Democracy Spraffa

Agenda Document Pack - Planning Committee - 12/09/2023

Midlothian Council · 12 September 2023
Back to Planning Committee — 12 September 2023 and its agenda

Text extracted from the council's PDF. Layout and reading order may differ from the original.

Original council PDF · Download plain text

Page 1

Notice of Meeting and Agenda 
Planning Committee 
Venue:  Council Chambers/Hybrid, 
Midlothian House, Dalkeith, EH22 1DN 
Date:  Tuesday, 12 September 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 
Page 1 of 80

Page 2

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 Planning Meeting of 16 May 2023 submitted for
approval
3 - 8 
5          Public Reports
5.1 Land Adjacent A68 and A720 City Bypass - Advertisement
Prosecution Report and Plans
9 - 14
5.2 10 Kirkhill Terrace, Gorebridge - Enforcement Notice Prosecution
Report and Appendices
.
15 - 44
5.3 Site Ec3 West Straiton Committee Report and Plan 45 - 54
5.4 Item withdrawn 
5.5 Land 100m south of Glenarch Lodge, Melville Road, Dalkeith
Committee Report and Plans
55 - 80 
6          Private Reports 
No items for discussion 
7          Date of Next Meeting 
The next meeting will be held on Tuesday 31 October 2023. 
Page 2 of 80

Page 3

Minute of Meeting 
Planning Committee 
Date Time Venue
Tuesday 16 May 2023 1.00 pm Council Chambers,
Midlothian House   
Present: 
Councillor McCall (Chair) Councillor Bowen
Councillor Cassidy Councillor Drummond
Councillor McManus Councillor Milligan
Councillor Parry Councillor Pottinger
Councillor Russell Councillor Scott
Councillor Smaill Councillor Virgo
Councillor Winchester 
In Attendance: 
Alan Turpie Legal and Governance Manager
Derek Oliver Chief Officer Place
Peter Arnsdorf Planning, Sustainable Growth and Investment Manager
Janet Ritchie Democratic Services Officer
Hannah Forbes Democratic Services Assistant 
Planning Committee
Tuesday 2023
Item No: 4.1 
Page 3 of 80

Page 4

1. Apologies
Apologies for absence were received from Councillor Alexander, Councillor
Curran, Councillor Imrie, Councillor McEwan and Councillor McKenzie.
In the absence of the Chair, Councillor Parry, seconded by Councillor Scott
nominated Councillor McCall to Chair this meeting. 
2. Order of Business
The order of business was as set out in the Agenda.
3. Declarations of interest 
None 
4. Minutes of Previous Meetings 
The minute of the meeting of 28 March 2023 was submitted and approved as a
correct record subject to the following amendment, Councillors McManus and
Winchester had submitted apologies and were not in attendance. 
5. Reports 
Agenda No Report Title Submitted by:
5.1 Discretionary Charging for the Planning Service  Chief Officer Place
Outline of report and summary of discussion
The purpose of the report was to inform the Committee of The Town and Country
Planning (Fees for Applications) (Scotland) Regulations 2022, which came into
effect on 1 April 2022, and to seek approval for new Planning Service discretionary
fees to be applied for services and a surcharge to be applied to retrospective
planning applications. 
The Town and Country Planning (Fees for Applications) (Scotland) Regulations
2022, which came into effect on 1 April 2022, increased the fees which were
required in connection with planning applications and introduced the opportunity to
apply discretionary charging for services provided by the planning authority. 
At its meeting on 21 March 2023 the Council agreed to introduce discretionary
charging for the Planning Service. The discretionary charging for the Planning
and Building Services was estimated to generate £16,000 for 2023/24
(£10,000 of which will be from the Planning Service). 
The Planning, Sustainable Growth and Investment Manager in responding to a
question raised regarding the surcharge for retrospective planning applications
advised that the surcharge of 25% was set and they were unable to charge any
more than this.  Also raised was Developer Contributions and it was noted that this
Page 4 of 80

Page 5

was under review and will be discussed with Elected Members as part of  the
MLDP2 workshops.
Decision
The Planning Committee approved the Planning Fees Charter.
Action
The Planning, Sustainable Growth and Investment Service Manager 
Agenda No Report Title Submitted by:
5.2 Elected Member Workshops on National
Planning Framework No. 4 And Midlothian
Local Development Plan 2 and an Update
on the Engagement
Chief Officer Place
Outline of report and summary of discussion
The purpose of this report was to set out the date for the upcoming Elected
Member workshops on National Planning Framework No.4 (NPF4) and the
Midlothian Local Development Plan 2 (MLDP2). The report also provides an update
on MLDP2 work streams and seeks approval of an Engagement Plan. 
At its meeting of 28 February 2023 the Committee considered a report on the
National Planning Framework No.4 (NPF4) and formally launched its review of its
local development plan in accordance with the indicative timescale as detailed in
the report. 
Following the Committee’s decision on the 28 February 2023 the formal
commencement of MLDP2 has been undertaken in accordance with stage 1 of the
timeline and invitations to community groups to prepare Local Place Plans in
accordance with stage 2 of the timeline has been undertaken. The Planning
Service is now undertaking widespread engagement to inform the production of
MLDP2 in accordance with stage 3 of the timeline. The plan for this engagement is
set out in an Engagement Plan attached to this report as Appendix A.
Decision 
The Planning Committee: 
a) Noted the details of the Elected Member workshops arranged with regards
to NPF4 AND MLDP2; 
b) Approved the MLDP2 Engagement Plan (Appendix A) and 
c) Authorised the Planning, Sustainable Growth and Investment Service
Manager to update the MLDP2 Engagement Plan as and when necessary. 
Action
The Planning, Sustainable Growth and Investment Manager
Page 5 of 80

Page 6

Agenda No Report Title Submitted by:
5.3 Tree Preservation Order (1 of 2023) at land at
the Kiln (Kiln Cottage), Quarrrybank, Cousland
and land at Northfield Farm, Cousland
Chief Officer Place
Outline of report and summary of discussion
This report sought the Committee’s approval to confirm a Tree Preservation
Order (TPO) 1 of 2023 issued on 25 January 2023 for twelve individual trees (T1 –
T12) and four groups of trees (G1 to G4) at land at The Kiln (Kiln Cottage),
Quarrybank, Cousland. The report also sought the Committee’s approval to amend
the TPO. 
At its meeting of 10 January 2023 the Committee determined to issue a TPO
regarding twelve individual trees (T1 – T12) and four groups of trees (G1 to G4) at
land at The Kiln (Kiln Cottage), Quarrybank, Cousland.  The TPO came into effect
on 25 January 2023 and continues in force for six months (until 25 July 2023) or
until the Order is ‘confirmed’, which is the process of making the TPO permanent
(until it is removed). 
Following the service of the TPO the landowners were given the opportunity to
make representation.  Three representations were received as set out in Section 3. 
In response to the consultation process and the approved works to trees
application reference it is proposed to amend the TPO as set out in Section 3.11. 
There followed a brief discussion regarding the use of drones to provide better
pictures and videos and Mr Oliver agreed to bring back a report on the use of
drones, the training required and also the additional resource required.
Decision
The Planning Committee: 
a)  Confirmed the Tree Preservation Order (1 of 2023) as modified for eight 
individual trees (T1 – T8) and four groups of trees (G1 to G4) at land at 
The Kiln, Quarrybank Cousland and land at Northfield Farm, Cousland; 
and
b)  Instructed the Planning, Sustainable Growth and Investment Service
Manager to carry out the necessary procedures, following confirmation
and endorsement of a tree preservation order, that are required by the
Town and Country Planning (Scotland) Act 1997, as amended by the
Planning etc. (Scotland) Act 2006 and the Town and Country Planning
(Tree Preservation Order and Trees in Conservation Areas) (Scotland)
Regulations 2010.
Action
Planning, Sustainable Growth and Investment Manager 
Page 6 of 80

Page 7

Agenda No Report Title Submitted by:
5.4 Pre-Application Report - Erection of Community
Education Campus and Associated Works at
Mayfield Nursery School (23/00245/PAC)
Chief Officer Place
Outline of report and summary of discussion
The purpose of this report was to advise the Committee of the submission of a
Proposal of Application Notice (PAN) and corresponding pre application
consultation for the demolition of existing buildings (Mayfield Nursey School, Saint
Luke’s RC School and Mayfield Primary School) and erection of new community
campus comprising denominational and non-denominational primary school,
additional support needs (ASN), nursery with associated sports pitches, parking
and roadways and refuse store at Mayfield Nursery School, Stone Avenue,
Mayfield. 
The pre-application consultation was 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. 
Elected Members welcomed this development but raised their concerns with
regards to construction traffic and highway issues and drop off points that will arise
once the development is completed. The Planning and Sustainable Growth and
Investment Manager noted the comments made and would take back to the
Developers.
Decision
The Planning Committee noted:
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.
Action
The Planning, Sustainable Growth and Investment Manager 
6. Private Reports 
No items for discussion 
7. Date of Next Meeting 
The next meeting will be held on Tuesday 13 June 2023 at 1.00pm 
The meeting terminated at 13.25 pm
Page 7 of 80

Page 8

Page 8 of 80

Page 9

PLANNING COMMITTEE
TUESDAY 12 SEPTEMBER 2023
ITEM NO 4.1
THE UNAUTHORISED DISPLAY OF AN ADVERTISEMENT THAT
REQUIRES EXPRESS CONSENT ON LAND ADJOINING THE A68 SLIP
ROAD/A720 CITY BYPASS
Report by Chief Officer Place
1 REPORT SUMMARY AND RECOMMENDATION
1.1 This report relates to the display of an unauthorised hoarding
advertisement on land within the designated greenbelt adjoining
the A68/A720 (on) slip road.  The displaying of an advertisement
that requires express consent without such consent is an offence.
1.2 This report recommends that the Committee instruct the Planning,
Sustainable Growth and Investment Manager to refer the case to
the Crown Office and Procurator Fiscal Service for consideration
to be given to prosecutorial action in relation to the parties who
have displayed an advertisement without expressed consent,
pursuant to Section 186 of the Town and Country Planning
(Scotland) Act 1997 (by the Planning etc. (Scotland) Act 2006 and
the Planning (Scotland) Act 2019).  The maximum penalty on
successful prosecution is a fine of up to £5,000 per offence plus
£500 per day for a continuing offence after conviction. 
2 BACKGROUND
2.1 The site the subject of this report is within open countryside and is
designated greenbelt.  The advertisement in question (a large
hoarding) adjoins the point where the A68 on slip road joins the A720
approaching the Sheriffhall junction.
2.2 The Town and Country Planning (Control of Advertisements)
(Scotland) Regulations 1984 sets out that various categories of
advertisements that require express advertisement consent - the
display of such an advertisement is subject to an application being
made to, and assessed by, the local planning authority and approved
subject to relevant conditions.  Town and Country Planning (Scotland)
Act 1997 provides that if a person displays an advert in contravention
of the regulations, they shall be guilty of an offence.
Page 9 of 80

Page 10

2.3 In assessing an application for express advertisement consent the local
planning authority may only consider two issues: amenity and public
safety.  The 1984 regulations provide: 
When exercising such powers, a planning authority— 
(a) shall, in the interests of amenity, determine the suitability of the use
of a site for the display of advertisements in the light of the general
characteristics of the locality, including the presence of any feature
of historic, architectural, cultural or similar interest; and when
assessing the general characteristics of the locality the authority
may disregard any advertisements being displayed therein; and 
(b) shall, in the interests of public safety, have regard to the safety of
persons who may use any road, railway, waterway (including any
coastal waters), dock, harbour, or airfield affected or likely to be
affected by any display of advertisements; and shall in particular
consider whether any such display is likely to obscure, or hinder the
ready interpretation of, any road traffic sign, railway signal, or aid to
navigation by water or air. 
2.4 With regard the advertisement the subject of this report, no application
has been made for express consent and the advertisement has been in
place for a number of months without being removed.  As other local
authorities have experienced, such unauthorised advertisements can
proliferate close to the strategic road network if action is not taken.
Over recent months the planning enforcement function have addressed
a number of such unauthorised advertisements alongside the A720
City Bypass and secured their removal.  It is noted that earlier in 2023
at a different site in the open countryside adjoining a major road in
Midlothian the Council took formal enforcement action against the
same advertiser that is the subject of this report – the operator has
been asked to remove the advert and has failed to do so. 
2.5 In relation to the two matters to be assessed by the local planning
authority with regard an advertisement:
• In relation to amenity, the site is in the countryside/greenbelt which
affords the land a high level of protection in terms of national and
local planning policy.  The erected advertisement, with no
locational requirement, is incongruous and distracts from its setting
whilst also introducing a commercial sporadic unplanned form to
the locality.
• In terms of public safety, it is considered that the advertisement,
situated at a junction of one of the busiest parts of the strategic
road network in Scotland is highly likely to provide a situation
detrimental to highway safety as a potential distraction to motorist
and therefore unacceptable. 
Page 10 of 80

Page 11

3 THE LEGISLATIVE POSITION 
3.1  Section 182 of the Town and Country Planning (Scotland) Act 1997
provides that; regulations (The Town and Country Planning (Control of
Advertisements) (Scotland) Regulations 1984 which sets out which
advertisements required express consent) shall make provision for
restricting or regulating the display of advertisements so far as appears
to the Secretary of State to be expedient in the interests of amenity or
public safety.  Section 186 of the Town and Country Planning
(Scotland) Act 1997 provides that if any person displays an
advertisement in contravention of the regulations they shall be guilty of
an offence and liable on summary conviction to a fine of such an
amount as may be prescribed, not exceeding level 5 (currently £5,000)
on the standard scale and, in the case of a continuing offence, one-
tenth of level 5 on the standard scale for each day during which the
offence continues after conviction. 
3.2 In Scotland the Crown Office and Procurator Fiscal Service (COPFS)
are responsible for making decisions about prosecutorial actions.  In
the majority of instances, criminal offences are referred to COPFS by
Police Scotland.  However, other bodies who are the responsible
regulatory organisation for particular legislative areas will also refer
cases.  This includes the Health and Safety Executive, the Scottish
Environmental Protection Agency and local authorities in relation to
planning and other matters. 
4 OTHER CONSIDERATIONS 
4.1 The Scottish Government Policy on planning enforcement is contained
in Circular 10/2009: Planning Enforcement.  It includes the following
guidance that is particularly relevant to the consideration of this case: 
“Planning authorities should bear in mind the statutory time limits for
taking enforcement action and, in particular, the possibility that a
referral to the Procurator Fiscal to determine whether to initiate a
criminal prosecution may need to be made promptly in those cases
where breaches have to be prosecuted within 6 months of the date on
which the offence was committed. This is not the date of the alleged
breach of planning control but the last date of failure to comply with the
Notice requiring the breach to be remedied.” 
“The integrity of the development management process depends upon
the planning authority's readiness to take effective enforcement action
when necessary. Public respect for the development management
system is undermined if unauthorised development, which is
unacceptable on its planning merits, is allowed to proceed without any
apparent attempt by the planning authority to intervene before serious
harm to amenity results from the breach.” 
Page 11 of 80

