Item9AppealDecision20200221DETBothyKilliehuntly

CAIRNGORMS NATION­AL PARK AUTHOR­ITY Plan­ning Com­mit­tee Agenda Item 9 23/09/2022

AGENDA ITEM 9

FOR INFORM­A­TION

APPEAL DECISION FOR 2020/0221/DET (Plan­ning Appeal PPA-001‑2024)

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Plan­ning and Envir­on­ment­al Appeals Divi­sion Had­ri­an House, Cal­l­en­dar Busi­ness Park, Falkirk, FK1 1XR E: [email protected] T: 0300 244 6668

Appeal Decision Notice

Scot­tish Gov­ern­ment Riaghaltas na h‑Alba gov.scot

Decision by Robert Seaton, a Report­er appoin­ted by the Scot­tish Ministers

• Plan­ning appeal ref­er­ence: PPA-001‑2024 • Site address: Land 400 metres south west of farm­house, Kil­liehuntly, Kin­gussie, PH21 1NS • Appeal by Wild­land Lim­ited against the decision by Cairngorms Nation­al Park Author­ity • Applic­a­tion for plan­ning per­mis­sion 2020/0221/DET dated 6 August 2020 refused by notice dated 7 March 2022 • The devel­op­ment pro­posed: erec­tion of bothy and asso­ci­ated ser­vice route • Applic­a­tion draw­ings: lis­ted in sched­ule 1 to this decision • Date of site vis­it by Report­er: 18 August 2022

Date of appeal decision: 23 August 2022

Decision

I allow the appeal and grant plan­ning per­mis­sion sub­ject to sub­ject to the six con­di­tions lis­ted in sched­ule 2 to this decision notice. Atten­tion is drawn to the three advis­ory notes in sched­ule 3 of the notice.

Pre­lim­in­ary

1. The plan­ning author­ity issued a screen­ing opin­ion under the Town and Coun­try Plan­ning (Envir­on­ment­al Impact Assess­ment) (Scot­land) Reg­u­la­tions 2017. It was issued on the basis that the pro­posed devel­op­ment fell into the cat­egory of ​“hol­i­day vil­lages and hotel com­plexes out­side urb­an areas” in sched­ule 2 of those reg­u­la­tions and that screen­ing was required because the pro­posed devel­op­ment was in a sens­it­ive area. The screen­ing opin­ion indic­ated that envir­on­ment­al impact assess­ment was not required. I have found no reas­on to dis­agree with that assessment.

2. The plan­ning author­ity also took the view that, on account of a likely sig­ni­fic­ant effect on the River Spey Spe­cial Area of Con­ser­va­tion (SAC) appro­pri­ate assess­ment was required under the Con­ser­va­tion (Nat­ur­al Hab­it­ats &c.) Reg­u­la­tions 1994. Again, I have no reas­on to dis­agree. I deal with the appro­pri­ate assess­ment in sched­ule 4 of this notice.

3. The sole object­or reques­ted that I should hold an inquiry or hear­ing into the decision. I have found noth­ing of such com­plex­ity in the nature of the mater­i­al before me as would jus­ti­fy such pro­ced­ure in respect of such a development.

Reas­on­ing

1. I am required to determ­ine this appeal in accord­ance with the devel­op­ment plan, unless mater­i­al con­sid­er­a­tions indic­ate oth­er­wise. Hav­ing regard to the pro­vi­sions of the devel­op­ment plan, the main issues in this appeal are

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2 • the pro­posed development’s impacts on visu­al amen­ity and land­scape and on the spe­cial land­scape qual­it­ies of the nation­al park (in par­tic­u­lar its wild­ness), • the impact on pub­lic access and (in par­tic­u­lar) on access to a fea­ture of the river used for wild swim­ming, and • envir­on­ment­al effects of ser­vices asso­ci­ated with the pro­posed development.

