Select Committee on the Kirk Michael School Land Exchange Agreement Report 2012-2013

PP 0127/12

SELECT COMMITTEE ON THE KIRK MICHAEL SCHOOL LAND EXCHANGE AGREEMENT

REPORT 2012-2013 1 REPORT OF THE SELECT COMMITTEE OF TYNWALD ON THE KIRK MICHAEL SCHOOL LAND EXCHANGE AGREEMENT

Resolved on 22nd February 2012 -

That Tynwald appoints a Committee of three Members with powers to take written and oral evidence pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to investigate the Kirk Michael School Land Exchange Agreement between Heritage Homes, Pinecrest Investments Ltd and the Department of Education and Children; whether by January 2011 access to the land had been secured, as was stated at that time by the Hon. Member for Ayre; the manner in which the negotiations were conducted; and the value for money achieved; and to report with recommendations by May 2012. The powers, privileges and immunities relating to the work of a committee of Tynwald are those conferred by sections 3 and 4 of the Tynwald Proceedings Act 1876, sections 1 to 4 of the Privileges of Tynwald (Publications) Act 1973 and sections 2 to 4 of the Tynwald Proceedings Act 1984. Committee Membership The Hon. S C Rodan SHK (Garff) (Chairman) Mrs Brenda Cannell (Douglas East) MHK Mr Juan Turner MLC Copies of this Report may be obtained from the Tynwald Library, Legislative Buildings, Finch Road, Douglas IM1 3PW (Tel 01624 685520, Fax 01624 685522) or may be consulted at www.tynwald.org.im All correspondence with regard to this Report should be addressed to the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas IM1 3PW.

Table of Contents

I. BACKGROUND: THE COMMITTEE AND THE INVESTIGATION...1

PUBLICATION OF WRITTEN EVIDENCE 2

COMMITTEE POWERS 3

II. BACKGROUND: THE PROPOSED DEVELOPMENT, THE LAND EXCHANGE AGREEMENT, AND THE CONCERNS WHICH HAVE ARISEN 4

THE PROPOSED DEVELOPMENT 4

THE SIGNIFICANCE OF THE ALTERNATIVE ACCESS 5

THE TYNWALD DEBATE OF JANUARY 2011 7

DOUBTS ABOUT THE ALTERNATIVE ACCESS 7

Other questions raised

27. In the February 2012 debate and in his written evidence to the Committee Mr Alfred Cannan MHK raised further questions in two areas:

• as to the manner in which the negotiations were conducted, querying both the level of personal involvement of the former Minister, and also the timing of the final Agreement immediately after the Dissolution of the House of Keys;

• as to the value for money achieved.

28. These further issues are explored in detail in separate sections below.

III. INVESTIGATION OF THE AGREEMENT ITSELF

29. The first element of the Committee's remit is "to investigate the Kirk Michael School Land Exchange Agreement between Heritage Homes, Pinecrest Investments Ltd and the Department of Education and Children".

30. While the purpose of a Select Committee is not to examine the merits of the planning application per se, we believe it necessary to consider first whether the idea of a land exchange was justified in the first place.

8 Was there a need to protect the interests of the school? 31. The Cannans in their oral evidence pointed out that the number of pupils at Kirk Michael school fell from 138 during the period 1996 to 1999 to 135 in March 2011. Meanwhile in 2002 a new sports hall, two extra classrooms and a school community room had been opened and in March 2011 Mr Teare had proposed using the extra space as a doctor's surgery. This called into question the view that further land was needed for expansion of the school.3

32. We put these points to the former Minister and the current Chief Executive of the Department of Education and Children. They defended the land exchange on each point, saying that:

• while there is a recent history of declining numbers at Kirk Michael, the latest census shows an overall increase in the number of primary-age children and the Department needs to look further than five or 10 years ahead;4

• according to the Department's figures, if 100 houses are built the Department would expect at least 40 more children in the primary school. While it is true that there are two spare classrooms at present, the school does not have some of the things that other schools have;5

• concern as to the possibility of development completely surrounding a school was well founded as was illustrated by the case of Ballaugh School;6

• the proposed new playing field would have more resilience in bad weather conditions, would be properly drained and would be properly fitted out for modern sports facilities.?

Conclusion

3 Q1 4 QQ 81 to 82 5 QQ 89 to 91 6 Q 82 7 Q92 9 We concur that there was a need to protect the long-term interests of the school.

Was a land exchange an appropriate way to seek to protect those interests? 33. The Cannons argued further that even if there was a need to protect the interests of the school, the planning system could have been relied on to ensure open spaces were provided as part of any future development and houses would not be built right up to the school boundary.8

34. We received from Mr Henry Kennaugh written representations to the effect that, without giving away the land desired by the developer for the Douglas Road Access:9

A land exchange and benefits for the school could still have been achieved by planning conditions and concessions from the developer, with the developer themselves providing the entrance located south east of the village on property they had maintained they were in control of 35. We drew these concerns to the attention of the Director of Planning and Building Control and asked for a comment as to whether the planning system could be relied on to prevent development adjacent to a school boundary. It is clear from his response that it cannot. He wrote:

... it cannot be said from a planning perspective that having housing immediately alongside a school is unacceptable in principle or in some way has a negative impact either on the school or the housing concerned ... the planning system could not constrain the principal development of housing on land alongside the school if this land were designated for housing unless there was a robust evidence based justification for safeguarding the land for educational purposes. The Planning Committee or a Planning Inspector would consider that the decision on how large the site should be, including future proofing it, should have been taken when the land was designated and it is unreasonable to withhold otherwise acceptable development on the basis of an unjustified future possible need for the land.

8 Q 5 9 Letter from Mr Henry Kennaugh dated 5th July 2012 10 36. We consider that these comments give further weight to the Department's argument. There is a present need for a playing field and a potential future need to expand the school buildings, albeit in the mid- to long term. Only by owning the land adjacent to the existing buildings can the Department keep both of these options open.

37. Mr Kennaugh maintains further that in seeking the endorsement of Tynwald to a land exchange at Douglas Road Corner the Department was in effect seeking to over-ride the planning process. He asks:

was Tynwald on the 18 January 2011 made fully aware of the implications that the mandate they were giving to the Minister of Education was to then be used to condone the wholesale blatant breaching of Government Planning Policy.

38. We consider these concerns to be misplaced. In the January 2011 debate the Minister said he expected development to occur "subject to the planning process". The Agreement itself is, as explained below, expressly subject to the planning process in any case. To argue that in endorsing the principle of a land exchange Tynwald was also endorsing a breach of the planning process is to misrepresent the terms of the Tynwald resolution. A Government Department must follow the planning process like anyone else. It is not entitled to assume that a planning application which has its support will succeed for that reason alone. In its capacity as a landowner it is, however, perfectly entitled to buy and sell land, or to enter into agreements for the buying and selling of land under particular conditions, as in the present case.

Conclusion

We consider that a land exchange was an appropriate way to protect the long-term interests of the school. For reasons set out elsewhere in this Report, we believe that by 2010 the Department was justified in its view that some form of development was inevitable. That being the case, the Department's ownership of land at the Douglas Road Corner gave it a strong hand to play. By negotiating for a land exchange the Department had the opportunity to achieve much greater certainty than would have been achievable merely by seeking to have conditions imposed on the development through the planning system.

11 Balancing the needs of the school, the community and the taxpayer

39. The Cannans emphasised in their oral evidence the need to achieve a good deal not only for the school but also for the community, pointing out that Mrs Craine, when Minister, had accepted that the deal brought potential disadvantages to Kirk Michae1.10

40. We asked the Cannans to specify the potential disadvantages of the land exchange. Their answers were the protection of the conservation area and the management of traffic.11 These are matters for the planning process. At the same time we note that according to their written evidence to this Committee:12

Michael District Commissioners have supported this advantageous deal since first offered many years ago.

41. When we asked Mr Teare if the motivation for striking this deal was the best interests of the school and the Kirk Michael community, he said:13

No, the school and the taxpayer and also I did say at the outset, damage limitation, bearing in mind that they had alternative access.

Conclusions

When the land exchange was first proposed, in 2005, the Department of Education was justified in entering into negotiations on behalf of the school and the taxpayer.

Mrs Craine's decision of May 2007 to halt the negotiations in the face of vocal opposition led by the local MHK was based on a judgement that the potential disadvantages of the development outweighed its potential advantages.

Given the change in circumstances which occurred after May 2007 as described in this Report, it was reasonable for Mr Teare in July 2010 to allow negotiations to recommence.

10 Q 25 11 QQ 25 to 29 12 Submission dated 22nd March 2012 from Michael Commissioners is Q 204

12 Was the Agreement competently put together? 42. We obtained legal advice on the Agreement itself from John Wright, Advocate. His advice is reproduced in full as an Appendix to this Report. Property valuation figures reproduced in the legal advice have been redacted in line with our treatment of all valuation figures throughout this Report.

43. We asked Mr Wright to provide an explanation in layman's terms of the effect of the Agreement. He wrote:

Simply put the Agreement recites that Pinecrest owns land, (fields 234456, 234265, 234455, 234252 and 234253), that it has agreed to sell that land to Heritage, which is going to apply for planning to develop the land, and that to assist in obtaining planning both Pinecrest and Heritage want to acquire land belonging to DEC at Douglas Road Corner and swap it for some of the Pinecrest, land to allow "suitable access" and to do certain works, at the expense of the developer, for the benefit of the school.

The Agreement is made conditional upon Heritage applying for obtaining planning consent on terms which are acceptable. "Acceptable" is defined.

The Agreement provides that if acceptable planning consent is granted to Heritage, in respect of land owned by Pinecrest and the DEC, then the DEC will transfer ownership of a triangular area of land, part of Michael school playing field at Douglas Road Corner, to Pinecrest in exchange for Pinecrest transferring to the DEC a larger area of its land, part of fields 234456 and 234455, immediately behind Michael school, the Mitre and the Old Fire Station. The areas are not stated in the agreement but the land involved is adequately identified by plans. From the report of the Planning Inspector I have ascertained that the area of DEC land to be exchanged is 0.63 acres and the area of Pinecrest land to be exchanged is 2.01 acres. Ie DEC is getting slightly more than 3 times as much land as it is giving away. 44. We asked Mr Wright if the Agreement covers the eventualities which ought normally to be covered in such Agreements? He confirmed that it did.

45. We asked Mr Wright where the Agreement leaves the Department if the Developer fails to get planning approval? He wrote:

13 If planning is not approved in acceptable terms for Heritage and Pinecrest the Agreement comes to an end and the DEC is in exactly the same position as it was before the Agreement was entered into, ie it owns the playing field free from restriction. Planning was recommended to be refused by the Inspector's report which was then approved by CoMin. It appears prima facie the Agreement came to an end. I have not been advised that the parties have agreed to vary or extend it to allow for a new application, although I am instructed such a new application was submitted on or about 20 April 2012. The notification of CoMin that the Inspector's report had been accepted and planning refused was dated 27 February 2012. As a result, under the terms of the Agreement as the second application was made within two months of refusal, the agreement continues to be live.

46. We asked Mr Wright if there is a fixed end date to the Department's obligations under the Agreement? He wrote:

No. There is no stated fixed end date, or "long stop" date, for the Agreement by which the planning consent must be obtained. However planning had to be applied for within 3 months of 16 August 2011, and, once applied for, there is an expiry date of 18 months from the date of submission, subject to some minor powers to extend in clause 5.12 to allow for appeals and reviews if Heritage says that planning has been granted BUT is not acceptable. In my view these terms are reasonable, measurable and capable of adequate and certain determination. The Agreement came to an end when the Inspectors report, approved by CoMin, was published in February 2012. Clause 5.12 does not in my opinion allow extension in the case of refusal. In other words it would have come to an end by 16 May 2014 (if planning had not been resolved by then) or by refusal of planning (which has happened) except that if a second application was made before the expiry of two months from the refusal of planning the agreement continues, but that is still subject to the long stop expiry date of 16 May 2014. 47. We asked Mr Wright if the Department had the legal power to enter into an Agreement of this kind? He wrote:

Yes. I am not aware of any restriction on a Department of the IOM Government which limits its ability to enter into an Agreement to sell or exchange land or requires it to obtain Tynwald approval in advance. There are requirements for Treasury approval. I am instructed that Treasury approval was obtained prior to the Agreement being entered into. The DEC thus satisfied 14 Treasury requirements. Obviously it should also have attempted to ensure value for money and any decision had to be reasonable, based on rational criteria and decision making, or it may be subject to judicial review by way of Petition of Doleance, in appropriate circumstances and by persons with locus standi. The Agreement is not stated to be subject to approval by Tynwald, I presume the draftsmen did not consider it necessary either. 48. We asked Mr Wright if the Agreement raised any other legal concerns? He advised that it did not.

Conclusion

On the basis of the independent advice it has received, the Committee accepts that the Agreement was competently drafted.

Was the Agreement properly entered into?

49. The Agreement was signed on 16 August 2011. The House of Keys was dissolved on 18 August 2011. In their submission dated 19th March 2012, Dr and Mrs Naylor asked:14

VVhy was the contract signed when Tynwald was in recess and Kirk Michael had no MHK because of retirement, i.e. we had no democratic representation at the time? 50. When asked if there was any significance in the Agreement being signed when the Keys was about to be dissolved, Mr Teare said:15

None at all, but I was conscious that the Department had spent a considerable amount of work on it and I did not really want this to go on to the next administration. It was just a case of "let's get this resolved and we can then move on." Nothing more than that. In analysing the Naylors' various concerns, our legal advisor John Wright commented as follows on this point:

14 Appendix 2 15 Q 96 15 I am not sure what democratic deficit they allege as the agreement did not require Tynwald approval in any event. It did require, and had, Treasury approval, or so I am instructed, not having seen any documentary proof Government goes on, even after the House of Keys has been dissolved and an election called. The Dissolution was in any event after the date of the Agreement, if my memory serves me right. At a political level Tynwald had of course taken an interest in the Agreement and the Department's actions were consistent with the resolution agreed to in January 2011.

Conclusion

There is no evidence that there is any significance in the Agreement having been signed shortly before the Dissolution of the House of Keys in August 2011.

IV. WHETHER BY JANUARY 2011 ACCESS TO THE LAND HAD BEEN SECURED

51. The second element of the Committee's remit is to investigate "whether by January 2011 access to the land had been secured, as was stated at that time by the Hon. Member for Ayre". This is a reference to the alternative access which is referred to in the written evidence as either the "Lhergy Vreck access" or the "High Tilt access".

52. Mr Alfred Carman MHK identifies a number of questions in his written evidence to the Committee. The following are relevant to this section of our Report:

2. What evidence did the Department of Education have that Heritage Homes had access to the zoned land behind the school? 3. What plans or drawings were submitted to the Department of Education to authenticate such claims and when?

4. What discussions took place with the Planning Department to evaluate such plans or drawings and when?

5. What confirmation was provided by the Planning Department to the Department of Education in respect of this matter? 16 6. What discussions took place with the Department of Infrastructure in respect of road access to the zoned land and when?

In investigating the remit set to us by Tynwald we have also borne in mind these further questions from Mr Alfred Carman MHK.

Did the developer acquire properties around the Lhergy Vreck Farm Road before January 2011 and did the Department do enough to verify this?

53. Heritage Homes state in their written evidence that they have:16

• an option agreement over a portion of Cass A Lergy dated 19th December 2007

• the freehold of Westlands, purchased on 1st July 2008

• the freehold of Knock-e-Tholt, purchased on 21st March 2007

• the freehold of a portion of Greystones, purchased on 15th April 2008

For the location of these properties, see Map 2.

54. The Committee wished to obtain independent confirmation from the Land Registry that the land concerned was in the ownership of Heritage Homes before January 2011. The Land Registry has confirmed the transactions related to Westlands, Knock-e-Tholt and Greystones.17 An option agreement such as that referred to in relation to Cass A Lergy would not need to be registered.

55. The Department's written evidence shows that by August 2010 the officers in the Department of Education and Children had accepted that Heritage Homes had now purchased Westlands and Cass A Lergy and that in October 2010 this assumption underlay a discussion between the Minister and Departmental officers.18 We asked the former Minister if he

16 Submission dated 18th April 2012 from Heritage Homes 17 JK phone conversation 19 Apr 2012; subsequently followed up in e-mail from David Brown dated 2nd May 2012 18 Documents C and D attached to the Department's submission.

17 had checked the veracity of the claim of the property ownership to permit a new access. He said:19

It was already in the public domain through deeds which had been filed at the deeds registry that they had alternative access... It was public knowledge, sir.

56. Heritage Homes states in its evidence that:2°

The Department also has proof of our Ownership and Control of the alternative access land.

Conclusion

Independent confirmation is readily available from the Land Registry that by January 2011 the developer had bought the freeholds of Westlands, Knock-e-Tholt and a portion of Greystones. An option to buy does not need to be registered so this element of Heritage's claim could not have been independently verified in the same way either before or after the Tynwald debate in January 2011. It was nevertheless reasonable for the Minister to approach the Tynwald debate on the basis that Heritage had control over the land needed for the Lhergy Vreck access.

Were the properties acquired by Heritage Homes sufficient to provide adequate visibility splays and did the Department do enough to verify this?

57. The Department's written evidence shows that at a meeting in August 2010 the developer had tabled plans showing access via the Lhergy Vreck farm road and proposing 127 homes.21 However, the Department's written evidence is silent as to how stringently the viability of this access route was checked at the time. The written evidence of the then Minister, Mr Teare, for this period, merely records:22

19 QQ 121 and 123 20 Press release dated 3rd February 2012 included in submission dated 18th April 2012 from Heritage Homes 21 DEC submission of 22 March 2012, document B 22 Letter to the Committee dated 20th March 2012

18 November and December 2010

Telephone conversations with Highways regarding access to the site from the Lhergy Vreck Road.

58. We asked Mr Teare whether he had followed these conversations up in writing at the time. He said:23

I did not achieve it in writing, until after the debate in Tynwald... I got verbal clarification and I was content to rely on that and they followed up in writing in April.

59. The written evidence submitted by the Department of Infrastructure confirms that Mr Teare sought written confirmation from the Highways Division soon after the January 2011 debate. In a letter to the Director of Highways dated 7th February 2011 Mr Teare asked a series of questions relating to the idea of a roundabout at the Douglas Road Corner and to the viability of the Lhergy Vreck access. Mr Teare concluded:24

Quite obviously, your response will have a major influence on my negotiations with the developers and I would appreciate a reply as soon as possible as I am anxious to resolve this issue at an early juncture.

60. In a response dated 17th February 2011 the Director of Highways commented on transport issues in Kirk Michael generally but refused to comment on the specific proposal underlying Mr Teare's request for information, writing:25

You will, I hope, appreciate that I cannot enter into arrangements with a third party regarding another party's planning application, even if that party is another Department or a Minister. To do so would be maladministration or worse.

61. We consider that the Director's response to Mr Teare was understandable given the way in which Mr Teare worded his inquiry and particularly given the final paragraph of Mr Teare's letter, quoted above, which we do not think was advisable.

23 QQ 147 and 149 24 DoI submission, attachment 5 25 DoI submission, attachment 7

19 62. Mr Teare was not, therefore, able to obtain written confirmation of the viability of the Lhergy Vreck access directly from the Highways Division because the question related to another person's potential planning application. Written evidence submitted to us both by the Department of Education and Children and by the Department of Infrastructure shows, however, that the viability of the Lhergy Vreck access was analysed by Heritage Homes' transport consultant soon after the Tynwald debate; and that this analysis resulted in a written response from the Highways Division which Heritage passed immediately to Mr Teare.

63. In their press release dated 3rd February 2012 Heritage Homes says that:

Prior to entering into the agreement with the Department of Education, we were required by Minister Teare to provide irrefutable proof that we could access the land to the rear of the school (albeit for a maximum of 100 houses) via an ALTERNATIVE access. This was for the specific purpose of establishing that the Department WERE NOT in possession of the ONLY access which would enjoy an enhanced value.

64. The "irrefutable proof" referred to takes the form of a drawing and analysis of the Lhergy Vreck access by the developer's transport consultant sent to the Highways Division on 14th March 2011 and a response from the Highways Division concluding that the Cass A Lergy access was sufficient to build a junction capable of serving 100 dwellings. This information was passed to Mr Teare by Heritage Homes in an e- mail dated 15th April 2011, some four months before the Agreement was signed in August 2011.26

65. After the Agreement was signed, Heritage Homes put forward a planning application for the development and this went to a public hearing in December 2011. The planning application did not rely on the Lhergy Vreck access but on the Douglas Road Corner access now made possible by the land exchange Agreement. The Lhergy Vreck access was not therefore germane to the outcome of the planning inquiry and the Inspector did not hear argument about it from all parties.

26 DEC submission of 22 March 2012, document E 20 66. Reference was, however, made to it in the independent inspector's report published on 3rd February 2012. Alluding to the 2004 Kirk Michael Relief Road Joint Study Draft Final Report, the inspector commented on the idea of a direct access to the development site at the south of the village. He wrote: 27

The present proposals explored such an access, at Cass A Lergy, where Heritage Homes purchased Douglas Road properties backing onto the southern end of the site. The company was, however, unable to obtain control of sufficient frontage to satisfy the Highway Authority's visibility requirements.

67. As soon as the Inspector's report appeared, Heritage Homes issued an emphatic rebuttal in the form of a media release dated 3rd February 2012. Heritage explained that during the planning inquiry in December 2011 its transport consultant had been asked whether the site could be accessed via Westlands or Knock-e-Tholt. He answered "no". He was not asked whether the site could be accessed when all the land under the control of Heritage Homes was taken into account. The media release was accompanied by a letter from the transport consultant, also dated 3rd February 2012 explaining that his answer to this question, if it had been asked, would have been "yes".28 The same point was made in a letter from Heritage Homes to the Chief Secretary dated 2nd March 2012 arguing that the inspector was "fundamentally incorrect".

Conclusion

The viability of the Lhergy Vreck access in terms of visibility splays is ultimately a planning matter and will only be finally determined if ever a planning application is put forward which relies on it.

The Minister's statements in Tynwald in January 2011 were based on unwritten assurances from the Highways Division which were subsequently vindicated when he rightly sought written confirmation.

27 Independent Planning Inspector's report, paragraph 114 28 See Heritage Homes press release dated 3rd February 2012 and transport consultant's letter dated 3rd February 2012, both contained within Heritage Homes' submission to the Committee dated 18th April 2012. 21 The Highways Division confirmed in writing in April 2011 that the Lhergy Vreck access was suitable for a development of up to 100 houses. The Minister was entitled to rely on this confirmation for the purposes of finalising the Agreement.

Was the Lhergy Vreck Farm Road itself unencumbered and did the Department do enough to verify this? 68. In the debate establishing this Committee, Mr Alfred Cannan MHK drew attention to concerns which had been raised by a local landowner about the proposed Lhergy Vreck access. He said:29

In a letter to Minister Teare and the Department of Education on 9th May 2011, a Kirk Michael landowner writes: "We understand there is a proposal to exchange land at the school in Kirk Michael to enable Heritage Homes access to land zoned for building. The details of this proposal seem to be based upon the belief that Heritage Homes, in the absence of access through the school, would have access from the Douglas Road through the entrance of High Tilt. This is uncertain since we own the farm buildings and some of the land of Lhergy Vreck Farm and our deeds give us right over the access road to High Tilt. We simply do not know whether our rights would or would not prevent Heritage Homes access to the zoned land." 69. Mr Alfred Cannan reiterated this concern in his written evidence to the Committee.30 We have also received a written submission from Dr and Mrs Naylor making the same point. They say:31

We have rights over Lhergy Vreck Lane because of our ownership of the Lhergy Vreck farm buildings. When there were rumours of an impending planning application, we tried to find out whether it would involve Lhergy Vreck Lane and whether it could potentially affect our ability to exercise our legal rights. Heritage Homes refused to give us any details of any proposal involving Lhergy Vreck Lane. So we wrote to Mr Teare. [this is the letter of 9th May 2011 referred to in Tynwald by Mr Alfred Cannan MHK]

29 Hansard 22nd February 2012 lines 1042 to 1050 313 Letter dated 19th March 2012, point 7 31 Letter to the Committee dated 19th March 2012 22 We asked for further information and at the same time pointed out that any entrance via Lhergy Vreck Lane might infringe our rights and therefore might not have been possible as an access route. Mr Teare did not provide us with any information, and did not even ask us for further details of the potential problem with Lhergy Vreck. He, therefore, knew that Lhergy Vreck Lane might not be useable as access to a development before he signed the contract.

70. In his written submission to this Committee, Mr Alfred Cannan MHK includes copies of two rounds of correspondence between the Naylors and Mr Teare showing no inclination on Mr Teare's part to engage with the substantive point raised by the Naylors.32 The written submissions of the Department and of the former Minister, Mr Teare, make no reference to the concerns of Dr and Mrs Naylor.

71. It seems on the face of it unlikely that Dr and Mrs Naylor's rights over the Lhergy Vreck Farm Road would include a right to prevent the use of the road, once suitably widened, as access to a housing development. If such a possibility did exist, however, it would have been useful to the Department to have known this before finalising the Agreement as it could potentially have increased the value of the Department's land as a near-"ransom strip".

72. We referred the Naylors' concerns to our legal advisor who has provided a comprehensive analysis of the position distinguishing clearly between matters pertaining to planning and matters pertaining to legal rights. Mr Wright's advice includes the following points:

The existence of rights in favour of Dr & Mrs Naylor, or anyone else, and possible interference with them if planning were granted, would generally be something which planning would not take into account or consider when determining an application. An easement of access is a civil law matter between the landowners. So planning could be granted, irrespective of civil rights such as rights of way, and then, if their rights were actually interfered with, Dr & Mrs Naylor MIGHT be able to claim damages or an injunction to prevent the interference. It is not for the planning committee or inspector to determine legal

32 Naylor to Teare 9th May 2011; Teare to Naylor 11th May 2011; Naylor to Teare 17th May 2011; Teare to Naylor 27th May 2011; all four letters attached to letter from Mr Alfred Cannan MHK to Committee, 19th March 2012 23 rights of ownership, boundaries and rights of way etc. or to settle disputes as to them...

It appears to me that they should by now f9th May 2011] be able to identify what their rights are, sight of the agreement or planning application would not be a pre-requisite to that. Their rights are set out in their title. Yet they still do not do so... Again [17th May 2011] Dr & Mrs Naylor do not actually assert what their rights are. They confuse the existence of their rights, and the enforcement of them, and the planning process. Their rights are generally going to be irrelevant to planning... To obtain advice, from their advocate, as to what their rights were and how the development of the land within the zoned for development area contained in the Kirk Michael plan using exclusive access via Lhergy Vreck Road, would affect those rights, interfere with them and whether they had the right to stop such development as a result did not, and does not, depend on the information they say has not been provided to them...

Again Dr & Mrs Naylor set out (on 19th March 2012] that they have rights over Lhergy Vreck Road. Their highest point is that any development using access via Lhergy Vreck Road "might infringe our rights". At no stage do they identify what they claim their rights are and what land in their ownership has the benefit of them... It has to be remembered that Heritage had acquired Cass a Lhergy, Westlands etc, so it is quite possible that they could arrange access to the development site for building and development operations (subject to beneficial planning) without interfering with those rights, and, what is more, the sheer fact that a road way was to be put in to serve the new estate with other people having rights over Lhergy Vreck Road, would not be an interference with the rights attached to Lhergy Vreck farm or High Tilt...

There are three questions... included in the Select Committee papers sent to me, as follows:

(a) whether the Naylors' rights could indeed have enabled them to block the use of the Lhergy Vreck access, as they claim;

24 (b) whether the use of the Lhergy Vreck access could indeed have been threatened by rights enjoyed by any other landowners in the vicinity, including Pinecrest Investments Limited/the Lewis family; and

(c) whether the Department erred in ostensibly ignoring the Naylors' concerns when they came forward in May 2011 For completeness I answer them briefly: (a) No, not without actual physical interference and that is not a given, especially as Heritage owned Cass a Lhergy, Westlands etc. (b) Ditto. (c) In my view probably not, as the more relevant and serious matter by far was the adequacy of the visibility splay at the entrance to Lhergy Vreck Road and Cass a Lhergy and Westlands etc and not the rights over the Lhergy Vreck Road. That matter had been the subject of the 15 April e-mail. 73. The legal advice concludes:

I am not convinced that access via Lhergy Vreck Road would have interfered with the rights of Dr & Mrs Naylor. I am surprised that they did not, and apparently still cannot, specify what they considered their rights to be, what land owned by them benefitted from those rights and how those rights would be interfered with if access was via Lhergy Vreck Road and Cass a Lhergy. Their rights were established by Deed T and were not changed by the plans of Heritage. In any event these civil rights are not relevant to the planning process. The question of whether access via Lhergy Vreck Road is or is not ultimately viable, due to visibility splay requirements, or other planning issues, is a planning matter and that does have a knock on effect on the value to be attached to the DEC Douglas Road Corner playing field. I am not in a position to comment on whether the values of the land, their respective areas, and the value of the works to be done by Heritage for DEC were adequate compensation to reflect the proposition that without the Lhergy Vreck Road and Cass a Lhergy access point being viable the site is landlocked and undevelopable without either the acquisition of other property on Douglas Road A3 at that point to allow sufficient visibility splay or via the Douglas Corner school playing field site.

25 Conclusion

The Minister's response to the correspondence he received from the Naylors is defensible. In an ideal world it might have been interesting for the Department to investigate the Naylors' concerns in more depth, had time and resources been no object. However, in the light of our legal advice it seems highly unlikely that such an investigation would have had any impact on the Department's negotiating position.

V THE MANNER IN WHICH THE NEGOTIATIONS WERE CONDUCTED

74. The third element of our remit is to investigate "the manner in which the negotiations were conducted".

75. In his written evidence to the Committee, Mr Alfred Cannan MHK identifies the following specific questions related to this element of our remit:

1. Who initiated the deal and when? ...

8. [With reference to an e-mail sent by the Department of Education and Children on 6th January 2011] Is it right therefore to properly suggest that any public debate, letters, Tynwald motions etc were in fact irrelevant?

9. How can this be true [i.e., how can it be true that in March 2011 negotiations were still continuing]? According to the e-mail of the 6th January 2011 and the Tynwald Hansard, the deal was effectively complete.

The initiation of the deal

76. This section relates to Mr Alfred Cannan MHK's Question 1.

77. Negotiations have been underway since 2005 but broke down in 2007 and 2009. The deal has therefore been "initiated" three times: in 2005, 2008 and 2010.

26 78. According to their written evidence, it was Heritage Homes Ltd who took the lead in opening the dialogue with the Department, which they say they did in or around May 2005.33 This is consistent with the Department's written evidence, which states that it had an initial approach from Heritage Homes in May 2005.34

79. In May 2007 the then Minister, Hon. Anne Craine MHK announced that she had decided "at the present time" to decline the land exchange. The Committee wrote to Mrs Craine about this. She declined to make any comment.

80. Between November 2008 and January 2009 the Department's written evidence shows a second round of dialogue, this time initiated by the "landowner" (i.e. Pinecrest Investments Ltd). Mr Teare's submission refers to this as an approach by the "landowner's daughter". The evidence of Pinecrest Investments Limited explains that it is a family business: the directors are Mr and Mrs Lewis but their daughter has been closely involved and has negotiated on behalf of the Company. The Pinecrest submission does not allude to any approach to the Department in November 2008 but does say "negotiations with Heritage started afresh in 2009". Heritage's submission is silent on any negotiations with the Department in 2008/09.

81. In April 2010, following the restructuring of Government, Mr Teare was appointed Minister of Education and Children. A further re-starting of negotiations on the land exchange followed this appointment. According to Mr Teare's speech in Tynwald in January 2011, he received an approach from the developers. He confirmed this in correspondence with us.35 Mr Teare's written submission records that in July 2010 he met "the landowner's daughter". The Department's written submission records that in July 2010 "Minister meets with Landowner".

82. Mr Teare explained further in oral evidence how this came about. He said:

33 Letter from Heritage dated 18th April 2012 34 Submission of 22nd March 2012, schedule of key events 35 Mr Teare e-mail of 1st May 2012, included in Appendix 2 27 I was involved in a constituency planning matter and one of the parties - the constituent's architect - happened to be the same architect who was acting for Pinecrest. We just had a general discussion. The subject came up: "now there has been a change in administration at Education, would the Department be prepared to have a look at the deal again?" I said, "Well, if you want to try, fine". They then came back through my Director of Estates at the time.

Whether the Department prematurely regarded the transaction as complete

83. Mr Alfred Carman MHK draws attention at Question 8 of his submission to an e-mail exchange correspondence between the Department of Education and Children and a Kirk Michael resident who objected to the proposed development.

84. In response to an e-mail sent by the constituent on Christmas Day, Mr Teare wrote on 5th January 2011:

The developers have secured alternative access and the development is likely to proceed.

85. The constituent responded later the same day:

Your response suggests that this decision has already been made, whereas I was under the impression from the correspondence I have seen that it was a proposal still being considered?

86. He received a response from the Minister's office at 11.02am on 6th January 2011 saying:

Minister Teare has asked me to advise you that he has agreed in principle and we are now finalising the details, although the deal could still fall through.

87. The deadline for submission of motions for the January 2011 sitting of Tynwald was 31st December 2010. The Order Paper would have been finalised on Wednesday 5th January 2011 and sent to Members of Tynwald that evening; it would have been issued to the press and the public on Thursday 6th January 2011. On that basis it is possible that when the Minister said "he has agreed in principle" he did not know that the deal was to be debated by Tynwald. The e-mail in any case included the important caveat "the deal could still fall through".

28 88. In his original e-mail of 5th January 2011 to Mr Cannan's constituent, Mr Teare twice used the expression "likely to proceed" and made direct reference to the planning process. In the Tynwald debate Mr Teare did take care to mention that he thought the development would proceed "subject to planning approval".

89. The Committee asked Mr David Cannan whether he gave Mr Teare advance notice of his motion. He was not sure.36

90. The Committee asked Mr Teare whether he knew about the imminent Tynwald motion when he advised Mr Cannan's constituent on 6th January 2011 that he had "agreed in principle". Mr Teare could not recollect.37

Conclusion

There is no evidence that the Department pre-judged the outcome of either the Tynwald debate or the planning process.

Is there contradiction between the Department's statements of January 2011 and March 2011?

91. In his written submission at Question 9 Mr Alfred Cannan MHK draws a contrast between:

• on the one hand, the e-mail of 6th January 2011 to a Kirk Michael resident in which Mr Teare advised that "we are now finalising the details"; and

• on the other, a letter of 29th March 2011 to the then Kirk Michael MHK Mr David Cannan, in which Mr Teare stated that "negotiations are continuing" .38

92. We asked Mr Teare about this. He explained as follows: 39

36 Q 48 37 QQ 168 to 169 38 The letter bears the date 29 March 2010 but this must be wrong as Mr Teare was not Minister for Education and Children then 39 Q 170

29 Negotiations continued right up until the 11th hour. The Committee will recall that Dandara were constantly put under pressure to improve the terms of the deal. So basically, we had agreed in principle there was a deal there to be done, "now let's work on the finer details and work through it". In contract terms, there are many stages to a contract, as I am sure the Committee will appreciate.

Conclusion

There is no contradiction between the Department's statements of January 2011 and March 2011.

The close personal interest taken by Mr Teare

93. In a letter sent to all Tynwald Members on 30th January 2012 (reproduced within his written evidence to the Committee), Mr Alfred Carman MHK wrote:

I have little or no evidence as to how the negotiations were conducted or the terms of the deal, other than a letter which clearly states that the former Minister for Education (Minister Teare) has taken direct responsibility for the negotiations. I am not convinced this was an appropriate way for such a technical and difficult negotiation to take place. 94. Section 3 of the Government Departments Act 1987 provides that:

... the functions of each Department shall be exercised by the Minister in the name and on behalf of the Department. More colloquially, it is often said in Isle of Man Government circles that "the Minister is the Department". This is a central feature of our current Ministerial system of Government.

95. We asked Mr Teare why he had taken such a close personal interest in this deal. He said:40

It is because of the previous life: I have been dealing with property and land issues in my previous role in my previous employment, so I had an element of

40 QQ 177 to 178 30 experience in these areas and working with my colleagues in the Department, and as a team, we could progress it...

You will recall, sir, that the initial negotiations were conducted in 2010, through the Director of Estates. Then as matters continued, he referred it to me and I said they needed to sharpen their pencil. Over the terms of negotiations, as things got more fraught, we managed to improve the deal, but then, in fairness, the developers needed to speak to or have access to the person who is able to make the decision in consultation with his colleagues.

Conclusions

Given the high degree of political sensitivity surrounding the Kirk Michael land exchange proposal, and given its significance both in financial terms and for the future of Kirk Michael School, it was in our view entirely to be expected that any responsible Minister would take a close personal interest in the progress of the negotiations.

Given the background and expertise of the particular Minister concerned, it was not entirely unexpected that he would get involved directly in the negotiations themselves, while working closely with Departmental officials throughout.

This case illustrates exactly what is intended to happen under the doctrine that "the Minister is the Department".

VI. THE VALUE FOR MONEY ACHIEVED

96. The fourth element of the Committee's remit is to investigate "the value for money achieved".

A couple of goalposts in exchange for a multi-million pound development?

97. In Tynwald in February 2012, Mr Alfred Cannan MHK said:

In fact, what was the deal? A piece of land for a piece of land which was to be turned into a school playing field. Is it not true that Heritage Homes would have had to have provided that space, anyway, as part of any planning regulations? Did the Department really believe they were getting the best deal for the taxpayer - a deal that called for the developer to exchange open space,

31 which he had to provide for anyway, as I have just said, in return for access? In a nutshell, a couple of goalposts in exchange for a multi-million pound development and profit. Is that a fair deal?

98. We have considered elsewhere in this Report the question of whether the idea of a land exchange was justified in the first place and we have concluded that it was. We do not accept that it would have been wise for the Department to rely on the planning system to protect the long-term future interests of the school. From the school's point of view the most significant value of the land exchange would be to protect those interests. There was also the additional value of improving the sports facilities here and now.

99. Furthermore, as the Department informed us in its written evidence:41

... under the terms of the agreement there is to be a covenant preventing development of more than 100 dwellings on the zoned land (as DoI Highways agreed limit on the alternative Lhergy Vreck access secured by Heritage Homes), or any development on the land beyond accessed through the zoned land, without our agreement to lift the covenant and an overage payment being determined and payable to us for the same.

100. From the point of view of an objector to development, we can see how these advantages to the school may appear to be outweighed by certain potential disadvantages: the effect on the conservation area, for example, or an increase in traffic. However, the land behind the school is zoned for development. If development is to come, the Department of Education and Children is clearly justified in seeking to protect its interests.

Conclusion

To characterise the Agreement as achieving "a couple of goalposts in exchange for a multi-million pound development" is unfair. It follows from our conclusions in respect of the alternative access that a multi- million pound development is now highly likely. In that context the Agreement achieves an increase in the amount of land owned by the

41 Submission dated 22nd March 2012; see also QQ 179 to 180

32 Department; the protection of the long term interests of the school; an immediate improvement in the sports facilities; and a potential share in the additional value of future development beyond the 100 houses provided for; all in return for no cash outlay.

A changing picture over four years of negotiation

101. In Tynwald in January 2011, Minister Teare said:

Mr President, we are all experts in hindsight, but if the original transaction had gone ahead, then considerable benefit could have accrued to the Government under the principle of the Cambridge case in the UK, which gives the party that owns access to a landlocked site a share in the development value. Recognising that the site would be difficult to develop without access through the school grounds, the developer made an attractive offer, which is no longer available to Government. In effect, we have potentially lost a golden opportunity.

102. In his submission to this Committee of 19th March 2012 Mr Alfred Cannan MHK expands on this concern as follows:

10.What was the value of the original transaction referred to? 11.Why was this "golden opportunity" no longer available?

12. Mat were the terms of this deal and why did it have to remain secret? 13. Has the taxpayer received any value for money?

103. The written evidence supplied by the Department of Education and Children includes calculations produced by the Government Valuer at various times and from these figures it is possible to glean information about the progress of the negotiations.

104. The first valuation dates from January 2007. This was before Heritage Homes purchased properties on either side of the Lhergy Vreck Lane. The alternative access existed in theory but was not something the developer could rely on. Taking this into account, the Government Valuer assessed the value of the land owned by the Department and desired by the developer (equivalent to the "First Property" in Map 1) as well in excess of the land owned by the developer and desired by the Department (equivalent to the "Second Property"). The amount by

33 which the first value exceeded the second value (the "credit balance") represented the amount of work which the Department could reasonably have expected the developer to undertake in improving the new playing field.

105. After Mrs Craine's May 2007 decision, the land exchange was no longer on the table. The business need for the Department to protect the future interests of the school remained, however. Officers of the Department met the landowner in November 2008 and January 2009 to discuss the possibility of simply buying a piece of land similar to that which would have been provided to the Department under the exchange deal. The landowner held out for a very high price for such a purchase, and the dialogue stalled.42 This indicates that without a land exchange, an alternative deal to protect the long-term interests of the school was impractical.

106. Following the appointment of Mr Teare as Minister and the re-starting of negotiations, the Government Valuer was asked to revisit the January 2007 valuation and he did this in October 2010. By now Heritage Homes had purchased land and options on land on either side of the Lhergy Vreck lane, making the alternative access a much more immediate prospect. Taking this into account, the value which could be attributed to the land owned by the Department and desired by the developer had fallen dramatically. Whereas in January 2007 the value of the "First Property" was well in excess of the value of the "Second Property", by October 2010 the positions were reversed. On the face of the calculations the Department could no longer assume any "credit balance" from the land exchange which would enable it to insist on improvement works to the new playing field.

107. As the negotiations drew to a close in late July and early August 2011, further assessments were provided by the Government Valuer. The estimated value of the "Second Property" was the same as before, but adjustments had been made to the estimated value of the "First

42 QQ 103 to 114 and letter from the Department to the Committee dated 22nd June 2012.

34 Property" such that it was now higher than that of the "Second Property": the Department was once again "in credit".

The eventual deal and the bottom line

108. The Agreement itself includes as its Third Schedule three figures: a value for the First Property (land to be transferred from the Department to the developer); a value for the Second Property (land to be transferred from the developer to the Department); and a value for the Accommodation Works (work to be done by the developer to prepare the new playing field. The "bottom line" from the Department's point of view, or the net value of the whole deal to the Department, is the value of the Second Property, plus the value of the Accommodation Works, minus the value of the First Property.

109. The figure for the Accommodation Works is a reliable estimate of the maximum amount of work the developer will do on the playing field if the exchange goes ahead, although it is possible the specification provided for in the Agreement may be delivered at less cost to the developer. The figures for the land exchange are less reliable. Both the Department and the developer explained to us in written evidence that the land exchange values incorporated into the Agreement were based on the assumption that the area of the First Property would be 0.89 acres and the area of the Second Property 1.85 acres. It seems that at a late stage the areas were changed and that under the final version of the Agreement the areas to be exchanged were 0.63 acres and 2.01 acres. In other words, there was an increase in the the net benefit to the Department in terms of land gain. No adjustment was made to the land values in the Third Schedule to reflect this.

110. Both the Department and Heritage Homes, in their written evidence to us, offered revised calculations of the overall net benefit based on the Government Valuer's figures and taking into account the areas to be exchanged under the eventual Agreement. These estimates differ because of differences in:

• the basic land value per acre adopted, the Government Valuer having provided a range of values;

35 • the amount assumed for the Accommodation Works; and

• rounding. 111. The Department's estimate of the bottom line is £370,000 although in its written evidence it has acknowledged a possible range up to £484,000. The developer has put the figure at £579,000. On our own analysis the figure could be as high as £690,235 - although the Department has disputed our methodology as well as that adopted by the developer. In any case, having considered the various estimates on offer we are satisfied that on any analysis the Agreement represents value for money.

Conclusion

The Agreement does represent value for money. The Department's negotiating position was strong in January 2007 and considerably weaker in October 2010. Through negotiation the Department succeeded in restoring its position to the extent that the net benefit which the Department could expect under the Agreement of August 2011 was as good as, or better than, that which might have been expected in 2007.

VII. CONSOLIDATED LIST OF CONCLUSIONS AND RECOMMENDATION

Conclusions

112. We concur that there was a need to protect the long-term interests of the school. (paragraph 32)

113. We consider that a land exchange was an appropriate way to protect the long-term interests of the school. For reasons set out elsewhere in this Report, we believe that by 2010 the Department was justified in its view that some form of development was inevitable. That being the case, the Department's ownership of land at the Douglas Road Corner gave it a strong hand to play. By negotiating for a land exchange the Department had the opportunity to achieve much greater certainty than would have been achievable merely by seeking to have conditions imposed on the development through the planning system. (paragraph 38)

36 114. When the land exchange was first proposed, in 2005, the Department of Education was justified in entering into negotiations on behalf of the school and the taxpayer. (paragraph 41)

115. Mrs Craine's decision of May 2007 to halt the negotiations in the face of vocal opposition led by the local MHK was based on a judgement that the potential disadvantages of the development outweighed its potential advantages. (paragraph 41)

116. Given the change in circumstances which occurred after May 2007 as described in this Report, it was reasonable for Mr Teare in July 2010 to allow negotiations to recommence. (paragraph 41)

117. On the basis of the independent advice it has received, the Committee accepts that the Agreement was competently drafted. (paragraph 48)

118. There is no evidence that there is any significance in the Agreement having been signed shortly before the Dissolution of the House of Keys in August 2011. (paragraph 50)

119. Independent confirmation is readily available from the Land Registry that by January 2011 the developer had bought the freeholds of Westlands, Knock-e-Tholt and a portion of Greystones. An option to buy does not need to be registered so this element of Heritage's claim could not have been independently verified in the same way either before or after the Tynwald debate in January 2011. It was nevertheless reasonable for the Minister to approach the Tynwald debate on the basis that Heritage had control over the land needed for the Lhergy Vreck access. (paragraph 56)

120. The viability of the Lhergy Vreck access in terms of visibility splays is ultimately a planning matter and will only be finally determined if ever a planning application is put forward which relies on it. (paragraph 67)

121. The Minister's statements in Tynwald in January 2011 were based on unwritten assurances from the developer which were subsequently vindicated when he rightly sought written confirmation. (paragraph 67)

122. The Highways Division confirmed in writing in April 2011 that the Lhergy Vreck access was suitable for a development of up to 100 houses.

37 The Minister was entitled to rely on this confirmation for the purposes of finalising the Agreement. (paragraph 67)

123. The Minister's response to the correspondence he received from the Naylors is defensible. In an ideal world it might have been interesting for the Department to investigate the Naylors' concerns in more depth, had time and resources been no object. However, in the light of our legal advice it seems highly unlikely that such an investigation would have had any impact on the Department's negotiating position. (paragraph 73)

124. There is no evidence that the Department pre-judged the outcome of either the Tynwald debate or the planning process. (paragraph 90)

125. There is no contradiction between the Department's statements of January 2011 and March 2011. (paragraph 92)

126. Given the high degree of political sensitivity surrounding the Kirk Michael land exchange proposal, and given its significance both in financial terms and for the future of Kirk Michael School, it was in our view entirely to be expected that any responsible Minister would take a close personal interest in the progress of the negotiations. (paragraph 95)

127. Given the background and expertise of the particular Minister concerned, it was not entirely unexpected that he would get involved directly in the negotiations themselves, while working closely with Departmental officials throughout. (paragraph 95)

128. This case illustrates exactly what is intended to happen under the doctrine that "the Minister is the Department". (paragraph 95)

129. To characterise the Agreement as achieving "a couple of goalposts in exchange for a multi-million pound development" is unfair. It follows from our conclusions in respect of the alternative access that a multi- million pound development is now highly likely. In that context the Agreement achieves an increase in the amount of land owned by the Department; the protection of the long term interests of the school; an immediate improvement in the sports facilities; and a potential share in the additional value of future development beyond the 100 houses provided for; all in return for no cash outlay. (paragraph 100)

38 130. The Agreement does represent value for money. The Department's negotiating position was strong in January 2007 and considerably weaker in October 2010. Through negotiation the Department succeeded in restoring its position to the extent that the net benefit which the Department could expect under the Agreement of August 2011 was as good as, or better than, that which might have been expected in 2007. (paragraph 111)

Recommendation

131. That as soon as the final outcome of the Kirk Michael Land Exchange Agreement is known, the Department of Education and Children should publish in full both the Agreement itself and all associated valuations provided by the Government Valuer during the negotiations which led to the Agreement. (paragraph 9)

S C Rodan

B J Cannell

J R Turner

October 2012

39 40 ANNEX 1: TIMELINE Date Event Source

2004 Negotiations begin in earnest between Pinecrest Pinecrest Investments (the landowner) and Heritage Homes

May 2005 Initial approach from Heritage Homes to DEC Department of Education July 2005 Meeting between Department of Education DEC and Heritage Homes

January 2006 Proposal put to the Department of Education DEC

March 2006 Minister for Education and Estates Director meet Michael Commissioners and Michael School Governors. Both groups are supportive of the Department continuing in dialogue with Heritage Homes 17 January Government Valuer confirms proposal DEC 2007 represents a satisfactory arrangement for the Department, with regard to consideration of Stokes v Cambridge principle.

21 March 2007 Heritage Homes purchases Knock-e-Tholt Heritage Homes/Land Registry

17 May 2007 Public display/consultation at Kirk Michael DEC School

41 Date Event Source

29 May 2007 Hon. Anne Craine MHK, Minister for Hansard Education, states in the House of Keys: "I have taken a personal interest in the community's views on this proposal and have considered them very carefully. At the present time, I have decided to decline the proposal for the land exchange because the potential disadvantages to Kirk Michael outweigh the possible benefits to the school."

19 December Heritage Homes obtains option agreement Heritage Homes 2007 over a portion of Cass A Lergy

January 2008 Michael Commissioners seek reassurance DEC from the Department that it will take appropriate steps to secure land to sustain future of the school 15 April 2008 Heritage Homes purchases a portion of Heritage Greystones Homes/Land Registry

1 July 2008 Heritage Homes purchases Westlands Heritage Homes/Land Registry

November Landowner approaches Department to DEC 2008 gauge appetite for purchase of land adjacent to school; landowner outlines very high valuation of the land, and clear desire to progress a land swap, which Department confirms was not on the table.

42 Date Event Source

15 December Heritage Homes purchase Knock-e-tholt and 2008 land at rear of Greystones

December 2008 Department confirms Estates Director to DEC progress dialogue re purchasing 1.95 acres.

7 January 2009 Estates Director and Government Value meet DEC landowner to discuss valuation of land and potential way forward to secure; landowner agrees to provide Government Valuer with details of valuation of land, to progress. This is not forthcoming and the dialogue stalls.

April 2010 Hon. Eddie Teare MHK becomes Minister for Tynwald Library Education and Children

July 2010 Minister Teare meets with landowner to DEC discuss possible land swap options.

26 August 2010 Estates Director meets Heritage Homes at DEC their request to discuss the situation. Heritage has secured two properties at the southern end of Lhergy Vreck Farm - Westlands and Cass A Lergy. They also have an option to purchase 14 acres of unzoned land directly adjacent and to the east of the proposed development. Douglas Road Corner is still their preferred option for access. Heritage was offering the 1.95 acres of land plus £100,000 works undertaken by them at cost, a lesser deal than previously.

43 Date Event Source 8 October 2010 Meeting between Minister, Director of DEC Education and Estates Director at which Estates Director reports that following negotiations an offer was now available from Heritage Homes which was closer to the 2007 position.

29 October Government Valuer confirms that latest DEC 2010 proposal represents a satisfactory arrangement for the Department.

