Result of a Planning Appeal

To the

Scottish Office

Against

Orkney Islands Council

Inquiry reporters

Reference: P/PA330/10

24^th March 1998 

1. I refer to your appeal, which I have been appointed to determine, against conditions imposed on the grant of planning permission by Orkney Islands Council for the extension to house (Granny Flat) at Waaness, Hillside Road, Burray. I made an accompanied inspection of the appeal site and the surroundings on 26 November. I have since considered parties’ written submissions, including the council’s claim for an award of expenses, the exchange of which was concluded on 6 January.

2. The appeal site is located on an exposed hillside in the countryside overlooking the Churchhill Barriers at the eastern end of Scapa Flow. The "Granny Flat" which is the subject of this permission has been built. It has 2 bedrooms, a lounge, kitchen and bathroom. The external finishes match those on the adjoining bungalow, to which it is attached by a Corridor/vestibule which leads from the double garage of that property. The original bungalow appears, from the submitted drawings, to have a floor area of approximately 240m ², the extension has added 88m ²

3. The planning permission which is the subject of this appeal was subject to 6 conditions, including the standard time limit imposed by section 58 of the Act; a condition (2) requiring that the development be undertaken in accordance with the approved plans; a condition (4) requiring that the materials match those used in the construction of the adjoining house; and:

Reason: In accordance with the form of application.

4. You state, in support of your appeal, that you decided to appeal against the council’s decision following receipt of the draft agreement from the council but this has not been forthcoming. You therefore appealed the decision before the statutory deadline. You wish to accommodate your mother-in-law and aunt in a self contained flat where they may be looked after easily. When they no longer require the accommodation you wish to be able to let it but you understand that the council consider that this would infringe the Housing Location Policy in the Orkney Islands Structure Plan, although you question the application of that policy. You contend that the council’s decision in this case would allow your son and his family to occupy the extension, or you could move into it and let the adjoining house, without infringing the council’s policy. These anomalies lead you to believe that their approach is incorrect.

5.You emphasise that your proposal involves accommodation for your family. You have never indicated any unwillingness to enter into the agreement, the council’s allegation to the contrary is no more than conjecture. You have forwarded your deeds to the council, as requested, but the draft of the agreement has never been produced for your consideration. Because the agreement was withheld by the council you assume that condition (3) of the permission is not valid. You consider, therefore, that you have not breached any conditions of the permission. Your objection arises from the development plan policy which prevents long-term letting. You accept that part of the agreement which requires that the extension should not be separated from the main building and should remain as one unit. That being the case long-term letting would not make the extension into a separate house and should not therefore form part of the agreement.

6. You have resolved the drainage problems which concerned SEPA to the satisfaction of the Council’s Building Control Section and have never sought to conceal from the council that the development which is the subject of this permission was being built. It has, during the course of construction, been inspected by them.

7. The council state that, following a misunderstanding about your intention to appeal against the condition requiring the agreement, they set aside work on its preparation. They contend, meanwhile, that you decided to ignore the disputed condition and started development as early as June 1997 but failed to notify the Building Control Section. An inspection took place on the 5 August 1997 when the walls were up, but the roof was not in place. That was 11 weeks before you lodged this appeal. They argue that you knew that the planning authority would be unaware of the breach of condition, the first they knew of it was at the site inspection arranged in connection with this appeal. Your "schimpfing" at a meeting in May was taken as an indication that you were unwilling to sign the agreement.

8. The council state that rather than delay the issue of planning permission in this case until the agreement had been signed and executed, they drafted condition (3) in suspensive form so as to reduce delay to the minimum and allow you to do the corrective works to the sewerage system. The appeal site is subject to both Policy 13 of the approved structure plan and the council’s housing location policy. The first does not prohibit long-term letting in this location. The latter expands the whole scope of the structure plan and is held to be the relevant document setting out guiding principles for the residential development in this scattered low density area. The provisions relevant to infrastructure were dealt with by other conditions or under statutory responsibilities. Criterion (5) requires, amongst others, that the proposal should be located 50-100m from the nearest dwelling. Had this proposal been for a separate dwelling this would have been infringed and, were a separate dwelling to be created, a precedent would be set for the extension of other detached rural houses. The exceptions provided for in this policy relate to existing buildings, not new developments as in this case.

