Town Centre Policy: Amendments to current practice for processing planning applications, July 2018

The Scottish Borders Local Development Plan 2016 (LDP) supports a wide range of uses appropriate to town centres in Duns, Eyemouth, Galashiels, Hawick, Jedburgh, Kelso, Melrose, Peebles and Selkirk.  However, in order to protect the vitality and viability of the ‘Core Activity Areas’ of these town centres, policy ED4 of the LDP restricts acceptable uses in these areas to Class 1 (shops) and Class 3 (food and drink establishments) of the Use Classes Order.  Proposals for uses within Class 2 (financial, professional and other services) of the Use Classes Order are only acceptable where they contribute positively to the core retail activity of the area and are assessed against the following criteria:

  • How the proposed use would contribute to joint shopping trips;
  • Footfall contribution;
  • Current vacancy and footfall rates;
  • Longevity of vacancy;
  • Marketing history of premises; and
  • Ability to retain shop frontage.

Policy ED4 also indicates that decision making on what uses are acceptable will be guided by research or studies on vitality and viability by the council or developers.

Only a relatively small part of the region’s town centres are identified as ‘Core Activity Areas’ (CAA).  For instance, in Galashiels, the CAA is limited to the frontages of Bank Street (from Bank Street Brae to Cornmill Square), the west side of Market Street between Cornmill Square and Overhaugh Street, both sides of Channel Street between Park Street and the Market Square, and the Douglas Bridge development.  Channel Street west of Park Street, the whole of High Street and Island Street, lie outwith the Galashiels CAA and there are no such restrictions on proposed uses in these streets.  In Hawick, only the frontages of High Street between Cross Wynd and Baker Street are identified within the CAA.  The High Street south of Cross Wynd, Bourtree Place, North Bridge Street, the Sandbed, Tower Knowe/Silver Street, Howegate and Commercial Road all lie outwith the Hawick CAA and there are no such restrictions on proposed uses in these streets.

At present, the CAA policy allows uses such as shops, hairdressers, travel agents, dry cleaners and laundrettes, restaurants, cafes, snack bars, public houses and even car sales on the identified frontages.  Uses such as betting offices, beauticians, nail salons, tattooists, estate agents, photographic studios, dog groomers, vets, dental surgeries, solicitors, accountants, financial/mortgage advisors and other professional services are only acceptable where they contribute positively to the core retail activity of the area.  Some of these uses do exist in the core activity areas of the Border towns, however, for they were in existence before the policy was first devised in the 1970s and 1980s, and some of these uses have been allowed where the council considered that the proposal would contribute positively to the core retail activity of the area.  For instance, in April, 2018, the Local Review Body reversed the decision of the Chief Planning Officer to refuse planning permission for a change of use from retail to dog grooming practice of 38 Bank Street, Galashiels, which is within the CAA, and granted planning permission on the grounds that the proposed use would contribute positively to the core retail activity of the area.  Earlier this month, planning permission was granted for a change of use from retail to dog grooming salon at 9A Bank Street, Galashiels which, although located on Bank Street, lies outwith the Galashiels CAA.  On the other hand, planning permission was refused in May 2018 for the change of use of a retail unit to a tattoo studio at 52 Bank Street, Galashiels, within the CAA.  The change of use of retail units at Douglas Bridge to a Job Centre was approved in November 2017 on appeal by a Scottish Government Reporter, who considered that the proposed use, although not as desirable as a retail use, would make a positive contribution to the core retail function of the CAA.

In Hawick, planning permission was granted in August 2017 for the change of use of 52 High Street, which is within the Hawick CAA, from retail to coffee shop.  Planning permission was granted in April 2018 for the change of use of 53 High Street, Hawick, which is also within the Hawick CAA, from retail to form a restaurant with takeaway.  Outwith the CAA, planning permission was granted in January 2017 for the change of use of 34 North Bridge Street from office to dog grooming parlour.  No planning applications for such uses in the Hawick CAA have been refused in recent years.

There is, quite clearly, a measure of flexibility in the present policy that enables the council to allow a variety of non-retail uses within Core Activity Areas, each proposal being considered on its merits against the criteria set out in policy ED4 of the LDP.  However, following a study by the Planning Department to examine ways to revitalise and re-invigorate the town centres of Galashiels and Hawick, the Planning and Building Standards Committee at its meeting on 16 July 2018 agreed to the removal of the restrictions imposed by the CAA designation in Hawick and to a relaxation in the way CAA policy is implemented in Galashiels for a trial period of one year.  It is also proposed that, within Galashiels town centre, the requirement for developer contributions to affordable housing and education provision would be temporarily removed for one year.  Contributions to the Borders Railway must remain as they are a statutory requirement.  There would, however, be a general presumption in Hawick and Galashiels against anti-social uses within these town centres which may have detrimental impacts on the amenity of residential property and other uses.

To be more specific, proposals in the Hawick CAA will simply be tested against LDP policy ED3, which allows a mix of uses in town centres.  Proposed changes of use from retail to a range of financial and professional office uses and other service uses, such as a betting office, beauticians, dog groomers and tattooists will not need to be assessed against the criteria in policy ED4, such as footfall contribution and longevity of vacancy.  In Galashiels CAA, these proposed changes of use will continue to be assessed against the criteria in policy ED4.  Potential uses identified in the report prepared by the Planning Department that could, however, be considered more favourably are: betting office, beautician, nail salon, estate agent, dog groomers and tattooists.  The report also sets out further guidance in relation to two of the criteria listed in policy ED4; the judging of applications in terms of the longevity of vacancy and the marketing history of the premises, which should be taken into account when assessing proposals within the Core Activity Areas of Galashiels and the other identified towns in the Borders.  The report also indicates that in assessing the contribution that a proposed use makes to the Core Activity Area, the economic benefits of the proposal, the footfall it is likely to generate and how active the proposed frontage is, would be taken into account.

These relaxations have been welcomed but only time will tell whether the changes proposed will have any significant effect on the vibrancy and vitality of Galashiels and Hawick town centres.  It will be interesting to see how many proposals for the change of use of retail premises to other uses come forward in the Galashiels and Hawick Core Activity Areas within the next year and whether there is any significant change in footfall or a reduction in vacancy rates as a result.  I look forward to seeing the report back at the end of the trial period.

