Item 7Appendix 3 AppealDecisions 2019/0040/MSC and 2019/0041/ MSC and 2019/0011/MSC and 2019/0042/MSC and 2019/0012/MSC

CAIRNGORMS NATION­AL PARK AUTHOR­ITY Plan­ning Com­mit­tee Agenda Item 7 Appendix IA 26/04/2019

AGENDA ITEM 7

APPENDIX 3

2019/0040/MSC & 2019/0041/MSC & 2019/0011/MSC & 2019/0042/MSC & 2019/0012/MSC

APPEAL DECISIONS

Plan­ning and Envir­on­ment­al Appeals Divi­sion Appeal Decision Notice T: 01324 696 400 F: 01324 696 444 E: dpea@​scotland.​gsi.​gov.​uk

Decision by Frances M McChlery, a Report­er appoin­ted by the Scot­tish Min­is­ters • Plan­ning appeal ref­er­ence: PPA-270‑2126 • Site address: land to the north west of Dal­faber Farm, Dal­faber Drive, Aviemore, PH22 1SS • Appeal by Reidhaven Estate against a fail­ure by the High­land Coun­cil to determ­ine an applic­a­tion • Applic­a­tion for plan­ning per­mis­sion ref­er­ence 14/03676/S42, dated 17 Decem­ber 2014, to carry out the devel­op­ment without com­pli­ance with con­di­tions numbered 1,11,12, and 21 imposed in the grant of plan­ning per­mis­sion ref­er­ence PPA-001‑2000 dated 11 March 2010 • The devel­op­ment pro­posed: plan­ning per­mis­sion in prin­ciple for devel­op­ment of 10 ser­viced house plots with asso­ci­ated devel­op­ment • Date of site vis­it by Report­er: 15 July 2015

Date of appeal decision: 21 March 2016

Decision

I allow the appeal and grant plan­ning per­mis­sion in prin­ciple in accord­ance with applic­a­tion PPA-001‑2000 dated 11 March 2010 without com­pli­ance with con­di­tions numbered 1,11,12, and 21 as they were pre­vi­ously imposed, but still sub­ject to the oth­er con­di­tions imposed, so far as they are still sub­sist­ing and cap­able of tak­ing effect, and sub­ject to the con­di­tions imposed at the end of this notice.

Reas­on­ing

1. This, along with appeal PPA-270‑2127, is an appeal against the fail­ure by the High­land Coun­cil (‘HC’) to issue a decision with­in the pre­scribed peri­od in rela­tion to two applic­a­tions made under sec­tion 42 of the TCPA for per­mis­sion to devel­op land without com­ply­ing with con­di­tions attached to a pre­vi­ous per­mis­sion. In the case of this appeal the per­mis­sion in ques­tion was a plan­ning per­mis­sion in prin­ciple (‘PPIP’) for 10 ser­viced hous­ing plots and related devel­op­ment; and, in the case of appeal PPA-270‑2127, the per­mis­sion was a PPIP for 83 ser­viced hous­ing plots and related devel­op­ment. These per­mis­sions were ori­gin­ally gran­ted on appeal by decision notices PPA-001‑2000 and PPA-001‑2001.

2. The applic­a­tions made under sec­tion 42 were related to two applic­a­tions made under sec­tion 59 for approv­al of mat­ters spe­cified in con­di­tions. Those applic­a­tions were called in by the Cairngorms Nation­al Park Author­ity (‘CNPA’) and were refused by that author­ity on

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PPA-270‑2126 2 the grounds that they had not been made in time and that the PPP had con­sequently lapsed or was now incap­able of being implemented.

1. In con­sid­er­ing the applic­a­tions under sec­tion 42 which are the sub­ject of this appeal, HC noted that the CNPA had refused the applic­a­tions for approv­al of mat­ters spe­cified in con­di­tions on the grounds that the per­mis­sions in prin­ciple to which they related had lapsed. On that basis HC doubted wheth­er it was appro­pri­ate for it to determ­ine the applic­a­tions under sec­tion 42 and, con­sequently, did not determ­ine those applic­a­tions with­in the pre­scribed peri­od. Accord­ingly, the applic­a­tions under sec­tion 42 are deemed to have been refused.

2. In the related appeals con­cern­ing the sec­tion 59 applic­a­tions I have decided that the applic­a­tions were made in time and I have gran­ted approv­al of vari­ous mat­ters, sub­ject to the impos­i­tion of fur­ther conditions.

