Local Review Body - 21/02/2012
At a MEETING of the LOCAL REVIEW BODY held at Dundee on 21st February, 2012.
Councillor David BOWES
Councillor Tom FERGUSON (during consideration of Item II only)
Councillor Craig MELVILLE (during consideration of Item III only)
Councillor Christina ROBERTS
Councillor David BOWES, in the Chair.
The Chairman welcomed those present to the meeting and briefly outlined the role of the Local Review Body and officers, in particular advising that, although the Planning Adviser was an employee of the Planning Authority, he had not been involved in the determination of the case under review and was present to provide factual information and guidance only.
I MINUTE OF MEETING OF LOCAL REVIEW BODY OF 24TH JANUARY, 2012
The minute of the above meeting was submitted and noted.
II LOCAL PLANNING REVIEW LR2/12
There was submitted Agenda Note AN24-2012 giving details of a request for a review of the decision 1100552FUL to refuse the variation of Condition No 1 of Planning Permission 0601086FUL for a further three years.
The Planning Adviser gave a brief outline of the application and the reasons for refusal. Thereafter, the Legal Adviser advised of the undernoted procedural/legal issues which required to be considered by the Local Review Body.
In the Notice of Review, the applicant had indicated that he had not introduced new material which was not before the Appointed Officer at the time the application was determined. However, amongst the documents submitted with the review were a photographic survey dated December, 2011, Visit Scotland statistics, Waterfront Development Dundee Extract and Extract from Dundee City Council Main Issues Report. There was nothing in the Report of Handling to indicate that these were before the Appointed Officer when he reached his decision.
(a) In terms of Section 43B(1) of the Town and Country Planning (Scotland) Act 1997 as amended, in a review, a party to the proceedings was not to raise any matter which was not before the appointed person at the time the determination reviewed was made unless that party could demonstrate:-
(i) that the matter could not have been raised before that time; or
(ii) that it is not being raised before that time was a consequence of exceptional circumstances.
If either of these tests was met then the Local Review Body should take the new information into consideration in reaching its decision.
In any event, in terms of Section 43B(2) of the 1997 Act as amended, the Local Review Body was required, in reaching its decision, to have regard to the provisions of the development plan and any other material considerations. Therefore, if the Local Review Body considered that the new information contained material considerations, it was required to take these into account. If not, and neither of the criteria in terms of sub-section (1) was met, the new information should not be considered.
The Local Review Body agreed with the view of the Legal Adviser that the new material referred to in the application for review should be taken into consideration and should not be ruled out at this stage.
(b) The review was sought in respect of an application made under Section 42 of the Town and Country Planning (Scotland) Act 1997, which applies, subject to sub‑section (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
In terms of Section 42(2), on such an application the planning authority shall consider only the questions of the conditions subject to which planning permission should be granted, and:-
(i) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous planning permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly;
(ii) if they decide that planning permission should be granted subject to the same condition as those to which the previous permission was granted, they shall refuse the application.
The applicant was seeking a review of the decision to refuse the variation of Condition 1 attached to planning permission 0601086FUL in respect of the commencement of the development permitted within five years from the date of the permission. In doing so, however, the Local Review Body noted that it could consider all of the conditions which were attached to the permission and could attach whatever conditions, if any, they consider appropriate.
These were the only legal issues which the Local Review Body required to consider.
Thereafter, the Local Review Body considered whether it felt that it had sufficient information before it to determine the review at that time, or whether it required any further information. Members noted that the applicant had requested that the review be undertaken on the basis of a site visit and review documents only.
The Local Review Body agreed to hold an accompanied site visit (subsequently arranged for 26th March, 2012).
III LOCAL PLANNING REVIEW LR1/12
There was submitted Agenda Note AN25-2012, making reference to Article II of the minute of meeting of the Local Review Body of 24th January, 2012, wherein details had been submitted of a request for a review of the refusal of planning permission for the demolition of the existing building and the erection of a building containing two units, one to be Class 1 use and the other Class 1 or 2 use at the site of the former Jimmy Shand, Dickson Avenue, Dundee.
The Local Review Body had requested an accompanied site visit which took place on 13th February, 2012.
The Local Review Body agreed, in terms of the Local Review Procedure Regulations, to determine the review without further procedure on the basis of the information before it.
Thereafter, having considered all the information, the Local Review Body upheld the decision of the Appointed Officer, to refuse planning permission, and dismissed the review.
This was on the grounds that:-
(i) The application is not supported by and is contrary to Policy 43 of the Dundee Local Plan Review 2005 as there is no lack of local shopping provision which needs to be addressed. In any event, the proposal exceeds the maximum level of floorspace which would be supported under the Policy. There are no material considerations of sufficient weight that would justify a decision contrary to this.
(ii) The application fails to satisfy the sequential test as set out in Policy 45 of the Dundee Local Plan Review 2005 as there is no deficiency in the shopping provision to be addressed. There are no material considerations of sufficient weight that would justify a decision contrary to this.
(iii) The application does not comply with Policy 1 of the Dundee Local Plan Review as a result of failing to comply with Policy 43 and Policy 45 of the Local Plan. There are no material considerations of sufficient weight that would justify a decision contrary to this.
David BOWES, Chairman.