Public Document Pack Argyll and Bute Council Comhairle Earra Ghaidheal agus Bhoid

Customer Services Executive Director: Douglas Hendry

Kilmory, Lochgilphead, PA31 8RT Tel: 01546 602127 Fax: 01546 604435 DX 599700 LOCHGILPHEAD

13 December 2013

SUPPLEMENTARY PACK 1

PLANNING, PROTECTIVE SERVICES AND LICENSING COMMITTEE - COUNCIL CHAMBERS, KILMORY, LOCHGILPHEAD on WEDNESDAY, 18 DECEMBER 2013 at 10:30 AM

I enclose herewith items 6 and 13 which were marked “to follow” on the Agenda for the above meeting along with a supplementary report for item 8.

ITEMS TO FOLLOW AND SUPPLEMENTARY REPORT

6. MR JAMES PAUL DALY AND ANDREENA DALY: ERECTION OF DWELLINGHOUSE, FORMATION OF CAR PARKING AND SITING OF STEEL CONTAINER UNIT (PARTIALLY RETROSPECTIVE): 3 KYLE VIEW, KILCREGGAN, HELENSBURGH (REF: 13/02045/PP) Report by Head of Planning and Regulatory Services (Pages 1 - 26)

8. MR SEUMAS MACARTHUR: ERECTION OF FLAG POLE (RETROSPECTIVE): FORESHORE, OPPOSITE 7 SHORE STREET, PORTNAHAVEN, ISLE OF ISLAY (REF: 13/02075/PP) Report by Head of Planning and Regulatory Services (Pages 27 - 28)

13. 13/02270/S36: CONSULTATION FROM MARINE SCOTLAND RELATIVE TO PROPOSED WEST ISLAY TIDAL ENERGY PARK Report by Head of Planning and Regulatory Services (Pages 29 - 48)

PLANNING, PROTECTIVE SERVICES AND LICENSING COMMITTEE

Councillor David Kinniburgh (Chair) Councillor Gordon Blair Councillor Rory Colville Councillor Robin Currie Councillor Mary-Jean Devon Councillor George Freeman Councillor Alistair MacDougall Councillor Robert Graham MacIntyre Councillor Donald MacMillan Councillor Roderick McCuish Councillor Alex McNaughton Councillor James McQueen Councillor Sandy Taylor Councillor Richard Trail

Contact: Fiona McCallum Tel. No. 01546 604392 This page is intentionally left blank Page 1 Agenda Item 6

Argyll and Bute Council Development & Infrastructure Services

Delegated or Committee Planning Application Report and Report of Handling as required by Schedule 2 of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008 relative to applications for Planning Permission or Planning Permission in Principle ______

Reference No : 13/02045/PP

Planning Hierarchy : Local application.

Applicant : Mr James Paul Daly and Andreena Daly

Proposal : Erection of dwellinghouse, formation of car parking and siting of a steel container unit (partially retrospective) . Site Address : 3 Kyle View, Kilcreggan, Helensburgh ______

DECISION ROUTE

(i) Local Government (Scotland) Act 1973 ______

(A) THE APPLICATION

(i) Development Requiring Express Planning Permission

• Construction of a dwellinghouse (Differs from consent 04/02229/DET by ~2m platform height and ~1m position as well as design alterations) • Re-grading of land; • Formation of driveway and parking; • Erection of raised timber deck and external stair; • Siting of steel storage container.

(ii) Other specified operations

• Formation of access and installation of main services outwith this application site pursuant to 05/02413/DET. ______

(B) RECOMMENDATION:

It is recommended that retrospective Planning Permission be granted

i) as a ‘minor departure’ to policies LP ENV 19, LP HOU 3, LP TRAN 3, LP TRAN 4 and Appendix A of the ‘Argyll & Bute Local Plan’ (2009), and

ii) subject to the conditions and reasons listed in the report. ______

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(C) HISTORY:

C4335 Erection of 42 Dwellinghouses (outline) granted 29 August 1974. An amended plot layout was approved on 2 October 1975

C4410 Erection of 6 dwellinghouses approved 24 October 1973

C5880/3 Erection of 5 dwellinghouses approved 24 June 1979

C7591 Erection of Residential development (outline) approved 3 February 1986

00/00240/DET – Full planning permission for development of 4 houses, Plots 1 - 4. Applicant HQ Developments. Granted 2/05/2000

03/02423/DET – Full planning permission for erection of dwelling, Plot 4. Applicant Professor A Watson. Granted 10.11.06. Now expired.

04/ 02229/DET – Full planning permission for erection of dwelling. Plot 3 Applicant Mr James Daly Granted 8.06.06. Now expired.

05/02413/DET – Construction of an adoptable estate road. Greenfinch Homes (Kilcreggan) Ltd. Granted 28.04.06. Implemented but superseded by 06/02478/DET.

06/02478/DET- Erection of 10 No dwellinghouses with associated roads. Granted 05.06.07. Now expired.

07/02291/DET – Erection of 8 No dwellinghouses (substitution of housetypes) with associated roads. Granted 07.04.08. Live.

08/01293/DET - Erection of 8 No Dwelling Houses (substitution of house types) with associated roads. Withdrawn 01.09.08

12/00170/PP - Erection of dwelling house, formation of a vehicular access and car parking, installation of private drainage and siting of a steel container unit (retrospective). Withdrawn 17.09.12

12/02761/PP - Erection of dwellinghouse, formation of car parking and siting of a steel container unit (retrospective). Withdrawn 18.04.13 ______

(D) CONSULTATIONS:

Area Roads Manager (e-mail dated 22.10.13 and response dated 25.10.13) – No objections subject to conditions.

The Roads Manager recommends that the development be subject to planning conditions to ensure acceptable tie-in with planned adjacent development. .

The present access is considered as a temporary arrangement which shall be reconstructed such that it ties in to the approved estate service road. The tie in should be compatible in both line and level with the approved road.

All work to the final access arrangement will be contained within the designated plot 3. Should there be a need to revert to retaining structures adjacent to the access to plots 1 & 2, then the retaining structure will be constructed to an approved design, certified

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by a qualified engineer. The design will not compromise in any way the access to plots 1 & 2.

Provision will be made for the parking of three cars entirely within the curtilage of plot 3 that will not in any way encroach on the proposed public Road and its footways or verges. The area will have a sealed surface acceptable to the Argyll & Bute Council Roads Department.

All of the above works will be completed satisfactorily prior to the laying of the final surface courses of the footways and Road carriageway. Arrangements must be put in place to alter the access as works progress in the construction of the proposed road such that access is maintained at all times.

All drainage pipes and connections will have satisfactory cover and will be laid in accordance with industry standards. Disconnection manholes will be within the plot boundaries. All main line manholes will be constructed close to the centreline of the proposed Road.

No surface water will be permitted to discharge from the access or parking area onto the proposed Road.

Access from the Proposed Road will be via dropped kerb footway or verge crossing generally complying with the Council’s Standard Detail SD 08/005A

. Scottish Water – No response.

Environmental Health – No response

SEPA (response dated 17.09.13) - No objections providing development is served by public drainage system.

Building Standards (response dated 26.09.13) - The Building Standards Team was asked to comment upon the objections that focus on possible requirement for retaining walls between Plots 2, 3 and 4. The Area Team Leader advises that the application property has a habitation certificate and complies with the Building Regulations but states that any requirement for retaining walls will depend upon detailed design considerations, the local characteristics of the rock and the design engineer’s recommendations. As he is not an engineer this is a matter for the developer and site designers to consider and he has declined to offer an opinion at this point. ______

(E) PUBLICITY:

Regulation 20(1) advertisement was placed in the Helensburgh Advertiser on 19.09.13. Expiry 10.10.13 ______

(F) REPRESENTATIONS:

Four letters of representation have been received in relation to this application, two in support and two opposed to the development.

Mr A Watts, 4 Courthill Rosneath. 17.09.13 (Objection)

Mr and Mrs N Dunn, Braeview, Barbour Road, Kilkreggan 20.09.13 (Objection)

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Mr J Kane, 7 Meikle Aiden Brae, Kilcreggan 7.10.13 (Support)

Mr M Guthrie, 9 Meikle Aiden Brae, Kilcreggan 24.9.13 (Support)

Mr Andrew Watts, 4 Courthill, Rosneath (objector)

Mr Watts is the new owner and prospective developer of the adjacent development plots 2 and 4-10. His objections along with his business partner Mr Carl Norman have been submitted via various emails and correspondence in response to the previous withdrawn applications with the latest correspondence received reaffirming the earlier objections on the same main grounds. Council Officers have also met with Mr Watts on two occasions to discuss his objections to the application and the underlying enforcement complaint.

Mr Watt’s previous comments and submissions including topographical survey level data and diagrams have been carried over to the current application. The objections are summarised below:

The construction of the new house on Plot 3 is not built as previously approved by the Council. The development of the adjoining land is prejudiced by the unauthorised development because the ground level of the proposed development is now significantly higher than the development approved under the previous application. A topographic survey commissioned in 2012 has been issued to the Council in support of the objection. The altered ground levels will materially affect the development of the adjoining land as retaining walls will be now be required; imposing practical design and cost constraints.

The siting of the application building, the new requirement for retaining walls to provide lateral support along the mutual boundary and associated plot drainage will require redesign work to the adjacent development plots to achieve acceptable and workable solution. The retaining walls will have to be sited on Plots 2 and 4 involving additional land take. This will unreasonably impose costs and inconvenience to the developer of the adjoining land resulting directly from failure of the Planning Authority to monitor the development of Plot 3 and ensure compliance with the permission.

The proposed house access does not comply with normal Council Standards as it is too steep for vehicular access from the proposed development road, greatly exceeding the levels approved under the previous road construction consent and planning permissions.

The applicant has also constructed private drainage, made illegal connections and vehicular access without proper regard for the development of the adjoining land and design approval given to the development road and site drainage. The objector has also questioned the applicant’s legal entitlement to construct the offsite drainage and maintains that the development road infrastructure may require redesign to accommodate the applicant’s operations.

The siting of a steel container on the property is unattractive and detrimental to the appeal and marketability of the adjoining plots.

The objector has also expressed concern about the length of time it has taken to address the breach of planning control.

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Comment: The applicant seeks retrospective planning permission for a house build that has a completion certificate and is occupied by a family. Retrospective planning permission is required in order to regularise the breach of planning control as the house as built does not accord with the details previously approved by the Council. The current application therefore has to be reassessed afresh and upon its own merits albeit that the previous consent is a significant material consideration..

The applicants do not dispute that the house construction is higher than previously approved although there is a difference in opinion between the parties on the extent of height difference involved. The applicants state that the altered levels were agreed with the Planning Authority at the time following discussion with the case officer. Unfortunately Council records shed no light on this.

The survey information (AMK Surveys) made available to the Council by the objectors suggests that the garage floor level of plot 3 is 87.6m AOD. The applicant states that the finished level is 86.262m. The Council previously approved a garage floor level of 85.1m. The applicants dispute the accuracy of the AMK Survey and state that the levels provided by the objectors for slab and ridge are incorrect. The applicant has confirmed that they did not consent to AMK entering onto their property to undertake the survey so feel data is subjective to progress their objection and the recorded levels by AMK differ from unaltered levels of Barbour Road from the Council approved application and RCC from 2006.

The applicants have not provided a site survey although this was requested of them but they do refer to another survey carried out November 2003 that is not deposited on the planning register. Officers are inclined to accept the conclusions of the land survey undertaken by AMK Surveys as accurate but acknowledge that there may be some differences between surveys undertaken at different times. The fact that the unaltered Barbour Road has been recorded on both surveys but at different levels also suggests that two separate datum sets have been used to calculate the AOD which contributes to the divergence of opinion. The increase in height from the originally consented scheme is between the range of 1.1m and 2.5m.

Indicative sections prepared by consultant engineers acting for the objectors indicate a significant fall between the application site and the plots either side and this difference in level may require lateral support along the mutual boundaries in the form of retaining walls.

Giving the sloping nature of the whole development site, significant regrading work was always required to implement the approved scheme. There has also always been variation in platform height across Plots 2, 3 and 4 but this variance has increased.