Page 12

5.       CONCLUSION 
5.1 The responsibility of the outstanding breach of planning/advertisement
control lies with the landowners, those responsible for placing/erecting
the advertisement and those benefiting from the advert. 
5.2  It is for COPFS to make the final decision with regard prosecutorial
action against the unauthorised advertisement.  The advisement in
question requires express consent but is being displayed without the
necessary consent and is therefore unauthorised.  In relation to the two
matters that that are for the local planning authority to consider in
relation to advertisement - public safety and amenity, in relation to both
the advertisement in question is considered to give rise to
unacceptable harm given its location in open countryside/greenbelt and
at the junction of two trunk roads.  Despite the Council requesting the
removal of the advert, it remains in situ.  As noted earlier the displaying
of an advertisement that requires express consent without such
consent is an offence.  Therefore, having regard to the guidance
provided by Scottish Minsters in Circular 10/2009, the serious nature of
the breach of planning control and the Council’s responsibility to uphold
confidence and integrity in the planning system and the rule of law, it is
considered to be in the public interest for the Council to refer this case
to COPFS.  
6 RECOMMENDATION 
6.1 It is recommended that the Committee determine to instruct the
Planning, Sustainable Growth and Investment Manager (or an
alternatively appropriately appointed officer) to refer the case to the
Crown Office and Procurator Fiscal Service for consideration of
prosecutorial action pursuant to Section 186 of the Town and Country
Planning (Scotland) Act 1997 as amended. 
Peter Arnsdorf
Planning, Sustainable Growth and Investment Manager 
Date:    1 September 2023
Contact Person: Matthew Atkins, Lead Officer Planning Obligations 
matthew.atkins@midlothian.gov.uk
Attached Plan: Location plan
Appendix A:  An image of the unauthorised advert. 
Page 12 of 80

Page 13

File No.
1:2,000Scale:
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 Land adjacent to Millerhill Junction
(Slip Road Westbound)
A720 Edinburgh City Bypass
Location Plan
Page 13 of 80

Page 14

Image from Google Earth
Appendix A
Page 14 of 80

Page 15

PLANNING COMMITTEE
TUESDAY 12 SEPTEMBER 2023
ITEM NO 4.2
NON-COMPLIANCE WITH THE REQUIREMENTS OF AN ENFORCEMENT
NOTICE REGARDING THE ERECTION OF AN UNAUTHORISED
DWELLINGHOUSE AT 10 KIRKHILL TERRACE, GOREBRIDGE
Report by Chief Officer Place
1 REPORT SUMMARY AND RECOMMENDATION
1.1 This report relates to the non-compliance with the requirements of
an enforcement notice served by the Council pursuant to Section
127 of the Town and Country Planning (Scotland) Act 1997, as
amended (by the Planning etc. (Scotland) Act 2006 and the
Planning (Scotland) Act 2019), with regard the erection of a
dwellinghouse at 10 Kirkhill Terrace, Gorebridge.
1.2 The enforcement notice required the alteration of an erected
dwellinghouse to accord with a grant of planning permission, ref:
21/00833/DPP (option 1), or the demolition of the unauthorised
erected dwellinghouse and the removal of the dismantled
materials from the site (option 2).  None of these steps have been
taken, either by the enforcement notice compliance date of 20
April 2023 (option 1) or 20 June 2023 (option 2) or to date (at the
time of drafting this report).  Non-compliance with an enforcement
notice constitutes an offence. 
1.3 This report recommends that the Committee instruct the Planning,
Sustainable Growth and Investment Manager to refer the case to
the Crown Office and Procurator Fiscal Service for consideration
to be given to prosecutorial action in relation to the parties who
have breached the enforcement notice, pursuant to Section 136 of
the Town and Country Planning (Scotland) Act 1997.  The
maximum penalty on successful prosecution is a fine of up to
£50,000 per offence. 
2 BACKGROUND
2.1 On 12 February 2018 planning permission was granted for the erection
of a dwellinghouse at 10 Kirkhill Terrace, Gorebridge (ref:
18/00011/DPP).  The proposal was to replace a previously demolished
dwellinghouse located on the site.  However, it became apparent
during the construction process that the new building being erected did
Page 15 of 80

Page 16

not accord with the grant of planning permission (18/00011/DPP) and
as such was unauthorised. 
2.2 A retrospective planning application (19/01025/DPP) for the erection of
dwellinghouse, at 10 Kirkhill Terrace, Gorebridge was refused 27
January 2020 and a subsequent notice of review was dismissed by the
Local Review Body (LRB) at its meeting of 27 October 2020.  The
planning application was refused, and subsequent review dismissed for
the following reasons: 
As a result of its size, massing, floor area and architectural detailing the
proposed dwellinghouse is not of sufficient good design, being neither
of a traditional design nor of a high-quality contemporary design. The
proposed dwellinghouse would not complement or enhance the
character of the area, nor would the proposed materials. This is
contrary to policies DEV2 and DEV6 of the adopted Midlothian Local
Development Plan 2017. In addition, the lack of a high-quality design-
led approach is contrary to the terms of the Scottish Planning Policy. 
2.3 Despite the refusal of planning permission and the LRB decision to
dismiss the review the property owner has not taken action to remedy
the breach of planning control and the unauthorised building remains in
situ – furthermore additional works to the building were undertaken
during the assessment of the 2019 application (the insertion of a large
front dormer) resulting in a structure which does not even reflect the
plans submitted as part of refused planning application 19/01025/DPP. 
As such planning contravention notices were served on the landowners
- these notices were served pursuant to Section 136 of the Town and
Country Planning (Scotland) Act 1997, as amended.  The notices were
issued as a preliminary step to serving an enforcement notice, pursuant
to Section 127 of the same legislation and are a legal process to
secure information from the recipients of the notice. 
2.4 Subsequently, negotiations between the applicant, their agents and
planning officers resulted in an amended planning application being
submitted on 11 October 2021 (reference 21/00833/DPP) for the
erection of dwellinghouse (amendment to design approved in terms of
planning permission 18/00011/DPP).  Planning permission was
approved for the amended design on 16 December 2021.  The
approved plans reflect some parts of the dwellinghouse as built,
however, large parts of the roof design of the as built dwellinghouse are
at variance with the approved amended plans and significant alteration
works are required to implement this permission, specifically, a large
area of hipped roofing has been formed at both ends of the
dwellinghouse located above the full extent of each integral garage. 
Those particular aspects remain unacceptable in planning terms and
need removal. 
2.5 In February 2022 the applicants were provided with a voluntary six-
month period to remedy the breach of planning control.  No steps were
Page 16 of 80

Page 17

taken to remedy the breach and on 18 November 2022 the Council
served a planning enforcement notice pursuant to Section 127 of the
Town and Country Planning (Scotland) Act 1997 on the landowner. 
The notice set out the steps required to remedy the breach of planning
control and the compliance period for doing so.  The steps required
were: 
(1) Remove the unauthorised works referred to in Part 4(a) of this
notice and re-form both areas such that they entirely match the
integral flat roof garage details shown on both approved plans
identified in Part 4(a) and attached to this notice (effectively
implement planning permission 21/00833/DPP); or alternatively 
(2) Demolish the dwellinghouse subject of this notice and entirely
remove all demolished materials from the land. 
2.6 No valid appeal against the enforcement notice was submitted to the
Scottish Ministers within the required prescribed period.  Whilst an
ostensible attempt was made by the applicants to lodge an appeal
before the time limit for submitting an appeal, the Scottish Ministers
ruled that it had been submitted out of time and therefore did not
constitute a valid appeal.  Section134 of the 1997 Act provides the
validity of an enforcement notice shall not be questioned in any
proceedings whatsoever on any of the grounds specified by Section
130 (the different potential grounds for appealing an enforcement
notice) except by an appeal under that section.  No valid appeal was
submitted therefore pursuant to Section 134 of the 1997 Act the
enforcement notice is a valid notice. 
2.7 The enforcement notice required the landowner to have either modified
the building in order that it reflected the approved plans pursuant to
21/00833/DPP by 20 April 2023, or alternatively, have demolished the
building by 20 June 2023 (given that it is an unauthorised building and
does not have planning permissions).  Following a site inspection in
July 2023 it was identified that there had been no compliance with
either of the notice requirements and as a consequence the
landowners have been formally advised (by recorded delivery) of the
consequences of non-compliance including reporting the matter to the
Committee seeking authorisation to take prosecutorial action. 
2.8 Planning permission 18/00011/DPP was not implemented and has
lapsed.  Planning permission 21/00833/DPP has not been implemented
and will expire on 15 December 2024 if not lawfully commenced prior to
this date - at this time no such commencement has taken place.  It is
worth reinforcing that as identified above the building that has been
erected is wholly unauthorised and does not have planning permission.
It is considered by officers that this case is at the particularly serious
end of the spectrum in terms of breaches of planning control.  The
applicants had obtained planning permission for a house
(18/00011/DPP) but then proceeded to build a wholly different building
Page 17 of 80

Page 18

which is unauthorised.  Furthermore, it has been determined by both
officers through the scheme of delegation and elected members
through the Local Review Body to be unacceptable (the planning
assessment of the development is not changed by the adoption of
National Planning Framework 4).  The Council has served a valid
enforcement notice to remedy this matter, no valid appeal has been
submitted and no attempt has been made by the landowner to comply
with the enforcement notice. 
2.9 Although not material to the planning or planning enforcement
assessment of this case it is worth noting the building warrant position
for completeness.  A separate building warrant application for the
erection of a dwellinghouse was submitted in 2018 to assess the
structural integrity of the building – a warrant was issued in 2019, but
not for the house as built (the landowner built a structure different that
proposed in the warrant application).  This application was assessed by
the Council’s Building Standards Service against building regulations
and technical guidance (not planning regulations and guidance).  The
building warrant process ensures that buildings are safe, sustainable
and efficient.  By contrast, the aforementioned planning applications for
the erection of the dwellinghouse required to be assessed in terms of
its visual impact, scale, design, materials, impact of neighbouring
residential amenity and compliance with relevant planning policies.  It is
important to note that these are two separate regulatory regimes that
operate under entirely different sets of legislation.  It is therefore
possible for a building warrant to be granted and express planning
permission to be refused, or vice-versa.  The responsibility for ensuring
that building warrant plans are consistent with planning permission
plans rests with an applicant(s) and their agent(s).  In this particular
case, an amendment to the originally granted building warrant has
been submitted to try and match the proposed dwellinghouse design to
that which is the subject of planning permission 21/00833/DPP, but at
present this warrant application remains undetermined as the
submission is technically incomplete.  The building as constructed does
not have a building warrant and cannot be occupied. 
3 THE LEGISLATIVE POSITION 
3.1  It is not a criminal offence for development to take place without the
requisite planning permission, but it is an offence to fail to comply with
an enforcement notice.  There is a 6 month period from the date of the
offence occurring (that is the date by which the notice should have
been complied with, not the date from which the breach of planning
control occurred) in which a prosecution could be potentially brought. 
3.2 In Scotland the Crown Office and Procurator Fiscal Service (COPFS)
are responsible for making decisions about prosecutorial actions.  In
the majority of instances, criminal offences are referred to COPFS by
Police Scotland.  However, other bodies who are the responsible
regulatory organisation for particular legislative areas will also refer
Page 18 of 80

Page 19

cases.  This includes the Health and Safety Executive, the Scottish
Environmental Protection Agency and local authorities in relation to
planning and other matters. 
3.3 It should be noted that failure to comply with an enforcement notice is
not only an offence, but also a continuing offence should a prosecution
be successfully brought, a conviction secured, and the enforcement
notice requirements remain outstanding.  For example, if non-
compliance with the enforcement notice requirements continued for a
further month after conviction that would be a further 31/30 offences
occurring which would bring further potential implications for a
defendant in terms of further potential convictions, criminal records and
levels of fines. 
3.4 The Town and Country Planning (Scotland) 1997 Act provides that “In
determining the amount of any fine to be imposed on a person
convicted of an offence under this section, the court shall in particular
have regard to any financial benefit which has accrued or appears
likely to accrue to him in consequence of the offence” 
3.5 The failure to comply with an enforcement notice is clearly regarded as
a serious matter and understandably so by the Scottish Ministers
because of its implications for the integrity of the planning system and
indeed in relation to the upholding of the rule of law.  The Planning
(Scotland) Act 2019 which has now been enacted specifically provided
for the increasing of fines for a number of enforcement related matters. 
In relation to enforcement notices the level of fine on successful
prosecution has increased from a maximum of £20,000 to £50,000.   
4 OTHER CONSIDERATIONS 
4.1 The Scottish Government Policy on planning enforcement is contained
in Circular 10/2009: Planning Enforcement.  It includes the following
guidance that is particularly relevant to the consideration of this case: 
“Planning authorities should bear in mind the statutory time limits for
taking enforcement action and, in particular, the possibility that a
referral to the Procurator Fiscal to determine whether to initiate a
criminal prosecution may need to be made promptly in those cases
where breaches have to be prosecuted within 6 months of the date on
which the offence was committed. This is not the date of the alleged
breach of planning control but the last date of failure to comply with the
Notice requiring the breach to be remedied.” 
“The integrity of the development management process depends upon
the planning authority's readiness to take effective enforcement action
when necessary. Public respect for the development management
system is undermined if unauthorised development, which is
unacceptable on its planning merits, is allowed to proceed without any
Page 19 of 80

Page 20

apparent attempt by the planning authority to intervene before serious
harm to amenity results from the breach.”
5. CONCLUSION
5.1 The responsibility of the outstanding breach of planning control lies
with the landowners who decided to erect the unauthorised building
without the benefit of planning permission.  All of the unauthorised
development which is the subject of the enforcement notice remains on
site in breach of the enforcement notice requirements.  The
unauthorised development has been the subject of public complaint.
5.2  It is for COPFS to make the final decision with regard prosecutorial
action against the non-compliance with an enforcement notice.  In this
case, unauthorised development has been carried out which does not
have the benefit of planning permission.  A planning application for the
erection of dwellinghouse, as built, (retrospective) at 10 Kirkhill
Terrace, Gorebridge was refused, and a subsequent notice of review
was dismissed by the Council’s LRB.  The Council has lawfully served
an enforcement notice in relation to unauthorised development.  The
notice has not been complied with within the period specified by the
notice.  It is an offence for an enforcement notice not to be complied
with.  Therefore, having regard to the guidance provided by Scottish
Minsters in Circular 10/2009, the serious nature of the breach of
planning control and the Council’s responsibility to uphold confidence
and integrity in the planning system and the rule of law, it is considered
to be in the public interest for the Council to refer this case to COPFS.
6 RECOMMENDATION
6.1 It is recommended that the Committee determine to instruct the
Planning, Sustainable Growth and Investment Manager (or an
alternatively appropriately appointed officer) to refer the case to the
Crown Office and Procurator Fiscal Service for consideration of
prosecutorial action pursuant to Section 136 of the Town and Country
Planning (Scotland) Act 1997 as amended.
Peter Arnsdorf
Planning, Sustainable Growth and Investment Manager
Date: 1 September 2023
Contact Person: Matthew Atkins, Lead Officer Planning Obligations
matthew.atkins@midlothian.gov.uk
Appendix A: A copy of the enforcement notice issued 18 November
2022 with regard 10 Kirkhill Terrace, Gorebridge;
Appendix B: Photographs of the unauthorised development at 10
Kirkhill Terrace, Gorebridge.
Page 20 of 80

