Lowood planning process deemed "unlawful"

EXCLUSIVE by EWAN LAMB

The initial phase of the largest development project to be undertaken in the Scottish Borders this century could face a legal challenge after a leading planner claimed the process being used to progress the scheme 'would be unlawful'.

As previously reported here Scottish Borders Council has lodged an application with its own planning authority for permission to construct roads and carry out earthworks on Lowood Estate, near Melrose to accommodate a £106 million programme of house building and commercial development adjacent to Tweedbank village.

SBC paid £11 million, including legal and other costs, to purchase the Lowood land from two offshore trusts in 2018. Critics maintain the development of the estate is an unnecessary expense and will not be financially viable. But the council has consistently claimed the provision of at least 300 new homes and ancillary facilities is essential for the economic wellbeing of the central Borders. The costs will be recouped from private developers.

But now the first objection to the road building proposals on the estate have been submitted to the Borders planning department on behalf of Gowanloch Investments, owners of salmon fishing rights on a stretch of the River Tweed right next to Lowood. 

Their representative points out in a letter that Gowanloch, as neighbours of Lowood, have not been notified about the planning application.

The written objection from planning consultant David Bell has been posted on SBC's planning portal. Mr Bell states: " The submitted planning application form makes it clear that the proposed development relates to the first and second phases of a much larger project, which is a large-scale mixed-use development (that will cover some 34 hectares in area) and which has been the subject of the preparation of Supplementary Guidance."

He points out that the project, of which the proposed first and second phase road infrastructure form part, will include extensive residential and business uses, neighbourhood centre, bridge infrastructure, substantial civil engineering works, drainage infrastructure, more extensive road development and extensive public utilities and impact on woodland. The extent of the proposed development areas are clearly set out in the Council’s Supplementary Guidance for the Lowood Estate. 

"The site and immediate wider locale is a sensitive environment including being 130 metres to the west of the Eildon and Leaderfoot National Scenic Area. The entire length of the River Tweed corridor, including the section that bounds the Lowood Estate is designated as a Special Area of Conservation (SAC) and a Site of Special Scientific Interest (SSSI).

"It is considered that the planning application is not competent as such an approach, namely to apply for part of the road infrastructure by way of a planning application without undertaking Environmental Impact Assessment (EIA) screening is in breach of the Town and Country Planning (Scotland) EIA Regulations 2017 and would be unlawful."

Mr Bell adds that the approach being taken would seem to be to try and circumvent the EIA requirements by splitting up what is evidently a single development project. The Lowood expansion / development project is considered, without doubt, to be an integrated development project and indeed the Council’s own Supplementary Guidance sets out that clear position. 

"The approach the Council is taking therefore is to split the project into sub-projects (and planning applications) and by doing this, the divided works fall into characteristics which on their own may fall below the threshold for EIA. Such avoidance of environmental obligations is not considered to be acceptable and as noted would be contrary to the Regulations."

In conclusion Mr Bell warns the matter of EIA must be addressed and to grant planning permission on the basis of the current planning application approach in light of what is evidently a much larger development project is not considered to be competent. 

"The proposed development, the subject of this planning application should not be considered in isolation – it should properly be regarded as an integral part of a more substantial development. There is well established planning case law on this matter."