Visu­al amen­ity, land­scape and wildness

1. I agree with the com­mit­tee report that the pro­posed bothy itself would be sym­path­et­ic to the sur­round­ing land­scape in its shape, small scale and pro­posed extern­al fin­ish. Giv­en its pro­posed loc­a­tion among trees, there would be lim­ited vis­ib­il­ity from the east, south or north. While there would be some­what great­er vis­ib­il­ity from the imme­di­ate banks of the river and from west of the river, the area of vis­ib­il­ity would still be lim­ited by wood­land on the west bank. I do not con­sider that the pro­posed small tim­ber-clad bothy, set among trees, would have any sub­stant­ive adverse visu­al effect on walk­ers on the moor­land bey­ond the wood­land on the river’s west bank.

2. The pro­posed staff access would extend rather over 200 metres from the exist­ing Glen Tromie road and would con­sist partly of a sur­faced track with a cent­ral veget­ated strip and partly of a board­walk. Near the river bank, it would be par­tially hid­den by trees in views from the Glen Tromie road. I acknow­ledge that the imme­di­ate con­text is undeveloped, leav­ing aside the pres­ence of the Glen Tromie road itself, but in the wider con­text of Kil­liehuntly farm and Glen Tromie, I con­sider the change to the land­scape would be negligible.

3. I do not con­sider that the pro­posed devel­op­ment would have any sub­stant­ive adverse impact upon land­scape char­ac­ter. The effect on visu­al amen­ity would be minor and lim­ited to the imme­di­ate con­text of the pro­posed devel­op­ment, largely for recept­ors on the Glen Tromie road itself.

4. The pro­posed devel­op­ment would not be in an area clas­si­fied by NatureScot as wild land. There are aspects of wild­ness in the imme­di­ate vicin­ity of the pro­posed devel­op­ment. The banks of the river are undeveloped and the devel­op­ment is pro­posed amongst exist­ing semi-nat­ur­al wood­land, largely out of view of oth­er exist­ing devel­op­ment. How­ever, the road up Glen Tromie and the field walls and cul­tiv­ated fields to its east are vis­ible just a few paces from the pro­posed site of the bothy. The site is a brief walk from the farm­house and cot­tage at Kil­liehuntly. Giv­en the scale and nature of the pro­posed devel­op­ment, its dis­crete loc­a­tion and con­text, I do not con­sider that there would be any sub­stant­ive reduc­tion in the degree of wild­ness of the area, oth­er than in its most imme­di­ate context.

5. It may be that paths or tracks have been cre­ated in the last few years else­where in Glen Tromie. I do not con­sider that the addi­tion of a short length of path to the pro­posed bothy from the exist­ing road would have any sub­stan­tial cumu­lat­ive effect on land­scape, visu­al amen­ity or wildness.

Effect on pub­lic access

1. The Land Reform (Scot­land) Act 2003 intro­duced a stat­utory pub­lic right to be on land for cer­tain pur­poses and to cross land so long as those rights were exer­cised respons­ibly. Some land was excluded from the exer­cise of such rights, includ­ing – in rela­tion to a house (which I under­stand the bothy would be for the pur­pose of the legis­la­tion) – suf­fi­cient adja­cent land to enable per­sons liv­ing there to have reas­on­able meas­ures of pri­vacy and to ensure that their enjoy­ment of the house or place is not unreas­on­ably dis­turbed. The

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3 pro­posed devel­op­ment would be in trees by the river bank with the win­dow of its liv­ing room look­ing out on the river and the bed­room win­dow look­ing into trees. It appears to me, giv­en the bothy’s small scale and its par­tic­u­lar situ­ation, the area around it excluded from access rights would not be large. Little, if any, land to the bothy’s east would be excluded from access rights. It may be that a per­son (exer­cising their stat­utory access rights) fol­low­ing the river bank would need to make a small diver­sion to go around the bothy’s east­ern side.

1. It does not appear to me that the bothy would cause any mater­i­al imped­i­ment to pub­lic access to the wild-swim­ming loc­a­tion described by the object­or to the south of the pro­posed devel­op­ment. The cre­ation of a path to the pro­posed log store from the Glen Tromie road is likely to make pub­lic access to the swim­ming loc­a­tion easi­er, since the pro­posed new path would itself be sub­ject to access rights.

