Agenda

Minutes of Meeting of the Caithness, Sutherland and Easter Ross Planning Applications and Review Committee held in the Duthac Centre, Shandwick Street, Tain on Tuesday 3 March 2009 at 10.30am.

Present
Mr D Mackay
Mr G Farlow
Mr R Rowantree
Lady M Thurso
Mr W Fernie
Mrs C Wilson
Mr G Smith
Mr D Bremner
Mr R Coghill
Mr J McGillivray
Mr M Rattray
Mr R Durham

Non-Members also present
Mr A Rhind
Mr D Flear
Mr W Mackay
Mrs L Munro
Mrs M Smith

Officials in Attendance
Mr A Todd, Area Planning and Building Standards Manager
Miss L Johnstone, Head of Legal and Democratic Services
Mr C Stewart, Area Roads and Community Works Manager
Mr I Ewart, Team Leader, Planning and Development
Mr B Robertson, Principal Planner
Mr R Blain, Principal Engineer
Miss K McLeod, Principal Solicitor
Miss A Macrae, Administrator

Mr D Mackay in the Chair.

1. Apologies for Absence and Declarations of Interest

Apologies for absence were intimated on behalf of Mr W Ross and Mr A Torrance

Mr W Mackay declared an interest in Item 5 on the basis that he had dealt with the applicants in the course of his business activities.

Mr G Smith declared an interest in Item 3.1 on the grounds of his involvement in negotiations with the applicant in connection with a gateway development associated with a planning application for a retail store in Wick.

2. Minutes of Meeting of 20 January 2009

The Minutes of Meeting held on 20 January 2009, copies of which had been circulated with the agenda, were approved.

3.1 Erection of Retail Store with Associated Fuel Filling Station, Car Parking and Access (Approval of Reserved Matters) at Former Morrison’s Site, Shore Road, Tain for Santon Retail Ltd/Tesco Stores Ltd (08/00453/REMSU)

There had been circulated Report No. PLC-06-09 by the Area Planning and Building Standards Manager recommending approval of the application 08/00453/REMSU by Santon Retail Ltd/Tesco Stores Ltd for the erection of retail store with associated fuel filling station, car parking and access, approval of reserved matters, at Former Morrison’s site, Shore Road, Tain, subject to the conditions detailed in the report.

The Principal Solicitor confirmed that Mr A Rhind had applied for a local Member vote in relation to this item. She advised that the request had been refused by the Assistant Chief Executive, in view of comments attributed to Mr Rhind which had appeared in the press, and that this had been confirmed to Mr Rhind in writing.

Mr Rhind asked for clarification on the particular statement in the press which had caused his request for a local Member vote to be declined. The Principal Solicitor read from the letter sent by the Assistant Chief Executive to Mr Rhind which referred to two particular articles which had appeared in the Ross-shire Journal on 16 January and on 27 February 2009.  She quoted from the articles, and referred to Section 7.10 of the Council’s Code of Conduct which states that if Members proposed to take part in the consideration of planning applications at a meeting of the committee or of the Council, they must not give grounds to doubt their impartiality.  The Assistant Chief Executive had advised Mr Rhind that the quotes referred to in the local press had implied his opposition to the application in advance of the meeting. 

The Committee heard from Mr Rhind who asserted that there was nothing contained within the press statements that he had not said publicly when the initial outline application had been considered by the Committee in July 2008, where he had spoken out against the traffic management proposals.  He had sought only to represent the views of his constituents, and he would continue do so at the meeting.  He expressed the view that the decision concerning a local Member vote should rest with Committee, rather than officials, and that the Council’s standing orders were remiss in allowing a local Member to be denied their democratic right to a local Member vote.

Mr R Rowantree observed that the preamble to the code of conduct was advisory, and queried on a point of law whether Mr Rhind could make his own decision in this regard. 