24 November Informal meeting between Minister and Kirk Oral evidence of 2010 Michael Commissioners. No record is made. Mr David Cannan (Q1); Kirk Michael Commissioners letter of 22nd June 2012 17 January Public meeting in Kirk Michael. Proposal Oral evidence of 2011 rejected by those present. Mr David Carman (Q1)

18 January The proposal is debated in Tynwald Hansard 2011

8 February Minister Teare writes to the Highways DoI 2011 Division of DoI asking for comments on the Lhergy Vreck access

17 February Highways Division responds to Minister DoT 2011 Teare's letter in general terms but explains that it cannot enter into arrangements with a third party about a planning application, even if that third party is a Minister

44 Date Event Source

14 March 2011 Transport consultant to Heritage Homes, DEC/DoI provides a drawing and analysis of the Cass a Lhergy access for consideration by the Highways Division

15 April 2011 Highways Division replies to the Transport DEC/DoI Consultant's letter of 14 March 2011, saying that the DoI considers the Cass a Lhergy access could serve 100 dwellings. Later that day, Heritage forwards the Highways Division reply to Minister Teare

15 April 2011 Government Valuer confirms valuation DEC provided on 29 October 2010 is still valid.

26 July 2011 Government Valuer confirms relative land DEC valuations.

10 August 2011 Treasury approval given. DEC

16 August 2011 Agreement signed by Mr Teare DEC

18 August 2011 House of Keys is dissolved Tynwald Library 19 to 20 Planning Inquiry held DoI December 2011

3 February Independent Inspector's report is submitted DoI 2012 to Council of Ministers recommending against the scheme

22 February Select Committee established Hansard 2012

45 46 HANSARD 48 TYNWALD COURT OFFICIAL REPORT

RECORTYS OIKOIL QUAIYL TINVAAL PROCEEDINGS DAALTYN

HANSARD

SELECT COMMITTEE OF TYNWALD ON THE KIRK MICHAEL LAND EXCHANGE AGREEMENT

BING V EAYN TINVAAL MYCHIONE COARDAIL COONREY THALLOOIN SCOILL SKYLLEY MAAYL

Douglas, Thursday, 10th May 2012 PP77/12 KMLX, No. 1

All published Official Reports can be found on the Tynwald website www.tynwald.org.im/Official Papers/Hansards/Please select a year:

Reports, maps and other documents referred to in the course of debates may be consulted on application to the Tynwald Library or the Clerk of Tynwald's Office. Supplementary material subsequently made available following Questions for Oral Answer is published separately on the Tynwald website, www.tynwald.org.im10fficial Papers1HansardslHansard Appendix

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. V High Court of Tynwald, 2012

49 SELECT COMMITTEE, THURSDAY, 10th MAY 2012

Members Present:

Chairman: Hon. S C Rodan, SHK Mrs B J Cannel, MHK Mr J Turner, MLC

Clerk: Mr R I S Phillips

Business Transacted Page

Procedural 3

Evidence of Mr D Cannan and Mr A Carman, MHIC 3

The Committee sat in private at 4.15 p.m.

2 KMLX 50

SELECT COMMITTEE, THURSDAY, 10th MAY 2012

Select Committee of Tynwald on the 5 Kirk Michael Land Exchange Agreement

The Committee sat in public at 2.30 p.m. in the Legislative Council Chamber, 10 Legislative Buildings, Douglas

[MR SPEAKER in the Chair]

15 Procedural

The Chairman (Hon. S C Rodan, SHK): Good afternoon everyone and welcome to this public meeting of the Select Committee on the Kirk Michael School Land Exchange Agreement. I am Steve Rodan, Chairman of the Committee, and the other members are Mrs Cannell, Mr Turner 20 and our Clerk this afternoon is Mrs Lambden. Could I ask everyone, please, to switch off mobile phones. Do not just put them on silent, actually switch them off, because they do interfere with recording equipment. Also for the benefit of Hansard I would ask that we do not have two people speaking at once and I will make sure that does not happen. 25 This Committee was established by Tynwald in February 2012 with the following remit:

`That Tynwald appoints a Committee of three Members with powers to take written and oral evidence, pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876 as amended, to investigate the Kirk Michael School Land Exchange Agreement between Heritage Homes, Pinecrest Investments Ltd and the Department of Education and 30 Children; whether by January 2011 access to the land had been secured, as was stated at that time by the Hon. Member for Ayre; the manner in which the negotiations were conducted; and the value for money achieved; and to report with recommendations by May 2012.'

We issued a call for evidence in March and we are grateful to all members of the public who 35 have responded. This is our first meeting in public, where we are taking oral evidence and we are grateful that we are to hear from two distinguished witnesses, Mr Alf Cannan MHK and Mr David Cannan, former Member of the House of Keys for Michael. You are most welcome gentlemen. Thank you for coming in this afternoon, and thank you Mr Cannan for your written evidence.

EVIDENCE OF MR D CANNAN AND MR A CANNAN, MHK

Ql. The Chairman: I thought in the first instance it would be very helpful to invite you, Mr 45 Cannan senior, if you would like to address the Committee and make an opening statement to the Committee, following which we will put some questions. Mr Cannan.

Mr D Cannan: Thank you very much, Mr Speaker, ladies and gentleman. 50 As you have said, I sent an e-mail to Mr King, preferring to give oral evidence rather than written evidence. Mr Speaker, may I hand you a copy of the Hansard between April 2006 and January 2011 with relevant portions of the questions and answers in the Keys on which I want to base my statement?

55 The Chairman: Yes, by all means.

Mr D Cannan: Mr Cannan junior has arranged for copies of that for the Committee and I believe it will be here in a minute or two. (The Chairman: Right.) In fact, I will start straight away. 60 The Chairman: Thank you very much.

Mr D Cannan: Mr Speaker, I am obviously confident the Committee appreciates the issue that

3 KMLX

SELECT COMMITTEE, THURSDAY, 10th MAY 2012

the land exchange is a very contentious issue in Kirk Michael. So if I may, sir, start at the 65 beginning in the matter of provision of school expansion in Kirk Michael. In December 1996, Dr Edgar Mann was appointed Minister for Education and he invited me to join the Department as a political Member. You recall, Mr Speaker, that you replaced Dr Mann as Minister in 1999. During the period 1996 to 1999, plans were put in place, with Treasury approval, for the 70 provision of a sports hall and two extra classrooms to meet any future increase in the school roll. The school roll at that time was 138 pupils, and this is important as I go along: the school roll was 138 pupils. The sports hall was essential; the two extra classrooms were for future expansion. The official opening ceremony of the new sports hall, two extra classrooms and a school community room took place on Thursday, 24th January 2002. 75 Now fast forward to April 2006 and a Tynwald Question to Mr Anderson, the Minister for Education. If I could pause for a moment, Mr Speaker, if I could have a copy of this because I have given my copy to Mr Speaker. And a copy to the media. Thanks. In April 2006, and I quote Mr Anderson's reply, sir, which you should have, and he states that 80 negotiations were in hand with Dandara for the creation of future development. And you might be interested to look at, in supplementaries, the questions asked by Mr Karran, the present Minister for Education. The public perception at that time, and indeed with my own, following this Question on 26th April 2006, that Mr Anderson's concern was somehow to provide facilities for the landowner to obtain residential development of this land by using the access of the existing 85 school playing field. Mr Anderson stated, as you will read, that he was going to consult the MHK, but he did not. That was in April. Then on 16th October a further Question to Mr Anderson, roughly the same; then there is a General Election. Mr Anderson is replaced by Mrs Craine as Minister for Education and here we move on. 90 The new Minister was asked a Question on 29th May in the House of Keys and the Minister, prior to that — and Mrs Craine, I give her all credit — had consulted me and she had agreed to hold a referendum and presentation in Michael School to determine the views of the village. A poll or referendum was conducted under the auspices of the residents of Kirk Michael, arranged and under the auspices — a secret ballot, a referendum, under the auspices of the Department of 95 Education: 78% who voted, voted against the land exchange. Now, I cannot emphasise too strongly that the Minister, Mrs Craine, concluded in her reply to the House of Keys Question, and I quote from Hansard, as follows:

`At the present time I have decided to decline the proposal for the land exchange, because the potential disadvantages 100 to Kirk Michael outweigh the possible benefits to the school.'

I would just like to repeat that, Mr Speaker, it is so important. Minister Craine:

`At the present time I have decided to decline the proposal for the land exchange, because the potential disadvantage to 105 Kirk Michael outweighs the possible benefits to the school.'

And I take this opportunity to strongly commend Mrs Craine for putting the interests of the residents and community of Kirk Michael before the commercial interests of the landowner, developer and Heritage Homes. An emphatic statement in the House of Keys on 29th May. 110 The matter for the land exchange then was closed, while Mrs Craine was Minister for Education, all contention disappeared — peace. Then in March 2010, there is a ministerial reshuffle and Minister Teare arrives at the Department of Education. Minister Teare starts negotiations with Heritage Homes, Dandara, for the land exchange, overturning the policy and decision of Minister, Mrs Craine, as I have just set 115 out. Minister Teare arranged for a secret and confidential meeting on Wednesday, 24th November 2010 with Michael Commissioners under the chairman, Mr Hamer, to progress plans with Dandara for the land exchange. Unfortunately for Minister Teare and Michael Commissioners, I became aware of the meeting before it was actually held but it was top secret and confidential, but I became aware of it. 120 Following the meeting with Michael Commissioners, I asked Mr Teare a Question for Oral Answer in Tynwald on 14th December 2010 to account for his meeting with Michael Commissioners and in his reply Minister Teare stated, and I quote from Hansard:

`However, the situation has now changed. The developer has access and, as a responsible Department, we are trying to 125 ensure that there is the capacity to meet future needs in an environment which is safe and gives the best deal for

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Michael's children and their families.'

This was in March 2010. No, sorry... Yes, 2010. No, I beg your pardon, 2011. Sorry, Mr... No, I have got slightly muddled. 130 This question, Mr Speaker, was the answer given in December 2010 to my Question in Tynwald that the situation had now changed: the developer has access. Mr Speaker, so far I have outlined events from December 1996 to December 2010. In December 2006 Mr Anderson started... In April 2006, Mr Anderson starting dealing with Heritage Homes. 135 Mrs Craine was appointed Minister at the end of November 2006 after the General Election. As I have just said, she held a referendum, a secret ballot by the Department of Education, 70% against, and she let the matter rest. Now we come to what I have just said, Mr Teare being appointed in March 2010. His meeting with the Commissioners in December 2010, in which he says, categorically, that Dandara have 140 access, and I wish to comment on that statement by Mr Teare, which I have just quoted. Minister Teare stated the developer had access. The question: who informed Mr Teare that the developer had access? Secondly, was the Director of Education also informed? Did the Minister and Director of Education take the information at face value? Did not the Director of Education, as a senior civil servant, make suitable enquiries of the Planning Department to ensure the veracity of the 145 statement that his Minister had made, that the developers Heritage Homes had access to the land? What role did the Director of Education take in formulating the Minister's reply? It is in the public that people are asking: what role did the Director of Education have in all this? We all know, from public statements, the role of the Minister: that as you, Mr Speaker, know, as a distinguished Minister and now Speaker, Ministers and indeed Speakers are advised by the civil servants, or in 150 your case the Clerk of Tynwald. Following the Question in Tynwald in December, I called a public meeting in Kirk Michael on Monday, 17th January 2011. The village hall was packed to capacity. People standing outside and Roger Watterson, representing Manx Radio was present. I invited Mr McLoughlin of Heritage Homes to address the meeting and also Mr Hamer, the 155 Chairman of Michael Commissioners. Mr McLoughlin refused to address the meeting, but stood outside the hall handing out, distributing to everybody who went in, Heritage Homes propaganda leaflets promoting the residential development — and assisting Mr McLoughlin, incidentally, was Mr Hamer, the Chairman of the Commissioners. Mr Hamer reluctantly addressed the meeting, but he did not want to talk about the secret 160 meeting that he had had the previous November with Heritage Homes and Mr Teare. Three times I went outside to invite Mr McLoughlin to tell the people what the proposals were and he refused to come in. At the conclusion of the meeting a vote was taken, supervised by Mr Watterson and the result was a decisive rejection of the use of the school playing field for development. The following day, 165 Tuesday, 18th January 2011 in Tynwald, I asked Mr Teare at Question Time whether the Department had completed negotiations for the transfer of ownership of the school playing field to Dandara. Mr Teare in his reply stated and I quote from Hansard:

`As Hon. Members may be aware, Dandara have access to the field already through other land purchases not connected 170 with the school.'

So again, Mr Teare was saying, this time in January 2011 for the second time — he had said it first in December — that they had alternative access. My comments to this reply are the same comments I have just made in respect of Minister Teare's reply to the question on 14th December, 175 namely, what role did the Director of Education have in advising the Minister of this reply that they had access and whether they had checked it out? Following the Question in Tynwald, I moved a motion, the same January Tynwald, that Tynwald does not support the transfer of land. The motion was lost. Mr Chairman, you will see in the Hansard of this short debate and in particular, the 180 contribution of Minister Teare, in which he again states inter alia, 'The developer has acquired alternative access at considerable cost', and further on in his speech, 'They, the developer, have secured means of access.' My question is how did Minister Teare know the developer had acquired alternative access at considerable cost, if he had not been briefed by the developer? He seems to know an awful lot in his answers. 185 From what I have said, Mr Speaker, you will realise that four — yes, four — occasions, unequivocally, Minister Teare stated that Dandara had alternative access to the land: first, 14th

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December 2010 in Tynwald; secondly, 18th January 2011, first the Question in Tynwald; and then twice — the third and fourth times — in the ensuing debate in that January Tynwald. So it is not a mistake, it is not a slip of the tongue in my opinion, Mr Speaker. 190 I like to think I am an experienced Member of Tynwald, having been there for 29 years and I have been a Minister and I have been Speaker and various things. We might make a mistake once, we might even make a mistake twice, but we do not continue with making the same mistake. He is categorical, and you have it in black and white, sir, that they had access to the land. Mr Teare also states — oh, no, sorry, I have jumped a page — that access to the land. 195 Now, can we move forward to Tuesday, 8th March 2011 in the House of Keys. My Question to Minister Teare, does he intend to continue negotiations with Dandara? And here is the whole bizarre response from the Department and the Minister to the whole issue. Minister Teare states he wants to use the assisting empty classrooms — remember two new classrooms were put in — the school roll has not increased. They were put in for extra development within the village during 200 your period of office, sir, in 2000. The school roll then, at March 2011 was 135. Before the extension of the two extra classrooms the school roll was 138. So it was 138, a new sports hall and the school was amply provided with classrooms. A new sports hall was built and two classrooms for future residential expansion. Between 2002 when the new building work was complete, the opening, and March 2011, there 205 had been no expansion in the school numbers — in fact they had gone down by three; and two empty classrooms. So — and I will just add — today, 10th May 2012, the school roll is 128. Minister Teare's idea, which he said in this March reply, was to use the empty classrooms as a doctors' surgery and yet here he was, in a relationship with Dandara to give over the land, because the classrooms would be needed for future school expansion and he had two empty classrooms and 210 he now wanted to put a doctors' surgery there, sir. The doctors' surgery was approved, Mr Speaker, and which he cancelled immediately on taking office. The idea was put to a referendum by Michael Commissioners and rejected. It should be noted that Mr Teare did not consult the doctors concerned, who informed the DHSS they did not favour moving to Michael Primary School, and indeed you have a copy of their 215 letter, sir, attached with your papers. So here we have a situation where Minister, Mrs Craine, realised it was not in the interests of Kirk Michael to have the school playing field ploughed up for an extension of classrooms, when there were already two empty classrooms, which, on figures that I have been advised, could well... even if they build a hundred houses, there would still be surplus because there would not be 50 primary children. Statistics do not make out and if there were two 220 classrooms of 25... if there were 50 children, they would not all be in primary school at the same time, because some would be at secondary school and some would be infants. I am told by an educationalist, who does not wish to be disclosed, but I have every confidence the figures are right; you build 100 houses and you do not all of a sudden have 50 children of primary school age. Secondly, since 2002 to 2012 the school roll has dropped by 10, in spite of development in the 225 village, in spite of the continual house here, two houses there, continual growth. So in summary, Mr Chairman, Minister Teare stated on four occasions in Tynwald that Dandara had alternative access. At the public planning inquiry on 19th December 2011, which I attended as an observer, the Dandara representative informed the UK planning inspector that Dandara did not have alternative access and a whole hall of 30 or 40, maybe 50 people in, were 230 shattered. Personally, I can say this, I have never queried Minister Teare's assertions that they had access, because I believed that, as a responsible Minister of the Crown, he would have made enquiries — he would have enquired of the planning department. Any builder, any developer can come and say to a Minister, 'I have got access to that field to build 100 houses'. I do not have, but I could have a 235 field in the Curraghs and go round and say to you, 'I have access to build 100 houses there, so you had better let me have the other land.' I suggest, Hon. Mr Speaker, that you check it out. This is responsible Government. We are not talking about Mickey Mouse; we are talking about responsible Government. Somebody must have checked out any developer — and I am only repeating myself, but you have got the message — can 240 come up and say, 'Oh, Mr Cannan, I could build 100 houses there and we have got access' and blah, blah, blah. You check it out and nothing has been done; and yet negotiations with Dandara, Mr Teare, went ahead, despite everything in... and I am sorry, I have not got the letter, because when I retired at the dissolution of Tynwald in August, that correspondence went in the shredder. On one occasion, I wrote to the Director of Education about the matter and the reply I got was 245 from Mr Teare saying, 'I am directly responsible'. I believe that letter is available and that, Mr Speaker, I find appalling, as I have previously said in my statement. At the time I was Speaker, I took the advice — I did not take authoritarian action; I took it with the advice of the Clerk of

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Tynwald — as Minister for the Treasury, I had the Chief Financial Officer as chairman of the financial supervision. I had the Chief Executive to take advice. I could have made a mistake once, 250 but I would not go on repeating that they had access, when I was being constantly challenged and so I believed the Minister — one has to believe Tynwald statements, House of Keys statements, one has to believe the veracity of Ministers — and yet, suddenly Dandara's own man stands up in a public inquiry, and says, 'We have no access.' I rest my case, Mr Speaker. 255 Q2. The Chairman: Thank you very much, Mr Cannan. Perhaps I could just start firstly by asking, in the timeline you describe the history of the school and the various Ministers, you made reference to Minister Craine, stating in May 2007 that she and the Department had decided to decline the proposal for land exchange. After that you went on 260 then to April 2010, to the appointment of Minister Teare and subsequent events. Can I ask you, what is your belief and understanding of what happened or what the Department's position was between May 2007, when the then Minister had drawn a line under land exchange of discussions, and April 2010, when Minister Teare had taken over as Minister? Are you of the view that there was no contact or discussion between Heritage Homes and the 265 Department during that approximate three-year period?

Mr D Cannan: I am firmly of the opinion, though I can be wrong, but I am firmly of the opinion that once Mrs Craine had stated in May 2007 in the House of Keys — and I believe the veracity of her statement — that now, as you have just said, the matter was closed. I believe it 270 remained closed until Minister Teare arrived in March 2010, when there was the reshuffle of Ministers. (The Chairman: Yes.) And in fact, sir, if you look closely at the replies in your copies of Hansard, you will see that Minister Teare states, 'Negotiations were reopened.'

Q3. The Chairman: Do you believe that Minister Teare was responsible for reopening 275 negotiations afresh?

Mr D Cannan: You are asking me for an opinion. I have no knowledge of what actually took place. Whether Mr Teare asked or whether Dandara saw a friendly face in Mr Teare and approached Mr Teare, I obviously cannot comment. 280 Q4. The Chairman: Thank you, Mr Cannan. Can I ask you also, we have evidence that in January 2008, Michael Commissioners were seeking reassurance from the Department that they would take appropriate steps to secure land to sustain the future of the school: were you aware of that or do you have any comment on why it 285 might be that the local authority had some concerns that there was not sufficient protection of the school from surrounding development?

Mr D Cannan: All I can say is it was evident in the 2010 November secret meeting and the January secret meeting with Michael Commissioners, Mr Teare and Heritage Homes and the 290 January public meeting when the Chairman was very reluctant and the Commissioners were reluctant. They had had a secret meeting in November — no transparency, no public acknowledgment. It is only by good fortune that I happened to know what was going on and, indeed, the Chairman's wife was actively supporting Dandara, but that was against the wishes of the community. It had been consistent throughout. 295 Q5. The Chairman: The land in question that was the subject, ultimately, of the agreement, which was signed in August 2012, the land in — (Mr D Cannan: 2011.) in August 2011. The land in question was negotiated, was a piece of land to the side of the school, a substantial piece of land, to protect the school and to allow for the expansion of the school. Given you have informed 300 us of the classroom extensions which had taken place some years earlier, do you believe that the Department was entirely wrong to have sought to protect the school or to allow for future expansion of the school, against a possible backdrop of surrounding residential development?

Mr D Cannan: Mr Speaker, sir, if I may say so, I recall you being Chairman of the Planning 305 Committee in your many previous roles and a development of this size is required to provide land under present legislation, sir, provide land, fund public spaces and therefore, there was no need for that. For the Minister to say in one of these Hansards that the houses could be built right up against the school wall... No, in my opinion over many years, sir — many, many years, and I have

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been also on the Planning Committee in 1983-84 — that would not be allowed and certainly not 310 now. Consideration is in the legislation and will be taken in, but when you build 100 houses, you have got to make provision for public spaces and the facilities for public land. So there are rumours in the wind, which I would not wish to comment here, sir.

Q6. The Chairman: So the land swap was entirely unnecessary from the point of view of 315 protecting the school, in your view?

Mr D Cannan: In my view, the school has not been protected because the existing school playing field, which is ample and in a beautiful setting, is going to be handed over to developers for commercial interest for some less appropriate land at the rear of the pub, and no account is 320 taken under the Cambridge-Stokes formula, even if it was allowed to go ahead on the value of the transfer. It is just, in my public opinion, a cosy transfer: 'Oh well, boys. I will let you have the playing field. Just give us a couple of acres at the back.' There is a procedure. There is by statute the Cambridge-Stokes formula and the value of the land — and it is not just me, sir, you will see that Mr Karran, the present Minister of Education, in 325 these supplementaries to my questions challenged the Minister time and again on the value of the proposed land exchange.

Q7. The Chairman: If this land swap was not essential then, what do you believe was motivating the Department to bring about such a deal with the developer? 330 Mr D Cannan: With respect, sir, I would ask that that is your job, sir, to find out. You have heard my evidence. There is no requirement; empty classrooms; and then we had the bizarre incident of the Minister then wanting to have the Kirk Michael surgery in the school to justify, in my opinion, the need for expansion of the school because he wants to say, 'Well, look, the two 335 classrooms are a medical centre,' and the doctors have very firmly said no, and you have written evidence, sir.

Q8. The Chairman: It seems very odd that the Department would seek to advance a land exchange of this sort, when it was unnecessary in terms of protection of the school. I repeat the 340 question, do you have a view as to what might have motivated the Department?

Mr D Cannan: I am trying to choose my words carefully, if you will give me a few seconds, sir. On the one hand, there are the interests of the developer to get access to his land. The 345 developer had the support of Mr Anderson, as Minister. Mrs Craine showed complete integrity, by saying that it was not in the interests of Kirk Michael and that was the end of the matter. She knew the history of it all, sir, just as I have explained. You were Education Minister, the classrooms were there for the expansion in the village and they are still empty and indeed the school roll has dropped 10. 350 The Chairman: Thank you very much. Can I ask my colleagues: Mrs Cannell, if you have any questions for Mr Cannan?

Q9. Mrs Cannell: Thank you, Mr Cannan, because you have given us quite a bit to think 355 about. One of the things that I had not appreciated was the fact that the school was of sufficient size to not only accommodate the present size of the village, but also future expansion in your opinion, with two empty classrooms and a sports hall. I am still struggling with what Mr Speaker has been trying to ascertain from you, is that, why then, if that was the case and recognised by Minister Craine as the case, would a new Minister 360 want to continue to be agreeable to negotiations with the landowner and also a developer? Do you think, perhaps the Education Minister at the time was looking to make some kind of profit on the land swap, in terms of allowing access? The land was valued — the land was valued by the Government Valuer — and of course, at that time, prior to the refusal of planning consent, the value of it was quite high, whilst the developer 365 did not have at his disposal an alternative access. Do you think perhaps the Department of Education was looking to make some money out of the transaction?

Mr D Cannan: I found it difficult to get into the mind of the Department of Education in the whole of this matter, but what is fact, not supposition: during Mr Speaker's term as Minister for

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370 Education, two extra classrooms were built that were not required, but were authorised by his predecessor for future expansion while they were building a school hall. So while they had the contract for the school hall, it was agreed that future expansion in the village and 'we will expand two classrooms and a school community room'. The roll of the school then was 138 pupils. Then, fast forward, we now have a school roll of 128, two empty classrooms, and this is 375 confirmed, because Minister Teare wanted to use them then to put a medical centre. So then he could say, `Ah, look, the school is full, we have got a medical centre and no extra classrooms, we need this land.' It was just something to justify the nonsense that has been going on since he took over, because Minister Craine, with absolute integrity, saw what it was and saw that it was just for... the thing there was for a commercial interest, as you can see by her reply in the House of 380 Keys on 29th May. She saw that the whole of this nonsense was in the vested interest, or commercial interest of the developer, the landowner and Heritage Homes. Then, to answer your question, we move fast forward to the present, or almost the present. Heritage Homes come to the Department, a new Minister, and there must have been some sort of positive relationship: `Ah, we have an alternative access,' which is never checked out — never 385 checked out. A Minister of the Crown: if he could not do it and hadn't the wit to do it, then surely the highly paid, £100,000-a-year Director of Education would have known how to conduct affairs — we are not a Mickey Mouse organisation, the Manx Government — but that was not done. All that was agreed was, 'Get hold of the playing field. We have got access to build the houses and we will give them a couple of acres', but they would have had to have given a couple of acres, 390 or an acre-and-a-half of public space because under the planning, as I have already said, Mr Speaker — and as you, as the former Chairman of the Planning Committee, will know — developers have to provide public land.

The Chairman: Can I just, before I thank you — 395 Q10. Mrs Cannell: I just have one more question at this point. Sorry. Thank you, Mr Speaker. Mr Cannan, turning now to the inquiry into the planning development which was subsequently refused, the expert for Heritage Homes, when asked the question about access, said that they did not have an alternative access; but it would be true to say, would it not, that the planning 400 application that was subject to the hearing only contained the first access which they were desiring? It did not contain the alternative access which we later learned of, did it?

Mr D Cannan: No. The alternative access which Mr Teare was promoting never appeared in a planning application. 405 Mrs Cannel: No. Thank you.

Q11. The Chairman: Mr Cannan, do you wish to add to that point?

410 Mr A Cannan: Could I add a point onto that, Mr Speaker?

The Speaker: By all means, yes.

Mr A Cannan: I refer Mrs Cannell to the inspector's Report from Mr Alan Langton, in 415 paragraph 114 of that Report, which states that:

`The present proposals explored such an access at Cass a Lergy, where Heritage Homes Ltd purchased Douglas Road properties backing onto the southern end of the site. The company was, however, unable to obtain control of sufficient frontage to satisfy the Highway Authority's visibility requirements.' 420 So, this was part of the overall debate at the inquiry that the inspector held and indeed he does actually mention this at paragraph 114 in his Report.

Q12. Mrs Cannell: Okay, thank you, Mr Speaker. If I could just follow on from that, what 425 date is that Report?

Mr A Cannan: Sorry, this was the one that was submitted, I think, I do not have the actual — I think it was 3rd February. It was the one that was submitted to the Council of Ministers, following the inquiry. I think it came in 3rd February, I think it was dated, but I will check on that. 430

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Q13. Mrs Cannell: What year?

Mr A Cannan: This year. This was the planning inspector's Report following the inquiry in December last year into the planning application. 435 Mrs Cannell: Okay, thank you.

Q14. The Chairman: Is it your view then that claims of a valid alternative access, are false claims? 440 Mr A Cannan: It would appear, Mr Speaker, that I have a lot of evidence to suggest that that was never actually verified and that there is a lot of disparity in the remarks made over the course of time, much of which has already been presented to you, but I have other remarks, which suggest — and evidence to suggest — that actually it was never verified whether there was or was not any 445 alternative access.

Q15. The Chairman: Can I just, before I ask Mr Turner, come back, Mr Cannan, to what you said. You said quite definitively that Minister Teare had not checked the alternative access. That is correct? 450 Mr D Cannan: If he had done, he would have produced evidence from the Department of Planning. I believe — and I am told by planning consultants — that before you put a planning application in, you submit your drawings — and the drawings are verified by Mr Cannan 'Junior', if I may use that word — and you get the engineer's certificate on the plans that an alternative 455 entrance, this entrance, is approved. (The Chairman: So if —) You can get a certificate. Now had the Minister or the Director of Education, in my view, gone about their business properly, they would have gone to the Planning Department and the Highways Department and asked for a copy of the certificate to say that they had an alternative entrance.

460 Q16. The Chairman: So your evidence, then, for saying that this was not checked was the absence of the production of such a certificate?

Mr D Cannan: I have never to this day seen a production of such...

465 The Chairman: Yes, Mr Cannan.

Mr A Cannan: Can I add, Mr Speaker, to that? I would refer the inquiry to my submission to you, my letter, in which I pointed out there was a letter actually sent to Minister Teare by Dr and Mrs Naylor of Kirk Michael, in which they wrote 470 to Mr Teare on 9th May 2011, the content of which states:

'We understand that there is a proposal to exchange land at the school in Kirk Michael to enable Heritage Homes access to land zoned for building. The details of this proposal seem to be based upon the belief that Heritage Homes, in the absence of access through the school, would have access from the Douglas Road through the entrance to High Tilt. 475 This is uncertain since we own the farm buildings and some of the land of Lhergy Vreck Farm and our deeds give us right over the access road to High Tilt'

— which is the access road that you will be aware of, I hope.

480 'Heritage Homes have not had the common courtesy to show us the proposal and discuss with us whether this would infringe our rights. We simply do not know whether our rights would or would not prevent Heritage Homes access to the zoned land. If Heritage Homes do not have access through High Tilt entrance, it alters the logic and certainly the price for access through the school. Such access would obviously be worth hundreds of thousands of pounds, not the £9,000 worth of land at present proposed. We would not be willing to have our rights infringed.' 485 Now that letter was on 9th May. Then Minister Teare replies on llth May:

'Dear Mrs Naylor, 490 'I write in response to your letter dated 9th May. I am unable to comment as to how the potential land swap at Kirk Michael School would affect your own position. My understanding is that access to the site has already been obtained by the developer through the Lhergy Vreck Road, as they have acquired the property on the north-west side of the road junction. Perhaps I could suggest that you discuss the matter with your legal adviser or preferably Heritage Homes direct, as I am sure they will be able to give you more details, as you are an interested party.'

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495 Basically, an interpretation, or my interpretation of that is Minister Teare is simply dismissing this claim, has not actually written to the landowner to say, 'According to our checks or searches at the Land Registry, Heritage Homes will have a proper entitled claim over that land'; he has simply dismissed it and referred the landowner to Heritage Homes or their lawyer. Yet this letter 500 would seem to be at the very heart of the issue of a complete, almost, disregard for any other claims and a complete acceptance of the Heritage Homes position. It would indicate that, actually, no checks had really been done.

Q17. The Chairman: So the Naylors' letter and their assertion of rights over the access, in 505 your view, is a critical point, as to whether access was obtained or not obtained, and the Department ought to have checked out that point?

Mr A Cannan: Whether the Naylors do or do not have rights over there, based on that it seems to be a right of way, is debatable, but nevertheless, one would have thought that this being such a 510 major... The whole crux of the deal was that they had alternative access. If there is evidence from a landowner to suggest that, actually, the rights of Heritage Homes to build an access road through that point is in doubt, one would assume that it would be taken very seriously, because otherwise you are just suggesting that the Department of Education — or the Minister — is simply taking the word of a developer, without actually checking through the crux of the issue. 515 Q18. The Chairman: Before I bring Mr Turner in, just to be absolutely clear then, it was Minister Teare's answer to that point, with reference to his understanding that the developer had access, it was that statement that indicates to you that the Department had not checked it out?

520 Mr A Cannan: Yes, sir. I will just read that to you again:

`My understanding is that access to the site has already been obtained by the developer through the Lhergy Vreck Road, as they have acquired the property on the north-west side of the road junction.'

525 Q19. The Chairman: If the Department had checked it out, are you saying that that reply would have been somewhat different, it would have been more unequivocal?

Mr A Cannan: Yes sir. I am suggesting that any sensible reply, had it been thoroughly investigated, would have gone on to state that, 'We have looked thoroughly at this matter and 530 believe that, on the balance — even on the balance of probability — having looked at it thoroughly, Heritage Homes would have had access through there and therefore on that basis we are proceeding'; but there is absolutely no indication in here, whatsoever, that any proper check has been undertaken as to the validity of such a claim and therefore you have to go on to question what sort of value was actually being received from the land swap deal and, of course, we have not seen 535 this deal, so we actually do not know — or the terms of the deal.

The Chairman: Mr Turner.

Mr Turner: Yes, thank you, Mr Chairman. 540 Mr D Cannan: If I could just interrupt. I was party to that correspondence because it happened during my tenure of office —

The Chairman: Yes, thank you. 545 Mr D Cannan: — and it reinforces what I have just said, Mr Speaker, that if Dandara had an alternative entrance, I am confident they would have been so confident in themselves that they would have produced the engineer's certificate from the Highways Department to say you have... as I have just explained earlier, that developers, when they do it, have to, before they put a 550 planning application in, get a certificate to say that the entrance is okay.

The Chairman: Thank you.

Q20. Mr Turner: Can I just pick up on the access issue with the Naylors. Would you not 555 agree, though, that their access would be potentially enhanced by this development using the lane

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and, far from it impeded... and that it is quite common for different landowners to own pieces of land, lanes, etc where, providing the access to the other party is not impeded, then they can improve those accesses at will? 560 Mr A Cannan: I would suggest that is purely a decision for Dr and Mrs Naylor and that the indications are in their letter of 9th May 2011 that they would not be willing to have their rights infringed, i.e. they were not willing to have their rights over that —

Q21. Mr Turner: As they still have access, their rights are not being infringed. 565 Mr A Cannan: I would suggest that is for a planning inquiry or a court of law to decide, but I could not comment on that.

Q22. Mr Turner: The other issue I would just like to explore, too, and that is coming back to 570 the issue about whether the Department had checked out. Heritage Homes issued a press release which stated that:

`Prior to entering into the agreement with the Department of Education, we were required by Minister Teare to provide irrefutable proof that we [Heritage Homes] could access the land to the rear of the school (albeit for a maximum of 100 575 houses) via an ALTERNATIVE access.'

Are you aware of that press release that was sent out?

MrA Cannan: Yes, I am. 580 Q23. Mr Turner: The developer is stating that they had to provide that proof to Minister Teare.

Mr A Cannan: Which is fine. Again this is a developer's assertion, but nobody has ever 585 produced any clear evidence of that, in either statements that they have provided to myself or my father during his tenure, that actually, irrefutable proof has been provided by the developer and not only that, that is developers' proof that has got to be certified and backed up by planning — at least, planning approval in principle — and also by Department of Infrastructure, as this is a road access point. 590 Mr D Cannan: If I could just say, the road access point, you do not wait for approval in principle, It is the engineer's certificate of access, approval of access and at no time could I get any approval of access from the Department.

595 Q24. Mr Turner: But the plans on the table were for a higher number, whereby what they are saying is that, if they were to use the alternative access, they would have to redraw the plans for a small number of units. Is that your understanding of what the developer was saying, in that they had not drawn the plans for 100 units, that was an option if they had to go for the alternative access through the Lhergy Vreck track? Is that your understanding? 600 MrA Cannan: They would have had to build less? (Mr Turner: Yes.) I believe I have read that somewhere, but I cannot recall where I have seen it. I am not quite sure what... Anyway, that is just —

605 Mr D Cannan: Mr Chairman, what relevance does that question have? Is that the number of houses they could build on — and the commercial interests of the people —

The Chairman: I think we will field the questions, Mr Cannan.

610 Q25. Mr Turner: If I may, I refer to the Hansard of House of Keys, Tuesday, 29th May 2007 and this is the Statement by Minister Craine, who says that she has taken a personal interest in the community's view.

'At the present time I have decided to decline the proposal for the land exchange, because the potential disadvantages 615 to Kirk Michael outweigh the possible benefits to the school.'

What were the potential disadvantages to Kirk Michael that Minister Craine was suggesting

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there would be?

620 Mr D Cannan: The disadvantages to the people of Kirk Michael, which Mrs Craine — and I commend her for this — actually listened to the people of Kirk Michael, because she attended the public consultation and spoke to them and they told her, what the disadvantages outweigh and she was well aware, as I have already explained, that the school had two extra classrooms and no children — I mean, no children to fill them. 625 Q26. Mr Turner: Was it that the residents did not like the development, or what were the disadvantages to the village?

Mr D Cannan: They did not wish the school playing field to be destroyed for commercial 630 purposes — as simple as that. Heritage Homes want to build houses there, well, find another entrance. (Mr Turner: But —) Secondly, the school playing field is in a conservation area and if conservation areas have to have any relevance, then they are to be protected. Tynwald approved and Minister Teare approved the conservation area. I am not sure whether you were in Tynwald at the time, Mr Turner, but the 635 school playing field was in the village conservation area.

Q27. Mr Turner: In terms of disadvantages, the offer on the table was that they would have increased land with a fully constructed playing field, fully drained, so, what I would like to establish is, what the potential disadvantages to Kirk Michael were, because on the face of it, the 640 offer for the school, taking everything else aside, the school appeared to be getting quite a favourable deal out of it?

Mr D Cannan: No, sir. The school were not getting a favourable deal. The school would get a deal, irrespective, if they got planning permission, because they would... as I have already said, in 645 a planning permission and development of that size, they are required to provide land and public spaces, so they would have had extra land and retained the issue of the existing school playing field.

Q28. Mrs Cannel!: Mr Speaker, could I follow on from that? What you are suggesting is, in 650 planning law, that the Planning Committee would in fact demand that there was a sort of green buffer area between the wall of the school and any kind of new development. I am just trying to think whether that has applied elsewhere, where Heritage Homes have developed. They did quite an extensive development in Peel and were very keen to build right up to the boundaries of existing properties. I do recall at the time that there was some resistance to 655 that, but that is your understanding, is it not?

Mr D Cannan: That is my understanding, but the difference between Peel is that they are ordinary houses. This is a public, school building.

660 Q29. Mrs Cannell: Okay. Can I explore what the disadvantages are, because, when answering Mr Turner you suggested that the main disadvantage was the loss of the school playing field, the fact that it is designated as a conservation area, but there are more concerns, are there not, within the village about a development of such size?

665 Mr D Cannan: Absolutely. Traffic, etc, and that is why the planning inspector turned it down. A full two-day hearing of a UK planning inspector and he turned it down, but it was at this very planning inquiry that the Heritage Homes man stood up and said, 'We do not have an alternative entrance.'

670 Mrs Cannell: Am I correct —

Mr D Cannan: It was Heritage Homes saying, and yet all along we had, 'Heritage Homes have an alternative entrance', and in front of the UK inspector at a public inquiry, he stands up and said, `We never had any.' 675 The Chairman: If I could ask Mr Turner just on... I believe you want to follow up that particular point.

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Q30. Mr Turner: Yes. I think, Mr Cannan, you are referring to the transport planning 680 consultant, Mr Bryan Hall. Is that correct? Where Heritage homes are stating, he was replying specifically to a question posed and that was whether access to the site via Westlands or Cronk... Knock-y-Tholt, I think it is, could provide viable access in their own right, Heritage Homes are saying that he answered that question specifically, but did not explain that, when they were taken in with the additional land that is already under Heritage Homes control, then an alternative access 685 can be formed. What they are stating was he was answering the specific question to the planning inquiry.

Mr A Cannan: Can I just come in here? As one of people who actually asked Mr Hall that question, albeit the following morning and in a private setting, although there were witnesses 690 around, he repeated that assertion, although it was repeated publicly on the first afternoon. But again, this is just what Heritage Homes are asserting. There is actually no clear evidence. All you are reading is a press release from Heritage Homes there, and again, I would refer you to the inspector's Report, 114: 695 `The present proposals explored such an access at Cass a Lergy where Heritage Homes Ltd purchased Douglas Road properties backing onto the southern end of the site. The company was, however, unable to obtain control of sufficient frontage to satisfy the Highway Authority's visibility requirement.'

So the inspector himself has made a judgment on that, I would suggest, on that assertion, 700 which is purely an assertion by Heritage Homes and not clearly evidenced.

Q31. Mr Turner: This is why I am asking you. This is what they are saying. Are you challenging their statement? 705 Mr A Cannan: The inspector has clearly stated in his report that they did not have the visibility frontage to satisfy the Highway Authority's requirements. So yes, we were challenging their assertion. This was effectively their claim to access. (Mr Turner: Right.) But, as the independent inspector will verify, he did not believe they had the visibility requirements to actually build a road access at that point. 710 Q32. Mr Turner: But was that not on the number of units, whereas it would be sufficient for a reduced number of properties?

Mr A Cannan: I cannot comment on that, because I was only dealing... I could not possibly 715 jump to a conclusion on behalf of —

Q33. Mr Turner: The crux of the issue is that the application was for over a hundred properties, was it not? I have not got the exact number, and they had alternative access, but my understanding would be that, if they were then refused and had to use that alternative access, they 720 would have to redo the plans for a maximum of 100 houses, therefore the access via the alternative route would be permitted?

Mr A Cannan: Again, that would depend on whether they actually had access at all, so this is all conjecture and I cannot really start answering questions as to what may or may not happen, 725 whether there was a reduced number —

The Speaker: Yes, we will put that to one side.

Q34. Mrs Cannell: Mr Speaker, can I just follow on from that? Turning to the inspector's 730 terminology in his Report, he talks about 'not having sufficient visibility frontage'. So what we are talking about is the splays that one can expect either side of the road when coming off another road to enter, there has to be sufficient frontage to provide visibility splays. That is what comes under visibility frontage. At the time, the Highways Authority were not satisfied that there were sufficient visibility 735 splays, would you say in terms of the alternative access, which they have now acquired, they have acquired further properties to enable an alternative access, do you think, being a representative of Kirk Michael, in your view, that that would now give them the visibility?

Mr A Cannan: Again, it is very difficult for me to give any comment on that. There are very

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740 technical measurements associated with that. As I understand it, based on what the inspector's conclusions were — and bear in mind I am not trying to fob off the question, but they are very technical issues associated with it. There was no visibility requirement and that applied to the properties. 745 Q35. Mrs Cannell: Mr Speaker, if I can just clarify one position bringing up to present day. As I understand it, there is now a fresh planning application being submitted. Is that correct?

Mr A Cannan: That is correct.

750 Q36. Mrs Cannell: Have you had an opportunity to look at that yet?

Mr A Cannan: That is correct. Indeed, I held a public meeting last night in St Michael's Hall in Kirk Michael, which was attended by over 90 residents.

755 Q37. Mrs Cannell: And is the proposal to provide the access through the alternative access?

Mr A Cannan: No, it is as is. It is a very similar application. There is hardly any difference. They have reduced the number of dwellings to 95 dwellings and they have shortened the road width to comply or to try and comply with what appears were the inspector's assertions regarding 760 a by-pass, but in my opinion, in essence the current submission is almost exactly the same as the previous one.

Q38. Mrs Cannell: Does that not surprise you then, given that the first refusal came using that particular access? Does it not surprise you that they put together another proposal using more or 765 less the same access?

Mr A Cannan: I am very surprised that there was the allowance in the land swap deal to be able to come back a second time and I will be even more surprised if there is not some allowance in there where the value of the land is increased by the sheer fact that they have to reapply. I find it 770 very surprising, because under the Town and Country Planning Act also, this type of development or for any ordinary person who had a development rejected would have to wait five years or substantially alter their proposals. It would appear in this case that the proposals have not been substantially altered and it would appear, as it stands at the moment, that this five-year rule is magically disappearing, but I appreciate that might be outside the bounds of this. 775 Q39. Mrs Cannell: Well, again, under planning law, one can resubmit an application, provided it is materially different from the first.

Mr A Cannan: That is correct and therefore that judgment has to be made. 780 Q40. Mrs Cannell: Yes. Can I ask you though, are you surprised that it does not include the alternative access?

Mr A Canaan: Well, there wasn't... Sorry, I am not quite sure — 785 Mrs Cannell: Alternative access (Mr A Cannan: Yes.) which was alleged to have been obtained when the first application was running was not part of that particular planning proposal and yet there were claims that it was there. Are you surprised that that now is not being used as an alternative access? 790 Mr A Cannan: Given the conclusions that were reached, I am not surprised that it is not appearing.

Q41. Mrs Cannell: Why are you not surprised? 795 Mr A Cannan: I would have thought that there is so much doubt about whether there was actually alternative access and we would appear to have an inspector who has clearly stated that there was, in his opinion, 'unable to control sufficient frontage' so that is why I am... and given the fact that the agreement itself would appear to have allowed them to come back for a second 800 bite at the cherry, unopposed, I am not surprised they have just carried on submitting, almost what

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I regard as an identical application.

Q42. The Chairman: Or could it not be that — thank you, Mrs Cannell — the Douglas Road access always was the preferred access? 805 Mr D Cannan: Oh yes.

MrA Cannan: Absolutely, sir. I would agree with that. I would agree with that. 810 Q43. The Chairman: So it was no surprise that they are pursuing the preferred access, as opposed to the other access, which you maintain is not valid at all, but it may be, we are conjecturing, more expensive to develop and therefore the preferred access —

Mr A Cannan: Absolutely, sir, developers are not stupid people, they would be going for the 815 best option they possibly could!

The Chairman: I do want to move on, but, Mr Turner, did you want to wrap up this particular point? 820 Q44. Mr Turner: It was just to add that the transport consultant, whom I earlier referred to, stated that they did have confirmation from the Department of the Highways Division that the alternative access was acceptable to the Department, but on a reduction to 100 maximum of dwellings. 825 Mr D Cannan: This is application 400.

Mr Turner: I am referring not to the current application; I am referring to the access at Lhergy Vreck. 830 Mr A Cannan: I would suggest there is a significant conflict between what the Department is claiming and what the independent inspector — and very competent independent inspector — has concluded in his Report.

Q45. The Chairman: I do, of course, want to emphasise that we are not here to give opinion 835 on the merits of any current planning applications; our inquiry is entirely retrospective in nature. We move on now — thank you Mr Cannan senior, for your statement and we have dealt with a number of questions that flowed from that. Thank you Mr Cannan junior, if I may refer to you, for clarifying a number of issues. As I have asked your father, I would like to give you the opportunity to make a statement. We 840 have, obviously, had your written evidence and it has been referred to already, but I do want to give you the opportunity to amplify on your written evidence and likewise, we may have some particular questions.

MrA Cannan: Thank you, Mr Speaker. 845 Just to give a bit of background, I have followed this matter from a distance for a number of years, but obviously very keenly and closely since I decided to stand for election, which was at the beginning of 2011. In fact, it was August, as we know, August last year, literally hours, I would suggest, before the end of the parliamentary session that this deal was announced and perhaps as a farewell present, one might suggest, to the retiring MHK. 850 I would like to cover some of the ground. I appreciate, I do not want to keep the inquiry longer than is necessary, just to cover some of the questions I did cover in my written submission, for the public record. It was clearly stated by the former Minister for Education, Mr Teare, that the Department of Education entered the land swap deal to protect Kirk Michael School, in order to allow for future 855 expansion. That was clearly stated by Mr Teare. Since I have become MHK, I have been unable to verify a number of key questions: who initiated the deal and when; what evidence did the Department have that Heritage Homes had access to the zoned land — I know we have covered that issue; what plans or drawings were ever submitted by Heritage Homes in the early stages to the Department to authenticate such claims of 860 alternative access and how they might be proposed; what discussions took place with the planning department to actually evaluate such drawings or plans; what confirmation was provided by the

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planning department to the Department of Education in respect of this matter; and I appreciate we have just discussed this at length — what discussions took place with the Department of Infrastructure, in respect of the road access or the alternative road access to the zoned land; and 865 more importantly, when did those discussions actually take place? So I have already covered the issue of the letter from Dr Naylor — well, Dr and Mrs Naylor — but as I said, I do think this is a very key letter, which the response, particularly from the Minister, I would suggest, indicates a lack of proper detailed consideration of a fairly substantial deal that would have and will, if it goes through, result in a developer profiting by many, many millions of 870 pounds. I have estimated £5 million to £6 million in my discussions with other developers, who given me a rough estimate of the profitability of that site to the developer, should matters progress. So there are a number of other questions arising as to the timings and management of the deal. hi January 2011, in Tynwald, Minister Teare outlined the deal, but he went on to say access to the land had been secured — this is a done deal and subject to the planning process development 875 will occur. As I said before, the Department has to react to protect its interests and to adapt and to adjust to the changed circumstances and situation. But I would point out to the inquiry, sir, and to your good selves, that in an e-mail to a constituent 10 days before that sitting and before that statement, the Department of Education wrote to this constituent: 880 `Thank you for your e-mail. Minister Teare has asked me to advise you that he has agreed in principle, and we are now finalising the details.'

He has already said and suggested that the deal was basically done long before the matter 885 really was properly discussed by Tynwald. On 29th March, Minister Teare says, and I think this has already been covered:

'You may not be aware but I have assumed responsibility for negotiations with the developer of the land adjoining Michael School. At present negotiations are still continuing and there is no sign of agreement between the Department 890 and Dandara Holdings Limited, or indeed any entity in the respect of a land exchange. I did receive some time ago a discussion paper from the developer, but it did not deal with the issues I wished to address.'

So in March 2011, Minister Teare is talking about a discussion paper. Yet, on 6th January, two months before, he is telling a constituent he has agreed in principle. I do not understand how that 895 can possibly be right. There were also a lot of questions. I have not seen the deal; neither has anybody in public seen the deal between the Department of Education and Heritage Homes, but it is very questionable whether any value has been obtained from this deal or any value will be obtained from this deal. In January 2011, Minister Teare stated to Tynwald: 900 'Mr President, we are all experts in hindsight, but if the original transaction had gone ahead, then considerable benefit could have accrued to the Government under the principle of the Cambridge case in the UK, which gives the party that owns access to a landlocked site a share in the development value. Recognising that the site would be difficult to develop without access through the school grounds, the developer made an attractive offer, which is no longer 905 available to the Government.'

To which I presume he was referring to 2007 and the option is available to the then Minister. But this raises a lot of questions. What was the value of the original transaction referred to in that statement? Why was the golden opportunity lost under Kirk Michael Strategic Plan, which I 910 would ask to refer you to and does actually offer some protection for the school? Indeed, in that Plan, it protects the school by requiring any development of the area to allow for future expansion of the school and the possibility of a by-pass road. So there is a clear requirement that some consideration is given to protecting the school and any planning development certainly based on that Strategic Plan. 915 We never knew the terms of the deal and we did not really understand why it had to remain so secret and it is very clear whether the taxpayer was going to receive any value for money, and indeed is, given the fact that we are now actually at a stage where we are going back to a second application. So all in all, there were a huge number of questions around this deal which really did not add 920 up from assertions as to how it was actually managed, the ignoring of a very key letter from a landowner, who clearly had involvement in this matter, and then questions that I had, as to whether actually the taxpayer was getting the proper value for this land, particularly as outlined under the Cambridge Stokes principle; but as we have not seen the deal then nobody at the moment is really that clear on that matter.

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925 Q46. The Chairman: Thank you very much, Mr Cannan. Can I just refer you to, I think it was the eighth question that you posed in your written evidence and which you covered just now, is it right therefore to properly suggest that a public debate, letters, Tynwald motions etc, were in fact irrelevant. You refer to the e-mail written on 6th 930 January, when Minister Teare states that he has agreed in principle and then you refer to the March letter to the constituent about negotiations still continuing. Can I ask, is it possible that Minister Teare did not know that this matter was to be debated in January Tynwald? He has said, quite unequivocally, on 6the January, 10 days before the sitting, he has agreed in principle. If he had known it was to be debated in Tynwald, he might well have 935 qualified that, that Tynwald might have reached a different conclusion to the one it did, when the deal would no longer be on the table. Mr Cannan.

Mr D Cannan: It occurred during the period when I was MHK. 940 Q47. The Chairman: I was going to ask you, in fact, did you notify Mr Teare in advance that the matter was to be debated?

Mr D Cannan: By 6th January, we would have known because we all have the Tynwald 945 Agenda 14 days before, sir, the Tynwald Order Paper. (The Speaker: Yes.) The Tynwald Order Paper comes out 14 days before the sitting, sir.

Q48. The Chairman: Yes, so the Order Paper would have been finalised on Wednesday, 5th January and sent to Members of Tynwald that evening and it would have been available to the 950 press and the public on the 6th.

Mr D Cannan: And I think, actually, I sent, as a matter of courtesy — I cannot be sure of this, but I would normally send to any Minister, so that he did not receive Questions cold on the Question Paper, or motions cold on the Order Paper — I sent him a copy of the motion that one 955 signed and submitted to the Clerk. But I cannot be certain, but I normally do that, whatever Minister I have asked Questions of, so that he has a fair and appreciative time before the Question Paper comes out.

The Chairman: And — 960 Mr A Cannan: Sorry, Mr Speaker, can I just clarify a further point there? In that e-mail of 6th January, the contents of that e-mail, 'Minister Teare has asked me to advise you that he has agreed in principle and we are now finalising the detail', and yet he tells Tynwald, 'Whilst the negotiations have started, they have not been completed yet. There is a lot of work to be done and 965 it may be that the discussions may come to nothing'. Yet he has already told a constituent that it has been agreed in principle on 6th January, so how can he possibly then tell Tynwald on 18th January there is a — sorry, just to repeat — 'a lot of work to be done and it may be that discussions will come to nothing'? 970 Q49. The Chairman: The e-mail of 6th January, however, did include an important caveat, did it not, when it said the deal could still fall through? Could that not be taken as evidence that he was not in a position to be unequivocal, because there was a Tynwald debate and Mr Cannan has said, in all likelihood, he notified Mr Teare of that forthcoming debate. 975 Mr D Cannan: The Department — it just went to the Department, rather than Mr Teare.

Q50. The Chairman: Fair enough. And saying the deal could still fall through acknowledged that Tynwald was yet to debate Mr Cannan's motion.

