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Agenda Document Pack - Planning Committee - 10/01/2023

Midlothian Council · 10 January 2023
Back to Planning Committee — 10 January 2023 and its agenda

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Page 1

Notice of Meeting and Agenda 
Planning Committee 
Venue:  Council Chambers, 
Midlothian House, Dalkeith, EH22 1DN 
Date:  Tuesday, 10 January 2023 
Time:  13:00 
Executive Director : Place 
Contact:
Clerk Name: Democratic Services
Clerk Telephone: 
Clerk Email: democratic.services@midlothian.gov.uk 
Further Information: 
This is a meeting which is open to members of the public.  
Privacy notice: Please note that this meeting may be recorded. The
recording may be publicly available following the meeting. If you would
like to know how Midlothian Council collects, uses and shares your
personal information, please visit our website: www.midlothian.gov.uk 
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1          Welcome, Introductions and Apologies   
2          Order of Business 
Including notice of new business submitted as urgent for consideration at the
end of the meeting. 
3          Declaration of Interest 
Members should declare any financial and non-financial interests they have in
the items of business for consideration, identifying the relevant agenda item
and the nature of their interest. 
4          Minute of Previous Meeting
4.1 Minute of meeting of  22 November 2022 submitted for approval 3 - 12 
5          Public Reports
5.1 Pre-Application Report - Middleton Lower Quarry, Gorebridge
(22.00856.PAC)
13 - 18
5.2 Section 42 Application - Middleton Limeworks, Gorebridge
(22.00546.S42)
19 - 34
5.3 Section 42 Application - Land South West of Newtonloan Toll,
Gorebridge (22.00588.S42)
35 - 54 
6          Private Reports
6.1 Tree Preservation Order - Cousland
• 13. Information which, if disclosed to the public, would reveal that the
authority proposes—(a) to give under any enactment a notice under or by
virtue of which requirements are imposed on a person; or (b) to make an
order or direction under any enactment. 
7          Date of Next Meeting 
The next meeting will be held on Tuesday 28 February 2023 
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Minute of Meeting 
Planning Committee 
Date Time Venue
Tuesday 22 November 2022 1.00 pm Council Chambers   
Present: 
Councillor Imrie (Chair) Councillor Alexander
Councillor Bowen Councillor Cassidy
Councillor Drummond Councillor McCall
Councillor McKenzie Councillor McManus
Councillor Milligan Councillor Parry
Councillor Russell Councillor Scott
Councillor Smaill Councillor Virgo
Councillor Winchester 
In Attendance: 
Peter Arnsdorf Planning, Sustainable Growth and Investment Manager
Janet Ritchie Democratic Services Officer
Andrew Henderson Democratic Services Officer 
Planning Committee
Tuesday 10 January 2023
Item No: 4.1 
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1. Apologies
Apologies for absence were received from Councillor Curran, Councillor
McEwan and Councillor Pottinger 
2. Order of Business
The order of business was as set out in the Agenda.
3. Declarations of interest 
Councillor Scott declared an interest with regards to item 5.3 advising that she
had knowledge of the person and would take no part in the discussion also
declared an interest with regards to 5.4 that she had objected to a similar
application in 2017 therefore would take no part in this discussion and would
leave the meeting for both these items.. 
Councillor Smaill also declared an interest with regards to Item 5.3 as he knew
the Owner and would not take part in this discussion. 
Councillor McCall required clarification if she could take part in the Item 5.4
which had been continued from the last meeting as she had not been present
at that meeting.  It was confirmed that there was no reason she could not take
part as further information had been included and this Item was being
considered again today. 
4. Minutes of Previous Meetings 
The minute of the meeting of 11 October 2022 was submitted and approved as
a correct record subject to the following amendments: 
With regards to Item 5.3 Councillor Scott highlighted that Gorebridge
Community Council raised serious concerns that the Reporter’s decision
highlighted education infrastructure as a barrier to house building and that
education capacity constraints are presented as insurmountable constraint to
any further housing developments in Gorebridge. 
With regards to Item 5.4 Councillor Smaill highlighted with this report being
continued to the next meeting of the Planning Committee, the Developer would
have a right to Appeal to the Reporter on the grounds of non-determination. 
5. Reports 
Agenda No Report Title Submitted by:
5.1 Housing Land Audit 2022  Chief Officer Place
Outline of report and summary of discussion
The purpose of this report is to present the 2022 Housing Land Audit (HLA) and to
update the Committee on the state of the housing land supply in Midlothian.
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A copy of the 2022 HLA is attached as Appendix A. Its ‘Summary’ schedule
identifies a remaining established supply of 11,966 units as of 31 March 2022. This
is the sum of the remaining capacity of all sites known to Midlothian Council,
whether allocated through development plans or granted planning permission. Of
these, 11,276 units are effective and 690 are constrained. Further commentary on
the general status of the housing land supply is provided in the Audit’s ‘Housing
Supply Summary’ section and plans showing the sites is attached as Appendix B. 
The Planning, Sustainable Growth and Investment Manager in responding to
various questions regarding reviewing some of the sites allocated in older plans
confirmed that when the Council prepare the next local development plan the
Council will have the opportunity to re-allocate sites but highlighted this does not
apply to sites which have planning permission and also provided clarity on the sites
with planning permission and the time period for implementation.  He also
confirmed he would circulate a list of sites which did not have planning permission
to Elected Members.   
In response to further questions Officers provided clarity on technology and lighting
within developments and advised that within the constraints of legislations this will
be restrictive but will be addressed when preparing the next Local Development
Plan. 
During further discussion the Planning, Sustainable Growth and Investment
Manager and the Chair provided clarity with regards to site allocations and housing
targets, infrastructure and developer’s contributions and the factors considered
when building houses. 
Following a comment the Planning Sustainable Growth and Investment Manager
confirmed that for future reports he would ensure better clarity with regards to the
figures contained within the report.
Decision
The Planning Committee: 
a)  Noted the 2022 Housing Land Audit for Midlothian and agreed to its
publication; and
b)  Instructed the Planning, Sustainable Growth and Investment Manager to
provide a further update when NPF4 is adopted and new housing targets
are set for Midlothian. 
Action
The Planning, Sustainable Growth and Investment Manager 
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Agenda No Report Title Submitted by:
5.2 Non Compliance with Section 179 Notice at
Land 25m West of Lugton Brae  
Chief Officer Place
Outline of report and summary of discussion
This report relates to the non-compliance with the requirements of a notice served by
the Council under Section 179 (land adversely affecting amenity of a neighbourhood)
of the Town and Country Planning (Scotland) Act 1997 as amended, on land 25m
west of Lugton Brae (the former Lugton Inn site), Old Dalkeith Road, Dalkeith.  The
Section 179 (S179) notice required the owner of the land to remove waste and
debris and to remove, replace and reinstate both collapsed and damaged sections of
heras fencing at the site. The notice was served on 31 March 2022 and has not
been the subject of an appeal, nor has it been complied with. 
This report recommends that the Committee provides authorisation to take ‘Direct
Action’ to remedy the noncompliance with the S179 notice requirements. This is
namely; to engage contractors to clear the deposited waste and debris and to
reinstate the heras fencing and then charge the owner of the land the costs and
expenses for doing so. 
Councillors welcomed this paper and commented that this was a long standing issue
and following various questions the Planning, Sustainable Growth and Investment
Manager confirmed the next steps if the owner failed to comply with the S179 notice.
Decision
The Planning Committee: 
a) Noted the contents of this report; and
b) Instructed Council 0fficers to take Direct Action to remedy the outstanding
S179 notice requirements and recover the associated costs (an estimated
£3,000).
Action
The Planning, Sustainable Growth and Investment Manager 
Councillor Smaill having declared a non-pecuniary interest in the following
item of business left the meeting at 1.37 pm. 
Councillor Scott having declared a non-pecuniary interest in the following
two items of business left the meeting at 1.37 pm 
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Agenda No Report Title Submitted by:
5.3 Enforcement Notice Appeal Decision with regard
to the change of use of vacant land to Builders’
Yard North of 6 Ashbank, Gorebridge 
Chief Officer Place
Outline of report and summary of discussion
The purpose of this report was to advise the Committee of an enforcement notice
appeal decision with regard the change of use of vacant land to a builders’ yard (sui
generis); siting of shipping containers and associated engineering operations to
form a hardstanding at land north of 6 Ashbank, Gorebridge.   
A retrospective planning application for the change of use of vacant land to a
builders’ yard (sui generis) at land north of 6 Ashbank, Gorebridge was refused 
19 October 2021 and a subsequent notice of review was dismissed by the Local
Review Body (LRB) at its meeting of 21 March 2022.   
Despite the refusal of planning permission and the LRB decision to dismiss the
review the site operator (and owner) continued to operate and as such an
enforcement notice was issued 30 June 2022, with a take effect date of 31 July
2022 and a three month compliance period.  The site operator appealed the
enforcement notice - a Scottish Government Reporter appointed to determine the
appeal dismissed it and upheld the enforcement notice.  As a consequence of the
appeal the compliance period is extended to 7 January 2023 (three months after
the appeal decision).
Decision
The Planning Committee noted the enforcement notice appeal decision with regard
the change of use of vacant land to a builders’ yard (sui generis); siting of shipping
containers and associated engineering operations to form a hardstanding at land
north of 6 Ashbank, Gorebridge.
Action
The Planning, Sustainable Growth and Investment Manager 
Councillor Smaill re-joined the meeting at the conclusion of the above item 
Agenda No Report Title Submitted by:
5.4 Application for Planning Permission for the
erection of 96 dwellings and associated works
on land at Newbyres Site B, River Gorebridge 
Chief Officer Place
Outline of report and summary of discussion
The application was for the erection of 96 dwellings, the formation of access road,
car parking, sustainable urban drainage system (SUDS), landscaping and
associated works on land at Newbyres Site B, River Gore Road, Gorebridge. 
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There had been 71 representations (69 objections and two in support) and
consultation responses from the Coal Authority, the Scottish Environment
Protection Agency (SEPA), Scottish Water, Network Rail, the Council’s
Archaeological Advisor, the Council’s Ecological Advisor (TWIC), the Council’s
Policy and Road Safety Manager, the Council’s Flooding Officer, the Council’s
Education Resource Manager, the Council’s Land Resources Manager and the
Council’s Senior Manager Protective Services. 
At its meeting of 11 October 2022 the Committee deferred consideration of the
application to enable additional clarity to be provided on education matters –
additional information is provided in the Education comments set out in paragraphs
5.9 – 5.12 of the report. In response to the deferral the applicant has provided a
benefits statement reaffirming their commitment to the site and highlighting the
employment opportunities the site offers locally, a copy of the statement is set out
in paragraph 3.6 of the report. 
The Planning, Sustainable Growth and Investment Manager’s in presenting this
report advised that following the publication of the Agenda SEEPA has withdrawn
their holding objection therefore point b. of the recommendations is no longer
required, he also highlighted that an objection had been received from Gorebridge
Community Council and that this was circulated to the committee prior to this
meeting. 
