Lynton and Barnstaple - Operations and Development

On the question of the s73 advice that ENPA got and that Anne Belsey was good enough to share - very helpful, and points out what we did *not* hear from Peter Miles et al - it is inconceivable to me as a civil servant that ENPA could have approved the s73; public bodies must not act illegally, and it's rare in my experience to see advice as clear-cut as that which ENPA received.

If the Trust recieved conflicting advice, it presumably would have had to have ENPA reject the application, and then take ENPA to Court for Judicial Review (JR). JR is available under three headings:

(i) Illegality

(ii) Irrationality (Unreasonableness)

(iii) Procedural impropriety

Assuming ENPA had done its job properly, then (i) and (iii) would be irrelevant, with leaves (ii) 'Unreasonableness'. Here, there's a very demanding standard usually referred to as 'Wednesbury unreasonableness' which is that a public body is taking a decision "is so unreasonable that no reasonable person acting reasonably could have made it".

Based on what is now in the public domain - and crucially, that the Trust didn't pursue judicial review, it is pretty clear that the Wednesbury standard was not met and that the Trust would have lost.

The critical point here is that all of this was known to the Trust in August 2022 - yet they never told the membership and then (arguably slanderously) tried to blame ENPA for delays.

It is high time Peter Miles and his immediate leadership team laid out a timeline and explained why they made the decisions and statements that they did. Based on what we know now, Mr Miles et al should resign - and that's before we get to the unfolding fiasco of this year's AGM.

 

This is helpfully very clear, and I fully agree with the conclusions stated. However, I am not convinced about the logic, for two reasons.

Firstly, legal advice is expensive; litigation is far more so - and involves costs that go beyond the merely financial. There are valid reasons for not pursuing a judicial review that have nothing to do with the purely legal strength of a case (read Nick Wallis on the Post Office scandal for examples of how this works even when peoples' liberty is at stake). The best piece of commercial legal advice I've ever been given is that if a lawyer tells you that a particular outcome will happen, you should look for another lawyer - there can never be certainty of outcome.

Second, we know that there was a period of several months between the ENPA advice being shared and the revised application being submitted in which some activity took place, and that an amended S73 application was submitted. We also know that there was a delay between submission and the start of the formal consultation process. We don't know why that was, but have been told (which I have never seen challenged) that the failure of a planning authority to progress an application in line with stated timescales gives no time extension to the applicant.

On the information available, it is possible to surmise that there may have been a valid claim, and that a decision was made not to proceed for reasons that were not directly to do with the strength of any claim.

Therefore, any discussion of timeline etc. needs to be addressed in terms of how members can have confidence that "option C" can be successfully delivered in the light of the known constraints in linking Killington Lane with Blackmoor.

 

Again, how the heck can you draw conclusions without access to the rest of the communications and paperwork. You have two pieces of information among probably hundreds, and having only one side of the argument will create bias.

Additionally it's not always favourable to take or even threaten to take it to Judicial Review, at the end of the day we need to be able to work with the ENPA now and long into the future, creating a hostile relationship is not going to achieve that at all.

There is also the factors of cost to bring such action, and also time, any challenge of that nature will probably delay any progress by at least a year, more likely 18 months.

Choosing not to go to review doesn't necessarily mean they would have lost.

 

Cracking advice, so true.

 

This is fair enough - but what it does demonstrate is that there needs to be much more transparency about Option C's deliverability.

 

It is inconceivable to me that ENPA could have allowed the s73 with that legal advice.

Agreed, but if you genuinely think that you're in the right, you do do it; JRs are hardly rare.

Amen, I couldn't agree more.

So why did the Trust attempt to blame ENPA for having to pull the application "owing to the cumulative effects of Covid, staff shortages and prorastination by ENPA over the validity of the proceedure" in Newsletter 79 (p1)?