3. The issues before me in this appeal con­cern­ing the sec­tion 42 applic­a­tion are wheth­er, hav­ing regard to the devel­op­ment plan and oth­er mater­i­al con­sid­er­a­tions, per­mis­sion ought to be gran­ted for devel­op­ment to take place without com­pli­ance with cer­tain of the con­di­tions attached to the per­mis­sions in prin­ciple. The same issues arise in appeal PPA- 270‑2127. In this case the con­di­tions in ques­tion are con­di­tions 1,11,12, and 21. Gen­er­ally speak­ing, it is not appro­pri­ate in the con­text of an applic­a­tion under sec­tion 42 to re-vis­it the prin­ciple of devel­op­ment. The ques­tion is wheth­er it is appro­pri­ate for the pre­vi­ously con­sen­ted devel­op­ment to be imple­men­ted without com­ply­ing with the con­di­tions attached to the rel­ev­ant per­mis­sion. How­ever, an applic­a­tion under sec­tion 42, if gran­ted, res­ults in a new plan­ning permission.

4. In sum­mary, the appellant’s inten­tions for the appeal site are for 10 house plots sur­roun­ded by wood­land, ser­viced by a spine road, with a net­work of foot­paths across the site. The over­all strategy of the appel­lant, who are the landown­ers, has been to obtain plan­ning per­mis­sion for a devel­op­ment frame­work, includ­ing the infra­struc­ture for the devel­op­ment area, and then trans­fer the pro­ject to developers for the imple­ment­a­tion of the development.

5. Sub­ject to the restric­tion imposed by sec­tion 42, I require to con­sider wheth­er the per­mis­sion sought would be accept­able in terms of the rel­ev­ant policies of the cur­rent devel­op­ment plan. The devel­op­ment plan is the Cairngorms Nation­al Park Loc­al Devel­op­ment Plan (2015) (CNPLDP), which was approved in March 2015. In the devel­op­ment plan the appeal site is alloc­ated for hous­ing devel­op­ment. The CNPA does not argue that the adjust­ments sought in this appeal would con­tra­vene any spe­cif­ic devel­op­ment plan policy. I agree that this is the case and find that the adjust­ments sought would be in over­all accord­ance with the devel­op­ment plan, giv­en that they seek to facil­it­ate devel­op­ment on an alloc­ated site.

Con­di­tion 1

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PPA-270‑2126 3

1. The appel­lant seeks a new con­di­tion 1 with slightly mod­i­fied terms. Con­di­tion 1 as it was ori­gin­ally imposed on the pre­vi­ous per­mis­sion said

“Plans and par­tic­u­lars of the mat­ters lis­ted below shall be sub­mit­ted for con­sid­er­a­tion by the plan­ning author­ity, in accord­ance with the times­cales and oth­er lim­it­a­tions in sec­tion 59 of the Town and Coun­try Plan­ning (Scot­land) Act 1997 (as amended). No work shall begin until the writ­ten approv­al of the author­ity has been giv­en, and the devel­op­ment shall be car­ried out in accord­ance with that approval.

• The sit­ing, design and extern­al appear­ance of all build­ings and oth­er struc­tures includ­ing all fen­cing • The loc­a­tion and spe­cific­a­tion of all vehicu­lar road­ways and of paths for the sep­ar­ate or com­bined use of ped­es­tri­ans, cyc­lists, horse-riders and aids for the off-road move­ment of per­sons with phys­ic­al dis­ab­il­it­ies • A detailed land­scap­ing plan, includ­ing extens­ive peri­pher­al tree plant­ing, and pro­pos­als to pro­tect and main­tain the scen­ic integ­rity of the site and provide wild­life cor­ridors • Sur­face drain­age of the site in accord­ance with Sus­tain­able Urb­an Drain­age Sys­tems prin­ciples (SUDS)”.

(Reas­on: to ensure that the mat­ters referred to are giv­en full con­sid­er­a­tion and to accord with sec­tion 59 of the Town and Coun­try Plan­ning (Scot­land) Act 1997, as amended by the Plan­ning etc. (Scot­land) Act 2006.)”

1. The appel­lant asks that the new ver­sion would include the words ​“or altern­at­ively, for a plot-by-plot approach con­di­tion 12 is adhered to;” after the word ​“fen­cing” at the end of the first point. The inten­tion behind this new word­ing would be to link con­di­tion 1 more clearly with con­di­tion 12, which provides for a scen­ario where the devel­op­ment would pro­ceed on a plot by plot basis as opposed, for example, as a uni­fied hous­ing estate by a single developer.

2. In my view the prin­ciple behind the pro­posed change is accept­able. How­ever, I con­sider that object­ive could be more clearly expressed by modi­fy­ing the con­di­tion by adding the fol­low­ing word­ing instead of that sug­ges­ted by the appellants

“or altern­at­ively, in the event of the site being developed on a plot-by-plot basis, a design state­ment in accord­ance with the require­ments of con­di­tion 12 and, pri­or to any indi­vidu­al house being built on a plot, details of the sit­ing, design and appear­ance of that house;”

I have reflec­ted my pre­ferred approach in the con­di­tions I impose at the end of this notice.