Thereafter the Planning and Sustainable Growth and Investment Manager
responded to questions and comments from Elected Members in particular
regarding the access road and the Education provision. He also provided clarity on
the timeline for this development and that he could see no other alternative access
to this site.  He confirmed that he would take away the concerns regarding
construction vehicles and the safety of children and residents and also that with
regards to HGVs that there is appropriate access.  He further advised that if this is
approved with regards to condition 15 this can be worded appropriately to address
all the concerns raised. 
It was noted there should be a pre-inspection and a post-inspection to ensure all
issues are addressed appropriately. 
Following further discussion and comments regarding the letter of objection
received from Gorebridge Community Council, issues were raised regarding
Developer’s not providing access within suitable timescales and the Planning,
Sustainable Growth and Investment Manager confirmed that the Council in
managing the development, in particular this site they can proactively monitor the
conditions to make sure any issues are picked up.   
It was also highlighted that most of the objections had been addressed by the
Planning, Sustainable Growth and Investment Manager and among other reasons
this site was in good proximity to public transport and it would not be in the
Council’s best interest to turn this application down. 
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Councillor McCall, seconded by Councillor Drummond moved to reject the
application on the grounds of over development and the lack of infrastructure. 
Councillor Virgo, seconded by Councillor Winchester moved the report with the
amendments to the conditions as discussed. 
The Chair advised with the amendments discussed and this being part of the local
plan he approved the development and thereafter a vote was taken 5 voted for the
motion to reject the application and 8 voted for the report as amended this then
became the decision of the Committee.
Decision
The Planning Committee agreed to grant planning permission for the following
reasons: 
The proposed development site is allocated for housing in the Midlothian
Local Development Plan 2017. The proposed detailed scheme of
development in terms of its layout, form, design and landscape
framework is acceptable and as such accords with development plan
policies, subject to securing developer contributions.  The presumption
for development is not outweighed by any other material considerations. 
Subject to the conditions as set out in the report with Condition 15 amended to
reflect the discussion and concerns raised at this meeting.
Action
The Planning, Sustainable Growth and Investment Manager 
Councillor Scott re-joined the meeting at the conclusion of the above items 
Agenda No Report Title Submitted by:
5.5 Application for Planning Permission for erection
of foodstore (Class 1) and associated wiorks18-
20 Edinburgh Road, Penicuik(22/002736/DPP)
Chief Officer Place
Outline of report and summary of discussion
The application was for the erection of a retail foodstore (class 1), fencing, electric
vehicle charging points, bin shelter and trolley bays; formation of access, car
parking and associated works at the site of a former car salesroom at 18-20
Edinburgh Road, Penicuik which was subject to a site visit on Monday 21
November 2022. 
There have been three representations (all supporting) and consultation responses
from Scottish Water, the Council’s Senior Manager Neighbourhood Services
(Roads), the Council’s Flooding Officer and the Council’s Senior Manager
Protective Services. 
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The Planning, Sustainable Growth and Investment Manager presented this report
highlighting the main sections contained within the Report. 
The Chair highlighted as this was subject to a call-in by Councillor McCall invited
Councillor McCall to speak.  In response to Councillor McCall’s questions regarding
the reason this application did not impact on the Town Centre and also concerns
regarding road safety, the Planning, Sustainable Growth and Investment Manager
provided clarity on the previous applications which had been refused and that they
were for smaller mixed units which could be accommodated in the Town Centre
whereas this was different in terms of the size and could not be accommodated in
the Town Centre.  Also with regards to road safety he highlighted that as the site
used to be a car showroom and with other businesses in this area there was local
awareness of trade vehicles. Following further concerns raised regarding the
access and exit from the site he provided clarity on measures which could be put in
place to alleviate some of the concerns and also provided the agreed times when
deliveries would take place and the stores opening times. 
Councillor McCall, seconded by Councillor McManus moved to grant planning
permission and with no objections received this became the decision of the
Committee.  
Decision
The Planning Committee agreed to grant planning permission for the following
reason: 
The proposed development site is allocated for housing in the Midlothian Local
Development Plan 2017. The proposed detailed scheme of development in
terms of its layout, form, design and landscape framework is acceptable and
as such accords with development plan policies, subject to securing developer
contributions. The presumption for development is not outweighed by any
other material considerations. 
Subject to the conditions as set out in the report.
Action
The Planning, Sustainable Growth and Investment Manager 
Exclusion of Members of the Public 
In view of the nature of the business to be transacted, the Committee agreed that
the  public be excluded from the meeting during discussion of the undernoted item,
as  contained in the Addendum hereto, as there might be disclosed exempt
information as defined in paragraph 13 of Part I of Schedule 7A to the Local
Government (Scotland) Act 1973:- 
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Agenda No Report Title Submitted by:
6.1 Tree Preservation Order (TPO) - Bilston Chief Officer Place
Decision
The Committee agreed the recommendations as detailed in the Report.
Action
The Planning, Sustainable Growth and Investment Manager/Democratic Services 
6. Date of Next Meeting 
The next meeting will be held on Tuesday 10 January 2023 at 1.00pm 
The meeting terminated at 2.29 pm
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Planning Committee
Tuesday 10 January 2023
Item No: 5.1
PRE - APPLICATION REPORT REGARDING PROPOSED CHANGE OF
USE OF LAND TO A RECYCLING FACILITY AND THE CONTINUATION
OF LANDFILL OPERATIONS AT MIDDLETON LOWER QUARRY,
GOREBRIDGE (22/00856/PAC) 
Report by Chief Officer Place
1   PURPOSE OF REPORT
1.1 The purpose of this report is to advise the Committee of the
submission of a Proposal of Application Notice (PAN) and
corresponding pre application consultation for the proposed change of
use of land to a recycling facility and the continuation of landfill
operations at Middleton Lower Quarry (Middleton Limeworks),
Gorebridge.  
1.2 The pre-application consultation is reported to Committee to enable
Councillors to express a provisional view on the proposed major
development.  The report outlines the proposal, identifies the key
development plan policies and material considerations and states a
provisional, without prejudice, planning view regarding the principle of
development.
2 BACKGROUND
2.1 Guidance on the role of Councillors in the pre-application process,
published by the Commissioner for Ethical Standards in Public Life in
Scotland, was reported to the Committee at its meeting of 30 August
2022.  The guidance clarifies the position with regard to Councillors
stating a provisional view on proposals at pre-application stage.
2.2 A pre-application consultation for the proposed change of use of land
to a recycling facility and the continuation of landfill operations at
Middleton Lower Quarry (Middleton Limeworks), Gorebridge was
submitted on 29 November 2022.  The applicant is seeking to
undertake recycling operations at the site whilst continuing to re-work,
infill and restore the land over a 15 year period. 
2.3 As part of the pre-application consultation, two public events are
scheduled at North Middleton Village Hall, the first on Tuesday 24
January 2023 at 7pm and the second on Thursday 16 February 2023
at 7pm; these meetings will be advertised within the Midlothian
Advertiser at least 7 days prior to each event.  It is also noted that the
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agent will carry out a letter drop to local residents within the immediate
vicinity of the application site to inform them of the meetings.  Upon the
conclusion of the public events the applicant could submit a planning
application for the proposal. 
2.4 An applicant must wait 12 weeks from the date of submission of a PAN
before submitting a planning application.  The earliest date that the
planning application for this proposal could be submitted is 22
February 2023.  The subsequent planning application must be
accompanied by a Pre Application Consultation Report detailing the
consultation undertaken, a summary of written responses and views
expressed at the public events, and explanation of how the applicant
took account of the views expressed and an explanation of how
members of the public were given feedback on the applicant’s
consideration of their views. 
2.5 Copies of the pre application notice have been sent by the prospective
applicant to the local elected members in ward 6 (Midlothian South)
along with Moorfoot Community Council and Gorebridge Community
Council. 
2.6 It is reasonable for an Elected Member to attend such a public event
without a Council Planning Officer present, but the Member should (in
accordance with the Commissioner’s guidance reported to the
Committee at its meeting in August 2022) not offer views, as the forum
for doing so will be at meetings of the Planning Committee. 
3 PLANNING CONSIDERATIONS 
3.1  In assessing any subsequent planning application the main planning
issue to be considered in determining the application is whether the
currently proposed development complies with development plan
policies unless material planning considerations indicate otherwise. 
3.2 The development plan is comprised of the Edinburgh and South East
Scotland Strategic Development Plan (June 2013) and the Midlothian
Local Development Plan 2017 (at the time of drafting the report). 
3.3 SESplan June 2013 is older than five years. A replacement SESplan
was prepared but rejected by Scottish Ministers in May 2019. The
Planning etc. (Scotland) Act 2019 removed the duty to prepare
Strategic Development Plans, placing strategic planning matters within
a National Planning Framework 4 (NPF4) to be prepared by Scottish
Ministers. Once approved, NPF4 will form part of the development plan
alongside local development plans. Until NPF4 is approved, SESplan
remains part of the development plan albeit increasing out of date and
of diminishing weight in the assessment of planning applications. 
3.4 On 8 November 2022 a Revised Draft NPF4, along with an explanatory
report that outlines the changes from the original draft NPF4, was laid
before the Scottish Parliament for a six week period of final scrutiny
with an expectation that it will be adopted in late 2022 or January 2023.
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The Planning Act requires that NPF4 must be approved by the Scottish
Parliament before it can be adopted by Scottish Ministers. On adoption
the provisions in the Planning Act will make NPF4 part of the statutory
development plan (SESplan will become superseded policy at this
point). The existing National Planning Framework 3 and Scottish
Planning Policy remain in place until NPF4 has been adopted by
Scottish Ministers, but don’t have the status of being part of the
development plan which NPF4 will.  As the Revised Draft NPF4 is at
an advanced stage and represents the settled view of the Scottish
Government in terms of its planning policy it is a material consideration
of significant weight in the assessment of the application. 
3.5   The application site relates to the lower quarry also known as Quarry 1;
the quarry is a former limestone quarry, located in the countryside in
close proximity to the south of North Middleton.  The site measures
approximately 10.8 hectares and comprises the quarry void with quarry
faces, soil storage bunds on the periphery of the void and areas of
quarry spoil within the void.  The quarry has been partially filled. The
quarry is accessed from a point off an unclassified road that runs in an
east to west orientation and which bounds the site to the north.  The
unclassified road is accessed off Guildiehowes Road, which in turn is
accessed off the A7 which is located nearby to the north of the site. 
3.6   The relevant development plan policies are policy 14 (waste
management and disposal) of the Edinburgh and South East Scotland
Strategic Development Plan 2013 (SESplan) and policies RD1
(development in the countryside), ENV7 (landscape character), ENV15
(species and habitat protection and enhancement), ENV17 (air quality),
ENV18 (noise), and WAST3 (landfill) of the Midlothian Local
Development Plan 2017.  Policy 12 (zero waste) of the draft National
Planning Framework 4 (NPF4) is also a material consideration. 
3.7   The views of consultees and representors will be material
considerations in the assessment of an application for the proposed
development. 
3.8   If a planning application is submitted, there is a presumption against
the change of use of land to a recycling facility and the continuation of
landfill operations for another 15 years.  Recycling facilities are best
placed within established economic development sites/industrial
estates that are allocated for business, general industrial, or for
storage and distribution uses.  The application site is located within the
countryside where there is no policy support for this type of use.
