 The proposal requires to be considered under the terms of the 1989 Act, in particular Schedule 9 duties, which require Scottish Ministers to have regard to various environmental and cultural heritage matters when considering Section 36 applications. In addition, Scotland’s energy policies and planning policies are material considerations in determining applications. In this case the relevant Page 171
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development planning policies are those contained in National Planning Framework 4 and the adopted Moray Local Development Plan 2020 (MLDP). 9.3 As Moray Council is a consultee for the Section 36 application process, some matters within the Observations will be assessed differently had it been assessed as a planning application where Moray Council are the determining authority. Matters such as, for example, impacts on the water environment will be informed by direct consultation with SEPA, as they will be consulted separately and reply directly to the ECU. Similarly detailed consideration of ecology will be commented upon by consultees such as NatureScot. The Council’s consideration of some matters will therefore be less involved where the ECU are consulting directly themselves on particular areas of interest best addressed by other specialist consultees. 9.4 Officers have considered the proposal against National Planning Policy 4 (NPF4), the Moray Local Development Plan 2020 (MLDP) and material considerations including the Climate Change (Scotland) Act 2009. Observations in relation to each topic are set out below. 9.5 Environmental Impact Assessment The proposed development was previously screened in accordance with the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017. This followed the submission of a screening request from the applicant to the ECU on 20 June 2023, and statutory consultation with Moray Council as Planning Authority. Having considered the characteristics of the development, the location of the development and characteristics of the proposed development it was concluded that the proposal is not an EIA development, which was subsequently confirmed to the ECU. The ECU accepted this response and adopted a Screening Opinion on 26 September 2023. 9.6 Pre-Application Consultation Prior to submitting the Section 36 application the applicants undertook consultation with the local community, stakeholders and Keith and Strathisla Community Councils and have submitted with a Pre-Application Consultation (PAC) Report summarising the details and outcomes of the public consultation undertaken. 9.7 The PAC report notes that between the two consultation events, 33 people attended including a representative from the Keith Community Council, email submissions from several residents were received and an email exchange and telephone discussion was held with Douglas Ross MP. The PAC report details the feedback received as part of the PAC process and addresses how the points raised have been considered in formulating the application. 9.8 Comments raised related to landscape and visual impact, impact house and property value, impact on local road network, drainage matters, noise impact and how this will be managed, health and safety and management of fire risks, negative impact on biodiversity, sufficiency of public engagement, quality of consultation information displayed and number and timing of public notification issued by post. Page 172
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9.9 Renewable energy and Development Principles NPF4 Policy 11 has a strong presumption in favour of development proposals for all forms of renewable, low-carbon and zero emissions technology, including battery storage, and notes that proposals will generally be considered acceptable where impacts are localised and/or appropriate design mitigation has been applied. The proposed development is a National Development as defined in NPF4 and, with an operating capacity of up to 349 MW, will contribute towards net zero emission targets and a stable energy supply. 9.10 MLDP Policy DP9 Renewable Energy is supportive of renewable energy developments where they are compliant with policies to safeguard and enhance the built and natural environment, do not result in the permanent loss of prime agricultural land and avoid or address significant impacts in relation to landscape and visual impact, noise, air quality, electromagnetic disturbance, impact on the water environment, impact on soils and peat, impact on woodland, traffic, ecology and tourism and recreation interests. 9.11 The Keith Green Energy & Infrastructure Framework is a further material consideration for green energy and infrastructure developments in the Keith area. The site falls within KNE LLCA7 Gibston Farmed Valley Sides which is assessed as having Low to Moderate sensitivity to Type 2 developments, which includes battery storage. It is located on land identified in the Framework as being suitable for battery storage developments. 9.12 The accompanying supporting Planning Statement provides an assessment of the proposal against these national and local development plan policies. This draws support for the proposal from these provisions, which is designed to support the flexible operation of the National Grid and decarbonisation of electricity supply by balancing electricity supply and demand, through provision of a back-up source of electricity during periods when renewable sources are not generating and is required to counteract the intermittency of sources. It makes clear that there is a strong locational need for the proposal which is strategically placed close to the existing Blackhillock Substation, avoiding the need for lengthy transmission cables and ensuring an efficient straightforward connection to the grid. The proposal has also been designed with proposed mitigation to ensure that there are no unacceptable adverse impacts on the environment, natural, built and heritage resources. 9.13 Landscape and Visual Impacts A Landscape and Visual Impact Appraisal (LVIA) has been submitted in support of the application. This includes 25 viewpoints used to inform assessment of landscape/visual impact of the proposed development together with 9 visualisations of the completed development at 1 and 15 years. 9.14 This demonstrates that the impact on landscape character and visual receptors from the proposed development would not be significant due to its location within an undulating landform, and that any effects would be confined largely to the surrounding local area. The development would also sit within an area already influenced by significant electricity infrastructure, overhead power lines, Page 173
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quarries, and wind farm development. Visual effects on local residents and users of core paths would be limited to views experienced from farmsteads/ housing and recreational routes to the south and east during construction and immediately following implementation. Views from surrounding roads, including the A96 corridor to the east would be short lived, as they would be experienced whilst moving along the road within an undulating landform, where the presence of energy infrastructure, mineral extraction, overhead wires, and pylons is characteristic of the local landscape. Proposed tree planting along the site boundaries and across the site would provide softening of the development and integrate it into the landscape. As this matures effects where experienced would diminish as this mitigation scheme becomes established. 9.15 As noted from the LVIA, the landscape and visual impacts overall (with mitigation) would be largely localised and not significant in nature. The proposed development, located alongside the existing Blackhillock substation, pylons and overhead lines would also be visually associated with this infrastructure. Proposed cut and fill (tiered) earthworks and landscaping would ensure that the development integrates into the landscape and can be accommodated on the site without adverse landscape and visual effects. 9.16 Conditions are recommended requiring submission/approval of details of the final colours of the battery enclosures and associated plant, buildings and fences, cross sections across the site detailing earthworks and details of the route of the grid connection cable. These shall also seek provision of an updated Landscape Plan, detailing species specifications, numbers, additional boundary planting, timescale for provision and maintenance arrangements, with consideration to be given for advanced landscaping where practicable. 9.17 The proposed development, subject to these conditions, will not result in a significant adverse impact on the built and natural environment and avoids unacceptable noise or other impacts (discussed below). On this basis the proposal is considered to comply with Policies 11, 29, associated Moray Planning Policy Guidance and Policies DP1 and DP9. 9.18 Climate Change NPF4 Policies 1 and 2 require significant weight to be given to the climate and nature crises in the assessment of all applications and requires climate mitigation from all development. In this case the proposal is for a renewable energy development which will help to secure a sustainable clean energy supply and contribute towards net zero targets by providing flexibility, reliability, and resilience to the power grid system. In compliance with NPF4 Policy 2 and associated Moray PPG, a Carbon Assessment has been submitted in support of the application which sets out how the proposed development provides minimises emissions, supports adaptation to climate change and details barriers to achieving net-zero. 9.19 Economic Impact NPF4 Policies 11 and 25 state that proposals will only be supported where they maximise net economic impact, contribute towards local/regional community wealth building strategies and are consistent with local economic proprieties. Page 174
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9.20 A Community Wealth Building Plan (CWBP) has been submitted in support of the application setting out how the proposal maximises local employment and skills opportunities and stimulates local supply chain opportunities through construction and operational stages of the development. The principle of the document is welcomed however this lacks sufficient detail regarding local engagement, apprenticeship opportunities, training schemes and further community benefit. A planning condition is recommended to secure submission of an updated CWBP addressing these points, and a monitoring statement. On this basis the proposal complies with NPF4 Policies 11, 25 and associated PPG. 9.21 Rural Development The proposed development is defined under NPF4 as essential infrastructure. NPF4 Policy 29 Rural Development supports such proposals where it is demonstrated that development contributes to the viability, sustainability and diversity of rural communities and local rural economy. The site is in a ‘remote rural area’ and the proposal has demonstrated how it will support local employment, support, and sustain existing communities and is suitable in terms of location, access, siting, design, and environmental impact. The proposal complies with NPF4 Policy 29 (c), subject to an appropriate planning condition to secure submission of a satisfactory CWBP as required by the guidance. 9.22 Biodiversity, Protected Species and Natural Heritage Designations NPF4 Policy 3 and MLDP Policy EP2 requires development proposals to contribute to the enhancement of biodiversity, including where relevant, restoring degraded habitats, and building and strengthening nature networks and the connections between them. NPF4 Policy 3 (b) requires ‘national or major’ development to demonstrate how the proposal will conserve, restore, and enhance biodiversity, including nature networks so they are in a demonstrably better state than without intervention. 9.23 NPF4 Policy 4 Natural Places states that development proposals that are likely to have an adverse effect on species protected by legislation will only be supported where the proposal meets the relevant statutory tests, with MLDP Policy EP1 Natural Heritage Designations having similar requirements. These also seek to protect international, national, or local environmental designations from inappropriate development, and where impacts are likely to occur for proposals to be subject to appropriate assessment. 9.24 The site is not subject to any international, national, or local environmental designations, although natural heritage interests are present in the wider area, in this case Mill Wood SSSI 1.9 km to the northeast and areas of ancient woodland 500m the west and east. These features are unlikely to be impacted by the proposal due to the separation distance and as they have no direct connectivity to the development site. 9.25 The application has been supported by an ecological survey report, protected species reports and a Biodiversity Net Gain (BNG) feasibility report. The ecology survey confirms recorded habitat on the site to be predominantly arable cropland of low nature conservation interest, with a small area of semi-improved Page 175
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grassland. The species surveys observed signs of bat and badger activity on the site, and an outlier sett feature and otter activity in the wider area. 9.26 The BNG feasibility report confirms that there is scope within the site to provide biodiversity net gain (habitat units), which is to be informed by a full BNG Design Report. The increase in habitat units is noted, however, NPF4 Policy 3 and associated Scottish Government draft guidance have wider requirements that require to be addressed in updated information to be addressed by condition. These include the requirement for further consideration to be given to connectivity and the mitigation hierarchy (as mitigation for badger and otter consideration should be given to planting scrub/trees/hedges within the southwest corner part of the site), confirmation of employment of an ecological clerk of works on site and use of nature based solutions, i.e. for the attenuation basin to be designed to permanently hold water and have a native planting scheme with careful consideration given to species due to proximity to other waterbodies. 9.27 To address the above requirements and ensure that impacts on nature conservation interests are fully mitigated suspensive planning conditions are recommended to secure further species assessments and mitigation identified in the Ecology Report and relevant Protected Species reports, a Construction Environmental Management Plan, a Habitat Management Plan, a detailed Landscaping Plan and long-term management and monitoring plan. 9.28 Subject to the above, the proposed biodiversity enhancement and impacts on nature conservation interests will be mitigated in accordance with Policy 3, 4 and EP1 and EP2. 9.29 Access and Transport NPF4 Policy 13 Sustainable Transport and MLDP Policy PP3 Infrastructure and Services set out requirements for development to be served by suitable infrastructure, including the provision of a safe entry and exit from new development. 9.30 Access to the site will be via the U43H which joins onto the A96 1km to the east and serves the Blackhillock and Beatrice Substations, and Blackhillock and Cardhsill quarries. 9.31 A Transport Statement (TS) and Construction Traffic Management Plan (CTMP) have been submitted in support of the application. These contain details of anticipated traffic movements associated with the construction and operational phase of the proposal. The CTMP confirms that the construction phase is likely to occur over an 18-month period, and that a maximum of up to 10 HGV’s is anticipated each day which would be managed by platooning their arrival to reduce the duration of deliveries and chance for conflicting vehicle movements. The TS asserts that this platooning arrangement together with the low number of construction vehicles would negate the requirement for road widening, sought by the Moray Council Transportation Section during pre-application discussions. The Transport Statement sets out that approximately 3 abnormal indivisible loads (AILS) are anticipated to be associated with the delivery of Page 176