1. In my decision in appeal PPA-001‑2016 I have taken the view that the ori­gin­al applic­a­tion is cap­able of being inter­preted as mean­ing that con­di­tion 12, which provides for the present­a­tion of a design guide as opposed to the sub­mis­sion of the pre­cise details of

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PPA-270‑2126 4 every build­ing, would oper­ate as an altern­at­ive path­way for approvals. On that basis I have been able to pro­ceed to con­sider the design guide approach under that approv­al. How­ever, in my view it does not fol­low from my find­ing that the new word­ing sought here is unne­ces­sary. In my view it would pro­duce a newly worded per­mis­sion where the inten­tion of the decision maker is even clearer.

1. The second adjust­ment to the pre­vi­ous con­di­tion 1 which the appel­lant seeks is to add at the end of the con­di­tion the fol­low­ing word­ing “ Con­di­tion 12 allows a plot-by-plot approach in which case the site start made upon the infra­struc­ture works will allow sub­sequent plot-by-plot MSC¹ applic­a­tions to be com­pet­ently made and con­sidered in line with Sec­tion 59(4) of the Town and Coun­try Plan­ning (Scot­land) Act 1997, as amended by the Plan­ning etc. (Scot­land) Act 2006.” In addi­tion the reas­on giv­en at the end of the con­di­tion is pro­posed to be adjus­ted by includ­ing a spe­cif­ic ref­er­ence to sub sec­tions (1), (2), & (4) of Sec­tion 59.

2. I do not con­sider it appro­pri­ate to adopt the second amend­ment to con­di­tion 1 pro­posed by the appel­lant. In my view it is not val­id to attempt to spe­cify through a con­di­tion wheth­er an applic­a­tion in the future had or had not been com­pet­ently made. The times­cales for sub­mit­ting applic­a­tions for MSC are set out in sec­tion 59(2) of the TCРА. Sec­tion 59(4) states that the PPIP lapses on the expir­a­tion of two years from the approv­al of the last of the MSC being obtained unless the devel­op­ment has begun before that date. The time when devel­op­ment is con­sidered to have begun is set out in sec­tion 27. I appre­ci­ate that, if the site is developed on a plot-by- plot basis, it might be a con­sid­er­able time before details of some of the indi­vidu­al approvals are sub­mit­ted. If it is not pos­sible to sub­mit those details with­in the times­cales envis­aged under sec­tion 59(2), they could be sub­mit­ted as new applic­a­tions for detailed plan­ning permission.

Con­di­tion 11

1. This con­di­tion was imposed to provide for the phas­ing of the whole devel­op­ment area com­pris­ing both North Dal­faber and South Dal­faber. It said ​“The devel­op­ment shall be car­ried out in phases, in con­junc­tion with the adja­cent devel­op­ment per­mit­ted under applic­a­tion 07/145/CP (appeal decision PPA-001- 2001). No phase shall be com­menced until the pre­vi­ous phase has been cer­ti­fied by the plan­ning author­ity as suf­fi­ciently com­plete. Before devel­op­ment is begun a detailed phas­ing plan for both devel­op­ment sites (applic­a­tions 07/144/CP and 07/145/CP) shall have been approved in writ­ing by the plan­ning author­ity. Phas­ing shall be under­taken gen­er­ally in a north to south dir­ec­tion, and shall include details of the devel­op­ment meth­od (for example single entity devel­op­ment or indi­vidu­al plot devel­op­ment), includ­ing respons­ib­il­ity for the pro­vi­sion of infra­struc­ture to serve the 1 MSC is used in this and the oth­er appeals to refer to the phrase ​“mat­ters sub­mit­ted for con­sent” as provided for in sec­tion 59 (1) (b) and to mean the mat­ters spe­cified in the per­mis­sion to require the approv­al of the plan­ning author­ity before devel­op­ment can be begun.

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PPA-270‑2126 5 devel­op­ment (Reas­on: to ensure an orderly sequence of development.)

Here the appel­lant requests a new con­di­tion in the same terms but under the dele­tion of the words ​“Phas­ing shall be under­taken gen­er­ally in a north to south direction”

1. There is no evid­ence before me to indic­ate why a north-to-south phas­ing was con­sidered neces­sary when the PPIP was granted.

2. The appel­lant says that the north-south approach runs con­trary to industry prac­tice and would cause site man­age­ment prob­lems. They cite evid­ence drawn from their advisers’ exper­i­ence in the man­age­ment of con­struc­tion sites. They say that while con­struc­tion start­ing from the north of the appeal sites (that is the whole devel­op­ment area) would not be impossible, it would pose dif­fi­culties in terms of con­struc­tion meth­ods as well as raise sig­ni­fic­ant health and safety issues. The vari­ation sought is neces­sary in order that a developer can bet­ter ensure the health and safety of both con­struc­tion works and the pub­lic. The appellant’s advisers’ recom­men­ded means of devel­op­ing the appeal sites reflects usu­al industry prac­tice, which is essen­tially is to begin con­struc­tion of the devel­op­ment from a point of entry near the pub­lic road, so that the first units to be com­pleted would be adja­cent to the road and sub­sequent devel­op­ment would pro­gress away from it. There are a num­ber of prac­tic­al, amen­ity based, and reg­u­lat­ory advant­ages to this approach, such as • the num­ber of car jour­neys, and ped­es­tri­an access that mem­bers of the pub­lic access­ing their com­pleted houses would require to make through an oper­a­tion­al con­struc­tion site would be avoided or min­im­ised; • the areas of on-going con­struc­tion activ­ity could be con­tained so far as pos­sible away, and bey­ond the com­pleted, occu­pied units, thus sup­port­ing con­struc­tion site con­trol and the safe­guard­ing of the pub­lic. • con­tain­ing and con­trolling con­struc­tion areas and sep­ar­at­ing them from com­pleted areas as much as pos­sible should also help min­im­ise any impact on res­id­en­tial amen­ity for pur­chasers of units com­pleted in the first phases of the developments.