 

The problems of Covid I can well believe after my father having waited 11 months over the expected delivery date of his driving license renewal from a public office. Staff shortages have been and still are a problem in offices and companies eg, my post is still delayed often by up to three weeks here due to staff shortages etc.

The "procrastination" we don't know the details and probably won't and I suspect nothing will come of it either. Personally I'm not getting that bent out of shape over it, there are far more important things to do. They seem to think they are justified in using that wording, so be it.

What all need to do right now is pull together, stop the bickering and accusations etc. We now have an indication by the Trust of which way they are looking to go, that's looking now to be policy.

As members we now need to get behind the Trust and give support and help make it all happen, the withdrawal is done, the member vote on options is done, the picking over the embers has been done ad infinitum elsewhere and I dare say here.

If all goes well, we have work to do by making sure the existing railway in all locations attracts as many visitors as possible, we need to promote the railway in a positive light and really get the name out there, encourage new members and volunteers, encourage youngsters, make sure OSHI is a success, and work on what we can do to progress forwards.

That's what is important now.

 

>>>>the member vote on options is done....

Maybe, but there certainly has not been much by way of discussion about it between the Board and membership to the same level of 'forensic analysis' as has happened here. After all, if you were starving and offered one of three rotten apples and one decent pear, but disliked pears normally, which would you choose?

I don't think one News Bulletin and two to three weeks to think about which of 4 options to choose is much by way of a meaningful discussion and certainly not to decide on the way ahead before a discussion about it at the AGM. I still think that Option C is merely the 'best of a bad bunch' - it had goods bit, but also bad bits (eg trying to get to CFL almost before the dust has settled on the PE fiasco).

>>>If all goes well, we have work to do by making sure the existing railway in all locations attracts as many visitors as possible, we need to promote the railway in a positive light and really get the name out there, encourage new members and volunteers, encourage youngsters, make sure OSHI is a success, and work on what we can do to progress forwards.

I quite agree with you there

 

@DaveE , yes... and no. What is important to me is that:

• We take the time to understand what happened and therefore why we are where we are.
  
  
• We then need to identify the options, with costs and deliverability - this has not been the case to date, in either the "consultation" or Newsletter 80's apologia;
  
  
• These options need to be tested with key stakeholders, including but not limited to ENPA, the national park's residents (& especially the Parracombe community) and the Membership;
  
  
• Once we have a preferred option, we can then apply for planning, and, if necessary a TWAO with CP powers.

The current Trust leadership have brought us to the point of strategic failure, and there has been no evidence of contrition, remorse, reflection or learning from the events of the last five years; I'm reminded that the definition of insanity is doing the same thing and expecting a different outcome.

To assert that "We now have an indication by the Trust of which way they are looking to go, that's looking now to be policy" and therefore anyone who questions the approach should shut up is neither realistic or helpful.

Indeed, the deafening silence from Tony Nicholson or the Trust on why Anne Belsey's name isn't on the ballot for Trustees, and the apparent proceedural irregularities around the AGM that could render the whole exercise meaningless suggests to me that the current leadership is part of the problem, not the solution -- and therefore the last thing we should be doing is blindly following the existing Trustee's lead.

 

I am sure the Trustees have told Anne why her name is not on the ballot.

 

Totally agree with you.

 

Why has the reason not been shared with the members? At the moment I, for one, suspect foul play.

If there is a legitimate reason for excluding Anne's nomination it needs to be communicated to members.

 

All in your opinion of course and as you have said, what is important to you.

This has been gone over and over and over and over, here and elsewhere.

It appears to me that some have ideas on how to go forward, but will only be placated if their way and their way only is adopted.

The type of analysis and decision making you are seeking is board level/management level, not membership level. And I might make the note here that even if the membership were to vote for an alternative to the preference of the Trust they can have a board vote and overrule giving reasons for adopting another option if they wish.

I would argue there are many factors which have brought us to where we are, but as I have said before, I am not judge and jury, none of us are and as such cannot apportion blame, the only way that can be done is before a court of law, not a court by social media.