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inverters/transformers and that these would require the U43H to be widened on the approach to the site access from the south. Once operational traffic would be minimal. 9.32 The Transportation Section has reviewed this information, and whilst it notes the position put forward to not provide road widening, considers that permanent road improvements are necessary to mitigate for the impact during construction and future operation of the proposed development. These improvements can be addressed by conditions. 9.33 With the above in mind, the Transportation Section has raised no objection to the proposal subject to conditions. These relate to the widening of the U43H (to a minimum of 6.0 metres together with associated works including road drainage) for distance of 100 metres, measured from the site access southwards to the bend where the road continues eastwards towards the A96, provision of new vehicular access to accommodate vehicle swept paths and constructed to Moray Council specification and surfaced with bituminous macadam, a 50m length of hot rolled asphalt to be provided over the road centred on the proposed development access, provision of visibility splay at the vehicular access, Construction Traffic Management Plan and a Wear and Tear Agreement covering agreed traffic routes. 9.34 In terms of impacts on the trunk road network Transport Scotland as the relevant consultee have provided comments direct to the Energy Consent Unit. From review of the consultation responses on the ECU website, it is noted that Transport Scotland has raised no objection to the proposed development subject to conditions regarding routing of abnormal loads and any required accommodation measures and traffic control measures on the trunk road network. 9.35 Subject to these conditions the application is considered to comply with Policy 13 and PP3. 9.36 Noise, Lighting and Pollution NPF4 Policy 11 Energy and 23 Health and Safety, and equivalent MLDP Policy DP9 and EP14 Pollution, Contamination and Hazards, seek to ensure that impacts from renewable energy are considered and mitigated, and that new developments do not create pollution which may adversely affect the environment or local amenity. 9.37 A Noise Impact Assessment (and Baseline Noise Survey) has been submitted in support of the application. This predicts that, with mitigation, noise impacts from the operation of the proposed development, at the nearest receiving residential properties would fall within acceptable levels meeting noise rating limits (with 4 properties assessed, the closest being Gibston Farm (the landowner) 190m to the west and Rosehall Cottage 250m to the southeast). The mitigation measures would comprise factory attenuation to the battery and inverter units, and a combination of earth bunds and acoustic barriers of varying height around each terrace or area containing equipment. Page 177
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9.38 As noted from supporting information, lighting at the site will be limited, bar that required during construction and decommissioning, and for security purposes (motion activated) during the operational phase. CCTV is also proposed. 9.39 The Environmental Health Section is content with this assessment and has raised no objection to the proposal, subject to conditions regarding hours of construction works, a Construction Environmental Management Plan (to minimise construction related noise, dust and artificial lighting), noise level limits for day and night, prior to finalisation of all plant and equipment the submission/approval of a further detailed Noise Impact Assessment to demonstrate compliance with noise level limits, provision of battery fan outlets, inverters, earth bunds and acoustic enclosures, and blast wall in accordance with details contained within the submitted Noise Impact Assessment and approval of details of operational site lighting. 9.40 On this basis, subject to the conditions the proposal is considered to accord with policies 11, 23, DP9 and EP14. 9.41 Drainage and Flood Risk NPF4 22 Flood Risk & Water Management advocates use of SUDs to ensure surface water does not increase flood risk to itself and others. Drainage and flood risk requirements are set out in MLDP Policies PP3 Infrastructure and Services, DP1 Development Principles, EP12 Management and Enhancement of the Water Environment. 9.42 The site is not located in a flood risk area or at risk of surface water flooding. 9.43 The supporting Drainage Impact Assessment (DIA) provides details of drainage and long-term maintenance arrangements. Surface water will be dealt with by a network of drainage water channels, and attenuation and catchment ponds that will convey water to a large SUDs Pond/reservoir located in the lower northern part of the site which will then discharge into the existing water course at a restricted flow rate to not exceed that of pre-existing greenfield conditions. 9.44 Moray Flood Risk Management are content with the proposals. The proposals would ensure that surface water is dealt with in a sustainable manner that has a neutral effect on flooding and as such the proposals accord with the requirements of Policy 22 and EP12. A condition requiring submission and approval of finalised drainage details in accordance with the submitted DIA is recommended. 9.45 No details of foul water drainage have been submitted with the application. The Building Standards Manager has advised that a warrant would be required for any amenities buildings in which people have access, and any foul water drainage arrangement associated with amenities. 9.46 Water Supply MLDP Policy DP1 Development Principle requires development proposals to provide acceptable water provision, which includes protection of existing water supplies. Page 178
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9.47 The submitted Drainage Impact Assessment identifies several water supplies in the surrounding area. The Environmental Health Manager has reviewed this information and has raised no objection to the application subject to a suspensive condition requiring the submission and approval of a Water Supply Management Plan, to include mitigation and resolutions for any affected sources identified, during all three stages of development (construction, operation and decommissioning), as identified in the supporting Drainage Impact Assessment and subsequent documentation from Moray Council. This is to safeguard and maintain the wholesome provision of any private water supply affected by the development. Subject to this condition the application is considered to comply with Policy DP1. 9.48 Historic Environment NPF4 Policy 7 Historic Assets and Places and MLDP Policy EP8 Historic Environment b) Local designations, seek to protect non-designated historic environment assets and their setting wherever feasible, and where there is potential for non-designated buried archaeological remains to exist below a site, requires developers to provide an evaluation of the archaeological resource at an early stage to facilitate assessment of impacts. 9.49 A Heritage Impact Assessment has been submitted in support of the application. This considers the potential for the proposal to result in direct impacts upon buried archaeological remains which may survive within the Site, and the potential for impacts upon the setting of designated heritage assets (listed buildings and conservations areas) in a surrounding 2km Study Area. This concludes that, from review of the available data and nature of archaeological remains found within the area, the potential for archaeological remains to be found would be low to medium. The Aberdeenshire Archaeology Service has reviewed and is content with this information and has raised no objection to the proposal or recommended the need for archaeological investigations to be addressed by condition. 9.50 The assessment predicts neutral effects on the setting of designated assets in the wider area in Keith 1.8km to the north, due to intervening distance, screening and siting of the proposal alongside overhead line towers and the Blackhillock Substation. Historic Environment Scotland will provide a separate consultation response to the ECU in this regard. 9.51 From the above considerations the proposal would not adversely impact the historic environment interests and would accord with NPF4 policy 7 and MLDP policy EP8. 9.52 Impacts on Soil NPF Policy 5 Soils seeks to support carbon-rich soils and minimise disturbance to soil from development. It seeks to (a) support development only if there is minimised disturbance to soils and (b) on good grade agricultural land if (iv) for renewable energy providing the amount of land taken is also minimised. Page 179
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9.53 As noted from the supporting Planning Statement, the proposed development has been located and designed along the lines of a ‘tiered’ system to reduce earthworks and utilise the existing topography of the site. It is also not located on prime agricultural land. Site investigations have identified a minor element of peat at a depth of 1.85m. No excavations at this part of the site are proposed to be greater than 1m in depth and as such, peat on site will not be excavated. Renewable energy proposals are acceptable on peat land, subject to appropriate restoration, however this development has been designed to avoid the limited element of peat on the site. In addition, the development is reversible, and the applicant has committed to restoration and minimal land will be lost over the long term to agricultural use. Restoration will be addressed by condition which will imposed by the ECU. On this basis the proposal is considered to comply with Policy 5. 9.54 Zero Waste NPF Policy 12 seeks to reduce the waste of materials in construction and requires (part c) waste management plans for developments that will generate waste. Once complete and operational the proposed development is unlikely to generate significant waste. Waste management during the construction and decommissioning phases will be covered in the CEMP which is to be subject of a recommended condition. This will ensure compliance with Policy 12. 9.55 Health and Safety NPF4 Policy 23 Health and Safety) seeks to mitigate risk arising from safety hazards. MLDP EP14 (Pollution, Contamination and Hazards) while focussing on hazardous sites and polluting development seeks to ensure that new developments do not create pollution which could adversely affect the environment or local amenity. 9.56 A High-Pressure Gas Transmission Pipeline owned/operated by Scotland Gas Network (SGN) lies within the vicinity of the proposed development. Scotland Gas Network has provided a separate response to the ECU, following submission of further information raising no objection subject to agreement of a design report regarding fault mitigation for the site and for SGN to be kept informed at each stage of the development process inform. 9.57 High voltage power pylons owned/operated by SSEN Transmission also bisect the site in a southwest to northeast direction, with three set of pylons contained within or near the site boundary. SSEN has provided a response to the ECU seeking an amended site plan detailing minor changes to ensure works fall outwith clearance zones for towers and the overhead line and recommending a condition regarding a Construction Method Statement to ensure construction activities do not impact the overhead line and towers. The amended site plan has been submitted, however at the time of writing this report further comments from SSEN have not been submitted to the ECU. 9.58 In line with comments provided in the pre application response 23/00744/PEMAJ regarding fire risks from thermal runway from battery storage facilities, a Fire Assessment has submitted in support of the application. This considers factors, including the site's location, the layout and the correct spacing between Page 180
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equipment, construction materials, equipment selection, and operational procedures. It also takes account of relevant fire safety legislation, industry best practices, and guidelines set by regulatory authorities, and provides an understanding of fire risks present at the site along with strategies to detect and respond to potential fire incidents. A condition requiring the submission of a plan detailing procedures and operations to tackle / extinguish a fire or other polluting incidents is recommended. This shall be based on the submitted Fire Assessment and seek adherence to the guidance issued by National Fire Chiefs Council on Grid Scale Battery Energy Storage, or any subsequent updated relevant guidance. 9.59 The Scottish Fire and Rescue Service has responded to the ECU and has raised no objection to the application and has recommended that the development is caried out in accordance with guidance issued by National Fire Chiefs Council on Grid Scale Battery Energy Storage. 9.60 Decommissioning and Restoration NPF4 Policy 11 (e) (xi) and MLDP Policy DP9 (b) (ii) both require renewable energy developments to provide appropriate provision for decommissioning and restoration, whilst NPF Policy 11 (e) (xii) requires proposals to include measures to safeguard or guarantee availability of finance to effectively implement decommission and restoration. The applicant has confirmed its commitment in the supporting Planning Statement to the submission a decommissioning and restoration plan prior to the site becoming non-operational and implementation of those works after operations cease. The ECU and Scottish Ministers have a standard set of decommissioning and site restoration requirement conditions that would be imposed in the event of approval. On this basis the proposal would comply with the abovementioned policy requirements. 9.61 Duration of Consent Consent is sought for a temporary operational period of 25 to 40 years, after which the proposal would be decommissioned should there be no further consents to extend the period of operation. This would typically be controlled by condition to be applied by the ECU in the event of consent being granted. 9.62 Conclusion The proposed BESS represents a significant infrastructure development that would support the continued development of renewable energy sources and enhance the National Grid network, to ensure sufficient supply of stable energy. The proposal would be in accordance with national and local plan policies which support the expansion of renewable energy and would contribute towards net zero emission targets. 9.63 The development is strategically located in close proximity to the existing Blackhillock substation, avoiding the need for lengthy transmission cables and ensuring an efficient connection to the grid, and has been designed with proposed mitigation to ensure that there are no unacceptable adverse impacts Page 181
