Local Review Body - 28/06/2011

At a MEETING of the LOCAL REVIEW BODY held at Dundee on 28th June, 2011.

 

Present:-

 

Councillor David BOWES

 

Councillor Tom FERGUSON

 

Councillor Craig MELVILLE (during consideration of Items I and II)

 

Councillor Christina ROBERTS (during consideration of Items III and IV)

 

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 26TH APRIL, 2011

 

The minute of the above meeting was submitted and noted.

 

II REQUEST FOR REVIEW - LR6/11 - LAND NORTHWEST OF FILLING STATION, FORFAR ROAD, DUNDEE

 

There was submitted Agenda Note AN108-2011, giving details of a request for a review of the refusal of planning permission for the installation of a Streetworks Monopole supporting three 02 antenna and three Vodafone antenna with the top shrouded section (overall height 15m AGL), one ground based equipment cabinet and ancillary development.

 

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:-

 

The applicant had intimated in the Notice of Review that new material not before the Appointed Officer at the time of reaching her decision had been submitted with this application. The new material consisted of the final response from Transport Scotland in respect of the statutory TRNPA consultation process. According to the Applicant, the consultation process had not been concluded when the Appointed Officer determined the application. In addition, the Applicant had submitted Coverage Plot analysis and Photomontages which were both dated after the decision notice and therefore could not have been before the Appointed Officer at the time she reached her 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 is not to raise any matter which was not before the Appointed Officer at the time the determination reviewed was made unless that party can demonstrate either 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 was 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 that the new material referred to in the application for review should be taken into consideration and should not be ruled out at this stage.

 

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 the review documents 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 individuals:-

 

From the Applicant

 

Clarification as to whether the Method Statement dated July 2010 submitted as part of the Review Papers was the up to date Method Statement and formed the basis of most recent correspondence with Transport Scotland.

 

From Transport Scotland

 

Confirmation in the context of correspondence dated 16th May, 2011 as to whether a satisfactory Method Statement had been received. If so, details of this Method Statement should be provided, together with any conditions that Transport Scotland would wish to be applied should planning permission be granted.

 

The Local Review Body also agreed to hold an accompanied site visit on Tuesday, 16th August, 2011 at 10am.

 

III REQUEST FOR REVIEW - LR5/11 - ST RONANS, DALKEITH ROAD, DUNDEE - APPLICATION FOR REMOVAL OF CONDITION 4 INRESPECT OF PLANNING APPLICATION 10‑00695-FULL (ERECTION OF NEW 60 BED

 

There was submitted Agenda Note AN107-2011 giving details of an application for removal of Condition 4 in respect of planning application 10-00695-FULL (erection of new 60 bed care home).

 

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

 

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

 

The Applicant had intimated in the Notice of Review that new material not before the Appointed Officer, at the time of reaching his decision, had been submitted with this application. The new material consisted of Drawing No 927-200B and additional photographs of the site of the proposed footway. According to the Applicant, this material could not have been put before the Appointed Officer prior to him reaching his decision because the Applicant was unaware that Condition 4 in respect of the proposed footway was to be attached to the consent.

 

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 is not to raise any matter which was not before the Appointed Officer at the time the determination reviewed was made unless that party can 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 was 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 should not be ruled out at this stage.

 

In addition, the Local Review Body noted that in terms of Section 43A sub-section 8(b) of the 1997 Act, where the Appointed Officer granted an application for planning permission subject to conditions, the Applicant may require the planning authority to review the case. This in effect means that although the Applicant had only sought a review in respect of Condition 4, the Local Review Body could look at the whole consent again and could attach any other conditions it considered apt, or could even reverse the decision of the Appointed Officer and refuse the application for permission completely, thereby withdrawing the consent already granted.

 

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 the review documents 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 individuals:-

 

From the Appointed Officer:-

 

Further details of the justification for the inclusion of Condition 4 regarding the footway; details of the construction specification for the footway that would be acceptable; and whether the proposed development would be unacceptable if the footway was not provided.

 

From the Applicant:-

 

Clarification as to whether the land over which the proposed footway would be constructed was currently, or could be brought, within its control.

 

The Local Review Body also agreed to hold an accompanied site visit at 11am on Tuesday, 16th August, 2011.

 

IV REQUEST FOR REVIEW - LR4/11 - 25 TO 29 MURRAYGATE, CHANGE OF USE FROM CLASS 1 TO CLASS 2 (BANK/BUILDING SOCIETY)

 

There was submitted Agenda Note AN109-2011, making reference to Article II of the minute of meeting of the Local Review Body of 26th April, 2011, wherein details had been submitted of a request for a review of the refusal of an application for Change of Use from Class 1 to Class 2 (Bank/Building Society) at 25 to 29 Murraygate, Dundee.

 

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 23rd May, 2011.

 

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

 

Amongst the information which was sought at the meeting of 26th April, 2011 was clarification of which plans formed part of the application and which plans were to be regarded as illustrative only. The Appointed Officer and the Applicant both agreed in their responses that the application plans consisted of the site location plan, Drawing Ref: ES753998 and the Existing Ground Floor Layout Plan, Drawing Ref: DUND0087RF00-D02 Rev A. The Applicant, in his response, confirmed that the other plans (Proposed External Elevation - ER 04 Rev A) and Proposed Ground Floor Plan (ER 02) were indicative only and could be changed to take account of any comments by Dundee City Council during the course of discussions on design.

 

The description of the proposal contained within the application for planning permission was for a change of use from Class 1 to Class 2 (Bank/Building Society). The plans add nothing more to that description of the application.

 

What the Local Review Body therefore had before it was a review of the Appointed Officer's decision in respect of an application for planning permission for a change of use from Class 1 to Class 2 Bank/Building Society use, ie use by any Bank or Building Society. There was nothing in the application which specified it was a change of use to a HSBC Bank, and the Local Review Body, in determining the review, must do so on the basis that the change of use being sought at the premises was for any building society/bank, not specifically an HSBC Bank.

 

As a result of this further information and the clarification of what the application was for, it was recommended that the Local Review Body reconsidered the significance of some of the new material which had been introduced by the Applicant. This material consisted of the most recent levels of vacancies and retail demand in Dundee and also evidence of visitations to other HSBC branches undertaken on 18th/19th March, 2011. Whilst it was recommended that the material should be taken into account by the Local Review Body in reaching its decision, it should only do so to the extent that it was relevant to any bank/building society rather than specifically to a HSBC bank. A similar approach should be taken to the information contained within the Applicant's supporting statement which referred specifically to HSBC, such as footfall and site requirements.

 

The Local Review Body was also advised of a letter which had been submitted by HSBC seeking the opportunity to address the Local Review Body. The procedure to be followed by the Local Review Body is set down in the regulations and there was no provision for the Local Review Body to be addressed outwith a formal hearing situation and, unless the Local Review Body was minded to call for a hearing to address specific issues, this request to be heard could not be granted.

 

The Local Review Body noted all of the above, and agreed in terms of the Local Review Procedure Regulations, to determine the review without further procedure on the basis of the information before it.

 

Thereafter, having considered all the information, the Local Review Body reversed the determination of the Appointed Officer, upheld the review and granted planning permission subject to the condition that the property at 25-29 Murraygate shall operate as a bank or building society only and shall not operate for any other purpose falling within Class 2 of the Town and Country Planning (Use Classes) (Scotland) Order 1997, as amended.

 

 

 

 

David BOWES, Chairman.