The Head of Legal and Democratic Services confirmed that the code of conduct is advisory and referred to the wording contained therein which states that Members should not be seen to prejudge the application before the meeting, where all the information required to make a decision would be available.  She cautioned therefore that if Mr Rhind took part in the determination of the application, then this could leave the Committee’s decision challengeable, and therefore urged Members to consider the advice carefully.

Thereafter Mr R Durham raised a procedural matter stating that it was his view that the outline planning consent which had been granted was incorrect in that the officials had no delegated authority to qualify the Committee’s decision taken on 1 July 2008, by including in the condition that the reserved matters application to be brought forward expected parking provision to be compliant with the Council’s standards “unless otherwise agreed in writing with the Council”.  The final part of the condition did not convey the Committee decision of 1 July that “the application be granted, in line with recommendation, subject to the conditions, and an additional condition that the Council’s standards of parking be applied to the outline application”.

Mr Durham sought confirmation as to whether the applicant had been misled by this condition, and how the Committee should proceed, in light of the fact that officers had no delegated authority to amend the Committee’s decision in relation to the outline application.

The Area Planning and Building Standards Manager confirmed that the applicant had not been misled regarding the condition.  The Principal Solicitor acknowledged that it appeared the additional wording had been added at the consent stage, and that the reserved matters application did not comply with the Council’s car parking standards.  She advised that it was for the Committee therefore to consider the application as submitted, including the desired level of car parking provision.

With the agreement of the Chairman, the Committee proceeded to determine the application on the basis that while Mr Rhind could make representations on the application he would not be able to participate in any vote.

The Principal Planner proceeded to introduce, in detail, the various elements of the application.  Following a public meeting held in Tain the previous week he reported that an additional 75 representations had been received which covered the same issues raised in previous timeous objections.

The Principal Planner also read from an e-mail received from the applicants on 1 March 2009 in support of the application.

Responding to a point of order raised by Mr Rhind as to why Members had not been made aware of the content of the non timeous representations received whereas the applicant’s statement had been read out, the Principal Solicitor advised that there is no time limit on an applicant submitting a statement in support of the application, whereas there are time limits for third party representations. In this case the late representations had not raised any new issues to those covered in the objections received timeously, and set out in the report.

Concluding his presentation the Principal Planner indicated that if Members were minded to approve the application then he recommended that it be a condition of permission that prior to the issuing of any planning permission, negotiations between the developer and the Council be concluded concerning the upgrading of the CCTV system and public transport provision.

Mr R Coghill and Mr W Fernie left the meeting at this point.

Responding to a question concerning the statement in the report, that as this was a town centre site there was an expectation of shared parking between the existing town centre and the retail site, the Area Roads and Community Works Manager detailed the proposals to create formalised car parking spaces on Station Road.

Thereafter, Mr R Durham, one of the local Members, raised a number of points in relation to the application as follows:

• When the initial outline application had been heard by the Committee on 1 July only six representations had been received in response, and there had been very few members of the public present at the meeting at which outline approval had been granted. He had also received no representations as local Member for the area.

• At the meeting of the Committee on 1 July 2008 he had moved approval of the application as it had been his view that had it been refused, the applicant would have been successful on appeal.  However part of his motion had been to include an additional condition to provide additional parking to the Council’s standards as he was concerned about potential overspill parking on Shore Road. The subsequent detailed application had ignored the additional condition concerning the standards for parking.

• At the public meeting held the previous week the unanimous view had been that while the principle of a retail development of this kind was supported, the development was in the wrong place, and would have a detrimental impact on the flow of the traffic in the town centre.  He emphasised that it was of fundamental importance to local democracy that these views were represented by local Members at the meeting.

• He referred to insinuations that had been made that the councillors and officials were in the pocket of the applicant.  While Members were in a position to defend themselves, he expressed concern that officials were unable to do so.  He therefore sought to defend the officials involved from any such serious and improper allegations, observing that he had found the officials concerned to be both professional and courteous at all times.