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on the natural, built and cultural heritage resources, and will avoid significant adverse impacts on the environment. 9.64 Accordingly, the recommendation to members is to raise no objection to the consultation response to the proposed Gibston Farm BESS, subject to conditions set out in Appendix 2. APPENDIX 2 - Recommended conditions for deemed planning permission for Gibston Farm BESS by Moray Council Transportation Matters 1. Notwithstanding the details submitted which do not include improvements to widen the U43H road or improve the road drainage, no development shall commence until details (plans scale 1:500 minimum) have been submitted to and approved in writing by the Council, as Planning Authority in consultation with the Roads Authority which include continuous widening of the U43H (to a minimum of 6.0 metres together with associated works including road drainage) for a distance of 100 metres or thereby, measured from the site access southwards to the bend where the road continues eastwards towards the A96. Thereafter, unless otherwise agreed by the Planning Authority, the works shall be completed in accordance with the approved details prior to commencement of any other construction works within the proposed site. Reason: To ensure an acceptable infrastructure is provided on the route to/from the development in the interests of road safety and the provision of details currently lacking and/or incorrectly shown on the submitted particulars to date. 2. Prior to the commencement of construction and deliveries: a) The proposed new vehicular access onto the U43H Blackhillock Road shall be developed to accommodate vehicle swept paths and have a maximum gradient of 1:20 measured for the first 5.0m from the edge of the public carriageway. The first 15 m of the access track, measured from the edge of the public road, shall be constructed to the Moray Council specification and surfaced with bituminous macadam. b) A 50m length of Hot Rolled Asphalt shall be provided over the full width of the public carriageway of the U43H centred on the proposed development access. c) The visibility splay 4.5 metres by 120 metres at both directions onto the public road shall be provided with all boundaries set back to a position behind the required visibility splay. The visibility splay shall be provided in accordance with the approved drawing prior to the access becoming operational and thereafter shall be maintained at all times free from any obstruction exceeding 0.6 metres above the level of the carriageway in accordance with the agreed schedule of maintenance. Page 182
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d) All suspensive works approved through conditions must be completed in accordance with the approved plans. Any works undertaken are to be permanent for the duration of the operation of the development unless otherwise agreed in writing with the Roads Authority. Thereafter, the development shall be completed in accordance with the approved details. Reason: The provision of details currently lacking and in order to ensure that acceptable infrastructure is provided on the route to/from the development and for the development access in the interests of road safety. 3. Notwithstanding the submitted Construction Traffic Management Plan (which is insufficient to address the details required), no development shall commence until a Construction Traffic Management Plan (CTMP) has been submitted to and agreed in writing by the Council, as Planning Authority in consultation with the Roads Authority. Thereafter, the development shall be carried out in accordance with the agreed CTMP at all times. For the avoidance of doubt the CTMP shall include as a minimum the following information: • duration of works; • construction programme; • number of vehicle movements (i.e. materials, plant, staff, components); • details for any abnormal load movements (Further assessment of deliveries via the public road network- within Moray would be required to determine any mitigation requirements); • volumes/tonnages of any bulk materials to be removed from or delivered to the site; • schedule for delivery of materials and plant; • parking provision, loading, and unloading areas for construction traffic; • full details of temporary arrangements to safeguard pedestrian movements during the construction period; • full details of any temporary access; • measures to be put in place to prevent material being deposited on the public road; • traffic management measures to be put in place during works including any specific instructions to drivers; • Details to demonstrate that construction traffic and deliveries to site shall be managed outwith school peak times for dropping off and picking up to mitigate potential increased risks during these times; • full details of construction traffic routes from/to the site, including any proposals for temporary haul routes and routes to be used for the disposal of any materials from the site and routes deemed unsuitable for construction traffic (including U43H and U33H to the north of the development and U43aH Rosehall Road between the A96 and the U43H); and • a programme of monitoring for all routes identified within the CTMP during construction will be required. Reason: To ensure an acceptable form of development in terms of the arrangements to manage traffic during construction works at the site. Page 183
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4. No development shall commence until evidence of a satisfactory Wear and Tear Agreement has been submitted to and agreed in writing by the Council, as Planning Authority in consultation with the Roads Authority. The scope of the Wear and Tear Agreement shall be agreed with the Planning Authority in consultation with the Roads Authority and shall include a condition survey of the network undertaken jointly by the developer and a representative from the Council. The survey shall include the full extent of the agreed construction traffic route(s) between the site and the A96. In addition, the wear and tear agreement shall also include condition surveys of all roads identified as ‘unsuitable’ which must be agreed with the Planning Authority in consultation with the Roads Authority. Reason: To mitigate the potential risks from damage to the public road occurring during the construction phase of the development. Private Water Supplies 5. No development shall commence until a Water Supply Management Plan detailing the impact of the development on private water supplies prepared by a suitably qualified professional has been submitted to and agreed in writing by the Council as Planning Authority. The plan must include the mitigation and resolutions for affected sources identified, during all three stages of development (construction, operation and decommissioning) in the document titled Drainage Impact Assessment, dated November 2024 from authors Iain Black and Michael Rae and subsequent documentation from Moray Council (1:15,000 plan showing private water sources and associated excel spread sheet). The Water Supply Management Plan should include mitigations and a water quality testing regime to monitor 2.1.1 storm water discharge, 2.2.1 increase run off from the site, 2.4 water treatment and 2.4 maintenance in the Drainage Impact Assessment dated November 2024. The plan shall include the testing regime in compliance with the Water Intended for Human Consumption (Private Supplies) (Scotland) regulations 2017 and mitigations including the provision of emergency potable water to affected supply users in the event of contamination and provision of a new water supply in the event that the contamination is long term, and the supply is no longer fit for human consumption. The water testing should also include monitoring levels for site specific building materials, hydrocarbons and or other site-specific leaching or spill risk materials or chemicals which may affect the wholesomeness of potable water. In the event that the wholesomeness or adequacy of any private water supply becomes affected by construction activity, all users of such supplies and the Environmental Health Manager of Moray Council must be contacted by the applicant/developer to agree remediation measures within 14 calendar days from the date the wholesomeness or adequacy of the supply has been affected. Thereafter repair of any affected private water supply must be carried be to the satisfaction of the Council as Planning Authority in consultation with the Environment Health Manager. The Council shall be the final arbiter whether any supply has been affected by this development. Page 184
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Reason: In order to safeguard and maintain the wholesome provision of any private water supply affected by the development. Construction Hours 6. Construction works (including vehicle movements) associated with the development audible at any point on the boundary of any noise sensitive dwelling shall be permitted between 0800 - 1900 hours, Monday to Friday and 0800 - 1300 hours on Saturdays only, and at no other times out with these permitted hours (including National Holidays) shall construction works be undertaken except where previously agreed in writing with the Council, as Planning Authority and where so demonstrated that operational constraints require limited periods of construction works to be undertaken out with the permitted/stated hours of working. Reason: To protect local residents from noise nuisance in ensuring the construction phase is restricted within permitted hours Construction Environment Management Plan 7. Prior to development commencing, a Construction Environmental Management Plan (CEMP) shall be submitted to and agreed in writing by the Planning Authority in consultation with the Environmental Health Manager. The plan shall include measures to minimise construction related noise, dust, artificial lighting, impacts on the water environment and a waste management plan. Thereafter the development will be carried out in accordance with the agreed plan. Reason: In order that environmental emissions are considered and managed at the construction phase to protect local residents and the environment; and to ensure the efficient management / reduction of waste. Noise 8. During daytime hours (0700 to 2300 hours), the rating level of noise associated with the development shall not exceed 47 dB at the nearest noise sensitive dwelling which is lawfully existing or has planning permission at the date of this permission. For the avoidance of doubt, the rating level associated with this condition is defined within BS 4142: 2014+A1:2019 Methods for rating and assessing industrial and commercial sound, and should apply at 1m from the closest residential facades, as stated in the footnote to table 11, page 18 of the Noise Impact Assessment supporting document by Pace Consult Limited, dated 11th November 2024 , report reference PC-23-0056-RP1-Rev1, and titled “Blackhillock BESS- Baseline Noise Survey & Noise Impact Assessment.” Reason: To protect local residents from noise nuisance due to the use of the development. 9. During night-time hours (2300 to 0700 hours), the rating level of noise associated with the development shall not exceed 36 dB at the nearest noise sensitive dwelling which is lawfully existing or has planning permission at the date of this permission. For the avoidance of doubt, the rating level associated with this condition is defined Page 185
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within BS 4142: 2014+A1:2019 Methods for rating and assessing industrial and commercial sound, and should apply at 1m from the closest residential facades, as stated in the footnote to table 11, page 18 of the Noise Impact Assessment supporting document by Pace Consult Limited, dated 11th November 2024 , report reference PC-23-0056-RP1-Rev1, and titled “Blackhillock BESS- Baseline Noise Survey & Noise Impact Assessment.” Reason: To protect local residents from noise nuisance due to the use of the development. Noise Impact Assessment 10. Prior to the finalisation / installation of all plant and equipment at the development, a detailed noise analysis report with associated noise control specifications of selected plant, shall be carried out by developer and thereafter submitted in writing for the agreement of the Planning Authority demonstrating that the above conditions 8 and 9 are predicted to be met and in accordance with section 4.6.2 page 18, and section 4.6.3 of the Noise Impact Assessment supporting document by Pace Consult Limited, dated 11th November 2024 , report reference PC-23-0056- RP1-Rev1, and titled “Blackhillock BESS- Baseline Noise Survey & Noise Impact Assessment.” Thereafter, the development shall be implemented in accordance with these approved details. Reason: To protect local residents from noise nuisance due to the use of the development. 11. Unless otherwise agreed in writing with the Planning Authority, the battery fan outlets at the development shall be provided with an attenuator package with the required insertion loss as detailed in page 20,section 5.1.5 of the Noise Impact Assessment supporting document by Pace Consult Limited, dated 11th November 2024 , report reference PC-23-0056-RP1-Rev1, and titled “Blackhillock BESS- Baseline Noise Survey & Noise Impact Assessment.” Reason: To protect local residents from noise nuisance due to the use of the development. 12. Unless otherwise agreed in writing with the Planning Authority, the inverters at the development shall be provided as attenuation as detailed in page 21, section 5.1.6 of the Noise Impact Assessment supporting document by Pace Consult Limited, dated 11th November 2024, report reference PC-23-0056-RP1-Rev1, and titled “Blackhillock BESS- Baseline Noise Survey & Noise Impact Assessment.” Reason: To protect local residents from noise nuisance due to the use of the development. 13. Unless otherwise agreed in writing with the Planning Authority, the earth bunds and acoustic barriers shall be provided and maintained throughout the lifetime of the development at the locations detailed in figure 2 page 7 of the Noise Impact Page 186
