PE1061/D Public Petition PE1061

Dear Sir/Madam,

We would like to thank the committee for listening to us on 4th September and for taking our comments on board and have taken the time to write to various parties requesting their thoughts on our situation. Below is our response to those replies. We have attached the full version of the Reporters decision dated 26th July 2007 for your reference, as we will be referring to it in relation to the replies received.

Police East Renfrewshire Sub-Division Superintendent Daniels

The position of the Police has never changed. They have always been in agreement with the erection of our gates as they “have resulted in a significant reduction of reports of disorder and other anti-social behaviour in the area”. They have always stated that prevention is better than cure.

Scottish Executive Minister for the Environment Michael Russell MSP

Mr Russell establishes the basis of our case and quite rightly also states that our case was eventually dealt with correctly, as a planning issue, and therefore he cannot comment. However in his last two paragraphs he does comment on his position with regard to the Land Reform (Scotland) Act 2003 specifically the commitment to review “Part 1 Right of Responsible access” This is of course the crux of our argument and we hope that this review will take place soon. While he may not think that it would “be prudent to draw any conclusion from our decision or any other” the simple fact that there have been cases where the Act has been questioned, none more publicly than that of Miss Gloag, surely shows that there are flaws or at the very least misinterpretations that need to be addressed. His final paragraph may well be his evidence but it is most certainly not ours or of that of residents of ERC.

East Renfrewshire Council Development Plans Manager Michael Crichton

This is the type of reply that we have come to expect from ERC. The whole tone of the letter is disparaging once again. The first 7 paragraphs simply repeat their arguments why, in their opinion, the gates should not be in place. The Reporter in her decision of 26 July 2007 did not uphold these arguments and we see no reason why they have thought it helpful to regurgitate them.

1 We are extremely disappointed that ERC have not moved on and taken some of the conclusions made by the Reporter on board. For example Mr Crichton states that the gates where contrary to Local Plan Policy. Paragraphs 64 and 65 of the decision over rules this statement. In his 3rd and 4th paragraphs he suggests that we ignored the fact that we had to apply for planning permission. In our response we simply say why us? Why not the other 20 plus lanes in the area with gates and why after them being highlighted with addresses and photographs at the public enquiry in May have the council chosen to leave these as they are? Probably because they don’t belong to us. In paragraph 7 he has stated that we have not complied with the decision in that the gates have not been open from 8am to 8pm. We have attached a copy of our solicitor’s letter and the council’s reply regarding this. We categorically deny that the gates have ever been closed between the allotted times. Furthermore we suggest that these reports are another malicious attempt to drag this saga on and on from a neighbour or neighbours who, like the council, will not leave us alone now that the matter is closed. Finally and most disappointing of all is Mr Crichton’s final paragraph. How dare he suggest that the statements we have made are not accurate. If he is prepared to make such a statement he has to back up such a claim with evidence. If he is implying that we exaggerated the amount of anti-social behaviour in our lane, then I urge you to read paragraph 20 of the decision. We take it then that Mr Crichton considers this to be a lie also.

COSLA

We understand that the Petitions Committee wrote to COSLA for their comments on our case. We find it extremely disappointing that they chose not to comment. We can only believe that they chose not to reply because it would show that there is a difference between councils and their interpretations regarding the LR(S)A 2003. Why for example are Glasgow council closing city centre lanes and why did East Dumbartonshire close a wider, lit and tarred path because of anti-social behaviour? If this is the case then surely now is the ideal opportunity to put this right.

Summary

We do not wish the Petitions Committee to consider much of what ERC have said throughout this whole sad and very drawn out affair. This was a simple planning issue that ERC made many mistakes with as we proved in the successful out come in July this year. They tried to keep the lane open outside the measures in the Land Reform (Scotland) Act 2003. While that had an influence on what happened with our gates, they have not been dealt with yet under the Land Reform (Scotland) Act 2003.

What we ask the Petitions Committee to do is to ask Parliament to change the Land Reform Act to make it clear that when considering access rights in the urban context, the definition of land over which access rights cannot be

2 exercised is enhanced to include service lanes, or similar areas of ground. If you think that's too wide, then we ask you to include specifically in the Land Reform Act, the right for owners to close rights of way where they have experienced a sustained period of serious disamenity by reason of anti social behaviour. It is our understanding that our path has been listed as a path to be included in the Core Path Network. It would appear that the Council’s officers have not taken on board the severe criticism by the Scottish Executive Reporter about the Council's plans to keep the lane open because it is unsuitable. They still appear to try to make the lane open under the Land Reform (Scotland) Act after all.

The Land Reform (Scotland) Act 2003 has been through the courts once so far and the Sheriff’s decision, in that case, was that land out-with the formal garden still constituted land on which access rights where not exercisable, because that additional land was close enough to the house that access rights did not apply. This must surely apply in all cases and we would argue that the 1 metre path between our houses and gardens constitutes such land.

We think that the relevant issues to the above should not be that of access in the first instance but should be: private safety; crime prevention; safer communities; and preventing anti social behaviour rather than seeking to cure it after the event.

Finally we have been in touch with many other residents throughout ERC because of our case. As recently as a month ago we have spoken to a resident of Thornliebank who was fed up with the anti-social behaviour in the lane behind her home that she took steps to move the yobs on. This has resulted in her home being attacked with bottles filled with petrol, windows smashed and cars damaged. She approached ERC for help and advised them that what all the residents wanted was gates at each end of the lane. Mr Williamson, ERC’s access officer, advised her that access was his 1st priority and that regardless of her and her neighbour’s situation they just couldn’t put up gates. He told her the same things he told us 4 years ago. Keep the lane tidy and looked after, that will keep the yobs away! It beggars belief. Mr Williamson was a witness for the council at our public enquiry and we cannot believe that he still has this same blinkered attitude. Mr Crichton’s reply backs up this ridiculous attitude to honest ERC council tax paying residents. Surely the safety of ERC’s residents must come before any access rights or are we being totally unreasonable again? All we ask is that the Land Reform (Scotland) Act 2003 is not used against honest, hard working citizens of Scotland who are only trying to improve their quality of life by protecting their property against mindless anti-social behaviour and vandalism.

Mr and Mrs Lochhead Mr and Mrs Rankin

3 Directorate for Planning and Environmental Appeals

RECORDED DELIVERY Ms Frances McChlery Simpson & Marwick Solicitors 91 West George Street Glasgow G2 1PB ______Dear Madam TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997: SECTION 130 AND SCHEDULE 4 ENFORCEMENT NOTICE APPEALS BY MR & MRS LOCHHEAD AND MR & MRS RANKIN: ERECTION OF FENCE AND GATE BETWEEN 105 AND 107 RANDOLPH DRIVE, CLARKSTON, GLASGOW G76 8AS 1. I refer to your clients’ appeals, which I have been appointed to determine, against the enforcement notices dated 2 November 2006 served by East Renfrewshire Council relating to the alleged unauthorised erection of a fence and gate between the above addresses. I have considered the written submissions, which were completed on receipt of the council’s e-mail dated 20 June 2007, and I conducted a public local inquiry into the appeals at the Sandringham Suite, Parklands Country Club, Crookfur Park, Ayr Road, Newton Mearns, Glasgow G77 8DT on 22 and 23 May 2007. Before, during, and after the inquiry, I made unaccompanied inspections of the site and the surrounding area. I also made an accompanied inspection on 23 May 2007. For the reasons given in this letter, I have decided to allow the appeals.

2. In the course of the appeals, you and the council each lodged a claim for an award of expenses. My decisions on those claims are dealt with in separate letters.

Description and Background 3. The appeal site is located in a residential area towards the southern edge of the Glasgow city conurbation. The site is within an enclave of housing that is of a uniform style and age, across a steeply sloping hillside. The enclave of housing is surrounded by more housing, which is of an entirely different age and character.

4. The housing estate in question has been laid out to a particular pattern that includes a network of off-street lanes. These lanes are an original, planned feature of the estate, and they fall into 2 broad category houses, usually where those houses have no other external connection between the back and the street. Others, like the one at the appeal site, perform the same service function, but they also offer a network of greener, off- street pedestrian routes through the estate, some of which are marginal shortcuts. All of the lanes are narrow, unlit, unsurfaced apart from poorly configured flights of long steps, and they are generally hidden from view, badly maintained, and overgrown. Many lanes are also difficult to find, extremely steep, and with routes that tend to be indistinct. At my site inspection, I noted repeated instances of vandalism in and

4 alongside the lanes, many of which offered concealed, but unfettered access around the gardens, and the backs and sides of the houses.

