Muckhart Village from Seamab

Update: MCC follow-up to Reporter’s Decision re H49

24th November

Following our meeting on 5th November, MCC has since held several informal meetings, with the last one taking place last Thursday 19th November. Those attending reviewed and discussed the progress made to date regarding the possibility of a legal case being made to overturn the Government Reporter’s intent to approve planning permission for 50 houses at site H49.

MCC has approached several law firms and one is prepared to examine the Reporter’s decision in detail to determine if a legal basis exists upon which a case could be built to take to the Court of Session. It stated that: The basis on which a decision such as this can be challenged by way of Judicial Review… are quite limited.” It was further stated that: “… the Court (of Session) would not review the planning merits of the application, and would only intervene if a legal flaw could be identified. Such challenges can therefore be difficult, and can, I am afraid, be expensive.”

It was confirmed that a fee of £5,000 would be charged for the firm to undertake an initial review of the Reporter’s Notice of Intention together with the related appeal documentation. If a legal basis could be determined for taking the case to Court, then the associated legal costs could exceed £50,000. These costs would be combined with “the risk of having to meet costs incurred by the other parties to the court action” were the case to be unsuccessful.

If a legal challenge was successful in the Court of Session, the case would be returned to the DPEA for it to be decided again which does not mean necessarily that the original decision by the Reporter would be changed or reversed: “The Reporter who hears the appeal again may come to the same decision but for different or expanded reasons.”

Further to discussion with PAS, members also agreed to look at an alternative option, namely, that of trying to secure free legal assistance through the Faculty of Advocates. Members agreed to review an application form for this service, which has since been distributed, to help determine if MCC’s wish to establish whether or not a legal case could be built, would qualify for such a service.

Members also discussed whether or not MCC should raise a formal complaint to the DPEA regarding the Reporter’s decision.

It was recognised that any complaint would require to be “precise” and based on “procedural grounds”. With this in mind, a member agreed to undertake a further, detailed examination of the Reporter’s Notice of Intention, to determine if there was such a case for a complaint. The virtual Site Visit, that was undertaken for the Reporter to ‘view’ site H49, and a lack of response to Health and Safety concerns raised regarding the marshy area within the site, were agreed as possible grounds for complaint.

MCC will discuss the above further at our next Meeting to be held, via MS Teams, on 2nd December.

Please Note: prior to this Meeting, MCC would welcome any further suggestions or ideas from residents which could help build a legal case against the Reporter’s decision or a case for complaint against the DPEA. Please just forward these to the MCC Secretary. If you would like to attend our next Meeting, then please contact the MCC Secretary to request a link.

 

Mike Wilson

Secretary – Muckhart Community Council

sec.muckhartcc@gmail.com

 

6th November

Following our Meeting last week, MCC held a further meeting last night to discuss, in detail, how best to respond to the recent decision by the
Government Reporter to uphold the developer’s appeal, following the Council’s Planning Committee refusal to grant planning permission for 50
homes on site H49 in Muckhart.

It is clear from the DPEA letter issued, on 28th October, to all those who submitted representations relating to this application, and from the Reporter’s detailed Notice of Intention, that planning permission will be granted to Springfield “provided an agreement under Section 75 of the Town and Country Planning (Scotland) Act 1997 is reached between the planning authority and the appellant”. The details of this decision are included in the DPEA ‘Appeal: Notice of Intention’ which can be found at:

https://www.dpea.scotland.gov.uk/CaseDetails.aspx?ID=120984

Whilst MCC considers elements of the Notice to be somewhat subjective in nature, unfortunately, this decision means that the development of 50
houses will now go ahead and that there is no realistic opportunity for further negotiation, either with the Council or with Springfield, on this number.

MCC acknowledges that the community is dismayed and angered by this decision and that, despite all of our efforts, this is not what any of us
wanted or deserve, however, regretfully, this is the final stage in this part of the process.

However, at last night’s meeting, members discussed the possibilities for contesting this decision. If we were to follow this route, then our only recourse would be to take a robust legal case to the Court of Session. This would require identifying and highlighting clear and strong planning and legal grounds upon which to challenge the Reporters decision which could only be achieved by Muckhart engaging an experienced and specialist Planning lawyer or team. We determined that not only would this be a very costly exercise – based on our understanding, typically, such legal representations cost around £100,000 – but, were we to lose our case at the Court, then we would also be liable to pay any costs incurred by the DPEA in defending it’s decision. Further, based on the number of cases that have been taken to the Court of Session, in the recent past, the evidence points to the fact that the vast majority of appeals have not been successful, so, consequently, we agreed that this would be a very risky route for us to take.

However, a group of MCC members have agreed to scrutinise, in detail, the Notice of Intention, to determine if there are any relevant issues upon
which the grounds for an appeal could be based. We have also agreed to seek advice from Planning Aid Scotland, to ascertain their view regarding the
basis of a possible legal case. Based on the advice that MCC receives, subsequently, we may then consider contacting a specialist Planning lawyer.

Based on all of the planning and legal feedback and advice received, MCC will then make a decision on whether we would wish to go down the legal appeal route, taking into account the financial risks versus the chances of success.

In the meantime, members also agreed that it would be remiss of MCC not to engage and work with the Council Planners, to try to influence and secure the greatest benefits, possible, for all within our community, under the Section 75 agreement.

Finally, and with the above in mind, MCC would ask you please to forward any views on planning or legal ‘points’ which you would like us to consider, in any future discussions and representations, and share any experience or recommendation, that you may have, regarding a lawyer, or law firm, experienced in legal planning matters.

 

Mike Wilson

Secretary – Muckhart Community Council

sec.muckhartcc@gmail.com

 

About Mike Wilson