Lynton and Barnstaple - Operations and Development

As far as I understand, even if the original planning has lapsed the conditions can still be discharged afterwards. This does help towards any future application as the matters in those conditions have already been dealt with. If that was the last of 44, that's really good news as that info can be used again and we should not see those conditions repeated.

 

It appeared on the L&B website this afternoon so I posted a link on FB. I was looking for the official election result, which still hasn't appeared.

https://www.lynton-rail.co.uk/trust-notices (then scroll down)

 

Well wouldn't be good if that list of pre-construction conditions where published in the Magazine or on the website so we can all easily reference them in the future?

 

I believe they were originally. And I think they can be referenced on the ENPA portal.

If I recall correctly the application ran to some 1,800 pages, plus the correspondence between various authorities etc, that's a lot to put on a website for the few who would actually read it.

 

I'm sure that some of us would
Far too often people are told that "the info is on the ENPA/\\\\ndc planning portal", but in many cases I've long since given up trying to find exactly where, or what some of it means in simple 'layman's terms'. IMHO a brief-ish summary of the key points, issues, and 'situation so far' would be a valuable addition to the L&BR's web-site.

 

Time? How long would it be, by a volunteer I may add, to scan and catalogue it all in?
If the ENPA have it all on their portal in one place, why duplicate it?

 

Just take a look to see what Bala Lake have done, no big heavy details there, they haven't scanned and published all their application material.

 

If anybody does want to track them down, the archive site, at https://www.lynton-rail.org.uk/story/planning-application-news used to have direct links to the ENPA (and NDDC) planning applications, where all the documentation is archived and available online. Since 2018 however, the external links have changed so are no longer active, but the references can be used to track them down. There is also a couple of pictures showing the volume of documentation prepared by the trust for all the applications, and the invoice for copying (20,388 pages!)

[Update: the current link for the first ENPA application (62/50/16/001) is at https://planning.agileapplications.co.uk/exmoor/search-applications/results?criteria={"reference":"62/50/16/001"}&page=1 ]

 

You are right, however the big difference is that they have been more than open about their problems and have bothered to keep there suporters informed on the progress of their project, if we can turn on a computer and write stuff on here then why can't our press and publicity guy do the same?

 

I was thinking more in terms of lists of key 'bullet points'. Eg 'to get from A to B requires us to provide C, D, E, F etc', then 'status as follows : C done, D awaiting survey, E not required until start of construction' etc etc. Essential an overview of the process and its components in very simple terms.

 

But it's been on the Internet, on the ENPA portal. We have been through some of this before there is privilege also involved. There were updates when they could, and also at the Members Forum.
Due to the legal wrangle between ENPA, objectors and our own legal teams it did mean much was being fought out behind the scenes, that is normal for planning applications.
In my view when it gets to that stage it's better to say little and let those teams fight it out between themselves.
The timeline of that legal wrangle is as far as I can see...
May, Section 73 planning applications submitted after consultation with the ENPA etc who
accepted and registered the applications indicating no issues. A Planning Performance Agreement was put in place for August.
June, ENPA received legal challenge.
August 8th, ENPA received legal opinion which agrees with the objectors.
August 15th, ENPA officially notifies the L&B that their legal team agrees with the objectors.
Nov 12th, after a number of legal opinions sought by the L&B, including an independent opinion, our teams disagree with the ENPA.
Dec 20th, Amended S73 lodged, and accepted by the ENPA.
Feb 2nd, ENPA puts the S73 to public consultation.

Now, when you consider there was also case law playing out in court on the very things that the teams were disagreeing over, ie: what is within the scope of a S73, you can see that it becomes very tangled and best not to say much publicly while such negotiations between legal teams is ongoing.
At best all that can be said is "we continue to work on the application which we believe will be favourable, but will bring more news whe we can".

As Bala Lake found out there are zero guarantees in planning, especially in a National Park area.

 

I do feel sometimes more info is being sought than can possibly be given though, like nitty gritty details. It also depends if anyone had the time to actually come up with something like that, we must remember it's all volunteer time.

 

This announcement was dated 20th July so maybe it takes a while for the web team to post stuff.

 

Great question. If they follow through with the threat then they will effectively make a declaration of hostility towards the membership which is unlikely to endear them to even those that so far have been supportive of the status quo.

I suspect the board (well certain members) will simply try to forget the ultimatum and carry on as if nothing has happened, not carry out the threat, but also not try actively to heal the divisions.

 

@DaveE , thanks for this. Let's look at it piece by piece, because there's a lot to go through here.

It would be more accurate to say that there may have had legal privilege, but there isn't now because the planning permission has lapsed.

What the loss of the planning permission has actually provided is an opportunity for the Trust leadership to level with the Members, explain what happened, what was learned and what we will do differently next time in order to get a different result.

Sadly, the Trust has to date completely refused to do this.

As I've said previously, the legal advice to ENPA last August was the most definitive I've seen in the public sector in 25 years, and showed that the original s73 application (turntable/sector plate) was fundamentally inadmissable because it strayed too far from the orginal permissions. It is rather surprising that no one / none of the Trust's advisors picked up on this, but this can happen.

What didn't happen was that when the Trust received this, they didn't level with the Members. This is on them, and was unforgiveable.

