Minutes of Meeting of the Planning, Development, Europe and Tourism Committee held in Council Chamber, Council Headquarters, Glenurquhart Road, Inverness on Tuesday 28 November 2006 at 11.30 a.m.
Present:
Mr A I MacDonald, Mr J H Green, Mr G M Smith, Mr D Allan, Mr R Durham, Mr E C Mackinnon, Mr R MacIntyre, Mr B Barclay, Mr J Laing, Mr R Lyon, Mr J MacDonald, Mr C L Goodman, Mr R Wynd, Mr A S Park, Mr B M S Dunlop, Mr A R MacFarlane Slack
Non-Members also present:
Mr R A C Balfour, Mr J Ford, Mr D Henderson, Mr F D S Black
Officials in attendance:
Mr R Hartland, Head of Planning and Building Standards
Mr D Mudie, Team Leader, Planning and Building Standards
Mrs R Moir, Principal Administrator, Corporate Services
Mrs L Lee, Committee Administrator, Corporate Services
Also in attendance – Representatives of Statutory Consultees:
Mr B Leyshon, Scottish Natural Heritage
Mr T Dawson, Scottish Natural Heritage
Mr A S Park in the Chair
Business
An asterisk in the margin denotes a recommendation to Council. All decisions with no asterisk in the margin are delegated to the Committee.
1. Apologies for Absence
Apologies for absence were intimated on behalf of Mr R Saxon, Mr F R M Keith (OCB), Mrs A Magee, Mr A Torrance, Mrs V MacIver, Mr M Macmillan, Mr I MacDonald, Mr W M Fulton, Mr S J Shiels, Mr J Gray, Mr N Donald, Mrs K G Matheson, Mrs L MacDonald, Mr A Gordon and Dr M E M Foxley.
2. Planning Application for Residential and Leisure Development, including Housing, Marina, Boat Yard, Yacht Club, Visitors’ Centre, Nature Conservation Zones and Hotel with Supporting Community Facilities at Whiteness Head, Ardersier, for Whiteness Property Company Ltd (05/01294/OUTIN)
The Committee was asked to consider this application in accordance with the Hearings Procedure, a copy of which had been circulated with the Committee papers for ease of reference.
In terms of Standing Order 13.2, the following Member had applied for and been granted a local Member vote: Mr R A C Balfour.
There were no declarations of interest.
The application was subject to a formal hearings procedure. In attendance in relation to the application were:
Applicants:
Mr S Fulton Whiteness Company Limited
Mr A Stewart AF Cruden Associates
In support of the application:
Dr K MacDougal Envirocentre, Glasgow
Dr J David St Andrew’s University
Objectors:
Mr A Airey Friends of Moray Firth Dolphins
Ms H Bird Whale and Dolphin Conservation Society (WDCS)
Ms E O’Grady Ministry of Defence (MOD)
Some 9 Members of the public were in attendance as observers.
Earlier in the day, Members had viewed the site from various points within the former fabrication yard at Whiteness Head, Ardersier. An aerial photograph of the site together with three artist’s impressions of the proposals on a similar scale to the photograph had been provided. Objectors and applicants had been given an opportunity to point out matters pertaining to the landscape at various locations within the site. Matters pertaining to general consideration of the application had not been discussed.
Prior to the commencement of business, the Chairman summarised the Hearing Procedures. He sought and was given an assurance by all parties that they had received a copy of these Procedures and understood the process.
There had been circulated Report No. PDET-107-06 & PDET-107-06 plan2 dated 20 November 2006 by the Director of Planning and Development on outline proposals by Whiteness Property Company Ltd. for a substantial mixed use re-development comprising a tourist/leisure settlement with 1950 new houses, hotel, marina and community facilities at the former oil rig fabrication yard at Whiteness Head, Ardersier. The site was located immediately adjacent to the Moray Firth Special Area of Conservation, designated for its bottlenose dolphin and subtidal sandbank interests and the Inner Moray Firth Special Protection Area and Ramsar site, designated for the common tern and over wintering bird interests and the coastal habitats.
11 letters of representation had been received, 9 of which were letters of objection. The key issues raised related to the proposed creation of the marina and the need to protect the existing bird and cetacean interests and also MOD concerns as to the impact on its firing range at Fort George.