The variation in level from the previously approved plan is assessed to materially alter the relationship of the completed house with the proposed adjoining development and this may require some design adjustments to enable the redevelopment of adjoining land. The survey data supplied by the objectors suggests that lateral support in the form of concrete retaining walls approximately 3 metres high may now be required along the mutual boundaries of plots 2,3 and 4. The design and extent of the retaining walls depends upon the extent of rock cut along the mutual boundaries and is currently unknown. The hard rock conditions in this general vicinity may however mitigate level of support required.

The Planning Department do not consider that the development of plot 3 has so adversely affected the adjoining land that the ability of the new developer to build out these plots as approved has been made technically impracticable. There is currently inadequate information available to officers to reach such a conclusion.

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Planning officers have reminded the adjacent developer architectural agent that no details of retaining walls had been provided by Greenfinch and this requirement of a planning condition still has effect and should have been discharged. Although given the opportunity to furnish these details pursuant to their own planning permission the information requested has still not been provided. Without a properly considered, engineered and detailed design officers can only conjecture the likely visual impact and the practical effect upon the adjacent land. Officers consider that the impact on the adjacent plots could be mitigated by altering proposed levels on Plots 2 and 4 or by securing an amendment to the approved platform or more likely reconsider the choice of house design for these plots. The adjacent developers have already mooted that some form of redesign or remix is under consideration due to different housing market conditions today and some alternative layouts have been circulated for discussion.

Mr Watts also purchased the adjacent land from company administrators in the knowledge that the house at Plot 3 had been built and the issue of level difference between the plots would have been evident before he made the decision to buy. It should also have been evident that the development of the adjoining plots had not been implemented in accordance with the planning permission, therefore Mr Watts was unable to be sure at the point of purchase what would be the Council’s response to all of these matters. Mr Watts did not raise these issues with the Planning Authority prior to making his investment decision and made a commercial judgement on the facts available.

The applicant has constructed a temporary access connection from Meikle Aiden Brae to service the single house plot. This also facilitates partial access into the remaining development plots. The access does not comply with the planning permission or previous road construction consent. The operations have been carried out on land under the ownership and control of Mr Watts. It is unclear if the services and drainage infrastructure that have been laid by the applicants comply with normal technical standards although the applicants state that they have all necessary statutory approvals in place and the Council has not received objections from any statutory undertaker or utility provider. A Scottish Water inspection report from 2009 has been submitted indicating that connections have passed the assessment.

Planning officers regard these operations as unauthorised as there is no road construction consent or road bond in place and the construction of the access does not accord with earlier approvals. However, the current arrangements are provisional, pending construction of the development road. Mr Watts has submitted an application for revised road construction consent and intends to complete the unfinished project. The development will require a road built to adoptable standards.

Mr Watts may be entitled to remove any unauthorised operations on his land or pursue legal action to challenge alleged trespass. This is entirely a matter for the landowner to decide upon. While the current arrangements are imperfect and assessed to be inadequate to serve a development of 10 dwellings, as a temporary measure, the access and service arrangements appear to be adequate to serve a single dwellinghouse. There will inevitably be disruption to the applicants’ access and service supply when the road and utilities serving the remaining housing development is eventually built although officers understand there is no contractual arrangement between the applicants and Mr Watts and it is unclear if Mr Watts is under any obligation to honour any of the undertakings previously given to the applicants by Greenfinch.

It is acknowledged that the collapse and administration of the original developer and the subsequent actions of the applicants has created a legacy of problem issues at this

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site and left a difficult situation for all now involved. However, the only possible remedies available now to the Planning Authority to rectify the situation are either to accept the position as it stands and seek some improvements where this is still practicable, or to direct that the house proposed for Plot 3 be rebuilt in accordance with the previously approved development platform and design. The latter course of action would involve demolition of the built and occupied house and officers consider this remedy would be grossly disproportionate to the breach.

The planning system should not be used to protect the private interests of any party. A judgement has to be reached only about the appropriateness of the proposed development and what actions the Planning Authority should now take to ensure that the remaining development can be implemented in accordance with previous planning decisions.

Mr and Mrs N Dunn, Braeview, Barbour Road, Kilcreggan (objector)

Mr and Mrs Dunn have recently purchased Plot 1 to extend their property or potentially develop. The objectors have a servitude right of access over land to construct a private driveway access to serve plots 1 and 2. They object to the current application on the basis that the development may adversely affect access into Plots 1 and 2 and potentially impede construction of the development road.

Comment: The applicants have submitted a land certificate and plan in support of their application. This confirms the extent of registered land ownership and plots the completed house relative to registered title boundaries. It appears to officers that the planning application red line boundary is reflective of the registered title position.

If the objectors feel that the title registered to the applicants is incorrect and potentially problematic this is a civil matter that they should raise with their legal advisors.

The development of Kyle View will be served by an adopted development road. The current arrangements are provisional.

Mr J Kane, 7 Meikle Aiden Brae, Kilcreggan (supporter)

Mr Kane is supportive of the development. He feels it integrates well and has no adverse impact locally. He welcomes the applicants’ financial contribution towards local road improvements on Meikle Aiden Brae.

Mr M Guthrie, 9 Meikle Aiden Brae, Kilcreggan (supporter)

Mr Guthrie supports the application. He feels it integrates well with neighbouring properties and has had no adverse impact upon local drainage infrastructure. He also welcomes the applicants’ financial contribution towards local road improvements on Meikle Aiden Brae.

Comment: The properties immediately and directly affected by this application have not yet been built. The condition and status of Meikle Aiden Brae has been an issue of local concern for many years and recent improvements to the road surface have been broadly welcomed by Meikle Aiden Brae residents. The applicants have made a financial contribution towards the upgrading of Meikle Aiden Brae. The resurfacing and other improvements have also extended into Kyle View. ______

.

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(G) SUPPORTING INFORMATION

Has the application been the subject of:

(i) Environmental Statement: No

(ii) An appropriate assessment under the Conservation (Natural Habitats) Regulations 1994: No

(iii) A design or design/access statement: No

(iv) A report on the impact of the proposed development e.g. Retail impact, transport impact, noise impact, flood risk, drainage impact etc: No ______

(H) PLANNING OBLIGATIONS

Is a Section 75 agreement required: No ______

(I) Has a Direction been issued by Scottish Ministers in terms of Regulation 30, 31 or 32: No ______

(J) Section 25 of the Act; Development Plan and any other material considerations over and above those listed above which have been taken into account in the assessment of the application

(i) List of all Development Plan Policy considerations taken into account in assessment of the application.

‘Argyll and Bute Structure Plan’ 2002

Policy STRAT DC1 – Development within Settlements

‘Argyll and Bute Local Plan’ 2009

Policy LP ENV1- Development Impact on the General Environment; Policy LP HOU 1 – General Housing Development; Policy LP HOU 3 – Special Needs Access Provision in Housing Developments; Policy LP ENV 19 - Development Setting, Layout and Design including Appendix A - Sustainable Siting and Design Principles; Policy LP TRAN 3 – Special Needs Access provision; Policy LP TRAN 4 - New and existing public roads and private access regimes; Policy LP TRAN 6 - Vehicle Parking Provision; Policy LP ENF 1 - Enforcement Action.

(ii) List of all other material planning considerations taken into account in the assessment of the application, having due regard to Annex A of Circular 4/2009.

Argyll and Bute Council Planning Enforcement Charter Argyll and Bute Council Proposed Local Development Plan Applicants’ supporting written statements ______

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(K) Is the proposal a Schedule 2 Development not requiring an Environmental Impact Assessment: No

(L) Has the application been the subject of statutory pre-application consultation (PAC): No

(M) Has a sustainability check list been submitted: No

(N) Does the Council have an interest in the site: No

(O) Requirement for a hearing (PAN41 or other): No ______

(P) Assessment and summary of determining issues and material considerations

The application site falls within the Local Plan defined ‘settlement’ zone for Kilcreggan. The dwelling for which retrospective permission is being sought is situated close to existing housing development of similar character, and is sited in the middle of a larger development site that benefits from a live planning permission for 8 dwellings. The principle of residential development is accepted and the external design and appearance of the house has been considered previously by the Planning Authority to be acceptable.

The principal differences between the previous planning permission and the development which has been implemented for which retrospective permission is now being sought are:

• Development has been implemented 2 metres higher than approved finished floor levels. This is a material amendment with consequences for the adjacent plots, but is assessed to be acceptable given the previous permission finished roof height relative to adjacent consented dwellings, and the fact that the owner of the adjacent land was aware of this discrepancy at the time of land acquisition.

• Development has been implemented 1 metre closer to Northern boundary. The side facing windows will not have sufficient spacing to meet current local plan separation standards from the boundary fence and blank gable of the approved dwelling on plot 2 when it is built. However, this is mainly to the disadvantage of the amenity of the applicants’ dwelling and does not prejudice the developability of the adjacent plot.

• Interim driveway and car parking arrangements pending completion of the estate road by others. The driveway construction at present is excessively steep and may require adjustment to meet the vertical and horizontal adjustment of the estate road once this is implemented to adoption standard. This will still result in a steeper driveway gradient than is normally allowed, but subject to the addition of a car parking space at the foot of the driveway, and drainage provision to prevent run-off onto the estate road and adjoining land, this can be accepted as a driveway access to a single dwelling.

There are also some other minor external alterations from the approved design that are material to the current assessment:

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• The proposed external staircase sited along the Southern elevation appears to overlook adjoining property given its relationship to the adjoining house (Plot 4). This aspect of the application is not judged to be acceptable.

• The road construction linking the development with the public road is assessed to be inadequate to serve the wider development and will require improvement but is presently adequate to serve the single dwelling. An adopted estate road is proposed to serve the whole site and a new road construction consent application has been lodged with the Council.

The deficiencies with the driveway construction and the shortcomings of the interim access arrangement can be appropriately addressed by means of planning conditions, although it has to be accepted that disability standard access may not always be guaranteed on those occasions during the winter when the driveway is affected by snow or ice.

This unfortunate situation has been precipitated by a number of factors. The intended developer of the bulk of the site became insolvent after operations commenced on Plot 3, which has left the applicants with a difficult choice – either delay construction perhaps for years and potentially write off their own investment in land or pursue the development of the plot independently without the promised estate road or services in place. Furthermore, the original developers Greenfinch and the Company Director Mr Brady also appear to have lacked the foresight or commercial experience to insist upon normal legal safeguards to manage and regulate design changes following the plot sale or to reserve step-in rights to rectify problems.

The applicants have not constructed either the dwelling or the site access in accordance with the permissions, nor did they obtain planning permission for amended details, either prior to or during construction of the dwelling. Accordingly, it is now necessary to consider the acceptability of the development as it is now built, both in terms of its relationship with the remainder of the consented development, and its wider surroundings, and in the context of what was originally approved in June 2006.

Although the building design does not vary markedly from the previously approved design the altered development platform involves some adjustment of land levels, with the consequent possible requirement for ground retention and drainage either within or adjacent to the plot to accommodate this change. The driveway within the plot also does not comply with the Council’s normal gradient standards. The Road Engineer has recommended a number of planning conditions be attached to provide the requisite car parking, safeguard road safety and ensure that the driveway construction and private services integrate successfully with the service road and infrastructure that have yet to be built.

Assessed against the adopted Development Plan the proposed development is deficient in some respects. The development is determined to be consistent with Policies LP ENV1 and LP HOU 1 but partially contrary to local plan policy LP ENV 19, LP HOU 3, LP TRAN 3 and LP TRAN 4 of the adopted Local Plan. However, the highlighted shortcomings do not warrant a recommendation of refusal and a retrospective permission is appropriate subject to the recommended conditions, which inter alia preclude the construction of the external staircase referred to above. ______.

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(Q) Is the proposal consistent with the Development Plan: No, the proposal conflicts with some elements of the development plan and therefore a retrospective approval would constitute a ‘minor departure’ to policy.

(R) Reasons why Planning Permission should be granted As per Section S below

(S) Reasoned justification for a departure from the provisions of the Development Plan

The Development Plan is supportive of the residential development on this site. Although the development, as implemented, does not accord fully with the planning permission granted for this plot in June 2006 (04/02229/DET), the design, appearance and materials used in the construction of the dwelling are all similar to those which were previously consented.

The deviations in terms of siting, height and external appearance of the dwelling are not incompatible with its surroundings, and do not prejudice future development of the adjoining land. Whilst the access arrangements do not satisfy development plan guidelines in terms of construction and gradient, they are considered to be acceptable by the Roads Engineer, as an interim arrangement to serve a single dwelling, and pending the completion and adoption of the road to serve the whole development.