Page 21

E/22/41
IMPORTANT
THIS COMMUNICATION AFFECTS YOUR PROPERTY
Town and Country Planning (Scotland) Act 1997, as amended
by the Planning (Scotland) Act 2019
ENFORCEMENT NOTICE
Issued by Midlothian Council        18 November 2022        
Ms. D Allan 
10 Kirkhill Terrace 
Gorebridge 
Dalkeith 
EH23 4LL
1. THIS IS A FORMAL NOTICE which is issued by the Council because it
appears that there has been a breach of planning control, under the terms of
section 123(1)(a) of the above Act, as amended, at the land described
below.  The Council considers it expedient to issue this notice, having regard
to the provisions of the development plan and to other material planning
considerations. Schedule 1 at the end of the notice contains important
information.
2. THE LAND TO WHICH THE NOTICE RELATES
Land at 10 kirkhill Terrace, Gorebridge, EH23 4LL, as shown edged in red
on the location plan attached to this notice.
3. THE MATTERS WHICH APPEAR TO CONSTITUTE THE BREACH OF
PLANNING CONTROL
Unauthorised works carried as part of an erection of a dwellinghouse on the
land referred to in Part 2 of this notice (above).  The unauthorised works
having been carried out within a period of four years prior to the date of
service of this Enforcement Notice (18 November 2022).
(IMPORTANT – CONTINUES ON NEXT PAGE)
Appendix A
Page 21 of 80

Page 22

2
E/22/41 
4. REASONS FOR ISSUING THIS NOTICE 
(a) Planning permission (PP) for the erection of a dwelliinghouse on the land
subject of this notice was granted by Midlothian Council on 12 February
2018 (Reg. No. 18/00011/DPP).  In December 2019, it became apparent
to the planning authority that a dwellinghouse being constructed on the
same land was materially different in terms of design, mass and scale to
the approved PP.  An amended planning application to reflect those
changes (Reg. No.19/01025/DPP) was refused on 27 January 2020 and
dismissed on appeal by the Council’s Local Review Body on 27 October
2020.  A further planning application - Reg. No. 21/00833/DPP: ‘Erection
of dwellinghouse (amendment to design approved in terms of planning
permission 18/00011/DPP)’ was granted subject to conditions on 16
December 2021.  However, large parts of the roof design of the as built
dwellinghouse are at variance with the approved plans for the latter PP. 
Specifically, a large area of hipped roofing has been formed at both ends
of the dwellinghouse - located above the full extent of each integral
garage.  The approved roof design at those parts of the dwellinghouse
being flat roofed, as shown on the relevant approved plans attached to
this notice.   For the avoidance of any further doubt, said approved plans
are labelled “PL(2-)005 1:100” and “PL(2-)006 1:100”.  Both plans are
also listed on the face of the PP Decision Notice (also attached).  Given
all of these considerations the currently erected dwellinghouse is
unauthorised in planning terms. 
(b) The unauthorised works referred to in Part 4 (a) of this notice (above)
add visual emphasis to the scale and mass of the approved
dwellinghouse.  The hipped roof design above each garage does not
complement or enhance the character of the area nor does it contribute
positively to the street scene or integrate with the other dwellinghouses in
the area.  These unauthorised works are detrimental to the character and
appearance of the area and are thereby contrary to Midlothian Local Plan
2017 Policy Dev 2 ‘Protecting Amenity Within the Built Up Area’.  Dev 2
states that development will not be permitted where it is likely to detract
materially from the existing character or amenity of the area.  Given all of
these considerations, the unauthorised works subject of this notice are
unacceptable in planning terms.
(c) The need to voluntarily remediate the unauthorised works subject of this
notice - by 28 June 2022 - was raised with the planning agent on 28
February 2022.  At the date of service of this notice (18 November 2022)
no remedial action has been started and the unauthorised works remain
in place in their entirety.
(a) The unauthorised works form a fundamental part of the currently erected
dwellinghouse. The continued presence of these works - without  taking
the required enforcement action to remediate that position - would
undermine the integrity and credibility of the planning, system, its
democratic processes and public trust in its outcomes
(IMPORTANT – CONTINUES ON NEXT PAGE) 
Page 22 of 80

Page 23

3
E/22/41 
5. WHAT YOU ARE REQUIRED TO DO 
(1)  Remove the unauthorised works referred to in Part 4(a) of this notice              
and re-form both areas such that they entirely match the integral flat              
roof garage details shown on both approved plans identified in Part 4(a) 
and attached to this notice, or alternatively 
(2)  Demolish the dwellinghouse subject of this notice and entirely remove 
all demolished materials from the land. 
6. TIME PERIOD FOR COMPLIANCE 
Step 5 (a) - within 4 calendar months from when this notice takes effect, namely
by 20 April 2023, or if applicable 
Step 5 (b) - within 6 calendar months from when this notice takes effect, namely
by 20 June 2023 
7. WHEN THIS NOTICE TAKES EFFECT 
This notice takes effect on 20 December 2022 unless an appeal is made
against it beforehand. 
Signed 
Matthew Atkins 
Lead Officer Planning Obligations
Midlothian Council. 
On behalf of: 
Derek Oliver 
Chief Officer - Place,
Midlothian Council. 
Date: 18 November 2022 
(IMPORTANT – CONTINUES ON NEXT PAGE)
Page 23 of 80

Page 24

4
E/22/41 
8. YOUR RIGHT OF APPEAL 
You can appeal against this notice, but any appeal must be received, or posted
in time to be received by the Scottish Ministers before 20 December 2022.  Any
other person who has an interest in the land to which this notice relates may
also appeal to the Scottish Ministers by the same date. 
Schedule 1 of this notice gives information on your Right of Appeal. 
9. WHAT HAPPENS IF YOU DO NOT APPEAL 
If you do not appeal against this enforcement notice, it will take effect on
20 December 2022 and you must then ensure that the required steps for
complying with it, for which you may be held responsible, are taken within
the period specified in the notice. Failure to comply with an enforcement
notice which has taken effect can result in prosecution or the service of a
Fixed Penalty Notice on the relevant person(s) who have not complied with
its requirements. Failure to comply with an enforcement notice which has
taken effect may also result in the Council taking direct action to correct
the breach. 
(IMPORTANT – CONTINUES ON NEXT PAGE)
Page 24 of 80

Page 25

5
E/22/41 
SCHEDULE 1 
EXPLANATORY NOTE FOR THOSE IN RECEIPT OF AN ENFORCEMENT
NOTICE 
RELEVANT LEGISLATION 
A copy of Sections 123, 124, 127-139 of the Town & Country Planning
(Scotland) Act 1997, as amended by the Planning (Scotland) Act 2019 is
attached.  You may wish to note in particular the points referred to below. 
RIGHT OF APPEAL 
If you wish to appeal against this notice, you should write to Planning and
Environmental Appeals Division, Ground Floor, Hadrian House, Callendar Business
Park, Callendar Road, Falkirk, FK1 1XR. The appeal must be received, or posted in
time to be received by the Scottish Ministers before the date on which this notice
takes effect. The Scottish Ministers have no power to consider an appeal lodged out
of time. 
The appeal, which must be made in writing, must be based on one or more of the
grounds set out in section 130 of the Town & Country Planning (Scotland) Act 1997,
as amended by the Planning (Scotland) Act 2019. If you decide to appeal you should
state the facts on which you propose to rely in support of each of the grounds of
appeal.  The grounds of appeal and the statement of facts must be submitted with
your appeal or within fourteen days of your being required to do so by the Scottish
Ministers. 
If you lodge an appeal, the enforcement notice is suspended and will not take effect
unless the appeal is withdrawn or dismissed. 
PENALTIES FOR NON-COMPLIANCE WITH AN ENFORCEMENT NOTICE 
Where an enforcement notice requires the discontinuance of a use of land or
compliance, in respect of a use of land or the carrying out of operations, with any
conditions or limitation, then any person who, without the grant of planning
permission uses the land or causes or permits it to be used, or carries out these
operations or causes or permits them to be carried out, is guilty of an offence and
liable on summary conviction to a fine not exceeding £50,000 or on conviction on
indictment to an unlimited fine.  If the use or operations are continued after
conviction, the person may be convicted of a second or subsequent offence. In
determining the amount of any fine for any convicted person, in either circumstance,
the court shall in particular have regard to any financial benefit that has accrued - or
appears likely to accrue – to any person who has committed the offence.  That
consideration will similarly apply to the level of fine imposed by the court on any
convicted person who complies with an enforcement notice requiring the removal or
alteration of a building(s) or works, in cases where the building(s) or works are
subsequently re-instated or restored at any time after the compliance date.   
(IMPORTANT – CONTINUES ON NEXT PAGE)
Page 25 of 80

Page 26

6
E/22/41 
As an alternative to prosecution the Council may serve a Fixed Penalty Notice. This
requires payment of a fine to be made within 30 days of its service, which will be
retained by them. The level of fine is £2,000 for non-compliance with an enforcement
notice. If payment is made within the first 15 days following service of a Fixed
Penalty Notice the amount to be paid to the Council is reduced to £1,500. 
DIRECT ACTION FOR NON-COMPLIANCE WITH AN ENFORCEMENT NOTICE 
If the steps required by an enforcement notice are not taken within the specified
period(s) the Council may also enter on the land, take those steps and recover the
costs involved, from the owner or lessee of the land. 
FURTHER OFFENCES 
Compliance with the terms of an enforcement notice does not discharge that notice. 
It will continue in effect and any repetition of the breach of control may incur further
penalties or may result in direct action by the Council. 
Page 26 of 80

Page 27

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 (2019)
Midlothian Council
Fairfield House
8 Lothian Road
Dalkeith
EH22 3AA
Planning Service
Place Directorate
File Ref. : E/22/41
Land at 10 Kirhill Terrace, Gorebridge
Enforcement Notice
Page 27 of 80

Page 28

Planning Permission       
Town and Country Planning (Scotland) Act 1997 
Reg. No.   21/00833/DPP 
Kenneth Reid Architects
39 Braid Farm Road
Edinburgh
EH10 6LE 
Midlothian Council, as Planning Authority, having considered the application by Ms D Allan,
10 Kirkhill Terrace, Gorebridge, EH23 4LL, which was registered on 20 October 2021, in
pursuance of their powers under the above Acts, hereby grant permission to carry out the
following proposed development: 
Erection of dwellinghouse (amendment to design approved in terms of planning
permission 18/00011/DPP) at Land At 10 Kirkhill Terrace, Gorebridge 
In accordance with the application and the following documents/drawings: 
Document/Drawing  Drawing No/Scale Dated
Location Plan, Site Plan PL(2-)001 1:1250 1:500 20.10.2021
Site Plan 1707_A_050 1:100 20.10.2021
Proposed Floor Plan PL(2-)002A 1:100 05.11.2021
Proposed Floor Plan PL(2-)003A 1:100 05.11.2021
Proposed Elevations PL(2-)005 1:100 20.10.2021
Proposed Elevations PL(2-)006 1:100 20.10.2021
Proposed Cross Section PL(2-)004A 1:200 1:100 05.11.2021
Proposed Cross Section PL(2-)007 1:100 05.11.2021 
This permission is granted for the following reason: 
The proposed development would not detract from the character, amenity or appearance of
the surrounding area or result in the loss of amenity to any surrounding properties and so
complies STRAT2, DEV2 and DEV6 of the adopted Midlothian Local Development Plan
2017. 
Subject to the following conditions: 
1. Within one month of the date of planning permission being issued, the following
details shall be submitted to and approved in writing by the Planning Authority: 
a) Details of the materials of the window frames and doors;
b) Details of the proposed external materials, including a plan showing where these
are proposed on the house hereby approved; 
c) Details of all proposed walls, fences, gates or other means of enclosure,
including position, design, dimensions and materials; and  
d) Details of all hardstanding materials. 
Reason: These details were not submitted with the original application; to ensure the
proposal is in keeping with the character and amenity of the surrounding area. 
Page 28 of 80

Page 29

2. Notwithstanding the provisions of the Town and Country Planning (General Permitted
Development) (Scotland) Order 1992 (or any Order revoking and re-enacting that
Order) no openings shall be installed on the north, south or east elevations of the
dwellinghouse hereby approved, including the roof, other than those shown on
approved drawing numbers PL(2-)005 and PL(2-)006 unless planning permission is
granted by the Planning Authority. 
Reason: In order to limit overlooking between the proposed house and the
neighbouring properties; to ensure that any new openings do not result in the loss of
privacy to either set of occupants. 
Dated       16 / 12 / 2021     
……………………………..
Duncan Robertson
Lead Officer – Local Developments, 
Fairfield House, 8 Lothian Road, Dalkeith, EH22 3ZN 
Page 29 of 80

Page 30

Any Planning Enquiries should be directed to: 
Planning and Local Authority Liaison
Direct Telephone:  01623 637 119
Email:  planningconsultation@coal.gov.uk
Website: www.gov.uk/coalauthority 
STANDING ADVICE 
The proposed development lies within a coal mining area which may contain unrecorded
coal mining related hazards.  If any coal mining feature is encountered during development,
this should be reported immediately to the Coal Authority on 0345 762 6848. 
Further information is also available on the Coal Authority website at:
www.gov.uk/government/organisations/the-coal-authority   
Standing Advice valid from 1st January 2021 until 31st December 2022
Page 30 of 80