The Scottish Executive Trunk Roads Authority had recommended that the application be refused on the grounds that insufficient information had been submitted on which to properly assess the deficiencies within the existing Trunk Road network. There were no other technical objections from statutory consultees. Scottish Natural Heritage (SNH) had initially objected to the proposal but had withdrawn their objection subject to the prior conclusion of a legal agreement and the implementation of a ‘robust legal mechanism’ to ensure the protection of European Protected Species and Natura interests.
The application had been advertised as contrary to the Development Plan as:
(i) the site was safeguarded for industrial use in the Inverness Local Plan;
(ii) the proposals were contrary to Structure Plan Policy H2 as it applied to the A96 corridor, as the proposed new settlement was relatively remote from the existing public transport network and the major employment opportunities at Inverness;
(iii) the proposals did not comply with Structure Plan Policy H1, in terms of housing need, as current land supply calculations indicated that there was an over-supply of land for housing to meet the Structure Plan targets, and the proposals were therefore premature in respect of housing land allocation.
Development within the A96 corridor was supported in principle by the National Planning Framework and Highland Structure Plan, as well as the non-statutory Council policy documents such as the Inverness City Vision and the on-going A96 Corridor Strategy and Master Plan work, but these all pointed to development over the longer term and particularly post 2011. It was recognised, however, that the majority of the proposed development would happen only after 2011. Moreover, this was a high quality development with tourism and employment opportunities and would result in the remediation of contaminated land on a large brown-field former industrial site.
It was recommended that outline planning permission be granted, subject to adequate controls on the marina activity and access being secured prior to the grant of permission, and also subject to referral of the application to Scottish Ministers.
The Team Leader, Planning and Building Standards summarised the application and drew attention to the National and European environmental designations applying to the site, the area’s designation within the Local Plan, the objections received, the views of Scottish Natural Heritage (SNH) and the Scottish Environment Protection Agency (SEPA), whose initial objections could be addressed subject to various conditions being imposed on any permission granted, the outstanding objection by the Trunk Roads Authority, and the development plan and government policies and other material considerations which required to be taken into consideration.
Hearings Procedure
Applicants
Mr S Fulton set out the background to the application, drawing attention to the time taken to purchase the site, and advising that a year had been spent preparing the application prior to submission, which had involved detailed consultation with the Planning and Development Service, Statutory Consultees and local residents, and responding to concerns raised by objectors. Account had been taken of, amongst other things, the Development Plan, the environmental designations and flood risk issues. Around £750,000 had been spent on preparatory and design work. The site was extraordinary and the development company had gone to considerable lengths to secure a top quality architect to prepare plans which would match with the general thrust for excellence in this area. The plans had been submitted to the Design Council for Scotland, which had recommended that measures be put in place to prevent the plans being altered, should the site subsequently be sold to a new developer. The designs had also received an award at the Scottish Design Awards in May 2006.
Following submission of the application, several further months had been spent in compiling additional information sought by Statutory Consultees, some of which had been very detailed in nature. It was hoped that the outstanding objection by the Trunk Roads Authority would be resolved within the following week or two. The development company had taken care not to rush the project, had been transparent in all its activities and would make an appropriate developer contribution to the A96 corridor development. There was strong public support for the proposals. Any promises made by the development company in the course of consultations would be honoured, with legal agreements put in place where required.
At present, despite the requirements of the 1994 Habitats Regulations relating to protection of the natural environment, there were no arrangements in place in the Moray Firth to police the marine environmental designations. However, as part of the proposed development, a new Harbour Board for Ardersier would be set up, and the new Harbour Master would be given control over the activity of marine craft in the area. This would not be limited to vessels mooring in the marina. Power boats and jet skis would not be permitted. In addition, a marine Ranger and a new marine chart, providing additional details on the Firth, would be provided at the developer’s expense. Working with SNH, the developer would also put in place an extensive scheme of wildlife monitoring and research.
In answer to questions raised regarding provision of a cycleway between the development and Nairn, Mr Fulton advised that, should the Council extend the Moray coastal footpath from Nairn towards Inverness, the development company would accommodate the Council’s requirements. The company was supportive of cycle-ways and greenways generally, and there was potential for the salt marsh to be considered a linear park. The comments made by the Highland Cycle Campaign would be incorporated into the Master Plan and the developers would work with SNH to find a route which avoided sensitive wildlife areas.
