Here is a text copy of the planning decision notice for RP9 in water tower wood. Tonight we have 30 local folks round to the house and woodland for a party and an opportunity to walk the woodland. I'm hoping the weather stays dry. We have made some signs for the areas accessed in the woods such as "The Royal Niall" so named because Niall Cassidy helped to create these steps. We also have Micks Bridge and Susies Steps. Mini Springfield Mill is another fun one for the miniature creation of this woodland wonderland in Polton. I'm sure we will have more in due course.
What about the report though? I thought it was very fair and balanced and maybe indicated that the planning folks in Midlothian should have been more up to speed with some issues. I read between the lines regarding whether or not some of the items need to be applied for in the first place. I'm pretty sure that the steps and the path works would never need to have been applied for at all. These items served to create nothing more than "noise" and potential to open up a can of worms for any conservation area garden development.
The dismissal of RP9 in such short and simple terms brought light to my life. At last we have a sensible appreciation of the policy. For the house build RP9 might have held more weight, but for the fence and sitooterie/store it was a simple assessment. I'm sure Kingsley will be pleased to have his position justified as well.
Long lenses were noted as used by some in submitting photographs. I'm glad Mr Culshaw made this point because the audacity of representors (5 people turned up for the site visit) to thrust a photogrpah under his nose that was 2 years old or more, taken in winter and when the site was a building site had me biting my tongue to say more to the owner of the photo. It was clearly taken with a "long lens". The lengths that some people went to were incredible, one person even asked Mr Culshaw if he would investigate Mr Goldwyre though the internet as part of this planning appeal! Hence some of my recent references to the validity of internet information. Trawling the internet a local chap posted photographs of the tower and other buildings stating that the restaurant is in the tower. I have written to him to get that changed. I have even found reference to water tower restaurant in USA stating that it is owned by Goldwyre with a substantial turn over and employing 25 staff. Well that's just so true isn't it. That same person also thrust a brown envelope into Mr Culshaws hands!!!!! well OK it was a white envelope. In some circles that could be taken as potential for bribery.
I'm sure we are not out of the woods yet with more complaints likley to wing there way to Midlothian House. We have a stage 2 complaint in the system ourselves so I guess relationships will be less than warm. Right now though the sun is shining and we have a big party to cater for. Planned some 6 weeks ago now and timed to perfection with the DPEA result. I'll just nip across the road to the restaurant house for the crockery and cutlery - some chairs - some cooking utensils - bits and bobs. Its fun having more than one abode to store things.
One final note. Gerry.....well you would think he was really interested in the nuances of all this planning stuff but no - Gerry was just so pleased about the comment on the castellations for the fence. He strongly disagreed with Kingsley's ask that these were cut off and lo and behold, the Reporter has stated that they are an interesting contemporary design feature. Nothing else mattered to Gerry and the tops stay on the fence posts with RP9 subtly marked onto the posts. And when everyone asks why we called our house RP9 what a story there is to tell.
This blog may be a liitle less exciting in the coming weeks and months......
Directorate for Planning and Environmental Appeals
Appeal Decision Notice
T: 01324 696 400
F: 01324 696 444
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E: dpea@scotland.gsi.gov.uk
Decision by M J Culshaw, a Reporter appointed by the Scottish Ministers
•
Planning appeal reference: PPA-290-2014
•
Site address: RP9 The Water Tower, Cemetery Road, Dalkeith, EH22 3DL
•
Appeal by Mr and Mrs Gerry Goldwyre against the decision by Midlothian Council
•
Application for planning permission 10/00694/DPP dated 23 December 2010 refused by
notice dated 21 April 2011
•
The development proposed: Erection of timber decking with storage beneath, erection of
boundary fence incorporating a bin store, works to stabilise banking, alterations to path,
formation of woodland access steps and erection of associated guard rails (retrospective)
•
Application drawings Location plan 08-21-PLAP01; Sketch showing elevation to
'sitouterie' and fencing with new beech hedge
•
Date of site visit by Reporter: 8 August 2011
Date of appeal decision: 7 September 2011
Decision
I allow the appeal and grant planning permission subject to the conditions listed at the end
of the decision notice.
Reasoning
1. An application by Mr and Mrs Goldwyre for an award of expenses against Midlothian
Council is the subject of a separate decision.
2. This application sought permission for a number of works which have taken place or which remain to be completed within the grounds of a dwelling known as RP9, The Water Tower. This is a dwelling erected on land on the opposite side of Cemetery Road Dalkeith from The Water Tower, which has itself been converted to a dwelling. It was previously associated with Cemetery Cottage (though I note that there is dispute as to the extent of the cottage’s garden) and its erection was permitted in 2008 on the site of a gazebo in that garden. This followed an earlier permission in 2006 and the sale of land by the council. I understand that a number of restrictions were placed on the land as burdens associated
with the sale. The council advise me that they are pursuing separately a number of matters in relation to those burdens. These however are not matters which are relevant to the determination of this appeal.
