Agenda reports pack
Argyll and Bute Council · 8 May 2024
Back to Argyll and Bute Local Review Body — 8 May 2024 and its agenda
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Argyll and Bute Council Comhairle Earra-Ghàidheal Agus Bhòid Executive Director: Douglas Hendry Kilmory, Lochgilphead, PA31 8RT Tel: 01546 602127 Fax: 01546 604435 DX 599700 LOCHGILPHEAD 1 May 2024 NOTICE OF MEETING A meeting of the ARGYLL AND BUTE LOCAL REVIEW BODY will be held BY MICROSOFT TEAMS on WEDNESDAY, 8 MAY 2024 at 4:45 PM, which you are requested to attend. Douglas Hendry Executive Director BUSINESS 1. APOLOGIES FOR ABSENCE 2. DECLARATIONS OF INTEREST 3. CONSIDER NOTICE OF REVIEW REQUEST: LAND NORTH OF PENMORE MILL, PENMORE, DERVAIG, ISLE OF MULL (REF: 20/0001/LRB) (a) Notice of Review and Supporting Documentation (Pages 3 - 70) (b) Comments from Interested Parties (Pages 71 - 92) (c) Comments from Applicant (Pages 93 - 96) Argyll and Bute Local Review Body Councillor Audrey Forrest Councillor Kieron Green (Chair) Councillor Dougie Philand Contact: Fiona McCallum, Committee Services Officer Tel: 01546 604392 Public Document Pack
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REQUEST FOR REVIEW OF DECISION TO REFUSE PLANNING PERMISSION FOR THE ERECTION OF DWELLINGHOUSE, OUTBUILDING AND INSTALLATION OF SEPTIC TANK, LAND NORTH OF PENMORE MILL, PENMORE, DERVAIG, ISLE OF MULL (LPA REFERENCE 19/01737/PP) GROUNDS FOR REVIEW Submitted on behalf of Mr Phil and Mrs Rae Tiernan by Page 8
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Page | 1 Prepared by Michael Hyde MRTPI Planning Consultant REQUEST FOR REVIEW OF DECISION TO REFUSE PLANNING PERMISSION FOR THE ERECTION OF DWELLINGHOUSE, OUTBUILDING AND INSTALLATION OF SEPTIC TANK, LAND NORTH OF PENMORE MILL, PENMORE, DERVAIG, ISLE OF MULL (LPA REFERENCE 19/01737/PP) GROUNDS FOR REVIEW 1. Site Description: 1.1 The site the subject of this review is a generally level piece of grazing land within a visually broken landscape setting. The proposed new dwellinghouse will be set alongside the western boundary of the site. The land outwith the western boundary of the site is raised, with woodland areas, which will provide a suitable backdrop to the dwellinghouse and which will help it to integrate with its surroundings. 2 Relevant Planning History: 2.1 Outline planning permission for the erection of a dwellinghouse on the same site as the review application was approved in June 2008 (LPA reference 08/00438/OUT). A copy of the officer’s Report of Handling (Document 1) and the Decision Notice (Document 2) are submitted alongside this request for a review. 2.2 Following this, in December 2010, full planning permission for the erection of a dwellinghouse and shed, again on the same site as the review application, was approved (LPA reference 10/01597/PP). A copy of the officer’s Report of Handling (Document 3) and the Decision Notice (Document 4) are also submitted alongside this request for a review. 3. Relevant Development Plan Policies: 3.1 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” 3.2 The Development Plan relevant to the current planning application comprises the: x Argyll and Bute Local Development Plan (2017). 3.3 The following policy of the Local Development Plan is directly relevant to Page 9
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Page | 2 Prepared by Michael Hyde MRTPI Planning Consultant the determination of the current review: Policy LDP DM1, which states that encouragement shall be given to sustainable forms of development including, within the Countryside Zone up to small scale 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 ACE. There is a presumption against development that seeks to extend an existing settlement into the Countryside Zone. 4. The Review Applications: 4.1 The review application was submitted in August 2019. It was refused on 13 November 2019 for the following reason: “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.” 5. Grounds for Review: 5.1 As noted above, 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”. 5.2 The planning history of an application site is a material consideration to be Page 10
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Page | 3 Prepared by Michael Hyde MRTPI Planning Consultant afforded significant weight when a planning application is being assessed and determined. In this instance it is considered 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. This planning history of the site, which is summarised in Section 2 above, can be expanded upon as follows. 5.3 The applicants first obtained outline planning permission for the erection of a dwelling on the current application site in June 2008. Prior to applying for outline permission two meetings were held on site with Planning Officers. 5.4 In October 2007 a meeting was held with a now unknown Planning Officer, in order to discuss the erection of the proposed dwelling on the site known as ‘The Coidh’, i.e. the current application site. This site was however not favoured by the Planning Officer, on the basis that it was not within the soon to be adopted Rural Opportunity Area (ROA). The Planning Officer advised that the applicant’s look at alternative sites on the croft that were also within the proposed ROA. 5.5 In November 2007 a second meeting took place on the site, this time with the original Planning Officer and a Mr Ewen Stewart. Two potential sites within the ROA were looked at, but both of these were not considered to be suitable development sites. Mr Stewart (who had not been at the previous site visit) asked to see the original site, i.e. the current application site. On seeing this site, the applicants were advised that this was the most preferable site, and that they should apply for outline planning permission for the development of this (even though as noted above the site was not within the proposed ROA). 5.6 This is what they did, and their outline planning application was submitted in February 2008. The application was determined to be in accordance with the provisions of the former Mull, Coll and Tiree Local Plan, and the Report of Handling (Document 1) states “the site is within an extensive Rural Opportunity Area where it is considered that there is capacity to absorb 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”. 5.7 This is clearly wrong. The site never has been with the Rural Opportunity Area, as designated in the 2009 Argyll and Bute Local Plan (which replaced the former Mull, Coll and Tiree Local Plan). This can be seen from the extract below: Page 11
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Page | 4 Prepared by Michael Hyde MRTPI Planning Consultant Figure 1: Extract from 2009 Local Plan Proposals Map. 5.8 It is not understood how the Planning Officer (Mr Ewen Stewart) who wrote the Report of Handling in 2008 could have made such a fundamental mistake, but nevertheless planning permission in principle was granted. 5.9 In 2010, following the grant of outline planning permission, an application for full permission for the erection of a dwellinghouse and shed (as opposed to an application for the approval of reserved matters) was submitted. The Officer’s Report of Handing (Document 3) in this instance makes no mention of the ROA at all, however the Decision Notice (Document 4) states that “the development proposed is consistent with adopted Local Plan policy”. 5.10 This however cannot be correct because the site was not then (and never was) within the ROA, and the erection of the dwelling could not reasonably be considered to be infill, rounding off or redevelopment. The fact that there was than an extant outline planning permission could have been a material consideration, that could then have outweighed the policy conflict, but this was not the explicit basis upon which approval was recommended. If the application proposal was however consistent with adopted Local Plan policy in 2010, it will also be now, given that the policy context is essentially the same. 5.11 In November 2012 the building warrant approval for the erection of the Page 12
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Page | 5 Prepared by Michael Hyde MRTPI Planning Consultant approved dwelling was granted (LPA reference 12/00453/ERD). Some months prior to this works commenced on site. In June 2012 the access track was formed with rotten rock dug from a borrow pit adjacent to the site (see Photograph 1 below), and in July 2012 the base for the shed laid (also with rotten rock dug from same borrow pit). Photograph 1: Photo from Building Warrant submission showing the access track in place. 5.12 Finally, in September 2017, the applicant telephoned the Planning Office in order to discuss the possibility of amending the design of the previously approved dwelling. He was advised verbally that as a previous planning permission had been granted this “should not be a problem”. 5.13 The Officer’s Report of Handing with respect to the review application (Document 5) states with respect the planning history of the site that: “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.” 5.14 There no “ambiguity” whatsoever. In 2008 the Planning Officer wrote in his Report of Handling that the site was “within an extensive Rural Opportunity Area” when it wasn’t (and never had been). In 2009 a different Planning Officer did not mention the ROA in her Report of Handling, but nevertheless erroneously concluded that “the development proposed is Page 13
