Agenda item

Members, please note that all plans and supporting documents relevant to the review can be viewed online here and by entering the application reference number 240753.

The LRB then considered the third request for a review to evaluate the decision taken by an appointed officer under the Council’s Scheme of Delegation to refuse the application for the change of use of amenity land to domestic garden ground and erection of fence (partly retrospective) at the Mount, the Bush, Aberdeen, planning reference 240753.

The Chairperson stated that although the Planning Adviser for the LRB was employed by the planning authority, she had not been involved in any way with the consideration or determination of the application under review and was present to provide factual information and guidance to the Body only.  He emphasised that the officer would not be asked to express any view on the proposed application.

In relation to the application, the LRB had before it (1) a delegated report and decision notice by the Appointed Officer, Aberdeen City Council; (2) an application dated 18 June 2024 (3) links to the plans showing the proposal and planning policies referred to in the delegated report; (4) and the Notice of Review submitted by the agent. 

Ms Greene then described the site and outlined the appellant’s proposal.   The site comprised a c.300sqm area of open space to the northeast of a semi-detached dwellinghouse known as ‘The Mount’ in Peterculter. The site had been the subject of an unauthorised change of use to garden ground associated with this dwelling. An unauthorised fence had also partially been erected around the area, alongside a pergola structure and paving, which did not have planning permission. Prior to the unauthorised change of use, the site formed part of an area of a large area of open space which surrounds the site to the west, north and east and is mature woodland. The trees on the site were protected by a Tree Preservation Order and historic maps dating from 1866 indicate that the area has continuously been woodland, pre-dating much of the development of Peterculter.

Ms Greene noted that planning permission was sought partially retrospectively for the change of use of the application site from amenity land to domestic garden ground and for the erection of a fence to enclose the area. The fencing was c.2m in height. It projected approximately 11.5m beyond the established curtilage boundary to the north of the site (and that of the adjacent property) and there were c.21m, c.5.5m and c.11.5m long sections of fence, enclosing the area that extended to approximately 300 sqm.

Ms Greene indicated that the appointed officer’s reasons for refusal outlined in the report of handling was as follows:-

The change of use of this land to domestic garden ground and the erection of fencing results in the enclosure and loss of an area of open space and mature woodland habitat of local biodiversity value and that contributes to the character of the surrounding area. The proposal thus conflicts with Policy 6 (Forestry, Woodland and Trees) of National Planning Framework 4 (NPF4) and Policies H1 (Residential Areas) and NE2 (Green and Blue Infrastructure) of the Aberdeen Local Development Plan 2023 (ALDP). The siting of the fence and resultant irregular boundary layout is inconsistent with the established pattern of development and adversely affects the character of the area, in conflict with Policies 14 (Design, Quality and Place) and 16 (Quality Homes) of NPF4, and Policy D1 (Quality Placemaking) of the ALDP and the Householder Development Guide Aberdeen Planning Guidance.

Commensurate with the scale of the proposal, the development did not place significant weight in positively addressing the global climate and nature crises, which was contrary to Policies 1 (Tackling the Climate and Nature Crises, 2 (Climate Mitigation, and Adaptation) and 3 Biodiversity of NPF4. Notwithstanding every application is assessed on its merits, in conflict with the Householder Development Guide Aberdeen Planning Guidance, the proposal could give rise to the setting of a precedent that would make it difficult to resist similar proposals in the future which cumulatively could result in the gradual erosion of and fragmentation of open space and habitat. Such an approach would exacerbate the adverse impacts and cumulatively be significantly detrimental to the biodiversity, character and amenity of the area.

Ms Greene outlined the key points from the appellant’s Notice of Review as follows:-The land in question was 15m wide strip to the north and east of the boundary;

·       The site plan showed restricted area of existing garden, and there was barely 2m between the rear of the house and the boundary;

·       The extension was very close to the existing boundary with little room to move round it;

·       There was confusion over a previous application for extension, that showed extended garden;

·       The applicant had acted in good faith when they erected the fence around extended garden;

·       No protected trees had been removed other than storm damaged trees;

·       The land was not maintained and was dense woodland;

·       The woodland would be unaffected by the proposal and the area would provide useable garden, privacy and amenity and would not undermine remaining land

In terms of consultations, one letter of objection was received.   

Ms Greene advised that the applicant had expressed the view that no further procedure was required before determination. 

The Chairperson and Councillors Blake, Clark, Copland, and van Sweeden all indicated in turn that they each had enough information before them and therefore agreed that the review under consideration should be determined without any further procedure.

In terms of relevant policy considerations, Ms Greene referred to the National Planning Framework 4 and the Aberdeen Local Development Plan 2023.

Ms Greene then answered various questions from Members. 

Members each advised in turn and by majority agreed to overturn the earlier decision.  Planning permission was therefore granted conditionally.  The Chairperson and Councillors Clark and Copland voted to approve the application and Councillors Blake and van Sweeden voted to refuse the application. 

In coming to their decision, the Local Review Body had regard to the provisions of the development plan as required by Sections 25 and 37 of the Town and Country Planning (Scotland) Act 1997 (as amended) and other material considerations in so far as these were pertinent to the determination of the application.

More specifically, the reasons on which the Local Review Body based this decision were as follows:-

The area was not visible from public paths, no trees would be or have been lost as a result of the proposal, with the fencing having been largely erected around the space and the use effectively changed to garden. The site was not overlooked by other properties, does not function as amenity ground, with effectively no public access having existed, prior to the fence being erected, due to the density of vegetation and distance from paths. The proposal therefore does not result in the loss of a valued area of open space and would result in quality placemaking in terms of amenity space for the residents. The proposal would therefore comply with Policy H1: Residential Areas and D1: Design and Placemaking and D2: Amenity in the Aberdeen Local Development Plan 2023 (LDP) and Policy 16: Quality Homes, Policy 14: Design in National Planning Policy 4 (NPF4). With no loss of trees the proposal would also comply with Policy NE5: Trees and Woodland in the LDP and Policy 6: Forestry, Woodland and Trees in NPF4. Due to the scale of the proposal and the fact that although the use would change to garden, the ground would remain a green space, the proposal would comply with Policy 1: Tackling the Climate and Nature Crisis, Policy 2: Climate Mitigation and Adaptation and Policy 3: Biodiversity in NPF4.

CONDITIONS

This permission is granted subject to the following conditions.

(01)    DURATION OF PERMISSION

The development to which this notice relates must be begun not later than the expiration of 3 years beginning with the date of this notice. If development has not begun at the expiration of the 3-year period, the planning permission lapses.

Reason - in accordance with section 58 (duration of planning permission) of the 1997 act.

-       COUNCILLOR CIARAN MCRAE, Chairperson