 

Development Management: June 2018 update

During June 2018, the Scottish Borders Council received 123 applications for planning permission and other consents, including listed building and conservation area consents and applications for works to protected trees.  The following applications are of particular interest:

  • Change of use of the upper ground floor of the Courthouse Business Centre, High Street, Peebles from office/retail use to hostel accommodation (SBC Ref: 18/00815/FUL);
  • Erection of a further 38 dwellinghouses at Thirlestane Drive, Lauder incorporating terraced, semi-detached and detached houses, 25% of which would be affordable housing likely to be social rent (SBC Ref: 18/00486/FUL);
  • Proposed retail and café development at Hergés on the Loch, Tweedbank (SBC Ref: 18/00776/PPP);
  • A retrospective application for the change of use of former garage and car showroom (the Redburn Garage on Peebles Road, Galashiels) to multiple use, including furniture workshop and showroom, caravan repairs, car valeting, catering unit, retail unit and sale of garden and outdoor equipment (SBC Ref: 18/00723/FUL).

In relation to the Proposal of Application Notice for the change of use of land to form a mobile luxury lodge holiday retreat on land west of Willowdean House, Foulden (SBC Ref: 18/00674/PAN), referred to in the May update, it is understood that a public exhibition was held in Foulden Village Hall on 29 June.  However, due to inadequate publicity in the local press, a further public event is to be held on 23 July 2018 and will be open to members of the public from 9.00am to 7.30pm.  The event will be attended by the applicant and/or the agent for the full period of the event to take questions from the public.

The much anticipated public event in relation to the Proposal of Application Notice for a major tourist development of 500 static caravans, 50 touring caravans and associated facilities on land at Thirlestane Castle, Lauder (SBC Ref: 17/01669/PAN), was held on 5 June 2018.  It will be interesting to see the results of this pre-application exercise when a planning application is submitted.

A Proposal of Application Notice has been submitted for a development by Eildon Housing Association of 69 dwellinghouses at Coopersknowe, Galashiels (SBC Ref: 18/00727/PAN).  A public exhibition is planned for 11 July 2018 at Langlee Community Centre, Galashiels between 3.30pm and 7.30pm.

A Proposal of Application Notice for the development of holiday lodges, hotel and golf driving range at the Roxburghe Golf Course was submitted on 20 June 2018 (SBC Ref: 18/00799/PAN).  A public exhibition on the proposed development is to be held at Heiton Village Hall on 7 August 2018 from 4.00pm to 7.30pm.

A Screening Opinion Request to determine whether an Environmental Impact Assessment is required in terms of the Environmental Impact Assessment Regulations 2017 has been submitted for a large scale mixed use development, comprising retail, office, business/light industrial, hotel, residential and non-residential institution, housing and leisure use, together with a new access from the A68 and car parking, on the Auction Mart site at Newtown St. Boswells (SBC Ref: 18/00746/SCR).  A Proposal of Application Notice for the development was submitted on 9 February (SBC Ref: 18/00144/PAN) and a public consultation event was held in the Canteen at the Auction Mart on 26 March 2018 as part of the pre-application consultation process.

The council has been consulted on an application to erect a further 11 turbines at the Crystal Rigg Wind Farm, near Cranshaws in the Lammermuir Hills, which has been submitted to Scottish Ministers under Section 36 of the Electricity Act 1989 (SBC Ref: 18/00768/S36).  A Pre-application consultation on the proposed extension was undertaken in the early part of this year and a public event was held in Cranshaws Village Hall in February 2018.

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 June 2018, the council decided 106 applications, only one of which was refused planning permission; for the erection of a dwellinghouse on the site of an agricultural building at Deuchar Mill in the Yarrow Valley (SBC Ref: 18/00355/PPP).  At its meeting on 4 June, the Planning and Building Standards Committee granted planning permissions for the erection of two dwellinghouses on land west of Peelgait, Selkirk (SBC Ref: 17/00923/PPP) and for the erection of a single dwellinghouse at The Gables, Smiths Road, Darnick (SBC Ref: 18/00396/PPP).  At its meeting on 25 June, the Committee granted planning permission for the erection of seven boarding kennels at West Greenfields, near Reston in Berwickshire, subject to a noise mitigation plan to protect the amenity of nearby houses, and a waste management plan for the storage and disposal of wastes generated by the development (SBC Ref: 18/00173/FUL).  At its meeting on 18 June, the Council’s Local Review Body (LRB) decided to reverse the Chief Planning Officer’s decision to refuse planning permission for the part change of use of a paddock to form a new access and drive to Southbank, Bowden and the erection of a summerhouse and tennis court (SBC Ref: 17/01362/FUL).

During June, the Scottish Government’s Planning and Environmental Appeals Division (DPEA) allowed the appeal against the refusal, by the council, of planning permission for the erection of four dwellinghouses at Elders Yard, Newtown St. Boswells and granted planning permission in principle subject to eighteen conditions (SBC Ref: 17/01342/PPP) (DPEA Ref: PPA-140-2070).  The Reporter concluded that the proposed development did accord, overall, with the relevant provisions of the local development plan and that there were no other material considerations that would justify refusing to grant planning permission in principle.

Five appeals remain to be determined against the refusal of planning permission: (1) for the construction of a wind farm comprising 12 turbines at Pines Burn, south west of Hobkirk (SBC Ref: 17/00010/FUL) (DPEA Ref: PPA-140-2069); (2) for the erection of 7 wind turbines on land north-west of Gilston Farm, near Heriot (SBC Ref: 17/00226/FUL) (DPEA Ref: PPA-140-2068); (3) for the erection of a poultry building at Hutton Hall Barns, Hutton in Berwickshire (DPEA Ref: PPA-140-2065); (4) for the erection of a poultry building at Easter Happrew in the Manor Valley, west of Peebles (DPEA Ref: PPA-140-2062); and (5) a residential development of 38 dwellings at Marchmont Road, Greenlaw in Berwickshire (DPEA Ref: PPA-140-2059).