In response to concerns raised as to whether the development would put the needs of people and housing first, rather than roads, Mr Fulton indicated that the proposed road schemes would include traffic calming measures and that the proposed promenade would be designed to be complement the surrounding buildings. Later in the meeting, the Head of Planning and Building Standards informed Members that the need to improve the layout of housing developments generally was recognised and that talks with roads engineers in this regard were due that week. The Whiteness development, if approved, would provide a good opportunity to take forward an improved approach.
Mr Fulton further advised that corrosion problems with steel pile walling experienced at various Highland harbours would be prevented by galvanising the component parts; the existing steel pile wall would also be reduced in length and a designed revetment constructed, to allow easier access to the sea. Whilst the development company believed that around 500 berths could be accommodated at the marina without detrimental effect to the environment, they had agreed that only 150 berths be provided initially, and that wildlife be monitored so that the impact of boats mooring at the berths could be assessed. Any application for an incremental increase in the number of berths would take account of the monitoring findings. The positioning of the proposed Waste Water Treatment Plant was being reconsidered in light of new flood data and was now unlikely to impact on the residents who had lodged an objection in this regard.
Particular concerns were raised by the local Member regarding the Ministry of Defence Firing Range at Fort George. He stressed that the range was important to the local economy and also formed an important part of the UK’s defence structure, being used extensively for training. It was therefore very important that the range was not jeopardised by the development. The local Member maintained that, even if new residents signed a legal agreement to the effect that they accepted that there would be noise from the range, this would not be binding on any subsequent purchasers; and it was possible that complaints could then be brought under Human Rights legislation. This could result in restrictions on the MOD’s activities, which could ultimately lead to the range being relocated, to the detriment of the local economy. He requested that, as a mitigation measure, the developer provide 5m high bunding, topped with trees, from the West corner of the site to the shore. In response, Mr Fulton stated that this was a new suggestion, and had not previously been considered, but that the development company were working closely with the MOD to accommodate their needs. As earthworks were already proposed in that vicinity as part of remodelling the lochan, it was possible that bunding could also be provided. The development company would work with SNH to investigate what might be possible in this regard.
Third Party Objectors
There being no representatives from Statutory Consultees wishing to speak, and no objecting Community Councils, the objectors were then given the opportunity to address the Committee.
Mr A Airey, on behalf of Friends of Moray Firth Dolphins, stated that he had had extensive experience in observing wildlife around the world, and had spent hundreds of hours on the walls of Fort George observing the dolphins and porpoises. He had great concern that the development could affect both species. The Moray Firth was narrow at that point and part of the dolphin’s feeding behaviour was to form a line across the firth to catch fish; the area was also used for resting and nursing young. These activities were already disrupted by boats, which could cause the cetaceans to flee. In some cases this might mean dolphins could lose their meal that day. It was therefore possible that an increased number of boats might cause them to leave the area completely. Tourists at Fort George noticed the impact of boats on dolphin behaviour. It was therefore easily discernable, and at least one established tourist guidebook had also commented on boat traffic in the Firth causing unnecessary stress to the dolphins. Whilst he welcomed the proposed mitigation measures, these would not address problems caused by increased boat traffic in the Firth. Mr Airey also had concerns regarding the impact that the noise of pile driving during construction would have on the dolphins and referred to research carried out by Dr J David which showed that bottlenose dolphins could be disturbed at distances up to 40km from such works.
In answer to questions raised, Mr Airey stated that he had not been involved in observing the dolphins during the time when the former fabrication yard on the site had been in operation. He also advised that, whilst dolphins appeared to enjoy following boats and playing, around 80% of the time they were feeding, resting or nursing young and required to be left undisturbed during these periods.
Ms H Bird spoke on behalf of the Whale and Dolphin Conservation Society. She stated that the proposals would cause an increase in boat traffic, which would impact on the Special Area of Conservation (SAC); bottlenose dolphins were protected by both UK and European legislation. Additional boats would give rise to increased noise, boat strikes and chasing and harassment, even if the latter were unintentional. Boat strikes were already a problem. There would also be noise disturbance during the construction period. The mitigation measures were not specific enough and did not address issues arising from the increase in boat traffic. Account also had to be taken of other proposed future developments in the Firth, such as off-shore wind farms. Dolphins were an important tourist attraction. An integrated Development Plan was needed to take account of the dolphins’ interests.