Following on from this the Committee heard from Mr A Rhind, one of the local Members, as follows;

• Following the meeting he would request that the Council’s Administration lodge an inquiry into how the application had been handled throughout the planning process.

• There was unanimous local public opposition to siting a supermarket on the proposed site, rather than to the principle of Tesco locating in Tain.  Tain Community Council had also objected to the proposal, the main grounds of the opposition being the adverse impact on the road network arising from the traffic management proposals.  In contrast there appeared to be unanimous support for the application from Area officials based to the north of Tain.

• He alleged that officials based outwith the Area had expressed disbelief that the traffic proposals were considered to be acceptable.  At this point the Principal Solicitor advised that unsubstantiated allegations were being made involving people who were not present to defend or confirm these statements, and therefore she asked Mr Rhind to refrain from any further comment in this regard.

• The site was not suitable for pedestrians given the steep incline back up to the town centre, and expressed the view that most of the public would travel to the store by car and not by foot

• The development would be to the detriment of existing road users, and cause untold traffic chaos throughout the town, stating that he was unsure whether it was the Council or the applicant who had proposed the traffic arrangements set out in the report.

• The viability of the businesses on Shore Road could be compromised by overspill parking from the development, and this may be compounded if parking was prohibited in future to alleviate congestion arising from the additional traffic generated by the development.
• The site was located in the industrial part of Tain and was not part of the town centre.

• The application would not deliver planning gain. The upgrading of the CCTV system would be to the benefit of Tesco as would the provision of a bus service. 

• The town centre of Tain is located in the High Street, irrespective of the Local Plan designation.  Reference was made to the perceived failings in the Local Plan consultation process which had led to the designation of this part of the town.

• Contaminated land issues had yet to be resolved, as had the position regarding the protection of trees.

• Scottish Water had no objections to the application, however there were problems with foul water drainage in the area and he expressed surprise this had not been highlighted by the agency.

• SPP8 referred to the improvement of town centres. However this application would damage the town centre and be detrimental to the creation of a safe and attractive environment.  The development would not be accessible by all members of the community, given the steep incline back up from the site.  The vitality and viability of the town centre would also be harmed rather than enhanced. 

• The report stated that the site was derelict and the development would assist with the regeneration of the lower part of Tain. However until recently a major company had been operating out of the site.

• Questions existed over who would police deliveries to the store from the A9 via Shore Road.

• While the creation of new jobs associated with the development would be welcomed, the experience in the retail sector was that jobs would be displaced from other retail operations.  It was accepted that a limited number of jobs would be created in the building trade as a result of the development.

Mr A Rhind then proceeded to read out, in full, a written statement from the local Member, Mr A Torrance, detailing his opposition to the development on the grounds of the proposed car parking provision to national standards, and the fact that proposed road and access improvements would create disruption for householders and local facilities in the area.  The development was also contrary to Policy G2 of the Structure Plan which referred to town centres being accessible to all sectors of the community, and he urged the Committee to act in the best interests of the community and refuse the application.

Further comments from Members included:

• The application should be supported in principle but the parking provision for parents/toddlers and the disabled should be further investigated with a view to increasing the number of spaces.

• The traffic management system as proposed would cause disruption for the existing residents of Tain, and compromise pedestrian safety. The stability of nearby properties in the vicinity could also be compromised by passing traffic.

• The Members who did not support the development should have brought forward a notice of amendment in response to the Committee’s decision to approve the outline application in July 2008.  Because this did not happen the principle of a supermarket on this site had already been established, and this would be crucial in any appeal.

Responding to questions the Area Roads and Community Works Manager reported that as this was a town centre site it had been judged that the national standards for parking should be applied in respect of the application due to the opportunity for shared parking on Station Road together with overspill parking on Shore Road, and that the applicant proposed to provide more spaces than the national standard dictated.  The Council’s standards had been devised for out of town sites where there was limited opportunity for alternative parking.