980 Mr A Cannan: There is that possibility, but it would appear to me, strange that we had been told that it had been agreed in principle and yet Tynwald is told there is a lot of work to be done and implies that negotiations have merely reached a starting point and have not progressed to... When you are saying you have agreed in principle, you have, basically, got some small detail, I would suggest, in my business experience, to add some, perhaps, meat to the bones and it is 985 unlikely, that once you have reached an agreement in principle that a deal is likely to fail on some

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technical point.

Q51. The Chairman: What was said in January and March are contradictory; in other words, they do not — 990 Mr A Cannan: I would suggest what was said on 6th January in an e-mail directly contradicts what was then later told to Tynwald.

Mr D Cannan: Just to back that up, because this was in my time, I refer to the secret meeting, 995 I think it was 14th November 2010, prior to this, in which Mr Teare went to the Commissioners to discuss the plans and his proposals and the following week Mr McLoughlin and Dandara had a meeting with the Commissioners, in which they went into complete detail of that, so it reinforces in my view, the e-mail that Mr Teare sent. He is already deeply involved. He has this secret meeting, then Dandara come with the plans after Mr Teare has seen the Commissioners and then, 1000 if I can move forward to the March Questions in which Mr Teare says, the Department of Education missed a golden opportunity for compensation: they had never missed a golden opportunity. They are saying that, 'because we have got alternative access': they never had alternative access. It is all part of this supposition — I am trying to be polite — but they are telling everybody, 'We have got alternative access.' 1005 Mr A Cannan: Sorry, Mr Speaker, just to pick up on your point. (The Chairman: Yes.) I tried to correct you by saying and implying the 6th and 18th January and indeed, you were correct. It also completely goes against what was said in that letter in March when Minister Teare asserts that he has merely had a discussion paper. So from 6th January when he has agreed in principle, we get 1010 to March and we have simply got a discussion paper. I do not understand how that one thing has been told to a constituent on 6th January, clearly in an e-mail, an agreement in principle. Then to Tynwald that negotiations have started but there is a long way to go. Then by March, we are back to a discussion paper. So perhaps the deal actually started off by being done and we were just working backwards in this particular case, but it is — 1015 Q52. The Chairman: So the golden opportunity that was referred to, of course, was on the basis of a deal which, had it been struck, would have been on the basis of the playing field having the status of a ransom strip to unlock access to allow development to take place. If, indeed, it was a ransom strip, the lesser deal and the loss of that golden opportunity and Minister Craine rolled 1020 out any further development or exploiting that golden opportunity, any later deal would have been equally a golden opportunity, if the status of ransom strip was still in place. Are you saying, Mr Carman, that in reality it was still in place —

Mr D Cannan: It could have been. 1025 The Chairman: — because the —

Mr D Cannan: They had no alternative access.

1030 The Chairman: — alternative access was a fiction?

Mr D Cannan: Yes, that is what we have had all afternoon. Nobody has ever proved to me anyway, and I cannot speak for your Committee, sir, that they had alternative access. Nobody has ever proved they had a document to say they had alternative access. 1035 Q53. The Chairman: And if that alternative access could be proved then the Department would be correct, Minister Teare would be correct in having described it as a golden opportunity in 2007 that was lost?

1040 Mr D Cannan: But he was promoting that they had an alternative access, and I would suggest that with this row going on, somebody, somewhere would have produced documentary evidence to say there was an official thing. We have had the planning inspector's inquiry and we have had the comments of the Dandara consultant — you know, the man acting for Dandara and everything else — and it is beyond my comprehension that if there was an agreed alternative access, it would not 1045 have been produced.

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The Chairman: Okay. Thank you. Mrs Cannell.

1050 Q54. Mrs Cannell: Yes, thank you, Mr Speaker. Just following on from that, are you aware that the Government Valuer's opinion was sought on the valuation of the transaction back in 2007; and subsequently, post 2007, gave in the first instance a greater value based on the Stoke v. Cambridge principle, and then later gave a lesser value? 1055 Mr D Cannan: Yes, I can only assume that he, too, without checking the facts, because if he had checked the facts I am sure there would be in the public domain that there was an alternative access.

1060 Q55. Mrs Cannell: Do you think perhaps the Minister was relying perhaps a little bit too heavily on the Government valuations opinion?

Mr D Cannan: No, I thought his answers have been on the... that he has been informed by Dandara they have alternative access. Hansard: all his replies there, he has been informed by 1065 Dandara, they have alternative access.

Q56. Mrs Cannel: May I just go back to August 2011 where the agreement was signed by Minister Teare, to your knowledge do you know what date it was that Heritage Homes submitted the planning application? 1070 Mr D Cannan: It was signed the day before Tynwald was dissolved, as a farewell Harvey Smith to myself, by Minister Teare — that is what I think anyway — and shortly afterwards in September offered — my son will say — but I think it went in September, because I recall in October, it must have been, because we had public meetings. I have never attended... To make 1075 this quite clear, Mr Chairman, once I retired from Tynwald on 18th August, I completely distanced myself from all political activity — apart from campaigning during the Election, obviously, for my son — from all political activities, so Alfred will know that I do recall he had a public meeting — I obviously was not there, any more than I was at last night's public meeting — and handled the matter because he was under pressure, as I had been from the constituents. 1080 Q57. Mrs Cannell: Mr Cannan, I am just trying to explore why — a reasonable explanation as to why Minister Teare chose to sign the agreement in August 2011, when Tynwald was in recess and whether it was as a consequence of the submission of the planning application being submitted before the new parliament took up in September or October time. 1085 Mr A Cannan: I cannot remember the exact date and I was just checking my folder and I am struggling to find that, but I think that if we — I can confirm that to you, Mrs Cannell, straight after this — but from my recollection it was barely 24 to 48 hours before the final end date and I think it was an August date. I am sure it was around 28th or 29th August, which was the official — 1090 The Chairman: The House was dissolved —

Mr A Cannan: The House was dissolved within about —

1095 The Chairman: The agreement was entered into on the 16th.

Mr A Cannan: Yes, that is correct.

Q58. The Chairman: In our evidence, Treasury approval was given on 10th August, as it 1100 happens, would it not have been... It is pretty straightforward is it not, once Treasury approval was given, the Department would wish to proceed with the agreement and sign it? It was not deliberately rushing through before the House dissolved, surely?

Mr A Cannan: I will have to leave that to your astute judgement, sir, but there was certainly a 1105 lot of concern in Kirk Michael. I was campaigning at the time very heavily, there was a lot of campaign and worry that this matter had actually been signed at that precise moment in time, effectively, it would seem, given the political recriminations from that significant period of time to

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potentially die down and for the process to get underway without any real ability to challenge that, in either the House of Keys or Tynwald. So the timing was — it may have been coincidence, it 1110 certainly did not help reaction in the village and certainly, there was an air of suspicion, as to why that particular document had been signed at that particular time.

The Chairman: Thank you. Can I give Mr Turner a further opportunity. 1115 Q59. Mr Turner: Just with regard, you were questioning the evidence of the alternative access. Did you or anybody consider doing a search at the Land Registry as to who owned the property Westlands, which is on the bottom end of the Lhergy Vreck track? 1120 Mr A Cannan: Did I —

Mr Turner: In terms of there were some questions raised by some of the objectors as to whether Dandara or the associated companies have indeed any interests in that track. Were any searches done to your knowledge of that? 1125 Mr A Cannan: I received a reply from the Department of Education some weeks ago — I cannot remember the exact date now — in which they actually enclosed copies of those documents showing clearly that the purchase had taken place. 1130 Q60. Mr Turner: And did those documents show when the purchase had taken place?

Mr A Cannan: I cannot recall what the date was off the top of my head, but I think the point is that I do not think anybody disputed the fact that Heritage Homes had purchased the relevant properties. The issue was that in doing so, did that automatically give them the right to build a 1135 road, an access road on a lane running alongside it, or even to demolish those properties and build a roadway through it? We have never really had any clarification, except again I would refer to the Report, paragraph 114.

The Chairman: Thank you. 1140 Anything further? Any further questions?

Mrs Cannell: I do not, Mr Speaker. No. Thank you,

Q61. The Chairman: Can I, in closing, pose a question to each of you to help this Committee 1145 and ask you two questions each. What is the most important question you would like us to put to Mr Teare; and secondly, what is the most important question you would like us to put to the Department of Education and Children, whose Chief Executive will be giving evidence shortly?

Mr D Cannan: Can I just look to my notes? I did mention it in my presentation, sir, the 1150 questions.

Mr A Cannan: I am happy to jump in whilst... (The Chairman: Yes.) Sir, I think I would obviously refer you to my submission letter, but I would also refer to my letter of 30th January in which I wrote to all Tynwald Members, just informing them out of 1155 courtesy that I was bringing a motion forward for a select committee. I did ask at that time for an investigation into three core matters: whether Tynwald was in fact given the correct information with regard to the status of the deal in January 2011 — and we have clarified some of the evidence to suggest it may not have been; whether the matter or the manner in which the negotiations were conducted was right and proper and that the full due diligence had been undertaken, as one would 1160 expect from the Department of Education; and whether proper value for money was achieved from the land swap deal and indeed whether the motivation for undertaking this land swap deal was right and proper.

The Chairman: Thank you very much. Thank you. 1165 Q62. Mrs Cannel!: Mr Speaker, can I just clarify the first question that Mr Cannan Junior has put. Basically then, what you are asking us to consider, the first point you made is, in fact, was Tynwald misled? Am I correct?

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1170 Mr A Cannan: I think I am asking you to ascertain whether the correct information was supplied at that time; and yes, if I am being honest, whether actually Tynwald, in not being supplied with the true facts at that time, was in fact misled when that motion debate was taking place. 1175 Mrs Cannell: Thank you.

The Chairman: Thank you. Mr Cannan.

1180 Mr D Cannan: Mine are on a similar vein, but the questions I would like to you ask the Minister and the Director of Education: did they take the information provided to them by Dandara that they had access, as stated by the Minister — in Hansard, as stated by the Minister; and if they did not take it at face value, what suitable enquiries were made of Government Departments, including the General Registry, to verify the statements that Dandara had given them throughout 1185 this matter; and finally, what role did the Director of Education take in formulating the Tynwald replies of Mr Teare?

The Chairman: Thank you very much. 1190 Mr D Cannan: What role did the Director of Education take in formulating the replies?

The Chairman: Thank you both. You have been most helpful and made a very interesting and informative presentation and thank you for the manner in which you have answered our questions and assisted this Committee. 1195 Thank you very much for coming, and can I thank members of the public and the press also for their attendance. This public hearing is now closed. Thank you.

Mr D Cannan: Thank you, Mr Speaker. 1200 The Committee adjourned at 4.15 p.m.

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7 0 TYNWALD COURT OFFICIAL REPORT

RECORTYS OIKOIL QUAIYL TINVAAL PROCEEDINGS DAALTYN

HANSARD

SELECT COMMITTEE OF TYNWALD ON THE KIRK MICHAEL LAND EXCHANGE AGREEMENT

BING V EAYN TINVAAL MYCHIONE COARDAIL COONREY THALLOOIN SCOILL SKYLLEY MAAYL

Douglas, Thursday, 7th June 2012

PP85/12 KMLX, No. 2

All published Official Reports can be found on the Tynwald website www.tynwald.org.imlOfficial Papers/Hansards/Please select a year:

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. 0 High Court of Tynwald, 2012

71 SELECT COMMITTEE, THURSDAY, 7th JUNE 2012

Members Present:

Chairman: Hon. S C Rodan, SHK Mrs B J Cannell, MHK Mr J R Turner, MLC

Clerk: Miss H J Paisley

Business Transacted Page

Procedural

Evidence of Hon. W E Teare MHK, former Minister for Education and Children and Mr S Dobson, Chief Executive Officer, Department of Education and Children 25

The Committee sat in private at 11.38 a.m.

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Select Committee of Tynwald on the Kirk Michael Land Exchange Agreement

The Committee sat in public at 10.00 a.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR SPEAKER in the Chair]

Procedural

The Chairman (Hon. S C Rodan): Good morning and welcome to this public meeting of the Select Committee on the Kirk Michael School Land Exchange Agreement. I am Steve Rodan, Chair of the Committee and the Members are Mrs Cannell and Mr Turner. Heather Paisley is 5 clerking the Committee for us this morning. If I could ask everyone please to switch off mobile phones — not simply putting them on silent, because they interfere with recording equipment. Also for the benefit of Hansard, I shall be making sure we do not have two people speaking at once, as far as possible. This Committee was established by Tynwald in February 2012 with the following remit: 10 `That Tynwald appoints a Committee of three Members with powers to take written and oral evidence pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to investigate the Kirk Michael School Land Exchange Agreement between Heritage Homes, Pinecrest Investments Ltd and the Department of Education and Children; whether by January 2011 access to the land had been secured, as was stated at that time, by the Hon. 15 Member for Ayre; the manner in which the negotiations were conducted; and the value for money achieved; and to report with recommendations by May 2012.'

We issued a call for evidence in March and are grateful to all members of the public who have responded. On 10th May, we heard oral evidence of the former MHK for Michael, Mr David 20 Cannan and the current MHK for Michael, Mr Alf Cannan. This is our second public meeting and today we are hearing from two distinguished witnesses, the Hon. Eddie Teare MHK and Mr Stuart Dobson. Thank you very much gentlemen for meeting with the Committee this morning, and welcome to you.

EVIDENCE OF HON. W E TEARE MHK AND MR S DOBSON

Q63. The Chairman: If I could begin, Mr Dobson, just for purposes of clarification on the 30 roles and responsibilities within the Department. Following our last hearing, there was some confusion, I do not think on our part, but in various quarters about the role and responsibilities within the Department, as to who was the Director of Education at the time of the agreement. Could I just ask you, for the record, Mr Dobson, to clarify matters?

35 Mr Dobson: Yes, sure. Until 31st December 2010, my predecessor, Mr John Cain was Director of Education. On his retirement the post changed to Chief Executive Officer, which is the post I now hold. So I took up post on 1st February 2011 and I had covered in the meantime. Since then, in terms of securing the future of the Department, we have changed the name of a post, but not the grading or salary — I wish to put in — and we have created the post of Director of 40 Education from the old Senior Adviser post. This is because for my post, there is no requirement for there to be an educational background and it was a way of securing an educational background into the top management of the DEC. Martin Barrow now holds that post, which is what caused the confusion, because Martin, who has never had anything to do with the Kirk Michael land exchange, was named in the newspaper. 45 Q64. The Chairman: Thank you. During the period Mr John Cain was Director of Education, until 2010, you were Deputy Director?

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Mr Dobson: Part of the time of this, but I came to the Isle of Man in November 2005, and for 50 most of the time held the post of Senior Adviser in the Schools Quality Assurance Division.

Q65. The Chairman: Yes, thank you. But ultimately you were Deputy Director.

Mr Dobson: I was the Deputy Director for just over a year. 55 Q66. The Chairman: That is fine, thank you very much, which covers the period in question. Could I ask you to describe the division of responsibilities between the Minister and civil servants, officers of your Department, in putting together this Agreement — who was responsible within the Department? 60 Mr Dobson: Within the Department, a number of officers are there to advise the Minister in the decision-making processes. The usual course of events is that the Department collectively would make any decisions on the future. My job, yes, currently, as Chief Executive Officer, is to make sure that the advice given to Ministers is as good as we feel it can be. We are not in a 65 position to impose advice, but what we can do... If I ever thought advice was not being taken, I would register that fact in writing. I have not had cause to do that. We do have an Estates Director, who was very much more closely involved over the entire period on this — that is Mr Richard Collister, who is named in many of the papers.

70 Q67. The Chairman: And the Estates Director, his name was?

Mr Dobson: Richard Collister.

The Chairman: Richard Collister. 75 Mr Dobson: Was and is.

Q68. The Chairman: And during the period in question, he advised the Director and the Minister — 80 Mr Dobson: Yes, that is his role.

Q69. The Chairman: — in the lead-up to the... Would he be the lead officer of the Department

85 Mr Dobson: On Estates, yes.

The Chairman: — on Estates, as far as any negotiations were concerned?

90 Mr Dobson: Mr Collister was involved in the meetings — in some of the meetings, anyway — with Pinecrest and Heritage Homes. To the best of my recollection, I do not think I was involved in any of them.

Q70. The Chairman: Thank you very much. 95 Just turning to the Agreement itself, Minister, if I perhaps, could invite you...? Do you wish to make any opening statement? Thank you for your written evidence and the written evidence from the Department and just to confirm we have closely looked at that and do thank you for that. Is there anything by way of opening statement, Mr Teare, you wish to make at this stage? 100 The Minister for Education and Children (Mr Teare): There is nothing that I wish to add, Mr Chairman, to my original statement, but just to thank the Committee for reorganising this public hearing. It is very much appreciated.

105 Q71. The Chairman: Thank you. In that case Minister could I perhaps begin by asking you, what was your motivation to undertake this particular deal with Heritage Homes? Was the motivation right and proper?

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Mr Teare: Right. There were two main motivations. The first was potential damage limitation 110 to the school and the impact of the development on the school and the second one was to secure the best possible arrangement for the taxpayer, knowing full well that they already had alternative access.

Q72. The Chairman: In May 2007, Mrs Craine, your predecessor told the Keys that the 115 potential disadvantages to Kirk Michael outweighed the possible benefits to the school in terms of the deal, the offer that was on the table at that time. You clearly took a different view. Why was that?

Mr Teare: I took a view from the overall financial advantages to the taxpayer. 120 Q73. The Chairman: Could you elaborate on that?

Mr Teare: There are two aspects to it. The first is the additional land gain; and secondly, the opportunity, if there was further development in the area, for the taxpayer to participate in the land 125 value.

Q74. The Chairman: So you reached a different conclusion from Mrs Craine on the value to the school and the community of Kirk Michael. She clearly believed that the overall advantage to the Kirk Michael community was to leave things as they were. The public meetings that were held 130 at that time over the question of development of the land behind the school — she obviously felt that the matter should be put to bed and any question of a land swap just put to one side.

Mr Teare: Since her announcement, the developers had gained alternative access. They had secured property on the south side of the land, going onto the Douglas Road, and additionally I 135 was having a look at the overall impact upon the taxpayer, and I feel that this deal has and will deliver very significant financial benefits to the taxpayer as well.

Q75. The Chairman: As to the motivation for the deal, in terms of protecting the school, could you say something about how you felt this land swap would protect the interests of the 140 school?

Mr Teare: There would be a considerable investment in new play facilities in the area. Also, the development would move further back from the boundary wall of the school, because whilst these matters are determined by planning issues, it would give us more certainty by entering into 145 this land swap.

Q76. The Chairman: Yes. What I am really getting at... What was the threat to the school, in terms of future development in the fields surrounding it, that this land swap was designed to avoid? 150 Mr Teare: Building right up to the boundary wall.

Q77. The Chairman: What would the effect of that have been on the school itself?

155 Mr Teare: There is always the risk of neighbours complaining — we really need to have an adequate boundary between a house and the school playing facilities — and also this enabled the Department to gain an additional 1.1 acre of land.

Q78. The Chairman: Why was that important? 160 Mr Teare: Because it gives extra play area for the children. It also gives extra room, should it ever be required, for the school to expand. The current Member for Michael did say it is important — in terms of a Question he put down — for schools to have as much play area as possible.

165 Q79. The Chairman: In terms of the threat to the school, of development going right up to the boundary of the school, do you not believe that the planning process itself, with the requirements for creation of open space and neighbourliness, would itself have taken account of that possibility and there would have been planning conditions set down to ensure that there was no adverse impact of the school on the development and vice versa?

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170 Mr Teare: I did say that that was a planning matter, sir, certainly in my earlier answer, but I also mentioned that the deal brought certainty.

Q80. The Chairman: On the question of the potential for expansion of the school, could I ask you to make comment? We have been given evidence on the history of building at Kirk Michael 175 School. In 2002, when the school roll was 138, two new classrooms and a new sports hall were opened that had been in the Department's programme for a number of years, with the object of providing for future development in the village; in 2002, two new classrooms, community room, sports hall facility. Given that, what was the compelling need to provide for future expansion? 180 Mr Teare: It was because I cannot accurately forecast for the future. It is always better to have plan B arranged.

Q81. The Chairman: The history over the last 10 years or so has been one of declining school roll down to 128,10 years later, and as you advised in Tynwald in March 2011, you confirmed that 185 those two classrooms were empty at that time and had been offered to the Ramsey Group Practice as possible doctors' facilities in Kirk Michael. Given that for 10 years, then, the provision had been made for the school for extra classrooms and they were not needed, were they? So why was it considered important, given that, to make even more provision?

190 Mr Teare: I think really, these two threads are getting interlined, but basically, when I made the proposal that perhaps there could be a GP surgery sited there, it gave the opportunity for the demand for a GP surgery in Kirk Michael to be established. It had not been established beforehand. There was a very strong, local, vocal case for it, but the actual physical demand had not been established, so on a temporary basis for a period of years, we did have the capacity there. 195 But I am sure that the Committee will recognise that, in the latest census, there has been a surprisingly high increase in the number of primary-age children who are now coming forward into the school system, and my understanding is that, if they all came in, we would need to deliver an additional five primary-school classes. 200 The Chairman: Mrs Cannell.

Q82. Mrs Cannell: Yes, thank you, Mr Speaker. Can I just ask you, though... You were Health Minister at the time and you recognise that there had been expansion of Kirk Michael School to provide, as Mr Speaker has said, but including two 205 classrooms which at that time and today are still unoccupied. So there is room, would you not agree, for the school to expand now? They have two empty classrooms there, and on top of that, of course, we have evidence that the school roll has fallen from 138 to 128. Accepting what you have just said, that the census does predict an increase in births and therefore primary age children over the next three to four years, it does not actually differentiate in terms of which area there is going 210 to be the greatest demand; it is just the census figure is an overall Island census figure. Are you suggesting, therefore, that not only the two empty classrooms as at present, but further classrooms will be required at Kirk Michael School because you are suggesting that there is going to be a baby boom there? Is that what you are saying?

215 Mr Teare: What I am saying is that we always need to plan ahead and not just look at the next five or 10 years — we need to look firmly ahead. Could I respectfully draw the Committee's attention to an issue which has happened in Ballaugh? The development has completely surrounded the school now, and if there was any additional development in the area it would put the Department of Education and Children in a 220 very difficult position because they would not be able to accommodate a substantial increase in the number of children in that school, so the children would either have to go to Jurby or Sulby. So we need to plan ahead, and that is the point I am making: we need to plan ahead on a long-term basis. I would just go back to something which you said, Mrs Cannell. You said that the census predicts increase in births. It does not. The census is based on actual facts: the births are here. 225 Q83. Mrs Cannell: Yes, okay, thank you for correcting me. If I can just have another question for the present time — you said that your reasons why your motivation was so strong, in terms of keeping this deal, or resurrecting this deal after a previous Minister put an end to it all, was that you wanted to increase and provide new play facilities. You 230 were concerned that the developer might build up to the boundary wall. If this deal goes ahead and

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the school acquires the additional land, there is nothing to prevent the developer from building up to that boundary wall, is there? So that is not really sufficient enough reason, is it?

Mr Teare: I think it is and — 235 Mrs Cannell: You think it is?

Mr Teare: — really, what we are talking about here in many areas is a subjective view and I acknowledge that. I felt that this deal was good for the taxpayer overall. 240 Q84. Mrs Cannel: So it was a financial consideration, rather than a community consideration.

Mr Teare: That was part of it. It was the wider issues and, once again, if I could draw the Committee's attention to events which happened down in Ballasalla, the Isle of Man Government 245 was held and was required to make a financial recompense for a ransom strip down there. I did not want us to be in a similar position in Kirk Michael. I think that Government as a whole, needs to learn from things that have gone on in the past.

Q85. The Chairman: Thank you. 250 Can I just follow up on the motivation, the protection of the school's interests, just to be clear. When you, in 2010, came into the Department and the deal was resurrected, what were the Department's projections and figures for school population expansion in Kirk Michael, on which you based the decision that the Department could not afford to see the school landlocked, notwithstanding two existing classrooms, not used, lying empty for eight or nine years and not 255 required? What were the figures before you that led you to conclude that, notwithstanding that, provision still had to be made for expansion of the school?

Mr Teare: If I could go back to something I said before, we were planning on a long-term basis, to get our contingency plans in place. Certainly there was not any predicted growth in the 260 short term — and I acknowledge that — but we had to take a long-term view.

Q86. The Chairman: And what was the predicted growth, in the longer term, on which you made the decision?

265 Mr Teare: That was my subjective view.

Q87. The Chairman: So there were not particular figures —

Mr Teare: No, there were not. 270 The Chairman: — before the Department that led you to conclude that we must strike a deal here to protect the school, notwithstanding we had already made provision for growth that has not been utilised, there has been no need for it? Are you saying it was purely guesswork as to what the future might hold? 275 Mr Teare: I said it is subjective and we need to plan for the future to cover all possible contingencies. I did say, earlier on, that this brought immediate financial benefits as well, in terms of an additional fully serviced play area, fully drained, up to modern standards, up to standards which the Department of Education would be seeking. 280 It does bring considerable overall advantages not only for the future, sir, but for the present as well.

Q88. The Chairman: We will come back to the playing field. Mr Dobson, do you want to come in? 285 Mr Dobson: Yes, just that we do not completely go on guesswork on numbers, but one thing... When housing developments happen, they have a different educational output, depending on the type of houses that are being built, and even within Peel, we can zone it to say the larger detached houses do not actually turn out that many children, not for primary age; whereas, when it is first- 290 time buyer housing...

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One of the problems we have with this kind of projection... As a rule of thumb, on 100 houses we would be looking at four-point-something children per year group, but only after the fifth year, so there is a time lag because basically people are mortgaged up to the hilt and they do not have children until their personal economy catches up. 295 I have not found it to be as easily predictable as other areas that I have worked in, and what we have got to do in the Isle of Man is look at the effect of similar developments, and the closest similar development is the one in Peel, which has indeed given us... Approximately, it is now coming out at 10 to 15 children per year in addition to what we always had in Peel. So it is a best guess, I admit that. It would be lovely to have the capability — not personally, but 300 just across the Department — to have firm predictions, but until you actually get a clear indication of exactly the types of housing that are going to be there — whether it is first-time buyer or what it is going to be — it is quite an inexact science; but we do look at numbers and we can predict broadly that eventually this would put about 40 extra children in — 305 Q89. The Chairman: If 100 houses had gone ahead, what were the — ?

Mr Dobson: Forty. We would predict over a 10-year period, we would have at least 40 more children — (The Chairman: Forty?) into the primary school. 310 Q90. The Chairman: So the school roll would be expected to go up from 128, possibly to —

Mr Dobson: To 170.

Q91. The Chairman: To 170. For which two classrooms that had been built, would have 315 adequately provided?

Mr Dobson: Well, yes, I think that Kirk Michael is an interesting school, because it is a mix of a very old building and a new extension. The new extension is fully used, or it was when I was there. The classrooms that are less used are on the front of the building by the car park and closest 320 to the main road. Having said that, Michael School does not have some of the things that other schools do have. They do not have a separate eating facility, they do not have a library, and so on.

The Chairman: So the motivation was to protect — 325 Mr Dobson: It is not an ideal school, is what I am saying to you.

Q92. The Chairman: Not an ideal school. There were two motivations to provide for the future physical expansion of school buildings, beyond what you have got, and that was on a long- 330 term belief that that would be needed; secondly, in the interests of the taxpayer, to have improvements made to the existing — or to replacement — playing field. Could you say something a bit more, Minister, about that? How was the future playing field with its improvements, how would that compare with the existing playing field on the present site?

335 Mr Teare: Thank you, Mr Chairman. It would give the playing field more resilience in bad weather conditions, it would be properly drained and also it would be properly fitted out for modern sports facilities. We are looking at total investment — not by the taxpayer, I have to add — of between £300,000 and £400,000 in actually delivering a purpose-built sports facility for the school. 340 Q93. The Chairman: Turning back to the improvements to the playing field that were to be made by Heritage Homes. In the file notes of August 2010, Mr Collister, Director of Estates, following a discussion with Heritage Homes, the file note says that Heritage Homes:

345 'acknowledge that this [the deal on the table] was a lesser deal than was previously on the table. They confirm that since they have now secured the alternative route at significant exceptional cost, the money was no longer in the development appraisal to offer the new drained pitch, playground, fencing, walling, access, steps, ramps, etc previously negotiated.'

350 It does not appear... Did events — ?

Mr Teare: Events moved on, sir.

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The Chairman: Events moved on from that.

355 Mr Teare: Because there was a critical time towards the end of July, beginning of August 2011. I was putting pressure on them to improve their deal and they were given 24 hours to improve it, otherwise we would walk away from it. So we got a better deal and I think that is confirmed by the opinion we got back from the Government Valuer.

360 Q94. The Chairman: What is wrong with the existing playing field and sports facilities?

Mr Teare: Like everything else, it could be better and this was an opportunity to make it better.

365 Q95. The Chairman: So it was of overriding importance to strike a deal that improved the playing fields for the benefit of the Kirk Michael community; but clearly, your predecessor felt that the Kirk Michael community's interest was better preserved by stopping... not doing a land swap to allow the development to go ahead?

370 Mr Teare: The important thing that should be remembered, I would respectfully say, is that the circumstances have changed — or had changed, because the developer had spent a significant amount of money improving the access off the Lhergy Vreck road. They secured an option and they paid virtually double the market price for a bungalow on the north side of that road to give them the visibility. 375 Q96. The Chairman: We will come on to the alternative access shortly. Perhaps to conclude this discussion we are having about the background to and the need for the Agreement, the Agreement was signed on 16th August 2011 and the House of Keys was dissolved on the 18th. Is there any significance in the Agreement being signed at a time when the Keys was 380 about to be dissolved?

Mr Teare: None at all, but I was conscious that the Department had spent a considerable amount of work on it and I did not really want this to go on to the next administration. It was just a case of 'let's get this resolved and we can then move on.' Nothing more than that. 385 The Chairman: Thank you. Can I invite Mr Turner. We want to talk a little bit now about the alternative access and whether, by January 2011 — the time of the Tynwald debate — the alternative access, which was motivating and driving forward the negotiations, had been secured. 390 Mr Turner.

Q97. Mr Turner: Thank you, Mr Speaker. Mr Teare, you said, in Tynwald on 18th January, that 'access to the lane has been secured', which you have just indicated — 395 Mrs Cannell and the Speaker: The land.

Mr Turner: Sorry, 'to the land has been secured', by the properties. You said:

400 `That is a done deal and, subject to the planning process, development will occur.'

Do you still stand by that statement?

Mr Teare: I stand by it, yes, I do, because the developer had made a major investment — some 405 would say a speculative investment, bearing in mind that they only had an option over this land, so it was a very bold move, I would suggest, on their part.

Q98. Mr Turner: When did you become aware that this potential alternative access was available? 410 Mr Teare: Not long after I came into the Department and the issue was raised with me.

Q99. Mr Turner: Who made you aware of that, can you recall?

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Mr Teare: If I could just wind back a bit, I was involved in a constituency planning matter and 415 one of the parties — the constituent's architect — happened to be the same architect who was acting for Pinecrest. We just had a general discussion. The subject came up: 'now there has been a change in administration at Education, would the Department be prepared to have a look at the deal again?' I said, 'Well, if you want to try, fine.' They then came back through my Director of Estates at the time. 420 Q100. The Chairman: The timeline of events, which you have helpfully put in as part of the Department's evidence, indicated, before you took office, that in November 2008 the landowner approached the Department to gauge the appetite for purchase of land adjacent to the school. Can you just confirm that there were, in fact, other discussions going on by the Department with the 425 developer when Mrs Craine was still the Minister?

Mr Teare: I am not able to do that, sir, because I was not the Minister and I have not gone back that far. 430 Q101. The Chairman: I could ask the Director of Education the same question.

Mr Dobson: Sorry, could you just clarify what the question was about.

Q102. The Chairman: Yes, what happened, of course, was that in early 2007, Minister Craine 435 announced that she had declined the proposal for the land exchange, because of the potential disadvantages to Kirk Michael. She was in office until April 2010, but during her period as Minister, I am asking you to confirm that the Estates Director and the Department was in continuing discussion with Heritage Homes?

440 Mr Dobson: This shows the level of my recall that the landowner's daughter approached the Department, as far as I recollect, the landowner's daughter approached again and it is as described in November 2008, approached the Department to gauge appetite for purchase of the land, but the valuation was so high, the Director of Estates considered it so high, he confirmed that there was no interest in purchasing the land. My recollection is that the discussion around that was it was about 445 selling a piece of land to the school.

Q103. The Chairman: Yes. So, in 2008 and 2009, there were meetings and discussions by the Department with the landowner. (Mr Dobson: Yes.) This is in the evidence from the Department.

450 Mr Dobson: Yes, yes, the numbering.

Q104. The Chairman: So that was going on against the background that the then Minister had drawn a line under any future development.

455 Mr Dobson: Yes, it was a separate approach.

Q105. The Chairman: So it was a separate approach, and this is before Mr Teare came in.

Mr Dobson: Before Mr Teare came in, yes. The dates are pretty clear. 460 Q106. The Chairman: Therefore, who initiated those approaches, discussions, with — ?

Mr Dobson: The landowner.

465 The Chairman: So the landowner —

Mr Dobson: Approached the Department.

Q107. The Chairman: And who did they deal with in the Department? 470 Mr Dobson: They would have dealt with the then Minister and the Director of Estates, who would have advised the Minister on that.

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Q108. The Chairman: The then Minister being Mrs Craine. Is there evidence that Mrs Craine 475 was involved in those discussions?

Mr Dobson: The only source I would have of that is to go back to the Department minutes for that period, to look at those, and I am sorry but I do not have those with me. I can supply you with that information. 480 Q109. The Chairman: We have a note that, in December 2008, the Department confirmed that the Estates Director would progress dialogue (Mr Dobson: Yes.) regarding purchasing the 1.95 acres, so the Department had sanctioned those discussions to take place.

485 Mr Dobson: I would have to go back —

Q110. The Chairman: And in January 2009, shortly after, the Estates Director and Government Valuer met with the landowner to discuss the valuation of the land and a potential way forward. 490 Mr Dobson: Yes, 'Not forthcoming — dialogue stalled.' I think it just ended. It just petered out. My recollection is that it petered out, but I was not involved, so I have personal recollection.

Q111. The Chairman: The then Director of Education, would he have been involved? 495 Mr Dobson: He would have been advising the Minister, yes.

Q112. The Chairman: He would have been advising the Minister, and Minister Craine, having made the statement that the land swap was off the table... I am just trying to reconcile that 500 with the continuation within the Department of discussions.

Mr Dobson: Okay, I am just reading the notes, but this is a different thing, isn't it? This is about, rather than a land swap, which initially was there and that was... I think we are saying this is the access into the development, this is simply from Pinecrest, purchasing another area of land. 505 In the original dialogue, when this was first raised and dismissed by the then Minister, it was obvious that if they still could gain additional land and a better playing field, then they would be willing to do that and there was obviously an interest there, otherwise there would have been no interest in the first place. My reading of this is that this is a separate issue, which was just 'does the Government or Department on behalf of the school wish to purchase that strip of land?' 510 Q113. The Chairman: Right, so it was purely concerned — (Interjection) Just to clarify, it was nothing to do with a potential exchange at that point —

Mr Dobson: That had been rejected. 515 Q114. The Chairman: Yes, the Department was strategically interested in purchasing 1.95 acres, I think it was, of land — for what reason?

Mr Dobson: Improving the playing fields. 520 The Chairman: To improve the playing fields.

Mr Dobson: And improving facilities for parking —

525 The Chairman: Right. Mr Turner.

Q115. Mr Turner: Thank you. Were there any discussions in the Department? The Minister at the time, Mrs Craine, turned down the land swap for what I refer to as the 'triangle' of the playing field, which was to be the proposal of what the developer required, because of the disadvantages to 530 the village. Was she referring...? Is there any recollection of discussions in the Department? Was the disadvantage the fact that the triangle was going to be given up, or the fact that there was a development, because if the proposals had been rejected, why was this triangle so important and going to be so detrimental to the village? Do you recall any discussions?

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535 Mr Dobson: I think I would be hypothesising if I said anything. You have to remember that, at the time I was head of the improvement service and therefore would only have been in part of Department meetings. I am sorry. I am not hiding behind this; I am just saying I was not there and I do not know. 540 Q116. Mr Turner: Because obviously, the whole purpose that it was turned down was because of the disadvantages to the village, so it just strikes me that there is much importance being given on this triangle, whereas permission was then granted to go and discuss purchasing the land, when on the face of it there was an option to get that land for free in return for the triangle. It was what importance was given to this triangle of land? 545 Mr Dobson: My recollection is that, during the original discussions, there was a public meeting with the various plans displayed in Kirk Michael School, which I attended as a resident. The public opinion which came after that — and I believe was co-ordinated by the Commissioners — was that public opinion was, at that time, not hugely a majority, but was against that going 550 forward. My recollection is that Mrs Craine's view at the time was that therefore we will not pursue this at this time.

Q117. Mr Turner: Sorry, the land swap would not go forward, or was it that they just did not want the development? 555 Mr Dobson: The land swap just... The debate, as I recall it — as I say, from a slightly removed position — was about the land swap, and thereby access.

Q118. Mr Turner: What was the motivation for that — that the reality was that they just did 560 not want the development and to object to the land swap was a way of thwarting the development? What was the opinion of the meeting?

Mr Dobson: Do you want me to talk about the conversations in Kirk Michael that I have heard, or do you want me to talk about what I heard in the Department? 565 Q119. Mr Turner: I am just trying to work out the motivation for the objection — whether it was objecting to the school swapping the land, or whether the real reason was that they objected to the development. 570 Mr Dobson: There was strong resistance to the development of the land, I would say. That would be my view.

Q120. Mr Turner: And objecting to the school land swap deal was a way of stalling the development. 575 Mr Dobson: It would have had that effect, yes.

Q121. The Chairman: Thank you. Just moving on, Mr Teare, you were appointed in April 2010 and in your evidence, you have 580 told us that you were approached by the landowner to discuss possible land swap options. I just want you to tell us a little bit more about those discussions and what was different, what had changed. We touched earlier upon the fact that Heritage Homes was now claiming an alternative access and that therefore the ransom strip that the Department previously held and the very strong financial card they were in a position to play... The situation now changed, and yet a land swap 585 was back on the table. Just give us the background to that, if you would.

Mr Teare: Yes, I will, but before doing so, I think it is interesting to reflect that the Department was trying to obtain additional land for the school before I arrived, before I became Minister. The transaction that was finally agreed gave us that land at no cost. I think really, that 590 that is a significant factor overall. If I could go back, Mr Chairman, you did say that Heritage Homes were claiming that they had alternative access, and it was already in the public domain through deeds which had been filed at the Deeds Registry that they had alternative access. 595 Q122. The Chairman: Was that access capable of translating into an approved traffic access?

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Mr Teare: That was a planning matter, but basically, we were working to get clarification from the Department of Infrastructure and before the transaction was actually signed, we had confirmation that they had agreement from the road traffic authorities that they had got access for just under 100 units, served by that access. 600 Q123. The Chairman: Right. There are two aspects, I think to this then. There is the acquisition of properties to make Lhergy Vreck and there were options to purchase and they had taken place. Knock y Tholt and land at the rear of Greystones had been purchased in December 2008 and July of that year Heritage Homes had purchased Westlands, therefore in the discussions, 605 you were given to understand that the necessary purchase of properties had taken place to allow alternative access. Can I ask what you did to check that out? Did you check the veracity of the claim of the property ownership to permit a new access?

Mr Teare: It was public knowledge, sir. It was recorded in the Deeds Registry and I have 610 supplied copies of the — I think I have anyway — certificates of registration.

Q124. The Chairman: Okay, when in February 2012, following the inquiry, Heritage Homes put out a press release saying, 'We were required by Minister Teare to provide irrefutable proof that we could access the land to the rear of the school via an alternative access.' What form did 615 that requirement take? What was the 'irrefutable proof' that they were asked to provide?

Mr Teare: We got confirmation from the road traffic authorities confirming that that was acceptable, albeit for a limited number of units to be serviced by that access. Also, if I could reflect, the options and the purchase occurred, subsequent to my predecessor's decision not to 620 proceed, so the whole situation had changed.

Q125. The Chairman: Because of the alternative access that would have allowed development to take place and Mr Turner's question about you saying in Tynwald on 18th January 2011, access to the land has been secured; that is a done deal; development will occur, i.e. the 625 alternative access.

Mr Teare: Correct, sir.

Q126. The Chairman: I am just trying to, just want to know whether you took the 630 Department... you took Heritage Homes', the developer's word for it, or did you check out that they did have this alternative access?

Mr Teare: I prefer to do my own research, sir.

635 Q127. The Chairman: And what form did that take?

Mr Teare: Basically, check it is public knowledge — anybody can go to the Deeds Registry and check.

640 Q128. The Chairman: So the Department checked with the Deeds Registry?

Mr Teare: We check, but we check again, before we actually sign any agreement. You check to make sure and that is the important thing, I would respectfully suggest, during the course of negotiations: you discuss matters, one party will make assertions and then, as you move closer to 645 finalising the agreement, you go back and check again.

Q129. The Chairman: So you carried out due diligence, as far as you and the Department were concerned? 650 Mr Teare: You have to, yes.

Q130. The Chairman: So you were satisfied that the properties were shown in the Deeds Registry and the Land Registry, that they had been acquired by Heritage Homes. In your written evidence, you say that, in November and December 2010, telephone 655 conversations with Highways regarding access to the site from the Lhergy Vreck Road... Can you tell us more about those conversations and were they followed up in writing?

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Mr Teare: I had various conversations with them and I have to admit it was difficult to get them pinned down to exactly what their reaction would be, but certainly before we signed the Agreement we had clarity on what their reaction would be. 660 Q131. The Chairman: Did you have anything in writing from the Highways department to confirm that the access at Lhergy Vreck had their approval, they were satisfied?

Mr Teare: Before we signed the Agreement. 665 Q132. The Chairman: Did you have that in writing? Were your telephone conversations followed up in writing?

Mr Teare: No, sorry, we are getting crossed paths here. Before the Agreement was signed, 670 these were the initial discussions with the traffic authorities: 'is this acceptable for access into the site?' They were working on it, we clarified it with them and we got their confirmation before the Agreement was signed.

Mr Dobson: In April, I think it was. 675 The Chairman: Mr Dobson.

Mr Dobson: I think it was in April we got the... There is a written record of the fact that Highways had approved for I think it was up to 100 dwellings. 680 The Chairman: In April —

Mr Dobson: 2011.

685 Mr Dobson: That is the piece of written evidence I can find.

Q133. The Chairman: In April 2011. That was after the Tynwald debate of January 2011, when your Minister informed Tynwald that access to the land had been secured. How could it have been secured, if Highways did not give written confirmation until April 2011? 690 Mr Teare: Basically, because of the fact that they had purchased these and had options over these properties at the entrance to the Lhergy Vreck Road. They had access and that was confirmed in the same debate by the previous Member for Michael, it is on Hansard.

695 Q134. The Chairman: But at the time of the debate you did not have irrefutable proof that there was a highway-approved access?

Mr Teare: I did not have irrefutable proof, but as I said before, we had written evidence and written confirmation, I would say, before the Agreement was signed. 700 Mr Dobson: In April, I think it was.

The Chairman: Mr Dobson.

705 Mr Dobson: I think it was in April we got the... There is a written record of the fact that Highways had approved for... I think it was up to 100 dwellings.

The Chairman: In April —

710 Mr Dobson: 2011. That is the piece of written evidence I can find.

Q135. The Chairman: In April 2011. That was after the Tynwald debate of January 2011, when your Minister informed Tynwald that access to the land had been secured. How could it have been secured, if Highways did not give written confirmation until April 2011? 715

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Mr Teare: Basically, because of the fact that they had purchase these and had options over these properties at the entrance to the Lhergy Vreck Road. They had access and that was confirmed in the same debate by the previous Member for Michael, it is on Hansard. 720 Q136. The Chairman: But at the time of the debate you did not have irrefutable proof that there was a Highway-approved access?

Mr Teare: I did not have irrefutable proof, but as I said before, we had written evidence and written confirmation, I would say, before the Agreement was signed. 725 Q137. The Chairman: Can I draw your attention... You will be familiar, of course, with the inspector's written report following the inquiry, the one that went to the Council of Ministers and the statement within it, paragraph 114. Referring to the alternative access, the inspector in his written report said: 730 'The present proposals explored such an access at Cass a Lergy where Heritage Homes Ltd purchased Douglas Road properties backing onto the southern end of the site. The company was, however, unable to obtain control of sufficient frontage to satisfy the Highway Authority's visibility requirements.' 735 It was on the deficiencies in the access at Douglas Road corner, of course, in which the planning application, in large part, failed, but what this is talking about is the alternative access. The inspector clearly said that there was not control of sufficient frontage to satisfy the Highway Authority. Was the inspector wrong? 740 Mr Teare: Yes, and I would respectfully say that he was, because, in a letter sent by Heritage Homes to the Chief Secretary on 2nd March 2012 Heritage Homes says and I quote: 'This is fundamentally incorrect.'

Q138. The Chairman: So the inspector, in saying that, had basically got it wrong? 745 Mr Teare: That is what Heritage Homes are saying and I repeat again, 'This is fundamentally incorrect.'

Q139. The Chairman: They said that, but was that supported by proof, written evidence from 750 the Highways department that there was an access? It is two diametrically opposed things here.

Mr Teare: It is, but we got evidence in April 2011 that the Highway Authorities had agreed to it. We had that written evidence and I would say that that evidence probably was not before the independent inspector, so he would not be aware of it. 755 I am quite happy to share a copy of this letter with the Committee, if you think that will be helpful, sir.

The Chairman: Thank you very much. Mr Turner. 760 Q140. Mr Turner: For clarity, Mr Chairman, was it the case then that the planning inspector's comment regarding insufficient frontage was based on an application for a higher number of properties — that was what the planning inspector was dealing with — whereas Highways subsequently came back and said there was sufficient access at that point for the lower number of 765 dwellings, which of course was not before the planning inspector for consideration? How did you view the fact that there was this risk that the alternative access could be made available if they re- jigged their plans? Was it still a risk that the Department's position was somewhat weakened?

Mr Teare: It was undoubtedly weakened. The fact that they had spent a considerable amount 770 of money, well in excess of market rates, to acquire access, or to acquire a wide visibility splay there, did materially impact upon the Department's position and as I said at the outset, part of my action really, was damage limitation.

Q141. Mr Turner: So the impact to the Department really, would be the same, whether there 775 were 100 or 150 dwellings — the fact is there would still be a development and you would still not have the extra land?

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Mr Teare: We would not have the extra land that the Department, through previous negotiations, when I was not the Minister, was anxious to secure. As I say, this was damage limitation and it gave us the option to acquire the land and also to improve the facilities available 780 for our young people.

The Chairman: Thank you. Mrs Cannell. 785 Q142. Mrs Cannell: Yes, thank you. Going back to what you said before that the inspector was wrong and Heritage Homes were right: if it is viewed that the inspector's report was wrong, why did the Council of Ministers accept it and concur with the conclusion of the inspector and give refusal to the planning application?

790 Mr Teare: Firstly, let me make it abundantly clear, because of my involvement with this, I absented myself from the Council of Ministers' decision. I withdrew from the chamber and had no involvement whatsoever in this decision. But the Council of Ministers would be decided, would be influenced by the inspector's recommendation right at the end. As the inspector goes through his Report, he builds up his case 795 for the recommendation and then it is up to the Council of Ministers to focus on that recommendation and to decide, do they accept it, or do they not accept it? Heritage Homes: I have quoted from Heritage Homes' letter and Heritage Homes are saying that this statement in clause 114 is fundamentally incorrect. 800 Q143. Mrs Cannell: Yes, they are saying that, but I am just exploring your readiness to accept what they say, as opposed to a high-ranking, highly qualified planning inspector who presided over a public inquiry. I am just curious to see why you would prefer to believe what Heritage Homes said, because prior to that Mr Speaker was exploring with you the press release that was issued by Heritage Homes. That was in February 2012, and it said: 805 'Prior to entering into the agreement with the Department of Education, we were required by Minister Teare to provide irrefutable proof that we could access the land to the rear of the school...'

You did not really give us a clear indication of what irrefutable proof, other than you do your 810 own checks, you said, and these things are done, but then, just lately, you have said that you did not receive...

'I did not have irrefutable proof at the time of the planning inquiry.' 815 You have confirmed that and Mr Dobson has confirmed that because you only had a formal letter from Highways dated April 2011, which came after the fact.

Mr Teare: No, it did not, because, with respect, the planning inquiry was held towards the end of 2011, and yet on 15th April 2011, we had written confirmation from Highways that the access 820 was acceptable to them.

Q144. Mrs Cannell: If that was the case, why was that not submitted as part of the submission to the inquiry?

825 Mr Teare: I did not submit evidence to the inquiry.

Mrs Cannell: But the Department did.

Mr Teare: The Department was not seeking the planning consent; the developer was. 830 Q145. Mrs Cannell: So are you suggesting, then, that the written confirmation coming from Highways dated April 2011 was only in the possession of the Department of Education and had not been shared with the developer the Department was very keen to go into negotiation with?

835 Mr Teare: No, the developer —

Mrs Cannell: To come to an agreement with.

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Mr Teare: Sorry, it is up to the developer to present their own case as they feel fit. It would be entirely inappropriate for any Government Department to interfere with it, I would suggest. This is 840 an independent process that stands outside Government.

Q146. Mrs Cannell: Minister, accepting all of that, you said earlier that you put a lot of pressure onto Heritage Homes between July and August — a lot of pressure to improve the deal that was on the table — you were very keen for this deal to go ahead, and that prior to giving a 845 commitment to signing the agreement to do the land swap with the developer, you also pushed Highways and you said it was quite difficult to actually get them to give confirmation one way or the other, as to whether or not the access would be acceptable. You said that the only formal indication came in April 2011, but April 2011 came after the debate where you informed Tynwald that in fact all of this had been achieved and there was irrefutable proof. 850 Mr Teare: Yes, because there was in the Deeds Registry clear evidence that they had acquired property on either side of the Lhergy Vreck Road.

Q147. Mrs Cannell: No, I am not arguing that Minister, I am not arguing that point with you. 855 They may well be unable to provide proof to you, but they are claiming that they had to provide irrefutable proof to you that they had access agreement to that site. This only came by way of letter from Highways in April 2011, bearing in mind, that it is not Heritage Homes or any developer that can say, 'We have access for a highway'; one has to have approval for a highway access and it is only the department of Highways that in fact, could give an indication of that. But 860 you did not achieve that until after the debate in Tynwald.

Mr Teare: I did not achieve it in writing, until after the debate in Tynwald.

Q148. Mrs Cannel!: Quite. So, if it is not in writing, it is really just hearsay, is it not? 865 Mr Teare: No, it is not, because, basically, if you speak to people and get their assurance, it is then followed up in writing later; but I would also draw you to the Hon. Member for Michael's contribution to that debate, when he confirmed that they had access. So he already knew they had access; he said it in the debate. 870 Q149. Mrs Cannell: They may well have regarded themselves as having gained access, because they had paid over the odds or whatever, in fact, to acquire the access, but they did not have approved highway access from Government and surely, as a Minister of a Department, you ought not to be giving assurances to Tynwald that this has been done and that has been done and 875 this is the general position, when you do not have formal clarification of such. (Mr Teare: With respect — ) As a Minister of this Government, should you not have formal clarification on all such matters, before you put your signature to any kind of agreement? 880 Mr Teare: With respect, it is up to me to determine the level of clarification that I need. I got verbal clarification and I was content to rely on that and they followed up in writing in April.

Q150. The Chairman: Thank you, Minister. In May 2011, you had a letter from Dr Naylor about another possible problem with the Lhergy 885 Vreck access, namely the Naylors' rights over the Lhergy Vreck Farm Road. I just wanted to ask, sir, do you understand what you were saying and do you accept that if these claims of prior rights by the Naylors over the road were true, that might have strengthened the Department's position in dealing with Heritage Homes? If there was some element of doubt over the rights of access at Lhergy Vreck, because of the Naylors' pre-existing rights through their deeds, that might have 890 strengthened the Department's position. So did you follow that up?

Mr Teare: No. There was no evidence supplied. We had quite a lot of correspondence at the time, and basically I did suggest to Dr Naylor that he take legal advice, and I heard nothing more. 895 Q151. The Chairman: If his claims were legally substantiated, that would have been of considerable interest to the Department, would it not, in that this new deal becomes increasingly less attractive than the older deal?

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Mr Teare: Arguably, yes, but if you have a look at the final deal that was negotiated with the 900 original deal, the two deals are not very far apart. I think that we negotiated very strongly.

Q152. The Chairman: In the circumstances, the playing field land that Heritage Homes wanted was no longer the ransom strip and, applying Cambridge Stokes formulas for valuing ransom strips, the deal, surely, financially, was not as good as it would have been before. I think it 905 was you who said a golden opportunity had been lost.

