Item9AADischargeSection7520210185DET

CAIRNGORMS NATION­AL PARK AUTHOR­ITY Plan­ning Com­mit­tee Item 9 25/06/2021

CAIRNGORMS NATION­AL PARK AUTHORITY

DEVEL­OP­MENT PROPOSED:

Request to dis­charge the Sec­tion 75 Leg­al Agree­ment asso­ci­ated with the plan­ning per­mis­sion 08/423/CP at Mullin­gar­roch Stead­ing, Street of Kin­cardine, Boat of Garten, PH24 3BY

REF­ER­ENCE: 2021/0185/DET

APPLIC­ANT: Mr and Mrs Fiona and Michael Morris

DATE CALLED-IN: 7 June 2021

RECOM­MEND­A­TION: Agree to dis­charge the S75 leg­al agreement

CASE OFFICER: Emma Bryce, Plan­ning Manager

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CNPA Plan­ning Com­mit­tee Applic­a­tion Site 0 40 80 160 Meters West­er Dal­voult Mulling Farm Street of Kin­cardine 212 West­er Dal­voult Mullin­gar­roch Stead­ing Crown copy­right and data­base rights 2021. Ord­nance Sur­vey Licence num­ber 100040965

CAIRNGORMS NATION­AL PARK AUTHOR­ITY Plan­ning Com­mit­tee Item 9 25/06/2021

Mullin­gar­roch Mill 210m Drain FB Street of Kin­cardine 212m 205m 2

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CAIRNGORMS NATION­AL PARK AUTHOR­ITY Plan­ning Com­mit­tee Item 9 25/6/2021

SITE DESCRIP­TION, PRO­POS­AL AND HISTORY

Site Descrip­tion

I. The land and prop­erty that relate to this applic­a­tion are loc­ated south of Mullin­gar­roch Croft House at Street of Kin­cardine. The site meas­ures 0.183ha and is loc­ated on the registered croft of Mullin­gar­roch. The ori­gin­al Plan­ning Com­mit­tee report on the applic­a­tion that was approved and imple­men­ted is avail­able at Plan­ning Com­mit­tee Paper 2, 6 March 2009.

Pro­pos­al

1. The doc­u­ments asso­ci­ated with this applic­a­tion are lis­ted below and are avail­able on the Cairngorms Nation­al Park Author­ity web­site unless noted oth­er­wise: http://​www​.eplan​ningcnpa​.co​.uk/​o​n​line- applications/applicationDetails.do?activeTab=summary&keyVal=QTYY6TSI0BY00

Title	Draw­ing Num­ber	Date on Plan*	Date Received
Sup­port­ing Information			25/05/2021
Sup­port­ing Information			31/05/2021
*Where no spe­cif­ic day of month has been provided on the plan, the sys­tem defaults to the 1st of the month.

1. This applic­a­tion requests the dis­charge the Sec­tion 75 Leg­al Agree­ment that relates to the plan­ning per­mis­sion gran­ted on 8 July 2009, ref­er­ence num­ber 08/423/CP for the erec­tion of a house at Land at Mullin­gar­roch Croft, Street of Kin­cardine, Boat of Garten. The leg­al agree­ment restricts the occu­pa­tion of the dwell­ing to ​“a person(s) mainly employed on the registered croft unit (Code ⁴³⁸⁄₀₀₀₇) at Mullin­gar­roch and Croft­nagarn Croft, or a depend­ant of such a per­son resid­ing with him or her, or a wid­ow or wid­ower of such a person.”.

2. The applic­ant inher­ited Mullin­gar­roch and Croft­nagarn crofts and fol­low­ing the grant of plan­ning per­mis­sion (sub­ject to the Sec­tion 75 Agree­ment restrict­ing the occu­pancy of the house) in 2009 on this site, has act­ively farmed both crofts. They have met all respons­ib­il­it­ies and have built up a suc­cess­ful croft­ing busi­ness with a Black­face ewes and flock of com­mer­cial lay­ing hens.

3. The applic­a­tion to dis­charge the Sec­tion 75 Agree­ment has been accom­pan­ied by a state­ment from the applic­ant stat­ing their reas­ons: a) They are get­ting older and will not always be phys­ic­ally cap­able of work­ing the land them­selves. The house is fully future proofed and is where they intend to con­tin­ue to live, so selling the croft is not an option. b) They wish to be able to provide a poten­tial ten­ancy oppor­tun­ity in the future for the croft lands, if they become phys­ic­ally unable to work the land them­selves. c) They wish to have the capa­city to re-mort­gage should they require to do so in the future without the pen­al­ties asso­ci­ated with the Sec­tion 75 Agreement.

