The Evidence

The site sits at the intersection of 7 overlapping environmental, heritage, and safety protections. No cumulative assessment of their combined sensitivity has been submitted with this application.

Otters are European Protected Species. It is a criminal offence to disturb an otter or damage a resting place — punishable by imprisonment and unlimited fines. The Council must assess the three licence tests before granting permission (Morge v Hampshire County Council [2011] UKSC 2).

The ecology survey was done in November — outside the survey season for most species groups. It found two otters but acknowledged further surveys are needed. None have been submitted. Local residents, visitors, and professional wildlife guides have recorded over 40 species with legal protection or conservation status at Calgary Bay, including nine Schedule 1 species and three European Protected Species.

Species recorded at Calgary Bay

What independent experts found

Several objectors with professional ecological credentials have submitted evidence that directly contradicts or supplements the applicant's PEA:

This is the fifth planning application at Calgary in just 18 months. All have been handled by the same case officer under delegated authority. No cumulative assessment of ecological, visual, or infrastructure impact has ever been carried out.

All 5 applications: same area, same case officer (Emma Shaw), the first four approved under delegated authority, no cumulative Habitats Regulations Appraisal, no cumulative assessment of any kind.

The site sits within a dense archaeological landscape that includes two listed buildings, an Iron Age fortification, and the remains of a township whose inhabitants were evicted during the Highland Clearances. No heritage setting assessment and no archaeological desk-based assessment have been submitted.

Several statements in the application are at odds with the Council's own records, SEPA data, and the applicant's own drawings.

For a site of this sensitivity — adjacent to an SSSI, on the shore of a SAC, near listed buildings, in a flood zone — the following assessments would normally be expected. Ten are entirely absent.

Missing

• ✗
  Flood Risk Assessment

  SEPA identifies flood risk; NPF4 Policy 22 requires it.
  Not submitted
• ✗
  Landscape & Visual Impact Assessment

  Exposed coastal site visible from Calgary Bay beach.
  Not submitted
• ✗
  Heritage Setting Assessment

  Calgary Jetty (Cat C Listed, BARR) 250m away. Multiple objectors identify that the proposed waste pipe route runs close to Calgary Dun, an Iron Age defensive site recorded on the national heritage record.
  Not submitted
• ✗
  EIA Screening Opinion

  The site falls within a “sensitive area” under Reg 2(1) of the EIA (Scotland) Regulations 2017 — adjacent to an SSSI, on the shore of an SAC/MPA, and in the setting of a listed building. Scottish Government Circular 1/2017 states development in a sensitive area “must always be screened.” Walton v Scottish Ministers [2012] UKSC 44 applies.
  Not requested
• ✗
  Cumulative Impact Assessment

  5th application at Calgary in 18 months.
  Not submitted
• ✗
  Seasonal Ecology Surveys

  PEA says spring/summer surveys needed.
  Not submitted
• ✗
  Biodiversity Enhancement Plan

  NPF4 Policy 3(c) says development “will include appropriate measures to enhance biodiversity” — the word “will” makes this mandatory, not optional. The application contains zero biodiversity enhancement measures. December 2025 Scottish Government guidance confirms this is a standalone requirement. Wildcat Haven [2024] CSOH 10 is now settled law (UKSC refused permission to appeal, March 2025).
  Not submitted
• ✗
  Public Sector Equality Duty Assessment

  The proposed path diversion replaces an accessible coastal route with a route across boulders. Multiple objectors with mobility impairments have described the impact. The Equality Act 2010 s.149 requires public bodies, including planning authorities, to have due regard to equality impacts when exercising their functions.
  Not considered
• ✗
  Water Quality Modelling

  Discharge to a HIGH-status water body (West Mull, 100% certainty). The Weser ruling requires certainty that status will not deteriorate. No modelling submitted.
  Not submitted
• ✗
  Archaeological Assessment

