RESPONSE TO REQUEST FOR FURTHER INFORMATION Final
Argyll and Bute Council · 22 November 2024
Back to Argyll and Bute Local Review Body — 22 November 2024 and its agenda
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Classification: OFFICIAL RESPONSE TO REQUEST FOR FURTHER INFORMATION FOR ARGYLL AND BUTE COUNCIL LOCAL REVIEW BODY REFUSAL OF PLANNING PERMISSION FOR ERECTION OF SINGLE DWELLINGHOUSE AT LAND WEST OF MCAULAY BURN, GARELOCHHEAD PLANNING APPLICATION REFERENCE NUMBER 20/01822/PP LOCAL REVIEW BOARD REFERENCE NUMBER 24/0008/LRB 10th OCTOBER 2024
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Classification: OFFICIAL INFORMATION REQUIRED The following request has been made: • Information on the process for ensuring that the maintenance of any public realm enhancements forms part of an approval of this application and whether this can be done through a condition or the need for a Section 75 Agreement and the potential impact this may have on the LRB’s ability to approve this Planning Permission in Principle. • Draft conditions to be attached to the application should the Local Review Body determine that it is appropriate to approve the Notice of Review Request. Before responding to the above points, LRB should be aware of the matter relating to European Protected Species. European Protected Species The LRB should be made aware that a condition cannot be used to secure the European Protected Species Surveys that the Biodiversity Officer is advising are required due the potential for both bats and otters. The surveys must be submitted prior to the decision being made so that the assessment can be made against the statutory tests and any mitigation measures can then be attached as condition. This will ensure a decision is not made contrary to NPF4 Policy 4 (f) which requires that a proposal meets the statutory tests in relation to the protected species. The policy states that reasonable steps must be taken to establish the presence of the protected species and the potential impacts much be fully considered prior to determination of any application. The statutory tests are set out in LDP2 Policy 73: “Development proposals that would be likely to have an adverse effect on a European Protected Species will not be permitted unless it can be shown that: i) there is no satisfactory alternative; and ii) the development is required for preserving public health or public safety or for other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment; and iii) the development would not be detrimental to the maintenance of the population of the species at a favourable conservation status in its natural range.” It is therefore not competent to approve the application without the EPS surveys available. If the LRB are considering approving they cannot reach this decision without first asking for European Protected Species surveys for bats and otters to be undertaken and the statutory tests above being met so it can be concluded whether it can be approved. This requirement is set out clearly within the guidance from Scottish Government - European Protected Species - terms of guidance: Chief Planner letter - gov.scot (www.gov.scot). It is advised that the surveys would need to be completed in the form of a report and by a suitably qualified person. Further advice is below in relation to each of the surveys: • Bats - The first instance would probably be a walkover survey to check the trees for the potential of roosting bat features. This can be undertake at any time of year. If they deem there to be potential for bats (tends to be down to the judgement of the
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Classification: OFFICIAL ecologist) then it could either be an endoscope survey (only carried by under licence by NatureScot) to check for bats or an emergence / re-emergence survey (dawn/dusk) would be carried out between April to October. • Otter – a walkover survey to look for evidence of otter can be carried out at any time of the year. Therefore the LRB could request these initial surveys to be undertaken within a limited timeframe of their choosing. Process for ensuring maintenance of public realm It is recommended that a planning obligation (usually a Section 75 agreement, although it can be a unilateral obligation) is secured prior to the granting of permission rather than using a condition for ensuring maintenance of the public realm. This would need to be agreed and signed prior to issuing the decision. The revised Planning Circular 3/2012: planning obligations and good neighbour agreements provides guidance in this matter. Circular 3/2012 requires that planning obligations must meet all five tests in paragraph 14. It states under paragraph 15 that “Planning authorities should be clear that a planning obligation is only necessary where successors in title need to be bound by the required obligation.” In this instance the purpose of the planning obligation would be to maintain any public realm enhancements in the long term and for the successors