Page 31

PLEASE NOTE
This permission does not carry with it any necessary consent or approval to the proposed development which may be
required under the Building (Scotland) Acts and Regulations or under any other Statutory Enactment. 
If the applicant is aggrieved by the decision of the planning authority to refuse permission for or approval required by a
condition in respect of the proposed development, or to grant permission or approval subject to conditions, the applicant
may require the planning authority to review the case under section 43A of the Town & Country Planning (Scotland) Act
1997 within 3 months from the date of this notice.  The notice of review should be addressed to The Planning,
Sustainable Growth and Investment  Manager, Planning, Sustainable Growth and Investment Service, Midlothian
Council, Fairfield House, 8 Lothian Road, Dalkeith, EH22 3ZN.  A notice of review form is available from the same
address and will also be made available online at www.midlothian.gov.uk 
If permission to develop land is refused or granted subject to conditions and the owner of the land claims that the land
has become incapable of reasonable beneficial use in its existing state and cannot be rendered capable of reasonably
beneficial use by the carrying out of any development which has been or would be permitted, the owner of the land  may
serve on the planning authority a purchase notice requiring the purchase of the owner of the land’s interest in the land in
accordance with Part V of the Town and Country Planning (Scotland) Act 1997. 
Duration of Planning Permission and/or Listed Building Consent
The permission hereby approved lapses on the expiration of a period of either:
a) three years from the date of this decision notice, if the permission is for  detailed planning permission (DPP) or 
listed building consent (LBC) as specified in Section 58 of the Town and Country Planning (Scotland) Act 1997
(as amended by Planning etc (Scotland) Act 2006); or
b) two years from the date of approval by the planning authority of the last  application for matters specified in
conditions to be approved if the permission is for planning permission in principle (PPP) as specified in Section
59 of the Town and Country Planning (Scotland) Act 1997 (as amended by Planning etc (Scotland) Act 2006). 
Applications for approval of matters specified in conditions shall be made to the planning authority within three years
from the date of this permission. 
Prior to any work taking place on site all pre commencement conditions attached to a grant of planning permission must
be agreed in writing with the planning authority.  Failure to do so could result in any development works taking place
being unauthorised and undertaken at your own risk and expense. 
The Felling of Trees
Where full planning permission authorises the felling of trees on a development site, no further consent is required
under the Forestry Act 1967 (as amended).  However, developers should note that any tree felling not expressly
authorised by full planning permission, and not exempted, requires a felling licence granted under the Forestry Act 1967
(as amended). 
Developers should note that any felling carried out without either a licence or other valid permission is an offence.   This
can mean, on conviction, a fine of up to £2,500 (level 4 on the standard scale) or twice the value of the trees, whichever
is higher with the conviction being recorded. 
Contact your local Forestry Commission Scotland Office if you are not certain whether exemptions apply.  You can get
an application form for a felling licence from the Forestry Commission website www.forestry.gov.uk  or any Forestry
Commission Scotland Office. 
Prior to Commencement (Notice of Initiation of Development)
Prior to the development commencing the planning authority shall be notified in writing of the expected commencement
of work date and once development on site has been completed the planning authority shall be notified of the
completion of works date in writing.  Failure to do so would be a breach of planning control under section 123(1) of the
Town and Country Planning (Scotland) Act 1997 (as amended by the Planning etc (Scotland) Act 2006).  A copy of  the
Notice of Initiation of Development is available on the Councils web site www.midlothian.gov.uk   
IMPORTANT NOTE REGARDING PUBLIC ACCESS TO INFORMATION 
Making an application
Please note that when you submit a planning application, the information will appear on the Planning Register and the
completed forms and any associated documentation will also be published on the Council’s website. 
Making comment on an application
Please note that any information, consultation response, objection or supporting letters submitted in relation to a
planning application, will be published on the Council’s website.
The planning authority will redact personal information in accordance with its redaction policy and use its discretion to
redact any comments or information it considers to be derogatory or offensive.  However, it is important to note that the
publishing of comments and views expressed in letters and reports submitted by applicants, consultees and
representors on the Council’s website, does not mean that the planning authority agrees or endorses these views, or
confirms any statements of fact to be correct. 
Page 31 of 80

Page 32

Page 32 of 80

Page 33

Page 33 of 80

Page 34

PART VI
ENFORCEMENT 
Application
Expressions used in
connection with
enforcement  123  (1)  For the purposes of this Act - 
(a) carrying out development without the required planning
permission, or   
(b) failing to comply with any condition or limitation subject to
which planning permission has been granted, or   
(c) initiating development without giving notice in accordance with
section 27A (1) of this Act, or   
(d) carrying out development without displaying a notice in
accordance with section 27C (1) of this Act   
constitutes a breach of planning control.     
(2)  For the purposes of this Act -   
(a) the issue of an enforcement notice, or     
(b) the service of a breach of condition notice,   
under this Part constitutes taking enforcement action as does the issuing
of a notice under section 33A  
(3) In this Part “planning permission” includes planning permission under
Part III of the 1947 Act and Part III of the 1972 Act.      
Time Limits 124 (1) Where there has been a breach of planning control consisting in the
carrying out without planning permission of building, engineering,
mining or other operations in, on, over or under land, no enforcement
action may be taken after the end of the period of 4 years beginning with
the date on which the operations were substantially completed.    
(2) Where there has been a breach of planning control consisting in the
change of use of any building to use as a single dwellinghouse, no
enforcement action may be taken after the end of the period of 4 years
beginning with the date of the breach.    
(3) In the case of any other breach of planning control, no enforcement
action may be taken after the end of the period of 10 years beginning
with the date of the breach.  
(4) Subsections (1) to (3) do not prevent -   
(a) the service of a breach of condition notice in respect of any
breach of planning control if an enforcement notice in respect of
the breach is in effect, or   
(b) taking further enforcement action in respect of any breach of
planning control if, during the period of 4 years ending with that
action being taken, the planning authority have taken or
purported to take enforcement action in respect of that breach.   
Enforcement Notices     
Issue of
enforcement notice
127 (1) The planning authority may issue a notice (in this Act referred to as an
“enforcement notice”) where it appears to them –   
(a) that there has been a breach of planning control, and   
(b) that it is expedient to issue the notice, having regard to the
provisions of the development plan and to any other material
considerations.  
(2) A copy of an enforcement notice shall be served -   
(a) on the owner and on the occupier of the land to which it relates,
and   
(b) on any other person having an interest in the land, being an
interest which, in the opinion of the authority, is materially
affected by the notice.
Page 34 of 80

Page 35

(3) The service of the notice shall take place -   
(a) not more than 28 days after its date of issue, and   
(b) not less than 28 days before the date specified in it as the date on
which it is to take effect.    
Contents and effect
of notice 128 (1) An enforcement notice shall state -   
(a) the matters which appear to the planning authority to constitute
the breach of planning control, and   
(b) the paragraph of section 123(1) within which, in the opinion of
the authority, the breach falls.  
(2) A notice complies with subsection (1) (a) if it enables any person on
whom a copy of it is served to know what those matters are.  
(3) An enforcement notice shall specify the steps which the authority
require to be taken, or the activities which the authority require to cease,
in order to achieve, wholly or partly, any of the following purposes.    
(4) Those purposes are –   
(a) remedying the breach by making any development comply with
the terms (including conditions and limitations) of any planning
permission which has been granted in respect of the land by
discontinuing any use of the land or by restoring the land to its
condition before the breach took place;  or     
(b) remedying any injury to amenity which has been caused by the
breach.  
(5) An enforcement notice may, for example, require -   
(a) the alteration or removal of any buildings or works,   
(b) the alteration or removal of any buildings or works,   
(c) any activity on the land not to be carried on except to the extent
specified in the notice, or   
(d) the contour of a deposit of refuse of waste materials on land to be
modified by altering the gradient or gradients of its sides.  
(6) An enforcement notice issued in respect of a breach of planning control
consisting of demolition of a building may require the construction of a
building (in this section referred to as a “replacement building") which,
subject to subsection (7) is as similar as possible to the demolished
building.      
(7) A replacement building -   
(a) must comply with any requirement imposed by or under any
enactment applicable to the construction of buildings,   
(b) may differ from the demolished building in any respect which, if
the demolished building had been altered in that respect, would
not have constituted a breach of planning control, and   
(c) must comply with any regulations made for the purposes of this
subsection (including regulations modifying paragraphs (a) and
(b) of this subsection).    
(8) An enforcement notice shall specify the date on which it is to take effect
and, subject to section 131(3), shall take effect on that date.   
(9) An enforcement notice shall specify the period for compliance with the
notice at the end of which any steps are required to have been taken or
any activities are required to have ceased, and may specify different
periods for different steps or activities.  
(10) Where different periods apply to different steps or activities, references
in this Part to the period for compliance with an enforcement notice, in
relation to any step or activity, are to the period at the end of which the
step is required to have been taken or the activity is required to have
ceased.   
(11) An enforcement notice shall specify such additional matters as may be
prescribed.
Page 35 of 80

Page 36

(12) Regulations may require every copy of an enforcement notice served
under section 127 to be accompanied by an explanatory note giving
prescribed information as to the right of appeal under section 130.  
(13) Where   
(a) an enforcement notice in respect of any breach of planning
control could have required any buildings or works to be
removed or any activity to cease, but does not do so, and     
(b) all the requirements of the notice have been complied with,   
then, so far as the notice did not so require, planning permission shall be
treated as having been granted under section 33 in respect of
development consisting of the construction of the buildings or works or,
as the case may be, the carrying out of the activities.    
(14) Where -   
(a) an enforcement notice requires the construction of a replacement
building, and   
(b) all the requirements of the notice with respect to that construction
have been complied with,   
planning permission shall be treated as having been granted under
section 33 in respect of development consisting of that construction.    
Variation and
withdrawal of
enforcement notice
129 (1) The planning authority may -   
(a) withdraw an enforcement notice issued by them, or   
(b) waive or relax any requirement of such a notice and, in
particular, may extend any period specified in accordance with
section 128(9).  
(2) The powers conferred by subsection (1) may be exercised whether or
not the notice has taken effect.  
(3) The planning authority shall, immediately after exercising the powers
conferred by subsection (1), give notice of the exercise to every person
who has been served with a copy of the enforcement notice or would, if
the notice were reissued, be served with a copy of it.  
(4) The withdrawal of an enforcement notice does not affect the power of
the planning authority to issue a further enforcement notice.    
Appeal against
enforcement notice 130 (1) A person on whom an enforcement notice is served or any other person
having an interest in the land may, at any time before the date specified
in the notice as the date on which it is to take effect, appeal to the
Secretary of State against the notice on any of the following grounds -   
(a) Repealed by 2006 Act.   
(b) that the matters which, by virtue of section 128(1)(a) have been
stated in the notice, have not occurred;     
(c) That the matters (if they occurred) do not constitute a breach of
planning control;     
(d) that, at the date when the notice was issued, no enforcement action
could be taken in respect of any breach of planning control which
may be constituted by those matters;   
(e) that copies of the enforcement notice were not served as required
by section 127;   
(f) that the steps required by the notice to be taken, or the activities
required by the notice to cease, exceed what is necessary to remedy
any breach of planning control which may be constituted by those
matters or, as the case may be, to remedy any injury to amenity
which has been caused by any such breach;   
(g) that any period specified in the notice in accordance with section
128(9) falls short of what should reasonably be allowed.  
(2) An appeal under this section shall be made -
Page 36 of 80

Page 37

(a) by giving written notice of the appeal to the Secretary of State
before the date specified in the enforcement notice as the date on
which it is to take effect, or     
(b) by sending such notice to him in a properly addressed and prepaid
letter posted to him at such time that, in the ordinary course of
post, it would be delivered to him before that date ; or   
(c) by sending such notice to them using electronic communications
at such time that, in the ordinary course of transmission, it would
be delivered to them before that date  
(3) A person who gives notice under subsection (2) shall submit to the
Secretary of State, either when giving the notice or within the prescribed
time, a statement in writing -   
(a) specifying the grounds on which he is appealing against the
enforcement notice, and   
(b) giving such further information as may be prescribed. 
Appeals: 
supplementary
provisions
131 (1) The Secretary of State may by regulations prescribe the procedure which
is to be followed on appeals under section 130 and, in particular, but
without prejudice to the generality of the foregoing provisions of this
subsection, in so prescribing may -     
(a) specify the matters on which information is to be given in a
statement under section 130(3);   
(b) require the planning authority to submit, within such time as may
be specified, a statement indicating the submissions which they
propose to put forward on the appeal;   
(c) specify the matters to be included in such a statement;   
(d) require the authority or the appellant to give such notice of an
appeal as may be specified to such persons as may be specified;   
(e) require the authority to send to the Secretary of State, within such
period from the date of the bringing of the appeal as may be
specified, a copy of the enforcement notice and a list of the persons
served with copies of it.  
(2) Repealed by 2006 Act  
(3) Where an appeal is brought under section 130 the enforcement notice
shall be of no effect pending the final determination or the withdrawal of
the appeal. 
(4) Schedule 4 applies to appeals under section 130, including appeals under
that section as applied by regulations under any other provisions of this
Act. 
Page 37 of 80

Page 38

General provisions
relating to
determination of
appeals 
132 (1) On the determination of an appeal under section 130, the Secretary of
State shall give directions for giving effect to the determination,
including, where appropriate, directions for quashing the enforcement
notice. 
(2) On such an appeal the Secretary of State may -     
(a) correct any defect, error or misdescription in the enforcement
notice, or   
(b) vary the terms of the enforcement notice,   
if he is satisfied that the correction or variation will not cause injustice to
the appellant or the planning authority.    
(3) The Secretary of State may -   
(a) dismiss an appeal if the appellant fails to comply with section
130(3) within the prescribed time, and   
(b) allow an appeal and quash the enforcement notice if the planning
authority fail to comply with any requirement imposed by virtue
of paragraph (b), (c) or (e) of section 131(1).  
(4) Where it would otherwise be a ground for determining an appeal in favour
of the appellant that a person required by section 127(2) to be served with
a copy of the enforcement notice was not served, the Secretary of State
may disregard that fact if neither the appellant nor that person has been
substantially prejudiced by the failure to serve him.     
Page 38 of 80

Page 39

Grant or
modification of
planning permission
on appeal against
enforcement notice. 
133 (1) On the determination of an appeal under section 130, the Secretary of
State may
(a) Repealed by 2006 Act
(b) Repealed by 2006 Act
(c) Repealed by 2006 Act
(d) determine whether on the date on which the appeal was made, any
existing use of the land was lawful, any operations which had been
carried out in, on, over or under the land were lawful or any matter
constituting a failure to comply with any condition or limitation
subject to which the permission was granted was lawful and, if so,
issue a certificate under section 150. 
(2) The provision of sections 150 to 153 mentioned in subsection (3) shall
apply for the purposes of subsection (1)(d) as they apply for the purposes
of section 150, but as if -
(a) any reference to an application for a certificate were a reference to
the appeal and any reference to the date of such an application
were a reference to the date on which the appeal is made, and 
(b) references to the planning authority were references to the
Secretary of State. 
(3) Those provisions are sections 150(5) to (7), 152(4) (so far as it relates to
the form of the certificate), (6) and (7) and 153. 
(4) Repealed by 2006 Act. 
(5) Repealed by 2006 Act. 
(6) Repealed by 2006 Act. 
(7) Repealed by 2006 Act. 
(8) Repealed by 2006 Act. 
(9) Repealed by 2006 Act. 
(10) Repealed by 2006 Act. 
(11) Repealed by 2006 Act. 
Validity of
enforcement notices
134 The validity of an enforcement notice shall not be questioned in any proceedings
whatsoever on any of the grounds specified in section 130(1) (b) to (e) except by
appeal under that section.
Execution and cost
of works required by
enforcement notice
135 (1) If any steps which are required by an enforcement notice to be taken have
not been taken within the compliance period, the planning authority may
-
(a) enter the land take those steps, and
(b) recover from the person who is then the owner or lessee of the
land any expenses reasonably incurred by them in doing so.
(2) If that person did not appeal to the Secretary of State although entitled to
do so, he shall not be entitled to dispute the validity of the action taken
by the planning authority under subsection (1) in accordance with the
enforcement notice.
(3) In computing the amount of the expenses which may be recovered by
them under subsection (1), a planning authority may include in that
amount such proportion of their administrative expenses as seems to
them to be appropriate.
(4) Where a copy of an enforcement notice has been served in respect of
any breach of planning control -
(a) any expenses incurred by the owner, lessee or occupier of any
land for the purpose of complying with the notice, and
(b) any sums paid by the owner or lessee of any land under
subsection (1) in respect of expenses incurred by the planning
authority in taking steps required by such a notice to be taken,
shall be recoverable from the person by whom the breach of planning
control was committed.
Page 39 of 80

