Consider Notice of Review Request: Land South of Fernbank, Rahane (Ref: 25/0006/Lrb)
Argyll and Bute Council · 25 August 2025
Back to Argyll and Bute Local Review Body — 25 August 2025 and its agenda
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25/0006/LRB Response to Roads Comments 19th June 2025 Introduction & Summary This document contains responses to the representations received from the Argyll and Bute Roads Department in respect of the Local Review Board case 25/0006/LRB and planning application 24/01389/PP. This case is fundamentally simple. A small section of wall [Figure 1] protrudes slightly into one of the visibility splays for a proposed new access, preventing the visibility standard from being achieved. However, the real-world effect of this specific visual obstruction on road safety over the last 25 years has been shown to be negligible. In contrast, there are significant road safety improvements [3, 4 & Figure 1] to be gained from approving the proposed development. These improvements vastly outweigh the effect of failing to meet the standard and are unlikely to be implemented without the development. Frustratingly, the comments from Roads are thoroughly misleading. Crucial evidence has been deliberately concealed (see Point 5.14), unrelated accident data has been referenced (see Point 5.17) and Roads have acknowledged that they have not assessed a key aspect of the development (see Point 5.10). The applicants are deeply concerned that further misleading representation will be made at the LRB hearing. A common-sense and risk-based assessment of the proposed development, taking all aspects into consideration, clearly shows the potential visibility/safety benefit to all road users. The applicants would welcome a site inspection (preferably accompanied) to enable a clearer understanding of the context of the site and the merits of the potential improvements in comparison to the minor visual incursion 40 m from the proposed new access (see Figure 1 overleaf). In summary: • A short section of wall belonging to Fernbank protrudes into the proposed northern visibility splay by just 20 cm vertically at its highest point. As a consequence, visibility to the north of the proposed access would be slightly reduced. This specific section of wall and any vegetation has a much larger effect on visibility for the existing access to Fernbank, yet there have been no incidents at this site in over 25 years [1] despite the access serving a five bedroom house that has also previously been a B & B. This one simple piece of data refutes the theoretical risk implied by failing to meet a standard and demonstrates there is no negative real-world effect on road safety. • In contrast, to achieve the visibility splay standard to the south, the applicants have reached agreements with neighbours to upgrade two accesses that currently have 0 m visibility in one or both directions. Even one access with 0 m visibility is a serious safety concern; removing such an issue would be an obvious improvement in road safety. It is almost certain that these upgrades will not occur without the proposed development, thus by refusing planning permission these hazards will remain. The current overall visibility within the boundary of the proposed development is 25% of the standard requirement for two accesses [2]. The proposed development would achieve at least 84% of the required visibility for 3 accesses [2]. Roads are asserting that unless 100% can be achieved, visibility should stay at 25%. Page 1
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Figure 1 Responses to Roads’ Comments For brevity, only responses to Roads’ comments are given here. These are referenced by the original point number from the Grounds for Review document [3]. Where a response is specific to a particular paragraph in the comments from Roads, the paragraph number is given. Point 5.5 - Re: Roads Response: With regard to overtaking, on 19/10/2024 the applicants proposed a section 48 agreement to apply no-overtaking lines, hazard warning lines, signage or any other mitigations Roads could suggest. If no-overtaking lines were to be applied there could still be more than 400 m of straight road for overtaking to the south. Were any of the other suggested measures to be implemented, overtaking would remain unrestricted, but road users would be better informed of the risks posed by the various hidden accesses. However, Roads rejected no-overtaking lines outright and expressed their intent that overtaking be unimpeded; the other suggestions/mitigations were ignored. There are currently 6 blind accesses on the overtaking side of the road (travelling southbound) that could have been included in the proposed (fully The section of wall impinging on the northern visibility splay for the proposed new access. The visual splay (yellow shaded area) is shown at approximately 1.05 m height and the incursion into the splay is above the arrow. It should be noted this is not intended as an accurate scale drawing, but to illustrate the area of non- compliance. It should also be noted this is 40 m away from the proposed new access. Visibility at the access to Ach-Na-Cloich Cottage. In comparison, this is the view at one of the two accesses that will be upgraded from their current visibility of 0 m. This photo is taken at approximately 1 m from the road edge. Visibility would be even worse at 2.4 m (the distance specified by the standard). This access is also shared with the electricity sub- station. Page 2
