THE HIGHLAND COUNCIL
ROSS, SKYE & LOCHABER
PLANNING APPLICATIONS COMMITTEE – 4th August
Agenda
Item
5.11
Report No
PLR/101/09
09/00147/FULSL : Michael and Dr. J Darlington
Removal of condition 3 attached to planning permission reference 03/00302/FULSL
Report by Area Planning and Building Standards Manager
SUMMARY
Description : Removal of condition 3 attached to planning application reference
03/00302/FULSL
Recommendation - GRANT
Ward : 11 Eilean a Cheo
Hearing : Hearing not required
Reason for Committee : Previous planning history.
1.
PROPOSAL
1.1
This application seeks the removal of condition 3 attached to the planning
permission granted for the erection of the house (ref. 03/00302/FULSL). This
permission was granted on the 16th April 2004. The house has now been built and
is known as Janael. Condition 3 required the access onto the public road be
constructed to comply with figure 4 of the design standard.
1.2
The property is known as Janael is located to the north of the Rhenetra township
road, approximately 450m east of the junction with the A87(T). The access to the
property is via the access track off the township road that serves the farm located
to the north of the township road.
1.3
A letter from the applicant was submitted to counter the points raised in the
representation. This will be referred to later in this report.
2.
PLANNING HISTORY
2.1
The site has been subject to the following planning applications:
88/00308/OUTSL- Erection of house (in outline) Granted 23/11/88
91/00378/FULSL – Erection of House – Withdrawn 17/09/93
03/00302/FULSL – Erection of House – Granted 16/04/04
Site
Jenael, Rhenetra, Snizort,
Isle of Skye
Mr & Dr Darlington 09/00147/FULSL
Planning & Development Service
Date: 13 July 2009
1:30,000
¯
© Crown copyright 100023369 2009
05/0090/FULSL – Erection of house (amended access arrangement) – Withdrawn
17/08/06
3.
PUBLIC PARTICIPATION
3.1
One letter of objection has been received with regard to the application. The points
raised can be summarised as follows:
1.
The existing condition relating to the access should be upheld and enforced
in line with the Council policy – Road Guidelines for New developments
Rural Areas.
2.
The planning Committee overturned the officer’s recommendation and
approved the permission subject to conditions. One condition was the
provision of a figure 4 access arrangement.
3.
Seek confirmation of what measures are to be put in place to meet road
safety and visibility requirements if this condition is removed.
Points 1-3 above will be addressed later in this report
In response to the representation the applicant makes the following
comments:
1.
The representation inaccurately quotes the wording of the condition; the
correct wording is “Prior to occupation of any part of the development”.
2.
The officer’s recommendation was for approval as per the minute of the
committee meeting and not refusal as stated in the representation.
3.
The author of the representation has tried to obstruct the construction of the
house at every opportunity. Initially using access rights and civil issues to
delay and frustrate the development. The planning system is being used to
prolong the dispute.
4.
In August 2005 a meeting on site, where all interested parties were
represented, took place that resulted in agreement of a compromise
solution.
5.
The winter parking /service bay is some 19metres in length and 3.5metres
wide.
6.
The access to the house uses part of the existing access track to the
objector’s property, the objector and their family use the access junction
more than the applicant.
3.2
All letters of representation can be viewed at the Area Planning Office and for
Councillors, will be retained within the members lounge prior to the Committee
Meeting.
4.
CONSULTATIONS
Site
Jenael, Rhenetra, Snizort,
Isle of Skye
Mr & Dr Darlington 09/00147/FULSL
Planning & Development Service
Date: 13 July 2009
1:2,500
¯
© Crown copyright 100023369 2009
4.1
TECS (Roads) : TEC’s have No objections to the removal of this Condition – the
applicant has been unable to achieve the access geometry due to land control issues
– no Section 75 agreement was conditioned with the approval and now we have the
situation of the house having been constructed and an unresolved access condition. I
am satisfied that while a Figure 4 has been conditioned the significant road safety
issue associated with the access – i.e. the visibility, had been deemed acceptable by
the area committee in permitting the application subject to conditions, but only
specifying the geometry. The applicant has made provision of a winter parking area
contiguous with the public road. Winter parking area (2.5m x 20m) to be surfaced with
bitmac.
5.
POLICY
5.1
The following policies are relevant to the assessment of the proposal
Highland Structure Plan 2001
Policy G2
Design for sustainability
Skye and Lochalsh Local Plan
Policy for housing in dispersed communities
West Highlands and Islands Local Plan (Deposit Draft)
Policy 1
Settlement Development Areas.
6.
PLANNING APPRAISAL
6.1
Determining issues - Section 25 of the Town and Country Planning (Scotland) Act
1997 requires planning applications to be determined in accordance with the
development plan unless material considerations indicate otherwise.
6.2
The proposal requires to be assessed against both the appropriate policies of the
Development Plan, supplementary guidance and National Planning Policy and
Guidelines as referred to in the Policy section. In particular, the proposal requires
detailed assessment of the following fundamental issues:
ƒ
whether the principle of development is appropriate in terms of policy
ƒ
whether the layout of development is appropriate
ƒ
the impact on the amenity of the area and residents
ƒ
other material issues raised by the objectors
6.3
Policy Appraisal
6.3.1
For the sake of clarity Members should note that the house has been built and is
lived in at certain times during the year – it is the applicants desire to live in the
property fulltime in the future. The policy of the Council in both the Structure Plan
and the Local Plans (statutory and emergent) require that a proposed development
should be in accord with the existing service provision and where required should
enhance the infrastructure if that is applicable. In this instance the planning history
of the site and the reason for the attachment of the condition are somewhat
complicated.