5. The appeal site comprises a narrow lane between the gables of 2 typical end terraced houses in the estate. Both houses have been extended to the side, which has drawn their gable walls closer to the lane. The extensions create a pinch point at the front corner, facing Randolph Drive, and I noted at my site inspection that a wrought iron had been erected across the lane at this point. The gate was more than one metre high, it was fitted with a lock, and it was positioned less than about 7 metres back from the Randolph Drive footpath. Behind that, I noted that the lane was level and surfaced, fenced along both sides to separate it from the house back gardens, that it contained waste bins and other domestic garden items, and that it was lit and covered by a CCTV camera.

6. Some 30 metres from the front gate, the appeal site lane splits into 4 distinct sections. Two short service lanes spread out to either side of the junction, to serve the terraced houses on either side of the appeal site, i.e. 101, 103, 109, and 111 Randolph Drive. Each of these lane spurs end in a cul de sac, one is open to an area of woodland, and the other is completely hidden from view and enclosed by fencing and vegetation. A third lane spur from the junction leads down a steep drop and a flight of steps to Cromarty Gardens, between house numbers 28 and 30. Cromarty Gardens is a short cul de sac that leads downhill and away from the appeal site lane towards Monteith Drive. It is closer to Monteith Drive than to Randolph Drive. The final lane spur leads down another steep drop and steps to Monteith Drive. That last lane also adjoins the woodland, which is an overgrown, semi wild space in the heart of the high-density, built up housing estate. The woodland has a road frontage to Monteith Drive, and it is edged by other sections of open lane. Ground inside the woodland is extremely steep, verging on precipitous.

7. At the intersection of these lane spurs, I noted at my site inspection that the lane was blocked by a short section of wooden fence supporting a wooden gate, which was fitted with a padlock. That gate and fence were about 35 metres from the Randolph Drive road edge, the gate measured 1.8 metres high and the adjoining fence was 1.86 metres high, both above ground level. When this gate is locked, it would not be possible to enter the lane from behind the terraced houses at 109 and 111 Randolph Drive, whereas the service lane to the other side was open and freely accessible from inside the lane.

8. The enforcement notices allege that A fence and gate were erected on the pathway between 105 and 107 Randolph Drive which do not have planning permission and which block access to a path over which the public have a right of passage. The notices were served because It appears to the council that the breach has occurred, the gate and fence are not permitted development due to their height and location, and planning permission has been refused, up to and including on appeal. Despite requests to remove the fence and the gate, they remain in place. Blocking the pathway harms the residential amenity of 109 and 111 Randolph Drive, as well as in the wider area. The notices require that the gate and fence must be removed within 28 days.

9. The appeals against the enforcement notices were each made under grounds (a), (f), and (g) of section 130(1) of the Act, i.e.:

5 a. that, in respect of any breach of planning control that may be constituted by the matters stated in the notice, planning permission ought to be granted; f. that the steps required by the notices to be taken exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach; and g. that any period specified in the notices in accordance with section 128(9) falls short of what should reasonably be allowed.

Summary of the main, relevant parts of the adopted local plan 10. The East Renfrewshire Local Plan, which was adopted November 2003, allocates the site as part of an E1 general urban area. The adjoining woodland is allocated as an E3 Site of Importance for Nature Conservation, which is also protected by a Tree Preservation Order. Accordingly, policy E1 presumes against significant new development or changes of use that are incompatible with the character and amenity of the locality and its surrounding land uses. The plan text explains that the purpose of the policy is to oppose all proposals that would be out of keeping with, and detrimental to, the surrounding area, but to support proposals that complement or even enhance an area. All proposals will be assessed against policy DC1.

11. The adopted local plan is based on shared objectives that include the following: • protecting and enhancing the unique nature of the urban and rural landscape. • providing for local community needs. • improving community safety and reducing the fear of crime. • promoting access for all. • encouraging alternatives to car usage through improved walking, cycling and public transport networks (paragraph 2.3.1). Key adopted local plan specific objectives include: 2. Protecting and enhancing heritage and environmental resources and seeking to add to the quality and enjoyment of the area. 3. Reducing the overall need to travel and reduce car use

12. From these objectives, policy Strat2 states that proposals for new development will be assessed against other material considerations, including in particular, the following criteria: 1. A proven need for the development. 2. The consideration of alternative locations, forms and layout of development. 3. Resulting community and economic benefits. 4. The impact on communities, individual properties and existing land uses. Where acceptable in principle, proposals must again meet DC1.

13. Policy DC1 requires that proposals for all forms of development will generally conform to criteria that include the following: 1. Not result in a significant loss of character or amenity to the area. 2. Be of a size, scale and design in keeping with the locality. 3. Reflect local architecture and design. 5. Not involve the significant loss of trees or other important landscape features or valuable habitats or species. 8. Meet council parking and access requirements with reference to policies T3 and T5, which relate to new transport infrastructure and traffic calming respectively.

6 9. Not prejudice the amenity of neighbouring properties by unreasonably restricting sunlight, daylight, or privacy. 10. Seek to create safe and secure environments and reduce the scope for fear and crime. 11. Be designed for disabled needs and to include provision for disabled access in public areas. The supporting text explains that this is to ensure that all development is of a high quality and respects the character and amenity of the area within which it is located. 14. Otherwise, policy L6 proposes that the council will identify a core path network of strategic walking, cycling and horse-riding routes to be safeguarded, improved and promoted. The reason for this policy is to satisfy the improved access requirements of the Land Reform (Scotland) Act 2003. The council will identify the network through the development of an Access Strategy, which will be managed for the benefit of the community, and it will comprise a system of strategic routes, important for transportation, healthy-living, leisure and access to facilities and the countryside.

Summary of the main, relevant parts of the emerging replacement draft local plan 15. The East Renfrewshire Replacement Local Plan Consultation document was published in November 2006. From this plan, the site and the woodland allocations remain the same, although the woodland is also shown as an L1 Important Urban Greenspace, which is to be protected. In addition, Policy E1 remains the same, but Promoting opportunities for physical activity and healthier lifestyles is added as an extra bullet point to the shared themes and objectives, and 3. Provide and protect opportunities for healthier lifestyles and physical wellbeing is added as the only change to the plan’s key objectives.

16. Policy Strat2 still only applies to proposals for significant new development, but that terminology becomes defined in the plan glossary as excluding (ii) householder developments in the curtilage of residential property, for example: walls fences, driveways that are not a change of use or subdivision of the property. Otherwise, the following relevant additional criteria are included: 9. The design quality of the development. 11. The impact on health and well being. The only changes to the policy DC1 criteria are that daylight has been omitted from criterion 9 and criterion 2 has been altered to:

Be of a size, scale and design in keeping with the buildings in the locality and respect local architecture and design and materials.

17. Policy L6 now states that the council is undertaking a Core Path Plan, which will identify a core path network to provide the public with reasonable non-motorised access throughout the area. The text justifies the policy as being reflective of the council’s duty in terms of the Land Reform Act to facilitate the exercise of the outdoor access rights by establishment of a network of core paths. By providing for outdoor access as a recreational activity the policy also accords with draft Scottish Planning Policy 11: Physical Activity & Open Space (SPP 11), and SPP 17: Transport and Planning. The core path network will provide benefits in terms of transportation, healthy-living, leisure and access to facilities and the countryside. The preparation of the Core Path Plan will be undertaken in tandem with the local plan process. Once the

7 network is established, the council will improve, promote, maintain, and keep core paths free from obstruction and encroachment.

SUMMARY OF THE MAIN POINTS OF THE CASES The case for the appellants 18. The enforcement notices were served because the gates and the fence have no planning permission. The wrought iron gate at the front was erected first, and it undoubtedly does need formal planning permission. Next, the appellants erected a fence across the lane at the back, which blocked passage completely, but this was changed to a padlocked gate in early 2007. The refused planning application included both gates, but the council seems not to have considered whether they actually need formal permission. The gate at the back measures about 1.86 metres high and it is certainly no more than 1.9 metres high. Because that gate fronts a private lane not a road, and because it is located more than 20 metres from the nearest road, it does not need formal planning permission by virtue of Class 7(1) of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992. This interpretation of what constitutes a road comes from Circular 4/1998: The Use of Conditions in Planning Permissions, which draws a clear distinction between public and private roads, based on maintenance. In particular, a private road allows public access, but it is not publicly maintained. From that definition, the lane is not a road and the nearest road is Randolph Drive, whereby the enforcement notices must fall at least in so far as they refer to the back gate or fence, because there would be little gain in removing the front gate when the parts behind are permitted development and would stay. The most sensible solution would be to allow retention of the whole package.