Envir­on­ment­al effects of the pro­posed development’s services

1. In sched­ule 4 to this notice, I find that – sub­ject to the impos­i­tion of cer­tain con­di­tions – there would not be an adverse effect on the integ­rity of the River Spey SAC.

2. As regards the pro­posed development’s water sup­ply, the coun­cil has pro­posed a con­di­tion for approv­al before com­mence­ment of devel­op­ment of details of a piped sup­ply of whole­some water. There is noth­ing in the sub­mis­sions that sug­gests to me this is unlikely to be achievable.

3. A urine-divert­ing dry toi­let is pro­posed, to be man­aged by the estate. A treat­ment sys­tem is pro­posed for waste water. The Scot­tish Envir­on­ment Pro­tec­tion Agency, the body respons­ible for licens­ing dis­charges to the water envir­on­ment, has not objec­ted. NatureScot, which is respons­ible for pro­tec­tion of the River Spey SAC, has not objec­ted either. The dis­charge would be sub­ject to author­isa­tion under the Water Envir­on­ment (Con­trolled Activ­it­ies) (Scot­land) Reg­u­la­tions 2011. In view of this, I do not find that the pro­posed waste-water sys­tem presents an imped­i­ment to grant of permission.

Oth­er mat­ters raised

1. As regards oth­er mat­ters raised by parties: • The appel­lant is not required to demon­strate demand for use of the bothy. I con­sider it very likely that there would be such demand in any case. • I find noth­ing objec­tion­able in respect of the dis­tance of the pro­posed log store from the bothy. • The nature of the occu­pa­tion and use of Kil­liehuntly farm before 2016 is not mater­i­al to determ­in­a­tion of the appeal. • It is a mat­ter for an oper­at­or of the pro­posed devel­op­ment to find staff neces­sary to run it. Kin­gussie is about 3 miles from the pro­posed devel­op­ment, with­in rel­at­ively easy reach by bicycle along an off-road cycle path for most of the way, so I doubt that this would rep­res­ent a dif­fi­culty. • The interests of mem­bers of the plan­ning authority’s com­mit­tee and the ques­tion of wheth­er they were prop­erly declared are not mat­ters mater­i­al to the determ­in­a­tion of the appeal.

Policy assess­ment

1. The devel­op­ment plan is com­prised in the Cairngorms Nation­al Park Loc­al Devel­op­ment Plan 2021. I agree with the com­mit­tee report that the fol­low­ing policies are rel­ev­ant: • Policy 2 – sup­port­ing eco­nom­ic growth

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4 • Policy 3 — design and place­mak­ing • Policy 4 – nat­ur­al her­it­age • Policy 5 – land­scape • Policy 10 — resources.

1. Policy 2 provides sup­port for tour­ist-related accom­mod­a­tion sub­ject to sev­er­al cri­ter­ia. The pro­posed devel­op­ment would clearly con­trib­ute to the pro­vi­sion of a wide range of vis­it­or accom­mod­a­tion options and would con­trib­ute to the year-round eco­nomy. In view of my find­ings above in respect of effects on land­scape, visu­al amen­ity and the envir­on­ment, I con­sider it would also meet the policy’s require­ment that devel­op­ment should have no adverse envir­on­ment­al or amen­ity impacts on the site or neigh­bour­ing areas.

2. Policy 3 deals with design and place­mak­ing. It appears to me that the pro­posed devel­op­ment would use mater­i­als and land­scap­ing that would com­ple­ment its set­ting, and the devel­op­ment would be sym­path­et­ic to the char­ac­ter of the sur­round­ing area, would make sus­tain­able use of resources, would include appro­pri­ate means of access, would main­tain and max­im­ise oppor­tun­it­ies for out­door access, and would pro­mote health and well-being. It would have min­im­al impact on cli­mate change.

3. The Nation­al Park Author­ity accep­ted the evid­ence sup­plied by the appel­lant that, sub­ject to con­di­tions, there would be no adverse effect on any nation­al or inter­na­tion­al des­ig­na­tion or pro­tec­ted spe­cies or any oth­er adverse effect on biod­iversity con­trary to policy 4. I see no reas­on to disagree.

