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6 September 2017

Celebrity planning

Back in the day when Donald Trump’s star shone brightly enough to bedazzle our politicians into awarding him accolades and, eventually, permission to build his golf course on the precious sand dunes of Aberdeenshire, the integrity of our planning system was placed under intense scrutiny.  In particular questions were raised about the extent to which the ‘cult of celebrity’ had played its part. These same questions are now being asked about another celebrity driven (albeit home-grown) development. The community denounced last week’s decision by the Planning Minister as a funeral for democracy.

By RAGE / David Prescott

RESIDENTS of Judy Murray’s home town are considering holding a “funeral for democracy”, after the Scottish Government’s controversial approval of her planned sports academy on green belt land.


Ministers announced on Wednesday that they would grant planning permission for the £37.5 million project in Dunblane, Perthshire, despite an official recommendation from a public inquiry reporter that it be rejected.


Ann Shaw, 65, a collective member of the pressure group RAGE – Residents Against Green Belt Erosion – said the idea of holding “a funeral cortege for democracy” was one of several they would be considering, along with a march, or a mass picnic, while they waited for legal advice.


Under the “funeral” plan, the cortege could process from Dunblane to the green fields of Park of Keir, carrying a coffin representing the public will.


Mrs Shaw said: “It’s important we keep this in the public eye.


“The Reporter turned it down, and the Scottish Government overturned him. That’s a bonfire of democracy, a total farce, and we’re certainly not going to take it lying down.”


To read a detailed critique of this planning decision, local campaigner David Prescott gives his assessment of the Scottish Government Minister’s decision.


Park of Keir – Minister’s Notice of Intention


Summary


The Ministerial decision on the Park of Keir appeal was published on Wednesday 30 August 2017.  It is a “Minded to Consent” decision.  There are three conditions that need to be fulfilled before the Minster gives formal consent, which he has delayed initially for three months  They all fall to Stirling Council, who are required to conclude a Section 75 Agreement (or other legally binding agreement) which covers three (perhaps four points):


•             Secure education and affordable housing contributions in line with Stirling Council’s supplementary guidance.  This should be simple – the figures will arise from the Guidance and whilst there may be some debate about the base figures it is unlikely that the developer rise failing to get consent by not reaching agreement.


•             Ensure that no further residential development will be undertaken on the wider site.  This should be simple in that the developer has said this already, the CIC concept includes this.  So they will agree the concept to secure consent. 


•             Set out arrangements to ensure accessibility and affordability of the sports facilities.  This is a very surprising requirement.  It was rejected (in a different form) by the Reporter after considerable discussion at the hearing and where it was considered unlawful by some parties.  However the Community Council made the point that this linkage was the only justification for the “enabling” housing.


This last bullet point splits into two:  Accessibility and affordability;


Accessibility is likely to be covered by an agreement to provide a shuttle bus to Dunblane and/or Bridge of Allan stations.  This will add a considerable ongoing operational cost to the tennis and golf centre (of the order of £100k pa), which makes the affordability more difficult to achieve.


Affordability will be very difficult to agree, if it is done properly.  It may well prevent consent as it will require considerable work to develop a detailed Business Case to cover the all aspects, construction costs, operating costs and revenues, before it can be demonstrated that the arrangement will work. This is likely to require design work, funding agreements and an operating plan, all activities that the promotors refused to do prior to the planning application.  To give a credible affordability planning obligation this needs to be a rigorous and transparent process.


However the key point is that the Park of Keir decision now rests with Stirling Council.  If they agree these points the Minister will grant the Consent.  If they do not conclude an agreement the Minister cannot grant consent as set out in the Notice – although presumably he could amend his decision to ignore his earlier requirements.


Given that Stirling Council rejected the application, fought it through the appeal and public inquiry, at which the Reporter upheld their decision it would be perverse if they meekly roll over and give in.  The Council will need to agree a negotiating strategy that will stand public scrutiny, as there will be significant public interest in the outcome.


They will need to consider how the final agreement reached between the Council and King Partnership is ratified, which given it was rejected by the Planning Committee could be the full council.


