Grounds for Review
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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REQUEST FOR REVIEW IN RESPECT OF THE REFUSAL OF AN APPLICATION FOR PLANNING PERMISSION FOR THE ERECTION OF DWELLINGHOUSE AND DETACHED DOUBLE GARAGE, INSTALLATION OF SEWAGE TREATMENT PLANT AND FORMATION OF VEHICULAR ACCESS, LAND SOUTH OF FERNBANK, RAHANE, ARGYLL AND BUTE (LPA REFERENCE 24/01389/PP) GROUNDS FOR REVIEW Submitted on behalf of Lisa Bradbury and Matt Aitchison
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Page | 1 Prepared by Michael Hyde MRTPI Planning Consultant REQUEST FOR REVIEW IN RESPECT OF THE REFUSAL OF AN APPLICATION FOR PLANNING PERMISSION FOR THE ERECTION OF DWELLINGHOUSE AND DETACHED DOUBLE GARAGE, INSTALLATION OF SEWAGE TREATMENT PLANT AND FORMATION OF VEHICULAR ACCESS, LAND SOUTH OF FERNBANK, RAHANE, ARGYLL AND BUTE (LPA REFERENCE 24/01389/PP) GROUNDS FOR REVIEW 1. Site Description: 1.1 The site that is the subject of this review lies to the south of a property called Fernbank and to the west of Roseneath Road (the B833). It is wholly within the settlement boundary of Rahane as defined by the recently adopted Local Development Plan 2 (see Figure 1 below). Rahane is classified as a Village/Minor Settlement Figure 1: Extract from Local Development Plan 2 1.2 The application site slopes from west to east, towards the Gareloch, and is primarily unimproved grassland. There are a number of mature trees on the site, along the roadside and on the southern boundary. 2. Proposed Development: 2.1 The development proposed is the erection of a single dwellinghouse and a detached double garage, the formation of a new access and the
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Page | 2 Prepared by Michael Hyde MRTPI Planning Consultant installation of a sewage treatment plant. 3. Reasons for Refusal: 3.1 The review application was refused on 2 April 2025 for the following single reason (Document 1): “The proposal is considered to be contrary to Policies 01, 35, 37 and 66 of the adopted LDP as the required minimum vehicular visibility splays of 75 x 2.4 x 1.05 metres in both directions for a 40 mph road are not achievable due to obstructions within the northern visibility splay. The land on which the obstructions occur is not within the control of the applicant and the applicant has been unable to secure an agreement to undertake changes in this splay, therefore, a safe vehicular access cannot be provided for the proposed development which is contrary to the aforementioned polices.” 4. Relevant Development Plan Policies: 4.1 Section 25 of the Town and County Planning (Scotland) Act 1997 states that “where in making any determination under the Planning Act regard is to be had to the Development Plan, the determination shall be in accordance with the plan unless material considerations indicate otherwise”. 4.2 The adopted Development Plan relevant to the current planning application comprises: • The National Planning Framework 4 (2023); and • The Argyll and Bute Local Development Plan 2 (2024) 4.3 Section 13 of the Planning (Scotland) Act 2019 is now in force. This alters Section 24 of the 1997 Act to state that in the event of ‘any incompatibility’ between a provision of the National Planning Framework (‘the NPF’) and a provision of a Local Development Plan (‘the LDP’), whichever of them is the later in date is to prevail. 4.4 The following four policies of the adopted Local Development Plan 2 are referred to in the reasons for refusal: Policy 01, which states that development will normally be acceptable where: • It is located within an area of land allocated for the proposed use in this Local Development Plan 2 and it complies with any
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Page | 3 Prepared by Michael Hyde MRTPI Planning Consultant development brief which has been approved by the Council; or • It is on a site which is the redevelopment of a brownfield site, or • Is on a non-brownfield site, and the proposal is considered acceptable in relation to the overall land supply for the proposed use, and • It is compatible with surrounding uses including but not exclusively; providing access, service areas, infrastructure for existing, proposed or potential future development, and • It is of an appropriate scale and fit for the size of settlement in which it is proposed; and • Respects the character and appearance of the surrounding townscape in terms of density, scale, massing, design, external finishes and access arrangements; and • It complies with all relevant Local Development Plan 2 policies. Policy 35 (Design of New and Existing, Public Roads and Private Access Regimes), which states that Street Design for all new developments must consider place before movement and take into account the principles regarding development setting, layout and design. Acceptance of development utilising new and existing public roads, private roads and private access regimes is subject to road safety and street design issues being addressed to the satisfaction of the Roads Authority and the Planning Authority. Developments shall be served by a public road (over which the public have right of access) and maintainable at public expense unless the case has been made for a private access or the further use of an existing private access or existing private road in accordance with the policies below. Policy 37 (Development Utilising an Existing Private Access or Existing Private Road), which states that further development that utilises an existing private access or existing private road will only be accepted where: a) The access is capable of commensurate improvements considered by the Roads Authority to be appropriate to the scale and nature of the proposed new development and that takes into account the current access issues (informed by an assessment of usage); AND the applicant can; b) Secure ownership of the private road or access to allow for commensurate improvements to be made to the satisfaction of the Planning Authority; OR, c) Demonstrate that an appropriate agreement has been concluded
