The Planning (Scotland) Bill 2017

The Planning (Scotland) Bill introduced to the Scottish Parliament on 4 December 2017 sets out the Scottish Government’s proposals for changes to the overall framework under which planning operates.  The Bill seeks to re-focus the planning system on enhancing community engagement and reducing and simplifying procedures and processes.  Key proposals include:

  • Abolition of strategic development plans, with the national planning framework forming part of the development plan;
  • Abolition of statutory supplementary planning guidance;
  • Local development plans to be in place for a period of 10 years rather than 5 years, with the right to amend them during that time;
  • Scottish Planning Policy to be incorporated into the national planning framework, to be reviewed every 10 years; and
  • Creation of Local Place Plans produced by a community body.

The Scottish Government proposes that Strategic Development Plans should be replaced by more proactive regional working partnerships.  However, there is little detail or clarity on how these regional working partnerships would operate and how tensions at the regional/strategic planning level would be resolved within the proposed enhanced National Planning Framework.

The Bill proposes changes to local development plans, suggesting that the plan period should be extended to ten years instead of the present five years; that the process for preparing local development plans should be shortened by the removal of the need for a Main Issues Report (to be replaced by a draft plan); and that supplementary planning guidance should be dispensed with.  The object of these and other changes is to provide stronger local development plans that deliver development.

Local Place Plans (LPPs) are one of the Scottish Government’s key proposals aimed at improving public engagement and involvement in the planning system.  The Government hopes that LPPs will provide an avenue for communities to feed into the development plan system.  However, there are concerns as to how LPPs interact with the local development plan and clear guidance will be needed on the form and content of LPPs, and how LPPs should be developed and submitted to the planning authority.  Interesting times ahead!

To improve the development management process, the Bill proposes changes to the pre-application process for major and local developments and changes to the scheme of delegation which are likely to extend the scope of appeals that would be made to the local review body rather than to Scottish Ministers.  Some may welcome these changes, others may be concerned at the prospect of more decisions on major developments being taken locally.

To improve the performance of planning authorities, the Bill proposes that councillors involved in planning decisions will be required to undertake training on planning matters and councillors that have not completed such training would be barred from undertaking such duties.  It may be that councillors already undertake some form of informal training but it would be difficult to argue against the need for proper training for those who are charged with the responsibility of discharging planning decisions.  In the Scottish Borders, the full council is responsible for the approval of the local development plan so it could, perhaps, be argued that the whole council should undertake such training, not just the members of the planning committee and the local review body.  Watch this space.

The Bill does not include any reference to third party appeals.  There has been a long-running campaign for the introduction of a limited third party right of appeal where those who have objected to a proposal that has been granted planning permission can request a review of the decision.  Scottish Ministers are opposed to the creation of a third party right of appeal.  The Scottish Government’s view is that:

“It is far more appropriate and more constructive to have stronger early engagement, involving people in the shaping of their areas, as provided for through the changes to development planning, the introduction of LPPs and more effective pre-application consultation. A third party right of appeal would increase delay and uncertainty through to the end of the planning process, running counter to the whole thrust of the Bill and wider review of planning in streamlining and front-loading the system”

The Bill is presently passing through Parliament.  The Bill completed Stage 1 on 29 May 2018 and consideration of the Bill at Stage 2 is scheduled to commence on 12 September 2018.  It will be next year (2019) before we have a better idea of what the Planning (Scotland) Act might look like.

 

 

Development Management: July 2018 Update

During July 2018, the Scottish Borders Council received 126 applications for planning permission and other consents, including listed building and conservation area consents and applications for works to protected trees.  Two Proposal of Application Notices for major developments in the region were submitted in July:

A Proposal of Application Notice has been submitted for residential development on land south of Craignethan, Newtown St. Boswells (the site at the junction of Eildon Road and Sprouston Road) (SBC Ref: 18/00886/PAN).  The site is identified for residential development in the adopted local development plan with an indicative capacity of 68 houses.  A public consultation event is planned for the 4 September 2018 in the Newtown Community Wing, to be held between 11.00am and 6.30pm.  Details should appear in the Southern Reporter on 23 August 2018.