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Assessment supporting document by Pace Consult Limited, dated 11th November 2024 , report reference PC-23-0056-RP1-Rev1, and titled “Blackhillock BESS- Baseline Noise Survey & Noise Impact Assessment.”, with the acoustic barriers provided able to demonstrate the absorption spectrum in page 22, section 5.2.3 of the above referenced document can be met. Reason: To protect local residents from noise nuisance due to the use of the development. 14. Unless otherwise agreed in writing with the planning Authority, the grid transformers shall be enclosed with a blast wall with an absorptive acoustic lining equivalent to the absorption spectrum in page 22, section 5.2.3 of the Noise Impact Assessment supporting document by Pace Consult Limited, dated 11th November 2024 , report reference PC-23-0056-RP1-Rev1, and titled “Blackhillock BESS- Baseline Noise Survey & Noise Impact Assessment.”, and the position and dimensions of the blast wall shall be as detailed in supporting plan drawing tilted “EL_GISSUBSTATION”, dated 14th April 2025, Revision 03.1, and project titled “BLACKHILLOCK 349MW”. Reason: To protect local residents from noise nuisance due to the use of the development. Lighting 15. Prior to the development commencing (unless an alternative timescale is agreed in writing with the planning Authority), details of the operational site lighting shall be submitted to and agreed in writing by the Planning Authority, in consultation with the Environmental Health Manager. Thereafter, the agreed lighting details shall be maintained throughout the lifetime of the development. Reason: To protect local residents from artificial light nuisance due to the use of the development. Drainage 16. No development shall commence (unless an alternative timescale for submission is agreed with the Planning Authority), until details of finalised drainage arrangements, scaled drawings and associated drainage calculations have been submitted to and approved in writing by the Planning Authority. These shall be in accordance with the details outlined in the supporting document by McCloy Consulting titled “Drainage Impact Assessment, Land at Blackhillock, Keith M03291-03_DG01 dated November 2024” and site layout plan (drawing no. NPL- BLK-BLA-22.4-P), unless alternative arrangements are agreed by the Planning Authority, and installed and operational prior to the completion of the development hereby approved. Reason: To ensure that surface water drainage is provided timeously and complies with the principles of SUDs to protect the water environment. Community Wealth Building Plan Page 187
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17. No development shall commence (unless an alternative timescale for submission is agreed with the Planning Authority), until an updated version of the submitted document titled “Blackhillock 349 MW BESS Community Wealth Building Plan” dated 5 March 2024 prepared by Shires Stability which addresses the following points has been submitted to and approved in writing by the Council, as Planning Authority. • Details of how the local community have been engaged in the proposal, which includes an oversight of the opinions of the community provided during previous community engagement. • Updated information to be provided with an increased emphasis placed on apprenticeship opportunities due to the size and scale of the project and details of any internal employee training schemes (if relevant). • Details as to whether there will be any further community benefits either formal or informal arising from the development. • Monitoring Statement which documents progress of the Community Wealth Building Plan at 2, 5, and 10 year intervals following completion of the development. Thereafter, the development shall be implemented in accordance with these approved details. Reason: To ensure that the development proceeds in accordance with the submitted Community Wealth Building Plan to ensure compliance with National Planning Framework 4 Policy 25 Community Wealth Building. Landscaping 18. No development shall commence (unless an alternative timescale for submission is agreed), until a detailed landscape plan has been submitted to and approved in writing by the Planning Authority. This shall be closely based upon the submitted plan titled Landscape Strategy Plan Blackhillock BESS, drawing number 2552 A2 001 Rev G prepared by Liz Lake Associates, and show the following information: (a) All landscaping and planting works, including plans and schedules detailing species, specifications, heights, and numbers of trees within each proposed native tree belt and woodland block, scrub planting, hedgerow, wildflower meadow, meadow, and wet meadow planting areas. (b) Additional tree and scrub planting to reinforce the proposed perimeter planting along the north and south site boundaries. (c) Timescales for all planting, including provision of advanced planting before development begins where practicable. (d) Details of the arrangements for the protection and long-term maintenance of (e) all landscaped areas, including replacement planting if required. Thereafter the approved landscaping shall be implemented and maintained in accordance with the approved details, unless otherwise agreed by the Council, as planning authority. Reason: To ensure that the landscaping and woodland is provided timeously and maintained for the lifetime of the development. Page 188
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Ecology and Biodiversity 19. No development shall commence (unless an alternative timescale for submission is agreed), until the following information has been submitted to and approved in writing by the Planning Authority: (a) Further standalone Protected Species reports for badger, bat, otter, and bird interest, along with details of mitigation as recommended in the submitted documents prepared by Black Hill Ecology Ltd titled “Ecology Survey Report” and Protected Species Report”, dated April 2024. (b) A full Biodiversity Net Gain (BNG) Report, including metric calculation to document and ensure proportional biodiversity enhancement as recommended in the submitted document prepared by Black Hill Ecology Ltd titled “Biodiversity Net Gain Feasibility Report”. (c) A biodiversity and landscape plan detailing biodiversity enhancements, as recommended in the abovementioned report. This shall include provision of additional planting of scrub/trees/hedges in the southwest corner of the site (open area between the proposed substation and western boundary) to enhance connectivity for badger and otter in line with the mitigation hierarchy, confirmation of employment of an Ecological Clerk of Works and for the attenuation basins and reservoir to be designed to permanently hold water and have native planting, with careful consideration given to species due to proximity to other waterbodies. (d) A Habitat Management Plan, including details regarding the long-term monitoring and maintenance of biodiversity measures and landscaping/ woodland management on site (for a 30-year period) to secure long-term retention. This shall include monitoring by an ecologist after 2 years and again after 5 and 10 years to assess the ecological condition of all planting and wildflower meadows. Subsequent adjustment of management or reseeding should follow the applicant’s ecologist’s recommendations. Thereafter the development shall be carried out in accordance with the approved details, unless otherwise agreed by the Council, as planning authority. Reason: To ensure that the development does not have an adverse impact on protected species, and that biodiversity enhancements / landscaping is provided timeously and maintained for the lifetime of the development. Construction Phase Surface Water 20. No development shall commence until a construction phase surface water management plan has been submitted to and approved by the Planning Authority. Thereafter the development shall be carried out in accordance with the agreed details. Reason: To prevent surface water flooding and pollution during construction works and minimise risk to the adjacent watercourse. Final Design Finishes Page 189
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21. No development shall commence (unless an alternative timescale for submission is agreed), until detailed scale drawings showing the final designs of the associated infrastructure/equipment, fencing and buildings (floorplans and elevations, and colour specifications) have been submitted to and approved in writing by the Planning Authority. The colours of these works shall be a recessive tone where possible (green or similar) as recommended in the submitted document titled “Landscape & Visual Impact Appraisal, dated November 2024” (section 4.2 refers), prepared by Liz Lake Associates accompanying this application. Thereafter all works shall be carried in accordance with these approved details. Reason: In order to ensure that the development integrates sensitively into the surrounding area and as these details are lacking from the application. Earthworks and Cable 22. No development shall commence (unless an alternative timescale for submission is agreed), until the following information has been submitted to and approved in writing by the Planning Authority: a) A detailed drawing showing the grid connection cable route between the development and the Blackhillock Substation. b) Final drawings of the development compound detailing finished levels in relation to existing levels, detailed cross sections and any earthworks e.g. embankments, cut and fill etc. Thereafter all works shall be carried out in accordance with these approved details, unless otherwise agreed with the Planning Authority. Reason: In order to allow for further consideration of these matters to ensure that the development integrates sensitively into the surrounding area and as these details are lacking from the application. Battery Energy Storage Safety 23. No development shall commence (unless an alternative timescale for submission is agreed), until a detailed plan addressing the procedures and operations to tackle and extinguish a fire or other polluting incident at the development has been submitted to and approved by the Council (as Planning Authority) in consultation with the Health and Safety Executive, the Building Standards Section of Moray Council and Fire and Rescue Scotland. This shall be closely based upon the submitted document “Blackhillock 349 MW BESS Fire Assessment dated 18 November 2024 Version 1.2” by Shires Stability and demonstrate adherence to the guidance issued by National Fire Chiefs Council (NFCC) on Grid Scale Battery Energy Storage, or any subsequent updated relevant guidance issued by the NFCC. Reason: In order to ensure that the development has contingencies in place to minimise damage or risk to human health. Page 190
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Informative Notes Transport Scotland must be consulted with respect to abnormal load deliveries proposed via the Trunk Road. The neighbouring Local Authorities, through which the abnormal load delivery route may pass, must be consulted as appropriate. Before commencing development, the applicant is obliged to apply for Construction Consent in accordance with Section 21 of the Roads (Scotland) Act 1984 for new roads. The applicant will be required to provide technical information, including drawings and drainage calculations. Advice on this matter can be obtained from the Moray Council web site or by emailing transport.develop@moray.gov.uk Planning consent does not carry with it the right to carry out works within the public road boundary and the applicant is obliged to contact the Transportation Manager for road opening permit in accordance with the Roads (Scotland) Act 1984. This includes any temporary access joining with the public road. If required, street furniture which needs to be repositioned will be at the expense of the developer. In addition, any existing roadside ditch may require a pipe or culvert. Advice on these matters can be obtained by e-mailing transport.develop@moray.gov.uk No building materials/scaffolding/builder's skip shall obstruct the public road (including footpaths) without permission from the Roads Authority. The applicant shall be responsible for ensuring that surface/ground water does not run from the public road into his property. No water or loose material shall drain or be carried onto the public footpath/ carriageway for the lifetime of the development. The applicant shall ensure that their operations do not adversely affect any Public Utilities, which should be contacted prior to commencement of operations. The applicants shall free and relieve the Roads Authority from any claims arising out of his operations on the road or extension to the road. The Transportation Manager must always be contacted before any works commence. This includes any temporary access, which should be agreed with the Roads Authority prior to work commencing on it. No retaining structures or embankments shall be constructed along the edge of the road, whether retaining the public road or ground adjoining the public road without prior consultation and agreement of the Roads Authority. Page 191
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Appendix 3 – Committee site plan and extract application plans to follow as separate document. Page 192
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Plans, drawings and other material submitted to the local authority are protected by the Copyright, Designs and Patents Act 1988 (section 47). You may only use material which is downloaded and/ or printed for consultation purposes, to compare current applications with previous schemes and to check whether developments have been completed in accordance with approved plans. Further copies must not be made without the prior permission of the copyright owner. Maps shown in the Planning Committee Report can only be used for the purposes of the Planning Committee. Any other use risks infringing Crown Copyright and may lead to prosecution or civil proceedings. Maps produced within this Planning Committee Report can only be reproduced with the express permission of the Moray Council and other Copyright holders. This permission must be granted in advance. PLANNING APPLICATION COMMITTEE SITE PLAN Site Address: Land At Gibston Farm Blackhillock Keith Planning Application Ref Number: 25/00043/S36 Location Plan Applicant Name: Blackhillock Flexpower Ltd Appendix 3 Page 193