  Calgary Dun (Iron Age) on the applicant's own plans. Inivea Township (Clearances). Two archaeological trigger constraints on the council's records. WoSAS not consulted until objectors identified the gap.
  Not submitted

Submitted but problematic

• ⚠
  Drainage Assessment

  Proposes discharge near SSSI.
  Raises concerns
• ⚠
  Preliminary Ecological Appraisal

  Confirms otters, admits incomplete.
  Incomplete

“the proposal is not identified to be supported under the provisions of NPF4 policy 22 (a)(i-iv)” SEPA holding objection, PCS-20007916, 18 February 2026

SEPA's holding objection confirms that the site is at risk of flooding from a watercourse to the northwest. SEPA requires the applicant to provide:

• A topographic survey of the site
• Photographs of the watercourse
• Culvert information

SEPA has stated that a full flood risk assessment may still be required once this information is reviewed. The Council has confirmed that no NPF4 Policy 22 exceptions apply — meaning a dwellinghouse cannot be supported in a flood risk area at this location. The application is effectively frozen until the applicant provides the required information and SEPA lifts its objection.

The proposed sewage treatment plant would discharge into a burn that flows to Calgary Bay. The receiving coastal water body is classified at the highest possible status — and binding case law means any risk of deterioration is unlawful. No water quality modelling has been submitted.

The legal barrier

The non-deterioration obligation is established in Scottish law by the Water Environment and Water Services (Scotland) Act 2003, which transposed the Water Framework Directive. The Weser Ruling (Bund für Umwelt und Naturschutz Deutschland, CJEU Case C-461/13, 2015, retained in UK law) confirmed this obligation is binding law, not just policy. Any risk of status deterioration — even from HIGH to GOOD — must be ruled out before consent. The proposed EN12566 treatment plant does not remove phosphorus or nitrogen. No water quality modelling has been submitted.

Three discharge streams, one burn

The application proposes three separate discharge streams to the same watercourse at the same grid reference (NM 36750 51485):

• Foul drainage — EN12566 biological treatment plant (no phosphorus/nitrogen removal)
• Roof surface water — direct discharge
• Parking area runoff — containing hydrocarbons, heavy metals, tyre and brake residues

The licensing barrier

The discharge point is within 1km upstream of Calgary Dunes SSSI (condition: “unfavourable declining”). Under the Environmental Authorisations (Scotland) Regulations 2018, this excludes the simple registration route for wastewater discharge. A full CAR licence faces major barriers including the receiving water body's HIGH status and the SSSI's declining condition. Planning Advice Note PAN 51 requires that planning permission be granted only where infrastructure is “capable of being consented” under the relevant regulatory regime.

“Most of the proposed site is located within the Calgary Bay Local Nature Conservation Site (LNCS)” Council Biodiversity Officer, holding objection, 18 February 2026

“The submitted surveys were not undertaken at the appropriate time of year” Biodiversity Officer holding objection

The Biodiversity Officer requires the applicant to submit, prior to planning consent:

• Phase I habitat survey and NVC survey (National Vegetation Classification)
• European Protected Species surveys — otter, invertebrates, reptiles, breeding birds
• Protected Species surveys
• Tree survey (condition, location, species, age, biodiversity value) and Tree Protection Plan

All surveys must be “carried out by a suitably qualified ecologist, at the appropriate time of year.” For otters this means April–October, for breeding birds April–July, and for NVC/habitat surveys May–September. The earliest these surveys can begin is April 2026.

The Biodiversity Officer further notes that the LNCS is under review (due summer 2026) and warns that if the LNCS designation remains, “there will likely be an Objection” (upgraded from holding) under NPF4 Policy 4(d) and LDP2 Policy 26.

NPF4 Policy 17 says new rural housing should meet a “demonstrable rural housing need.” The applicant's planning agent is a board member of Rural Housing Scotland and delivered 51 affordable homes in Bowmore, Islay. The Planning Statement does not mention Policy 17 at all.

The Community Trust Dimension