in Title to be bound by this requirement. Therefore, this is the reason the recommendation is for a planning obligation rather than a condition which cannot secure maintenance in the longer term for successors of the land. It is also possible that the proposed house will be sold off separately to the open space so it makes it clear as to which section of land the maintenance is required for. In terms of the impact on the LRB’s ability to approve this Planning Permission in Principle the LRB could decide to approve subject to the conclusion of a Section 75 agreement (following the EPS surveys) and therefore defer the decision. We would suggest that if the LRB wished to secure the long term maintenance of the public realm then the conclusion of the LRB could be: The LRB defer determination for a period of up to 26 weeks to enable the relevant planning obligation (either an agreement with the planning authority or a unilateral obligation by the appellant under section 75 of the Town and Country Planning (Scotland) Act 1997 or some suitable alternative arrangement as may be agreed by the parties) to be completed and registered or recorded, as the case may be. If, by the end of the 26 week period, a copy of the relevant obligation with evidence of registration or recording has not been submitted to the LRB then the LRB will consider whether planning permission should be refused or granted without a planning obligation. The LRB must also set out the heads of terms for the planning obligation and this is provided below. Recommended Draft Heads of Terms Members have asked about the maintenance of the public realm works but this also in our view should extend generally to the maintenance of the site in terms of the woodland and amenity spaces. Therefore, we would recommend the following heads of terms to ensure the woodland, paths, memorial and any other works are retained, enhanced and maintained in perpetuity in the interest of amenity and to safeguard this Open Space Protection Area in the
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Classification: OFFICIAL long term. This is considered relevant and necessary in relation to the proposed development which is removing part of the Open Space Protection Area. We recommend the heads of term cover: o Prior to start of any commencement of works on site, a site management plan shall be submitted to, and approved in writing by, the planning authority for the application site including the woodland and open areas, memorial and proposed new footpaths. o The site management plan must include management of any Invasive Non-Native Species, in particular Japanese Knotweed and enhancement of any habitats/species as identified in ecological and tree surveys (to be undertaken) of the site. o Details of what shall be included in the site management plan including a detailed action plan and timings for works and long-term maintenance of the footpaths. o Details of how frequently this site management plan shall be reviewed and updated (timescales) in agreement with the planning authority. o Details of how this site management plan will be implemented and reviewed in perpetuity. Draft Conditions Draft conditions and reasons to attach to the permission in the event that Members of the LRB are minded to approve the application with a planning obligation. However, it should be noted that these conditions may require reviewed following submission of the European Protected Species surveys. 1. Standard Time Limit Condition This consent constitutes a Planning Permission in Principle under Section 59 of the Town and Country Planning (Scotland) Act 1997 as amended and as such does not authorise the commencement of development until matters requiring the further consent of the Planning Authority, as specified in Condition 1 (within the list of Additional Conditions below), have been satisfied. Application(s) for Approval of Matters Specified in Conditions must be made in accordance with the provisions of Regulation 12 of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013 within the time limits specified below. Any application for Approval of Matters Specified in Conditions must be submitted to the Planning Authority no later than three years from the date of this permission in principle. Any elements of the Planning Permission in Principle for which further approval of the Planning Authority has not been sought within the prescribed three year time period will no longer be capable of being implemented within the terms of this permission. The development to which this planning permission in principle relates must commence no later than five years from the date of this permission, or within the expiration of two years from the final approval of all Approval of Matters Specified in Conditions, whichever is the later. If the development has not commenced within this period, then this planning permission in principle shall lapse. Reason: To accord with Section 59 of the Town and Country Planning (Scotland) Act 1997 as amended.