9. They submit that the appeal should be dismissed as void on the grounds that the conditions imposed were accepted by you and it is not possible to appeal against them once development is started, far less all but completed. Further, the condition is necessary, because without it the development would have contravened the housing location policy; relevant because it relates directly to the development which was permitted and is required on planning grounds; enforceable because it is clear what would represent a breach of the condition; precise; and reasonable because it allows you exactly what you proposed. The council therefore conclude that the condition is lawful.

10.When consulted, SEPA recommended that planning permission should be refused because the existing sewerage treatment arrangements were unsatisfactory and were the subject of a Conditional Prohibition Notice. They observed that the existing septic tank may be too small to deal with sewage from what is effectively 2 houses.

11.Despite your statement that you have appealed the conditions attached to the permission, it is clear from your submission that only condition (3) is of concern to you. Section 25 of the Act requires the determination in this case to be made in accordance with the provisions of the development plan unless material considerations indicate otherwise. From my reading of the submissions only policy P13 of the Orkney Islands Structure Plan, as approved and altered, applies. The council’s Housing Location Policy does not have the status of the development plan within the terms of section 25 of the Act. In my judgement, based on my inspection of the appeal site and my reading of the written submissions, the issues to be determined are whether the disputed condition is required in order for the development to comply with the development plan policy and, if not, whether this condition is justified by other material considerations.

12.I find, in relation to the development plan, that policy P13 establishes no linkage between rural development and occupancy or use. The condition is not, therefore, required in order for the development to comply with development plan policy.

13.Turning to material consideration, I find that the proposal, and the development that you have undertaken, effectively involves an independent dwelling attached to your house. It is the terms in which it is occupied that make it acceptable, exceptionally, to the council, provided occupation is limited to members of your family so that the property in effect is an extension of your house. Your objective, in the longer term, is to have that restriction removed. The council base the terms of the condition on their Housing Location Policy which seeks to maintain the character of this, and other, areas of scattered low density housing by requiring 50-100m separation between individual houses. I find that what the condition seeks to achieve is consistent with the objective of the council’s non-statuary policy. That policy is itself consistent with long standing planning policy in the remote rural areas of Scotland. I have doubts, however, as to whether this was the most effective means of achieving their objective.

14.The secretary of state’s policy for the use of agreements is contained in SODD Circular "12/1996"Planning Agreements". Paragraph 12 makes it clear that such agreements are generally considered reasonable only where the matter may not be resolved through planning conditions. In this instance the disputed condition suspends the right to commence development until you have enter into an agreement under section 75 of the Act. The policy applying to "The Use of Condition in Planning Permission" contains 6 tests each of which must be met. Irrespective of performance against tests 1-5, I find that a condition which requires that an agreement is entered into is unreasonable because, for an agreement to be struck both parties must be willing. Based on the submissions it appears that neither you nor the council wholeheartedly supported execution of the agreement as required by the condition. The council have indicated that they considered indicating that they were prepared to grant planning permission which would have been withheld until the agreement was executed. In the circumstances of this case that would have been the correct course of action.

15.Turning now to other considerations in the conditions Circular, I find that this case is is fully consistent with the situation now described at paragraph 97 and with the general policy which was extant at the time of the council’s decision to grant planning permission. I find that there are sound planning reasons in the council’s policy why the creation of an additional dwelling, which would be the practical effect of independent occupation, would be unacceptable in this location. I therefore consider that it is appropriate, as recommended in the circular, to delete the disputed condition and impose a planning condition to the effect that the extension permitted shall be used solely as accommodation ancillary to the main dwellinghouse. The issue of letting, or the creation of an independent residential planning unit, will require to be determined on its merits and against the development plan policies then applying, when it arises.

16. I therefore find good reason to delete the suspensive condition, which shall have no further effect, and to replace it in terms which are fully consistent both with national policy and the exact terms of the planning application that you made. Accordingly, I sustain your appeal to that extent, delete condition (3) from the planning permission, reference 97/21/00043/PPF, dated 07 May 1997, and replace it with: 

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

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

19.The council claim expenses against you in connection with this appeal. They submit that an award is justified because your appeal is unreasonable and superfluous because you had already implemented the development which was the subject of a suspensive condition almost 3 months before lodging the appeal. They consider that the action of carrying out the development before reaching an agreement within the terms of section 75 of the Act and before an appeal was lodged debars the developer from appeal. Any appeal is therefore unreasonable . The development was almost completed by the stage of the accompanied site inspection. Most of the work connected with the appeal had been carried out at that stage as if the appeal was valid. A lot of the background legal and case law work is now irrelevant but was originally necessary. The council’s claim, as amended, amounts to the sum of £594.25 .