The Roads Engineer has also recommended that the driveway be modified to comply with the Council’s standard construction details for private driveway design and crossover connection to the public footway to ensure observance of adequate access standards. The topography of the site and level at which the dwelling has been constructed render it impractical to provide a level means of access as required by Policy LP HOU 3.

Arrangements regarding aspect and separation distances do not satisfy the requirements of Policy LP ENV 19 and Appendix A because the window to gable distance is considerably less than the guidance permits, but do not give rise to amenity issues beyond those associated with the occupation of the application property, so do not pose amenity consequences for the adjoining properties which are consented but have yet to be built. The external stairwell to the deck is a new feature. The applicants have failed to furnish full details of this stair construction and it is determined that the stair poses a risk of overlooking to the adjacent property. This aspect of the proposal is not acceptable and is conditioned out accordingly.

It is therefore considered that retrospective consent can be justified as a ‘minor departure’ to development plan policies LP ENV 19, LP HOU 3, LP TRAN 3, LP TRAN 4 and Appendix A of the ‘Argyll & Bute Local Plan’ (2009). ______

(T) Need for notification to Scottish Ministers or Historic Scotland: No

Author of Report: Martin Hannah Date: 10th November 2013

Reviewing Officer: David Eaglesham Date: 27 th November 2013

Angus Gilmour Head of Planning & Regulatory Services

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CONDITIONS AND REASONS RELATIVE TO APPLICATION 13/02045/PP

1. The development shall be implemented in accordance with the approved drawings: Land Certificate Plan (1 of 5); Site Plan ( 2 of 5 ); Proposed North East and West Elevations, Front Door Elevation (3 of 5); Longitudinal E/W Site Section, South Elevation and First Floor Plan (4 of 5) and 376/2 014 Road Cross Sections and Chainage (5 of 5), unless the prior written approval of the Planning Authority is obtained for an amendment to the approved drawings under Section 64 of the Town and Country Planning (Scotland) Act 1997.

Reason: For the purpose of clarity, to ensure that the development is implemented in accordance with the approved details.

2. No vehicular access to the site shall be taken from Barbour Road unless variation to this condition is agreed in writing with the Planning Authority.

Reason: In the interests of road safety and to prevent vehicular access/ egress onto a substandard road.

3. Notwithstanding condition 1, within three months of completion to base coat level of the estate road access serving the development, the private (in curtilage) vehicular driveway serving the development hereby approved shall be modified as necessary to achieve a gradient that shall not exceed 5% over the first 5 metres from the public road or 14% for the remainder unless consent to variation is obtained in writing from the Planning Authority.

Reason: In the interests of road safety.

4. The private driveway as modified pursuant to condition 3 shall be completed in a manner so as to prevent discharge of surface water onto the vehicular road access and adjacent land.

Reason: In the interests of road safety, to provide for the management and control of surface water run-off and to enable the development of adjoining land.

5. The private driveway as modified pursuant to condition 3 access shall comply with the Council’s Standard Detail SD 08/005A.

Reason: In order to provide a safe means of access to the public road.

6. Within three months of completion of the vehicular access estate road to base coat level, two car parking spaces shall be constructed and made available for use at the foot of the private driveway. These spaces shall remain available thereafter for the parking of vehicles within the site.

Reason: In order to provide a safe means of access to the public road and to provide useable parking space in circumstances where the driveway gradient would not facilitate access in all conditions.

7. Notwithstanding condition 1, within six months of the date of this permission full details of boundary treatment between the application site and adjoining land, along with a proposed timescale for implementation, shall be provided for the written approval of the Planning Authority. Thereafter the duly approved scheme shall be implemented in full in accordance with the approved timescale.

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Reason: To assist with the integration of the proposal with its surroundings in the interest of amenity.

8. The steel storage container hereby approved shall be used only for domestic storage purposes.

Reason: To prevent commercial or trade use of the steel storage container.

9. Notwithstanding condition 1, the external staircase proposed along the Southern elevation of the development is not approved.

Reason: In the interests of privacy and residential amenity.

NOTES TO APPLICANT

1. In order to comply with Section 27B(1) of the Town and Country Planning (Scotland) Act 1997 it is the responsibility of the developer to submit the attached ‘Notice of Completion’ to the Planning Authority specifying the date upon which the development was completed.

2. Full implementation of this planning permission will regularise a breach of planning control. Failure to implement this planning permission or abide by the planning conditions attached to the planning permission may result in Enforcement action by the Council as Planning Authority.

3. The development shall be served by a separate drainage system located within the vehicular road access serving the development to comply with planning permission 07/02291/DET and drawing details under Scottish Water technical approval dated 7/02/2006.

4. In the event of a requirement for retaining structures along the boundaries between the application site and development which is yet to take place on Plots 2 and 4,.separate planning permission will be required with application details indicating the siting, design, method of construction and external finish of such retaining walls.

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APPENDIX A – RELATIVE TO APPLICATION NUMBER: 12/00170/PP

PLANNING LAND USE AND POLICY ASSESSMENT

A. Settlement Strategy

In the ‘Argyll and Bute Local Plan’, the application site is located within the small town and village settlement zone of Kilcreggan. Policy STRAT DC1 of the ‘Argyll and Bute Structure Plan’ supports development in the small towns and villages serving a local community on appropriate infill, rounding-off and redevelopment sites. Policy LP ENV 1 of the ‘Argyll and Bute Local Plan’ sets out general safeguarding criteria for all development.

The application site is part of a previously allocated and consented housing development opportunity, and as such, the development is judged to be acceptable in terms of the settlement strategy.

The proposal is consistent with policy STRAT DC1 of the ‘Argyll and Bute Structure Plan’ 2002 and generally compliant with the policy LP ENV 1 and LP HOU 1 of the ‘Argyll and Bute Local Plan’, subject to the qualifications below.

B. Review of Planning History

The application site (Plot 3) forms part of a larger development site of 10 No house plots known as Kyle View. The site has a complex and protracted planning history. There have been several previous planning applications submitted to the Council relevant to the application site as reported below.

Residential planning permission was granted to Mr Hanley and Mr Quigley of HQ Developments Ltd for plots 1- 4 in 2000 (00/00240/DET).

Greenfinch Homes (Kilcreggan) Ltd later acquired plots 2 and 4 and also plots 5 -10, while plots 1 and 3 were acquired personally by Greenfinch Company Director Mr Michael Brady. The current applicant subsequently purchased Plot 3 from Mr Brady for the self-build development of a single dwelling house. Plot 1 was retained by Mr Brady, although this plot has also recently been purchased by the owner of Braeview; a residential property that lies immediately to the North of Kyle View.

Greenfinch obtained planning permission in 2006 (05/02413/DET) for the construction of an estate road and installation of services. This permission was commenced but has been superseded.

Full planning permission was granted to Greenfinch in 2007 (06/02478/DET) for the development of all plots 1-10 and associated internal estate roads and sewers . This permission has now expired.

A further planning permission was granted in 2008 (07/02291/DET) for the development of plots 2 and 4 -10 (excluding the privately owned plots). This permission has been implemented, supersedes 05/02413/DET, and remains live.

Preliminary operations commenced on the construction of the adoptable estate road to from access into the site pursuant to 05/02413/DET. Early house construction on Plots 4 and 5 has also commenced, but not progressed beyond ground floor slab. Building operations stalled when Greenfinch entered into administration in 2008. Companies House records confirm that Greenfinch has been dissolved following sale of the 8 plots under development to a private individual Mr A Watts.

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The applicants Mr and Mrs Daly, obtained full planning permission on 8 June 2006 to build an architect designed two-storey detached family home as a self-build project. The applicants obtained a building completion certificate 29.07.2010 and currently reside in the dwelling, although the development as constructed has not been implemented in accordance with the planning permission. An amendment to the Building Warrant was obtained (7.07.10); however, there was no associated amendment sought to the planning permission. The applicant claims that discussions did take place with planning officers at the time of construction and agreement to amend the consent had been reached however no record of this can be found. The dwelling constructed on site was recorded by Building Standards inspection to be nearing completion July 2009 and, according to Council tax records, the dwelling has now been occupied by the applicants since January 2010. The external works, driveway construction, and temporary access arrangements were not completed until earlier this year.

At present, the dwelling must be regarded as unauthorised development, firstly because a pre-commencement planning condition attached to the June 2006 permission was not discharged by the applicants, and secondly by virtue of material deviation from the permission granted. As the original planning permission was not implemented correctly it expired on 08.06.10 and the applicants have therefore been advised to obtain retrospective planning permission for the development as constructed. Previous retrospective applications made during 2012 were withdrawn in favour of this resubmission.

It should be noted that the applicants have installed infrastructure on land outside their ownership and application boundary. The works comprise formation of a temporary private vehicular access and installation of mains services including foul and surface water drainage. Some of these works are also assessed to be unauthorised under the planning permission for the development road that currently subsists. Although the access works and utilities have been constructed within the corridor of the estate road approved under planning permissions 05/02413/DET and 07/02291/DET, the road make up and construction do not appear to accord fully with either planning permission.

C. Applicants’ Supporting Statement

The applicants have provided written statements in support of the application which offers a history and explanation as to how and why the breach of planning control occurred, and claims that a planning official was aware of this at the time.

The applicant’s decision to proceed with the development in breach of conditions and construct services and provide a means of temporary vehicular access to Meikle Aiden Brae was taken in reaction to the insolvency of the original developer responsible for providing access and services to the consented house plot. The Roads Authority did not call up the road bond following the collapse of Greenfinch which has further complicated matters for the applicants. The applicants maintain that the Planning Service and other Council Departments were also aware of these events, but elected not to intervene.

The breach of planning control was not challenged until after Building Standards had already granted a habitation certificate and the applicants had moved into the new dwelling with their family.

The applicants have stated that they disagree with the survey information provided by the objectors. They consider the topographic survey to be inaccurate and that the objectors have overstated the problem.

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The applicants state that their own drawings and level information is predicated upon a survey commissioned November 2003.

Comment: The applicants were clearly placed in a very difficult position when Greenfinch entered into administration and perhaps unadvisedly took the initiative to move forward with the project in advance of installation of the vehicular access and services for the estate. It must also have been a significant setback when the road bond was not called up, apparently because the bond amount was regarded as inadequate to cover the outstanding work needed. The decision not to intervene and call up the bond has added to the applicants’ problems.

Although the applicants state that contact was previously made with the Helensburgh Area Office and the variations to building platform were held not to be material, they have not provided any corroboration for this. The Council has no record that the applicant ever reached agreement with the Planning Service to permit development to commence or progress in breach of planning conditions. Furthermore, no formal attempt was made to amend the planning permission until following receipt of a complaint and subsequent enforcement investigation.

The decision to issue a completion certificate was made under the Building Standards Regulations and was reached independently of the planning position as this is a separate regulatory process. Nevertheless, the decision to grant a habitation certificate in conflict with a planning condition prohibiting occupation of the dwelling prior to construction of the access road has allowed the applicants to reside in an unauthorised building for some years. The applicants state that their dwellinghouse was substantially complete early 2008. Council Tax records record occupation of the property and council tax payments since January 2010 although a completion certificate was not issued until July 2010. Failure challenge unauthorised occupation of the dwelling earlier has complicated a difficult situation, understandably irritated the objectors and must also be extremely stressful for the applicants.

However, ultimately it remains the responsibility of the applicants to abide by the terms of the required permissions. The decisions taken by the applicants first to proceed with construction, then depart from the approved design, construct a section of roadway without road construction consent and finally occupy the dwelling in breach of planning conditions were risky and ill advised.

As one of the applicants is a Council Employed Technical Officer with the Roads Service the potential serious consequences of failure to comply with the terms of a planning permission should have been plain. The applicants have never explained why they applied for amended Building Warrant but did not seek to amend the planning permission at the same time.

D. Location, Nature and Design of Proposed Development

(i) Development Setting

The site is steeply sloping and benefits from elevated views towards the Clyde. The elevated and sloping character of the land is not well suited to an off the shelf house design. A bespoke designed solution has been necessary to adapt the building form to suit site topography and conditions

(ii) Proposal

The application site forms part of a wider scheme to develop a small estate of 10

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detached homes. The plot is in separate ownership to the majority of the site and has been developed in advance of the development of other plots following the insolvency of the original estate developer.

The application under consideration seeks permission for the erection of a two- storey split level detached dwellinghouse, driveway and also the siting of a steel storage container, in order to regularise a breach of planning control arising from deviations from the approved plans for the dwelling.

