01737StatementofCaseAB200110
Argyll and Bute Council · 8 May 2024
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STATEMENT OF CASE FOR ARGYLL AND BUTE COUNCIL LOCAL REVIEW BODY 20/0001/LRB REFUSAL OF PLANNING PERMISSION FOR ERECTION OF DWELLINGHOUSE, OUTBUILDING AND INSTALLATION OF SEPTIC TANK LAND NORTH OF PENMORE MILL PENMORE DERVAIG ISLE OF MULL ARGYLL AND BUTE 20/01/20
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STATEMENT OF CASE The Planning Authority is Argyll and Bute Council (‘the Council’). The appellant is Mr and Mrs Phil and Rae Tiernan (“the appellant”). Planning permission 19/01737/PP for the erection of dwellinghouse at Land North of Penmore Mill, Penmore, Dervaig, Isle of Mull, Argyll and Bute (the appeal site”) was refused by the Planning Service under delegated powers on 19/11/19. The planning application has been appealed and is subject of referral to a Local Review Body. DESCRIPTION OF SITE The site is located within the countryside on a generally level piece of grazing land within a visually broken landscape setting with a number of trees along the boundaries. STATUTORY BASIS ON WHICH THE APPEAL SHOULD BE DECIDED Section 25 of the Town and Country Planning (Scotland) Act 1997 provides that where, in making any determination under the Planning Act, regard is to be had to the development plan, and all other material planning considerations and 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 site history is of sufficient material weight to outweigh the settlement strategy contained within the Local Development Plan (LDP). The Report of Handling (Appendix 1) sets out the Council’s full assessment of the application in terms of Development Plan policy and other material considerations. REQUIREMENT FOR ADDITIONAL INFORMATION AND A HEARING It is not considered that any additional information is required in light of the appellant’s submission. The issues raised were assessed in the Report of Handling which is contained in Appendix 1. As such it is considered that Members have all the information they need to determine the case. Given the above and that the proposal has no complex or challenging issues, and has not been the subject of any significant public representation, it is not considered that a Hearing is required. COMMENT ON APPELLANT’S SUBMISSION The following comments are made in relation to their submission.
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The appellants state that the planning history of an application site is a material consideration to be afforded significant weight when a planning application is being assessed and determined. In this instance they consider that the planning history of the review site, which consists of two previous approvals for the same development as is now being proposed, has been ignored by Officers. Comment: Whilst the appellant is correct that application site history is a material consideration, the weighting to be afforded to that history is determined on a number of factors, such as the development plan in force at the time of the decision, whether not any attempt was made to renew or implement the permission and the passage of time since and previous permission(s) expired. In this case, the planning authority does not consider that substantial weighting should be afforded to the site history for the reasons as detailed within the report of handling. The previous planning permissions appear to have been granted in error (discussed below), a different LDP is now in force, no attempt was made by the appellant to renew the detailed planning permission 10/01597/PP within its lifetime, nor is there any persuasive evidence that this permission was implemented. In addition, there has been a significant passage of time since that permission expired. The appellant also states that the site history has been ignored by officers, which is quite simply untrue, which is evident upon reading the report of handling. The appellants state that they were advised by planning officers to apply for outline planning permission on the current site, contrary to the policies within the LDP in force at that time. Planning applications were submitted under 08/00438/OUT which was granted on the 23rd June 2008 and 10/01597/PP which was granted on the 24th December 2010. The appellants advise that the original decision to grant planning permission by the Council must have been wrong as the site was never within a Rural Opportunity Area (ROA). The appellants assert that the 2010 permission was also granted on the basis that it was consistent with the adopted local plan in 2010 and therefore the site should now also be consistent with policy as the policy positon between the 2009 plan and the 2015 plan is essentially the same. Comment: At the time of granting planning permission 08/00438/OUT, planning policy was at a transitional period between the Mull, Coll and Tiree Local Plan 1st Review & Alteration & Monitoring Report (adopted 9th June 1988) and the Argyll and Bute Modified Finalised Draft Local Plan. It would appear that planning permission was granted in error as the site would