We made a formal complaint to the council about the “activation” of a decade-old consent at Craighouse. We have a reply from the council now. We will be taking this further. Here is an explanation of our complaint, the current situation, and their response. This is an extremely complicated situation, so we will try to keep it simple!
Ever since Napier University sold Craighouse to Mountgrange, there has been vague talk of a prior planning consent, dating from 2001. Some pictures of the proposals were shown to the public. But, when we tried to find out more about this consent, we found very little paperwork. The actual consent itself, and the “Section 75” legal agreement attached to it was neither online nor in the Council’s public archive. This is unusual, as planning consents are public documents. When we asked more about it, we found nothing. Napier – despite FOIs – gave us nothing. So we were shocked to discover, in June of this year, that (officially, at least) work had “already started”, and then stopped, as suddenly as it had begun.
What followed was weeks of investigating, pushing planners, writing letters, visiting the archives, and Freedom of Information requests to finally get hold of the paperwork that should have always been public in the first place.
The hidden paperwork, and the lengths we had to go to in order to obtain the documents that should have been public, is something we will write about further.
The latest response from the council is now that the paperwork “was considered to be available to the public”. What does this mean? All it says is that someone (unnamed), somewhere in the council, at some point in the past, thought that the paperwork was public. Not that it was public. Nor even necessarily that everyone at the Council believed it to be public.
Given the amount of evidence that we have now obtained, showing that this planning consent was hidden, and known to be unavailable publicly, we think it right that we challenge the validity of the consent.
What would this planning consent allow?
It is important to remember that this consent, if allowed to stand, would be granted in perpetuity. This is plainly wrong for such a permanent consent to be granted for a university building when the university has sold the site for a housing development.
The consent, if allowed to stand, would give Mountgrange the permission to create 2 large construction sites in woodland at Craighouse. One site would be in the woodland opposite the current car-park, where the green space would be cleared for a large carpark (with around double the spaces of the current car-park). The other site is on the greenspace and woodland opposite New Craig and behind Bevan. This site is for a large 80,000sq ft university building. Mountgrange could fell trees, clear woodland, then leave both as construction sites indefinitely.
Why would they, you ask?
To answer this question, it may be helpful to look at their last project in Edinburgh, Caltongate.
Early in the Caltgongate project, Mountgrange demolished the existing bus station (which had been used as local markets and artists’ studios) before presenting their plans to the council and public. Soon after obtaining outline planning consent at Caltongate, Mountgrange went into administration and the site has been a gap site ever since.
It is worth noting that Mountgrange call Craighouse “strategic land”. A description by an expert lawyer from Morton Fraser says that Strategic Land usually means a 5 to 30 year timescale. It is not necessarily for development – sometimes it is held and sold on and sometimes they look to get consent for as much housing as possible – and sell it on. (Rather similar to what Napier seems to have achieved with the university building consent.)
We can’t know what Mountrange’s intentions are for the site, but we do know that they went to great lengths to try and enable this old planning consent for a building they have shown no intention of developing. Why obtain a planning consent if there is no intention to develop it? What about in 5 years? Or 10 years? Look at how a consent from 2002 has already come back into the picture 10 years after the planning committee made a decision for the requirements of the university, but now the consent is being used for a totally different reason. A consent that if this decision is not reversed will last in perpetuity and allows the site to be spoiled and left a mess.
And even if Mountgrange do not do any woodland clearing work with this consent, they can easily sell the site onto someone else who does. Why has the Council allowed this to happen on such an important and protected site?
There will be nothing we can do about it in 5 or 10 years. We must do something about it now.
Why did the council do this?
Earlier correspondence by the council tried to suggest that the planning department had no choice but to accept that Mountgrange could start development, and had started development. That line is not repeated in their latest letter, where they make it much clearer that the council chose to allow this development to start.
On the issue of whether the development had actually started, they state:
“Planning is of the view that the trench does constitute a lawful start to the development and we do not accept your conclusions”
Our letter to the planning department presented the law on starting development. The law makes it clear that a lawful start must be a material operation. Digging a trench and then filling it in again is not a material operation. It is not construction. It isn’t even in the foundations of where the building was to be. It is not a lawful start. This is a case of the council accepting work as a legitimate start to the development, despite it being a pointless operation.
On the issue of whether the development undertaken on site was lawful, they state:
“The only condition referred to in your letter which is suspensive is condition 4 relating to archaeology. The other conditions are not suspensive.”
The argument of whether the conditions are “suspensive” or not is a legal argument, on which they are silent. However, they admit that the archaeological condition was suspensive. And yet they are silent on the fact that the consent stated that the archaeological plan needed not just to be submitted, but implemented before work could start. This would have involved a number of archaeological trenches being dug. None of this was done.
On the other conditions, they accept that the work was undertaken against the conditions of the planning consent, but because those other conditions were not (in their words) “suspensive”, then it doesn’t matter that the work didn’t comply with the other conditions on the consent.
The council are also silent on the issue of why they accepted a set of tree-protection plans one week, and then allowed the developer to completely ignore those same plans the next week. Are the council suggesting that plans submitted to the planning department are irrelevent and can be ignored at will?
Does this not make a mockery of the whole system?
What we want from our elected representatives
We want any planning process at Craighouse to go through the normal legal processes, with planning applications and consents available to the public, so that the public can object.
We want proper transparency and paperwork to be made fully available.
We want the politicians to stand up for their pledges to protect the site, their pledges about green space in this city and stand next to the local community in calling for this decision to be reversed.
If The Craighouse Partnership want to put in their proposals for their housing development -go ahead. We have been waiting a year and…nothing (strategic land, anyone?) But this is not the way to do it – trying to activate inappropriate historic consents with hidden paperwork, incorrect process and no lawful start.
We call on The Craighouse Partnership and the Council to start again. Do this properly. Put forth reasonable plans that stand or fall on their own merits. No more behind the scenes maneouvrings of the planning system or reliance on “loopholes” that do not exist in law.
We will be replying to the planning department letter and taking the complaint to the Ombudsman, so this careless decision can be reversed.
Or what happened at Caltongate could happen again at Craighouse.