3. Con­cerns have also been raised by the CNPA and object­ors about the use of the foot­paths which will cross the devel­op­ment area dur­ing the con­struc­tion peri­od, alleging great­er health and safety risks for walk­ers if there is devi­ation from build­ing out the sites in a north to south dir­ec­tion. The appel­lant responds to this in say­ing that the issue of paths and con­nec­tions in and around the appeal sites was con­sidered in detail at the stage of grant­ing plan­ning per­mis­sion in prin­ciple for the sites. The final­ised lay­out for the path net­work which emerged from this pro­cess took health and safety implic­a­tions into account amongst oth­er factors.

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PPA-270‑2126 6

1. In my view, con­struc­tion close to exist­ing hous­ing will almost inev­it­ably give rise to some dis­turb­ance. This will occur irre­spect­ive of the dir­ec­tion of phas­ing of the devel­op­ment. How­ever, con­struc­tion dis­turb­ance is also trans­it­ory and would rarely, if ever, jus­ti­fy the refus­al of plan­ning per­mis­sion for a devel­op­ment. Good site prac­tice and the reg­u­lat­ory frame­work for con­struc­tion design and man­age­ment should seek to min­im­ise the impact on neigh­bour­ing dwell­ings and ensure pub­lic safety. There is no sub­stant­ive evid­ence to sug­gest that the pro­posed change to the phas­ing arrange­ments would have any sig­ni­fic­ant impact on the degree of dis­turb­ance that will be caused by the con­struc­tion of this devel­op­ment. On the oth­er hand there is clear evid­ence that there are a num­ber of favour­able con­sid­er­a­tions from the pro­posed change of approach. Accord­ingly I approve the change to the con­di­tion ori­gin­ally imposed.

Con­di­tion 12.

1. Con­di­tion 12 of the ori­gin­al per­mis­sion said ​“In the event that any plots with­in the devel­op­ment are pro­posed to be developed on an indi­vidu­al basis, a detailed design state­ment shall be sub­mit­ted for the writ­ten agree­ment of the plan­ning author­ity, pri­or to the sub­mis­sion of any sub­sequent applic­a­tion on the indi­vidu­al plots. The design state­ment shall include design guid­ance (includ­ing sample house type illus­tra­tions where appro­pri­ate) and shall cov­er details of height, mater­i­als, plot ratio, bound­ary treat­ments, the incor­por­a­tion of energy effi­ciency and sus­tain­ab­il­ity meas­ures, and land­scape and eco­logy guid­ance. All sub­sequent applic­a­tions shall be in accord­ance with the agreed detail of the design statement.

Reas­on: for con­sist­ency of design prin­ciples in the whole development.

1. The appel­lant pro­poses a new ver­sion of this which adds to the end of the pre­vi­ous con­di­tion word­ing the text ​“A plot-by-plot approach is com­pet­ent in terms of Sec­tion 59 (1) (2) & (4) of the Town and Coun­try Plan­ning (Scot­land) Act 1997, as amended by the Plan­ning etc. (Scot­land) Act 2006 with the pro­viso that the oth­er MSCs set out at bul­let points 2, 3 and 4 in Con­di­tion 1 have been approved by the Plan­ning Author­ity and a law­ful site start achieved.” And then at the end of the reas­on the words ​“and to ensure that the mat­ters referred to are giv­en full con­sid­er­a­tion and to accord with sec­tion 59 (1) (2) & (4) of the Town and Coun­try Plan­ning (Scot­land) Act 1997, as amended by the Plan­ning etc. (Scot­land) Act 2006”

2. The inten­tion is the same as that for the adjust­ment sought to con­di­tion 1, namely, to secure con­com­it­ant cla­ri­fic­a­tion that there are val­id altern­at­ive approaches to the imple­ment­a­tion of the per­mis­sion. The revised word­ing also seeks to main­tain a cor­rel­a­tion with the oth­er MSC matters.