Mrs C Wilson seconded by Mr D Bremner moved that the application be refused on the grounds that (i) Condition 9 of the outline consent required the applicant to provide car parking compliant with the Council’s standards, which they have failed to meet, (ii) the off-site traffic management proposed would be to the detriment of existing road users and pedestrians, and would curtail reasonable access and egress to the areas of Tain thus affected, and (iii) the proposed pedestrian links to the store do not allow all sectors of the public suitable or easy access due to the restraints and adverse levels of the site, thus contradicting national planning policies.

Mr R Durham moved as an amendment that the application be deferred to allow the applicant to fulfil the terms of the outline approval, granted by the Committee on 1 July 2008, for the avoidance of doubt the minute stating that “the application be granted, in line with the recommendation, subject to the conditions detailed in the report, and an additional condition that the Council’s standards of car parking be applied to the outline application, to ensure good traffic flow in Shore Road and the surrounding road network”.  On failing to find a seconder the amendment fell.

Mr G Smith moved as an amendment that the application be deferred to allow for further discussions concerning the feasibility of increasing the number of parking spaces for disabled and parent and toddler users, in line with the Council’s standards of car parking, but on failing to find a seconder the amendment fell.

Accordingly the motion by Mrs C Wilson became the decision of the Committee.

Mr A Rhind left the meeting at this point.

Therafter the Chairman reported that there would be a break in proceedings for lunch. On reconvening the following Members were present:- Mr D Mackay, Mr G Farlow, Mr R Rowantree, Lady M Thurso, Mr G Smith, Mr D Bremner, Mr J McGillivray, Mr R Durham, Mr D Flear, Mr W Mackay, Mrs L Munro and Ms M Smith.

3.2 (i) Conversion of Outbuilding to Residential Unit.  Installation of Foul Drainage System. Formation of New Shared Access onto Public Road (ii) Erection of House. Installation of Foul Drainage System.  Formation of New Shared Access onto Public Road, (iii) Erection of House. Installation of Foul Drainage System.  Formation of New Shared Access onto Public Road (iv) Erection of House. Installation of Foul Drainage System. Formation of New Shared Access onto Public Road, at 228 Tongue, and Land Adjacent to 228 Tongue for Mr H and Mrs M A Matheson (08/00437/OUTSU, 08/00438/OUTSU, 08/00439/OUTSU and 08/00440/OUTSU)

There had been circulated Report No. PLC-07-09 by the Area Planning and Building Standards Manager recommending approval of the applications 08/00437/OUTSU, 08/00438/OUTSU, 08/00439/OUTSU and 08/00440/OUTSU  for the (i) conversion of outbuilding to residential unit.  Installation of foul drainage system. Formation of new shared access onto public road (ii) erection of house. Installation of foul drainage system.  Formation of new shared access onto public road, (iii) Erection of house. Installation of foul drainage system.  Formation of new shared access onto public road (iv) Erection of house. Installation of foul drainage system. Formation of new shared access onto public road, at 228 Tongue, and land adjacent to 228 Tongue for Mr H and Mrs M A Matheson, subject to the conditions detailed in the report.

Mrs L Munro had applied for and been granted a local Member vote in relation to this application.

During discussion Members raised a number of issues in respect of the application as follows:

• The local Members had been advised by officials within the Local Plan Team that the settlement development area (SDA) boundary was indicative and the line was not fixed, contrary to the assessment contained in the report

• The local community had made representations that the proposed SDA in the deposit draft Local Plan was not acceptable on the grounds that it would involve the loss of valuable croft land and was not in keeping with the traditional pattern of crofting settlements

• The applications were premature pending the outcome of the adoption of the deposit draft Local Plan

• The area would not benefit from more holiday accommodation, rather there was a need to assign land to younger people to encourage them to stay in the area, thereby contributing to the sustainability of the area

• Given the location and sensitivity of the ground, the development would represent overdevelopment of the site

• Both the local community council and grazings committee had raised objections to the inclusion of valuable croft land in the deposit draft of the Local Plan, but these had been ignored.  These objections remained unresolved and concern was expressed that the Council had consulted with communities but thereafter disregarded their views. It was therefore inappropriate to determine the applications in advance of the adoption of the draft Local Plan.

