2001822 review case statement KS 03.05.24
Argyll and Bute Council · 23 August 2024
Back to Argyll and Bute Local Review Body — 23 August 2024 and its agenda
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STATEMENT OF CASE 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 3rd MAY 2024
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STATEMENT OF CASE The planning authority is Argyll and Bute Council (‘the Council’). The appellants are Mr Lorne Thomson (‘the appellants’) and their agent is Mr Michael Hyde (‘the agent’). The planning application, reference number 20/01822/PP, for the erection of a dwellinghouse at land west of McAulay burn, Garelochhead (“the appeal site”) was refused under delegated powers on the 12th March 2024. The planning application has been appealed and is subject of referral to a Local Review Body. DESCRIPTION OF SITE The application site is located within the settlement of Garelochhead within an area of open space. The site is situated alongside the junction of the B872 and B833, to the south-west of a telephone exchange building, and opposite a ribbon of detached dwellings at the west side of the B833. The site is traversed by the McAulay Burn. The land slopes principally to the south and east towards the Gare Loch. SITE HISTORY The planning history of the site and locality is detailed in Section D of the Report of Handling and includes one previous application which was withdrawn. STATUTORY BASIS ON WHICH THE APPEAL SHOULD BE DECIDED Section 25 of the Town & Country Planning (Scotland) Act 1997 provides that where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise. This is the test for this application. STATEMENT OF CASE Argyll and Bute Council considers the determining issues in relation to the case are as follows:- - Whether the proposed location and siting is harmful to the character and amenity of the green space and identified open space and whether the public open space enhancements are sufficient to justify the proposal contrary to policy. - Whether the proposed location and siting of the proposed development have sufficient regard to the context of their setting. - Whether there is sufficient evidence with regard to the impacts on biodiversity. The Report of Handling (attached) sets out the Council’s assessment of the application in terms of Development Plan policy and other material considerations.
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REQUIREMENT FOR ADDITIONAL INFORMATION AND A HEARING It is considered that no new information has been raised in the appellants’ submission. The issues raised were covered in the Report of Handling which is contained in Appendix 1, including a summary of the representations submitted from 8 objectors. As such it is considered that Members have all the information they need to determine the case. Given the above and that the proposal is small-scale, has no complex or challenging issues and has not been the subject of significant body of conflicting representation, then it is considered that a Hearing is not required. COMMENT ON APPELLANTS’ SUBMISSION Having regard to the detailed reasons for requesting the review set out in part (7) of the appellants’ submission the following points are noted: 1. The appellant has set out an alternative case to the matters considered by officers in setting out Reason for Refusal no. 1 which considers the whether the proposal is harmful to the open space. The appellant’s agent argues that the application site would result in the loss of just 5.5% of the overall Open Space Protection Area. The agent argues that the original pre-application advice was that the public realm enhancements were significant in contrast with the assessment within the Report of Handling which states the benefits are modest. It is noted that officer’s assessment of this aspect of the proposal is set out within Section P of the main report of handling and is primarily addressed under the sub- section headed ‘Open Space Protection Area’. This sub-section highlights the relevant policy considerations and includes commentary on the relevance of other developments referenced by the appellant as these matters were also highlighted as supporting information to the planning application. The planning officer reports states “The loss of a significant part of the OSPA within this parcel would harm the amenity of the settlement, for residents and visitors.” Therefore, despite arguments made by the appellant that the amount of open space is small, the planning officer argues that it is a significant part of the OSPA. Members should note that the location of the open space within the wider context is vital in the assessment of whether the loss is acceptable, not just merely the area of the open space to be lost. Also, it should be noted that at pre-application stage there is not a full assessment of all matters and often there is no site visit, and guidance is given to an applicant and it has no bearing on the final decision made following a full assessment of all matters. It is agreed that it is not correct to say there would be no mechanism to secure the proposed public realm enhancements and a planning obligation, could secure the delivery of the enhancements. At no time did the planning officer say that this was not the case. In fact the report clearly states “enhancements of the remaining area would be welcome, subject to details, and maintenance provisions which in the context of planning permission would have to be secured by legal agreement” fully acknowledging that if we found the proposal acceptable then negotiation would take place to secure this legal agreement. Members are drawn to the point that, even if the enhancements were secured via a legal agreement, it is not considered that these enhancements would outweigh the effects of the fragmentation and reduction of the informal recreation space, contrary to policy.
