Aberdeen bypass contractor fined over river pollution

SEPA chief executive Terry A’Hearn

The consortium building the new Aberdeen bypass has been issued with a £280,000 penalty for a series of silt pollution incidents on the rivers Don and Dee.

Aberdeen Roads Limited, a joint venture including Balfour BeattyMorrison Construction and Carillion, was deemed responsible for the incidents on the important salmon rivers along with some tributaries.

The case if the first major enforcement of new powers by the Scottish Environment Protection Agency (SEPA) and will see over £280,000 committed to community projects and environmental improvements across Aberdeenshire.

Following extensive investigations and enforcement action by SEPA between 2015 and 2017, the Construction Joint Venture (CJV) building the multi-million pound Aberdeen Western Peripheral Route (AWPR) have offered the funding in an Offer of Enforcement Undertaking, after causing a series of silt pollution incidents which affected the Aberdeenshire rivers.

The Enforcement Undertaking admits full liability by the AWPR B-T Construction Joint Venture (CJV) for the pollution and will result in the funding being divided between eight community initiatives as a penalty for the disruption and environmental impact.

The offer, which required the Construction Joint Venture to engage with local stakeholders, has been formally accepted by SEPA, thus securing one of the biggest financial outcomes for an environmental offence in Scotland.  It is only the fourth of its kind to be accepted by SEPA.

Granted as a new enforcement power in June 2016, an Enforcement Undertaking represents a formal offer by an organisation or individual to make amends for an offence by improving the environment or communities affected, using their own resources.

The new enforcement power can be used to bring about effective and immediate solutions to environmental offences and requires the offender to work with SEPA to ensure ongoing compliance in future, as well as making appropriate restitution.

SEPA chief executive, Terry A’Hearn, said: “Every day SEPA works to protect and enhance Scotland’s environment and we will respond robustly to organisations who fail to comply with environmental controls. Every operator must comply.

“It’s right that the Construction Joint Venture should offer this significant enforcement undertaking in recognition of the environmental impact of their actions, which resulted in a series of silt pollution incidents impacting numerous tributaries to Aberdeenshire rivers, the Dee and the Don.

“We are delighted that CJV has become one of the first operators to use the new enforcement undertaking.  The CJV has stepped forward, accepted responsibility and set out to put things right.

“An enforcement undertaking not only compels those who breach the law to make amends, it instils a more positive working relationship based on understanding the duty we all share in safeguarding our natural environment.”


Aberdeen Roads Limited is constructing the new 36-mile road which will provide a fast link between towns between the North, South and West of Aberdeen.

The project is being delivered by Transport Scotland on behalf of the Scottish Government and in partnership with Aberdeen City Council and Aberdeenshire Council.

The silt pollution was caused by heavy rainfall which led to muddy water running off the construction site into waterways.

An enforcement notice was issued to contractors last year after concerns were raised at the time about the impact it could have on salmon and freshwater pearl mussels.

Transport Scotland said: “We take our environmental responsibilities very seriously and have been working closely with SEPA and the contractor, Aberdeen Roads Ltd (ARL), to ensure the watercourses on site are protected from construction activities.

“We welcome any measures that have been agreed between SEPA and ARL where they result in a positive impact on the environment.”

The biggest beneficiary of the undertaking is the Dee District Salmon Fishery Board, which will receive £112,500 for improvement projects relating to diffuse pollution, and £37,500 to fund an agricultural officer for two years to assist farm owners in reducing diffuse pollution in the River Don.

Richard Gledson, chairman, Dee District Salmon Fisheries Board, added: “Silt pollution from the construction of the Aberdeen Western Peripheral Route gave us great cause for concern, particularly as the River Dee is designated as a special habitat for both salmonid fish and fresh water pearl mussels, which rely on a delicate eco-system to feed and spawn.

“We welcome both the immediate response by SEPA, including the temporary restriction of construction activity, their investigation, and today’s enforcement undertaking. This will provide for environmental improvements that will go some way to offsetting the impact on local communities and the environment.”

In addition to the funding for community and environmental benefits, SEPA will also recover £47,958 as part of the offer. This lump sum will be made by the CJV as a contribution towards the time spent investigating the various pollution incidents which resulted from their construction works.