In relation to the appeal against the refusal of planning permission for residential development at Marchmont Road, Greenlaw, the appointed Reporter has intimated that she is minded to grant planning permission subject to a legal agreement in respect of a contribution to affordable housing.  The Reporter’s decision has been deferred for a period of 12 weeks pending the production of a completed planning agreement within that time.

The accompanied site inspection in connection with the appeal against the refusal of planning permission for the construction of a wind farm comprising 12 turbines at Pines Burn, south west of Hobkirk (SBC Ref: 17/00010/FUL) (DPEA Ref: PPA-140-2069), took place on 14 June.

The public inquiry to be held in relation to the refusal of planning permission for the erection of 7 wind turbines on land north-west of Gilston Farm, near Heriot (SBC Ref: 17/00226/FUL) (DPEA Ref: PPA-140-2068), is to commence at 10.00am on 24 July 2018 in the Novotel Hotel, Edinburgh Park (near the Gyle) and is expected to run for 2 days.  Members of the public are welcome to attend.  The public inquiry will be broadcast live to the internet as part of the Planning and Environmental Appeals Division’s webcasting service.

Three wind farm applications submitted to the Scottish Government under Section 36 of the 1989 Act, to which the Scottish Borders Council has objected, remain outstanding: (1) the application for a 12 turbine extension to the existing Fallago Rig wind farm in the Lammermuir Hills; (2) the application to extend the operational life of the existing Fallago Rig wind farm to coincide with that of the extension (if approved) (DPEA case references WIN-140-5 & WIN-140-6); and (3) an application for the erection of 15 wind turbines on land at Birneyknowe, near Bonchester Bridge, south-east of Hawick (DPEA case reference WIN-140-7).

 

Protected trees and woodlands, and high hedge legislation

Of the 1500 applications received by Scottish Borders Council during 2017, 110 related to “Works to trees”.  None of these applications were refused.  To date (end of May 2018), some 52 applications for “Works to trees” have been received by SBC.  An application for works to protected trees is required where it is proposed to fell, top, lop, uproot or otherwise damage or destroy any tree to which a tree preservation order relates, any tree located within a conservation area that has a trunk diameter of more than 75mm (3 inches) when measured at 1.5m (5ft) above ground level and any tree that is protected through a condition attached to a planning permission.

There are some 60 approved Tree Preservation Orders (TPOs) within the Scottish Borders Council area, many dating back to the 1970s.  They include individual trees, groups of trees and woodlands spread throughout the area.  Details of TPOs are available from the Tree Officer in the Planning and Building Standards Department.  There are currently some 43 Conservation Areas designated within the Scottish Borders.  The boundaries of these Conservation Areas are shown on the Local Development Plan Proposals Maps for the relevant settlement.  Under Section 172 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, anyone proposing to cut down or carry out work on a tree in a conservation area is required to give the planning authority six weeks prior notice.  The purpose of this requirement is to give the planning authority an opportunity to consider whether a TPO should be made in respect of the tree.

Planning Circular 1/2011, published in February 2011 sets out Scottish Government Policy on TPOs and trees in conservation areas.  The Town and Country Planning (Tree Preservation Order and Trees in Conservation Areas) (Scotland) Regulations 2010 state that an application for consent to works to a tree or trees protected by a TPO must specify the operations for which consent is sought; provide reasons for the operations; and identify the protected tree or trees by means of a map or plan of a size and scale sufficient for the purpose.  The planning authority should keep a register of all applications for consent and the decisions made.  Where a planning authority refuses consent or grants consent subject to conditions, the applicant may appeal to the Scottish Ministers within 3 months of the council’s decision.  Works to Trees applications can be made by the owner of the trees or any other person as long as the owner is notified of the application.  Unlike planning applications, there is no requirement to notify owners and occupiers of neighbouring land.  Works to trees applications require an application form and a plan which clearly identifies the trees affected by the application.  The application form should set out clearly what is proposed, whether it be felling, removing or reducing some branches or reducing the crown, and any proposals for replacement planting.  The reasons for the application should also be fully explained, preferably with the support of professional advice from an arborist or tree surgeon.

The council can only consider the impact of the work on the amenity value of the tree(s) or woodland and whether the work is justified.  There is no legal requirement for the council to consult on tree applications.  Details of “Works to trees” applications are included in the weekly list of planning applications on the council’s Public Access Portal but comments are not invited.  Decisions are made by the Tree Officer following a site visit.  Scrutiny of the applications received in 2018, so far, shows a tremendous variation in the quality of the submissions.  In many cases, there is no application form just a letter requesting permission; in some cases a photograph simply identifies the tree to which the application relates, and in many cases the reasons for the application are somewhat cursory.  Only in a small number of cases is the application accompanied by a report produced by a professional.

A report commissioned by the Scottish Executive [now the Scottish Government] to examine the effectiveness of the TPO system in Scotland, published in 2002*, concluded that the management of many TPO sites was either non-existent or to a very low standard through a combination of lack of knowledge, finance and commitment to the maintenance of protected trees.  With regard to procedures and technical standards, the report considered that there was a distinct lack of up-to-date government advice on TPOs.  The lack of an accurate consistent local authority database meant that there was no complete picture of the extent and nature of TPOs across Scotland.  It was recommended that all councils needed to update their records.  The report also identified that there was an uneven pattern in the way that councils applied the provisions of the 1997 Planning Act and linked regulations and a lack of adequate monitoring of changes to TPOs.  Little has changed since 2002.

*Roger Jessop; The Effectiveness of Tree Preservation Orders in Scotland, Scottish Executive Social Research, 2002 [ISBN 0950 2254; ISBN 0 7559 3439 3]

A relatively new provision is the High Hedges (Scotland) Act 2013, which came into force on 1 April 2014.  This Act was introduced in response to the increasing problem of high boundary hedges (the most notorious being leylandii) which harmed the enjoyment of a neighbour’s property (house and/or garden), normally as a result of the loss of light.  Unlike boundary fences or walls that require planning permission if they exceed two metres in height, there is no such restriction on planting trees or shrubs to form a hedge.  A ‘high hedge’ is defined in the Act as one which is “wholly or mainly formed by a row of two or more trees or shrubs which is over 2 metres in height and forms a barrier to light”.  An application for a ‘High Hedge Notice’ can be made by the owner and/or occupier of the affected property.  A potential applicant must have made efforts to resolve the issue with the neighbour themselves before an application is made.  An application received by the planning authority where there is no evidence of this having been attempted must be rejected.