In response to questions raised, Ms Bird stated that it was difficult to know how many boat strikes there had been in the past two years as not all fatalities washed ashore. However, the Moray Firth dolphin population was small and the loss of even one dolphin had a serious impact. Research had been carried out by Aberdeen University over the previous 8 years, and further information was available on the Internet. There was increasing evidence that cetaceans were affected by human activity, but further evidence was required. Members commented that previous activity in the Firth, such as the large number of small fishing boats earlier in the 20th Century, the industrial activity at the Whiteness fabrication yard and the construction and operation of the Kessock Bridge had not caused the dolphins to relocate. Ms Bird again drew attention to the lack of firm evidence as to the impact of human activity and to the benefits to be gained from the dolphins’ presence in the Moray Firth.
Ms E O’Grady spoke on behalf of the MOD and drew attention to the serious difficulties which the development would cause for the operation of the MOD firing range at Fort George. The firing range was immediately adjacent to the site. At present, when boats passed through the live firing area, all firing stopped, causing at least 20 days’ training per year to be lost. There was night firing on 40 days per year. It was important that maximum use was made of the range. The existing bye-laws gave the MOD power to prevent vessels from cruising around and/or anchoring within the danger area; however, vessels navigating a passage through the area could not be prevented from so doing. It was likely that an increased number of boats passing through the Firth without restriction would lead to the range being closed. Whilst most boat owners were responsible, there needed to be controls for the minority who were irresponsible. Ms O’Grady formally requested that arrangements be put in place through condition and/or a Section 75 agreement whereby the MOD would work in partnership with the appropriate parties involved in management of the moorings and sea ranger. She stated that firing would cease at certain publicised periods of the day to allow free passage of vessels.
Ms O’Grady also raised concerns regarding the potential for new residents to object to noise from the firing range, as this could also threaten the future of the facility. She asked that a clause be entered into the title deeds, through condition and/or legal agreement, under which new residents would note the existing noise situation and agree that the level of noise was acceptable to them. She stated that, if the above two requests were agreed, the MOD would make its objections conditional and withdraw its request to the Scottish Executive to call in the application. In response to the local Member’s suggestion regarding bunding, she advised that this idea had not been previously considered, but, subject to a survey to identify the best location, the proposal would be welcomed.
In answer to questions raised, Ms O’Grady stated that the MOD sought a scheme of good practice, whereby boats would be made as aware as possible of the firing range’s hours of free passage. The revised marine chart could, for example, contain such information; the Ranger service would also help disseminate information, and information could be provided at the entrance to the Caledonian Canal, or at other places frequented by boats using the Firth.
In response to a suggestion that a way forward in this regard would be for the MOD to be represented on the Ardersier Harbour Board, Mr Fulton indicated that he was content with this proposal and stated that the conditions relating to the firing range could be included in a condition/legal agreement. He was confident that the spirit of partnership would bring about a satisfactory solution.
Applicants’ response to points made
Mr Fulton informed the Committee that discussions had taken place with Mr Airey and a further objector, Mr P MacDonald, and that the mitigation measures had been drawn up taking their genuine concerns into account. Mr Fulton had also spoken to a Mr Isaacs from the WDCS headquarters and was of the understanding that Mr Isaacs had been reassured that the development company were taking the dolphin issue seriously.
With regard to the potential impact of the development on dolphins, Dr J David accepted that there was a lack of available evidence. In particular, there was no base-line data against which to measure impact. However, the developers’ proposals would address this. He drew Members’ attention to the information contained in two reports on the impact of human activity on cetaceans, which provided an objective, measured assessment, and advised that anecdotal comments needed to be judged against these. He was aware of 3 three instances in the previous two years where dolphins had shown injuries consistent with boat strikes; however, the cause of injury could not be proved. The greatest disturbance to cetaceans in the Moray Firth was tour boats, whose business depended on bringing tourists as close as possible to dolphins and porpoises. There was no control at present as to how these boats operated, and the developers’ proposals would address this. Dr David also clarified Mr Airey’s reference to his work on the impact of the noise of pile drivers in construction on cetaceans, stating that his findings related to impact pile drivers, whereas those proposed for use at Whiteness were vibratory. Also, his work had stated that the sound “could be detected” by cetaceans, rather than that it would cause disturbance.
In answer to further questions, Mr Fulton confirmed that the findings of the research and monitoring work would be binding – their purpose was to inform management practices. He was unsure as to how this would be implemented, but believed the requirements could be incorporated into a Section 75 agreement.
In accordance with procedure, the Chairman sought and was given confirmation from the objectors and applicants that (i) there were no further parties wishing to speak and (ii) they were satisfied with the way the hearing had been conducted.