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PPA-270‑2126 7

1. For the same reas­ons giv­en above in rela­tion to the reques­ted change to con­di­tion 1, I do not con­sider it appro­pri­ate to adopt the amend­ment to con­di­tion 12 pro­posed by the appel­lant. It seeks to declare the com­pet­ency of an applic­a­tion yet to be made, which in my view would not be val­id. As the devel­op­ment pro­pos­al moves for­ward, if the requis­ite applic­a­tions can­not be made with­in the stat­utory time lim­its set by sec­tion 59, indi­vidu­al applic­a­tions for plan­ning per­mis­sion can be made.

Con­di­tion 21

1. The sug­ges­ted adjust­ment to con­di­tion 1 relates to the num­ber of units across both sites which should be afford­able hous­ing units. This issue only arises in this and appeal PPA-270‑2127. The ori­gin­al con­di­tion in this case said ​“The devel­op­ment shall not be begun before either the plan­ning author­ity has cer­ti­fied in writ­ing its sat­is­fac­tion with arrange­ments, bind­ing on all rel­ev­ant parties, for the pro­vi­sion to a registered social land­lord of not less than 22 dwell­ings on this site togeth­er with the con­tigu­ous site of appeal decision PPA- 001‑2001 (applic­a­tion 07/145/CP); or the plan­ning author­ity has noti­fied in writ­ing its agree­ment to altern­at­ive arrange­ments for the pro­vi­sion of afford­able housing.

(Reas­on: to ensure that devel­op­ment of the site makes a due con­tri­bu­tion to afford­able hous­ing in the locality.)”

1. The pro­posed new con­di­tion would delete the words ​“not less than 22 dwell­ings” and insert instead the words ​“a num­ber of dwell­ings not less than 25% of the total num­ber of dwell­ings to be built”.

2. The appellant’s argu­ment for this is that this vari­ation would remove the pre­scribed numer­ic­al require­ment for afford­able hous­ing units and replace these with a fixed per­cent­age (25%) of the total num­ber of units con­struc­ted on the appeal sites. This would provide great­er flex­ib­il­ity than an exact fig­ure while the total num­ber of houses to be con­struc­ted on the appeal sites is yet to be determ­ined. A per­cent­age would still provide a rel­at­ively pre­cise means of cal­cu­la­tion, so the con­di­tion would be clear and robust. The amended pro­vi­sion of 25% of the units would aligned with the tar­gets for afford­able hous­ing both in Scot­tish Plan­ning Policy (SPP) and the CNPA’s Sup­ple­ment­ary Guid­ance on Afford­able Hous­ing, Policy 19.

3. The CNPLDP afford­able hous­ing policy 1.4 says that the level of afford­able hous­ing required as a con­tri­bu­tion on devel­op­ments of 4 or more open mar­ket dwell­ings will gen­er­ally be no more than 25% of the total num­ber of units.

4. The CNPA defer to the views of HC, who do not object to the pro­posed change, but they observe that the num­ber of dwell­ings pro­posed for the com­bined devel­op­ment site under the MSC applic­a­tions is for a total of 74 houses, so that the pro­vi­sion of

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8 PPA-270‑2126 hous­ing would be 18 or 19 houses under the revised terms pro­posed by the applic­ant, rather than the 22 ori­gin­ally set by the report­er. The CNPA agree that the num­ber expressed as a per­cent­age is more appro­pri­ate, and broadly com­plies with cur­rent LDP policy. How­ever, they regard the pro­posed word­ing as too vague, since the per­cent­age relates to the ​‘total num­ber of dwell­ings to be built’. The per­cent­age should be based on the num­ber of dwell­ings gran­ted plan­ning per­mis­sion at the out­set. To phrase it oth­er­wise cre­ates prob­lems of com­pli­ance with cir­cu­lar 4/1998 because of dif­fi­culties of enforce­ment. In this case the num­ber of dwell­ings to be built may change over time as a res­ult of the plot by plot approach. In their view, because of the dif­fi­culties of reach­ing an accept­able devel­op­ment on the site, the over­all num­ber of houses which will even­tu­ally be built remains undeter­mined. The applicant’s pro­posed changes to the con­di­tion do not provide cer­tainty about the num­ber of afford­able units to be provided, nor the point at which they would be passed to a social land­lord. In this regard, the expli­cit ref­er­ence to afford­able hous­ing provided by a social land­lord may be too restrict­ive. Afford­able hous­ing can be provided through a vari­ety of oth­er mech­an­isms. They sug­gest anoth­er approach and a revised con­di­tion. Because of the uncer­tainty they would prefer that the com­mit­ment to afford­able hous­ing is dealt with through a plan­ning obligation.