Green light for hundreds of new homes in Inverurie

Malcolm Allan HousebuildersOver 500 new homes will be built across two sites in Inverurie after councillors approved plans for the developments, The Press & Journal has reported.

Malcolm Allan Housebuilders had submitted a fresh application for 416 homes and a small office and retail development at Portstown.

While the developer already had permission to build the properties, it now plans to build all 48 affordable homes and flats on one site.

As a result of a reduction in demand for larger houses in the north east, the firm will also change the design of some of the homes to reduce the number of larger properties and feature more semi-detached housing, including bungalows.

Since the developer already had permission to build a similar development, and the decision was effectively determining a change of house type, the committee voted in favour of the proposals.

Councillors also backed plans by Barratt North Scotland to build 125 homes at the nearby Boynds Farm, Uryside.

The developer already had permission to build 104 homes but has decided to build some smaller units due to similar market concerns. Work on the project, which is expected to take more than 10 years to complete, began in 2014.

The scheme also includes a new £11 million primary school, Uryside Primary, which opened following the October break.

First-of-its-kind retirement village set for Aberdeenshire

4442_C02_The_Lawn_(Stage-03) (1)A bespoke retirement village which will house self-contained apartments as well as a range of one and two-storey cottages is to be developed in Aberdeenshire following a site acquisition deal.

The Scotland Real Estate team at international law firm DAC Beachcroft has advised Liberty Retirement Living (Chapelton) Limited on the acquisition of the site, which closed at the beginning of September.

The first of its kind in Scotland, the development will offer high-end services onsite to residents, including a brasserie, leisure facilities, scheduled transportation and 24-hour support and care.

DAC Beachcroft’s team, led by Ameeta Panesar, has been retained by Liberty and is now working alongside the client on the development and sale of 94 plots at the site.

Ameeta Panesar said: “We are delighted to be involved in this unique offering in the Scottish market place, and to have been retained to assist Liberty with their plot sales in 2018.”

Karl Hallows, director of development and sales at Liberty Retirement Living, said: “Securing the site at Chapelton for Liberty Retirement Living’s latest development is a huge milestone for the business. We are proud of our unique village concept, which promotes independence by enabling over 55s to own their homes whilst maintaining an active and healthy lifestyle as part of a community of likeminded people. We look forward to working with DAC Beachcroft on this development.”

Hotel plans lodged for Ury House walled garden


The hotel plans form part of a larger golf resort proposal

New plans have been submitted to create a hotel along the perimeter of the walled garden on the site of the proposed Jack Nicklaus golf course in Aberdeenshire.

The proposals submitted to Aberdeenshire Council last month would see 32 guest bedrooms and ancillary facilities created at Ury House in Stonehaven

A pavilion section is also proposed to be created in the centre of the garden, which will include a kitchen and seating area for up to 48 guests.

Ury House will be the centrepiece of the £80 million golf resort featuring a course designed by legendary US golfer Jack Nicklaus.

FM Group director Jonathon Milne said: “We really need to get the extra rooms to make the whole development viable. If they get the go ahead, we can start building the golf course and finishing off the hotel and spa. It would mean we could still aim to have the resort open by 2020.

“The castle itself is now wind and water tight, and we want to get in a fit it out. The walled garden rooms will really pull the whole development together and it in no way affects the pipeline.”

Stewart Milne to appeal decision to reject plans for 142 homes in Stonehaven

The proposed new layout for Carron Den

The proposed new layout for Carron Den

A decision by councillors to turn down an application to build 142 homes in Stonehaven has been appealed to the Scottish Government.

Stewart Milne Homes, which had already been granted planning approval to build 109 houses on the Carron Den site, moved to reduce the size of the homes from five bedrooms to two and three due to “changes in the housing market”.

New proposals were launched to build a maximum of 155 on the site – including the 13 already built – however the application was rejected by Aberdeenshire Council’s Kincardine and Mearns area committee in September.

The committee refused the application on the grounds that a 40% increase of houses was a significant departure from the original application, traffic issues, and concerns about the new design and layout.

Now the developer hopes to overturn the decision by appealing to the government’s planning reporter.