However, the historic use and current use of the application site is a
material planning consideration that should be taken into consideration
in the assessment of any proposals.  Other considerations include the
developments impact on the landscape, biodiversity, trees, noise, dust,
residential amenity, ground contamination and road safety.   
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4 PROCEDURES 
4.1  The Scottish Government’s Guidance on the Role of Councillors in
Pre-Application Procedures provides for Councillors to express a
‘without prejudice’ view and to identify material considerations with
regard to a major application. 
4.2  The Committee is invited to express a ‘without prejudice’ view and to
raise any material considerations which they wish the applicant and/or
officers to consider.  Views and comments expressed by the
Committee will be entered into the minutes of the meeting and relayed
to the applicant for consideration. 
4.3  The Scottish Government’s Guidance on the Role of Councillors in
Pre-Application Procedures advises that Councillors are expected to
approach their decision-making with an open mind in that they must
have regard to all material considerations and be prepared to change
their views which they are minded towards if persuaded that they
should. 
5 RECOMMENDATION 
5.1 It is recommended that the Committee notes:
a) the provisional planning position set out in this report; 
b) that any comments made by Members will form part of the minute 
of the Committee meeting; and 
c) that the expression of a provisional view does not fetter the 
Committee in its consideration of any subsequent formal planning 
application. 
Peter Arnsdorf
Planning, Sustainable Growth and Investment Manager 
Date:    20 December 2022
Application No:  22/00856/PAC
Applicant:   The NWH Group
Agent:   Willie Booth - Dalgleish Associates Limited
Validation Date:  29 November 2022
Contact Person:  Whitney Lindsay
Email:   Whitney.Lindsay@midlothian.gov.uk 
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Reproduced from the Ordnance Survey map with the permission of the
controller of Her Majesty's Stationary Office. Crown copyright reserved.
Unauthorised reproduction infringes Crown copyright and may lead to
prosecution or civil  proceedings
Midlothian Council Licence No. 100023416 (2022)
Midlothian Council
Fairfield House
8 Lothian Road
Dalkeith
EH22 3AA
Planning Service
Place Directorate
Proposal of application notice for recycling facility and landfill
operations at Middleton Lower Quarry, Gorebridge,
File No: 22/00856/PAC
Scale:1:6,500 ±
A7
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Planning Committee
Tuesday 10 January 2023
Item No: 5.2
SECTION 42 APPLICATION 22/00546/S42 TO AMEND CONDITION 1 OF
PLANNING PERMISSION 15/00503/DPP (INFILLING OF QUARRY) TO
CONFIRM THE DURATION OF THE TEMPORARY PERMISSION AND
CONDITION 3 TO ALLOW THE ACCEPTANCE OF NON-HAZARDOUS
WASTE AT MIDDLETON LIMEWORKS, GOREBRIDGE
Report by Chief Officer Place
1 SUMMARY OF APPLICATION AND RECOMMENDED DECISION
1.1 At its meeting on 17 November 2015 the Committee granted
planning permission for the infilling and restoration of the former
Middleton Limeworks Quarry.  This section 42 application seeks
to amend the wording of conditions 1 and 3 attached to the grant
of planning permission (15/00503/DPP) to confirm the duration of
the temporary planning permission and to allow the acceptance of
non-hazardous waste as an infill material. 
1.2 There has been one representation and consultation responses
from the Scottish Environment Protection Agency (SEPA),
Transport Scotland, Moorfoot Community Council, the Council’s
Senior Manager Neighbourhood Services (Roads) and the
Council’s Senior Manager Protective Services. 
1.3 The relevant development plan policies are policy 14 of the
Edinburgh and South East Scotland Strategic Development Plan
2013 (SESplan) and policies RD1, ENV7, ENV10, ENV15 and
WAST3 of the Midlothian Local Development Plan 2017.  Policy 12
of the draft National Planning Framework 4 (NPF4) is also a
material consideration.
1.4 The recommendation is to grant planning permission subject to
conditions.
2 LOCATION AND SITE DESCRIPTION
2.1 The application site relates to the lower quarry also known as quarry 1;
the quarry is a former Limestone Quarry, located in the countryside in
close proximity to the south of North Middleton.
2.2 The site measures approximately 7.7 hectares with the proposed infill
area being approximately 5.15 hectares. The site comprises the quarry
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void with quarry faces, soil storage bunds on the periphery of the void
and areas of quarry spoil within the void.  The quarry has been partially
filled. 
2.3 The quarry is accessed from a point off an unclassified road that runs
in an east to west orientation and which bounds the site to the north.
The unclassified road is accessed off Guildiehowes Road, which in turn
is accessed off the A7 which is located nearby to the north of the site. 
3 PROPOSAL 
3.1 The application, made under Section 42 of the Town and Country
Planning (Scotland) Act 1997 as amended by the Planning etc.
(Scotland) Act 2006 (hereafter referred to as the Act), seeks to amend
two conditions attached to the grant of planning permission for the
infilling of a disused quarry.   
3.2 A Section 42 application is in itself a planning application, a particular
kind of planning application, for development without complying with a
condition(s) previously imposed on an earlier grant of planning
permission.  A grant of planning permission under Section 42 results in
an entirely new planning permission which will supersede the original
permission(s) if implemented. Therefore if planning permission is
granted for this application it will replace planning consent
15/00503/DPP. 
3.3 Although a Section 42 application is a new planning application in law
the Act states “on such an application the planning authority shall
consider only the question of the conditions subject to which planning
permission should be granted”.  The principle of development are not
subject to assessment.  Planning authorities should attach to the new
permission all of those conditions from the previous permission, where
it is intended these should still apply. 
3.4 Condition 1 of planning permission 15/00503/DPP states: 
Planning permission for the infilling of the quarry with inert material and
restoration of the site is granted for a limited period of seven years from
the date when operations commence on the site (such date to be
advised by the applicant or their successors). 
Reason: To make clear the extent and specifications of the
development for which planning permission is granted, and to ensure
the full implementation of all the identified measures for mitigating its
environmental impact. 
3.5 Condition 3 of planning permission 15/00503/DPP states: 
Only truly inert material, as specified in the table at Schedule 2,
Paragraph 4 of the Landfill (Scotland) Regulations 2004, shall be used
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for infilling purposes and the material shall arrive at the site in a
condition suitable for purpose. 
Reason: To ensure that only appropriate materials are used for infilling
and to ensure adequate protection of the water environment. 
3.6 The applicant is seeking to amend condition 1 to set a clear end date to
the operations of 31 March 2024 and to provide clarity on the infill
materials that can be used. 
3.7 With regard condition 3 the applicant is seeking to allow non-hazardous
waste in accordance with code 19 12 09 (minerals including sand and
stone) and code 19 12 12 (crushed bricks, tiles, concrete and
ceramics, including a mixture of these materials) as defined by the
Landfill (Scotland) Regulations 2003 as amended, to be added to the
existing list of materials that are acceptable for the infilling of the quarry
and would be in addition to the existing inert waste. 
4 BACKGROUND 
4.1 In March 1982 planning permission ref.198/81 was granted for the
extraction and working of limestone on both Middleton Quarry No.1
(the lower quarry) and No.2 (the upper quarry).  Planning permission
198/81 was implemented. 
4.2 In December 2012 a Breach of Condition Notice was served on Leiths
(Scotland) Limited; who were the operator of the Middleton Quarry. 
The notice required them to take action in relation to conditions
attached to planning permission 198/81, in particular those conditions
requiring the infilling of the quarry and its restoration to an agricultural
use by the 19 December 2016.  The Breach of Condition Notice only
required the reinstatement of No.2 quarry.  No.2 quarry (also known as
the upper quarry) is presently being infilled in compliance with the
Breach of Condition Notice. 
4.3 Planning permission 15/00503/DPP for the infilling of quarry 1 (the
lower quarry) was granted subject to conditions (this application was
accompanied by an environmental statement prepared under the
environmental impact assessment (Scotland) Regulations 2011).  The
consent was subject to a time limitation condition which required the
works to be completed within seven years of commencement. 
5 CONSULTATIONS 
5.1 The Scottish Environment Protection Agency (SEPA) does not
object to the application and confirmed that the applicant currently has
a Pollution Prevention and Control (PPC) Permit for the landfilling of
inert waste at the site and this process is being regulated by SEPA. 
The site is classified as an ‘inert’ site, in accordance with the provisions
of the Landfill (Scotland) Regulations 2003 as amended.  Currently,
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only the restricted inert waste types set out in Schedule 2 of those
regulations and included in a condition of the current permit can be
accepted. SEPA confirmed that the current permit does not currently
allow general ‘non-hazardous’ wastes to be accepted at the site,
however the applicant may be able to vary the permit to allow specific
non-hazardous waste types to be accepted, provided those wastes fall
within the definition of ‘inert’ waste.  The applicant would be required to
demonstrate those wastes fully meet the inert Waste Acceptance
Criteria before acceptance at the site.  SEPA also advised that landfill
sites that are classified as non-hazardous and permitted to accept all
such wastes must comply with specific engineering and environmental
requirements as set out in the Landfill (Scotland) Regulations 2003 as
amended.  The requirements for each classification of landfill, as
specified in these regulations, and the standards relating to inert, non-
hazardous and hazardous classified landfills are significantly different
in order to ensure the correct level of protection of soil and the water
environment is in place from the wastes being landfilled.  The
requirements for inert sites being less onerous than the requirements
for non-hazardous sites.   
5.2 Transport Scotland does not object to the application. 
5.3 Moorfoot Community Council (MCC) objects to the planning
application for the following reasons: 
• Lack of consultation/discussion between the applicant and MCC
and the Midlothian Federation of Community Councils;
• There has been an adverse impact from the development carried
out to date - this will be amplified further by the proposed extension
of time and the acceptance of additional waste products without
any form of Environmental Impact Assessment, in particular no
form of hydrological risk assessment;
• The vehicle access arrangements are not appropriate for the
significant amount of HGV traffic (50-60 round trips a day rather
than the original 33) which operates from 7am to 6pm, 6 days a
week;  
• The number of accidents that have nearly occurred at the junction
as HGVs join or leave the A7;
• Mud and dust on the local roads, particularly the A7 and
Guildiehowes Road generated by HGV site traffic;
• Potholes and other forms of damage to the roads which have not
been fully repaired by Midlothian’s Roads department;
• No hydrological risk assessment relating to the infill of the quarry
with inert materials;
• No landscaping schedule has been initiated to restore the site as
originally intended once the project has been complete; 
• There is no complete record of the volume of material deposited in
the quarry and therefore no monitoring of the composition of the
infill to ensure it is what it is meant to be;
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• The prominent visibility of the rubble from ground level - this raises
concerns over the site exceeding the original infill capacity stated
within the previous application submission;
• The application to extend the timeframe of development, as well as
expand the capacity of the site to accept non-hazardous waste,
only confirms the original intentions of the applicant;
• Acceptance of non-hazardous waste as infill material at the quarry
does not address SEPAs original objection to planning application
15/00503/DPP (this was later withdrawn);
• There are no records of site inspections having taken place since
planning application 15/00503/DPP was granted.  It is therefore
impossible to know whether these conditions have been met and
whether the material used for infill at the quarry has been fully inert;
• There are no mitigation measures to limit the risk of pollution and
excess surface water in the area close to the site, apart from mud
bars and a wheel wash having been installed in 2016;
• Sets an unfortunate precedent providing unregulated disposal of a
wide range of materials; and 
• The original plans for restoration of the site have been delayed. 