A Proposal of Application Notice has been submitted for a development by Berwickshire Housing Association of 49 mixed tenure dwellinghouses on land off Summerhill Park, Beanburn, Ayton (SBC Ref: 18/00968/PAN).  A previous public consultation event on a proposed development on this site took place in June 2017.  A further public consultation event, including an exhibition of the design proposals, is planned for the week commencing 17 September 2018 in Ayton Primary School.  The PAN provides no details of the specific date or time for the public consultation event but details should be provided within a press advertisement in the Berwickshire News at least seven days before the planned public event.

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

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 July 2018, the council decided 113 applications, only two of which were refused by the Chief Planning Officer, under delegated powers.  An application for the renewal of planning permission for the erection of a dwellinghouse on land near Linthill Cottages, Linthill, Melrose (SBC Ref: 18/00644/PPP) was refused on 23 July.  Although planning permission had previously been granted in July 2015 for a dwellinghouse on the site, this had expired.  Planning policy on housing in the countryside has changed since 2015 as a result of the adoption of the Scottish Borders Council Local Development Plan 2016 (LDP).  The policy on replacement dwellings in the countryside has been significantly revised and the Chief Planning Officer considered that the proposal is now contrary to the strict requirements of policy HD2 of the LDP.  It will be interesting to see if this decision is challenged through the Local Review Body and, if so, whether the LRB takes the same view on the non-conformity of the proposal with the LDP.

An application for the 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) was refused planning permission on 26 July on the grounds that the proposed uses are not appropriate to a building located within a strategic business park safeguarded for uses falling within Business Classes 4-6.  It will be interesting to see if this decision is also challenged by referral to the Local Review Body.

At its meeting on 16 July, the Council’s Local Review Body (LRB) decided to reverse the Chief Planning Officer’s decision to refuse planning permission for the change of use and alteration of agricultural buildings to form eleven dwellinghouses at Hutton Castle Barns, Hutton in Berwickshire and granted planning permission subject to 12 conditions, informatives and a legal agreement in respect of the payment of a financial contribution towards education facilities and affordable housing in the locality (SBC Ref: 18/00013/RREF & 16/01371/FUL).  The LRB upheld the Chief Planning Officer’s decisions to refuse planning permission for the erection of a dwellinghouse on land south west of 1 Hill Terrace, Stow (SBC Ref: 18/00014/RREF & 17/01734/PPP) and for the erection of a dwellinghouse on land north west of Doonbye, Smith’s Road, Darnick (SBC Ref: 18/00015/RREF & 18/00287/FUL).

At its meeting on 16 July, the Planning and Building Standards Committee considered a report by the Chief Planning Officer on the relaxation of the town centre Core Activity Area Policy (Policy ED4 of the LDP), as it applies particularly to Galashiels and Hawick.  The committee agreed to certain changes in the practice of implementing this policy.  For more information on the implications of these changes, see the post on ‘Town Centre Policy: Amendments to practice for processing planning applications, July 2018’.

On the subject of wider planning issues, the Examination of the Proposed South East Scotland Strategic Development Plan, submitted to Scottish Ministers in June 2017, has been completed by Reporters appointed by Scottish Ministers and their report was submitted to Scottish Ministers on 20 July 2018.  The Reporters appointed to undertake the examination considered twenty-five unresolved issues and it is now for Scottish Ministers to consider the report and decide whether or not to approve the plan, with or without modifications.  For more information on the implications for the Scottish Borders, see my post on ‘Proposed Strategic Development Plan 2017’.

During July, the Scottish Government’s Planning and Environmental Appeals Division (DPEA) received an appeal against the imposition of two conditions to a planning permission, granted by the council on 26 March 2018, for the erection of two wind turbines on land at No. 6 Lamberton Holdings in Berwickshire.  The conditions relate to the requirement to remove the turbines within 25 years.

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).

Scottish Ministers have called-in for determination 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 (SBC Ref: 17/00695/FUL) (DPEA Ref: NA-SBD-054).  A hearing session has been arranged, to be held on Wednesday 15 August at 10.00am in the Waverley Suite at the Transport Interchange, Galashiels.

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), which was to commence at 10.00am on 24 July 2018 in the Novotel Hotel, Edinburgh Park (near the Gyle), has been cancelled as un-necessary following agreement on the suspensive conditions required in relation to Edinburgh Airport radar.

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).  The Reporter’s reports in relation to the two Fallago Rig applications have been submitted to Scottish Ministers and their decision is awaited.  In relation to the Birneyknowe application, the Reporter hopes to be in a position to submit the report to Scottish Ministers in August.

 

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).