4. As regards policy 5, I con­sider that the pro­posed devel­op­ment would con­serve land­scape char­ac­ter and the spe­cial land­scape qual­it­ies of the Cairngorms Nation­al Park and would not adversely affect its set­ting in Kil­liehuntly farm and in Glen Tromie.

5. Since the pro­posed waste-water sys­tem is sub­ject to licens­ing, and there is no sug­ges­tion from the reg­u­lat­or that it poses a risk of a det­ri­ment­al effect, I find that the pro­posed devel­op­ment accords with policy 10 on resources.

22.I find that the pro­posed devel­op­ment accords with the rel­ev­ant devel­op­ment-plan policies, and has the sup­port of policy 2. No sub­stan­tial mater­i­al con­sid­er­a­tions oth­er than the mat­ters I have dis­cussed above have been drawn to my atten­tion. I there­fore con­clude, for the reas­ons set out above, that the pro­posed devel­op­ment accords over­all with the rel­ev­ant pro­vi­sions of the devel­op­ment plan and that there are no mater­i­al con­sid­er­a­tions which would still jus­ti­fy refus­ing to grant plan­ning permission.

Robert Seaton Reporter

Sched­ule 1: applic­a­tion drawings

Title	Ref­er­ence	Dated
Pro­posed site plan	826 02 102	20 11 2019
Pro­posed loc­a­tion plan 2	826 02 103	01 09 2020
Pro­posed floor plan	826 02 201	20 11 2019
Pro­posed front elevation	826 02 401	20 11 2019
Pro­posed back elevation	826 02 402	20 11 2019
Pro­posed side elev­a­tion 1	826 02 403	20 11 2019
Pro­posed side elev­a­tion 2	826 02 404	20 11 2019
Pro­posed log store	826 02 405	27 09 2021

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5 Sched­ule 2: conditions

1. No devel­op­ment shall com­mence on site until the fol­low­ing inform­a­tion has been sub­mit­ted and approved in writ­ing by the Cairngorms Nation­al Park Author­ity: a) Inform­a­tion on the pro­posed water-sup­ply type, water source, own­er of any land where abstrac­tion would take place, any oth­er prop­erty using the water source, any con­nec­tion into an exist­ing private sup­ply, and leg­al respons­ib­il­ity for pro­vi­sion and main­ten­ance of the sup­ply (all as set out in the High­land Coun­cil Private Water Sup­plies Ques­tion­naire in its plan­ning advice on private water sup­plies or any such sub­sequent advice or guid­ance). b) A plan of the devel­op­ment and water sup­ply. c) A report from a com­pet­ent per­son which demon­strates that there will be a suf­fi­cient piped sup­ply of whole­some water to meet the demands of this property.

Where the report iden­ti­fies a need for water treat­ment, it shall be put in place before the devel­op­ment is occupied.

Reas­on: Ensure suit­able pro­vi­sion of water for vis­it­ors to the bothy in accord­ance with policy 10 (Resources) of the Cairngorms Nation­al Park Loc­al Devel­op­ment Plan 2021.

1. No devel­op­ment shall com­mence on site until a pre-con­struc­tion sur­vey for otter of the pro­posed devel­op­ment site and a 200-metre buf­fer (in accord­ance with cur­rent NatureScot guid­ance on such sur­veys) has been car­ried out. The sur­vey res­ults shall be used to inform a Spe­cies Pro­tec­tion Plan set­ting out mit­ig­a­tion meas­ures appro­pri­ate to the res­ults. Devel­op­ment shall not com­mence until the sur­vey res­ults and pro­posed Spe­cies Pro­tec­tion Plan have been sub­mit­ted to and approved in writ­ing by the Cairngorms Nation­al Park Author­ity. There­after the plan shall be imple­men­ted in full and over­seen by a suit­ably qual­i­fied Eco­lo­gic­al Clerk of Works.