The Trust have not, to the best of my knowledge, ever published their either their original legal advice or whatever legal advice was obtained after ENPA provided their legal advice in August which effectively killed the first s73 application, so we don't actually know what it said (or even how many opinions were sought and at what cost). As this is all now history, there is no reason not to publish it to the Members and the local community as part of a lessons-learned exercise.

And then the application was withdrawn by the L&BRT, and the Trust (shamefully) publicly blamed ENPA planners for it.

If the post-August legal advice to the L&BRT was as definitive as Mr Miles claimed, it is hard to understand why the ENPA scheduling decision (which meant that whatever the merits of the second s73 application, it was all too late) wasn't pushed to Judicial Review (JR), given the existential nature of the application and the investment made up to that point.

But actions speak loudly, even in the absence of the legal advice: the only reasonable conclusion that can be drawn from the Trust's actions in not going to JR is that the legal advice was not as definitive as Mr Miles has claimed, and that a JR would fail because a Judge would not conclude that ENPA planners had behaved unreasonably.

Except that this wasn't what the Trust did. As we know from Anne's invaluable work earlier in the year, the Trust knew last summer that the original s73 application was a dead duck, and yet the Trust decided not to level with the Members, leaving people to believe that everything was fine when it was obviously anything but fine.

In order to rebuild Trust with the Members and the local community, and credibilty with ENPA and external funders, it seems to me imperative that the Trust pauses, conducts an open and honest discussion of what went wrong and why, and how we will do better next time.

 

I would actually argue that legal privilege is still ongoing seeing as we are still negotiating with the ENPA.

The ENPA legal advice did appear quite convincing, but our teams saw it differently, and this was actually the core subject in court in January of this year (Armstrong vs Sos) whereby it was found that nowhere in the statutes does it define what a material difference is, and even with fundamental changes it's questionable.

This is a legal viewpoint from a legal blog after that case...

"What is the implication of Armstrong for developers?

There is no doubt that the decision in Armstrong will have a far-reaching impact for planning practitioners – in particular, those who for a long time have referred to section 73 applications as "minor material amendment applications." This terminology will have to change.
That said, the case arguably still leaves open the question of whether a 'fundamental variation' test
should apply to planning officers and/or inspectors who are considering applications and appeals
relating to section 73 applications. What appears to be crucial is that any applications made under
section 73 should not go so far as to amend the operative part of a planning permission." (Foot Antsey)

Not long after we have another case come to court in March, R (Atwill) v New Forest National Park Authority [2023] EWHC 625
(Admin).

Regarding the findings of Armstrong vs SoS, Mr Justice Lane states,

"In the light of Armstrong, the relevant law can be stated as follows. An application under section 73 will not founder merely because the proposed change involves more than a "minor material amendment" .
Nor will it necessarily founder if the proposed change involves a "fundamental variation to the design of [a] single dwelling on the Site that is otherwise permitted by the operative part of the planning permission" (paragraph 66 of the judgment). However, in the light of the judgment of the Court of Appeal in Finney v Welsh Ministers and others [2019] EWCA Civ 1868, section 73 cannot be deployed if the result would be to change the "operative part" or the "grant" of permission; that is to say, the description of the development contained in the grant."

Now, was it more that our legal teams perhaps had their ear to the ground more than others? The Armstrong battle had been going on for some time previous beginning back in May 21 when it was first refused and then appealed.

Whatever the case, there was an adjusted S73 application that went in in December, which took out the TT/Sector Plate and made it acceptable to the ENPA to accept.

The biggest thing that was found here is that despite the guidance in the PPG, it's not in the statutes, guidance is just guidance, the statutes are the law.

The Armstrong vs SoS case was heard on the 27th January, ENPA put our case to Public Consultation on the 2nd February. By this time there was no time for the case to be deliberated properly before the expiry date.

Now, I see it that we could have taken it to JR and had it all tested in court, but, in the long run was that the best option?

It would probably take a well over a year and also cost us... And more importantly the ENPA. Realistically we don't want to upset the ENPA, we want to work with them, but pulling JRs which could cost them a lot of money isn't going to help at all.

There is an option which doesn't go down that route, and that's withdraw the S73 which would die with the historic application anyway, and reapply using the knowledge and info we have gained for the slightly shorter aim of CFL. I should imagine any application will be determined well before any JR would have been?

(Sorry for the edits, spelling )

 

Would also point out, as far as I can see the ENPA didn't officially notify the Trust of their position on the challenge until the letter was sent dated 15th August, after which legal counsel was sought (which isn't always the quickest of things to do) and resulted in an amended S73 application being lodged with the ENPA.

In truth as I see it, no one is to blame, its just how these things go sometimes in the world of legal and planning.

All the info I have is in the public domain, I can get references of the sources if need be.

 

It shouldn't take too long - although it is mostly down to voluntary effort.

The election results are now published there too: https://www.lynton-rail.co.uk/trust-notices (scroll to the bottom of the page for the latest update)

 

Thank you for this post and your earlier ones which to my mind explain clearly why the Trust handled this in the manner that it did. I agree with your view of the situation.

 

I would not agree - The trust did not know that the application was a dead duck. They did exactly what they should have done which was to seek a legal opinion. The advice they received was different from that recieved by ENPA which is why they continued with the application. It is quite right that this has not been published since it may be relevant to future applications in the ENPA area. It is true to say that legal opinions about the same matter often differ.