Agenda item

The Local Review Body then considered the second request for a review.  The Chairperson advised that the LRB would be addressed by Ms Lucy Greene and reminded members that Ms Greene 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.  Ms Greene would not be asked to express any view on the proposed application.

Ms Greene explained that the application which was the subject of the review was for the removal of Condition 1 (Control of Occupancy) from Planning Permission P120873 in relation to Baads Farm, Peterculter.  Ms Greene advised that she had checked the submitted Notice of Review and had found it to be valid and submitted within the relevant timeframes.

She explained that the application related to a site located in the countryside some 3.5km to the north west of Peterculter.  The site comprised unused agricultural land and was located to the east of Hillcrest Courtyard.  Access to the site was via a 350m long single track private road which served seven houses and an agricultural shed.  Ms Greene advised that an application for planning permission (140187) was refused under delegated powers in March 2014 for the removal of Condition 1 from planning permission 120873, and noted that the current application (141149) related to the same proposal, but included further justification from the applicant’s solicitor and chartered surveyor.  Ms Greene explained that planning permission (110648) was approved by the Planning Committee against officer recommendation in October 2011 for the erection of a residential dwelling, garage and associated stud farm.  Conditions had been applied to the permission, namely:- restricting the occupancy of the house to a person employed full time in the stud farm business and the dependents, widow or widower of such a person; conditioning the phasing of the development to ensure that the stables and associated infrastructure were constructed and available for use prior to the commencement of the house and garage; the restriction of the hours of construction; the requirement for the submission of schemes of all external lighting and drainage/sewage facilities; the submission of samples of all external finishing materials and the provision of landscaping and tree planting on the site.  Ms Greene explained that the construction of the stud farm had been the main reason behind the Planning Committee approving the application, noting that the proposed house was only considered to be acceptable by the Committee due to the requirement for employee accommodation relating to the stud farm.

Ms Greene explained that there had been an objection to the proposal from Culter Community Council which stated that the proposal would be contrary to the Green Belt policies within Scottish Planning Policy (SPP), as well as Policy NE2 (Green Belt) of the Aberdeen Local Development Plan.  The letter also raised concerns about the use of sections of SPP which were aimed at rural areas outside of Green Belts, as well as the proposal being reliant on advice from the Chief Planner which was aimed primarily at developments located outwith the Green Belt.  Ms Greene advised that four letters of objection had also been received, raising concerns about the removal of the condition; noting that condition 2 of the planning consent had required that the stud farm be brought into use before any construction of a dwellinghouse or garage, and noting that there appeared to be no progress in this regard; noting that the proposal would set an undesirable precedent for future development; highlighting concerns in relation to the increase in traffic as a result of the development; stating that the materials of the proposed dwellinghouse would be out of keeping with those in the surrounding area; raising concerns in relation to drainage; and stating that the development would have a negative impact on the surrounding landscape.

In relation to documents which the members of the Local Review Body should consider, Ms Greene outlined that all of the following documents were accessible via web links and available as set out in the papers:-

Scottish Planning Policy, paragraphs 49 and 51 in relation to green belt; the Aberdeen City and Shire Structure Plan which provided a spatial strategy for development; the Aberdeen Local Development Plan Policy NE2 (Green Belt) – that no development would be permitted in the green belt for purposes other than those essential for agriculture, woodland and forestry; recreational uses compatible with an agricultural or natural setting; mineral extraction; or restoration or landscape renewal.

A number of exceptions applied in relation to NE2, and proposals for development associated with existing activities in the green belt would be permitted, but only if all of the following criteria were met:-

·         The development was within the boundary of the existing activity

·         The development was small-scale

·         The intensity of activity was not significantly increased

·         Any proposed built construction was ancillary to what existed

Also of relevancy was the letter from the Chief Planner of November 2011 in relation to Occupancy Restrictions and Rural Housing which clarified the Scottish Government’s view on the use of conditions or planning obligations to restrict occupancy of new rural housing.  The letter stated that the Government believed that occupancy restrictions were rarely appropriate and so should generally be avoided, but stated that in areas (including Green Belts) where there was a danger of suburbanisation of the countryside or an unsustainable growth in long distance car-based commuting, there was a sound case for a more restrictive approach.

Section 42 of the Town and Country Planning (Scotland) Act 1997 (as amended) required the planning authority in determining the application only to consider the question of condition(s) subject to which the previous planning permission should be granted.  The planning authority had the option to approve the permission subject to new or amended conditions, or to approve planning permission unconditionally.  Alternatively, the planning authority could refuse the application, which would result in the conditions on the original application remaining.