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Page | 6 Prepared by Michael Hyde MRTPI Planning Consultant consistent with adopted Local Plan policy”. 5.15 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. 5.16 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. 5.17 In addition to the above, the 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. These are defined as areas where suitably scaled new development, which in the opinion of the Council as Planning Authority is able to meet the sustainable development criteria outlined in Policy 02(A), will normally be permitted. 5.18 Policy 02(A) states that within the Countryside Areas there is a presumption in favour of sustainable development where this is of an appropriate scale, design, siting and use for its countryside location, as detailed in the relevant subject policies. All developments will require a Landscape and Visual Impact Assessment demonstrating to the satisfaction of the Planning Authority, that the proposal can be successfully integrated into its land scape setting unless they are: x Infill; or x Rounding off; or x Redevelopment opportunities of clusters; or x Previously developed sites. Development adjacent to, but outwith settlement boundaries which are delineated in the Proposals Maps will not constitute infill, rounding off or redevelopment. 5.17 Coupled with the weight to be attached to the planning history of the site, the Proposed LDP2 (which would offer support to the current Page 14
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Page | 7 Prepared by Michael Hyde MRTPI Planning Consultant proposal) should further be able to tip the ‘planning balance’ in favour of an approval of the review application. 6. Conclusions: 6.1 In conclusion it is strongly considered that the planning history of the site, as detailed above, 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 DM1 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. 6.2 It is furthermore important to remember that the review site, although it is not within the ROA, was one which was specifically promoted by the Council’s appointed Planning Officer in 2008. The site was his preference, and on this basis the original approval of outline panning permission was granted. 6.3 Finally, whilst possibly not relevent 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. 6.4 Once these Grounds for Review have been considered by the Local Review Body it is therefore hoped that a further final planning permission for the erection of the previously approved dwelling will be able to be granted, and that the applicants will at last be able to build and move into their new home. Page 15
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Argyll & Bute Council Development Services Delegated Planning Application Report Reference No: 08/00438/OUT Applicant: Rae Tiernan Proposal: Site for erection of dwellinghouse. Site Address: The Coidh Penmore Dervaig Isle Of Mull Argyll CONSULTATIONS: Area Manager Roads, Oban, Lorn And The Isles 21.04.2008 No objections subject to conditions. PUBLICITY: ADVERT TYPE: NONE REQUIRED. EXPIRY DATE: REPRESENTATIONS: NONE RECEIVED. ASSESSMENT: The site is within an extensive Rural Opportunity Area where it is considered that there is capacity to absorb 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 Adopted Mull, Coll and Tiree local plan has designated this part of the island as a local scenic area (Loch a' Chumhainn/Calgary Area). Proposals within this area require therefore to be considered against Policy RUR 2, which seeks to ensure that developments will not have an adverse environmental impact. As noted above the proposal reflects the sporadic nature of development in the area and will not be out of place within the visually broken landscape setting. The design of the building will of course be subject of further review Page 16
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through the submission of a further application to consider the orientation, form, scale and proportions of the new structure. Government guidance in the form of Planning Advice Note 72 (Housing in the countryside) also seeks to ensure that new developments reflect the established pattern of development within an area. The proposal satisfies this guidance in that a new building will not look awkward or out of place at the chosen location. RECOMMENDATION: Recommend that outline planning permission be granted subject to the standard conditions and the following additional conditions. Signature Caseload Officer: Dated: 17.06.2008 Ewen Stewart Area Team Leader Signature: Dated: 18.06.2008 . Page 17
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CONDITIONS AND REASONS RELATIVE TO APPLICATION 08/00438/OUT 1. This permission is granted under the provision of Article 4 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 on the basis of an outline application for planning permission and that the further approval of Argyll and Bute Council or of the Scottish Executive on appeal shall be required with respect to the undermentioned reserved matters before any development is commenced. a. The siting, design and external appearance of the proposed development. b. The landscaping of the site of the proposed development. c. Details of the access arrangements. d. Details of the proposed water supply and drainage arrangements. Reason: In order to limit the duration of this consent in accordance with section 59 of the Town and Country planning (Scotland) Act 1997. 2. In the case of the reserved matters specified in (1) above, an application for approval of the reserved matters in terms of Article 6 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 must be made to Argyll and Bute Council no later than the expiration of 3 years beginning with the date of this permission. Reason: In order to limit the duration of this consent in accordance with section 59 of the Town and Country planning (Scotland) Act 1997. 3. That the development to which this permission relates must be begun not later than the expiration of 5 years from the date of this permission or within the expiration of 2 years from the final approval of all reserved matters, whichever is the later. Reason: In order to limit the duration of this consent in accordance with section 59 of the Town and Country planning (Scotland) Act 1997. 4. No development shall commence on site until there has been submitted to and approved in writing by the planning authority full details of the proposed means of water supply to serve the development. Such details shall also include a report, prepared by a suitably qualified person, detailing the suitability, with regards to the quality and quantity of water available, of the proposed water supply to serve the dwellings hereby approved. The report shall also include, if necessary, any methods needed to improve the proposed supply. Thereafter, prior to the first occupation of the dwellings, the water supply shall be fully operational and constructed in. accordance with the approved details, unless otherwise agreed in writing with the planning authority Reason: Insufficient information has been submitted with regard to the proposed means of water supply within the application and therefore it is necessary for the above details to be submitted for the consideration of the planning authority in order to protect the amenities of other existing users of any proposed supply. 5. Prior to the commencement of development full details of all external lighting to serve the development shall be submitted for the further written approval of the Council as Page 18