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funded) safety improvements. This is a missed opportunity to address the very concerns raised by Roads that are also highly applicable to these existing accesses and to which the standard cannot be retrospectively applied. The applicants also question the assertion that this specific section of road (north of the proposed access) invites overtaking. Whilst relatively straight, it is narrow and enclosed. Furthermore, at 75 m from the new access an overtaking vehicle would have to be less than 1.4 m wide, less than 1.25 m tall and tight against the wrong side of the road to be completely hidden by the visual obstruction. Please note, at no point have the applicants ever made comparison to 'lighting columns' or 'telephone poles'. This appears to have been a deliberate attempt to discredit the applicants. The examples given in the DMRB of 'bridge supports up to 550 mm width' and 'bridge parapets' are of very similar 'horizontal' geometry and dimensions to the incursion into the visibility splay and an entirely reasonable and appropriate comparison. In this case a ‘short intermittent obstruction’ extends just 20 cm vertically at its highest point and only partially occludes the width of the visibility splay. Point 5.6 - Re: Roads Response: As an assessment of risk, this comment can only be justified if Roads are able to explain how 0 m visibility is not a significantly larger safety issue than 40 m visibility. It should be noted that real-world risk is non-linear, increasing exponentially as visibility approaches 0 m. As such, extending the visibility of just one access beyond 0 m represents a much larger decrease in risk than the small increase associated with a reduction of visibility from 75 m to 40 m. In this case there are two accesses with 0 m visibility (one of which is also shared) that will be vastly improved. To fully assess the risks/benefits of the proposed development, any measure that is applied to the incursion into the northern visibility splay must also be applied proportionately to the improvements being made in the southern visibility splay. For example, when considering overtaking vehicles, the 0 m visibility accesses clearly represent a considerably larger safety concern than the proposed new access with slightly reduced visibility. Additionally, the application is for a small 2 bedroom property. The ‘intensification' to which Roads refers is minor, especially in comparison to the neighbouring properties of Fernbank (a 5 bedroom house that has previously been used as a B & B) and Ach-Na-Cloich Cottage (a 4 bedroom house). Point 5.7 - Re: Roads Response: Paragraph 2 - Whilst Roads have indeed suggested this singular solution, the applicants have repeatedly explained why this is not possible and requested that alternative solutions be considered. It is disappointing that Roads insist on strict adherence to the standard, despite there being processes and guidance to enable departures from the standard. Point 5.8 - Re: Roads Response: The inclusion of this point was to demonstrate precedent for allowing visual incursions and not because the applicants believe they are building a bridge. The DMRB states that such visual incursions are not only allowed, but can even be ignored in some cases. It should be noted that this is applicable to trunk roads, where vehicle speed could be much higher. To be clear, the DMRB allows for visual obstructions much larger than that posed by Fernbank’s wall on roads with much higher speed limits. Ergo, a minor visual incursion on a slower road could certainly be tolerated. Point 5.9 - Re: Roads Response: Additionally to 5.8, the visual incursion could also be permitted as a minor departure from standard. Adequate evidence has been presented to enable such a departure. Page 3