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Classification: OFFICIAL 2. Standard Soil Condition Where the development involves ground breaking works, soil management should be undertaken in compliance with the established best practice set out in the DEFRA publication “Construction Code of Practice for the Sustainable Use of Soils on Construction Sites 2009”, unless an alternative methodology for sustainable management of soil is submitted to and approved in writing by the Planning Authority. Reason: In order to ensure that sustainable management of soils and compliance with the requirements of NPF4 Policy 5A. 3. PPP - Matters Requiring AMSC Submission Plans, survey and other particulars of the matters specified in conditions 8, 9, 11, 12 and 13 below shall be submitted by way of application(s) for Approval of Matters Specified in Conditions in accordance with the timescales and other limitations in Section 59 of the Town and Country Planning (Scotland) Act 1997 as amended. Thereafter the development shall be completed wholly in accordance with the approved details. Reason: To accord with Section 59 of the Town and Country Planning (Scotland) Act 1997 as amended. 4. PPP - Approved Details The development shall be implemented in accordance with the details specified on the application form dated 5th October 2020 and the approved drawings listed in the table below. Plan Title Plan Ref. No. Version Date Received Site location plan and indicative siting 2019_0057-03 D 13/01/2021 Reason: To accord with Regulation 28 of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008. 5. PPP – Flooding The proposed house hereby permitted shall be sited to the west of McAuley Burn on ground levels of greater than 5.19mAOD and a free board of 0.6m should be applied and finished floor levels shall be a minimum of 5.79mAOD. Reason: To ensure that the proposed house is not at risk of flooding. 6. PPP – Removal of Permitted Development Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (as amended), (or any Order revoking and re- enacting that Order(s) with or without modifications), nothing in Article 2(4) of or the Schedule to that Order, shall operate so as to permit, within the area subject of this permission, any development referred to in Part 1 and Classes 3A, 3AA, 3C, 3E and Part 2 and Class 7 of the aforementioned Schedule, as summarised below: PART 1: DEVELOPMENT WITHIN THE CURTILAGE OF A DWELLINGHOUSE
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Classification: OFFICIAL Class 3A: The provision within the curtilage of a dwellinghouse of a building for any purpose incidental to the enjoyment of that dwellinghouse or the alteration, maintenance or improvement of such a building. Class 3AA: The provision within the curtilage of a dwellinghouse of a building for any purpose incidental to the enjoyment of that dwellinghouse. Class 3C: The provision within the curtilage of a dwellinghouse of a hard surface for any purpose incidental to the enjoyment of that dwellinghouse or the replacement in whole or in part of such a surface. Class 3E: The erection, construction, maintenance, improvement or alteration of any gate, fence, wall or other means of enclosure any part of which would be within or would bound the curtilage of a dwellinghouse. PART 2: SUNDRY MINOR OPERATIONS Class 7: The erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure. No such development shall be carried out at any time within this Part and these Classes without the express grant of planning permission. Reason: To protect the sensitive area and the setting of the proposed dwellinghouse, in the interest of visual amenity and flooding, from unsympathetic siting and design of developments normally carried out without planning permission; these normally being permitted under Article 2(4) of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (as amended). 7. PPP - Timescale to be Agreed for Completion Pursuant to Condition 1 - no development shall commence until details of the proposed timescale for completion of the approved development have been submitted to and approved by the Planning Authority. Thereafter, the development shall be implemented in accordance with the duly approved timescale for completion unless an alternative timescale for completion is otherwise agreed in writing with the Planning Authority. Reason: In order to comply with the requirements of NPF4 Policy 16F. 8. PPP - Design and Finishes of the House Pursuant to Condition 1 - no development shall commence until plans and particulars of the site layout including final curtilage of the house, design and external finishes of the dwellinghouse has been submitted to and approved by the Planning Authority. These details shall incorporate: i. A statement addressing the Action Checklist for developing design contained within the Argyll and Bute Sustainable Design Guide 2006; ii. A statement addressing the biodiversity surveys and how they have been taken into account in terms of siting/design. iii. Details of finished ground floor level of the development relative to an identifiable fixed datum located outwith the application site, along with details of the existing and proposed site levels shown in the form of sectional drawings/contour plans/site level survey, or a combination of these. iv. Details of an area within the application site for the placement of refuse/recycling bins.
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Classification: OFFICIAL Reason: To accord with Section 59 of the Town and Country Planning (Scotland) Act 1997 as amended, and in order to integrate the proposed dwellinghouse with its surroundings. 9. PPP – Design and Finishes of Public realm works Pursuant to Condition 1 - no development shall commence until plans and particulars of the design and materials of the proposed public realm works has been submitted to and approved by the Planning Authority. These details shall incorporate: i. Details of the construction specification for the paths ii. Details of any benches and seating iii. Details of location and materials to be used in forming the area around the Memorial Reason: To accord with Section 59 of the Town and Country Planning (Scotland) Act 1997 as amended, and in order to integrate the public realm works with its surroundings. 10. PPP - Roads, Access and Parking Pursuant to Condition 1 - no development shall commence until plans and particulars of the means of vehicular access and parking/turning arrangements to serve the development have been submitted to and approved by the Planning Authority. Such details shall incorporate: i. Formation of the vehicular access at the junction with the B833 public road in accordance with the Council's Roads Standard Detail Drawing SD 08/005B with visibility splays measuring 2.4 metres to point X by 42 metres to point Y from the centre line of the junction; ii. The provision of parking and turning in accordance with the requirements of Policy 40 and the Car Parking Standards of the adopted 'Argyll and Bute Local Development Plan 2' 2024; iii. The provision of a bin storage area adjacent to the public road. Prior to work starting on site, the approved scheme of works in respect of junction layout shall be formed to at least base course standard and the visibility splays shall be cleared of all obstructions such that nothing shall disrupt visibility from a point 1.05 metres above the junction at point X to a point 0.6 metres above the public road carriageway at point Y. The final wearing surface on the access shall be completed prior to the development first being brought into use and the visibility splays shall be maintained clear of all obstructions thereafter. The approved parking and turning layout shall be implemented in full prior to the development first being occupied and shall thereafter be maintained clear of obstruction for the parking and manoeuvring of vehicles. Reason: In the interests of road safety. 11. PPP - Sustainable Drainage System Notwithstanding the effect of Condition 2, the development shall incorporate a surface water drainage system which is consistent with the principles of Sustainable urban Drainage Systems (SuDS) compliant with the guidance set out in CIRIA's SuDS Manual C753. The requisite surface water drainage shall be operational prior to the development being brought into use and shall be maintained as such thereafter.