1. The ori­gin­al fig­ure for afford­able hous­ing of 22 units (refer­able to the anti­cip­ated out­put from the whole devel­op­ment site, includ­ing the appeal site) was based on the num­bers of units pro­posed at PPIP stage. This was before an accept­able approach to the lay­out of plots had been developed. I con­sider that the revised fig­ure of 25% of the units to be built, which is the for­mula based on the devel­op­ment plan, is a more flex­ible mech­an­ism to accom­mod­ate updated cir­cum­stances, and would be in accord­ance with the devel­op­ment plan and nation­al policy. I have mod­i­fied the con­di­tion to provide addi­tion­al flex­ib­il­ity as to the means by which the pro­vi­sion is made, by omit­ting the spe­cif­ic ref­er­ence to a registered social land­lord. I have also linked the pro­vi­sion with the num­bers of units per­mit­ted in this con­sent, rather than built, because the plot by plot ele­ment of the devel­op­ment does provide a degree of uncer­tainty as to tim­ing, and to the pre­cise num­bers which will be built even­tu­ally. The con­di­tion is based round the agree­ment with the plan­ning author­ity of suit­able pro­vi­sion, and in my view does provide the neces­sary cer­tainty and enforce­ab­il­ity. There is no need to sup­ple­ment this with a plan­ning obligation.

Oth­er mat­ters raised

1. The CNPA has said that they can­not fully con­sider the impact of the pro­posed devel­op­ment because there is insuf­fi­cient inform­a­tion about the poten­tial impact on cer­tain nat­ur­al her­it­age interests includ­ing European Pro­tec­ted Spe­cies. I con­sider that this issue is of lim­ited rel­ev­ance to the restric­ted issues before me in this appeal, but I have con­cluded in the oth­er appeal decisions relat­ing to this site that there is suf­fi­cient inform­a­tion about the poten­tial impact on nat­ur­al her­it­age interests to allow a con­clu­sion to be drawn that the devel­op­ment can proceed.

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PPA-270‑2126 9

1. In their rep­res­ent­a­tions the CNPA have pro­moted the view that as this is a new applic­a­tion pro­cess it is an oppor­tun­ity to impose a new raft of con­di­tions which in their view would lead to a more sat­is­fact­ory devel­op­ment frame­work. Whilst that course of action is not closed to me in prin­ciple, I do not con­sider that it would be appro­pri­ate to fol­low it because that would be to con­sider a very dif­fer­ent case from the mat­ters that are before me in this appeal. I would require to have very detailed and per­suas­ive argu­ments that the terms of ori­gin­al per­mis­sion should be sub­stan­tially changed. I do not con­sider that such argu­ments have been presen­ted to me. I have fol­lowed the usu­al approach based on the terms of sec­tion 42, which is to grant a new plan­ning per­mis­sion based on the pre­vi­ous per­mis­sion but mod­i­fied where neces­sary by the out­come of this appeal.

2. The CNPA does not argue that the new con­di­tions sought would con­tra­vene any of the devel­op­ment plan policies. These adjust­ments are to a PPIP that has been gran­ted for a devel­op­ment which is on a site alloc­ated for hous­ing in the devel­op­ment plan and, in broad terms, do not rep­res­ent sub­stan­tial changes to that PPIP. I con­sider that the adjust­ments sought would be in over­all accord­ance with the devel­op­ment plan. I have not iden­ti­fied any mater­i­al con­sid­er­a­tions that would lead me to con­clude that per­mis­sion should be refused.

3. A motion for expenses has been made in this appeal and I will deal with this in a sep­ar­ate letter.

Frances M McChlery Reporter

Con­di­tions

1. Plans and par­tic­u­lars of the mat­ters lis­ted below shall be sub­mit­ted for con­sid­er­a­tion by the plan­ning author­ity, in accord­ance with the times­cales and oth­er lim­it­a­tions in sec­tion 59 of the Town and Coun­try Plan­ning (Scot­land) Act 1997 (as amended). No work shall begin until the writ­ten approv­al of the author­ity has been giv­en, and the devel­op­ment shall be car­ried out in accord­ance with that approv­al. • The sit­ing, design and extern­al appear­ance of all build­ings and oth­er struc­tures includ­ing all fen­cing, or altern­at­ively, in the event of the site being developed on a plot-by-plot basis, a design state­ment in accord­ance with the require­ments of con­di­tion 12 and, pri­or to any indi­vidu­al house being built on a plot, details of the sit­ing, design and appear­ance of that house; • The loc­a­tion and spe­cific­a­tion of all vehicu­lar road­ways and of paths for the sep­ar­ate or com­bined use of ped­es­tri­ans, cyc­lists, horse-riders and aids for the off-road move­ment of per­sons with phys­ic­al dis­ab­il­it­ies • A detailed land­scap­ing plan, includ­ing extens­ive peri­pher­al tree plant­ing, and

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PPA-270‑2126 10 • pro­pos­als to pro­tect and main­tain the scen­ic integ­rity of the site and provide wild­life cor­ridors Sur­face drain­age of the site in accord­ance with Sus­tain­able Urb­an Drain­age Sys­tems prin­ciples (SUDS). (Reas­on: to ensure that the mat­ters referred to are giv­en full con­sid­er­a­tion and to accord with sec­tion 59 of the Town and Coun­try Plan­ning (Scot­land) Act 1997, as amended by the Plan­ning etc. (Scot­land) Act 2006.)