Page 40

(5) If on a complaint by the owner of any land it appears to the sheriff that
the occupier of the land is preventing the owner from carrying out work
required to be carried out by an enforcement notice, the sheriff may by
warrant authorise the owner to go on to the land and carry out that work.  
(6) A planning authority taking steps under subsection (1) may sell any
materials removed by them from the land unless those materials are
claimed by the owner within three days of their removal.  
(7) After any such sale the planning authority shall pay the proceeds to the
owner less the expenses recoverable by them from him.  
(8) Where a planning authority seek, under subsection (1), to recover any
expenses from a person on the basis that he is the owner of any land,
and such person proves that -   
(a) he is receiving the rent in respect of that land merely as trustee,
tutor, curator, factor or agent of some other person, and   
(b) he has not, and since the date of the service on him of the
demand for payment has not had, in his hands on behalf of that
other person sufficient money to discharge the whole demand of
the authority,   
his liability shall be limited to the total amount of the money which he
has or has had in his hands on behalf of that other person.  
(9) A planning authority who by reason of subsection (8) have not
recovered the whole of any such expenses from a trustee, tutor, curator,
factor or agent may recover any unpaid balance from the person on
whose behalf the rent is received.  
(10) Any person who wilfully obstructs a person acting in the exercise of
powers under subsection (1) shall be guilty of an offence and liable on
summary conviction to a fine not exceeding level 3 on the standard
scale.    
(11) In this section and in sections 136, 136A, 140 and 141 any reference to
the compliance period, in relation to an enforcement notice, is a
reference to the period specified in the notice for compliance with it or
such extended period as the planning authority may allow for
compliance.  .     
Offence where
enforcement notice
not complied with
136 (1) Where, at any time after the end of the compliance period in respect of
an enforcement notice, any step required by the notice to be taken has
not been taken or any activity required by the notice to cease is being
carried on, the person who is then the owner of the land is in breach of
the notice.  
(2) Where the owner of the land is in breach of the notice he shall be guilty
of an offence.  
(3) In proceedings against any person for an offence under subsection (2), it
shall be a defence for him to show that he did everything he could be
expected to do to secure compliance with the notice.  
(4) A person who has control of or an interest in the land to which an
enforcement notice relates (other than the owner) must not carry on any
activity which is required by the notice to cease or cause or permit such
an activity to be carried on.  
(5) A person who, at any time after the end of the period for compliance
with the notice, contravenes subsection (4) shall be guilty of an offence.  
(6) An offence under subsection (2) or (5) may be charged by reference to
any day or longer period of time and a person may be convicted of a
second or subsequent offence under the subsection in question by
reference to any period of time following the preceding conviction for
such an offence.  
(7) Where -   
(a) a person charged with an offence under this section has not been
served with a copy of the enforcement notice, and   
(b) the notice is not contained in the appropriate register kept under
section 147,
Page 40 of 80

Page 41

it shall be a defence for him to show that he was not aware of the
existence of the notice.
(8) A person guilty of an offence under this section shall be liable -
(a) on summary conviction, to a fine not exceeding £50,000, and
(b) on conviction on indictment, to a fine.
(9) In determining the amount of any fine to be imposed on a person
convicted of an offence under this section, the court shall in particular
have regard to any financial benefit which has accrued or appears likely
to accrue to him in consequence of the offence.
136a Fixed penalty notice where enforcement notice not complied with
(1) Where a planning authority have reason to believe that, by virtue of
subsection
(1) of section 136, a person is in breach of an enforcement notice they
may, provided that the conditions mentioned in subsection (7) are
satisfied, serve on him a fixed penalty notice as respects that breach.
(2) The fixed penalty notice is to specify—
(a) the step specified, under subsection (3) of section 128, in the
enforcement notice which has not been taken, or
(b) the activity so specified which has not ceased.
(3) It is not competent to serve more than one fixed penalty notice in
relation to a particular step or activity.
(4) For the purposes of this section, a “fixed penalty notice” is a notice
offering the person the opportunity of discharging, by paying to the
planning authority, within the period of 30 days which immediately
follows the day on which that notice is served, a penalty of an amount
(being a prescribed amount) specified in the notice, any liability to
conviction for an offence under section 136 as respects the breach of the
enforcement notice.
(5) But if payment is made within the first 15 days of the period mentioned
in subsection (4) the amount payable is reduced by 25%.
(6) The fixed penalty notice is to identify the period mentioned in
subsection (4) and is also to state that if payment is made within the first
15 days of that period the amount payable is reduced by 25%.
(7) The conditions are that the fixed penalty notice—
(a) is served within the period of 6 months which immediately
follows the compliance period in relation to the enforcement
notice, and
(b) is not served after the person has been charged with an offence
under section 136 as respects the breach of the enforcement
notice
(8) During the period mentioned in subsection (4) it is not competent to
commence proceedings against the person for an offence under section
136 as respects that breach.
(9) If the amount (or as the case may be the reduced amount) is timeously
paid it is not competent to commence proceedings against the person for
an offence under section 136 as respects that breach.
(10) A penalty received by a planning authority by virtue of subsection (4) is
to accrue to that authority.
(11) In prescribing an amount for the purposes of subsection (4), the Scottish
Ministers may make different provision for different cases or for
different classes of case.
Effect of planning
permission etc on
enforcement or
breach of condition
notice
137 (1) Where, after the service of –
(a) a copy of an enforcement notice, or
(b) a breach of condition notice,
Page 41 of 80

Page 42

planning permission is granted for any development carried out before
the grant of that permission, the notice shall cease to have effect so far
as inconsistent with that permission.
(2) Where, after a breach of condition notice has been served, any condition
to which the notice relates is discharged, the notice shall cease to have
effect so far as it requires any person to secure compliance with the
condition in question.
(3) The fact that an enforcement notice or breach of condition notice has
wholly or partly ceased to have effect by virtue of this section shall not
affect the liability of any person for an offence in respect of a previous
failure to comply, or secure compliance, with the notice.
Enforcement notice
to have effect
against subsequent
development
138 (1) Compliance with an enforcement notice, whether in respect of –
(a) the removal or alteration of any building or works,
(b) the discontinuance of any use of land, or
(c) any other requirements contained in the notice,
shall not discharge the notice.
(2) Without prejudice to subsection (1), any provision of an enforcement
notice requiring a use of land to be discontinued shall operate as a
requirement that it shall be discontinued permanently, to the extent that
it is in contravention of Part III; and accordingly the resumption of that
use at any time after it has been discontinued in compliance with the
enforcement notice shall to that extent be in contravention of the
enforcement notice.
(3) Without prejudice to subsection (1), if any development is carried out on
land by way of reinstating or restoring buildings or works which have
been removed or altered in compliance with an enforcement notice, the
notice shall, notwithstanding that its terms are not apt for the purpose,
be deemed to apply in relation to the buildings or works as reinstated or
restored as it applied in relation to the buildings or works before they
were removed or altered.
(4) A person who, without the grant of planning permission in that behalf,
carries out any development on land by way of reinstating or restoring
buildings or works which have been removed or altered in compliance
with an enforcement notice shall be guilty of an offence, and shall be
liable on summary conviction to a fine not exceeding the statutory
maximum.
(5) In determining the amount of the fine to be imposed under subsection
(4), the court is in particular to have regard to any financial benefit
which has accrued or appears likely to accrue to the convicted person in
consequence of the activity which constituted the offence.
Power of Secretary
of State to serve
enforcement notice
139 (1) If it appears to the Secretary of State that it is expedient that an
enforcement notice should be served in respect of any land, he may
himself serve such a notice under section 127.
(2) An enforcement notice served by the Secretary of State shall have the
same effect as if it had been served by the planning authority.
(3) The Secretary of State shall not serve such a notice without consulting
the planning authority.
(4) The provisions of this Act relating to enforcement notices apply, so far
as relevant, to an enforcement notice served by the Secretary of State as
they apply to an enforcement notice served by a planning authority, but
with the substitution for any reference to the planning authority of a
reference to the Secretary of State, and any other necessary
modifications.  
Page 42 of 80

Page 43

Appendix B
Page 43 of 80

Page 44

Page 44 of 80

Page 45

PLANNING COMMITTEE
TUESDAY 12 SEPTEMBER 2023
ITEM NO 4.3
PRE - APPLICATION REPORT REGARDING A MIXED USE
DEVELOPMENT INCLUDING BUSINESS AND EMPLOYMENT USES
(CLASS 4, 5 AND 6), RESIDENTIAL (CLASS 9 AND SUI GENERIS
FLATTED ACCOMMODATION); NEIGHBOURHOOD CENTRE
INCLUDING SHOPS, FINANCIAL, PROFESSIONAL AND OTHER
SERVICES (CLASS 1A), FOOD AND DRINK (CLASS 3), ASSEMBLY AND
LEISURE (CLASS 11); TOGETHER WITH OTHER RELATED
INFRASTRUCTURE INCLUDING PARK & RIDE, ASSOCIATED WORKS
INCLUDING CAR PARKING, SERVICING, ACCESS ARRANGEMENTS,
LANDSCAPING AND PUBLIC REALM AT WEST STRAITON, LOANHEAD
(PART OF SITE EC3 AND LAND TO THE WEST OF EC3) (23/00354/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 a mixed-use development including business
and employment uses (Class 4, 5 and 6), residential (Class 9 and sui
generis flatted accommodation); neighbourhood centre including shops,
financial, professional and other services (Class 1A), food and drink
(Class 3), assembly and leisure (Class 11); together with other related
infrastructure including park and ride, associated works including car
parking, servicing, access arrangements, landscaping and public realm
at West Straiton, Loanhead (part of site Ec3 and land to the west of Ec3).
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.
Page 45 of 80

Page 46

2.2 A Proposal of Application Notice (PAN) detailing the pre application
consultation for a mixed-use development including business and
employment uses (Class 4, 5 and 6), residential (Class 9 and sui generis
flatted accommodation); neighbourhood centre including shops, financial,
professional and other services (Class 1A), food and drink (Class 3),
assembly and leisure (Class 11); together with other related
infrastructure including park & ride, associated works including car
parking, servicing, access arrangements, landscaping and public realm
at West Straiton, Loanhead (part of site Ec3 and land to the west of Ec3)
was submitted on 2 June 2023.
2.3 A previous PAN (reference 20/00803/PAC) was reported to the
Committee at its meeting of 12 January 2021.  The earlier PAN was for a
smaller area of 42.5 hectares, with the additional land in the current PAN
being located along the northern edges of the site.  The description of the
PAN was for a mixed-use development including business and
employment uses (class 4,5 and 6), residential, hotel, residential
institutions, and ancillary uses including retail, financial and professional
services, food and drink, non-residential institutions, assembly and
leisure and other infrastructure including park and ride, and associated
works.  Following the submission of the PAN the site was the subject of
an environmental impact assessment (EIA) screening request
(21/00220/SCR) and scoping request (21/00831/SCO) to determine if a
EIA was required to be submitted with any future planning application
and if so what the EIA requirements are.
2.4 As part of the pre-application consultation process for the current PAN,
two public events are scheduled to be held.  The first was on Tuesday 27
June 2023 at Loanhead Leisure Centre and the second is still to be
confirmed; these meetings were/will be advertised via the Midlothian
Advertiser and leafleting of immediate neighbours and local stakeholders
was/will be undertaken (at least 7 days prior to each event). 
Furthermore, a dedicated website has been created for the proposed
development.  Upon the conclusion of the public events the applicant
could submit a planning application for the proposal.
2.5 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 have been submitted is 26
August 2023, subject to the second public event being concluded.  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.
2.6 Copies of the pre-application notice have been sent by the prospective
applicant to the local elected members, all other elected members,
Loanhead and District Community Council, Damhead and District
Community Council, Roslin and Bilston Community Council,
Gilmerton/Inch Community Council (within the City of Edinburgh Council
Page 46 of 80

Page 47

boundary), the local Member of Parliament (MP), the local Member of
Scottish Parliament (MSP) and all Lothian Regional MSPs.   
2.7 It is reasonable for an Elected Member to attend one of the webinars
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 National Planning Framework 4
(2023) and the Midlothian Local Development Plan (2017).  Section 24(3)
of the Town and Country Planning (Scotland) Act 1997 states that where
there is an incompatibility between the provisions of the National
Planning Framework and the provisions of a local development plan
whichever of them is the later in date is to prevail.  At present this means
that where there is an incompatibility NPF4 takes precedence, this will
change when a new local development plan is adopted.  
3.3 The site measures 50.5 hectares and comprises three arable fields, five
fields of grass and scrub, and the Straiton park and ride site with its
associated structural landscaping.  The site does not include the cottages
on Straiton Road (A701).  The site is bounded to the north by the A720
Edinburgh City Bypass; to the east by the Straiton Retail Park; to the
south by Straiton Park caravan site and Straiton Bing; and to the west by
a further area of grass and scrub and a field that has been subject to
drainage improvements.  A high-pressure gas pipeline passes west to
east through the northern edge of the site. 
3.4 The site has multiple allocations within the Midlothian Local Development
Plan 2017 (MLDP).  This includes mixed use development as a strategic
employment land site within the eastern part of the site and other more
restrictive MLDP allocations within the northern, north western and
western part of the site (including green belt, prime agricultural land and
road safeguarding). 
3.5 The relevant policies of the National Planning Framework 4 (NPF4) are: 
• Policy 1 Tackling the climate and nature crises
• Policy 2 Climate mitigation and adaptation
• Policy 3 Biodiversity
• Policy 4 Natural Places
• Policy 5 Soils
• Policy 6 Forestry, woodland and trees
• Policy 7 Historic assets and places
Page 47 of 80

Page 48

• Policy 8 Green belts
• Policy 9 Brownfield, vacant and derelict land and empty buildings
• Policy 12 Zero Waste
• Policy 13 Sustainable Transport
• Policy 14 Design, quality and place
• Policy 15 Local Living and 20 minute neighbourhoods
• Policy 16 Quality homes
• Policy 18 Infrastructure first
• Policy 18 Heating and Cooling
• Policy 20 Blue and green infrastructure
• Policy 21 Play, recreation and sport
• Policy 22 Flood risk and water management
• Policy 23 Health and Safety
• Policy 24 Digital Infrastructure
• Policy 25 Community wealth building
• Policy 26 Business and industry
• Policy 27 City, town, local and commercial centres
• Policy 28 Retail
• Policy 30 Tourism
• Policy 31 Culture and creativity 
3.6 The relevant policies of the MLDP are: 
• STRAT1 – Committed development
• STRAT3 – Strategic Housing Land Allocations
• STRAT5 – Strategic Employment Land Allocations
• DEV1 – Community Identity and Coalescence
• DEV2 – Protecting Amenity within the Built-Up Area 
• DEV3 – Affordable and Specialist Housing
• DEV5 – Sustainability in New Development
• DEV6 – Layout and Design of New Development
• DEV7 – Landscaping in New Development
• DEV9 – Open Space Standards
• ECON1 – Existing Employment Locations
• TRAN1 – Sustainable Travel
• TRAN2 – Transport Network Interventions
• TRAN5 – Electric Vehicle Charging
• IT1 – Digital Infrastructure
• TCR2 – Location of New Retail and Commercial Leisure Facilities
• VIS1 – Tourist Attractions
• ENV1 – Protection of the Green Belt
• ENV2 Midlothian Green Network
• ENV4 – Prime Agricultural Land
• ENV7 – Landscape Character
• ENV9 – Flooding
• ENV10 – Water Environment 
• ENV11 – Woodland, Trees and Hedges
• ENV15 – Species and Habitat Protection and Enhancement
• ENV16 – Vacant, Derelict and Contaminated Land
Page 48 of 80