Reas­on: To avoid dis­turb­ance to otter (a qual­i­fy­ing interest of the River Spey SAC and a European Pro­tec­ted Spe­cies) and to avoid dis­turb­ance of pro­tec­ted spe­cies in accord­ance with Policy 4 (Nat­ur­al Her­it­age) of the Cairngorms Nation­al Park Loc­al Devel­op­ment Plan 2021.

1. No devel­op­ment shall com­mence on site until a pre-con­struc­tion walk-over sur­vey for pro­tec­ted spe­cies, such as, but not lim­ited to, pine marten, red squir­rel, badger, bats, Scot­tish wild­cat and rep­tiles, has been under­taken in accord­ance with cur­rent NatureScot guid­ance for such sur­veys by a suit­ably exper­i­enced and licensed eco­lo­gic­al sur­vey­or. The sur­vey res­ults shall inform a Spe­cies Pro­tec­tion Plan detail­ing appro­pri­ate mit­ig­a­tion meas­ures for any pro­tec­ted spe­cies found. No devel­op­ment shall com­mence until the plan has been sub­mit­ted to and approved in writ­ing by the Cairngorms Nation­al Park Authority.

There­after the plan will be imple­men­ted in full and over­seen by a suit­ably qual­i­fied Eco­lo­gic­al Clerk of Works.

Reas­on: To ensure the pro­tec­tion of pro­tec­ted spe­cies includ­ing breed­ing birds in accord­ance with Policy 4 (Nat­ur­al Her­it­age) of the Cairngorms Nation­al Park Loc­al Devel­op­ment Plan 2021.

1. If any pre­par­at­ory or con­struc­tion works are to be under­taken on site dur­ing March – August (inclus­ive), no such works and no devel­op­ment shall com­mence until a pre- con­struc­tion walk-over sur­vey for breed­ing birds has been under­taken in accord­ance with cur­rent guid­ance by a suit­ably exper­i­enced and licensed eco­lo­gic­al sur­vey­or. The sur­vey res­ults shall inform a Breed­ing Bird Pro­tec­tion Plan detail­ing appro­pri­ate mitigation

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6 meas­ures for any breed­ing birds found. No devel­op­ment or pre­par­at­ory works shall com­mence until the plan has been sub­mit­ted to and approved in writ­ing by the Cairngorms Nation­al Park Authority.

There­after the plan shall be imple­men­ted in full and over­seen by a suit­ably qual­i­fied Eco­lo­gic­al Clerk of Works.

Reas­on: To ensure the pro­tec­tion of pro­tec­ted spe­cies includ­ing breed­ing birds in accord­ance with Policy 4 (Nat­ur­al Her­it­age) of the Cairngorms Nation­al Park Loc­al Devel­op­ment Plan 2021.

1. All works shall be under­taken in strict accord­ance with the approved Con­struc­tion Meth­od State­ment (Rev B) sub­mit­ted to Cairngorms Nation­al Park Author­ity on 6 Octo­ber 2021, unless the Author­ity in writ­ing per­mits otherwise.

Reas­on: To reduce the risk of pol­lu­tion affect­ing the River Spey SAC and con­nec­ted water­courses to a min­im­al level and to avoid dis­turb­ance to otter dur­ing construction.

1. The bothy hereby approved shall be used solely as tem­por­ary hol­i­day-let­ting accom­mod­a­tion and for no oth­er pur­poses what­so­ever. In par­tic­u­lar, it shall not be used as a per­man­ent res­id­ence or any person’s sole or main res­id­ence. The own­er of the bothy must main­tain an up-to-date register of the name of each occu­pi­er of the bothy, their length of stay and their main home address. This inform­a­tion must be made avail­able on request at any reas­on­able time to the Cairngorms Nation­al Park Authority.

Reas­on: Change of use of the bothy to a per­man­ent res­id­ence would require con­sid­er­a­tion of the effects of such a use, for instance in respect of avail­ab­il­ity of ser­vices such as edu­ca­tion, pub­lic trans­port, and health ser­vices, its sus­tain­ab­il­ity, and the require­ment for con­tri­bu­tion to such ser­vices and to afford­able hous­ing, and plan­ning policy rel­ev­ant to such matters.