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planning authority. The submitted details shall show the position of all proposed external lights and their illumination levels (provided in lux), together with appropriate mitigation measures to prevent light spillage and glare beyond the site boundary. Thereafter, the development shall be carried out in accordance with the agreed details and within six months of the development being completed or of the occupation of the dwellinghouse, unless otherwise approved in writing by the planning authority. Reason: The application site is in a rural area. Therefore in order to protect and enhance the visual character and integrity of the area, particularly during the hours of darkness, the submission of such details is necessary in order that the planning authority could consider such matters fully. 6. The proposed access shall be formed in accordance with the Council's Highway Drawing No. NA/32/05/2a and shall have visibility splays of 90 metres X 2.4 metres in each direction formed from the centre line of the proposed access. Prior to work starting on site these visibility splays 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. Reason: In the interests of road safety. 7. Prior to work starting on site, the access hereby permitted shall be formed in accordance with the Council's Highway Drawing No. NA/32/05/2a with the bellmouth area surfaced in dense bitumen macadam for a distance of 5 metres back from the existing carriageway edge and dropped kerbs formed to the satisfaction of the Planning Authority or as otherwise agreed in writing with the Planning Authority. Reason: In the interests of road safety. 8. The access shall be constructed to ensure that no surface water is discharged to the public highway to the satisfaction of the Planning Authority. Reason: To prevent surface water from being discharged onto the public highway in the interests of road safety. 9. Any details pursuant to condition (1) above shall incorporate the following elements:- i) finished in wet dash render or natural local stone. ii) with roof coverings of natural slate. iii) of no greater than one and a half storeys in height. iv) incorporating windows with a strong vertical emphasis. v) a roof pitch of not less than 37 degrees and not greater than 42 degrees. vi)which is predominantly rectangular in shape with traditional gable ends. vii) with the predominant ridgeline located parallel to the line of the public road. Reason: In the interests of visual amenity and in order to integrate the proposed dwelling house with its surroundings. NOTE TO APPLICANT Page 19
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NOTE TO APPLICANT RELATIVE TO APPLICATION Scottish Water has advised as follows: It is advisable that any septic tank or other suitable treatment system be sited in such a manner as to allow easy access for emptying by tanker. You are advised to contact them direct to discuss this matter Scottish Water Developer Services Clyde House 419 Balmore Road Glasgow G22 6NU Tel: 0845 601 8855 The Scottish Environment Protection Agency (SEPA) has advised as follows: The septic tank and soakaway will require to be designed and constructed in accordance with the current code of practice BS6297:1983 and the Building Standards (Scotland) Regulations 2005. This will require percolation testing on site to assess the suitability of the sub-soil for effluent disposal. Surface water should be excluded from the septic tank. The soakaway system should be constructed at least 50m from any spring, well or borehole used as a drinking water supply, at least 10m horizontally from any watercourses (including inland or coastal waters) permeable drain, road or railway and at least 5m from a building or a boundary. During the construction phase of the project, any muddy surface waters or discoloured groundwater generated on the construction site should not be admitted to any surface water drain or watercourse. All construction work must be in accordance with SEPA's Pollution Prevention Guideline PPG6 'Working at Construction and Demolition Sites'. A full land soakaway effluent disposal system to be investigated. It is a requirement of The Water Environment (Controlled Activities)(Scotland) Regulations 2005 that all discharges to land and water require authorisation from SEPA.(Registration or licensing) Additionally the site is to have surface water drainage in accordance with the requirements of the above Order - Sustainable Urban Drainage System. Further details can be obtained from SEPA's website;- www.sepa.org.uk/pdf fd/regimes/car_practical_guide.pdf You are advised to contact them direct to discuss this matter. SEPA Graesser House Fodderty Way Dingwall Business Park Dingwall IV15 9XB Tel: 01349 862021 Page 20
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SEPA Greyhope House Greyhope Road Torry Aberdeen AB11 9RD Tel: 01224 248 338 The Council's Area Roads Manager has advised as follows: Road openings permit required. You are advised to contact them direct to discuss this matter: Area Roads Engineer Operational Services Argyll and Bute Council Kilbowie House Gallanach Road Oban Tel: 01631 562125 Page 21
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TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997 TOWN AND COUNTRY PLANNING (GENERAL DEVELOPMENT PROCEDURE) (SCOTLAND) ORDER 1992 OUTLINE PLANNING PERMISSION REFERENCE NUMBER: 08/00438/OUT Rae Tiernan Penmore Mill Dervaig Isle Of Mull Argyll PA75 6QS I refer to your application dated 29th February 2008 for outline planning permission for the following development: Site for erection of dwellinghouse. AT: The Coidh Penmore Dervaig Isle Of Mull Argyll Argyll and Bute Council in exercise of their powers under the above mentioned Act and Order hereby grant outline planning permission for the above development in accordance with the particulars given in the application form and doquetted plans, subject however to the conditions and reasons on the following page(s). It should be understood that this permission does not carry with it any necessary consent or approval for the proposed development under other statutory enactments and is not a Building Warrant. Dated: 23 June 2008 Angus J. Gilmour Head of Planning Page 22
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REFERENCE NUMBER: 08/00438/OUT Site for erection of dwellinghouse. AT: The Coidh Penmore Dervaig Isle Of Mull Argyll The planning application as detailed above is subject to the following conditions: 1. This permission is granted under the provision of Article 4 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 on the basis of an outline application for planning permission and that the further approval of Argyll and Bute Council or of the Scottish Executive on appeal shall be required with respect to the undermentioned reserved matters before any development is commenced. a. The siting, design and external appearance of the proposed development. b. The landscaping of the site of the proposed development. c. Details of the access arrangements. d. Details of the proposed water supply and drainage arrangements. Reason: In order to limit the duration of this consent in accordance with section 59 of the Town and Country planning (Scotland) Act 1997. 2. In the case of the reserved matters specified in (1) above, an application for approval of the reserved matters in terms of Article 6 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 must be made to Argyll and Bute Council no later than the expiration of 3 years beginning with the date of this permission. Reason: In order to limit the duration of this consent in accordance with section 59 of the Town and Country planning (Scotland) Act 1997. 3. That the development to which this permission relates must be begun not later than the expiration of 5 years from the date of this permission or within the expiration of 2 years from the final approval of all reserved matters, whichever is the later. Reason: In order to limit the duration of this consent in accordance with section 59 of the Town and Country planning (Scotland) Act 1997. 4. No development shall commence on site until there has been submitted to and approved in writing by the planning authority full details of the proposed means of water supply to serve the development. Such details shall also include a report, prepared by a suitably qualified person, detailing the suitability, with regards to the quality and quantity of water available, of the proposed water supply to serve the dwellings hereby approved. The report shall also include, if necessary, any methods needed to improve the proposed supply. Thereafter, prior to the first occupation of the dwellings, the water supply shall be fully operational and constructed in. accordance with the approved details, unless otherwise agreed in writing with the planning authority Reason: Insufficient information has been submitted with regard to the proposed means of water supply within the application and therefore it is necessary for the above details to be submitted for the Page 23