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Page | 4 Prepared by Michael Hyde MRTPI Planning Consultant with the existing owner to allow for commensurate improvements to be made to the satisfaction of the Planning Authority. Policy 66 (New Residential development on non–allocated housing sites within Settlement Areas), which states that all proposals for new residential development within settlements must demonstrate that they meet the tests laid down in National Planning Framework 4 Policy 16 criterion f). New buildings, extensions and conversions will only be permitted where: a) The layout, density, plot ratio, scale, form and materials of any proposed development do not detract from the character of the surrounding buildings and the local area; b) It does not affect the privacy and amenity of existing and proposed properties; c) The site provides a suitable residential environment; d) It provides appropriate private and public open space and; e) An appropriate standard of access to and parking for vehicles associated with the development is provided, it does not result in the loss of any existing parking spaces, and that traffic generated as a result of the development is capable of being accommodated within the capacity of the existing road network surrounding the development; f) It is not detrimental to the overall housing land supply of the LDP2. 4.5 Policy 35 is not considered to be relevant on the basis that the proposed development, i.e. the new dwelling, will not be utilising an existing private access or an existing private road. 5. Grounds for Review: 5.1 The Scottish Government have stated that planning should take a positive approach to enabling high-quality development and making efficient use of land to deliver long-term benefits for the public while protecting and enhancing natural and cultural resources. 5.2 With respect to the submitted application for review, having regard to the provisions of the adopted Local Development Plan, and also the relevant material considerations, the following is the only planning issue that requires assessment. Will the grant of planning permission have an overall detrimental effect on highway safety? 5.3 With respect to the review application site, in August 2010, planning permission in principle for the “erection of 2 dwellinghouses with single
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Page | 5 Prepared by Michael Hyde MRTPI Planning Consultant garages and the installation of shared septic tank” was granted (LPA reference 10/00168/PPP). With respect to the access to the site, on the basis of advice received from the Council’s Roads Officer, the following planning condition was imposed: “Prior to construction work starting on site sightline visibility splays of 2.4 x 95 x 1.05 metres at the access driveways should be provided in both directions and be maintained in perpetuity. The gradient of the driveways over the first 5 metres should be no steeper than 5% (1 in 20) and thereafter should not exceed 12.5% (1 in 8). The first 5 metres to be surfaced in a bituminous material or similar approved material and graded to prevent the discharge of surface water onto the public road. Before the dwellinghouses are occupied the provision of a footway constructed to an adoptable standard should be provided along the full length of the frontage of the site to the satisfaction of the Local Authority.” 5.4 This condition could not have been complied with without the agreement of the multiple adjoining owners over whose land the required 2.4 x 95 metre visibility splays crossed. Nevertheless, the permission was granted. The applicants purchased the land on this basis, and did not foresee any reason why planning permission would not be able to be granted again. This was not however to be the case. 5.5 The single reason for refusal of the review application relates to the reduced length of the required visibility to the north that can be achieved over land that is either within the ownership of the applicant, or within the boundary of the public road. The Roads Officer states that the proposed access to the development does not achieve the minimum visibility splay requirements of 75m unimpeded, for the adjoining road speed of 40mph, and refusal was thus recommended (Document 2). 5.6 This recommendation does not however take into account in any way the significant highway safety benefits that would accrue should planning permission be granted. 5.7 Prior to the refusal of permission, the applicants produced, and submitted for the consideration of the Roads Officer, a document that detailed the reasoning and arguments for approving the visibility splays that are practically achievable on site, taking into consideration the small incursion into the northern visibility splay caused by a part of the neighbour’s boundary wall (Document 3). This notes that a significant overall