In dealing with such applications, the planning authority must notify the owner and occupier of the land on which the offending hedge is situated and invite comments, which must be submitted within 28 days.  There is no requirement, however, to publicise high hedge applications.  The planning authority must visit the site and then decide “Whether the height of the hedge adversely affects the enjoyment of the domestic property which an occupant of that property could reasonably expect to have”.  If the planning authority considers that the hedge has little adverse effect it can decide to take no action.  If the planning authority decides that the hedge is having an adverse impact, it can issue a High Hedge Notice which sets out what the hedge owner must do to remedy the harm caused by the high hedge; this usually involves reducing the height of the hedge to 2 metres but could require other measures to be taken.  The act allows the applicant to appeal to Scottish Ministers against the decision of the planning authority not to issue a High Hedge Notice or if they consider that the works required by the High Hedge Notice do not go far enough.  The owner or occupier of the land on which the hedge is located can appeal if they think that a High Hedge Notice should not have been issued; if they consider that the works required by the Notice go too far or the council has not given them enough time to carry out the works.

Although there was a flurry of high hedge applications, nationally, when the Act came into force in 2014 (when there were over 120 applications), the number has decreased across Scotland since 2014.  In the Scottish Borders, there have only been three applications, one in 2014, one in 2015 and one in 2016.  In the first case, a High Hedge Notice was issued and complied with; and, in the second case, the council decided not to issue a Notice.  The third application (SBC Ref: 16/01092/HH), submitted in September 2016, would appear to remain undecided.  One wonders whether Scottish Borders residents are fully aware of the legislation on high hedges introduced by the Scottish Government in 2014 or whether, perhaps, this problem is more concentrated in the urban areas of the Central Belt and the North East, areas that saw considerable housing development in the 1970s and 1980s.  Explanatory guidance on applying for a high hedge notice is available from the Scottish Government and can also be accessed on the Scottish Borders Council Public Access Portal.

 

Development Management: May 2018 update

During May 2018, the Scottish Borders Council received 146 applications for planning permission and other consents, including listed building and conservation area consents and applications for works to protected trees.  The following applications are of particular interest:

  • Change of use of part of Unit 8 at Tweedside Park, Tweedbank (the former Plexus Facility) to form a gymnasium, children’s soft play area and associated café. (SBC Ref: 18/00635/FUL);
  • Erection of a further 64 dwellinghouses at Sergeants Park, Newtown St. Boswells for Eildon Housing (SBC Ref: 18/00486/FUL);
  • Erection of replacement village hall at Abbey St. Bathans in Berwickshire (SBC Ref: 18/00488/FUL); and
  • The formation of a static caravan park at Kirkburn, Cardrona in Peeblesshire (SBC Ref: 18/00390/FUL).

A Proposal of Application Notice has now been submitted in relation to the change of use of land to form a mobile luxury lodge holiday retreat on land west of Willowdean House, Foulden (SBC Ref: 18/00674/PAN).  It is proposed to hold a display of the proposed development in Foulden Village Hall on 29 June throughout the day with a question and answer session between 7.00pm and 7.30pm.  It is unclear from the application whether the display is to be staffed throughout the day and the council’s Principal Planning Officer has reminded the agent in this case that the public event, which must be held under Regulation 6 of the Development Management Procedure Regulations, should be staffed throughout the day [and not just for half an hour] by people knowledgeable in the proposals so that the community can participate meaningfully in the event and their views can be discussed.

The much anticipated public event in relation to the Proposal of Application Notice for a major tourist development of 500 static caravans, 50 touring caravans and associated facilities on land at Thirlestane Castle, Lauder, submitted on 5 December 2017 (SBC Ref: 17/01669/PAN), has now been arranged for Tuesday 5 June.  It will be held in Lauder Public Hall from 3.00pm to 8.00pm.

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 May 2018, the council decided 129 applications, only one of which was refused; for the change of use of a retail premises on Bank Street in Galashiels to a tattoo studio (SBC Ref: 18/00398/FUL).  At its meeting on 21 May, the Council’s Local Review Body (LRB) upheld the decision of the Chief Planning Officer to refuse planning permission for the erection of a dwellinghouse on land north-west of The Gables, Gattonside on the grounds of inadequate access (SBC Ref: 17/01617/PPP) and his decision to refuse planning permission for an extension to 34 Edinburgh Road, Peebles on the grounds of its form and scale (SBC Ref: 17/01731/FUL).  The LRB decided, however, to overturn the Chief Planning Officer’s decision to refuse planning permission for the erection of a dwellinghouse at Blacklee Brae, Bonchester Bridge and granted planning permission, subject to conditions and informatives (SBC Ref: 17/01685/PPP).

During May, the Scottish Government’s Planning and Environmental Appeals Division (DPEA) dismissed the appeal against the refusal, by the council, of planning permission for residential development on land east of Edinburgh Road, Peebles (SBC Ref: 17/00015/FUL) (DPEA Ref: PPA-140-2067).  The Reporter concluded that the proposed development did not accord with the provisions of the local development plan, in particular policy PMD4, and that there were no other material considerations that would justify granting planning permission.

Six appeals remain to be determined against the refusal of planning permission; (1) for the demolition of existing buildings and the erection of four dwellings at Elders Yard in Newtown St. Boswells (SBC Ref: 17/01342/PPP; (2) for the construction of a wind farm comprising 12 turbines at Pines Burn, south west of Hobkirk (SBC Ref: 17/00010/FUL) (DPEA Ref: PPA-140-2069); (3) for the erection of 7 wind turbines on land north-west of Gilston Farm, near Heriot (SBC Ref: 17/00226/FUL) (DPEA Ref: PPA-140-2068); (4) for the erection of a poultry building at Hutton Hall Barns, Hutton in Berwickshire (DPEA Ref: PPA-140-2065); (5) for the erection of a poultry building at Easter Happrew in the Manor Valley, west of Peebles (DPEA Ref: PPA-140-2062); and (6) a residential development of 38 dwellings at Marchmont Road, Greenlaw in Berwickshire (DPEA Ref: PPA-140-2059).

