SHEPHERD+WEDDERBURN

SECTION 75 AGREEMENT

BETWEEN

MILLER HOMES LIMITED

~~

THE CITY OF EDINBURGH COUNCIL

RELATED TO DEVELOPMENT AT EAST SUFFOLKROAD, EDINBURGH

DPEA REFERENCE PPA-230-2172

NOVEMBER 2016

MINUTE OF AGREEMENT

between

THE CITY OF EDINBURGH COUNCIL,

the Local Authority for the said City in

terms of the Local Government etc.

(Scotland) Act 1994, and having its

principal office at City Chambers, High

Street, Edinburgh (who and whose

successors as the Planning Authority and

Roads Authority respectively are

hereinafter referred to as "the Council")

and

MILLER HOMES LIMITED, a Company

incorporated in Scotland under the

Companies Acts, Company Number

(SC255429) and having its Registered

Office at Miller House, 2 Lochside View,

Edinburgh Park, Edinburgh EH12 9DH

(who and, in substitution therefor, whose

respective successors in ownership of the

Agreement Subjects are hereinafter

referred to as "the Proprietors")

CONSIDERING

(One) that the Council is the planning authority for the City of Edinburgh in terms of Section 1

of the Town and Country Planning (Scotland) Act 1997 (hereinafter referred to as "the 1997

Act");

(Two) that the Council is the roads authority for the City of Edinburgh in terms of Section 151

of The Roads (Scotland) Act 1984 (as said Section 151 is amended by Section 180 and

Paragraph 135(10) of Schedule 13 to the Local Government etc. (Scotland) Act 1994);

(Three) that the Proprietors are entitled in terms of Section 75 of the 1997 Act, by agreement

with the Council, in respect of land in the district of the Council as planning authority, to enter

into an obligation restricting or regulating the development or use of the land, either

permanently or during such period as may be prescribed by the agreement;

(Four) that the Proprietors are heritable proprietors of the Agreement Subjects as hereinafter

defined; and

2

(Five) that the Proprietors applied to the Council for planning permission under the 1997 Act

for the Development as hereinafter defined and that following an appeal against the Council's

refusal of the Application, the Scottish Ministers have resolved to grant said permission

subject inter alia to an Agreement under Section 75 of the 1997 Act being entered into in the

terms after-mentioned.

NOW THEREFORE the Council and the Proprietors have agreed and do hereby agree as

follows:-

1. Definitions

1.1 In this Agreement the following words have that meaning respectively set opposite

them:

"Agreemenf' means this minute of agreement and the plan and the Notice

of Intention annexed and signed as relative hereto;

"the Agreement Subjects" means ALL and WHOLE that plot or area of ground extending

to Twenty_acres or thereby in East Craigmillar Park. in the City __

of Edinburgh outlined in red on the Plan and being the

subjects more particularly described in and disponed by Feu

Disposition by Governors of Moray House Institute of

Education in favour of The Miller Group Limited dated 7 May

1998 and recorded in the Division of the General Register of

Sasines for the County of Midlothian on 12 May 1998;

UNDER EXCEPTION OF ALL and WHOLE that area or piece

of ground situated on or towards the east side of Craigmillar

Park, Edinburgh being the subjects registered in the Land

Register of Scotland under Title Number MID39775 ;

"Alternative Arrangement' means a legally binding arrangement whereby responsibility

for the ongoing maintenance of, and public access to, (a) the

Open Space Works; or (b) the Pavilion as the case may be is '~

transferred from the Proprietors to another party or parties;

3

"the Application" means the application for planning permission registered by

the Council on 9 September 2014 under the Council's

reference 14/03632/FUL for the Development;

"Commencement Date" means the date on which the Development is initiated by the

carrying out of any Material Operation;

"Completion of Construction" means the earlier of (i) the date of issuing of any Certificate of

Temporary Occupation and Use by the Council's Building

Standards Department or (ii) the date of issuing of a Notice of

Acceptance of Completion Certificate by the Building

Standards Department of the Council;

"the Development" means the development consisting of the erection of 10

dwellinghouses, creation of public park, new vehicular and

pedestrian access, relocation of existing pavilion, alteration to

existing boundary wall on East Suffolk Road and associated

landscaping, drainage and engineering works on the

Agreement Subjects in terms of the Permission;

means the All-in Tender Price Index forecast figures as"Index"

published by the Building Cost Information Service of the

Royal Institution of Chartered Surveyors on a quarterly basis,

or if that ceases to be published or the basis upon which such

index is calculated is substantially changed or rebased, such

substitutE or alternative index most likely to achieve an

equivalent result as the parties may agree or, in the absence

of agreement, as shall be determined pursuant to Clause 9 of

this Agreement;

means increased in accordance with the following formula:"Indexed"

bxca

Where: a equals the All-in Tender Price Index published as at

4

the 18 June 2015, b equals the Index as at the date of

payment of the relevant sum to be indexed, and c equals the

relevant sum to be Indexed;

"Material Operation" has the meaning given in section 27 of the 1997 Act. For the

avoidance of doubt, this definition excludes any material

operation undertaken in terms of any valid planning

permission granted before the date of the Permission;

"Notice of Intention" means the Notice of Intention to grant planning permission,

issued on 21 April 2016 by the Reporter appointed by the

Scottish Ministers to consider the appeal to the Directorate for

Planning and Environmental Appeals (reference PPA-230-

2172) against refusal of the Application by the Council, which

Notice of Intention is annexed and signed as relative hereto;

"Open Space Area" means the area forming part of the Agreement Subjects

- -- -- - -- hatched in black on the Plan;