1. The land­scap­ing plan shall be coordin­ated with that for the adja­cent area referred to as South Dal­faber and covered by plan­ning appeal ref­er­ence PPA-270‑2127 and shall include com­pre­hens­ive details of all spe­cies (which should be of indi­gen­ous ori­gin), plant­ing loc­a­tion and num­bers to be planted, as well as details of height and girth at time of plant­ing and pro­jec­ted growth rates. (Reas­on: in the interests of visu­al amen­ity and to main­tain the char­ac­ter of exist­ing veget­a­tion in the area.)

2. The land­scap­ing of all com­mun­al areas with­in the pro­posed devel­op­ment shall be com­pleted with­in one year of the com­mence­ment of works with­in the rel­ev­ant phase. Any trees or shrubs that die or become ser­i­ously dam­aged or dis­eased with­in a peri­od of five years from the time of plant­ing shall be replaced with oth­ers of a sim­il­ar size and spe­cies, suited to the cli­mate of the area, with­in the next plant­ing sea­son. (Reas­on: in the interests of visu­al amen­ity and to main­tain the char­ac­ter of exist­ing veget­a­tion in the area.)

3. The detailed land­scap­ing plan shall be accom­pan­ied by an Arbor­i­cul­tur­al Meth­od State­ment and a full Tree Pro­tec­tion Plan which shall be pre­pared by an arbor­i­cul­tur­al­ist in accord­ance with BS 5837:2005 — Trees in Rela­tion to Con­struc­tion. The Tree Pro­tec­tion Plan shall take account of all com­mun­al wood­land and open space areas, as well as tak­ing account of lay­outs, levels and build­ing lines of indi­vidu­al plots. An Arbor­i­cul­tur­al Con­sult­ant shall be retained to under­take arbor­i­cul­tur­al site mon­it­or­ing for the dur­a­tion of the con­struc­tion. Mon­it­or­ing shall take place at least once every month. (Reas­on: in the interests of visu­al amen­ity and to main­tain the char­ac­ter of exist­ing veget­a­tion in the area.)

4. All sub­mis­sions of details for indi­vidu­al house plots shall include a detailed land­scap­ing plan, identi­fy­ing all exist­ing trees on the plot and identi­fy­ing those pro­posed for retention.

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PPA-270‑2126 11 The felling of trees with­in indi­vidu­al plots shall not be under­taken without the pri­or writ­ten con­sent of the plan­ning author­ity. (Reas­on: in the interests of visu­al amen­ity and to main­tain the char­ac­ter of exist­ing veget­a­tion in the area.)

1. Any front garden areas designed as part of an ​‘open plan’ lay­out shall be main­tained in an open plan format in per­petu­ity. The details of all bound­ary treat­ments on the side and rear bound­ar­ies of indi­vidu­al plots shall be included in the mater­i­al required under con­di­tion 1. (Reas­on: in the interests of visu­al amenity.)

2. All top soil stripped in the course of devel­op­ment shall be stored in mounds not exceed­ing 2.0 metres in height and shall be retained for sub­sequent land­scap­ing rein­state­ment of the pro­posed devel­op­ment site. All top soil shall be stripped, handled, stored and re-spread in accord­ance to B.S. 3882:1994 Annex N. (Reas­on: in the interests of visu­al amen­ity and to main­tain the char­ac­ter of exist­ing veget­a­tion in the area.)

3. The details required by con­di­tion 1 shall include a detailed plan of pub­lic access across the site (exist­ing, dur­ing con­struc­tion and upon com­ple­tion). The plan shall show: (a) all exist­ing paths, tracks and rights of way and any areas cur­rently out­with or excluded from stat­utory access rights; (b) any areas pro­posed for exclu­sion from stat­utory access rights, for reas­ons of pri­vacy, dis­turb­ance or cur­til­age, in rela­tion to pro­posed build­ings or struc­tures; © all paths and tracks pro­posed for con­struc­tion, for use by walk­ers, riders, cyc­lists, riders or those with phys­ic­al dis­ab­il­it­ies; (d) any diver­sions of paths — tem­por­ary or per­man­ent — pro­posed for the pur­poses of the devel­op­ment. (Reas­on: to ensure that con­sid­er­a­tions both of pri­vacy and of pub­lic access receive due con­sid­er­a­tion in the design, con­struc­tion and use of the development.)