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CAIRNGORMS NATION­AL PARK AUTHOR­ITY Plan­ning Com­mit­tee Item 9 25/6/2021

d) They wish to sim­pli­fy the leg­al pro­cess of dis­pos­ing of their estate for their heirs as they have no chil­dren of their own thus pre­vent­ing a nat­ur­al suc­ces­sion on the croft.

His­tory

1. Plan­ning per­mis­sion was gran­ted for a single story, 4 bed­roomed dwell­ing in an L- shaped con­fig­ur­a­tion by the Cairngorms Nation­al Park Author­ity on 8 July 2009, fol­low­ing a the Plan­ning Committee’s agree­ment to approve the applic­a­tion on 6 March 2009 sub­ject to con­clu­sion of a leg­al agree­ment lim­it­ing the occu­pancy of the house. At that time, the applic­a­tion was determ­ined under the policies of the Badenoch and Strath­spey Loc­al Plan 1997, the High­land Struc­ture Plan 2001, with regard to the object­ives of the Cairngorms Nation­al Park Part­ner­ship Plan 2007.

DEVEL­OP­MENT PLAN CONTEXT

Policies

Nation­al Policy	Scot­tish Plan­ning Policy 2014
Stra­tegic Policy	Cairngorms Nation­al Park Part­ner­ship Plan 2017 — 2022
Loc­al Plan Policy	Cairngorms Nation­al Park Loc­al Devel­op­ment Plan (2021)
Those policies rel­ev­ant to the assess­ment of this applic­a­tion are marked with a cross

POLICY I	NEW HOUS­ING DEVEL­OP­MENT	X
POLICY 2	SUP­PORT­ING ECO­NOM­IC GROWTH	X
POLICY 3	SUS­TAIN­ABLE DESIGN
POLICY 4	NAT­UR­AL HERITAGE
POLICY 5	LAND­SCAPE
POLICY 6	THE SIT­ING AND DESIGN OF DIGIT­AL COM­MU­NIC­A­TIONS EQUIPMENT
POLICY 7	RENEW­ABLE ENERGY
POLICY 8	SPORT AND RECREATION
POLICY 9	CUL­TUR­AL HERITAGE
POLICY 10	RESOURCES
POLICY 11	DEVELOPER CON­TRI­BU­TIONS

1. All new devel­op­ment pro­pos­als require to be assessed in rela­tion to policies con­tained in the adop­ted Loc­al Devel­op­ment Plan. The full word­ing of policies can be found at: https://​cairngorms​.co​.uk/​w​p​-​c​o​n​t​e​n​t​/​u​p​l​o​a​d​s​/​2​0​2​0​/​1​1​/​C​N​P​A​-​L​D​P​-​2​0​2​0​-​a​s​-​M​o​d​i​fied- for-web.pdf

Plan­ning Guidance

1. Sup­ple­ment­ary guid­ance also forms part of the Loc­al Devel­op­ment Plan and provides more details about how to com­ply with the policies. Guid­ance that is rel­ev­ant to this applic­a­tion is marked with a cross.

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CAIRNGORMS NATION­AL PARK AUTHOR­ITY Plan­ning Com­mit­tee Item 9 25/6/2021

Policy I	New Hous­ing Devel­op­ment Non-Stat­utory Guid­ance (2015)	X
Policy 2	Sup­port­ing Eco­nom­ic Growth Non-Stat­utory Guidance	X
Policy 3	Sus­tain­able Design Non-Stat­utory Guid­ance (2015)
Policy 4	Nat­ur­al Her­it­age Sup­ple­ment­ary Guidance
Policy 5	Land­scape Non-Stat­utory Guidance
Policy 7	Renew­able Energy Sup­ple­ment­ary Guidance
Policy 8	Sport and Recre­ation Non-Stat­utory Guidance
Policy 9	Cul­tur­al Her­it­age Non-Stat­utory Guidance
Policy 10	Resources Non-Stat­utory Guidance
Policy 11	Developer Con­tri­bu­tions Sup­ple­ment­ary Guid­ance (2015)

CON­SULTA­TIONS

1. No con­sulta­tions were deemed neces­sary for the determ­in­a­tion of this application.

APPRAIS­AL

1. The applic­ant seeks to dis­charge the Sec­tion 75 Leg­al Agree­ment that lim­its the occu­pancy of the dwell­ing house to someone work­ing the croft land. The agree­ment includes the pro­vi­sion that if there is a change to plan­ning or oth­er cir­cum­stances of the site which appears to any party to the Agree­ment or to their suc­cessors in title to render any of the con­di­tions, restric­tions, oblig­a­tions and oth­ers con­tained in the Agree­ment no longer rel­ev­ant, the parties or their suc­cessors in title should con­sider wheth­er the said con­di­tions should be mod­i­fied, var­ied or discharged.