"Open Space Works" means the landscaping works to be completed on the Open

Space Area in terms of proposed Condition 6 of the Notice of

Intention (and which is intended to form condition 6 of the

Permission);

"Pavilion" means the Pavilion to be relocated and refurbished in terms

of proposed Condition 1 of the Notice of Intention (and which

is intended to form condition 1 of the Permission);

"the Permission" means the planning permission for the Development granted

subject to the conditions set out in the Notice of Intention;

"Plan" means the plan annexed and signed as relative hereto;

"Play Space Purposes" means the enhancement of Kirkbrae Playing Fields or a

sports facility in the locality of the Agreement Subjects, the

location and specification of which are to be agreed by the

N",

Council;

"Play Space Contribution" means the sum of ONE HUNDRED AND THIRTY

THOUSAND POUNDS (£130,000) STERLING Indexed;

"Residential Unit" means any property within the Agreement Subjects

constructed and designed for residential use of any sort and

which term may apply individually or to a group of such units

whether divided from one another either vertically or

horizontally;

2. agreement

2.1 This Agreement is entered into pursuant to Section 75 of the 1997 Act and hereby

binds the Agreement Subjects in respect of the obligations undertaken by the

Proprietors in terms of this Agreement.

3. Issue of Planning Permission and Registration

3.1 Within ten working days after receipt from the Proprietors of (i) the date of production

of evidence to the Council of the date of (a) acknowledgement of receipt of this

Agreement for registration in the Land Register of Scotland; or (b) recording in the

General Register of Sasines (declaring that written acknowledgement from the

Keeper of the Registers of Scotland of receipt of this Agreement shall be sufficient

evidence for the purpose of this Clause), (ii) a Legal Report disclosing the application

for registration of this Agreement and disclosing no entries prejudicial to the Council's

interests, (iii) a search against the Proprietors in Companies House brought down to

the date of submission of the application for registration of this Agreement and

disclosing no entries prejudicial to the Council's interests, and (iv) payment of the

Council's fees and expenses pursuant to Clause 12 hereof, the Council shall intimate

to the Scottish Ministers that it is content for the Permission to be issued.

3.2 The Proprietors (unless otherwise agreed with the Council) will undertake to register

this Agreement against the Agreement Subjects in the Land Register of Scotland as

soon as reasonably practicable after the last date of execution hereof.

L

3.3 The Proprietors undertake to provide the Council with copies of any requisitions that

the Keeper makes and will promptly provide to the Keeper such documentation,

information or carry out such actions as may reasonably be required to allow the

Keeper to register this Agreement.

3.4 The Proprietors undertake and warrant that (i) they shall not take steps to withdraw

the application for registration of this Agreement in the Land Register of Scotland

without the consent of the Council, such consent not to be unreasonably withheld,

and (ii) to the best of their knowledge and belief that, at the date on which they

execute this Agreement, they are not subject to, or under threat or warning of, any

bankruptcy or insolvency proceedings, including voluntary insolvency or bankruptcy,

and will not take steps to enter into any voluntary insolvency or bankruptcy

arrangements between the date on which they sign this Agreement and the updating

of the Title Sheet by the Keeper disclosing this Agreement.

4. Effect of Agreement

4.1 With the exception of Clauses 8 — 13 which shall have effect from the last date of

_ _ _____ _--execution of this Agreement, this Agreement shall have effect and be binding on the

parties hereto with effect from the date of issue of the Permission. In the event that

the Permission lapses or is quashed, revoked or otherwise withdrawn prior to the

Commencement Date, any obligations in this Agreement shall lapse in their entirety

and cease to be enforceable by any of the parties against the others.

5. Public Open Space and Pavilion

5.1 Prior to the Completion of Construction of the final Residential Unit, the Proprietors

shall procure the Open Space Works are completed to the satisfaction of the Council

(acting reasonably). The Proprietors shall, from completion of the Open Space

Works until such time as an Alternative Arrangement is approved by the Council (a)

procure that the Open Space Area and the Pavilion are accessible to members of the

public; and (b) maintain the Open Space Area and the Pavilion to the satisfaction of

the Council (acting reasonably).

7

6. Play Facilities Contribution

6.1 Prior to Completion of Construction of the fourth Residential Unit, the Proprietors shall

pay to the Council the Play Space Contribution. The Council shall use the Play

Space Contribution for the Play Space Purposes and for no other purpose.

6.2 On receipt of the Play Space Contribution, the Council shall place it in a separate

interest bearing account. The Council shall upon a written request from the

Proprietors (at intervals of no less than 6 months) provide the Proprietors with written

updates on the timetable for the implementation of any works to which the Play

Space Contribution relates as well as detailed vouching showing the costs incurred

by the Council in undertaking the said works.

6.3 In the event of (One) the Planning Permission being revoked or in any way falling; or

(Two) the Play Space Contribution not being utilised, or fully utilised, by the Council

within five years of the date on which it was paid, then following a written request

from the Proprietors, the Play Space Contribution or the unused part thereof, together

with any interest that has accrued thereon (or would have accrued if the Council had

complied with its obligations under Clause 6.2), as appropriate, shall be refunded to

the party who paid the Play Space Contribution to the Council.

7. Discharge and Modification

In the event that the Proprietors wish to modify and/or discharge the whole or any

part of this Agreement, the terms of Section 75A of the 1997 Act shall apply. The

Proprietors shall be responsible for the Council's reasonable legal expenses and

outlays properly incurred in the negotiation, drafting, preparation, completion and

registration of any discharge and/or modification hereto.

8. Assignation

The Proprietors shall not transfer or assign their rights and obligations under this

Agreement or dispose of their interests in the Agreement Subjects to any party other

than the Developers without the consent of the Council prior to the registration of this

Agreement in the Land Register of Scotland, or the recording of this Agreement in the

relevant Division of the General Registers of Sasines (as appropriate).