Mr Teare: It had, but in the intervening period, from the January debate until the deal was signed, we managed to improve the deal, and I think that we have done well, even if I say it myself. 910 Q153. The Chairman: If the Naylors were right, you might have been able to approve the deal even more, because if there was some doubt over the viability of the Lhergy Vreck access, because of the Naylors' claims, that would have strengthened the Department's hand in negotiating with Heritage Homes over the value of the land which they were desperate to get? 915 Mr Teare: It could well have done, but, as I say, the final deal was very close to the original deal anyway and, as you have said, sir, there are an awful lot of ifs there.

Q154. The Chairman: Which is why we need to enquire, had you exercised due diligence, 920 had you pursued these claims — as they were made, they were on the table. The Naylors identified a possible problem and no doubt you are correct — I am sure you are correct — in advising them to take their own legal advice, but what checks did the Department make, as to whether there was anything in what the Naylors were claiming over restrictions on that Lhergy Vreck access? 925 Mr Teare: They were not even certain themselves, because they say in their letter, 'We simply do not know whether our rights would, or would not...' They were unsure themselves. They were not making any firm assertion.

Q155. The Chairman: Had they taken your advice and gone and seen a lawyer and said, 930 'Have we not got a strong claim here?' that would have been of great interest to the Department.

Mr Teare: And they did not come back.

Q156. The Chairman: So you just let that ride? 935 Mr Teare: You will be aware that there are many letters, many allegations which come forward, and I made what I thought was a helpful suggestion: 'just speak to your legal advisers.'

Q157. The Chairman: Yes. I am just trying to see whether there was any coinciding of 940 interest between the Department's position... They were negotiating with Heritage Homes. The deal that was struck was on the basis of an alternative access, which you were satisfied, the Department was satisfied, held water; and yet we have got a claim that this alternative access might be in some doubt because of the Naylors' deeds and what they were claiming, which had to be tested under proper legal advice, but there would be a close interest in the outcome of that from 945 the Department's point of view. I am just wondering why you did not perhaps follow up with the Naylors: did they take the advice; what was the advice; do you have prior rights over this road that would deny access to others to the detriment of Heritage Homes?

Mr Teare: You have to imagine, or you have to realise, that this letter came in three years after 950 Heritage Homes actually bought the properties and got the option over part of the garden on one side of the Lhergy Vreck Road. I could not imagine anybody spending the sort of money that they have without having done their homework.

Q158. The Chairman: Was it your view, or the Department's view, that the Naylors' claim 955 was essentially a civil matter and not a matter for planning? Did you reach that conclusion, and therefore that was why it did not need to be pursued?

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Mr Teare: You are quite correct, because in fact in planning matters the ownership of the land is not relevant, is it? It is just they have a look at whether that planning proposal is reasonable. 960 They do not have a look at the technical legal rights or wrongs which might underpin it.

Q159. The Chairman: Was that your view at the time, which is why you simply let the matter rest, with you advising the Naylors to take their own legal advice? 965 Mr Teare: And I also advised them to contact Heritage Homes as well, so I felt that I gave them a good steer of what should be done. I could have easily just sent a letter saying, 'I have received your letter and have noted your remarks.' I tried to help.

Q160. Mrs Cannel]: But would it not also, bearing in mind that you were looking for — surely 970 — the best deal for the taxpayer...? That is what you said today, that by writing back to them and inviting them to take their own legal advice and then to come back to you, after they had taken legal advice, would have been sensible and prudent, would it not, if you were looking for a good deal for the taxpayer? Had they come back with legal opinion that did, in fact, say yes, they do have legal rights over this, which will have an impact on any developer or may curb any 975 development, that would have provided you with additional leverage, wouldn't it, to have got an even better deal on the table?

Mr Teare: No, not necessarily, because basically the developers, as I said before, had spent a considerable amount of money on gaining this access and you could not imagine that they would 980 not have not done their due diligence.

Q161. Mrs Carmen: You seem to place an awful lot of reliance upon them doing their due diligence, merely because they tend to be able to splash a lot of money around in acquiring land and developments and options on land. Are you not of the opinion that, as a Minister, you have to 985 make sure, by protecting the public purse, to do your own due diligence and for using whatever additional leverage you can when negotiating with developers, in terms of striking an agreement with them, to get the very best possible deal for the taxpayer that you can?

Mr Teare: And that is exactly what I did. 990 The Chairman: Mr Turner.

Q162. Mr Turner: Thank you, Mr Chairman. Was there much correspondence with the Naylors, or was there just that one instance? 995 Mr Teare: As far as I can recollect, there was just that one and there was no follow-up from either the Department or Dr and Mrs Naylor.

Q163. Mr Turner: So they had not raised concerns — 1000 Mr Teare: There was nothing came back, nothing at all.

Q164. The Chairman: Moving on then, in November 2010 we heard evidence from Mr Cannan that you held what he called 'a secret meeting' with Michael Commissioners: can you tell 1005 us what that was about?

Mr Teare: I just gave a briefing on where we were at the time.

Q165. The Chairman: And was that on your initiative, or had you been in correspondence 1010 with Michael Commissioners?

Mr Teare: It was at my initiative.

Q166. The Chairman: Okay and it was by way of a briefing of where discussions were up to 1015 with Heritage Homes?

Mr Teare: As the representatives of the area, yes.

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Q167. The Chairman: Michael Commissioners had always been very supportive of the 1020 protection of the area around the school, had they not?

Mr Teare: They had, although there were differences of opinion in Michael Commissioners as well.

1025 Q168. The Chairman: The whole deal was up for debate in Tynwald in January 2011 and a motion was tabled by Mr David Cannan, to which you put an amendment and which carried quite overwhelmingly in Tynwald and in that debate, I repeat myself, but I quote you again:

`Access to the land has been secured. That is a done deal and, subject to planning process, development will occur.' 1030 However, earlier that month your office told a Kirk Michael resident that you had agreed in principle, and that you were now finalising the detail of the agreement in principle, was what you said, when you wrote to that resident. Did you know about the January 2011 motion, when you wrote the e-mail on 6th January? 1035 Mr Teare: I cannot recollect. It would be very close to the publication of the Tynwald Order Paper. Sorry, I cannot remember that.

Q169. The Chairman: It was just really to establish whether, when you wrote the e-mail to 1040 the residents that said you had agreed in principle and just finalising the details, you knew there was a motion that, of course, might conceivably have made that a foregone conclusion. I accept what you say, that you cannot recall. Were you advised specifically, do you recall, by Mr Cannan about his motion, or did you simply pick it up from the Tynwald Order Paper? 1045 Mr Teare: I do not recollect being advised, but that is not to say that I was not. Can I just give you the background? Of course you know the Department of Education and Children's office is on Peel Road. I did come into the Tynwald buildings on a regular basis, but my mail from the Clerk of Tynwald's Office is held for me and I collect it every three or four days, so I would not be aware straight away when the Tynwald Order Paper was published. 1050 Q170. The Chairman: Then on the same topic, where you... If you had agreed in principle in January 2011, how is it that in March 2011, you wrote to another resident that 'negotiations are continuing'? There seems to be some discrepancy by what you said in March 2011 'negotiations are continuing' and in Tynwald you said it is 'a done deal'; and, just before Tynwald, you said to 1055 another resident that it had been agreed in principle, but in March you are saying negotiations are continuing. There seems to be some discrepancy.

Mr Teare: That is quite correct, because negotiations continued right up until the 11th hour. The Committee will recall that Dandara were constantly put under pressure to improve the terms 1060 of the deal. So basically, we had agreed in principle there was a deal there to be done, 'now let's work on the finer details and work through it'. In contract terms, there are many stages to a contract, as I am sure the Committee will appreciate.

1065 Q171. The Chairman: So it was not a done deal in January then, was it? The deal was well on its way, but it was not a 'done deal'?

Mr Teare: We had reached in effect the outline of the land to be conveyed — or the land swap — but then there were a lot of other issues, which needed to be resolved by continuing negotiations. 1070 Q172. The Chairman: Okay, but when you said to Tynwald it was a 'done deal; development will occur', which you said in January, that was not right?

Mr Teare: No, sir. The access was a done deal. 1075 Q173. The Chairman: The access was the done deal?

Mr Teare: The access was the done deal. That was the important thing.

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1080 The Chairman: Alright, thank you, yes. Okay. Thank you for clarifying that. Mr Turner?

Mr Turner: I have not got.... 1085 The Chairman: Mrs Cannell?

Q174. Mrs Cannell: Before we move off this particular subject, I just wonder if, in hindsight, looking back, perhaps some of the statements that you have made in Tynwald in respect of this matter, whether, in hindsight, you regret some of the words, perhaps, that you have used in your 1090 statements, that have gone down and been recorded in Hansard ?

Mr Teare: No.

Q175. Mrs Cannell: You do not think you have been economical with the truth? 1095 Mr Teare: No.

Q176. Mrs Cannell: No. So you stand by everything that you have said in Tynwald Court? 1100 Mr Teare: Yes.

Mrs Cannell: Okay, thank you.

Q177. The Chairman: Can I ask, Mr Teare, you seemed to take a considerable, personal 1105 interest or direct interest, as Minister, in this Agreement, why was that?

Mr Teare: Right. It is because of the previous life: I have been dealing with property and land issues in my previous role in my previous employment, so I had an element of experience in these areas and working with my colleagues in the Department, and as a team, we could progress it. 1110 Q178. The Chairman: And you were working with the Director of Education and the Director of Estates. Were they advising you, or were you dealing with much of the negotiating personally?

Mr Teare: You will recall, sir, that the initial negotiations were conducted in 2010, through the 1115 Director of Estates. Then as matters continued, he referred it to me and I said they needed to sharpen their pencil. Over the terms of negotiations, as things got more fraught, we managed to improve the deal, but then, in fairness, the developers needed to speak or have access to the person who is able to make the decision in consultation with his colleagues. 1120 Q179. The Chairman: Okay. Could you just, moving on, tell us a bit about the overage clause that the Department struck with the developer limiting the development to 100 houses. You put in a clause that, in effect, was a covenant over going above that figure. Where did that figure come from and why was it included?

1125 Mr Teare: It was included because we had done our homework and we had found out that if they got planning approval, they would be restricted to 100 units, gaining access from the Lhergy Vreck Road. If they got planning approval for a higher figure, say, the planning conditions were subsequently varied and the Highway Authorities agreed they could have access for, say, another five or ten houses. We wanted to share in the additional development value. 1130 To go back to Mrs Cannell's comment of maximising the return, that was an attempt to maximise the return for the Department.

Q180. The Chairman: If you had allowed more houses, would it not have been to your advantage — under the Cambridge principle, it would have increased the value of the land? 1135 Mr Teare: Okay, sir. Not for the 100 houses, because they already had alternative access from the Lhergy Vreck Road, but if the view of the Department of Infrastructure changed, and they had permitted an increase in the number of units served via the Lhergy Vreck Road, then by putting that overage clause in, it gave us in effect, access to the Cambridge principle. 1140

43 KMLX

SELECT COMMITTEE, THURSDAY, 7th JUNE 2012

The Chairman: Okay, thank you. Can I ask my colleagues if they have any questions?

Q181. Mr Turner: I was just going to go back to the point about the Minister's involvement. Would you say it is fair to say that the reason it had such high-level oversight, was because of the 1145 contentious nature of the whole issue — and it required that?

Mr Teare: Yes, I needed to protect my staff in such a highly-charged atmosphere. I will support, I will protect my staff. 1150 The Chairman: Thank you. Mrs Cannell.

Q182. Mrs Cannell: If I could just explore that a little bit more. I was interested when Mr Speaker was asking about why you took a personal interest in this particular Agreement and you said that you had expertise in this area with your former job. Was that working in the bank? 1155 Mr Teare: Yes. You are quite right to question that and to seek clarification, Hon. Member. Basically, I had responsibility for our property lending portfolio — although I have to say, I did not have any dealing with the relative bonds. So I was fully aware of the principles, the Cambridge principles, how it worked and I have conducted some high-level negotiations. 1160 Q183. Mrs Cannell: So following on from — and thank you for that — your previous answer to Mr Turner, did you step in, possibly because...? Was it because the staff were feeling the pressure from Heritage Homes? It this why you stepped in and took a more personal interest? 1165 Mr Teare: No, nothing of the kind. Basically, what they were looking for, really, is they would come to me and ask for advice, because it was political and practical support. So they come to me, ask my opinion, and I would give them a steer on the way forward. There is no point in them incurring a considerable amount of work and then finding it is to be of no avail. 1170 Q184. Mrs Cannell: But you did say before that, you considered that 'pencils had to be sharpened'. Would you like to clarify that for us?

Mr Teare: That was instructions I gave to Mr Callister, that the deal was not of sufficient financial benefit to us as a whole to enable me to agree to it. That is negotiation. 1175 Q185. Mrs Cannell: Surely, that would just be part of it, wouldn't it? I am wanting to explore the manner of the negotiations that took place, that you took such a personal interest in. It appears, on the face of it, that you actually began to micromanage this particular process, as the Minister. 1180 Mr Teare: Not at all.

Q186. Mrs Cannell: You did not? So you did not have the direct contact, then, with the developers, or the key person with the developer who you mentioned before was then the person who would go back and get the agreement of the company? 1185 Mr Teare: It was only as the negotiations moved on that I had a direct discussion with the developer.

Q187. Mrs Cannell: Okay, so your staff acted up to a point, then? 1190 Mr Teare: Correct.

Q188. Mrs Cannell: And then you stepped in. Was that close to completion that you stepped in? 1195 Mr Teare: No, I did not step in. That gives the wrong impression. I, in effect, took the negotiations further forward because the negotiations had reached a certain level and I wished them to provide a further benefit to the Department.

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SELECT COMMITTEE, THURSDAY, 7th JUNE 2012

1200 Q189. Mrs Cannell: But how were you able to impress that upon the developer? If you were not meeting them face to face, how were you able to impress that was your feeling and that was your view and that was where you were standing firm?

Mr Teare: That is why it became necessary for them to speak to me directly. 1205 Q190. Mrs Cannell: So, at some point, you did. When it reached the point where they would not budge any more and you would not agree to what they were offering, you then stepped in. You said 'step' in is the wrong word, but invariably that is what happened, is it not?

1210 Mr Teare: Basically, I took the negotiations forward. They had reached an impasse and I took them forward.

Q191. Mrs Cannell: By negotiating with them directly?

1215 Mr Teare: By negotiating with them directly.

Q192. Mrs Cannell: Yes, and what kind of period of time are we talking about when that happened, before you reached what you felt was a good deal for the taxpayer?

1220 Mr Teare: It was quite —

Mrs Cannell: A week? A couple of weeks? A couple of months?

Mr Teare: No, it was months, but basically we were negotiating with them and I wanted the 1225 deal finessed, improved on, and there comes a time when you have to negotiate. The Committee will recall some of my earlier comments that this deal nearly fell down at two minutes to midnight.

Q193. Mrs Cannell: How did you save it? 1230 Mr Teare: By just standing firm — 'That's the deal, it's on the table — take it or leave it,' and they took it.

Q194. Mrs Cannell: So it was a kind of call-my-bluff type situation developed, then, by the 1235 sounds of it.

Mr Teare: Poker — poker is a different way... But that is negotiations, Hon. Member.

Q195. Mrs Cannell: So a form of gambling, then, in order to get a good deal for the taxpayer. 1240 Mr Teare: Not gambling.

Mrs Cannell: Well, poker is.

1245 Mr Teare: I was quite prepared to negotiate and to negotiate firmly but fairly for the benefit of the taxpayer. I did make it clear to the previous Member for Michael, Mr Cannan — Mr David Cannan, I should say — in a letter in March 2011, that I had assumed personal responsibility for negotiations, so it was after we had the mandate, a firm mandate from Tynwald to continue negotiations, and I carried them on. 1250 Q196. Mrs Cannell: Yes, but you referred to those final negotiations, those key negotiations right at the end, as being akin to a game of poker.

Mr Teare: It was not meant in that way, but it was very much 'We are quite prepared to fold 1255 and just walk away.' I did not have to do this deal at all costs. I only did the deal because it was of clear and demonstrable benefit.

Q197. Mrs Cannell: But it was your description, Minister, not mine — the poker description. 1260 Mr Teare: There was clear and demonstrable benefit.

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SELECT COMMITTEE, THURSDAY, 7th JUNE 2012

Mrs Carmen: Thank you.

The Chairman: Mr Turner.

1265 Q198. Mr Turner: Surely then, walking away would have been of huge detriment to the school?

Mr Teare: It would have been.

1270 Q199. Mr Turner: They would have lost that opportunity.

Mr Teare: But then they were not to know whether I would or whether I would not walk away.

Q200. Mr Turner: But in the event that you did walk away, then, what would have been the 1275 impact on the school?

Mr Teare: We would have lost the land swap, we would have lost the additional play area, we would have lost the improvement of the facilities, and I would have been desperately disappointed. But then there comes a time when you realise that you have to make a decision: do you go ahead 1280 on the deal, or not?

Q201. Mr Turner: So do you feel that this deal represented the best value for money for the school and for the taxpayer?

1285 Mr Teare: I do and I feel that is borne out by the Government Valuer and also the press release by the developer, saying that the Department got a very good deal.

Q202. The Chairman: Thank you. By way of winding up, just to ask you to confirm a number of matters. Firstly, that you believe 1290 that... you are certain that Tynwald was given the correct information with regard to the status of the deal in January 2011, in terms of the alternative access, the written confirmation not having been obtained till April 2011. You are quite certain in your own mind that what you told Tynwald in January was absolutely correct? 1295 Mr Teare: Yes, I am.

Q203. The Chairman: Thank you. And likewise, are you content that proper due diligence was exercised throughout this process in confirming Heritage Homes' claims about the access and all the surrounding matters, that the 1300 Department had checked everything out, not simply taken the developer's word for it?

Mr Teare: Yes

Q204. The Chairman: And that the motivation for striking this deal was in the best interests 1305 of the school and the Kirk Michael community?

Mr Teare: No, the school and the taxpayer and also I did say at the outset, damage limitation, bearing in mind that they had alternative access. 1310 Q205. The Chairman: Thank you. And as far as enquiries with other Departments of Government to verify the statements of Heritage Homes, again, you did everything that could possibly have been done to verify these statements?

1315 Mr Teare: Before the final deal was signed, yes, the Attorney General was actively involved, or the Attorney General's Chambers were actively involved, as was the Government Valuer, at all stages.

The Chairman: Thank you. 1320 Any further questions?

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SELECT COMMITTEE, THURSDAY, 7th JUNE 2012

Mrs Cannell: Nothing further, thank you.

Q206. The Chairman: Mr Teare and Mr Dobson, I would like to thank you very much, but if 1325 you wish to take the final opportunity to make any closing comments, please do so.

Mr Teare: During the course of the negotiations, we also asked the Government's Internal Auditor to have a look at the whole matter as well. 1330 Q207. The Chairman: And was there an internal audit conducted, are you saying?

Mr Teare: I asked for an internal audit, yes.

Mr Dobson: I dealt with the Government's Internal Auditor on that matter. We actually 1335 checked one particular issue as to whether, in the valuations, they reflected good value for money as far as could be ascertained. That was the direct question I gave to Caldric Randall at Internal Audit. His view was that the Cambridge Stokes principle had been applied to the valuations at all stages, and including the latter one, which was good value for money in comparison with the original one. 1340 Q208. The Chairman: We have written evidence that you have submitted from the Government Valuer. The internal audit though, that was requested by yourself, Director?

Mr Dobson: I spoke to the Internal Auditor. 1345 Q209. The Chairman: And when was it conducted and when was the report received?

Mr Dobson: There wasn't... We did not ask for a full report; we asked for his professional judgement on — 1350 The Chairman: Oh, I see, so it was not a full internal audit. (Interjections) I see, I misunderstood. Sorry, yes, sorry.

Mr Dobson: I just asked for his view. 1355 Q210. The Chairman: Yes, okay. Thank you very much. Anything further, gentlemen?

Mr Teare: No. I would just like to thank you once again for rescheduling the meeting, sir. It is very much appreciated. 1360 The Chairman: Not at all, glad to oblige. Thank you, Minister, and thank you, Chief Executive. Ladies and gentlemen, that now brings the public session of this Select Committee to a close. I would like to thank members of the public. I would like to thank our two witnesses, Mr Teare and 1365 Mr Dobson, very much indeed for giving evidence and being of considerable assistance to the Committee. With that, I declare the hearing closed. Thank you.

The Committee sat in private at 11.38 a.m.

47 KMLX

95 96 APPENDIX 1 98 House of Keys Y Chiare as Feed Legislative Buildings Oikyn Slattyssagh Douglas Doolish Isle of Man Ellan Va nn in IM1 3PW IM1 3PW Qt+o us British Isles Ny Ellanyn Goaldagh

Tel: 01624 685505 Fax: 01624 685509 E-mail: alfred.cannanegov.irn

Our Ref: AC/j+w

19th March 2012

Hon Steve Rodan SHK RECEIVED Chairman Select Committee 21 MAR 2012 Kirk Michael Landswap Government Offices OFFICE OF THE CLERK OF TYNWALD Douglas Isle of Man

Dear Mr Rodan

Kirk Michael Landswap - Written Evidence

In respect of your consideration of the above and in response to your request for written evidence, I would ask your committee to consider the following matters and questions as outlined below.

It has been clearly stated by the former Minister for Education that the Department of Education entered the landswap deal with Heritage Homes to protect the Kirk Michael School in order to allow for future expansion:

1. Who initiated the deal and when?

2. What evidence did the Department of Education have that Heritage Homes had access to the Zoned land behind the School?

3. What plans or drawings were submitted to the Department of Education to authenticate such claims and when?

4. What discussions took place with the Planning Department to evaluate such plans or drawings and when?

5. What confirmation was provided by the Planning Department to the Department of Education in respect of this matter?

House of Keys - the elected Branch of Tynwald - the Isle of Man Parliament THE OLDEST CONTINUOUS PARLIAMENT IN THE WORLD

99 6. What discussions took place with the Department of Infrastructure in respect of road access to the zoned land and when?

In a letter to Minister Teare on the 911 May 2011, a Kirk Michael Landowner writes:

"We understand that there is a proposal to exchange land at the school in Kirk Michael to enable Heritage Homes access to land zoned for building. The details of this proposal seem to be based upon the belief that Heritage Homes, in the absence of access through the school, would have access from the Douglas Road through the entrance to High. Tilt. This is UNCERTAIN since we own the farm buildings and some of the land of Lhergy Vreck Farm and our deeds give us rights over the access road to High Tilt. We simply do not know whether our rights would or would not prevent Heritage Homes access to the zoned land."

7. Should this letter not have warranted a proper and thorough investigation? Surely it should have been as an involved landowner was questioning the fundamental crux and indeed validity of any such claim to access. Or was it that the deal was already done?

There are a number of questions arising as to timings and management of the deal. In January 2011 in Tynwald, the Minister for Education confirmed that a deal had been drawn up. Minister Teare the goes on to outline the deal and I quote:

The Department transfers approximately 0.7 of an acre and, in return, secures an additional two acres of land to the rear and the northern side of the school, free of charge and also without any restrictive covenants. The land is free for our use. We all know the value of development land, and this is a considerable concession. Additionally, the developer will provide the following facilities for the school - again free of charge: a new fully serviced football pitch; a new hard surface play area; a new soft surface play area; an area for the future expansion of the building; additional car parking; and paved walkways connecting to the previously mentioned areas.

Finally Minister Teare concludes:

Access to the land has been secured. That is a done deal and, subject to the planning process, development will occur. As I said before, the Department has to react to protect its interests and to adapt and adjust to the changed circumstances and situation.

In an email to a constituent on the 6th January, ten days before the sitting, the Department of Education writes:

"Thank you for your email. Minister Teare has aslced me to advise you that he has agreed in principle and we are now finalising the details "

So, by the 6th January 2011, the evidence suggests the deal was basically done.

8. Is it right therefore to properly suggest that any public debate, letters, Tynwald motions etc were in fact irrelevant?

100 On the 29th March 2011, in a further letter Minister Teare states:

"You may not be aware but I have assumed responsibility for negotiations with the developer of the land adjoining Michael School. At present, negotiations are still continuing and there is no signed agreement between the Department and Dandara Holdings Limited or indeed any entity in respect of a land exchange. I did receive some time ago, a discussion paper from the developer but it did not deal with the issues I wished to address and accordingly, as previously mentioned, negotiations are continuing"

9. How can this be true? According to the email of the 6th January 2011 and the Tynwald Hansard, the deal was effectively complete.

Finally the matter of whether the taxpayer has received any value from the deal remains questionable. In January 2011, Minister Teare states:

This raises some questions:

10 What was the value of the original transaction referred to?

11 Why was this "golden opportunity" no longer available?

12 What were the terms of this deal and why did it have to remain secret?

13 Have the taxpayer received any value for money?

I am sorry that there is very little firm evidence to present to your committee, but many of these questions have remained unanswered despite many questions in the House of Keys and Tynwald. However, I am pleased to attach correspondence and press information that may assist with your investigation.

Yours , ly

Alfred Cannan MHK Member of the House of Keys for Michael

101 102 6lam lodevenderd, FrIday,Num:), 17, 2012 Kww.fomNpdsyro-!m

h%ciei)Nilcir•nt. OPINIONS os . IM 1 The. Manx Leave bus Independent route alone Questions about I WRITE In support of the views ex- OUR VIEW pressed by Tim and Thelma Wilson (Independent Opinions, February 10) concerning the retention of the bus `land-swap' station In Eirldson Street in Port Erin. Finance Nothing will be gained by relocat- ing the bus route further along REGARDING recent articles about deal. Conveying the open space to open space, which he had to provide Station Road, which is already the proposed development around the school means that the general anyway, for an access across the very busy and congested. I think their school, there are some public could Only use the itriaeatties school playing field. picture the traders, too, are mistaken if matters troubling many folks in Kirk with the consent °title ataEatitin The nue value to the developer of they think this will be beneficial for Michael. DepaitinentandOttly When they are this access would be enough to build themselves or the area.The present In the interests of transpar- notbeing Used lay the Scheel. a new school. is not arrangement is perfectly sensible ency and openness in government The Kirk Michael Strategic Plan Opening the dour to a multi-mil- and convenient for bus users, locals the following questions must be 1994:proteett the,sehool by requir- lion-pound profit for the devel- and visitors, and I suggest if it ain't answered: ing any development of the area to oper in exchange for a couple of broke don't try to fix it and leave 1.1hrisa initiated the idea of a allow for futui-e expansion of the goal-poSts is a very poor deal for so rosy well alone. land-swap'In the first place, the school and tier the poSsibility of a taxpayers: The regeneration of Port Erin calls minister or the developer? by-pass road. Thisdeal is not a 'Iand-swap'; it is TI-f_E-disclosure.of the extent of lo- for rather more from the commis- 2. Was the• planning department 4. As themirtister had clearly a blatant land cal authority debt this week Makes sioners than tinkering with buses consulted regardingthe pmposal forgotten the details of die Isle of The Kitt Michael Stfategic Plan interesting read**.. and a general tidy-up of the area, prior to the deal being negoti ated? Man Strategic Plan 2007, had he also 1094; Thetsle Of tvlan Strategic Plan While Weake.as- -Sated that the gov- which Is tong overdue, is nothing 3. Ifconsulted, did the depart- forgotten the Kirk Michael'Coinse,r- 2007, Appendix 6; and theOtaracter ernment has reserves; the more than cosmetic. ment advise the minister that a vation Area1Character..Appraisal? Appraisal relating to Kirk*hael debt on local authority housing is Vision is needed to make Port 'land-swap' deal-Was not necessary, (He had voted in favour of both in Couservation Area sliotildfde cow quite large_ Add to that the outStands, Erin, which has a superb beach referring him to the isle of Man Tynwald). pulsary reading for members of the ing debt that the MEET incurred after-: and so much potential, an attrac- Strategic Plain 2007? The latter document stress the Council of Ministers called upon to thelOans fiasco and the fmancid tive place to visit, especially if the Appendix6 to this document importance of the els iato the hills consider the report of the independ- pietUre of our island doesn't look weather is inclement and you have demands that a development. as from Detiglaslio ad Corner and the ent inspector into the planning quite so rosy.. - young children. proposed, would require the provi- need to retain the character of the appfieation. will, of course, have , We'd still rather be in Treasury ft goes further with the letter from sion of recreation and ameniq open village. Roth we old he destroyed by Ivir 'reale spaces (areas of similar size to those the propoSed development. declared an interest andwill Minister Rildye Teare's shoes than John. Brandlar on the same page - those of the LIK Chancellor oldie which should set alarm bells ringing offered as a 'land-swap') for the use 5: Did the minister really believe no part. ei Exchequer, George Osborne; or his about the attitude towards tourism of everybody..inelitdingtheschool. he was getting the 'best deal for the eqUivalents in Greece, Italy and and potential visitors:to the island: Such kind and amenities would taxpayers' MIS Words) by signing up J. ,ItERlitODE Spain. the easy-going tomorrow will do at- eventually be adopted by the local to ahluineceSsary deal? A deal that Craig Farm, Douglas Road, White the downgrading of our tri- titude towards tourism and potential authority, with no need for a land called for the developer to exchange Kirk Michael pleek rating was dOymplayed (it was visitors to the Island.This easy-go, truropeted When. Wegiat by the: ing tomorrow will do attitude is an way) its effect clathe cost of interest : excusefor Indifference and in 20i2 dementia, like my rnurwis.required within two weeks of her trip and it was In this time of economic instabil- is now becoming evident. is not acceptable. to pay.IM,600 per month for care NOT in full, also she did not have to pay i20 ity, ft borders on lunacy. IntereSt rates for Port Erin have Pull your socks up,Tourist 13"Rrd, provided the health service. fora dam- ertificate, as I did. ft was not that long ago that gdne- up 1.4p as a result, for example. and put your thinking caps on, Nobody has a plan for when I am red, —.4 so don't bayete rush Douglas Corporation took over the That means the commissioners have Port Erin and oh, while you're atkout 'the cash runs out. The care home about, so this is the way I shall travel lease of the present library and had to increase the rates to pay for it. it, address the Issue of dog fouling, company. says 'speak to the govern- from now on. My family in the UK feel spent two or three hundred.thou- LITTLE ACRES BALTIC ROAD KIRK MICHAEL ISLE OF MAN IM6 lEF 16/2/12

MR A BELL CHIEF MINISTER DOUGLAS

Dear Mr Bell, re. Land Swap, Kirk Michael

Heritage Homes have recently put out an incorrect and wrongly dated press release about the above. Since we were in correspondence with Mr Teare about this matter in May 2011 and we were present throughout the planning hearing we thought it appropriate to send you our comments. The press release from Heritage Homes is incorrect. In response to a question, Mr Bryan Hall, Heritage Homes Transport Planning Consultant quite clearly and unambiguously stated that Heritage Homes could not gain access to the proposed site via an alternative access from Douglas Road. He was not simply referring to access through Westlands and/or Knock y Tholt. There was no misunderstanding; he was simply being honest. Heritage Homes claim that Mr Hall's written evidence included a plan of an alternative access and a copy of confirmatory evidence from the DoI Highways Division. This evidence consisted of a 4 line e-mail from Highways Division and no evidence that it referred to the plan submitted e.g. the plan was not signed nor stamped by the Highways Division. We have legal rights of access over Lhergy Vreck. In May 2011 we wrote to Mr Teare, then Minister of Education, pointing out that the rights we had over Lhergy Vreck might prevent Heritage Homes access. Therefore, before Mr Teare finalised the deal with Heritage Homes he was aware that there was doubt over their claim to an alternative access. Mr Teare could have negotiated on that basis but he did not. More sensibly he could have asked us for further information or provided us with plans of the proposed Lhergy Vreck access and asked for our comments. He did neither. Why? Eventually we saw the plan for the alternative access when it was submitted as written evidence in the Planning Application.(approx October 2011). Our suspicions were confirmed. The proposed access would clearly interfere with our rights.

Yours sincerely

Dr & Mrs NAYLOR

CC MEMBERS OF TYNWALD

104

TO'd Taloa

heritage 4114N homes Press release behalf of Heritage Homes 3,30pagriday 34 January 2012

Kirk,Michael land,.5w.gg Alfred Carman MHK's orotund Motion for Witt Committal;

On the 30" January Alfred Carman MHK wrote to all Tynwald Members, Informing them that tit proposed to bring forward a motion at the Fetaruary sitting calling Fora Select Committee to be appointed to investigate the above. However, in order to uvoki wasting Tynwald Members time on an Gv obvious misunderstanding we herein Clarify the faits of the matter.

Prior to entering into the agreement with the Department of Education, we were required by Minister Teare to provide irrefutable proof that we could access the land to the rear of the school (albeit for a maximum of IOU houses) via on ALTERNATIVE access. This was for the specific purpose of establishing that that the Department WERE NOT in possession of the ONLY access which would enjoy an enhanced value.

the alternative access comprises land on three properties all controlled by Heritage Homes. Correspondence from the Highways Department confirming that we COULD access the site at this location was passed to The Department. The Department also has Proof of our Ownership and Control of the alternative access land. 1,\> Lr) At the Planning Inquiry, an objector asked our Transport Planning Consultant, Mr Bryon Hall, if e? n, the site via Westlands or Knock Y Tholt (properties on Douglas Road in Heritage Homes could access , , 0•1'" 6 .t)'• the ownership of Heritage Homes). He replied no, because on their own these properties do not allow a \--- -x.. at viable access. He did rot unfortunately explain that when taken with the additional lond on Douglas \\,..0 (,_.L, t\ 'a. , ,E, Road that is under Heritage Homes control, an alternotive access tan be formed. v, 1 A i,,\o's \c'N cAry.. 7.ivN Mr Hall's written evidence did however include a piton of the alternative :Keen together with 0 copy of the wriespondente from the Do) Highway Division confirming that the alternative races is acceptable.

Mr Hall's dogged adherence to one of the golden rules of cross-exarniration (i.e. listen carefully to the question and QW1frne your answer to the question] may be fine nuremitly at an inquiry, but in this instance it would appear that the limited nature of the question which was asked and the limited answer. has unfortunately lead to a misunderstanding by Mr. Carman.

We have been informed that the Department proposes to write to Mr Conn= and all Tynwald Members later today, clarifying the matter and providing Mr COrtharl Villth proof that Heritage Holmes do indeed have an alternative access. ThtlieLartments Chief Eieeutive has assured us that he spoke tit Mr Cannon approximately two Weeks ;go and clarified the MiSVOCitr.___.!Li711:-lit1 L

Mr Cannon's assertion that The Department enjoyed a ransom over development is not Wiled, 100 homes can he accessed through other land within Heritage Home's control.

Minister Teare and his team [which included The Government Valuer, the AG's Office and Directors from The Department', in our opinion negotiated a very astute deal. In addition to the land swap and Significant improvement works to the 5c,honl, an foto e devel 1• wit: be at thse_ontatAi rats-7lsa— f or The Deoartsnent. pf Edueptinn fi.ethttnxpiyeir .__r>

The terms of the agreement were made ptiblie by Minister Teare in his press release at the tint. We regret the misuoderstandintof our Consultant's remarks at the inquiry, and apologize for any inconvenience, which this may have dosed.

End.

Heritage Homes.

(ivc) c LiLL)

TO/TO'd 02EE69tre8TO b•A--- - 4441iD1OH UNUCM:112 6E:80 ET2F-E13d-00. I aced CO9a1:19 105 88-11JS St:irt 2102 clad 90 House of Keys Y Chiare as Feed Legislative Buildings Oikyn Slattyssagh Douglas Doolish Isle of Man Ellan Vannin IM1 3PW 1M1 3PW British Isles Ny Ellanyn Goaldagh

Tel: 01624 685505 Fax: 01624 685509 [email protected]

Our Ref: AC/sah

30th January 2012

All Tynwald Members

Dear Colleague

Kirk Michael Landswao — Motion For Select Committee

I am writing to inform you that I shall be bringing forward a motion at the February sitting to request that a Select Committee be appointed to investigate the Kirk Michael Land swap agreement between Heritage Homes, Pinecrest Investment Limited and the Department of Education and Children. The motion will ask for an investigation into three core matters: 1. Whether Tynwald was given the correct information in January 2011 when the court agreed to support the Department of Education and Children in their negotiations with Heritage Homes 2. Whether the manner in which the negotiations were conducted was right and proper 3. Whether proper value for money was achieved from the land swap deal. As you are probably aware, the matter of this piece of land extends back some considerable time and has been raised in both Tynwald and the House of Keys on a number of occasions. Although some members may regard the whole matter as "NIMBYISM", I do believe there are some fundamental issues at stake that must be given clarification. In short: 1. I have no clear evidence that Heritage Homes have ever secured alternative access to the land as Tynwald was told in January 2011. Although I have asked the Department of Education and Children for ALL items of correspondence, nothing has been forthcoming to prove otherwise. Indeed to the contrary, all I have is letters disputing the right of access claimed by Heritage Homes, letters which were sent to the former Minister for Education (Minister Teare) before the deal was signed. Furthermore, Mr Brian Hall, transport consultant for Heritage Homes, informed the public planning inquiry in December 2011 that Heritage Homes DID NOT have alternative access to the land, as the visibility splays at the proposed junction point would not have been good enough to build an appropriate junction on Douglas Road.

106 2. I have little or no evidence as to how the negotiations were conducted or the terms of the deal, other than a letter which clearly states that the former Minister for Education (Minister Teare) has taken direct responsibility for negotiations. I am not convinced this was an appropriate way for such a technical and difficult negotiation to take place. For instance, would it not have been more appropriate for the Developer to get planning permission first before negotiating the land swap deal? In my opinion, it is in the public interest to get clarification on these negotiations and the concluded deal, at least to ensure that any mistakes will not be repeated. 3. It is difficult to get an exact value on the land swap deal for the developer, but it would not be unreasonable to conclude that the Developer might expect final profits of between £5m £6m. In return, Kirk Michael School (the taxpayer) will receive 2.01 acres of land to the north and east (rear) of the school site from the landowner and the developer will create a new sports pitch and hard play area. Land will also be kept clear to allow for the future enlargement of the school. Outwardly, this appears to be a small return against the Developer's profit. Indeed, if the Developer had no alternative access, the return could be considered minimal at best, especially if the Cambridge v Stokes ruling, was applied, giving 1/ of the development value to the landowner. If this principle was applied, public funds should be increased by E2m. Also, it should be considered that the Developer has toprovide suitable recreational facilities in any development of this size and therefore have the Department of Education taken this and other requirements into consideration? I hope you will agree with me that this is a serious matter. It is imperative that we conduct Government business in an open and transparent manner and that such commercial negotiations are conducted in the best interests of the Island and the taxpayer. I know this is a busy month for many of you, particularly with the forthcoming budget in mind. I would, however, ask that you do give this matter some consideration and will at least listen carefully to my reasoning in Tynwald during the debate. I am, of course, available to provide further information to any Member who requires it. Yours sincerely

Alfred Cannan MHK Member of the House of Keys for Michael Department of Education and Children

Rheynn Ynsee as Paitchyn Chief Executive Officer Isle of Man Stuart Dobson From the Minister Government Hamilton House Kett Ettair VI? as in Shirveishagh Peel Road, Douglas Isle of Man IM1 5EZ

Our Ref ET/JK Direct Dial No: (01624) 685801 Hon W E Teare, MHK Fax: (01624) 685845 Website: www.gov.imleducation 27 May 2011 Email: [email protected]

Dr & Mrs G Naylor Little Acres Baltic Road Kirk Michael Isle of Man IM6 1EF

Dear Dr & Mrs Naylor

Thank you for your letter dated 17 May 2011, however I am not able to go into detailed correspondence with yourselves and would reiterate that you should speak to the developers.

Yours sincerely

Eddie Teare ACIB MHK Minister for Education and Children

cc Mr J D Q Cannan MHK Michael Commissioners

108 LITTLE ACRES BALTIC ROAD KIRK MICHAEL ISLE OF MAN IM6 1 F.F 17/5/11

your ref ET/JK

Mr E TEARE MINISTER OF EDUCATION AND CHILDREN DOUGLAS

Dear Mr Teare.

Thank you for your prompt reply of 11/5/11. We fear that you have misinterpreted the point of our letter which was to indicate the possible effects of our rights on the potential land swap, not the effects of the potential land swap on our rights. You state that your understanding is that the developer has already obtained access. Not having seen the proposals, we do not know and we guess that you do not know whether the rights in our deeds would legally block such access. No one, not you, nor we, nor Heritage Homes know whether the proposed access through Lhergy Vreck Road to the zoned land will be given planning consent until the proposal to enter the zoned land through Lhergy Vreck. Road has been through the full planning process, including I assume, an appeal and the decision of an external assessor (planning is a very unpredictable process). Until it is known whether an alternative access through Lhergy Vreck Road is REALLY available, you cannot know the real commercial value of access through the school: is it worth several million pounds or not? Even if access were available through Lhergy Vreck Road, the developer's preferred option is through the school because that would be more profitable (at its simplest it saves the cost of one or two houses on Douglas Road). With or without possible access through Lhergy Vreck Road, the access through the school, therefore, has a considerable value to a developer. You do not know whether other developers would be willing to take less profit and pay the Dept of Education and Children more than Heritage Homes are. Why, therefore, is the whole process of "exchange" or sale of land at the school not open to tender? Only by such a process do you get the commercial value of an asset.

Yours sincerely,

Dr & Mrs G Naylor

CC. D Carman MHK Michael Commissioners

109 Department of Education and Children

Rheynn Ynsee as Paitchyn Chief Executive Officer Isle of Man Stuart Dobson Government From the Minister Hamilton House grijols Elian VAIN lilt Shirveishagh Peel Road, Douglas Isle of Man IM1 5EZ Our Ref ET/JK Hon W E Teare, MHK Direct Dial No: (01624) 686801 Fax: (01624) 685845 11 May 2011 Website: wv‘w.gov,im/education Email: [email protected] Dr & Mrs G Naylor Little Acres Baltic Road Kirk Michael Isle of Man 1146 1EF

Dear Mrs Naylor

I write in response to your letter dated 9 May 2011. I am unable to comment as to how the potential land swap at Kirk Michael School would affect your own position. My understanding is that access to the site has already been obtained by the developer through the Lhergy Vreck Road as they have acquired the property on the North West side of the road junction. Perhaps I could suggest that you discuss the matter with your legal adviser or, preferably, contact Heritage Homes direct as I am sure that they will be able to give you more details as you are an interested party.

Yorsr sincerely

40it,__ •0 Edd eare ACIB MHK Minister for Education and Children

cc Mr J D Q Cannan MHK Michael Commissioners

110 LITTLE ACRES BALTIC ROAD KIRK MICHAEL ISLE OF MAN IM6 lEF 9/5/11 Mr E TEARE MINISTER OF EDUCATION DOUGLAS

Dear Mr Teary,

We understand that there is a proposal to exchange land at the school in Kirk Michael to enable Heritage Homes access to land zoned for building. The details of this proposal seem to be based upon the belief that Heritage Homes, in the absence of access through the school, would have access from the Douglas Road through the entrance to High Tilt. This is uncertain since we own the farm buildings and some of the land of Lhergy Vreck Farm and our deeds give us rights over the access road to High Tilt. Heritage Homes have not had the common courtesy to show us the proposal and discuss with us whether this would infringe our rights. We simply do not know whether our rights would or would not prevent Heritage Homes access tO the zoned land. If Heritage homes do not have access through High Tilt entrance, it alters the logic and certainly the price for access through the school: such access would obviously be worth hundreds of thousands of pounds not the £9000 worth of land at present proposed. We would not be willing to have our rights infringed.

Yours sincerely,

Dr & Mrs G Naylor

CC. D Carman MHK Michael Commissioners

111

Department of Education and Children

Rheynn Ynsee as Paitchyn Chief Executive Officer Isle of Man Stuart Dobson Government From the Minister Hamilton House Ellart Vn 411 rt Shirveishagh Peel Road, Douglas Isle of Man IM1 5EZ Our Ref ET/3K Hon W E Teare, MHK Direct Dial No: (01624) 685801 Fax: (01624) 685845 Website: www.govimieducation 29 March 2010 Email: eddie.teare@gov,im

Mr D Cannan MHK House of Keys Legislative Buildings Douglas Isle of Man IM1 3PW

Dear Mr Cannan

Re: Michael Primary School, Playing Field

I write in response to your letter dated 22 March addressed to our Chief Executive, Mr Dobson. You may not be aware but I have assumed responsibility for negotiations with the developer of the land adjoining Michael School. At present, negotiations are still continuing and there is no signed agreement between the Department and Dandara Holdings Ltd or indeed any entity in respect of a land exchange. I did receive, some time ago, a discussion paper from the developer but it did not deal with the issues which I wished to address and accordingly, as previously mentioned, negotiations are continuing.

I am unable to comment at the stage whether the discussions between the Department and the developer will be concluded.

Yours sincerely

i✓dct1 Teare ACIB MHK Minister for Education and Children

112 Joyce Ogden

From: Duncan and Susie [[email protected]] Sent: 06 January 2011 20:40 To: [email protected] Subject: FW: Discussions regarding traffic scheme/land swap in Kirk Michael.

Again Mr Cannan I am forwarding you this for your information. I am unaware of the Commissioners polling any residents for their views. Is there any other avenues that I should pursue as a concerned resident?

From: Keeble, Julie [mailto:Julie.Keeble©doe.gov.im] On Behalf Of DEC, Minister Sent: 06 January 2011 11:02 To: 'Duncan and Susie' Subject: RE: Discussions regarding traffic scheme/land swap in Kirk Michael.

Dear Mr Livingstone

Thank you for your e-mail. Minister Teare has asked me to advise you that he has agreed in principle and we are now finalising the details, although the deal could still fall through.

Kind regards

Julie Keeble Personal Secretary to the Minister & Director of Education and Children

Department of Education and Children St George's Court, Upper Church Street, Douglas, Isle of Man IM1 2SG British Isles

Tel: 01624 685801 Fax: 01624 685845 E-mail: [email protected]

From: Duncan and Susie [mailto:[email protected]] Sent: 05 January 2011 21:05 To: DEC, Minister Subject: RE: Discussions regarding traffic scheme/land swap in Kirk Michael.

Thank you for your response, and I am certainly going to be contacting both Kirk Michael Commissioners and the Planning Department as this matter progresses. I would just like to raise a question though that your response suggests that this decision has already been made, whereas I was under the impression from the correspondence I have seen that it was a proposal still being considered? Can you please just clarify exactly what the position is as it stands. Thank you.

Duncan Livingstone

From: Keebie, Julie [mailto:[email protected]] On Behalf Of DEC, Minister Sent: 05 January 2011 12:47 To: 'Duncan and Susie' Subject: RE: Discussions regarding traffic scheme/land swap in Kirk Michael.

Dear Mr Livingston 1 113 I write in response to your e-mail of 25 December regarding the proposed land swap. The development will, as the land is zoned, be most likely to proceed and I took the view that we would be vulnerable if the building came up to the boundary with the school. This would firstly, severely restrict the school's ability to expand in the future if necessary and, additionally, would mean that we could be vulnerable to disputes with neighbours regarding children playing in the school. When the original proposal was floated to the Department, the land in the ownership of the school was the key to the development of the area. However, this is not now the case as the developers have secured alternative access and the development is likely to proceed.

The issues which you have raised are really planning matters and I would respectfully suggest that these are directed to the Planning Committee when a firm application is submitted to develop the site. I have not ignored the views of the Kirk Michael residents as I have spoken to the Commissioners and, as you may have seen in the local press, they have been supportive of my stance.

Thank you for taking the trouble to contact me.

Kind regards

Eddie Teare ACIB MHK Minister for Education and Children

From: Duncan and Susie [mailto:[email protected]] Sent: 25 December 2010 21:06 To: DEC, Minister Subject: Discussions regarding traffic scheme/land swap in Kirk Michael.

Good evening, I am only typing this on Xmas night because I have just heard the news that discussions are ongoing between the Kirk Michael Commissioners, Department of Education and Dandara regarding the above.

I wish to strongly voice my objections to this proposal and would ask you to consider the following prior to reaching any decision.

I am aware that Dandara own the land behind the school, and assuming the discussions are similar to the last time this issue was raised involves a land swap, with Dandara offering to build extra classrooms for the school.

The big issue with this is that for Dandara to develop the land that they own they need a major access onto the main road. At the moment they do not have access and this will seriously affect the number of houses they would obtain permission to build. Figures mentioned are that they wish to build in the region of 400 houses. If these figures are anywhere near correct then this would have a major knock on effect for the numbers of children within the village. Potentially this could easily generate another hundred children attending the school. I would suggest this is probably a conservative estimate. I do not think two extra classrooms would be sufficient to house that number of extra children, and the Department would end up having to spend extra money on even more classrooms and teachers.

If Dandara do not have a major access into the land, I think it is highly likely that they would not obtain permission for so many houses. If this number was reduced to approximately 100 houses then the Department could potentially still have to build extra classrooms, however less pupils would fall in this new build area and this would have a knock on in reduction of costs for potential teachers and running costs.

All of this is just discussing the traffic issue and does not even touch on the effect that number of houses would have on either the infrastructure or the 'community' aspect of the village.

2 114 Know the Government does not have vast reserves of cash at the moment, but I do not think that the Department should allow Dandara to make vast profits on this issue, as a knee jerk reaction to thinking that the Department is getting something for nothing. Dandara are only making this offer because they know they stand to make a lot more money if they can obtain the major access that they require. I do not think Government should ignore the strong, previously evidenced views of the vast majority of Kirk Michael residents.

Thank you for taking the time to read this, and if you wish to talk to me about any of the points I have raised then my contact number is 464640

By all means please feel free to forward this e-mail to Kirk Michael Commissioners if you see fit.

Duncan Livingstone

2011 — Year of the Commonwealth Youth Games

Isle of Man. Giving you freedom to flourish

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3 115 116 APPENDIX 2 118 v\wt --fs F ‘4)1L-iz_ 1,zeo

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-2;+ LITTLE ACRES BALTIC ROAD KIRK MICHAEL ISLE OF MAN 1M6 1EF 19/3/12 JONATHAN KING CLERK OF THE COMMITTEE LEGISLATIVE BUILDINGS DOUGLAS

Dear Mr King,

Committee re. Land Swap, Kirk Michael.

We are grateful for the opportunity to submit comments on this topic.

The question of an alternative entrance, via Lhergy Vreck, to the area zoned for development seems to be of prime importance. We have rights over Lhergy Vreck Lane because of our ownership of the Lhergy Vreck farm buildings. When there were rumours of an impending planning application, we tried to find out whether it would involve Lhergy Vreck Lane and whether it could potentially affect our ability to exercise our legal rights. Heritage Homes refused to give us details of any proposal involving Lhergy Vreck Lane. So we wrote to Mr Teare. We asked for further information and at the same time pointed out that any entrance via Lhergy Vreck Lane might infringe our rights and therefore might not have been possible as an access route. Mr Teare did not provide us with any information, and did not even ask us for further details of the potential problem with Lhergy Week. He, therefore, knew that Lhergy Vreck Lane might not be useable as access to a development before he signed the contract. We pointed out, that in our opinion, the useability of Lhergy Vreck was central to deciding an appropriate price for access through the school playing field. In the end he agreed to about one acre of agricultural land, which by any measure is a very poor deal. At the hearing into the planning application, Mr Hall, the road expert of Heritage Homes clearly stated that Heritage Homes could not gain access to the proposed site except through the school because of the impossibility of appropriate visibility at the Lhergy Vreck Lane. This view is clearly recorded in the report of the Planning Inspector.

Why did Mr Teare not check in detail the claim of Heritage Homes that they had an alternative access?

We think that Mr Teare should also have considered the agreement in a wider context: 1. Why was the contract signed when Tynwald was in recess and Kirk Michael had no MHK because of retirement, i.e. we had no democratic representation at the time? 2. Why did Mr Teare not undertake any public consultation? All previous consultation processes e.g.that held by the previous Minister of Education, had clearly revealed a strong majority in Kirk Michael against such a land swap. After receiving our letters Mr Teare publicly stated that he had not been contacted by any of the public about the proposal! 3. Why did Mr Teare ignore the wider implications of the deal? It would inevitably have given rise to the beginning of a Kirk Michael relief road, yet the expert report (Kirk Michael Relief Road Joint Study 20(14) into a Kirk Michael relief road clearly concluded that it would be to the "disbenefit" of the village. 4. Such a development, far from preventing the school from being land locked by roads and

120 housing would guarantee that it was land locked. S. The development would have affected a conservation area. Should Mr Teare not have considered the potential effects of his actions on such an area?

This was a secret deal with no element of competition nor Public Tender.

We hope these comments are relevant and useful

Yours sincerely

Dr & Mrs NAYLOR

P.S. Further details of correspondence can be supplied.

121 COMMITAE CALLS FOR EVIDENCE ON KIRK MICHAEL SCHOOL LAND EXCHANGE AGREEMENT

Tynwald resolved on 22 February 2012 -

The Members appointed to the Coinmittee by Tynwald were the Hon Stephen C Rodan SHK (Speaker of the House of Keys), Mrs Brenda Cannell MHK, and Mr Juan Turner MLC. The Committee has elected Mr Speaker as its chair.