5.4 The Senior Manager Neighbourhood Services (Roads) does not
object to the application. 
5.5 The Senior Manager Protective Services does not object to the
application.  In reviewing the supporting information submitted with the
application, in terms of the infill materials currently used at the site and
the additional non-hazardous infill materials proposed, it is considered
the current landfill site has a geological liner that is inspected by an
independent Construction Quality Assurance Engineer and that regular
environmental monitoring is undertaken (as part of the SEPA licensing
regime).  The following points should be considered if a new grant of
planning permission is issued: 
1)  Protective Services would recommend that the amended Condition
3 is specific about the waste types that can be accepted and that
no other waste can be disposed of without the written authorisation
of the planning authority. 
2)  Additionally, it is recommended that the applicant undertake regular
sampling and analysis of the filter cake to ensure that it meets the
requirements of the required waste codes on an ongoing basis. 
5.6 The consultation responses are available to view in full on the online
planning application case file. 
6 REPRESENTATIONS 
6.1 One representation has been received objecting to the planning
application.  The representation raises concerns which mirror those
presented by the MCC as noted in section 5.3 on the report.  The
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objection representation is available to view in full on the online
planning application case file. 
7 PLANNING POLICY 
7.1 The development plan is comprised of the Edinburgh and South East
Scotland Strategic Development Plan (June 2013) and the Midlothian
Local Development Plan 2017 (at the time of drafting the report). 
7.2 SESplan June 2013 is older than five years.  A replacement SESplan
was prepared but rejected by Scottish Ministers in May 2019.  The
Planning etc. (Scotland) Act 2019 removed the duty to prepare
Strategic Development Plans, placing strategic planning matters within
a National Planning Framework 4 (NPF4) to be prepared by Scottish
Ministers.  Once approved, NPF4 will form part of the development
plan alongside local development plans.  Until NPF4 is approved,
SESplan remains part of the development plan albeit increasing out of
date and of diminishing weight in the assessment of planning
applications. 
7.3 On 8 November 2022 a Revised Draft NPF4, along with an Explanatory
Report that outlines the changes from the original draft NPF4, was laid
before the Scottish Parliament for a six week period of final scrutiny
with an expectation that it will be adopted in late 2022 or January 2023.
The Planning Act requires that NPF4 must be approved by the Scottish
Parliament before it can be adopted by Scottish Ministers.  On adoption
the provisions in the Planning Act will make NPF4 part of the statutory
development plan (SESplan will become superseded policy at this
point).  The existing National Planning Framework 3 and Scottish
Planning Policy remain in place until NPF4 has been adopted by
Scottish Ministers, but don’t have the status of being part of the
development plan which NPF4 will.  As the Revised Draft NPF4 is at an
advanced stage and represents the settled view of the Scottish
Government in terms of its planning policy it is a material consideration
of significant weight in the assessment of the application. 
7.4 The following policies are relevant to the proposal: 
Edinburgh South East Scotland Strategic Development Plan 2013
(SESPlan) 
7.5 Policy 14: Waste Management and Disposal states that Local
Development Plans will consider proposals for landfill development
where the need for the facility is support after taking into account
relevant economic, social, environmental and transport considerations. 
Midlothian Local Development Plan 2017 (MLDP) 
7.7 Policy RD1: Development in the Countryside states that
development in the countryside will only be permitted if it is required
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for the furtherance of agriculture, including farm related
diversification, horticulture, forestry, countryside recreation or tourism;
it accords with policies RD2 (low density rural housing), MIN1
(mineral extraction), NRG1 (renewable and low carbon energy
projects) or NRG2 (wind energy); or it accords with the Council’s
Supplementary Guidance on Development in the Countryside and
Green Belt. For housing, this is limited to homes required to support
an established countryside activity. 
With regard to business in the countryside policy RD1 states that
development opportunities that will enhance rural economic
development opportunities will be permitted if: 
• They are of a scale and character appropriate to the rural area
and well integrated into the rural landscape; and
• They are capable of being serviced with an adequate and
appropriate access; and
• They are capable of being provided with drainage and a public
water supply at reasonable cost, or an acceptable private water
supply, unacceptable discharge to watercourses; and
• They are accessible by public transport and services (where
appropriate); and 
• They are not primarily of a retail nature; and
• They do not harm the amenity of nearby residents through
unacceptable levels of noise, light or traffic. 
7.8 Policy ENV7: Landscape Character states that development will not
be permitted where it significantly and adversely affects local
landscape character.  Where development is acceptable, it should
respect such character and be compatible in terms of scale, siting
and design.  New development will normally be required to
incorporate proposals to maintain the diversity and distinctiveness of
the local landscapes and to enhance landscape characteristics where
they have been weakened.   
7.9 Policy ENV10: Water Environment requires that new development
pass surface water through a sustainable urban drainage system
(SUDS) to mitigate against local flooding and to enhance biodiversity
and the environment.   
7.10 Policy ENV15: Species and Habitat Protection and Enhancement
presumes against development that would affect a species protected
by European or UK law. 
7.11 Policy WAST3 (Landfill) presumes against new landfill development
other than as part of a site restoration project.  Proposals will only be
allowed if there are no significant negative environmental impacts,
including from traffic movements.  A buffer of 250 metres will be
required between a landfill site and any sensitive receptors 9primarily
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residential properties).  Applicants will be required to submit proposals
for site restoration and aftercare and demonstrate that robust financial
arrangements are in place to ensure site restoration. 
National Policy 
7.9 The SPP (Scottish Planning Policy) sets out Government guidance
for waste management including landfill.  SPP states that restoration
should be designed and implemented to the highest standards and that
planning authorities should ensure that consents are associated with
an appropriate financial bond unless the operator can satisfactorily
demonstrate that their programme of restoration, including the
necessary financing phasing and aftercare of the sites, is sufficient. 
7.10 Policy 12 of the NPF4 (Revised Draft) seeks to encourage, promote
and facilitate development that is consistent with the waste hierarchy.
In particular Policy 12 Part e) is relevant to the application as it states
that development proposals for new or extended landfill sites will only
be supported if: 
i.  there is demonstrable need for additional landfill capacity taking
into account Scottish Government objectives on waste
management; and
ii.  waste heat and/or electricity generation is included.  Where this
is considered impractical, evidence and justification will require
to be provided. 
7.11 Also material to the consideration of the application is Scottish
Government’s Planning Advice Note 64: Reclamation of Surface
Mineral Workings.  Pan 64 also states that the then Scottish
Executive (now Scottish Government) considered that financial
guarantees are an appropriate means of reassuring local communities
of operators’ commitment and ability to meet their restoration and
aftercare obligations. 
7.12 Scottish Government advice Circular 4/1998 (The use of conditions
in planning permissions) sets out six tests which planning conditions
must comply with:
•  Necessary;
•  Relevant to planning;
•  Relevant to the development to be permitted;
•  Enforceable;
•  Precise; and
•  Reasonable in all other respects. 
8 PLANNING ISSUES 
8.1 The main planning issue to be considered in determining this
application is whether the proposal complies with development plan
policies unless material planning considerations indicate otherwise.
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The representation and consultation responses received are material
considerations. 
The Principle of Development 
8.2 As the proposal is a ‘Section 42’ application the principle of
development is not subject to consideration as set out in paragraph 3.3
of the report.  The land is allocated as ‘countryside’ within the MLDP
under Policy RD1 - Development in the Countryside.  Proposals for
landfill (including restoration) within the site are not specifically
contemplated by Policy RD1 as the proposed development is not
located within an area of search for surface mineral extraction.  The
principle of development for infilling and restoration of the former
quarry is established by the previous grant of planning permission for
material extraction, landfilling and restoration of the site under planning
permission 15/00503/DPP. 
Conditions 1 and 3 of Planning Permission 15/00503/DPP 
8.3 Planning condition 1 of planning permission 15/00503/DPP states that
‘Planning permission for the infilling of the quarry with inert material
and restoration of the site is granted for a limited period of seven years
from the date when operations commence on the site (such date to be
advised by the applicant or their successors).’ 
8.4 The applicant is seeking to amend condition 1 to set a clear end date to
the operations and to provide clarity on the infill materials that can be
used.  The acceptability of the infilling of the quarry has already been
established for a limited time period (seven years from the
commencement of operations).  The applicant is not seeking to extend
the time period of the planning permission, but wants clarity on end
date of operations and the use of the word ‘inert’ in the original
condition.  Inert waste is that which does not undergo any significant
physical, chemical or biological transformation and is unlikely to
adversely affect other matter with which it comes into contact, whereas
non-hazardous waste is material that can contain a limited
concentration of harmful substances such as heavy metals or
chemicals.  Any non-hazardous material needs to be disposed of in a
site that has a specific landfill cell that prevents contact with the natural
ground and pollution of groundwater – a list of exact items/materials is
more appropriately set by the SEPA licensing regime than a grant of
planning permission. 
8.5 Works associated with planning permission 15/00503/DPP
commenced on site in March 2017.  Furthermore, it is noted that a
bond to ensure that there is sufficient funds for the restoration of the
quarry expires on the 31 March 2024, aligning with the seven year
period set by condition 1.  Therefore, for the sake of clarification, it
would be prudent to amend condition 1 to set an expiry date of 31
March 2024 for the infilling and restoration of the site. 
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8.6 Planning condition 3 of planning permission 15/00503/DPP states that
‘Only truly inert material, as specified in the table at Schedule 2,
Paragraph 4 of the Landfill (Scotland) Regulations 2004, shall be used
for infilling purposes and the material shall arrive at the site in a
condition suitable for purpose.’ 
8.7 The applicant is also seeking to amend condition 3 of planning
permission 15/00503/DPP to allow non-hazardous waste in
accordance with codes 19 12 09 and 19 12 12 as defined by the
Landfill (Scotland) Regulations 2003 as amended, to be added to the
list of materials that are acceptable for the infilling of the quarry. 
8.8 In terms of acceptable materials for infilling, SEPA and the Council’s
Senior Manager Protective Services have not objected to the inclusion
of non-hazardous waste codes 19 12 09 and 19 12 12 to the list of
acceptable materials that can be used for infilling of the quarry.  The
inclusion of the non-hazardous waste codes 19 12 09 and 19 12 12
does not raise any issues in land use planning terms and is
commensurate to inert material, but does enable the Council’s and
SEPA’s regulatory regimes to align.  Therefore, condition 3 will be
amended so as to include all acceptable infill materials covered by the
stated codes. 
Other Conditions 
8.9  Conditions 4 (implementation of a SUDS strategy), 6 (details of the site
layout) and 15 (implementation of bat protection measures) attached to
planning permission 15/00503/DPP were pre-commencement
conditions which have been complied with and therefore there is no
requirement to re-attach these conditions to this application if
approved. 