• The community was proactive in attracting and retaining people in and to the area and there were other alterative sites for housing available in Tongue, provision having been made through the Highland Small Housing Communities Trust, and also  within the draft Local Plan

• The application should be considered on its planning merits rather than for reasons of social engineering. Reservations were also expressed as to whether crofting would be relevant to the sustainability of the communities in the future.

• The current Local Plan was the oldest in the Highlands and the local community did not wish this area to be allocated for housing.  The social well being and demographics of the area were an important material consideration in any assessment of the proposal.

• The SDA is an arbitary line drawn by officials and not in keeping with existing settlement patterns

Responding to Members, the Principal Solicitor cautioned that refusal of the applications could be difficult to justify on appeal on the grounds that the site is allocated for housing in the current adopted Local Plan.  She reminded members that the adopted Local Plan is the starting point when determining applications according to the statutory test contained in s25 of the Town and Country Planning (Scotland) Act 1997. The adoption of the deposit draft Local Plan was some way off although this Plan would be regarded as a material consideration.  She advised that an alternative to refusal would be to defer the applications and co-join them with the objections to the draft deposit Local Plan, which would mean they would be heard together at a public local inquiry.  However the applicant would also have the opportunity to appeal on the grounds of non-determination.

Following further discussion Mr G Farlow seconded by Mr R Rowantree moved that application 08/00437/OUTSU be approved subject to the conditions detailed in the report, and that applications 08/00438/OUTSU, 08/00439/OUTSU and 08/00440/OUTSU be refused on the grounds that they are contrary to (i) the provisions of the draft Local Plan on deposit, (ii) existing settlement patterns i.e. representing over development and not being in keeping with crofting patterns  (iii) current crofting national consultations, and (iv) unresolved community objections from several local consultees, rendering the applications premature pending the outcome of the Local Plan process.

Mr G Smith moved as an amendment that each of the applications be approved subject to the conditions detailed in the report but on failing to find a seconder the amendment fell.

Accordingly the motion by Mr G Farlow became the decision of the Committee.

3.3 Alterations and Erection of Extension at Am Fasgadh, 127 Skinnet, Talmine for Mr W and Mrs F Jurk (08/00489/FULSU)

There had been circulated Report No. PLC-08-09 by the Area Planning and Building Standards Manager recommending refusal of the application 08/00489/FULSU for alterations and erection of extension at Am Fasgadh, 127 Skinnet, Talmine for Mr W and Mrs F Jurk for the reasons stated in the report.

Mrs L Munro had applied for and been granted a local Member vote in relation to this application.

The Principal Planner indicated that the large extension to the rear of the property represented the key issue in respect of the design and overdevelopment of the site, and that it would be possible through an amended design, possibly a new build, to produce a more acceptable proposal.

The Committee agreed to refuse the application for the reasons stated in the report, and agreed that the Principal Planner should pursue further discussions with the applicant on options for an amended design.

3.4 Erection of Timber Chalets for Use as Holiday Lets, Formation of Vehicular Accesses, Installation of Septic Tanks and Soakaways at Sites 1 and 2, East of Windhaven, Brough, Thurso for Caledonian Iberian Conexions (UK) Ltd (08/00439/FULCA and 08/00440/OUTCA)

Mr D Flear and Mr W Mackay had applied for and been granted local Member votes in relation to this application.

There had been circulated Report No. PLC-09-09 by the Area Planning and Building Standards Manager recommending refusal of applications 08/00439/FULCA and 08/00440/OUTCA for the erection of timber chalets for use as holiday lets, formation of vehicular accesses, installation of septic tanks and soakaways for Caledonian Iberian Conexions (UK) Ltd for the reasons stated in the report.