They will need to look especially hard at the accessibility and affordability points, because this was Judy Murray’s mantra through the process, yet as the Reporter states the site is not readily accessible by public transport and he has raised concerns about the cost risks.


Clearly the Minister does not think this is a quick and easy task as he has (para 29) deferred the formal decision “in the first instance for a period of 3 months, to enable the relevant planning obligation to be completed to Minister’s satisfaction.”  This also suggests that there will be scrutiny by the Minister of the emerging agreement, and potentially involvement of Government officials in setting the parameters.


Detailed Critique


Background


The Planning Minister, Kevin Stewart, issued a “Notice of Intention” with respect of the Park of Keir Planning appeal PPA-390-2042.  This “Notice of Intention” was the he was “minded to grant planning permission in principle, subject to conditions and the conclusion of a planning obligation or other suitable agreement”.


This means, at the moment, planning permission has NOT been granted, and that still has to be done.  This gives a little scope for action in that the Minister could still change his mind and not grant planning permission.


This note examines the “Notice of Intention” and makes observations about both it and the Reporter’s Report, as released


“Notice of Intention”


The Notice of Intention briefly reviews and comments on the Reporter’s Report.  The key points are:


Para 5.                  The Minister accepts and agree that the proposed development does not comply with the development plan.  However they consider “that there are material considerations which indicate that planning permission … should be granted.”  He did not agree with the Reporter’s conclusions on weighting the different components and have attached weight to the regional and national importance of the sports facility.  However they have not provided any evidence or justification for that view to counter that considered view of the Reporter.


Para 10.                The Minister agrees with the Reporter’s reasoning and conclusion that this development is not in conformity with the development plan and in effect is agreeing as the Reporter stated it is in the wrong place.


Para 15.                The Minister merely states that they “attach considerable weight” in their decision making to the Reporter’s conclusion that the proposed tennis and golf centre would make an important contribution to the aim of increasing participation in both sports.  This merely says that they want the sports facilities regardless of any other considerations.  There is no assessment of how the negative aspects of this site – such as only realistically being accessible by car impact on the usability and value of the Sports facilities.


Para 16.                The Minister uses Stirling Council’s observations about adding to the wider sports offer as support.  He does fully accept the sports facilities will largely be access by car, but then comments that “users of a golfing facility will generally be more likely to travel there by private car” which is counter to the concept of golf facility as an introduction or Trainer facility, which implies that many users will not have clubs to bring with them.


Para 19.                The Minister puts considerable weight on the job creation element of the proposal as does the Reporter, but the Reporter also warns of a “real uncertainty” about the number of operational jobs that will be generated.  There is no comment on this aspect. 


Para 20.                The Minister agrees that the proposed funding model contains assumptions, some of which may be optimistic.  He accepts the argument for “enabling housing” to allow entry charges for the sports facility to be as low as possible, which was rejected by the Reporter.  It is clearly stated that the agreement to ensure that these benefits are delivered has to be finalised between the developer and Stirling Council before consent is granted THIS IS A CRITICAL STATEMENT.


Para 22.                The Minister accepts the Reporter’s conclusion that it has not been proven an alternative site does not exist.  So whilst Ministers think the concept of a sports centre is a “good thing” they accept it could be elsewhere and (see 10 + 16 above) that it is in the wrong place.


Para 23.                The Minister accepts that this is not a sustainable development.


Para 24.                The Planning Conditions – these will be discussed separately. 


Para 26.                The Minister only considers the housing content in respect of the emerging local plan, which given the impact on the green belt and the substantial built development is selective.


Planning Conditions


The Minister accepts the vast bulk of the Reporter’s proposed Planning Conditions.


The significant change is Condition 8 where the Reporter applied Stirling Council’s proposed condition which stated that “Prior to construction of the residential units, the tennis and golf centre, together with associated works shall be completed and available for use.  The Minister has changed “construction” to “occupation”, which will allow the houses to be built before the tennis centre is operational.


This is a significant dilution of the condition and indicates that the developer, who had proposed a phased approach, has put pressure on the Minister.


Agreements required to enable consent to be given


The Minister requires three points to be included in a Section 75 Agreement (or other legally binding agreement) prior to giving final consent:


•             Secure education and affordable housing contributions in line with Stirling Council’s supplementary guidance.  This should be simple – the figures will arise from the Guidance and whilst there may be some debate about the base figures it is unlikely that the developer will not agree a figure as doing so will help deliver the desired consent.