not have been within the ROA and it would have been contrary to the Argyll and Bute Modified Finalised Draft Local Plan. The subsequent planning application 10/01597/PP would also appear to have been granted in error as the site was not with the ROA as per the Adopted Argyll and Bute Local Development Plan 2009. None of the officers involved in either of the previous planning approvals granted on this site remain employed by the Council. Both planning files have been carefully examined and no overriding explanation for these decisions can be found. Notwithstanding this, the planning authority are not persuaded that these decisions (which are approximately a decade old) should be afforded substantial material weight in the consideration of the current application. Officers are unable and unwilling to accede to the appellants’ request that they compound this presumed error by ‘knowingly’ ignoring the provisions of the adopted Local Development Plan. The appellants state that the access track for the proposed site was formed in June 2012. They submit a photograph which purports to illustrate this as well
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as the base for an adjacent shed. They assert that the development was therefore commenced under planning permission 10/01597/PP. Comment: The Planning Authority do not accept the validity of this claim. It is noted that exactly the same photograph was also submitted as part of the applicant’s submission for planning application 10/01597/PP (as evidenced below). This photograph was therefore taken before the 2010 planning permission was submitted and subsequently approved. The path referred to as ‘evidence’ that the 2010 planning permission was implemented was actually in situ before that planning application was even submitted. There is, therefore, no evidence of sufficient weight which has been presented to the planning authority which would demonstrate on the balance of probabilities that any development has taken place to implement that planning permission. A site visit carried out by the planning officer on the 30th September 2019 also failed to note any material evidence of development being carried out in relation to this site. The path as illustrated on the photographs is used to access separate fields and has now become overgrown. Please see the images below: A Copy of Drawing ‘2 of 9’ Approved As Part of Planning Permission 10/01597/PP It can be seen that the lower of the two photographs embedded into this drawing submitted in support of planning application 10/01597/PP is exactly the same as ‘Photograph 1’ submitted within Paragraph 5.11 of the appellant’s review statement and claiming to show works dating from June 2012. With respect, this claim is fanciful. A Copy of Drawing ‘3 of 9’ Approved As Part of Planning Permission 10/01597/PP
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Whilst difficult to read on an image of this size, the annotation to this drawing contained at its bottom, left hand corner reads, “Existing gravel track upgraded to comply with…etc”. This further demonstrates that the access track was in existence at the time of the submission of the 2010 application for planning permission and was not, therefore, constructed afterwards as claimed. Recent Photographs (Taken 30th September 2019) Showing the Undeveloped Nature of the Site and the Overgrown Trackway. Site Remnants of pre- 2010 track
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The appellants state that in September 2017, the applicant telephoned the Planning Office in order to discuss the possibility of amending the design of the previously approved dwelling. It is claimed that he was advised verbally that as a previous planning permission had been granted this “should not be a problem”. Comment: There is no detail of the context of this alleged conversation and no record of it having taken place. The appellants state that to dismiss two unambiguous Reports of Handling by saying that “the argument as to whether or not officers now long retired from the employment of Argyll and Bute Council correctly applied the appropriate assessment of the previous applications is considered to carry little material weight in respect of the assessment of this current planning application” is fundamentally unreasonable. Based upon the previous grants of planning permission for the erection of a dwellinghouse on the review site, under what is essentially the same policy context as is currently in force, the applicants had a justifiable expectation that a further grant of planning permission for the erection of a new dwelling on the site would be forthcoming. Comment: The planning authority has not dismissed the site history. It is not considered that the site history offers sufficient material weight to outweigh the adopted development plan. Simply, it appears that the two previous applications should not have been granted in the first place. The planning authority accepts that they were granted, however they have since expired. The appellants have made no attempt to satisfy the planning conditions attached to the previous permission, to implement it or renew it within the lifetime of the 2010 permission. There has been a significant passage of time since the previous permission expired on the 24th December 2013. Planning policy is fluid and ever-changing. It would have been incautious for the appellants to presume that a subsequent planning permission Remnants of pre 2010 track Site