Ms Greene explained that the planning officer had considered that Condition 1 met the six tests set out in Circular 4/1998 – namely, that conditions should only be imposed where they were necessary; relevant to planning; relevant to the development to be permitted; enforceable; precise and reasonable in all other respects.  The planning officer had considered that Condition 1 met the test of necessity as it was required to ensure compliance with the Development Plan.  Condition 1 was considered to be relevant to planning, given that it was required to control the use of the land; was relevant to the development permitted; was enforceable; precise and was considered to be reasonable in all other respects.

Ms Greene further explained that it was important to point out that within the Statement of Reasons, submitted with the notice of review, the applicant had submitted letters from Gavin Bain & Co and Shepherd which advised that the condition severely restricted the potential occupation of the property if it were to be constructed, and that mortgage lenders were reluctant to lend on land or property which was effectively ‘tied’.  Within the supporting statement from Suller and Clark, it was stated that there had been a material alteration in the circumstances in that the applicants had found it impossible to achieve finance for the build with the occupancy restriction in place.  The statement also made reference to Scottish Planning Policy, PAN 73, the Aberdeen Local Development Plan, Circular 4/1998 and advice from the Chief Planner, and argued that the development of the stud farm fell within a recreational use compatible with an agricultural or natural setting.

Ms Greene advised that the stated reason for refusal was as follows:-

That the proposed deletion of Condition 1 of planning permission P120873, relating to occupancy, was contrary to Scottish Planning Policy and Policy NE2 (Green Belt) of the Aberdeen Local Development Plan, which sought to protect the integrity of Green Belts, and in particular, sought to avoid the granting of individual planning permissions to prevent the cumulative erosion of a green belt.  If it were not for the specific individual requirements of the business, the house would not have complied with planning policy and would have been ultimately refused.  The removal of this condition would undermine the policies which sought to protect the integrity of the green belt which sought to safeguard against unsustainable development and suburbanisation of the area.  It was judged necessary to impose Condition 1 to ensure that the development complied with planning policies.  It was judged that Condition 1 met the tests set out in Circular 4/1998.  The advice in the letter from the Chief Planner (4 November 2011) had also been considered.  The proposal to delete Condition 1 was considered unacceptable in planning policy terms and no sufficient justification had been submitted from the previous refusal (Ref: 140187) in order to justify the removal of the Condition.

Ms Greene added that the submitted papers included an appeal notice of determination relating to a case in Aberdeenshire but advised members that the application did not relate to the green belt, and was in relation to planning obligations, rather than the imposition of conditions.

Members then asked a number of questions of Ms Greene. 

At this point, the Local Review Body considered whether it had sufficient information before it to determine the review.  Members thereupon agreed that the review under consideration be determined without further procedure.

Members noted that planning permission had been approved by the Planning Committee in October 2011 on the proviso that the house was required accommodation for employees of the proposed stud farm, and also added that they considered that removal of Condition 1 would not comply with Policy NE2 (Green Belt) of the Aberdeen Local Development Plan.  It was noted that removal of the Condition would effectively allow an application for a dwellinghouse within the green belt with no restrictions and therefore Members unanimously agreed to uphold the decision of the appointed officer 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(2) of the Town and Country Planning (Scotland) Act 1997 (as amended) which required that where, in making any determination under the planning acts, regard was to be had to the provisions of the development plan and that determination should be made in accordance with the plan, so far as material the application, unless material considerations indicated otherwise.

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

That the proposed deletion of Condition 1 of planning permission P120873, relating to occupancy, was contrary to Scottish Planning Policy and Policy NE2 (Green Belt) of the Aberdeen Local Development Plan, which sought to protect the integrity of Green Belts, and in particular, sought to avoid the granting of individual planning permissions to prevent the cumulative erosion of a green belt.  If it were not for the specific individual requirements of the business, the house would not have complied with planning policy and would have been ultimately refused.  The removal of this condition would undermine the policies which sought to protect the integrity of the green belt which sought to safeguard against unsustainable development and suburbanisation of the area.  It was judged necessary to impose Condition 1 to ensure that the development complied with planning policies.  It was judged that Condition 1 met the tests set out in Circular 4/1998.  The advice in the letter from the Chief Planner (4 November 2011) had also been considered.  The proposal to delete Condition 1 was considered unacceptable in planning policy terms and no sufficient justification had been submitted from the previous refusal (Ref: 140187) in order to justify the removal of the Condition.

- RAMSAY MILNE, Chairperson