The Committee has decided to give members of the public the opportunity to submit comments and opinions on the subject matter of the investigatiOn. Such submissions should be sent to the Clerk of the Committee by Friday 23"' March 2012.

It will be assumed that respondents are content for their response to be published unless otherwise indicated_

- Jonathan King Clerk of the Committee Legislative Buildings, Douglas, IM1 3PW 01624 686303 [email protected] 7th March 2012 L5 s

IviR11-12

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Receipt Ack'd: /3 ( r-,1 g) Category: C rres Public ate Next Action: t ting , Circulate Now File Only Other instructions: Ki‘jt t— X

123 LITTLE ACRES BALTIC ROAD KIRK MICHAEL ISLE OF MAN 1M6 1E17 15/6/12 DEPUTY CLERK OF TYNW.ALD LEGISLATIVE BUILDINGS DOUGLAS

Dear Mr King,

Re; Select Committee, Kirk Michael Land Exchange.

We were unable to attend the public hearing of this committee on 7/6/12 when Mr Teare gave evidence but we have read the official transcript of the proceedings. We wish to point out that Mr Teare's reply to questions 155 and 162 is incorrect. We wrote a letter on 9/5/11 and Mr Teare sent a very prompt reply. We wrote to Mr Teare again on l 7/5/11 and again he sent a very prompt reply. We enclose copies of our two letters. We would also point out that the verbal evidence of Mr Brian Hall, the traffic expert of Heritage Homes, presented to the Planning Hearing in Dec 2011, was clear: to the astonishment of all the objectors he stated that Heritage Homes could not gain access to the site by any access other than the school playing field. Mr Teare does not seem to understand the location of the possible alternative access routes. We have not checked the deeds etc but as far as we know Heritage Homes have bought two houses on Douglas Road. These are not adjacent and neither abuts the private access road to Lhergy Vreck. Mr Teare checked the ownership of these two houses. If either of these two houses were demolished, it could possibly give access but for the impossiblity of getting visibility splays. The third possible access is via the private access road to Lhergy Vreck and the garden of another house on Douglas Road, on which we understand Heritage Homes have an option. Again according to Mr Ball this too would have difficulty because of visibility splays. It is this latter route which could affect our rights and the rights of the owner of Lhergy Vreck House. Mr Teare seems to have done no checks on the ownership nor feasibility of this route. Between these three possible routes are areas of land which are not owned by Heritage Homes nor Pineerest Investments. In Mr Teare's replies it is entirely unclear which of these three routes he is referring to, particularly when he says that he has confirmation from the Highways Dept The preferred alternative plan of access considered by Heritage Homes, as revealed at the Planning Hearing, was via the private access to Lhergy Vreck. Obviously there was no access possible by demolishing either house they owned. The ownership of these houses was, therefore, entirely irrelevant to the question of access said to have been checked by Mr Teare. Why else would Heritage Homes, after buying those houses, negotiate a very expensive option on Cass y Lhergy garden? (Incidentally, the rumoured price for this is greatly in excess of that which Mr Teare negotiated for the Taxpayer.) We enclose a map which you may find helpful.

Yours sincerely,

Dr & Mrs NAYLOR

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125 LITTLE ACRES BALTIC ROAD KIRK MICHAEL ISLE OF MAN 1EF 9/5/11 Mr E TEARE MINISTER OF EDUCATION DOUGLAS

Dear Mr Teare,

We understand that there is a proposal to exchange land at the school in Kirk Michael to enable Heritage Homes access to land zoned for building. The details of this proposal seem to be based upon the belief that Heritage Homes, in the absence of access through the school, would have access from the Douglas Road through the entrance to High Tilt. This is uncertain since we own the farm buildings and some of the land of Lhergy Vreck Farm and our deeds give us rights over the access road to High Tilt. Heritage Homes have not had the common courtesy to show us the proposal and discuss with us whether this would infringe our rights. We simply do not know whether our rights would or would not prevent Heritage Homes access to the zoned land. If Heritage homes do not have access through High Tilt entrance, it alters the logic and certainly the price for access through the school: such access would obviously be worth hundreds of thousands of pounds not the £9000 worth of land at present proposed. We would not be willing to have our rights infringed.

Yours sincerely,

Dr & 'Ars G Naylor

CC. D Cannan MHK Michael Commissioners

126 LITTLE ACRES BALTIC ROAD KIRK MICHAEL ISLE OF MAN IM6 lEF 17/5/11

your ref ET/JK

Mr E 'MARE MINISTER OF EDUCATION AND CHILDREN DOUGLAS

Dear Mr Teare,

Thank you for your prompt reply of 11/5/11. We fear that you have misinterpreted the point of our letter which was to indicate the possible effects of our rights on the potential land swap, not the effects of the potential land swap on our rights. You state that your understanding is that the developer has already obtained access. Not having seen the proposals, we do not know and we guess that you do not know whether the rights in our deeds would legally block such access. No one, not you, nor we, nor Heritage Homes know whether the proposed access through Lhergy Vreck Road to the zoned land will be given planning consent until the proposal to enter the zoned land through Lhergy Vreck Road has been through the full planning process, including I assume, an appeal and the decision of an external assessor (planning is a very unpredictable process). Until it is known. whether an alternative access through Lhergy Vreck Road is REALLY available, you cannot know whether the potential access through the school is worth several million pounds or not. Even if access were available through Lhergy Vreck Road, the developer's preferred option is through the school because that would be more profitable (at its simplest it saves the cost of one or two houses on Douglas Road). With or without possible access through Lhergy Vreck Road, the access through the school, therefore, has a considerable value to a developer. You do not know whether other developers would pay more than Heritage Homes. Why, therefore, is the whole process of "exchange" or sale of land at the school not open to tender? Only by such a process will you get the best bargain.

Yours sincerely,

Dr & Mrs 0 Naylor

CC. D Carman MilK Michael Commissioners

127 128 APPENDIX 3 130 Department of Education and Children

nsee as Paitchyn Hamilton House, Isle of Man Peel Road, Douglas Government he office of the Isle of Man IM1 5EZ ecutive Officer RetIty s Ellen Vannin Direct Dial No: (01624) 685801 Ard Sheckler Fax: (01624) 685845 Website: www.gov.im/education Our Ref SD/JK Dobson Email: [email protected]

22 March 2012

Mr J King Clerk of the Select Committee on the Kirk Michael Land Exchange Agreement Legislative Buildings DOUGLAS IM1 3PW

Dear Mr King

Re: Kirk Michael School Land Exchange Agreement

Thank you for your letter dated 7 March 2012.

Find enclosed a copy of the Agreement, as requested. Please note that the Agreement is confidential to the three parties to the Agreement, and must therefore not be released out- with the Committee.

We also provide below our written response on the subject matter of the investigation, as follows —

Whether by January 2011 access to the land had been secured.

On 19 December 2007 Heritage Homes secured an option on part of the property Cass A Lergy, and on 1 July 2008 they purchased Westlands. These two transactions either side of the Lhergy Vreck Road access, were in order to secure appropriate sight lines, to form an estate road access from Douglas Road into the zoned land. A drawing (included in Appendix, ref B) provided by Heritage Homes at our meeting with them on 26 August 2010, showed the proposed new public highway from this point, to serve a possible development of 127 homes, including on the land right up to our school rear boundary. During November and December 2010, our then Minister discussed said proposed access road with DoI Highways to validate the suitability of the same. As the dialogue progressed with Heritage Homes up to the agreement it became important to establish how many housing units would be permitted to be served by the said Lhergy Vreck access. This confirmation was provided within DoI Highways email dated 15 April 2011 to Heritage Homes Transport Consultant Bryan Hall (Appendix, ref E), confirming that the proposed junction as plan 09/348/TR/002 is considered appropriate to serve 100 dwellings.

The manner in which the negotiations were conducted.

The negotiations were progressed in a wholly professional and appropriate manner. The negotiations were led by our then Minister Teare and our Estates Director Mr Collister, with the full input of the Government Valuer over the valuation of the land deal, and the Attorney General's office over the terms of the legal agreement. Treasury approval was obtained on 132 10 August 2011 (Appendix, ref H). A schedule of key events from the original approach from Heritage Homes in May 2005, through the recommencement of dialogue in August 2010, to signing of the agreement on 16 August 2011 is attached in the Appendix, together with the documentation referred to.

The value for money achieved.

At all times during the negotiations with Heritage Homes we pushed hard to secure the best deal for the Department and the future of the school. Under the terms of the agreement the Department is to receive circa three times the area of the land to be conveyed at Douglas Road corner. The land to the east (rear of the school) is to accommodate a new sports pitch and hard play area, and the land to the north, providing valuable space for the development of additional classroom capacity at the school in the long term. The Department is to further benefit from the accommodation works to be carried out by Heritage Homes, including creation of the new pitch and hard play area, and boundary works — ball stop fencing, boundary fencing / gates, walls, ramps, paths and landscaping, all as shown on Accommodation Works Plan 4, and as detailed within the agreed Pitch Specification, included in the Agreement.

(text redacted by Select Committee)

Furthermore under the terms of the agreement there is to be a covenant preventing development of more than 100 dwellings on the zoned land (as DoI Highways agreed limit on the alternative Lhergy Vreck access secured by Heritage Homes), or any development on the land beyond accessed through the zoned land, without our agreement to lift the covenant and an overage payment being determined and payable to us for the same.

If we hadn't acted there was (and still could be) the strong potential of development up to our existing rear boundary on the zoned land, and so we needed to protect the future of the school. Negotiating with the landowner / developer to buy additional land at the rear to provide improved play areas and land for future expansion of the school, if they progress

133 134 and secure residential planning approval through the Lhergy Vreck access could cost £0.5 — £1.0m, plus the loss of the accommodation works. We consider that the agreement represents a good arrangement for the Department — the securing of a net additional 1.38 acres of land at the school, the provision of a sports pitch and new hard play area, and land to the north of the school for future classroom development, as and when roll / capacity needs dictate, and the value for money so achieved is confirmed by reference to the Government Valuer's advice.

I confirm that the Department is content for our response to be published, except for the following —

• The Government Valuer's valuations as included in the Appendix, reference documents A, D, F and G — 'valuation advice is confidential and for the use of the Isle of Man Government only'. • Any reference to valuation figures in our response, as necessarily provided to demonstrate the value for money achieved, but which cannot be made public for the foregoing reason.

Yours sincerely

07. 77i157/ "-- ekc7-2,

Stuart Dobson Chief Executive Officer

Enc

135 136 DEPARTMENT OF EDUCATION & CHILDREN

KIRK MICHAEL LAND EXCHANGE AGREEMENT

Schedule of Key Events

May 2005 — initial approach from Heritage Homes

July 2005 — meeting held with Heritage Homes to discuss potential

August 2005 — January 2006 — dialogue progressed — DOE pursuing improved potential deal

January 2006 — proposal put to Department

March 2006 — enhanced proposal developed, for Departmental approval prior to continued dialogue with Heritage Homes

20 March 2006 — Minister / Estates Director meet with Michael Commissioners, and Michael school governors — both groups very supportive of Department dialogue with Heritage Homes.

April 2006 — January 2007 — dialogue continues with Heritage Homes

17 January 2007 — Government Valuer confirms proposal represents a satisfactory arrangement for the Department, with regard to consideration of Stokes v Cambridge principle (see attached letter, ref A).

February 2007 — May 2007 - detailed proposals developed by Department to form basis of potential agreement, and for public display / consultation

17 May 2007 — public display / consultation at school

29 May 2007 — in Keys, the Minister confirms 'at the present time, I have decided to decline the proposal for the land exchange'

January 2008 — Michael Commissioners seek reassurance from the Department that they will take appropriate steps to secure land to sustain future of the school

November 2008 — Landowner approaches Department to gauge appetite for our purchase of land adjacent to school; Landowner outlines very high valuation of the land, and clear desire to progress a land swap, which we confirmed was not on the table.

December 2008 — Department confirmed Estates Director to progress dialogue re. purchasing 1.95 acres.

7 January 2009 — Estates Director and Government Valuer meet with Landowner to discuss valuation of land and potential way forward to secure; Landowner agreed to provide Government Valuer with details of valuation of land, to progress — not forthcoming — dialogue stalled. 137 138 KIRK MICHAEL LAND EXCHANGE AGREEMENT

Schedule of Key Events - continued

July 2010 — Minister meets with Landowner to discuss possible land swap options.

August 2010 — Estates Director approached by Heritage Homes — offer outlined at meeting 26/8, for consideration (see attached meeting note, ref B).

8 October 2010 — Minister, Director, and Estates Director discuss proposals (see attached meeting note, ref C).

29 October 2010 — Government Valuer confirms that 'the proposal represents a satisfactory arrangement for the DepartmenC(see attached Treasury letter, ref D).

October 2010 — August 2011 — Dialogue progresses with Developer, Landowner, DoI Highways, Government Valuer and Attorney General's office.

18 January 2011 — amended Tynwald motion carried — Tynwald 'supports the Department of Education in its current and future discussions to sell or transfer the ownership of part of the land at Michael Primary School, Douglas Road, Kirk Michael, for the purpose of ensuring the ability to develop further the school site for the benefit of the school and the community'

15 April 2011 — DoI Highway's email to Heritage Home's Transport Consultant confirms that the proposed Lhergy Vreck access is considered appropriate to serve 100 dwellings (see attached email, ref E).

26 July 2011 — Government Valuer confirms valuation provided on 29 October 2010 is still valid (see attached letter, ref F).

5 August 2011 — Government Valuer confirms relative land valuations (see attached email, ref G).

10 August 2011 — Treasury approval (see attached email, ref H).

16 August 2011 — Agreement entered into.

139 140 REPORT OF THE SELECT COMNII1TEE OF TYNWALD ON THE KIRK MICHAEL LAND EXCHANGE AGREEMENT

SUBMISSION DATED 22 MARCH 2012 FROM DEPT OF EDUCATION AND CHILDREN

Document A has been redacted

141 142 Dom 8/1

DEPARTMENT OF EDUCATION & CHILDREN

FILE NOTE

Meeting: Seamus Nugent / Ciaran Downey of Heritage Homes, and Richard CoUlster, Estates Director DEC, at St George's Court.

Date /Time: 26 August 2010, at 10.00am

Subject: Kirk Michael land / proposed residential development

I met with Seamus Nugent (MD) and Ciaran Downey (Housing Director), of Heritage Homes on 26/8, further to a request from them to meet to discuss the current situation on the above.

They advised that previous option on land with Mr Lewis had lapsed since scheme had not progressed to planning, and that they had since been in battle with Hartford Homes to secure a new deal. It sounds as though a deal was at its final stages with Hartford, but at the 11th hour Heritage Homes secured Westlands by outbidding Hartford (house to left of proposed new public highway access, at the access lane to the Lewis's Lhergy Vreck), to frustrate the Hartford / Lewis deal. I understand that Heritage Homes relationship with the Lewis's suffered as a consequence ... but things were patched up, and '2 months ago' they signed a new development option on the land with the Lewis's.

They advised that they secured Westlands for Elm (market residential valuation £400k?), and also own Cass A Lergy to the right of the proposed highway access — they have thus secured appropriate sight lines from the roadway onto the main highway. They have also secured a ransom strip to facilitate the required emergency vehicle access to / from Slieu Curn to the north.

They advised that their option with the Lewis's is based on the Lewis's receiving 20% (they commented that this was at the top of the scale re. other similar deals on the Island) of the ultimate overall development value of the land i.e. total housing sale receipts. (post meeting I have done a few calculations — based on a conservative average house price of £250,000 (with proposed larger £400,000+ homes offsetting the first time buyer homes), this would equate to a total development value of £31.75m — 11.85 acre site equates to £535,000/ acre!!)

They advised that they have a similar option with Mr Lewis for a further 14 acres of unzoned land, directly adjacent and to the east of the proposed development.

They do however still appreciate that a direct access to the development land via a new link road from the Douglas Road corner, at the Glen Wyllin / Peel Road junction is Doi's preferred solution .. particularly as it makes more sense with regarding to any potential Kirk Michael by-pass aspirations in the long term, on the back of future housing development.

In order to secure part of the school corner field to facilitate, they confirmed that they were willing to offer the same land area in lieu as our previous dialogue — they mentioned 1.8acres (I confirmed it was actually 1.95 acres, less 0.85 loss at corner field — net gain 1.lacres), plus £100,000 of works undertaken by them at cost.

They acknowledged that this was a lesser deal than was previously on the table — they confirmed that since they have now secured the alternative route at significant exceptional cost, the money was no longer in the development appraisal to offer the new drained pitch / playground / fencing / walling / access steps/ ramps etc previously negotiated. They also contended that the potential for any deal was lessened by the 'new' requirement for 25% of the homes on the development to be 'at cost' first time buyer homes (this is not new — their previous scheme included this requirement).

They asked that the Department consider the above offer and respond — they are looking for an early response, so as to not delay progression to planning.

R A Collister 30/08/10

145 146 I I manufacturing specialist. I 127 I

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REV. 1 AMENDMENT STATUS Constructio heri horr Dandara Group Hear Isle of Man Business Cool! Road, Braddan ndale Isle of Man IM2 2SA

telephone facsimile sales telephone sales facsimile email web

pRw. New jun PROJECT 1 access to PROJECT 2 Farm an PROJECT 2

Ballachrink Beg DRAWING 2 Cass A DRAWING 3 New boundary h Lergy SCALE DATE SCALE DATE wall to Cass DRAWING NO DWG NO VORKING ON VERSION.dwg 148 Department of Education and Children Dom ci Meeting Note

Present: Mr E Teare, Minister Mr J Cain, Director Mr R Collister, Estates Director

Date / Time 8 October 2010, at 4.00pm

Subject: Kirk Michael land / proposed residential development

Further to letter dated 1 October received from Long and Humphrey, acting for Pinecrest Investments Limited , confirming 'they have now concluded an agreement with Heritage Homes with regards to the sale and development of the land, and as such they are authorised by my client company to conduct and conclude negotiations with your Department for the possible exchange of land', the Minister and RC had met to discuss Heritage Home's (HH) recent offer (all as detailed within RC memo 30/8 and meeting note 26/8).

Minister confirmed that in order to consider further, an improved proposal, similar to that previously established in 2007 needed to be provided by HH.

RC confirmed he had relayed this to HH, and had subsequently met with them this morning, where they tabled an improved offer.

RC confirmed that the offer was now closer to the 2007 position — i.e. land gain of 1.1 acres and provision of new playing field, play area, boundary fencing etc subject to the following key changes —

• Football pitch — previously to be fully designed by our preferred consultant PSD (as used at Bemahague, Scoill Ree Gorree etc), and including drainage system; now HH still undertaking to provide a free draining, flat and level pitch suitable for use all year round .. without PSD involvement .. and with belief that no positive drainage system is required .. since they believe on back of percolation test that they have done on the land, that it will not be needed (we would need to ensure suitable performance criteria have been set).

• Playground — reduced below ground specification — omission of extra 200mm capping layer / tensar geogrid (we would need to ensure suitable performance criteria have been set).

• Northern boundary — previously new boundary wall to all (Manx stone pillars and capping / dashed panels); now 1.8m high proprietary weld-mesh fencing to playground, and boundary to future extension lands left as is.

• Future development land — previously enclosed by new boundary wall, turfed, and foul and surface drainage tails provided for our future development; now — part of HH public open space - conveyed to us and area as before, but to remain as part of 'fair field' for Commissioners / local use, until such time as we need for development — no drainage provision (we would need to otherwise deal with ourselves through our site drainage)

Admin shared/Estates Director/Meetings/Kirk Michael IlaM 8-10-10 150 Doc Minister confirmed willing to progress further on this basis subject to —

• Government Valuer confirmation that proposed deal still equitable (should be case since Stokes v Cambridge ransom value should have reduced now HH have secured alternative access) — RC to consult with Government Valuer

• Additional land conveyed not to be covenanted for Educational use

• Right to pass and re-pass over new highways and onto our lands (need to specifically ensure that access is maintained from rear into the development land, to facilitate construction of future extensions etc)

Subject to above Minister confirmed desire to progress agreement without any further consultation.

RC reconfirmed basis of previous Minister's decision in 2007, as confirmed in response to Keys question 29/5/07 i.e. 'I have taken personal interest in the community's views on this proposal and have considered them very carefully. At the present time, I have decided to decline the proposal for the land exchange because the potential disadvantages to Kirk Michael outweigh the possible benefits to the school.

RC tabled draft updated sequencing plan provided by HH — could see initial works in establishment of new playing filed progressing from Spring 2011.

Notwithstanding merit of proposed agreement, Director / RC confirmed political sensitivity of progressing.

All discussed proposed reasons for progressing with agreement now, as follows —

• Through purchasing Westlands and Cass A Lergy properties, HH have now secured an alternative means of access to the proposed housing development

• The land is zoned for 'predominantly residential use' (PMN — ref Isle of Man Planning Scheme (Michael Local Plan) Order 1994 — Area 5), unlikely that DEC would be able to block development — chances of HH securing planning approval now much higher

• If we don't act, potential for development up to our existing rear boundary - we need to protect future of school

• Negotiating with HH to buy land at rear, if / when they secure residential planning approval could cost £0.5 — £1.0m, plus loss of works in creating playing field, playground, fencing etc.

Signed: Minister for Education and Children

Date.

Admin shared/Estates Director/Meetings/Kirk Michael U; 8-10-10 152 REPORT OF THE SELECT COMMITTEE OF TYNWALD ON THE KIRK MICHAEL LAND EXCHANGE AGREEMENT

SUBMISSION DATED 22 MARCH 2012 FROM DEPT OF EDUCATION AND CHILDREN

Document D has been redacted

153 154 Dom E/

Original Message From: Joe McLoughlin Sent: 15 April 2011 17:03 To: '[email protected]' Cc: Ciaran Downey Subject: FW: Kirk Michael

Dear Mr Teare,

Herewith, correspondence from Highways Division of D.O.I. commenting on the various proposals which our highway consultants have put forward in respect of accessing our site at the above. When we met with the T.T. riders representatives, including Carolyn Kinrade and the ACU rep., it became abundantly clear to us that because of the amount of road markings involved and the time it would take to set up the road for racing, that a roundabout solution would not be supported by them. They seemed quite happy that a traffic signal controlled staggered T Junction would work and that this solution would receive their support.

The Highways Division are also happy that the site can be accessed independently from Douglas Road at Cass A Lergy, over land which is in our control. This would provide access to a development of 100 dwellings approx. The estate road network would be designed so as to enable future relief road access from Douglas Road Corner should this be required in the future. Notwithstanding the above, our preferred access option is from Douglas Road Corner, through part of the school playing field as discussed previously.

Yours sincerely,

Joe McLoughlin

Original Message From: Kathryn Atkinson [mailto:[email protected]] Sent: 15 April 2011 11:44 To: Heritage Homes Limited ([email protected]) Subject: FW: Kirk Michael

Joe

Bryan has asked me to forward this to you. He has also asked me to send it to his machine at home and will phone you when he has read it.

Kath

Bryan G Hall Consulting Civil & Transportation Planning Engineers Suite E8 Joseph's Well Hanover Walk Leeds 15.5 156 LS3 1AS Doc, E/i7 Tel (0113) 2461555 Fax (0113) 2342201

Website www.bryanqhall.co.uk

This email is intended solely for the addressee. It is strictly confidential, it may contain information that is privileged and must not be used by, or its contents copied or disclosed, to persons other than the intended addressee.

This email has been scanned for all known viruses before sending.

From: Almond, Kevin [mailto:[email protected]] Sent: 15 April 2011 10:31 To: Sewell, Derek; Highways Subject: FW: Kirk Michael

Original message From: kevin almond Sent: 15/04/2011, 10:21 To: Almond, Kevin Subject: Kirk Michael

Dear Bryan,

Thank you for your letters of the 10th February and 14th March 2010.

In reply to your letter of the 10th Febr -1 of theproposedpp1 -unction next to Kirk Michael School.

The roundabout option:

Though this is the Departments preferred option, consultation with representatives from the TT has shown that this option will need to be set aside until such time that a design can found that satisfies both the Departments desire for a safe and efficient junction and the TT representatives desire for a junction that can safely accommodate racing.

The simply priority crossroad option:

TD 42/95 considers that a staggered T junction is preferable to a crossroads junction due to crossroads having generally poor safety performance. The document goes on to recommend that crossroads are 1571 158 _Doc E 43 considered suitable only at simply junctions where the minor flows do not warrant a ghost island or single lane duelling. The existing minor road (A4) 2 way AADT vehicular flow will exceed the 300 vehicle threshold for a ghost island. The 2 way AADT flow for the new minor road serving the development will also likely exceed the threshold, given that the predicted combined am and pm peak 2 way flow is 240 vehicles. In both cases the minor arm flow would preclude the option of a priority crossroads. Furthermore, there is also a general recommendation that it is undesirable to position a simply junction inside a sharp curve.

Finally, the junction design would be constrained as additional safety measures such as ghost islands, hatching or physical islands which may be required would be resisted by the TT representatives.

Therefore, the Department would not support the introduction of a crossroad junction at this location.

In addition the 'y' distance to the left from the proposed road is only 75m to the nearside kerb and passes across 3rd party land at its southern most point.

The traffic signal control option:

Therefore, given the safety and siting issues of a priority junction given and the requirements of the TT, restricting road markings and highway works on the course, the Department considers best available option to be a traffic signal controlled crossroads. Of the two option presented, drwg no. 09/348/TR/018 is preferable.

In re I to our letter of the 14th March re ardin a ra osed unction next to Cass A Ler orw 09/348/TR/002)

The Department considers that the proposed junction could serve the 100 dwellings as previously considered by the Department in relation to the proposed junction adjacent to Kirk Michael School.

The Department is willing to accept a reduction the 'x' distance to the north from 4.5m to 3.5m on assumption that it serves only the 100 dwellings as previously considered.

It should be noted that the design and layout of the development if accessed from this point shall not constrain the future development of a by-pass and its junction with the A3 & A4.

1 160 Regards, boa Eit

Kevin

2011 - Year of the Commonwealth Youth Games

Isle of Man. Giving you freedom to flourish

WARNING. This email message and any files transmitted with it are confidential and may be subject to legal privilege You must not copy or deliver it to any other person or use the contents in any unauthorised manner without the express permission of the sender. If you are not the intended addressee of this e- mail, please delete it and notify the sender as soon as possible

RAAUE• S'preevaadjagh yn ghaghteraght post-I shoh chammah's coadanyn erbee currit marish as to shoh coadit ec y leigh Cha nhegin diu coipal ny cur eh da peiagh erbee elley ny yrnmydey yn chocid fayn er aght erbee dyn kied leayr veih'n choydagh Mannagh nee shiu yn enmyssagh kiartt jeh'n phost-I shch doll-shiu magh eh, my sailliu, as cur-shiu fys da'n choyrtagh cha leah as oddys shiu

Cha net kied currit da failleydagh ny jantagh erbee conaant y yannoo nsh peiagh ny possan erbee lesh post-I er son Rheynn ny Boayrd Slattyssagh erbee jeh Reiltys Ellen Vannin dyn co-niartaghey scruit leayr veih Reireyder y Rheynn ny Boayrd Slattyssagh teh bentyn risk

The information contained in this email is intended for the named recipients only. It may contain privileged and confidential information and if you are not an intended recipient, you must not copy, distribute or take any action in reliance on it. If you have received this message in error please notify us immediately by email to [email protected]. Recipients must understand that conclusions, opinions and other information contained in the above email not relating to the official scope of business of Dandara Holdings Limited or associated companies shall be deemed not to have been given or endorsed by Dandara Holdings Limited or associated companies.

1614 162

G A L L

'i1.11111, Engineers

Our ref: 09-348/BGH/KJA

14 March 2011

Mr K Almond Directorate of Highways Department of Infrastructure Sea Terminal Building Douglas IM1 2RF

Dear Kevin

PROPOSED JUNCTION OF RESIDENTIAL ACCESS ROAD WITH A3, KIRK MICHAEL

The Kirk Michael Local Plan Written Statement, December 1994, sets out that the development of any land to the east of Kirk Michael " should pay regard to the suggestion of a bypass to the east of Kirk Michael " and that "..,...... the feasibility and desirability of such a link should be further examined ". The Kirk Michael Relief Road, Joint Study, Draft Final Report, April 2004 examines that feasibility and desirability and it sets out that a development of 150 dwellings with direct access to A3 could be constructed on the land allocated for residential development to the south- east of Kirk Michael, behind the School, prior to any Relief Road being provided.

I therefore enclose a copy of my drawing numbered 09/348/TR/002 Rev A which is based on a topographical survey of A3 and it shows a simple priority junction of a 5.5 metre wide residential access road with that road in the vicinity of the property, Cass A Lergy.

I carried out surveys of the use of A3 in the vicinity of the proposed junction during the morning and evening peak periods of Tuesday 24 November, 2009, and the attached findings show that it was carrying flows of some 404 and 366 vehicles per hour at those times of day respectively. In accordance with advice contained in TA79/99, Traffic Capacity of Urban Roads, the capacity of a road such as A3 in this vicinity is of the order of 2,000 vehicles per hour and hence the surveys show that it is operating at some 20% or less of its traffic carrying capacity during its peak periods of operation and less at other times of the day. There are therefore numerous gaps in its traffic flows into which traffic from minor side roads can emerge and join that road. This section of road is also subject to a 30mph speed limit and in accordance with the advice contained in PPG13, Transport, March 1994, visibility splays with major road dimensions of 90.0 metres should be provided in both directions at a junction in this location. I have, however, carried out surveys of the speed of traffic at the extremities of its visibility splays, as it approaches the proposed junction, and I also attach those

Continued

Registered Office Suite Ell Joseph's Well Hanover Walk Leeds LS3 1AB VAT No 399 4601 07 Telephone 0113 246 1555 Fax 0113 234 2201 Email [email protected] Website tinaw,bryangitall.cmak Bryan G Ltd registered in England d Wales 18 163 Co No 4104802 164

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Continuation 1 Mr K Almond 09-348/BGH/KJA 14 March 2011

results for your information. They show that the major road dimension of the visibility splay towards the village, to the north, is correct at 90.0 metres but that to the south, towards the derestricted section of road, should be 120.0 metres in accordance with the guidance based on measured speeds. A minor road dimension of 4.5 metres is available for the visibility splay to the south when it is measured to a point 0.06 metres (6cm) into the carriageway and one of 3.5 metres is available for that to the north when it is measured 0.6 metres (60cm) into the carriageway, a distance which will not result in the visibility of any approaching vehicles being lost from the view of emerging drivers. This minor road distance is equivalent to 2.9 metres when measured to the kerb line. Drivers of vehicles joining A3 from the proposed residential access road will therefore be able to comfortably see any traffic approaching on A3, from both directions, in time for them to judge whether it is safe to join the main road or wait until the approaching traffic has passed. Visibility splays provide inter-visibility between drivers of vehicles emerging from junctions and those approaching junctions and hence, drivers of vehicles approaching the proposed junction will be able to see any emerging vehicles in time for them to slow down or stop safely if that should be necessary.

I have analysed the operation of the proposed junction when carrying the surveyed traffic flows and the assigned traffic likely to be generated by 100 dwellings on the application site as that is the order of development which can be accommodated. I attach details of the assignment which is based on a generation rate for the development of 0.8 vehicles per dwelling during the morning and evening peak periods and turning manoeuvres based on the existing two-way flows, together with the resulting predicted flows. I also attach the two Picady analyses for the morning and evening peak periods which show that the junction will operate without any queues of traffic forming and the resulting RFC values will be 0.083 during the morning and 0.102 during the evening peak periods. This will result in inclusive delays of some 8-9 seconds per vehicle. There is therefore no requirement for vehicles which are emerging from the residential estate road to join A3 without first coming to a halt so that their drivers can see traffic which is approaching from both directions on A3 and therefore the dimensions of the visibility splays shown on the drawing will allow the junction to operate safely in accordance with the guidance set out in PPG13. I do consider that the 4.5 metre minor road dimension of the splay to the north could also be reduced to 2.9 or 3.5 metres to correspond with that to the south because there is no need for emerging drivers to see along A3 at a distance of 4.5 metres back from the give-way line, or, to their left before they can see to their right.

Continued

19 165 166 RYAN • LL L consftitiug t:5' rrauSpo).Patio;1 ci!gl-neers

Continuation 2 Mr K Almond 09-348/BGH/KJA 14 March 2011

The attached drawing 09/348TTR/002 Rev A also shows the vertical alignment of A3 and that forward visibility of 120.0 metres is available over a distance of 171,0 metres towards the junction for drivers travelling in a northerly direction. This is some 9.0 metres less than that recommended in TD 42/95, Geometric Design of Major/Minor Priority Junctions but is only required because vehicles are travelling at speeds greater than the 30mph speed limit which they have only recently joined from the derestricted section of road and are consequently slowing to that speed. Forward visibility of 90.0 metres is available over a distance of 135.0 metres for drivers of vehicles travelling in the opposite direction, from the centre of Kirk Michael, towards the junction.

Will you please consider this proposed means of access to a development of some 100 dwellings on the land allocated in the Kirk Michael Local Plan in the light of the recommendations of the Atkins Report, the Local Plan itself and other guidance used to assess the safe operation of the junction in order that Heritage Homes can decide how best to proceed with their application for residential development of the allocated land.

I look forward to hearing from you

Yoyf sincerely

Bryan Hall enc cc Messrs C Downey & J McLoughlin, Heritage Homes Limited

20 167 168

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21 170 REPORT OF THE SELECT COMMITTEE OF TYNWALD ON THE KIRK MICHAEL LAND EXCHANGE AGREEMENT

SUBMISSION DATED 22 MARCH 2012 FROM DEPT OF EDUCATION AND CHILDREN

Document F has been redacted

171 172 REPORT OF THE SELECT COMMITTEE OF TYNWALD ON THE KIRK MICHAEL LAND EXCHANGE AGREEMENT

SUBMISSION DATED 22 MARCH 2012 FROM DEPT OF EDUCATION AND CHILDREN

Document G has been redacted

173 174 Dom .911 Collister, Richard DEC

From: Rivers, Neil Sent: 10 August 2011 14:35 To: Collister, Richard (DEC) Cc: McGreal, Clive Subject: FW: Michael school land exchange and accommodation works

Afternoon Richard - At its meeting of 10th August 2011, Treasury approved the land swap set out in your email of 5/8/11 below, subject to: 1. the Department confirming that Government bodies have been circulated with details of the disposal of the 0.89 acre plot and none have expressed an interest in acquiring it; and 2. the Department consults with the Attorney General's Chambers with regard to the wording of the restrictive covenant (re 1.85 acre plot).

Neil

Neil Rivers Budget & Financial Management Section, Corporate Strategy Division, Treasury, Government Office, Bucks Road, Douglas, Isle of Man, IM1 3PX

Tel: 01624 685601 Fax: 01624 685712

From: McGreal, Clive Sent: 08 August 2011 10:07 To: Rivers, Neil Subject: FW: Michael school land exchange and accommodation works

Neil

Please review this and prepare a paper for Treasury. I'll walk it in on wednesday

Clive

From: Collister, Richard (DEC) Sent: 05 August 2011 15:04 To: McGreal, Clive Cc: Teare, Eddie; Dobson, Stuart; Murphy, Anthony; Griffiths, Eddie Subject: Michael school land exchange and accommodation works

Clive,

I understand that the Minister mentioned the Kirk Michael land-swap at the Political BEAR meeting last Friday, and you reminded him of the requirement to get Treasury concurrence to the proposed deal.

I can confirm that the basis of the proposed agreement for the exchange of land and accommodation works is as follows —

• Conveyance A - the Department is to convey circa 0.89 acres of part of our corner school field to the Landowner (Pinecrest Investments Limited) — land to be conveyed is as outlined in red on Conveyance A Plan Nr 1 attached (value agreed to be £778,000 — mean of Government Valuer's valuation as email to Heritage Homes 27/7/11 attached).

1 715 176 boci • Conveyance B - the Department is to receive circa 1.85 acres of land from the Landowner (Pinecrest Investments Limited) — land to be conveyed is to the north and east (rear) of the school site, as outlined in red on Conveyance B Plan Nr3 attached (value agreed to be £694,000 -- mean of Government Valuer's valuation as email to HH 27/7/11 attached).

• Accommodation Works - the Department is to benefit from the accommodation works to be carried out at no cost by the Developer (Heritage Homes), including creation of a new pitch and hard play area, and boundary works — ball stop fencing, boundary fencing / gates, walls, ramps and paths, landscaping etc.. all as shown on Accommodation Works Plan 4 attached, and as detailed within the agreed Pitch Specification — the accommodation works are assessed to have a current value of circa £400,000.

• Covenant - Conveyance B is to be covenanted, to prevent development of more than 100 dwellings on the zoned land — this is DoI Highways agreed limit on the alternative Lhergy Vreck access secured by the Developer (the Development site outline in red on the Development Site — Plan 3 attached), or any development on the future land (as shown on Option Land Plan 1 attached), without our agreement to lift the covenant and an overage payment being determined and payable to us for the same.

We consider that the foregoing represents a good arrangement for the Department — the securing of a net additional 0.96 acres of land at the school, the provision of a sports pitch and new hard play area, and land to the north of the school for future classroom development, as and when roll / capacity needs dictate.

Find also attached copy of the Government Valuer's letter 26/7/11 for your further information and background.

I confirm that the proposed agreement is currently in the process of being engrossed for signing by the parties, and so early Treasury concurrence to the foregoing would be appreciated.

Regards

Richard

Richard A Collister BSc (Hons), MRICS. Director of Estates Department of Education and Children Unit 15 Snugborough Trading Estate Braddan Isle of Man IM4 4LH

Tel: 01624 686428 Fax: 01624 628667 Mob: 07624 431456 Email: richard.collisterggov.im Website: www.gov.im/dec

171 178

Department of Education and Children

Rheynn Ynsee as Paitchyn Hamilton House, Isle of Man Peel Road, Douglas Government From the office of the isle of Man INI1 5EZ Chief Executive Officer Reilfys Ellan Vonnin Direct Dial No: (01624) 686801 finish Oikyn Ard Sheckter Fax: (01624) 685845 Our Ref SD/JK Website: www.gov.irnieclucation Stuart Dobson Email: stuart.dobson@govim 22 June 2012

Mr J King Deputy Clerk of Tynwald Legislative Buildings Douglas IM1 3PW

Dear Jonathan

Re: Kirk Michael oral evidence — follow up

Thank you for your email dated 14 June 2012. My response to the points you have raised are as follows:

QQ108-114 involvements of Minister Craine on land purchase discussions. Our then Director, Mr John Cain and our Estates Director met with the landowner, at their request, on 24 November 2008. As previously noted in our schedule of key events attached to our letter to you dated 22 March 2012, the landowner gauging our appetite for purchasing additional land adjacent to the school. They also confirmed their desire to still progress a land swap.

At the next Department meeting held on 8 December 2008, the approach and meeting with the landowner was discussed, and the Estates Director was instructed to enter into negotiations with the landowner, with regard to the purchase of additional land. (Extract from Department minutes attached).

It was agreed that the Department should seek to purchase 1.95 acres, ie In line with the land to be gained under the previously proposed land swap — land to the rear for playing field/hard play, and the side to facilitate future school extension.

As previously advised, the Estates Director and Government Valuer met with the landowner on 7 January 2009, but the information requested was not forthcoming and the dialogue stalled. The Estates Director updated Minister Craine and Director, and there was no further contact until Minister Teare was approached by the landowner in July 2010.

QQ206-209 contact with Chief Internal Auditor. This was informal and there are no meaningful records other than within the documents already provided. The Minister asked Internal Audit to look at the specific issue of the Cambridge Stokes precedent being applied in this valuation and it was confirmed.

I hope the above is helpful.

Yours sincerely

re. Stuart Dobson Chief Executive Officer

Enc

179 180 DEPARTMENT OF EDUCATION

8 DECEMBER 2008

Present: Minister for Education the Hon Mrs A V Craine MHK (Chairperson); Mr W Henderson MHK; Mr E Lowey, MLC; Mr G Cregeen, MHK.

In Attendance: Mr 3 C Cain Director of Education; Mr S Dobson, Deputy Director of Education; Mr J Gill, Head of Legal and Administrative Services.

Mr A Halsall, Finance Director; Mr R Collister, Estates Director; Mr M Barrow, Acting Senior Adviser; Mrs H Christian, Director of Corporate Services; Mr M Clague, Youth and Community Adviser.

3. Estates Report

The Estates Director joined the meeting at this point.

A potential land purchase adjoining one of the Department's primary schools was discussed in detail. The Estates Director was instructed to enter into further negotiations with the landowner and report back to the Department at the next meeting.

181 182 APPENDIX 4 184 LEGISLATIVE BUILDINGS ISLE 01: MAN IM 13PW

20 March 2012

Mr J King Clerk of the Select Committee on the Kirk Michael School Land Exchange Agreement Legislative Buildings DOUGLAS IM1 3PW

Dear Mr King

Kirk Michael Land Exchange Agreement

I write in response to your letter dated 7th, March giving me the opportunity to submit written evidence to the Committee. You will appreciate that the short timescale does not permit as full a submission as I would wish. To assist the Committee I have set out the main events in chronological order as follows;

17 January 2007 Valuation from Government Valuer giving value of access through the School grounds withoutalternative access. This is attached as appendix 1.

19 December 2007 Heritage Homes secures option over part of the garden of Cass A Lergy which is on the South Side of the Lhergy Vreck Road. Registered at Land Registry 7th, January, 2008

1 July 2008 Heritage Homes buys Westlands, Douglas Road, Kirk Michael at a consideration considerably in excess of the then current market value. This property lies to the North Side of the Lhergy Vreck Road. Note- The two transactions gives the developer the ability to create a visibility splay to give access to the land on the East Side of the properties via the Lhergy Vreck Road.

185 186 Cont November 2008 Landowner's daughter approaches the Department to gauge appetite for purchase by DOE of land adjacent to the school. High valuation placed on the land, but there was a desire on their part to progress a land swop.

December 2008 Department confirmed wished Director of Estates to progress dialogue with a view to purchasing 1.95 acres from the landowner.

7 January 2009 Director of Estates and Government Valuer met landowner's daughter to discuss valuation of the land and potential ways to secure, but was not progressed.

July 2010 Minister Teare met landowner's daughter and architect to discuss possible land swop options.

August 2010 Director of Estates approached by Heritage Homes to discuss potential land swop. A meeting was held on 26 August 2010 and copy of the notes of the meeting are attached as appendix 2.

8 October 2010 Internal meeting at DOEC between Minister, Director and Estates Director discussing proposals and agreeing the transaction was to the benefit of the Department. (see appendix 3)

29 October 2010 Updated valuation from the Government Valuer confirming that the proposed transaction represented a satisfactory arrangement for the Department. (see Appendix 4)

November and December 2010 Telephone conversations with Highways regarding access to the site from the Lhergy Vreck Road.

18 January 2011 During the Tynwald debate on Mr Cannan's Motion he said Nobody Is denying access to the development. They have got access. (Hansard 18 Jan 2011 line 5673)

Cont

187 188 15 April 2011 E Mail from Mr K Almond, Highways, confirming that they would permit access to the site for 100 units, via the Lhergy Vreck Road. (Appendix 5)

26 July 2011 Further valuation advice from the Government Valuer confirming that the valuation of 29 October still stands. (See Appendix 6)

16 August 2011 Agreement signed.

Yours sincerely

6001- W-Eleare MHK

189 190 REPORT OF THE SELECT COMMITTEE OF TYNWALD ON THE KIRK MICHAEL LAND EXCHANGE AGREEMENT

SUBMISSION DATED 20 MARCH 2012 FROM HON EDDIE TEARE MHK

Appendix 1 has been redacted

191 192 DEPARTMENT OF EDUCATION & CHILDREN

MEMORANDUM 11, To: Minister- (4,A, cc: Director

From: Richard Collister, Estates Director

Date: 30 August 2010

Subject: Kirk Michael school — proposed residential development

Minister,

Find attached note of my meeting with Heritage Homes last Thursday 26 August, and detail of their land swap offer put to me, for consideration by the Department. I thought it would also be useful to provide you with a summary of the dialogue / consultations since the initial approach from Heritage Homes in 2005 — see attached further file note / enclosures, for your information.

Clearly the offer now on the table is poor relative to the previous proposal .. although to a degree understandably so, since they have since our previous negative decision secured alternative access.

I can't see them significantly improving on this offer .. I think that they will rather progress to planning based on the scheme they have developed. Even if they did improve their offer, I doubt that we would ever restore the previous deal .... and even if we did, would you be minded to overturn the previous Minister's May 2007 decision?

If they progress to planning then we would object on the grounds that the development will land lock the future development of the school ... and I would like to think that DoI Highways will object to the proposed access way, which I cannot see as being appropriate for a 127 home development .. nor future development .. and wholly inappropriate as a starting point for a future Kirk Michael by-pass; will undoubtedly ultimately go to appeal and be in the hands of a UK Inspector!!l...

Clearly if Heritage Homes fail to secure confirmation of approval or overturn a refusal at appeal, we will be in a stronger position than 2007 when the previous proposal was established ... however we run the risk that Heritage Homes will get approval, and the long term future of the school could be compromised by surrounding new housing development (as Ballaugh...).

Please consider — you may wish to discuss with your fellow members at the next Department meeting.

I am on holiday from this Friday 3 September 2010.

193 194 DEPARTMENT OF EDUCATION & CHILDREN

FILE NOTE

Meeting: Seamus Nugent / Ciaran Downey of Heritage Homes, and Richard Collister, Estates Director DEC, at St George's Court,

Date /Time: 26 August 2010, at 10.00am

Subject: Kirk Michael land / proposed residential development

I met with Seamus Nugent (MD) and Ciaran Downey (Housing Director), of Heritage Homes on 26/8, further to a request from them to meet to discuss the current situation on the above.

They advised that they secured Westlands for am (market residential valuation £400k?), and also own Cass A Lergy to the right of the proposed highway access — they have thus secured appropriate sight lines from the roadway onto the main highway. They have also secured a ransom strip to facilitate the required emergency vehicle access to / from Slieu Curn to the north.

They advised that their option with the Lewis's is based on the Lewis's receiving 2O% (they commented that this was at the top of the scale re. other similar deals on the Island) of the ultimate overall development value of the land i.e. total housing sale receipts. (post meeting I have done a few calculations — based on a conservative average house price of £250,000 (with proposed larger £400,000+ homes offsetting the first time buyer homes), this would equate to a total development value of £31.75m — 11.85 acre site equates to £535,000/ acre!!)

They advised that they have a similar option with Mr Lewis for a further 14 acres of unzoned land, directly adjacent and to the east of the proposed development.

They confirmed that they now wished to proceed to planning on the scheme, and tabled proposed plans showing access via the Lhergy Vreck highway access, and a development comprising 127 homes. Plan of proposed scheme provided (over 2 Al plans). They confirmed proposal to ultimately gift Fairfield (land to north of school) to Michael Commissioners — to be included in planning as part of their public open space calculation. (part of this land was previously to facilitate extension of the school). 196 They do however still appreciate that a direct access to the development land via a new link road from the Douglas Road corner, at the Glen Wyllin / Peel Road junction is Dot's preferred solution .. particularly as it makes more sense with regarding to any potential Kirk Michael by-pass aspirations in the long term, on the back of future housing development.

They acknowledged that this was a lesser deal than was previously on the table — they confirmed that since they have now secured the alternative route at significant exceptional cost, the money was no longer in the development appraisal to offer the new drained pitch / playground / fencing / walling / access steps/ ramps etc previously negotiated. They also contended that the potential for any deal was lessened by the 'new' requirement for 25% of the homes on the development to be at cost' first time buyer homes (this is not new — their previous scheme included this requirement).

They asked that the Department consider the above offer and respond — they are looking for an early response, so as to not delay progression to planning.

R A Collister 30/08/10

197 198 Department of Education and Children 'T)

Meeting Note

Present: Mr E Teare, Minister Mr 3 Cain, Director Mr R Collister, Estates Director

Date / Time 8 October 2010, at 4.00pm

Subject: Kirk Michael land / proposed residential development

Further to letter dated 1 October received from Long and Humphrey, acting for Pinecrest Investments Limited , confirming 'they have now concluded an agreement with Heritage Homes with regards to the sale and development of the land, and as such they are authorised by my client company to conduct and conclude negotiations with your Department for the possible exchange of /and; the Minister and RC had met to discuss Heritage Home's (HH) recent offer (all as detailed within RC memo 30/8 and meeting note 26/8).

Minister confirmed that in order to consider further, an improved proposal, similar to that previously established in 2007 needed to be provided by HH.

RC confirmed he had relayed this to HH, and had subsequently met with them this morning, where they tabled an improved offer. - • - RC confirmed that the offer was now closer to the 2007 position -,Ife,land gain of 1.1 acres and provision of new playing field, play area, boundary fencing etc sub I a-t-(5-theToro-Vving — key changes -

• Football pitch - previously to be fully designed by our preferred consultant PSD (as used at Bemahague, Scoill Ree Gorree etc), and including drainage system; now 1-1H still undertaking to provide a free draining, flat and level pitch suitable for use all year round ., without PSD involvement .. and with belief that no positive drainage system is required .. since they believe on back of percolation test that they have done on the land, that it will not be needed (we would need to ensure suitable performance criteria have been set).

• Playground - reduced below ground specification - omission of extra 200mm capping layer / tenser geogrid (we would need to ensure suitable performance criteria have been set).

• Northern boundary - previously new boundary wall to all (Manx stone pillars and capping / dashed panels); now 1.8m high proprietary weld-mesh fencing to playground, and boundary to future extension lands left as

• Future development land - previously enclosed by new boundary wall, turfed, and foul and surface drainage tails provided for our future development; now - part of HH public open space - conveyed to us and area as before, but to remain as part of 'fair field' for Commissioners / local use, until such time as we need for development - no drainage provision (we would need to otherwise deal with ourselves through our site drainage)

Admin shared/Estates Director/Meetings/Kirk Michael land 8-10-10

199 200 Minister confirmed willing to progress further on this basis subject to —

• Additional land conveyed not to be covenanted for Educational use

Subject to above Minister confirmed desire to progress agreement without any further consultation.

RC reconfirmed basis of previous Minister's decision in 2007, as confirmed in response to Keys question 29/5/07 i.e. have taken personal interest in the community's views on this proposal and have considered them very carefully. At the present time, I have decided to decline the proposal for the land exchange because the potential disadvantages to Kirk Michael outweigh the possible benefits to the school:

RC tabled draft updated sequencing plan provided by HH could see initial works in establishment of new playing filed progressing from Spring 2011.

Notwithstanding merit of proposed agreement, Director / RC confirmed political sensitivity of progressing.

All discussed proposed reasons for progressing with agreement now, as follows —

• Through purchasing Westlands and Cass A Lergy properties, HH have now secured an alternative means of access to the proposed housing development

• The land is zoned for 'predominantly residential use' (PMN — ref Isle of Man Planning Scheme (Michael Local Plan) Order 1994 Area 5), unlikely that DEC would be able to block development — chances of HH securing planning approval now much higher

• If we don't act, potential for development up to our existing rear boundary - we need to protect future of school

• Negotiating with HH to buy land at rear, if / when they secure residential planning approval could cost £0.5 £1.0m, plus loss of works in creating playing field, playground, fencing etc.

Signed: Minister for Education and Children

Date:

Admin shared/Estates Director/Meetings/Kirk Michael land 8-10-10

201 202 REPORT OF THE SELECT COMMITTEE OF TYNWALD ON THE KIRK MICHAEL LAND EXCHANGE AGREEMENT

SUBMISSION DATED 20 MARCH 2012 FROM HON EDDIE TEARE MHK

Appendix 4 has been redacted

203 204

5-‘

lirg Kathryn Atkinson AnIMPMP OPInemift

From: Almond, Kevin IKevIn,Almond@highways,dotgovimi Sent: 15 April 2011 10:31 To: Sewell, Derek; Highways 0 Subject: NV: Kirk Michael Fri Original message From: kevin almond Sent: 15/04/2011, 10:21 To: Almond, Kevin Subject: Kirk Michael

Dear Bryan,

Thank you for your letters of the 10th February and le March 2010.

In reply to your letter of the 10'h FebruaLy, regarding the form of the Proposed junction next to Kirk Michael School.

The roundabout option:

Though this Is the Departments preferred option, consultation with representatives from the TT has shown that this option will need to be set aside until such time that a design can found that satisfies both the Departments desire for a safe and efficient junction and the -IT representatives desire for a junction that can safely accommodate racing.

The simply priority crossroad option:

TD 42/95 considers that a staggered T junction is preferable to a crossroads junction due to crossroads having generally poor safety performance. The document goes on to recommend that crossroads are considered suitable only at simply junctions where the minor flows do not warrant a ghost island or single lane duelling, The existing minor road (A4) 2 way AADT vehicular flow will exceed the 300 vehicle threshold for a ghost island. The 2 way AADT flow for the new minor road serving the development will also likely exceed the threshold, given that the predicted combined am and pm peak 2. way flow is 240 vehicles, In both cases the minor arm flow would preclude the option of a priority crossroads. Furthermore, there is also a general recommendation that it is undesirable to position a simply junction inside a sharp curve.