2. In assess­ing such applic­a­tions the Plan­ning Author­ity must con­sider the intent of the impos­i­tion of the leg­al agree­ment at the time of the con­sent being issued and wheth­er the remov­al of this con­trol would be accept­able in plan­ning terms at the cur­rent time. Adop­ted Loc­al Devel­op­ment Plan policies and any oth­er mater­i­al con­sid­er­a­tions that would war­rant review of the Agree­ment should be con­sidered, in this instance in rela­tion to hous­ing and eco­nom­ic devel­op­ment, and any advice or guid­ance issued in respect of occu­pancy restric­tions from the Scot­tish Gov­ern­ment or through Scot­tish Plan­ning Policy.

PLAN­NING POLICY CONTEXT

1. The applic­a­tion was ori­gin­ally determ­ined under the policies of the Badenoch and Strath­spey Loc­al Plan 1997, the High­land Struc­ture Plan 2001, and with regard to the object­ives of the Cairngorms Nation­al Park Part­ner­ship Plan 2007. The applic­a­tion was con­sidered to com­ply with plan­ning policy and provided a clear land man­age­ment jus­ti­fic­a­tion for the house. The High­land Struc­ture Plan required that in the loc­a­tion of the house: ​“approvals gran­ted on the basis of land man­age­ment will be sub­ject to an occu­pancy condition.”

2. Since the plan­ning per­mis­sion was gran­ted there have been sig­ni­fic­ant changes to the adop­ted plan­ning policy in the Nation­al Park. Cur­rent adop­ted plan­ning policies are

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CAIRNGORMS NATION­AL PARK AUTHOR­ITY Plan­ning Com­mit­tee Item 9 25/6/2021

now con­tained with­in the Cairngorms Nation­al Park Loc­al Devel­op­ment Plan 2021 and rel­ev­ant sup­ple­ment­ary guid­ance. There are a num­ber of policies in the adop­ted LDP under which a house in this loc­a­tion could have been jus­ti­fied now. Policy 1.2, Hous­ing devel­op­ment in exist­ing rur­al groups and Policy 1.3, Oth­er hous­ing in coun­tryside, would both be rel­ev­ant if an applic­a­tion was made today. Although Policy 1.3 of the apor­ted LDP would require an oper­a­tion­al busi­ness need to jus­ti­fy a house, there is no require­ment for any con­di­tions or bur­dens that lim­it the occu­pancy of that house if the jus­ti­fic­a­tion is accepted.

1. Scot­tish Plan­ning Policy (2014) provides the nation­al policy con­text in which the LDP was pre­pared sets out the Scot­tish Gov­ern­ments pos­i­tion on hous­ing in rur­al areas and dis­cour­ages the use of occu­pancy restric­tions on new houses.

CON­CLU­SION

1. The applic­ants have estab­lished a suc­cess­ful enter­prise on the croft while liv­ing in the house gran­ted plan­ning per­mis­sion. They have provided a reasoned jus­ti­fic­a­tion for seek­ing the dis­charge of the occu­pancy restric­tion on their prop­erty. The dwell­ing has now been on site for a num­ber of years and has integ­rated into the sur­round­ing, exist­ing built form and spa­tial pat­tern of Street of Kin­cardine and is in accord­ance with devel­op­ment plan policies. If the applic­a­tion were to be con­sidered at this point in time, it would be expec­ted to be approved under the policies of the adop­ted LDP without the require­ment for an occu­pancy restriction.

RECOM­MEND­A­TION

That Mem­bers of the Com­mit­tee sup­port a recom­mend­a­tion to agree the request to dis­charge the Sec­tion 75 Leg­al Agree­ment asso­ci­ated with the plan­ning per­mis­sion 08/423/CP at Mullin­gar­roch Stead­ing, Street of Kin­cardine, Boat of Garten, PH24 3BY for the fol­low­ing reas­ons: a) The dis­charge of the Sec­tion 75 agree­ment would not pre­ju­dice the farm­ing of the croft with­in the area. b) The Sec­tion 75 agree­ment would not be required to con­trol the occu­pa­tion of the dwell­ing under cur­rent adop­ted LDP policies.

The map on the first page of this report has been pro­duced to aid in the stat­utory pro­cess of deal­ing with plan­ning applic­a­tions. The map is to help identi­fy the site and its sur­round­ings and to aid Plan­ning Officers, Com­mit­tee Mem­bers and the Pub­lic in the determ­in­a­tion of the pro­pos­al. Maps shown in the Plan­ning Com­mit­tee Report can only be used for the pur­poses of the Plan­ning Com­mit­tee. Any oth­er use risks infringing Crown Copy­right and may lead to pro­sec­u­tion or civil pro­ceed­ings. Maps pro­duced with­in this Plan­ning Com­mit­tee Report can only be repro­duced with the express per­mis­sion of the Cairngorms Nation­al Park Author­ity and oth­er Copy­right hold­ers. This per­mis­sion must be gran­ted in advance.

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