John Low, managing director for Stewart Milne Homes North, said: “Having received very strong recommendations to approve from Aberdeenshire Council officers and with only three objections from the local community, we are hopeful of securing a positive outcome.

“This application is an adjustment to a previous consent that allows us to deliver smaller homes and affordable housing to meet the current, critical demand in Stonehaven. This will help those who are desperate to get on the property ladder and is in line with the Scottish Government’s housing policy.”

CALA submits housing plans for Aberdeenshire golf estate

Meldrum House

Meldrum House

CALA Homes has submitted a planning application for a proposed residential development within the grounds of Meldrum House Hotel & Golf Club, Oldmeldrum.

Developed in conjunction with Meldrum House Estate, the proposal for 50 new properties will now be considered by Aberdeenshire Council.

Designed to ensure the properties are in keeping with and complement the picturesque setting of Meldrum House Hotel & Golf Course, the development will comprise a mix of four and five-bedroom detached homes.

Prior to plans being submitted, CALA held a community consultation event and has closely liaised with the hotel and golf club, along with its members, to ensure the proposals were sympathetic to the surrounding area and would be an attractive addition to the local community.

Mike Naysmith, managing director of CALA Homes (North), said: “We are delighted to be moving forward with plans for this truly unique development at Meldrum House.

“Each aspect has been carefully crafted in collaboration with Meldrum House Estate to ensure the homes enhance the area while appealing to a range of homebuyers. Our extensive experience in the north-east market, and an outstanding reputation for the careful creation of new communities, including homes that are appropriate and complementary to the surrounding area, makes Meldrum House Estate and CALA the perfect fit.

“We look forward to releasing our exciting plans for Meldrum House as they move forward.”

CALA anticipates a planning determination in spring 2018.

Plans unveiled for £10m mountain bike park in Aberdeenshire forest

Image courtesy of Netco

Image courtesy of Netco

A charity has unveiled plan to build a £10 million mountain bike park in Aberdeenshire.

The North East Trail Centre Organisation (Netco) has selected a site at Durris Forest, situated between Stonehaven and Banchory, for the project following a year-long feasibility study which looked at four potential sites.

The plan is for multiple bike runs, nature trails, and dry slope skiing and snowboarding facilities.

Netco said it hopes to raise funds through a mixture of public and private sources.

Netco chairman Martin Byers told the Evening Express: “It’s the perfect time to launch our vision of a multi-adventure activity mountain bike park, which we firmly believe is greatly needed in Aberdeenshire.

“Our plans represent an opportunity to inspire more people to discover outdoor sports in a natural environment, bolster Scotland’s current mountain biking facilities strategy, create jobs and help bring sustained growth to our local economy.”

He added: “Durris is an excellent venue due in part to its convenient proximity to Aberdeen and surrounding towns.

“Incorporating snow sports enhances the appeal of the development for everyone and opens up market opportunities.”

Belinda Miller, head of economic development at Aberdeenshire Council, said: “This is an exciting and innovative proposal from Netco and one that has the potential to put this part of Scotland on the map for family-friendly adventure sports facilities.”

Public consultations with the local community will take place early next year, ahead of a formal planning application to Aberdeenshire Council.

Development authority’s appeal over planning obligations dismissed by Supreme Court


The Chapelton development

Statutory guidance issued by the Aberdeen City and Shire Strategic Development Planning Authority (SDPA) which seeks contributions from developments towards a Strategic Transport Fund has been found to be unlawful by the Supreme Court.

In February 2013, the SDPA produced draft supplementary planning guidance in support of its proposed strategic development plan for its area. This guidance allowed for a Strategic Transport Fund to deliver infrastructure needed because of proposed development in four strategic growth areas. In substance, the guidance required developers to enter into planning obligations under the Town and Country Planning (Scotland) Act 1997 with the SDPA to make financial contributions to the Fund. Such contributions were to be pooled and spent on required infrastructure.

Elsick Development Company (EDC), the promoter of Chapelton, a new town of over 4000 homes which is under construction south of Aberdeen City, challenged the SDPA guidance on the grounds that it breached established law and failed to comply with Scottish Government policy on planning obligations (The Circular). In particular, the guidance did not establish a direct relationship between the level of contribution sought and the impact of a development.