0

9. Arbitration

Any dispute of any kind which may arise between the parties hereto and their

successors regarding this Agreement shall be referred, on the application of any

party, to the decision of an Arbitrator seated in Scotland, to be mutually agreed by the

parties and failing agreement appointed by the Sheriff Principal of Lothian and the

Borders at Edinburgh on the application of any party and the decision of such

Arbitrator, including any award of expenses, shall be final and binding on the parties

subject to the provisions of the Arbitration (Scotland) Act 2010 and failing such award

the cost of any such arbitration shall be borne equally by the parties.

10. Enforceability

10.1 This Agreement is made pursuant to Section 75 of the 1997 Act , as amended, and it

is agreed by the Council and the Proprietors that the obligations undertaken by the

Proprietors in this Agreement shall be enforceable at the instance of the Council as

planning and roads authority against the Proprietors and persons deriving title to the

Agreement Subjects or any part thereof from the Proprietors, provided always that for_ _ __

the purposes of section 75C of the 1997 Act, no person shall be liable for the

performance, or any breach of, any obligation after they have disposed of their

interest in the whole of the Agreement Subjects, save in relation to any breach

subsisting prior to disposing of such interest.

10.2 The terms of this Agreement shall not be binding on any individual bona fide owner of

any Residential Unit or land associated with any Residential Unit constructed on the

Agreement Subjects and the liability of the Proprietors under this Agreement shall

continue notwithstanding such sales.

10.3 The terms of this Agreement shall not be binding on any utility company that acquires

part of the Agreement Subjects for the purposes of providing services to the

Development and the liability under this Agreement of the selling party in any such

sale shall continue notwithstanding such sales.

10.4 Nothing (contained or implied) in this Agreement shall fetter or restrict the Council's

statutory rights, powers, discretions and responsibilities.

7

11. Notices

1 1.1 All notices which require to be given in terms of this Agreement shall be in writing and

shall be deemed to be sufficiently served if signed by or on behalf of the party issuing

the notice and either (i) delivered personally, or (ii) sent by pre-paid recorded delivery

or registered post addressed:

(a) in the case of the Proprietors at its Registered Office and, for subsequent

persons with an interest in the Agreement Subjects (if a body corporate)

at its Registered Office or Head Office, and (if an individual) at his last

known address in the United Kingdom and (if a partnership) to the

partnership and any one or more of the partners thereof in its last known

principal place of business in the United Kingdom or (in any case) at such

address as the Proprietors may have notified in writing to the Council;

(b) In the case of the Council, to the Council at its Principal Office or to such

other address as the Council may have notified the Proprietors previously

in writing;

and any such notice shall be deemed to have been served (i) if delivered personally,

at the time of delivery, and (ii) in the case of pre-paid recorded delivery or registered

post, on the second business day after the date on which the same was posted

(excluding weekends and public and statutory holidays).

11.2 In proving service, it shall be sufficient to prove that the envelope containing the

notice was duly addressed to the Council or the Proprietors, as the case may be, in

accordance with this Clause and posted to the place to which it was so addressed.

12. Expenses

The Proprietors shall meet the Council's reasonable legal expenses and outlays

properly incurred in the negotiation, drafting, preparation, completion and registration

of this Agreement, to include the provision of two Extracts of the Agreement for the

Council's own use.

10

13. Registration

The parties consent to registration hereof for preservation and execution: IN

WITNESS WHEREOF

These presents consisting of this and the preceding ten pages and the Notice of Intention andthe Plan are:

Subscribed for and on behalf of the City of Edinburgh Council

at Edinburgh

on ... ~2-:... ~;~,co~mH~e1:' .............. 2016

by ...I~A,I~,Nft 1~t...~.~~~5 ..............

..........................................Proper Officer

..... ~ln <<:~~ ...~~~a~:'.~............ Witness

~Qt~~~:re:..~ ~:N3..~ G,l~...........

Subscribed for and on behalf of Miller 1-lotnes Limited

at Edinburgh

rtness

int Name

.... .:.... ..... ... . . .................. Position .......................................... Address

1 1

-~f'~ ~~' -C—C~ ~i ~"e-~ ~-t (,~ t,~ .t ~ a.1= l~ C~ Q.~~ ~c ~~ 1`~ t~s't C—

C'~ ~ '1 J~- (~a1r~ ~-v~ c~1--. C,~ ~ ~t ~-- ~-.N~-l~ ~l lVt. ~---~ ~ b~l

ln-~ t t G—~Planning and Environmental Appeals Division V

Appeal: Notice of Intention

T: 01324 696 400F: 01324 696 444 The ScottishE: dpea@scotiand.gsi,gov,uk Government

Notice of Intention by Lorna McCallum, a Reporter appointed by the Scottish Ministers

• Planning appeal reference: PPA-230-2172• Site address: Land 70 metres north east of 10 Suffolk Road, Edinburgh.• Appeal by Miller Homes against the decision by the City of Edinburgh Council.

Application for planning permission dated 9 September 2014 refused by notice dated 1December 2015.

• The development proposed: Erection of 10 dwelling houses, creation of public park, newvehicular and pedestrian access, relocation of existing pavilion, alteration to existingboundary wall on East Suffolk Road and associated landscaping, drainage andengineering works

• Application drawings: as listed at end of this notice.• Date of site visit by Reporter: 23 March 2016

Date of notice: 21 April 2016

----- Notice oflntention -- --- __ _ _. __ --- -- _ __--- -- --

For the reasons given below I am minded to allow the appeal and grant planningpermission, subject to the conditions listed, following the signing and registering orrecording of a planning obligation under section 75 of the Town and Country Planning(Scotland) Act 1997, or some suitable alternative arrangement, covering the matters listed

in paragraph 39 below.

