Development Management: August 2020 Update

The council’s Planning Department remains closed to the public with case officers working remotely from home.  Nevertheless, new planning applications continue to be registered and are being processed in as normal a way as possible; applications continue to be publicised on the council’s website and in the local press.  In August, 135 applications for planning permission and other consents, including listed building and conservation area consents and applications for works to protected trees, were received, above the average level of around 100-120 applications per month; perhaps illustrating the urge of developers and the general public, after almost 6 months of near stand-still, to get back to normal.  However, the number decided, at just 73 decisions shows that the planning system is not operating to its full capacity under COVID-19 regulations.  Working from home and restrictions on meetings and site visits means that the number of outstanding applications continues to rise as a result of the delays imposed by Government restrictions. 

The vast majority of applications received in August related to the erection of single dwellinghouses and alterations and extensions to dwellinghouses, and works to trees.  The Scottish Borders continues to be attractive to wind farm operators; the latest proposed development comprises 12 turbines with a maximum tip height of 180 metres on land north and east of Holylee, Walkerburn in Peeblesshire [Scawd Lee Wind Farm].  Scottish Borders Council has been consulted on the scope of the environmental impact assessment of this proposed development under Section 36 of the Electricity Act 1989 (SBC Ref: 20/00880/SCO).  Scawd Law Wind Farm was originally proposed in 2017 and discussions were held with key stakeholders on an 18 turbine project.  Following a review of the original proposal, the scheme has been reduced to 12 turbines.  The production of an Environmental Impact Assessment is a fundamental requirement for such developments prior to the submission of a planning application.  Any such proposal must also be the subject of pre-application consultation with the local community prior to the submission of any planning application.

Check out the council’s Public Access Portal if you want to find out more about the above applications or any other application submitted in the past month.

During August, 73 applications were determined by the Chief Planning and Housing Officer under delegated powers.  Two applications were refused planning permission by the Chief Planning and Housing Officer under delegated powers: (i) the change of use of caravan site to builders yard and caravan/camper van storage, Peebles Road, Galashiels (SBC Ref: 20/00672/FUL); and (ii) the erection of two dwellinghouses on land at Cowdenburn, West Linton, Peeblesshire (SBC Ref: 20/00714/PPP).  The Planning and Building Standards Committee met, remotely by Microsoft Teams, on Monday 3 August and considered one planning application; the repeat application for the erection of 52 holiday lodges on land north west of Willowdean House, Foulden in Berwickshire (SBC Ref: 20/00067/FUL).  A previous application for a similar development was refused planning permission on 2 September 2019; an appeal to Scottish Ministers against that refusal was ruled out of time because it was not submitted within 6 months of the date of refusal by the council, thus prompting a repeat application.  The repeat application was refused by the Planning and Building Standards Committee on 3 August for similar reasons to the previous decision [on the grounds that the proposed holiday lodges are not in keeping with the local environment and would have an unacceptable adverse impact on local infrastructure, specifically the capacity of local roads] and, as expected, an appeal has been submitted to Scottish Ministers (DPEA Ref: PPA-140-2081).

The Local Review Body met on 17 August, conducted remotely by Microsoft Teams, to consider three appeals against refusals of planning permission by the Chief Planning Officer under delegated powers.  The LRB reversed the Chief Planning Officer’s decision in two cases and granted planning permission for: (i) the change of use of part of the Buccleuch Hotel in Hawick to a joinery workshop (SBC Ref: 19/01784/FUL); and (ii) the erection of a treehouse and walkway for holiday accommodation at Sandystones Farmhouse, Ancrum, Jedburgh (SBC Ref: 20/00132/FUL). The LRB continued consideration of the appeal against the refusal of planning permission for the erection of a dwellinghouse at Clifton Cottage, Kirk Yetholm pending a site visit (SBC Ref: 20/00453/FUL). 

In relation to appeals to Scottish Ministers, the appeal against the serving of an enforcement notice alleging the erection of a building without planning permission at Linthaugh Farm Cottage, Jedburgh  was dismissed on 28 August (DPEA Ref: ENA-140-2015).  The Reporter dealing with the appeal upheld the enforcement notice and directed that the unauthorised building should be removed within 6 months.  It will be interesting to see if the council pursues the enforcement notice.

The issue of planning enforcement in the Scottish Borders has hit the national and local press in recent weeks.  There has been a great deal of publicity recently in relation to unauthorised house parties (unauthorised in relation to COVID-19 Regulations) in various parts of Scotland.  Press attention has been drawn to the continued use of a property in West Linton for hosting parties of 20 plus revellers.  Avid readers of this blog will perhaps recollect that Scottish Borders Council, in response to a rising tide of objections from neighbours, served an enforcement notice on the proprietor of Greenloaning on The Loan in West Linton in November 2018 to cease the use of the house for short stay commercial visitor accommodation (house parties).  In 2017, the property had been let on 35 separate occasions, on 34 of these occasions for 3 nights only.  The house was advertised as being able to accommodate 15-30 guests [the master bedroom being advertised with 6 double beds!].  An appeal to Scottish Ministers [the Scottish Government’s Planning and Environmental Appeals Division] was dismissed in April 2019.  The decision of the Government Reporter to dismiss the appeal and direct that the enforcement notice be upheld and the use cease within 2 months [end of June 2019] was challenged in the Court of Session.  The proprietor appealed to the Court on the basis that the property had been used for more than 10 years before the date of the enforcement notice and was therefore exempt from enforcement action.  However, the Court was not convinced by the appellant’s arguments and the appeal was refused on 30 January 2020.

According to press reports, whilst the use of the property for house parties was paused at the beginning of lockdown in March, these resumed on 10 July and the police have been called out numerous times since then.  According to a spokesperson for SBC: “The council has been made aware of these concerns and is working with partners to seek to bring a resolution to the matter”.  Failure to comply with an enforcement notice is a criminal offence, which can lead to a fine of up to £20,000 in the Sheriff Court.  It will be interesting to see what action the council takes in response to the continued use of the property for house parties; will it enforce planning law or remain impotent in the face of continued breaches of planning regulations.  No doubt, the affected neighbours will be keen to know.

One appeal to Scottish Ministers remains outstanding:  against the decision to refuse planning permission for the erection of 8 wind turbines at Wull Muir, Heriot (DPEA Ref: PPA-140-2080).  The application for a proposed retail store and restaurant on Commercial Road, Hawick, notified to Scottish Ministers because of flooding concerns, is also proceeding (DPEA Ref: NA-SBD-056).  Comments are being exchanged and an unaccompanied site visit is to be made by the Reporter delegated to deal with the case.

Following the receipt of objections from Scottish Borders Council in April 2019, a hearing was held on 10 March 2020 in Duns in relation to an application for an expansion of the Crystal Rig Wind Farm in the Lammermuirs, comprising the addition of 11 turbines to the existing 90 turbines (DPEA Ref: WIN-140-8).  The council’s objection relates to the visual impact of the proposed red aviation lights to be fitted to seven of the eleven turbines and the impact on the landscape character of the area.  The Reporters appointed to consider the proposal conducted an unaccompanied inspection of the site and viewpoints on 3 September.  A test light was fitted to an existing turbine and the Reporters viewed the test light between 8.30pm  and 9.00pm from the vicinity of Whitekirk in East Lothian.

Author: douglas hope

Over fifty years experience in town and country planning, including twenty-one years with the Borders Regional Council (1975-1996) and twenty years with the Scottish Government as a Reporter for the Directorate for Planning and Environmental Appeals.

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