Another document on the behalf of the town's three community councils and the Nairn Resident's Concern Group has appeared in the public domain via the Scottish Government's DPEA site. Those Gurnites who are serious students of all South Nairn planning appeal matters will find it interesting and even those who merely pay passing attention could find this particular piece of correspondence very interesting. If the appeal Reporter seriously considers it and gives it some weight in the decision process, might it have implications for Highland Council beyond this planning appeal? It is a communication phrased in polite diplomatic language but could it have massive consequences? Click the read more to see a copy of the document text:
"Dear Ms Kerr
I mentioned in the response I have just sent to your email of this morning that we had a couple of other queries and requests for guidance/clarification, and I set out in that email one of our enquiries (on correspondence related to conditions and obligations)
This separate email is about another area where some clarification seems necessary and would be helpful. It relates to the matter of Compliance and the wording of Policy 18 of the Highland-wide Local Development Plan (HwLDP), but may have wider implications. Our enquiry is as follows:
Policy 18 of the HwLDP is cited as a reference document by all parties. It is the main planning document under which the Appellant’s application was put forward, and the key text against which the Reporter – in the Appeal process –
has to assess compliance.
We note from para 4 on p 133 of the DPEA Reporter’s examination report on the draft HwLDP (our ref doc 4 for the hearing) that he made extensive comments on the draft text of Policy 18 in the Proposed Plan, and set out a number of amendments which he wished to see made to the final text.
In particular, he stipulated a modification to the section (or bullet point) on Phasing in Policy 18: the replacement of the last sentence, for which he provided the precise wording to be used. He set out relevant additional comment in
his conclusions (para 69 p 124) where he states ... "I find that the 250 dwelling limit is intended to take precedence over the larger figure in Table 3".
We are puzzled and concerned that the final version of the HwLDP did not implement the amendment exactly as directed by the DPEA Reporter. In the bullet point on Phasing in Policy 18, the final document appears to have retained the first half of the sentence in the draft [the "In advance of ....and subject to....” phrase], and bolted it on to the wording provided by the Reporter. [I attach a copy of a working-note which sets out in forensic detail an analysis of the exact wording of this section of policy 18 and how it appears to have been amended.]
If, for whatever reason, the final version of Policy 18 of the HwLDP is itself not compliant with, and does not incorporate, the changes required by the Scottish Government Reporter who examined it, this raises a serious question, because Policy 18 is the fundamental reference against which the application – and indeed the entire Appeal – is to be judged.
The way in which the amendment was made – apparently at variance with the Reporter’s instructions – dramatically changes the sense of the text, and the weight attached to the Reporter’s firm stipulation as to the strict limit of 250 houses in phase 1. By retaining or bolting-on the qualifying phrases, it provides a means by which the limit laid down by the Reporter can be circumvented through delivery of a masterplan, or a transport appraisal, which postulates a different (and higher) figure. Indeed this is what seems to have been done, in that the WSP 2011 Transport Assessment presumed, and the Strategic Masterplan then reflected, a total of 320 houses.
We note that in their written submission in response to Procedure Notice No 2, Matter 1 (Compliance) Anderson Strathern (for Mr Allenby) has raised at Section 7 (page 13) substantially the same point and has urged that the Reporter seek clarification. We would like to reinforce that request, since it seems essential for all to be confident that Policy 18 is a sound basis for the compliance assessment.
We find it difficult to understand how, or why, this “alteration” to the wording in the final text of Policy 18 might have occurred. In theory it may have been a simple error – by officials, proofreaders or typists: an oversight which was not
picked up at the time. We find this hard to believe.
We are however concerned that the way the sentence was re-cast might have been deliberate. If it was, this raises a much more serious point. Was the text the Reporter provided not adopted verbatim in the final version of the HwLDP, but modified, in order to ensure that the HwLDP provided the opportunity to leverage the housing numbers upwards if a transport appraisal could be cited to justify a figure higher than the strict 250 limit?
There is some circumstantial evidence that supports this latter thesis. When in January 2013 the local Community Councils questioned why the figure of 320 houses in phases 1(a) and 1(b) in the draft of the Nairn South Strategic Masterplan exceeded the 250 limit laid down by the HwLDP Reporter, the Council’s response was that “the masterplan has access to a submitted assessment that supports the potential for a higher figure.”
We have also become aware recently of evidence (which we can make available to the Reporter if required) which suggests that there were differences of view among HC planning officials about whether it was acceptable and appropriate to progress this Nairn South application by the appellants ahead of the consultation and adoption of the draft Inner Moray Firth Local Development Plan (which incorporates planning‐requirements for the Nairn South site). It reveals that there was clear pressure to determine the current consortium’s application on the basis of the HwLDP (policy 18) ahead of the adoption of the IMFLDP, so that “any future Nairn South IMFLDP Proposed Plan objections can be disregarded”.
This reinforces the belief that there may have been a deliberate intention by some HC officials to ensure not only that the HwLDP (Policy 18) was drawn up in such a way that it provided the scope to proceed with the development of the Nairn South site beyond the strict limit which the HwLDP Reporter had laid down; but also, beyond that, to use the HwLDP to pre-empt and close off any further public consultation (in the context of the IMFLDP) about Nairn South and other development sites.
Whatever the explanation, is seems to us clear that this has wider ramifications, not only in terms of the key reference on which the whole of the Appeal depends, but also for the way in which the preparation and delivery of local plans has been conducted apparently so as to pre-empt (or nullify) public consultation or objections.
We would welcome whatever clarification and explanation can be provided on this point, which seems to us of critical importance.
Nairn West CC
(for the three Nairn CCs and NRCG)"