Scottish Ministers have also called-in the application by Eildon Housing Association for residential development at Huddersfield Street, Galashiels in view of the proposed development’s possible significant level of flood risk (DPEA Ref: NA-SBD-054).  The Planning and Building Standards Committee determined on 26 March 2018 to grant planning permission for the proposed development, against the advice of the Scottish Environmental Protection Agency, subject to clearance from Scottish Ministers (SBC Ref: 17/00695/FUL).  Having considered the proposal, Scottish Ministers have decided, in terms of Section 46 of the Town and Country Planning (Scotland) Act 1997 to require the application to be referred to them for determination.  A Reporter from the DPEA will now assess the written evidence in relation to the possible flood risk and submit a report with recommendations to Scottish Ministers for their consideration and determination.

Three wind farm applications submitted to the Scottish Government under Section 36 of the 1989 Act, to which the Scottish Borders Council has objected, remain outstanding: (1) the application for a 12 turbine extension to the existing Fallago Rig wind farm in the Lammermuir Hills; (2) the application to extend the operational life of the existing Fallago Rig wind farm to coincide with that of the extension (if approved) (DPEA case references WIN-140-5 & WIN-140-6); and (3) an application for the erection of 15 wind turbines on land at Birneyknowe, near Bonchester Bridge, south-east of Hawick (DPEA case reference WIN-140-7).

 

Development Management: April 2018 update

During April 2018, the Scottish Borders Council received 153 applications for planning permission and other consents, including listed building and conservation area consents and applications for works to protected trees.  The following applications are of particular interest:

  • Redevelopment of part of the former Peter Scott Complex on Buccleuch Street, Hawick to form ten apartments for the over 55s (SBC Ref: 18/00498/FUL);
  • Proposed holiday park on land north west of Willowdean House, Foulden in Berwickshire (SBC Ref: 18/00473/SCR);
  • Erection of anemometer mast up to 90m high at Brockhouse Farmhouse, Fountainhall (SBC Ref: 18/00469/FUL);
  • Change of use of the former bar/restaurant at 95 High Street, Galashiels to office accommodation and light industrial workshop (SBC Ref: 18/00464/FUL);
  • Change of use of Netherbyres House at Eyemouth from a care home to a wedding venue (SBC Ref: 18/00455/FUL); and
  • The partial demolition of the former gate lodge and re-positioning of gate piers at West Lodge, Faldonside, near Galashiels (SBC Ref: 18/00357/LBC).

The Council has also been consulted on a proposal to construct and operate an offshore windfarm comprising a maximum of 54 turbines with a maximum blade tip height of 208m in the Firth of Forth approximately 15.5 kilometres east of Fife Ness (the Neart Na Gaoithe Wind Farm) (SBC Ref: 18/00375/S36).  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 April 2018, the council decided 123 applications, only four of which were refused planning permission under delegated powers to the Chief Planning Officer; for the erection of a dwellinghouse on Smith’s Road, Darnick, Melrose; for the erection of a dwellinghouse at Langton Birches to the south of Duns in Berwickshire; for the part change of use of a shop to a flat at 14 North Bridge, Hawick; and for the change of use of an office to two flats on Dovecote Road Industrial Estate in Peebles.  Of those applications that were successful, perhaps the most interesting is the proposed 20 bedroom hotel at North Slipperfield, near West Linton, on the edge of the Pentland Hills, granted planning permission on 5 April (SBC Ref: 16/01526/FUL).  This proposal supersedes a planning permission for a “shooting lodge”, which included a number of guest bedrooms, leisure facilities and treatment rooms, granted in September 2008, with a varied permission in August 2013, which expired in August 2016.  The principal of a hotel was, therefore, established and, although sited within the Pentland Hills Special Landscape Area, the Chief Planning Officer considered that the design of the proposed hotel was appropriate to its rural location.  Visit Scotland supported the tourism element of the proposed development and the local community council had no objections.

At its meeting on 16 April, the Council’s Local Review Body (LRB) was faced with three housing in the countryside proposals refused planning permission by the Chief Planning Officer under delegated powers.  The LRB overturned the officer’s decision in two cases but upheld the officer’s decision in the third case.  Consequently, planning permission was granted for a dwellinghouse on a site on the edge of Ednam village, near Kelso and on a site at Kailzie Mains, near Peebles.  In the first case, the LRB considered that the proposal represented a logical extension to the settlement of Ednam (SBC Ref: 17/01613/PPP & 18/00004/RREF).  In the second case, the LRB considered that the proposal constituted a well-related addition to a building group with a sense of place (SBC Ref: 17/01572/PPP & 18/00006/RREF).

Planning permission was refused, however, for the erection of a dwellinghouse in woodland at Peelburnfoot in the Tweed Valley near Clovenfords (SBC Ref: 17/01008/FUL & 17/00053/RREF).  This particularly controversial case, which had attracted a lot of attention locally, raised a number of questions about the introduction of new evidence in the review of a determination by an appointed officer of the council.  Section 43B of the 1997 Planning (Scotland) Act states that a party to the review proceedings (the applicant, the council and third parties) is not to raise any matter which was not before the appointed person at the time the determination was made unless that party can demonstrate that the matter could not have been raised before or there are exceptional circumstances.  In this case, the applicant took the liberty of submitting further material relating to a number of issues, which the LRB decided was new evidence that did not meet the tests in Section 43B of the 1997 Planning (Scotland) Act.