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Report to: Planning and Regulatory Services Committee Meeting Date: 27 May 2025 Report by: Depute Chief Executive (Economy, Environment and Finance) Report No: EGD020/25 Author: Fiona Olsen Acting Senior Planning Officer Contact Email: fiona.olsen@moray.gov.uk Subject: Proposed National Development of Corshellach 275kV Substation comprising a substation platform, associated electrical plant and machinery, control building, access, laydown/work compound area(s), landscaping and other ancillary works on land adjacent to Electricity Substation Berryburn, Dunphail, Forres. 1. PURPOSE ☒ For Decision ☐ For Information 1.1 The purpose of this report is to inform the Committee that a Proposal of Application Notice (PAN) was submitted on 17 April 2025 on behalf of Scottish Hydro Electric Transmission Plc. and to invite any comments from Elected Members. 1.2 This report is submitted to Committee in terms of Section III (E) (1) of the Council’s Scheme of Administration relating to exercising the statutory functions of the Council as a Planning Authority 2. SUMMARY 2.1 This report affords Members the opportunity to give feedback (if desired) and contribute to the formal pre-planning application public consultation process for this prospective national planning application. 3. RECOMMENDATIONS 3.1 It is recommended that: Page 211
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i) in noting the terms of this report, the Committee advise upon any provisional views/relevant issues that Members of this Committee (or any other Member(s) of the Council) wish to raise about the proposed development so that these matters can be recorded and thereafter fed back to the prospective applicant in order to inform the development of their proposed formal application for planning permission; and ii) the matters raised by the Committee also be forwarded to consultees likely to be involved in any formal application for planning permission for the proposal. Author Name: Fiona Olsen Job Title: Acting Senior Planning Officer 4. BACKGROUND AND CONTEXT 4.1 The Scottish Government has published guidance which encourages Elected Members to highlight any issues with a proposed development at the pre-application stage which they would wish to see taken into account within any formal application for planning permission. This report gives the Committee and the Council, the opportunity to identify any key issues/provisional views about the proposed development and that these matters be reported back to applicant. 4.2 This report is not about the merits of the proposed development but rather, based on local knowledge of local issues and wider concerns, etc. Members are invited to identify any matters relevant to the proposal. These will be reported back to the prospective applicant for their information and attention, and to inform the development of the proposed application. It is also proposed that, for information, Members’ comments be forwarded to consultees likely to be involved in any formal application for planning permission for the proposal. 5. PROPOSALS 5.1 As described, this PAN relates to a proposal for a National Development for the Corshellach 275kV Substation which comprises a substation platform, associated electrical plant and machinery, control building, access, laydown/work compound area(s), landscaping and other ancillary works on land adjacent to the existing Berryburn Substation, Dunphail, Forres. Works associated with the Proposed Development include the modification of one tower and installation of 275 kV downleads, which is being progressed by the Applicant as a separate application for Section 37 consent under the Electricity Act 1989. 5.2 The site area is approximately 8.36ha (including existing access routes to the public highway). The development would comprise a National Development for planning purposes as it constitutes development which is designated under the current National Planning Framework 4 (NPF4) which identifies Strategic Renewable Electricity Generation and Transmission Infrastructure (Scotland Wide) as a ‘National Development’. The proposal will therefore be subject to PAN and pre-application consultation procedures with the local community. It is noted that a request for pre-application advice has already Page 212
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been submitted to the Council. This will assist in identifying key issues and information that would be expected to accompany any formal application. 5.3 A formal response has been issued to the applicant to confirm that the proposed arrangements for engaging with the local community are sufficient. The applicant proposes to consult with Finderne Community Council. In this case the applicant’s agent has been advised that no additional parties require to be notified with a copy of the PAN. 5.4 The PAN advises that two public events will be/have been held at Edinkillie Hall on Tuesday 20 May between 15:00 and 19:00 and on Tuesday 17 June between 15:00 and 19:00. The events will be advertised locally in advance and allow an opportunity for feedback upon the proposal. For validation purposes for a national application, the applicant is required to submit a preapplication consultation report setting out the steps taken to consult with the local community together with details of comments made on the proposal and how the applicant has responded to all comments made on the proposal in the development of the application. 6. SUMMARY OF IMPLICATIONS 6.1 The table below shows whether risks and implications apply if the recommendations are agreed: SUBJECT YES NO Corporate Plan and 10 Year Plan (Local Outcome Improvement Plan) X Policy and Legal X Financial X Risk X Staffing X Best Value and Transformation X Property X Information Communications Technology/Digital X Equalities. Social Inclusion and Economic Impact X Climate Change and Biodiversity Impact X 6.2 Corporate Plan and 10 Year Plan (Local Outcomes Improvement Plan (LOIP)) Improved Collaborative Leadership, as part of continuous improvement through Best Value, will better enable the Council to fulfil the ambitions set out in its strategic plans. a) Links to Council Corporate Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following Council Plan strategic priorities: ☐ Tackle Poverty and Inequality. ☐ Build Stronger Greener Vibrant Economy. ☐ Build Thriving, resilient, empowered Communities. b) Links to Local Outcomes Improvement Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following Local Outcomes Improvement Plan priorities: ☐ Developing a diverse, inclusive, and sustainable economy Page 213
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☐ Building a better future for our children and young people in Moray. ☐ Empowering and connecting communities. ☐ Improving wellbeing of our population 6.3 Policy and Legal As this report only seeks wider strategic comments upon a Proposal of Application Notice, there are limited implication, but it should be noted as discussed above such development is identified within NPF4 and would be assessed under Section 37 of the Electricity Act 1989. 6.4 Financial None 6.5 Risk None 6.6 Staffing None 6.7 Best Value and Transformation None 6.8 Property None 6.9 Information Communications/Technology/Digital None 6.10 Equalities, Social Inclusion and Economic Impact None 6.11 Climate Change and Biodiversity Impacts None 7. CONSULTATION 7.1 This report has been prepared in consultation with the Depute Chief Executive (Economy, Environment and Finance), the Acting Head of Economic Growth and Development, the Legal Services Manager, the Acting Development Management and Building Standards Manager, the Equal Opportunities Officer, the Strategic Planning and Development Manager, and the Democratic Services Manager and any comments made have been incorporated into the report. 8. BACKGROUND PAPERS 8.1 Map of PAN location attached. Page 214
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1:25000 COMMITTEE SITE PLAN Proposed National Development of Corshellach 275kV Substation comprising a substation platform, associated electrical plant and machinery, control building, access laydown/work compound area(s) landscaping and other ancillary works on land adjacent to Electricity Substation Berryburn Dunphail Forres FORRES Application Reference Number: 2/00490/PAN (c) Crown Copyright. The Moray Council AC0000806936 2025 © Bluesky International Ltd. / Getmapping PLC . Page 215
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Report to: Planning and Regulatory Services Committee Meeting Date: 27 May 2025 Report by: Depute Chief Executive (Economy, Environment and Finance) Report No: EGD004/25/MA/MA Author: Muriel Allan Contact Email: Muriel.allan@moray.gov.uk Subject: Enforcement of Tobacco and Nicotine Vapour Products Legislation by Moray Council Trading Standrads 1. PURPOSE ☐ For Decision ☒ For Information 1.1 The purpose of this report is to inform members about legislative changes and service impact in relation to the enforcement of nicotine vapour products (NVPs) and tobacco products on Moray Council’s Trading Standards Department 1.2 This report is submitted to Committee in terms of Section III (E) (11) of the Council's Scheme of Administration relating to Trading Standards. 2. SUMMARY 2.1 The sale of nicotine vapour and tobacco products is controlled by the Tobacco and Primary Medical Services (Scotland) Act 2010. The Act prohibits the sale to under 18’s. Single use, disposable vapes are the most easily available and commonly used nicotine vapour products amongst under 18’s and the harmful effects of these products has been the focus of education and health promotion activity and press attention, nationally and locally. 2.2 Trading Standards departments are responsible for enforcing the relevant legislation and regulating unlawful supply. Local Authority performance in this regard is monitored through Scottish Government reporting of key performance indicators Page 217
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relating to inspection targets and test purchases at registered sellers’ business premises. Scottish Government grant funding is made available to Local Authorities in support of this activity and is allocated according to individual Authority service plans and priorities. 2.3 Legislative change coming into effect this year will see a ban on the sale of disposable NVPs and laws to restrict the supply of tobacco and nicotine based products to anyone born after 1 January 2009. This is likely to produce an increase in the demand amongst under 18’s for other forms of non-disposable nicotine vapour and tobacco products, the potential emergence of a trade in illicit disposable vapes and a growing trend in illegal sales to those born after 1 January 2009. 2.4 Trading Standards regulatory performance will remain under scrutiny through Scottish Government key indicators alongside media and public interest reporting and FOI requests. Current resourcing and funding levels create a challenge in this regard. 2.5 Recent media reporting has highlighted the effectiveness of targeted enforcement activity locally, with the recovery of illicit tobacco from Moray businesses. However, ongoing education, enforcement and partnership work requires increased recognition and support of resources and funding to assist with work carried by test purchase and integrity test volunteers, as part of this focus. 3. BACKGROUND AND CONTEXT 3.1 Tobacco is internationally recognised as a major public health threat and damages lives across Scotland. Recent increases in the number of young people using NVPs is also a cause for concern. 3.2 Nicotine vapour products, often referred to as vapes or NVPs, are battery operated devices which heat a solution of nicotine and deliver it to the user in the form of an aerosol rather than through combustion of tobacco. NVPs are intended as a smoking cessation tool, not meant to be used by children, young people or adult non-smokers. 3.3 Currently, NVPs offered for sale are required to be notified to the Medicines and Healthcare Regulatory Agency and must comply with strict standards prescribed by the Tobacco and Related Products Regulations 2016 (TRPRs). The TRPRs stipulate the maximum strength and tank capacity of nicotine solutions, ban certain ingredients, and require specific labelling and health warnings. Tobacco is similarly controlled under the TRPRs in relation to health warnings and is also subject to standardised packaging requirements. The TRPRs are defined as safety regulations for the purposes of the Consumer Protection Act 1987 and the enforcement responsibility sits with Trading Standards. 3.4 The sale of NVPs and tobacco to under 18s is prohibited by the Tobacco and Primary Medical Services (Scotland) Act 2010 and the enforcement responsibility sits with Trading Standards. Page 218
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3.5 Further legislation controlling the sale of counterfeit or illicit tobacco including the Trade Marks Act 1994 is also enforced by Trading Standards. 3.6 The Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024 were laid before the Scottish Parliament in 2024 and will come into force in June 2025. The Regulations will prohibit the sale of single use NVPs and enforcement of these Regulations is likely to be the responsibility of Trading Standards. Furthermore, the Tobacco and Vapes Bill was introduced in the House of Commons on 5 November 2024. The purpose of the bill is “to make provision about the supply of tobacco, vapes and other products, including provision prohibiting the sale of tobacco to people born on or after 1 January 2009. The Bill will be applied UK wide and has been developed in partnership with the Scottish Government, the Welsh Government and the Northern Ireland Executive. 3.7 In terms of other enforcement work relating to tobacco and NVPs, in October 2021, Moray Trading Standards signed up to a national Trading Standards project to address the issue of the growing number of non compliant single use NVPs being sold. These products consist of a tank of nicotine liquid and a lithium battery in a brightly coloured sealed unit which resemble highlighter pens. They are available in an assortment of flavours and designs and are designed to be disposed of once the contents have all been inhaled. Between October 2021 and March 2022, Officers from Moray Trading Standards visited a total of 56 premises registered to sell NVPs and examined the single use vapes on display. 15 of those premises were selling non compliant vapes and were instructed to remove them from sale as per the project protocol. The non compliances were minor and mostly related to labelling and incomplete instructions. 3.8 Moray Trading Standards has also signed up to Operation CeCe. This is a coordinated, intelligence-led operation with HMRC to address the supply of illicit tobacco, with efforts directed at retail level supply. Funding is provided by HMRC and administered by the Society of Chief Officers of Trading Standards in Scotland (SCOTSS). Through intelligence, Moray Trading Standards has investigated four cases involving the supply of illicit tobacco. A total of 77 units of illicit tobacco have been seized and seven Fixed Penalty Notices issued. A report was also submitted to the Procurator Fiscal but was not marked. A fine of £2,500 has also been imposed on one individual by HMRC for supplying non duty paid tobacco. The most recent work relating to Operation CeCe involved the services of two tobacco detection dogs and their handler on 02 April 2025. These services are funded by SCOTSS. Non duty paid tobacco was found in a local Licensed Premises and a further referral to HMRC is being considered. 3.9 Targets for Trading Standards inspections of premises selling Nicotine Vapour Products and tobacco and test purchases have been agreed as a key performance indicator with the Scottish Government and implemented under the Enhanced Tobacco and NVP Sales Enforcement Programme (ETSEP). This relates to the enforcement of the Tobacco and Primary Medical Services (Scotland) Regulations 2010, which prohibit the sale of tobacco and NVPs to persons under 18 years. Current targets are that Local Authority Trading Standards annually inspect 20% of all Page 219