Summing Up and Discussion
The Team Leader, Planning and Building Standards, reiterated the planning considerations for the Committee to bear in mind in determining the application. He stated that the majority of issues could be resolved through conditions, and the MOD’s objections, if Members agreed, could be addressed through conditions and/or legal agreement and, if appropriate, their being given a designated place on the new harbour authority. Consideration of proposals for bunding, to mitigate problems arising from the proximity of the MOD range, could be dealt with under the landscaping conditions that would require details to be submitted at the reserved matters stage. It was hoped that the outstanding objection by the Trunk Roads Authority would be resolved in the following weeks, prior to the application being referred to Scottish Ministers, should the Committee be minded to approve the application. SNH were content with the proposed mitigation measures and legal mechanisms would be used to support these, including access restrictions to the most sensitive areas.
Despite being contrary to the Development Plan in respect of housing land allocation, the application was recommended for approval on the grounds that:
· a total of 1950 new homes would be created, 25% of which would be affordable, thereby meeting the longer term aspirations of the Council with regard to the future expansion of Inverness identified in the National Planning Framework
· a quality tourist destination would be developed with associated employment opportunities
· the development would result in the remediation from contamination of a substantial single-user former industrial site
· the development would be of the highest quality, founded on principles of sustainability.
The local Member drew attention to potential difficulties with regard to the provision of schooling, which he felt were more serious than the report indicated. Culloden Academy’s school roll had recently been capped and Nairn Academy was reaching capacity. If around 488 affordable houses were built, it was reasonable to estimate that this would generate around 300 additional school children. Provision should be made at this stage to address this and a contribution towards a new secondary school at Nairn should be made by the developers.
Discussion followed, with a range of comments being made, including that:
· the plan was ambitious, but a world class complex would be created
· the proposals were an excellent use of a former industrial site
· there were concerns regarding the dolphins and other wildlife, but these would be addressed through conditions and controls; SNH had withdrawn their objection to the proposals
· in additions to schools nearing capacity, there was an urgent need for improvement to other infrastructure, including roads and medical services.
In response to concerns raised that the use of this former industrial site for a leisure and residential development reduced the amount of land available for industrial enterprises and could have a detrimental effect on economic development, the Team Leader, Planning and Building Standards, advised that the Inner Moray Firth Ports and Sites Working Group had assessed the potential for all the industrial sites around the Moray Firth, and, in that comparative exercise, the Whiteness site had been found to be the least favourable for industrial development. Other sites were available, with greater potential. He also advised, with regard to the provision of educational facilities, that the Education, Culture and Sport Service had indicated that they wished to reserve their position on this meantime. With regard to how the application would progress should outstanding objections prove difficult to resolve, he advised that bringing the application to Committee at this stage was a risk the developer had decided to take. It was hoped that the outstanding issues would be resolved in the near future and that the decision of the Committee would be the final decision. However, whether or not the Trunk Roads issues were resolved, the Scottish Executive could still decide to call in the application, as it was to be referred to them as a significant departure from the Structure Plan in respect of housing land allocation.
Decision
After discussion, the Committee unanimously AGREED:
a) to grant outline planning permission on the basis of the submitted Master Plan, subject to:
i. promotion of a bye-law under Section 121 of The Civic Government(Scotland) Act 1982 for the purpose of conserving flora and fauna, with all costs to be met by the applicant;
ii. prior conclusion of a legal agreement covering the following heads:
a. contributions to the road network
b. contributions to schools (including land transfer)
c. land set aside at nil cost for community uses and facilities
d. provision of recreational facilities
e. subsidy to public transport provision
f. marina management
g. access management
h. phasing of the development;
iii. conditions covering matters relating to: landscaping and open space (provision and maintenance), access, road infrastructure, contaminated land, noise (both terrestrial and marine), affordable housing, community facilities, waste water treatment plant (location and outfall), building levels, construction method statements, travel plan and natural heritage; the final wording of those to be delegated to the Director of Planning and Development in consultation with the Chairman and local Member; and
vi. conditions or legal agreement provisions, as appropriate, to ensure the involvement of the Ministry of Defence in the resolution of their concerns raised during debate; and
b) that the application be referred to Scottish Ministers as a departure from the Highland Structure Plan and pending resolution of the technical issues raised by the Trunk Roads Authority.
The meeting ended at 1.15 p.m.