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would be forthcoming, particularly as the appellant’s statement acknowledges that the two previous decisions appeared to be erroneous. The appellants state that Proposed Local Development Plan 2 (LDP2) has now been published and is currently being consulted upon. As such it is a material consideration, albeit with limited weight at this early stage of its progress towards adoption. LDP2 adopts a more flexible approach to sustainable development in non-environmentally protected countryside. Comment: Whilst the Proposed LDP2 is a material consideration, no significant weighting can be afforded to it as it may be subject to change following the consultation period and subsequent examination by Scottish Ministers. The decision must therefore rest on the adopted Argyll and Bute Local Development Plan 2015. The appellants state that it is strongly considered that the planning history of the site is a significant material consideration sufficient to indicate that the current application should have been able to have been approved as a minor departure from the provisions of Policy LDP DM 1 of the adopted Local Development Plan. This is essentially what happened in 2008, and again in 2010, given that the review site never has been with a Rural Opportunity Area. Comment: The planning authority does not consider that the site history is a material consideration of significant weight to outweigh the determination of the current planning application otherwise in accordance with the adopted local development plan. The appellants appear to be assuming that the two previous planning applications were approved as a minor departure however this is not stated in either of the planning officer reports and therefore cannot be confirmed. As previously stated, these applications appear to have been approved in error contrary to the development plan in force at the time. The appellants state that whilst possibly not relevant to the planning assessment to be made, the applicants are currently living in temporary accommodation along with their three young children, who attend the local primary and high schools. Mr Tiernan’s business is growing, and is in huge demand, and Mrs Tiernan is employed as an ‘additional support needs person’ and also as a school bus driver at a local primary school. All that they now want is for their planning permission to be granted again, so that they can complete the project that they began back in 2007. Comment: The appellants are correct, this has no material relevance to this local review. No exceptional case was presented to the planning authority under planning application 19/01737/PP. Whilst officers are sympathetic to the recent claimed housing needs of the appellants, it is not considered that this would represent an ‘exceptional case’ of sufficient weight to set aside the refusal of this planning application in this case. It is possible that ‘LDP 2’, once it can be afforded substantial material weight, might afford the appellants the opportunity to revisit their proposed development upon this site and for officers to consider it in a more positive light – officers have expressed that view to the appellants and are keen to find a sustainable ‘solution’. However, the current application (and subsequent review) is wholly premature to the provisions of LDP 2 at this stage.
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CONCLUSION Section 25 of the Town and Country Planning Act 1997 (as amended) requires that all decisions be made in accordance with the development plan unless material considerations indicate otherwise. The fundamental question which must be asked and answered is, is the site history of sufficient weight to justify departing from the settlement strategy contained within Policy LDP DM 1 of the adopted Argyll and Bute Local Development Plan 2015? It is the professional opinion of officers that it is not for the following reasons: Planning permission 10/01597/PP was granted in error and it expired approximately 6 years ago under the Argyll and Bute Local Development Plan 2009 which has now been superseded by the adopted Argyll and Bute Local Development Plan 2015. Planning permission 10/01597/PP was allowed to lapse unimplemented for a period of approximately six years. It was not renewed and neither was any attempt made by anyone to renew it. None of the planning conditions for 10/01599/PP have been discharged nor has any persuasive evidence been submitted which would demonstrate that a lawful commencement of development has taken place which would provide a stronger material consideration. Taking account of the above, it is respectfully requested that the application for review be dismissed.
