Lynton and Barnstaple - Operations and Development

In post #8014, Dave Ely points out that legal discussions were ongoing until at least November (and probably longer). Although Anne Belsey has now publicly shared communications between ENPA and the Trust from August, I'm not sure what that changes? The Trust's legal advisers clearly believed that there was a possibility of getting the S73 approved, right up until the application expired.

We are told that discussions with ENPA will now resume, so let's see what can be achieved without Grampian Conditions. I am of the opinion that we take one step at a time and slowly narrow the gap (unless anyone has £12M to spare). Two of the most challenging parts of Phase IIa are the bridges at either end. If we're able to get them constructed, there is much less opportunity to object (on the grounds of being unachievable) to the gap in the middle.

 

What I do wonder about though as an outsider is given the 'Grampian Conditions' is where is the money or the plan to raise it?

 

It changes a lot, in terms of what has been reported since the application was withdrawn.

This is in two ways. The first is just in terms of the confidence I and others can have in what is presented to us. The second, and probably more important, is that the arcane discussion on planning law has significant implications for what possibilities exist for progressing the scope of option C, whether as presented or otherwise. I keep coming back to the question of how, assuming none of the determined objectors fall miraculously change their opinions, those objections can be overcome. Part of the ENPA correspondence specifically included reference to the Trust's ownership of land and resources - key factors that would influence any decision.

 

Do you feel that Anne's email demonstrates that the Trustees in some way misrepresented the situation? Interestingly when I received Anne's email on Sunday my immediate response was that it exactly aligned with part of the explanation given in the Newsletter. If anything I felt a little uncomfortable about the fact that the email failed to mention that the Trust had subsequently received an independent legal opinion in support of the validity of the s73 application.

 

I agree - I think that keeping quiet was the right thing to so. I'm also not sure whether the email from ENPA should have been made public.

My AGM pack has just arrived so I will need to read that.

 

Exactly - I am unclear why the email failed to mention that as a result of the document from ENPA - the trust obtained it's own legal opinion. In fact I think that the trust took the correct action in seeking legal advice - I don't feel that the Trust misrepresented the situation.

 

Misrepresentation is a strong word, and I'm reluctant to use it of the trustees. However, the existence of that legal opinion on the part of the planning authority is an important fact, and insight into how they may think. Re-reading the newsletter in the light of that disclosure, my reaction is that the newsletter underplayed the significance of the advice that ENPA were operating under, and it's implications for the planning process. The trustees undoubtedly took the right decision to withdraw the application; my question is over the timing and their portrayal of how ENPA acted; where the newsletter referred to a possibility of a delegated decision, the email quoted makes it very clear that no such decision was practically possible given the combination of legal advice and dispute as to whether the S73 application was "substantially similar".

Ultimately, the existence of three different legal opinions tells us no more than that this is a complex and evolving area of law. In the absence of litigation, we can't be sure what the outcome would have been; I for one am glad that the L&B has chosen not to go down that road.

Where I do ascribe significance to the disclosure of the ENPA position is in the transparency that members are owed. We have been invited to participate in a consultation, and will shortly be asked to participate in an election of trustees. Members will be making decisions, and need facts on which to base their choices. I'm concerned that there are too many advocating for this or that, and not enough calm voices seeking for what is possible and how.

I look forward to receiving my AGM pack - it is one of a couple of items of post that seem delayed at present.

 

I think that the Trust was entirely correct to take their own legal advice on this matter. Opinions may vary and this is a complicated and changing area of law.

I am however concerned over the apparent breach of the General Data Protection Regulations. By copying members email addresses, presumably kept by the Trust, and then using them for their own reasons (as has been done), this would appear to be a breach of the regulations. In addition sending out group emails with all of the email addresses being readily readable is also potentially a breach of the regulations.

All of this appears to me to be the action of a loose cannon and says more about them then anything else.

 

This member has not received an email, so I assume that whatever list has been used is not that of the Trust.

While I am tempted to agree with the characterisation of the sender (whom I've never met or engaged with), I also have sympathy for why it may have been felt necessary. When I vote, I shall be doing so in the knowledge that her candidacy has been vetoed in a way that is apparently impermissible, and where the information she has supplied provides important clarity on the situation today.

 

There was no GDPR breach - your presumptions are incorrect. I am advised that the addresses used were NOT from those kept by the trust, which is why Anne has had to resort to Social Media and word of mouth to get her message out to as many members as possible. There was actually a recent GDPR breach by another officer involving CC rather than BCC addresses to a group of members, but no action has been taken in that regard to date. One man's "Loose Cannon" is another man's "Whistleblower".

 

Agreed, apologies if I was slightly putting words in your mouth there!

The phrasing in the Newsletter is slightly unclear - it mentions both the objectors' legal opinion and the Trust's counter-opinion, but I think the fact that ENPA had sought it's own legal opinion is implied in the following paragraph rather than clearly stated.
So I'd agree that a more detailed account of events and chronology would have been been helpful, but to me this seems more likely to have been an attempt to keep the account in the newsletter to a reasonable length, and not necessarily a cause for me to doubt the information presented more generally.

I'm not terribly clear on how this part of the process might have worked. My very limited understanding is that a delegated decision might still have been a technical possibility, but that with ENPA as an objector (which I assume they would have been given the advice they'd received) there was indeed a "high risk of refusal".
Or "bugger all chance" as the rest of us would put it!