19. The housing estate around the site is served by a network of lanes that were originally intended to access to the backs of the houses for coal deliveries and for refuse collection. This use is also restricted by title to estate residents only. Hence, they were no more than service lanes and they were never intended for public access and general use. The original purpose has become outdated and has long since ceased, and the physical condition of lanes is now so substandard, that legitimate passage is discouraged and is potentially hazardous, especially in winter. Few estate residents use the lanes for access of any kind, and most support closure, based on their experiences of criminal and anti social behaviour. The lanes are narrow, rough, overgrown, unlit, and extremely steep in parts, so that they fail to meet modern access design standards. They also do not follow genuine desire lines, so that the on-street routes are more attractive and the lanes only attract people who want to hide. Legitimate use is deterred by these physical conditions and by a fear of crime.

20. Once inside the network, people with bad intent use the lanes as rat runs. Vegetation and darkness hides these wrong doers from everywhere, making them extremely hard to find and apprehend. The configuration of the lane at the appeal site in particular is attractive because it leads into a hidden cul de sac. A retired local community Police officer describes in evidence that some 90% of his work time was spent scouring through the 10 square miles of lanes. On one occasion he was aware that a girl had been dragged into the lanes before being attacked and, on another, a youth was found dead in the lanes. The council has not presented a current or contrary Police view of this.

8 21. Both sets of appellants are long-term residents of the area and their houses have bedrooms that face the back, i.e. over the cul de sac part of their lane. The appellants blocked the lane because they felt bullied by thuggish behaviour and by a lack of action by the authorities, leaving them no option but to take strong, meaningful action to secure their properties and retake control of their lives. Problems associated with anti-social behaviour, like urinating and vomiting in the lanes, began around 2001. Alcohol bottles, rubbish, and items from the misuse of drugs were often left, loitering became more frequent, especially at the weekends an in the summer, and property was destroyed and vandalised. Walls and fences were broken, plants and garden furniture items were destroyed by youths rampaging through private back gardens day and night, and residents suffered harassment as well as verbal and physical attacks, including on children. The problems reached a crescendo in the spring of 2005, and it was that experience that precipitated the final decision to block the lane entirely. Once that was done, the problems disappeared literally over night so that in fact, the lane closure has improved amenity in the area to a considerable degree by preventing inappropriate access and use of the particular lane at the appeal site, and residents fear the inevitable resumption of anti social behaviour that re-opening the lane would allow.

22. The whole experience has been costly for the appellants in terms of time and money spent on repairs, but also for their loss of amenity and well-being. The council seems not to have given the unpleasantness enough weight in its decision making and it has failed to take account of the obvious impact of what is actually happening and the widespread disruption and harm that is causing.

23. The appellants have tried everything possible to keep the lane closed. The problems were discussed with the council and all the suggestions arising have been tried, to no avail. For example, a diary of experiences was kept, the lane was kept clean and tidy, and it has been lit. Disturbances were also referred to the Police, but their ability to respond was understandably limited by other priorities, and their ability to catch wrong doers was prejudiced by the rabbit warren of lanes. The lanes have also provoked much discussion at local community council meetings, with considerable pressure for action arising. Strategies have been discussed with the various agencies involved, including the council and the Police, but all of these efforts have received little long-term commitment or support. As a result, other disillusioned estate residents living in equivalent circumstances, who have suffered similar experiences to the appellants, have also blocked their lanes, with the council taking no action thus far.

24. The enforcement notices subject of the appeals were served for the impact of the blockage on local residential amenity. The concept of amenity is normally applied in the public not the private sense, in other words, for the impact on the wider area as opposed to for specific neighbours. The inquiry evidence shows the extent of the severe disamenity that the residents of the wider area have also suffered because of the open paths. Youths loitering and drinking, and causing such frequent disturbances through criminal acts and anti-social behaviour has been described by many, yet the council has not balanced this evidence or shown that any of the described experiences are wrong. Using this wider interpretation of amenity and, given the amenity improvements described that can be attributed directly to the work at the appeal site,

9 i.e. increased security and safety and reduced disturbance, the gate and fence accords with adopted local plan policy DC1 and should be allowed.

25. The council’s argument that closing the lane just displaces the problem is not tenable because it has adopted a similar approach to managing the same problem elsewhere in East Renfrewshire. The same approach to improving security and inappropriate use has also been used in Glasgow, including for example, at flats with door entry systems. The evidence from the retired Police officers also reflects a clear preference for gating the labyrinth of lanes to keep anti social behaviour out and on the street, where it is easier to prevent and control, and it is of less general concern.

26. The council has not taken proper account of the genuine community view and attitude to the lanes and to the enforcement action, whereas the appellants have presented a considerable body of evidence about the problems caused and the severe impact arising for their lives. Based on national planning policy, the enjoyment of a secure, comfortable, pleasant life in a crime free environment is a material consideration. SPP 1: The Planning System makes that clear, as does Planning Advice Note 46: Planning for Crime Prevention (PAN 46) and PAN 67: Housing Quality. These advice notes undoubtedly apply to new build developments, but the principles cross-refer and apply equally to designing crime out of existing spaces around buildings. The council seems not to have considered the quality and safety of these spaces.

27. The adopted local plan strategy also includes a safe community as a main theme, and it adds quality and enjoyment of the area to the list of specific objectives. The evidence shows that: • anti social behaviour needs to be reduced and blocking the lane has helped to achieve that; • there are no suitable alternative locations; • blocking the lane has already increased residents’ amenity and has benefited the community; • blocking the lane has not harmed infrastructure or the environment; and • no compensatory environmental measures are required. As a result, the proposal accords with the criteria from adopted local plan policy Strat2.

28. As regards policy L6, the council argues that another intention behind the enforcement notices is to keep the path open as a potential designated core path in terms of the Land Reform Act. While it is questionable whether making these urban lanes core paths is what the Land Reform Act truly intends, the outcome of that process is uncertain because no survey or community consultation has yet been carried out to progress designation, and no steps have been taken towards implementation of policy L6. But in any event, the Land Reform Act confers specific, overriding powers to achieve designation. If and when that stage is reached, the appellants would comply, so the core path intention would not be compromised. In the meantime, SPP 1 makes it clear that planning legislation should not be used as proxy for these other specific powers, which further invalidates the enforcement action. In addition, a planning condition could be imposed to allow the lane to stay blocked until the core paths issue is resolved.

10 29. Irrespective of the core path issue, the Land Reform Act only grants access rights for those exercising the right responsibly. The evidence clearly shows here that the majority of users have not acted responsibly, so they can have no right of access. In addition, the council has powers to exempt land from access, either for reasons of proximity and consequent effect on private residential amenity, or for reasons of public safety. Clearly both apply in this case and safety and security are especially relevant given the poor condition of the lanes.

30. The council also refers to access rights granted by title and, like the Land Reform Act, this cannot be a valid material planning consideration, which fact again invalidates the enforcement notices. The council’s primary objective in serving the enforcement notices seem to be removal of the footpath bl use. This amounts to an improper use of planning powers because separate, more direct powers are available under other legislation and SPP 1 is again clear that the planning system should not be used to secure objectives that are more properly achieved under other legislation. The council’s decision not to invoke these other powers has not been explained. But fundamentally, the council has misinterpreted the extent and nature of what is essentially a denied private right of access. Even although that right may encompass all residents in the whole estate, it remains a private right.

31. The enforcement notices also tackle the issue about the loss of a neighbour’s private right of access. The above comments apply in this context as well, and SPP 1 notes that the planning system does not exist to protect the rights of one person over another, although it does accept that sometimes they coincide with public rights. The previous Reporter clearly gave weight to both supposed rights of access, but both relate to a private land dispute, not a planning matter. Nevertheless, a significant change from the previous appeal has been the simple act of issuing padlock keys to facilitate access and, if permission were to be granted, a condition could be imposed to alter and to relocate the padlock to ease use from all sides.

32. The previous appeal Reporter also did not have the extensive oral evidence to consider about the impact of an open lane on wider residential amenity, whereby she may have misunderstood the circumstances and, in doing so, she may have given too much weight to the loss of access for the neighbour. The only information that she seems to have had is the neighbour’s description of the inconvenience suffered because of losing access along the back lane. While access could always be achieved through the house to the back garden, so that it was not entirely deprived, plus rubbish bins could be kept in the front garden, the appellants’ accept that they failed to understand the impact of the blockage or the objector. They now appreciate the implications of leaving the residents of 109 and 111 with no back access for over a year, and they have addressed this by giving them keys to open the locked gate. Therefore, the root of the disamenity suffered seems to be an unfortunate neighbour dispute, with which the council should not have become involved.