Reasoning

1. I am required to determine this appeal in accordance with the development plan,unless material considerations indicate otherwise. I am also required to pay special regardto the desirability of preserving or enhancing the character or appearance of the CraigmillarPark Conservation Area and to the desirability of preserving the setting or any features ofspecial architectural or historic interest of the listed building within the site and the setting ofthose listed buildings in the vicinity of the site. On this basis I consider the main issues inthis appeal are:

a) Impact on the Conservation Area and Listed Buildings.

b) Whether the loss of the existing open space and proposed development would complywith the relevant development plan policies, in particular, if it provides appropriate amenityfor adjacent residents.

,so,aao~.,~.Planning and Environmental Appeals Division T4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR ~ k ~ ^~;~~:'ot~`DX 557005 Falkirk www.scotland.gov,uk/Topics/Planning/Appeals ~ypy~ORLYPEOPLE $ ~J~~ ~~N

PPA-230-2172 2

c) Whether there are any other material considerations, including Scottish Planning Policyand the proposed local development plan, that would justify granting or refusing to grantplanning permission.

Policy Context

2. The development plan in this instance is comprised of the SESplan StrategicDevelopment Plan 2013 and the Edinburgh City Local Plan 2009 (ECLP). The nature andscale of the development are such that the relevant policies in this case are contained inthe local plan. Policies Os 1 and Os 2 set out the circumstances in which development ofopen space and playing fields will be acceptable or not. Policy Env 6 requires newdevelopment to preserve or enhance the special character or appearance of conservationareas. Policy Hou 1 supports housing on suitable sites within the urban area. Policy Env 3seeks to protect the character, appearance and setting of listed buildings. Policies Des 1,Des 3, Des 4, Env 9, Env 17, Env 12 and Env 16 relate to detailed design matters,archaeology, flooding/drainage, tree protection and biodiversity respectively.

Impact on the Conservation Area and Listed Buildings

3. The Craigmillar Park conservation area character appraisal describes the area as afine example of one of Edinburgh's leafy Victorian suburbs and notes the essentialcharacter of the area includes the striking views outwards. In relation to the area aroundthe appeal site it indicates that the predominant development form is large Victorian semi-_detached buildings set within large gardens. It notes that the former halls of residence atEast Suffolk Park are sited in a substantial landscape setting giving an open landscapedfeeling and uninterrupted views to Arthur's Seat. The former Craigmillar Park Free Chinis identified as a landmark building.

4. On inspecting the site and surroundings I noted that the buildings at East SuffolkPark are set within landscaped grounds, the housing on Crawfurd Road is relatively well-spaced and the modern housing to the south east is separated from the site by an area ofsemi mature woodland. A belt of trees is located along the northern edge of the site. Somerecent planting and a number of mature trees are located at the southern and southwestern edges of the site. Irrespective of whether they are private or publicly accessible,the domestic gardens and areas of open space contribute to the character and appearanceof this area.

5. I was able to view Arthur's seat, located to the north, from within the site above thetrees at the northern edge and from other locations on the surrounding streets. The site issurrounded by mostly residential properties on three sides; a railway line and watercourselie to the north of the site. I found the site to be fairly discretely located in terms of itsrelationship with the wider conservation area. Few properties face directly onto the site, thehistoric buildings to the south of the site are detached and mostly set within reasonablysubstantial grounds of their own. .With the exception of the mature trees at the boundaries,the site is largely hidden from view from all but the immediately surrounding properties.Arthur's Seat is a prominent land mark and can be clearly viewed not just from within thesite, above the trees on the northern boundary, but also at various points in .theconservation area.

,so,~oe~.:~Planning and Environmental Appeals Division ~,~

,fit Aeo

4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR ~~ ~ ~ o.•%%~` ~~,DX557005 Falkirk www.scotland.gov.uk/Topics/Planning/Appeals ~ P QryFy-~pRINPEOPfP err° ~■~

PPA-230-2172 3

6. The site is not an area of formally landscaped open space, it comprises an area ofopen grassland containing a number of desire lines; and appears only to be used forinformal recreational purposes, predominantly dog walking. I am not convinced that the sitemakes an important contribution to the essential character of the conservation area as awhole. This area of open space does not form a particularly visible feature within and doesnot contribute significantly in visual terms to the character or appearance of the widerconservation area. I find that the site is of more value in localised terms and I consider thisin detail below.

7. The proposed dwellings would be set against the back drop of existing trees alongthe north side of the site. The ridge heights would respect the neighbouring properties.The council's report of handling indicated that the limited form of the development and itslocation, confined to the north eastern part of the site would ensure the retention of principalviews out of the.site towards Arthur's Seat. From my examination of the site andsubmissions I reach the same conclusion.

8. I have considered the position of -the existing buildings and:the trees at the north ofthe site in relation to the views of Arthur's Seat. I have also taken account of the vistasidentified in the conservation area character appraisal. The surrounding buildings do notface directly across the site towards Arthur's Seat, most are set at oblique angles to the siteor do not face towards the north. The buildings to the south and east are set amongst openspace permitting views between them. Views of Arthur's seat across the site from any ofthe surrounding properties and from within the quadrangle at East Suffolk Park would beunaffected by the proposed dwellings as they would be set lower than the tree line. Views

_ _northwards along East Suffolk Road to Arthur's Seat would be unaffected by thedevelopmenf as it would be located further fo the east Views of Arthur's Seaf from

- - elsewhere in the wider conservation area would not be obscured by the development.therefore consider that the development would not be harmful to the views within and out ofthis part of the conservation area.