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registered premises selling tobacco and NVPs and to carry out test purchases with young volunteers at 10% of the premises. This currently equates to 26 inspections and13 test purchases respectively. 3.10 The organisation and implementation of a programme of test purchases is extremely resource intensive. It is intelligence led, however if there is insufficient intelligence, a programme of integrity/compliance visits will be carried out. A volunteer over 18 years but under 25 is tasked to attempt to buy a tobacco product or an NVP. If the product is sold without any age verification, then that premises is targeted for a test purchase with a volunteer under 18. Young volunteers then need to be recruited, trained and authorised. Three officers are required to be involved for each test purchase. Two officers are in the shop watching the transaction. This is so that corroborated evidence of a sale can be obtained without the volunteer having to potentially appear in Court. The other officer remains outside the shop to meet the volunteer, so that the volunteer is supervised at all times. Regulation of Investigatory Powers authorisations are required so that that officers can carry out covert surveillance of the actual test purchase. This places additional demand on resources. 3.11 Local Authorities across Scotland jointly receive annual funding of £1.5 million from the Scottish Government for the enforcement, which has been maintained since its introduction in 2010/2011. The funding was increased in 2017-18 when £1,340 million was added for NVP Control. This total funding of £2,840 million has continued into 2024-25. The funding Scottish councils receive is to more rigorously enforce tobacco and NVP sales law, including test purchasing and joint working. Many authorities employ a dedicated tobacco/NVP enforcement officer, funded by the grant. Moray Council receives an annual grant of £40,000 for NVP and tobacco enforcement. This payment is included within the general grant and is not allocated for specific tobacco work. 3.12 Since the ETSEP was introduced in 2012 by the Scottish Government, Moray Trading Standards have consistently achieved their targets for both inspections and test purchases of NVPs and tobacco. With the current staffing profile, continuing to meet these targets going forward, will prove difficult. In 2023, two Fair Trading Officers left the service. One post was filled in December 2023 by a trainee who is still undergoing the statutory qualification. The other post was deleted as a budget saving in 2024. Currently, Moray Trading Standards has 4.7 Full Time Equivalent Officers, with the retiral of one full time member of staff due in June this year 3.13 Recent media reporting has been mixed. The most recent enforcement activity with the tobacco dog resulted in positive coverage of the recovery of illicit tobacco, highlighting the activity as a priority for Trading Standards officers. (See Appendix B). Less positive press reporting was experienced in an article which referenced an advisory approach being taken by Moray Council Trading Standards, with non- compliant businesses in relation to the sale of illicit vaping products (Appendix A) These reports serve to highlight the ongoing media and public interest in NVP and tobacco work, which is likely to remain, given the legislative changes forthcoming. Page 220
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4. PROPOSALS 4.1 It is proposed to continue to use intelligence received to determine enforcement and deployment of current resources for tobacco enforcement. The detail and confirmation of enforcement requirements of The Environmental Protection (Single- use Vapes) (Scotland) Regulations 2024 may require a reappraisal of tobacco enforcement within Trading Standards and the proposal will be reassessed. 5. SUMMARY OF IMPLICATIONS 5.1 The table below shows whether risks and implications apply if the recommendations are agreed: SUBJECT YES NO Corporate Plan and 10 Year Plan (Local Outcome Improvement Plan) x Policy and Legal x Financial x Risk x Staffing x Best Value and Transformation x Property x Information Communications Technology/Digital x Equalities. Social Inclusion and Economic Impact x Climate Change and Biodiversity Impact x 5.2 Corporate Plan and 10 Year Plan (Local Outcomes Improvement Plan (LOIP)) Improved Collaborative Leadership, as part of continuous improvement through Best Value, will better enable the Council to fulfil the ambitions set out in its strategic plans. a) Links to Council Corporate Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following Council Plan strategic priorities: ☐ Tackle Poverty and Inequality. ☐ Build Stronger Greener Vibrant Economy. ☒ Build Thriving, resilient, empowered Communities. b) Links to Local Outcomes Improvement Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following local Outcomes Improvement Plan priorities: ☐ Developing a diverse, inclusive, and sustainable economy ☒ Building a better future for our children and young people in Moray. Page 221
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☐ Empowering and connecting communities. ☒ Improving wellbeing of our population 5.3 Policy and Legal Legislation, namely the Environmental Protection (Single-use Vapes) (Scotland) Regulations 2024 will come into force on 01st April 2025. The Tobacco and Vapes Bill is also likely to be enacted by the Scottish Government. 5.4 Financial It is not yet known if there will be any additional funding from the Scottish Government following the introduction of the new legislation. One off Costs: Service Area Budget Budget Years Proposed Spend this Year Virement From Other Comments N/A N/A N/A N/A N/A N/A Annually Recurring Costs: Service Area Budget With Effect From Annual Net Impact Virement From (if applicable) Other Comments N/A N/A N/A N/A N/A N/A 5.5 Risk Moray Council Trading Standards are currently not meeting their targets for test purchases under the Enhanced Tobacco and NVP Sales Enforcement Programme. Further pressures will be imposed on the Service with the introduction of the single use NVP ban in April 2025. 5.6 Staffing N/A 5.7 Best Value and Transformation N/A 5.8 Property N/A 5.9 Information Communications/Technology/Digital N/A 5.10 Equalities, Social Inclusion and Economic Impact N/A Page 222
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5.11 Climate Change and Biodiversity Impacts N/A 6. CONSULTATION 6.1 This report has been prepared in consultation with the Depute Chief Executive (Economy, Environment and Finance), the Acting Head of Economic Growth and Development, Environmental Health and Trading Standards Manager, Legal Services Manager and Democratic Services Manager and any comments made have been incorporated into the report. 7. BACKGROUND PAPERS 7.1 N/A Page 223
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Crime & Courts Council squadsremovehundredsofharmful vapesfromrogueshops–whileothersseizenone We compared how Aberdeen, Aberdeenshire, Angus, Highland and Moray councils did when it came to targeting rogue traders selling vapes to children - and the contrast in approaches was clear to see. by Dale Haslam December 27 2024, 6:00 am December 27 2024, 6:00 am Share FOLLOW Thousands of illegal vapes have been seized across the north of Scotland. Image: Shutterstock 06/01/2025, 15:44 Combatting illegal vapes in 2024: How did your local council do? https://www.pressandjournal.co.uk/fp/news/crime-courts/6657938/council-squads-seize-hundreds-of-harmful-vapes-from-rogue-shops-while-othe… 1/10 Page 224
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Clampdown teams are busier than ever seizing illegal vapes from rogue traders – but other local authorities have seized nothing at all. Our investigation found some councils are confiscating contraband and banning traders from selling vapes – while other councils are taking a less hands-on approach. Trading standards teams must ensure shops only sell properly labelled vapes. The vapes must be properly registered and only contain liquid within agreed limits – but some had twice the legal amount. When councils receive tip-offs about shops selling things they shouldn’t be, they can inspect the premises. They also go undercover and, with the help of underage volunteers, test if shops are selling things to under-18s. Using freedom of information law, we asked five local authorities what they were doing to battle the scourge of illegal vapes after several council chiefs labelled them “worrying”. Aberdeenshire, Aberdeen City and Highland councils all seized items in the last five years, while Moray and Angus had not. What’s Aberdeenshire Council done? The council seized no vapes in 2020 or 2021 – during Covid restrictions – and then it seized 273 vapes in 2022. Its officers confiscated 120 items in 2023 and there were 100 seizures in 2024, up until December 16. The council gave the vapes to a third-party firm, which destroyed them. 06/01/2025, 15:44 Combatting illegal vapes in 2024: How did your local council do? https://www.pressandjournal.co.uk/fp/news/crime-courts/6657938/council-squads-seize-hundreds-of-harmful-vapes-from-rogue-shops-while-othe… 2/10 Page 225
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A selection of disposal vapes, which must include certain wording in order to be legally sold. Image: Highland Council Brands seized included Elfbar Vapes, Lost Mary Vapes and Crystal Vapes. However, there is no suggestion that the producers of those companies have broken the law in any way. The council didn’t reveal location information but did say it targeted an unlicensed seller in May. Suppliers can sometimes be fined £200 or banned, but the council will not utilise either of those options this year. What’s happening in Aberdeen? The council seized no vapes in 2020 due to Covid-19 restrictions, but it did confiscate 175 in 2021 and 274 in 2022. That fell to 63 in 2023. However, the figure went up to 260 in 2024 – and the council revealed details of those seizures. Its trading standards officers went to a shop in Aberdeen in April and seized 142 illegal vapes. 06/01/2025, 15:44 Combatting illegal vapes in 2024: How did your local council do? https://www.pressandjournal.co.uk/fp/news/crime-courts/6657938/council-squads-seize-hundreds-of-harmful-vapes-from-rogue-shops-while-othe… 3/10 Page 226
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On the same day, they visited another store and took 11 illegal vapes away. Four days later, the officers seized another eight vapes. Then on November 29, officers went to another shop in Aberdeen and seized 99 illegal vapes. Aberdeen trading standards ocers seized vapes from four shops this year. Image: Shutterstock Brands seized included: ENE Legend, ELUX LEGEND, Crystal Prime and OG Super Smash. However, there is no suggestion that the producers of those companies have broken the law in any way. Previously a council spokesman said: “Under UK law, the safe legal standard set for the capacity of an e-cigarette tank is 2ml. “But many of those seized (in an operation in April this year) were more than double this, ranging from 5ml to 8.5ml. “Products should also have the name and address of a UK contact. Kids caught with vapes at primary schools 06/01/2025, 15:44 Combatting illegal vapes in 2024: How did your local council do? https://www.pressandjournal.co.uk/fp/news/crime-courts/6657938/council-squads-seize-hundreds-of-harmful-vapes-from-rogue-shops-while-othe… 4/10 Page 227
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“But many of the products were missing this information along with essential instructions for use, and health and safety warnings.” Of the vapes seized in the city this year, 153 were not compliant with the law, while 73 had incorrect packaging. On four occasions this year, people voluntarily surrendered illegal vapes to the councils. All the vapes seized were sent to a third-party service for destruction and recycling, the council said. Previously, the council revealed that 26 vapes were confiscated from children at the city’s primary schools in 2021/22, followed by 20 more in 2022/23. However, there have been no such incidents since. ‘Worrying rise’ Graeme Paton, Aberdeen City Council trading standards manager, said: “Our trading standards team is working hard to get these illegal products removed from shop shelves. “They are protecting the health and wellbeing of Aberdeen consumers, and making sure that retailers and wholesalers are only selling legal vaping products. “We are seeing a worrying rise in complaints about shops selling vaping products to under-18s. “We’d like to remind all shops selling vapes to check they can be sold in the UK, and for people using them to check the capacity for an e-cigarette tank. “And that if there are no statutory warnings or instructions, they should be aware these items will probably be illegal.” Anyone spotting illegal vapes for sale or believing that a shop may be selling vaping products to under-18s should report the details to the Aberdeen City trading standards team at tradingstandards@aberdeencity.gov.uk. What’s happening in the Highlands? Highland Council officers have seized 3,303 illegal vapes since the start of 2020 and November 25 this year. 06/01/2025, 15:44 Combatting illegal vapes in 2024: How did your local council do? https://www.pressandjournal.co.uk/fp/news/crime-courts/6657938/council-squads-seize-hundreds-of-harmful-vapes-from-rogue-shops-while-othe… 5/10 Page 228
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That included confiscating 1,000 from one shop alone in July 2023. Its officers handed out five on-the-spot fines to rogue traders in 2019/20 because of vape sales. They didn’t hand out any fines in the next two tax years but handed out five in 2023/23. That figure grew to 21 in 2023/24 and officers issued 18 fines to rogue traders between the start of April this year and November 25. And one particular case went beyond that. Vapecing on Inglis Street cannot sell vapes until August 2025 due to a court order. Image: Highland Council In May, the council revealed how Inverness Sheriff Court had banned Adnan Abbas from selling vapes from two shops for 15 months. 06/01/2025, 15:44 Combatting illegal vapes in 2024: How did your local council do? https://www.pressandjournal.co.uk/fp/news/crime-courts/6657938/council-squads-seize-hundreds-of-harmful-vapes-from-rogue-shops-while-othe… 6/10 Page 229