In the meantime, the EDC voluntarily entered into a planning obligation under s75 of the 1997 Act to contribute to the Fund in terms of the draft supplementary guidance but on the basis that no contributions would be paid if the guidance was found to be invalid.

The SDPA adopted the supplementary guidance after making an amendment advised by the Scottish Ministers to the effect that the use of any planning obligation should follow the advice in the Circular. As adopted, the supplementary guidance listed the cumulative infrastructure requirements identified by the cumulative transport appraisal (“CTA”) for the area. These requirements had been revised following criticism by the Reporter appointed by the Scottish Ministers that it had not been demonstrated that there was a clear and direct relationship between the development contributing to the Fund and the infrastructure which would be delivered.

Upon appeal by the Elsick Development Company, the Inner House of the Court of Session quashed the supplementary guidance on the basis that, notwithstanding the amendments made thereto, the obligation to contribute to the pooled Fund breached the Circular and such a planning obligation must fairly and reasonably relate to the permitted development.

The SDPA then appealed to the UK Supreme Court and argued, amongst other things, that the policy tests in the Circular were not part of the legal tests for the validity of a planning obligation.

Unanimously rejecting the appeal, the Supreme Court found that the connection between certain developments, including Chapelton, and the interventions which the pooled Strategic Transport Fund was intended to finance, was: “at best trivial”. Using a developer’s contribution on infrastructure, with which its development has no more than a trivial connection, would breach the requirements of section 75 of the Town and Country Planning (Scotland) Act 1997, which governs planning obligations.

Elaine Farquharson-Black, partner at Burness Paull, who acted for EDC in the challenge, said: “Since 2010, my client has consistently advised the SDPA that its approach is unlawful. The Guidance did not require contributions sought from a development to be fairly and reasonably related to a particular transport improvement, nor that such a payment should be used to fund an intervention that was required as a result of the development. As such, the Guidance fell foul of the established law on planning obligations.”

The Duke of Fife, representing EDC, said: “This issue has now been examined legally three times and each time found in our favour. This has not been on a mere technicality but on a fundamental and long-established principle of planning law. The whole saga has been an unfortunate waste of time and money. The SDPA should have taken notice of its own consultation exercise when many in the development industry pointed out that its approach would fail. Instead it pressed on and has now incurred far greater costs for the taxpayers of Aberdeen and Aberdeenshire than coming up with a workable scheme in the first place. Something it still has to do.

“EDC remains fully committed to investing in infrastructure that is affected by the increased traffic generated by the development of Chapelton. EDC has already invested over £1m in a new roundabout at Newtonhill; hundreds of thousands of pounds improving the A90; as well as a new park and ride at Newtonhill. As Chapelton grows, a further £12m will be spent on a new grade-separated junction on the A90. This shows that we are quite prepared to put up the necessary money to create the improvements to the public infrastructure that our development necessitates. However, we are not willing to do so for those that other developments need, which is what the SPDA was unfairly trying to make us do.

“We would now like to be able to concentrate on working with Aberdeenshire Council to continue the effort that is making Chapelton a great place to live. We are very pleased with what has already been achieved and I would urge anyone interested to come and have a look and see what makes Chapelton special.”

Lord Hodge gave the lead judgment with which the other Justices agree.

Reasons for the judgment

An approved strategic development plan is of central importance to planning decisions under the 1997 Act. Supplementary guidance deals with the provision of further information in respect of proposals set out in the plan.

Planning obligations in terms of s75 of the 1997 Act do not necessarily need to relate to a particular permitted development on the burdened land. A planning obligation may be entered into in circumstances which are not connected with any planning application. For instance, a planning authority may contract for the payment of financial contributions towards certain infrastructure necessitated by the cumulative effect of various developments, so long as the land which is subject to the obligation contributes to that cumulative effect.

However, it is not lawful to restrict the commencement of development by planning obligation until the developer undertakes to make a financial contribution towards infrastructure which is unconnected with the development of the site. If such a planning obligation were lawful, an authority could use an application to extract benefits which are unrelated to the proposed development. Moreover, it is not lawful to require contributions towards such infrastructure in a planning obligation which does not restrict the development of the site by means of a negative suspensive condition, as such a planning obligation would neither restrict nor regulate the development of the site in terms of s75.