33. The previous Reporter was also guided by the council that other actions, such as crime strategies, had brought about improvement, but the residents’ evidence shows that is simply not so. It is significant that this evidence includes some from a former community Police officer and from a representative of the local community council, who is also a retired Police officer. Had the previou Reporter been fully aware of all these facts, especially the views of the correct Netherlee and Stamperland Community

11 Council as opposed to Clarkston, her decision may have been different. Nevertheless, that decision stands as a material consideration, although it is not determinative. Each case falls to be considered on its merits and on the current facts established at the inquiry. Based on this information: • the disamenity suffered is more widespread, more detailed, and more immediate than before; • the anti social behaviour could theoretically be reduced by other actions, but that has been shown to be unsuccessful; • the issue of neighbours’ lost right of access has been addressed and the same offer has been made to anyone else who needs access for the original and genuine purpose, i.e. not to vandals and criminals; and • a material consideration is the beneficial impact that the blockage has had on the condition of the environment and on the quality and comfort of residents’ lives. The blockage has been a practical and effective response to improving and addressing a severe amenity problem at this location. However, if the lane is to be unblocked, the work would not take long to achieve, but complete removal is excessive because the gates could be left unlocked but still in situ. That option has been tried before to make the lane look private in the hope that it would deter access. Unfortunately only legitimate access was deterred and experience from elsewhere in the estate shows that when the gates are removed, the problems return within as little as 24 hours.

The case for the council 34. The Stamperland area contains this housing estate, which is uniform in character and has a particular pattern of development that includes its network of lanes. These lanes access the backs of the houses, but they also link through the estate to create shortcuts and to give general access. A title search has revealed a burden to the effect that although the lanes are owned by each of the frontagers, they should be kept open for all estate residents to use. Closing the lane subject of the appeal has deprived the neighbours at 109 and 111 of their access, plus some 20 to 21 other households on Cromarty Gardens of theirs, and it has diminished the original network.

35. Planning permission was originally sought and refused as long ago as 2005 for the gate and fence that are specified in the enforcement notice. The planning application related to a 2 metre high wrought iron gate and a 2 metre high fence that closed off the lane at the back of 107 Randolph Drive. The submitted application plans also indicated a gate at the back, but none existed from then until March 2007. The Town and Country Planning (General Permitted Development) (Scotland) Order 1992 defines a road with specific reference to the Roads Scotland Act and, based on that cross-referred with the Land Reform Act, the lane is a road. The gate and the fence are clearly over one metre in height and they abut the lane, so they need formal planning permission. That permission has been refused, including on appeal and, as a result, the enforcement notices are properly founded. They are also based on the relevant information that the council had available at the time. The planning process was used to remove the blockage because the work involved requires formal planning permission.

36. In considering the work against the development plan, only policies Strat2, DC1, and L6 from the adopted local plan are directly relevant. For Strat2, the significant criteria are 1 to 4, and for DC1 criteria 4, 6, 7, and 12 may be discounted. These policies are largely carried forward into the emerging draft local plan, and criterion 13

12 from the DC1 equivalent is still relevant for its emphasis on sustainable transport, with walking at the top of the hierarchy.

37. Strat2 covers community benefit and impact, as well as impact on individual properties and existing land uses, and it disagrees with the appellants’ interpretation because that confuses the development with the matters that it intends to remediate. Anti social behaviour may well have occurred, up to and including criminal behaviour, which is undoubtedly prejudicial to residential amenity. But tackling that cannot be a sole determining factor, it needs to be balanced with other criteria, and that fact does not establish the need for a padlocked gate and fence because other measures exist that could be equally as effective in resolving the problem. Further, the appellants’ actions in blocking the lane have displaced the problem and increased the impact on the wider public interest elsewhere, and hence they have also increased the degree of wider disamenity, in conflict with Strat2. Evidence from the objector and from the former Police officer confirms that incidents have spilled onto the street, which has worsened the effect on others, whereas the third parties’ evidence about the extent of anti social behaviour on the wider area was couched mostly in general terms, as opposed to offering a record of site specific instances.

38. The main relevant criterion from DC1 also relates to impact on amenity. The concept of amenity should be widely interpreted and should relate to comfort, convenience, and facility, but for the whole community as opposed to just the appellants. The lanes enhance this because they are more than just service lanes. They link the public streets for the benefit of the local inhabitants and they are used as shortcuts to avoid circuitous routes to facilities like shops and schools. The level of convenience gained from that legitimate and beneficial use amounts to a community amenity and it follows that preventing it prejudices community amenity. However, DC1 also refers to safety and security and, while the work has solved one immediate problem, as described, it has also worsened the impact on the wider community and reduced general amenity, so that the immediate benefit is outweighed. Further, the community and the specific neighbour amenity impacts are both significant and the recent change from the fence to the padlocked gate has only addressed one issue.

39. The appellants’ references to PAN 46 and 67 are inappropriate because each relates to new as opposed to existing development. SPP 1 recognises the public and private interests often coincide, which is exactly the case here. The lanes are a major part of local character and amenity and this consideration should be taken into account.

40. Policy L6 relates to the core path obligations from the Land Reform Act, and the council is keen to avoid prejudicing its options in that regard. The lane subject of the appeal fits the criteria for designation, so it could become a core path, and closing it is prejudicial because the lane links 2 streets and offers a shortcut to facilities, as well as giving access to an area of open space that is a designated Site of Interest to Nature Conservation and is protected by a Tree Preservation Order, both as confirmed by the adopted local plan. The current state of the lane is not determinative of core path status, but if it is blocked and not used in the meantime, its condition will inevitably deteriorate, which impacts on the assessment. To become a core path, the route need not be constructed to adoptable standard because even urban paths can be of widely

13 varying standards and conditions. Survey work is in hand towards identifying a network, but it is not complete.

41. The suggestion of a temporary permission until the core path issue is resolved is inappropriate. The council is obliged to identify the network by February 2008 and, in the meantime, the policy concerns about loss of amenity still stand. Other suggested conditions include a rota for enabling controlled access and agreeing opening hours for access. Both are burdensome an unworkable, to an extent that they would fail the tests in circular 4/1998, and the opening hours condition would also fail against the Land Reform Act because, over and above possible designation as a core path, that Act confers general access rights and obligations and it places a duty on the council to keep routes open at all times. Frequency of use is immaterial to the Land Reform Act, access rights apply nonetheless. In this regard, the Land Reform Act is supported by SPP 1 because the loss of the general access right would unacceptably affect the amenity and existing use of land that ought to be protected in the public interest. The lane is used lawfully to some extent and the blockage is a tangible impediment to that. The Land Reform Act has its own mechanisms for action against blockages, but these do not override or preclude the use of other powers. Therefore, the council is not abusing the planning system in using standard enforcement powers instead of the Land Reform Act to remove the blockage, and protecting access rights is an appropriate crosscutting consideration that is firmly rooted in community amenity. The close relationship between planning and the Land Reform Act is also recognised in the guidance issued on access rights, even to the extent of recommending a model planning condition.

42. The lane is important partly because it offers access to the woodland space, and it should not be exempt from the Land Reform Act provisions because the exemptions are intended to apply to parkland settings as opposed to clearly delineated gardens where like here, the lane is outside a defined curtilage. Exemptions based on safety and security are only intended to be used sparingly and the appeal site circumstances are not so bad that an exemption would be justified for that reason. The related Code offers practical advice on dealing with anti social behaviour resulting from access, up to and including reference to the Police.

43. The previous appeal decision, reference P/PPA/220/139, is a material consideration because it was based on similar facts and information to the current appeal. The Reporter was fully aware ofthe extent and severity of the anti social behaviour, as well as the deterrent offered by the gate, and the decision weighed the impact of displacement. However, the Reporter still concluded that the adopted local plan policies had been breached and that decision was not challenged in court. The current enforcement notices are a direct consequence of that appeal being dismissed. Some changes have occurred since that decision in September 2006, but none is material to the essential case, which is that the lane has been blocked and that community amenity has been harmed. The gate was only formed recently, and after the enforcement notices were served. Keys have been issued to the neighbours, but the lock mechanism is hard to use from their side, so their amenity remains impaired. All of this work was done without the neighbours’ agreement and, presumably, the recent access concession could be just as easily reversed, again without agreement. Therefore, the essential reasons for the previous refusal remain valid.

14 44. As regards the amount of time allowed by the enforcement notices to remove the blockage, the gate and fence were installed very quickly, and the appellants concede that it could be removed just as quickly. Therefore, based on all of the above, planning permission should not be granted, the steps required in the enforcement notices are not excessive, and the work could be achieved easily in the time allowed.