205 206 Finally, the junction design would be constrained as additional safety measures such as ghost islands, hatching or physical islands which may be required would be resisted by the TT representatives. 11111

1111 Therefore, the Department would not support the introduction of a crossroad junction at this location.

In addition the 'y' distance to the left from the proposed road is only 75m to the nearside kerb and passes across 3rd party land at its southern most point.

ii The traffic signal control option;

Therefore, given the safety and siting Issues of a priority junction given and the requirements of the TT, restricting road markings and highway works on the course, the Department considers best available option to be a traffic signal controlled crossroads. Of the two option presented, drwg no. 09/348/TR/018 is oi preferable.

In rep to o r e er K1- 4th Ma L I e ardin. • •r.}o - ct 6 i 14 .• IA 09/348NR/002)

The Department considers that the proposed junction could serve the 100 dwellings as previously 111 considered by the Department in relation to the proposed junction adjacent to Kirk Michael School.

I The Department is willing to accept a reduction the ixT distance to the north from 4.5m to 3.5m on a assumption that it selves only the 100 dwellings as previously considered.

11 It should be noted that the design and layout of the development if accessed from this point shall not constrain the future development of a by-pass and its junction with the A3 & A4.

I I Regards,

111 Kevin 1 2011 — Year of the Commonwealth Youth Games Isle of Man. Giving you freedom to flourish

I 12 2 I 207 208 REPORT OF THE SELECT COMMITTEE OF TYNWALD ON THE KIRK MICHAEL LAND EXCHANGE AGREEMENT

SUBMISSION DATED 20 MARCH 2012 FROM HON EDDIE TEARE MHK

Appendix 6 has been redacted

209 210 APPENDIX 5 212 infrastructure bun-troggalys Isle of Man Government Office of the Minister

.Reilly, Gllan V,11.111 and Chief Executive

Telephone: (01624) 686603 Mr J King Fax: (01624) 686617 Deputy Clerk of Tynwald and Clerk to the Select Email: a n ita m illerOgov. im Committee on Kirk Michael Land Exchange Contact: Anita Miller Agreement Our Ref: ITT/RP/KA/RI Legislative Buildings Your ref: Date: 20 March 2012 Douglas IM1 3PW I RECEIVED 2 2 MAR 2012

OFFXCE OF THE L CLERK OF TYNWALD Dear Jonathan

Kirk Michael School Land Exchange Agreement

I refer to your letter dated 7th March 2012 regarding the establishment of a Tynwald Select Committee to investigate the circumstances around the Agreement mentioned above.

The Department has had no involvement with this Agreement at all. However, it is recognised that certain planning and pre-planning issues in relation to the Department's functions as Highway Authority and Planning Authority may have had a bearing on the Agreement. I have therefore provided a note of that involvement and a copy of correspondence and records held by the Department which may help inform the investigation.

Planning Authority:

Anthony Holmes, Senior Planning Officer met with David Humphrey of Dandara on the 19th August 2011 to discuss the proposed Planning Application. At this meeting Mr Humphrey explained the proposed development before its formal submission.

Subsequently Mr Holmes attended the public inquiry (19th & 20th December 2011) to provide factual evidence if required but in the event did not participate in proceedings at the public inquiry.

Highway Authority:

A note of the Highway Authority's involvement and correspondence is shown in the Pre-Application Event Line attached to this reply at Appendix 1 and supported by the relevant documentation.

Kevin Almond, Network Traffic and Transportation Manager, also attended the public inquiry but did not participate.

The Department does not minute pre-application meetings as it does not have the resources to do so. These meetings are constrained to offer advice on Area Plans, policy and standards to assist applicants in understanding the context of their proposals, although the Department has no control over what the applicant chooses to submit.

Department of Infrastructure Sea Terminal Building, Douglas, Isle of Man, IM1 ZRF 2 I3 I hope this material assists the Committee in investigating this matter and, if my Department can be of any further assistance, please do not hesitate to contact me.

Yours sincerely

Chit f Executive cc: Mr R D Pearson, Director of Highways Mr M Gallagher, Director of Planning & Building Control Mr K Almond, Traffic & Transportation Manager

Encs: Appendix 1- Pre-Application Time Line and supporting documentation - Items 1-10

214 Appendix 1

Pre Application Event Line

Date Event Attachment No

7/12/10 Initial pre application meeting between DOI and Dandara

1 13/12/10 Bryan Hall (Transport Consultant for Heritage Homes) provides initial 1 roundabout designs

13/12/10 Designs are forwarded to Carolyn Kinrade for comment 2

, 12/1/11 Site meeting at Kirk Michael between DoI/Dandara/Race representatives to discuss feasibility of proposed roundabout designs

Email from Julie Keeble to Richard Pearson attaching plan of 3 bungalows

Bryan Hall provides revised roundabout design 4

3/2/11 Meeting between DOI/Dandara/Race representatives at Sea Terminal to discuss proposed roundabout design

8/2/11 Email from Julie Keeble to Richard Pearson attaching letter dated 5 7/2/11 from Minister Teare

10/2/11 Letter from Bryan Hall with revised junction designs 6

17/2/11 Email response from Richard Pearson to Minister Teare's letter of 7 7/2/11

14/3/11 Letter from Bryan Hall regarding proposed access at Cass A Lergy 8

15/4/11 DOI response to Bryan Hall's letters of 10/2/11 and 14/3/11 9

27/5/11 DOI response to a query raised by Minister Teare 10

215 Appendix 1

Pre Application Event Line

Date Event Attachment No

7/12/10 Initial pre application meeting between DOI and Dandara

13/12/10 Bryan Hall (Transport Consultant for Heritage Homes) provides initial 1 roundabout designs

13/12/10 Designs are forwarded to Carolyn Kinrade for comment 2

12/1/11 Site meeting at Kirk Michael between DoI/Dandara/Race representatives to discuss feasibility of proposed roundabout designs

19/1/11 Email from Julie Keeble to Richard Pearson attaching plan of 3 bungalows

21/1/11 Bryan Hall provides revised roundabout design 4

3/2/11 Meeting between DOI/Dandara/Race representatives at Sea Terminal to discuss proposed roundabout design

8/2/11 Email from Julie Keeble to Richard Pearson attaching letter dated 5 7/2/11 from Minister Teare

10/2/11 Letter from Bryan Hall with revised junction designs 6

17/2/11 Email response from Richard Pearson to Minister Teare's letter of 7 7/2/11

14/3/11 Letter from Bryan Hall regarding proposed access at Cass A Lergy 8

15/4/11 DOI response to Bryan Hall's letters of 10/2/11 and 14/3/11 9

27/5/11 DOI ressonse to a query raised by Minister Teare 10

216 Johnson, Pauline To; Johnson, Pauline Subject: FW: Kirk Michael

From: Joe McLoughlin [mailto:[email protected] Sent: 13 December 2010 17:15 To: Pearson, Richard Subject: RE: Kirk Michael

Thank you Richard,

Regards,

Joe McLoughlin Original Message From: Pearson, Richard imailto:Richard.PearsonPhighways.dot.gov.iml Sent: 13 December 2010 16:34 To: 'Bryan Hall' Cc: Joe McLoughlin Subject: RE: Kirk Michael

Hi Bryan

Thank you for providing further detail of your clients proposals.

For now I think it best that I pass this to the Clerk of the Course for his observations with a view to a meeting or further discussion in due course.

Regards

Richard

Richard Pearson BEng (lions) Civ Eng CEng MICE MCIHT DMS Director of Highways Department of Infrastructure Sea Terminal Building Douglas IM1 2RF Tel: 01624 686676 email: richard. earsonagov.im

From: Bryan Hall fmailto:bryanhallftbrvanghall.co.ukl Sent: 13 December 2010 15:10 To: Pearson, Richard Cc: Joe McLoughlin Subject: Kirk Michael

217 Dear Mr Pearson

Following on from our telephone conversation fast Friday morning, I now enclose two drawings numbered 09/348/TR/15/1, Rev A and 2, Rev A showing my thoughts on the design of a roundabout which conforms with the recommendations of the extant Kirk Michael Local Plan, 1994, the Kirk Michael Relief Road Joint Study, Draft Final Report, April 2004, and the Design Manual for Roads and Bridges TD16/07, Geometric Design of Roundabouts. Drawing 1 shows a general arrangement of the proposed roundabout and drawing 2 shows the existing contours of A3 and A4, with a grey background, and their extension into the Relief Road, with a white background.

Whilst I was developing this design, 1 tried to maintain the existing line and level of the carriageway which forms part of the TT course and hence the contours of the Relief Road approach have been developed on that basis. I did set the permanent kerb line of the sett paved low profile over-run area back some 300 - 350 mm from the existing kerb line but perhaps that might be better if it exactly followed the existing kerb line. I also assumed that straw bales could be placed along what is presently the edge of carriageway of A3 in order to enforce riders to use the existing racing line through the junction and on that basis, I assumed that the TT course would not change but in the light of our discussions, that may prove to be an incorrect assumption.

The part of the circuit in the vicinity of the proposed roundabout is used at speed during the races but speeds should be reduced at the approach to the roundabout in order to make it operate safely at other times. I therefore wonder if the kerb line on the approach from Douglas and the splitter island on the approach from Kirk Michael would be better if they were reinforced using plastic, sand or water filled, barriers so that they can be removed for the races.

The roundabout has ample capacity with RFC values in the range 0.3-0.4 and the attached drawing extracts show the swept paths of the maximum legal sized articulated vehicle carrying out various manoeuvres at the junction.

I therefore consider that the scheme is a good starting point and I will be pleased to receive your thoughts after you have discussed the matter with the TT officials.

I look forward to hearing from you .

218 Bryan Hall

Isle of Man. Giving you freedom to flourish

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The information contained in this email is intended for the named recipients only. It may contain privileged and confidential information and if you are not an intended recipient, you must not copy, distribute or take any action in reliance on it. If you have received this message in error please notify us immediately by email to adminadandara.com . Recipients must understand that conclusions, opinions and other information contained in the above email not relating to the official scope of business of Dandara Holdings Limited or associated companies shall be deemed not to have been given or endorsed by Dandara Holdings Limited or associated companies.

219 Almond, Kevin

From: Pearson, Richard Sent: 13 December 2010 17:23 To: Kinrade, Carolyn Cc: Foster, Nigel; Corlett, Bill; Sewell, Derek; Almond, Kevin Subject: FW: Kirk Michael Attachments: 09-348-TR-015-1 rev A.pdf; 09-348-TR-015-2 rev A.pdf; Extracts from TR-015A Swept Paths.pdf

Hi Carolyn

As discussed the developers proposals for this roundabout are attached.

Can I ask for your and Eddie's initial views.

I would welcome your advice then on whether we need a sit down meeting to review this with the Developer and his designer. I suspect that is needed.

Regards

Richard

Richard Pearson BEng (Hone) Civ Eng CEng MICE MCIHT DMS Director of Highways Department of Infrastructure Sea Terminal Building Douglas IM1 2RF Tel: 01624 686676 email: richard,

itifiastructure

From: Bryan Hall [mailto:bryanhall©bryanghall.co.uk] Sent: 13 December 2010 15:10 To: Pearson, Richard Cc: Joe McLoughlin Subject: Kirk Michael

Dear Mr Pearson

Following on from our telephone conversation last Friday morning, I now enclose two drawings numbered 09/348/TR/15/1, Rev A and 2, Rev A showing my thoughts on the design of a roundabout which conforms with the recommendations of the extant Kirk Michael Local Plan, 1994, the Kirk Michael Relief Road Joint Study, Draft Final Report, April 2004, and the Design Manual for Roads and Bridges TD16/07, Geometric Design of Roundabouts. Drawing 1 shows a general arrangement of the proposed roundabout and drawing 2 shows the

220 existing contours of A3 and A4, with a grey background, and their extension into the Relief Road, with a white background.

Whilst I was developing this design, I tried to maintain the existing line and level of the carriageway which forms part of the TT course and hence the contours of the Relief Road approach have been developed on that basis. I did set the permanent kerb line of the sett paved low profile over-run area back some 300 — 350 mm from the existing kerb line but perhaps that might be better if it exactly followed the existing kerb line. I also assumed that straw bales could be placed along what is presently the edge of carriageway of A3 in order to enforce riders to use the existing racing line through the junction and on that basis, I assumed that the TT course would not change but in the light of our discussions, that may prove to be an incorrect assumption.

I therefore consider that the scheme is a good starting point and I will be pleased to receive your thoughts after you have discussed the matter with the TT officials.

I look forward to hearing from you.

Bryan Hall

221 2.Drn Footway '1\3rn Nominal Carriageway 2.tfi footway

Kerber] and sett paved low profile over-run Kerbed central isia ,area off TT course with block paved chevrons 7 7 Land in forward visibility envelope In form grass verge to oulpiEc —•"1 Tom i5vrd ,Asibibty_ !°_

;ry Hard landscape A3 41111110.4ir" To KIRK . L

Temporary over-run area within existing carriageway Compact Roundabout designed In accordance with advice In T016167 Extended vehicular 'Geometric Design of Roundabouts' crossing to Boyrnvood Hard 44 landscape

EkaAts topttooto stro to At...doom; roakr•ott b *Worn to tE 8014 09..32/10 Cleat Project HERITAGE HOMES LTD PROPOSED RESIDENTIAL DEVELOPMENT tiorkno titt000t DrowtAa Hy, 20:0,210 datott Stgtt 2Erp Rev eenereirrcEle Omen ChM Ar?Pr Dee LAND TO EAST OF KIRK MICHAEL scciro Coe %lett Ho tZFS UCts 1 : 500 A3 20/10/10 BRYAN • G • HALL P:12 Title Oftnui JE Chemed Aoircest comultins era a COMPACT ROUNDABOUT JUNCTION OF BGH trmsport0100 Piamt.9 lit 1440)113 245 1555 +44(0)113 4.14 2741 Drovisrl RELIEF ROAD WITH A4/A3 'rib 09-34B 09/348/112/015/1 Kerbed central Istard with block paved chevrons

Land in forward visibility envelope to form grass verge in public highway,

Hard landscape A3 TO KIRK MICHAEL

. . 4 Temporary over-run area rzr within existing carriageway Existing carriageway Compact Roundabout designed In levels unchanged accordance with advice In TD16107 Extended vehicular .111W.*'.4"ftenow4k4.444L0 'Geometric Design of Roundabouts' crossing to Brynwood

\ Hard Y . landscape

A Bypass sopeosch arta 10 nxrdebout f t-sIgned to melon 10 hE BOH 09112110 Client Project HERBAGE HOMES LTD PROPOSED RESIDENTIAL DEVELOPMENT Issitspa Hass: Ofasina tfo. 20DO2hOesied Soot =10 Rev Amendments Ekon Chita kW bate LAND TO EAST OF KIRK MICHAEL Scale Cute Doe Shed Ho tvar.A. 1 •. 500 A3 20/10/10 BRYAN • G • HALL Idle cnected BGH rtia Orme IE APPrmed consulting ciog a transportation Owning entifsweern COMPACT ROUNDABOUT JUNCTION OF FT:t. + 411133 2241, 15.05 Job No Orating No Rev REUEF ROAD WITH A4/A3 SHOWING CONTOURS 09-348 09/348/TR/015/2 A 224 225 226 227 228 229 •11., 0

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230 009: I. - 31VOS 231 \ '- ` ...,e , , ‹v \ 'SI \ \ i \,;ii \\)v- 6,z6,.

Johnson, Pauline

To: Johnson, Pauline Subject: FW: Kirk Michael Plan Attachments: Plan 3.pdf

From: Keeble, Julie Sent: 19 January 2011 17:17 To: Pearson, Richard Cc: Teare, Eddie Subject: Kirk Michael Plan

Dear Mr Pearson

Please see attached plan — the two bungalows which have been bought are at the south side entrance to Lhergy Vreck,

Kind regards

Julie Keeble Personal Secretary to the Minister & Director of Education and Children

Department of Education and Children St George's Court, Upper Church Street, Douglas, Isle of Man IM1 2SG British Isles

Tel: 01624 685801 Fax: 01624 685845 E-mail: julle.keebleOgov.im

232 Legal. heritage homes - 1:4.4.14C,eup Ht.d Mcc. hit 01 Mm faNw M1 a Road9 Coal . A470. -and East of Mn hko Man

ttleplyne MI. tam, tkokik 0321031M Krk Warne e Man. Wel Ith,,great 0[641616000 1.10 DI{11616101 emli 1,kof•med,,,dsmorr, Map derived from the Isle of Man Survey Large web wmvulpridwamlen Scale Base Mapping and reproduced under Licence Number El 06/97. Land East of Main Road, 0 Crown Copyright. Department of Local Kirk Michael, Isle of Man. Government and the Environment (DoLGE), Isle of Man.

Reproduction or publication of this map In any "Plan No. 3" Development Site. form is prohibited without prior, written permission from the Mapping Office, DoLGE. 172500 Dec 2010

DOE'' 'exchange 3 CADREF: C kDOCUME•11,JohnckLOCALS-11TemplAePutgall_3406701DoE EntRonge.dwg

233 Johnson, Pauline

To: Johnson, Pauline Subject: FW: Kirk Michael by pass- Taffic signal control Attachments: TR-018 Signal Junction no isiands.pdf; TR-017 Signal Junction.pdf

From: Bryan Hall [mailto:[email protected]] Sent: 21 January 2011 11:10 To: Kinrade, Carolyn; Joe McLaughlin; [email protected]; Pearson, Richard; Almond, Kevin; Davidson, Jim Subject: RE: Kirk Michael by pass- Taffic signal control

I attach the two drawings in pdf and have replaced the blue shading with a dashed line around its edge to show the intervisibility between each of the approaches

I hope you can open these

Bryan

From: Kinrade, Carolyn fmallto:[email protected] Sent: 21 January 2011 10:56 To: Bryan Hall; Joe McLoughlin; [email protected]; Pearson, Richard; Almond, Kevin; Davidson, Jim Subject: RE: Kirk Michael by pass- Taffic signal control

Hi Bryan

We are unable to open the attachments is there any chance you can send in a different format?

Kind regards

Carolyn

From: Bryan Hall fmailto:[email protected] Sent: 21 January 2011 10:15 To: Kinrade, Carolyn; Joe McLoughlin; [email protected]; Pearson, Richard; Almond, Kevin; Davidson, Jim Subject: Kirk Michael by pass- Taffic signal control

Further to our meeting in Kirk Michael on Wednesday, 12 January, 2011 when we discussed my proposals for the layout of a roundabout junction of the Kirk Michael Bypass with A3/A4, I now attach two further drawings numbered 09/348/TR/017 and 018 which show possible layouts for traffic signal control of that junction.

The length of the kerb line at the apex of the bend along the eastern channel which is affected by these proposals is less than that affected by the roundabout proposals and clearly the extent of carriageway markings on A3 is restricted to the two stop lines rather than the hatching on the roundabout scheme. The scheme numbered 017 affects more of the kerb line because it incorporates a pedestrian refuge in the Bypass approach to the junction and I do consider that this will assist highway safety when the proposed junction is so

234 close to the school and its pupils/parents who may walk to and from school. The scheme shown on drawing 018 is the same as that shown on drawing numbered 017 with the exception of the pedestrian refuge.

The phasing of the signals will be different for each of the two layouts because of the pedestrian refuge but each of them have something of the order of 40% reserve capacity when traffic flows have been increased to a design year of 2020 and when the Bypass is complete and carrying through traffic or with the through traffic remaining on the existing A3/A4.

I hope these plans are useful for the next meeting on Thursday, 3 February.

Could anyone please pass these plans and note to anyone I may have not included.

Bryan

2011 — Year of the Commonwealth Youth Games

Isle of Man. Giving you freedom to flourish

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235 ------A3 TO KIRK MICHAEL --

4- Extended vehicular crossing to Brynwood 44

Client Project HERITAGE HOMES LID PROPOSED RESIDENTIAL DEVELOPMENT Rev Amendments Or CHM form Dote LAND TO EAST OF KIRK MICHAEL Doesmet No nen 1 : 5000 A3 18/01/11 BRYAN • G • HALL flue Checked BGH Apyieree Oman IE sprouting nen & nonsportgrnon Momeng emenenss SIGNAL—CONTROLLED JUNCTION LAYOUT OF Trt Job No Bemis] No al11,1?3 1.1,, 1 =6.5 RELIEF ROAD WITH A4/A3 (no traffic Islands) 09-348 09/348M/018 A3

TO KIRK MICHAEL

Extended vehicular 14. crossing to Bninwood 44

Client Project HERITAGE HOMES LID PROPOSED RESIDENTIAL DEVELOPMENT Rev Amendroonts Drain Chid APat Data LAND TO EAST OF KIRK MICHAEL Scala Ode Dec Shut Na "4144; tdi 1 : 500 0 A3 17/01/11 BRYAN - G • HALL Dram 1E Criockeo Title BCH *Prom .00.10,9 evil k tnYtoporkition plerming engimera SIGNAL—CONTROLLED JUNCTION LAYOUT OF Job No Didriv Trt +all's"44 1E'. RELIEF ROAD WITH A4/A3 03-3411 00/348/TR/017 t1

Johnson, Pauline

To: Johnson, Pauline Subject: FW: Douglas Road Corner, Kirk Michael Attachments: Pearson 07.pdf

Importance: High

From: Keeble, Julie Sent: 08 February 2011 09:46 To: Pearson, Richard Subject: Douglas Road Corner, Kirk Michael Importance: High

Dear Mr Pearson

Please see attached letter from Minister Teare.

Kind regards

Julie Keeble Personal Secretary to the Minister & Chief Executive Officer

Department of Education and Children Hamilton House, Peel Road, Douglas, Isle of Man IM1 5EZ British Isles

Tel: 01624 685801 Fax: 01624 685845 E-mail: julie,[email protected]

238 Department of Education and Children

Rheynn Ynsee as Paitchyn Chief Executive Officer Stuart Dobson From the Minister Shirveishagh Hamilton House Peel Road, Douglas Isle of Man IM1 5EZ

Hon W E Teare, MHK Direct Dial No: (01624) 685801 Fax (01624) 585845 Website: www.gov.imieducation Email: eddia.1earaagov,im Our Ref ET/JK

7 February 2011

Mr Richard Pearson Director of Highways Department of Infrastructure Head Office Sea Terminal Douglas IM1 2RF

Dear Mr Pearson

Re: Douglas Road Corner, Kirk Michael

You will recall that I discussed with you by telephone, fairly recently, access to the site at the rear of Kirk Michael School via a new entrance on the Lhergy Vreck Road. You were to review the situation and revert to me. Since our discussion, further information has come to hand. When the All Island Strategic Plan was placed before Tynwald In 2007 there was a traffic management report incorporated into the plan which had been prepared by J M P. I understand that this document forms Government Policy in relation to traffic issues and, interestingly enough, on page 19 it deals with the A3/A4 junction at Douglas Road Corner. A specific comment is made and I quote, a committed scheme will convert the existing priority junction to a roundabout.

This does raise several issues from my perspective upon which I would seek clarification from your good self. Bearing in mind that this Is an agreed Tynwald policy, it is binding, and will have a bearing on the proposed access into the field via the Lhergy Vreck Road. Could you comment whether this proposal was drafted with a view to the development of the area zoned for development to the South of the school? Would you resist an application to access the zoned land from any other point? I am not convinced that the necessary 70Mx4.5M visibility splay could be engineered at the exit point of the Lhergy Vreck Road onto the A3, nor of its suitability bearing in mind that there is slight rise in the main road and it is within a few metres of the end of the 30mph speed limit zone. Perhaps an overlay on a plan could be prepared to consider this point. Please clarify whether the road servicing the proposed estate would be designated as a strategic road.

Quite obviously, your response will have a major influence on my negotiations with the developers and I would appreciate a reply as soon as possible as I am anxious to resolve this Issue at an early juncture.

Kind regards

Yours sincerely 6,46:CAL„

Eddie Teare ACIB MHK Minister for Education and Children

239 CED 31-, k/

BRYAN G HALL consulting civil cx transportation planning engineers

Our ref: 09-348/BGH/KJA

10 February 2011

Mr K Almond Directorate of Highways Department of Infrastructure Sea Terminal Buildin Douglas IM1 2RF 1 1 FER 2011 ) 1 ..„

Dear Kevin

PROPOSED JUNCTION OF KIRK MICHAEL RELIEF ROAD WITH EXISTING HIGHWAY NETWORK IN THE VICINITY OF KIRK MICHAEL PRIMARY SCHOOL

Further to the liaison meeting in your boardroom at Sea Terminal Building with representatives of the TT Races last Thursday morning, 3 February 2011, I now enclose a copy of each of my drawings numbered 09/348/TR/017 and 016 which show alternative traffic signal control junction layouts with the existing A3 and A4 at their existing simple priority junction. The only difference between the two schemes is the inclusion in Drawing 017 of a pedestrian refuge on what will become the bypass so that pedestrians can cross that road in two stages rather than one.

The representatives of the TT Races did confirm at the meeting that a traffic signal control junction is a tremendous improvement over a possible roundabout junction as discussed at the earlier meeting of 12 January because it does not require the extensive carriageway markings on 'the racing line' along A4 which are required to generate appropriate angles of deflection so as to reduce traffic speeds at the approach to the roundabout when the road is not being used as a racing circuit.

Both the roundabout and the traffic signal control junctions will introduce delays to traffic on A3 and at the present time this traffic has priority over that on A4 and hence it does not experience any delay. The suggestion of Joe McLoughlin that the introduction of traffic signal control be delayed until the Relief Road is extended and becomes more than simply a residential access road providing access to approximately 100 dwellings would therefore appear to have some merit insofar as the traffic on the main road will continue to flow without delay until the need for the traffic signal control arises when the road becomes a Relief Road. I therefore attach a further drawing numbered 09/348/TR/019 which shows an identical layout to that shown on drawing 018 but it incorporates give-way lines and visibility splays which will allow the junction to be used safely as a crossroads in the interim period.

• Continued

Registered Wire Suite E8 Joseph's Well Hanover Walk Leeds LS3 1AB GT No 390 4601 07 Telephone 0113 2461555 Fax 0113 239 2201 Entail kl,gfrusays@bryangbalt co.uk Bryan G Hall Ltd Website wunv.bryangholl.co.uk registered in England d• Wales Co No 4109002

240 Y A N G • :HALL' •onsrortirrg (4141 planiling

Continuation 1 Mr K Almond 09-348/BGH/KJA

10 February 2011

Will you please let me have the thoughts of the Department of Transport on the acceptability of each of these three schemes so that negotiations with the School and officers of the Education Authority can be based on an agreed layout which can then be incorporated in a legal agreement with them.

Clearly the recommended roundabout type of layout in the Atkins Report is not acceptable to TT representatives and therefore it may be necessary to advise an Inspector at a Local Inquiry of the reasons for this if a planning application for residential development should take that course of action. However, in the meantime 1 would appreciate an early response from you about the three alternatives attached to th. letter in order that negotiations with the School Authorities can be concluded as - so• as possible and an application be made in a couple of months time as anticipated by iaran Downey at last Thursday's meeting.

look forward to hearing from you as soon as possible.

Yours sincerely

enc

Messrs J McLoughlin/C Downey, Heritage Homes Limited

241 c, )

Johnson, Pauline To: Johnson, Pauline Subject: FW: Douglas Road Corner, Kirk Michael

From: Pearson, Richard Sent: 17 February 2011 15:22 To: Teare, Eddie Cc: Keeble, Julie; Johnson, Pauline Subject: RE: Douglas Road Corner, Kirk Michael

Dear Minister Teare

I refer to your letter attached to the email dated 8th February 2011,

You will, I hope, appreciate that I cannot enter into arrangements with a third party regarding another parties planning application, even if that party is another Department or a Minister. To do so would be mal administration or worse.

The Highways Division will consider each planning application on its own merits and will assess it in accordance with the Department's current standards.

I am willing to comment in general about transport issues in Kirk Michael and the planning process and I understand we have a meeting later this week where we can discuss this further.

The history to Kirk Michael is that there is no current requirement for a relief road. This requirement would only arise if there was very significant future expansion of the town. There is a long term aspiration to provide a relief road to complement significant expansion (50 to 100%) and ideally the Department would like to see this funded by developers. In the interim, it is helpful if any development could protect the line of the relief road.

The Kirk Michael local plan or any Tynwald decision to adopt such a plan is not fixed or prescriptive, it is strategic. What I mean by this is that developers may submit any proposal they wish. It will then be subject to the planning process. The Planners, Highways Division, Planning Committee and any Planning Inspector will however be more inclined to support a proposal that complies with the strategic area plan. However, you may appreciate that an Inspector or our Minister can ultimately reach their own conclusion on a particular application.

The idea of new development to the east of Kirk Michael and also of that development contributing towards a future relief road and/or protecting the route Is all supported by the current area plan and therefore, subject to design details, is on that basis more likely to succeed.

Any variation on this, including an alternative point of access, could be successful, however it is likely that variations would less readily comply with the area plan and strategic planning and transport needs.

Whilst perhaps not as direct a reply as you hoped for I trust this gives you an understanding of the issues.

Regards

Richard

242 Richard Pearson BEng (Mons) Civ Eng CEng MICE MCIHT DMS Director of Highways Department of Infrastructure Sea Terminal Building Douglas IM1 2RF Tel: 01624 686676 emaiE:ricl,earson(apovini

infrastructure

From: Keeble, Julie Sent: 08 February 2011 09:46 To: Pearson, Richard Subject: Douglas Road Corner, Kirk Michael Importance: I-tigh

Dear Mr Pearson

Please see attached letter from Minister Teare.

Kind regards

Julie Keeble Personal Secretary to the Minister & Chief Executive Officer

Department of Education and Children Hamilton House, Peel Road, Douglas, Isle of Man IM1 5EZ British Isles

Tel: 01624 685801 Fax: 01624 685845 E-mail: julle.keebleagov.im

243 Kk 21

BRYAN G 'H ALL

corlseeltillg.ciPil 6' transportatinn planning engineers-

Our ref: 09-348/BGH/KJA

14 March 2011

Mr K Almond Directorate of Highways Department of Infrastructure Sea Terminal Building Douglas IM1 2RF

Dear Kevin

PROPOSED JUNCTION OF RESIDENTIAL ACCESS ROAD WITH A3, KIRK MICHAEL

The Kirk Michael Local Plan Written Statement, December 1994, sets out that the development of any land to the east of Kirk Michael " should pay regard to the suggestion of a bypass to the east of Kirk Michael " and that " the feasibility and desirability of such a link should be further examined " The Kirk Michael Relief Road, Joint Study, Draft Final Report, April 2004 examines that feasibility and desirability and it sets out that a development of 150 dwellings with direct access to A3 could be constructed on the land allocated for residential development to the south- east of Kirk Michael, behind the School, prior to any Relief Road being provided,

I therefore enclose a copy of my drawing numbered 09/3481TR/002 Rev A which is based on a topographical survey of A3 and it shows a simple priority junction of a 5.5 metre wide residential access road with that road in the vicinity of the property, Cass A Lergy.

I carried out surveys of the use of A3 in the vicinity of the proposed junction during the morning and evening peak periods of Tuesday 24 November, 2009, and the attached findings show that it was carrying flows of some 404 and 366 vehicles per hour at those times of day respectively. In accordance with advice contained in TA79/99, Traffic Capacity of Urban Roads, the capacity of a road such as A3 in this vicinity is of order of 2,000 vehicles per hour and hence the surveys show that it is operati some 20% or less of its traffic carrying capacity during its peak periods of opera and less at other times of the day, There are therefore numerous gaps in its tr flows into which traffic from minor side roads can emerge and join that road. Thi section of road is also subject to a 30mph speed limit and in accordance with the. advice contained in PPG13, Transport, March 1994, visibility splays with major road dimensions of 90,0 metres should be provided in both directions at a junction in this location. I have, however, carried out surveys of the speed of traffic at the extremities of its visibility splays, as it approaches the proposed junction, and I also attach those

Continued

•

&gine-red PAT Suite E8 Joseph's Well Hanover Walk Leeds 1.53 MB VAT No 399 4601 07 Telephone 0113 246 1555 Fax 0113 2312201 Email [email protected] Bryon G Hall Ltd Website unombryanghall.co.uk registered in &timid &Wale* Co No 4104802

244 B 'R Y A N G H A L L' rUnsrritittb lir n'arlipoulation o•ngiiqer:•.

Continuation 1 Mr K Almond 09-348/BG H/KJA 14 March 2011

results for your Information. They show that the major road dimension of the visibility splay towards the village, to the north, is correct at 90,0 metres but that to the south, towards the derestricted section of road, should be 120.0 metres in accordance with the guidance based on measured speeds. A minor road dimension of 4.5 metres is available for the visibility splay to the south when it is measured to a point 0.06 metres (6cm) into the carriageway and one of 3.5 metres is available for that to the north when it is measured 0.6 metres (60cm) into the carriageway, a distance which will not result in the visibility of any approaching vehicles being lost from the view of emerging drivers. This minor road distance is equivalent to 2.9 metres when measured to the kerb line. Drivers of vehicles joining A3 from the proposed residential access road will therefore be able to comfortably see any traffic approaching on A3, from both directions, in time for them to judge whether it is safe to join the main road or wait until the approaching traffic has passed. Visibility splays provide inter-visibility between drivers of vehicles emerging from junctions and those approaching junctions and hence, drivers of vehicles approaching the proposed junction will be able to see any emerging vehicles in time for them to slow down or stop safely if that should be necessary.

I have analysed the operation of the proposed junction when carrying the surveyed traffic flows and the assigned traffic likely to be generated by 100 dwellings on the application site as that is the order of development which can be accommodated. I attach details of the assignment which is based on a generation rate for the development of 0.8 vehicles per dwelling during the morning and evening peak periods and turning manoeuvres based on the existing two-way flows, together with the resulting predicted flows. I also attach the two Picady analyses for the morning and evening peak periods which show that the junction will operate without any queues of traffic forming and the resulting RFC values will be 0.083 during the morning and 0.102 during the evening peak periods. This wilt result in inclusive delays of some 8-9 seconds per vehicle. There is therefore no requirement for vehicles which are emerging from the residential estate road to join A3 without first coming to a halt so that their drivers can see traffic which is approaching from both directions on A3 and therefore the dimensions of the visibility splays shown on the drawing will allow the junction to operate safely in accordance with the guidance set out in PPG13. I do consider that the 4.5 metre minor road dimension of the splay to the north could also be reduced to 2.9 or 3.5 metres to correspond with that to the south because there is no need for emerging drivers to see along A3 at a distance of 4.5 metres back from the give-way line, or, to their left before they can see to their right.

Continued

245 .BRNAN G H A L 1. cronquifjiigr

Continuation 2 Mr K Almond 09-348/BGH/KJA 14 March 2011

The attached drawing 09/348/TR/002 Rev A also shows the vertical alignment of A3 and that forward visibility of '120.0 metres is available over a distance of 171.0 metres towards the junction for drivers travelling in a northerly direction. This is some 9.0 metres less than that recommended in TD 42/95, Geometric Design of Major/Minor Priority Junctions but is only required because vehicles are travelling at speeds greater than the 30mph speed limit which they have only recently joined from the derestricted section of road and are consequently slowing to that speed. Forward visibility of 90.0 metres is available over a distance of 135.0 metres for drivers of vehicles travelling in the opposite direction, from the centre of Kirk Michael, towards the junction.

Will you please consider this proposed means of access to a development of some 100 dwellings on the land allocated in the Kirk Michael Local Plan in the light of the recommendations of the Atkins Report, the Local Plan itself and other guidance used to ass the safe operation of the junction in order that Heritage Homes can decide how proceed with their application for residential development of the allocated land.

forward to hearing from you.

urs sincerely

f(le r Brya Hal

enc cc Messrs C Downey & J McLoughlin, Heritage Homes Limited

246 Almond, Kevin From: Almond, Kevin Sent: 15 April 2011 10:31 To: Sewell, Derek; [email protected] Subject: FW: Kirk Michael

Original message From: kevin almond Sent: 15/04/2011, 10:21 To: Almond, Kevin Subject: Kirk Michael

Dear Bryan,

Thank you for your letters of the 10th February and 14th March 2010.

In reply to your letter of the 10`h February, regarding the form of the proposed function next to Kirk Michael School.

The roundabout option:

The simply priority crossroad option:

TD 42/95 considers that a staggered T junction is preferable to a crossroads junction due to crossroads having generally poor safety performance. The document goes on to recommend that crossroads are considered suitable only at simply junctions where the minor flows do not warrant a ghost island or single lane duelling. The existing minor road (A4) 2 way AADT vehicular flow will exceed the 300 vehicle threshold for a ghost island. The 2 way AADT flow for the new minor road serving the development will also likely exceed the threshold, given that the predicted combined am and pm peak 2 way flow is 240 vehicles. In both cases the minor arm flow would preclude the option of a priority crossroads. Furthermore, there Is also a general recommendation that it is undesirable to position a simply junction inside a sharp curve.

247 Finally, the junction design would be constrained as additional safety measures such as ghost islands, hatching or physical islands which may be required would be resisted by the TT representatives.

Therefore, the Department would not support the introduction of a crossroad junction at this location.

In addition the 'y' distance to the left from the proposed road is only 75m to the nearside kerb and passes across 3rd party land at its southern most point.

The traffic signal control option:

In reply to tour letter of the 14th March, regarding a proposed junction next to Cass A Lem (Drwg 09/348/TR/002)

The Department considers that the proposed junction could serve the 100 dwellings as previously considered by the Department in relation to the proposed junction adjacent to Kirk Michael School.

The Department is willing to accept a reduction the 'x' distance to the north from 4.5m to 3.5m on assumption that it serves only the 100 dwellings as previously considered.

It should be noted that the design and layout of the development if accessed from this point shall not constrain the future development of a by-pass and its junction with the A3 & A4.

Regards,

Kevin

248 Almond, Kevin From: Teare, Eddie Sent: 27 May 2011 19:47 To: Almond, Kevin Subject: Re: Douglas Rd, Kirk Michael update

Dear Kevin, Many thanks for the update. I will speak to the AG's Chambers and also consider whether this affects the valuation. 1 would expect that it will be some time before I will be able to identify the away forward. Eddie

Sent from my iPad

On May 27, 2011, at 10:43 AM, "Almond, Kevin" wrote:

Dear Mr Teare MHK,

Apologies for the delay of my reply.

I have received no further correspondence from Heritage Homes regarding the proposed development and associated highway works in Kirk Michael since my reply (copied below) to their letters dated the 101" February and 141" March. The letter of the 101" February requesting guidance on the which junction type the Department wished to see serving the proposed development if access was taken from the existing A3/A4 junction and the letter of the 141" March, a proposal to access the proposed development from a junction located at Cass A Lergy.

It should be noted that all the pre application advice is given with the proviso that all land required for the various proposed junctions and visibility splays are under ownership of the applicant or public highway at the time of the application.

Regards,

Kevin Almond

"Dear Bryan, i

249 Thank you for your letters of the 10th February and 14th March 2010.

In reil to our letter of the 10th Februa re•ardin• the form of the proposed function next to Kirk Michael School.

The roundabout option:

Though this is the Departments preferred option, consultation with representatives from the TT has shown that this option will need to be set aside until such time that a design can found that satisfies both the Departments desire for a safe and efficient junction and the 'TT representatives desire for a junction that can safely accommodate racing.

The simply priority crossroad option;

TD 42/95 considers that a staggered T junction is preferable to a crossroads junction due to crossroads having generally poor safety performance. The document goes on to recommend that crossroads are considered suitable only at simply junctions where the minor flows do not warrant a ghost island or single lane duelling. The existing minor road (A4) 2 way AADT vehicular flow will exceed the 300 vehicle threshold for a ghost island. The 2 way AADT flow for the new minor road serving the development will also likely exceed the threshold, given that the predicted combined am and pm peak 2 way flow is 240 vehicles. In both cases the minor arm flow would preclude the option of a priority crossroads. Furthermore, there is also a general recommendation that it is undesirable to position a simply junction inside a sharp curve.

Finally, the junction design would be constrained as additional safety measures such as ghost islands, hatching or physical islands which may be required would be resisted by the TT representatives.

Therefore, the Department would not support the introduction of a crossroad junction at this location.

In addition the 'y' distance to the left from the proposed road is only 75m to the nearside kerb and passes across 3rd party rand at its southern most point.

The traffic signal control option:

In reply to your letter of the 14th March. regarding a proposed junction next to Cass A Lergy (Drwq 09/348/TR/0021

The Department considers that the proposed junction could serve the 100 dwellings as previously considered by the Department in relation to the proposed junction adjacent to Kirk Michael School.

The Department is willing to accept a reduction the 'x' distance to the north from 4.5m to 3.5m on assumption that it serves only the 100 dwellings as previously considered.

250 It should be noted that the design and layout of the development if accessed from this point shall not constrain the future development of a by-pass and its junction with the A3 & Azi."

Kevin Almond BSc(Hon) MSc DMS CMILT

Network Traffic & Transportation Manager

Highways Division

Department of Infrastructure

Sea Terminal Building

Douglas

Isle of Man

IM1 2RF

Telephone: 01624 686672

251 Almond, Kevin

From: Keeble, June Sent: 26 May 2011 15:14 To: Almond, Kevin Subject: Douglas Rd, Kirk Michael update

Dear Kevin

Further to our recent conversation, Minister Teare would appreciate it if you could e-mail him your update on Douglas Road, Kirk Michael either via myself or direct eddie.teareaciovim

Many thanks

Julie

Julie Keeble Personal Secretary to the Minister & Chief Executive Officer

Department of Education and Children Hamilton House, Peel Road, Douglas, Isle of Man IM1 5EZ British Isles

Tel: 01624 685801 Fax: 01624 685845 E-mail: julle.keebleagov.im

252 APPENDIX 6 254 MIchaeL Cornirr2issioneus BaTwmatee SicadLey Maa2/1.

Michael Community Civic Centre Ynnyd Theayagh Maayl Chairman 2011/2012: Mr R A Kennaugh Vice-Chairman 2011/2012: Mr B R Corlett Main Road Reply to: The Clerk Kirk Michael Tel: (01624) 878836 Isle of Man Fax: (01624) 878836 IM6 lER Email michaelcommissionersOmanx.net

22 March 2012

Clerk of Tynwald Select Committee Legislative Buildings .1*.••*• DOUGLAS IM1 3PW RECEIVED 2 3 MAR 2012

Dear Sir OFFICE OF CLERK OF TYNWALD

Re: Michael School Land Exchange

Please take into account the following:

Michael District Commissioners have supported this advantageous deal since first offered many years ago. The reasons are:

(a) It protects the future expansion of the school. If the land exchange goes ahead it will provide improved facilities for Michael Primary School in the immediate future and potential further expansion of the school in later years. If housing development was permitted around it to the north and east, any future classrooms would have to be built in a less than ideal location within the site, thus reducing the area already taken up by existing facilities.

(b) The land-exchange proposals provide for additional car parking on the front of the school for staff and visitors. This would improve traffic safety when parents drop off or collect their children, plus when the community room or sports hall is used at other times.

255 (c) The land-exchange secures the starting point of a relief road around the village, on a route recommended by consultants in 2004, and stated in the Local Plan since 1992. The feasibility study 2004 suggested three potential routes for a relief road, two of which commenced at Douglas Road Corner which the land swap could allow. The Commissioners continue to support some form of relief road.

Yours sincerely

Mrs Judith Corlett Relief Clerk

256 MIchaeL Comn21ssionens- Maaaft "nceipt Ack'd: Intee •-dtegory: Corres Public r ate Next Action: Meeting Cir ulate Now File Only Other Instructions: 445) Ne Am' CD -03 Au 0-i< KfilLg kiplael Community Civic Centre Ynnyd Theayagh Maayl Chairman 2012/2013: A,S) Mr B R Corlett -NCN41:3' . ,' Vice-Chairman 2012/2013: 1,0; Mr P Hayes Main Road Reply to: The Clerk Kirk Michael Tel: (01624) 878836 Isle of Man Fax: (01624) 878836 IM6 1ER Email [email protected]

22 June 2012

Jonathan King Clerk of the Select Committee on the Kirk Michael School Land Exchange Agreement Legislative Buildings DOUGLAS IM1 3PW

Dear Mr King,

Re: Michael School Land Exchange

I write in response to your correspondence dated the 18th May 2012. I can confirm that the Commissioners did seek reassurance from the Department that it would take appropriate steps to secure land to sustain the future of the school. I have enclosed copies of the correspondence we hold between ourselves and the Department of Education on this topic at around this time.

In regard to the meeting that was held on the 24th November 2010 with the then Minister W E Teare there was no agenda for such a meeting and no minutes produced so I can only surmise that this must have been an informal meeting and not recorded.

Yours sincerely

Mrs Krystina Malcolm Clerk Michael Commissioners

257

Michael. Comrrifssioneus Bannantee Sky!ley Mace.

Michael Community Civic Centre Ynnyd Theayagh Maayl Chairman 2007/2008: Mr. B. R. Corlett

Vice-Chairman 2007/08: Mrs. H. M. Quinn Main Road

Reply to: The Clerk Kirk Michael Tel: (01624) 878836 Isle of Man Fax: (01624) 878836 1M6 1ER Email [email protected]

3rd December 2008

Mr David Cannan, Michael MHK, House of Keys, Legislative Buildings, Douglas, IMI 3PW

Dear Mr Carman,

RE: Land Behind Michael School

The Commissioners have asked me to contact you regarding the land development behind Michael School.

The Commissioners have written to the Department of Education regarding this matter, we are enclosing a copy of the letter we have sent to the Minister Mrs. A. Crain.

The Commissioners are looking to you for your support as the Michael MHK.

Can you please confirm your views on this?

Yours sincerely

Mrs Krystina Malcolm Clerk to the Commissioners

258 Michael Cornmissionens Bannantee SkyHey MaayL

Michael Community Civic Centre Ynnyd Theayagh Maayl Chairman 2008/2009: Mrs. H. M. Quinn Vice-Chairman 2008/2009: Mr. J. P. Barron Main Road Reply to: The Clerk Kirk Michael Tel: (01624) 878836 Isle of Man Fax: (01624) 878836 1M6 lER Email [email protected]

11'1' August 2008

Mr. J. McLoughlin Heritage Homes Limited, Dandara Group Head Office, IOM Business Park, Cooil Road, Braddan.

Dear Mr McLoughlin,

RE: Land Behind Michael School Medical Centre Provision

Michael Commissioners have asked me to contact you to enquire, should the plans and building go ahead behind Michael School, you would consider making provision for land to be allocated and a Medical Surgery, to be built within the new estate, as indicated on previous plans.

The Commissioners are very concerned that with the growing community, a Doctors Surgery should be considered as vital for future years.

The Commissioners would also appreciate a meeting with you on October 2008 at 7.00 pm, regarding this and other matters. Could you please let us know if this would be convenient for you.

We look forward to your reply.

Yours sincerely

Mrs Krystina Malcolm Clerk to the Commissioners

259 M1c12ael. CommIssionerts Bavapantee SkyLimy Maawl.

Commissioners' Office Clerk: Main Road Mrs K. A Malcolm Kirk Michael Tel: (01624) 878836 Isle of Man Fax: (01624) 878836 1M6 lER Email [email protected] Please reply to The Clerk

3rd January 2008

The Hon Anne Craine MHK, Minister for Education, St Georges Court, Upper Church Street, Douglas, IMI 2SG.

Dear Minister,

RE: LAND BEHIND MICHAEL SCHOOL

Michael Commissioners have asked me to contact you, to ask if the Department of Education could look at the possibility of acquiring sufficient extra land for the future needs of Michael School.

The Commissioners are very concerned that the requirements of the school will not be met in the future if this is not done.

Many of the villagers have stated that they believe that the Department of Education should purchase a piece of land for the future needs of the school. Many of the people that voted against the land exchange were however, very much in favour of the Department purchasing land for expansion.

We would be grateful if you could give this matter your urgent attention.

Yours sincerely

Mrs. K. A. Malcolm Clerk Michael Commissioners

260 Michael. Commissionens Baunantee SkyIlea, Maa2/1.

Michael Community Civic Centre Ynnyd Theayagh Maayl Chairman 2007/2008: Mr. B. R. Corlett

Vice-Chairman 2007/08: Mrs. H. M. Quinn Main Road Reply to: The Clerk Kirk Michael Tel: (01624) 878836 Isle of Man Fax: (01624) 878836 IM6 lER Email [email protected] 15th June 2007.

The Hon Anne Craine MHK Minister of Education St George's Court Upper Church Street, Douglas IM1 2SG

Dear Minister,

RE: Possible Land Exchange, Michael School.

Michael Commissioners would be grateful if you could supply attendance figures for the meeting that was held at Michael School on the 1781 may 2007.

Our particular interest is in public opinion from attendees.

Yours sincerely

Mrs Krystina Malcolm Clerk to the Commissioners

261 FW: Michael proposal http://mai 1.manx.net/wm/eml/read.htrnl?sess ion id=3 fetinpb9 I I fad:

michaelcom missioners

Date: Wed, 06 Jun 2007 10:19:02 +0100 From: "Keeble, Julie" Hi Chris

As promised, copy of e-mail.

Kind regards

Julie

From: Keeble, Julie Sent 29 May 2007 11:57 To: [email protected] Subject Michael proposal Importance: High

Dear Brian

As per telephone conversation, the Minister asked me to inform Michael Commissioners of her reply to Mr Cannan in Keys today on the proposal for land exchange, which was as follows:

Mr Speaker. I thank the Hon Member for this question which I am pleased to answer. However, T. would just like to remind Members of the background to this situation and to provide the rationale for the decision.

Members may recollect that the developer, Heritage Homes, approached the Department 18 months ago with a proposal for an exchange of land which would allow them access from the Douglas Road to land at the rear of the School currently zoned for residential development.

In exchange for the majority of the existing playing field, the developer would give the Department a larger area of land behind the School together with a number of other improvements to the benefit of the School in the longer term.

The Department recognized the potential benefits and has discussed them with the School and its governing body. It was, of course, very aware of the impact on the

1 of 3 06/06/2007 12::

262 FW: Michael proposal http://mail.manx.netfwin/eml/read.htmi7sessionid=3fetmpb9I t faig

village that the acceptance of this proposal could have. It should be pointed out that if the Department had considered these benefits as necessary, it could have negotiated the purchase of this land at any time in the last decade or so. The fact that it did not do so means that the benefits to the School are desirable but not essential.

Accordingly, the Department mounted an exhibition recently to invite the views from residents in Kirk Michael in weighing up the benefits which would accrue to Michael School against the cost of opening up access to the land behind the School for the development of houses. Michael School is part of the community and is well supported by it and by the Department.

I have taken personal interest in the community's views on this proposal and have considered them very carefully. At the present time, have decided to decline the proposal for the land exchange because the potential disadvantages to Kirk Michael outweigh the possible benefits to the School.

Kind regards

Julie

Julie Keeble Personal Secretary to the Minister & Director of Education

Department of Education St George's Court, Upper Church Street, Douglas, Isle of Man IM1 2SG British Isles

Tel: 01624 685801 Fax: 01624 685845 E-mail:_julie.keebicAdoe.gov.itn

WARNING: This email message and any files transmitted with it are confidential and may be subject to legal privilege, You must not copy or deliver it to any other person or use the contents in any unauthorised manner without the express permission of the sender. If you are not the intended addressee of this e-mail, please delete it and notify the sender as soon as possible.

RAAUE: S'preevaadjagh yn ghaghteraght post-I shoh chammah's coadanyn erbee currit marish as to shoh coedit ec y leigh. Cha nhegln dlu coipai ny cur eh da peiagh erbee elley ny ymmydey yn chooid t'ayn er aght erbe.e dyn kied leayr veih'n choyrtagh. Mannagh nee shiu yn enmyssagh kiarit jeh'n phost-1 shoh, doll-shin magh eh, my sailliu, as cur-shiu his da'n choyrtagh cha leah as oddys shiu.

2 of 3 06/06/2007 12:

263 Page 1 of 1

Michael Commissioners

From: Michael Commissioners [[email protected] Sent: 14 May 2007 13:43 To: '[email protected]' Subject: Re: Possible Land Exchange , Michael School Meeting Thursday 17th May 2007

Dear Mrs. Craine,

Possible Land Exchanpe, Michael School

The Commissioners would be grateful if you would advise them of how you intend to monitor the public feedback of the residents of Kirk Michael with regard to this subject. Will it be possible to ballot the residents, to get their feelings on the matter known, as it is suspected that some of the residents may be unaware of the implications

Please could you come back to us as soon as possible.

Yours Sincerely

Mrs. K A Malcolm

Clerk

This email and any files transmitted with it are confidential, and may be subject to legal privilege, and are intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error or think you may have done so, you may not peruse, use, disseminate, distribute or copy this message. Please notify the sender immediately and delete the original e-mail from your system.

