Tuesday, April 08, 2014

South Nairn planning appeal hearing cancelled

The South Nairn planning appeal hearing, due to start in a fortnight’s time has been dramatically cancelled. On Saturday the town’s three Community Councils, the Nairn Residents’ Concern group and Joan Noble sent a joint letter to the Scottish Government’s DPEA (Department of planning and environmental appeals). The letter again outlined local concerns about new material submitted to the planning appeal by the appellant who wishes to build on the South Nairn site. Here is a taste of the content of that letter:

"There is a wider point here.  It is an issue of openness, transparency and good faith.  We referred in our earlier message to “moving the goalposts”.  The question remains as to whether it is fair and acceptable for key evidential documents to be replaced, rewritten or superseded. From the perspective of the local community, we are becoming increasingly disturbed – and in some respects confused - by what appear to be efforts to get the Appeal process, and the Reporter, to examine a proposal, and evidence, which differs from that originally put forward."

Yesterday an e-mail was also sent to the DPEA case officer by Leadingham Chalmers, the representative of Gordons sawmill, and they too outlined serious concerns over the new material.

Today all parties concerned in the hearing appeal received a copy of an e-mail to Emac Planning, the consortium’s representative, from the DPEA, informing them that the Reporter has decided to cancel the proposed Hearing Sessions on 22 / 23 April 2014 to allow more time for other parties to assess the new information and revise their Hearing Statements.
Click the read more tab to see a copy of the text of the letter sent by the three CCs etc,

5 April 2014
Mrs Liz Kerr
4 The Courtyard
Callendar Business Park
FALKIRK  FK1 1XR                (sent by email)

Dear Ms Kerr


1.                In our email of 30 March we expressed concern about the Appellant’s proposed introduction to the Appeal of what appeared to be new material which, at that time, neither we nor any other party had seen. This was described as ‘additional Transport Technical Notes’.

2.                  Your reply of 2 April indicated that the Reporter (who presumably had not seen the material either) considered that the appellants “had not raised a new matter....”, but that he “has some concerns...” in relation to these “new documents” which have been presented as superseding earlier ones.

3.                We have now received a substantial amount of data including this new and previously unseen material.  On the basis of a very brief initial examination, we firmly believe it is ‘new’ to this application and thus inadmissible.  We also believe it falls outside the terms of reference laid down by the Reporter for the Appeal hearing sessions. 

The planning guidance
4.                The Reporter has quoted the Act, and Circular 4/2013 on Planning Appeals, as the basis for his views.

5.                Para  21 of Circular 4/2013 states, “All documents including a copy of the planning application and all accompanying certification and copies of plans submitted to the planning authority and any other evidence that the appellant intends to use to support his or her case must also accompany the notice of appeal”.

6.                Para 24 of circular 4/2013 makes clear that, “the appellant may only raise additional matters or submit further documents, materials or evidence in accordance with and to the extent permitted by the 2013 Regulations.  That is, in accordance with regulations 4(3)... 5(6)... and 11... and the Hearing Session Rules.”

7.                Para 26 of Circular 4/2013 states that, “an application is not to be varied after an appeal has been made.  This provides clarity about the extent to which the appeal process should focus on the proposal that was considered by the planning authority.  Where an applicant considers that it would be beneficial to revise a proposal, a new planning application should be submitted for consideration by the planning authority.”

8.                We recognise that under the appeal process there are certain ways in which that application and its supporting material can be amplified to assist the Reporter.  The regulations (SSI 2013/156 para 7. iii) give the Reporter discretion to deal with minor pieces of additional information (eg plans of different scale or minor corrections to submissions).  But the scope to introduce substantial and different evidence which replaces that submitted with the application under appeal is strictly circumscribed.

The admissibility of new evidence
9.                We have looked very briefly through this material.  In effect it is a new Transport Assessment.  It is based on new survey data, revised assumptions, and different analysis.  It delivers different conclusions – indeed asserts that it supports the delivery of 455 houses – which is not what the application under appeal proposes.   For example:

·        The assessment does not now relate to the application put to councillors:  the number of houses has changed from 320 (1st phase?)  to 455/520 (the whole site);
·        A new baseline has been used for calculating traffic growth, and a different (lower) growth factor applied;
·        The presumed flow of development traffic round the network is completely different, there are some omissions/discrepancies, and no explanation or justification for the changes;
·        New traffic-count survey figures have been used, taken at a time of year not regarded as appropriate under the DoT guidelines;
·        New TRICS search parameters have been used drawing on completely inappropriate sites, three of which are not even in the UK.

