Development Management: September 2018 update

During September 2018, the Scottish Borders Council received over 150 applications for planning permission and other consents, including listed building and conservation area consents and applications for works to protected trees.  There seems to be no end to the desire of wind farm operators to expand the number of wind turbines in the Scottish Borders; another wind farm proposal has been submitted for the Moorfoot Hills.  A Proposal of Application Notice (PAN) was submitted on 6 September for a wind farm of up to 9 turbines with tip heights up to 150 metres at Wull Muir, north of Carcant Lodge, near Heriot (SBC Ref: 18/01164/PAN).  An application for a Scoping Opinion on the same proposal was received on 24 September (SBC Ref: 18/01308/SCO).  In this case, the applicant has voluntarily decided to undertake an Environmental Impact Assessment (EIA) prior to the submission of an application and has formally requested the opinion of Scottish Borders Council on the Scoping Report, which sets out the matters that should be included in an EIA.  The Scoping Report provides an outline of the environmental receptors that the developer considers may be significantly affected by the proposed development and the application for a Scoping Opinion invites comments on the scope of the proposed EIA.

Bearing in mind the attitude of the council’s Planning and Building Standards Committee on the recent proposal for a wind farm at Gilston Farm, Heriot and to other proposed wind farms in the area, the Wull Muir proposal is unlikely to be received with much enthusiasm.  No doubt the proposal will figure on a future agenda of the Council’s Planning and Building Standards Committee.  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.

Whilst on the subject of wind farms, it will come as no surprise to see that the Planning and Building Standards Committee, at its meeting on 3 September, refused planning permission, against the Chief Planning Officer’s recommendation, for the construction of a wind farm comprising 7 turbines up to 132 metres high to tip height on land at Barrel Law, north west of Roberton (SBC Ref: 17/01255/FUL).  This was a revised proposal, following the withdrawal of concerns expressed by the Ministry of Defence over possible interference with radar at RAF Spadeadam in Cumbria and seismic monitoring at Eskdalemuir, near Langholm.  However, although the Chief Planning Officer recommended approval, the Committee decided on a vote of 5 votes to 2 to refuse the application on the grounds that the proposal would have significant and adverse impacts and effects on the landscape.  Is another appeal to the Scottish Government likely?

On the subject of wind farm appeals, official figures from the Scottish Government’s Planning and Environmental Appeals Division show that, over the past 16 years, 250 wind turbine applications refused by Scottish Councils have been the subject of appeals to Scottish Ministers.  Of these 250 appeals, 104 (41.6%) were successful and planning permission was granted.  In the Scottish Borders, 9 of the 21 appeals dealt with were successful.

The Planning and Building Standards Committee at its meeting on 3 September granted listed building consent for the demolition of St. Aidan’s Church and Church Hall in Galashiels (SBC Ref: 18/00309/LBC).  Planning permission and listed building consent had been granted in October 2015 for the demolition of the church hall and the conversion of the church into eleven flats.  However, it was submitted that the repair and conversion of the church is not economically viable, the property has been marketed with no serious interest from prospective purchasers.  Unfortunately, it would appear that demolition and redevelopment is the only alternative!

At its meeting on 17 September, the Local Review Body (LRB) overturned the decision of its Chief Planning Officer to refuse planning permission for the change of use of 37 Bank Street, Galashiels from a shop to a mortgage advisers (SBC Ref: 18/00764/FUL; 18/00018/RREF).  The Chief Planning Officer had determined that the change of use was not permissible under the council’s recently approved Pilot Scheme because it offered an inactive frontage and low footfall.  The LRB considered that although the proposed use did not fall within the range of uses identified in the Pilot Scheme, the proposed business would complement other uses in Bank Street and would make a significant positive contribution to the viability of the town centre.  The Local Review Body also overturned the Chief Planning Officers decision to refuse planning permission for the change of use of 52 Bank Street, Galashiels to a tattoo studio (SBC Ref: 18/00398/FUL; 18/00020/RREF).  The LRB considered that, whilst the tattoo studio did not fall within the extended acceptable use categories listed in the Pilot Scheme, policy Ed4 of the approved LDP allows other uses where they make a demonstrable contribution to the retail function of the town centre.  In this instance, the LRB was satisfied that it had been demonstrated that the business would make a significant positive contribution to the town centre and that a sufficiently persuasive case had been made to allow the business.  It will be interesting to see how many more proposals for the change of use of retail premises to other uses come forward in the Galashiels Core Retail Activity Area and whether there is any significant measurable change in footfall or a reduction in vacancy rates as a result.

