Local Review Body - 25/03/2011

At a MEETING of the LOCAL REVIEW BODY held at Dundee 25th March, 2011.

Present:-

Councillor David BOWES

Councillor Christina ROBERTS

Councillor Tom FERGUSON

Councillor David BOWES, in the Chair.

The Chairman welcomed those present to the meeting and briefly outlined the role of the Local Review Body and officers, in particular advising that, although the Planning Adviser was an employee of the Planning Authority, he had not been involved in the determination of the case under review and was present to provide factual information and guidance only.

I MINUTE OF MEETING OF LOCAL REVIEW BODY OF 22ND FEBRUARY, 2011

The minute of the above meeting was submitted and noted.

II REQUEST FOR REVIEW - LR2/11 - DUKE'S CORNER PUBLIC HOUSE, DUNDEE, 13-15 BROWN STREET, DUNDEE

There was submitted Agenda Note AN48-2011 giving details of a request for a review of the refusal of an application under Section 42 of the Town and Country Planning (Scotland) Act 1997, as amended, to vary Condition 2 of Planning Application 09/00693/FULL, to extend the hours of operation of the outdoor seating area, for Mr Gary Thomson.

The Planning Adviser gave a brief outline of the application and the reasons for the refusal.

Thereafter, the Legal Adviser advised of the undernoted procedural/legal issues which required to be considered by the Local Review Body:-

(i) The applicant had indicated in the Notice of Review to new material being submitted which was intended to clarify the history and site relationship with nearby developments, including those of the objectors. The only reason provided for this material not being before the appointed officer who determined the case was that the application had been submitted by the applicant himself; the Notice of Review had been submitted on the applicant's behalf by his agent. The new material included an e-mail from D Duncan, Solicitor, to J Dagen, dated 29th December, 2010, a letter and statement to the Licensing Board, press cuttings, premises licence and recent photographs.

In terms of Section 43B(1) of the Town and Country Planning (Scotland) Act 1997 as amended, in a review, a party to the proceedings was not to raise any matter which was not before the appointed person at the time the determination reviewed was made unless that party could demonstrate that the matter could not have been raised before that time, or that its not being raised before that time was a consequence of exceptional circumstances. If either of these tests were met then the Local Review Body should take the new information into consideration in reaching its decision.

In any event, in terms of Section 43B(2) of the 1997 Act as amended, the Local Review Body was, required in reaching its decision, to have regard to the provisions of the development plan and any other material considerations. Therefore, if the Local Review Body considered that the new information contained material considerations, it was required to take these into account. If not, and if neither of the criteria in terms of sub-section (1) was met, the new information should not be considered.

The Local Review Body agreed with the view of the Legal Adviser, which was that the new material referred to in the application for review should be taken into consideration and nothing should be ruled out at this stage.

(ii) The review was sought in respect of an application made under Section 42 of the Town and Country Planning (Scotland) Act 1997, as amended.

Section 42(1), applied, subject to sub-section (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

In terms of Section 42(2), in respect of such an application, the planning authority should consider only the question of the conditions subject to which planning permission should be granted, and:-

(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous planning permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly; and

(b) if they decide that planning permission should be granted subject to the same conditions as those to which the previous permission was granted, they shall refuse the application.

The applicant was seeking a review of the decision to refuse the variation of condition 2, attached to planning permission 09/006933/FULL in respect of the operating hours of the beer garden, and it was this decision that the Local Review Body could uphold, reverse or vary. In doing so, however, the Local Review Body could consider all three conditions which were attached to the permission and could attach whatever conditions, if any, they considered appropriate.

The Local Review Body noted the position.

Thereafter, the Local Review Body considered whether it felt that it had sufficient information before it to determine the review at that time, or whether it required any further information. Members noted that the applicant had requested that the review be undertaken on the basis of further written submissions, one or more hearing sessions, and a site visit.

The Local Review Body considered the documentation submitted and, after discussion, agreed to request further written submissions in respect of the undernoted matters under the provisions of Regulations 13 and 15 of the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2008 from the following individual:-

From the Head of Environmental Health and Trading Standards

In respect of the issue of noise, further explanation of the reasons why extending the hours of operation of the outdoor seating area until midnight, as requested by the applicant, could lead to nearby residents being disturbed by noise, and his views on whether any alteration to the currently permitted hours of operation could be supported.

The Local Review Body also agreed to hold an accompanied site visit on Monday, 18th April, 2011 at 9.00 am.

III REQUEST FOR REVIEW - LR3/11 - FLAT 1/0, 87 COMMERCIAL STREET, DUNDEE

There was submitted Agenda Note AN49-2011 giving details of a request for a review of the refusal of planning permission for the change of use from office to five bedroom house of multiple occupancy, for Mr Robert Bruce.