9. The appellants contend that the proposed development would enhance theconservation area as it would be of appropriate design and a high quality. The layout,design, massing and materials of the proposed housing reflect the adjacent dwellings onCrawfurd Road. The council accepts that the built form is largely consistent with thearchitectural character of the conservation area. I agree that, subject to a condition tocontrol the materials used, as recommended by the council, the proposals are in keepingwith the context of existing dwellings on Crawfurd Road and are of a standard suitable tothe conservation area.

10. A low stone wall with Victorian railings on top creates a formal frontage to the site onthe East Suffolk Road boundary. The proposals include the removal of a section of the walland railings to facilitate the new access. The existing boundary wall is an important featureof the conservation area. However, the majority of the wall would be retained and I notethat the stonework on the section to be removed is damaged and in need of repair. In myview the removal of a section of the boundary wall will not adversely alter the character ofthe conservation area. However, as the wall and railings are of value to the conservationarea, I agree with the council that the section removed should be incorporated into the newdevelopment. This matter could be addressed by an appropriately worded condition.

,sa„~~ ~~.. .Planning and Environmental Appeals Division ,:, r A,a4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR ~~ ~ ^:/•.%~~ . ~, _ rVa

~~NDX557005 Falkirk www.scotland.gov.uk/Topics/Planning/Appeals ~'m ~.~oR~P~oP~ °~:.a~E ■

PPA-230-2172 4

11. In order to facilitate the proposed housing the listed pavilion on site is to berelocated, Listed Building Consent has been granted for those works. The impact of theproposals on the setting or any features of special architectural or historic interest whichthis listed building may possess has been addressed through that application.

12. In terms of the current application the council and appellants accept thatdevelopment of the proposed housing should not commence until the works to relocate thepavilion have been completed and that this would require to be a condition of the planningpermission. The arrangements for the ownership and maintenance of the pavilion buildingwould require to be secured by a legal agreement. As it might take some time to reachagreement on these matters I consider that the legal agreement should require that themaintenance of the pavilion remain the responsibility of the developer until alternativearrangements, agreed by the planning authority, are in place.

13. The suspensive planning condition and legal agreement would facilitate theupgrading of the pavilion and improve its future prospects. The proposed housing facingonto the pavilion would also improve passive surveillance and may assist in the protectionof the building. I am satisfied that this listed building would be adequately preserved.

14. The council has stated that the conservation area character appraisal specificallyidentifies the site as important because it contributes to the setting of the listed buildings inthe area. The adjacent listed buildings to the south of the site are mostly set withinreasonable grounds of their. own. The proposals .include a bufFer of proposed open spacebetween the listed buildings and the proposed dwellings. There are a number of mature

--trees towards the southern end of the site and the proposals do not seek to remove these.The setting of the listed buildings would, in my view,~e adequately maintained by the openspace proposed, the existing mature trees and the additional planting proposed as part ofthe development. I therefore find that the setting of the listed buildings would be preserved.

15. Taking all of the above into account I consider that, subject to the appropriateplanning conditions and obligation, the development would accord with Local Plan PoliciesEnv 3 on conservation areas and Env 6 on listed buildings.

Loss of Protected Open Space

16. Policies Os 1 and Os 2 indicate that proposals involving loss of open space will notbe permitted unless there will be no significant impact on the quality or character of thelocal environment; the loss of open space would not be detrimental to the wider network;that there will be alternative equivalent provision to compensate for any loss of open spaceand there is no detriment to the overall quality of provision of playing fields.

17. The site has not been formally used as open space for same time. I consider that itscontribution to the quality and character of the local environment comprise its use aspassive open space and its aesthetic value to the character of the conservation area. Theimpact on the character of the conservation area has been addressed above.

18. In terms of the value of the site as passive open space approximately 42% of theoverall site would remain as accessible open space. The remainder of the site would stillbe largely open in nature given the proposed layout and generous front gardens proposed.The proposals include improved public access to the site and retention of the woodland to

i501JU111 uc Y. .Planning and Environmental Appeals Division

~EAep4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR g s~ ~ ~ ~.•/.. %~`DX557005 Falkirk www.scotland.gov.uk/Topics/Planning/Appeals~~~ ~,oR~,Prop~ `,VV"' ~~~

PPA-230-2172

the north of the proposed housing. The remaining open space is to be improved byadditional tree planting.

19. I am satisfied that the remaining open space could be secured, maintained andenhanced by means of a legal agreement. As it might take some time to reach agreementon the future maintenance of the open space, this agreement could also require that themaintenance of the open space shall remain the responsibility of the developer untilalternative arrangements, agreed by the planning authority, are in place. In addition,consider that an appropriate agreement could secure retention of the open space for publicuse and that the proposed works to enhance the open space shall be completed before thelast house is occupied in order to ensure that the requirements of policies Os 1 and Os 2are met. Subject to the legal agreement I conclude that there would be no significantadverse impact on the quality or character of the local environment as a result of thedevelopment.

20. Following negotiations with the appellants, Sportscotland has indicated that afinancial contribution: of £130,000, equivalent to the provision of a grass sports pitch, for theupgrading of an alternative site and secured via a legal agreement would be acceptable. Ithas identified potentially suitable sites but notes that the location to be upgraded wouldrequire to be agreed with the council. The acceptance by Sportscotland of the proposedcompensation satisfies me that the loss of the former playing field at the site can beadequately mitigated.

