Scottish Court of Session Decisions

The development plan

"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations dictate otherwise."

Section 37 provides in part:

"(1) Where an application is made to a planning authority for planning permission -

(a) subject to sections 58 and 59, they may grant planning permission, either unconditionally or subject to such conditions as they think fit, or

(b) they may refuse planning permission.

(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

"The Council will encourage infill and consolidation of the built-up area consistent with the following guidelines [ . . . ]

(f) OTHER RESIDENTIAL AREAS - retention of the established character and amenity; adherence to agreed guidelines for Achintore Road; [ . . . ]"

At the hearing there was some inconclusive discussion of the meanings of the expressions "infill" and "consolidation". It appeared to be agreed that both were concerned with building within the urban area of the town and that any distinction between them was a fine one.

"9. Further to this analysis the principles set out in the Adopted Local Plan and subsequent Alteration are reaffirmed or strengthened as follows;

INFILL - The Council will encourage development of remaining gap sites primarily for residential purposes. There will be a presumption against additional dwellings where proposals would result in;

(i) sub-division of established plots involving;

[ . . . ]

-         inadequate plot size [ . . . ]

[ . . . ]

-         loss of privacy/amenity to neighbouring occupiers;

(ii) sites to the rear of existing properties or in other prominent, backland or elevated positions. This need not preclude accommodation essential to operational needs (e.g. staff facilities associated with existing hotels) where proposals adhere to the supplementary guidelines below (see 10);

[ . . . ]

EXTENSION/IMPROVEMENT - The Council will support extension or improvement of property for the purpose of intensifying existing uses or activities subject to the guidelines below (see 10).

In all cases, proposals which constitute over-development or 'cramming', relate poorly to the established development pattern or give rise to a traffic or public safety hazard, will be resisted."

"10. Further to the above, new development proposals involving the alteration or extension of existing properties should be consistent with the following advice;

DEVELOPMENT

Proposals should;

(a) maintain the well-established linear street-form of single plot depth with properties held to the foot of the escarpment, reinforcing the existing low profile elevation to the lochside;

[ . . . ]

(c) relate well to the landform, avoid significant excavation, cutting or other site work, and generally restrict exposed under-building to a depth of 0.5 metres.

(d) not involve the sub-division of existing residential plots to create new infill sites, except where the spacing between buildings is sufficiently generous to allow properties to sit comfortably in the overall development pattern. Any new houses or extensions should show general consistency with the prevailing separation distances (see schedule page 3) between properties; and

(e) accommodate extensions or related ancillary buildings to the rear, where densities are higher and plot widths narrower. Specifically, such proposals should be of a scale and design appropriate to avoid prejudice to the privacy, daylighting and aspect enjoyed by neighbouring occupiers. [ . . . ] Adherence to a rear building line set back a minimum of 6 metres from the road and

1-1.5 storey building height would be appropriate.

(f) incorporate innovation in relation to new building, given the mix of existing styles. Extension or modification of properties should be consistent with the character and scale of the existing building, its materials and finishes; [ . . . ]

ACCESS

It is strongly recommended that proposals incorporate;

[ . . . ]

(n) integral parking and turning facilities within sites. Parking capacity should be commensurate with the scale and nature of commercial uses, and a minimum of two spaces should be provided within the curtilage of all new houses.

[ . . . ]"

"This letter is intended to summarise the responses of statutory consultees and request that you consider amending the proposal such that consultees' concerns may be addressed and Officer support can be forthcoming.

[ . . . ]

In terms of the application details, there are some concerns with the style of development proposed, particularly the description as a separate house and the orientation of the new building. However, it appears that there may be an opportunity to amend the design such that it more closely reflects the pattern of adjacent development, internal parking/turning is simplified, and with alterations to the window arrangements, overlooking concerns can be addressed. I would be grateful if you could consider amending the proposal in line with the enclosed sketch. Further, it is considered that an annexe to Ardlinnhe, allowing ancillary residential use or holiday letting as originally discussed, would be more appropriate for the site, particularly given its proximity to the main house due to the overhead lines.

I would be grateful if you could consider these suggestions and if you wish to amend the scheme description or design, advise me accordingly. Procedurally, this will necessitate the withdrawal of the current application and a re-submission."

"You will recall my letter of 18^th August 2006 discussing the description of the proposed development. In particular, I suggested that a residential annexe of Ardlinnhe with potential for holiday letting in future would be more appropriate. The new application has been submitted as 'erection of house', which changes the type of issues the proposal will raise.

Is this your client's intention or is this something that was overlooked and should be amended?"

Thereafter the description of the development was amended to "Residential annexe or holiday letting unit". The amendment was not intimated to the petitioners.

"to grant (but not refuse) planning applications [ . . . ] where:-

[ . . . ]

(iii) [ . . . ]

(c) the application is one which the Officer concerned (in consultation with the Area Planning Committee Chair and local Member) considers should be granted because the application details are acceptable and/or suitable conditions can be applied to resolve satisfactorily the issues raised by third party objection, representation and consultees. This delegation does not apply to any application that does not accord with the provisions of the Development Plan, or where the proposals are of significant scale, or controversial in nature or involve complicated issues of planning policy or principle."