Although the proposed development was described by the applicant as “Erection of replacement dwellinghouse” and the site was described as “Derelict dwelling”, members concluded, on the basis of the contrary evidence provided by objectors, that there was no evidence that the existing building (a derelict kennels) had been a dwellinghouse and that any incidental residence associated with the use of the building as kennels had not been proven.  The LRB concluded that the proposal did not comprise a replacement dwelling, nor the restoration of an existing former dwelling.  They also concluded that the proposal did not constitute the conversion of an existing building as the application was for demolition; that the proposal was not well related to an established building group and that there was no business case for a house to manage the woodland within which it was sited.  Accordingly, the proposal did not comply with the relevant sections of housing policy HD2 of the local development plan.  Although new evidence on the number of trees that required to be felled as a result of the proposed development was considered, the LRB accepted the advice of the council’s Planning and Landscape Officers that it was likely more trees would be adversely impacted by the construction and occupation of the dwellinghouse than those identified on the revised plan.  They considered that the impact on trees within a woodland that was subject to a Tree Preservation Order would be unacceptable.

The LRB also upheld the Chief Planning Officer’s decision to refuse planning permission for an extension to a house on Craig Brown Road in Selkirk on the grounds that it amounted to overdevelopment of the site (SBC Ref: 17/01409/FUL & 18/00005/RREF).  The LRB, however, overturned the Chief Planning Officer’s decision to refuse planning permission for the change of use of shop on Bank Street, Galashiels to a dog grooming practice (SBC Ref: 17/01704/FUL & 18/00007/RREF).  In so doing, the members of the LRB were particularly influenced by the specific nature of the proposal and considered that the proposed use would make a positive contribution to the diversity of uses along Bank Street.

On 30 April, the Council’s Planning and Building Standards Committee approved a number of applications, including; (i) Changes to the layout and refurbishment of lodges at Whithaugh Park Holiday Centre at Newcastleton (SBC Ref: 17/01740/FUL); and (ii) the erection of an 80 metres high anemometer mast at Braidlie in the Hermitage Valley, south of Hawick (SBC Ref: 18/253/FUL).  Although the purpose of the proposed mast is to establish the wind characteristics of the area to determine the wind resources for a prospective wind energy development, granting planning permission for such a mast does not commit the planning authority to accepting any subsequent wind energy proposal.  Any such proposal requires to be considered on its own merits against the requirements of the local development plan and any other material considerations.

During April, the Scottish Government’s Planning and Environmental Appeals Division (DPEA) issued two determinations.  The appeal against an amenity notice in respect of the erection of scaffolding and metal panel fence on land at Kirkburn Church, near Peebles was dismissed on 11 April (DPEA Ref: ANA-140-2000).  The appeal against the refusal of planning permission for a windfarm of 8 turbines at Howpark, Grantshouse in Berwickshire was upheld on 23 April and planning permission was granted subject to 31 conditions (DPEA Ref: PPA-140-2060).  The Reporter found that although a number of those persons that made representations drew attention to the council’s view that the landscape of the area had reached capacity in terms of the number of turbines that could be accommodated, this did not prevent the proposal being considered on its merits and, considered on its merits, the Reporter considered that the proposal accords with the relevant provisions of the development plan and that there were no material considerations that would justify a refusal of planning permission.

Seven appeals remain to be determined against the refusal of planning permission; (1) for the demolition of existing buildings and the erection of four dwellings at Elders Yard in Newtown St. Boswells (SBC Ref: 17/01342/PPP; (2) for the construction of a wind farm comprising 12 turbines at Pines Burn, south west of Hobkirk (SBC Ref: 17/00010/FUL) (DPEA Ref: PPA-140-2069); (3) for the erection of 7 wind turbines on land north-west of Gilston Farm, near Heriot (SBC Ref: 17/00226/FUL) (DPEA Ref: PPA-140-2068); (4) residential development on land to the east of the Edinburgh Road in Peebles (SBC Ref: 17/00015/FUL) (DPEA Ref: PPA-140-2067); (5) for the erection of a poultry building at Hutton Hall Barns, Hutton in Berwickshire (DPEA Ref: PPA-140-2065); (6) for the erection of a poultry building at Easter Happrew in the Manor Valley, west of Peebles (DPEA Ref: PPA-140-2062); and (7) a residential development of 38 dwellings at Marchmont Road, Greenlaw in Berwickshire (DPEA Ref: PPA-140-2059).

Three wind farm applications submitted to the Scottish Government under Section 36 of the 1989 Act, to which the Scottish Borders Council has objected, remain outstanding: (1) the application for a 12 turbine extension to the existing Fallago Rig wind farm in the Lammermuir Hills; (2) the application to extend the operational life of the existing Fallago Rig wind farm to coincide with that of the extension (if approved) (DPEA case references WIN-140-5 & WIN-140-6); and (3) an application for the erection of 15 wind turbines on land at Birneyknowe, near Bonchester Bridge, south-east of Hawick (DPEA case reference WIN-140-7).

 

County Planning in the 1940s and 50s: Berwickshire County Council

Berwickshire County Council established its Town and Country Planning Committee in June 1944 to deal with the first applications for planning permission under the Town and Country Planning (Interim Development) (Scotland) Act 1943.  Lord Home [the father of Sir Alec Douglas-Home] was elected Chairman of the new committee.  T. D. Anderson, from the council’s Roads Department was appointed Planning Officer, although he had no qualifications in town and country planning.  He had a typist to assist him!  Minor applications were dealt with by the County Clerk, in consultation with the Planning Officer.  T. D. Anderson was also charged with undertaking a survey of the county, apart from Eyemouth Burgh where the Burgh Surveyor was asked to undertake this task.

In March 1946, the Government’s Department of Health for Scotland, which had the responsibility for planning at national level, met the council’s Town and Country Planning Committee to discuss the way forward, little progress having been made on the survey of the county.  The Department of Health considered that additional staff were required and recommended the appointment of two planning assistants and a draughtsman in addition to the Planning Officer and his typist.  However, the council considered that the size of the county did not warrant such a large department and was content with its Planning Officer and typist in support.  Over the next year, the Department of Health for Scotland made further attempts to persuade the council to enlarge its staff but, with only an average of five planning applications a month, the council was not persuaded.

In March 1947, the council decided to merge the Planning and Property & Works Departments and T. D. Anderson took up the post of head of the new department.  Two members of staff were transferred from the council’s Public Health Department to assist with the additional workload but all planning matters remained the responsibility of  T.D. Anderson alone.  In the immediate post-war period, the majority of planning applications submitted related to proposals by the burgh councils for new local authority housing and the majority of these applications were dealt with expeditiously.  However, the burgh councils were consulted on all other applications submitted within their areas and this meant that these applications took longer, which was a cause for concern.