During September, some 100 applications were dealt with by the Chief Planning Officer under delegated powers.  In Berwickshire, planning permission was granted for the erection of 27 affordable dwellinghouses on a site off Station Road, Duns (SBC Ref: 18/00337/FUL) and for the erection of 25 dwellinghouses, a new village hall and formation of playing field on land south and west of Swinton Primary School (SBC Ref: 12/01488/PPP).  Three planning applications were refused: (1) an application for replacement windows on a property in North Hermitage Street, Newcastleton (SBC Ref: 18/00211/FUL); (2) an application for an isolated house in the countryside, near Chapel Farm, between Midlem and Lilliesleaf (SBC Ref: 18/00956/FUL); and (3) an application for a dwellinghouse on a site east of Keleden, Ednam (SBC Ref: [the Local Review Body granted planning permission in principle for a dwellinghouse on the site in July 2018 but the Chief Planning Officer considers that the layout, siting and orientation of the proposed building makes poor use of the plot and the size and scale of the proposed house is too large].

During September, the Planning and Environmental Appeals Division (DPEA) reached a decision on the appeal against the imposition of two conditions on the planning permission, granted on 26 March 2018, for the erection of two wind turbines on land at No. 6 Lamberton Holdings in Berwickshire.  The appealed conditions relate to the requirement to decommission and remove the turbines within 25 years (SBC Ref: 17/01348/FUL) (DPEA Ref: PPA-140-2071).  The Reporter decided to vary the appealed conditions and, given the scale and location of the proposed foundations, deleted the requirement to remove the foundations and restore the site to its original condition when electricity generation ceases.

An appeal against the council’s refusal to issue a Certificate of Lawful Use of a property used in the past as a guest house, as a dwellinghouse, at Camptown, south of Jedburgh was submitted on 25 September 2018 (DPEA Ref: CLUD-140-2002).  An interesting case for the DPEA!

Four appeals remain to be determined against the refusal of planning permission: (1) 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); (2) for the erection of a poultry building at Hutton Hall Barns, Hutton in Berwickshire (DPEA Ref: PPA-140-2065); (3) for the erection of a poultry building at Easter Happrew in the Manor Valley, west of Peebles (DPEA Ref: PPA-140-2062); and (4) a residential development of 38 dwellings at Marchmont Road, Greenlaw in Berwickshire (DPEA Ref: PPA-140-2059).

The hearing session in connection with the application by Eildon Housing Association for residential development at Huddersfield Street, Galashiels, which was called-in for determination by Scottish Ministers in view of the possible flood risk (SBC Ref: 17/00695/FUL) (DPEA Ref: NA-SBD-054) was held on Wednesday 15 August in the Waverley Suite at the Transport Interchange, Galashiels.  It is expected that the Reporter’s report and recommendations will be submitted to Scottish Ministers in October.

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.  The Reporter dealing with the Birneyknowe wind farm application submitted his report to Scottish Ministers on 5 September 2018.

 

Development Management: August 2018 update

During August 2018, the Scottish Borders Council received 121 applications for planning permission and other consents, including listed building and conservation area consents and applications for works to protected trees.  Two applications for residential development in Peebles have already generated a number of objections/comments from neighbouring residents; the erection of two blocks of flats comprising 40 residential units at Tweedbridge Court (SBC Ref: 18/01086/FUL) and the erection of 71 dwellinghouses on land south of the South Park Industrial Estate (SBC Ref: 18/01026/FUL).

The proposal for affordable housing by Eildon Housing Association at Tweedbridge Court occupies the site of the former Blackwood Housing sheltered housing scheme.  The proposal to erect two four-storey blocks of flats on the banks of the Tweed is causing some concern about the impact of the development on the iconic view from the Tweed Bridge.  Watch this space.

The site of the proposed 71 dwellinghouses by Persimmon Homes is allocated for 50 residential units in the local development plan.  It was the subject of a Proposal of Application Notice in April 2017 (SBC Ref: 17/00587/PAN).  No details of the proposal were submitted with the PAN, which intimated that details of the proposed development would be available at a forthcoming public consultation event but no date, time or location for the event was provided.  The pre-application consultation event proposed in the PAN did not take place until 10 July 2018 (publicised in the Peeblesshire News on 29 June 2018) more than a year after the submission of the PAN.  The subsequent planning application was submitted on 6 August 2018.  A number of concerns have already been raised by the local community, in particular, to the increased number of houses proposed and the suitability of Tweed Bridge and Caledonian Road to accept any further housing in this area south of the river.

This application is a perfect illustration of the uncertainties surrounding the Proposal of Application Notice procedure for large-scale developments.  As related in my March 2018 Development Management update, according to the Scottish Government’s Planning Circular 3/2013 on Development Management Procedures, a Proposal of Application Notice must contain an account of what consultations the applicant intends to undertake, when such consultation is to take place, with whom and what form it will take.  The Scottish Government wishes to encourage improved trust and open, positive working relationships from the earliest stages in the planning process and to provide, where possible, an early opportunity for community views to be reflected in proposals.  The purpose of pre-application consultation is, therefore, to improve the quality of applications, mitigate negative impacts where possible, address misunderstandings, and air and deal with any community issues that can be tackled so that the proposals benefit from that engagement and assist the efficient consideration of applications once submitted.