The third parties cases 45. Ms Smith lives at 103 Randolph Drive, i.e. beside Mr and Mrs Lochhead, and she spoke in support of the appeals. She has always considered the lane to be a service access, not a general amenity facility, largely because of its poor condition. The configuration of the lane behind her property means that the cul de sac ends there, so the location offers an invisible ‘cubby hole’, which acts as a point of congregation for sizeable groups of youths. The impact of the property damage and disturbance arising from this misuse of the lane over some time, has caused her to feel intimidated and vulnerable in her own home, to an extent that before the lane was blocked, weekends were often spent elsewhere. She was aware that the gate and fence were to be erected and she had a key. She had expected that Mrs McDonald would be treated likewise, but was advised not to become embroiled in that separate dispute, although she had written in support of the planning application and the subsequent appeal. The prospect of the gate being removed and free access being reinstated was causing her such distress, that she had contemplated moving house. She expressed disappointment that she had also tried and failed to negotiate with the council, to resolve the impact of anti social behaviour in the lane by other means.

46. Ms Linda Dornan and Mr McCarlie, long-term residents of 20 and 22 Cromarty Gardens respectively, each described their experience of living beside the lane between their houses. Generally, they agreed that the lanes are used by youths as somewhere to congregate and to misbehave. They are not used for access, and the council has offered no evidence to show that the community either wants or values them as an amenity. Ms Dornan and Mr McCarlie each spoke graphically about relentless and harrowing instances of anti social behaviour, and about how these actual occurrences devastated the quality of their daily lives. Examples included a family pet suffering an attempted physical attack, property being daubed regularly with racist and other graffiti, and potentially hazardous rubbish, including used condoms and drugs taking equipment, constantly being dumped in and around their gardens. These instances of criminal and anti social behaviour had become so regular and so hard to bear that the Police were called most Friday and Saturday nights, and a neighbourhood watch scheme was instigated. All to no avail. The problems simply intensified. By 2005, the lane between these Cromarty Gardens houses and Randolph Drive was gated and locked at both ends, as a direct response to the intensity of this anti social behaviour. The problems disappeared instantly. As yet, the council has not instigated any enforcement action, despite the gates being taller than about one metre.

47. Mr Taylor, a resident of the estate and secretary of the Netherlee and Stamperland Community Council, corroborated all the evidence about instances of anti social behaviour and their impact, as well as about attempts to involve the Police in resolution. As a direct result of his concerns, he had surveyed the 43 through lanes in the estate and found that 50% were inaccessible. Mr Taylor then started a petition against the lanes, which eventually attracted some 400 signatures. As a retired Police Sergeant, he could confirm that displacing the disorderly behaviour out of the

15 lanes and onto the public streets rendered it far easier for the Police to tackle, and he expressed a generally held doubt that the true intention behind the Land Reform Act was to keep the lanes open, when the consequence of doing that was such severe harm to residential amenity. A multidisciplinary strategy was put in place towards reducing anti social behaviour, and that has had some beneficial impact, but to be completely effective, the strategy must be supported by closure of the lanes. Residents firmly believe that forcing a reopening of the lanes would allow criminal behaviour to re-establish quickly, and then to prevail.

48. Mr Keany, speaking as a resident of the estate, as well as treasurer and long- standing councillor of the Netherlee and Stamperland Community Council, corroborated all of the above and expressed his concern that the dispute with the council and with the neighbours had been allowed to descend so far. The impact of the anti social behaviour is made worse for residents because the lanes are so narrow and because they pass so close to house walls, back gardens, and bedroom windows, making it impossible to ignore or to avoid an interaction. To his personal knowledge, problems also often continue late into the night, which affects sleep patterns, all to the extent that the lane beside his property has also been closed as a protective measure. Thus far, the council has not enforced against his closure either. The objector, Mrs McDonald, should have had her rights respected, but her concern and her dispute is personal. She seems not to be promoting general access in the same way as the council. Further, the Netherlee and Stamperland Community Council should have been consulted on the planning application and was not. Had that been done, the response might have altered the outcome from the beginning, because problems associated with the lanes are a recurring discussion item at community council meetings, so that support for the blockage was more than likely. Instead, the council has largely ignored local opinion, including that expressed at a public meeting organised by Councillor Montagu specifically to discuss the lanes. The meeting was attended by some 150 people, and the clear majority were opposed to keeping the lanes open. In comparison, the council seems to have surveyed only 3 people.

49. Mrs McDonald, from 109 Randolph Drive, spoke in opposition to the proposal. She stated that the gate was erected with no prior consultation and, it has caused considerable family upset and inconvenience over the last 2 years, to the extent that her family has suffered abuse for opposing the closure. This matter has now been referred to the Police.

50. Mrs McDonald’s house titles confer a right to use the lane and, despite approaching the appellants, she has been unable to maintain that right. Her lack of access has prevented essential property maintenance; the delivery of a garden shed; and routine window cleaning, amongst other things. It has also meant that dirty items like bikes and garden equipment must be stored inside the house, and has forced bin storage into the front garden. Bin storage is increasingly an issue because the council promotes recycling with even more separate bins. Not only do these look unsightly in the front garden, but they also take up valuable off-street parking space in an area where on-street space is at a premium because of severe local congestion.

51. Despite trying and failing again to negotiate, a letter arrived unexpectedly in March 2007, which contained a key to open both padlocked gates. The letter did not explain the change of attitude, just specified a requirement that the gates be kept

16 locked. Despite this, the lane is still difficult and intimidating to use because it is blocked by the appellants’ bins and other items, and it is monitored by CCTV. Hence, access is still restricted to an extent that accidental damage may occur, which could be construed as malicious. Further, the padlock on the wooden gate is installed so that the key can only be used from inside the closed lane. Given the history of poor relations with the appellants and, if the gates remain, it highly likely that the locks would be changed in future, again with no consultation, whereby access would again be denied.

52. Mrs McDonald believes that the problem of anti social behaviour has been overstated and that it should be capable of being addressed more positively. The woods are an attractive place for youths to congregate and to misbehave, and they continue to do so, irrespective of the lane closure. Despite this activity, her property has sustained no damage even although the garden was open to the woodland until recently, when it was enclosed. Personally, Mrs McDonald has only witnessed one incident in Randolph Drive in 6 years residence, which may not have been connected with the lanes. Closing the lane has simply displaced any problems that may have occurred and has only helped the appellants, while hindering the wider community. For example, some genuine lane users strayed into her garden after becoming lost and disorientated by the closure of an accustomed route.

Written submissions 53. The previous appeal and planning application incurred 17 letters of support from 16 sources, including from the residents of 101 Randolph Drive, plus one letter each from Kenneth Macintosh MSP and Jim Murphy MP. These letters have all been lodged with the current appeals, along with the further 17 letters from 16 sources that these appeals have also incurred. Briefly, the main reasons for supporting the retention of the gates relate to: • personal and property security and the effect of anti-social behaviour on residential amenity; and • the council’s inappropriate use of the Land Reform Act, which is intended to apply a right to roam in the countryside, not in urban areas.

54. The previous appeal and planning application incurred 5 objections from 4 sources, which have again been lodged, along with a further 3 from 2 sources incurred by the current appeals. The objectors include Mrs McDonald’s neighbours, Mr and Mrs Johnston, who live at 111 Randolph Drive. In summary, the main objections relate to: • closing the gates has simply displaced the problem, to the detriment of others; • the gates amount to bad neighbour development and they are contrary to council policy; and • the gates are obstructing legitimate pedestrian access.

Mr and Mrs Johnston’s letters also corroborate Mrs McDonald’s concerns about lack of consultation, about the high level of inconvenience suffered through lack of access, about the continuing impediments placed along the lane, keys notwithstanding, and about the personal abuse and intimidation suffered for opposing the closure as compared to the exaggerated descriptions of the anti social behaviour. In addition, Mr and Mrs Johnston describe an occasion where emergency access into their back garden was impeded by the closed lane.

17 CONCLUSIONS 55. Although the specified grounds of appeal do not include ground (c), which is that if those matters specified in the enforcement notices have occurred, they do not constitute a breach of planning control, this matter was raised in evidence at the inquiry, and I find that it forms a logical starting point for consideration of the remaining grounds.

56. Firstly, I noted at my site inspection that a wrought iron gate had been installed in line with the front facing wall of the houses at 105 and 107 Randolph Drive. In addition, a second, wooden gate, which is supported by a section of wooden fence, has also been erected as an extension of the perimeter fence around the back garden of 107 Randolph Drive. Therefore, I am satisfied that the breach specified has generally occurred. There is an issue about the exact description used in the enforcement notices, but I leave that aside for the moment.

57. Next, classes 7(1) and (2) of part 2, of schedule 1 to the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 specify that the erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure is not permitted development if: (a) any such structure is within 20 metres of a road and the height, after the carrying out of the development, would exceed one metre above ground level; and (b) elsewhere, the height of any other such structure would exceed 2 metres above ground level. In other words, formal planning permission is only required for a gate or fence that is both taller than one metre above ground level and positioned 20 metres or less from a road. Otherwise, if the structure is more than 20 metres from a road, formal permission is only required if it is taller than 2 metres. As observed, checked, and measured at my site inspection, the wrought iron gate at the front is undoubtedly more than one metre high and that it is also far closer than 20 metres from the nearest road, which in this case is undisputedly Randolph Drive. Consequently, I am satisfied that, if nothing else, that front gate requires formal planning permission.