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APPENDIX 1 – REPORT OF HANDLING Argyll and Bute Council Development & Infrastructure Services Delegated or Committee Planning Application Report and Report of Handling as required by Schedule 2 of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013 relative to applications for Planning Permission or Planning Permission in Principle Reference No: 19/01737/PP Planning Hierarchy: Local Applicant: Mr Phil and Mrs Rae Tiernan Proposal: Erection of dwellinghouse, outbuilding and installation of septic tank Site Address: Land North of Penmore Mill, Penmore, Dervaig, Isle of Mull, Argyll and Bute DECISION ROUTE Section 43 (A) of the Town and Country Planning (Scotland) Act 1997 (as amended) (A) THE APPLICATION (i) Development Requiring Express Planning Permission Erection of dwellinghouse Construction of vehicular access Installation of sewage treatment plant Installation of private water supply (ii) Other specified operations N/A (B) RECOMMENDATION: Having due regard to the Development Plan and all other material considerations, it is recommended that planning permission be refused for the reasons appended to this report. (C) CONSULTATIONS: Environmental Health No response at time of report and no request for an extension of time Area Roads No objection subject to conditions. Report dated 13th September 2019
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Scottish Natural Heritage No formal comments offered as the application falls below the threshold for consultation. E-mail dated 22nd August 2019 Woodlands Trust No objection following receipt of further information from applicant. E-mail dated 26th September 2019 (D) HISTORY: 08/00438/OUT Site for erection of dwellinghouse. Granted 23rd June 2008. 10/01597/PP Erection of dwellinghouse and shed. Granted 24th December 2010 (E) PUBLICITY: The proposal has been advertised in terms of Regulation 20 procedures, closing date 26th September 2019. (F) REPRESENTATIONS: No representations have been received during the determination of the planning application. (G) SUPPORTING INFORMATION Has the application been the subject of: (i) Environmental Statement: No (ii) An appropriate assessment under the Conservation (Natural Habitats) Regulations 1994: No (iii) A design or design/access statement: No (iv) A report on the impact of the proposed development eg. Retail impact, transport impact, noise impact, flood risk, drainage impact etc: No (H) PLANNING OBLIGATIONS Is a Section 75 agreement required: No
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(I) Has a Direction been issued by Scottish Ministers in terms of Regulation 30, 31 or 32: No (J) Section 25 of the Act; Development Plan and any other material considerations over and above those listed above which have been taken into account in the assessment of the application (i) List of all Development Plan Policy considerations taken into account in assessment of the application. Policy LDP STRAT 1 – Sustainable Development LDP DM 1 – Development within the Development Management Zones LDP 3 – Supporting the Protection Conservation and Enhancement of our Environment LDP 8 – Supporting the Strength of Our Communities LDP 9 – Development Setting, Layout and Design LDP 10 – Maximising our Resources and Reducing Our Consumption LDP 11 – Improving our Connectivity and Infrastructure Supplementary Guidance SG LDP ENV 1 - Development Impact on Habitats, Species and our Biodiversity SG LDP ENV 14 – Landscape SG LDP ENV 20 - Development Impact on Sites of Archaeological Importance SG LDP HOU 1 – General Housing Development including Affordable Housing Provision SG LDP SERV 1 – Private Sewage Treatment Plants and Wastewater (i.e. drainage) Systems SG LDP SERV 2 – Incorporation of Natural Features/Sustainable Drainage Systems (SuDS) SG LDP TRAN 4 – New & Existing Public Roads and Private Access Regimes SG LDP TRAN 6 – Vehicle Parking Provision Sustainable Siting & Design Principles (ii) List of all other material planning considerations taken into account in the assessment of the application, having due regard to Annex A of Circular 4/2009. Scottish Planning Policy 2014 PAN 72 – Housing in the Countryside Consultation responses (K) Is the proposal a Schedule 2 Development not requiring an Environmental Impact Assessment: No
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(L) Has the application been the subject of statutory pre-application consultation (PAC): No (M) Has a sustainability check list been submitted: No (N) Does the Council have an interest in the site: No (O) Requirement for a hearing: No (P) Assessment and summary of determining issues and material considerations Planning permission is sought for the erection of a dwellinghouse on Land North of Penmore Mill, Penmore, Dervaig, Isle of Mull. The site lies within the designated Countryside Zone wherein Policy LDP DM 1 of the adopted Argyll and Bute Local Development Plan (LDP) 2015 supports up to small scale sustainable forms of development on appropriate infill, rounding-off and redevelopment sites and changes of use of existing buildings. In exceptional cases development in the open countryside up to and including large scale may be supported on appropriate sites if this accords with an Area Capacity Evaluation (ACE). In this case the site is not infill, rounding-off, redevelopment or a change