(iii) Assessment

The house design is broadly the same as that approved for Plot 3 under a previous planning permission (04/02229/DET) granted in June 2006. There is a general presumption in favour of the residential development of the application site under Policy LP HOU 1 providing the development abides by the other Housing, Transport and Development Management policies of the Development Plan. The application seeks to regularise retrospectively development which has already been carried out. The development has been assessed against these policies in respect of the following material considerations:

• Location:

The application site is located at 3 Kyle View, Kilcreggan. The development plot bounds Barbour Rd which is a public carriageway. However, principal access is to be taken via Meikle Aiden Brae, currently a private road. The plot is bounded to the East by Barbour Road. The Northern, Western and Southern boundaries are presently undefined. The house plot is steeply sloping falling from East to West from Barbour Rd towards Meikle Aiden Brae.

• Siting and Layout :

The house has been constructed parallel with the other detached houses planned for the development. The application site is bounded by currently undeveloped but approved plots 2 and 4. The adjoining plots benefit from planning permission for a three storey split level design. The application site is accessed via an individual private driveway access.

The objectors have alleged that the setting out of the dwelling has encroached upon adjoining development land. The applicant disputes this and has exhibited a land certificate plan to confirm the actual title position as registered. The land register boundaries have been plotted on a land survey provided by the developer of the adjoining land. The proposed house is situated 1 metre from the mutual boundary with Plot 2. As the previous permission detailed a distance of 2 metres to boundary, this separation distance is reduced, but as far as can be ascertained there is no evidence of development encroachment onto adjacent titles. Any on- going dispute regarding the location of ownership boundaries or accuracy of the land certificate position would be a civil legal matter rather than a planning consideration. The Planning Authority is content with the applicant’s declarations and exhibition of a registered title.

The main public rooms are situated on the upper floor, designed to benefit from aspects westwards towards the Clyde. The bedroom accommodation is located on the ground floor. Due to the split-level design built into the hillside, most of the bedroom accommodation faces North and aspects towards the gable of plot 2 and fence that will form the mutual boundary between the plots.

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The applicant has confirmed that the development platform is higher than that previously approved in 2006. The applicant has supplied levels data suggesting an increase in height of 1.2 metres. The objectors have contended that the difference in platform height is actually around 2.5 metres. A full site survey has been commissioned by the objectors, but it does not appear to tie in exactly with the 2006 approval as the unaltered Barbour Road levels vary. The variation in height from the approved scheme is considered by officers to be in the order of 2m. In circumstances such as this where there is conflicting evidence regarding levels the Council could choose to commission its own independent survey. However, the dispute of just over 1m difference in a house that is already built and in the context of adjacent undeveloped plots does not warrant an independent review in this case. If the conflicting measurements were greater or the site was in a more sensitive location such a review may have assisted the process.

The developers of the land adjoining the application site have not yet furnished the Planning Service with design drawings fully detailing the dimensions, construction or appearance of boundary treatment, retaining walls or other lateral support structures. This information is still required in order to comply with the planning conditions of their own consent. However, an indicative section prepared by consultant engineers has been provided in support of the objection and this drawing suggests that significant retaining walls may now be required to avoid undermining the application site. Given relatively limited working room available between the plots the design of the lateral retaining walls necessary is likely to be in the form of a reinforced concrete wall between 2.5 – 3.0 metres high. As the approved design platform of Plots 2 (84.8m) and 4 (85.0m) is well below the proposed finished ground floor level of Plot 3 (87.6m) additional drainage may also be necessary to accept run-off from the higher ground. The presence of hard rock in the vicinity may however mitigate the need for significant support or retaining features.

The indicative section that forms part of Mr Watt’s submissions illustrates the difference in relative ground levels between plots 2, 3 and 4 as viewed from the internal development road. The sections also helpfully show the difference in roof ridge levels between the proposed houses and also relative to Barbour Road. The visual relationship between the plots 2, 3 and 4 is assessed to be acceptable although the design and appearance of any retention required between the three plots will require careful consideration as detailed proposals for the adjoining property emerge.

Although the finished ground and ridge levels are higher than previously approved (of the order of 2m) the finished ridge height of the building is actually not materially higher than the houses with planning permission situated either side of the application site, given that these are approved at three storey in height. The height of the roof ridge relative to Barbour Road therefore presents no real difficulties in planning terms, and can be accepted. The platform of the applicants’ house was always intended to be at a higher level than the adjacent plots and was previously approved with such an arrangement in place. Because of the differentials between the approved plans and actual platform level of the house, the adjacent landowner may require some adjustment within the adjacent development to accommodate the altered levels. However, on current information this will not be such as to prejudice the ability to implement the remainder of the consented development.

It is not therefore considered that the positioning of the dwelling relative to that previously consented is unacceptable, either in terms of the relationship it would have with other consented dwellings, the practicalities of implementing those consents, nor with the relationship between the dwelling and the wider locality.

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• Density:

The development has private open space of 176m 2 and the footprint of the dwelling occupies 24% of the curtilage. As such it meets development plan requirements.

• Access:

The development is currently accessed via a temporary means of vehicular access connecting the application site with Meikle Aiden Brae. There is no road construction consent for these operations.

Much of this temporary access is now bitumen surfaced and is of reasonable standard, albeit this is presented as a temporary measure pending construction of the development road. The dwelling is accessed by a steep block paved private driveway that currently connects with a hardcore surface for a few metres before connection is made to bitumen surface and Meikle Aiden Brae. The driveway is also coterminous with the shared access proposed to serve Plots 1 and 2. When the new estate road is completed, the plot driveway access would continue to directly connect to the new public road.

The adjoining development land has recently been purchased and a new application for road construction consent (RCC) has been submitted to the Council but has not yet been approved. It is anticipated that the RCC will be granted in time and there is therefore a good prospect that the development of the adjoining plots will proceed. In these circumstances, there remains a reasonable expectation that beyond the current interim arrangement the application site and the adjoining house plots will, in time, be served by a means of access commensurate with the scale of development and consistent with Local Plan Policy LP TRAN 3 and LP TRAN 4.

The previous permissions have been subject to conditions drafted to restrict occupation of the approved houses until the estate road has been completed, reflecting the overall presumption that an appropriate means of access should precede the completion of the various plots. The planning condition still applies to the adjoining development plots and fulfils a proper planning purpose. Without the use of such planning conditions there would be the prospect of a number of houses being built and occupied without an acceptable means of vehicular access, leading to a chaotic implementation which would be undesirable and unsafe.

The applicants have been prompted to devise an independent makeshift form of access by the insolvency of the original estate developer. The means of access which has been formed to serve Plot 3 has therefore to be regarded as being sub- standard in terms of make-up and not in compliance with the access standards required to be met in order satisfy to Local Plan Policies LP ENV 19, LP TRAN 3 and LP TRAN 4. However, in the circumstances, it can be regarded as a temporary means of access pending completion of the internal development road as part of the implementation of the other plots within the estate. As a means of access to this single plot the Roads Engineer considers that, as an interim arrangement, it is satisfactory and conditions can be attached to secure improvement at the appropriate time.

The steep internal (in curtilage) private driveway arrangement is not adequate as a permanent solution. Using the applicants’ stated levels, parts of the current driveway exceed a gradient of 18% or 1 in 5.5.

It is assessed that the development does not prejudice the ability to implement the adjoining development; however planning conditions are necessary to ensure that

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the application site and adjoining land is developed in a coordinated and cohesive manner.

As a means of access to serve one dwelling the current arrangements probably serve well enough, however, some modification may yet be needed to integrate the development properly with the adjoining access road and adjacent private driveway serving plots 1 and 2.

In the circumstances of the case the access arrangements may be accepted as a minor ‘departure’ to the provisions of the development plan. Conditions are proposed to bring about improvements to the driveway and to ensure an acceptable degree of tie-in with the development road. This shall include provision of parking spaces at the front (west) of the plot where the gradient is less steep and also provision of suitable drainage arrangements. These spaces at the foot of the driveway would ensure that parking is available on occasions when the steeper than usual driveway is not due to ice or snow.

• Services / Infrastructure

The applicant’s entitlement to enter onto the adjoining property for the purposes of laying-out and constructing the means of temporary access and to lay services has been disputed by the objector. Implementation of the planning permission for the internal development road was commenced by Greenfinch (now in liquidation). Although the current landowners and applicant are still locked in dispute about these matters, this is considered to be a civil dispute and is not a valid planning consideration. However, the application can only be considered acceptable in planning terms if it is determined that a suitable means of access provision and servicing has been provided.

The mains services to the development are situated under the route of the internal development road. The site benefits from Scottish Water Technical Approval and the applicant states that the drainage and water supply services have been installed in accordance with planning permission for the access road and the technical approval. The applicant has also made connection to an electricity supply.

The objectors have also expressed concerns about the applicant’s drainage and servicing arrangements but no objections have been lodged by Scottish Water or any other service providers in this case.

As the development appears to be adequately serviced with mains drainage, a public water supply and electricity, the application is assessed to as being acceptable in this regard, although it is conceivable that any service infrastructure installed by the applicants (but regarded by the new developers as incompatible with the wider development) may still require to be rerouted or modified with the consent of the service providers.

• Design:

The proposed dwelling house has a different design appearance to the other houses previously approved under the Greenfinch planning permissions, but is very similar to the dwelling approved on this plot in 2006 under 04/02229/DET.

The roof is pitched and clad in slate. Exterior walls are finished in a mixture of buff facing brick and white roughcast. Windows, fascia and rainwater goods and external doors are finished in white UPVC. This mirrors the previous permission. The roof of the house now incorporates solar panels and a large external flue is attached to the north elevation to serve a solid fuel heating system. These aspects are judged to be acceptable.

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Because the application site is steeply sloping, the use of a split level house design is supported as being appropriate to the characteristics of the site. Local Plan Policy LP HOU 3 requires that consideration is given inter alia to the access requirements of disabled and special needs groups when new housing development is assessed at the planning stages. Due to site topography, compounded by the level at which the dwelling has been constructed, the development does not comply fully with policy LP HOU 3 as the permanent car parking spaces are to be formed at a lower level within the plot than the house itself. It is acknowledged that site topography does not always make it practicable to provide parking spaces immediately adjacent to a building on a sloping site. To this extent the design conflicts with Policy LP HOU 3.

The objectors have stated that retaining walls will now be required between the application site and the adjoining plots 2 and 4 imposing a design, practical and cost constraint upon the developer of these subsequent plots. The construction of retaining walls and other forms of lateral support is to be expected on a steeply sloping site and would require separate planning permission. The responsibility for construction and on-going maintenance of any retaining walls is a matter that would need resolution between the respective parties. The Planning Department has already held pre-application meetings with the objector/adjacent developer who may wish to alter the existing consent, giving cognisance of the current market conditions and demand, so this aspect may be captured in future re-designs.

• Under-building, excavation and storage container

Due to the split level design and additional excavation to the rear elevation of the house, the underbuilding is exposed rather than backfilled. There is now a sizeable void between the house and excavated slope that has not been backfilled. Instead the void has been spanned by an elevated timber deck. The space beneath the decking is now occupied by the steel shipping container which is now being used for the storage of biomass wood fuel.

The Local Plan design guidance discourages large un-fenestrated under-building and states that this can be detrimental to the appearance of buildings and inappropriate in most settings. The Planning Service would also normally express misgivings about the permanent siting of a steel shipping container in a residential environment and these concerns also apply here.

However, in this case the underbuilding and container very well screened by the topography, by re-grading works, the deck above and timber boundary fencing. Although an unconventional use of an otherwise dead space that should normally be backfilled, it is assessed that the siting of the container in this location is unlikely to be harmful to the residential amenity of the wider development. The container is recessed below the deck and the top of the container is level with the top of the under-build to the dwelling. Only the doors are visible at close quarters within the applicant’s site. It is almost impossible to see the container from outside of the plot. The boundary fences will also effectively screen the container between this plot and plot 2. The rear garden ground is steeply sloping and is not well suited to a more conventional wood or garden shed outbuilding, so the container serves a reasonable purpose and is proportionate in scale, provided it remains ancillary to the domestic use of the dwellinghouse.

Accordingly, in the particular circumstances of the case, the siting of the underbuilding and container is considered acceptable in terms of policies LP ENV 1 and LP ENV 19. A planning condition is also recommended to prevent the container from being used for commercial purposes.