58. The structures at the back are different to those specified in the enforcement notices, in that part of the fence at the back has been replaced with a second, wooden gate. That back gate and its supporting fence are about 35 metres from the Randolph Drive road edge, and I noted at my site inspection that the gate measured 1.8 metres high above ground level, and that the adjoining fence was 1.86 metres high. Therefore, any need for formal planning permission hinges on whether or not the lane constitutes a road. Part 1, section 2, of the General Permitted Development Order then confirms that the term ‘road’ has the meaning assigned to it by section 151 of the Roads (Scotland) Act 1984, which is any way (other than a waterway) over which there is a public right of passage (by whatever means) and includes the road’s verge, and any associated bridge or tunnel. Subsection 3 of the Roads Act details the only possible exemptions to this interpretation, which are a public path created under the Countryside (Scotland) Act 1967; part of a designated long-distance footpath; and part of any local authority owned recreational land that is used for that purpose. I am satisfied that none of these exemptions applies to the appeal site.

59. The inquiry evidence shows that if nothing else, every person resident in this sizeable housing estate has a right of passage over all of the lanes. That right was originally unqualified and unregulated, so that all the lanes, including the appeal site,

18 were open for service or recreational use by residents. Because the lanes were open thoroughfares, unimpeded access and use was also available to non-residents and the inquiry evidence suggests that kind of use has occurred. Therefore, based on a reasonable interpretation, I consider that these actual and perceived accustomed access rights are so wide and extensive, that they amount to public use, whereby the lanes fall within the statutory definition of a road. Given that, I am satisfied that the second gate, plus its supporting fence also require formal planning permission. The issue of road maintenance referred to in paragraph 62 of the Annex to circular 4/1998 does not alter this fundamental fact because the determination still turns on use by the public. Normally, even a privately owned and maintained road offers the public a right of passage.

60. However, for these appeals, the issue is largely academic because even if an alternative view were to be taken, the lane would remain blocked by the front gate, which without doubt requires formal planning permission. The enforcement notices were served at least partly to remove the lane blockage, so that in principle, they are still valid because a breach of planning permission resulting in that blockage has occurred. That said, I accept that there is an issue over the terminology and the description of the breach, i.e. the reference to gate singular and fence, as opposed to 2 gates, one timber and one wrought iron, and a supporting fence. However, the enforcement notices predate the change from fence to the second gate and none of the evidence suggests that they were not meant to include the front gate, although that fact is not specified either in terms of location or materials, to differentiate one gate from the other. Under the circumstances, if the appeals are dismissed, I am satisfied I could vary a descriptive difference of this comparatively minor order.

61. Having established that the work requires formal planning permission, the next logical step is to consider the ground (a) appeals, i.e. that planning permission ought to be granted for the work. In this regard, I consider that the appeals under ground (a) and the deemed applications for planning permission under section 133(7) are co- incident. In relation to these, section 133(4) of the Act requires that, in the determination of the appeals, regard shall be had to the provisions of the development plan, so far as material to the subject matter of the enforcement notices, and to any other material considerations. In addition, section 25 requires the determinations to be made in accordance with the development plan unless material considerations indicate otherwise. The development plan comprises the approved Glasgow and the Clyde Valley Joint Structure Plan 2000 and the East Renfrewshire Local Plan, which was adopted November 2003. No part of the approved structure plan has been drawn to my attention as relevant in connection with these appeals.

62. Reference has also been made in the evidence to the emerging consultative draft replacement East Renfrewshire Replacement Local Plan. Although this does not yet have the status of being part of the development plan, it represents a recent statement of council policy and it is progressing towards adoption. As a result, I am satisfied that it is an appropriate and relevant material consideration, which should be given some, albeit limited weight in determining these appeals.

63. Therefore, based on the inquiry evidence, the written submissions, and my site inspections, I consider that the determining issues in relation to the ground (a) appeals are:

19 (1) whether the grant of planning permission for the development to which the notices relate would accord with the relevant provisions of the adopted local plan; (2) whether it would accord with the emerging draft local plan; and, (3) whether an exception to either is justified by other material considerations. In this regard, my attention has been drawn to the provisions of the Land Reform (Scotland) Act 2003 and to the previous appeal decision, reference P/PPA/220/139, dated 12 September 2006.

64. I have summarised the relevant provisions of the adopted local plan above, and these include a range of objectives that stem from sources including national planning policy. The objectives are directly relevant to the appeals because they relate to safety, quality, residential amenity, and perceived crime, and because they encourage walking, as opposed to travel by other means. However, while they reflect the council’s general attitudes and values and they set a context for the plan, they are translated into specific policies in the plan, which they are not meant to override.

65. From the range of policies referred to, DC1 applies to all new development, irrespective of size or nature. In addition, compliance with E1 hinges upon satisfying DC1, and it applies alongside Strat2, which covers similar issues. As a result, DC1 is of over-arching significance. I have summarised the applicable criteria from it above, including criteria 5 and 8, which the council regards as relevant. Criterion 5 covers loss of trees and impact on landscape features, as well as on valuable habitats and species. From the evidence, I am satisfied that closing the lane has not harmed the natural environment in any of these particular ways. Criterion 8 relates to access requirements, in the specific context of new transport infrastructure and traffic calming. I find that the lane closure can have had no impact in either regard. I appreciate that both criteria may be construed generally as relating to access, and I will consider the amenity issues linked to that in a moment.

66. Parties agree that the style and size of the gates and the fence are appropriate for the domestic setting and in relation to surrounding boundary treatments. I see no reason to disagree with this, so that criteria 2 and 3 are directly satisfied. Further, the look of the structures has not harmed the amenity of the wider area or of the neighbouring properties, so that criteria 1 and 9 are partially satisfied in that specific regard.

67. From my site inspections and from the inquiry evidence, I find that the lanes are an original, planned feature that occurs only in this self-contained and particular housing estate, so that they are undoubtedly part of its character. Within the estate, the lanes perform different functions. Some are purely service lanes, in that they lead only to the backs of terraced houses, usually where those houses have no other external connection between the back and the street. There can be no doubt that the existence of this kind of access is a valuable and beneficial amenity for those particular residents because it facilitates just the kinds of normal domestic activities described by Mrs McDonald. However, these lanes can be of little or no value to the wider community, simply because they lead nowhere. Other lanes, like the one at the appeal site, perform the same valuable service function, but they also offer a network of off- street pedestrian routes through the estate. 68. Looking at amenity in its widest sense, i.e. for the whole housing area, I find that in principle, these through lanes ought to be an amenity for residents because they offer a greener, quieter, more natural, and in

20 some cases more direct, walking environment as an alternative to on-street pavements. In this way, the lanes should also help to encourage walking in the estate, in preference to less sustainable transport modes, whereby they help to satisfy national planning policy and those aspects of the adopted local plan objectives. In addition, the lanes access the open space near the appeal site, which further enhances their theoretical amenity value. However, the inquiry evidence, coupled with my on- site observations, suggests differently for the following reasons.

69. Firstly, ground in the open space is so steep that its value as a genuine community facility or play space is limited. That said, it is an important semi wild area in the heart of the built up housing estate, and the adopted local plan designations reflect this. However, closing the lane at the appeal site would not prejudice this recognised function, or the enjoyment of the space by the wider community, because the open space has a road frontage to Monteith Drive, so that it is still directly accessible from public road network as well as from other sections of open lane.

70. Secondly, the through lanes are narrow, unlit, often extremely steep, unsurfaced apart from poorly configured steps, and they are generally badly maintained and overgrown, so that they are potentially highly treacherous and unattractive to use. In addition, the entrances and exits are difficult to find, and through routes are often indistinct and hard to follow. I am in no doubt that the lanes are all substandard in terms of modern expectations and requirements, especially for disabled or for encumbered people, albeit that I appreciate the lanes are a longstanding, as opposed to a new, feature in the estate. I also note that the lanes generally lack the kind of passive natural surveillance that is recognised as a security benefit and I can easily understand that lane users would feel at risk while inside the network, to an extent that they would prefer to use the only slightly less direct onstreet alternative routes. Further, at my site inspections, I noted repeated instances of vandalism in and alongside the lanes whereby householders whose back gardens abut the lanes must perceive a security risk in having this kind of concealed and unfettered access around the backs and sides of their properties. All of these factors undermine the theoretical amenity value of the lanes that I have described above, which I note is the council’s favoured view.