21. Subject to an appropriate legal agreement I conclude that there would be nosignificant adverse impact on the quality or character of the local environment or the wider_ _ _ -

-=open-space =network as =a resu f of the deve opmenf. - t ere ore= in t aft e=requiremen sof policies 0s 1 and Os 2 are met.

Other Development Plan Considerations

22. Policies Des 1, Des 3 and Des 4 relate to the design and layout of developments.These indicate that developments should draw upon positive characteristics of thesurrounding area. Criteria to be satisfied include that proposals must demonstrate apositive impact on setting and neighbouring properties. The site is located in apredominantly residential area and its development for housing would, in principle, becompatible with the surrounding land use.

23. I do not consider that the proposed site layout and design of the dwellings wouldresult in a loss of amenity for neighbouring properties. The dwellings and windows arepositioned to avoid overlooking and will not result in any loss of privacy. The dwellings areadequately spaced and their position in relation to surrounding properties would avoid anyadverse impact upon sunlight and daylight. The detailed design, scale and massing of thedwellings and level of garden ground provision would be similar to the existing adjacentdwellings; therefore they would have no harmful impact on the visual amenity of the area.Adequate parking provision is proposed and the council raised no concerns over thevehicular access to the site or traffic generation. As detailed above, the development willnot be harmful to the setting of the site and surrounding listed buildings. I am thereforecontent that the proposals would not adversely affect residential amenity. Consequently,find not conflict with Policies Des 1, Des 3 and Des 4.

Planning and Environmental Appeals Division4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR ;~E~ ~ ~ ~~i/A~i'o~~`DX557005 Falkirk www.scotland.gov.uk/Topics/Planning/Appeals T~ ~ f ~ R~,.PeaP,~ ~'~'.~ ~•N

PPA-230-2172 6

24. The appellants indicate that two trees are to be removed, one to allow access intothe site and the other for health reasons. They .propose additional planting at theboundaries of the site and within the proposed open space. The council propose conditionsto protect existing trees, to secure the implementation and maintenance of the newplanting. With these conditions, I consider that the development would accord with therequirements of policy Env 12.

25. The appellants note that Policy Env 9 "Sites of Archaeological Significance" isrelevant and they recognise the need to protect the cultural and historic environment. Theyindicate that there are no known archaeological features within the site. The councilrecommend a suspensive condition to secure appropriate archaeological investigation.Subject to this condition to protect any buried archaeological remains, I am satisfied that theproposals comply with policy Env 9.

26. The appellants indicate that the site will be developed in accordance with therelevant Sustainable Urban Drainage (SUDS) guidance and the proposed SUDS pond canclearly be accommodated within the proposed area of open space. The council hasindicated that subject to appropriate SUDS measures, the development would not bedetrimental in drainage terms. Subject to appropriate conditions to secure the SUDSmeasures, as listed below, I consider that the proposals comply with policy Env 17.

27. In terms of biodiversity, the submissions indicate that there is no evidence ofprotected species within the site or pavilion building. Almost all of the existing trees .are tobe retained and the proposed planting will add to the ecological value of the site. I amcontent that the requirements of policy Env 16, to protect habitats of protected species, aremet.

28. Policy Hou 1 supports housing on suitable sites within the urban area that are notidentified for housing in the local plan provided the proposals are compatible with otherpolicies in the plan. The site is an infill site within the urban area; in light of the aboveconsiderations I find the proposals accord with this policy.

29. Taking account of the above I am satisfied that, subject to appropriate conditions anda legal agreement; the proposed development within the urban area would not result in anunacceptable loss of open space. It would not be harmful to the conservation area andwould preserve the listed buildings and would not result in an unacceptable loss ofresidential amenity. Consequently, it would comply with the relevant provisions of thedevelopment plan.

Other Material Considerations

30. Reference has been made by the objectors to the emerging local plan, where theappeal site continues to be designated as open space and there are similar policies onopen space and conservation areas. This is considered to add weight to the case for thecontinued use of the site for open space and demonstrate that those policies are up to dateand fit for purpose. I understand from the submissions that Hou 1 is similarly worded inboth the adopted and the emerging local plan. I also understand that the replacement localdevelopment plan is currently at examination and may be subject to change through thatprocess. The submissions do not detail any conflict with the emerging plan. As the policyposition remains substantially unaltered I find nothing that would lead me to a different

~soum~a,v .Planning and Environmental Appeals Division ISI ~ peo

4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR ~ ~ ^` °' ~`.~~. ~ P da •o~❑X557005 Falkirk www.sc~tland.~~v.uk/T~~ics/planning/ANNcals ,,.~RINp~p,~ '~~ ~■N

PPA-230-2172 7

conclusion. Given the scale and nature of the proposal I do not consider that allowing thisappeal would raise issues of prematurity.

31. The Open Space Strategy (OSS) sets standards for open space provision followingan audit of open space across the council area. It indicates that proposals involving loss ofopen space must be assessed against policies Os 1 and Os 2. As detailed aboveconsider that the development can be justified against these policies, it therefore accordswith the OSS.

32. Scottish Planning Policy (SPP) paragraph 226 requires comparable compensation tomitigate against loss of land last used as playing fields or open space. SPP and ScottishHistoric Environment Policy (SHEP) also seek to ensure that new developments preserveor enhance the character or appearance of conservation areas and protect listed buildingsand their setting. The proposals acceptably comply with SPP and SHEP in terms ofcompensation to mitigate against loss of playing fields and open space and the impact onthe conservation area and listed buildings.

