Agenda item

Reference Number - 111468

The Sub Committee had before it a report from the Head of Planning and Sustainable Development which recommended:-

that the Sub Committee approve the application for a proposed Class 1 (Food Store) Development, car parking, petrol filling station, means of access, landscaping and associated works at the former Summerhill Academy site, Lang Stracht, Aberdeen, subject to the completion of a legal agreement with the following conditions:-

(1)  That no development shall take place unless a scheme of all drainage works designed to meet the requirements of Sustainable Urban Drainage Systems has been submitted to and approved in writing by the planning authority and thereafter no part of the development shall be occupied unless the drainage has been installed in complete accordance with the said scheme.  (2) Prior to the commencement of any development on site a comprehensive Travel Plan that sets out proposals for reducing dependency on the private car shall be submitted to and approved in writing by the planning authority, in consultation with Transport Scotland.  The Travel Plan shall identify measures to be implemented; the system of management, monitoring, review and reporting; and the duration of the plan.  (3)  Prior to the occupation of any part of the development the modifications to the A90(T)/Kings Gate roundabout, generally in accordance with figure 9.13 of the SKM Colin Buchanan Transport Assessment dated September 2011, together with timing adjustments to the A90(T)/Lang Stracht signal junction, shall be implemented, or a contribution in lieu of the physical works made to Transport Scotland, to the satisfaction of the planning authority, after consultation with Transport Scotland.  (4)  That prior to the commencement of the development hereby approved the operator shall submit to and have agreed in writing with the planning authority a management plan for the routing of construction vehicles to and from the site which shall subsequently be implemented in accordance with the agreed scheme.  For the avoidance of doubt all construction vehicles shall be required to access and exit the site using the main entrance on Stronsay Drive via Lang Stracht/A944 and North Anderson Drive/A90(T) only.  (5)  That for the avoidance of doubt this planning consent hereby granted shall be strictly for 6,331 sq.  metres floor area only (this provision shall allow for 3,383 square metres or thereby of trading floorspace and 2,948 square metres non-trading floorspace within the store) and that any permitted development rights by virtue of S26 (2)(a)(i) of the Town and Country Planning (Scotland) Act 1997 are hereby removed.  (6) That the development hereby approved shall not be occupied unless the car parking areas hereby granted planning permission have been constructed, drained, laid-out and demarcated in accordance with drawing No.  AL(0)06 RevE of the plans hereby approved or such other drawing as may subsequently be submitted and approved in writing by the planning authority.  Such areas shall not thereafter be used for any other purpose other than the purpose of the parking of cars ancillary to the development and use thereby granted approval.  (7)  That all planting, seeding and turfing comprised in the approved scheme of landscaping shall be carried out in the first planting season following the completion of the development and any trees or plants which within a period of 5 years from the completion of the development die, are removed or become seriously damaged or diseased shall be replaced in the next planting season with others of a size and species similar to those originally required to be planted, or in accordance with such other scheme as may be submitted to and approved in writing for the purpose by the planning authority.  (8)  That no development shall take place unless a plan showing those trees to be removed and those to be retained and a scheme for the protection of all trees to be retained on the site during construction works has been submitted to, and approved in writing by, the planning authority and any such scheme as may have been approved has been implemented.  (9)  That any tree work which appears to become necessary during the implementation of the development shall not be undertaken without the prior written consent of the planning authority; any damage caused to trees growing on the site shall be remedied in accordance with British Standard 3998: 2010 "Recommendations for Tree Work" before the building hereby approved is first occupied.  (10)  That no materials, supplies, plant, machinery, spoil, changes in ground levels or construction activities shall be permitted within the protected areas specified in the aforementioned scheme of tree protection without the written consent of the planning authority and no fire shall be lit in a position where the flames could extend to within 5 metres of foliage, branches or trunks.  (11)  That, except as the planning authority may otherwise agree in writing, no construction or demolition work shall take place:  (a)  outwith the hours of 7.00 am to 7.00 pm Mondays to Fridays; (b)  outwith the hours of 9.00 am to 4.00 pm Saturdays; or (c)  at any time on Sundays, except (on all days) for works inaudible outwith the application site boundary.  [For the avoidance of doubt, this would generally allow internal finishing work, but not the use of machinery].  (12)  That no development shall take place unless it is carried out in full accordance with a scheme to deal with contamination on the site that has been approved in writing by the planning authority.  The scheme shall follow the procedures outlined in Planning Advice Note 33 Development of Contaminated Land and shall be conducted by a suitably qualified person in accordance with best practice as detailed in BS10175 Investigation of Potentially Contaminated Sites - Code of Practice and other best practice guidance and shall include: (1)  an investigation to determine the nature and extent of contamination, (2)  a site-specific risk assessment, (3)  a remediation plan to address any significant risks and ensure the site is fit for the use proposed.  No building(s) on the development site shall be occupied unless (1)  any long term monitoring and reporting that may be required by the approved scheme of contamination or remediation plan or that otherwise has been required in writing by the planning authority is being undertaken and  (2)  a report specifically relating to the building(s) has been submitted and approved in writing by the planning authority that verifies that remedial works to fully address contamination issues related to the building(s) have been carried out, unless the planning authority has given written consent for a variation.  The final building on the application site shall not be occupied unless a report has been submitted and approved in writing by the planning that verifies that completion of the remedial works for the entire application site, unless the planning authority has given written consent for a variation.  (13)  Development shall not commence until a Bird Hazard Management Plan has been submitted to and approved in writing by the planning authority.  The submitted plan shall include details of - management of any flat/shallow pitched/green roofs on buildings within the site which may be attractive to nesting, roosting and “loafing” birds.  The management plan shall comply with Advice Note 8 ‘Potential Bird Hazards from Building Design’  The Bird Hazard Management Plan shall be implemented as approved,on completion of the development and shall remain in force for the life of the building.  No subsequent alterations to the plan are to take place unless first submitted to and approved in writing by the planning authority.  (14)  That the development hereby permitted shall not be brought into use until the zero/low carbon equipment has been installed in full accordance with the details shown on the approved plans.  (15) That none of the units hereby granted planning permission shall be occupied unless the cycle storage facilities as shown on drawing no.  AL(0)06 RevE have been provided.  (16)  That the use hereby granted planning permission shall not take place unless a scheme showing the proposed means of filtering, extracting and dispersing cooking fumes from the premises has been submitted to and approved in writing by the planning authority and that the said scheme has been implemented in full and is ready for operation.  (17)  That the use hereby granted planning permission shall not take place unless provision has been made within the application site for refuse storage and disposal in accordance with a scheme which has been submitted to and approved in writing by the planning authority.  (18)  That the development hereby granted planning consent shall not be occupied until the following road improvements have been implemented to the satisfaction of the planning authority:- (1) The Stronsay Drive/Stronsay Place/Eday Road junction shall be signalised in accordance with the engineering details shown on SKM Colin Buchanan Drawing No.  VN19877_02_SK001 and (2)  The Stronsay Drive/Kings Gate junction shall be signalised in accordance with the engineering details shown on SKM Colin Buchanan Drawing No.  VN19877_02_SK002 which works shall include the banning of right turns at Kings Gate/Westholme Avenue.  (19)  That the operational hours for this development shall be restricted as follows unless agreed in writing with the planning authority:-  The Petrol Filling Station opening hours shall be between 07:00am to 11:00pm.  The store opening hours shall be between 7:00am to 11:00pm.  The Car/jetwash/vacuum activity shall be restricted to the hours of 7:00am to 10:00pm and all delivery activity shall be restricted to between 6:00am and 11:00pm.  (20)  That prior to the occupation of the development hereby approved the measures as identified in the applicants Acoustic Impact Assessment dated 23 September 2011 relative to this application shall be installed and operational unless otherwise agreed in writing with the local planning authority.

Prior to considering the report the Sub Committee heard from the Senior Solicitor, Legal and Democratic Services, in the following terms:-

Before Members consider Application 2.1 on the Agenda, they should know that there has been a legal challenge by Tesco Stores Limited.  They seek to quash the Local Development Plan, and to suspend it on an interim basis, pending a full Hearing.  This would have consequences for this Application – and indeed all other Applications for any sort of development in the near future.