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consideration of the planning authority in order to protect the amenities of other existing users of any proposed supply. 5. Prior to the commencement of development full details of all external lighting to serve the development shall be submitted for the further written approval of the Council as planning authority. The submitted details shall show the position of all proposed external lights and their illumination levels (provided in lux), together with appropriate mitigation measures to prevent light spillage and glare beyond the site boundary. Thereafter, the development shall be carried out in accordance with the agreed details and within six months of the development being completed or of the occupation of the dwellinghouse, unless otherwise approved in writing by the planning authority. Reason: The application site is in a rural area. Therefore in order to protect and enhance the visual character and integrity of the area, particularly during the hours of darkness, the submission of such details is necessary in order that the planning authority could consider such matters fully. 6. The proposed access shall be formed in accordance with the Council's Highway Drawing No. NA/32/05/2a and shall have visibility splays of 90 metres X 2.4 metres in each direction formed from the centre line of the proposed access. Prior to work starting on site these visibility splays 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. Reason: In the interests of road safety. 7. Prior to work starting on site, the access hereby permitted shall be formed in accordance with the Council's Highway Drawing No. NA/32/05/2a with the bellmouth area surfaced in dense bitumen macadam for a distance of 5 metres back from the existing carriageway edge and dropped kerbs formed to the satisfaction of the Planning Authority or as otherwise agreed in writing with the Planning Authority. Reason: In the interests of road safety. 8. The access shall be constructed to ensure that no surface water is discharged to the public highway to the satisfaction of the Planning Authority. Reason: To prevent surface water from being discharged onto the public highway in the interests of road safety. 9. Any details pursuant to condition (1) above shall incorporate the following elements:- i) finished in wet dash render or natural local stone. ii) with roof coverings of natural slate. iii) of no greater than one and a half storeys in height. iv) incorporating windows with a strong vertical emphasis. v) a roof pitch of not less than 37 degrees and not greater than 42 degrees. vi)which is predominantly rectangular in shape with traditional gable ends. vii) with the predominant ridgeline located parallel to the line of the public road. Reason: In the interests of visual amenity and in order to integrate the proposed dwelling house with its surroundings. NOTE TO APPLICANT Page 24
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NOTE TO APPLICANT RELATIVE TO APPLICATION Scottish Water has advised as follows: It is advisable that any septic tank or other suitable treatment system be sited in such a manner as to allow easy access for emptying by tanker. You are advised to contact them direct to discuss this matter Scottish Water Developer Services Clyde House 419 Balmore Road Glasgow G22 6NU Tel: 0845 601 8855 The Scottish Environment Protection Agency (SEPA) has advised as follows: The septic tank and soakaway will require to be designed and constructed in accordance with the current code of practice BS6297:1983 and the Building Standards (Scotland) Regulations 2005. This will require percolation testing on site to assess the suitability of the sub-soil for effluent disposal. Surface water should be excluded from the septic tank. The soakaway system should be constructed at least 50m from any spring, well or borehole used as a drinking water supply, at least 10m horizontally from any watercourses (including inland or coastal waters) permeable drain, road or railway and at least 5m from a building or a boundary. During the construction phase of the project, any muddy surface waters or discoloured groundwater generated on the construction site should not be admitted to any surface water drain or watercourse. All construction work must be in accordance with SEPA's Pollution Prevention Guideline PPG6 'Working at Construction and Demolition Sites'. A full land soakaway effluent disposal system to be investigated. It is a requirement of The Water Environment (Controlled Activities)(Scotland) Regulations 2005 that all discharges to land and water require authorisation from SEPA.(Registration or licensing) Additionally the site is to have surface water drainage in accordance with the requirements of the above Order - Sustainable Urban Drainage System. Further details can be obtained from SEPA's website;- www.sepa.org.uk/pdf fd/regimes/car_practical_guide.pdf You are advised to contact them direct to discuss this matter. SEPA Graesser House Fodderty Way Dingwall Business Park Dingwall IV15 9XB Tel: 01349 862021 SEPA Greyhope House Greyhope Road Page 25
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Torry Aberdeen AB11 9RD Tel: 01224 248 338 The Council's Area Roads Manager has advised as follows: Road openings permit required. You are advised to contact them direct to discuss this matter: Area Roads Engineer Operational Services Argyll and Bute Council Kilbowie House Gallanach Road Oban Tel: 01631 562125 Page 26
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Argyll and Bute Council Development 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 2008 relative to applications for Planning Permission or Planning Permission in Principle ____________________________________________________________________________ Reference No: 10/01597/PP Planning Hierarchy: Local Development Applicant: Phil and Rae Tiernan Proposal: Erection of dwellinghouse and shed Site Address: The Coidh, Penmore, Dervaig ____________________________________________________________________________ DECISION ROUTE (i) Sect 43 (A) of the Town and Country Planning (Scotland) Act 1997 ____________________________________________________________________________ (A) THE APPLICATION (i) Development Requiring Express Planning Permission • Erection of dwellinghouse • Erection of shed • Installation of septic tank • Proposed private water supply ____________________________________________________________________________ (B) RECOMMENDATION: Having due regard to the development plan and all other material considerations, it is recommended that planning permission be granted subject to the conditions and reasons appended to this report. ____________________________________________________________________________ (C) HISTORY: 08/00438/OUT – Site for the erection of dwellinghouse, granted 23.06.10 ____________________________________________________________________________ (D) CONSULTATIONS: Area Roads – No objections subject to conditions regarding the provision of SD08/004a at access at junction of public road, provision of adequate visibility splays, parking and turning, 25.11.10 Environmental Health – No objections subject to a condition regarding the provision of an adequate private water supply, 09.11.10 ____________________________________________________________________________ Page 27
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(E) PUBLICITY: The proposal was advertised under (Regulation 20 – Advert Local Application). The publication date was 11th November 2010 and the closing date was 2nd December 2010. ____________________________________________________________________________ (F) REPRESENTATIONS: None received ____________________________________________________________________________ (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: Yes (iv) A report on the impact of the proposed development e.g. retail impact, transport impact, noise impact, flood risk, drainage impact etc: No ____________________________________________________________________________ (H) PLANNING OBLIGATIONS (i) Is a Section 75 agreement required: Not required ____________________________________________________________________________ (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. Argyll and Bute Structure Plan 2002 STRAT DC 4 – Development in Rural Opportunity Areas The Argyll and Bute Local Plan 2009 LP ENV 1 – Development Impact on the General Environment LP ENV 19 – Development Setting, Layout and Design LP SERV 4 – Water Supply LP TRAN 4 – New and Existing, Public Roads and Private Access Regimes LP TRAN 6 – Vehicle Parking Provisions Page 28