33. Paragraphs 32-35 of Scottish Planning Policy explain that where there is anidentified shortfall in the housing land supply or where the plan is more than 5 years old apresumption in favour of sustainable development becomes a significant materialconsideration. I note there is some dispute between the parties as to whether there is ashortfall in the housing land supply and whether the proposal represents sustainabledevelopment. This is a relatively small infill site and would make only a limited contributionto the housing land supply. Consequently, I do not rely on any housing shortfall argumentsin reaching my conclusions on this case. Whilst I find no conflict with the local plan, I am

- - - _ ___aware-that-if=is over-five yeas-old.- However, as stated-above am not-aware a -i s- --proposed replacement signals any relevant change in approach. In-any event, I considerthis proposal within the urban area would make efficient use of existing capacities of landand infrastructure. In these respects, I consider that the proposal could reasonably beregarded as one which would contribute to sustainable development. Housing is notsupported at all costs but drawing on my assessment above I find nothing in ScottishPlanning Policy or SHEP that would lead me to dismiss this appeal.

34. Reference is also made to the decisions on previous planning and listed buildingapplications and the 2002 appeal decision; the objectors argue that these lend weight to therefusal of permission in this case. Those decisions relate to developments that materiallydiffer from the current appeal. Parallels are drawn between the two appeals by theobjectors; however, it is material that the current proposals are for a significantly reducednumber of houses, a different form of development and for a substantially different sitelayout. My decision must be based on the merits of the proposals subject to this appealand current planning policy. I find the proposals to comply with current policies, theprevious application and appeal decisions, therefore, do not alter my conclusions asoutlined above.

35. I acknowledge the extent of local concern regarding the development. The issuesraised have been addressed in my consideration of the above matters. On balance I findthat the development offers a qualitative improvement in the open space provided at thesite, preserves the setting of the listed pavilion and will safeguard the amenity of thesurrounding area. I am satisfied that there are no material considerations that would justifyrefusing to grant planning permission.

,so,.~„~~. .Planning and Environmental Appeals Division ,s,4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR a ,f A~~'DX557005 Falkirk www.scotland.gov.uk/Topics/Planning/Appeals e?~ `~ ~ oP~ ~~~,°~~~` ~.N

PPA-230-2172 8

36. It has been pointed out that the application site is not fully within the appellants'ownership; this is not a material consideration in this instance and has no bearing on mydecision.

Conclusion

37. Taking all of the above into account I conclude that the development accords overallwith the relevant provisions of the development plan. The reduction in open space and lossof the former playing field could be suitably mitigated. The development would facilitate theimprovement of the remaining open space and would not adversely affect the amenity ofthe surrounding residential area. I consider that the development would preserve andenhance the conservation area. It would preserve the setting and features of specialarchitectural or historic interest of the listed pavilion within the. site and would not adverselyaffect the setting of the nearby listed buildings.

38. There are no material considerations which would justify refusing to grant planningpermission.

39. Consequently, I am minded to grant planning permission subject to the conditionslisted below and a planning obligation under section 75 of the Town and Country Planning(Scotland) Act 1997, or some suitable alternative arrangement. The agreement shall makeprovision_ for: _

_ -1) The financial contribution of £130,000 towards the upgrading of play facilities at analternati`ve local sife~o be-agreed by the council in conjunction with Sportscotland.

2) The retention of the remaining open space for use by the public ,arrangements forimprovement to and longer term maintenance of the remaining area of public open space,existing trees and proposed tree planting within the site. Specifically, this shall include thatthe proposed works to enhance the open space shall be completed before the last house isoccupied and that the maintenance of the open space shall remain the responsibility of thedeveloper until alternative arrangements, agreed by the planning authority, are in place.

3) The arrangements for the improvement works to and ownership and maintenance of thepavilion building. Specifically this shall include that the pavilion shall remain theresponsibility of the developer until alternative arrangements, agreed by the planningauthority, are in place.

40. Accordingly, I will defer determination of this appeal for a period of 12 weeks toenable the relevant planning obligation to be completed to be completed and registered orrecorded, as the case may be. If, by the end of the 12 week period, a copy of the relevantobligation with evidence of registration or recording has not been submitted to this office,will consider whether planning permission should be refused or granted without a planningobligation.

41. The schedule of conditions includes those submitted by the council. I have includeda condition to ensure implementation of the proposed SUDS drainage measures as this hadnot been addressed. In order to protect the character of the conservation area I find that it

~sotamt~v .Planning and Environmental Appeals Division T4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR ~s i~'~ ~ o i%. %.`DX557005 Falkirk www.scotland.gov.uk/Topics/Planning/Appeals ~' ~~ ~,,~~R~,p~p,~ arr° ~a

PPA-230-2172 D

is also appropriate to include a condition to control the works to the boundary wall andrailings and to ensure the reuse of the section to be removed within the development.

Lorna .~lcCa~~umReporter

Application drawings

LP(-)01 (Location Plan), SK(--)01 (Block Plan), L(--)03 (Elevation Treatment A &ElevationTreatment B), SK(--)09 (Garage &Ground Floor Plans), SK(--)10 (First &Second FloorPlans), SK(--)15 (Cross Section Through Plot), SK(--)16 (Access Boundary &Down taking).

Proposed conditions

1. That before any development to construct the new housing or associated accessroad commences, the works to relocate the category C listed pavilion shall be completed tothe satisfaction of the planning authority.

Reason: To ensure that relocation of the listed building is undertaken before developmentof the houses commences.

2. No development shall take place on the site until the applicant has secured the___ ___ _implementation_of_a_programme.of archaeological_work_(excavation, historic_building

survey, analysis and reporting, publication) in accordance with a written scheme ofinvestigation which has been submitted to and approved by the Planning Authority, havingfirst been agreed by the City Archaeologist.

Reason: In order to safeguard the interests of archaeological heritage.