of use of an existing building and no exceptional case has been made. The proposal is therefore contrary to Policy LDP DM 1 of the LDP. Policy LDP 3 assesses applications for their impact on the natural, human and built environment with Policy LDP 9 seeking developers to produce and execute a high standard of appropriate design and to ensure that development is sited and positioned so as to pay regard to the context within which it is located. Policy LDP 8 supports new sustainable development proposals that seek to strengthen communities. Supplementary Guidance SG LDP HOU 1 gives general support to new housing provided there is no unacceptable environmental, servicing or access impact. Policy LDP 11 supports all development proposals that seek to maintain and improve internal and external connectivity by ensuring that suitable infrastructure is delivered to serve new developments. Supplementary Guidance SG LDP TRAN 4 and SG LDP TRAN 6 expand on this policy seeking to ensure that developments are served by a safe means of vehicular access and have an adequate on-site parking and turning area. There is some historic and long-expired planning history to this site and the applicant has submitted supporting information which requires further assessment. Planning permission has previously been granted for the erection of a dwellinghouse on this site. Planning permission 08/00438/OUT for the site for the erection of a dwellinghouse was granted on the 23rd June 2008. The planning officer’s report states that, in his assessment at that time, the site is within a Rural Opportunity Area “where it is considered that there is capacity to absorb
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single developments set in isolation, where these maintain the sporadic nature of the settlement pattern. The current scheme complies with the location requirements of the housing and environmental policies set out in the Modified Finalised Draft Local Plan.” The planning officer’s report therefore assesses that the development would be in compliance with both the adopted plan as well as the emerging draft plan at that time. This permission expired on the 23rd June 2011. A detailed planning permission 10/01597/PP was granted for the erection of a dwellinghouse and outbuilding on the 24th December 2010. The planning officer’s report states that, in his assessment at that time, the site is consistent with adopted local plan policy but it does not make any reference to which development management zone the site was located. At that time, it is evident that the site was not within a ROA and it would have been contrary to the settlement strategy contained within the adopted plan. However, it may well be that detailed planning permission was granted due to the extant outline planning permission 08/00438/OUT as a material planning consideration as the report states that “The site has the benefit of Outline Planning Permission (ref 08/00438/OUT) for the erection of a dwellinghouse which was granted on the 23rd of June 2010. Therefore the principle of development for a single house is established at the site.” (Note that the report incorrectly states that the outline planning permission was granted on the 23rd June 2010 when it was in actual fact the 23rd June 2008). Planning permission 10/01597/PP expired on the 24th December 2013. There is, therefore, a significant ambiguity over the assessment of these previous applications and whether or not planning policy was applied correctly at that time. Notwithstanding this, however, the argument as to whether or not officers now long retired from the employment of Argyll and Bute Council correctly applied the appropriate assessment of the previous applications is considered to carry little material weight in respect of the assessment of this current planning application. There has been a significant passage of time since planning permission 10/01597/PP was granted and a new LDP has been adopted. The applicant has not applied to renew the previous permission, which expired nearly six years ago, nor has any attempt been made by the applicant to discharge any of the planning conditions attached to that earlier permission. The applicant has advised that in 2012 they formed an access track from ‘rotten rock’ which they claim was dug from a borrow pit adjacent to the site. The applicant has also claimed that in July 2012 the base for a shed within the site was laid, again from ‘rotten rock’. Photographs have been submitted which purports to illustrate this. The applicants argue therefore, that a lawful commencement of works has taken place. However, the same photograph of the alleged access track was included with the planning application drawings for 10/01597/PP which was submitted on 17th September 2010 and granted on the 24th December 2010. The application location plan illustrates this track and is annotated as “gravel track” and the proposed site plan also illustrates it and is annotated as “existing gravel track upgraded as described, left”. Therefore, the claimed access track cannot have been implemented after the date of the 2010 planning permission. Similarly, whilst undated photographs have been submitted purporting to show the alleged works in connection with a ‘shed base’, there is very little evidence of any significant engineering or building works surviving on the site.