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• Orientation:

The development has to be assessed in terms of the acceptability of its relationship to the consented housing on the adjoining land. The house has most of the bedroom accommodation on the ground floor. Bedrooms 1, 2 and 3 have North facing aspects which will be towards the gable of the dwelling proposed for Plot 2, at a distance of around 4 metres. This fails to meet the current Development Plan standard of 12 metres between habitable rooms and elevations without facing windows. However, the previously approved scheme had near identical separation distances (these having only been prescribed by way of the current local plan in 2009).

Although this relationship is unlikely to give rise to any consequences in terms of loss of privacy, it is assessed that the day lighting of the bedroom accommodation will be compromised when Plot 2 is constructed.

The development in this respect would not fully satisfy Local Plan Policy LP ENV 19 and Appendix A of the Local Plan, or the daylighting standards the Council normally applies (BRE Daylighting Standards 1991). Although the extent of overshadowing and poor aspect involved is undesirable, it is the applicant who will be required to live with a lesser standard of amenity and daylight than would have been achieved had separation met with normal development plan requirements. It is also similar separation distance to that consented by the 2006 scheme (prior to the current local plan separation standards coming into effect). Since there would be no loss of privacy to development which has yet to take place on the adjacent plot, this aspect of the development can be accepted as it would not compromise the amenity of future development.

• External Stair

The applicants seek to introduce an external stair along the Southern elevation rising 3 metres from ground level to deck level. The staircase would introduce a platform above the level of the boundary fencing where it would overlook Plot 4 on the South elevation. Whilst it might be possible to mitigate the impact on the adjoining property, there is inadequate information available to officers to allow a full assessment to be made.

Visually the stairwell is assessed likely to be prominent, particularly given the difference in levels which there are now between Plots 3 and 4. Accordingly this element is considered to present a residential amenity conflict with prospective development to take place on Plot 4 and accordingly a condition is recommended to exclude construction of the proposed staircase from any retrospective permission.

E. Conclusion

Whilst some aspects of this retrospective application do not satisfy development plan policy and design guidelines, their consequences, other than for the occupiers of the property in question, are limited and importantly they do not prejudice the ability to develop the remainder of the estate, either in conformity with the previous permission, or with some minor adjustment having regard to the circumstances of this completed plot.

It is important to bear in mind that the applicants and their family have resided in the

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property for some time. Adherence with the previously consented development could not be secured in full other than by demolition and rebuilding, and such a prospect is not reasonably proportionate to the extent of the deviations from the approval.

There have been no objections received from Scottish Water or Building Standards. The Roads Department have also raised no objections on the basis the current access arrangements are acceptable as a temporary solution until the adoptable estate road is built.

New parking places should be created at the front of the plot once the road is in place to ensure satisfactory access and parking arrangements. Although currently deficient in respect of site access and driveway gradient, most of the problems identified can be overcome eventually when the internal development road is constructed and remedial operations are undertaken to achieve the necessary integration of levels and service connections.

Having regard to the circumstances of the case, the extent to which the development plan requirements are not satisfied in full, and the other material considerations it is recommended that Planning Permission be granted as a ‘minor departure’ and subject to the conditions detailed.

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This page is intentionally left blank Page 27 Agenda Item 8

Argyll and Bute Council Development and Infrastructure

Delegated or Committee Planning Application Report and Report of Handling as required by Schedule 2 of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008 relative to applications for Planning Permission or Planning Permission in Principle ______

Reference No: 13/02075/PP

Planning Hierarchy: Local

Applicant: Mr Seumas MacArthur

Proposal: Erection of flagpole (retrospective)

Site Address: Foreshore, Opposite 7 Shore Street, Portnahaven, Isle of Islay ______

SUPPLEMENTARY REPORT No. 1 A. SUMMARY

The purpose of this report is to update Members on a further representation which has been received since completion of the original report circulated with the agenda papers.

B. LATE REPRESENTATIONS

The following third party representation has been received subsequent to the submission of the Head of Planning & Regulatory Services report of handling dated 29 th November 2013.

Support for the Proposal:

• Mr Neil Woodrow, Caladh Sona, Jamieson Street, Bowmore, Isle of Islay (received 06.12.13)

Mr Woodrow’s late representation refers to the flagpole being an acceptable domestic structure erected within the applicant’s garden ground. This is incorrect as it is sited on the foreshore, opposite the applicant’s house.

The late submission brings the total of parties making representations in support of the proposal to 33.

D. RECOMMENDATION

The late representation has been taken into account but does not change the previous recommendation to refuse planning permission.

Author of Report: Kim MacKay Date: 11 th December 2013 Reviewing Officer: Richard Kerr Date: 11 th December 2013

Angus Gilmour Head of Planning and Regulatory Services Page 28

This page is intentionally left blank Page 29 Agenda Item 13

Argyll and Bute Council Development and Infrastructure ______

Reference No: 13/02270/S36

Proposal: Proposed Tidal Array – Consultation under S36 of the Electricity (Scotland) Act 1989

Site Address: West Islay Tidal Energy Park, 6Km SW of Islay ______

A. SUMMARY

This is a consultation from Marine Scotland under Section 36 of the Electricity Act 1989 and a Marine Licence under Part 4 of the Marine (Scotland) Act 2010 to construct and operate a tidal energy park. The application is accompanied by an Environmental Statement. The report recommends views to be conveyed to Marine Scotland on behalf of the Council as Planning Authority.

B. DETAILS OF THE PROPOSAL

Overview:

The project consists of the proposed installation of 30MW of Tidal Energy Convertors and associated infrastructure, including the export cables to landfall on Islay. The proposed array of tidal energy devices will cover an area of approximately 2.28sqkm located approximately 6km (at is closest point) from Portnahaven on the south-west tip of Islay. The proposed landfall for the associated electricity export cable will located adjacent to Kintra Farm which lies on the north-west coast of the Oa, to the west of Port Ellen.

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The scope of the application includes:

• Tidal Energy Convertors (TECs); • Electrical Marshalling or collection hub; • Inter-array Cabling; and • Export Cable to the high water mark at Kintra on Islay (the western cable).

Excluded from the application, but necessary to the implementation of the development, are the following elements:

• Onshore cabling (overhead or underground); • Substation and cable connection infrastructure; • Sub-sea Cable from Islay to Kintyre (the eastern cable); and • Service/monitoring facilities.

“Project Design Envelope”:

The development would consist of between 15 and 30 Tidal Energy Convertors (TECs) delivering a maximum installed capacity of 30MW. Although tidal energy development is not new, the technology intended for wide scale extraction of energy from ocean tidal streams and conversion to electricity is. There is a wide design divergence and rapid technological advancement amongst manufacturers. In addition, there is considerable fluidity in the industry with major companies taking over smaller technology suppliers. Full scale devices have only been deployed recently with information from these deployments, at the European Marine Energy Centre (EMEC) and elsewhere being continually fed back into the on-going product and deployment development.

In order to take advantage of this continuous, and often stepped, improvement of the technology there is a requirement for flexibility in the consenting process. The submitted Environmental Impact Assessment has been completed, whilst there remains a degree of uncertainty relating to installation techniques, foundation types, turbine size, exact location and specific technology design. The challenge for the EIA process is to ensure all of the possible impacts are considered to accommodate this uncertainty and this is accomplished by defining a “Project Design Envelope” (sometimes also referred to as a “Rochdale Envelop” in reference to the case law which established the procedural acceptability of modelling uncertainty in the planning/EIA process within defined parameters). This approach allows a meaningful EIA to be undertaken by defining a set of “worst-case” parameters that would accommodate a range of devices and thereby enabling decision makers to consider the acceptability of a project where many of the details yet remain to be finalised or might be subject to significant evolution prior to their implementation.

For the purpose of undertaking the EIA and definition of the “Project Design Envelope” two specific models of TEC with markedly different design and deployment characteristics have been used a reference.

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These are: i) the Siemens Marine Current Turbines (MCT) SeaGen S Mark 2 which is a twin rotor 2MW machine which would be supported from a surface penetrating column affixed to the seabed, and ii) the Alstom Tidal Generation Ltd (TGL) which is a 1MW single rotor system which would be affixed to the seabed completely submerged. The EIA also considers the use of alternative floating platforms as a reference for the design envelope. Whilst all of the identified devices would utilise a rotor and turbine design the support structures are fundamentally different.

The turbines are intended to be deployed in rows perpendicular to the most energetic ebb and flood currents. For Islay these primary flows are orientated approximately 160 and 340 degrees from North respectively. Two indicative layouts include one option for 15 Seagen S turbines and another for 30 TGL turbines. The exact turbine locations would be confirmed following detailed site geotechnical survey, turbine selection, resource assessment and foundation design.

The submission does not identify the exact nature of the inter-array cabling and states that this will ultimately be dependent on the TEC selection. It is however considered likely that the TECs will be clustered in to as many as three groups and either individually connected to a localised marshalling unit before export to shore, or connected “daisy chain” fashion. The marshalling point could be either a dedicated seabed mounted unit or floating unit, or in the case of Seagen S units being selected then it could be within the TEC structure itself. The cable dimensions will depend ultimately on the load which it is required to carry and this will be dependent on layout design. Approximately 20km of inter-array cabling will be installed directly into the rock seabed and configured to utilise localised fissures where possible and to be laid in parallel with the tidal flow where this is not possible. Where necessary the cables

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will be weighed down by the use of cable protectors, concrete mattresses or rock bags.

The export cabling will comprise one or more double wire armoured sub-sea cables per defined TEC cluster connected back to a landfall site at Kintra on Islay with an expected export voltage of 33kV. Higher voltage options are also being considered in order to reduce transmission losses. Similar techniques as those to be employed for the inter-array cables will be employed for the installation of the export cable(s) although further east there is potential for self-burial. The ES considers a worst case scenario of 100% of the export cable covered with ballast to a width of 4m either side of the cable.

Due to the characteristics of the chosen landfall location at Kintra, it is anticipated that the cable will be laid in a trench approximately 2m deep through the surf zone and across the beach to a safe distance beyond the back of the beach; the trench will be backfilled and restored to its original condition to ensure that the cable is not visible and safely away from human contact.

Terrestrial Development and Grid Connection

The ES confirms that the project currently has a 30MW connection agreement for a connection at the Carradale sub-station on Kintyre and the project is proceeding on that basis. When constructed the mainland grid connection to Carradale would provide both export and import capability thereby improving the energy security for Islay as a second, alternative connection route for the island.

The developer also expresses an awareness of the potential of providing the electricity generated by the tidal turbines to Islay users such as Distilleries to replace their current dependence on heavy fuel oil as well as their existing electrical requirements.

It is however noted, that the proposal does not include the detail of any terrestrial development required for a grid connection on either Islay or Kintyre in the form of power transmission lines, sub-station, convertor stations nor does the proposal include details of the proposed ‘eastern export cable’ which would provide a subsea grid connection between Islay and Kintyre.

C. POLICY CONTEXT

Argyll and Bute Renewable Energy Action Plan (REAP) – Powering Scotland’s Future sets out a vision that “Argyll and Bute will be at the heart of renewable energy development in Scotland by taking full advantage of its unique and significant mix of indigenous renewable resources and maximising the opportunities for sustainable economic growth for the benefit of its communities and Scotland”.

Argyll and Bute Economic Action Development Plan (EDAP) 2010 – 2013 recognises the potential in as yet untapped sources of renewable energy to create higher value jobs and incomes, to attract private and public inward investment, to result in

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sustainable economic benefits in more peripheral, remote and fragile communities, to generate community benefit funds that promote local development, and economic benefits to businesses and households through generation and consumption of renewable energy. The EDAP also recognises that tourism and the food and drink industry are of vital importance to the economy of Argyll and Bute and stresses the requirement to find a balance between the competing needs of sustainable economic assets.

The provisions of policy STRAT RE 2 in the ‘Argyll and Bute Structure Plan’ 2002 and policy LP REN 3 of the ‘Argyll and Bute Local Plan’ 2009 set out general support for other (non-wind) forms of renewable energy and related development. Support is expressed for forms, scales and locations where it will promote the aim of sustainable development, where the servicing, electricity distribution and access impacts are acceptable, and all other material considerations including the Council’s international and national obligations are satisfactorily addressed.