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Page | 6 Prepared by Michael Hyde MRTPI Planning Consultant improvement in highway safety and visibility, compared to the existing situation, could be achieved along this stretch of the B833 should planning permission be granted with a slightly reduced visibility splay to the north at the new access/egress. 5.8 The document fully assesses the highway safety risks and concludes that the minor incursion into the northern visibility splay is likely to have a minimal effect on risk/safety. Additionally, the visual incursion is potentially allowable according to the guidance contained in the Design Manual for Roads and Bridges (Vol.6 Section 1 Part 1 TD9/93 Point 2.7) that states: “... footbridge supports of width 550mm or under can be ignored. Similarly, the effect of short intermittent obstructions, such as bridge parapets of minor roads under, can be ignored.” 5.9 Alternatively, the visual incursion could be permitted as a minor departure from standard by considering the significant net improvement in safety afforded by the proposed development and not focussing solely on the one small area of non-compliance. 5.10 The benefits of approving the new access being proposed, which thoroughly outweigh the effect of the concession in both number and magnitude, include: • The access to Mambeg Farm to the south will gain near full visibility in both directions, where there currently is none • The access to Ach-Na-Cloich Cottage to the south will gain near full visibility to the north, where there currently is none • The access to the electricity sub-station to the south will also gain near full visibility to the north, where there currently is none • A lay-by will be provided enabling safer access for delivery vehicles and those attending the electricity sub station • The entire frontage (> 45 m) of the plot to the south of Fernbank will be cleared of visual obstructions • Pedestrian access to the plot to the south of Fernbank will be made safe; currently it is not 5.11 In addition to these benefits, it is also relevant to consider the planning history of Ach-Na-Cloich and Ach-Na-Cloich Lodge, which are both to the immediate south of Ach-Na-Cloich Cottage. 5.12 Planning permission was granted for the erection of what is now Ach-Na- Cloich Lodge in August 2011. This new dwelling shares an access with Ach-Na-Cloich and the approval was subject to the imposition of the following condition:
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Page | 7 Prepared by Michael Hyde MRTPI Planning Consultant “The proposed access shall have visibility splays of 75 x 2.4 x 1.05 metres in both directions formed from the centre line of the proposed joint vehicle access serving the existing dwellinghouse, Ach-na-Cloich, and the dwellinghouse hereby approved. Prior to work commencing on site further details showing the provision of a 2 metre wide footway along the full frontage of the application site and the existing property, Ach-na-Cloich, including access details and boundary treatment to the B833, shall be submitted for the written approval of the Planning Authority. Thereafter, the new footway should be provided to adoptable standard prior to occupation of the dwellinghouse hereby approved.” 5.13 The Council failed to ensure compliance with this condition and now cannot do so. Approval of the proposed new access will rectify this via the agreements already secured with the intervening neighbours. Full visibility of 75 m for both of these properties will consequently be achieved. 5.14 As noted in 5.10, there are two existing accesses to the south of the review application site that currently have 0 m visibility in one or both directions. The proposed development would upgrade these accesses and increase overall visibility from 25% to at least 84% of the standard requirement along the affected stretch of the B833 (Table 1). This vast improvement in visibility/road safety even accounts for the effect of the minor incursion. 5.15 There is no logical argument for refusing the proposed development on the grounds of road safety, given that road safety will be vastly improved. These improvements will otherwise not be made and cannot be enforced. Therefore, refusing the application is a deliberate choice of poorer overall road safety and puts all road users at higher risk than could be achieved. 5.16 The visual obstruction on which the refusal for planning was based also impedes the visibility for the existing access to Fernbank. Furthermore, any negative effect is much greater for Fernbank as the obstruction is closer to their access and affects visibility of oncoming traffic (i.e. significantly more frequent). Despite this, there have been no recorded incidents around this access over the last 25 years. It is therefore clear that reduced visibility caused by the visual obstruction is entirely inconsequential. 5.17 There are six existing accesses along the stretch of B833 either side of the proposed new access that all have 0 m visibility in one of both directions (Figure 2). However, there have been no recorded incidents around these accesses in the last 25 years. Standards are, by definition, one-size- fits-all generalisations that cannot account for every individual situation. In this case, the contention that 40 m visibility is theoretically unsafe
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Page | 8 Prepared by Michael Hyde MRTPI Planning Consultant (based on a standard) is completely disproven by 25 years of actual data. Figure 2: Existing accesses with 0 m visibility 5.18 Furthermore, 40 m unobstructed visibility is 11% more than the stopping distance of 36 m for vehicles travelling at 40 mph, providing an additional margin of safety. 5.19 This application for review is accompanied by a submission prepared by Stewart Paton Associates, Consulting Engineers and Forensic Investigation Specialists, which seeks directly to address the reason for refusal (Document 4). This notes that the applicant’s detailed submission (Document 3) is one of the most detailed reviews of visibility that the author, who is an experienced road safety practitioner, has seen in relation to a single dwelling direct access. It states further that the document is more than adequate in terms of describing the issues involved, the manner of traffic movements in this area and available distances for inter-visibility between the direct access and southbound traffic.