8.10 The remaining conditions relate to; the approved environmental
statement, restoration material details and plan, securing a bond for
site restoration, transportation assessment, road maintenance and
hours of operation, dust management and noise mitigation.  These
conditions are still relevant and it is proposed to attach them to the new
permission if granted.  However, some of the conditions are required to
be modified to ensure they are relevant to the current permission. 
Other Matters 
8.11 No road safety concerns as a consequence of the proposed revised
conditions, or from the existing development have been identified by
Transport Scotland or the Council’s Senior Manager Neighbourhood
Services (Roads).  Although the MCC and one representor have
expressed concerns in this regard, it is considered that the level of
transportation movements is acceptable without detriment to highway
safety – based on the upper volume/worst case scenario of vehicular
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movements set out by the MCC (60) it is estimated that there is less
that one round trip every 10 minutes Monday to Friday, this volume of
traffic can be absorbed into the existing flows of traffic on the network. 
8.12 With regards to the concerns raised by the representor and MCC, it is
noted that the applicant provided a supporting statement on 21 October
2022 to address the concerns raised.  All material planning
considerations, relevant to the current application, raised within the
representation and the consultations received have been addressed. 
Concerns raised with regard the principle of development are not
material in this assessment, which is primarily about 1) clarifying the
end date of operations (not extending them); and 2) seeking
clarification with regard what material can be deposited in relation to
‘inert’ non-hazardous material. 
8.13 With regards to concerns relating to the lack of engagement between
the applicant and Moorfoot Community Council, it is noted that this is
not a material consideration in the assessment of the current planning
application. 
9 RECOMMENDATION 
9.1 It is recommended that planning permission be granted for the
following reason: 
The proposed amendments to conditions does not fundamentally
change the development which is being implemented under a previous
grant of planning permission.  The proposed development does not
have adverse environmental impacts subject to detailed/technical
matters being agreed/secured by condition.  This presumption in favour
of development is not outweighed by any other material considerations.
The proposed development accords with the Midlothian Local
Development Plan (2017).   
Subject to the following conditions: 
1. Planning permission for the infilling of the quarry with the materials
stated within condition 3 of planning permission 22/00546/S42 and
the restoration of the site shall be completed by 31 March 2024. 
This planning permission expires on the 31 March 2024. 
2. Except as subsequently amended, or as otherwise required by the
terms of this permission, the development hereby approved shall be
carried out in accordance with the application plans, and the details
contained in the accompanying Environmental Statement, dated
June 2015, including the implementation of all the measures
contained in that document for the mitigation of the environmental
impact of the operations. 
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Reason: for conditions 1 & 2: To make clear the extent and
specifications of the development for which planning permission is
granted, and to ensure the full implementation of all the identified
measures for mitigating its environmental impact. 
3. Only inert material, as specified in the table at Schedule 2,
Paragraph 4 of the Landfill (Scotland) Regulations 2003 and non-
hazardous waste codes 19 12 09 and 19 12 12 as defined by the
Landfill (Scotland) Regulations 2003, shall be used for infilling
purposes and the material shall arrive at the site in a condition
suitable for purpose. 
Reason: To ensure that only appropriate materials are used for
infilling and to ensure adequate protection of the water
environment. 
4. At the end of the month during which infilling commences and at the
end of each month thereafter until the site is fully restored, the
developer shall send to the planning authority a written record of
where each load of material being used to infill the site has come
from, the type of material and the tonnage. 
Reason: To ensure that only appropriate materials are used for
infilling and to ensure adequate protection of the water environment
and so that the planning authority can monitor progress with the
infilling. 
5. Within one month from the date of this planning permission, the
applicants or their successors shall submit for the approval of the
planning authority a detailed restoration plan for the whole site,
including the haul road, showing the final contours to be achieved in
the restoration and the location of any hedges, fences, gates, walls
and access points on the restored site, together with a written
specification where such details are not shown on the plan; the plan
shall also include proposals for the removal or other treatment of
areas of hardstanding, areas occupied by plant or buildings, and the
full length of the haul road, together with detailed landscaping
proposals for the whole site, including the haul road, indicating the
numbers, sizes, species, positions and planting densities of all trees
and shrubs to be planted.  If the restoration plan is not approved in
writing by the planning authority within two months from the date of
this planning permission all works and operations on site shall
cease. 
6. Notwithstanding the information contained within the Environmental
Statement the restoration and landscaping of the site shall be
completed in accordance with the restoration; including levels,
approved under the terms of condition 7 of planning permission
15/00503/DPP, prior to the expiration of this consent as detailed in
condition 1 of planning permission 22/00546/S42. The approved
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landscaping shall be maintained to the satisfaction of the planning
authority for a period of five years after 31 March 2024 (31 March
2029).  Maintenance shall include the replacement of any trees,
shrubs or hedgerow plants which die, are removed, become
seriously diseased or are severely damaged within that period, by
others of a similar size and species to those originally required to be
planted. 
Reason for conditions 5 and 6: To ensure that all restored land is
properly managed for a sufficient period to ensure its effective
return to permanent agricultural/forestry use. 
7. The developer shall ensure that the approved bond or other
financial provision associated with planning permission
15/00503/DPP is maintained through the duration of, and linked to,
this planning permission.  A copy of the bond/financial provision
securing the restoration of the site shall be submitted to planning
authority within three months of this grant of planning permission. 
The bond will only be considered acceptable if approved in writing
by the planning authority.  Development shall cease within 6
months of this grant of planning permission if the bond/financial
provision securing the restoration of the site is not approved in
writing by the planning authority. 
Reason: To ensure that there are sufficient funds available
throughout the life of the development to carry out the full
restoration of the site. 
8. Notwithstanding that specified in the transportation assessment
(TA), the first 40 metres (not 20 metres as stated in the TA) of
private access road into the site; measured back from the site
access, shall be surfaced in non-loose material within three months
of this grant of planning permission. 
Reason: To ensure that the public roads including the access road
leading to the quarry and the A7 are kept free from loose material
being deposited from vehicles entering or exiting the site in the
interest of road safety. 
9. Any identified damage to the highway during infilling and restoration
works shall be repaired within three months of the operator being
notified of the required works. 
Reasons: Various sections of the road carriageway / verge have
suffered damage over the years and they require to be repaired
prior to the intensification of the use of the road in the interests of
road and pedestrian safety. 
10. The access and egress of vehicles into and out of the site shall only
take place during the hours of 08.00 to 19.00 Mondays to Fridays
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and 08.00 to 12.00 Saturdays with no working on Sunday.  In
addition, no work, no work on the construction of the access road,
or site preparation works, shall take place out with the hours of
08.00 to 19.00 Mondays to Fridays and 08.00 to 12.00 Saturdays
inclusive. There shall be no variation there from unless with the
prior written approval of the planning authority. 
Reason: In the interests of safeguarding the amenity of nearby
noise sensitive properties and the character and amenity of the
countryside. 
11. The approved Dust Management Plan that was approved in writing
by the planning authority under condition 13 of planning permission
15/00503/DPP shall be adhered to.  Additionally, following any
substantiated complaints about dust, or where visual inspection
indicates significant dust emissions or dust tracked out of the site
onto public roads, a programme of monitoring at the sensitive
receptor(s) shall be undertaken by the operator over a period of
time agreed in writing by the planning authority and steps taken, as
agreed with the planning authority, to clean the public highway,
reduce dust emissions and any other steps to mitigate the impact
from dust. 
Reason: To mitigate the potential impact of the development on air
quality in the interest of safeguarding the amenity of neighbouring
properties and the amenity of the area. 
12. A daytime limit of 55 dB LAeq, 1 h (free field) shall be met at noise
sensitive properties, with the exception of Halkerston Cottages
where a daytime limit of 45 dB LAeq, 1 h (free field) shall be met. 
Reason: To mitigate the potential noise impact of the development
in the interest of safeguarding the amenity of neighbouring noise
sensitive properties. 
13. No mud, soil or debris shall be deposited on the public highway by
vehicles entering of leaving the site.  Any mud, soil or debris
deposited on the public highway shall be removed and the highway
cleaned. The applicant shall retain an operational road sweeper on
site whilst infilling operations and restoration works are taking place
to ensure the highway is cleaned within one hour of the operator
being notified by the local authority, the Police or any other
Government Agency or Public Body. 
Reason: In the interests of highway safety. 
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Page 33

Peter Arnsdorf
Planning, Sustainable Growth and Investment Manager 
Date:     20 December 2022
Application No:    22/00546/S42
Applicant:   The NWH Group
Agent:              William Booth, Dalgleish Associates Ltd. 
Validation Date:  14 July 2022
Contact Person:  Whitney Lindsay 
Email:     Whitney.Lindsay@midlothian.gov.uk
Background Papers: Planning Application 15/00503/DPP
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Reproduced from the Ordnance Survey map with the permission of the
controller of Her Majesty's Stationary Office. Crown copyright reserved.
Unauthorised reproduction infringes Crown copyright and may lead to
prosecution or civil  proceedings
Midlothian Council Licence No. 100023416 (2022)
Midlothian Council
Fairfield House
8 Lothian Road
Dalkeith
EH22 3AA
Planning Service
Place Directorate
Section 42 Application to amend condition 1 of planning
permission 15/00503/DPP (infilling of quarry) to confirm the
duration of temporary permission and condition 3 to allow the
acceptance of non-hazardous waste; Middleton Limeworks,
Gorebridge
File No. 22/00546/S42
Scale:1:6,500 ±
A7
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Planning Committee
Tuesday 10 January 2023
Item No: 5.3
SECTION 42 APPLICATION 22/00588/S42 TO AMEND CONDITIONS 4.VIII,
5.I, 5.III, 5.IV, 7 AND 9 OF PLANNING PERMISSION 17/00559/S42
(BUSINESS AND GENERAL INDUSTRIAL DEVELOPMENT) REGARDING
ACCESS ARRANGMENTS, THE PROVISION OF HIGH SPEED FIBRE
BROADBAND AND ELECTRIC VEHICLE CHARGING STATIONS AT
LAND SOUTH WEST OF NEWTONLOAN TOLL, GOREBRIDGE
Report by Chief Officer Place
1 SUMMARY OF APPLICATION AND RECOMMENDED DECISION
1.1 In November 2012 planning permission in principle
(07/00556/OUT) was granted for Class 4 (business) and Class 5
(general industrial) uses on land to the south west of Newtonloan
Toll, Gorebridge.  In December 2019 a new planning permission in
principle (17/00559/S42) was granted for the development without
compliance with condition 8 (provision of zero and/or low carbon
equipment) of the original grant of planning permission.  The
current planning application seeks to amended conditions; 4.viii
(pedestrian/cycling links), 5.i (vehicular and pedestrian access),
5.iii (proposed signalised junction access layout), 5.iv (existing
traffic lights at Newtonloan Toll), 7 (high speed fibre broadband)
and 9 (electric vehicle charging stations).
1.2 There have been no representations received and consultation
responses from the Council’s Ecological Advisor (TWIC) and the
Council’s Senior Manager Neighbourhood Services (Roads).  