264 14/05/2007 DEPARTMENT OF EDUCATION Rheynn Ynsee

From the Minister St George's Court Shirveishagh Ynsee Upper Church Street, Douglas Isle of Man, IM1 2SG Isle of Man Direct Dial No: (01624) 685801 Government Hon A V Craine, MHK Fax: (01624) 685845 Raifiys Mau Vermin Website: www.gov.im Email: [email protected] Our Ref: RAC/ws

8 May 2007

Mr B Corlett Chair of Michael Commissioners RtCtl\I ED U MAY NV Commissioners Office Main Road Kirk Michael Isle of Man

Dear Chair

Re: Possible Land Exchange, Michael School

With reference to my invitation dated 4 May 2007 regarding the display of plans at Michael School, this is to confirm that the date should read Thursday 17 May 2007.

I apologise for any inconvenience caused.

Yours sincerely

JA-( Grati,22

Mrs Anne Craine Minister for Education

cc Headteacher, Michael School Michael School Governors

265 DEPARTMENT OF EDUCATION Rheynn Ynsee

DIRECTOR OF EDUCATION St George's Court Stiureyder Ynsee Upper Church Street, Douglas Isle of Man JOHN CAIN M Ed Isle of Man, IM1 2SG Direct Dial No: (01624) 686428 Government Fax: (01624) 685845 Reilly, Ella It Vil ?Ill ill Website: www.00v.im Email: richard.collistergdoe.govim Our Ref: RAC/ws

4 May 2007

77 MAY 2007 Mr B Corlett Chair of Michael Commissioners Commissioners Office Main Road Kirk Michael Isle of Man

Dear Chair

Re: Possible Land Exchange, Michael School

You are cordially invited to view plans of a land proposal under consideration by the Department of Education. The plans will be on display at Michael school within the Community room on Thursday 16 May 2007 between 3.00pm and 7.30pm.

School Governors, Officers of the Department and myself will be in attendance to answer any questions which may arise. The views of the Community are sought on this opportunity and we hope you are able to attend.

Yours sincerely

CKUJ-&":„c Mrs Anne Craine Minister for Education

cc Headteacher, Michael School Michael School Governors

266 MINUTES OF MEETING HELD ON 2 MAY 2007 AT 6.30 PM BETWEEN MICHAEL COMMISSIONERS AND THE DEPARTMENT OF EDUCATION HELD IN THE COMMISSIONERS OFFICE.

PRESENT: Mrs A Craine, MHK, Minister of Education Mr R Collister, Education Department, Estates Director Mr R A Kennaugh (Chairman) Mr B R Corlett (Vice Chairman) Mr W D Corlett Mr M Neary Mr J P Barron Mr S W Hamer Mrs H Quinn Mrs K Rodgerson (retiring clerk) Mrs C Malcolm (acting clerk) Mrs E Corlett (temp. acting clerk)

The meeting had been called by the Department of Education to keep the Commissioners updated on the possible sale of land at Michael Primary School to Heritage Homes to -facilitate a roundabout at Douglas Road Corner for a new housing estate at the back of the school.

Mr Kennaugh welcomed Mrs Craine and Mr Collister and handed over to Mrs Craine, Minister.

Mrs Craine thanked the Commissioners for finding time to see them. Mr Collister said that since the meeting with the Commissioners a year ago about the proposal to sell land to Heritage Homes he had spoken to the Government Valuers and they had concluded that the additional land to be given to the Department of Education by Heritage Homes at the back of Michael Primary School in place of the area the Department might sell to them was OK. He had then spoken to Heritage Homes to see what the Education Department would get for the land. Heritage Homes would be willing to provide: . . •More land to the rear than the size of land they would be selling.

Junior football pitch — plus drainage.

Haying field at rear.

ayground surfaced and re-locating of existing play equipment.

267 110

Land to extend the school in future.

Drainage connection points provided.

Al! fencing.

New masonry wall.

New staff parking area where existing 'overflow car park' is.

Mr Kennaugh stated that the Commissioners wanted the best facilitates for the school but would also like to secure a decent bit of open space for the village community (land that was the 'old Fairfield). On looking at the plans that Mr Canister had brought with him, there was still some land left but School had taken some of it. Hopefully the Commissioners could negotiate with Heritage Homes to get more. Mr Kennuagh also asked if the land at the back of the school playing field was going to be built on. Mr Collister replied that it was, but he was unsure if it would be single story dwellings or houses. Mr .Kennaugh expressed concerned that the school playground would be overlooked. Mr Collister replied that a 4metre high fence would be put up. Mr Kennaugh asked if the Department could insist that a planning condition be put on stating that only single storey dwellings could be built. The Minister said she would be happy to speak to planning regarding the above.

The Commissioners also stated that the access road to the new estate should facilitate access for future by-pass.

Mr D Corlett said he was in favour of selling the land because of the benefits to the school, but expressed concern of the impact of so many houses would have on the rest of the village.

Mr B Corlett asked if there was any agreement with the Department of Education and Heritage Homes yet? Mrs Craine and Mr Collister stated that there was not.

Mr Neary said there was not enough room at the Youth Club (located in Michael School) at the moment and if another 80 houses were built it would mean more children.

268 111

The Commissioners agreed that they had no strong objections and they conditionally support the project in principle as long as the school feel that they are getting a good deal.

Mr Kennaugh thanked Mrs Craine and Mr Collister.

Minister thanked the Commissioners for their support in principle and said the Department of Education would keep in touch regarding any developments.

Meeting closed at 7.00 pm.

Dated

Minutes taken by Mrs J E Corlett, Temp. Acting Clerk.

269 270 APPENDIX 7 272 Pinecrest Investments Limited 9 Hope Street Douglas Isle of Man

N? 1‘1"„ Mr J King Deputy Clerk of Tynwald Legislative Buildings ctIV:1016° Douglas Isle of Man IM1 3PW

30th March 2012

Dear Sir

Re: Kirk Michael School — Land Exchange Agreement

Further to your letter dated the 7th March 2012, I have been asked by the directors of Pinecrest Investments Limited ("the Company") to make a written submission on behalf of the Company in relation to the subject matter of the investigation of the Select Committee.

The directors of Pinecrest Investments Limited are my parents, Jim and Sally Lewis, who are also the sole beneficial owners of the Company. I have however been closely involved with negotiations in respect of the development of the land owned by the Company at Lhergy Vreck in Kick Michael and have latterly negotiated on behalf of the Company in this regard.

It has long been the intention of the Company to develop that part of its land at Lhergy Vreck that is zoned as "predominantly residential" by the Kirk Michael Local Plan Order 1994 ("the Land"). It has also been a desire of the owners of the Company that whilst principally developing the Land for commercial benefit, the village of Kirk Michael should likewise benefit from improved facilities as a result of any development.

It was on this footing that negotiations began in earnest with Heritage Homes Limited ("Heritage") in 2004 in relation to the Land. Heads of Agreement were reached in or around May of 2006 which included a proposed access from the Douglas Road Corner via a distribution road which could, in the future, and if required, be used as a relief road for the village of Kirk Michael. Such agreement was however subject to the acceptance by the then Department of Education to a land swap in much the same form as that currently agreed. It was also the Company's intention at that time to develop 1 acre of the Land itself as "Eco" housing and to make provision for the construction of a doctor's surgery and nursery.

Regrettably, the then Minister of the Department of Education and, in particular, the then MHK for Michael were not in agreement with the proposals and, as such, it proved difficult to progress the agreement with Heritage and it ultimately lapsed.

Negotiations with Heritage started afresh in 2009 by which time not only had the construction market changed beyond recognition since the original agreement but also Heritage had been working independently to acquire sites to facilitate an alternative access

273 to the Land in the vicinity of the existing driveway to High Tilt ("the High Tilt Access"). In particular we were advised that Heritage had acquired the property known as "Westlands" on Douglas Road as well as reaching agreement with the owners of "Cass-A-Lergy" for the purposes of creating such access.

However, it remained the Company's preference that access to the Land be taken through the Douglas Corner as per previous plans and that a land swap be agreed with the Department of Education and Children for the benefit of Kirk Michael School. The Company was also aware that by this time that the Commissioners, the Captain of the Parish and the Head Teacher of the school all favoured the proposals as it provided room for expansion which could not otherwise viably be achieved.

As such, the Company approached the Minister for the Department of Children and Education, Mr Teare, on an informal basis to discuss whether or not there was any appetite for a possible land swap in light of the change in circumstances. The first such meeting was at the offices of Tony Lloyd-Davies of Cornerstone Architects in July 2010 and later meetings were held with Mr Teare in the presence of officials from his department. I regret I do not know the exact dates of such meetings nor did I take any minutes.

At such meetings, the principle of a land swap was discussed on the basis that access from the Douglas Road Corner would facilitate the development of the Land with the construction of 100 residential units and that alternative access would be available at the High Tilt Access if the preferred Douglas Corner option was not available.

Following such initial meetings, the detail of the proposed land swap was negotiated directly with Heritage although, as land owner, the Company was kept appraised of the progress in this regard and attended one further meeting to discuss the question of overage as detailed below.

In June 2011, the Company received notification from Heritage that the Department had carried out further research in respect of the proposed development of the Land and whilst it was understood by the Department that the Highway Authority was content that access to 100 units may be gained via the High Tilt Access, the Department further understood a new access from Douglas Road Corner could well be used to service an increased housing density on the Land and indeed could also be used to service additional presently unzoned land.

It was on that basis that the Department sought to secure further benefit in the event that either the density of the development of the Land was increased or that the access from the Douglas Road corner facilitated the opening up of further land for development.

The proposal from the Department at that time was that an overage clause be agreed to the effect that further monies be paid to the Department in the event of an increase in housing density on the Land or the use of the access for the development of additional land. However, neither the Company nor Heritage felt able to agree the precise calculation for an overage clause and, as such, it was counter-proposed that a covenant be placed on the Land so that no more than 100 units be erected on it and also that any access road would not be used to service the development of land beyond the Land. This is the agreement that was finally made with the Department.

If therefore the Company is to develop any additional land beyond the Land using such access, it will require the Department to release the covenant relating to the same and, at

274 such point, it is envisaged that the Department will seek to further capitalise upon its position as holding the benefit of the said covenant.

I trust the above is of assistance.

Yours faithfully

Clare Lewis

275 276 APPENDIX 8 278 heritage hornesi—

Dandara Group Head Office Isle of Man Business Park Cooil Road. Braddan Isle of Man 1M2 2SA

telephone 01624 693300 facsimile 01624 693301 Mr W Greenhow ACMA, sales telephone 01624 615000 Chief Secretary, sales facsimile 01624 615161 email Government Office, [email protected] web www.dandnra.com Douglas, Isle of Man IM1 3PN

2nd March 2012

Dear Mr Greenhow,

Re; Inquiry to Consider PA 11101250/B, Residential Development of 100 Dwellings with Highway and Drainage Infrastructure, New School Field and Playground, Public Open Space and Landscaping, Part Fields 234267, 234456, 234555 & 230578, Parts of Adjacent Gardens, School Grounds & Adjacent Highway, Main Road Playground, Part Public Car Park & Verge/Hedge of Slieau Curn Park, Kirk Michael

We are in receipt of your letter of 27°' February, 2012 in respect of the above and are concerned with how a particular aspect of the inquiry has been reported by the Inspector. it is stated at paragraph 114 of the Inspector's report "The present proposals explored such an access, at Cass a Lergy, where Heritage Homes Ltd purchased Douglas Road properties backing onto the southern end of the site. The company was, however, unable to obtain control of sufficient frontage to satisfy the Highway Authority's visibility requirements". A similar point is made at paragraph 30.

This is fundamentally incorrect, as Heritage Homes Ltd has control of sufficient property and land in the vicinity of Cass A Lergy to allow the creation of a new junction with visibility splays which are to the satisfaction of the Highway Authority. Evidence of this was submitted to the Inquiry by Mr Bryan Hall, the Consulting Civil & Transportation Planning Engineer acting on behalf of Heritage Homes Ltd, who at pages 18-21 of his Appendix 1 explains in a letter to the Highway Authority how this can be achieved and provides a drawing to illustrate the point (09/348/TR/002 Rev A), An e-mail response from Mr Kevin Almond of the Department of Infrastructure Highways Division, which confirms that such a junction could serve 100 dwellings, is included at page 12. We enclose copies of this evidence.

directors Seamus Nugent Joe McLoughlin Gary leennisq morns Cain (Ivan Downey Alfic McGuinness David Humphrey

Incorpoimmi in the Isle or Man Reinstureil Number 17080C. ResiStered office Damlora Group 'lead office. Isle of Mn,, Rosiness Parc Cool flood, &Milan, IM27.50

279 We do not suggest that this misunderstanding would necessarily have had a bearing upon the Inspector's recommendation - the properties and land in question formed no part of the proposal and were not included in the application site, and so could not be considered as an alternative junction to that at Douglas Road Corner - but we wish for our concerns to be placed on record as this issue may be considered further in the future_

Yours sinter

David Flum hrey Planning Director

280

BR, A N G G HALL consnheirg transportniion planning engineers

Our ref: 09-348/BGH/KJA

14 March 2011

Mr K Almond Directorate of Highways lig Department of Infrastructure Sea Terminal Building Douglas IM1 2RF

131 Dear Kevin PROPOSED JUNCTION OF RESIDENTIAL ACCESS ROAD WITH A3, KIRK MICHAEL

The Kirk Michael Local Plan Written Statement, December 1994, sets out that the development of any land to the east of Kirk Michael " should pay regard to the suggestion of a bypass to the east of Kirk Michael " and that " the feasibility and desirability of such a link should be further examined " The Kirk Michael Relief Road, Joint Study, Draft Final Report, April 2004 examines that feasibility and desirability and it sets out that a development of 150 dwellings with direct access to A3 could be constructed on the land allocated for residential development to the south- east of Kirk Michael, behind the School, prior to any Relief Road being provided.

I carried out surveys of the use of A3 in the vicinity of the proposed function during the morning and evening peak periods of Tuesday 24 November, 2009, and the attached findings show that it was carrying flows of some 404 and 366 vehicles per hour at those times of day respectively. in accordance with advice contained in TA79/99, Traffic Capacity of Urban Roads, the capacity of a road such as A3 in this vicinity is of the order of 2,000 vehicles per hour and hence the surveys show that it is operating at some 20% or less of its traffic carrying capacity during its peak periods of operation and less at other times of the day. There are therefore numerous gaps in its traffic flows into which traffic from minor side roads can emerge and join that road. This section of road is also subject to a 30mph speed limit and in accordance with the advice contained in PPG13, Transport, March 1994, visibility splays with major road dimensions of 90.0 metres should be provided in both directions at a junction in this location. I have, however, carried out surveys of the speed of traffic at the extremities of its visibility splays, as it approaches the proposed junction, and I also attach those

Continued

Registered Office Suite E8 Joseph's Well Hanover Wilk Leeds L53 lAB VAT Aro X994601 07 Telephone 0113 246 1555 Fax 0113 234 2201 • Email highways@loyangliall, r ik Wcbsite unmet bryforglietit.mak 1143wil C Hall La regisreved in fingland 1r U7a1,1 C. No 4104.002

281

B ift•If A N 0 G 0 HAL I. consulting cipir ey transportation planning onginoors

Continuation 1 Mr K Almond 09-348/BGH/KJA 14 March 2011

Continued

282 B R VAN G 4 FlPt-LL consulting ciuil C..- transportation planning engineers

Continuation 2 Mr K Almond 09-348/BGH/KJA 14 March 2011

The attached drawing 09/348/TR/002 Rev A also shows the vertical alignment of A3 and that forward visibility of 120.0 metres is available over a distance of 171.0 metres towards the junction for drivers travelling in a northerly direction. This is some 9.0 metres less than that recommended in TD 42/95, Geometric Design of Major/Minor Priority Junctions but is only required because vehicles are travelling at speeds greater than the 30mph speed limit which they have only recently joined from the derestricted section of road and are consequently slowing to that speed. Forward visibility of 90.0 metres is available over a distance of 135.0 metres for drivers of vehicles travelling in the oppoSite direction, from the centre of Kirk Michael, towards the junction.

I look forward to hearing from you.

sincerely

Bryan Hall enc cc Messrs C Downey & J McLoughlin, Heritage Homes Limited

283 IV Kathryn Atkinson

From: Almond, Kevin [[email protected]] Sent: 15 April 2011 10:31 To: Sewell, Derek; Highways 11 Subject: FW: Kirk Michael

Original message From: kevin almond Sent: 15/04/2011, 10:21 To: Almond, Kevin Subject: Kirk Michael

Dear Bryan,

Thank you for your letters of the 10th February and 14th March 2010.

In reply to your letter of the 10th February. regarding the form of the proposed function next to Kirk Michael School.

The roundabout option:

The simply priority crossroad option:

TD 42/95 considers that a staggered T junction is preferable to a crossroads junction due to crossroads having generally poor safety performance. The document goes on to recommend that crossroads are considered suitable only at simply junctions where the minor flows do not warrant a ghost island or single lane duelling. The existing minor road (A4) 2 way AADT vehicular flow will exceed the 300 vehicle threshold for a ghost island. The 2 way AADT flow for the new minor road serving the development will also likely exceed the threshold, given that the predicted combined am and pm peak 2 way flow is 240 vehicles. In both cases the minor arm flow would preclude the option of a priority crossroads. Furthermore, there is also a general recommendation that it is undesirable to position a simply junction inside a sharp curve.

1 11

284 Finally, the junction design would be constrained as additional safety measures such as ghost islands, rg hatching or physical islands which may be required would be resisted by the TT representatives.

Therefore, the Department would not support the introduction of a crossroad junction at this location.

In addition the y distance to the left from the proposed road is only 75m to the nearside kerb and passes across 3rd party land at its southern most point.

The traffic signal control option:

Therefore, given the safety and siting issues of a priority junction given and the requirements of the IT, restricting road markings and highway works on the course, the Department considers best available option to be a traffic signal controlled crossroads. Of the two option presented, drwg no. 09/348/TR/018 is preferable.

In reply to your letter of the 1.4th March, regarding a proposed junction next to Cass A Lergv (Drwg 09/348/TR/002)

The Department considers that the proposed junction could serve the 100 dwellings as previously considered by the Department in relation to the proposed junction adjacent to Kirk Michael School.

The Department is willing to accept a reduction the 'x' distance to the north from 4.5m to 3.5m on assumption that it serves only the 100 dwellings as previously considered.

It should be noted that the design and layout of the development if accessed from this point shall not constrain the future development of a by-pass and its junction with the A3 & A4.

Regards,

Kevin

2011 — Year of the Commonwealth Youth Games

isle of Man. Giving you freedom to flourish

285 286 21a1I Rea itient, reeerfuneko.: ye E. 1...m, I ie. seur, le• 1••••••••

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I man 00 4;0 JO. 10. . 0; .41 4 $al ;wow .0. ea....rpc I 11a M.o. Wo• 21 288 APPENDIX 9 290 heritage homeshr-d

Dandara Group Head Office Isle of Man Business Park Cooil Road, Braddan Isle of Man IM2 2SA 18th April 2012

telephone 01 624 693300 Mr J Kina facsimile 01 624 693301 Deputy Clerk of Tynwald sales telephone 01624 615000 sales facsimile 01624 61 5161 Legislative Buildings email [email protected] Douglas web www.dandara.com Isle of Man IM1 3PW

Dear Mr King

Re: Kirk Michael School — Land Exchange Agreement

In response to your letter of 7 March 2012 advising Heritage Homes Limited ("HHL") of the appointment of a Select Committee ("the Committee") of Tynwald to investigate the above matter within the ambit of the resolution dated 22 February 2012, I have been requested by the Board of Directors of HHL to make the following written submission in response to your invitation to do so for the consideration of the Committee,

HHL is a member of the Dandara Group ("the Group") of Companies and has been the primary residential development company for the Group in respect of such building activities on the Isle of Man since its incorporation in 1997.

Towards the end of 2004 HHL entered into negotiations with Pinecrest Investments Limited (''PIL") being the freehold owner of certain land ("the Development Site") zoned for predominately residential development under the relevant local plan and being located at Lhergy Vreck, Kirk Michael, with a view to seeking to reach agreement with PIL to enter into a contract to purchase the Development Site conditional upon the obtaining of (1) detailed planning approval for residential development and (2) the securing of a suitable development access for the same to the existing public highway. A conditional purchase agreement was entered into by HHL with PIL on the 10th October 2006 together with an option agreement ("the Option Agreement") of the same date to grant an option in favour of HHL over a substantial part of PIL's land ("the Option Land") situated at Lhergy Vreck beyond the portion zoned for residential development.

The clear and obvious route for any such access for the Development Site is from the Douglas Road Corner ("the DRC Access") and thereby involving a land exchange deal with the Department of Education ("the Department') as the freehold owner of the Kirk Michael Primary School. The reasons for preference to utilise the DRC Access are quite straightforward: directors Seamus Nugent Joe McLoughlin Gary Leeming John Cain CiarAn Downey Alfie McGuinness David Humphrey

Incorporated in the Isle of Man Registered Number 77089C. Registered office Dandara Group Head office, Isle of Mcn Business Park, Cooll Road, Braddan, 1M2 2SA. 291 A. The Kirk Michael Local Plan notes, "Any development of this area should take into account the possibility of a by-pass route." It also generally requires development to "pay regard to the suggestion of a by-pass to the east of Kirk Michael". (The alternative access via Cass A Lergy Douglas Road Kirk Michael (" the Cass A Lergy Access") has insufficient visibility to accommodate a road of by-pass width.)

B. The subsequent Kirk Michael Relief Road Joint Study (Atkins Report) concluded that "if it is decided that a relief road should be provided then the preferred option would be an alignment as indicated in option 1" (i.e. the DRC Access). It also acknowledged that the relief road would have to be privately funded (through the release of land for residential development).

C. The Officers of the Highway Authority have consistently expressed the view that access to the Development Site should preferably be via the DRC Access.

D. The Kirk Michael Commissioners support the proposed creation of the first leg of a possible relief road.

E. A land exchange agreement with the Department would be an opportunity for the Department to extend the Michael Primary School grounds (thereby securing the opportunity to extend the school buildings at some stage in the future) and to upgrade the existing playing field facilities without the use of expenditure of public money. It was also the expressed wish of PIL to seek to provide such a benefit to the Michael Primary School.

F. It would provide the best means of access for the future possible development of the Option Land and enable the Department to benefit from the same.

HHL took the lead in opening the dialogue with the Department with a view to progressing such a land exchange deal and in the first instance approached Mr Richard Collister, the Department's Estates Director in or around May 2005 to discuss the same.

The negotiations with the Department carried onwards throughout 2005 and into 2006.The then Minister for Education, Mr David Anderson MHK expressed his support in principle for a land exchange agreement, as did initially his successor Mrs Anne Craine MHK.

The Department organised a public meeting to take place on 17 May 2007 at Michael Primary School to consider the proposals for the same. It is understood that primarily as a result of the views expressed at that meeting that the Department determined that there was insufficient public appetite for such a deal to proceed and the negotiations were halted on the part of the Department.

HHL was and remains concerned that the format of the public meeting which is understood to have only been attended by approximately 170 residents, by its very nature was likely to lead to a "straw pole" determination and whilst being attractive to opposition voices was not necessarily indicative of the views and expressions of the wider population at large or indeed reflective of good planning practice.

In the absence of dialogue with the Department HHL was by necessity required to focus in on alternative access options for the Development Site. It identified possible alternative access points to that of the DRC Access and as a consequence of the

292 same subsequently proceeded to purchase the following properties and legal interests:

1. An Option Agreement over a portion of the property known as Cass A Lhergy, Douglas Road, Kirk Michael dated 19th December 2007 2. The purchase of the freehold property known as Westlands, Douglas Road, Kirk Michael on 1st July 2008 (1 and 2 above to provide the Cass A Lhergy Access) 3. The purchase of the freehold property known as Knock-e-Tholt, Douglas Road, Kirk Michael on 21st March 2007 4. The purchase of a portion of the freehold property known as Greystones, Douglas Road, Kirk Michael on 15th April 2008 in conjunction with an exchange of a portion of the garden of Knock-e-Tholt. 5. The purchase of a portion of freehold land between the Development Site and Slieu Curn Park on 8th April 2010. (As a secondary emergency access)

Following upon the above acquisitions and further negotiations with PIL a new agreement was negotiated with that company and signed on 16 August 2010 to seek to progress the obtaining of a detailed planning approval for the Development Site including, if possible and available, the utilisation of the DRC Access.

In the interim PIL had itself begun to explore again the possibility of the progressing of a land exchange agreement with the Department and after an initial approach to the new Minister Edward Teare MHK, negotiations with the Department resumed in greater earnest in October 2010.

On 21st February 2011 Minister Edward Teare MHK advised HHL that he was prepared in principle to undertake the proposed land exchange but that he required confirmation from the Highways Authority of the Department of Infrastructure ("the Highway Authority") that it had no objection to the Development Site being accessed via the Cass A Lergy Access.

HHL in conjunction with its Consulting Transport Planning Engineer Mr Bryan Hall ("BH") consulted with the Highway Authority in relation to both the DRC Access and the Cass A Lergy Access. The Highway Authority in April 2011 concluded that the proposed DRC Access utilising a traffic light system would be acceptable to it. It also concluded that the proposed Cass a Lergy Access would also be suitable for up to 100 dwellings on the Development Site.

Minister Edward Teare MHK wrote to HHL on 23 June 2011 and advised that having considered the matter in the light of the fact that the Cass A Lergy Access would be constrained to providing no more than 100 dwellings to the Development Site, as opposed to the DRC Access having no such restriction, that the Department should protect its position by ensuring that in addition to the terms of the deal negotiated to date that any use of the DRC Access would in turn be restricted by a covenant in favour of the Department to ensure that no more than 100 units be utilised from the same unless and until a further overage payment was made to the Department in recognition of the additional advantage that was provided by the DRC Access.

Following on from the above letter the relevant parties and their legal representatives convened a meeting held at Hamilton House on 25 July 2011 to seek to specifically

293 agree upon the issues as identified in Minister Teare's letter of 23 June 2011. HHL expressly disclosed to the Department its legal interest in the Option Land that might be served and benefit in the future from the DRC Access.

The matter was then subsequently passed into the hands of the parties' respective legal and other professional advisors to be finalised in conjunction with the remaining general drafting issues of the proposed agreement. The issues were successfully concluded and a legal agreement (the "DOE Agreement") reflecting the same was exchanged on the 16 August 2011 by PIL, HHL and the Department. The DOE Agreement was the end result and expression of complex tripartite negotiations carried out and concluded between the parties at arms length each having taken extensive professional advice before doing so.

The DOE Agreement contained (inter alia) a covenant in favour of the Department requiring any use to be made of the DRC Access to be limited to that of 100 dwellings and with an obligation upon the relevant parties to collaborate on seeking to reach an agreement on the terms and conditions for any payment to be made to the Department if a release or variation of the said covenant was to be obtained to make a greater usage of the DRC Access and in the absence of agreement for the matter to be referred to an independent surveyor as an expert for determination.

At the subsequent planning inquiry an unfortunate misunderstanding arose when BH responded to a question raised by an objector, Mrs Roberts. BH gave a very precise answer to a very specific question that left some parties under the incorrect impression that HHL did not have the benefit of the Cass A Lergy Access.

BH's written evidence to the Planning Inquiry clearly demonstrated that the Cass A Lergy Access as designed could serve 100 dwellings on the Development Site. BFI's written evidence to the Planning Inquiry had included a copy of his letter dated 14th March 2011 to Mr Kevin Almond of the Highway Authority together with Mr Kevin Almond's emailed response dated 15th April 2011.

HHL sought to clarify the misunderstanding by issuing a press release on the 3r° February 2012 (copy attached herewith marked "A"). BH also wrote a letter to HHL clarifying the situation on the 3`cl February 2012. (Copy attached herewith-marked "B") HHL also provided evidence to the Department of its legal interests in the Cass A Lhergy Access land.

HHL has invested a great deal of time and effort over a long number of years together with considerable upfront financial outlay in both the cost of the acquisition of possible alternative access points and the extensive professional fees necessary to be incurred throughout a very extensive process, in seeking to bring together all the elements required to enable a development opportunity to be made of the Development Site, on what is essentially land long recognised as being zoned predominantly for residential development by Tynwald.

Furthermore HHL has continued to remain committed to the Development Site despite the current challenging economic situation, and whilst, as with any commercial enterprise, it must seek to do so in a fiscally prudent manner and against a viable commercial backdrop, it is also very much aware and alive to the fact, as it would ask others to be likewise, that this particular development has the ability to provide a unique opportunity for the benefit of the Kirk Michael Primary School in a time of financial spending restraint in addition to the prospect of vital job opportunities in the construction and supporting sectors, It is with all this wider background and objective in mind that HHL has striven hard and will continue to do so to bring the

294 DOE Agreement to fruition, which it believes is an agreement well framed to bring benefit not only to its direct stakeholders but also to the wider community as well as providing a permanent legacy of benefit.

Yours Faithfully

Managing Director of Heritage Homes Limited

295 " A

heritage Fowl

homes MINNIMPOI Press release behalf of Heritage Homes 3.30pm Friday 3'd Mow/ 2012 FOLru art!)... Kirk Michael land Swap Alfred Cannon MHICs proposed Motion for Select Committee

On the 30th January Alfred Cannon MHK wrote to all Tynwald Members, informing them that he proposed to bring forward a motion at the February sitting calling for a Select Committee to be appointed to investigate the above. However, in order to avoid wasting Tynwald Members time on an obvious misunderstanding we herein clarify the facts of the matter.

Prior to entering into the agreement with the Department of Education, we were required by Minister Teare to provide irrefutable proof that we could access the land to the rear of the school (albeit for a maximum of 100 houses) via an ALTERNATIVE access. This was for the specific purpose of establishing that that the Department WERE NOT in possession of the ONLY access which would enjoy an enhanced value.

The alternative access comprises land on three properties all controlled by Heritage Homes. Correspondence from the Highways Department confirming that we COULD access the site at this location was passed to The Department The Department also has Proof of our Ownership and Control of the alternative access land.

At the Planning Inquiry, an objector asked our Transport Planning Consultant, Mr Bryan Hall, if Heritage Homes could access the site via Westlands or Knock Y Tholt (properties on Douglas Road in the ownership of Heritage Homes). He replied no, because on their own these properties do not allow a viable access. He did not unfortunately explain that when taken with the additional land on Douglas Road that is under Heritage Homes control, an alternative accesserm be formed.

Mr Hall's written evidence did however include a plan of the alternative access together with a copy of the correspondence from the Dol Highway Division confirming that the alternative access is acceptable.

Mr Hall's dogged adherence to one of the golden rules of cross-examination (i.e. listen carefully to the question and confine your answer to the question) may be fine normally at an inquiry, but in this instance it would appear that the limited nature of the question which was asked and the limited answer, has unfortunately lead to a misunderstanding by Mr. Cannan.

We have been informed that the Department proposes to write to Mr Carman and all Tynwald Members later today, clarifying the matter and providing Mr Carman with proof that Heritage Homes do indeed have an alternative access. The Department's Chief Executive has assured us that he spoke to Mr Cannon approximately two weeks ago and clarified the misunderstanding.

Mr Cannan's assertion that The Department enjoyed a ransom over development is not correct, 100 homes can be accessed through other land within Heritage Home's control.

Minister Teare and his team (which included The Government Valuer, the AG's Office and Directors from The Department), in our opinion negotiated a very astute deal. In addition to the land swap and significant improvement works to the School, any future development availing of the school access will be at the control and benefit of The Deoartrrent of Education fi,e the tax Paver'.

The terms of the agreement were made public by Minister Teare in his press release at the time. We regret the misunderstanding of our consultant's remarks at the inquiry, and apologize for any inconvenience, which this may have caused.

End.

Heritage Homes.

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Our ref: 09-348/BGH/KJA

3 February 2012

Mr C Downey Heritage Homes Ltd Dandara Group Head Office Isle of Man Business Park Cooir Road Braddan Isle of Man IM2 2SA

Dear Ciaran

ACCESS TO LAND TO EAST OF MAIN ROAD, KIRK MICHAEL: LETTER FROM MR A CANNAN MHX, DATED 30 JANUARY 2012

Following our earlier discussion. I now write to you setting out my thoughts on the letter of 30 January from Mr Alfred Cannan to all other Members of Tynwald.

At the Inquiry in December, Mrs Roberts, on behalf of herself and other objectors, tried to explore the possibility of an alternative access to application site but the Inspector pointed out to her that there may be numerous other alternatives which the objectors considered to be better but that he could only consider that shown in the application ana his decision would be based on the merits of that rather than any other raised by the objectors.

The proposals considered at the Inquiry take access through the school field at Douglas Road Corner and therefore the dwellings and land within the control of Heritage Homes Ltd at Douglas Road are not required and hence they are not included in the application site. Nonetheless, my Proof of Evidence and Appendices which were considered at the Inquiry were available to Mr Cannan and all other parties and they confirm that an alternative means of access to the land zoned for residential development can be provided from Douglas Road using land which is within the curtilage of VVestlands, the existing lane and within the curtilage of Cass A Lergy, all of which are in the control of Heritage Homes Ltd. The Appendices to my Evidence include a plan of this alternative means of access (Drawing No 09/3418/TR/002 Rev A) and an email of 15 April 2011 from Mr Kevin Almond of the Highways Division of the Department of Infrastructure, which confirms that the access shown on that drawing could serve 100 dwellings as an alternative to that passing through the school playing fields, Both my Proof of Evidence and Appendices were posted on the Government webs ite.

Continued

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297

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Continuation 1 Mr C Downey 09-348/BGH/KJA 3 February 2012

was not asked at the Inquiry about the possibility of using all the land within the control of the applicant at Douglas Road in order to create this alternative access. Mrs Roberts asked me why access could not be provided through the curtilage of Westlands or Knock E Tholt, which do not adjoin each other, when they had been bought specifically for that purpose and I explained that the frontage of each of those individual dwellings is not sufficiently wide to accommodate a residential estate road with radius kerbs at its junction with Douglas Road and that visibility splays to both the north and south would pass over the gardens and Manx hedges of adjoining dwell;ngs which are in third party ownership. A residential estate road with radius kerbs can be provided on land in the curtilage of Westlands and other land to its south which is within the control of the applicant as I set out above but I was not asked about this.

During an adjournment in the Inquiry, Mr Cannan asked me, in the presence of both David Humphrey and Stephen Sauvain QC, whether access to the application site could be provided through either Westlands or Knock E Tholt and I confirmed the response which I had given to Mrs Roberts. Again, as I set out above, access can be provided if all the land which is within the control of Heritage Homes is taken into account but Mr Cannan did not ask me about this either during the Inquiry or during the adjournment.

The question of two alternative accesses to the land allocated for residential use in the Local Plan was not therefore raised at the Inquiry and I consider that Mr Cannan's letter is incorrect in stating that alternative access is not available. This is a commercial matter and not a planning matter which could be considered by the Inspector. The application site does not include land to its south, including that within the curtilage of Cass A Lergy which Heritage Homes has an option to purchase, and therefore access to it is not available by way of that land. However, alternative access is available if land outside the application site, but within the control of Heritage Homes Ltd, is utilised.

This is not a matter which the Inspector should consider in relation to the current application and I consider that my Evidence to the Inquiry clearly shows that an .:;te;,1,itiVe access can be provided to the land which is zoned for residential development. I am sorry if the answers to the questions which were put to me have been misunderstood but I do believe that i accurately responded to them.

Yows sincerely

Bryan Hall

298 APPENDIX 10 300

RECEIVED Mr G.W. and Mrs A. Bennett 21 MAR 2012 Highcroft Douglas Road OFFICE OF THE Kirk Michael IM63.AR CLERK OF TYNWALD

Mr Jonathon King Clerk of the Committee Legislative Buildings Douglas IM13PW 20 March 2012

To the Committee Investigating Kirk Michael Land Exchange Agreement

Dear Mr King

We have lived for nearly thirty years in Highcroft, Douglas Road, Kirk Michael under the shadow of this development and feel that we are justified in expressing our concerns over this land swap deal.

Firstly, we think that Mr Teare, the Minister involved in the negotiations acted without looking at all the facts and let his views and feelings toward the previous MHK for Kirk Michael cloud his judgement.

The developers claim to have "secured alternative entrance" is not based on actuality. Ownership of two properties Westlands and Knock e Tholt has been secured, as has a parcel of land behind Greystones. We believe these properties, and land has been obtained in order for the land to be used as an access through Lherghy Vreck/Casa Lherghy and into the land that is zoned for development. This is impossible as the other two properties on Douglas Road Ty- Hesq and Court Hey remain in private ownership, although unsuccessful offers have been made to buy the garden of Ty-Hesq. Therefore, the only way to circumnavigate these properties would be to try to create an access road through land that is not zoned for development, resulting in more planning complications, with an uncertain outcome for the developer.

Furthermore, there is an unresolved matter of rights of way involved with Lherghy Vreck. Contact by email with the owner of the property Mr John Rhys Davies, confirms this fact.

The other alternative that has been talked about is to demolish one of these properties to gain access. This is again not based on fact, as it is not a foregone conclusion of any planning application that a property could be demolished to create such an access.

If these facts were considered during any negotiations, then it would have been seen that the developers had not "secured an alternative entrance" and were more concerned with trying to gain access through Douglas Road corner in order to achieve a grander entrance and the possibility of further development beyond their proposed development.

The question has been raised as to whether the land swap deal was value for money. Without access to the contract between the Government landowner and developer we can only go on what information that has managed to surface from within the cloak of secrecy that surrounds this deal. Based on this we do not think it is the "astute deal" written about in the press release from Dandara. More like a hasty decision based on ego and not logic.

301 We feel that some research into fact, would have resulted in a different outcome, and the deal would not have ended being tainted by the rumour and innuendo that now surrounds it.

All right minded people are offended by the way this deal has been carried out, with secret meetings involving commissioners, the then Education Minister and developers, and the way in which the deal was rushed through when our previous MI-IK retired.

Thankfully, due to the effort and concerns of many individuals, the development has been turned down. Now it is up to you Members of Tynwald to restore some of the trust in our Government and arrive at an outcome that is based on fact, not possibility. A simpler and fairer option would have been to prohibit development to close to Kirk Michael School, preserve the Conservation Area and engage in some consultation with people affected by any development.

Yours Faithfully •.1 I' • Vi), 61 • /3e-4.-e..9- . 7/7: George and Alix Bennett

302

Clare McDonou9h

From: Paul [[email protected]] Sent: 08 March 2012 20:39 To: Jonathan King Subject: Michael School land enquiry

Mr. King,

I would like to add my contribution to the request for comments.

I am a resident of Kirk Michael and I attended a public meeting approximately 5 — 6 years ago organised by David Cannan and supported by Duggie Boulton, who owns most of the land that the by-pass would be built on, to discuss the proposed by-pass at which 135 residents voted 134 to 1 in a vote to confirm that residents were not in favour of the by-pass and the associated housing development. At this point, I believe that the by-pass was effectively cancelled.

I am therefore very confused when the "proposed" by-pass has been raised with respect to the denial of the Heritage Homes planning approval. I would like to know where this came from and who raised this. It certainly has not been a topic of discussion within the village of Kirk Michael.

I have no objection to the proposed development and the land transfer as long as it is properly managed. In my opinion, this is just a continuation of the Cannan family obsession on this subject.

I would be happy to receive a written response to my comments. My details are:

Paul Clark, Beachfield House, Beachfield Farm Lane, Kirk Michael IM6 1HB

393 304 Clare McDonough

From: Richard Davis [[email protected]] Sent: 17 March 2012 19:07 To: Jonathan King Cc: Alf Cannan; Andrew and Sally Roberts; [email protected] Subject: Kirk Michael School Land Exchange Attachments: KM land swap.doc

FAO Jonathan King, Clerk of the Committee - Kirk Michael School Land Exchange.

I attach some notes for the attention of your Committee which I hope they will find relevant to their inquiry.

Should you have any need to contact me, I can be reached on 490093 or by return email.

Regards,

Richard

Richard Davis Cronk Froy, Douglas Road, Kirk Michael IM6 1AR

3Q5 306 I am a retired police officer and I am a director of Jurby Transport Museum.

I reside at 'Cronk Froy', Douglas Road, Kirk Michael and have done so since 1996.

My house is immediately adjacent to the school playing field and the North facing windows of my property give a direct view onto the Conservation Area and the school playing field. To the rear, I have a direct view over the proposed development site from my conservatory.

The whole business of the Kirk Michael School 'land swap' has been handled very badly in that it has not been conducted in a open and transparent fashion and has gone against the clearly expressed wishes of residents as has been made abundantly clear at several public meetings held in the village.

Whether access to the land had been secured by January 2011 is one of the matters that has not been made clear and attempts to clarify this have been met with delay and obstruction to the extent that even the local MHK, Alf Cannan has been unable to obtain a definitive answer to his questions.

The planning application of 7 September 2011 for the proposed development included the Dept of Education and Children as part owner so presumably the land was owned by Government at that time? What the position was in January 2011 is far from clear.

Whether the land is still owned by Government and whether the land exchange is conditional on the grant of planning approval also seems to be unresolved.

At the Planning Inquiry it was stated very clearly and in a manner leaving no room for doubt by Bryan Hall, Heritage Homes Transport Planning Consultant, that despite having control over three properties on Douglas Road, Heritage Homes did NOT have means of road access to the site, hence the need to have the school land upon which to build a road.

Shortly afterwards however, Heritage Homes issued a press release contradicting Mr Hall's assertion and stating that they DID in fact have access by other means.

It is worth noting that, in addition to the 100 houses proposed in the present application, part of which involves school land and a Conservation Area, any extension to the access road/by-pass would have to be funded by further development, and it would be a legal requirement that there be more than one road access into the site.

In my view, it is essential for the good management and good reputation of the Isle of Man, that any transfer or sale of government land be carried out with the utmost transparency and probity.

This seems to be singularly lacking in the present case and has, unsurprisingly, led to widespread speculation amongst the general public that there must be something untoward, not to say underhand, in the dealings between the parties involved in the land swap.

307 Whilst there may be no truth in such speculation, the very fact that the manner of negotiations has given rise to public disquiet on such a scale is a matter for grave concern.

As to the value for money achieved in the land swap, on the face of it, Kirk Michael School is getting a good deal - if one considers the transaction purely in terms of acreage exchanged.

However, it must be born in mind that the present sports field which the school would lose is probably one of the best of its type anywhere on the island. It is ideally situated, well drained and in excellent condition. In the time I have lived adjacent to the school I am not aware of any difficulty in the use of the field regardless of weather conditions.

The land proposed for exchange, though larger, is very far from ideal being stony and water-logged in its present condition and it would require much work to prepare and convert it into a sports pitch. It may well be that it would never equal the present facility in terms of quality and usefulness.

Quite apart from the fact that other ways could have been found to secure school land for possible future expansion, it remains to be seen how much of the exchanged land would be available for playing fields. An additional 100 houses in Kirk Michael - the largest single development in the history of the village - would obviously generate extra pupils for the school and though it may be operating below capacity at the moment, the closure of Ballaugh School, as has been credibly suggested, would inevitably place an additional burden on Kirk Michael School, most probably requiring some of the land gained to be used for a school building extension.

To sum up:

The matter of the timing and completion of the land transfer, if any, seems to be at best obscure.

There is a distinct feeling of public unease about the manner of the land exchange - not only in the Kirk Michael area, but also in the wider community if comments made to me are anything to go by. To say that negotiations have been carried out in secrecy beyond any requirement for commercial confidentiality is not putting it too strongly. The timing of such announcements as have been made public. together with the admission of 'errors' by officials does nothing to reassure misgivings.

Value for money achieved is clearly not the wonderful deal that has been claimed and it seems doubtful in the extreme that Kirk Michael School will benefit in any meaningful way from this transaction.

Bearing in mind that there are always those who will seek every opportunity to criticise the Isle of Man and its public image, I have to ask if the circumstances of the 'land swap' are something that will enhance the island's reputation and be to the benefit of Kirk Michael and its school?

308 In conclusion, I would add that I am not opposed to suitable development in Kirk Michael, provided it is in keeping with the character of the village and does not compromise road safety or detract from the highly scenic nature of the surrounding countryside, as the present proposal clearly does. I have given evidence to this effect at the Public Inquiry.

I firmly believe that it is not the function of any Government Department to encourage or facilitate development which is to the detriment of the village and the school and especially not where it involves unsympathetic use of land which is part of a Conservation Area and NOT zoned for development

309 310 lain and Marjorie Forrest Brynwood, Main Road Kirkmichael IM 6 lAJ 22nd March 2012 The Clerk to the select committee into land swap at Kirkmichael School Legislative Buildings, Douglas

For the attention of the select committee into land swap deal at Kirkmichael school.

We appreciate this opportunity to contribute to public consultation/discussions regarding the recent Kirkmichael School land swap deal between the Department of Education and Heritage Homes.

The opportunity to do so is particularly welcome as at the time of the deal little information regarding the process was shared. This was in stark contrast to the previous occasion when Heritage Homes attempted to secure the same deal. At that time, the then Minister and the Director of Education held an open afternoon at Kirkmichael school. There was a full sharing of information and concerns from all parties at the end of which the village voted against land swap.

The recent land swap deal which resulted in a "yes" agreement took place under quite different circumstances. Kirkmichael was without an active MHK, there was no community consultation and little information given regarding the decision-making processes of the deal. In essence the decision-making process was taken out of the sphere of community politics and appeared to become a more focused business/political negotiation. This raises the following questions for us:

1. What format did the negotiations follow? a. Who took part and why? b. Who was omitted and why? c. Was the process of negotiation minuted and to whom were the minutes circulated? 2. What authority did Minister Teare have to make this decision? a. Whom did he see himself representing? (the government, the education department, the children of the village, the parents and population of the village).

311 b. Was this made explicit? 3. What accountability has Minister Teare for his decision? a. How did he account for his decision to the village of Kirkmichael which had recently voted against a land swap deal? b. How did he account for his decision to Tynwald colleagues, specifically the MHK for Michael and fellow ministers whose departments were likely to be affected by his decision? (Tourism, Health, Infrastructure). 4. The timing of the negotiations tended to favour Heritage Homes. Was Minister Teare aware of this? Had he considered a delay until Michael's new MHK was appointed and able to be a resource to him in negotiation. 5. Was the deal actually legal?

Press releases following the completion of the deal suggested that it had been a particularly good one for Kirkmichael School and for the Department of Education. We believe Heritage Homes went so far as to suggest that Minister Teare had been a particularly astute negotiator. While it is easy to see the significant commercial opportunity the land exchange opened for Heritage Homes , It is less easy to see benefits for the school and community. Certainly a small area of land was acquired, but at what social and educational cost?

We have the following further questions:-

1. How fully briefed was Minister Teare on both the educational and community implications of his decision? For instance, we are not clear as to the required future expansion of the school. If the development goes ahead, how big will the school have to become to cope with the expanded school roll, and will the gained land disappear under classrooms? 2. Who did brief him and in what areas did he seek advice? 3. In what areas, with hindsight, was he unbriefed and did not seek advice? 4. What criteria did he use in his decision making? 5. How and with whom did he develop and share these? 6. Did he consider that in agreeing the land swap he was also in all likelihood agreeing to a generation of Michael schoolchildren receiving their primary education in the heart of a constuction site? 7. As an "astute" negotiator did Minister Teare at any time consider how he could have used his political authority to challenge Heritage Homes current and seemingly inflexible development style? Had he considered encouraging them to consider very much smaller and more environmentally suited developments?

Once again thank you for allowing us to contribute to the democratic process in relation this important community issue.

312 Yours Sincerely

(.1

lain B Forrest

A JAI

Marjorie orrest

313 314 RECEIVED 6 Mull View Kirk Michael 2 2 MAR 2012 Isle of Man OFFICE 'C E CLERK OE TYNWALD IM6 1AQ

21.03.2011

Dear Mr King,

Land Swart at Michael School

I wish to submit the following comments and opinions on the above land swap at Michael School.

Preamble.

Before I move to the more specific comments and objections to the land swap at Michael School, I would stress that I was born and brought up in the village and attended Michael School for 6 years approximately 60 years ago. I am a current member of Michael Commissioners and for the past 4 years Chairman of Michael Heritage Trust.

Comments and opinions on the land swap.

[1] a. Who initiated the idea of a land swap? b. Was it the Minister or the Developer? c. When was this agreed? d. Why was it announced when the House of Keys was dissolved due to a forthcoming election, leaving the voters of Michael with no representation?

The timing of the announcement was a very poor judgement and appears to be underhanded and not conducted in an open and transparent manner.

[2] The whole land swap deal was based on a fallacy (mistaken belief) that the developer had secured an alternative means of access. Minister Teare in his interview on radio stated that he was in a weak bargaining position over a proposed land swap as the developer had an alternative entrance to the proposed site. In addition, in a letter dated 19th Aug 2011, he stated that he had entered into agreement with Pinecrest Investments Ltd., and the developer Heritage Homes Ltd., regarding a land exchange at the School. He also stated that "through purchasing properties on Douglas Road, the developer has secured an alternative access to the zoned land"

However at the planning enquiry held in the Ebenezer Hall., Kirk Michael on December 19th/20th 2011, Mr Bryan Hall, from Leeds, Heritage Homes traffic/transport consultant, stated in front of Mr David Langton the Independent Inspector that he had looked at the 2 properties (Knock y Tholt and Westlands) owned by Heritage Homes on the Douglas Road and they (Heritage Homes) could not obtain a suitable entrance to the development site at these locations.

315 [3] In the proposed land swap the fact that the original school playing field was in a Conservation area — approved by Tynwald (Statutory OrderS27/06) in 2006 and outside the 1994 building zone was ignored by the Minister. Yet in the planning application a 7.2m road was to be built in this Conservation area with traffic lights at Douglas Road corner creating potential chaos for parents delivering and picking up small children at school.

[4] A development of this size would require the provision of a recreation and amenity area similar in size to the land offered in the land swap; however, in the land swap deal, the developer is not providing a separate recreation area but using the 'swapped' land for their new development. This is not good value for the Tax payer.

[5] The Department of Education have stated that the land swap allows for future expansion of the school — at the present time the school has excess capacity as on March 3rd 2011 the Department offered 'surplus capacity' "For a GPs' surgery at the school giving the GPs separate entrance, waiting room, consulting room and toilets in the older part of the school."

As for the long term expansion of the school, I would suggest that the area between the original building and the new Sports Hall could be knocked down and a new two storey building erected — in place of the carbuncle which was built some 18 years ago. It has also been stated by Mr Teare that the land swap protects the school from new development right up to the school boundary; I would submit that any such development would be subject to planning approval.

The present land swap effectively means that the school will be bounded by 3 roads and the view from the school of the environmental area of fields, foot hills and mountains would be obscured.

In conclusion, I feel that the land swap was not carried out in a transparent manner and was based on a fallacy. I also feel the taxpayer received a very poor deal in this land swap. It can be noted that the developer paid £995.000 for a property (Westlands) to try and obtain an alternative entrance to the proposed site, in comparison to a land swap which provided a playing fied, which the developer would have to provide for a development of a new site of this size.

Yours sincerely,

Peter Hayes B.Sc., Ph. D

Mr Jonathan King,

Legislative Building, Douglas

316 Clare McDonough

From: [email protected] Sent: 22 March 2012 00:09 To: Jonathan King Subject: Michael School Land Exchange Select Committee

to: Mr Jonathan King Clerk of the Committee Legislative Buildings Douglas, IM1 3PW

Dear Mr King

Michael School Land Exchange

I am delighted that the Select Committee has decided to give members of the public the opportunity to submit comments and opinions on the subject. I write as a resident and ratepayer of Kirk Michael, and a serving Local Authority Commissioner, being a recent past Chairman of Michael District Commissioners.

I have supported this advantageous deal since first offered many years ago. The exchange has many advantages for the school and the community. It is also supported by the School Governors and senior staff, plus the Captain of the Parish has publicly voiced his support.

There are many benefits both now and in the future. It protects the future expansion of the school and immediately provides a number of valuable additional facilities. If housing development was permitted around it to the north and east, any future classrooms would have to be built in a less than ideal location within the existing school site, thus reducing the area already taken up by existing facilities.

The preferred area for any school development would be to the north of the school, on the Fair Field, an area on the same level as existing classrooms. This area was included in the land-exchange deal. The developer has proposed that the balance of the historic Fair Field be gifted to the community as a very desirable permanent public open space. Without the land-exchange it is very likely that this area would be developed.

The land-exchange proposals provide for additional car parking on the front of the school for staff and visitors. This would improve traffic safety when parents drop off or collect their children, plus when the community room or sports hall is used at other times.

The land-exchange secures the starting point of a relief road around the village, on a route recommended by consultants in 2004. Two of the three options commenced at Douglas Road Corner. A road to run parallel to the A3 through the village would be able to offer an emergency route around the centre of the community when the Main Road is closed. The alternative is a road journey of over 30 miles from one end of the village to the other.