4. A man­age­ment and main­ten­ance state­ment, to be bind­ing dur­ing devel­op­ment and occu­pa­tion of the site, shall be sub­mit­ted and have the writ­ten approv­al of the plan­ning author­ity before devel­op­ment of the site is begun. This state­ment shall cov­er any play areas, hard or soft land­scaped areas, roads, foot­paths and cycle links that are not inten­ded for adop­tion by High­land Coun­cil. Details shall be included as to how the wood­land and open space will be retained and man­aged in per­petu­ity allow­ing for pub­lic access and path­ways through the site; and to show how paths for ped­es­tri­ans and cyc­lists will link

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PPA-270‑2126 12 effect­ively with off-road walk­ing and cyc­ling routes out­with the site; in par­tic­u­lar the lay­out and spe­cific­a­tion of paths shall be con­sist­ent with future com­ple­tion, out­with the site, of an east­ern orbit­al path for Aviemore. The sur­face of all path­ways through the site inten­ded to be avail­able to ped­al cycles, dis­abled per­sons’ bug­gies and baby car­riages, oth­er than those inten­ded for adop­tion by the roads author­ity, shall be of a mater­i­al that is both per­meable, in keep­ing with the wood­land nature of the site, and per­man­ently firm and smooth, sat­is­fact­or­ily drained and of appro­pri­ate breadth to allow passing. Paths inten­ded only for recre­ation­al walk­ing or horse-rid­ing shall be of a less form­al, per­meable sur­face. The details of land­scap­ing of the site and of paths with­in it, as required by con­di­tion 1, shall be accom­pan­ied by details of the man­age­ment and main­ten­ance state­ment. (Reas­on: to ensure that spe­cific­a­tions and sur­faces are visu­ally and eco­lo­gic­ally appro­pri­ate; and that paths achieve their func­tion­al poten­tial in enabling and encour­aging walk­ing and cyc­ling in and around Aviemore, and so that loc­al res­id­ents with dis­ab­il­it­ies should be able to enjoy loc­al trips through wood­land and open space.)

1. The details required by con­di­tion 1 shall include in par­tic­u­lar the fol­low­ing: (a) detailed pro­pos­als to extend the path iden­ti­fied along the golf course bound­ary to the north­ern end of the site in order to cross the gully to link with Fisherman’s Car Park drive; (b) detailed pro­pos­als regard­ing width, spe­cific­a­tion, and pro­vi­sion of vehicu­lar bar­ri­ers (such that they are not obstacles to the pas­sage of dis­abled per­sons’ bug­gies, baby car­riages or ped­al cycles) asso­ci­ated with the pro­posed emer­gency access route from Spey Aven­ue, to ensure that the only form of vehicu­lar access is for emer­gency access only and that it shall oth­er­wise be retained as an inform­al access route for non vehicu­lar move­ment; © pro­vi­sion of appro­pri­ately loc­ated refuse bin col­lec­tion points. (Reas­on: to ensure that these mat­ters receive appro­pri­ate attention.)

2. The devel­op­ment shall be car­ried out in phases, in con­junc­tion with the adja­cent devel­op­ment per­mit­ted under appeal decision PPA-270‑2127. No phase shall be com­menced until the pre­vi­ous phase has been cer­ti­fied by the plan­ning author­ity as suf­fi­ciently com­plete. Before devel­op­ment is begun a detailed phas­ing plan for both devel­op­ment sites shall have been approved in writ­ing by the plan­ning author­ity. Phas­ing shall be under­taken gen­er­ally in a south to north dir­ec­tion, and shall include details of the devel­op­ment meth­od (for example single entity devel­op­ment or indi­vidu­al plot devel­op­ment), includ­ing respons­ib­il­ity for the pro­vi­sion of infra­struc­ture to serve the

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PPA-270‑2126 13 devel­op­ment. (Reas­on: to ensure an orderly sequence of development.)

1. In the event that any plots with­in the devel­op­ment are pro­posed to be developed on an indi­vidu­al basis, a detailed design state­ment shall be sub­mit­ted for the writ­ten agree­ment of the plan­ning author­ity, pri­or to the sub­mis­sion of any sub­sequent applic­a­tion on the indi­vidu­al plots. The design state­ment shall include design guid­ance (includ­ing sample house type illus­tra­tions where appro­pri­ate) and shall cov­er details of height, mater­i­als, plot ratio, bound­ary treat­ments, the incor­por­a­tion of energy effi­ciency and sus­tain­ab­il­ity meas­ures, and land­scape and eco­logy guid­ance. All sub­sequent applic­a­tions shall be in accord­ance with the agreed detail of the design state­ment. (Reas­on: for con­sist­ency of design prin­ciples in the whole development.)

2. Where devel­op­ment is to be under­taken as a single entity, a detailed design state­ment, address­ing all of the mat­ters as set out in the fore­go­ing con­di­tion, shall be sub­mit­ted as part of any future applic­a­tion for approv­al of details. (Reas­on: for con­sist­ency of design prin­ciples in the whole development.)

3. A con­toured site plan indic­at­ing exist­ing ground levels and all pro­posed fin­ished floor levels shall be included in the detailed pro­pos­als for the site. No land rais­ing, land­scap­ing (bund­ing etc.) or sol­id bound­ary fences or walls shall be car­ried out or put in place below the level of 20