Page 49

• ENV17 – Air Quality
• ENV18 – Noise
• ENV25 – Site Assessment, Evaluation and Recording
• NRG6 – Community Heating
• WAST5 – Waste Minimisation and Recycling in New developments
• IMP1 – New Development
• IMP2 – Essential Infrastructure Required to Enable New
Development to Take Place
• IMP3 – Water and Drainage 
3.7 The views of consultees and representors will be material considerations
in the assessment of an application for the proposed development.  The
Council’s Learning Estate Strategy 2017-2047 will also be a material
consideration in the assessment of an application for the proposed
development as it includes a residential component. 
3.8 As outlined above, the site is subject to multiple allocations within the
MLDP including the following within the eastern part of the site: 
1) Mixed use development: Site Ec3 (West Straiton) - where various
site-specific requirements are sought;
2) Employment use - as a Strategic Employment Land Allocation
under Policy STRAT 5 in the MLDP; and
3) New Retail and Commercial Leisure - under Policy TCR2 in the
MLDP.   
A proposal involving mixed use development on land covered by the
above policy allocations would accord, in principle, with the
corresponding policy objectives subject to the phasing of the
development complying with delivery of the re-aligned A701. 
3.9 The northern, north western and western part of the site is covered by
the following MLDP allocations: 
1) Road safeguarding - as a transport network intervention and road
safeguarding for the realignment of the A701 under Policy TRAN 2
of the MLDP;
2) Green belt - under Policy ENV1 of the MLDP; and
3) Prime agricultural land - under policy ENV4 of the MLDP.   
Development within the northern, north western and western part of the
site (29.98 hectares) would contravene policy objectives to retain the
openness and rural character within the green belt.  It could also prevent
the delivery of strategic infrastructure within this location. 
Site Specific Requirements - Site Ec3 
3.10 There are various site-specific policy requirements associated with the
future development of Site Ec3 as outlined below:  
Page 49 of 80

Page 50

a) Acceptable Uses – The MLDP states a range of potential uses are
deemed to be acceptable within Site Ec3, including; retail, hotel,
office, commercial leisure, and housing.  Any future application
would be required to include a suitable mix of uses and must not be
dominated by competing, unrelated, uses that are not contemplated
by the above policy designation.  
b) Masterplan - The site must be masterplanned to establish the
development layout, access arrangements, mix of uses and
landscaping/open space and include the provision to safeguard
amenity for the adjacent residential properties.  It should also take
into account the Damhead and District Neighbourhood Plan 2015-
2030 as a material consideration.  Accordingly, a masterplan
covering Site Ec3 will be required prior to any future application
being supported. 
c) Strategic Transport Infrastructure - Development is dependent on
the construction of the A701 Relief Road between the A720
Straiton Junction and the A703, to link to the A702.  Development
associated with any future application would therefore be
contingent upon approval and implementation of the above
strategic transport infrastructure.  
d) Park & Ride - The site must retain a park and ride facility,
equivalent to the current provision.  Should the park and ride facility
be amended/removed, any future application must include
replacement provision of equal of greater capacity.  
e) Visual Impact - Consideration of the site’s elevated nature and the
potential visual impacts from Edgefield relief road must be
considered.  Any future application will be required to include a
suitable Landscape and Visual Impact Assessment to address this
and other corresponding landscape and visual impact matters.   
f) Ground Stability and Contamination - The site has ground stability
and contaminated land issues which will need to be addressed and
may result in parts of the site not being suitable for development. 
As such, any future application, and corresponding masterplan, will
be required to consider the suitability of future development areas
mindful of this requirement.  
g) Significant Landscaping - The western boundary of the site
bordering the A701 Relief Road should include significant
landscaping including a 30m wide (mounded) woodland belt along
the northern through western to south-western boundaries. A 10m
wide hedgerow with trees is also required along the current A701. 
Path links should be provided with trees, hedges, swales or other
green space to link across the site. Distributor roads should have
avenue trees, paths and swales.  A comprehensive landscaping
strategy and an appropriate landscaping hierarchy within the
corresponding masterplan will also be required.   
Page 50 of 80

Page 51

h) Education Infrastructure - Should the site include residential
development, there will be a requirement for additional capacity to
be provided for primary/secondary education.  Suitable
contributions and a deliverable education solution will therefore be
required to ensure that adequate education infrastructure provision
is made. 
i) Design Quality - Due to the importance of the site as the Midlothian
Gateway, there is a requirement for it to be developed to a ‘very
high quality of design’, layout and landscaping.  Accordingly, any
future application and masterplan will be required to demonstrate
how the highest standard of design has been included within the
relevant design parameters and how any future proposal would
create a detailed design of the highest quality.  
j) Archaeology - The setting of adjacent listed buildings (Old Pentland
Church) will be required to be considered.  As such, consideration
of potential impacts on direct and indirect cultural heritage assets
will be required to accompany any future application. 
3.11 In addition to the principle of development and site-specific
requirements above, consideration will also have to be given to
placemaking and design matters.  This includes layout, siting, design,
appearance, materials, landscaping and (for residential uses) amenity
requirements relating to building setbacks and garden sizes in order to
accord with sustainable placemaking policies in NPF4 (i.e. Policies 14,
15, 16 and 21) and the MLDP (i.e. Policies DEV2, DEV3, DEV5, DEV6,
DEV7 and DEV9). 
3.12 Should residential uses be included within the proposed mixed-use
development, the Council’s Learning Estate Strategy will be a material
consideration.  This has been informed, in part, by the location and
level of development outlined in the MLDP and Housing Land Audits. 
With respect to the site, a suitable education solution will be required to
accommodate associated need from the proposed development.  If a
suitable education solution can be determined this could be delivered
through developer contributions.  
3.13 Overall, it is unlikely that the planning authority would support a future
application for mixed use development within the site based on the
application boundary submitted with this pre application consultation.
Specifically, the site extends significantly into land allocated as green
belt and safeguarded for future transport infrastructure within the
MLDP.  It could therefore compromise strategic aspirations requiring
the protection of the green belt and to facilitate the delivery of strategic
transport infrastructure.  Moreover, prior to support for any future
development, a comprehensive masterplan covering the full extent of
Site Ec3 requires to be approved (masterplan work has progress, but
is subject to clarity over the detail design and siting of the proposed
realigned A701). 
Page 51 of 80

Page 52

3.14 It is noted that a red line boundary within a pre-application consultation
application usually represents the maximum extent of any forthcoming
planning application.  Therefore, should the red line boundary for any
future application be reduced - limited solely to the Ec3 allocation
boundary - any corresponding mixed-use development could
potentially be supported, in principle, subject to compliance with the
above site-specific policy requirements, in particular in relation to
masterplanning and strategic transport infrastructure.  It should
however be noted that the current red line boundary has increased
when compared to the earlier PAN. 
3.15 Notwithstanding this, and prior to any potential support, developer
contributions would be required to be secured towards infrastructure
including: road infrastructure improvements (i.e. A701 Relief Road,
A702 Link Road), strategic cross-boundary transport infrastructure
(under Policy TRAN2 and in line with Transport Scotland’s
requirements as trunk road operator), access and junction
improvements (including footpaths and cycleways), education
provision, structure landscaping open space and green networks,
water and drainage infrastructure, equipped children’s play provision
and adequate affordable housing provision (at least 25%). 
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 be 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 that
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.
Page 52 of 80

Page 53

Peter Arnsdorf
Planning, Sustainable Growth and Investment Manager
Date: 1 September 2023
Application No:  23/00354/PAC
Applicant: Straiton Estates Ltd
Agent:  Avison Young (UK) Ltd
Validation Date:  2 June 2023
Contact Person: Graeme King
Email:   graeme.king@midlothian.gov.uk
Background Papers: 20/00803/PAC, 21/00220/SCR, 21/00831/SCO
Attached Plan:  Location plan
Page 53 of 80

Page 54

N
Midlothian Council
Fairfield House
8 Lothian Road
Dalkeith
EH22 3AA
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.
Planning Service
Place Directorate
Indicative New Road Route
Application Boundary
Site Ec3
Legend
Midlothian Council Licence No. AC0000811376 (2023)
Proposal of Application Notice for a mixed use development
Site Ec3: West Straiton Loanhead
File No. 23/00354/PAC
Scale: 1:6,000 @ A3
Location Plan
Page 54 of 80

Page 55

PLANNING COMMITTEE
TUESDAY 12 SEPTEMBER 2023
ITEM NO 4.5
APPLICATION FOR PLANNING PERMISSION 23/00145/DPP FOR THE
ERECTION OF THREE DWELLINGHOUSES, FORMATION OF ACCESS
AND CAR PARKING AND ASSOCIATED WORKS AT LAND 100M SOUTH
OF GLENARCH LODGE, MELVEILLE ROAD, DALKEITH 
Report by Chief Officer Place
1 SUMMARY OF APPLICATION AND RECOMMENDED DECISION
1.1 The application is for the erection of three dwellinghouses,
formation of access and car parking and associated works at land
100m south of Glenarch Lodge, Melville Road, Dalkeith.  
1.2 There have been two representations and consultation responses
from Scottish Water, the Coal Authority, Network Rail, the
Eskbank and Newbattle Community Council, the Council’s
Ecological Advisor (TWIC), the Council’s Senior Manager
Neighbourhood Services (Roads), the Council’s Senior Manager
Protective Services and the Council’s Education Executive
Business Manager.
1.3 The relevant development plan policies are policies 1, 2, 3, 4, 5, 6,
7, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23 and 24 of the
National Planning Framework 4 (NPF4) and policies STRAT2,
DEV2, DEV5, DEV6, DEV7, TRAN5, IT1, ENV7, ENV11, ENV15,
ENV16, ENV18, ENV19, IMP1, IMP2 and IMP3 of the Midlothian
Local Development Plan 2017 (MLDP).
1.4 The recommendation is to refuse planning permission. 
2 LOCATION AND SITE DESCRIPTION
2.1 The site is located at the northwest of Dalkeith, at the entrance to
Eskbank from Melville Road and the A7.  The site is within the Eskbank
and Ironmills Conservation Area, with a Special Landscape Area
located 80 metres to the north.
2.2 Directly to the west and south of the site is Melville Road, with housing
beyond.  There is a small area of vacant land to the east which
separates the site from the Borders Railway Line - there is housing to
the other side of the railway.  There is an area of land in use as a
Page 55 of 80

Page 56

storage facility to the north, where there is a planning application for
housing currently under consideration.     
2.3 The site comprises a long and relatively narrow shaped parcel of land
measuring approximately 0.27 hectares.  The site is elevated from
Melville Road and surrounding land.  The applicant’s agent states that
the site was formerly used as a colliery and builders yard. The site
appears to have formed part of the historic Glenesk Colliery. 
2.4 The existing built form within the area is varied, ranging from two storey
detached 1970s houses to the west to two storey flats to the east and
to large detached historic houses within Eskbank.   
3 PROPOSAL 
3.1 Detailed planning permission is sought for the erection of three
dwellinghouses and the formation of a vehicular access, along with
other associated works including car parking, drainage, ground level
works and landscaping. 
3.2 The three houses are in a linear layout from north to south.  They are
to be two storeys in height with integral garages and are of
contemporary design, with flat roofs and large areas of glazing.  The
external wall materials are proposed to include sandstone, zinc and
pine cladding and the roof is to be finished with a rubber membrane.   
3.3 A new access is to be formed from Melville Road, which will require
engineering works given the changes in ground levels.  Part of the
boundary wall to Melville Road is to be lowered to achieve visibility
splays.  Street lighting is proposed along the site frontage. The
submitted plans show the provision of three parking spaces for each
house. 
3.4 Acoustic fencing is proposed between the houses at Melville Road and
the railway.  All existing landscaping on site is to be removed to
accommodate the changes in ground levels and the proposed
development, with new landscaping proposed.  Soakaways are
proposed to address surface water drainage. 
3.5 The houses are to be provided with air source heat pumps, solar
panels and electric vehicle charging points.   
3.6 The application is accompanied by:
• Design Statement;
• Coal Mining Risk Assessment; 
• National Planning Framework 4 Statement; and
• Noise and Vibration Impact Assessment. 
Page 56 of 80

Page 57

4 BACKGROUND 
4.1 Planning application 17/00267/DPP for the erection of three houses at
the site was refused in 2017 for the following reasons:
• inadequate levels of amenity space for the occupants; noise from
the adjacent railway line would have an adverse impact on the
amenity of the occupants and means to mitigate this would have an
adverse impact on the conservation area; poor level of amenity for
occupants; the design of the houses would detract from the
character and appearance of the conservation area and be at an
exposed prominent position; the cumulative effect of the design,
layout and prominence of the houses and works required to
accommodate visibility splays would have a significant detrimental
impact on the local landscape, and character and appearance of
the area; the proposed development would materially detract from
the appearance of the area at the entrance to Eskbank; 
• the proposal would result in the significant loss of trees which would
degrade the landscape buffer and definition of Eskbank, to the
detriment of the area;
• the access would result in significant road safety concerns to the
detriment of road safety users;
• impact on former coal mining activities in the area; 
• potential impact on protected species; and 
• The proposal was contrary to the Midlothian Local Plan 2008
policies DEV2, RP5, RP7, RP13, RP20, RP22, HOUS3 and DP2. 
4.2 This refusal was subsequently reviewed by the Local Review Body
(LRB) who were minded to approve the proposal subject to: the coal
mining concerns being addressed; a number of conditions; the
applicant entering into a legal agreement to secure developer
contributions; and the reduction in speed limit at the site.   
4.3 Before all the outstanding issues were resolved, the applicant
proposed changes to the plans which were materially different to those
considered by the LRB.  Application 17/00267/DPP was subsequently
withdrawn and a final decision not made.   
4.4 Planning application 19/00411/DPP was subsequently submitted for
three houses at the site.  The majority of details were the same as
those considered in 17/00267/DPP.  The differences between the first
and second schemes were the inclusion of basement floor levels within
the houses and the removal of garages.  As the proposal was similar to
the application which was minded to be approved by the LRB, and the
changes were acceptable in design terms, the 2019 planning
application was approved subject to conditions and a planning
obligation to secure developer contributions.  This planning permission
was not implemented and expired in January 2023.   
4.5 Application 19/00556/LA was submitted to modify the legal agreement
entered into under the determination of 17/00267/DPP to ensure that
Page 57 of 80