1.3 The relevant development plan policies are policy 2 of the
Edinburgh and South East Scotland Strategic Development Plan
2013 (SESplan) and policies STRAT1, DEV2, DEV5, DEV6, ECON1,
TRAN1, TRAN5, IT1, IMP1 and IMP2 of the Midlothian Local
Development Plan 2017.  Policies 13, 14, 15, 18, and 24 of the draft
National Planning Framework 4 (NPF4) are also material
considerations.
1.4 The recommendation is to grant planning permission subject to
conditions and the applicant entering into a planning obligation to
secure contributions towards necessary infrastructure.
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2 LOCATION AND SITE DESCRIPTION 
2.1 The 9.7 hectare site lies immediately to the south west of Newtonloan
Toll, Gorebridge.  It is bounded to the north by the B704, Cockpen
Road, to the east by the A7 with housing beyond, to the south by the
access road from the A7 to Redheugh Farm with agricultural land
beyond and to the west by the Borders Railway with agricultural land
beyond.  The surrounding agricultural land is the site for the new
Redheugh/Prestonholm community (housing site h50 in the Midlothian
Local Development Plan 2017) for which planning permission in
principle 15/00045/PPP was granted on 17 November 2017. 
2.2 The application site itself remains largely agricultural land, with some
woodland in the north-west part of the site alongside the B704 and the
railway. 
3 PROPOSAL 
3.1 The application, made under Section 42 of the Town and Country
Planning (Scotland) Act 1997 as amended by the Planning etc.
(Scotland) Act 2006 (hereafter referred to as the Act), seeks to amend
conditions attached to a grant of planning permission in principle for
Class 4 (business) and Class 5 (general industrial) uses.  
3.2 A Section 42 application is in itself a planning application, a particular
kind of planning application for development without complying with a
condition(s) previously imposed on an earlier grant of planning
permission. A grant of planning permission under Section 42 results in
an entirely new planning permission which will supersede the original
permission if implemented. Therefore if planning permission is granted
for this application it will replace planning consent 17/00559/S42
(which, in itself, superseded application 07/00556/OUT) if
implemented. It will therefore be a planning permission in principle for
Class 4 (business) and Class 5 (general industrial) uses. 
3.3 Although a Section 42 application is a new planning application in law
the Act states “on such an application the planning authority shall
consider only the question of the conditions subject to which planning
permission should be granted”. The principle, layout and form of
development are not subject to assessment.  Planning authorities
should attach to the new permission all of those conditions from the
previous permission, where it is intended these should still apply.
However, as a new planning application it shall be subject to a
new/amended legal agreement to secure developer contributions. 
3.4 Condition 4.viii of planning permission 17/00559/S42 states: 
Development shall not begin on an individual phase of development
(identified in compliance with condition 1) until an application for
approval of matters specified in conditions for site access, roads,
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footpaths, cycle ways and transportation movements for the
corresponding phase of development has been submitted to and
approved in writing by the planning authority. Details of the scheme
shall include: 
viii.  details of a 3 metre wide pedestrian/cycling link to be provided
to the southern edge of the site to link to the bus based park and
ride to be provided within the housing site at Redheugh; and 
Development shall thereafter be carried out in accordance with the
approved details or such alternatives as may be agreed in writing with
the planning authority. 
Reason: To ensure the future users of the buildings, existing local
residents and those visiting the development site during the
construction process have safe and convenient access to and from the
site. 
3.5 It is proposed that condition 4.viii be modified as follows: 
viii. details of a 3 metre wide pedestrian/cycling link to be provided
to the southern edge of the site; and 
3.6 Condition 5.i, 5.iii, and 5.iv of planning permission 17/00559/S42
states: 
Development shall not begin until an application for approval of matters
specified in conditions for works to the A7 has been submitted to and
approved in writing by the planning authority. Details of the scheme
shall include: 
i.  details of the proposed vehicular and pedestrian access from the
A7 (including a 2 metre wide footpath along the site frontage with
the A7, proposed visibility splays, traffic calming measures,
lighting and signage);   
iii.  details of the proposed signalised junction access layout (as
shown on drawing 0429_SK-031 rev B) together with further
details of the traffic control system onto the A7;   
iv.  details of upgrading works to the existing traffic lights at
Newtonloan Toll to provide a pedestrian crossing facility on all
four arms; and   
Development shall thereafter be carried out in accordance with the
approved details or such alternatives as may be agreed in writing with
the planning authority. 
Reason: To ensure the future users of the buildings, existing local
residents and those visiting the development site during the
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construction process have safe and convenient access to and from the
site. 
3.7 It is proposed that condition 5.i be modified as follows: 
i details of the proposed signalised junction access layout (as
shown on drawing 0429-SK-031 rev B) together with further
details of the traffic control system onto the A7; 
3.8 It is proposed that conditions 5.iii and 5.iv be deleted. 
3.9 Condition 7 of planning permission 17/00559/S42 states: 
Development shall not begin until an application for approval of matters
specified in conditions setting out details, including a timetable of
implementation, of high speed fibre broadband has been submitted to
and approved in writing by the planning authority. The details shall
include delivery of high speed fibre broadband prior to the occupation
of each commercial building. The delivery of high speed fibre
broadband shall be implemented as per the approved details. 
Reason: To ensure the quality of the development is enhanced by the
provision of appropriate digital infrastructure. 
3.10 It is proposed that condition 7 be modified as follows: 
Development shall not begin on an individual phase of development
until an application for approval of matters specified in conditions
setting out details, including a timetable of implementation of high-
speed fibre broadband for that corresponding phase of development
has been submitted to and approved in writing by the planning
authority. The details shall include delivery of high speed fibre
broadband prior to occupation of each commercial building within the
individual phase of development being proposed. The delivery of high
speed fibre broadband shall be implemented as per the approved
details. 
3.11 Condition 9 of planning permission 17/00559/S42 states: 
“Development shall not begin until an application for approval of
matters specified in conditions for the provision and use of electric
vehicle charging stations throughout the development has been
submitted to and approved in writing by the planning authority.
Development shall thereafter be carried out in accordance with the
approved details or such alternatives as may be approved in writing
with the planning authority. 
Reason: To ensure the development accords with the requirements of
policy TRAN5 of the Midlothian Local Development Plan 2017. 
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3.12 It is proposed that condition 9 be modified as follows: 
Development shall not begin on an individual phase of development
until an application for approval of matters specified in conditions for
the provision and use of electric vehicle charging stations for that
corresponding phase has been submitted to and approved in writing by
the planning authority. Development shall thereafter be carried out in
accordance with the approved details or such alternatives as may be
approved in writing with the planning authority, 
4 BACKGROUND 
4.1 Planning permission in principle 07/00556/OUT for Class 4 (business)
and Class 5 (general industrial) uses was granted planning permission
in November 2012 subject to conditions and a planning obligation
securing developer contributions towards the Borders Railway. 
4.2 Application 07/00556/OUT was accompanied by an indicative master
plan for the site showing how the proposed development included 18
light industrial units varying from 465 to 2323 square metres with a total
floorspace of 19,741 square metres on the northern part of the site,
and 15 office units varying from 929 to 2090 square metres with a total
floorspace of 34,373 square metres on the southern part of the site.  It
also shows an access from the A7 at a point approximately midway
along the eastern boundary of the site, the retention of the existing
woodland along the northern edge of the site and planting of a tree belt
along the eastern and western boundaries of the site. 
4.3 A section 42 application was subsequently submitted and approved
(17/00559/S42) which sought to delete condition 8 (provision of zero
and/or low carbon equipment).  A new planning obligation was agreed
as part of this permission. 
5 CONSULTATIONS 
5.1 The Council’s Ecological Advisor - The Wildlife Information Centre
(TWIC) does not object to the application, but advised that given the
age of the earlier permissions the planning application should be
subject to a further ecological assessment. 
5.2 The Council’s Policy and Road Safety Manager does not object to
the application, but notes that there is an assumption that the proposed
internal road network would connect both the northern and southern
sites. 
6 REPRESENTATIONS 
6.1 There have been no representations received. 
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7 PLANNING POLICY 
7.1 The development plan is comprised of the Edinburgh and South East
Scotland Strategic Development Plan (June 2013) and the Midlothian
Local Development Plan 2017 (at the time of drafting the report). 
7.2 SESplan June 2013 is older than five years.  A replacement SESplan
was prepared but rejected by Scottish Ministers in May 2019.  The
Planning etc. (Scotland) Act 2019 removed the duty to prepare
Strategic Development Plans, placing strategic planning matters within
a National Planning Framework 4 (NPF4) to be prepared by Scottish
Ministers.  Once approved, NPF4 will form part of the development
plan alongside local development plans.  Until NPF4 is approved,
SESplan remains part of the development plan albeit increasing out of
date and of diminishing weight in the assessment of planning
applications. 
7.3 On 8 November 2022 a Revised Draft NPF4, along with an Explanatory
Report that outlines the changes from the original draft NPF4, was laid
before the Scottish Parliament for a six week period of final scrutiny
with an expectation that it will be adopted in late 2022 or January 2023.
The Planning Act requires that NPF4 must be approved by the Scottish
Parliament before it can be adopted by Scottish Ministers.  On adoption
the provisions in the Planning Act will make NPF4 part of the statutory
development plan (SESplan will become superseded policy at this
point).  The existing National Planning Framework 3 and Scottish
Planning Policy remain in place until NPF4 has been adopted by
Scottish Ministers, but don’t have the status of being part of the
development plan which NPF4 will.  As the Revised Draft NPF4 is at an
advanced stage and represents the settled view of the Scottish
Government in terms of its planning policy it is a material consideration
of significant weight in the assessment of the application. 
7.4 The following policies are relevant to the proposal: 
Edinburgh South East Scotland Strategic Development Plan 2013
(SESPlan) 
7.5 Policy 2 (Supply and Location of Employment Land) states that the
strategic development plan supports the development of a range of
marketable sites of the size and quality to meet the requirements of
business and industry within the SESplan area. Local development
plans will support the delivery of the quantity of the established
strategic employment land supply as identified. Local development
plans should also ensure they provide a range and choice of
marketable sites to meet anticipated requirements. 
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Midlothian Local Development Plan 2017 (MLDP) 
7.6 Policy STRAT1: Committed Development seeks the early
implementation of all committed development sites and related
infrastructure, including sites in the established economic land supply.
Committed development includes those sites allocated in previous
development plans which are continued in the MLDP. 
7.7 Policy DEV 2: Development within the Built-up Area states that
development will not be permitted within existing and future built-up
areas where it is likely to detract materially from the existing character
or amenity of the area. 
7.8 Policy DEV5: Sustainability in New Development sets out the
requirements for development with regards to sustainability principles. 
7.9 Policy DEV6: Layout and Design of New Development states that
good design and a high quality of architecture will be required in the
overall layout of development proposals.  This also provides guidance
on design principles for development, materials, access, and passive
energy gain, positioning of buildings, open and private amenity space
provision and parking. 
7.10 Policy ECON1: Existing Employment Locations seeks to safeguard
those sites allocated for economic land uses against loss to non-
business or industrial uses.  Alternative uses for such sites will only be
permitted if there is no net detriment to the overall supply of economic
land. 