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Point 5.10 - Re: Roads Response: Paragraph 1 - Mambeg Farm has a right of access in perpetuity and could therefore choose to start using this access at any time. Additionally, an access that serves a field would potentially be used by large and/or slow moving vehicles. Paragraph 2 - This is completely false. At the start of the application process, Roads requested that the applicants obtain a written agreement from the owners of Ach-Na-Cloich Cottage to lower their wall in order to achieve the visibility splay requirements (to the south of the new access). This agreement was forwarded to the Planning Team on 22/08/2024. It is obvious that this wall must also currently obstruct visibility for Ach-Na-Cloich Cottage [Figure 1]. Upgrading this access has always been integral to the formation of the southern visibility splay for the new access. The applicants and their agent have repeatedly drawn attention to this major safety consideration via email since 14/10/2024. This feature has been on all the scale drawings presented (where the wall has been highlighted within the southern visibility splay) and was fully described in Document 3 - Visibility Splay Analysis.pdf [4]. Roads had more than enough opportunity to request additional information, but did not do so. The applicants asked the planning team if more information or clarification was needed on multiple occasions, but received no response. It is disingenuous for Roads to now claim they need more information, given that they made no attempt to request such information prior to their assessment. Paragraph 6 - The 53% figure over-exaggerates the effect of the visual incursion by only considering distance and not height. As such, a 1 cm tall visual obstruction at a distance of 25 m would achieve just 33% of the standard. Whilst technically correct, it is clear that a 1 cm tall obstruction would not reduce visibility by 67%. Regardless, in this case, actual data [1] disproves the theoretical implied risk. It should be noted that the Roads officer is also employing false accounting with regard to the assessment of risk. By comparing each potential benefit individually against the effect of the reduced visibility, the positive effects are each counted just once, but the negative effect is counted multiple times. As an analogy, this is equivalent to having five oranges and one lemon. Comparing the one lemon to each of the five oranges individually implies there are as many lemons as oranges. This practice is repeated throughout Roads’ comments; it is deceptive and not how risk is calculated. Point 5.14 - Re: Roads Response: This is a grossly misleading comment. The Roads officer has deliberately omitted the access to Ach-Na-Cloich Cottage in order to make this false claim. Table 1 [2] (to which the officer refers) states ‘Ach-Na-Cloich Cottage & Sub Station - North’ and ‘Ach-Na-Cloich Cottage & Sub Station - South’. The Roads officer quotes ‘electrical substation’ and proceeds to claim that the access is largely unused. Whilst the electrical sub-station may be used infrequently, Ach-Na-Cloich Cottage is a 4 bedroom residential property. Additionally, the access is shared, therefore vehicles attending the sub-station would have to move in order to allow access to the cottage. Currently, this requires vehicles to reverse into or out of the access with 0 m visibility to the north onto the B833. The proposed development would eliminate this hazard and extend visibility from 0 m to over 60 m. Roads have simply deleted from existence the most significant safety issue of the proposed development. The final repeated comment is invalid given that Roads have acknowledged they did not assess all aspects of the proposed development and have simply erased evidence that contradicts their narrative. Page 4
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Point 5.16 - Re: Roads Response: This point does not relate to neighbouring applications; it is evidence that the specific issue upon which the entire refusal for planning is based has no actual negative effect in practice. Fernbank is a 5 bedroom house that has previously been used as a B & B. Therefore the volume of traffic using the access is likely to be significantly higher than that for the proposed 2 bedroom dwelling. Furthermore, during the periods that Fernbank was a B & B, there would have been a high proportion of drivers unfamiliar with the area using this access. That there have been no incidents in over 25 years completely refutes Roads’ claim that failure to meet the visibility standard has any real-world effect in this particular case. To be clear, in over 25 years there have been no incidents caused by this specific section of wall and vegetation, despite being substantially more visually obstructive to (and for) the existing access to Fernbank. Point 5.17 - Re: Roads Response: The original point is correct. Roads’ comments use unrelated data in order to obfuscate the relevant evidence. Point 5.17 clearly references a diagram (Figure 2) that shows the area being discussed and the six accesses being referred to. The one recorded incident that Roads cite was 50 m to the south, involved a single vehicle and was of ‘slight’ severity. It is therefore in no way attributable to any