20.In response, you deny that allegation that the planning application for a granny flat was anything other than accommodation for your family and that any of your actions regarding this appeal have been unreasonable.

21.As noted in paragraph 4 of SDD Circular 6/1990, parties are normally expected to meet their own expenses. In planning appeals, awards of expenses do not follow the decision on the planning merits and are made only where each of the following tests is met;

22.The claim was made at the appropriate stage of proceedings. In respect of the second test I note the council’s contention that, by starting the development, you were debarred from appealing. That argument is unsupported by either statutory references or case law. Your actions in developing the land and then pursuing an appeal were, however, unwise. Had the outcome not been as described in paragraphs 15 and 16 of this letter, the planning application could have been considered de novo within the terms of section 48 of the Act and planning permission refused. The development that has been undertaken would then have been unauthorised. It is, however, the case that I find that the disputed condition was unreasonable and I also find it significant that the council set aside work on preparing the agreement. In consequence your assertion that you would have been prepared to execute an agreement was never tested. In all of these circumstances I do not find that your actions in respect of this appeal may be characterised as having being unreasonable within the terms set out in the Circular.

23.I therefore find that you have not acted in an unreasonable manner resulting in liability for expenses and, in exercise of the powers delegated to me, I decline to make any award.

24.I have taken account of all the other matters raised in the submissions concerning expenses but find that these do not outweigh the considerations on which my decision is based.

25. A copy of this letter has been sent to Orkney Islands Council.

Yours faithfully 

JM McCULLOCH

Deputy Chief Reporter

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Planning Application No 97/21/00043/PPF

I wish to appeal against the terms and conditions attached to my planning consent granted by Orkney Island Council on the 7^th May 1997

The relevant section, Part 3 of the Decision Notice, requires a Section 50 Agreement be entered into regarding the terms of occupancy of the extension. After reading both the Orkney Island Structure Plan and the Housing Location Policy I spoke to Mr C Whitley of the OIC Planning Department to clarify the relevant section of the Decision Notice. Following his explanation I decided to appeal following receipt of the draft Section 50 from the OIC Legal Department, this document as not been forthcoming, so I intend to commence my appeal before the statuary six months expire.

My planning application to the OIC was for a "Extension to house (granny flat)" so I could accommodate my mother-in law and aunt in a self contained granny flat, where they could be easily looked after. On the demise of my relations we would like if possible to let the extension. The planning department inform me that a application for "change of use " for Bed and Breakfast" or short term Holiday let was possible, but not a long term let as this would change the "extension" into a "house" which would "be contrary to the Orkney Island Structure Plan", (Housing Location Policy, page 6 section 5).

Their reference is "The proposal should be located 50-100m from the nearest dwelling". This appears not to be a rigid policy as the "Exceptions" on page 7 of the same document indicate the acceptance of more than three dwellings in a group by sub-division.

From the wording of Part 3, of the Decision Notice, my son and his family could move into the extension , alternatively I could move into the extension and let the remainder of the property, this appears not to be contrary to the "Structure Plan".

These anomalies in the OIC planning departments interpretation of the "Structure Plan" leads me to believe that their approach to the long term letting aspect are incorrect.

I accept the part of the Section 50 that requires the extension should not be separated from the main building and remains as one unit, this being the case I believe that a long term letting will not make the extension into a separate house and so, should not form part of the Section 50.

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ORKNEY ISLANDS COUNCIL

INITIAL STATEMENT

1.1 On the 3^rd February 1997 an application for "full planning permission" for "alterations or extension to a house" was submitted by Mr A Wallbank. The application was for a "Granny Flat" at a dwelling house known as Waaness, Hillside Road, Burray. The site was not connected with any agricultural use and the extension would be "dashed with Skye marble" and roofed with "Redland Richmand tiles" to match the existing finishes. The application was numbered 97/21/00043/PPF and was registered on the 10^th February 1997.

1.2 Consultations were carried out with the North of Scotland Water Authority, the Roads Authority and the Scotish Environmental Protection Agency who inter alia, made the following observations. "… a separate dwelling is being created",…"no objections", and, "…from what is effectively two houses", respectively.

1.3 Verbal objections were received regarding overlooking windows and inappropriate development but, following discussions between the objectors and the Planning Department, the objectors decided not pursue the matter and no written objections were received.