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(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. Argyll & Bute Sustainable Design Guidance (2006) The Town & Country Planning Act (Scotland) 1997 The Planning etc. (Scotland) Act, 2006 Scottish Planning Policy (SPP), 2010 ____________________________________________________________________________ (K) Is the proposal a Schedule 2 Development not requiring an Environmental Impact Assessment: No ____________________________________________________________________ (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 (PAN 41 or other): Not required ____________________________________________________________________________ (P) Assessment and summary of determining issues and material considerations This is a proposal for the erection of a dwellinghouse and shed at a site at The Coidh, Penmore, Dervaig, Isle of Mull. 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. The site is a generally level piece of grazing land within a visually broken landscape setting. The proposed dwellinghouse will be set alongside the western boundary of the site. The land outwith the western boundary is raised with woodland areas, which will provide a suitable backdrop to the dwellinghouse to help it to integrate with its surroundings. The proposed dwellinghouse is 1½ storey and of a relatively contemporary design, albeit constructed with straw bale timber lined walls. The plan is rectangular and building lines are simple. The overall design follows an agricultural theme. The exterior walls will be finished in timber cladding of which the finished colour is not specified. A pre-commencement condition will therefore be applied in order to ensure that details of the proposed finish of the timber cladding is submitted for the written approval of the Planning Authority. The roof is to be clad in silver/grey Mill Finish Corrugated Metal Page 29
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Sheeting. It is considered that the choice of materials is appropriate to the overall agricultural design of the building at this specific location, and corrugated sheeting is a traditional material in our rural areas. A small shed finished in identical materials will be sited along the north eastern boundary of the site and will complement the proposed dwellinghouse. Overall it is considered that the proposed dwellinghouse and shed will have an appropriate layout and density and will be of a suitable scale, form and design at this location. The proposed dwellinghouse will therefore accord with the provisions of LP ENV 19 of the adopted Local Plan. A septic tank will be installed within the site to serve the proposed dwellinghouse. This raises no issues. The applicant has indicated that a private water supply will serve the proposed dwellinghouse. Legal and Protective Services have raised no objections to the proposed development subject to a condition being attached to the grant of permission in order to ensure that an adequate water supply is provided in accordance with Policy LP SERV 4 of the Local Plan. Area Roads have raised no objections to the proposed development. Area Roads have recommended that planning permission be granted subject to conditions with regards to the provision of SD 08/004a at the junction of the public road, the provision of adequate visibility splays and parking at the site in the interests of road safety and in accordance with Policy LP TRAN 4 and LP TRAN 6 of the Local Plan. In light of the above we can conclude that the development proposed is consistent with adopted Local Plan policy and will have no adverse impact in terms of layout, design, servicing and infrastructure. The proposed development therefore accords with Policy LP ENV 1 of the adopted Local Plan which sets out a general basis for consideration of all applications for planning permission. ________________________________________________________________ (Q) Is the proposal consistent with the Development Plan: Yes ____________________________________________________________________________ (R) Reasons why planning permission or a Planning Permission in Principle should be granted 1. It is considered that the proposed dwellinghouse will have an appropriate layout and density and will be of a suitable scale, form and design at this location. The proposed dwellinghouse will therefore accord with the provisions of LP ENV 19 of the adopted Local Plan. 2. Legal and Protective Services have raised no objections to the proposed development subject to a condition being attached to the grant of permission in order to ensure that an adequate water supply is provided in accordance with Policy LP SERV 4 of the Local Plan. 3. Area Roads have recommended that planning permission be granted subject to conditions with regards to the provision of SD 08/004a at the junction of the public road, the provision of adequate visibility splays and parking at the site in the interests of road safety and in accordance with Policy LP TRAN 4 and LP TRAN 6 of the Local Plan. 4. The development proposed is consistent with adopted Local Plan policy and will have no adverse impact in terms of layout, design, servicing and infrastructure. The proposed development therefore accords with Policy LP ENV 1 of the adopted Local Plan which sets out a general basis for consideration of all applications for planning permission. ____________________________________________________________________________ (S) Reasoned justification for a departure to the provisions of the Development Plan No Departure ____________________________________________________________________________ Page 30
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(T) Need for notification to Scottish Ministers or Historic Scotland: Not required ____________________________________________________________________________ Author of Report: Lesley Cuthbertson Date: 21.12.10 Reviewing Officer: Stephen Fair Date: 23/12/10 Angus Gilmour Head of Planning Page 31
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CONDITIONS AND REASONS RELATIVE TO APPLICATION REF. NO.10/01597/PP 1. That the development to which this permission relates must be begun within three years from the date of this permission. Reason: In accordance with Section 58 of the Town and Country Planning (Scotland) Act 1997. 2. The development shall be implemented in accordance with the details specified on the application form dated 20th of October 2010 and the approved drawing reference numbers: • Plan 1 of 9(Land Ownership Plan) • Plan 2 of 9(Location Plan) • Plan 3 of 9(Proposed Site Plan) • Plan 4 of 9(Road Plan) • Plan 5 of 9(Elevations) • Plan 6 of 9(Design Statement) • Plan 7 of 9(General Cross Section) • Plan 8 of 9(First Floor Plan) • Plan 9 of 9(Ground Floor Plan) unless the prior written approval of the Local Planning Authority is obtained for other materials/finishes/for an amendment to the approved details under Section 64 of the Town and Country Planning (Scotland) Act 1997. Reason: For the purpose of clarity, to ensure that the development is implemented in accordance with the approved details. 3. Prior to the commencement of works at the site, details of the colours of the proposed timber cladding wall finish to the dwelling house and shed hereby approved shall be submitted to and approved in writing by the Planning Authority. The development shall thereafter be completed in strict accordance with such details as are approved. Reason: To ensure that the materials are appropriate to the character of the area and sympathetic to established finishing materials in the area. 4. Prior to the development commencing a full appraisal to demonstrate the wholesomeness and sufficiency of the private water supply to serve the development shall be submitted to and approved in writing by the Planning Authority. This assessment shall be carried out by a qualified and competent person(s). Such appraisal shall include a risk assessment having regard to the requirements of Schedule 4 of the Private Water Supplies (Scotland) Regulations 2006 and shall on the basis of such risk assessment specify the means by which a wholesome and sufficient water supply shall be provided and thereafter maintained to the development. Such appraisal shall also demonstrate that the wholesomeness and sufficiency of any other supply in the vicinity of the development, or any other person utilising the same source or supply, shall not be compromised by the proposed development. Furthermore, the development itself shall not be brought into use or occupied until the required supply has been installed in accordance with the agreed specification. Reason: In the interests of public health and in order to ensure that an adequate private water supply in terms of both wholesomeness and sufficiency can be provided to meet the requirements of the proposed development and without compromising the interests of other users of the same or nearby private water supplies. 5. No development shall commence on site until the vehicular access at the junction of the public road has been formed in accordance with the Council’s Road Engineers Page 32