•             Ensure that no further residential development will be undertaken on the wider site.  This should be simple in that the developer has said this all along, the CIC concept includes this and they will agree the concept to secure consent.  However there is also the potential issue of the sports facilities failing financially and potentially a replacement with residential properties.  This would be unacceptable and should be specifically incorporated into the Section 75 planning obligation


•             Set out arrangements to ensure accessibility and affordability of the sports facilities.  This is a very surprising requirement.  It was rejected (in a different form) by the Reporter after considerable discussion at the hearing and where it was considered unlawful by some parties.  However the community Council made the point that this linkage was the only justification for the “enabling” housing.


This last point will be very difficult to agree, if it is done properly.  It may well prevent consent as it will require considerable work to develop a detailed Business Case to cover the affordability point, including construction costs, before it can be demonstrated that the arrangement will work.  Accessibility is more likely to be covered by an agreement to provide a shuttle bus to Dunblane and/or Bridge of Allan stations, but that will add a considerable ongoing operational cost to the tennis and golf centre (of the order of £100k pa).


Wider Issues


The Minister has “attached weight to the regional and national importance of the sport facility.”  But he has also accepted that the Reporter’s view that this is not the right location in planning terms for development, because it does not offer access to sustainable means of transport.  He has fully recognised this deficiency in the location at Park of Keir by insisting on the need for a planning obligation to cover the “accessibility and affordability of the sports facilities”.


It seems that he has confused the absolute desirability of a tennis facility of this nature (Because it is only the tennis facility that could possibly be described as of regional and national importance, the golf facility only has local impact) and its ability to deliver that outcome, which is significant diminished by the choice of location.


As the location of development is the fundamental aspect of planning this is a perverse decision.  Moreover it is likely to be used as a precedent in future for other developments, which will have a much wider impact across the whole of Scotland.


So, in accepting the Judy Murray arguments about the importance of the tennis facility, he has then chosen to locate the facility at a place where it will cost more to deliver and operate. This will frustrate the much of the stated ambition of being to develop the “grass roots” of tennis in Scotland.  He is establishing a tennis facility which is planned to fail in its stated objectives and in in effect going down the same path as the failed Roehampton experiment by the LTA which was so heavily criticised by Judy Murray.


Overall the decision is perverse, lacks logic, has not been supported by any evidence as to why the Minister places greater weight on certain aspects than the Reporter in his detailed and impartial analysis of the case and indicates that the Minister has had a closed mind to the outcome, having called it in to ensure that Judy Murray gets her desired monument to the Murray family.


Conclusions


This case is not yet concluded:


The three points listed above need to be agreed before the Minister gives consent.  He has initially suggested a deferral of their formal decision for three months (para 29).  The relevant planning obligation has “to be completed to Minister’s satisfaction”.  This puts Stirling Council firmly in control of the outcome.  Whilst the first two are, in the scale of the development immaterial sums, Stirling Council should hold out for as larger sum as possible as the developer is unlikely to want to lose the development for the sake of a few thousands of pounds.


However on the third point this is entirely open-ended.  The accessibility point may be agreed by providing a shuttle bus or similar transport arrangements/support, at a cost, but this will put even more pressure on the already weak finances of the sports facilities.  It is almost impossible to understand the affordability issue without a full understanding of capital costs, operational costs and income streams.  There is a need for Stirling Council to decide what is required and how to decide what is affordable.


A major concern in the case of the last two conditions is that they will be agreed, but will then lapse/cease in the future and that the place will have been built so there is no enforcement mechanism.


In incorporating the accessibility and affordability requirement into the final consent he Minister has shown what a poor choice this site is in terms of the desired outcomes, especially accessibility, which requires a planning obligation to be agreed, where on other more suitable sites these would be a natural outcome. 


There are wider implications in terms of local democracy, for future planning decisions and the Scottish Government’s decision making process.  These all suggest that this decision is a very important one and is one that will be subject to wider exposure and debate. 


David Prescott   3 September 2017

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