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2. The appellant has set out their views on the potential impact on biodiversity. It is noted that officer’s assessment of this aspect of the proposal is set out within Section P of the main report of handling and is primarily addressed under the sub-sections headed ‘Natural Environment’. We would not dispute that planning conditions can be used to secure re-surveys or clarification on impacts in relation to species and trees on a site. Indeed the planning officer recognises that a condition could be used to secure additional planting and to secure ecological surveys. However, in relation to biodiversity, it should be noted that NPF4 and the newly adopted LDP2, give added protection to biodiversity given the biodiversity crisis, hence why the officer states that a precautionary approach is applied given there was insufficient information to assess the proposal against these new policies. Given the application was to be refused, then it was not considered appropriate to request the surveys prior to determination. 3. The appellant has set out their view in relation to potential impact on flood risk. It is noted that officer’s assessment of this aspect of the proposal is set out within Section P of the main report of handling and is primarily addressed under the sub-section headed ‘Flood Risk’ and there are no objections with regard to flood risk and this is not a reason for refusal. The appellant is merely drawing members attention to the Flood Risk Assessment which is listed within the Supporting Documents Section G of the report. CONCLUSION Section 25 of the Town and Country Planning Act 1997 requires that all decisions be made in accordance with the development plan unless material considerations indicate otherwise. At the time the decision was made, the ‘Development Plan’ for Argyll and Bute (excluding the area covered by the Loch Lomond and the Trossachs National Park Authority) was and still is the National Planning Framework 4 and LDP2 which require to be applied holistically with preference afforded to LDP2, as the most recent expression of policy, in the event of any conflict between the two policy documents. For the avoidance of doubt, it is also confirmed that the Argyll and Bute Local Development Plan 2015 and its associated Supplementary Guidance are now superseded and accordingly should not be afforded significant material weight in planning determinations. Summary Commentary on Key Material Considerations: Whether the development is harmful to this greenfield site designated as an Open Space Protection Area LDP2 Policy 81 states that development proposals resulting in the loss of Open Space Protection Areas will not be permitted except for circumstances in the list provided in the policy – in particular that there would be no loss of amenity value it provides through either partial, or complete development. NPF4 Policy 9 sets out that proposals on Greenfield sites will not be supported unless the site has been allocated for development or the proposal is explicitly supported by policies in the LDP.
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Whilst this site is within the settlement area for Garelochhead, the site is greenfield and part of an Open Space Protection Area. The site has been eroded by removal of trees and unauthorised dumping of material, but nevertheless, it serves to provide valuable amenity space to the village. The proposal results in a new loss and fragmentation of open space. The proposal is accordingly considered to be contrary to NPF4 policies 1, 9, 14, 16, 20 and 21 and LDP2 Policies 04, 05, 06, 26 and 81. Whether the development is appropriately sited in keeping with the local character of Garelochead. The site is located within the village of Garelochead identified as Settlement Area in the Argyll and Bute Local Development Plan 2 2024 (LDP2) wherein the provisions of Policy 01 serve to give encouragement in principle for development. Within the settlement zone, LDP2 Policy 01 sets out a general presumption in support of development provided that such development is appropriately sited, is of a scale and design which fits within the context of the locale, is compatible with the character and amenity of its surrounds and, does not give rise to adverse access or servicing implications. Whilst this site is within the settlement area for Garelochhead, which has some potential to accommodate a residential development, the officers have reached a view that the siting of the dwellinghouse proposed does not satisfactorily respect the character and appearance of the surrounding area. The character of the area is ribbon development along the west of the B833 with no development interrupting this side of the road. The site is in an isolated position on the eastern side of the road and would be starkly and incongruous with the established settlement pattern. It is at the top of the slope and cuts across the open space. The proposal is accordingly considered to be contrary to NPF4 Policy 14, and LDP2 Policies 01, 04, 05, 08 and 10. Whether the development protects and enhances the biodiversity of the local area. LDP2 policy 73 states that when considering proposals that full consideration needs to be given to species protected by the Wildlife and Conservation Act 1981, the Protection of Badgers Act and the Conservation Regulations 1994. NPF4 Policy 3 says that any potential adverse impact on biodiversity, nature networks and the natural environment will be minimised though careful planning and design and Policy 4 states a precautionary principle will be applied in accordance with relevant legislation and proposals likely to have an adverse effect on species will only be supported where the proposal meets the relevant statutory tests. In this instance, there is a lack of ecological information on the condition of the existing site and given it is an open space site with a nearby watercourse then a precautionary approach has been taken in this regard. The proposal is accordingly considered to be contrary to NPF4 Polices 3 and 4, and LDP2 Policies 06 and 73.
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Taking account of the above, it is respectfully requested that the request for a review be dismissed. Appended documents: Report of Handling