"Erection of residential annexe/holiday letting unit

Site In Garden Ground Ardlinnhe Achintore Road Fort William Highland."

The decision goes on to say that the Council grant permission for that development in accordance with the plans and the particulars given in the application, and subject to various conditions including:

"(1) The building hereby approved shall be used either as:

(a) holiday accommodation, operated by the occupiers of the adjacent dwellinghouse know as 'Ardlinnhe', Achintore Road, Fort William, and shall not be occupied by any one family, individual or group for more than three months in any one calendar year, and shall be; [sic: the last three words appear to be redundant] OR,

(b) ancillary residential accommodation incidental to the enjoyment of the adjacent dwellinghouse known as 'Ardlinnhe', Achintore Road, Fort William; unless otherwise first agreed in writing by the Planning Authority. For the avoidance of doubt the building shall not be used as a permanent dwellinghouse.

Reason: In accordance with the use as a residential annexe/holiday letting unit and by reason of its siting, lack of curtilage and close proximity to the main dwellinghouse, the property would be unsuitable for permanent residential accommodation."

"It is not considered that the proposal would constitute over-development, with ample undeveloped plot area and closely reflecting the pattern of adjacent development, including [the second petitioners'] own rear development (owner's accommodation)."

"This proposal was originally submitted as 'Erection of house' [read 'Erection of dwelling house'], but the applicant has clarified the proposed use as accommodation for the owners of Ardlinnhe's elderly parents, with potential holiday letting once family accommodation is no longer required. The development description has been amended accordingly to 'Erection of residential annexe/holiday letting unit'."

Counsel said that whether the development was a dwelling could not depend on how the applicants proposed to use it. The way it was used could not determine its nature. But even if the proposed use was relevant, the applicants would in fact live in it as their house. It would be a self-contained dwelling with its own water and drainage. It could not be described as a residential annexe, because it would not be ancillary to Ardlinnhe.

1-1.5 storey building height which the guidelines regard as appropriate. Further averments are made to the effect that the parking that would be available would be below the minimum standards set by the respondents' policy on parking, and reference is made to the respondents' publication, "Road Guidelines for New Developments".

Submissions for the Council

"Third party concerns demonstrate a degree of local concern, but the issues raised are either addressed by consultee responses or are not supported by an objective assessment of the development.

Subject to suitable conditions as recommended below, it is considered that the application should be supported."

Discussion

"1. The respondent having taken into account irrelevant considerations et separatim having failed to take into account relevant considerations et separatim having relied upon a factual basis that was subject to material error in making the decision, the decision is to be reduced.

2. Separatim, the application having been amended in a material respect, and the application as amended not having been notified to neighbouring proprietors, the decision is to be reduced."

"In assessing the application, it is critical that the Planning Authority has regard to the pattern of development hereabouts. The section of Achintore Road close to Fort William is generally linear development parallel with the A82, with a substantial number of backland developments to provide separate houses, ancillary accommodation, or letting accommodation. The site to the immediate north of the application site (Buccleuch) is a good example of such ancillary accommodation within the rear grounds. That development was recently completed. In this regard, the current proposal relates well to the pattern of development."

It appears to me to be impossible to contend that that is an unreasonable view. Any error as to the age of the building behind Buccleuch is in my view immaterial.

"It is not considered that the proposal would constitute over-development, with ample undeveloped plot area and closely reflecting the pattern of adjacent development, including the objector's own rear development (owner's accommodation)."

The report also observed:

"The building location has been carefully devised to limit landscape impact by limiting the extent of excavation necessary and preventing the realignment of [read 'or'] undergrounding of existing overhead cables running across the south-east of the site. The building level avoids the creation of an overbearing development."

In my opinion that cannot be criticised as an unreasonable approach to and determination of the disputed issue of whether there would be too much building on the plot.

"The amended orientation, building position, window arrangements and existing vegetation within the objector's control, combine to prevent overlooking of the objector's property."

Before the application was approved, the applicants' agents submitted a revised plan showing the proposed building 1000mm further away from the first petitioners' property. Dealing with a complaint by the second petitioners that they would suffer a substantial loss of privacy, their property would be overlooked and the new building would impact on daylight and sunlight at their property, the report commented:

"The near side elevation of the annexe is 25m away from the front face of the objector's owner's accommodation, which faces towards the application site. Indeed the building design, orientation and style closely reflect the objector's own development."

The petitioners aver that the development would exceed the 1-1.5 storey building height which the guidelines regard as "appropriate". The report deals with that issue in this way:

"The 1.75 storey form combines with a narrow building span to create a well proportioned unit which relates well to the heights of surrounding property."

In my opinion it is impossible to hold that the views expressed in the report relative to privacy, daylighting and aspect could not reasonably be maintained. The petitioners' averments on these matters appear to me to be irrelevant.

Result