Members expressed the view that this was a prominent site and that the application did not represent either sensitive siting or high quality design.

The Committee agreed to refuse the applications for the reasons stated in the report.

Ms M Smith left the meeting at this point.

4. Enforcement Notice for the Removal of Unauthorised Yurt and Caravan Used for Residential Purposes at Corrie Habbie Croft, Upper Lybster

Mr D Flear and Mr W Mackay had applied for and been granted local Member votes in relation to this item.

There had been circulated Report No. PLC-10-09 by the Area Planning and Building Standards Manager setting out details of an unauthorised development in the form of marquee/tent, also known as a yurt, and caravan being used for residential purposes, at Corrie Habbie Croft, Upper Lybster.  The report recommended that Members agree to an appropriate Enforcement Notice being issued seeking the removal of the yurt and caravan.

The Committee agreed to the service of an appropriate Enforcement Notice seeking the removal of the yurt and caravan at Corrie Habbie Croft, Upper Lybster.

5. Enforcement Notice for the Removal of Unauthorised Yurt/Marquee/Tent Used for Residential Purposes at Croit Clais Na H-Airgh Bhig, Upper Lybster

Mr D Flear and Mr W Mackay had applied for and been granted local Member votes in relation to this item however, as is minuted under item 1, Mr W Mackay declared an interest in this item and therefore did not take part in the determination thereof.

There had been circulated Report No. PLC-11-09 by the Area Planning and Building Standards Manager setting out details of an unauthorised development in the form of marquee/tent, also known as a yurt, being used for residential purposes, at Croit Clais Na H-Airgh Bhig, Upper Lybster.  The report recommended that Members agree to an appropriate Enforcement Notice being issued seeking the removal of the yurt.

The Committee agreed to the service of an appropriate Enforcement Notice seeking the removal of the yurt at Croit Clais Na H-Airgh Bhig, Upper Lybster.

6. Erection of Two Semi Detached Houses and Formation of Vehicular Accesses (In Retrospect) at Land to North of Traquair, Sinclair Lane, Halkirk for M M Miller (08/00533/FULCA)

Mr D Flear and Mr W Mackay had applied for and been granted local Member votes in relation to this application.

The Principal Solicitor reported that the above application was considered to fall within the scope of Section 39 of the Town and Country Planning (Scotland) Act 1997. She explained that this section of the Act gives planning authorities the power to decline to determine certain applications the qualifying criteria being that:

the new application was substantially the same as an earlier application that had been refused on appeal, had been lodged within 2 years of the date of refusal on appeal, and there had been no material change in policy in the intervening period.

The Principal Solicitor advised that the application meets all of these criteria and asked Members to vote on whether or not they wished to exercise the power to decline to determine the application.  She clarified that if the Committee wished to determine the application, a report on the application would be presented to the next meeting of this Committee. 

Responding to Members the Team Leader outlined the reasons as to why the application was substantially the same as the earlier application which had been refused on appeal.

On a show of hands all Members voted in favour of exercising the statutory power to decline to determine the application.

Thereafter, the Principal Solicitor asked Members to indicate whether they wished enforcement action to be taken to secure the removal of the existing unauthorised semi-detached houses on the site. 

Following further discussion the following Members voted in favour of enforcement action to being taken to secure the removal of the unauthorised semi-detached houses which have been built on the site:- Mr G Farlow, Mr R Rowantree, Lady M Thurso, Mr D Bremner, Mr J McGillivray, Mr R Durham, Mr D Flear and Mr W Mackay.

The following Members voted against enforcement action being taken to secure the removal of the existing house on the site: Mr D Mackay and Mr G Smith.

Mr G Smith asked that his dissent from the decision to pursue enforcement action be recorded.

7. Delegated Decisions

The Committee noted that the list of delegated decisions of planning applications was available via The Highland Council Website.

The meeting concluded at 2.45pm.