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The council said Mr Abbas owns two shops in Inverness – Vapecing on Inglis Street and Wow Mobile on Lombard Street. This was due to the shop selling vapes to underage customers. Mr Abbas had previously been given four on-the-spot fines. A council spokesman said: “Vapes are generally seized due to the contents or labelling but seizures can also be linked to underage sales. Kids as mystery shoppers “Since last summer, our trading standards team has carried out 109 visits to businesses selling vapes, carried out 55 test purchases and seized just under 2,000 illegal vapes. “Formal actions taken include 14 fixed-penalty fines being issued for underage sales, along with a number of formal warnings and one civil court order being granted. “Fixed penalty fines are issued, these start at £200 but increase for repeat offenders.” The council said it had uncovered “worrying” findings from a recent undercover operation in Skye, Easter Ross, Inverness, Badenoch and Strathspey. It arranged for 52 volunteer under-18s to go into shops to see if they get served – and 13 did. 06/01/2025, 15:44 Combatting illegal vapes in 2024: How did your local council do? https://www.pressandjournal.co.uk/fp/news/crime-courts/6657938/council-squads-seize-hundreds-of-harmful-vapes-from-rogue-shops-while-othe… 7/10 Page 230
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Wow Mobile on Lombard Street, Inverness, cannot sell vapes until August 2025 due to a court ban. Image: Highland Council. The council’s trading standards manager David MacKenzie said: “It is extremely disappointing that one in three retail premises sold vapes to our young volunteers. “We will always take firm action against those that flout these important public protection and child safety laws. “This includes issuing fixed-penalty fines and ultimately applying to the sheriff court for a banning order.” You can ask the team for advice by emailing trading.standards@highland.gov.uk What’s happening in Moray? We asked Moray Council why it had not seized any vapes in the last five years. A Moray Council spokeswoman said: “Our trading standards’ approach is to advise businesses to remove vapes that do not comply with the relevant safety 06/01/2025, 15:44 Combatting illegal vapes in 2024: How did your local council do? https://www.pressandjournal.co.uk/fp/news/crime-courts/6657938/council-squads-seize-hundreds-of-harmful-vapes-from-rogue-shops-while-othe… 8/10 Page 231
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Tailored justforyou legislation from sale. “This approach was established when our team started inspecting single-use vapes as part of a national trading standards project from 2021. “Every retailer in Moray that sold vapes was visited. “Rather than seize the significant amount that did not comply with the relevant safety legislation, businesses were advised to remove them from sale and return them to their suppliers, as per the national project protocol.” What’shappeninginAngus? We asked Angus Council why it had not seized any vapes in the last five years. A council spokesman said: “The majority of complaints Angus Council trading standards receives concerning the sale of tobacco products – including vapes – relate to the sale of illicit or counterfeit tobacco products and the sale of vapes to underage children. “Accordingly, we concentrate our resources on the seizure of illicit tobacco products – working in partnership with HMRC – and in undertaking covert underage test purchasing of vapes. “Test purchases are followed up with repeat visits in line with our enforcement policy. “Any intelligence relating to non-compliant products in Angus would be investigated and acted upon.” 06/01/2025, 15:44 Combatting illegal vapes in 2024: How did your local council do? https://www.pressandjournal.co.uk/fp/news/crime-courts/6657938/council-squads-seize-hundreds-of-harmful-vapes-from-rogue-shops-while-othe… 9/10 Page 232
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Here's Jimmy Thelin's message to concerned Aberdeen fans as ... Inverurie chemist trialling new system for repeat prescripti... Man charged after £200k cannabis farm discovered in Ellon Plans to deal with 'absolutely disgusting' Peterhead pong af... 06/01/2025, 15:44 Combatting illegal vapes in 2024: How did your local council do? https://www.pressandjournal.co.uk/fp/news/crime-courts/6657938/council-squads-seize-hundreds-of-harmful-vapes-from-rogue-shops-while-oth… 10/10 Page 233
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08 APR 2025 Tobacco dog on duty in Moray Enforcement officers from Moray Council’s Trading Standards department recently teamed up with tobacco search dog ‘Rosie’ and her handler, to visit a number of Moray businesses to check for illicit tobacco being sold from them. This enforcement action, aimed at the recovery of illegal tobacco and disruption of the supply of it, comes on the back of information and intelligence, nationally and locally, regarding the increasing trend in this activity within certain businesses. The Moray based action resulted in the seizure of a quantity of illicit tobacco from shops and licensed premises and a report will be submitted to HMRC. 09/04/2025, 11:33 Tobacco dog on duty in Moray | Moray Council News https://newsroom.moray.gov.uk/news/tobacco-dog-on-duty-in-moray 1/3 Page 234
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Privacy Policy Chair of Moray Council’s Economic Development and Infrastructure Services Committee, which covers Trading Standards, Cllr Marc Macrae, said: “The sale and supply of illicit tobacco will remain a focus of attention for our Trading Standards team and partners across the country. The trade in illegal cigarettes and tobacco has a harmful effect on legitimate sellers and can have a costly financial and reputational impact on those found to be selling it illegally. “Moray’s Trading Standards team will continue to respond to reports received from the public and to intelligence gathered, to target businesses who choose to ignore the law and engage in this harmful activity”. Contact Information Moray Council Press Office pr@moray.gov.uk Rosie the tobacco dog Tobacco dog handler Download Download This website uses cookies to make your browsing experience better. Cookie Settings Accept all cookies 09/04/2025, 11:33 Tobacco dog on duty in Moray | Moray Council News https://newsroom.moray.gov.uk/news/tobacco-dog-on-duty-in-moray 2/3 Page 235
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Accessibility Cookie Settings © 2025 Moray Council Powered by Onclusive PR Manager™ This website uses cookies to make your browsing experience better. Cookie Settings 09/04/2025, 11:33 Tobacco dog on duty in Moray | Moray Council News https://newsroom.moray.gov.uk/news/tobacco-dog-on-duty-in-moray 3/3 Page 236
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Report to: Planning and Regulatory Services Committee Meeting Date: 27 May 2025 Report by: Depute Chief Executive (Economy, Environment and Finance) Report No: EGD003/25/MA/MA Author: Muriel Allan Contact Email: Muriel.allan@moray.gov.uk Subject: Moray Trusted Trader Scheme 1. PURPOSE ☐ For Decision ☒ For Information 1.1 The purpose of this report is to provide members with an update on the Moray Trusted Trader Scheme 1.2 This report is submitted to Committee in terms of Section III (E) (11) of the Council's Scheme of Administration relating to Trading Standards. 2. SUMMARY 2.1 The statistics in the quarterly report produced by Trusted Directory Services Ltd (TDS) for October to December 2024 at Appendix A are encouraging. There were three new applicants in the reporting period and four resubscriptions. The resubscription rate is 88.9% with only one business declining to resubscribe. There is currently £506 due to the Moray Council for resubscriptions. Customer reviews are also positive. There are currently 294 reviews with an average rating of 4.79 out of 5 for the services that consumers have received from the businesses. From statistics described in the report, the revenue generated for the Moray Economy as a result of the scheme is £4,000. There have also been 16 contact form work requests to members of Moray Trusted Trader. Page 237
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2.2 The implementation of Moray Trusted Trader has resulted in benefits for Moray Council, the population of Moray and local businesses. 3. BACKGROUND AND CONTEXT 3.1 The Moray Trusted Trader Scheme was launched in June 2023. The scheme is an internet based directory, which allows local consumers to access an up to date list of traders in Moray who operate with good consumer protection standards. Applicants are fully vetted by Moray Trading Standards before being allowed to join the scheme. 3.2 The scheme is funded by members’ annual subscription fees of £200 excluding VAT. From this fee, £130 is retained by Trusted Directory Services Ltd (TDS), who initially created the website and administer the scheme. £70 is returned to the Moray Council. As an incentive for traders to join the scheme, a discount of 50% was offered to the first 25 traders to join. This incentive has now expired. 3.3 During the initial “soft launch” of the scheme, a variety of marketing techniques were used to encourage businesses to join. These included direct contact with local businesses, Facebook posts, press releases and posts on the Moray Council website and Interchange. Once a variety of different types of businesses were established on the scheme, further marketing was directed towards the public. This included a recent YouTube video recorded by Councillor David Gordon. 3.4 There are currently 17 businesses registered on the scheme and two pending applications. Businesses include electricians, heating engineers, cleaning companies, builders, joiners, decorators and landscaping businesses. 4. PROPOSALS 4.1 To continue to promote and encourage use of the Trusted Trader scheme in Moray to offer vital protection for vulnerable individuals. 5. SUMMARY OF IMPLICATIONS 5.1 The table below shows whether risks and implications apply if the recommendations are agreed: SUBJECT YES NO Corporate Plan and 10 Year Plan (Local Outcome Improvement Plan) x Policy and Legal x Financial x Risk x Staffing x Best Value and Transformation x Page 238
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Property x Information Communications Technology/Digital x Equalities. Social Inclusion and Economic Impact x Climate Change and Biodiversity Impact x 5.2 Corporate Plan and 10 Year Plan (Local Outcomes Improvement Plan (LOIP)) Improved Collaborative Leadership, as part of continuous improvement through Best Value, will better enable the Council to fulfil the ambitions set out in its strategic plans. a) Links to Council Corporate Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following Council Plan strategic priorities: ☒ Tackle Poverty and Inequality. ☐ Build Stronger Greener Vibrant Economy. ☐ Build Thriving, resilient, empowered Communities. b) Links to Local Outcomes Improvement Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following local Outcomes Improvement Plan priorities: ☐ Developing a diverse, inclusive, and sustainable economy ☐ Building a better future for our children and young people in Moray. ☐ Empowering and connecting communities. ☒ Improving wellbeing of our population 5.3 Policy and Legal N/A 5.4 Financial There was an initial set up fee of £2,000 paid to TDS when the scheme was first set up. £506 has been recovered through resubscription fees. If all current members resubscribe again in 2025, a further £1,190 will be recovered by Moray Council. It is anticipated that the full initial outlay will be recovered by June 2026. One off Costs: Service Area Budget Budget Years Proposed Spend this Year Virement From Other Comments N/A N/A N/A N/A N/A One off cost only in 2023. Annually Recurring Costs: Page 239
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Service Area Budget With Effect From Annual Net Impact Virement From (if applicable) Other Comments N/A N/A N/A N/A N/A Existing staff resources 5.5 Risk N/A 5.6 Staffing Trading Standards staff are involved in the initial vetting process. This involves examining documentation, websites, details of any complaints and any negative intelligence. They also meet with the applicant, preferably face to face and complete a questionnaire. The time taken is around two hours per applicant and is accommodated within existing resources. Once the initial vetting process has been carried out, 70% of the workload, all the support functions, and dispute resolution are handled by TDS. 5.7 Best Value and Transformation N/A 5.8 Property N/A 5.9 Information Communications/Technology/Digital N/A 5.10 Equalities, Social Inclusion and Economic Impact N/A 5.11 Climate Change and Biodiversity Impacts N/A 6. CONSULTATION 6.1 This report has been prepared in consultation with the Depute Chief Executive (Economy, Environment and Finance), the Acting Head of Economic Growth and Development, Environmental Health and Trading Standards Manager, Legal Services Manager and Democratic Services Manager and any comments made have been incorporated into the report. 7. BACKGROUND PAPERS 7.1 N/A Page 240
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1 | P a g e 01 October 2024 – 31 December 2024 Management Report Prepared by Steve Richardson TDS. Numbers in red reflect numbers from previous quarter. 1. Trader stats for the period Paid Applications: 3 (0) Resubscriptions: 4 (4) Failed Resubs: No benefit: 0 (1) Sees benefit but no longer wants membership: 0 (0) (eg too much work on the books, no perceived need) Ineligible to resub: (ie retiring, business gone bust or rejected by TS) Retiring: 0 (0) Non-Trading / Incommunicado: 0 (0) Resub Rejected: 0 (0) Current Resub rate: 88.9% (80%) All Schemes combined Resub Rate: 94.9% (92.8%) 2023 Moray Resub Rate: n/a 2023 Combined Resub Rate: 96.1% Rejected Applications: 0 (1) Deleted / Removed from the scheme: 0 (0) Suspended Listings: 0 (0) Currently: Live Traders: 17 (14) Applications in progress: 2 (2) 2. Reviews Total Reviews: 294 (both live and from applications in progress) (243) Live Reviews: 280 (229) Validated Reviews: 58 (49) Unable to Validate: 34 (27) Deleted Reviews*: 14 (11) *Deleted reviews only counts reviews that have been manually removed for whatever reason. It doesn’t include any members who have been removed or decided not to renew. Any removed members also removes their historical reviews from the review count (live reviews). Validated Reviews: (above and beyond normal review moderation) Our target is to perform quality control on at least 20% of all reviews by contacting the reviewer. Currently = 19.7% (20.1%) Reviewer's Experience of the Moray Trusted Trader Scheme: Page 242
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2 | P a g e 3. Consumer Enquiries We are unable to track how many phone calls consumers may have made directly to a Trader either via the website or due to the influence of Trusted Trader, logo’s flyers etc. But we can track website trader contact forms. Trusted Trader contact form work requests: 16 (11) Traders not receiving contact form work requests: 9 (7) 4. Analytics Analysis Visitors and traffic sources across the trustedtrader.scot platform (compared with previous quarter) Pageview and users breakdown just for trustedtrader.scot/Moray Page 243