However, as in this case, some applicants are somewhat reticent in providing all the information required by the Regulations and PANs fail to specify when and where the required public event is to take place but leave it flexible.  A notice of the proposed public event must also be published in a local newspaper circulating in the locality at least 7 days before the holding of the public event and, as in this instance, this was the first intimation of the precise date, time and location, of the proposed public event.  Consequently, one has to question whether the public have had sufficient opportunity to engage with the developer and also the extent to which community views have been taken into account in framing the proposals when the planning application was submitted less than a month after the public event.

No doubt, both these proposals will figure on a future agenda of the Council’s Planning and Building Standards Committee.  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.

There were no meetings of the Planning and Buildings Standards Committee or the Local Review Body in August but some 114 applications were dealt with by the Chief Planning Officer under delegated powers.  Seven applications were refused; six applications for planning permission and a retrospective advertisement application:

  • Erection of two dwellinghouses at Stainie Brae, Lower Greenhill, Selkirk (SBC Ref: 18/00832/PPP);
  • Erection of dwellinghouse at Ladywood, Lower Greenhill, Selkirk (SBC Ref: 00929/PPP);
  • Change of use of a shop to a mortgage advisers at 37 Bank Street, Galashiels (SBC Ref: 00764/FUL);
  • Change of use and alterations of a steading to form a dwellinghouse at Billerwell Farm, Hawick (SBC Ref: 18/00745/FUL);
  • Alterations and extensions to the property ‘Rockmount’ at Mountain Cross, Peeblesshire (SBC Ref: 18/00711/FUL); and
  • Siting of a cabin for holiday let on land at Meadshaw Farmhouse, Hawick (SBC Ref: 18/00724/FUL).
  • Advanced sign for Woll Golf Course at main crossroads in Ashkirk village (SBC Ref: 18/00916/ADV);

Although the Planning and Buildings Standards Committee agreed on 16 July to the relaxation of its Town Centre Core Activity Area Policy as it applies to Galashiels for a period of one year (see post on ‘Town Centre Policy: Amendments to practice for processing planning applications, July 2018’), the Chief Planning Officer decided on 2 August 2018 that the change of use of 37 Bank Street from a shop to a mortgage advisers was not permissible under the Pilot Scheme because it offered an inactive frontage and low footfall.  An appeal to the Local Review Body would make for an interesting discussion.

In relation to appeals received by the Scottish Government’s Planning and Environmental Appeals Division (DPEA), it is worth pointing out (because such appeals are relatively scarce) that an appeal was submitted on 13 August against the refusal of works to trees at Glenkinnon Wood in the Tweed Valley near Peel, Clovenfords (DPEA Ref: TWC-140-1; BRC Ref: 18/0621/TPO).  Tree works applications make up a significant proportion of applications to the Planning Department and this may not be the first refusal of Tree Works Consent issued by the Chief Planning Officer but it certainly was the first Tree Works Consent appeal in the Scottish Borders.  However, I shall not be able to report on its outcome for the appeal was quickly withdrawn on 23 August, ten days after it was submitted!

During August, the Planning and Environmental Appeals Division (DPEA) reached a decision on the appeal against 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).  Much to the ire of the local community, this appeal has been upheld and planning permission has been granted subject to 35 conditions.  In granting planning permission, the Reporter concluded that, although the proposed development would have localised and limited impacts on landscape and visual amenity and on archaeological assets, cumulative visual impacts would not be sufficient to reject the proposal.  He also considered that whilst there would be impacts on the amenity of nearby residential properties, these would not be to an extent which would breach the test which has been applied by Scottish Ministers in a similar case.  He was not persuaded by the evidence relating to the adverse effects of the development on tourism in this part of the Borders or specific tourism businesses.  He considered that other potential impacts could be appropriately managed through planning conditions and other control regimes.  In relation to the campaign for a Scottish Borders National Park, he attached little weight to this possible development, which is in the very early stages of investigation.

Five other appeals remain to be decided by the DPEA: one appeal is 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 appealed conditions relate to the requirement to decommission and remove the turbines within 25 years (SBC Ref: 17/01348/FUL) (DPEA Ref: PPA-140-2071).  The site inspection is programmed for the 12 September 2018.

Four appeals remain to be determined against the refusal of planning permission: (1) 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); (2) for the erection of a poultry building at Hutton Hall Barns, Hutton in Berwickshire (DPEA Ref: PPA-140-2065); (3) for the erection of a poultry building at Easter Happrew in the Manor Valley, west of Peebles (DPEA Ref: PPA-140-2062); and (4) a residential development of 38 dwellings at Marchmont Road, Greenlaw in Berwickshire (DPEA Ref: PPA-140-2059).

The hearing session in connection with the application by Eildon Housing Association for residential development at Huddersfield Street, Galashiels, which was called-in for determination by Scottish Ministers in view of the possible flood risk (SBC Ref: 17/00695/FUL) (DPEA Ref: NA-SBD-054) was held on Wednesday 15 August in the Waverley Suite at the Transport Interchange, Galashiels.

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.  The Reporter dealing with the Birneyknowe wind farm application hopes to be in a position to submit his report to Ministers during September.

 

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.