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Classification: OFFICIAL Reason: To ensure the provision of an adequate surface water drainage system and to prevent flooding. Note to Applicant: Further advice on SuDS can be found in SEPA's Standing Advice for Small Scale Development - www.sepa.org.uk 12. PPP – Biodiversity surveys and protection plans Pursuant to Condition 1 –no development shall commence until the following surveys have been undertaken and submitted to and approved in writing by the planning authority. The surveys shall include details of the mitigation measures during construction (such as exclusion zones, tree protection fencing) and thereafter the development hereby approved should implement the mitigation measures and protection proposals unless otherwise agreed in writing with the planning authority. i. Species survey – birds, mammals, insects, reptiles, amphibians and fish ii. Tree/Woodland survey and protection plan – the location and condition of the trees especially those that are either on or close to the development site along with those that are in the public realm area need to be assessed for species condition and wildlife. The shrubs, grass areas and the species within the development site need to be included as part of the surveys along with advice on a Tree and Shrub Protection Plan. Reason: To ensure the habitat and species of the Open Space Protection Area are protected during construction of the house and public realm works and any important areas are avoided when locating the house and defining its curtilage in accordance with Policy 73 of the Local Development Plan. 13. PPP - Landscaping and Biodiversity Enhancement Pursuant to Condition 1 - no development shall commence until a scheme of boundary treatment, surface treatment and landscaping has been submitted to and approved by the Planning Authority. The scheme shall comprise a planting plan and schedule which shall include details of: i. Existing and proposed ground levels in relation to an identified fixed datum; ii. Existing landscaping features and vegetation to be retained; iii. Location design and materials of proposed walls, fences and gates; iv. Proposed soft and hard landscaping works including the location, species and size of every tree/shrub to be planted; v. A biodiversity statement demonstrating how the proposal will contribute to conservation/restoration/enhancement of biodiversity, and how these benefits will be maintained for the lifetime of the development; vi. A programme for the timing, method of implementation, completion and subsequent maintenance. All of the hard and soft landscaping works shall be carried out in accordance with the approved scheme unless otherwise approved in writing by the Planning Authority. Any trees/shrubs which within a period of five years from the completion of the approved landscaping scheme fail to become established, die, become seriously diseased, or are removed or damaged shall be replaced in the following planting season with equivalent numbers, sizes and species as those originally required to be planted unless otherwise approved in writing by the Planning Authority. All physical biodiversity enhancement measures (bird nesting boxes, 'swift bricks', wildlife ponds, bat and insect boxes, hedgehog homes etc.) shall be implemented in full before the
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Classification: OFFICIAL development hereby approved is first brought into use. All biodiversity enhancement measures consisting of new or enhanced planting shall be undertaken either in accordance with the approved scheme of implementation or within the next available planting season following the development first being brought into use. The biodiversity statement should refer to Developing with Nature guidance | NatureScot as appropriate. Reason: To assist with the integration of the proposal with its surroundings in the interests of amenity Draft Informatives In order to comply with Sections 27A(1) of the Town and Country Planning (Scotland) Act 1997, prior to works commencing on site it is the responsibility of the developer to complete and submit the following ‘Notice of Initiation of Development’ form to the Planning Authority specifying the date on which the development will start. Failure to comply with this requirement constitutes a breach of planning control under Section 123(1) of the Act. 4. In order to comply with Section 27B(1) of the Town and Country Planning (Scotland) Act 1997 it is the responsibility of the developer to submit the attached ‘Notice of Completion’ to the Planning Authority specifying the date upon which the development was completed