3. The description of development provided above is that which was given on the council’s notice of refusal of permission dated 21 April 2011. The planning application, which indicated that the works had already been carried out because the applicant had not anticipated that these matters would be classed as development and as such require a planning application, contained the following description of the work proposed:
See attached for details 1-4
1 replacement of temporary store/platform to permanent store/platform with
glass protection rail
2 boundary fence (replacement)
3 Path broadening and guard rail
4 Access steps and guard rail into woodland
4. The difference between the two descriptions was the subject of correspondence between the applicants and the council and is also the subject of the claim for expenses. The application plans are not very detailed, comprising a location plan and a sketch of the ‘sitouterie’ – a store/platform with a glazed rail – and fence, and with the agreement of the council photographs were submitted rather than further drawings. I note that the location plan submitted with the appeal is differently referenced from that which is lodged on the council website as part of the planning application. The detail on the appeal plan appears to be the same as that on the application plan except that the reference numbers of
photographs have been altered to reflect the reference system of the photographs
submitted with the appeal. The matters which are the subject of the retrospective elements of the application are visible on site and I have based my considerations on the outcome of
my site inspection.
5. The determining issues in this appeal are the effect of the development on the scenic qualities of an Area of Great Landscape Value (AGLV) and on the landscape of the River
North Esk valley and its impact on the character and appearance of the Eskbank and
Ironmills Conservation Area.
6. The appeal site is located in a heavily wooded and steeply banked area which adjoins Ironmills Park which lies on the opposite side of the river. When I visited the site
trees were in full leaf and much of the site was concealed from views from the park except
from a distance of about 100m and from further away. I also viewed the site from a section
of the Glenesk Viaduct where the path on a former railway line crosses the valley. A
glimpse of the site could be obtained from that viewpoint and I note that a number of the
representations submitted to this appeal have been supported by photographs taken with
long lenses which used this vantage point. At present the house on the site, which is clad
in untreated timber, is quite prominent in the view because of its newness. As the timber
weathers I anticipate that it will recede considerably in the view, and this has clearly been a
design consideration. From these distant viewpoints the greatest prominence is gained by
the linear features of the tennis club fence and high protective coloured mesh which run
along the skyline behind the appeal site.
7. It is clear that relations between the appellants and their neighbours and other local people and organisations in some cases leave a lot to be desired. As a consequence many
areas of disagreement have been aired both by those opposing this appeal and by the appellants which are not directly related to the matters which I am appointed to determine. I have not taken these into account.
8. Following the site visit the council’s representative wrote drawing my attention to additional matters relating to a path which was seen at the site inspection but which they
say was not part of the application or appeal. I have restricted my consideration in this
appeal to the matters which were the subject of the application which was refused
permission by the council, and I have not dealt with any other matters. Whether or not
other actions have taken which either breach the burdens on the site or breach planning
control is outside my remit and must be pursued separately if those involved find it
necessary.
9. The council have referred to a number of policies of the Midlothian Local Plan.
Policy RP6 says that development will not be permitted where it may adversely affect the
special scenic qualities and integrity of AGLVs. Policy RP7 similarly aims to protect the
quality of the local landscape. Policy RP9 requires that development within the river valleys
has a specific locational need. Policy RP20 aims to resist development within built up
areas where it is likely to detract materially from the existing character or amenity of the
area. The site lies within the Eskbank and Ironmills Conservation Area and Policy RP22
aims to protect the character and appearance of conservation areas from adverse effects of
development.
10. One of the representations received in relation to the appeal expressed surprise that
certain of the matters dealt with in this appeal were considered by the council to constitute
development requiring planning permission. Although the appellants expressed similar
surprise they did not in their appeal question the council’s judgement in this respect and I
have dealt with the appeal which is before me. It seems to me that the granting of planning
permission for a dwelling on this site has resulted in the need for changes to the curtilage of
the property to make it more convenient for use. Although the council have not produced
the planning permission for the dwelling (ref 08/00541/FUL) they have not alleged any
breach of the conditions of that permission. A number of representations refer to the
unkempt appearance of this site before development took place. All of the works which are
the subject of this appeal are in my opinion works of a type which might reasonably have
been expected as part of the development of a garden associated with a dwelling in a
woodland area. The issue is whether they have been carried out in a manner which
conflicts with the council’s policies.