The provisions of STRAT DC 7 in the Structure Plan and policies LP ENV 1 – 6 set out the Council’s position in respect to nature conservation and the protection of habitats and species. In summary these set out a general presumption against development which would be likely to have a significant adverse impact upon nature conservation interests.

The development is located to the south west of and will be visible from within the West Islay Coast Area of Panoramic Quality; the provisions of policies STRAT DC 8 and LP ENV 10 would seek to resist development which has a significant adverse impact on landscape/seascape character unless such effects are clearly outweighed by social and economic benefits of National or regional importance.

The development will be visible from within the Portnahaven/Port Wemyss Conservation Area; the provisions of STRAT DC 9 and LP ENV 14 set out a presumption against development which does not preserve or enhance the character or appearance of a conservation area or its setting.

D. EIA LEGISLATVE CONSIDERATIONS

As noted in B. above, the submitted EIA does not include any detail of proposed terrestrial development (which will include overhead lines, substation, convertor station and possible an onshore maintenance facility) or the ‘eastern’ subsea export cable. It is considered that these associated works are inextricably linked to the main project and as such gives rise to concern that their omission from the ES contravenes European Directive 85/337/EEC.

The European Directive states that where it appears that associated works are inextricably linked to the main works, their approval and initiation should be considered as an initiation of the project. Thus, where the main project requires an EIA, the approval and/or physical execution of the associated works prior to undertaking an EIA would constitute a breach of the EIA Directive.

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Interpretation of the European Directive as published on the Scottish Government’s website confirms that where the associated works are deemed to be an integral part of the main project, the associated works should only be approved following the EIA process for the project as a whole.

The current submission does not include identification or assessment of the environmental effects of all associated works which are integral to the project, and as such, it is recommended that the Council should raise objection in respect of the omission of terrestrial elements of the project in relation to the electrical transmission infrastructure which will be required to provide an electrical grid connection, without which the project cannot operate.

E. POTENTIAL IMPACTS & ISSUES TO INCLUDE IN THE CONSULTATION RESPONSE TO MARINE SCOTLAND

Marine Physical Environment and Coastal Processes:

The ES identifies that the proposal has the potential to impact upon three elements of the marine physical environment and coastal processes, namely:

• Hydrodynamic regime (water flow); • Sediments and sedimentary processes; and • Geological and geomorphological formations.

Potential effects to the hydrodynamic regime, based upon data available from other developments, is expected to be localised to the turbine foundations and the cable routes. It is also concluded that the development is unlikely to have any significant effects on sedimentary processes given a general absence of mobile sediment within the development site; any significant effects upon currents, waves and sediment distribution would be restricted to a distance of some 100m from foundations and within some 50m of cable routes.

The Council’s Marine & Coastal Development Manager has not raised concern in respect of these matters.

Mammals and Basking Sharks:

The proposed turbine array is predicted to have a Negligible or Minor effect on marine mammals and basking sharks with only the assessment of collision risk resulting in a conclusion of Moderate. The ES proposes that an Environmental Management Plan (EMaP) will be developed with the objective of detecting any change attributable to the development.

Underwater sound at sufficiently high levels, particularly where there is repeated high level exposure, has the potential to cause hearing impairment. Operational underwater sound arising from the development will produce low level but continuous noise; the Council’s Biodiversity Officer has commented that the acoustic modelling

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which has been carried out would indicate that despite the sensitivity of marine animals to noise they do have the capacity to avoid, adapt to and accommodate and recover, therefore sensitivity is rated as low. Construction noise activity has been based upon a “worst case” scenario of 124 drilled foundation piles to a depth of 5m being required. Drilled piling does not involve a hammer impact and as such the acoustic noise output is significantly lower than conventional piling. The primary noise sources during construction would be the drilling noise generated by the action of the drill bit and noise arising from vessels. The ES predicts that there will not be any lethal or sub-lethal injury caused to marine mammals from noise emitted during construction activities.

The Council’s Biodiversity Officer has studied the Assessment of Significance pertaining to the relevant species interest recorded in the area of the development and notes that the survey work identified a variety of marine and coastal species and habitats, and measured their tolerance to a predicted impact to which they are exposed and their ability to recover. The site is not deemed to be a hotspot for these species and considering their low abundance in the area it is considered to be a minor impact that is variable during construction, operation and decommissioning phases. Some concern has been raised that as the turbine arrangement, type and number within the site envelop has yet to be determined that the applicant should be required to provide further information in seeking the detailed approval of these elements to demonstrate that the final design of the Project will result in least impact on both habitats and marine species. It is anticipated that if S36 consent were to be granted based upon the current submission that Marine Scotland would impose conditions requiring the submission and approval of the finalised project design in advance of its implementation.

It is recommended that Marine Scotland are requested to undertake further consultation with the Council upon submission of any such further detail by the applicant prior to the approval of the finalised project design in respect of turbine type, arrangement and number, and any supporting updated environmental information which accompanies such a submission.

Underwater sound at sufficiently high levels, particularly where there is repeated high level exposure, has the potential to cause hearing impairment. Operational underwater sound arising from the development will produce low level but continuous noise; the Council’s Biodiversity Officer has commented that the acoustic modelling which has been carried out would indicate that despite the sensitivity of marine animals to noise they do have the capacity to avoid, adapt to and accommodate and recover, therefore sensitivity is rated as low. Construction noise activity has been based upon a “worst case” scenario of 124 drilled foundation piles to a depth of 5m being required. Drilled piling does not involve a hammer impact and as such the acoustic noise output is significantly lower than conventional piling. The primary noise sources during construction would be the drilling noise generated by the action of the drill bit and noise arising from vessels. The ES predicts that there will not be any lethal or sub-lethal injury caused to marine mammals from noise emitted during construction activities.

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Benthic Ecology:

The ES advises that the habitats in the proposed tidal array envelope were surveyed to reveal mixed sediment habitats (Circallitoral and Boulder communities) and along the western cable route (a mosaic of fine muddy and coarse sands) with their sensitivity based on the construction of the foundations (drilling, leaking of drill fluid and grouting, abrasion of the seabed and slack chains and oil from turbines), mooring system and inter-array cabling. In order to mitigate any impact, Industry Guidelines will be followed by a Survey Monitoring Plan. The ES identifies that the biotopes within the Development Area are represented elsewhere on the west coast and the hard structures to be installed will facilitate re-colonisation. The overall conclusion in terms of habitats is the impact will not be significant.

The Council’s Biodiversity Officer has advised that the effects of silt deposition have shown that some species have a very low sensitivity due to various adaptive qualities but notes that a pre-cautionary principle has been applied reflecting a sensitivity rate of Medium risk.

It is suggested that the Environmental Monitoring Programme should reflect this with the inclusion of silt monitoring.

Exclusion of the eastern export route (Islay – Kintyre) from the ES precludes consideration of the effects upon benthic ecology from the Project as a whole.

Otters:

The Council’s Biodiversity Officer has confirmed that the Otter survey was carried out in optimum conditions and that some activity was recorded on the survey site. This European Protected species is deemed to be highly sensitive and it is indicated in the ES that further survey work would be undertaken prior to commencement of construction.

The Council’s Biodiversity Officer has noted that the Otter survey work does not take into account the potential impacts upon Otter from terrestrial elements of the Project which have been omitted from the ES. Aside from this issue, the Biodiversity Officer is supportive of the intended approach to mitigation of the impact of the development upon Otter.

Birds:

The Birds baseline survey work which has informed the ES was undertaken over a period of two years. The study has covered the impact on bird populations within the Special Protection Areas (SPAs) near the Development Area. Cumulatively, impact on bird species during the installation, operation of the array and decommissioning phases is deemed to be of Negligible or Minor effect.

It is, however, noted that both Islay and Kintyre are subject to extensive ornithological designations and sensitivities. In this respect concern is raised that exclusion of

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terrestrial elements associated with the Project from the ES precludes consideration of the potential effects of the development as a whole upon ornithological interests.

Natural Fish:

The baseline report on natural fish within the ES has been produced from a variety of sources and has included beam trawl survey work, video surveys and discussions with local fishermen on Islay and Kintyre.

The study of the natural fish resource concludes that the Tidal Array and western export cable route are considered to have a minor impact due to the low number and variety of fish species, including important fish species, found on the site. The loss of nursery grounds is also negligible. The main threats to natural fish within the Development Area is the accumulation of pollutants during construction and decommissioning; this is deemed unlikely. However the Council’s Biodiversity Officer has suggested that the developer be required to undertake a random sampling of shell fish, in order to assess the presence of pollutants, as part of any Environmental Monitoring Programme to be carried out.

Exclusion of the eastern export route (Islay – Kintyre) from the ES precludes consideration of the effects upon benthic ecology from the Project as a whole

Commercial Fisheries

The ES advises that consultation has been undertaken, and will continue, with the Scottish Fishermen’s Federation, Clyde Fishermen’s Association, Campbeltown District Fisheries Office, Marine Scotland and individual fishermen; including fisheries stakeholders meetings which have been held in Campbeltown and on Islay.

The principal species targeted within the vicinity of the Project (tidal array and western export cable route) are Edible Crab, Lobster, King Scallop, and Velvet Crab.

It is identified that exclusion zones of 50m are likely to be required around each turbine as a minimum, although due to safety considerations is considered that the array site will effectively be closed to fishing activities. As commercial fishing activity within the Tidal Site has historically been low the impacts were not assessed as significant.

Impacts are identified for the local creel, Scallop and Nephrops fisheries during construction and operational phases. These were assessed primarily in relation to the surface laid western export cable. These are assessed at worst to be Moderate, and considered capable of being mitigated to a residual effect of minor significance by burial/covering of the cable and the addition of the turbines and cable route to the Kingfisher Information System to address safety issues.

The Council’s Marine & Coastal Development Manager notes that the ES omits any assessment of the potential effects of the eastern export route (Islay –

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Kintyre) upon commercial fishing interests within these important fishing grounds.

Due to the identification of impacts relating to the loss or restricted access to creel and scallop fishing grounds the developer has proposed that a working group is established with key fisheries to establish a forum for on-going engagement with the fishing industry. The Council’s Marine & Coastal Development Manager is supportive of the proposed working group arrangement and notes that this group could have a role in developing and agreeing relevant final mitigation in the proposed Environmental Management Plan, Environmental Monitoring Programme and Construction Method Statement for the Project.

Archaeology:

The ES establishes that there are no proposed Historic Marine Protected Areas, Designated Wrecks or other cultural heritage assets with legal designations located within the Tidal Array or the western cable route areas. The archaeological potential of the Offshore Study Area is considered to be Low to Moderate; the proposals include for appropriate archaeological mitigation in the that sites of interest are discovered.

Exclusion of the eastern cable route (Islay – Kintyre) from the ES precludes consideration of the effects upon marine archaeology from the Project as a whole.

Shipping and Navigation:

The submission includes a Navigational and Safety Risk Assessment (NSRA) which provides a detailed description of the existing marine environment for both commercial and military shipping within the vicinity of the Project.

The NSRA has concluded the following with respect to commercial shipping and navigation:

• That the risks to navigation from the cable laying and device installation operations are considered to be “Tolerable with Monitoring” subject to application of identified risk controls. • The risk to navigation arising from the proposed clearance depths over the rotors of MCT and TGL turbine types can be considered as “Tolerable with Monitoring” subject to application of identified risk controls. • The risk from vessels drifting into the site is considered as sufficiently low to be considered as “Tolerable with Monitoring” subject to application of identified risk controls. • That the Development Area should be chartered appropriately as a “Marine Limit in General, implying physical obstructions”. This would not exclude navigation with, along with appropriate annotation showing that limiting depths apply to provide adequate information on the hazards presented by

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the Project. The individual devices would require to be charted appropriately subject to the limitations of chart scale. • That the proposal poses a risk to creeling vessels operating off the Rinns die to the potential for gear entanglement when recovering or laying static gear. This would require the imposition of a “No Fishing” area coincident with the charting of the area. • The western export cable presents a hazard to scallop dredging activities between the tidal array and Kintra. • The the scale and nature of the risks requires the development of a Safety Management System of which and ERCoP is an integral part.

The Council’s Marine & Coastal Development Manager is supportive of the recommendations in the ES outlined for mitigation of risks to shipping and navigation; However, exclusion of the eastern cable route (Islay – Kintyre) from the ES precludes consideration of the effects upon shipping and navigation from the Project as a whole.

