NOTICE OF REVIEW

REFUSAL OF PLANNING PERMISSION FOR ERECTION OF CLASS 1 RETAIL FOOD STORE, INCLUDING FORMATION OF NEW ACCESS, CAR PARKING AND ASSOCIATED LANDSCAPING

AT CRAIGSVIEW CARAVAN PARK AND ADJACENT VACANT LAND, ANNAN ROAD, DUMFRIES

PLANNING REFERENCE NUMBER 11/P/3/0574

Observations of the Appointed Officer on the Applicant’s Notice of Review

1. The applicant’s agent has submitted a Statement Setting out Reasons for Review, dated April 2012. This sets out a case based on the following principal points:-

  • Proposed development
  • Community consultation
  • Policy appraisal
  • Sequential assessment
  • Transport
  • Flooding
  • Application processing

Each of these points is considered as follows:-

Proposed development

2. The details of the application site and the proposed supermarket are fully set out in Section 1 of the Report of Handling. The applicant has identified that there is no identified supermarket operator at this stage.

Community consultation

3. The proposal has been designed such that it is considered as ‘Local’ development for the purposes of the Hierarchy of Development Regulations. The thresholds for ‘Major’ development are either an application site exceeding 2 hectares (the site is 1.97 hectares) or a floor area exceeding 5000sqm (the proposal is 4995sqm).

4. As a Local development, the applicant was not statutorily required to undertake formal community consultation. Notwithstanding this, the applicant chose to hold a public exhibition in October 2011 and gave a presentation to Georgetown Community Council in November 2011.

5. Georgetown Community Council submitted an email in support of the proposal, which was received and acknowledged by the Council on 17 February (Appendix 1). The Report of Handling was updated in the relevant database field (Appendix 2)however this did not transfer across to the final Report of Handling. The decision notice was issued the same day, on 17 February. In summary, whilst the Georgetown Community Council representation was received late, it was nevertheless considered by officers as part of the assessment process.

Policy appraisal

6. The applicant’s Policy Appraisal in the Statement Setting out Reasons for Review summarises the policy appraisal submitted as part of the planning application; no new or revised information or appraisal is provided.

7. The Council’s policy assessment is set out in Section 4 of the Report of Handling. In summary, this concludes that:-

  • The broad thrust of development plan policy, and relevant material considerations, is to direct retail development towards town centres.
  • The sequential approach should be used when assessing proposals for new out-of-centre retail development.
  • The application site is situated in an out of town centre location, and a potentially preferable edge of town centre location at Brooms Road has not been adequately considered.
  • Access issues remained unresolved.
  • Flood risk issues remained unresolved.

8. The applicant’s statement identifies further key planning issues as design, sustainable development, improved accessibility for main food shopping, and economic benefits. However, design and sustainability issues are not considered to be key issues at this stage; the proposal is for planning permission in principle. Any benefits gained by an improvement in accessibility and by potential economic benefits do not justify a departure from the fundamental principles of development plan and national policy that retail development should be directed towards town centres and that out-of centre development should be appropriately tested under sequential assessment.

Sequential assessment

9. The applicant’s sequential assessment is provided in the Application of the Sequential Approach section of the submitted Statement Setting out Reasons for Review.

10. The Council’s policy assessment of this document is set out in paragraphs 4.14 to 4.32 of the Report of Handling. In summary, this states that:-

  • The broad thrust of the policies contained in the Structure Plan and the Nithsdale Local Plan is to direct retail development towards town centres.
  • That retail development be focused on existing town centres is supported by Scottish Planning Policy and by the Council’s Supplementary Planning Guidance No.6 Retail Development
  • Where an out-of-centre development is proposed, then a sequential approach should be adopted. The applicant tested five sites under the sequential approach, four of which the Council agreed were unsuitable (Former TJ Hughes, Brooke Street, Greensands, and Rosefield Mills).
  • The sequential test as applied to the fifth site, the Brooms Road car park, was not considered to be sufficiently rigorous. Insufficient assessment of the site had been provided, particularly in respect of size of the site, and undercroft or multi-storey car parking (Policy LN32).

11. The applicant refers to two key cases in support of the proposal, namely Lidl UKGmbH v North Ayrshire Council and Scottish Ministers (2006)(Court of Session)which states, in summary, that the proposed development should not be altered or reduced to fit into the alternative site, andTescoStores Ltd v Dundee City Council (2012)(Supreme Court)which broadly confirms this approach.

