A planning application for a proposed three-storey block of flats in Kirkwall was refused by Orkney council’s planning committee today as councillors grappled with what one councillor called “farcical” legislation.
The application to build the block of flats had come from Orkney Builders Ltd.
The firm had asked for permission to build on the corner of Great Western Road and Burnmouth Road.
Many locals will know this site as a former home of the Scarth Centre DIY shop.
However, only the outer walls of that old building remain at the site.
Key to the decision from the committee was that the new building would be across the road from the backdoor of Fusion nightclub.
Fusion hasn’t been open since the start of the pandemic. However, the building still has lawful right to be used as a nightclub.
This means, in planning terms, consideration still has to be given to the amount of noise that could potentially come from the nightclub whether currently in use or not.
If the nightclub isn’t being used, why is noise a planning concern?
The council’s environmental health department said the potential noise levels, if the nightclub were to return to use, were too high and objected to the application.
The consequences for the council, if they were to approve the development as is, could be that the local authority is left open to legal action from the proposed building’s future occupants if a complaint were made.
One way around this issue, suggested by environmental health, was to have windows that could not open on the flats.
However, this created an issue with ventilation and Orkney Builders decided against the suggestion.
As such, the firm went ahead and submitted its planning application with the proposed flats having opening windows.
With the objection from environmental health still attached to the application, the council’s planning department recommended that the planning committee refuse planning permission ahead of the committee’s meeting today.
Kirkwall flats development poses challenging decision for planning committee
This left the councillors wrestling over their final decision, as many spoke in support of both the proposed development and the developer.
During the discussion, which lasted over an hour and a half, they even explored solutions to the noise issue, asking if the developer could “screw the windows shut” in future if the nightclub were to resume operation.
The elected members enquired as to the future of the nightclub, to which there seemed no clear answer.
At one point Councillor Sandy Cowie remarked that the discussion had gone “way off track.”
Mr Cowie’s colleague, Lindsay Hall, said he found that “a facility that has lain dormant for a considerable length of time shouldn’t have to conform to up-to-the-minute regulations if it were to re-open.”
He said he found this “slightly disturbing.”
Stephen Kemp, from Orkney Builders Ltd was also given a chance to speak to the committee.
In his opinion, the “actual chance” of someone making a complaint to the council was “absolutely minuscule.”
The firm had attempted to ease concerns around noise at the new development with a noise impact assessment.
Risk of complaints ‘absolutely minuscule claims applicant
With no activity at Fusion, this was done in another part of the country.
The firm had also positioned the bedrooms away from the walls looking out onto the backdoor of the nightclub.
However, it was up to the committee members to decide if the risk was low enough to merit going against their officers’ advice and grant approval.
When decision time came around, the committee vice-chair Kristopher Leask moved for refusal.
He said the circumstances surrounding the application could seem “bizarre.”
But he said they were ones that had been “thoroughly fleshed out” by the councillors during the meeting.
Committee’s hands tied by the legislation say councillors as decision to refuse Kirkwall flats is unanimously backed
The councillor added: “We do operate in a policy and regulatory-based framework. The variety of cans of worms that could be opened if we violate those had been made abundantly clear.”
While he agreed with Mr Leask, council convener Graham Bevan said the committee’s hands were being tied by what was “quite simply a farcical piece of legislation.”
The committee chair, Owen Tierney, looked as if he would move to have the application approved.
However, after advice from the council’s legal department, he lost confidence in his amendment.
The committee chair said: “Everybody wants this development to go ahead.
“I’m sure the planners have done their best. They’re all tied by legislation.
“Everybody’s obviously done their best to try and help this application to happen.”
With Mr Tierney withdrawing his attempt, it was a unanimous decision from the committee to refuse.