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Drawing Number SD 08/004a with visibility splays of 75.0m x 2.4m in each direction formed from the centre line of the proposed access. Prior to work starting on site these visibility splays shall be cleared of all obstructions above the level of the adjoining carriageway and thereafter maintained to the satisfaction of the Planning Authority. The vehicular access granted consent shall be constructed to at least base course level prior to any work starting on the erection of the dwellinghouse which it is intended to serve and the final wearing surface of the road shall be applied prior to the first occupation of the dwellinghouse. Reason: In the interests of road safety to ensure the proposed development is served by a safe means of vehicular access and in accordance with LP TRAN 4 of The Argyll and Bute Local Plan 2009. 6. The residential curtilage, over which permitted development rights conveyed through Classes 1 to 6 the Town & Country Planning (General Permitted Development) (Scotland) order 1992 as amended, shall be restricted to the area entirely contained on and outlined with a dashed purple line on Plan 3 of 9 (Proposed Site Plan) drawing number 0905 D 02. For the avoidance of doubt, no residential permitted development can occur within the extended application site shown outlined red unless first consented in writing by the Planning Authority. Reason: In the interests of visual amenity and to prevent overdevelopment of the wider rural area which could otherwise occur. NOTE TO APPLICANT • In order to comply with Section 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 attached ‘Notice of Initiation of Development’ to the Planning Authority specifying the date on which the development will start. • 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. • Operational Services (Roads and Amenity Services) have advised that a Roads Opening Permit will be required. Please find enclosed a Roads Opening Permit application form for your convenience. Page 33
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APPENDIX TO DECISION APPROVAL NOTICE Appendix relative to application (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 reasons why Planning Permission has been approved. 1. It is considered that the proposed dwellinghouse will have an appropriate layout and density and will be of a suitable scale, form and design at this location. The proposed dwellinghouse will therefore accord with the provisions of LP ENV 19 of the adopted Local Plan. 2. Legal and Protective Services have raised no objections to the proposed development subject to a condition being attached to the grant of permission in order to ensure that an adequate water supply is provided in accordance with Policy LP SERV 4 of the Local Plan. 3. Area Roads have recommended that planning permission be granted subject to conditions with regards to the provision of SD 08/004a at the junction of the public road, the provision of adequate visibility splays and parking at the site in the interests of road safety and in accordance with Policy LP TRAN 4 and LP TRAN 6 of the Local Plan. 4. The development proposed is consistent with adopted Local Plan policy and will have no adverse impact in terms of layout, design, servicing and infrastructure. The proposed development therefore accords with Policy LP ENV 1 of the adopted Local Plan which sets out a general basis for consideration of all applications for planning permission. Page 34
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CHECK SHEET FOR PREPARING AND ISSUING DECISION Application Number 10/01597/PP Decision Date 23/12/10 Date signed by ATL Issue Latest Date 24.12.10 Decision Approve Don’t Issue Decision Tick if relevant Action (tick) Date sent Notification to Scottish Ministers Notification to Historic Scotland Section 75 Obligation Revocation Issue Decision x Tick Standard Conditions/Notes to include Tick Dev/Decision Type Time Scale* Initiation Completion Display Notice 1A & 2A 1B & 2B Only use if PP/AMSC & Granted Local – Sch.3 – Delegated x Local – Delegated x x *standard time condition not required if application retrospective. Include with Decision Notice Notify of Decision Terms of Section 75 None Objectors/Contributors Summary of Variations made None Roads x Notification of Initiation Form x Notification of Completion Form x Notice for Display Roads Schedule/standard drawing x Archaeology Guidance Scottish Water Consultation response Ongoing Monitoring – priorities Other: Other: Total residential units FP3 (uniform) Houses 1 Sheltered 0 Flats 0 Affordable 0 Page 35
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TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997 (AS AMENDED) TOWN AND COUNTRY PLANNING (DEVELOPMENT MANAGEMENT PROCEDURE) (SCOTLAND) REGULATIONS 2008 PLANNING PERMISSION REFERENCE NUMBER: 10/01597/PP Phil And Rae Tiernan Locate Architects 19 Caledonian Place Dunblane FK15 9AF I refer to your application dated 17th September 2010 for planning permission in respect of the following development: Erection of dwellinghouse and shed AT: The Coidh Penmore Dervaig Isle Of Mull Argyll And Bute Argyll and Bute Council in exercise of their powers under the above mentioned Act and Regulations hereby grant planning permission for the above development in accordance with the particulars given in the application form and doquetted plans subject however to the conditions and reasons detailed on the following page(s). It should be understood that this permission does not carry with it any necessary consent or approval for the proposed development under other statutory enactments and is not a Building Warrant. Dated: 24 December 2010 Angus J. Gilmour Head of Planning and Regulatory Services Page 36
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REFERENCE NUMBER: 10/01597/PP Erection of dwellinghouse and shed AT: The Coidh Penmore Dervaig Isle Of Mull Argyll And Bute The planning application as detailed above is subject to the following conditions: 1. That the development to which this permission relates must be begun within three years from the date of this permission. Reason: In accordance with Section 58 of the Town and Country Planning (Scotland) Act 1997. 2. The development shall be implemented in accordance with the details specified on the application form dated 20th of October 2010 and the approved drawing reference numbers: • Plan 1 of 9(Land Ownership Plan) • Plan 2 of 9(Location Plan) • Plan 3 of 9(Proposed Site Plan) • Plan 4 of 9(Road Plan) • Plan 5 of 9(Elevations) • Plan 6 of 9(Design Statement) • Plan 7 of 9(General Cross Section) • Plan 8 of 9(First Floor Plan) • Plan 9 of 9(Ground Floor Plan) unless the prior written approval of the Local Planning Authority is obtained for other materials/finishes/for an amendment to the approved details under Section 64 of the Town and Country Planning (Scotland) Act 1997. Reason: For the purpose of clarity, to ensure that the development is implemented in accordance with the approved details. 3. Prior to the commencement of works at the site, details of the colours of the proposed timber cladding wall finish to the dwelling house and shed hereby approved shall be submitted to and approved in writing by the Planning Authority. The development shall thereafter be completed in strict accordance with such details as are approved. Reason: To ensure that the materials are appropriate to the character of the area and sympathetic to established finishing materials in the area. 4. Prior to the development commencing a full appraisal to demonstrate the wholesomeness and sufficiency of the private water supply to serve the development shall be submitted to and approved in writing by the Planning Authority. This assessment shall be carried out by a qualified and competent person(s). Such appraisal shall include a risk assessment having regard to the requirements of Schedule 4 of the Private Water Supplies (Scotland) Regulations 2006 and shall on the basis of such risk assessment specify the means by which a wholesome and sufficient water supply shall be provided and thereafter maintained to the Page 37