Following the dissolution of the Central and South-East Scotland Regional Advisory Committee, which had overseen the Frank Mears Study, and the enactment of the Town and Country Planning (Scotland) Act 1947, which introduced development plans, the four border counties discussed how development planning might be co-ordinated across the Scottish Borders.  Initial thoughts were that one development plan might be produced for the whole region and architect/planner, F.W.B. Charles, who had led the Frank Mears Study, was approached to prepare a development plan for the region.  However, after considerable deliberation, it was decided (by the County Clerks) that, in view of the progress being made in Selkirkshire and Roxburghshire (and the estimated costs of employing a consultant), it would be more sensible for each county to produce their own development plan.  It was agreed that a joint planning advisory committee should be established to ensure liaison between the counties.

In Berwickshire, with little progress on a survey of the area, the Department of Health for Scotland, in November 1948, again sought to persuade the council to appoint additional staff to undertake the preparation of the development plan and suggested that up to six staff were required.  The council baulked at this but eventually agreed to appoint two planning assistants, who duly took up their posts in July 1949 and set to work on a survey of Eyemouth and Duns burghs.  One of their first tasks was to bring the out-dated Ordnance Survey (OS) maps up-to-date, a major challenge for many planning departments at this time.  In Berwickshire, the latest edition of the 1:25,000 OS maps was produced in 1908!

In December 1949, after further pressure from the Department of Health for Scotland, the council decided to appoint a consultant to prepare the development plan and, after interviewing three candidates, the council appointed architect/planner F.W.B. Charles and he quickly set to work.  Unfortunately for the two planning assistants, appointed by the council in July 1949, they were not required by the planning consultant who had his own team and they were duly given notice to quit in February 1950, after only 9 months in the job.

T. D. Anderson continued to be responsible for dealing with the day-to-day activities of development control. Major Askew became the Chairman of the Planning and Property and Works Committee, as it had been called since March 1947, in May 1950. At this time, county council membership was dominated by the landed gentry, the clergy and other professional people.  For instance, in July 1950, the Planning and Property and Works Committee comprised:

        • Major Askew (Chairman)
        • Brigadier Swinton
        • Lieut. Col. Miller
        • Rev. R. Hamilton
        • Dr. Mitchell Innes
        • Earl of Ellesmere (became Duke of Sutherland)
        • Earl of Home
        • Captain McDougall
        • Rev. W.B. Paton

On the development control front, the emergence and expansion of holiday hut sites was a growing issue across the Scottish Borders in the late 1940s and 1950s, and Berwickshire was not immune.  In Lauderdale, for instance, which was accessible from the urban area of Midlothian to the north, the illegal siting of buses, caravans, huts etc. caused increasing concern to the council’s elected members.  A police report of September 1950 itemises twelve buses, trailers, railway carriages, caravans and huts in the Oxton area, such as:

  • Railway carriage without wheels, three rooms, fenced in and concrete paving laid round; Occupier: James Bryson, Dalkeith;
  • Tramcar; Occupier: Reynolds Arnott, Edinburgh;
  • Double-deck bus on wheels; Occupier: J. Allan, Tranent.

In October 1950, the council decided to split the Planning and Property & Works Department into two and T. D. Anderson was appointed County Planning Officer.  Progress continued on the preparation of the development plan with F.W.B. Charles producing town maps for the burghs and the other main settlements.  Each of these was the subject of consultation with the respective burgh councils.

In 1952, with the election of Major Askew as Chairman of the County Council, Brigadier Swinton took over chairmanship of the Planning and Property and Works Committee.  The continued illegal siting of railway carriages, caravans and shacks in various parts of the county prompted the county council to establish a Camping and Caravans Sub-Committee with the aim of taking enforcement action to remove the illegal encampments and encourage bone-fide mobile caravan sites in suitable locations.

By September 1953, a Draft Report of Survey, together with Town Maps for Duns, Eyemouth, Chirnside, Coldstream and Lauder, had been completed by F.W.B. Charles.  His involvement in the development plan ceased at this stage, co-incidentally he had moved from Edinburgh to the English Midlands, and John B. Hall of J & J Hall, Architects in Galashiels, who had prepared the Selkirkshire County Development Plan was approached to complete the development plan.  After a number of meetings and deliberations over the cost of appointing John B Hall, the architect withdrew his interest in taking over the development plan in September 1954 due to health issues.  Under continuing pressure from the Department of Health for Scotland, approaches were made to East Lothian Council to discuss the possibility of its County Planning Officer, Frank Tindall, who had completed the East Lothian County Development Plan, to undertake the Berwickshire County Development Plan.  Although the County Planning Officer was enthusiastic, the council would not release him.  With little progress over the ensuing two years, the council approached Midlothian County Council to enlist the services of its County Planning Officer, John Baillie.  Midlothian County Council agreed and John Baillie was appointed in January 1957 as planning consultant with responsibility for finalising and submitting the development plan to the Secretary of State.

By the mid-1950s, the number of planning applications received each year had risen to over 200 per annum.  The number of applications for illuminated signs at petrol filling stations, hotels and public houses increased as such businesses sought to cater for the growing number of car-borne travellers.  In the late-1950s, the first rumblings about visitor pressures at Coldingham Sands is evidence in committee minutes.

After three years of deliberation over such matters as the siting of new industry, a by-pass for Coldstream and the upgrading of the A697, the County Development Plan was agreed in draft form, for consultation with the burghs and other parties, in December 1959.  It was agreed to extend the agreement with Midlothian County Council over the services of John Ballie, its County Planning Officer, until December 1960.  In June 1960, the council received its 3000th planning application, an average of 200 per annum since 1945.  The Planning Department moved from the Council Buildings in Newtown Street, Duns to Southfield Lodge on Station Road.