of the accesses being discussed. Whilst not relevant to point 5.17, this incident was acknowledged by the applicants in Document 3 - Visibility Splay Analysis.pdf [4]. In order to ‘find’ more incidents, Roads have extended the search area by over 6 km (3.7 miles). Point 5.17 very clearly refers to six specific accesses. It is entirely deceptive to imply that incidents as far away as Cylinder and Garelochhead are caused by either the small section of Fernbank’s wall that is slightly taller than 1.05 m or one of the six accesses with poor visibility referenced. Point 5.18 - Re: Roads Response: As Roads state, the visibility splay standard is based on ‘stopping sight distance’ (SSD). However SSD is designed to accommodate major junctions and can over estimate risk at small junctions and accesses. This disparity is evident when considering stopping distance as defined by the Highway Code; 36 m at 40 mph. Quite simply, there is adequate space for a vehicle travelling at 40 mph to stop safely given the inter-visibility available. Point 5.19 & 5.20 - Re: Roads Response: The applicants have over 30 years of professional experience in scientific/engineering data capture, statistical analysis and risk assessment for the defence aerospace and robotics industries. However, they are aware that they do not hold specific road safety qualifications and approached Stewart Paton Associates for independent expert advice regarding the information presented to the council and the potential for alternative solutions within the roads design framework. The applicants also suggested commissioning a Road Safety Audit (RSA). Stewart Paton Associates explained that an RSA would essentially repeat the information [4] already presented to the council. It is notable that they concurred with the risk assessment and conclusions provided by the applicants. It is unclear why the veracity of independent expert advice would be contingent on having liability for Argyll & Bute Roads Network. Page 5
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Point 5.21, 5.22 & 5.23 - Re: Roads Response: The Artaman Road and Ferry Road cases were presented as examples of rigidly applied standards being over- burdensome and preventing development. In this case, not only is development being stifled, but substantial road safety improvements are being prevented. Whilst it is acknowledged that the Artaman Road case is not exactly the same as the case in question, it is both analogous and relevant in numerous ways. The applicants were similarly unable to achieve the visibility standard due to a neighbours’ refusal to co-operate and they also tried to engage with Roads to explore alternative solutions. As with this case, Roads refused all suggested safety and traffic calming measures that would mitigate the effect of failing to meet the standard. Furthermore, the real-world effect of failing to meet the standard was similarly shown to be negligible, demonstrating that the difference between the proposed development and meeting the standard only existed on paper. A minor departure from standard was also suggested in The Artaman Road case and dismissed by Roads in favour of rigid adherence to standards. Planning permission was ultimately granted, allowing a 60% reduction in the length of the visibility splay originally required. Conclusion The applicants fully appreciate the reason for using standards as a basis for making decisions; however, whilst achieving a level of consistency, standards are ultimately a one-size-fits-all tool that can lead to perfection being the enemy of good. Designing Streets: A Policy Statement for Scotland states ‘Concerns around risk and liability frequently lead to the rigid application of standards that can stifle design-led, contextual approaches. Roads authorities have often applied a very cautious approach in order to avoid potential liability in the event of damage or injury. This over-cautious approach is ill- advised, and restricts innovation and responses to local context. Recent case law has established that drivers are primarily responsible for their own safety and although road authorities have a general duty under Section 39 of the Road Traffic Act 1988 to promote safety, this does not create a duty of care.’ In this particular case, very obvious road safety improvements are being prevented on the basis of a minor theoretical risk, whilst real-world data proves there is no practical consequence of failing to meet the standard. References & Links 1. https://www.crashmap.co.uk/Search - Search parameters: all types, all years selected, search area G84 0QP 2. Table 1 - 2025_05_20 - Grounds for Review.pdf | ePlanning Scotland Reference: 100712403-001 3. 2025_05_20 - Grounds for Review.pdf | ePlanning Scotland Reference: 100712403-001 4. Document 3 - Visibility Splay Analysis.pdf | ePlanning Scotland Reference: 100712403-001 Page 6