The reason Anne's name isn't in the ballot I don't know, there could be legal reasons, and equally legal reasons why no reason is being given. I won't comment any further on that as that's internal and in the management domain, not mine.

The problem I see sometimes is that there seems to be a seeking to find fault in the Trust in any shape or form possible. Is that helpful? Does the fighting help the railway? Does the accusations and fault finding help?

I stand by what I said previous, we need to pull together, work together, make things happen, and that won't happen if there is a continuing war going on, it will only cause more and more damage.

 

The ruling I was given by HMRC when I had to check this very point during covid was that the journey had to be capable of being broken by the customer. Whether it was or not was up to them. I would submit that if the ability to alight at the current terminal is retained then the extra part of the journey may not cause a VAT liability, particularly if there was a waiting shelter and a bench, regardless of whether there was a public access or not. But I may be dancing on a pin and I am not an expert.

 

Except the Membership and the broader community will have to raise the funds to pay for it, which is one of many reasons why open decisions, openly arrived at will produce the best way forward rather than the current mess.

If there are legal reasons, then the Company Secretary should explain what they are. If there aren't any, and Anne's nomination was valid, she should be on the ballot. This is about perceptions of professionalism and impartiality, all of which are central to building trust and confidence.

Unless you've got specfic examples, @DaveE , I'm afraid this is a complete strawman argument. The concerns I have and have expressed are about strategy and good corporate governance, both of which will be central to our future success.

Pulling together is predicated on trust and confidence. The actions and refusal to accept responsibility for where we are by senior members of the Trust undermine that. I can only endorse Chris Duffell's proposal of a period of reflection and lesson learning to avoid the same mistakes and same result when we next apply for planning permission.

 

Thanks, @21B , that's very useful.

 

It is fairly ob

It is quite straight forward why the nomination has not been allowed, considering that this is an open public forum I would not speculate on the reasons here.

 

I think there is much perhaps that we will have to agree to disagree on, don't get me wrong, I do respect your right to opinion as I hope you do mine.

I think with setting a corporate strategy it can be restrictive in the long term of not careful. You can set that strategy and then it becomes policy, and in the process you then become too rigid in being able to take advantage of opportunities that may arise as decisions are tested against that strategy. In truth with the complexity of what we are trying to achieve in reconstructing the L&B Railway can any true strategy be developed. The future is very hard to predict so it's at best a very brief outlining corporate strategy and then a shorter term strategy that is continually evolving and changing as the needs arise. Additionally even if we develop any strategy, is it wise to then publicise it or debate it with members? I can think of quite a few reasons not to which I won't go into here.

I do have to wonder why only the senior members of the Trust are the ones who appear to be targeted. Surely as this is a planning issue then it should be those involved in that process? I personally don't think there is necessarily any blame anywhere, legal counsel was obtained, consultants engaged, but as often the case with planning, the outcome was never guaranteed, even the best presented and supported application can fail.

To be honest all this just keeps going round and round, text upon text, when really all any of us want to see is some progress, any progress.

Right now the membership has endorsed Option C, many will have different views or ideas, as noted in the Options Report, all the comments made are being held on file and may be incorporated if beneficial. We come back to the concept of unpredictability and flexibility, Option C is what is being implemented right now, but it has flexibility. If something changes quickly we need to be able to adapt equally quickly and perhaps one of those many comments sent in may become useful.

In truth we won't know how favourable any future planning application will be until pre-application consultations with the ENPA begin.

In the mean time, we just need to chill? It pains me to see the arguing etc that goes on, we are all aiming for the same thing, naturally there are many different opinions and ideas, but in my view now, being as we have seen Option C quite overwhelmingly chosen, we need to try and make that happen. It may not be completely ideal, but I do think we can work with it, and that it's achievable.

 

What makes you sure ? Or are you just making an assumption based on "that is what any decent person would do" ?