1.4 As can be seen by the SEPA consultation the applicants were having problems with their original septic tank and following complaints by a member of the public to SEPA, a Conditional Prohibition Notice was served on the 12^th February 1997 which took effect as from the 14^th May 1997. Understandably perhaps, pressure was being put upon the Planning Department, by the appellant, to issue a decision notice as quickly as possible in order that he could resolve the septic tank problems. A decision notice was therefore issued on the 5^th May 1997, just inside the 8 week target date and just before the Conditional Prohibition Notice took effect.

2.Site and Surroundings.

2.1 Waaness is situated on the island of Burray to the west of Echna Loch, between the Hillside Road and Echna Loch Bay in the area of Swannies Point. Access is taken via a track immediately adjacent to Lookout and the site slopes away in the direction of the coast some 170 metres to the north. There is a mix of traditional single story and modern 1.5 storey dwellings in the area, of which, Waaness probably represents the largest single storey, dwelling only, development.

2.2 The appeal site is situated on the edge, but within, one of the Scattered Low Density Housing Areas as defined by the Orkney Island Structure Plan dated 1993 which was approved by the Secretary of State on the 19^th September 1994, with minor amendments approved on the 20^th May 1996.

3.1 The Council has difficulties in understanding the appellant's reasoning as to why he decided to appeal against Condition 3 being imposed when comparing these reasons with the reality of the situation. He appears to claim that he originally intended to wait to see exactly what the Section 75 (formally Section 50) Agreement required before making any decision to appeal. Then, because it seemed unlikely that the Section 75 Agreement would be issued within the 6 month period allowed in which to lodge an appeal, he was then compelled to submit the appeal.

3.2 In reality, the appellant visited the Planning Department on the 30^th May 1997 and intimated, quite strongly, that he was not happy with the imposition of Condition 3 of his approval. It is assumed that the appellant then visited the Council's Legal Department where, the Council submits, owing to what appears to have been a misunderstanding between the appellant and the council's Solicitor during their initial meeting, the Council's Solicitor, rightly or wrongly, set aside any work on the drafting of the Section 75 because he was under the impression that the appellant would not accept the conditions of the section 75 and was about to appeal against the condition requiring it.

3.3 The Planning Department and the Council's Legal Department then awaited notification of the appellant's expected appeal. However it seems that the appellant simply decided to ignore the conditions and implement his approval irrespective of the requirements of Condition 3. The appellant built Waaness himself and, the Council submits, that he is therefore well aware of, and conversant with, the Building Control Regulations and processes. The Council submits that since the appellant failed to notify the Building Control Section that he was commencing development, thereby ensuring that no Council Officials would visit the site and notice the breach of condition, he consciously and quite deliberately took the decision to ignore the condition.

3.4 In support of the above submission the Council offer the following evidence; …….In mid July of 1997 the appellant approached a Building Inspector and verbally requested a "stage inspection" in terms of his building warrant. He also stated that he would be out of the County until August and therefore it was arranged that the inspection would be carried out on the 5^th August 1997. On the allotted day the Council's Building Inspector noted that the blockwork was completed and that the roofing was in progress. This was fully 11 weeks before the appellant lodged his appeal. By the 26^th August 1997 the external building works were complete including the roofing. No notification of the commencement of work was ever given to either the Building Control Section of the Council or the Planning Department. It therefore seems likely that, since all of the work was completed, including digging and laying the foundations, by one man working in his free time, estimated in excess of 120 man hours, the appellant may have breached condition 3 of the approval as early as June of 1997 and within 4-6 weeks of receiving his approval. The Council submits that the question as to whether or not the Section 75 was produced by the Council for signing by the appellant is therefore totally irrelevant.

3.5 The appellant appears to be somewhat confused as to what he was told with reference to the use of the extension after the demise of his relatives but, since this was only discussed after the issue of the planning approval, it is not proposed to deal with this matter as part of his appeal. At the time the application was being decided the only information given to and discussed with the Planning Department, was that the extension was to be a "Granny Flat" for the appellants Mother-in-law and her sister and the application was determined along those lines. Nothing in the approval prevents the appellant from submitting a future application concerning the use of the extension which would then be dealt with on its own merits and in the light of the policies in force at the time. At the present moment however it must be stressed that any application for renting purposes, thereby creating a separate dwelling, would be recommended for refusal.

