The costly legal wrangle over a six-foot strip of Angus riverbank has split council decision-makers.
A narrow vote will force Friockheim villagers to tear down thousands of pounds worth of decking and landscaping on the Lunan Water.
A Section 75 agreement, applied in 2005 to homes built on the former Douglas Fraser factory at Millgate, required a two-metre-wide access between properties and the water.
Six Old Mill Place households must now remove structures they built over the Lunan’s edge, after councillors found in favour of Angus Council planning officials.
Resident Gordon Treit and a representative attended a meeting of Angus Council’s development standards committee in Forfar.
He said: “It was Scottish Environmental Protection Agency guidance (in 2004) that the council consider an access strip along the Lunan (to protect against flooding).
“However in 2012 the area was removed from SEPA’s list of at-risk areas. Surely a definitive line must be drawn even the residents are unsure where the boundary lies.
“Recent rains brought the Lunan up to its high point and Angus was inundated by flooding. Old Mill Place? There was nothing.”
Mr Treit said ill-defined boundaries are not adequate as the basis for enforcement.
He said of the debate: “It has already taken 16 months to get this far and at what cost?”
Deputy service director Ian Mitchell said the Section 75 agreement is in breach as access is required for flooding reasons.
The clarity of the original stipulation was agreed by Councillor Alex King, who still argued for a relaxation in the face of expensive enforcement action.
Mr King said: “The terms of the Section 75 agreement are explicit in three places it makes the two-metre strip clear.
“Whether or not that information was conveyed in the deeds between the developer and the occupiers is not relevant it is a legally binding agreement.”
He moved that the terms of the agreement be varied, with the removal of the condition for the strip with any costs to be met by occupants and this was agreed by Councillor Bill Bowles.
Councillor Bill Duff agreed, adding: “The residents are clearly in the wrong. However I do not believe it’s in the interest of our rate payers to pursue enforcement on the basis of a theoretical flood risk.”
The feasibility of such a variation was agreed by a planning officer. However, the committee would need to be satisfied the reasons behind the original condition no longer applied.
Residents argue the enforcement approach is heavy-handed and claim the decking’s removal would leave a more dangerous and inaccessible access strip.
Mr Mitchell said the strip’s purpose is to ensure the land can be emptied of debris.
“Our roads department colleagues have revisited the area and are concerned, not just in terms of flood risk but of the safety of the structures in a flood event,” he added.
Councillor Bob Spink argued a “dangerous precedent” would be set with the relaxation of conditions in retrospect.
Mr Spink then added: “Whether it’s a waste of taxpayers’ money or not, we are here to discuss planning matters.
“I live on the banks of the Lunan. I’ve suffered from flood damage and know the effects such structures could have. We are going down a very dangerous route if we go against health and safety advice.”
Convener Rob Murray moved the report and Mr King’s amendment was seconded by Mr Duff. The vote was split five votes to five, with Councillor Murray’s casting vote carrying the motion.