The condition was attached as a requirement following the
consultation with Tecs (Roads) however the report on the previous application
(reference 03/00302/FULSL) made it clear that the improvements required by
TECs were not achievable given the fact that “The applicant does not have the
required land within his ownership or control”.
6.3.2
The Committee report went on to state that winter parking could be provided to the
front of the site and that improvement of the existing lay-by opposite the junction
was sufficient in this instance. The intent of the report as worded in the assessment
does not correspond with the condition imposed as it involves land outwith the
applicant’s control. The Committee agreed the recommendation to approve the
proposal and the minute records that this was “subject to the submission of
detailed sections and an accurate site plan with condition 3 to be amended by the
APBCM in consultation with the local member and, if necessary, the portfolio
holder, to ensure that the Objectors access rights are not compromised.” However,
the wording of the condition attached to the planning consent decision notice is the
same as that detailed in the committee report. The wording remained unchanged.
It would appear that no proposed change to the wording was deemed necessary
following the post committee consultation.
6.3.3
Based on the information on file and the official minutes of the meeting it would
appear that the committee agreed to grant planning permission in accordance with
the main body of the text in which the requirement of TECs was being discounted
provided that the access rights of the objector were not compromised. To be
correct in planning terms the condition should have been reworded to accurately
reflect the intent of the report as presented. This does not seem to have occurred.
The condition that was attached to the planning consent is that as attached to the
committee report. Committee were aware from the objectors correspondence that
the condition referred to land that was outwith the applicants’ control, the report to
committee also referred to this fact. It is clear from the representations that the
objector controlled the land in question required for the access improvements and
that he would not sanction or agree to the improvements taking place on his land.
Essentially the condition in question (fails the 6 tests specified in Circular 4/1998)
and consequently was ultra vires as a result.
6.3.4
On commencement of building operations the applicant created a construction
access from the township road and a planning application was submitted to
regularise that development (planning ref 05/00090/FULSL) in the hope that this
amended access arrangement could service the house. Following discussions it
was agreed to withdraw that application and revert to the previously approved
details. The applicants access rights and legal position had been confirmed at this
point.
6.3.5
At a Committee meeting of the 31st July 2006 the Committee authorised serving a
Breach of Condition Notice pertaining to condition 3 of the consent (ref.
03/00302/FULSL). The service of the notice was dependent on the applicant
occupying the house and the breach of condition notice was to require the
completion of the access within 6 months. In the intervening period the house has
been completed and the applicants have occupied the property on a number of
occasions. On each occasion that the house is occupied the objector contacts the
planning service reporting the occupation. It would be fair to say that he has
become increasingly frustrated at the Service’s lack of action and the fact that the
Breach of Condition Notice has not been served. In the period since the house was
last occupied the applicants have been contacted and the matter has been
discussed with them. This application is as a result of those discussions.
6.3.6
As stated previously the details required by the condition were discounted in the
Committee report, the condition was ultra vires and the land to which it referred
outwith the applicant’s control. The enforcement action sanctioned by Committee
therefore requires to be cancelled. The fact that the condition referred to land within
the control of the objector and not the applicant made it impossible to be complied
with and therefore the condition is ultra vires. The condition should not been
attached as it is worded. Members will be aware that where land required for an
access improvement lies outwith the applicants control planning permission is
issued on completion of a legal agreement between all concerned parties regarding
the provision of the required improvements.
6.3.7
Tecs have advised that the access as constructed is acceptable and gives rise to
no road safety concerns. Although the access does not confirm to the terms of the
original condition there are no road safety concerns associated with this access
and there is no planning basis to pursue further works in this instance. The
existing access arrangements are therefore acceptable.
6.4
Servicing and Infrastructure
TECS (roads) are satisfied with regard to the access arrangements
6.5
Third Party Representations
Having regard to the material aspects of the representation the following addresses
the main points. It is unfortunate that in this instance the objector has maintained
that the condition should be enforced. It is clear from the outset, in their
representations to the original application, that he was aware of the requirement for
the figure 4 access; that requirement would impact on land in his control; and that
he was insistent that he would not sanction any of his land to be used for the
access improvement. However, the main body of the previous Committee report
(recommending approval of the house) discounts the requirement for the access
improvement, the condition was to be reworded, but the characteristics of the site
and the existing provision of a lay-by nearby (on land that was within the
applicant’s control) made the condition unnecessary.
Moreover TECs (roads)
have no objections to the removal of the condition now.
7.
CONCLUSION
7.1
In this instance the required access improvements are not warranted, the land
referred to is outwith the control and the condition is ultra vires. Therefore, the
condition can be removed.
The previous committee’s agreement to serve the Breach of Condition Notice
requires to be cancelled as the Notice is no longer applicable given the nature of
the condition to which it refers.
RECOMMENDATION
It is recommended the application be Approved and the condition 3 of permission ref
03/000302/FULSL be removed.
It is further recommended that the Committee repeal the authority to serve a Breach of
Condition Notice.
Signature:
Designation:
Area Planning & Building Standards Manager, Ross, Skye & Lochaber
Author:
Victor Hawthorne
Report Date:
16/07/09
Background Papers: Highland Structure Plan
Skye and Lochalsh Local Plan
West Highland and Islands Local Plan
Circular 4/1998 Use of Conditions in Planning Permissions
Relevant Plans:
Plan 1 – Location
Plan 2 - Site plan