Nairn Common Good Sandown Lands latest

14 December 2010
Dear Highland Councillors and Trustees of the Nairn Common Good Fund,


May we refer you to para 3.4 of THC’s report HC-73-10 by the Corporate Manager, IBNS, where he states that: ‘The Nairn Common Good fund is due the Highland Council £734.4k for costs incurred in respect of Sandown. £344.4k relates to the payment of professional fees and £390k relates to the buy out of tenant farmer rights. The £344.4k has been correctly charged to the Nairn Common Good Fund Income and Expenditure Account and has caused the revenue reserve for Nairn to go into deficit.

As Trustees of the Common Good Fund, you need to be absolutely clear as to how and why this cost was not able to be amortized against the revenue from the sale of Sandown Lands and  thus, whether rightly it should be debited the Nairn Common Good Fund.  As Trustees, you have fudiciary responsibilities that bind you legally to the decsions you make in connection with Common Good Funds.

The facts are that Deveron failed to abide by the conditions they clearly iterated in their own offer letter dated 17th January 2007 to the Director of Property & Architectural Services, – which stated “Following discussions with the Planners we have identified that any development of this site will be master planned prior to progressing any detailed application.  Our master plan will be based on the indicative proposal submitted with our offer and takes account of the Development Brief”.   This Development Brief is predicated on the Nairn Local Development Plan, which designated the Sandown Lands for 100 houses (and an adjacent portion of land, not in the sale, for 40) being a total of 140 houses.  Whereas Deveron submitted a missive for  not less than 305, and subsequently a planning application for 550 dwellings for Sandown lands alone, namely 100 vs. 550.

Surely it is not too much to expect that Council Planning Staff adhere to the plans and policies written and adopted by their Council.  If the Planning process was as open and transparent as the THC has led us to believe, then why did it take the NRCG, Community Councils, Area Planning Transparency Group, other interest bodies and residents of Nairn to point up inconsistencies and blatant disregard of the Development Plan, and force a local public planning hearing, where Councillor A. Park took the lead in the unanimous rejection of the 550 proposal, and which subsequently resulted in an Appeal by Deveron at a Public Inquiry?.

The Reporter’s judgment was unequivocal (and is quoted verbatim in the subject report at para. 1.6), in supporting the Council’s decision not to grant planning permission, on a number of grounds, the prime concern being that “the proposal did not comply with the Development Plan”.

It is clear to anyone that, Deveron made a financial offer in their missives, which was so lucrative that it defied reality and perhaps coloured the judgment of Council Planning Officers. The Missive at para 3.1.13 states, that; “The Seller, in his capacity as proprietor of the Subjects only, will take no steps which will prejudice or adversely affect the Outline Application”.  Why would THC Planning Officials recommend such an application when it was so blatantly a significant departure from the Development Plan or was it simply that THC Planning Officials thought they could sneak the application past a ‘dozy old Nairn’?.

Thus, the Reporter’s conclusions indicate that Highland Council Planning Staff emphatically, and/or were legally unable, because of the condition in the Missive, to enforce the Brief and NLDP. If THC had held Deveron to what they submitted in their proposal of 17th January 2007, i.e. a development commensurate with the NLDP, or even the missive proposal for not less than 305 then building might have already started.  The Nairn Common Good Fund would be in receipt, of at least £15M. No land deposit was sought by THC for Sandown Lands even a modest 10% – £1.5M, which could have been invested/ringfenced in the NCGF, and subsequently accruing interest which could have been offset against costs.  The £1.5M could still have been returned to Deveron on resiling of the Missive.

It is therefore totally inappropriate and wrong that the Nairn Common Good Fund i.e. the people of Nairn, should be charged for what is in essence a failure by either Deveron to submit an application in line with their accepted bid offer of 17th January 2007 or the failure of THC to adhere to the Local Development Plan and Development Brief and enforce the conditions set out in Deveron’s bid offer of 7th August 2007. Furthermore, it is interesting that the two parties are now able to negotiate a compromise agreement to resile the Missives. Yet, they were totally incapable of renegotiating those Missives, (after the planning application for 550 houses was rejected by INBS PARC), and resubmit a planning application commensurate with the NLDP.

If this sort of questionable behaviour is allowed to go unchallenged, then one has to ask about the validity and need for Development Plans.   This is not a one off situation.  As the Council gets more and more desperate for money, similar situations will arise again.  We believe that THC Head of Planning is fully aware of this.  Hence, that is why the Planning Appeals Protocol has been pushed through, which basically puts barriers before Councillors, preventing them from moving to refuse planning applications, which have been recommended by the Planning Authority, unless the reasons for refusal have been approved by THC Legal Staff and Head of Planning.

To be blunt, this could mean that other Common Good Funds within Highland Region, could face similar charges because of less than transparent dealings between HC Officials and Developers for reasons known only to themselves! If this remains unchallenged, the same thing will happen again – different lands, different towns, but the same end result.

Accordingly, if your judgment is still, that this charge should be levied against the Nairn Common Good Fund then that decision must be accompanied by the requirement for some genuine accountability by those responsible for this fracas.

Councillors must act with integrity in the best interests of the people whom they represent.  It is a demanding and sometimes thankless task but nevertheless the people put faith in them as part of our country’s democratic process and as such this should always be foremost in their approach.

Council Officials provide guidance and advise to Councillors.  It is the role of Officials to ensure that such guidance is accurate, above reproach, and in accordance with all relevant legislation and probity.  The real question here is can HC Councillors satisfy themselves, that in the case of Sandown/Deveron, these criteria have been met in an open and transparent manner?

It is noteworthy that Council Officials have not suggested that in the interim Sandown Lands could be subject of properly drawn up tenancy agreement for a limited time at least obtaining some income until plans and contracts are completed and agreed legally.

Yours sincerely

John Hart
For Nairn Residents Concern Group
Mount Pleasant
Sandown Road
Nairn IV12 5NW
01667 451077
07519 299916

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