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development. Such appraisal shall also demonstrate that the wholesomeness and sufficiency of any other supply in the vicinity of the development, or any other person utilising the same source or supply, shall not be compromised by the proposed development. Furthermore, the development itself shall not be brought into use or occupied until the required supply has been installed in accordance with the agreed specification. Reason: In the interests of public health and in order to ensure that an adequate private water supply in terms of both wholesomeness and sufficiency can be provided to meet the requirements of the proposed development and without compromising the interests of other users of the same or nearby private water supplies. 5. No development shall commence on site until the vehicular access at the junction of the public road has been formed in accordance with the Council’s Road Engineers Drawing Number SD 08/004a with visibility splays of 75.0m x 2.4m in each direction formed from the centre line of the proposed access. Prior to work starting on site these visibility splays shall be cleared of all obstructions above the level of the adjoining carriageway and thereafter maintained to the satisfaction of the Planning Authority. The vehicular access granted consent shall be constructed to at least base course level prior to any work starting on the erection of the dwellinghouse which it is intended to serve and the final wearing surface of the road shall be applied prior to the first occupation of the dwellinghouse. Reason: In the interests of road safety to ensure the proposed development is served by a safe means of vehicular access and in accordance with LP TRAN 4 of The Argyll and Bute Local Plan 2009. 6. The residential curtilage, over which permitted development rights conveyed through Classes 1 to 6 the Town & Country Planning (General Permitted Development) (Scotland) order 1992 as amended, shall be restricted to the area entirely contained on and outlined with a dashed purple line on Plan 3 of 9 (Proposed Site Plan) drawing number 0905 D 02. For the avoidance of doubt, no residential permitted development can occur within the extended application site shown outlined red unless first consented in writing by the Planning Authority. Reason: In the interests of visual amenity and to prevent overdevelopment of the wider rural area which could otherwise occur. Page 38
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NOTES TO APPLICANT (1) RELATIVE TO APPLICATION NUMBER 10/01597/PP 1. If the applicant is aggrieved by the decision to refuse permission for or approval required by a condition in respect of the proposed development, or to grant permission or approval subject to conditions, the applicant may require the planning authority to review the case under Section 43A of the Town and Country Planning (Scotland) Act 1997 (as amended) within three months from the date of this notice. The notice of review should be addressed to the Director of Customer Services, Argyll and Bute Council, Kilmory, Lochgilphead, PA31 8RT. 2. If permission to develop land is refused or granted subject to conditions and the owner of the land claims that the land has become incapable of reasonably beneficial use in its existing state, and it cannot be rendered capable of reasonably beneficial use by the carrying out of any development which has been or would be permitted, the owner of the land may serve on the planning authority a purchase notice requiring the purchase of the landowner’s interest in the land, in accordance with Part 5 of the Town and Country Planning (Scotland) Act 1997 (as amended). NOTE TO APPLICANT • In order to comply with Section 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 attached ‘Notice of Initiation of Development’ to the Planning Authority specifying the date on which the development will start. • 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. • Operational Services (Roads and Amenity Services) have advised that a Roads Opening Permit will be required. Please find enclosed a Roads Opening Permit application form for your convenience. Page 39
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APPENDIX TO DECISION APPROVAL NOTICE Appendix relative to application (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 reasons why Planning Permission has been approved. 1. It is considered that the proposed dwellinghouse will have an appropriate layout and density and will be of a suitable scale, form and design at this location. The proposed dwellinghouse will therefore accord with the provisions of LP ENV 19 of the adopted Local Plan. 2. Legal and Protective Services have raised no objections to the proposed development subject to a condition being attached to the grant of permission in order to ensure that an adequate water supply is provided in accordance with Policy LP SERV 4 of the Local Plan. 3. Area Roads have recommended that planning permission be granted subject to conditions with regards to the provision of SD 08/004a at the junction of the public road, the provision of adequate visibility splays and parking at the site in the interests of road safety and in accordance with Policy LP TRAN 4 and LP TRAN 6 of the Local Plan. 4. The development proposed is consistent with adopted Local Plan policy and will have no adverse impact in terms of layout, design, servicing and infrastructure. The proposed development therefore accords with Policy LP ENV 1 of the adopted Local Plan which sets out a general basis for consideration of all applications for planning permission. Page 40
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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 Scottish Natural Heritage Page 41
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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 (I) Has a Direction been issued by Scottish Ministers in terms of Regulation 30, 31 or 32: No Page 42
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(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 (L) Has the application been the subject of statutory pre-application consultation (PAC): No (M) Has a sustainability check list been submitted: No Page 43
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(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 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.” Page 44
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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. 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). Page 45
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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 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. Page 46
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(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 Page 47
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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. Page 48
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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. Page 49
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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 Tick 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 Roads Schedule/standard drawing Customer Satisfaction Survey Ongoing Monitoring – priorities: Pre-commencement conditions sheet Total residential units FP3 (uniform) Houses Sheltered Flats Affordable Page 50
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Municipal Buildings Albany Street Oban PA34 4AW TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997 (AS AMENDED) TOWN AND COUNTRY PLANNING (DEVELOPMENT MANAGEMENT PROCEDURE) (SCOTLAND) REGULATIONS 2013 REFUSUAL OF PLANNING PERMISSION REFERENCE NUMBER: 19/01737/PP Mr Phil and Mrs Rae Tiernan Organic Architects 140 West Princes Street Helensburgh UK G84 8BH I refer to your application dated 16th August 2019 for planning permission in respect of the following development: Erection of dwellinghouse, outbuilding and installation of septic tank AT: Land North Of Penmore Mill Penmore Dervaig Isle Of Mull Argyll And Bute Argyll and Bute Council in exercise of their powers under the above mentioned Act and Regulations hereby refuse planning permission for the above development for the reasons(s) contained in the attached appendix. Dated: 13 November 2019 Fergus Murray Head of Development and Economic Growth Page 67
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REASONS FOR REFUSAL RELATIVE TO APPLICATION NUMBER: 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. Page 68
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NOTES TO APPLICANT (1) RELATIVE TO APPLICATION NUMBER 19/01737/PP 1. If the applicant is aggrieved by the decision to refuse permission for or approval required by a condition in respect of the proposed development, or to grant permission or approval subject to conditions, the applicant may require the planning authority to review the case under Section 43A of the Town and Country Planning (Scotland) Act 1997 (as amended) within three months from the date of this notice. A Notice of Review request must be submitted on an official form which can be obtained by contacting The Local Review Body, Committee Services, Argyll and Bute Council, Kilmory, Lochgilphead, PA31 8RT or by email to localreviewprocess@argyll-bute.gov.uk 2. If permission to develop land is refused or granted subject to conditions and the owner of the land claims that the land has become incapable of reasonably beneficial use in its existing state, and it cannot be rendered capable of reasonably beneficial use by the carrying out of any development which has been or would be permitted, the owner of the land may serve on the planning authority a purchase notice requiring the purchase of the landowner’s interest in the land, in accordance with Part 5 of the Town and Country Planning (Scotland) Act 1997 (as amended). Page 69