7.11 Policy TRAN1: Sustainable Travel aims to encourage sustainable
modes of travel. 
7.12 Policy TRAN5: Electric Vehicle Charging seeks to support and
promote the development of a network of electric vehicle charging
stations by requiring provision to be considered as an integral part of
any new development or redevelopment proposals. 
7.13 Policy IT1: Digital Infrastructure supports the incorporation of high
speed broadband connections and other digital technologies into new
homes, business properties and redevelopment proposals. 
7.14 Policy IMP1: New Development. This policy ensures that appropriate
provision is made for a need which arises from new development. Of
relevance in this case are, transport infrastructure; landscaping; public
transport connections, including bus stops and shelters; parking in
accordance with approved standards; cycling access and facilities;
pedestrian access; access for people with mobility issues; traffic and
environmental management issues;
protection/management/compensation for natural interests affected;
archaeological provision and ‘percent for art’ provision. 
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7.15 Policy IMP2: Essential Infrastructure Required to Enable New
Development to Take Place states that new development will not take
place until provision has been made for essential infrastructure and
environmental and community facility related to the scale and impact of
the proposal. Planning conditions will be applied and where
appropriate, developer contributions and other legal agreements will be
used to secure the appropriate developer funding and ensure the
proper phasing of development. 
National Planning Policy 
7.16 The SPP (Scottish Planning Policy) sets out Government guidance in
relation to creating a successful sustainable place, supporting
economic growth, regeneration and the creating of well-designed
places. 
7.17 In relation to supporting business and employment the planning system
should: 
• promote business and industrial development that increases
economic activity while safeguarding and enhancing the natural
and built environments as national assets; 
• allocate sites that meet the diverse needs of the different sectors
and sizes of business which are important to the plan area in a
way which is flexible enough to accommodate changing
circumstances and allow the realisation of new opportunities;
and 
• give due weight to net economic benefit of proposed
development. 
7.18 Plans should align with relevant local economic strategies to meet the
needs and opportunities of indigenous firms and inward investors,
recognising the potential of key sectors for Scotland with particular
opportunities for growth, including:
• energy;
• life sciences, universities and the creative industries;
• tourism and the food and drink sector; and
• financial and business services. 
7.19 SPP introduces a presumption in favour of development that
contributes to sustainable development, but states: The planning
system should support economically, environmentally and socially
sustainable places by enabling development that balances the costs
and benefits of a proposal over the longer term. The aim is to achieve
the right development in the right place; it is not to allow development
at any cost. 
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7.20 The National Planning Framework 4 Revised Draft (08 November
2022) is a material consideration – the policies relevant to the
application are: 
7.21 Policy 13 – Sustainable Transport sets out to encourage, promote
and facilitate developments that prioritise walking, wheeling, cycling
and public transport for everyday travel and reduce the need to travel
unsustainably. 
7.22 Policy 14 - Design, quality and place sets out to encourage, promote
and facilitate well designed development that makes successful places
by taking a design-led approach and applying the Place Principle. 
7.23 Policy 15 - Local Living and 20 minute neighbourhood sets out to
encourage, promote and facilitate the application of the Place Principle
and create connected and compact neighbourhoods where people can
meet the majority of their daily needs within a reasonable distance of
their home, preferably by walking, wheeling or cycling or using
sustainable transport options. 
7.24 Policy 18 - Infrastructure first sets out to encourage, promote and
facilitate an infrastructure first approach to land use planning, which
puts infrastructure considerations at the heart of placemaking. 
7.25 Policy 24- Digital Infrastructure sets out to encourage, promote and
facilitate the roll- out of digital infrastructure across Scotland to unlock
the potential of all our places and the economy. 
8 PLANNING ISSUES 
8.1 The main planning issue to be considered in determining this       
application is whether the proposal complies with development plan
policies unless material planning considerations indicate otherwise.
The consultation responses received are material considerations. 
The Principle of Development 
8.2 As the proposal is a ‘Section 42’ application the principle of
development is not subject to consideration as set out in paragraph 3.3
of the report.  The site was allocated for Class 4 (business) and Class 5
(general industrial) uses in the Midlothian Local Plan 2008 as part of
the Redheugh/Prestonholm new community.  A subsequent grant of
planning permission in principle (07/00556/OUT) for Class 4 and Class
5 uses was granted in November 2012 reaffirming the principle of
development across the application site.  The MLDP continues the
commitment to the economic uses. 
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Amendment to Condition 4.viii 
8.3 Condition 4 viii requires the developer to deliver a 3m wide
cycle/pedestrian path in the southern part of the site to link to an
anticipated (in 2012) bus based park and ride, to be provided within the
adjacent residential allocation of Redheugh.  Subsequent to the
07/00556/OUT permission the bus based park and ride was replaced
with a potential rail halt which was safeguarded as part of the
neighbouring residential scheme which was approved in principle under
ref: 15/00045/PPP. 
8.4 It is further identified that the adjacent site is under the control of a
different land owner and as such the ability of the applicant (the owner
of the economic development site) to deliver this path on land not
within their control is limited.  As such, the proposal to provide the 3m
wide route to the limits of the site under the applicant’s control is
considered appropriate and equally connections from the neighbouring
residential development will be secured through the appropriate
permissions. 
Amendment of Condition 5.i 
8.5 The masterplan submitted with the original planning application
(07/00556/OUT) and the subsequent section 42 application
(17/00559/S42) referred to a singular vehicular access off the A7.  The
proposed development would seek to deliver two vehicular access
points from the A7, connected by an internal road loop.  However, it
should be noted that the indicative site plan submitted with the current
application would not be approved and the details of such a proposal
would be subject to a separate application and assessment.  That said,
the submitted plans have been reviewed and the Council’s Senior
Manager Neighbourhood Services (Roads) raises no objection to the
proposed reference to two access points and that the proposed
wording, with slight amendments, would comply with MLDP policy
DEV6 and TRAN1. 
Deletion of Conditions 5.iii and 5.iv 
8.6 The deletion of condition 5.iii is logical following the acceptance of
changes to condition 5.i which reference access details proposed on
plan ref: WSP-XX-XX-SK-A-001 rev B and WSP-XX-XX-SK-A-002 rev
B.  The reference to older plans would not be necessary. 
8.7 The proposal to have condition 5.vi deleted has been sought due to the
requirement of the condition being delivered by other means since the
approval of application17/00559/S42.   
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Amendment to Condition 7 
8.8 The proposed amendment seeks to secure high speed fibre broadband
on a phased basis as the development will be delivered in a number of
phases, rather than securing details for the whole site prior to the first
phase commencing on site – this makes sense and can enable each
phase to reflect the most up to date broadband position as the site
progresses.  The proposed re-wording of the condition would require
that prior to the commencement of each phase (that would be identified
in discharging Condition 2) the necessary timetable and details of the
high speed fibre broadband be provided.  The proposals would still
comply with policy IT1 of the local development plan.  In updating the
condition the term ‘high speed fibre broadband’ is replaced by
superfast broadband. 
Amendment to Condition 9 
8.9 Similarly to condition 7 above, the proposed changes to condition 9
would require details of electric vehicle charging/parking to be provided
prior to the commencement of each individual phase of development
rather than for the entire site in one submission.  The proposed
amendment, with minor adjustments, would be appropriate and still
comply with TRAN5 of the local development plan.  This phase by
phase approach means that a higher level of provision can be secured
as part of the later phases of development when it is anticipated the
levels of electric car ownership would be at a higher level than they are
at present. 
Requirement for a new Planning Obligation 
8.10 The 17/00559/S42 grant of planning permission was subject to a
Section 75 legal agreement to secure developer contributions towards
the Borders Railway.  It is proposed to require an amended legal
agreement to ensure the agreed financial position is protected. 
8.11 Although the application is a ‘Section 42 application’ it is a planning
application which has to be assessed in accordance with Section 37(2)
of the Town and Country Planning (Scotland) Act (1997), which states
“in dealing with such an application the authority shall have regard to
the provisions of the development plan, so far as material to the
application, and to any other material considerations”. 
8.12 The appropriate procedural requirements are set out in Circular 3/2013:
Development Management Procedures which confirms that a Section
42 is a new permission and that if permission is granted it should be
subject to the conclusion of any appropriate planning obligation to
secure developer contributions. 
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Other Conditions 
8.13 Condition 12 of the 17/00559/S42 permission sought to clarify that the
original indicative site plan submitted under the 07/00556/OUT
application was not approved.  Considering that a further indicative site
plan has been submitted as part of the current planning application, it is
prudent to update that condition confirming that the more recent
masterplan is also not approved under any grant of planning
permission.  The detailed layout of the site will be subject to separate
applications. 
8.14 Following the requirement to impose a duration of planning permission
condition (as reported to the Committee at its meeting of October 2022)
the comparable condition number of the conditions amended as set out
above, may not align with the new conditions proposed below. 
9 RECOMMENDATION 
9.1 It is recommended that planning permission in principle be granted for
the following reason: 
The proposed development site is identified as being part of the
Council’s safeguarded/committed economic land supply within the
Midlothian Local Development Plan 2017 and as such there is a
presumption in favour of the proposed development. This presumption
in favour of development is not outweighed by any other material
considerations or the proposed amendment of conditions. 
Subject to:
i. the prior signing of a legal agreement to secure contributions
towards public transport. The legal agreement shall be
concluded within six months.  If the agreement is not concluded
timeously the application will be refused; and 
ii. the following conditions: 
1. The development to which this permission relates shall
commence not later than the expiration of five years beginning
with the date of this permission. 
Reason: To accord with the provisions of Section 59(2) of the
Town and Country Planning (Scotland) Act 1997 (as amended by
the Planning (Scotland) Act 2019). 
2. Details of the phasing of the development shall be submitted to
the planning authority for approval, and no work shall commence
on site until the phasing scheme has been approved in writing.
Following approval, the development shall be implemented in
accordance with the approved scheme. 
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Reason: To ensure the development is phased to mitigate the
impact of construction on future users of the buildings, existing
local residents and those visiting the development site. 
3. Development shall not begin on any individual phase of
development (identified in compliance with condition 2) until an
application for approval of matters specified in conditions for a
scheme of hard and soft landscaping works for the corresponding
phase of development has been submitted to and approved in
writing by the planning authority. Details of the scheme shall
include: 
a. existing and finished ground levels and floor levels for all
buildings, open space and roads in relation to a fixed datum;
b. existing trees, landscaping features and vegetation to be
retained; removed, protected during development and in the
case of damage, restored; 
c. proposed new planting in communal areas and open space,
including trees, shrubs, hedging, wildflowers and grassed
areas; 
d. location and design of any proposed walls, fences and
gates, including those surrounding bin stores or any other
ancillary structures; 
e. schedule of plants to comprise species, plant sizes and
proposed numbers/density;
f. programme for completion and subsequent maintenance of
all soft and hard landscaping. The landscaping in the open
spaces shall be completed prior to the buildings on adjoining
plots being occupied. Any tree felling or vegetation removal
proposed as part of the landscaping scheme shall take place
out with the bird breeding season (March-August); 
g. drainage details, watercourse diversions, flood prevention
measures and sustainable urban drainage systems to
manage water runoff; 
h. proposed car park configuration and surfacing; 
i. proposed footpaths and cycle paths (designed to be
unsuitable for motor bike use); 
j. proposed cycle parking facilities; 
k. proposed woodland management plan for any existing, to be
retained, and proposed woodland; and, 
l. details of existing and proposed services, including water,
gas, electric, telephone and community heating. 