The question of Interim Orders was heard in Court on 13 April 2012, and Interim Orders were refused.

As matters stand, therefore, the Local Development Plan is still the framework against which all Applications should be considered.

However, before doing so, the issues raised in the Tesco challenge should be considered by Members.  I think it would be helpful to set out the various questions to be answered by reference to a Court Judgement on a legal challenge to a planning decision.  I propose to read the list of tests, and then comment on each individual one as it relates to the current circumstances here.

“The question of the reasonableness of a Planning Authority’s decision should consider the circumstances of the particular case, and this includes, but is not confined to, the existence of the Appeal or legal challenge, and the possible outcomes of the Appeal or judicial process. 

Matters to be considered are:-

1.         The stage reached in the other process.

2.         The timescale for the determination of the process.

3.         The centrality or otherwise of the issue to be determined in that process to the decision whether or not to issue the planning permission under consideration.

4.         The assessment of the prospects of success of the challenge in that process.

5.         The consequences of the determination in that process for the validity of the planning permission.”

Looking at the particulars here:-

1.         Interim Orders have been refused.  The Local Development Plan is not suspended meantime.

2.         A Substantive Hearing is to be fixed, and this may be around October.

3.         As regards the centrality of the issue – the question is: if the Local Development Plan is quashed, what would that mean for the planning analysis and recommendations in the report?  Dr Bochel the Head of Planning and Sustainable Development can advise in detail, but my understanding is that the recommendation would remain the same.

4.         We have robust legal advice that we are likely to be successful in defending the legal challenge.

5.                  Even if the Local Development Plan is quashed, and the 2008 Local Plan revives, what would the consequences be for the consideration of this Application?  Again Dr Bochel can advise, but I understand that there is no material difference in the planning assessment, whether the 2008 Plan or the 2012 Plan is used.

The Sub Committee then heard from Dr Bochel, who advised that the Planning and Sustainable Development Section had not done a detailed evaluation of the application against the 2008 Local Plan because as far as the Council was concerned the 2012 Local Plan is the adopted Local Development Plan and therefore the one against which the Sub Committee should be evaluating the application.  However the only substantive difference between the two plans was that the 2008 Plan allocated the Tesco site at Rousay Drive as a District Centre once it has been completed and occupied, which has not yet been done.  The same policy considerations would however apply.  In both Plans the sites have a residential allocation, albeit that in the 2008 Plan the Tesco site is identified as an opportunity site whilst the Summerhill site, which is currently under consideration, was not.

There followed a series of questions by members relating to traffic, the impact to cyclists, and the retail impact of two potential stores in the area.

The Sub Committee then heard from Councillor Jennifer Stewart as a local member of a neighbouring ward who expressed concerns of residents in the area regarding the traffic implications if the proposal was to be approved.  She enquired whether the Travel Plan detailed in the report could be amended to condition the requirement of the applicant to operate minibuses for elderly residents in the area to take them to and from the proposed site.

The Convener moved, seconded by Councillor Donnelly:-

that the Sub Committee approve the recommendations contained in the report.

Councillor Yuill moved as an amendment:-

that the Sub Committee defer consideration of the application for one cycle to allow further discussion between the applicant, planning officers and the Aberdeen Cycle Forum to look at the concerns raised by the Forum in relation to the transportation elements of the application.

Councillor Yuill failed to receive a seconder for his amendment, therefore, the amendment was not put to the vote.

Councillor Boulton moved as an amendment:-

that the Sub Committee refuse the application due to the accumulative impact the application would have on residents and businesses in the area and due to the traffic congestion the proposal would generate and the impact the proposal would have on cyclists in the area due to the proposals for the cycle lane and the removal of part of the bus lane.

Councillor Boulton failed to receive a seconder for her amendment, therefore, the amendment was not put to the vote.

The Sub Committee resolved:-

(i)         to approve the recommendation contained in the report; and

(ii)        to request that further discussions be held between the applicant and planning officers with regard to a possible amendment to the Travel Plan as detailed by Councillor Jennifer Stewart.