Page 58

the necessary developer contributions were secured through
19/00411/DPP.  This was approved in 2019.   
4.6 Works to Trees application 17/00777/WTT for the felling of trees within
the site was approved in 2017.   
4.7 There is a planning application currently pending consideration for six
dwellinghouses for the land to the north of the site (21/00746/DPP).   
4.8 The application has been called-in to be considered by the Planning
Committee by Councillor McKenzie. Councillor McKenzie has called
this planning application in due to access to and from the site being on
a busy road with a blind bend and dual white lines.  He raises concerns
about road safety and site access. 
5. CONSULTATIONS 
5.1 Scottish Water does not object to the application.  The water supply
will be fed from Rosebery Water Treatment Works.  The foul water
drainage will be dealt with by the Edinburgh PFI Waste Water
Treatment Works.  Both have sufficient capacity at present; however, it
is not possible to reserve capacity for future developments – this will be
subject to a separate regulatory process between the applicant and
Scottish Water. 
5.2 For reasons of sustainability and to protect Scottish Water customers
from potential future sewer flooding, Scottish Water will not accept any
surface water connections into the combined sewer system.  There
may be limited exceptional circumstances where Scottish Water allow
such a connection for brownfield sites only, however this will require
significant justification from the customer taking account of various
factors including legal, physical and technical challenges. 
5.3 In order to avoid costs and delays where a surface water discharge to
the combined sewer system is anticipated, the developer should
contact Scottish Water at the earliest opportunity with strong evidence
to support the intended drainage plan prior to making a connection
request.  The evidence will be assessed in a robust manner and any
decision will reflect the best option from environmental and customer
perspectives. 
5.4 The Coal Authority does not object to the application but advise that
should planning permission be granted a condition should be attached
to the permission requiring additional information relating to ground
conditions/mining legacy be submitted before works begin.  They also
recommend that permitted development rights be removed relating to
extensions and outbuildings in the area around mine shaft zones of
influence.  This would allow the impact of such works on the mine
shafts to be considered in further planning applications.   
Page 58 of 80

Page 59

5.5 Network Rail does not object to the application. 
5.6 Eskbank and Newbattle Community Council made neutral
comments to the planning application, raising the following matters: 
• They are pleased with a proposal to redevelop the long-vacant
brownfield site at the entrance to Eskbank, Conservation Area and
near the Special Landscape Area;
• They note there is an application to develop the site to the north. 
which is pending consideration.  They consider the development of
both sites would improve what is currently an eyesore in the
scenically sensitive area;
• The proposed houses are of an unusual modern design.  While
there is general agreement that the houses are distinctive, there is
not agreement within ENCC on their suitability for this Conservation
Area.  They defer to Midlothian’s Planners to make
recommendations on this; 
• The 70m visibility splay lines from the development access to
Melville Road are clear as shown on the proposed site plan but
they consider the splay lines should align with the place on the
road from where traffic will approach (nearside southbound, far
side northbound); and
• They also note that the 70m splay line is for traffic speed of 31
mph.  The splay line for 37 mph is 90m and for 43 mph is 120m.
These should also be shown as these are not clear due to blind
corners.  While this is a 30 mph area, traffic often exceeds that
speed and the road is part of a “rat-run” for traffic cutting through
Eskbank to avoid congestion on the A7 at Melville Dykes and
Hardengreen roundabouts.  This gets busy in rush hours. Traffic
speed surveys should be carried out to determine the extent of this
problem and, if necessary, measures should be taken to mitigate
vehicle speeding.  Enforcement alone is not sustainable or
sufficient to deter speeding and that physical measures are
required.  These could include road markings and/or flashing speed
warnings at appropriate locations for traffic in either direction on
Melville Road, the cost of such measures should be passed to the
developer. 
5.7 The Council’s Ecological Advisor - The Wildlife Information Centre
(TWIC) does not object to the application.  They recommend a
condition be attached to any grant of planning permission relating to
timing of vegetation clearing works to avoid the bird breeding season.   
5.8 The Council’s Senior Manager Neighbourhood Services (Roads)
does not object to the application.  They state that the existing street
lighting on Melville Road will require to be extended over the site
frontage to the end of the visibility splay.  The site plan shows
indicative locations for new lighting, however technical details are
required for approval.   
Page 59 of 80

Page 60

5.9 The Council’s Senior Manager Protective Services does not object
to the application subject to the recommendations set out in the Noise
and Vibration Impact Assessment being secured by condition and
implemented.  Conditions are also required to address ground
contamination and to restrict construction hours.   
5.10 The Council’s Education Executive Business Manager does not
object to the application.  The development would give rise to one
primary school pupil and one secondary school pupil.  Developer
contributions towards education facilities would be required to mitigate
the demand from the proposed development. The catchment schools
are: 
• Non-denominational
primary
Kings Park Primary School
• Denominational primary St David’s RC Primary School
• Non-denominational
secondary 
Dalkeith High School
• Denominational secondary St David’s RC High School 
5.11 The Council utilises a primary school pupil product ratio of 0.28 per
dwelling and a secondary school pupil product ratio of 0.2 per dwelling
when calculating anticipated primary and secondary school pupil
numbers from developments and also for the purposes of negotiating
developer contributions with applicants. 
5.12 The consultation responses are available to view in full on the online
planning application case file. 
6. REPRESENTATIONS 
6.1 There have been two representations received, which can be viewed in
full on the online planning application case file.  One of the
representations objected to the application and one is neutral.  A
summary of the main points raised are as follows: 
6.2 A summary of the concerns raised in the objection is as follows:
• Road safety due to the position of the access;
• Traffic has increased in the area and the proposal would
exacerbate this, with congestion and reduced road safety;
• The houses are not in keeping with the area and are boxlike;
• Impact on views from neighbouring properties;
• The introduction of street lights will detract from the peace and
tranquillity of the area in the mornings and evenings; and
• Overlooking from the houses to neighbouring properties. 
6.2 A summary of the neutral representation is as follows:
• Comments over the industrial design of the houses;
Page 60 of 80

Page 61

• Concern over the proposed access at a bend in a road where
there have been regular accidents;
• On exiting, cars will be unable to see approaching traffic.  When
entering they may be stationary on this busy road in a position
where approaching traffic will not see them; and
• An access further north may give a slightly better sight-line and
reduce the risk not only to the future residents but other road
users, although it is not ideal because of the double bends. 
7. PLANNING POLICY 
7.1 The development plan is comprised of National Planning Framework 4
(2023) and the Midlothian Local Development Plan 2017. 
7.2 The following policies are relevant to the proposal: 
National Planning Framework 4 (NPF4) 
7.3 Policy 1 Tackling the climate and nature crises; sets out to
encourage, promote and facilitate development that addresses the
global climate emergency and nature crisis. 
7.4 Policy 2 Climate mitigation and adaptation; sets out to encourage,
promote and facilitate development that minimises emissions and
adapts to the current and future impacts of climate change. 
7.5 Policy 3 Biodiversity; sets out to protect biodiversity, reverse
biodiversity loss, deliver positive effects from development and
strengthen nature networks. 
7.6 Policy 4 Natural Places; sets out to protect, restore and enhance
natural assets making best use of nature-based solutions. 
7.7 Policy 5 Soils; sets out to protect carbon-rich soils, restore peatland
and minimise disturbance to soils from development. The policy also
sets out acceptable scenarios for development on prime agricultural
land. 
7.8 Policy 6 Forestry, woodland and trees; sets out to protect and
expand forests, woodland and trees. 
7.9 Policy 7 Historic assets and places; sets out to protect and enhance
historic environment assets and places, and to enable positive change
as a catalyst for the regeneration of places. 
7.10 Policy 9 Brownfield, vacant and derelict land and empty buildings;
sets out to encourage, promote and facilitate the reuse of brownfield,
vacant and derelict land and empty buildings, and to help reduce the
need for greenfield development.
Page 61 of 80

Page 62

7.11 Policy 11 Energy; sets out to encourage, promote and facilitate all
forms of renewable energy development onshore and offshore. This
includes energy generation, storage, new and replacement
transmission and distribution infrastructure and emerging low-carbon
and zero emissions technologies including hydrogen and carbon
capture utilisation and storage (CCUS). 
7.12 Policy 12 Zero Waste; sets out to encourage, promote and facilitate
development that is consistent with the waste hierarchy. 
7.13 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. 
7.14 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. 
7.15 Policy 15 Local Living and 20 minute neighbourhoods; 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. 
7.16 Policy 16 Quality homes; sets out to encourage, promote and facilitate
the delivery of more high quality, affordable and sustainable homes, in
the right locations, providing choice across tenures that meet the
diverse housing needs of people and communities across Scotland. 
7.17 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. 
7.18 Policy 19 Heating and Cooling; sets out to encourage, promote and
facilitate development that supports decarbonised solutions to heat and
cooling demand and ensure adaptation to more extreme temperatures. 
7.19 Policy 20 Blue and green infrastructure; sets out to protect and
enhance blue and green infrastructure and their networks. 
7.20 Policy 21 Play, recreation and sport; sets out to encourage, promote
and facilitate spaces and opportunities for play, recreation and sport. 
7.21 Policy 22 Flood risk and water management; sets out to strengthen
resilience to flood risk by promoting avoidance as a first principle and
reducing the vulnerability of existing and future development to
flooding.
Page 62 of 80

Page 63

7.22 Policy 23 Health and Safety; sets out to protect people and places
from environmental harm, mitigate risks arising from safety hazards
and encourage, promote and facilitate development that improves
health and wellbeing. 
7.23 Policy 24 Digital Infrastructure; sets out to encourage, promote and
facilitate the rollout of digital infrastructure across Scotland to unlock
the potential of all our places and the economy. 
Other National Policy 
7.24 Designing Places, A Policy Statement for Scotland sets out the six
key qualities which are at the heart of good design namely identity,
safe and pleasant environment, ease of movement, a sense of
welcome, adaptability and good use of resources. 
7.25 The Scottish Government’s Policy on Architecture for Scotland
sets out a commitment to raising the quality of architecture and design. 
Midlothian Local Development Plan 2017 (MLDP) 
7.25 Policy STRAT2: Windfall Housing Sites supports housing on non-
allocated sites within the built-up area provided: it does not lead to loss
or damage of valuable open space; does not conflict with the
established land use of the area; has regard to the character of the
area in terms of scale, form, design and materials and accords with
relevant policies and proposals. 
7.26 Policy DEV2: Protecting Amenity 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. 
7.27 Policy DEV5: Sustainability in New Development sets out the
requirements for development with regards to sustainability principles. 
7.28 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. 
7.29 Policy DEV7: Landscaping in New Development requires
development proposals to be accompanied by a comprehensive
scheme of landscaping.  The design of the scheme is to be informed
by the results of an appropriately detailed landscape assessment. 
Page 63 of 80

Page 64

7.30 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. 
7.31 Policy IT1: Digital Infrastructure supports the incorporation of high
speed broadband connections and other digital technologies into new
homes, business properties and redevelopment proposals. 
7.32 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.   
7.33 Policy ENV11: Woodland, Trees and Hedges states that
development will not be permitted where it could lead directly or
indirectly to the loss of, or damage to, woodland, groups of trees
(including trees covered by a Tree Preservation Order, areas defined
as ancient or semi-natural woodland, veteran trees or areas forming
part of any designated landscape) and hedges which have a particular
amenity, nature conservation, biodiversity, recreation, landscape,
shelter, cultural, or historical value or are of other importance.   
7.34 Policy ENV15: Species and Habitat Protection and Enhancement
presumes against development that would affect a species protected
by European or UK law. 
7.35 Policy ENV16: Vacant, Derelict and Contaminated Land supports
the redevelopment of vacant and derelict land for uses compatible with
their location.  Developments will be required to demonstrate that the
site is suitable for the proposed new use in terms of the risk posed by
contamination and instability from historic uses.   
7.36 Policy ENV18: Noise requires that where new noise sensitive uses are
proposed in the locality of existing noisy uses, the Council will seek to
ensure that the function of established operations is not adversely
affected. 
7.37 Policy ENV19: Conservation Areas states that development will not
be permitted within or adjacent to conservation areas where it would
have any adverse effect on its character or appearance. 
7.38 Policy IMP1: New Development ensures that appropriate provision is
made for a need which arises from new development.  Of relevance
in this case are education provision, transport infrastructure;
Page 64 of 80

Page 65

contributions towards making good facility deficiencies; landscaping;
public transport connections, 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 and
conservation interests affected; archaeological provision and ‘percent
for art’ provision. 
7.39 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.   
7.40 Policy IMP3: Water and Drainage requires developers to appropriately
handle drainage matters at development sites. 
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 representations and consultation responses received are material
considerations.  In addition, the planning history, namely the previous
LRB decision, is a significant material consideration which has the
potential to outweigh the policy position.  It was a formal decision of the
Council to previously support development of three dwellinghouses on
the site. 
Principle of development 
8.2 The site is located within the built-up area of Dalkeith where there is a
presumption in favour of appropriate residential development.  The
proposal would not lead to the loss of valuable open space or conflict
with the established land use of the area. 
8.3 Through previous planning applications, including the earlier LRB
decision, the principle of a small scale residential development had
been established as being acceptable at the application site. However,
a significant material consideration is whether the adoption of NPF4 in
February 2023 alters the ‘in principle’ support for the development of
the site and also whether there are detailed elements of the proposal
which do not comply with the new development plan. 
8.4 With regards to NPF4, although the site is within the built up area of
Dalkeith/Eskbank, consideration requires to be given to the site’s
location and proposed development in terms of sustainability.  In this
Page 65 of 80

Page 66

regard, the site is in relatively close proximity to Dalkeith Town Centre
to the northeast and is reasonably close to a number of facilities in the
surrounding Eskbank area.  The site is close to local shops and
services, employment opportunities, leisure facilities, public transport
options and active travel connections and, as such, is considered to be
in a sustainable location in compliance with the principles of NPF4. 
8.5 Policy 9 of NPF4 states that development proposals which result in the
sustainable reuse of brownfield land including vacant and derelict land
and buildings will be supported.  In determining whether the reuse is
sustainable, the biodiversity value of brownfield land which has
naturalised should be taken into account.  While it is acknowledged that
the site has poor biodiversity value at present, and that the proposal
may improve this through the removal of contaminated land and tidying
the site, it does not follow that any development would be acceptable
here.  Development must also be considered in line with other relevant
NPF4 and MLDP policies.  On balance, the LRB decision has
established that the principle of development on the site is acceptable.
However, further consideration must be given to whether it is
appropriate, in terms of NPF4, to clear the site of existing vegetation
and to what extent the details of the proposed scheme will impact on
the local landscape.   
Scale and character of the proposed development 
8.6 The existing built form in the area is varied, ranging from two storey
detached 1970s houses to the west to two storey flats to the east and
to large detached historic houses within Eskbank.  The surrounding
buildings are generally traditional in design, scale and form.  The
proposed houses are of a very different design approach, being
modern and contemporary in design with flat roofs and incorporating
large areas of glazing.  This significant change in design approach is
not entirely appropriate for such a prominent site in a conservation area
and at one of the main entrances to Dalkeith/Eskbank.   
8.7 However, the LRB decided at its meeting in August 2017, where it
considered application 17/00267/DPP, that a more contemporary
design approach could be utilised at this site.  The proposed houses
are similar in design, scale and form to the house types previously
approved by the LRB and so are acceptable.  Should permission be
approved, samples of the proposed materials would be required to
ensure these are of high quality given this sensitive location. 
8.8 The MLDP requires good levels of amenity for residential development
in terms of garden sizes, open space and the separation distances
between dwellinghouses to mitigate against overlooking, loss of privacy
and a sense of overbearing on neighbours.  The requirements with
regard usable private garden sizes should be: (i) 100 square metres for
terraced houses of 3 or more apartments; (ii) 110 square metres for
other houses of 3 apartments; and (iii) 130 square metres for houses of
Page 66 of 80