Landscape and Seascape:

The submitted ES contains includes assessment of the impact of the development upon seascape/landscape character; designated landscapes; and the views and visual amenity experienced by local residents, users of transport routes, and tourists/visitors, and includes visualisations of the development from Portnahaven/Port Wemyss and its surrounds.

The Seascape, Landscape and Visual Impact Assessment (SLVIA) has been undertaken based upon a ‘worst case’ option for the tidal offshore site comprising 15 surface-piercing tidal energy convertors (TECs). Based upon this scenario each of the TECs would comprise a central tower with a moving turbine assembly mounted on a cross beam and connected to the tower by a collar. Each tower would be pinned to the seabed with a tri/quad-ruped foundation. The central tower would house the transformer and power conditioning equipment with a pod enclosure on top of the tower would house other electrical and control equipment. During operation the central tower would always be visible above the surface of the sea; the maximum height of this structure would be some 21m above sea-level at low tide. The turbine assembly would primarily be located below the sea (some 3.5m below the low tide level) but would be capable of being raised above the water during routine maintenance procedures. The developer notes that in practice it may well be the case that fewer than 15 surface penetrating turbines are installed with utilisation of turbines that a permanently located below the surface or, a combination of the two.

The proposed array will be located some 6km from the south west coast of Islay and the development will only be visible if the surface piercing turbines are used. The SLVIA which has been undertaken is based upon a Study Area with a 15km radius around the proposed development and concludes that:

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The proposed Project would result in indirect effects upon seascape character across the Study Area. The most prominent effects on local seascape character would be associated with views from Rubha na Faing to Rinns Point Seascape Character unit (SCU) sub type and the Lossit Bay SCY sub type, although effects would not be significant. Surface piercing turbines would also be visible from other local-level SCU sub types and Rocky Moorland Landscape Character Type (LCT), albeit this would represent a distant background feature resulting in a Negligible magnitude of change. Overall, there would be no significant effects to seascape / landscape character.

The West Islay Coast Coast Areas of Panoramic Quality (APQ) is the only landscape designation within the 15km Study Area and is located 4.8km from the development at its closest point (measured from Orsay island). Distant views of the development would be intermittent across the southern part of the APQ but would not have any significant effect upon landscape character.

A surface piercing development would be visible from the settlements of Portnahaven and Port Wemyss; the visual effects experiencd by residents would vary based upon localised screening and the orientation of properties. Residents with open, unobstructed views of the proposed development (including a limited number of properties on Queen Street, Portnhaven facing SW) would experience a Slight magnitude of change and a Moderate level of effect. The majority of residents within the settlements would experience lesser or no effects as a result of screening by the existing built form, land cover and topography. Similar Slight magnitude of change andModerate level of effect would be expected for the dispersed properties lying outwith the Portnahaven/Port Wemyss settlement area which face SW and have an open and unobstructed aspect of the development area.

The SLVIA also considers the effects of development upon road users, recreational footpaths, locations and boat trips (recreational fishing/sailing) and concludes that the significant effects will not arise in respect of these activities. It is noted that recreational passengers travelling within 1-2km of the development area would experience close proximity views of surface piercing turbines which could be perceived as significant, however, given the turbulent nature of the tide within the locality it is concluded that this area is not typically used for recreational sailing or fishing.

The conclusions of the SLVIA are accepted and that, given the distance of the Islay Coast from the proposed array, the visual impact of surface penetrating turbines would be unlikely to have any significant impact on visual receptors on Islay. It is, however, unclear as to what extent surface piercing development would give rise to a requirement for navigational or other lighting which would be more obvious from receptors on Islay during the hours of darkness/dawn/dusk or the effect which such lighting might have upon landscape/seascape character/receptors as the submitted SLVIA does not address this potential impact. It is recommended that the Council’s consultation response raises objection to this omission and requests that the SLVIA be augmented to consider the “worst case” potential

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landscape/seascape and visual effects of navigational and other lighting requirements of a surface piercing development.

The omission of terrestrial elements of the project from the ES however precludes consideration of the potential Landscape and Visual Impacts relating to overhead powerlines, substation/convertor complex, or possible maintenance facility, all of which are associated elements without which the Project cannot operate.

Traffic and Transportation:

The ES outlines the traffic and transportation requirements for the Project which advises that installation would be undertaken in phases by specialist commercial vessels which are likely to mobilised direct to site or via the turbine construction facility to deliver equipment for installation. The first phase would involve drilled piling and is anticipated to be undertaken over a minimum period of 3 months with vessels sheltering in Loch Indaal when required. The second phase would involve installation of the foundation, turbines, inter-array cables and the western export cable. A heavier vessel to accommodate the heavy lift of the turbine components and foundations and a specialist cabling vessel would be employed for these activities.

Under normal operation of the development there will be no requirement for vessel presence however the maintenance approach will vary greatly dependent on the type of turbine which is chosen for installation. Surface piercing equipment can be maintained in situ and as such it is intended that regular scheduled and unscheduled maintenance would be carried out by a vessel moored at Port Ellen (or Portnahaven if a RIB can be used), this approach would come with a requirement for an onshore maintenance facility on Islay which would provide income and employment, such a facility would also be likely to provide a base for the environmental monitoring programme. Subsea equipment would require a larger vessel in excess of 30m which would be deployed from a dedicated maintenance facility either on the Clyde or Belfast.

The ES concludes that there will be no major onshore vehicle movement associated with the project, the only vehicles likely to be required relate to the pulling of the 33kV cable ashore at Kintra and a local excavator for backfilling the cable. The omission of terrestrial elements of the project from the ES however precludes consideration of the potential onshore traffic and transportation implications of the Project.

Recreation and Amenity:

The section of the ES which relates to the potential impacts upon recreation and amenity recognises that whilst the Project terminates at the high water mark at Kintra that infrastructure will be required on Islay and Kintyre, it is however caveated that any information provided in respect of such terrestrial elements is provided for information only rather than forming a part of the Project.

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It is suggested that onshore infrastructure on Islay is likely to include:

• Underground or overhead (on wooden poles) 33kV cable from Kintra to an area in the vicinity of Port Ellen; • A 33kV/132kV sub-station to be located in the vicinity of Port Ellen; • An underground 132kV cable landfall in Kilnaughton Bay to provide export to Kintyre (eastern cable route); • A monitoring operations and maintenance base consisting of offices, front line spares stock, workshop and welfare facilities which is likely to be located in Port Ellen.

The study seeks to take into account the potential impact of the proposed development upon existing recreational facilities and tourism activities and concludes that, aside from disruption during the construction phase, the development will not have any significant impacts upon such resources.

The Council’s Marine & Coastal Development Manager has not raised concern in respect of this aspect of the proposal. However, the omission of terrestrial elements of the project from the ES however precludes consideration of the potential implications of the Project as a whole upon tourism and recreation.

Socio-economic:

The developer has engaged with the local community on Islay through a number of meetings arranged by the Islay Energy Trust (IET) during December 2012 to gauge local opinion on the proposed development and to discuss whether Islay would benefit from the Project. Meetings were held with the Islay Community Council’s Renewable Energy Sub-Committee, South Islay Development Group, Port Ellen Harbour Association and local businesses. The ES summarises that the consensus from meetings was that individuals and businesses were generally positive about the project although some concerns were expressed about potential negative impacts off the Rinns of Islay.

Many of those consulted considered that local businesses could and would benefit and will encourage the developer to implement a philosophy of employing local people on projects where possible and commercially viable. Moreover, many were enthusiastic about potential of becoming a renewables hub; in contrast some concern was also expressed that the fishing industry might be adversely affected.

In assessing the likely potential economic benefits of the Project, the ES states that the proposed development could have the potential to act as a catalyst to create a critical mass of marine energy activity on Islay, particularly in conjunction with the Sound of Islay Tidal Array. The key issue for the island is the provision of high quality and skilled jobs, which can provide permanent employment for the local population and the infrastructure required to service the Project’s needs. The study indicates that during construction some 2-3 FTE jobs might expect to be created on Islay; job creation from the operational phase of the development is somewhat harder to

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predict as this is largely dependent on the type of turbine to be utilised – surface piercing turbines offer the potential of undertaking servicing from a local facility based upon the island, conversely submerged turbines would require to be removed from site by a larger vessel for maintenance and as such would necessitate use of a shore base in either the Clyde or Belfast. Forecasts for job creation on Islay during operation accordingly vary between 2 FTE and 16 FTE dependent upon the final Project design. The Gross Value Added to the local economy during the operational period similarly varies between £0.1m to £0.9m per annum dependent on final Project outcome and location of shore based facilities. The ES indicates that it is only if both the turbine maintenance and on-going environmental monitoring were to be located on Islay would any positive Major direct economic effect accrue on Islay, with predicted Moderate effects arising potentially for the wider Council area. Whilst the direct benefit of the development to Islay and Argyll and Bute in general may be uncertain, it is noteworthy that the assessment does not identify any negative socio- economic consequences of the Project.

The ES also identifies additional opportunities for added value, these include the Environmental Monitoring Programme which is likely to be active for a period of 3-5 years during which time there would be additional scientific and engineering support required from the mainland to design, implement and monitor these programmes.

It is identified that the Project is likely to one of the first tidal turbine arrays installed and as such is likely to attract political and academic interest from around the world.

The developer and their project partners have already undertaken consultation with a number of major distilleries on Islay (and Jura) with a view to reducing their dependence on heavy fuel required to provide steam to the distilling process. A feasibility project to establish the extent of potential benefits is currently underway.

The developer also expresses that they view the current 30MW proposal as the first phase of a larger development aspiration for an installation generating many hundreds of MWs of renewable tidal energy off Islay.

The ES also highlights that implementation of the Project electrical grid connection to Carradale sub-station would result in a more stable electrical infrastructure for the island and reduce the likelihood of power outages.

Whilst the Project as presented and its potential to deliver a degree (albeit varied) of local economic benefit is to be welcomed, concern is again expressed that the omission of terrestrial elements and the eastern export cable associated with the Project from the ES however precludes consideration of the full extent of socio-economic implications of the Project. These include the potential effects that might arise from associated terrestrial development upon tourism and recreation interests both on Islay and in Kintyre, and any implications that the western export cable route might have upon commercial fishing interests.

Page 44

Noise:

The ES includes an assessment of installation and operational noise; such consideration includes noise generated by construction vessels and installation techniques (e.g. rock drilling and pin piling), during operation by the turbines themselves, by visiting maintenance vessels and during decommissioning both by vessels and the disassembly and removal of turbines. It is also noise generated during inter-array and export cable installation by cable laying vessels and when implementing measures to secure the cables to the seabed.

The potential effects of noise and vibration arising from the various phases of the development have been used to assess the impacts of noise on marine mammals and natural fish. The Council’s Biodiversity Officer and the Marine & Coastal Development Manager have not raised issue with the approach undertaken in the ES to acoustic modelling for the Project Design Envelope.

Electromagnetic Fields:

The ES also gives consideration to the potential effects of electromagnetic fields (EMF) typically generated by power transmission cables, and an assessment of the potential for subsea inter-array and export cables for the proposed Project to cause adverse effects in marine organisms. The Council’s Biodiversity Officer and the Marine & Coastal Development Manager have not raised issue with the approach undertaken in the ES to EMF modelling for the Project Design Envelope.

F. RECOMMENDATION

1) That a consultation response is issued to Marine Scotland advising that the Council objects to the application for S36 consent having regard to the omission of essential elements of associated development from the Environmental Impact Assessment of the project, and that in the absence of a comprehensive review of the environmental effects of the project as a whole, that the application be regarded as premature. Also that whilst the proposal to establish a 30MW tidal array is to be commended, along with the developer’s approach of adopting a Project Design (or Rochdale) Envelope to address uncertainty in the assessment of potential environmental effects, the omission of the terrestrial elements of essential associated development and the eastern export route give the Council cause to question the procedural competence of the ES submission, having regard to European Commission Guidance that a ‘centre of gravity test’ be applied in the definition of projects for EIA purposes.

2) Furthermore, it is advised that the Council raise concern that the omission of the terrestrial elements of essential associated development and the eastern export route preclude an assessment of the effects of the project as a whole having specific regard to effects upon: Benthic Ecology, Otter, Birds, Natural Fish, Commercial Fisheries, Archaeology, Shipping &

Page 45

Navigation, Landscape & Seascape, Traffic & Transportation, Recreation & Amenity (including Tourism) & Socio-economic implications.