The County Development Plan was finally submitted to the Secretary of State in December 1960.  The Plan was prepared on the assumption that the 1957 population of 23,753 would at least be retained, additional population in the burghs off-setting the decline in population in the landward area.  It was not envisaged that there would be any demand for housing in the landward area and no housing allocations were made outside the burghs of Eyemouth, Duns, Coldstream and Lauder, and Chirnside and Earlston.  It was the policy of the county council to encourage industrial development, although there appeared little prospect of attracting industry to Berwickshire, and sites for industry were identified in the burghs and Chirnside and Earlston.  Harbour improvements at Eyemouth were proposed.  A long list of road proposals for the trunk roads (A1 and A68) and the A697 were identified, with by-passes for all the main towns and villages on these roads, such as Ayton, Reston, Grantshouse and Cockburnspath on the A1, Lauder and Earlston on the A68 and Coldstream on the A698.  In the landward area, the Lammermuir Hills, the coastal strip and the Tweed Valley around Dryburgh, Bemersyde and Scott’s View were identified as Areas of Great Landscape Value.

In the next post we shall see how Berwickshire County Council reacted to the continuing decline in employment opportunities and population in the county and to the rapidly changing circumstances of the 1960s brought about by increasing mobility and changing patterns of leisure and recreation.

 

Renewable Energy: April 2018 Update

Renewable electricity generation in Scotland reached record levels in 2017, according to official data.  Statistics published by the UK government showed an increase in Scotland of 26% in 2017, compared with the previous year.  The majority of this increase was attributed to greater onshore wind capacity.  The data also showed that by the end of 2017, just over 10GW of installed renewables electricity capacity was operational in Scotland.  It is estimated that the equivalent of 68.1% of gross electricity consumption in Scotland came from renewable sources, up year-on-year by 14.1 percentage points.  In commenting on these figures, Scotland’s Energy Minister, Paul Wheelhouse, confirmed that renewable energy will continue to play a hugely significant role in powering Scotland’s future.

As those people who are concerned at the proliferation of wind turbines in the Scottish Borders will know, Scottish Borders Council has been relying on its 2011 Supplementary Planning Guidance on Wind Energy, large parts of which are out-of-date in relation to Government policy, when determining applications for wind energy developments.  When the Scottish Borders Local Development Plan was adopted in May 2016, it included an intention to produce up-to-date Supplementary Guidance on Renewable Energy, including wind energy, within one year of the adoption of the local development plan.

The council published Draft Supplementary Guidance on Renewable Energy in December 2016 for consultation with interested parties and, after a prolonged period of deliberation, a final version of the Supplementary Guidance has now been approved by Scottish Borders Council for submission to Scottish Ministers.  It is vital that the Council has up-to-date Supplementary Guidance in place, which takes cognisance of all relevant national planning policy and guidance, when assessing and determining wind farm proposals.  It also strengthens the council’s position when defending its refusal of planning permission for wind turbines and wind farms at planning appeals.

National planning policy promotes renewable energy developments to facilitate the transition to a low carbon economy.  The Climate Change (Scotland) Act 2009 requires all public bodies to mitigate the causes of climate change.  The Government’s National Planning Framework (NPF3) and Scottish Planning Policy (SPP) are supportive of renewable energy.  Policy ED9 in the Scottish Borders Local Development Plan states that the Supplementary Guidance on Renewable Energy will accord with Scottish Planning Policy; this requires an onshore spatial framework identifying areas where wind farms will not be acceptable, areas of significant protection, and areas with potential for wind farm development; a contentious issue amongst those communities which have concerns about the impact of wind farms on the landscape and rural communities.

In terms of wind energy, the Supplementary Guidance, therefore, sets out a spatial framework as required by SPP, and incorporates an update of the Ironside Farrar Landscape Capacity and Cumulative Impact Study of July 2013, which has been the subject of intense scrutiny at recent planning appeals.  Although wind energy is the main component of the SG, reference is also made to a range of other types of renewable energy development, including micro-renewables such as photovoltaic panels, field scale solar voltaics, biomass, energy from waste, anaerobic digestion, hydro and ground source heat pumps.  The SG provides useful background information and good planning practice guidance on each of these energy types.

The spatial framework for wind energy proposals, which applies to all turbines that exceed 15m in height to blade tip, has been generated through a comprehensive sieving exercise of constraints, including national and international landscape and conservation designations and the visual impact on communities.  Figure 6 in the SG shows the results of this exercise and to the consternation of many people, I am sure, a large part of the Scottish Borders lies within the area designated as having potential for wind farm development.

However, compliance with the spatial framework is only one consideration in determining whether a wind farm proposal is acceptable.  Policy ED9 of the adopted local development plan identifies a comprehensive list of other considerations.  These are set out in chapter 8 of the SG and include:

  • Landscape and visual impacts;
  • Effects on Wild Land;
  • Cumulative impacts;
  • Impacts on communities and individual dwellings in the countryside;
  • Impacts on carbon rich soils;
  • Impacts on public access, the historic environment, tourism and recreation;
  • Impacts on aviation and defence interests and seismological recording, telecommunications and broadcasting installations;
  • Impacts on adjacent trunk roads and roads traffic;
  • Effects on the natural heritage (including flood risk);
  • Opportunities for energy storage;
  • Net economic impact;
  • Contribution to renewable energy generation targets and effect on greenhouse gas emissions; and
  • Decommissioning and site restoration.

Also, whilst the spatial framework identifies areas of protection and areas with potential for wind farms, it takes no cognisance of landscape capacity issues, which are material considerations for wind energy proposals.  Consequently, outputs from the Ironside Farrar Landscape Capacity Study must be referred to as well as the spatial framework.  If turbines are proposed which exceed the turbine heights identified within the Ironside Farrar Study 2016, the onus will be on the applicant to demonstrate how the impacts of the proposal on the key constraints and any unacceptable significant adverse effects can be mitigated.

It will be interesting to see what Scottish Ministers have to say about this new Supplementary Guidance for I am sure that the Council will want to see it approved and incorporated into the local development plan as soon as possible.  As well as providing advice to applicants/developers on the wide range of issues to be addressed within their submissions, the SG should also enable development management officers within the Planning Department to provide clearer guidance on wind farm related considerations, and process applications more effectively and efficiently.