71. My perception of conditions on the ground is supported by the evidence to the inquiry about the impact of the continual incidences of criminal and anti social behaviour on residential amenity in the estate. To some extent, these descriptions must be regarded as subjective because the ability of people to tolerate this kind of experience will vary, as the evidence clearly shows. However, the descriptions are nonetheless valuable for the insight that they give into the effect of the problems caused, perceived or otherwise. Further, the appellants’ site specific evidence is supported and balanced by similar evidence from residents across the estate, which shows that the problems suffered are more widespread than just those that are attributed to the appeal site. The wider views also detail genuine efforts by residents and by the relevant, site specific community council, to address the problems of criminal and anti social behaviour by other means. For example, neighbourhood watch schemes have been instigated and liaison has taken place with the council, the Police, and other relevant parties, to find and implement other controls. These schemes have included an increased Police presence coupled with neighbourhood watch and constructive activity schemes. None of these efforts has proved to be a lasting success.

21

72. The Netherlee and Stamperland Community Council’s evidence must also be viewed as more objective than the appellants’ because it shows that problems of anti social behaviour are a regular, minuted feature of meetings. In addition, several former Police officers, including the retired local community Police officer, explain in detail the regular occurrences and the severe problems associated with prosecuting the perpetrators of the kinds of anti social and criminal offences described because the labyrinth of lanes offered an effective refuge and escape route. This evidence acknowledges that displacement would occur if the lanes are closed, but it takes the clear view that displacement is desirable because it restricts opportunities in the first place, but also because it would expose the perpetuators and make them easier to identify, to catch, and to charge. I find that this evidence deserves considerable weight, especially as it stands without being contradicted by the council, who gave no current, opposite view from the Police or the relevant community council.

73. Therefore, based on all of the above, I consider that closing this particular lane cannot be viewed as a significant general amenity loss to the wider community, to an extent that would breach adopted local plan policy DC1 criterion 1. However, I appreciate that many other lanes are either closed as well, or are waiting to be closed, so that this decision will almost certainly become a precedent. Closing more and more lanes would gradually diminish the character and amenity of the housing estates and change the balance of significance, because the lanes are an original part of the character of the estate. Either way, any impact on community amenity must be balanced with DC1 criterion 10, and the strong evidence, including from former Police officers, that closing the lane has created a safe, secure environment, in direct accordance with that criterion. As stated above, the council has not shown otherwise.

74. As regards the impact on the neighbours’ amenity, DC1 criterion 9 refers to this explicitly and raises the issue above a simple protection of private rights.

75. The council argues that the neighbours from Cromarty Gardens are disadvantaged directly by the closure, but these houses have kept their own service access to the back. This fact, coupled with the steep landfall down towards Monteith Drive, along Cromarty Gardens, plus the relative closeness to these other roads as compared to Randolph Drive, satisfies me that these houses are likely to orientate downhill and away from the appeal site lane closure. As a result, the impact felt by these residents must be less than the neighbours at 111 Randolph Drive.

76. The improved amenity of the appellants and of the neighbouring households at 103 and 101 is described in detail in their evidence and in the submissions that support the closure. There is an argument from the council and from the objectors that the severity and the effects of anti social behaviour at the appeal site may have been exaggerated. However, no firm, contrary evidence has been produced, and I have explained above the objective support for their descriptions. Further, I am satisfied that even the perception of harm could have some validity as a material consideration. However, this benefit must be balanced against the impact on the objectors of losing of their service facility and their ability to perform simple, normal domestic functions related to property maintenance and storage. I find that this loss must represent a considerable inconvenience, the level of which is described in all of the objectors’ submissions. Alternative access opportunities undoubtedly exist, like routing through

22 the house or up the steep hill from Cromarty Gardens or Monteith Drive but none is as convenient as routing a short distance, via a level lane, directly to the back of their properties. There can be no doubt that this is exactly one purpose of providing the lane in the first place, given the layout the estate with its network of service lanes. In addition, the facility is clearly valued equally by the appellants’ and by the neighbouring supporters, all of whom have retained access over the lane. I am satisfied that this inconvenience ought to have been appreciated by the appellants as a matter of principle, and I find it extremely regrettable that the lane was closed apparently without even the common courtesy of consultation, which fact has not been denied. Consultation could have addressed these reasonable access needs and expectations, and it could easily have removed much of the anxiety, stress, and expense suffered by all since then. However, aside from the neighbour dispute over access and property rights, which is not my duty to consider, the planning merits indicate that the level of inconvenience conflicts with policy DC1 criterion 9. In context, I consider that this breach is significant, and I am satisfied that the objectors’ amenity should be protected and the lane re-opened, unless a workable compromise can be found.

77. Various compromise options have been suggested. Firstly, after some 2 years of closure, a key was issued to each of the objectors in preparation for the inquiry over the enforcement notices. I agree with the council that this transparent concession suffers inherent problems as the kind of long-term solution that is required. Currently, the padlock on the wooden gate is positioned to favour use from inside the lane as opposed to the objectors’ back boundaries, but I appreciate that could be rectified comparatively easily. However, the lock mechanisms could be changed just as easily as they were installed, whereby access would again be prevented. I have no evidence of a secure planning means of preventing such a change in future, which could result from something as simple as a property sale. Because planning permission runs with the land, such a change is an inevitable consideration. Further, it would, as a matter of principle, be extremely difficult for the council to monitor and enforce against changing the locks, whereby any condition that sought to prevent such a change would be entirely inappropriate because it would fail at least one of the tests imposed for conditions on planning permissions.

78. As a second suggestion, the appellants have offered to provide access on demand to any genuine user of the lanes, including the objectors. However, I am concerned that they may have underestimated just how much of a burden administering such a scheme would be and, again, I am satisfied that it would represent a difficult and potentially extremely time consuming enforcement obligation for the council.

79. The last option offered involves leaving the gates unlocked during daylight hours. Superficially, this option seems the simplest, and it carries the benefit of protecting some level of access for the wider community. The evidence discussed dawn to dusk opening, but again, I consider that the appellants would find these hours troublesome to operate, and the council would find them difficult to monitor and enforce effectively. Further, the evidence shows that much of the criminal activity and anti social behaviour occurs on late summer evenings, when dusk is that much later, so these suggested times would not prevent a recurrence. For each of these reasons, dawn to dusk would not be appropriate. However, a reasonable, workable alternative seems to me to be a condition specifying that the gates must be kept unlocked from

23 08:00 to 20:00 hours every day, all year. This simpler approach should address the anti social behaviour issue, and it would allow the objectors free access at times when they are most likely to want or use that facility, so that it would protect their residential amenity. An opening hours condition would also be reasonably straightforward to implement, as well as to justify and enforce, in the same way as opening hours imposed on any hot food takeaway or other commercial operation, so that it would satisfy circular 4/1998. Subject to a condition along these lines, I consider that planning permission could be granted for the gates and the supporting fence.

80. Turning next to consider adopted local plan policy L6, I note that this links to compliance with one strand of the Land Reform Act, i.e. the obligation to create a core path network. However, I doubt its critical significance for these appeal cases because all that the policy does is to commit the council to identifying a network. The evidence shows that while implementation work has started, the exercise is as yet far from complete, especially as far as the community consultation is concerned. No timetable has been set for completion, and there is no detailed evidence to show that the council has the surveyed network, identified the function or the condition of footpaths within it, or even assessed the need for any core paths in the estate at all, whereby the council is not able to show that the lane at the appeal site is even a strong contender for designation. In the meantime, the council wants to keep open the general, but highly unreliable option, that the lane at the appeal site might become a designated core path. Although I agree that the lane would appear to fit the criteria for that, designation does not follow automatically just because of suitability. In addition, since the local plan was adopted, the council has made no more than limited progress towards implementation, despite the obvious community interest and pressure over the fate of this particular network of lanes. Further, because other options exist, including on-street options, losing this short section of path would not destroy the potential for a core path network through the estate. For all of these reasons, I find difficulty in justifying keeping the lane open on the off chance that it might at some uncertain stage become part of the designated core path network, especially given the apparent potential for strong community opposition to that. I am also mindful of the potential for the compromise option discussed above, whereby the option to include the lane in the network would stand, and the eventual, longer-term implementation of policy L6 would not be prejudiced.

81. The draft local plan covers all of these same issues and it follows that my same conclusions apply. However, one significant change should be noted, which is that householder developments of the kind involved, would be exempt from policy Strat2, provided that they were construed as being inside a residential curtilage.