3. Prior to the commencement of development on the site a detailed specification,including trade names and samples of those materials, of all the proposed externalmaterials shall be submitted to and approved in writing by the Head of Planning andBuilding Standards. Thereafter, the development shall be carried out in full accordancewith the agreed pallet of materials unless further amendments have been agreed in writingby the Head of Planning and Building Standards.

Reason: In order to enab/e the Head of Planning and Building Standards to consider thesematters in detail so as to protect important elements of the existing character and amenityof the site and safeguard the character of the conservation area,

4. All trees existing on site (except those identified for felling as outlined in thesubmitted Tree Survey Report produced by Donald Rodger Associates ArboriculturalConsultants, dated November 2013) shall be retained and no trees shall have roots cut orbe lopped, topped, felled, uprooted or removed, unless otherwise first agreed in writing withthe Planning Authority.

~so~,~, e«, .Planning and Environmental Appeals Division ,,,4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR ~~~I~ ~ ~ ~':%:. %~~` ~,DX557005 Falkirk www.scotland.gov.uk/Topics/Planning/Appeals ~' ~ P I\M1~CSIORI~.'PEOPIE °rr° ~■1?

PPA-230-2172 10

Reason: In the interests of visual amenity; to ensure that all trees to be retained aresatisfactorily protected before and during construction works.

5. Before any works start on site; the developer shall submit details and specificationsof the protective measures necessary to safeguard the trees on the site during developmentoperations. The developer shall notify the Planning Authority in writing on the completion ofsuch measures and no work on site shall commence until the Planning Authority hasconfirmed in writing that the measures as implemented are acceptable. The protectivemeasures shall be retained in a sound and upright condition throughout the developmentoperations and no building materials, soil or machinery shall be stored in or adjacent to theprotected area, including the operation of machinery.

Reason: In order to ensure that no damage is caused to the existing trees during(demolition and) development operations.

6. Before any works start on site, a scheme of landscaping indicating the siting,numbers, species and heights (at time of planting) of all trees, shrubs and hedges to beplanted, and the extent and profile of any areas of level changes, shall be submitted to andapproved in writing by the Planning Authority. The scheme as approved shall beimplemented within the first planting season following the date of this consent.

Reason: In the interests of visual amenity and to ensure a satisfactory standard of localenvironmental quality.

7. All planting carried out on site shall be maintained by the developer to thesatisfaction of this Planning Authority-for a period of 5-years from the date of planting:-Within that period any.plants, which are dead, damaged, missing, diseased or fail toestablish shall be replaced annually.

Reason: /n the interests of visual amenity and effective landscape management; fo ensurethat adequate measures are put in place to protect the landscaping and planting in the longterm.

8. The proposed SUDS compliant surface water drainage scheme shall beimplemented contemporaneously with the development in so far as reasonablypractical. Within 3 months of the construction of the SUDS, and before any dwelling withinthe site is occupied, a certificate (signed by a Chartered Civil Engineer experienced indrainage works) shall be submitted to the planning authority confirming that the SUDS hasbeen constructed in accordance with the relevant SEPA SUDS guidance.

Reason: To ensure that the drainage scheme complies with best SUDS practice to protectadjacent watercourses and groundwater.

9. Prior to the commencement of development on the site a detailed specification forthe works to remove the section of boundary wall and railings and for the incorporation ofthe removed section into the new development shall be submitted to and approved inwriting by the Head of Planning and Building Standards. The works to incorporate thesection of wall and railing into the new development'shall be completed to the satisfactionof the Head of Planning and Building Standards before the last dwelling within the site isoccupied.

isouom myPlanning and Environmental Appeals Division aai4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR d ~ ~ o':%.. %`

\/~ ~ ~a e ^may y~ ~:~

DX557005 Falkirk www.scotland.gov.uk/Topics/Planning/Appeals ~~y ~roaarreor~z ,VVa

PPA-230-2172 11

Reason: So that this feature is retained in order to preserve and enhance the character andappearance of the conservation area.

15011001v V. .Planning and Environmental Appeals Division „~,~c xeo

4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR ~~ ~ $~.•//: Qo` ~yDX557005 Falkirk wwwscotland.gov.uk/Topics/Planning/Appeals ~~E n-p~}10RINPEOPffi ~~AB~E~ ~~r

~ S ~ S ~+~ P 1, A-~1 Q~u-FE-p-~~ ¢~ 7~.1 t~-4~ ~6-C-~ s1 ~ .r.~t ~ a tti i Cr ~ 4 C ~ ~t~ f-~.1 ;— P~fn ~.J-t~ ~.l 1 ~ ~

W-~~' r t l wig H~1-E-1 lit M 1

0

O

73

~ 5 21 avilion

~Q 1 CRAWFURD ROAD

\/

~ ~ oD

__ _ _ ~ _ a _ _ _ _ ______ __ ___ _ O(et5 O O(e;5 _

~jt ~cjG~ ~O\ ~ L ~ OO hip\J 5 S

O~Pc''( s~ '8 "I~ t~c~

9~ ~~ ~~ W ~

C~9~ei5

~ 1MA 5~ ~.~ hood /~ r~ o

9~

~ ~i

N Title

vo D ~ I Open Space0 10 20 30 40 50 100m

m~llerhomes scope: 1:1250~aA3 r~tie:EastSuffolkRoadDote: NOv2016

Miller House, 2 Lochsitle View, Edinburgh Park, Author. Title: QpBll .SpBCB

EDINBURGH, EH129DH Drawing No. ESWOPENSPACE/01- Tel: 0870 336 5000 Fax: 0870 336 5160

www.millerhamas.co.uk

oms orsnvnHc is caPrvicvr o aE woakEo .Ro