All hard and soft landscaping shall be carried out in accordance
with the scheme approved in writing by the planning authority as
the programme for completion and subsequent maintenance (part
f). Thereafter any trees or shrubs removed, dying, becoming
seriously diseased or damaged within five years of planting shall
be replaced in the following planting season by trees/shrubs of a
similar species to those originally required. 
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Reason: To ensure the quality of the development is enhanced
by landscaping to reflect its setting in accordance with policies
DEV2, DEV5, DEV6 and DEV7 of the Midlothian Local
Development Plan 2017 and national planning guidance and
advice. 
4. Development shall not begin on an individual phase of
development (identified in compliance with condition 2) until an
application for approval of matters specified in conditions for the
siting, design and external appearance of all buildings and other
structures, including electricity substations, for the corresponding
phase of development has been submitted to and approved in
writing by the planning authority. The application shall include
samples of materials to be used on external surfaces of the
buildings; hard ground cover surfaces; means of enclosure and
ancillary structures. Development shall thereafter be carried out in
accordance with the approved details or such alternatives as may
be agreed in writing with the planning authority. 
Reason: To ensure the quality of the development is enhanced
by the use of quality materials to reflect its setting in accordance
with policies DEV2, DEV5 and DEV6 of the Midlothian Local
Development Plan 2017 and national planning guidance and
advice. 
5. Development shall not begin on an individual phase of
development (identified in compliance with condition 2) until an
application for approval of matters specified in conditions for site
access, roads, footpaths, cycle ways and transportation
movements for the corresponding phase of development has
been submitted to and approved in writing by the planning
authority. Details of the scheme shall include:
a. existing and finished ground levels for all roads and cycle
ways in relation to a fixed datum; 
b. proposed roads (including turning facilities), footpaths and
cycle ways; 
c. proposed visibility splays, traffic calming measures, lighting
and signage; 
d. proposed construction traffic access and haulage routes; 
e. a green transport plan designed to minimise the use of
private transport and to promote walking, cycling and the
use of public transport; 
f. proposed car parking and vehicle charging arrangements; 
g. an internal road layout which facilitates buses entering and
leaving the site in a forward facing direction; 
h. details of a 3 metre wide pedestrian/cycling link to be
provided to the southern edge of the site to allow for future
connectivity to adjacent residential development; and, 
i. a programme for completion for the construction of access,
roads, footpaths and cycle paths. 
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Development shall thereafter be carried out in accordance with
the approved details or such alternatives as may be agreed in
writing with the planning authority. 
Reason: To ensure the future users of the buildings, existing local
residents and those visiting the development site during the
construction process have safe and convenient access to and
from the site. 
6. Development shall not begin until an application for approval of
matters specified in conditions for works to the A7 has been
submitted to and approved in writing by the planning authority.
Details of the scheme shall include: 
a. details of the two proposed vehicular and pedestrian
accesses from the A7 (as shown on drawing nos. XX-XX-
SK-A-001 Rev.B, XX-XX-SK-A-002 Rev B and XX-XX-VIS-
A-001 Rev A) or such alternatives as may be agreed in
writing with the planning authority, including a 2 metre wide
footpath along the site frontage with the A7, traffic calming
measures, lighting and signage;
b. details of the provision of two new bus stops and shelters
provided at suitable points on the site frontage with the A7; 
c. a programme for completion for the construction of access,
roads, footpaths and cycle paths. 
Development shall thereafter be carried out in accordance with
the approved details or such alternatives as may be agreed in
writing with the planning authority. 
Reason: To ensure the future users of the buildings, existing local
residents and those visiting the development site during the
construction process have safe and convenient access to and
from the site. 
7. Development shall not begin until an application for approval of
matters specified in conditions to deal with any contamination of
the site and/or previous mineral workings has been submitted to
and approved by the planning authority. The scheme shall contain
details of the proposals to deal with any contamination and/or
previous mineral workings and include: 
a. the nature, extent and types of contamination and/or
previous mineral workings on the site; 
b. ii. measures to treat or remove contamination and/or
previous mineral workings to ensure that the site is fit for the
uses hereby approved, and that there is no risk to the wider
environment from contamination and/or previous mineral
workings originating within the site;
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c. measures to deal with contamination and/or previous
mineral workings encountered during construction work;
and, 
d. the condition of the site on completion of the specified
decontamination measures. 
Before any part of the site is occupied, the measures to
decontaminate the site shall be fully implemented as approved by
the planning authority. 
Reason: To ensure that any contamination on the site is
adequately identified and that appropriate decontamination
measures are undertaken to mitigate the identified risk to site
users and construction workers, built development on the site,
landscaped areas, and the wider environment. 
8. Development shall not begin on an individual phase of
development as identified through condition 2 until an application
for approval of matters specified in conditions setting out details,
including a timetable of implementation of superfast broadband
for that corresponding phase of development has been submitted
to and approved in writing by the planning authority. The details
shall include delivery of superfast broadband prior to occupation
of each commercial building within the individual phase of
development being proposed. The delivery of superfast
broadband shall be implemented as per the approved details. 
Reason: To ensure the quality of the development is enhanced
by the provision of appropriate digital infrastructure.   
9. Development shall not begin until an application for approval of
matters specified in conditions for a scheme of
sustainability/biodiversity for the site, including the provision of
bricks and boxes for bats and swifts throughout the development
has been submitted to and approved in writing by the planning
authority. Development shall thereafter be carried out in
accordance with the approved details or such alternatives as may
be approved in writing with the planning authority. 
Reason: To ensure the development accords with the
requirements of policy DEV5 of the Midlothian Local Development
Plan 2017. 
10. Development shall not begin on an individual phase of
development as identified through condition 1 until an application
for approval of matters specified in conditions for the provision
and use of electric vehicle charging stations for that
corresponding phase has been submitted to and approved in
writing by the planning authority. Development shall thereafter be
carried out in accordance with the approved details or such
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alternatives as may be approved in writing with the planning
authority. 
Reason: To ensure the development accords with the
requirements of policy TRAN5 of the Midlothian Local
Development Plan 2017. 
11. Development shall not begin until an application for approval of
matters specified in conditions for a scheme setting out the scope
and feasibility of a community heating scheme for the
development hereby approved and; if practicable, other
neighbouring developments/sites, in accordance with policy
NRG6 of the Midlothian Local Development Plan, shall be
submitted for the prior written approval of the planning authority. 
12. No commercial building on the site shall be occupied until a
community heating scheme for the site and; if practicable, other
neighbouring developments/sites, is approved in writing by the
planning authority. The approved scheme shall be implemented in
accordance with a phasing scheme also to be agreed in writing in
advance by the Planning Authority. There shall be no variation
therefrom unless with the prior written approval of the planning
authority. 
Reason for conditions 11 and 12: To ensure the provision of a
community heating system for the site to accord with the
requirements of policy NRG6 of Midlothian Local Development
Plan 2017 and in order to promote sustainable development. 
13. The details of the development delineated on the indicative plan,
dated May 2007, originally submitted with planning application
07/00556/OUT, or 22/00559/S42 (Indicative Schematic
Masterplan - ref: (2-) 001) are not approved. 
Reason: The planning permission is in principle only and the
details shown on the layout plan are for illustrative purposes only
and do not form part of the planning permission in principle. 
14. No overhead wires, cables or telecommunication masts shall be
introduced onto the site without the prior written approval of the
planning authority. 
Reason: To ensure that the appearance of the development is
not spoiled by over-head power lines, wires and
telecommunication masts. 
15. The use of the buildings erected on the site shall be for uses
within Class 4 (Business) and Class 5 (General Industrial) of the
Town and Country Planning (Use Classes) (Scotland) Order 1997
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or equivalent in any subsequent amendment or replacement
order, unless otherwise approved by the planning authority. 
Reason: To ensure that the uses of the buildings are for the
purposes applied for in order to meet economic land
requirements. 
16. There shall be no external storage of equipment, packaging,
waste or other items on the site and no industrial process or work
shall be undertaken out with the buildings unless approved by the
planning authority. 
Reason: In the interest of visual amenity. 
17. Development shall not begin until an investigation on badger and
bat activity/presence is undertaken by a qualified ecologist and
any mitigation measures identified implemented in accordance
with details to be submitted and approved in writing by the
planning authority. The investigation shall be carried out within the
six months prior to development commencing. 
Reason: In the interests of safeguarding badgers and bats and to
ensure that an up to date understanding of these species on the
site is available prior to development commencing. 
18. Development shall not begin on an individual phase of
development (identified in compliance with condition 2) until an
application for approval of matters specified in conditions for a
Construction Environment Management Plan (CEMP) has been
submitted to and approved in writing by the planning authority.
The CEMP shall include: 
a. Details of a separate construction access;
b. signage for construction traffic, pedestrians and other users
of the site;
c. controls on the arrival and departure times for construction
vehicles, delivery vehicles and for site workers (to avoid
school arrival/departure times);
d. details of piling methods (if employed);
e. details of any earthworks;
f. control of emissions strategy;
g. a dust management plan strategy;
h. waste management and disposal of material strategy; 
i. temporary construction drainage details / SUDS;
j. a community liaison representative will be identified to deal
with the provision of information on the development to the
local community and to deal with any complaints regarding
construction on the site;
k. prevention of mud/debris being deposited on the public
highway;
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Page 53

l. material and hazardous material storage and removal; and
m. controls on construction, engineering or any other operations
or the delivery of plant, machinery and materials (to take
place between 0700 to 1900hrs Monday to Friday and 0800
to 1300hrs on Saturdays). 
Development shall thereafter be carried out in accordance with
the approved details or such alternatives as may be approved in
writing with the planning authority. 
Reason: In order to control the construction activity on the site,
ensure environmental impact during the construction period is
acceptable and to ensure appropriate mitigation is in place. 
Peter Arnsdorf
Planning, Sustainable Growth and Investment Manager 
Date:    20 December 2022 
Application No:    22/00559/S42
Applicant:   Omnivale Ltd
Agent:              Andrew McCafferty Associates
Validation Date:  02/08/2022
Contact Person:  Hugh Shepherd 
Email:    hugh.shepherd@midlothian.gov.uk
Background Papers: Planning application 07/00556/OUT and
17/00559/S42 and 15/00045/PPP 
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File No.
1:5,000Scale:
Reproduced from the Ordnance Survey map with the permission of the
controller of Her Majesty's Stationary Office. Crown copyright reserved.
Unauthorised reproduction infringes Crown copyright and may lead to
prosecution or civil  proceedings
Midlothian Council Licence No. 100023416 (2018) ±
Midlothian Council
Fairfield House
8 Lothian Road
Dalkeith
EH22 3AA
Education, Economy
& Communities Amend Conditions of 17/00559/S42
Land South West of Newtonloan Toll, Gorebridge
22/00588/S42
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