82. The material considerations in relation to these appeals include the parallel duty of the Land Reform Act, which is to uphold general access rights, not just in relation to the core paths. The Act specifies circumstances in which an exemption to this duty might apply, but the applicability of several of these to the appeal site is debatable. Further, while the core path system is linked to the planning system by virtue of policy L6 and section 25, the relationship with the duty to preserve general access rights is less clear. For example, the guidance to local authorities (CD12) states in the context of core paths, that access rights will be material considerations for planning applications (page 46), whereas the sections dealing with access rights alone state

24 simply that the duty to uphold access rights does not override other local authority functions and that planning permission may still be granted for development, subject to a condition like the given model, where that is appropriate (page 29). Part of the model condition refers to the permanent diversion of an access right, so that this must be a potentially acceptable option (page 30). My interpretation of these references is this that access rights are no more than another factor to be weighed in the balance in considering a planning application. Separate statutory powers exist to ensure that the general right of access is not blocked, but these do not superseded normal planning powers, nor do they prevent the granting planning permission, if that is otherwise appropriate and justifiable.

83. In this regard, I note firstly that an alternative access route is available to Monteith Drive, Cromarty Gardens, and the woodland, which is easier and safer for general use. The alternative is also more obvious, and it is only slightly longer than the lane subject of the appeals. Therefore, the lane closure has not prevented access entirely, the route has technically only been diverted, and the general public access rights enshrined in the Act have not been prejudiced entirely. Secondly, for all of the reasons that I have explained above and, subject to a condition regarding access hours, I am satisfied that the circumstances of these appeals justify granting permission.

84. The previous appeal decision is undoubtedly another material consideration and I appreciate that my conclusions above in respect of these appeals vary from that earlier decision. However, the following range of factors that justify that difference.

85. Firstly, I have agreed with the general proposition that community amenity and character would be diminished by the loss of the access lane. However, I have balanced the significance of that loss with the strong evidence presented to the inquiry about the impact of anti social behaviour on general residential amenity throughout the estate and about the potential for closing the lane to contribute to improving that general situation. I have also taken account of the equally strong evidence about the lack of long-term beneficial effect from other initiatives. I understand that none of this objective, detailed, and persuasive evidence was available for the preceding appeal. I have also taken account of the lack of evidence to support a conclusion that the woodland would become any less safe because of displacing the anti social behaviour. Both are covered by the criteria from policy DC1, as explained above.

86. Secondly, I have agreed that the neighbours’ amenity has been prejudiced to an entirely unacceptable degree. But again, I have balanced that with the potential to address that disamenity with a planning condition, to make sure that the gates are kept open during normal daytime hours. Such a condition was not suggested in evidence or considered as part of the preceding appeal.

87. Lastly, the previous decision placed weight on the council’s evidence that closing the lane would prejudice implementation of the core path plan and adopted local plan policy L6. That evidence was apparently unchallenged, whereas the current inquiry evidence casts doubt on its applicability to the breach in question and reveals that the council has made no substantial progress towards implementation. In addition, the current evidence, including about the detail of the Land Reform Act, shows that other route options exist that might even be preferable, so that the lane is not the only, or necessarily even the best, option available for the core path network. Because of this,

25 the general duty implicit in L6 would not be frustrated to any major extent by the closure. It is significant in this context as well, that the previous Reporter appears not to have had the option of opening hours to consider, whereas I have been able to conclude that this option minimises the harm caused in virtually every significant respect. The wider community and the neighbours would retain access at the most useful times, the core path implementation would not be prejudiced, the security and safety considerations of policy DC1 would be satisfied, and the option is relevant, practical and achievable, so that it can be secured by a normal planning condition.

88. Given these conclusions and my support for the ground (a) appeals, there is no necessity for me to proceed to consider the ground (f) or the ground (g) appeals.

89. I have taken account of all the other matters raised, but find none that outweighs the considerations on which my decision is based.

90. Therefore, in exercise of the powers delegated to me, I allow these ground (a) appeals, direct that the enforcement notices dated 2 November 2006 be quashed, and I grant planning permission for the erection of: • a front wrought iron gate, positioned broadly in line with and between the Randolph Drive facing front elevations of the houses at 105 and 107 Randolph Drive, Glasgow; and • a wooden back gate with a supporting wooden fence, each between 1.8 and 2 metres high, across the pathway behind 107 Randolph Drive and 28 Cromarty Gardens, Glasgow, all subject to a condition that: The gates hereby approved will be kept unlocked and freely useable between the hours of 08:00 to 20:00, seven days a week, all year round. Reason: to protect the residential amenity of the neighbouring properties to the site and of the wider community, as well as to preserve general access over the lane.

91. This decision is final, subject to the right of any aggrieved person to apply to the Court of Session within 6 weeks of the date of this letter, as conferred by sections 237 and 239 of the Town and Country Planning (Scotland) Act 1997; on any such application the Court may quash the decision if satisfied that it is not within the powers of the Act or that the applicant’s interests have been substantially prejudiced by a failure to comply with any requirement of the Act or of the Tribunals and Inquiries Act 1992 or of any orders, regulations or rules made under these Acts.

92. I have copied this letter to East Renfrewshire Council and to each of those persons on whom the notices were served. I have also copied this letter to all those who took part in the inquiry, and I have notified those other parties who wrote in connection with the appeals of my decision.

Yours faithfully This was the version issued to parties on 26 July 2007 MRS JILL MOODY Inquiry Reporter

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David Dippie Direct Email : Chief Executive [email protected] East Renfrewshire Council Council Headquarters Eastwood Park Giffnock East Renfrewshire G46 6UG

FMCC/SMCR/L0757.00001 16 November 2007

Dear Mr Dippie

Our clients: Mr and Mrs Mark Lochhead Mr and Mrs Harry Rankin

Our clients have asked us to write to you directly to ask you to become involved in this situation.

The purpose of this letter is not to make a complaint at this stage against any actings of the Council. However, as explained below, the overall position appears to have got rather out of hand and is causing our clients some considerable distress, to the extent that it is endangering health.

What we are asking for on behalf of our clients is that the whole matter here is reviewed at an appropriately senior level, and that steps are taken to allow a measure of peace to descend on our clients.

The background position may already be known to your office, but our clients were recently successful in a Planning Appeal against East Renfrewshire Council, which concerned enforcement action on the Council’s part requiring them to remove fences and gates between their respective houses at 105/107 Randolph Drive.

There is a lengthy background to this story, but the final position is that Planning Permission has been granted after a Planning Appeal to our clients for the gates and fences, subject to a condition that they be unlocked between 8am and 8pm every day. Our clients have utterly committed themselves to complying with this condition, and since the Scottish Ministers Appeal decision became available, the gates have been locked and unlocked as required by their condition.

However, regrettably, our clients continue to be the subject of a string of complaints, presumably from a particular neighbouring proprietor, to the effect that the gates are not locked and unlocked timeously. This has culminated in complaints to the Police, and, apparently, visits from council officers.

Both the Rankin families and the Lochhead families suffer from ill health. Mrs Jacqueline Lochhead has an auto immune condition which is exacerbated by stress. Mr Rankin has a number of health difficulties including diabetes and has required to seek medical attention recently. Mrs Rankin, who is a nurse, has required to be absent from work with a stress related illness.

We have to make it clear to you that the allegations that the gate has not been timeously locked and opened are considered by our clients to be false, and they are confident that

27 they can bring evidence without difficulty from neighbours who will be able to establish that this is the case.

We would respectfully suggest that the most unhelpful thing that the Council could possibly do would be to become more deeply involved in what is now a rather difficult neighbourhood dispute. Further involvement would be likely to have no other effect than to exacerbate the stress on our clients, with potentially serious ill effects, to no public benefit of any kind.

Our clients do not ask the Council not to continue to police the opening and closing of the gates, since the Council must clearly satisfy itself at some point that the condition imposed by the Reporter is being fulfilled by our clients. However, our clients would question whether it is necessary for there to be regular attendance by Council Officers, sitting around outside the house in the street. Our clients have continued to suffer from anti social behaviour on a sporadic basis, and there has been some unfortunate incidents recently. Our clients are suffering from a loss of confidence in the safety and security of their neighbourhood. They are understandably nervous about unidentified persons sitting around in cars outside their houses in what is a congested street. They have a sense that their peace is being seriously disturbed for no good reason.

Our clients have received various visits from the police recently, apparently on the basis of complaints about them. As we understand the position, the Police are taking the view that these complaints are not justified. However, this does contribute to a sense of harassment and stress in our clients lives. Our clients maintain close liaison with the local police office, who continue to give them considerable support.

We would ask you in your capacity as Chief Executive to consider the whole matter on a corporate level. We would ask you to consider the degree of policing of the planning situation that is really necessary at our clients homes, and to consider seriously whether a “cooling off” period would not benefit the local residents, and in particular, be fair dealing towards our clients.

We should be grateful if you would carry out an overview of the situation, and give us your comments.

Yours faithfully

Simpson & Marwick cc: Mr and Mrs Rankin, Mr and Mrs Lochhead

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