3.6 With reference to paragraph 8 of Part II to the Housing Location Policy, the Council submits that applications for sub-division will be considered on their merits and this would include consideration of all of the paragraphs contained within Part II of the Housing Location Policy in particular, paragraph 1 General, paragraph 3 Access and Parking, Paragraph 4 Water Supply and Drainage and paragraph 5 Groups of dwellings. It is by no means therefore a forgone conclusion, as intimated by the appellant, that applications for subdivision in Scattered Low Density Housing Areas will be approved.

3.7 The appellant make various assumptions regarding what could be done on the site in respect of condition 3 of the approval in the light of the current Structure Plan. The Council submit that these assumptions are misleading and ill-judged and should have been made in the light of all the relevant legislation not just the Structure Plan. For instance, no mention is made of the Town and Country Planning (Use Class) (Scotland) Order 1989 nor the Town and Country Planing (General Permitted Development) (Scotland) Order 1992, upon which any decision would directly depend.

3.8 The appellant accepts that the extension should not be sold off separately and is only concerned that the use for long term letting would be impaired. At the time the application was submitted, the Council submits that it was made quite clear to the appellant that the formation of a flat, for letting purposes, would not meet the Council's Structure Plan Policies and that the only exception was as proposed ie, a "Granny Flat". The appellant was quite insistent and adamant that the use was purely for his Mother-in-law and her sister. It now appears that the purpose of the extension was actually for the use of anyone wishing to pay the required rent when no longer required by the appellant's family. This is not the application which was addressed by the Planning Department, if it had been it would have been recommended for refusal being contrary to the Housing Location Policy.

4.1 Follow the accompanied site inspection carried out by Mr. M.J. McCulloch, the Secretary of State's Reporter appointed to deal with this appeal, the council submits that since the extension, subject of the negative condition 3, has been substantially completed, this appeal should be dismissed. The Council is currently considering the service of a Breach of Condition Notice but will hold any action in respect of this matter until this appeal has been decided.

4.2 The Council submits that whenever a conditional approval is partially or fully implemented, the conditions imposed upon that approval are accepted by the developer and can not be appealed against, even if the 6 months period has not elapsed.

4.3 The Council also submit that since this approval is all but completed, all of the conditions imposed on the approval were technically accepted by the appellant and any appeal against them is therefore void.

4.4 Firstly the Council feels that it is important to explain why Condition 3 was imposed on the approval. The council accepts that the usual way to deal with Section 75 Agreements is not to issue any approval notice until the Section 75 has been signed. In this particular case however, because of the Conditional Prohibition Notice served by SEPA, the applicant appeared, at the time to be desperate to have the decision notice issued and therefore, in an effort to reduce any delay to the applicants to a minimum. which might be caused by drafting and agreeing the Section 75, the Council issued the approval notice with the "Grampian Condition" that no work on the extension should be commenced until the Section 75 was signed. This allowed the applicants to do the necessary corrective works to their sewerage system without any undue delay.

4.5 The Council submits that the appeal site is situated on the edge of one of the Scattered Low Density Housing Areas on the island of Burray. Accordingly it is subject to both Policy 13 of the Orkney Island Structure Plan and The Housing Location Policy. The Council dose not dispute the Policy 13 criteria but the whole scope of the Structure Plan is expanded by the Housing Location Policy which the Council submits is the relevant document for discussion.

4.6 In Part II of the Housing Location Policy, under Guiding Principles; "Proposals for residential development within the Scattered Low Density Housing Area should comply with the following criteria:…The policy then goes on to expand on the criteria ; Under "1) General", amongst other things the policy states; .."The proposal should: -…Not set a precedent whereby it would be difficult to resist additional unjustified development of a similar nature: and; Any proposal which does not meet all of the criteria will be resisted, even if it involves unused, vacant or unsightly land". Under "3) Access and parking" ,… "The proposal should :- provide adequate parking;" Under "4) Water Supply and drainage",… "The proposal should: - be served by an adequate water supply in terms of volume and pressure, and can be provided with no significant adverse effect on the water supply to existing consumers;-…be sited on ground suitable for the efficient disposal of septic tank effluent:"…Under "5) Groups of Dwellings"; .."The proposal should: - not result in the creation of more than 3 dwellings in a group;- be located 50-100m from the nearest dwelling"….. Taking the above guidelines into consideration , the question of parking is addressed by the imposition of Condition 5 on the approval, water supply and drainage are controlled by the North of Scotland Water Authority and the Scottish Environmental Protection Agency respectively who both recognise the position that essentially, 2 dwellings are being created. In respect of the "Group of Dwellings " issue, the council submits that if the application had been for a separate dwelling the recommendation would have had to be one of refusal on the grounds that there was no 50m minimum separation provided. This latter point also brings in the question of setting a precedent where if a separate rentable dwelling was allowed to be created. It would be extremely difficult to resist almost all detached rural dwellings becoming semi-detached.