Sched­ule 3: Advis­ory notes

1. The length of the per­mis­sion: This plan­ning per­mis­sion will lapse on the expir­a­tion of a peri­od of three years from the date of this decision notice, unless the devel­op­ment has been star­ted with­in that peri­od (See sec­tion 58(1) of the Town and Coun­try Plan­ning (Scot­land) Act 1997 (as amended)).

2. Notice of the start of devel­op­ment: The per­son car­ry­ing out the devel­op­ment must give advance notice in writ­ing to the plan­ning author­ity of the date when it is inten­ded to start. Fail­ure to do so is a breach of plan­ning con­trol. It could res­ult in the plan­ning author­ity tak­ing enforce­ment action (See sec­tions 27A and 123(1) of the Town and Coun­try Plan­ning (Scot­land) Act 1997 (as amended)).

3. Notice of the com­ple­tion of the devel­op­ment: As soon as pos­sible after it is fin­ished, the per­son who com­pleted the devel­op­ment must write to the plan­ning author­ity to con­firm the pos­i­tion (See sec­tion 27B of the Town and Coun­try Plan­ning (Scot­land) Act 1997 (as amended)).

Sched­ule 4: appro­pri­ate assess­ment of the effect on the River Spey SAC

The River Tromie, which flows past the applic­a­tion site, forms part of the River Spey SAC. Qual­i­fy­ing spe­cies include otter, fresh­wa­ter pearl mus­sel, sea lamprey and Atlantic salmon.

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7 The appellant’s assess­ment found that the river offered suit­able com­mut­ing, rest­ing and for­aging hab­it­at for otter. Otter spraints were found in the sur­vey area in the appellant’s sur­vey. The rocky riverb­anks in the sur­vey area were found to be of low suit­ab­il­ity for otter holts. Although the river provided optim­al hab­it­at for otter, the assess­ment found that the pro­posed devel­op­ment was unlikely to affect the con­ser­va­tion status of the spe­cies, though without mit­ig­a­tion – would be likely to cause tem­por­ary dis­turb­ance to com­mut­ing otter dur­ing con­struc­tion. Mit­ig­a­tion meas­ures pro­posed included pre-works checks for pro­tec­ted spe­cies, fol­low­ing good con­struc­tion prac­tice (such as provid­ing means of escape from excav­a­tions), sens­it­ive tim­ing of con­struc­tion and safe use and stor­age of chemicals.

The Nation­al Park Authority’s com­mit­tee report (with which NatureScot agreed) found that there was poten­tial for sed­i­ment exposed dur­ing con­struc­tion work to reach the SAC. This could adversely affect water qual­ity by redu­cing oxy­gen levels and smoth­er­ing hab­it­ats relied upon by qual­i­fy­ing spe­cies and their prey spe­cies. The com­mit­tee report agreed with the appellant’s assess­ment that there was poten­tial for dis­turb­ance of otter dur­ing con­struc­tion and oper­a­tion of the bothy. NatureScot advised that the pro­posed waste-water treat­ment sys­tem and soakaway by a per­for­ated pipe dis­char­ging into the ground and end­ing at the River Tromie would not have a sig­ni­fic­ant effect on the qual­i­fy­ing interests of the SAC. I accept this evidence.

The appel­lant sup­plied a con­struc­tion meth­od state­ment set­ting out meas­ures to reduce the risk of pol­lu­tion occur­ring. I accept (as the Nation­al Park Author­ity did) that the applic­a­tion of such meth­ods would render the risk min­im­al. I also accept (like the Nation­al Park Author­ity) that if a pre-con­struc­tion sur­vey is under­taken to identi­fy wheth­er otter are on site, meas­ures can be taken to avoid their dis­turb­ance both dur­ing con­struc­tion of the pro­posed devel­op­ment and dur­ing its oper­a­tion. I con­sider that, sub­ject to these meas­ures being secured by con­di­tions as pro­posed by the Nation­al Park Author­ity, there would be no adverse effect on the integ­rity of the River Spey SAC. I have con­sequently included the neces­sary con­di­tions in sched­ule 2 to this notice.