11. I deal first with what is variously described as the store/platform/decking. The report
of the officers to the Committee described this structure as sited outwith the red line
boundary of the host dwelling as it was described by the planning permission, but it was
said to be on land immediately adjacent to the dwelling house boundary and not separated
from the dwelling by any natural or manmade feature. It was said to be within the area that
was described in the report submitted to the Planning Committee in respect of the 2006
application for the house as having been “clearly used in association with the gazebo and
would form part of the extended garden space to the new house” (the italics are those used
in the Committee report). Thus although the structure was described in the council’s appeal
statement as being in an area of the woodland which was not previously developed, it is in
an area where earlier reports accepted by the Committee had anticipated garden use and I
agree with the officer’s report that its location is justified by its association with the dwelling
within part of the previously recognised curtilage. Neighbouring residents have argued that
the garden ground of Cemetery Cottage was much smaller, bur whether or not that is
correct the granting of planning permission for the present dwelling altered the situation.
The structure comprises a platform with a storage space under and is clad in untreated
timber with a clear toughened glass balustrade. Like the house I anticipate that it will soon
weather and become less evidently new, and its appearance will be softened by planting.
There is dispute as to whether it is higher than the outdoor seating area which preceded it
but even at present I do not agree with the council that it harms the scenic qualities of the
AGLV or the landscape of the valley. It is only seen from distant and fairly narrow
viewpoints. Although the council says that it is more significantly visible from the park when
the platform is in use or when it contains garden furniture, I very much doubt that with the
distances involved these factors would make much difference. I accept that when leaves
are not on the trees the site will be more exposed, but not, in my judgement, to an
unacceptable degree, and certainly less so than the obtrusive tennis club boundary against
which background it will be seen.
12. The boundary fence which is the subject of this appeal separates the property
from the end of Cemetery Road and runs alongside the path down to the valley
approximately as far as a wooden pylon. Its height is appropriate in providing privacy for
the occupiers of the dwelling, and is a reasonable requirement. A bin store behind the
fence and constructed of the same materials did not form part of the application until
included in the description by the council, but in any event is not visible from outside the
site. Suggestions in representations that it is larger than necessary for the storage of bins
may or may not be correct, but it could not be used for any purposes other than those
ancillary to the occupation of the dwelling without further planning permission. The fence
also incorporates a pedestrian gate and a larger vehicular gate also constructed in the
same material which blend in to the appearance of the fence. The description by the
council of the fence as castellated might give the impression that it is intended to give the
appearance of a castle. In fact the fence consists of sections of vertical boarding
interspersed with pairs of boards which project slightly (about 300mm) higher. This is an
unusual design feature for a boundary fence which adds variety and reflects the
contemporary nature of the house design. I do not find that it adversely affects the
appearance of its surroundings. At the time the report to Committee was written the
applicant had proposed planting a beech hedge adjacent to the fence to soften its
appearance. By the time of my site visit that hedge had been planted but had been
reduced to a single plant as a result, I was told, of thefts of the new plants. Despite this I
consider that the planting of a hedge, perhaps with some temporary protection, is an
appropriate course of action and I have imposed a condition to this effect. Its trimming from
time to time will prevent it from obstructing the path as one objector suggests. However I do
not accept the view of the council that the fact that no hedge can be planted in front of the
gates will harm the character of the conservation area.
13. A path within the garden of the dwelling runs along the steep slope of the land and
safety measures to prevent it eroding have been carried out – I understand the erosion
results from run-off from the neighbouring tennis club. These works are one of the subjects
of the dispute between the council and the appellants over the alteration to the description
of the development. The appellants in their response to the council’s appeal statement say
that the path was broadened by 500mm and the method chosen was to put a board along
the line of the path, supported by a triangulation between two existing tree trunks. As I
understand it, it is this path widening which is described by the council as bank stabilisation
and by the appellants as works to prevent erosion. The works comprise some widening of
the path and strengthening with timber triangulated as described at a point where the bank
had dropped away. A screen for these works which has the appearance of shuttering is
visible from some parts of Ironmills Park but is constructed in similar untreated timber to the
house and will soon blend in. A wooden handrail provided both here and for a section of
the lower path which provides woodland access, presumably for safety reasons, might also
be discernible from parts of the park, but is equally unobjectionable. The council’s officers
advised that the works had been sympathetically carried out and would have no discernable
adverse impact on the landscape character of the area, and I agree. The council’s
statement also raised objection to the appearance of a concrete slab path close to the
house running from there to the bin store and indicates that in a conservation area higher
standards would have been expected. It similarly objects to the same materials being used
for the steps to the raised deck. These are plain concrete paving slabs and are not
discernible from outside the site. The appellants claim that these matters have been raised
at a late stage by the council and were not originally objected to. One representation says
that the paved path has already been approved. Whether or not that is the case they are
clearly present on the site, but the council have not explained in what way they are
considered inappropriate or what harm they cause and in my view they cause none.