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Page | 9 Prepared by Michael Hyde MRTPI Planning Consultant 5.20 The submission concludes by saying that, whilst it is appreciated that Roads Authorities will seek to apply current design standards, the application of these should also take cognisance of a range of issues, as discussed above, when dealing with a section of road where there are historical road and junction layouts, and existing accesses that have zero or restricted visibility, all of which will be able to be improved. Precedent 5.21 Planning permission for the erection of a dwellinghouse, and the formation of a new vehicular access, on land south of High Oaks, Artaman Road, Rhu was granted in April 2020 subject to conditions (LPA reference 20/00267/PP). One of the conditions (Condition 7) imposed stated: “Notwithstanding the effect of Condition 1; In accordance with ‘Roads Guidance For Developers’ a sightline visibility splay of 2.4 x 42 x 1.05 metres at the new driveway access with Artarman Road shall be provided. Prior to work starting on site this visibility splay shall be cleared of all obstructions over one metre in height above the level of the adjoining carriageway and thereafter shall be maintained clear of all obstructions over one metre in height to the satisfaction of the Planning Authority.” 5.22 The reason for imposing this condition was in the interest of road safety and in accordance with the Councils 'Roads Guidance for Developers'. A subsequent application submitted for the variation of Condition 7 relative to planning permission reference 20/00267/PP, to reduce the conditioned visibility splay from 2.4 x 42 x 1.05m to 2.4 x 17 x 1.05m, was refused by Officers for the following reasons (LPA reference 21/01603/PP): “Policies LDP 11 and SG LDP TRAN 4; LDP 11 require that an appropriate standard of access is delivered to serve new developments. SG LDP TRAN 4 further notes that; Private Access shall be constructed to incorporate minimum standards to function safely and effectively as set out in the Council's Road Development Guide, in particular in relation to adequate visibility splays, access gradients, geometry, passing places, boundary definition, turning capacities, integrated provision for waste management and recycling. A new private access will only be accepted if the access is capable of achieving the minimum required visibility splays as considered by the Roads Authority to be appropriate - in this
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Page | 10 Prepared by Michael Hyde MRTPI Planning Consultant instance a minimum visibility splay of 2.4 x 25 x 1.05m is required due to the proposed access being in close proximity to the bend in Artarman Road. The minimum required visibility splay cannot be achieved as the provision of the required splays entails the need for controls to extend over third party land and consequently the necessary off- site measures cannot be secured by way of planning conditions. Therefore, a legal agreement is required to ensure the clearance and maintenance of the full extent of the required visibility splays in perpetuity. In the absence of a Section 75 Legal Agreement to secure the clearance and maintenance of visibility splays on third party land there would remain a road safety issue at this location arising from deficient visibility for drivers using the site access onto Artarman Road. Based on the above the proposal to reduce the visibility splay to 2.4 x 17 x 1.05m is contrary to the requirements of Policies LDP 11 and SG LDP TRAN 4 of the 'Argyll and Bute Local Development Plan'.” 5.23 The Council’s Local Review Body overturned this refusal and granted planning permission for the reduced visibility splays measuring 2.4 x 17 x 1.05m (a 60% reduction in the length of the visibility splay originally required). 5.24 In another similar situation planning permission for the erection of dwellinghouse on land at Rhu Lodge Ferry Road Rhu Helensburgh Argyll And Bute G84 8NF, was granted in November 2020 subject to conditions (LPA reference 20/01150/PP). Of the 9 conditions imposed 6 of these were recommended by the Roads Officer “in the interest of road safety and in accordance with the Councils 'Roads Guidance for Developers'”. 5.25 A subsequent application submitted for the variation of condition numbers 3, 4, 5 and 6 and removal of conditions 7 and 8 relative to planning permission 20/01150/PP (Erection of dwellinghouse) was approved, however subject to essentially the same 6 road safety related conditions, all of which the applicant considered to be both unnecessary and unreasonable. 5.26 An appeal against the imposition of these 6 conditions was submitted to the Scottish Ministers (DPEA reference PPA-130-2086). The appeal was successful. All 6 of the conditions recommend by the Roads Officer were removed from the planning permission. They were replaced with just 3 conditions, all of which were much more appropriate to the scale and nature of the proposed development.