12. In considering case law, it must be born in mind that every proposal must be considered on its own merits. TescoStores Ltd v Dundee City Council (2012)(Supreme Court)also refers to R v Teeside DevelopmentCorporation, Ex p William Morrison Supermarket plc and Redcar and Cleveland BC (1998)confirming that a flexible approach to sequential tests should be adopted by the developer:-

‘...he is, for example, expected to have had regardto the circumstances of the particular town centre, to have given consideration to the scope for accommodating the development in a different form, and to have thoroughly assessed sequentially preferable locations on that footing.’However, provided this is done, “the question remains... whether an alternative site is suitable for the proposed development, not whether the proposed development can be altered or reduced so that it can be made to fit an alternative site’.

13. This Judgement indicates that developers must genuinely consider the particular town centre and whether the scale or design of the proposal could reasonably be amended, but that they are not required to fundamentally change their proposed development.

14. In this particular case, the application is for planning permission in principle only; the submitted layout is indicative only. Given that no firm details of the layout or design of the proposal have yet been considered, there is scope for greater flexibility that would otherwise be the case. It is certainly not suggested that the proposal be fundamentally amended. Overall, it is considered that the applicant’s submission did not exercise sufficient flexibility in its sequential assessment, nor did it thoroughly demonstrate in its assessment that the Brooms Road site was unsuitable.The full reasons for reaching this conclusion are set out in paragraphs 4.25 to 4.32 of the Report of Handling.

15. The applicant has claimed that the Report of Handling relies on the consultation document Further Consultation on Sites and Policies for its first and principal reason for refusal. This is not the case; the Report of Handling makes it repeatedly and explicitly clear that it is a consultation document only and that little weight can be attached to it at this stage. The fact is that the Brooms Road site exists. It is potentially suitable site and it is potentially available for development within a reasonable timescale. As such, the site requires to be properly assessed as part of the sequential tests.

Transport

15. For the reasons set out above, and in the first reason for refusal, the proposed development failed to comply with key principles of development plan policy. The second reason for refusal related to matters that remained unresolved, including traffic generation onto the adjacent road network.

16. The applicant has stated that the application was determined prematurely. This is not accepted; the principle of development was unacceptable and it was considered unnecessary to pursue this matter further in light of the first reason for refusal.Furthermore, the application was determined within the statutory determination period of 2months.

17. The reason for refusal in respect of transport matters is therefore legitimate. Notwithstanding this, it is accepted that this is a technical matter that has the potential to be satisfactorily resolved through further dialogue between the applicant and the Council.

Flooding

18. The second reason for refusal also related to flood risk issues that remained unresolved at that time. SEPA have subsequently confirmed that they have no objection to the proposal and, accordingly, this issue is now satisfactorily resolved.

Application processing

19. The applicant has set out concerns in respect of the processing of the application. This is not a matter for deliberation by the Local Review Body, and has been responded to separately by means of the Council’s complaints procedure.

20. The applicant states that the application has been determined with undue haste. It is certainly rare for a developer to complain about the planning system being too swift. Nevertheless, where a development is unacceptable in principle, it should be refused quickly. To enter into further dialogue about secondary matters (in this instance, transport and flooding) would simply delay the inevitable and, furthermore, may result in increased costs to the developer.

Conclusion

21. The applicant’s Statement Setting out Reasons for Review concludes that the proposal is in accordance with the provisions of the development plan, that the development would provide economic benefits and improved choice, that there is strong support from the community and that there is no justification for refusal.

22. The Report of Handling and this Observations of Notice of Review conclude that:-

  • The broad thrust of development plan policy, and relevant material considerations, is to direct retail development towards town centres.
  • The sequential approach should be used when assessing proposals for new out-of-centre retail development.
  • The Brooms Road car park site is currently beingpromoted through the Local Development Plan Further Consultation on Sites and Policies as the recommended retail site for Dumfries, in an edge of town centre location, and the Annan Road application site is currently being promoted as an alternative retail site.
  • The Annan Road application site is situated in an out of town centre location, and a potentially preferable edge of town centre location at Brooms Road has not been adequately considered in accordance with the sequential approach.
  • The applicant’s submission did not exercise sufficient flexibility in its sequential assessment, nor did it thoroughly demonstrate in its assessment that the Brooms Road site was unsuitable.
  • Access issues still require to be satisfactorily resolved.

23. The proposal fails to comply with Dumfries and Galloway Structure Plan D21 and Scottish Planning Policy and, in the absence of any material considerations to indicate otherwise, it is recommended that the Appointed Officer’s original decision should be upheld and that planning permission should be refused, albeit with an amendment to grounds 2(b) in light of the SEPA comments now received regarding flood risk.

David Suttie

Service Manager Development Management

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APPENDIX 2