10.             In the light of the Circular and regulations cited by the Reporter in your email, the community is clear that the material now submitted in the new “Technical Notes” goes well beyond “minor corrections” or modifications of design, layout or scale.  We think it should be regarded as inadmissible for the following reasons –
a)      it did not form part of the original application submitted to the planning authority, and therefore has not benefitted from scrutiny and examination by Members of the Council;
b)     it did not accompany the Appellant’s notice of appeal submitted to the DPEA on 29th November, 2013; and no good reason has since been advanced as to why these documents were not included in their original appeal submission, as set out in the Appeal regulations;
c)      the Appellant’s stated case to the DPEA dated 29th November, 2013 did not make mention of their intention to carry out a ‘new’ Transport Assessment.
d)     as the original Transport Assessment was undertaken in 2011 and a further sensitivity analysis submitted in September 2013 (after the council decision), a legitimate question and serious question arises as to why such a new detailed ‘Transport Technical Note’ was not submitted during the 2 years of the application’s progress through the planning authority;
e)      no good reason has been given by the appellant as to why they did not provide such detailed notes prior to consideration by SPAC/PED, given the significant relevance of the Transport Assessment to the completeness of the application;
f)      the appeals regulations are designed to encourage front-loading of the appeal system, to ensure a level playing field, and to afford all parties adequate opportunity to consider the same evidence.  Submission of these new “Notes”, a document of some 346 pages, at this late stage in the appeal, does not allow the planning authority or the community the appropriate opportunity to provide meaningful comment/analysis to the Reporter.

The terms of reference for the hearing sessions
11.             The Reporter set out the Hearing session rules very clearly in Procedure No. 1 Matter 1, in stating that the matter to be considered would be, “The impact of the proposed development on the strategic and local road network, including the effect on road and pedestrian safety and the ability of roads, junctions, footways and the railway underpass to accommodate development.  Where appropriate reference should be made to the analysis and conclusions contained in the appellant’s (WSP) original Transport Assessment (2011) and the later sensitivity assessment (September 2013).....  These are the rules with which we have sought to comply in the submissions we have made.

12.             In effect these terms of reference define what is admissible or relevant. There was no provision or qualification on the lines of  “.... or any subsequent amended, alternative or different analysis and conclusions that may be produced later...”.

13.             Since the Reporter has set out a clear steer that written statements should refer to the Transport Assessment (2011) and later sensitivity assessment (2013), the direct inference is that those are what he sees as relevant and coupled to the original application which was before the planning authority, and which have been subject to full public and official consultation and scrutiny. 

“Variation” in the application
14.             The 2011 TA was a key component of the application submitted to the local authority.  Without it the application could not have been tabled for consideration.  It was pivotal evidence in the determination and decision that was made.  It seems totally inconsistent with both the spirit of the Act and the terms of para 26 of Circular 4/2013 to deem that TA now to be superseded, or supplanted, by new and different analysis.

15.             The Council’s refusal to grant permission for the application was based on the fact that the road infrastructure was incapable of coping with a development of 250/320 houses.  The appellant has now tabled a new analysis which, astonishingly, asserts that the local road network has capacity to serve 455/520 houses.  But the introduction of additional consultants and the production of a new study – still based on theoretical modelling – does not alter the facts on the ground.  It was knowledge of, and familiarity with, those facts which led the Council to the decision they made.

16.             It is hard to avoid the conclusion that the production of this new Transport Assessment (for 455 houses) to replace the original which accompanied the application simply confirms that the original evidence submitted by the appellant as part of the application, was flawed, inadequate and not credible.  It thus incidentally serves also to demonstrate that the local authority’s concerns about access and road capacity as expressed at the PED meeting were well-founded, and that the decision they made was fully justified.

17.             For these reasons, and in the light of the specific points we have raised on this “new material”, we would respectfully ask the Reporter to dismiss this new Transport Assessment (otherwise described as “technical notes”) and invite the appellant to submit a new planning application.  However, should he be minded to admit this new Transport Assessment, we would be grateful to know on which particular regulation he would intend to base such a decision, and how it can be reconciled with the guidance quoted above.

Conduct of the Appeal Process
18.             There is a wider point here.  It is an issue of openness, transparency and good faith.  We referred in our earlier message to “moving the goalposts”.  The question remains as to whether it is fair and acceptable for key evidential documents to be replaced, rewritten or superseded. From the perspective of the local community, we are becoming increasingly disturbed – and in some respects confused - by what appear to be efforts to get the Appeal process, and the Reporter, to examine a proposal, and evidence, which differs from that originally put forward. 

19.             While the matter of transport capacity and impact is clearly central, there are other areas in which there has been a lack of precision and transparency.  For example, we have noted that the Site Plans submitted by the appellant to the DPEA on 29th November, 2013 in their Appeal case have now been superseded by ‘new’ revised site plans and the addition of site plan L7.0 which did not accompany the original appeal submission.  This creates uncertainty over aspects such as mixed-use provision and the exact route and nature of a distributor link road.  On the question of possible conditions and obligations, (matters 2 and 3), the evidence regarding the nature and extent of dialogue and agreement (or disagreement) between appellant and local authority is – at best – opaque if not contradictory.  We have separately recorded our disappointment that key correspondence on this subject “cannot be found”.

20.             Such concerns undermine our belief in the integrity and credibility of the planning and appeal arrangements.  The Scottish Government’s new community-empowerment legislation clearly intends that local communities – as the people most directly affected – should engage in and influence the planning process. We regard it as crucial that the Appeal should enable this to happen in a fair and reasonable way.

Yours sincerely
Brian Stewart
B E Stewart

On behalf of Nairn River, Nairn Suburban, Nairn West CCs, NRCG, and Dr J Noble

1 comment:

Anonymous said...

Get the houses built. The bairns need them