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Page | 11 Prepared by Michael Hyde MRTPI Planning Consultant 5.27 In paragraph 16 of the Reporter’s decision (Document 5) letter it states: “In this case, despite the context described above, the road improvements sought by the council are a ‘standard’ response to the predicted effects of the proposed development, based on guidance set out in the National Roads Development Guide (2017) and the council’s Roads Guidance for Developers (small housing developments) (2008). There is no acknowledgement in the roads officer’s consultation responses, nor the report of handling, to the scope that exists within the guidance to reduce or seek improvements commensurate to the nature, scale and location of the proposed development.” 5.28 The appointed Reporter concluded by saying: “The appellant has demonstrated to my satisfaction that it is neither necessary nor reasonable to require Ferry Road to be improved to an adoptable standard given the location, nature and scale of the development proposed; it is a lightly-trafficked private road within a conservation area. There is no evidence to suggest that the council has undertaken an assessment of use to justify the package of improvement measures to Ferry Road that it seeks. In the absence of such, I consider the improvements proposed by the appellant are proportionate and would ensure that Ferry Road continues to function safely and effectively.” 5.29 With respect to the application under review there has similarly been a ‘standard’ response from the Roads Officer. There has been no acknowledgement of the ability to ‘relax’ the guidelines based on local conditions and the significant safety improvements that would be afforded by the development. As Kevin McMahon of Stewart Paton Associates (Document 4) states: “From what I have been provided with to date, I cannot see how the Council has fully assessed the situation under consideration, other than to simply apply the visibility splay they are seeking”. 5.30 Additionally, the ‘standard’ values have been quoted in the refusal, despite the Roads Officer having agreed to visibility splays of 2 x 1.05 x 75 metres on 5th December 2023, further demonstrating the cut-and-paste approach to this case.
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Page | 12 Prepared by Michael Hyde MRTPI Planning Consultant 6. Conclusions: 6.1 With respect to the current application, Officers have again taken an over-simplistic, standardised approach to the requirement for visibility splays at the entrance to the proposed house plot. In doing so they have therefore not taken any account of local circumstances or the proposed (and otherwise unachievable) road safety improvements. 6.2 The application was refused on the basis that a short section of wall protrudes into the proposed northern visibility splay by 0.2 m vertically (Photograph 1). The fact that this one small section of wall occludes visibility at the existing access to Fernbank to a much greater degree and yet there have been no recorded incidents in the last 25 years proves that it has no real-world effect on safety. Photo 1: Minor visual incursion into the proposed northern visibility splay 6.3 The proposed development would include vastly improving the existing
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Page | 13 Prepared by Michael Hyde MRTPI Planning Consultant access to Ach-Na-Cloich Cottage and the electricity sub-station (Photograph 2) and also the access to Mambeg Farm (Photograph 3). Minimum visibility would be increased from 0 m to at least 60 m and 55 m respectively. Photo 2: Ach-Na-Cloich Cottage Photo 3: Mambeg Farm visibility & sub-station visibility (North) (South) 6.4 Current visibility for the accesses on the stretch of road in question is 25% of the standard requirement. The proposed development would achieve 84% of the standard requirement (see Table 1 below). Visibility Splay Existing Proposed Ach-Na-Cloich Cottage & Sub Station - North 0 m 60 m Ach-Na-Cloich Cottage & Sub Station - South 75 m 75 m Mambeg Farm - North 0m 55 m Mambeg Farm - South 0 m 75 m New Access - North N/A 40 m New Access - South N/A 75 m Total 75 m 380 m Total required for number of accesses 300 m 450 m Percentage of ‘standard’ requirement 25% 84% Table 1: Existing and proposed visibility distances
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Page | 14 Prepared by Michael Hyde MRTPI Planning Consultant 6.5 Furthermore, this is based on completely unobstructed visibility, overestimating the negative effect of the minor visual obstruction (Photograph 1). In reality, the obstruction does not completely occlude visibility, thus 84% is likely an underestimate. 6.6 Refusal of the review application was based on the illogical conclusion that overall visibility (and by proxy, safety) should remain at 25% because 84% is not 100%. 6.7 Risk is non-linear as visibility approaches 0 m, therefore the risk posed by just one 0 m visibility splay is exponentially higher than that posed by the small incursion 40 m from the proposed new access. In other words, regarding safety, the elimination of three 0 m visibility splays vastly outweighs the effect of approving one 40 m visibility splay. 6.8 Quite simply, the cause of failing to meet the standard has been proven to have no negative effect on road safety and the proposed improvements would have a significant positive effect on road safety. 6.9 Approving the review application will therefore significantly improve overall road safety along this section of the B833.