3) Notwithstanding the above considerations, it would also be appropriate to request that, in the event that Marine Scotland were minded to grant S36 consent, that the Council is included within any further relevant consultation in relation to the approval of a finalised project design for implementation and the development of an Environmental Management Programme which has been tailored to the final project design.

Author of Report: Peter Bain Date: 12 th December 2013 Reviewing Officer: Richard Kerr Date: 13 th December 2013

Angus Gilmour Head of Planning and Regulatory Services

Page 46

This page is intentionally left blank 104800 106000 107200 108400 109600 110800 112000Page113200 47 114400 115600 116800 118000 119200 120400

Rock

Am Bù rg Cno c M òr Rèidh a'Bhu i rg Rock Fort l e Shi ng Tra ck 82m Cai rn Caves Crea g M hòr

Geo dha nan Lea c Dubh a

Coas tguard Look out

Geo (di sus ed) d h' Flag st aff Cat t le a n D ùin Carn M òr Grid  ML WS Co ul l Farm S MH W

S h ngli e

An D ùn Pond n Dr i Cave a ai r D

n Co ul Poi nt T ra ck

Drai n

Rock s

664800 Drai n 664800

k

Trac Track

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rac

T

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a D òirl inne  Eile an Rock ha M ò d Rock Geo dh a M hòir e Geo

hi ng le

Rock s hi ngl S Rock s S Spri ng

Rock Eile an an Ta nna is- sg ei r

Rock an d Sand a' Mhui l inni l in n h hu ac Eile an Shingle Cl ' M Rock a dha Rock ch na Sg io ba Geo 

Cla àta

B h

' Rub ha n ah-A ird e M òire orta P San d 664000 664000

Me

an San d

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a r prngs rin Sp Wat er

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àigrà

M ch  r hi ac Mh h 663200 663200

Machir Bay

Carraig Cho main

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Rock

Du n 662400 662400

Rock s Rock MH & MLWS Eile an Sg ei r Track Bò-thòi n Bu n na Fai ng 23m Rock s 22m Carraig Mhi c Eog hai nn 24m D r Geo dha a 24m i Mèineac h n Leac Rua dh

32m MH & MLWS ck Eile an Ro Ru adh Eile an Cre Mhurch ai dh

Eile an Po ll a' 48m Rock Gh eamh raid h Masts (Telecommu Crea g Bea la ch na

Eile an a' Cai l lich An Croi s- sgei r Croi s- sg ei r

Bog ha Chroi s- sgei r Bea la ch na Rock s Cai l lich

84m rai nn Bea la ch Rock Ch ao g a'

rea Gaot ha 661600 C c h 661600

d h k Trac

aF anac n

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Issues

Slo c Ephri c

M Blowh ol e

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S Cave Eile an nan It ean

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Rock Rock an d Boul ders 24.7 m 660800 660800 Qu arry Trac k Rub ha n ah-A ird e M òire (di sus ed) 1 2 Ro Issues ck MuLWS c am M Cave dha n Geo Well c  Lea g Pond Cùl ai rn as 18.6 o dha Fha S hi n g le Ge ck Sheep Dip Ro Rock

hàta Shin gle Abhai nn na Bràid Stone ort a' B Cill Chia rain P oin (rema ins of) 20.4 m ock t Meadh Rub ha G àidhea l ach R Por le g Cup-markedStone MH & MLWS hi n S Roc k gs Shin gle Eile an M ui r-tea chd Mean High Wat er Sprin Leàc Leàc nanArm Mea Track n Lo w W ate Shingle rig r Sp imh rin gs MH &MLWS Shin 18.0 m An L a gle Ford

Ru bha L iat h Tràigh Bhàn 16.2 m NTL

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MLWS ou g le Shi ng le B Hu i n 35m Gl Sh Shi ngl e ean Eile an an Fh ir M ho ir n Carrai g a' Ch oi rte in Mhì n n Shi ng le an Cui Cno c Gà rradh San d Sloc an Iarui nn le Lod an B eag an

Rock s Rock hi ngl e MLW S

MLWS PortMòr le Lod an M òr g i n (Ti dal Pond ) 56m Sh Clada ch M ì n

660000 Rock s 660000

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Slo c na Bè iste

Cn oc Ch oi spri g

68m

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Nat ural Arch Bei nn eag M h òr h t a Ge odh a nam M ai dean Mo ra i L e Kiln g a (di s) Pond e Cr Lei t h e Pon d C reig Rock Tra ck 80m na

oc

Cn Lùb Ri abhac h Cave Tormisd ale Cro ft EasMò r 659200 Bun na h-A ibh ne (Wat erf all) 659200 Waterf al ls Tormisd ale Farm Rock s An G leann Tormisdale Rock s Eilea n M òr Al lt a Rock ' G h 79m l i n ne Cap ul l na n Alt Nat ural Srut h

MLWS Arch a n Rock s Ru CG a Rock dh i n Dra Waterf al l Al lt nam ai n B un r

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sai de Drai MLWS n Al lt Lo

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658400 75m 658400 139m 1:300,000

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Cu ltoo n

Cu ltoo n 657600 657600 Ge odh a

Bu n k a ' M hu il Roc i nn Stone 102m Spri ng

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Rock

Drai n D rai n

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R o ck Faing Drai n 77m Los sit Po in t Cave

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R

ML WS ock Mul lac h M òr 656800 Drai n 656800 Cat t l e Gri d Cat t l e Gri d MLWS Du n Cave Uamh nan Cat Los sit 72m (Cave) Slurry Pit Stac a n L odai n Bou lde rs Drai n Rock ai n Rock Dr

Rock s Rock

and San d k Du nes MLWS Trac Track m a San d C FB 67m a Kel sa y Tank San d Cn oc an o dh Rock an d Sand e G t-SDu id nes hei n Du nes

Dun es Sheep fold Sand Lossit Bay Du nes Pon d

Shi ng le

Shi ng le

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72m 82m 656000 656000 74m Sl oc an ck 74m Ro Im e

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Cno c nan Geò idh

Dra i n 89m Airigh Sgallaidh

Tòn Airi gh

Sga llai dh Rock Sheep Dip 69m

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D rai n Glean n nan Cat Drai n 76m

rai n

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n Port Fròige Shingle Shi ng le Airigh Sg allai dh a Tk n 76m n D ha MLWS Bal limony e rs Dr ra ma u ld Beal ac ai i n n l ni a Bo h F n Dr ai Geo d Ca ròig rai n Rock e Dr D Dr i n Drai n ai n 58m ra D Drai Rock Du n Drai n n Geo d Rock ha Ca rra Uamh na Cat t le Gri d i g Ann a Bròlai nne  Drai n a Cave

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Cn oc

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k 32.9 m MH WS Well Trac k 35m Rock MLWS

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652800 hò 652800

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2 Sand 3 n e dac h 5.2m Braeside Drai 33.3 m le k 7 g Leac n an Gall Orsay House Pipe Lin Roc A 8 4 i n d Mea MHWS Wr T The Schoolh ouse Sh ha na n H

Mea n ighLo w W Pipe Lines 32m Wat er Pond 1 n Drai 

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ate Shin 7 MLW l

r Sp S Spri ngs gle Rubh' aChrochai dh 7 STREET Drai n S rin dh isel ig STREET CROWN n Drai

gs i MLWS KING 8 Creag a Ghcoid ck ck Eile an na Rock MLWS Shin gle Tele phone Exchange Ro n Geo Ro

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Lin Abh o

S Pipe T Wr 20 c S 22 MHW h Ge

Tol lSgadan Rock MLW MLWS na Bò MHWS 23 S ha MLWS MHW Rock Pier Reservoir(covered) Carr aig nan(Pier) Cudaig ean Boll ard

MHW 20.1 m eod S Sgeir Mhòr S G MHW MLWS Workshop Boll ards Slip way Rock Pier ll Leac Henaig Pond Rock MHWS MLWS an Ga Boat yard House Memori al

MLWS Rock Caol as n

MLWS Rock Rubh'a Ghobhainn Drai n Sgeir nan Gall Well SilaPit ge 24.4 m MHWS na Ra Catt lePens MLWS n inic h MLWS MHWS hai nn Glean Caol C ha Ab ola s Cn oc Un dai l Burn Wat Ter ap 61 side

Lodg EET

Mea n H igh 9.8m e CROMESTR 13 60

Track 9 58 Rock W a ter Sp r i ng s 16 8

Rock Rat 17 Ardmore

Mea n H igh Slip way ha 19 6

M e an L ow Wa t er S pri ng s s an n 4 Cnoc na Buaile W a ter Sp r i ng s STREET 2 MAIN 52AN C NO C

Sand Ias 1

ga SHO22 RE STR EE T

ire TCBLB 53 49 Ru bha Roi nn an T obh t

an 23 Wr T T43 dha Gil le-bhair d Oig K S Geo Rock ROC Ge Pier 26 54 o d Pond Port an Eile in 26a Pier 48 ock ha n Crane 2728 R MLWS Rock 38 a Rock MLWS Sheep Dip Slip way Po rt 29 m Rock RocGeo k StOrain 'sChapel Well Win ch Mea dha MLW Fua (remain sof) n Lo 31 M S r Wemys s Tòn Loi sgte u Bogha Geodh' a 'Chobhair w 33 WS c

MHWS Wat ML G e od h 'a' Ch o bh a i r erSpri ngs Well BAYVIEW STREET

Roc k Path Geodha Bogha-sgeir LeacBhàn MLW S Coll ects MHWS Cnoc an Fharaidh Rock Pond MLWS MLWS Gortanan 652000 652000 ean MHWS Rock Pond Am Maol MLWS Geodhanan k Rock R o ck Roc Orsay Carr aig Fròige MLWS MLWS MHWS (ISLAY SOUTH WARD) Rock Urchraich nan Geodha Eile ann anGort anan MHWS MHWS Carr aig ant -Soluis Uamh a ' Pond Croinan s Ràmh MLWS Geodha Garbh Eile ann anL eum MLWS Ch as- ei le in G e od hEi ' l ea n n Sand PortB àn B MLWS Pond Rock un MLWS S an Leu MLWS Rock MHW Rock a m Sun Dia l ' G hàrr ai dh MLWS MLWS ir Flag Shin gle Staf f Rin ns ofI slay Li ghthouse MLWS MLWS

(flashin gwhi te) Geodha Hai sge Rock Rock

Rock Mast Tòn Mhòr s  lders S k Pond Tanks Boulder Bou Ru bha Dub h MLW Roc Pond Mòire S G Rock na Tòine MHWS MHW eod h' A il Rock Geodha Rock Rock Pond Pond Well

Lne Lin MLWS Rock MLWS G an F hithich eo dha ean Pipe MLWS Ponds Rock Geodh' E an MLWS Pond FB MLWS Ro òin Ri ab M D ùin Pond ck ) hic Rock Path (um An Oighreachd h a e Tanks he MLW hàid i Pipe Lin e ch Pond S  hall ain F Geodh' an e a' B Lin M Pipe Geodh' Ponds Rock L WS Eile an

MLWS Pond Pond Ponds Cùl R Ruadh Rock Rock

Foghorn Am Balla n iabh MHW S ach  Roc k MLW Rock MLWS S Rock Rubh' Alt nam Molt Rock Geodha na Cail eig Leac Mhurchaid h MLWS MLWS MLWS S Rock An Dun n a MLW A' Chlei t Rock Mea n H igh dha Gorm ock e r Wat erprin Springs gs Geo G e od h a n aPe i n R Rock Mean Lo wWater S il Rock MLWS MHWS Rock MLWS ha Eile an

gag o b dh'E nan Gob har

n G eo a Tòn Tòn Dùinan G n Rock Rinns Point RockMHWS MLWS Rock MLWS MLWS

Rock MLWS

An Co ire Rock 651200 651200 650400 650400 649600 649600 648800 648800 648000 648000 647200 647200 646400 646400 645600 645600

Reproduced from the Ordnance Survey map with the permission of the Controller of Her Majesty's 644800 Stationery Office (C) Crown Copyright 2009. Unauthorised reproduction infringes Crown Copyright and 644800 may lead to prosecution or Civil Proceedings. OS License No.100023368, 2009. 644000 104800 106000 107200 108400 109600 110800 112000 113200 114400 115600 116800 118000 119200 120400 Location Plan relative to Application Ref: 13/02270/S36 ° Date: 05.12.13 Scale: 1:90,000 Page 48

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