FOI Request - Mortlach Distillery Listed Building Curtilage

Request 101000204929

According to the letter dated 11 Oct from Mr Jim Grant, Head of Development Services, "The demolition of the buildings will also require listed building consent and no application has been received and therefore no consultation process has been carried out.  When an application is received this will be subject to consultation"

In addition, at this time I spoke to the Conservation Officer, Mr Craig Wilson, who categorically assured me that buildings could not be demolished without Listed Building Consent as they were in the curtilage of a listed building.

Q1.  Why is there a sudden volte-face on the curtilage?

Q2.  Why wasn't the Community Council consulted on this major change of decision on a planning matter?

According to Mr Wilson he relies on Historic Scotland for his decision-making.  Historic Scotland told me that they had provided was from their website as follows:

The usual tests used by planning authorities to determine if curtilage applies are:
• Were the structures built before 1948?
• Were they in the same ownership as the main subject of listing at the time of listing?
• Do the structures clearly relate in terms of their (original) function to the main subject of the listing?
• Are the structures still related to the main subject on the ground?

From the Historic Scotland report:

- the structures were built in 1897
- they were under the same ownership
- the structures were part of the 1897 expansion and are therefore related
- the structures remain related as part of the distillery site - the report clearly treats the buildings as a single site.

Q3.  Did the Moray Council use the tests provided by Historic Scotland in deciding to change what it considered to be in the curtilage of the Mortlach Distillery

Q4.  Does the Moray Council disagree with anything in the Historic Scotland report and if so what?

Demolition of buildings and redevelopment

You state that the demolition is permitted development in Class 70 GDPO 1992.  However, permitted development comes with many conditions. 

Class 70.—
(1) A building operation consisting of the demolition of a building.

(2) Development is not permitted by this class if—
(a) a building has been rendered unsafe or uninhabitable by the action or inaction of any person having an interest in the land on which the building stands; and
(b) it is practicable to secure safety or health by works of repair or works for affording temporary support.

(3) Development is permitted by this class subject to the following conditions:—
(a) where demolition of the building is urgently necessary in the interests of safety or health the developer shall, as soon as reasonably practicable, give the planning authority a written justification for the demolition;
(b) where the demolition does not fall within condition (a) and is not excluded demolition—
(i) the developer shall, before beginning the development, apply to the planning authority for a determination as to whether the prior approval of the authority will be
required to the method of the proposed development and any proposed restoration of the site;
(ii) the application shall be accompanied by a written description of the proposed development, a certificate stating that neighbour notification procedure has been
carried out in accordance with sub-paragraph (iii) below and any fee required to be paid;
(iii) the applicant shall comply with the neighbour notification procedure set out in regulation 18 of the Development Management Procedure Regulations, with any
necessary modifications;
(iv) the development shall not be begun before the occurrence of one of the following:—

(aa) the receipt by the applicant from the planning authority of a written notice of 

their determination that such prior approval is not required; 

(bb) where the planning authority give the applicant notice within 28 days 

following the date of receiving his application of their determination that such 

prior approval is required, the giving of such approval; 

(cc) the expiry of 28 days following the date on which the application was 

received by the planning authority without the planning authority making any 

determination as to whether such approval is required or notifying the 

applicant of their determination; 

(v) the development shall, except to the extent that the planning authority otherwise 

agree in writing, be carried out— 

(aa) where prior approval is required, in accordance with the details approved; 

(bb) where prior approval is not required, in accordance with the details submitted with the application; 

Interpretation of Part 23 

For the purposes of Part 23– 

“building” does not include part of a building; 

“excluded demolition” means demolition— 

(a) on land which is the subject of a planning permission for the redevelopment of the land— 

(i) granted under Part III of the Act (except under article 3 of, and this Schedule to, this 

Order), or 

(ii) deemed to be granted under that Part of that Act, 

where the demolition is necessary in order to implement that planning permission, or 

(b) required or permitted to be carried out by or under any enactment, or 

(c) required to be carried out by any provision of an agreement made under section 50 of the Act. 

Q5.  Has Diageo approached the Moray Council to fulfil any of the conditions of the permitted development?  If so which ones and what is the current situation?

According to Circular 4/2011 para 11, "Where developers are seeking planning permission for redevelopment of a site, they should include the demolition aspect in the application, particulary if EIA is involved.

Q6.  Have the Moray Council asked Diageo to include the demolition aspect in the planning permission for the redevelopment of the site?  If not why not?

I have spoken to some other members of the Community Council and we feel there has been a breakdown in the planning consultation process.  PAN 47 clearly states community councils have a statutory right to be consulted on local planning issues.  

Para 5 of PAN 47, indicates that there should be local community involvement in enviromental issues.  This would seem to relate to the need for consultation on the need for an EIA.

Q7.  Is the Moray Council saying that PAN 47 does not apply?  If not why not?

According to communications I have had with members of the Moray Council, Historic Scotland and Diageo there have been pre-application discussions over the last few months.  

Q8.  During these discussions has the Moray Council taken into account the current local development plan objectives for Dufftown:

• To protect the scenic setting of Dufftown and to preserve the form of the original town

• To provide sufficient land for business and housing to meet the relatively modest local need

• To increase the attractiveness of the town for the tourism

Q9.  If yes to Q8, could you explain how this was done and what were the outcomes?

According to your understanding full planning application for the development of the distillery is to be submitted soon.  According to Planning etc. (Scotland) Act 2006, there is a requirement for communities to be consulted including pre-application.

Q10. Does the Moray Council consider this to be a National, Major or Local Development?

Q11. How did the Moray Council come to the decision of Q10?

Response 17-01-2014

Q1. The original opinion was based on a Geographical Information System (GIS) which contained an error. The building in question was wrongly identified on the system.

Q2. As above, there was no major change, and this was not a planning matter.

Q3. No, see answers above.

Q4. No

Q5. There are no conditions attached to a permitted development.

Q6. No application received at this time.

Q7. It does not apply in this instance. Content of PAN 47 does not extend to matters outwith scope of planning applications. This is not a planning application as yet.

Q8. As there is currently no planning application this does not apply.

Q9 N/A

Q10. If you refer to the demolition works and assessment of EIA reqs, as no application has been received (this is currently a Permitted Development) and therefore is outwith the scope of planning process

Q11. N/A

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