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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. Page 70
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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 Page 71 Agenda Item 3b
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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. Page 72
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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 Page 73
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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 Page 74
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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 Page 75
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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 Page 76
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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. Page 77
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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. Page 78
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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 Page 79
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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 Page 80
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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 Page 81
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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 Page 82
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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. Page 83
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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 Page 84
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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 Page 85
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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. Page 86
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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. Page 87
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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 Page 88
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Pre-commencement conditions sheet Total residential units FP3 (uniform) Houses Sheltered Flats Affordable Page 89
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MH Planning Associates 63 West Princes Street, Helensburgh, G84 8BN Tel: 01436 674777 Mob: 07816 907203 Web: www.mhplanning.co.uk Email: info@mhplanning.co.uk 6 February 2020 Fiona McCallum Committee Services Officer Legal & Regulatory Support Argyll and Bute Council Kilmory Lochgilphead Argyll PA31 8RT Ref MHP: 2019_0105 Dear Fiona NOTICE OF REVIEW REFERENCE 20/0001/LRB (PLANNING REF: 19/01737/PP - LAND NORTH OF PENMORE MILL, PENMORE, DERVAIG, ISLE OF MULL Further to your e-mail of 24 January 2020 in respect of the above I can respond as follows. In the first instance the fact that it has been fully acknowledged that two previous planning permissions to erect a dwelling on the review site were “granted in error” is welcomed. Officers have said in their response to the application for review: “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.” In order to seek to dismiss the importance of these two erroneous decisions officers have however then said that “none of the officers involved in either of the previous planning approvals granted on this site remain employed by the Council”. This is not true. Whilst the officer who dealt with application reference 08/00438/OUT (Ewen Stewart) is no longer employed by the Council, the officer who dealt with application reference 10/01597/PP (Lesley Cuthbertson) is still an employee of the Council. Page 93 Agenda Item 3c
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Page 2 of 3 Furthermore, these were not the decisions of individual officers, these were the decisions of Argyll and Bute Council, issued on behalf of the Council by the former Head of Planning and Regulatory Services, Mr Angus Gilmour. Planning permission reference 10/01597/PP was granted on 24 December 2010. Following this, in April 2012, and application for a Building Warrant was submitted. This was approved in November 2012 (LPA reference 12/00453/ERD). Some months prior to this preparatory works commenced on site. In June 2012 the access track was formed, and in July 2012 the base for the shed was laid. Unfortunately, in late 2012, the applicants had to return to New Zealand to care for Mr Tiernan’s mother. The development of the site at Penmore was therefore put ‘on hold’ until they were able to return to Scotland. Below is a summary of costs that have been invested in the site by the applicants following the original grant(s) of planning permission: Planning Application £469.00 Site Survey £768.00 Site Investigation Report £747.50 Architect Fees £10,000.00 Structural Engineering £3,230.88 Drainage Report £542.29 SAP Calculation Report £267.60 Building Warrant Application £650.00 approx TOTAL £16,675.27 All of this has been invested in the review site on the basis of what officers are now admitting were fundamental errors that were made by the Council in 2008, and again in 2010. Officers, in seeking to defend the recent refusal of planning permission, have merely said with respect to this: “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.” This is considered by the applicants to be both unacceptable and unreasonable. As has previously been explained, the review site, although this was never with within the Rural Opportunity Area, was one which was specifically promoted by the Council’s appointed planning officer in 2008. It now transpires that the officer in question promoted this site in error. On the basis of this acknowledged error the applicants have nevertheless spent over £16,000 in order to implement the planning permission that the Council had previously granted. Page 94
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Page 3 of 3 Whilst it is accepted that every planning application must be determined on its individual merits, having regard to the provisions of the development plan and other material considerations, it is also vitally important for the credibility of the planning process that decision makers are consistent in their approach. It is also a well- established legal principle that previous planning decisions are capable of being a significant material consideration, meaning that they need to be taken fully into account by those determining subsequent applications for planning permission (see attached document “The Importance of Consistency in Planning Decisions”). The reasoning behind this was explained by Mann LJ in the case of North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137 when he said: “One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system”. At present the applicants understandably have little confidence in the planning system. The fact that they have had to seek this review in respect of a site where planning permission for the erection of a dwelling has been granted twice, and a building warrant once, they find extremely difficult to understand, or to explain to other people in the local community. The application and review process have furthermore placed a huge amount of stress on Mr Tiernan’s personal relationships with his wife, family and friends. As set out above, the financial implications of now having been refused planning permission are also significant. How much weight should be attached to a relevent material planning consideration, such as the planning history of a site, is wholly within the gift of the decision maker, in this instance the members of the Council’s Local Review Body. It is therefore sincerely hoped that enough weigh will be able to be attached to the planning history of this particular site, given the acknowledgement of the errors that the Council made in 2008 and 2010, and that on this basis a that a further planning permission for the erection of a dwellinghouse, outbuilding and installation of septic tank on the site will be able to be approved. Yours sincerely Michael Hyde MRTPI MH Planning Associates Page 95
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