14. The one part of the application which was not retrospective relates to a continuation
of the woodland path to the western boundary, and is shown on the location plan. Provided
this path is sympathetically constructed I see no objection to its continuation on the line
proposed. It will enable access to other areas of woodland for maintenance purposes.
15. The council have referred to the requirement of Policy RP9 that development within
the river valley protection areas of the North Esk, South Esk and Tyne rivers should have a
specific locational need. Since all these works are associated with a dwelling permitted by
the council within the protected area it is difficult to see how the need for them could be
more locationally specific. They clearly could not be carried out anywhere else. The policy
further requires that locationally necessary development should not adversely impact on the
landscape or conservation value of the valleys and I have concluded that it does not. It also
requires that it should not impede potential public access opportunities, but since no public
right of way is claimed and this is a dwelling curtilage where rights of access under the
Land Reform Act 2003 do not apply no such opportunities exist, whatever may have been
the case before the dwelling was built.
16. The appeal site does not lie within the AGLV, the closest part being in Ironmills Park,
but I accept that views from within the AGLV can be affected by development outwith its
boundary. The AGLV is clearly an attractive area, as is the wider area covered by RP9.
However I do not consider this development harmful to any degree which would merit the
refusal of planning permission and neither Policies RP6 nor RP7 are contravened. I do not
consider the minor matters dealt with in this appeal either individually or collectively harm
the Eskbank and Ironmills Conservation Area, the character and appearance of which
would be preserved, nor do they detract from the character and amenity of the built up area.
There is therefore no conflict with Policies RP20 or RP22
17. I have given careful consideration to the many representations submitted by local
people and organisations in respect of both the application and the appeal. The Eskbank
Amenity Society clearly consider that past decisions of the council have led to an
unsatisfactory situation but those decisions are in the past. A number of their complaints
relate to matters such as the spreading of bark chippings, the siting of garden features and
the creation of other paths and steps which are not the subject of this appeal and therefore
outside my remit.
18. There have been a number of references to tree felling which had taken place at the
site. I note the appellants’ explanations of this, but since it is not the subject of this appeal I
have reached no conclusion. There have also been allegations that the decking is used for
purposes connected with the appellants’ business and advertised as such on their website.
If there is a breach of planning control in this respect it is for the council to deal with it using
their planning powers, and similarly I make no comment.
19. I have concluded that the relatively modest matters dealt with in this appeal both in
terms of the retention of works already completed and the proposed woodland path
extension do not harm the scenic qualities of the AGLV or the landscape of the River North
Esk valley. The character and appearance of the Eskbank and Ironmills Conservation Area
would be preserved. In reaching these conclusions I have taken into account all
representations, but none of them has been sufficiently compelling to alter my findings.
20. The council have suggested three conditions which should be applied if I grant
planning permission. For the reasons given above I do not agree with them that the
castellations on the fence need to be removed. The proposed condition relating to the use
of the raised timber deck is unnecessary in light of the guidance in Circular 4/1998 since
use other than for purposes incidental to the enjoyment of the dwelling would be likely to
require planning permission. The proposed condition in relation to the extension of the
woodland path is in my view unnecessarily restrictive in ruling out any timber decking or
boards, which might be necessary for safety reasons in some circumstances. Instead I
have required details of the construction and surfacing to be submitted for the approval of
the planning authority. The suggested condition also says that the path should be used
only for woodland access and for no other purpose without any explanation of what other
harmful use the council fear it might be put to. While some representations have expressed
concern that a path might be created to the river it is not clear to me what harm that might
cause and thus what planning purpose the condition would serve. Fears that it might
contravene the burdens on the land should be dealt with through the enforcement of those
burdens where appropriate. I have therefore omitted this part of the suggested condition.
M J Culshaw
Reporter
Conditions
1. Within 3 months of the date of this decision a beech hedge shall be planted outside
the front boundary fence at a density of 5 plants per linear metre in a staggered row, and
once matured shall be maintained at a minimum height of 1.5 metres. Details of any
temporary protective measures for the plants shall be submitted for the prior approval of the
planning authority. Any plants which within a period of five years are removed, dying
severely damaged or seriously diseased shall be replaced in the following planting season
by plants of a similar size and species to those planted. Reason: to secure the softening of
the appearance of the fence.
2. Details of the construction and surfacing of the extension of the woodland path to the
western boundary shall be submitted to and approved by the planning authority before any
further work commences on site. Reason: to ensure these details are appropriate to the
woodland setting of the path.
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