Some might argue that these details are bit moot at this point, but I do agree with you that it's important that the Trust represents the conduct of all parties accurately.

By this same logic, I am uneasy about the email over the weekend, in particular the headline:

L&B TRUSTEES KNEW IN AUGUST 2022 THAT THEIR SECTION 73 PLANNING APPLICATION WAS INVALID AND WOULD NOT BE GRANTED!

This seems to me to risk oversimplifying a complex situation to the point where it could be potentially misleading. I'm not for a second suggesting that the conduct of the Trustees shouldn't be scrutinised, but I agree with your assertion that calm heads are required!

 

I think that the headline is overstated but that, on the basis of what ENPA had informed them, they were moving into very strong headwinds. I don't recall the strength of those headwinds being made visible at the time.

 

My paperwork arrived today.

From a brief glance at the summary of the Consultation, it is clear that the Board has decided to proceed with Option C - no surprise there then. However I do not believe that it would have done any harm, and might even have drawn them some credit, if they had delayed any such decision until after the AGM, so that they could have engaged in a discussion with at least some members in person and heard their views before making a final choice.

My personal view is that is still likely to be a case of too much, too soon. Nevertheless I do hope that all goes well and who knows how it may turn out, but certainly I shall be watching it very closely - as no doubt will others on here.

 

I've just skimmed the Newsletter this lunchtime: my first reaction is "what a lot of self-justificatory waffle".

I agree with @35B , @RailWest that it is clear that the Trust leadership knew - or should have known last on the recepit of the email that Anne Belsey has unearthed that the likelihood of refusal of the s73 route was, to put it mildly, very high.

Yet what did they do?

The one thing they did not do was level with the membership - and then having the temerity to blame ENPA for having to pull the applicatoin "owing to the cumulative effects of Covid, staff shortages and prorastination by ENPA over the validity of the proceedure" (Newsletter 79, p1). It is clear that "procrastination by ENPA" is at best unfair and potentially libelous - what ENPA had in fact done was set out its legal advice and advise the Trust that they were going to have to reject the application.

This hardly seems like the way to win friends at ENPA or to build trust and confidence with the membership.

Moreover, I cannot see anything in the public domain that remotely suggests that ENPA will not impose the same Grampian Conditions on a future application that they did last time, making Option C's incremental approach untenable; indeed, it seems likely to fall at the first hurdle, after more wasted time and money. In light of the approach after the response to the "consultation", I can only hope that ENPA are clear in the pre-application consultation whether or not a staged approach including a terminus at Parracombe for however long is going to get their support or not, so that we don't waste even more time and money than the recent debacle.

Finally, where is Anne Belsey's name on the list of Trust Candidates? If she had completed the nomination process correctly, she should be a candidate: it is not for Mr Miles or anyone else to veto candidates duly nominated.

 

I did not receive an email - if I had I too would have had GDPR concerns.

 

At a guess Grampian conditions could still be applied, they are after all still allowed to be used

 

Would this time and effort have actually changed the minds of ENPA who clearly state it would have been deemed illegal for them to approve the S73, as we now know it wouldn't have.

Anne is one of the most enthusiastic members of this railway and is also one of the hardest working and probably the most regular of volunteers at woody bay and when not needed there she is to be found at Chelfham ,even with the way she has been treated of late she is still putting the railway first, the last thing i would call her is a loose cannon although after they way she has been treated she has nothing to lose, she has supported the loco 'Sir George Newnes' and OSHI, she is in fact passionate about the railway and wanting it to succeed, she has been coming up with new ways to promote the railway as a whole, and in my opinion is only trying to highlight the issues within that nobody seems to want to face simply because she cares about this project, there are very few people that i know of who have upped sticks and moved to North Devon so that they could get more involved

 

I agree - I have not yet seen my papers, but if it is true that a nomination for Anne Belsey to be elected as a Trustee has been validly made within the regulatory timescale and not included in the candidates for election, I will have to hope that an interpretation of the M & As justifies a conclusion by the members at AGM that the voting process, and maybe the meeting itself, is invalid and will have to be reconvened. That is if there is not a very good reason given for her candidacy not to have been processed and put on the list.

 

As regards the validity of the AGM....

• The AGM will be on the 13th May.
• Clause 5 of the M&AoA mandates "at least 21 clear days" notice.
• Clause 1 defines clear days as "excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect".
• So - the notice must have been deemed to have been given no later than 21st April.
• Clause 67 states that a notice shall be deemed to have been given after 48 hours have expired after it was posted.
• Hence, for the meeting to be valid the notices must have been posted no later than 19th April by my calculation.
• The notice is dated 12th April.

The validity depends upon when the notice was (deemed to have been) given, not when it was received. What we can't tell, of course, is exactly when the notices were posted. I suppose attendees at the AGM could ask the Secretary for sight of the relevant 'proof of posting' ?

 

Given when some reports of meeting packs were received, I am prepared to give the benefit of the doubt on the notice of the meeting, notwithstanding the oddity of when the paperwork was "signed".

I have more concerns about the Trust AGM, and the implications of the seemingly ultra vires exclusion of one candidate from the process.

At a time when it's necessary to pause, and take the oxygen out of matters, it seems rather to add cause for dissension.