The Planning Adviser gave a brief outline of the application and the reasons for refusal.

Thereafter, the Legal Adviser advised of the undernoted procedural/legal issues which required to be considered by the Local Review Body:-

(i) The applicant had indicated in the Notice of Review that no new material had been submitted with the Notice. Amongst the documents submitted for review, however, was a decision notice dated 29th August, 2006 regarding application 06/00490/COU, together with accompanying plans. This was an application for a change of use from offices to flats located above the Trades House Bar in Union Street. There was nothing in the Report of Handling to indicate that this was before the appointed officer before he reached his decision.

In terms of Section 43B(1) of the Town and Country Planning (Scotland) Act 1997 as amended, in a review, a party to the proceedings was not to raise any matter which was not before the appointed person at the time the determination reviewed had been made unless that party could demonstrate that the matter could not have been raised before that time was a consequence of exceptional circumstances. If either of these tests were met then the Local Review Body should take the new information into consideration in reaching its decision.

In any event, in terms of Section 43B(2) of the 1997 Act as amended, the Local Review Body was, required in reaching its decision, to have regard to the provisions of the development plan and any other material considerations. Therefore, if the Local Review Body considered that the new information contained material considerations it was required to take these into account. If not, and if neither of the criteria in terms of sub-section (1) was met, the new information should not be considered.

The Local Review Body agreed with the view of the Legal Adviser, which was that this decision should be taken into consideration and nothing should be ruled out at this stage.

(ii) Although the required notification would appear to have been undertaken, the Report of Handling indicated that no advertisements were required. In terms of the Development Management Procedure (Scotland) Regulations 2008, Regulation 20(1)(d), where the application related to development which did not accord with the provisions of the development plan, the planning authority must publish a notice in the form set out in Schedule 4 to the Regulations in a newspaper circulating in the locality in which the neighbouring land was situated. The appointed officer had concluded that the development was contrary to the development plan.

Regulation 19 of the Schemes of Delegation and Local Review Procedure (Scotland) Regulations 2008 required that the Local Review Body must, to the extent not already done so, comply with Regulation 20 of the Management Regulations. This had not been done.

The Local Review Body therefore agreed to publish a notice in the form set out in Schedule 4 to the Development Management Procedure (Scotland) Regulations 2008.

From the Head of Environmental Health and Trading Standards

Further explanation of the reasons why the standard of residential amenity that would be enjoyed by residents of the House of Multiple Occupancy was considered unacceptable, together with any updated information submitted by Robert Mackenzie Partnership (RMP) Consultants, following the discussions referred to in correspondence contained in the Review Papers dated 2nd June, 2010.

The Local Review Body also agreed to hold an accompanied site visit on Monday, 18th April, 2011 at 10.00 am.

IV LOCAL PLANNING REVIEW LR1/11 - GARDEN GROUND AT 18 CAMPHILL ROAD, BROUGHTY FERRY, DUNDEE

There was submitted Agenda Note AN50-2011 making reference to Article II of the minute of meeting of the Local Review Body of 22nd February, 2011, wherein details had been submitted of a request for a review of the refusal of planning permission for the erection of a single dwellinghouse and vehicular access, for RMJ Properties.

The Local Review Body had requested further written submissions which had been provided and circulated. It had also requested an accompanied site visit which had taken place on 15th March, 2011.

The Local Review Body agreed, in terms of the Local Review Procedure Regulations, to determine the review without further procedure on the basis of this information.

Thereafter, having considered all the information, the Local Review Body upheld the decision of the appointed officer to refuse planning permission. This was on the grounds that:-

(i) The proposed development contravened Appendix 1 referred to in Policy 4 of the Dundee Local Plan Review 2005, due to having insufficient useable garden ground; and as a result of failing to provide a garage or space for a garage. There were no material considerations of sufficient strength to justify the granting of planning permission contrary to the terms of the Policy;

(ii) The proposed development contravened Policy 4 of the Dundee Local Plan Review as it did not reflect the low density character of the surrounding area and failed to have regard to the Urban Design Guide. There were no material considerations of sufficient strength to justify the granting of planning permission, contrary to the terms of the Policy;

(iii) The proposed development contravened Dundee Local Plan Review 2005 Policy 15(a) because its excessive scale, modern design and finishing materials; Policy 15(c) due to the proportion of ground covered by buildings, hardstandings etc; Policy 15(d) because the development did not respect the prevailing densities in the area; Policy 15(e) as the proposal projected beyond the principal elevation of 18 Camphill Road; and Policy 15(g) due to the proposed breach in the boundary wall. There were no material considerations of sufficient strength to justify the granting of planning permission contrary to the terms of the Policy; and

(iv) The proposed development contravened Policy 61 of the Dundee Local Plan Review 2005 as it would not protect or enhance the Forthill Conservation Area.

David BOWES, Chairman.

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