In determining a planning application, the authority must take into consideration material provisions of the development plan and other material considerations. For a planning obligation to be material it must have some connection with the proposed development which is not trivial. If a planning obligation, which is otherwise irrelevant to the application, is sought as a policy in the development plan, the policy seeking to impose such an obligation is an irrelevant consideration for determination of the planning application.

In the instant case, the scheme established in the supplementary guidance involved the pooling of payments which were not tied to a particular development. The opt-out did not make the scheme voluntary in any real sense. The 1997 Act does not allow for such a scheme. The supplementary guidance and the planning obligations which it promotes are unlawful for two reasons.

Firstly, the use of the developer’s contribution to the pooled Fund on infrastructure with which its development has no more than a trivial connection means that the planning obligation is not imposed for a purpose related to the development and use of the burdened site as required by s75, nor did the planning obligation restrict or regulate the development within the meaning of s75.

Secondly, the planning obligation entered into by the Respondent was an irrelevant consideration in terms of a planning application because there was only a trivial connection between the development and the infrastructure intervention(s) which the proposed contribution would fund. An authority is not empowered to require a developer to enter into an obligation which would be irrelevant to an application for permission as a precondition of the grant of that permission.

The scheme was not unlawful because it did not comply with the Circular. The Circular was simply a material consideration which was required to be taken into account but not necessarily followed.

Bancon boosted by over £40m of new contracts

Gavin Currie

Gavin Currie

A new local authority framework deal and an additional contract with an oil and gas firm have contributed to over £40m of new work for Bancon Construction.

The construction division of Aberdeenshire-based Bancon Group was awarded a four year £32 million framework contract from Aberdeenshire Council following a competitive tender process.

The contract is part of the local authority’s social housing improvement programme and will see Bancon Construction undertaking enhancements to several hundred homes in South Aberdeenshire including putting in PV panels, fitting new kitchens, re-wiring and re-insulation.

Having successfully completed the refurbishment of Total E&P UK Ltd’s (TEPUK) building at Arnhall Business Park in Westhill on time and to budget, the firm has been awarded additional work from the oil major to carry out upgrades on ancillary building at the site.

This contract, alongside new deals secured for Angus Council, Aberdeenshire Council and Hilton Grand Vacations, amounts to a further £8m in additional work.

Gavin Currie, managing director of Bancon Construction Ltd., said: “These contracts underline our capability to efficiently and effectively manage diverse construction projects across the public and private sectors. Bancon Construction recently reported a dramatically improved trading performance and this, along with these new contract awards, reinforce the success of our restructured approach to our construction business.

“The additional work secured with TEPUK reflects their satisfaction with the successful completion of their building which was handed over last week.”

Brian Wilkie, corporate services director of TEPUK, said: “TEPUK engaged Bancon to refit and refurbish our new office in Westhill. The project required Bancon to complete the work in just 189 days. We’re very pleased that the project has been completed within that demanding timeframe and also without any safety incidents and within the set budget.”

Local authorities launch roads maintenance initiative

A9 Kincraig-Dalraddy - finishing touches to first section of new roadA new roads maintenance initiative has been launched between eight councils in Scotland.

The Northern Roads Collaboration Forum involves local authorities working together to share staff, equipment and properties to improve the repair and maintenance of roads, as well as reduce costs.

Councils involved include Aberdeen City, Aberdeenshire, Angus, Argyll and Bute, Comharlie nan Eilean Siar and Moray councils.

Talks will now to take place to enter into a formal collaboration.

Argyll and Bute’s policy lead for roads and amenity services, Councillor Roddy McCuish, said: “We’ve had an informal arrangement for some time with other councils.

“This has worked well, helping us increase our capacity to carry out design and to do repairs and maintenance, and also helping us to reduce our costs, which is good news for local people as well as the council.

“By making it a more formal arrangement, we can take this a step further. It will give us new opportunities to pool resources, upskill staff, encourage new people to work in this area and increase local employment opportunities.

“Roads are a key front-line service for all councils, even more so for those like Argyll and Bute, serving many remote communities.

“It’s essential for us to work together with other local authorities to keep these services at the level people expect, and to keep them resilient now and into the future.”