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There is therefore, in the considered opinion of the planning authority, no persuasive evidence that any material operation has taken place to implement the earlier planning permission as required by Section 27 of the Town and Country Planning (Scotland) Act 1997 (as amended). The applicant’s Agent also suggests that, in his opinion, the intended ‘Local Development Plan 2’ now represents the ‘settled view’ of the Council and weighting should be afforded to it in the decision making process. However, Proposed Local Development Plan 2 remains at an early stage. It has not yet been published and therefore no material weighting can be afforded to it at this time. Having regard to the adopted LDP, the proposed development is contrary to Policy LDP DM 1 and the planning authority are not persuaded that the arguments made by the applicant justify a departure from the adopted LDP in this case. To summarise: The development is contrary to Policy LDP DM 1 and SH LDP HOU 1 of the adopted and approved Local Development Plan. Planning permission 10/01597/PP expired almost 6 years ago and was based on a different local plan and therefore no significant weight should be afforded to this non-extant planning history. Planning permission 10/01597/PP was allowed to lapse unimplemented for a period of approximately six years. It was not renewed and neither was any attempt made by anyone to renew it. None of the planning conditions for 10/01599/PP have been discharged nor has any evidence been submitted which would demonstrate that a lawful commencement of development has taken place which would provide a stronger material consideration in the determination of the current planning application. In light of the above it is recommended that planning permission be refused. (Q) Is the proposal consistent with the Development Plan: No (R) Reasons why Planning Permission or Planning Permission in Principle should be refused: 1. The site lies within the designated Countryside Zone wherein Policy LDP DM 1 of the Adopted Argyll and Bute Local Development Plan (LDP) 2015 gives encouragement to appropriate infill, rounding-off and redevelopment and changes of use of existing buildings. In exceptional cases development in the open countryside up to and including large scale may be supported on appropriate sites it this accords with an Area Capacity Evaluation (ACE). In this case the site does not present any opportunities for infill, rounding-off, redevelopment or change of use of existing buildings and no detailed and/or acceptable exceptional case argument has been demonstrated. Additionally, Supplementary Guidance SG LDP
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HOU 1 states that there is a presumption against small-scale housing development in the open /undeveloped areas of the Countryside Zone. The principle of development is therefore contrary to the settlement strategy of the LDP and cannot be supported. There are no material considerations of sufficient weight which demonstrate that the proposal should be determined otherwise in accordance with the development plan. (S) Reasoned justification for a departure to the provisions of the Development Plan N/A – the proposal is recommended for refusal. (T) Need for notification to Scottish Ministers or Historic Scotland: No Author of Report: Andrew Barrie Date: 11th November 2019 Reviewing Officer: Tim Williams Date: 13th November 2019 Fergus Murray Head of Development and Economic Growth
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REASONS FOR REFUSAL RELATIVE TO APPLICATION REF. NO. 19/01737/PP 1. The site lies within the designated Countryside Zone wherein Policy LDP DM 1 of the Adopted Argyll and Bute Local Development Plan (LDP) 2015 gives encouragement to appropriate infill, rounding-off and redevelopment and changes of use of existing buildings. In exceptional cases development in the open countryside up to and including large scale may be supported on appropriate sites it this accords with an Area Capacity Evaluation (ACE). In this case the site does not present any opportunities for infill, rounding-off, redevelopment or change of use of existing buildings and no detailed and/or acceptable exceptional case argument has been demonstrated. Additionally, Supplementary Guidance SG LDP HOU 1 states that there is a presumption against small-scale housing development in the open /undeveloped areas of the Countryside Zone. The principle of development is therefore contrary to the settlement strategy of the LDP and cannot be supported. There are no material considerations of sufficient weight which demonstrate that the proposal should be determined otherwise in accordance with the development plan.
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APPENDIX TO DECISION REFUSAL NOTICE Appendix relative to application 19/01737/PP (A) Has the application required an obligation under Section 75 of the Town and Country Planning (Scotland) Act 1997 (as amended). No ______________________________________________________________________ (B) Has the application been the subject of any “non-material” amendment in terms of Section 32A of the Town and Country Planning (Scotland) Act 1997 (as amended) to the initial submitted plans during its processing. No ______________________________________________________________________ (C) The reason why planning permission has been refused. See reasons for refusal outlined above.
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CHECK SHEET FOR PREPARING AND ISSUING DECISION Application Number 19/01737/PP Decision Date 13.11.19 Date signed by ATL Issue Latest Date Decision Refuse Don’t Issue Decision Tick if relevant Action (tick) Date sent Notification to Scottish Ministers Notification to Historic Scotland Section 75 Agreement Revocation Issue Decision Tick Standard Conditions/Notes to include Tic k Dev/Decision Type Time Scale* Initiation Completion Display Notice Only use if PP/AMSC & Granted Local – Sch.3 – Delegated Local – Delegated *standard time condition not required if application retrospective. Include with Decision Notice Notify of Decision Notification of Initiation Form Roads Notification of Completion Form Ongoing Monitoring – priorities: Roads Schedule/standard drawing Customer Satisfaction Survey
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Pre-commencement conditions sheet Total residential units FP3 (uniform) Houses Sheltered Flats Affordable