Page 67

4 apartments or more.  The proposed site plan satisfies this
requirement and provides adequate amenity space for the houses. 
8.9 The proposed layout is unusual with the plots laid out in a linear form
from north to south.  There is only 5 metres between the side
elevations of plots 1 and 2.  The proposed window openings on these
elevations limit any overlooking and so in this instance this is
acceptable. 
8.10 The proposed layout results in an unusual relationship between plots
and garden grounds, creating what appears to be a relatively cramped
layout with degrees of overlooking between garden grounds and
unusual garden shapes.   However, this is not materially worse than
the layout previously approved by the LRB.   
8.11 The site sits between Melville Road and a railway line, with relatively
limited space between the houses and infrastructure features. The
Council’s Senior Manager Protective Services raised concerns over
noise from the adjacent railway and Melville Road to the occupants of
the proposed properties.  In response the applicant’s agent submitted a
Noise and Vibration Impact Assessment which considered the existing
noise levels from the road and railway line, assessed the impact this
may have on future occupants of the houses and recommended
mitigation measures to limit noise from these to an acceptable level.   
8.12 The report stated that a 1.8 metre high acoustic fence be erected
between the houses and Melville Road, which would address noise
from the road to the houses.  Also increasing the height of the
boundary treatment to the railway to 2 metres high or reducing the
garden ground levels by 1.1 metres would provide adequate noise
mitigation from the railway.  This would be in addition to the houses
being provided with a particular level of glazing to the east and west
elevations.  The Council’s Senior Manager Protective Services has
accepted the recommendations of this report and stated that if these
are implemented, the occupants of the proposed houses would not be
detrimentally affected by noise from Melville Road or the railway.  While
these boundary treatments may satisfactorily address noise to future
occupants, these will be relatively prominent and so their landscape
and visual impact of these in the surrounding conservation area need
to be assessed. 
Landscape and Visual Impact 
8.15 It is accepted that planning permission has previously been approved
for three houses at this site in a similar position to that proposed with a
similar access.  However, the previous permission did not include the
removal of all trees from the site. In addition, there has been a policy
change in the intervening years through the publication of NPF4. 
Page 67 of 80

Page 68

8.16 The planning policies in NPF4 seek for developments to be sustainable
and give consideration to the global climate and nature crises.  As part
of this approach there is a strong emphasis on the protection and
enhancement of woodland and trees with an expectation for such
features to be retained and enhanced in proposals.   
8.17 The proposed houses will be on a significantly higher ground level than
Melville Road.  In order to accommodate the houses and vehicular
access all existing trees are to be removed.  Also, a considerable
amount of groundwork is required with very steep slopes from the
housing to Melville Road.  The combination of these works will result in
the site being even more prominent than previously proposed.   
8.18 While the site is located in an area defined as being within the built-up
area of Eskbank, it is immediately adjacent to the countryside and has
a rural/edge of settlement character. The approach to Eskbank along
Melville Road is strongly characterised by trees and woodland within a
steeply sloping valley. The trees within the site form part of a larger
group of trees which defines the edge of the settlement.  Albeit mostly
self-seeded, the vegetation within the site contributes to the amenity
and setting of the Eskbank and Ironmills Conservation Area, supports
habitat for wildlife and provides landscape softening between the River
North Esk valley and the settlement edge of Eskbank.   
8.19 It is only upon reaching the stone railway bridge where the trees
recede, and the view opens up to reveal that the character of the area
has changed from countryside to the built up character associated with
being in a settlement.  The removal of all trees from the site and their
replacement with buildings will seriously undermine the strong
definition of the settlement of Eskbank in this location. 
8.20 Although there are residential properties on the opposite side of
Melville Road from the application site, these are set back from the
road with garden space and landscaping between.  On approach from
both the north and the south, these properties are generally softened
into the landscape as a result of their distance from the road, the road
trajectory, their position and orientation and the mature established
garden planting.  There are flatted dwellings to the east of the site,
across the railway line, which are on a lower ground level than the site
and are well screened from view.  These are visually and physically
read as being separate from the site.  These residential developments
integrate well with, and retain the rural character of, the area. 
8.21 Where settlements abut the countryside it is the planning authority’s
standard approach, established through adopted planning policy, to
require the provision of a landscape buffer in order to clearly define the
boundaries of settlements.  This is particularly the case where new
developments are proposed on the periphery of settlements.  This
proposed development will effectively remove a successfully
Page 68 of 80

Page 69

established landscape buffer from this location, opening up views of the
built-up area which are otherwise softened by the existing trees. 
8.22  In proposals where the loss of existing vegetation is accepted,
replacement planting is required to mitigate against any proposed tree
loss.  This is to perpetuate canopy cover in the area and to respond to
the ongoing Climate Emergency.  The proposed layout is relatively
cramped with limited space to accommodate sufficient replacement
planting both at the site boundaries and to provide relief within the site. 
This is exacerbated by the steep banking and ground level works to
accommodate the vehicular access and visibility splays.  These splays
need to be kept clear to allow visibility for vehicles and so limits the
extent to which landscaping can be planted and allowed to establish to
sensitively integrate the proposed development within the local setting. 
8.23 The prominence of the site would be further exacerbated by the
necessary mitigation measures to address noise to the proposed
houses from Melville Road and the neighbouring railway.  The
necessary 1.8 metre high close boarded fence between the houses
and Melville Road would be a very harsh feature to the front of the
houses at an elevated level which would further detract from the visual
amenity of the area with limited option to soften this into the area.  Also,
the inclusion of a 0.9 metre high fence on top of the wall facing the
railway line would be an unattractive feature and have a detrimental
impact on the area.   
8.24 Despite a development scheme previously having been approved by
the Council at the site, the additional considerations in relation to NPF4
and the increased adverse impact on the landscape as a result of the
new proposals result in a development which will have an unacceptable
detrimental impact on the local landscape. 
Access and Transportation 
8.25 The representors and the Community Council raise road safety as a
significant concern at this site, particularly in relation to poor visibility,
the position of the access, there are regular accidents on Melville
Road, the amount of vehicles using Melville Road and the speed of
cars using this road.  Road safety is also the reason this application
was called in to Planning Committee.   
8.26 While the Council’s Senior Manager Neighbourhood Services (Roads)
has indicated that the proposed development will not have a
detrimental impact on road safety in this location, the planning authority
must take in to account the concerns being raised by other third parties
and reach a decision on whether the new access and development
should be supported. 
8.27 The representors and Community Council represent valid material
concerns regarding the proposed development.  Works to
Page 69 of 80

Page 70

accommodate the required visibility splays include significant regrading
of the ground and lowering the height of the existing boundary wall. 
8.28 Although on plan these measures appear to address the road safety
issue, concern remains that introducing a vehicular access at the
proposed location would still pose a significant threat to road safety
given the speed of vehicles and the bending nature of the road.  The
proposed access is at the tightest curve in this road where vehicles
travel at speed, with poor visibility. The visibility splay required to serve
the new access may not be deliverable unobstructed while addressing
the concerns over the landscaping of the site. 
8.29 It is acknowledged that planning permission was approved in 2019 for
three houses at this site, which included a similar access to that
currently proposed.  This was after the LRB were minded to approve a
similar proposal here in 2017.  However, the current application
represents a new application and proposal at the site which is to be
considered on its own merits.  Notwithstanding the previous
applications at the site and the comments from the Council’s Senior
Manager Neighbourhood Services (Roads), it is considered that the
proposed access and associated works would result in significant road
safety risk which would be to the detriment of the safety of road users. 
8.30 As previously detailed, the site is accessed from Melville Road, which
is a busy and well used road.  The provision of street lighting here, as
required if permission were approved, would not have a significant
detrimental impact on the area and would be a continuation of the
existing street lighting along this road. 
Impact on Surrounding Properties 
8.31 The proposed houses include balconies at first floor level.  Due to the
proposed and existing layouts of buildings in the area the balconies at
plots 1 and 2 would not overlook any existing properties.  The house at
plot 3 would be in line with the houses to the west and so there could
be some potential overlooking between properties.  However, the
balcony is some 22 metres from the closest boundary of the existing
house across Melville Road.  This results in a greater distance between
rear elevations of properties than that which would be expected in new
developments.  As such, any overlooking would not be so significant as
to warrant refusal on these grounds. 
Flood Risk and Surface Water Drainage 
8.32 The proposed houses will connect to the public foul drainage system. 
Surface water drainage is proposed to be addressed through
soakaways within the site which is acceptable in principle.  Should
permission be approved, further details would be required. 
Page 70 of 80

Page 71

8.33 Due to the sloping nature of the site and the significant change in
ground levels to Melville Road, all hardstanding materials should be
porous.  This will limit water runoff from the site to Melville Road which
could affect road safety in the area.   
Ecological Matters 
8.34 The proposal includes the loss of all landscaping on site which could
impact on wildlife.  The Council’s Ecological Advisor does not object to
the application as the existing woodland on site is too immature to have
bat roosting potential.  Should permission be approved, the timing of
vegetation clearing works shall be conditioned to avoid bird breeding
season.   
8.35 The proposal includes the installation of bat, bee and swift boxes and
bricks which is welcomed.  Planting to promote biodiversity is also
proposed. 
8.36 As noted above, there are significant concerns over the loss of
landscaping at the site and the impact this will have on the site and
surrounding area.  While it is acknowledged that the biodiversity value
of the site in its current form is likely to be affected by the previous
historic uses and the proposed planting and wildlife boxes and bricks
will enhance this, these proposals are expected as standard in
proposals. They are not extra measures which help address the climate
and nature crises. 
Ground Contamination and Remediation and Coal Mining Legacy 
8.37 The Council’s Senior Manager Protective Services recommends that a
standard contaminated land site investigation condition be attached to
any consent granted to ensure that the land in the application site is
suitable for its intended use. 
8.38 The Coal Authority initially objected to the planning application,
requiring more information due to the previous uses in the area and
historic mine shafts.  Additional information was submitted which
addressed these concerns demonstrating the site can be safely
developed, subject to further information being submitted for approval
before works begin on site.   
8.39 This objection was removed on the basis of the submitted information
and the works on the proposed plans.  If planning permission were
approved, a condition should be attached to remove permitted
development rights to prevent extensions and outbuildings being
erected in the area around mine shaft zones of influence.  Any such
works would need to be considered in detail to ensure that these works
can be safely developed.  This would be reasonable and necessary. 
Page 71 of 80

Page 72

Developer Contributions 
8.40 Scottish Government advice on the use of Section 75 Planning
Agreements is set out in Circular 03/2012: Planning Obligations and
Good Neighbour Agreements. The circular advises that planning
obligations should only be sought where they meet all of the following
tests:
• necessary to make the proposed development acceptable in
planning terms (paragraph 15);
• serve a planning purpose (paragraph 16) and, where it is
possible to identify infrastructure provision requirements in
advance, should relate to development plans;
• relate to the proposed development either as a direct
consequence of the development or arising from the cumulative
impact of development in the area (paragraphs 17-19);
• fairly and reasonably relate in scale and kind to the proposed
development (paragraphs 20-23); and
• be reasonable in all other respects. 
8.41 In relation to Midlothian Council, policies relevant to the use of Planning
Obligations are set out in the MLDP and Midlothian Council’s
Developer Contributions Guidelines (Supplementary Planning
Guidance). 
8.42 This proposed residential development has been assessed in relation
to the above guidance and it is considered that a Planning Obligation is
required in respect of the following matters: 
• A financial contribution towards additional primary education
capacity;
• A financial contribution towards additional secondary education
capacity;
• A financial contribution towards off site children’s play; and
• A financial contribution towards Borders Rail 
8.43 At the point of drafting the Committee report the applicants were not
prepared to make the required developer contributions to mitigate the
impact of development – this is critical, and any shortfall in developer
contributions, if planning permission is granted, effectively is subsidised
by the Council.  The applicant’s position is that the proposed developer
contributions being sort are excessive and are not agreed.  Given that
provision cannot be made for essential infrastructure and
environmental requirements related to the scale and impact of the
proposed development, the proposal is therefore contrary to policies
IMP1 and IMP2. 
Page 72 of 80

Page 73

Other Matters 
8.44 In terms of the comments made by representors not addressed above -
while the proposal may affect the view from existing properties, this is
not a material planning consideration. 
9. RECOMMENDATION 
9.1 It is recommended that planning permission be refused for the following
reasons: 
1. As a result of the proposed loss of trees and ground levelling works
required to accommodate the access and visibility splays the
development will have a significant detrimental impact on the local
landscape and character and appearance of the surrounding area,
contrary to policies DEV2, DEV6, DEV7, ENV7 and ENV11 of the
Midlothian Local Development Plan and the aims of National
Planning Framework 4. 
2. The proposed development will result in the significant loss of trees
and woodland which will result in the degrading of the landscape
buffer and resultant definition of the settlement edge in this area, to
the detriment of the character and appearance of the conservation
area and local landscape, contrary to the aims of policies ENV7 and
ENV11 of the Midlothian Local Development Plan and the aims of
National Planning Framework 4. 
3. The proposed access and associated works will result in a
significant adverse impact on road safety which will be to the
detriment of the safety of road users. 
4. By not meeting the required developer contribution requirements
the proposed development does not mitigate its impact on local
infrastructure and the environment and as such does not accord
with Midlothian Local Development Plan Policies IMP1 and IMP2. 
Page 73 of 80

Page 74

Peter Arnsdorf
Planning, Sustainable Growth and Investment Manager
Date: 1 September 2023
Application No:    23/00145/DPP
Applicant:  Mr John Cook, Dimension Homes Limited
Agent:         Eoghain Fiddes, Fiddes Architects 
Validation Date:  21 March 2023
Contact Person:  Mhairi-Anne Cowie, Planning Officer
Email:   mhairi-anne.cowie@midlothian.gov.uk
Background Papers: Planning applications 19/00411/DPP and
17/00167/DPP
Attached Plans: Location plan, site plan and elevations.
Page 74 of 80

Page 75

File No.
1:1,250Scale:
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 Erection of 3 dwellinghouses
Land 100m South of Glenarch Lodge, Dalkeith
23/00145/DPP
Location Plan
Page 75 of 80

Page 76

Site Plan
Page 76 of 80

Page 77

Elevations
Page 77 of 80

Page 78

Page 78 of 80

Page 79

Page 79 of 80

Page 80

Page 80 of 80