4.7 Referring to paragraph 4.6 above the Council submits that the formation of a separate dwelling anywhere within 50m of Waaness would be contrary to the Housing Location Policy. The only difference between that which has been approved and a separate dwelling is the interconnecting door into the garage of Waaness. The new extension has its own entrance both back and side and it therefore only requires the appellant to lock or permanently close the interconnecting door and a separate dwelling is formed.

4.8 With reference to paragraph 8), Part II of the Housing Location Policy, "Exceptions", The Council submits that this relates to existing and/or original buildings and is not to be cited as a method for circumventing the 50m rule. ie. If a separate dwelling can not be approved because it is contrary to policy, it does not mean that if approval can be gained for a "granny flat" on the site, that "granny flat" can be treated as an exception to the policy and subsequently be approved as a separate dwelling.

4.9 The Council submits that the discussion with the appellant with regards to the use of the extension , the application was submitted as a "Granny Flat" for use by the appellants Mother-in-law and her sister only, and that is exactly what was approved. Any other application for a self-contained annex would have been recommended for refusal on the grounds that it would be providing an additional dwelling and would therefore be contrary to the Structure.

4.10 In order for the appealed condition to be lawful it must be necessary, relevant enforceable, precise and reasonable. The Council submits that the condition is; -necessary, since without it development would be contrary to the Housing Location Policy;-relevant, since the condition relates directly to the development permitted and is required on planning grounds;-enforceable, since it is quite clear what would represent a breach of condition and the local authority can effectively deal with that breach;- precise, its meaning can not be misunderstood; and - reasonable, since it allows the appellant exactly what he applied for. The Council therefore submits that the condition is a lawful condition and that this appeal should therefore be dismissed.

5.1 The Council submits;

1. that for the reasons set out in paragraph 4.1 - 4.3 of the "Council's Submissions", this appeal should be dismissed as void on the grounds that it is not possible to appeal against a condition imposed upon a development once that development is all but completed;
2. that for the reasons set out in paragraph 4.4 - 4.10 of the Council's Submissions", this appeal should be dismissed on the grounds that the condition is lawful and necessary in order for the development to meet the Council's Planing policies.

5.2 For the forgoing reasons which are detailed under the Council's "Observations on the Grounds of Appeal" and "Council's Submissions", Orkney Island Council urges the Secretary of State for Scotland to dismiss this appeal.

6.1 The Council accepts the situation that in general all individual expenses relating to Written Submissions Appeals should be met by the appellant and the local authority respectively. However, the Council submits that in certain circumstances, were the appellant or the Local Authority has acted unreasonably, costs may be awarded in respect of unnecessary expense being incurred because it should not have been necessary for the case to come before the Secretary of State for determination. (SDD Circular 6/1990 para 5.3)

6.2 The Council submit that the appeal submitted in this case was unreasonable and otiose since the appellant had already carried out the development which was subject to the "Grampian Condition" almost 3 months before deciding to appeal against it. The action of carrying out the development, before the Section 75 was agreed and signed, and before any appeal was submitted to the Secretary of State, debars the developer from appeal and therefore any appeal is therefore unreasonable.

6.3 The Council also submits that since it was not aware that the appellant had almost completed the development until the accompanied site visit of the Secretary of State's Inspector, most of the work involving formulating the appeal was carried out as if the appeal was in fact valid and therefore, in the light of the present situation, a lot of the background legal and caselaw work is now irrelevant but was originally necessary.

6.4 The Council's reasonable expenses are;

Petrol Costs to/from the appeal site -25 mls @ 34.2p/ml = £8.55

Stationary, photocopying, document production, postage, etc. = £25.00

Planning Assistants time, 42hrs @ 12.46/hr = £523.32

Total expenses =£556.87

The Council therefore claim £556-87p reasonable expenses.

Jeremy Baster

Director of Development and Planning

Orkney Islands Council

1^st December 1997  

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