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3 | P a g e Sitewide Device Usage: (compared with last quarter) Here we can see how critical it is for the scheme to be available on small screen mobile devices. 5. Scheme Economic Value over the last Quarter Formula summary: • Taking the most common value from the latest 20,000 reviews (across all schemes) (=X) • Find the number of work requests for a given time frame for a given scheme. • Agreed conservative estimate that there is a ratio of 2:1 telephone requests versus filling in a Trusted Trader contact web form. Phone calls maybe be from the Trusted Trader profile or following weblinks to the trader’s website or social media, and then phoning. • Assumption that the average consumer requests 3 quotes as recommended. So, work requests need to be divided by 3 to allow for a single successful job request. • Assumption that only 50% of these job requests actually lead to a completed job. (=Y) • (X) x (Y) = Value of work completed in the given time frame. • Divide by number of traders to get a value per trader. Moray Values: X= £500 (Most common value) Total work agreed requests: 48 (33) Number of work requests per trader: 3 (2) Value of work per trader: £235 (£196) Revenue generated for the Moray Economy: £4,000 (£2,750) Page 244
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4 | P a g e 6. Complaints and issues resolved or in progress for the quarter • No complaints. 7. Trader Sign Ups and how they found out about the Scheme This also includes applications that are pending, ie we are awaiting payment. Unpaid Apps that never paid and were deleted, or rejected apps. Expressions of interest. • No expressions this quarter 8. Observations & Issues We are now in the second year of Moray Trusted Trader, and with 17 live members, 2 apps in progress and 8 of the original members now renewed with only 1 not seeing any value, I think things are going really well. We had a gap when we lost Donna, but the new marketing guy seems really good and has already done a councillor video, so looking forward to growing the scheme in 2025, alongside Aberdeenshire and Highland as all schemes should compliment each other. The focus for 2025 for all schemes is growth and continued awareness. We are running a pilot PPC Campaign on both Google and Facebook from Jan to March to see if we can increase members, and if this form of marketing is viable, so we will be able to share results in the next quarterly statement. We are currently holding £560 for Moray in your marketing pot. No complaints and no issues or problems to report or that we are aware of. Steve Richardson TDS Page 245
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Report to: Planning and Regulatory Services Committee Meeting Date: 27 May 2025 Report by: Depute Chief Executive (Economy, Environment and Finance) Report No: EGD002/25/MA/MA Author: Muriel Allan Contact Email: Muriel.allan@moray.gov.uk Subject: Truecall Callblockers 1. PURPOSE ☐ For Decision ☒ For Information 1.1 The purpose of this report is to provide members with an update on the effectiveness of Truecall call blockers and the latest statistics. 1.2 This report is submitted to Committee in terms of Section III (E) (11) of the Council's Scheme of Administration relating to Trading Standards. 2. SUMMARY 2.5 The annual review for Moray provided by Truecall contains some positive statistics. • 38 call blockers have been installed since 2014 • 75,216 nuisance and scam calls received of which 74,963 were blocked, which is 99% • An estimated 121 scams prevented The full review is at Appendix A. Page 247
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3. BACKGROUND AND CONTEXT 3.1 Since 2014, Moray Council Trading Standards have been installing Truecall callblockers for vulnerable consumers. A callblocker is a device that sits between the phone socket and the phone. The purpose of the device is to prevent vulnerable consumers from being scammed and from agreeing to purchase unnecessary goods and services as a result of unsolicited telephone calls. The device checks every call. Calls from trusted callers are let straight through and calls from known nuisance callers are blocked. All other callers are intercepted and checked before they are allowed to ring the phone. Truecall Credentials are appended at Appendix B. 3.2 Truecall devices collect data about the nuisance calls received and blocked. This data may be used by enforcement teams to monitor trends, identify the top nuisance calling numbers and gather intelligence. 3.3 A Truecall unit costs just over £100, although the Council has not purchased any for some years. Moray Trading Standards have received units from various sources including Trading Standards Scotland and the Society of Chief Officers of Trading Standards in Scotland. (SCOTSS). There are currently four units remaining in stock, however a further five units are expected to be supplied by Trading Standards Scotland. 3.4 Due to the reduction in staff Trading Standards no longer can offer a proactive service in relation to installation of these devices. A Truecall device will be installed by Moray Trading Standards for a consumer after an assessment of the vulnerability of the consumer, whether they have lost money to a scammer and their financial circumstances. Vulnerable consumers who would benefit from a callblocker are identified following complaints made to Trading Standards about scams. Consumers are also referred by the Access Care Team. 3.5 There has been a positive response on the ongoing mental and wellbeing benefits to the individuals and families where these call blockers have been installed. 4. PROPOSALS 4.1 It is proposed to continue to assess individual requirements and install call blockers free of change for the most vulnerable within Moray. Trading Standards will continue to source free call blockers and provide the necessary training for the individuals to ensure effective use and maximum protection. 5. SUMMARY OF IMPLICATIONS 5.1 The table below shows whether risks and implications apply if the recommendations are agreed: Page 248
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SUBJECT YES NO Corporate Plan and 10 Year Plan (Local Outcome Improvement Plan) x Policy and Legal x Financial x Risk x Staffing x Best Value and Transformation x Property x Information Communications Technology/Digital x Equalities. Social Inclusion and Economic Impact x Climate Change and Biodiversity Impact x 5.2 Corporate Plan and 10 Year Plan (Local Outcomes Improvement Plan (LOIP)) Improved Collaborative Leadership, as part of continuous improvement through Best Value, will better enable the Council to fulfil the ambitions set out in its strategic plans. a) Links to Council Corporate Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following Council Plan strategic priorities: ☐ Tackle Poverty and Inequality. ☐ Build Stronger Greener Vibrant Economy. ☒ Build Thriving, resilient, empowered Communities. b) Links to Local Outcomes Improvement Plan – The proposals in this report support and contribute to improved outcomes for communities as outlined in the following local Outcomes Improvement Plan priorities: ☐ Developing a diverse, inclusive, and sustainable economy ☐ Building a better future for our children and young people in Moray. ☐ Empowering and connecting communities. ☒ Improving wellbeing of our population 5.3 Policy and Legal N/A 5.4 Financial N/A One off Costs: Service Area Budget Budget Years Proposed Spend this Year Virement From Other Comments N/A N/A N/A N/A N/A N/A Page 249
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Annually Recurring Costs: Service Area Budget With Effect From Annual Net Impact Virement From (if applicable) Other Comments N/A N/A N/A N/A N/A N/A 5.5 Risk N/A 5.6 Staffing Proactive work on scams has been scaled back by Moray Council Trading Standards due to a post being cut in 2024. A call blocker will be supplied and fitted for a vulnerable consumer following a complaint or referral. 5.7 Best Value and Transformation N/A 5.8 Property N/A 5.9 Information Communications/Technology/Digital N/A 5.10 Equalities, Social Inclusion and Economic Impact N/A 5.11 Climate Change and Biodiversity Impacts N/A 6. CONSULTATION 6.1 This report has been prepared in consultation with the Depute Chief Executive (Economy, Environment and Finance), the Acting Head of Economic Growth and Development, Environmental Health and Trading Standards Manager, Legal Services Manager and Democratic Services Manager and any comments made have been incorporated into the report. 7. BACKGROUND PAPERS 7.1 N/A Page 250
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Since 2014 Moray Trading Standards have installed 38 call blockers to protect older and vulnerable people from nuisance and scam phone calls. So far 74,963 calls have been blocked, and we estimate that 121 scams have been prevented. 51 average nuisance and scam calls received per unit per month 52% of all calls received were nuisance or scam calls 99% of nuisance and scam calls were blocked by trueCall call blocking technology £1,155,016 benefits 85:1 Cost-Benefit analysis It is estimated that over the 4 year life of these units they will have blocked 90,780 nuisance calls (of which 24,866 will have been scam phone calls), prevented 147 scams, saved vulnerable households £433,094, led to a reduction of £402,285 in NHS, social care & police costs, and an increase in wellbeing & quality of life valued at £319,637 - total benefits of £1,155,016. The financial benefits of £835,379 are 85 times the project costs of £9,842. 08/01/2025 Page 251
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trueCall Credentials Introduction UK households are bombarded with up to 15 billion unwanted calls a year, with many households receiving more than 30 a week. Ofcom estimates that 40% of these calls are scam attempts. For many people these are just a nuisance or irritant, but they can have a big impact on the lives of older and vulnerable people causing anxiety, confusion and stress, and putting them at financial risk. The trueCall call blocker is a British designed device that sits between the phone socket and the phone. trueCall’s patented technology checks every call - calls from trusted callers are let straight through, calls from know nuisance callers are blocked, and all other callers are intercepted and checked before they are allowed to ring the phone. There are two main settings – one for vulnerable people that blocks 95%+ of unwanted calls, and one for those living with dementia which offers 100% protection. In a trial carried out by Trading Standards trueCall blocked 98% of nuisance calls while the next best product blocked just 32%. They concluded that call blocking technology allowed people to live independently for longer, reduced the risk of financial harm, reduced anxiety, confusion and stress for older people and their families, and helped older people to feel safe and more in control. trueCall was specifically designed to meet the needs of older and vulnerable people. It is easy to install and use, and there are no buttons to press or new procedures to learn or remember. The phone just rings less often, and when it does ring it’s nearly aways someone they want to talk to. trueCall is now available for mobile phones (see over). Working with the authorities Fraud now accounts for half of reported crime in the UK but it has only 1% of policing and enforcement resources allocated to combating it. Police have recognised the value of protecting the most vulnerable from these scams, and since 2014 police teams across the UK (England, Scotland, Wales and Northern Ireland) have installed almost 2,000 trueCall units. These are each getting on average 24 nuisance and scam calls per month, of which 99% are blocked. 685,000 nuisance and scam calls have already been blocked, and we estimate that over the 5 year life of these units they will have prevented 2,638 scams leading to benefits valued at over £22m - this is a payback of 40 times the cost of the project. trueCall provides the call blockers used by 36 police forces, six regional crime units (TITAN, TARIAN, WMROCU, SEROCU, SWROCU, EMSOU) and 9 Police and Community Safety Teams in Northern Ireland. trueCall is also supplying the call blockers for 27 MAAFs (Multi Agency Approach to Fraud) teams. In addition Age UK, 150 trading standards teams and the National Trading Standards Scams Team all run major trueCall projects which are funded by local authorities, Police and Crime Commissioners, Proceeds of crime funds, the Department of Culture Media and Sport, the Scottish Government, the Ministry of Justice in Northern Ireland and the National Lottery. trueCall units have been accredited by Secured By Design (the official police security initiative to promote products that can prevent crime), and trueCall is a Trading Standards Approved supplier via their Buy With Confidence scheme. Page 252
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Awards trueCall has won many awards. In 2009 trueCall won ‘Product of the Year’ in the Growing Business awards, and was successfully featured on the BBC’s Dragons Den programme. In 2017 was shortlisted for the 'Excellence in Fraud Prevention' category of the Government Counter Fraud Awards, and in 2022 trueCall won the ‘Outstanding New Product’ award at the Tackling Economic Crime Awards for its trueCall SIM product. trueCall data Uniquely, trueCall devices collect data about the nuisance calls received and blocked. This is held centrally on the trueCall database, and can be used in a number of ways: Management of the trueCall devices - trueCall users and their carers can review all the calls that were received, and see which ones were blocked and which ones were let through. If necessary they can then adjust their unit’s settings to optimise its performance. Data for cost justification - The data can be used by local authorities, police forces and charities to report back on the performance of the units that they have installed to cost-justify their projects. Data for investigations - 10,000 trueCall units contribute data to the trueCall database. There are 20 million households with a landline in the UK, so this means that we have comprehensive data about the nuisance calls received by one in every 2,000 homes. This data is used by enforcement teams to monitor trends, identify the top nuisance calling numbers, review regional differences, etc. This data has been used by many agencies including: National Trading Standards Scams Team Information Commissioners Office Ofcom National Fraud Intelligence Bureau Trading Standards Scotland NTSIT For more information about trueCall for landlines or mobile phones please contact Steve Smith – SteveSmith@trueCall.co.uk / 07768 637141 Page 253
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