Some form of relief road / bypass has been enshrined in the Local Plan since 1992, in land zoned for residential development. When Tynwald accepted the Local Plan I believe that Hansard mentions a proposal to create a roadway between Slieau Curn Park and the High Tilt entrance with the implication it could be built at public expense. This was turned down because it would make it easier/cheaper for the land owner to develop the land, that would have been partly funded by the taxpayer.

While it is possible to create an alternative access into the area zoned for development behind the school, the use of Douglas Road Corner would cause fewer traffic movements along Douglas Road. Using traffic lights, access from High Tilt entrance seems perfectly feasible, and similar to such as Ballagarey, Glen Vine. I understand that the Developer purchased the property alongside the existing agricultural entrance before the land-exchange deal was agreed by the then Education Minister Mr Teare. Demolition of this bungalow would make for a very viable access.

As the representative of Michael District Commissioners on the Western Traffic Management Liaison Group (WTMLG), this High Tilt entrance has been informally discussed with DOI/DOT highway planning staff for quite some time with no doubt raised of its viability, but probably subject to traffic light control. I do stress that these were informal and brief discussions without plans before the land-swap option provided the preferred option of access from Douglas Road Corner.

317 If the land-swap deal fails and Heritage Homes' access is by the High Tilt entrance the developer would probably build another ten houses up to the school boundary, the community could lose the Fair Field and an emergency road access around the village. The residents of Douglas Road will see increased traffic between the access and Douglas Rd Corner.

In most arrangements there are legitimate objections as well as benefits, and the obvious question is which are the greater for the whole community. I have supported the land-swap for many years on the basis of greater benefit than loss. Much has been made of public meetings and even the suggestion that they represent a quorate body of the community. The attendance at these meetings is about 100, which represents just 7% of residents of voting age, thus they are a small and somewhat niche cross-section of the community. With the wider background of elected village representatives I believe that Michael Commissioners provide a far better cross-section barometer.

Yours sincerely,

Stephen W Hamer

15 Faaie ny Cabbal Kirk Michael Isle of Man, IM6 2HS

3/8 Henry Kennaugh Kiltrellig House Hil!berry Green Douglas Isle of Man IM2 6DE Tel; 611648 Email; w hke n na uKh ty9 tlx,n 5 July 2012

The Chairman The Select Committee Legislative Buildings Finch Road Douglas Isle of Man IM1 3PW

Re; - Kirk Michael School Land Exchange

FAO: The Hon S C Rodan SHK

Dear Sir

My apologies for writing to you at a late date in proceedings but in the circumstances of the Council of Ministers allowing a second Planning Inquiry contrary to the understanding of the 1999 Town & Country Planning Act on the site including a portion of Kirk Michael School playground I now wish to provide critical evidence to the Committee. The matters which are now raised afresh in this matter are particular issues of concern in relation to the intended purpose of the mandate of Tynwald given to the Minister of Education as to its eventual purpose in supporting development on Government owned land of Kirk Michael school grounds, contrary to the laid down Planning Policies approved by Tynwald which now form part of our Constitution.

The new application now raises afresh the whole concept that an area of school playground in the ownership of Government, not zoned for development, registered in a Conservation Area, was packaged in a deal by the then Minister Mr Teare with the intention to achieve planning approval for a developer which had to contravene laid down Government Planning Policies as recited in the 2007 Strategic Plan to be successful.

One of the serious issues it now raises is, was Tynwald on the 18 January 2011 made fully aware of the implications that the mandate they were giving to the Minister of Education was to then be used to condone the wholesale blatant breaching of Government Planning Policy. The importance of these Planning Policies is such that they are being strictly enforced on a daily basis to every company every individual and up until now every Government Department or Body who engages in the administrative process of The Planning System.

Responsible due diligence enquiries by the Minister into the matter of, could or should his Department enter into negotiations to trade any of Government land at Kirk Michael School with a developer should clearly have rendered this or any such deal as inappropriate for Government involvement, let alone for Tynwald to be asked to support such hidden controversy.

319 The material planning facts and Planning Policies against Government trading Michael Primary School Playground for residential purposes with a developer were and are overwhelming. Firstly, the school playground is registered in a Conservation Area. The guidance for conservation area control is in Planning Policy Statement 1/01, I invite the Committee to read the Forward and the Introduction of this policy statement explaining the ethos of the policies it contains, and in particular, note the relevant statement which would be appropriate to the conduct of Ministers in conducting their affairs on behalf of Tynwald ; "It is fundamental to the Government's responsibilities for environmental stewardship" Departments of Government in such circumstances would need to proceed with the utmost of caution and lead by example in matters protecting or conserving the protected environment, and particularly the protected Islands landscapes for the enjoyment by future generations. Such applications of administration are clearly deemed as "fundamental."

Kirk Michael school playground forms part of the distinctive rural character of Kirk Michael village, that is why it was considered to need protection, the protection was sanctioned on the 23 June 2006, in planning terms this was a recent and current protection, there has been no material change in the intervening period that could indicate or dictate that this protection should change, so every positive step should have been taken to preserve and sustain such protection and the ethos of such protection in general.

The school playground by definition is not zoned for residential development purposes. The area of land used as school playground is therefore considered by Government Policy protected against such development. Such a zoning change in the circumstances can only be re-zoned in the Area Plan Process or by a Planning Order where the discipline is "Overriding National Need," this is rightfully an extremely high hurdle. The main Policy on this issue is at Strategic Plan 7.5,

Environment Policy 1;

The countryside and its ecology will be protected for its own sake. For the purposes of this policy, the countryside comprises all land which is outside the settlements defined in Appendix 3 at A .3.6 or which is not designated for future development on an area plan. Development which would adversely affect the countryside will not be permitted unless there is an overriding national need in land use planning terms which outweighs the requirement to protect these areas and for which is no reasonable and acceptable alternative.

The first test the Minister should have applied was Overriding National Need, there is no obvious evidence that this test was applied correctly, and there is no evidence the Minister informed Tynwald on the 18 January 2011 of the matter or the outcome of the test.

If it is correct that Heritage Homes did claim to have an alternative site entrance as of the 18 January 2011 then the Minister at that point surely should have declined to have any further interest in the matter as Environment Policy 1 clearly states "for which there is no reasonable and acceptable alternative" That point is most relevant when Overriding National Need has been established, so even if Overriding National Need had been established( which it has not ) the Minister clearly failed the next hurdle in any event. Reasonable and acceptable alternative was the second test the Minister should have applied. At this point the Minister is unbelievably relying on the existence of an alternative entrance as his reasoning to engage with the developer, which is the exact opposing effect dictated by policy.

320 The point in time the Minister should have withdrawn from any negotiations in respect of this policy was when Heritage Homes claimed they had an alternate entrance. This point in time by the Minister's own admission was prior to his address to Tynwald on the 18 January 2011 seeking a mandate to implement a scheme which he must have known was creating a controversial opposing position in relation to laid down Government Policy and was prepared to use Tynwald to give support to that ambition.

It is worthy of note that there is no precedent that financial reward can be a factor to disregard Planning Policy. Planning gain is a positive factor and is administered by condition, and or, a section 13 of the 1999 Act. The land swap was not administered under the Town and Country Planning Act, which is the administrative process which should have been implemented.

As evidenced above the first test on planning policy the Minister had a duty to apply in the circumstances was "Overriding National Need," A benchmark for such a hurdle is the failed Cooil Road Planning Order. It would seem improbable that Tynwald in the full knowledge of the planning incumbent could have justified a mandate which carried such controversy.

The Ministers failings of informing Tynwald of the full implications of his prospective dealings with the developer are bore out and described in the series of other proposed policy breaches in the Inspectors report which would have to occur before his deal with Heritage Homes could be approved, the further breach of Planning Policies were deemed unacceptable by the Inspector.

The Planning Inspector Mr Langton who recommended refusal of the Appeal concludes at paragraph 133 of his report; - "In all the development fails to accord with environment Policies 35 and 36. For similar reasons it conflicts with General Policy 2 and environment Policy 42, as regards its impact on the character of the locality. Planning Policy Statement 1/01 is directed more at the creation of Conservation Areas than development management, but to the extent that it has direct application the scheme similarly conflicts with it."

There has been no legal challenge by the Minister or the developer that Mr Langton misdirected himself in coming to his recommendations or conclusions.

It must now also be obvious the Minister Mrs Craine came to the correct conclusion on the proposed im act of such develo mentemlsAll ichael this te is further ri:erfored b The Council of Ministers accepting in full Mr Langtons Report.

There can be no doubt that the Minister had a categorical duty to observe and consider Government Policy and ensure that the proper considerations were followed before engaging Tynwald or entering into an agreement with a developer which in turn specifically condoned the reckless abandonment of Government Planning Policy. As a consequence Tynwald may have unwittingly supported a mandate contrary to Government Policy and The Constitution and supported and condoned the principle of a developer to construct a road on a protected Conservation Area, and in particular and more concerning , when there was a reasonable and acceptable alternative.

The Minister contends and stated to Tynwald on the 18 January 2011 that he was in the full knowledge that the developer had secured an alternate site entrance. Without a doubt as we now know this entrance was in a much better location not in a protected area, but actually in an area zoned in the 1992 Local Plan for residential development. So why was the school playground now being offered by the Minister in a contest to the entrance already available.

321 A land exchange and benefits for the school could have still been achieved by planning conditions and concessions from the developer, with the developer themselves providing the entrance located south east of the village on property they had maintained they were in control of.

The Department of Education & Children was in a very strong position to achieve land for playground improvements if needed, due to the scale and scope of the proposed development. The undoubted value of the rural setting of the school and the rural landscape that the school grounds create could have been preserved without any projected financial loss or cost, and also preserved the integrity of Constitutional Government Policy.

The Department had good grounds to object to the development due to the developments proximity to the school, that, the development contravened the Policies of the Conservation Area. That the traffic network had not been completed or a future road layout had not yet been established, that development should not occur until the Western Area Plan had been adopted. On traffic safety grounds as the roundabout at Douglas Road Corner had not been constructed as advised in the JMP report attached to the Strategic Plan. The land was not included in the Spatial Strategy Figures to be developed before 2016. Those issues alone would have brought the developer to the negotiation table, cap in hand.

As for the school needing more playground area for the future, the Department only had to make their case to the inspector, that by condition, that an area of land a surrounding the school remain undeveloped for that purpose, The land then reserved for school playground would in fact become of little future financial value to the developer.

There was no value for money for the Department of Education & Children in the deal the Minister agreed with Heritage Homes, as what was achieved by negotiations agreeing to give away protected school land. A much better deal could have been achieved by condition by entering into a section 13 agreement under the 1999 Town & Country Planning Act.

It should be noted the Stokes v Cambridge judgement is only of limited use even as a guide, it certainly could not be used as a barometer, that is because the judgment was calculated against a compulsory purchase order, not as the deal in question, which is, willing seller to willing buyer. If for example Heritage Homes did not have another entrance to the site there would be good reason to demand half the land or half the land value. There was no obligation whatsoever in the circumstances for the Department of Education & Children to provide a site entrance for a residential development to a private developer in any event.

It is also obvious the school land holds the key to the whole value of the proposed site not on constitutional planning grounds but by a tactical mishap in the legislation. It is a material fact that without the rigor of the Western Area Plan Process the DOI has no evidence base to support this scale of development as proposed by these applications from Heritage Homes. The driving force behind using the school land in these applications is clearly to avoid Government Department objection, which would be possibly fatal to this land being developed in the near future or at all.

The race to implement a second application contrary to the 1999 Act is a contractual timescale and not a planning timescale, somewhere in proceedings influence has been exerted incorrectly that the Ministers deal with Heritage Homes supersedes Government Planning Policy. That contention must be wrong.

In 2007 the Strategic Plan identified kirk Michael as a Service Village, the planning policies in relation to a service village are extensive, as will be the rigor of the whole new assessment now demanded

322 under the Act. The area that Heritage Homes is trying to develop is premature to that rigor that is why Heritage Homes are trying to avoid the full constitutional process to avoid having the land re assessed by a procedural technicality, of the inclusion of Government land.

The fact the developers second application 12/00573/B is again using the school land provides the evidence of the contention that the only proposal that may get this land ever approved has to include the school land to therefor remove the submission of potential fatal objections from Government Departments and therefore avoiding the proper constitutional process.

The sheer force of the rejection by the Inspector of the land belonging to the school as being suitable for an estate entrance now being willingly confronted by the developer again provides the evidence that this area of school land inadvertently holds the possible key to the site ever being developed prior to the prescribed rigor that has to take place to establish issues such as the preferred road network, the preferred development pattern, the inclusion of employment land, the preferred route of a relief road, these are the matters Heritage Homes hope to avoid because they know they cannot comply.

An application under section 10 part (a) of the 1999 Town and Country Planning Act debars the DOI from submitting objections. This is the real reason for incorporating Government Land in these applications, not the playgrounds location to the highways network or because in traffic terms it provides the best location for a road junction, in fact quite the opposite. The school land although in the wrong location offers the only immediate solution for the developer.

It must have become plainly obvious to the Minister that the Department held the unacceptable and unsuitable key to the development of this site after considering that Heritage Homes had bought properties as the Minister claimed and had secured a site entrance paying considerably over the odds for land and properties. To then not to use the entrance it must have been obvious the school land held a critical value and an unacceptable tactical ploy, a situation Tynwald should not have been exposed to, or ever been seen to be involved in.

An assessment from an industry expert would have highlighted this inappropriate tactical financial benefit to the developer, that the use of Government land now, prior to the Area Plan, is possibly the critical element to ever have this land developed. An independent assessment in the circumstances was surely an essential part of the Departments evidence base to assist in proper professional negotiations, which would have been expected considering Tynwalds involvement

The Minister surely asked himself why is the developer engaging with the Department at all when there was a ground swell of local objection to using the school land. When there was an extra cost implication to using the school land, then add on the engineering cost to an entrance with no ability to develop on the first section of its highway, install a traffic lights system, re-configure the TT course at Douglas road Corner probably all at a cost in excess of lm, at that point it must have been obvious the Department held the only key available to the whole development value of the site and therefore he was providing the developer with an opportunity for a massive financial gain, surely this issue was not so obviously missed by the Minister.

The Minister must have also realised that the commercial opportunity he was presenting to the developer and the help he was providing by the accompanied indirect support of Tynwald for the developer's proposals could not have been Tynwalds intention, but that is the way it was perceived. This was a big prize to the developer but of no benefit to his department, it certainly was not reflected in the land swap deal.

323 Paragraph 133 of the inspectors report identifies the type of due diligence the Minister failed to apply, or if he did he failed to report the facts. Paragraph 133 also identifies what Policy matters the Minister should have reported to Tynwald before contracting Government to a scheme condoning such outrageous breaches of Planning Policy.

If you apply simple logic to the situation either Heritage Homes did not achieve an entrance approval from the DOI, or, the unconstitutional key to planning approval lies in the tactical use of Government land. The third reason could not be credible, that assurances have been given to the developer that no matter what the outcome of this next Inspectors report their deal is safe and The Council of Ministers will give approval to Heritage Homes to build on this Conservation Area.

I do not know if an engineer of the Transport Division of DOI gave approval for a site entrance and road junction at the location of the Lhergy Vreck Gate, or how much development the junction could provide for, but I do know according to my correspondence with the Minister at the time, that such an approval was not in the possession of the Minister by the 18 January 2011 as he told Tynwald.

It now appears from my correspondence the Minister agreed a deal with Heritage Homes without him securing confirmation from the necessary Government authority, that there was an approved alternative entrance. So, the deal according to the facts was not reliant on whether or not Heritage Homes had an alternative entrance to develop the site. The motive for the deal then raises very serious concerns. The Minister according to what he told Tynwald had agreed a deal without being in possession of the critical facts to achieve a negotiation position which was in the best interests of his Department.

This deal was certainly not based on damage limitation as of the 18 January 2011 there was no damage to limit as the Minister was not in possession of the critical facts that an alternative entrance had been achieved. The Minister told Tynwald on the 18 January 2011 the deal was done, deals may well have been done by Heritage Homes, but before that assertion had any credibility to influence Tynwald the Minister would have needed certainty before assuring Tynwald on the issue, an approved road junction layout by a traffic engineer from the Highways Division would have been critical.

There appears little evidence of the due diligence that the Minister should have explored in considering what the impact of his Government Departments actions were going to have on a local community which had already vented an overwhelming opposition to the use of the school yard.

There appears no evidence that the Minister provided any material opposing evidence whatsoever that warranted the Department to disregard the former Ministers decision that on the balance of probability that Mrs Craine was wrong in the decision she came to.

The Department of Education did not take any steps whatsoever to protect the safety of the children. It is worthy of note that the Minister gave no consideration to probably the most important critique of his position in the circumstances, the safety of the children attending Kirk Michael Primary School. It is incredible of the Department in the circumstances by the proximity of the proposed development to the school and the dramatic traffic proposals that would affect all those attending the school that a safety report was never commissioned. it is contended that such a report would be fatal to the planning application and therefore not in the developers interests.

The latest application again uses the school land to provide the entrance to the development although the Inspector has completely dispelled the use of this area for the provision of a road entrance, ratified by the Council of Ministers. Again, the motive to use the school land can only be to

324 avoid the DOI objections to the development and try to achieve a planning permission avoiding the rigor of constitutional process.

What is deeply disturbing is the fact that the Council of Ministers have now allowed a second Planning Inquiry to a second application materially the same as the first application including the school land which they refused only some weeks ago, an act contrary to the 1999 Town & Country Planning Act.

For some reason the Council of Ministers are being driven or led to the edge of the abyss carrying our constitutional credibility in its back pocket. In real terms two highly respected Planning Inspectors are now being asked through the Chief Secretary's Office to consider materially the same application, on the pretext that they will come to opposing conclusions, we can be rest assured that this respected body of Inspectors will not.

So that leaves the Council of Ministers having to overturn their decision of the 27 February 2012 and probably go against the recommendations of two Inspectors, to give permission to this application which holds no exceptional benefit to the school or the Department, but at a cost of considerable detriment to the local community and their living environment.

And furthermore, wrecks any credibility that there exists that this semi democratic government system is still capable of abiding by its own constitution. Furthermore it wrecks the consistency of Government Policy as being a reliable ingredient of the Islands administrative process, which in turn will create a nervous platform for any potential inward investment investor.

It is now possibly that this unprecedented decision by the Council of Ministers to allow a second Inquiry is influenced by the need to try to add credibility to the actions of the then Minister in the deal he signed with the developer. That if the Council of ministers are persuaded to approve this application that the Minister must have made a good deal!

When Tynwald gave the Minister a mandate to negotiate with Heritage Homes it could not have been their intention that the mandate they sanctioned was to be used in the manner it has degenerated into.

The Tynwald mandate has degenerated into an unconstitutional instrument to possibly orchestrate by the Minister either, revenge on a political opponent or for the unacceptable help and support to a developer at an irrevocable cost to a whole community.

Tynwald should not or cannot be seen to sanction mandates which breach the constitutional framework by breaching policies laid down to create good governance for the particular benefit of a members particular motive.

I did not want to have to bring some of these matters into the public domain and at one point it was considered justice was professionally administered by the Planning Inspector Mr Langton and the then proper decision by the Council of Ministers accepting the school playground was not suitable for development purposes.

The more recent unconstitutional decision by the Council of Ministers to support a second application which includes the development of the school land and the Ministers "deal," now makes it my duty to come forward and provide evidence of a particular nature.

325 The two members of Tynwald at the time central to issues surrounding Kirk Michael have been Mr David Cannan and Mr Eddie Teare MHK both of whom I consider as friends and have offered my help of my experience on the planning issues in this matter and have corresponded and been in contact with both of them on this issue. I also raised issues at the time with Mrs Craine MHK, Mr Caine and Mr Richard Collister and of late Mr Karran MHK and Mr Dobson.

It is now most unfortunate on a personal level and of personal disappointment that a possible conflict between Mr Teare MHK and Mr David Cannan appears to be one of the factors that has possibly contributed to some reckless actions which led to involving Tynwald itself. Our Constitution recognises that Tynwald has to be an institution of total integrity and is not a stage for a member to exert influence for personal gain no matter what the issue, let alone an issue which in turn affects a whole local community. This whole planning caravan surrounding development at Kirk Michael which has brought such unnecessary constitutional controversy now needs to stop before the integrity of our governing structure is further eroded.

I request to give my evidence orally to the Committee and at which time I will provide documents of correspondence which are relevant to this Inquiry.

If I could also respectfully request if at all possible that lgive my evidence during the week commencing 16 July 2012 as the Planning Inquiry on this matter commences the following week which I am involved in, and I am on vacation the most of August.

Yours sincer

Henry K nnaugh

326 Legislative Buildings Oikyn Slattyssagh Douglas Doolish Isle of Man Ellan Vannin IM1 3PW IM1 3PW British Isles Ny Ellanyn Goaldagh

Telephone: 01624 686303 Chellvane: 01624 686303 Fax: 01624 685504 Deputy Clerk of Tynwald Facs: 01624 685504 Lhiass Cleragh Tinvaal Jonathan King

9th September 2012

Mr Henry Kennaugh Kiltrellig House Hillberry Green Douglas Isle of Man IM2 6DE

Kirk Michael School Land Exchange Agreement

Thank you once again for your letter dated 5th July 2012 to the above Committee. The Committee decided in July to ask you to submit the documents you mention for it to consider. I made this request in an e-mail which I sent on 24th July 2012 to the address quoted in your letter, asking for a response by 31st August 2012. The text of my e-mail is reproduced overleaf for your reference. To date I have received no response to it.

If you would like to take up the opportunity to submit any further written evidence would you please do so by Friday 28th September 2012. No further extensions will be given beyond that date.

Many thanks.

Yours sincerely

Jonathan King Clerk of the Select Committee on the Kirk Michael School Land Exchange Agreement

E-mail: [email protected] 327 Post Lectraanagh: [email protected] From: Jonathan King Sent: 24 July 2012 3:11 PM To: Henry Kennaugh Subject: Kirk Michael School Land Exchange Agreement

Dear Mr Kennaugh

The Select Committee on the Kirk Michael School Land Exchange Agreement has today considered your letter of 5th July 2012. In your penultimate paragraph you mention that you have "documents of correspondence which are relevant to this Inquiry". The Committee would be grateful if you would please now provide these documents for its consideration. The documents should be sent to me in hard copy or by e-mail by Friday 31st August 2012.

The Committee has noted your request to give oral evidence. When the Committee has considered all your written evidence it will decide whether, and if so when, to invite you to give oral evidence.

Many thanks

Jonathan

Jonathan King Deputy Clerk of Tynwald and Clerk of the Legislative Council Legislative Buildings, Douglas, Isle of Man IM1 3PW 01624 686303

328 Henry Kennaugh Kiltrellig House Hillberry Green Douglas Isle of Man IM2 6DE Tel; 611648 Email; [email protected]

25 September 2012

Deputy Clerk of Tynwald RECEIVED Legislative buildings Douglas - 1 OCT 2012 Isle of Man Im1 3PW OFFICE uF THE CLERK OF TYNWALD

Dear Mr King

Re - The Kirk Michael "land swap deal"

Thank you for your Committees letter 10 July 2012, your email of 24 July 2012 and your subsequent letter of 9 September 2012. None of your correspondence provided the opportunity for me to orally give my evidence as I had offered.

Your letter of 9 September 2012 states that there will be no further extension of time given beyond 28 September 2012, there is obviously some misunderstanding on your part as I have not requested an extension of time of any kind from the Committee.

Obviously the Committee had good reason to constructively avoid my offer to provide oral evidence. If the Select Committee which looked into the affairs of Braddan Parish Commissioners is to provide a bench mark of the islands self- regulation standards then the lack of dexterity and appetite shown by that committee, to example conduct, brings little surprise that evidence surrounding the then Ministers conduct in the Kirk Michael land swap "deal" now also needs to be buried to avoid accountable conduct.

Correspondence should be already in the committees possession between Heritage Homes traffic consultant Mr Hall and an officer of the Highways Division that does of course provide the clear evidence that the entrance in question, as of the 18 January 2011 was not a "done deal." As the then Minister told Tynwald, then I can understand that the Committee treat my evidence as read and do not need further evidence that I had offered to provide in my oral sitting.

329 Again, it is hoped that another Parliamentary whitewash will not be so eagerly awaited by the member who hopes to rely on the usual protection expected and duly delivered by colleagues able to avoid any independent scrutiny process and disregard any incriminating evidence, possibly not this time!

Yours sincerely

Henry Kennaugh

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• Questiops about `land-swap' deal

REGARDING recent articles about deal. Conveying the open space to open space, which he had to provide the proposed development around the school means that the general anyway, for an access across the their school, there are some public could only use the amenities school playing field. matters tro ubling many folks in Kirk with the consent of the Education The true value to the developer of Michael. Department and only when they are this access would be enough to build ' In the interests of transpar- not being used by the school. a new school. ency and openness in government The Kirk Michael Strategic Plan Opening the door to a multi-mil- the following questions must be 1994 protects the school by requir- lion-pound profit for the devel- answered: ing any development of the area to oper in exchange for a couple of 1, Who initiated the idea of a allow for future expansion of the goal-posts Is zt very poor deal for 'land swap' In the first place, the school and for the possibility of a taxpayers, minis ter or the developer? by-pass road. This deal is not a 'land-swap% it is 2. Was the planning department - 4. As the minister had clearly a blatant land grab. consulted regarding the proposal forgotten the details of the Isle of The Kirk Michael Strategic Plan prior to the deal being negotiated? Man Strategic Plan 2007, had he also 1994; The isle of Man Strategic Plan 3.1f consulted, did the depart- forgotten the Kirk Michael Conser- 2007, Appendix 6; and the Character ment advise the minister that a vation Area Character Appraisal? Appraisal relating to Kirk Michael 'land-swap' deal was not necessary, (He had voted.in favour of both in Conservation Area should be com- referring him to the Isle of Man Tynwald). pulsory reading for members of the Strategic Plan 2007? The latter document stress the Council of Ministers called upon to Appendix 6 to this document importance of the vista to the hills consider the report of the independ- demands that a development, as from Douglas Road corner and the ent inspector into the planning proposed, would require the provi- need to retain the character of the application. sion of recreation and amenity open village. Both would be destroyed by Mr Teare will, of course, have spaces (areas of similar size to those the proposed development. declared an interest and will take offered as a land-swap') for the use 5. Did the minister really believe no part. of everybody, Including the school. he was getting the 'best deal for the Such land and amenities would taxpayers' (his words) by signing up J. KERMODE eventually be adopted by the local to an unnecessary deal? A deal that Craig Farm, Douglas Road, authority, with no need for a land called for the developer to exchange Kirk Michael

332 ....wClare McDonough From: fmcardieemanx.net Sent: 26 March 2012 11:05 To: Jonathan King Subject: Fwd: Re: Michael School Attachments: Message 99.eml

Dear Mr King

I mislaid the newspaper cutting with your e-mail address and have only just found it. I forward to you my original e-mail to Mr Teare re. the Kirk Mischale school grounds 'swop', and his reply. Yours sincerelu Fiona McArdle (Douglas Road, Kirk Michael)

3p3 334 Clare McDonough

From: Teare, Eddie [[email protected]] Sent: 24 August 2011 08:43 To: [email protected] Subject: Re: Michael School

Dear Mrs McArdle, The difficulty was that DD had secured access via the Lhergy Vreck Road and to some extent we were engaged in damage limitation. Should there be additional development then there would be an increased return to the Department. You may not be aware that they also have access through Slieu Curn. Yours sincerely, Eddie Teare

Sent from my iPad

On Aug 23, 2011, at 9:53 PM, "fmcardleOmanx.net" wrote:

> > Dear Mr Teare > > As a Kirk Michael resident I am writing to you following the recent report in the Examiner about the trade in land with Dandara. > > You may occasionally wonder, when Dandara already owns properties > which will give acceptable access to their proposed housing development off the Douglas Road, why they are being so 'generous' in their offer of a land exchange with you, as current Minister for Education and Children until the General Election. Philanthropy? Not a chance! They want to be in a better position to further develop more land with several hundred houses in the future and the Douglas Road Corner access will give them a much better possibility to do that when times are not so hard. They think long term and they know that it sounds a good 'bargain' at the moment. Does the school need expansion? Not at present and it's unlikely to in the near future UNLESS Dandara build lots more housing! Forget the present development land - it's a foregone conclusion and, as such, a red herring - you are likely be held accountable for the future loss of a village community - just as the Dandara developments in Peel ha v! > 1 > e resulted in two largely separate 'towns' there. But, of course, you will have moved on too by then and Kirk Michael village is not in Ayre. > > Fiona McArdle > >

Isle of Man. Giving you freedom to flourish

WARNING: This email message and any files transmitted with it are confidential and may be subject to legal privilege. You must not copy or deliver it to any other person or use the contents in any unauthorised manner without the express permission of the sender. If you are not the intended addressee of this e-mail, please delete it and notify the sender as soon as possible.

No employee or agent is authorised to conclude any binding agreement on behalf of any of the Departments or Statutory Boards of the Isle of Man Government with any party by e-mail without express written confirmation by a Manager of the relevant Department or Statutory Board. 3?5 RAAUE: S'preevaadjagh yn chaghteraght post-1 shoh chammah's coadanyn erbee currit marish as to shoh coadit ec y leigh. Cha nhegin diu coipal ny cur eh da peiagh erbee elley ny ymmydey yn chooid t'ayn er aght erbee dyn kied leayr veih'n choyrtagh. Mannagh nee shiu yn enmyssagh kiarit jeh'n phost-1 shoh, doll-shiu magh eh, my sailliu, as cur-shiu fys da'n choyrtagh cha Leah as oddys shiu.

Cha net kied currit da failleydagh ny jantagh erbee conaant y yannoo rish peiagh ny possan erbee lesh post-1 er son Rheynn ny Boayrd Slattyssagh erbee jeh Reiltys Ellan Vannin dyn co-niartaghey scruit leayr veih Reireyder y Rheynn ny Boayrd Slattyssagh t'eh bentyn rish.

36 '713-*cp..( Or- e)ppv LisE S1 0

Do McWilliams,

9. Balthane sq, Calt"P"1"IJD Ballasalla,

Isle of man,

1M9 2HB,

17.3.2012.

To the Clark of the select committee for the Kirk Michael land.

Dear Sir,

Although I am not a resident of Kirk Michael, as you will see by my address I do live in a village, and

therefore have an interest in planning maters which affect our daily living.

Planning

As a disabled person I feel that planning is a serious issue. It seems that planners pay lip

service to those people living in and around our rural areas but will give in to avaricious developers

who have no regard for the elderly, the disabled, or children, or mothers with small

children in prams or who are just starting to walk. Developers have one thing in mind and that is how

much money they can make at the behest of other people including Government and the public. The

people who live in the villages and who pay rates to the local authority in those areas should have

more control and more input as to what in placed in these areas, not just be walked on by

Government, planners and as I have said avaricious developers. There should be consultation with organizations that help to look after and who are involved with such as disabled people.

It is a known fact that 10 Percent of the population is disabled and approximately 25 Percent of the population are elderly. In Ballasalla children do not have a park or recreation area they have to play on the roads or on the streets.

337 Traffic

A recent traffic count of traffic movements through Ballasalla has shown that there are some 80,000

traffic movements a week that includes the weekend through the night. At a fatal road accident hearing

last year a coroner said that our roads were just glorified country roads which I would have to agree

with, the traffic is getting bigger and faster on roads that were not made for such volumes or speeds.

The director of highways should think of the problems that the villages and rural areas have with traffic

when trying to cross roads with mobility aids and in some cases no pedestrian crossings.

Once again there should be consultation with organization such as the Manx Blind Welfare, R.N.I.B, Age Concern and other Disability groups.

General comments

We are constantly being told that it is our difference change it we do not want every blade of grass or

every piece of land covered in concrete we still want to be able to tell our grand children what the Isle of

Man was like. Our infrastructure is not built for the amount of development. The estate agents are full

of houses that are for sale let's get them sorted out first before more are built. Let us have a park for our

children to play in and for the elderly to have somewhere to sit and enjoy what little life they have left.

Again let us make sure that the schools are built in areas where they are away from the main traffic.

Please keep development away from the rural areas and put them on the town borders. The young

people wish to live closer to the centers so that they don't have to pay high taxi fares and where they can have a social life without costing a fortune. I do hope these comments have been helpful.

Yrs faithfully

Do McWilliams

338 Clare McDonou

From: [email protected] Sent: 22 March 2012 23:21 To: Jonathan King Subject: Kirk-Michael Land Swap Attachments: Appeal to residents to make views known - Education - iomtoday.mht; Govt rejects Michael School land swap deal - Isle of Man News - iomtoday.mht; Land swap views sought - Isle of Man News - iomtoday.mht; Michael School land swap done - Education - iomtoday.mht; School land swap deal off - Isle of Man News - iomtoday.mht

Reayrt-Ny-Chrink Rhencullen Kirk-Michael IM6 2H13

Dear Sirs, I enclosed several news paper articles relating to the above land swap.

It's unfair that the land swap was done when the residents did not have a sitting MHK . David Cannan having retired just as this deal was completed.

The reason Minister Teare gave for justifying the deal was that the developer had a alternative access to the development , yet at the planning enquiry in December 2011,the developer's consultant admitted that the alternative access did not fulfill the requirements required for a access road to a development.

Yours scincerly Mrs Avril Muller

3" 340 Mrs Irene Paddock Briarfield Douglas Road Kirk Michael 1M6 1AR RECOVED APR 2012 104 og, Uri .••• eiErg. tc.t Mr Jonathon King Clerk of the Committee Legislative Buildings Douglas IM1 3PW

To The Committee investigating the land deal involving Kirk Michael School

Dear Mr King

How sad it makes me to see this lovely village losing out to the greed of landowners and developers where "value for money" is considered before the value for life.

I do not think that this Mr Teare, who claims responsibility for the deal was the right man to deal with it. He seems to have a grudge against Kirk Michael and our last MHK Mr David Cannan.

Everyone who lives on Douglas road knows that there is no "alternative entrance" my neighbour Mrs Kennaugh at TY Hesq has refused to sell her garden to the developers and this means they cannot use the gardens of the houses they own for an entrance to their development. How nice to see someone of principal who is not driven by greed and just wants, like the rest of us, to live in peace. A fact that some of the commissioners, land owner and developers should look at, and learn to temper their greed with some humility and respect for those of us who just want to enjoy the beauty and peace of Kirk Michael.

I am delighted that the planned development was refused, although I understand the popular opinion is that "they" will be back again. If this is the case then perhaps one of the people involved might like to call on me, ask my opinion and try to explain to me the reason for it and not just treat me as someone whose life and opinions just do not matter.

Pc-kck (to Ck, htf2

341 342

RECEIVED Slieau Dhoo Main Road 1 2 MAR 2012 Kirk Michael IM6 1AD OFFICE OF THE [email protected] [ CLERK OF TYNWALD 11 March 2012

Mr Jonathan King Clerk of the Select Committee re Michael School Land Exchange Agreement Legislative Buildings Douglas IM1 3PW

Dear Mr King

Michael School Land Exchange — Department of Education and Heritage Homes

We write in response to the media release inviting comments and opinions from the public on the above matter.

We have lived in Michael for 31 years and our three children attended Michael School and now two of our children have settled in the village with their families, we have grandchildren at the school. As parents of children at the school we supported the school's activities, trips and outings particularly with Mr Roberts running the school chess club for a number of years and being closely involved with the school's sporting activities. As chairman of the Isle of Man Junior Football league and manager/coach of Ayre United's juniors for 25 years, Mr Roberts also has keen interest and knowledge of the sporting achievements of children and teenagers.

We enclose the following correspondence between us and the Minister of Education, notices or press cuttings in date order.

1. Copy of letter from the Director of Education to Mr D Cannan MHK dated 16 February 2006. 2. Copy of press cutting dated 28 April 2006. 3. Copy of letter to the Minister of Education and Children dated 3 January 2011, 4. Reply from the Minister of Education and Children dated 6 January 20011. 3. Invitation to Kirk Michael Residents from Mr David Cannan MHK to a public meeting. 4. Copy of a letter to the Minister of Education and Children dated 23 August 2011. 5. Copy e-mail reply from the Minister to above letter. 6. Copy of press cutting on Friday 26 August 2011 7. Copy of letter to Minister Karran dated 31 October 2011. 8. Acknowledgement on behalf of the Minister dated 8 November 2011. 9. Picture of the school field from the school's web site in November 2011. 9. Press cutting of letter from Mr J Kermode, Kirk Michael to Manx Independent dated 17 February 2012.

Our views have consistently been that the benefit to the school of the land swap is over stated. Any benefit to the Department is not necessarily a benefit to the school. The existing school field is large enough for primary school use and the children naturally spill out on to it

343 to play on good days from the hard play area. The existing field is superbly well drained whilst the condition of the proposed field for school use is unknown. The children are in full view of the residents on the existing field when they use it out of school hours so behaviour and safety can be casually observed and it becomes part of village life. The new field will be well out of sight. tucked behind the school buildings.

Similarly in planning terms the additional open space gained by the proposed swap is at the expense of removing the existing open space from the residents of Main Road and Douglas Road to an area less accessible to them. It seems that existing open space has been transferred from existing residents to new residents. It is not just the use of open space but the view of it which provides an amenity.

The Strategic Plan's policies regarding open space provide for Department of Education space to be counted as open space in the calculation for the provision of new space. (Strategic Plan Appendix 6 -A.6.2). We consider that this policy encourages developers to prey on Department of Education sites so that the tax payer is contributing to the cost of development and the developers profits are maximized and at the same time school grounds are landlocked. In addition there is no guarantee that the Department will continue to make its grounds open for use outside school hours. On 29 July 2010 Minister Teare threatened to close school grounds because of vandalism at Braddan Primary school.

Alternative options for providing for the future extension of the school, if required, do not appear to have been considered.

The Department has single mindedly pushed for this solution for some time. Quotes have been made of the staff of the school (who mostly do not live in the village) supporting the deal but it is unfair to expect the Department's employees to do anything other than support the proposals of its employer especially in times of public expenditure cuts.

In 2007 Minister Craine did acknowledge the village residents' feelings about the proposed swap and after discussion and a poll declined to support the exchange as it would be detrimental to the village as a whole.

Mr David Cannan MHK for Michael tried to obtain Tynwald's opposition to the deal in January 2011, but with little debate Minister Teare secured Tynwald's authority to proceed with negotiations and conclude the deal without further Tynwald approval. See Tynwald Hansard of 18 January 2011. He informed members that the developer had acquired alternative access but the statement by Mr B Hall at the planning inquiry on 19/20 December 2011 that there was no other access, conflicts with this.

We acknowledge that the proceedings of the planning inquiry are not part of your remit but the question of access was asked by Mrs Roberts on behalf of the Kirk Michael objectors and we do not agree that the question, which was asked twice, was limited in nature. This wasn't a "cross examination" in the nature of a court as suggested by Heritage Homes' press release issued in early February 2012 (but dated Friday 3 January 2012), a copy of which has been circulated to MHKs.

In November 2011 Mr Alf Cannan raised the question as to whether the Department correctly followed the legal procedures set out in the Education Act 2001, Part 2 paragraph 3 (2) (c) regarding the procedure for altering the character of a school and for enlarging school premises. We would appreciate your looking into this further.

344 Actual details of the deal have not been made public so the tax payers and village residents remain ignorant of it. It should be ascertained as to whether the Department/Government stands to benefit from any further development beyond the site which was the subject of a recent planning application because, if that is the case, we question whether Council of Ministers can be sufficiently independent and objective enough to make the planning decision. (This application went directly to an appeal heard by an independent planning inspector because the Department of Infrastructure is involved).

The conflict of interest continues into the future and extends further by the requirement of the developer to revert to the Department of Education and Children if further development were to extend beyond 100 houses in number. We ask exactly why the Department felt it necessary to be involved in a development decision of this nature when planning approval would be required. It is not as though any further development would be near to the school. We question whether the Department of Education and Children has the powers, sufficient expertise and experience in planning matters to take on this responsibility.

The Planning Inspector's report issued on 27 February 2012 (Ref 11/01250/B —DF11/0022) recommended against the proposed scheme and we urge you to read his comments about the impact on the Conservation Area as all of the school and its land are within that area. We include one or two quotes from his report:-

"the existing junction retains an attractive, informal semi-rural `village corner' character.

"Douglas Road Corner as it stands should be treated as a special feature of the Conservation Area".

"However the Conservation Area Appraisal (CACA) at paragraph 11.4, highlights the importance of views out, and that over the school field is one of those identified. This view is more than simply of the Michael Hills, but has depth from Douglas Road Corner, across the school field, on over the agricultural land with its Manx hedges and onward to the hills. The foreground and intermediate land provide the setting in which the hills are seen, visually linked to the village. Not only would the works within the CA erode the foreground and narrow the more distant view, but even that narrowed field of view would then be largely interrupted by houses further into the development. The hills would still be visible but the quality of the view lost."

"Solely as a residential access the proposed length of road is over engineered and poorly located at Douglas Road Corner, where its presence, together with the house proposed to its south, would substantially degrade the location's informal character and important visual linkage with the open countryside and hills. In this way and in a more localised way behind the Old Fire Station the losses of view would do considerable harm to key qualities of the Kirk Michael Conservation Area."

Please note that we will be off the Island on holiday until March 31 but we hope to have intermittent e-mail contact should you require to follow up on any of the above.

Yours sincerely

Andrew & Sally Roberts

345 DEPARTMENT OF EDUCATION Rheynn Ynsee

From the office of the DIRECTOR OF EDUCATION Stiureycier Ynsao St. George's Court Upper Church Street, Douglas. Isle of Man John Cain NI Ed. Isle of Man. IM1 2SG Government Direct Dial No: (01624) G85801 14.• I 1: fl n vnnnin Fax: (01824) 685845 Webslte: www.gov.im Email: [email protected] Our Ref JC/IK

16 February 2006

Mr D Canaan MEEK House of Keys Legislative Buildings Douglas Isle of Man IMI 3PW

Dear Mr Carman

Re: Michael Primary School

I refer to your letter dated 6 February 2006, and can respond as follows.

I can confirm that the Department has been in dialogue with the developer, Heritage Homes (acting on behalf of the land owner), regarding the possible exchange of part of our land to the south of the school, containing the existing playing field. The land is sought by the developer, I believe, to facilitate the provision of an access roundabout at the corner, and roadway into the residentially zoned land.

Following an approach from the developer, the Department considered it appropriate to explore the possibility of an exchange occurring, to enable the school to be expanded beyond its existing capacity, as and when future housing development in Kirk Michael dictates, and also seek to improve the existing playing field provision. As you will be aware the school is particularly constrained to the north side and the eastern rear boundary, based on our current ownership. Major future building extension could only occur to the south, eating into the existing playing field/play areas. The scope for future expansion is therefore limited. The existing playing field is of an irregular shape, and is located adjacent to the main road.

In our ongoing discussions we are seeking to secure (in exchange for the land sought by the developer to the south), an area of land to the east/rear, to the entire width of what would be our retained ownership, to enable the provision of a junior football pitch, together with land linking round the north side. This overall land provision would enable future expansion and would permit the enlargement of the existing staff car parking facilities at the side of the school. Under the present discussions, we would receive circa 1.8 acres in return for the circa 0.85 acres we would lose to the south — over double the land area. Under their proposal, the land owner/developer would be responsible for the levelling of the land to the rear, any ground remediation necessary, and the creation of the new pitch area.

I do hope you now understand that the dialogue which we have been having is in the best interest of the future development of the school. Once the discussions have reached a

346 www.lomtoday.co.lm i 'Prb • Housing plan will vandalise' village lichael MHK )eaks out .ainst plan swap field ,longing school

;HAEL MIRK David Cannan accused Education Minister rid Anderson of attempting vandalise' a village conserva- n area, t came after Mr Anderson affirmed in Tynwald his department was consulting over a request from Heritage Homes to el.f•vap Michael School playing fieldi for a larger piece of adjoining !land. He* fold Mr Cannan consultation on the proposal had started, with the views of the head teactier and school governors ahveidy having been sought. 'It 'would be in our interest to secure land worth developing that .gives long-term viability of the school and progress for the futn•re,' Mr Anderson told TYnwteld on Ittesclay. He added it was a4o intended to comsult with Michael Commlictsioners and Mr Cannan. Howevetr, Mr Carman said the land swap — which would allow Heritage ' Homes to create a roundabout and access road for ADM its planned state for mare than 100 homes behind the Mitre Hotel — wasn't %vet, ited, NEW PLAN: The proposed Kirk Michael conservation area. The school field Is circled Mr Carman rfoaled that the school• end'us playing field were plans for the conservation area within the proposed conserva- of Kirk Michael which includes DAVID DAMAN 'Is It tion area of the village, although the school and the school play- policy for the Department of Local Government and the ing field?' Education to assist developers Environment Minister John He added: 'Why are you want- when In fact, on the other hand, Rimington said the fact it was a ing to vandalise the conserve- the Department of Local conservation area wouldn't nec- don area? Government and the essarily preclude development. Heritage Homes has proposed Environment has produced Mr Cannan said: 'The school to give 1.85 acres of land to the plans for the conservation was recently extended to meet school in exchange for 0.85 acres area of Kirk Michael which the requirements for the future. from the department for an This is only assisting a develop- access road and roundabout.' includes the school and the er to develop houses on land to Mr Anderson said: 'If the DLGE school playing field?' the rear of the school. has a planning provision on the 'Is it policy for the Department land it will come out at the plan- He added that his concern was of Education to assist develop- ning stage.' the long-term provision for the ers when in fact, on the other He also refuted suggestions school. However, he added the hand, the Department of Local that if there was no land swap, fact 94 residents opposed the Government and the there would be no development llns at a white. meettr, nr11.1 I Tel TITY• oh% • 1.••• ••• • • •. • 43-0.116" ha4C

347 Slieau Dhoo Main Road Kirk Michael IM6 lAD

3 January 2011

Minister of Education and Children Hamilton House Douglas

Dear Minister

Kirk Michael School Playing Field I am writing to you as a result of the reports in the local press that you appear to be considering a downgrade of the Michael School facilities by exchanging the existing school field on the approach to the village for a larger but more remote field, which will be inevitably cut off from the main school precinct. I question the requirement for yet another housing estate in Kirk Michael, when so many houses remain unsold or are up for sale in Broogh Wyllin, but my main reason for writing to you is concern about the considerable reduction in facilities for the school.

In my opinion the exchange of the existing field for a larger but less well situated sports field will not be a beneficial deal for the school children of Kirk Michael. It will lead to less overall usage as the children will not spontaneously spill out from the existing hard play area on to the grass. The removal of the access to the green space from the existing playground will mean the new field will be used less and when used will require greater supervision of the children as there will be two distinct play areas.

The removal of playing field space from the main area of the school will decrease the school's resources and disadvantage Michael children when compared with the other schools in the north of the Island such as Andreas, Sulby and the new Ramsey complex, which all have ready access to green field areas.

Not all Michael children have easy access to green play areas as The Meadows, Cleiy Rhennie, Slieau Curn and Kerrocruin estates do not have their own green spaces.

As things currently stand, under your Department's splendid policy of giving access to school facilities out of hours, the field is open to all and gets considerable use by various groups of children especially through the summer months. If the field was relocated to a place of reduced level of general visibility this could increase the likelihood of occasional vandalism and its less open aspect may make it less safe for the children.

1 do hope you will take these views into account. Yours sincerely

Andrew Roberts cc. David Cannan MHK, Michael Commissioners

348 Department of Education and Children

Rheynn Ynsee as Paitchyn Acting Director of Education Isle of Man and Children Government From the Minister Stuart Dobson Shirveishagh Renlys Elton Vonnin St. George's Court Upper Church Street, Douglas Isle of Man. IM1 2SG Our Ref ET/JK Hon W E Teare, MHK Direct Dial No: (01624) 685801 6 January 2011 Fax: (01624) 685845 Website: www.gov.im/education Email: [email protected] Mr A Roberts Slieau Dhoo Main Road Kirk Michael IM6 lAD

Dear Andy

Re: Michael School Playing Field

I write in response to your letter dated 3 January 2011 expressing your views regarding the proposed exchange planned between the developer of the land to the rear of the school and the Department of Education and Children. I can appreciate that there are very strong views in some quarters regarding this proposal but I was concerned that if development proceeded without any involvement on our part then we would lose the opportunity to obtain additional land for the benefit of the school and the community. Additionally, the existing boundary wall is quite close to the rear of the school and a land exchange would leave the school more centrally located within its own boundaries. With the potential proximity of the school to the development, there was also the feeling that some of the new neighbours might object to normal activities outside school hours and this would reduce the ability to use the facilities.

A bigger facility would, I feel, be of more benefit to the community and enable the young people of the area to play in a healthy and safe environment. There will be other areas which will be subject to detailed planning but I feel that some of the information in the public domain at present is misleading and this has not helped the overall debate.

Yours sincerely

A- 0 .Eddie Teare ACIB MHK Minister for Education and Children

349 David Carman MHK

Invites the residents of Kirk Michael To a Public Meeting Monday 17th January 2011 7:30 pm at St Michael's Hall

For the purpose of expressing their views on the proposal by the Department of Education to transfer ownership of Michael School playing field at Douglas Road corner to Dandara Limited in exchange for land at the rear of the Mitre Hotel.

Mr S Hamer Chairman, Michael Commissioners Has been invited to address the meeting

Mr I McLaughlin Of Dandara Limited Has been invited to make available to the meeting the plans showing the proposed development by Dandara of the School playing field.

Background information : On Wednesday 24th November Minister Teare, Department of Education and Children held a secret meeting with Michael Commissioners (Messrs S. Hamer (Chairman) M. Neary (Vice-Chairman), J. Barron, B.Corlett, P.Hayes, R. Kennaugh adn Mrs H. Quinn) to obtain their support for his proposal to transfer ownership of the school playing field to Dandara Limited.

On Saturday 4th December Mr J McLaughlin of Dandara. Limited held a secret meeting with Michael Commissioners to show the Dandara plans for the development of the school playing field at Douglas Road corner and obtain the Commissioners support.

It is alleged that the Department of Education informed in strict confidence the Head teacher of Michael School of the proposal to transfer ownership of the playing field to Dandara, but the Governors of Michael Primary School were not informed, but only learnt of the proposal from the reports in the newspapers and on the radio.

In return for obtaining ownership of the school playing field Dandara will provide the Department of Education with land (free of charge) at the rear of the Mitre Hotel.

P.T.O.

350 Slieau Dhoo Main Road Kirk Michael 1M6 lAD Tel: 878347

Robertshouse@manx .net

23 August 2011

Minister of Education and Children Balnahowe The Lhen Andreas

Dear Minister

Kirk Michael School Playing Field

I enclose a copy of my letter sent to you in early January this year voicing my objections to your proposed land swap involving Kirk Michael School playing field. I heard a statement from you this evening on Manx radio in which you mentioned that Mr Cannan had invited further comments from residents two weeks ago and you had not received a single letter. Unfortunately, Mr Cannan's communication escaped my notice and I'm not sure now exactly how the communication to which you referred was distributed. Neither my son, daughter nor a neighbour of theirs (all village residents) has seen or heard of such a letter. My views have not changed and it should not be necessary for me to keep writing in for my objections to be counted.

The situation regarding the number of houses for sale on Dandara's Broogh Wyllin remains the same. You also referred to your regret at not being able to establish a doctor's surgery in the village. Unless a completely new practice is established, there will never be much support for a satellite of the Ramsey Group Practice because the majority of residents are registered with the Peel Medical centre who have expressed no interest in a Michael surgery.

Yours sincerely

Andrew D Roberts cc. David Cannan, Michael Commissioners

351 Andrew and Sall Roberts AW

From: Eddie Teare [email protected] Sent: 25 August 2011 09:23 To: [email protected] Subject: Kirk Michael School

Dear Mr Roberts, I have received your letter dated 23rdt August and Have noted your remarks. Your view was one of a series which differed ranging from those who opposed the land swop to those strongly in favour. Many people seem to have overlooked that the developer has access to the site by the ihergy Vrerk Road and if we refused they would still have been able to go ahead. They also have emergency access into Slieu Curn. The new deal gives the taxpayer a stake in any additional development whilst securing additional land and facilities for the school at the outset. Turning to the surgery, many, many people in KM told me that they wanted to stay with their existing GP and would not move. Previous experience indicates that less than 2% would move. I did try to come up with alternatives, but they were all deemed to be unacceptable. Yours sincerely, Eddie Teare

352 ww•eleartedayealm

Manx independent Friday, August 26,2011 13

eat! Sue V.‘oceiev on . WEST NEWS . 815705 or email Sue':+@R'afx.net Gardeners' Association Michael School show soon PEEL Gardeners' Association's 69th annual show will take place on Thurs- day, Sept 8, at the Corrin Hall, Peel. Doors open at 2pm, with presenta- land swap done tion of awards at 7pm, followed by sale of produce and confectionery. A special feature of this year's show SY JACKIE TURLEY will be a class for the largest marrow school was zoned for residential use. grown in the island. This is in addition Through buying properties on Doug- to all the usual classes for vegetables, THE controversial land ex- Minister Teare defends las Road, the developer had already se- flowers, fruit, floral art, pot plants, change at Michael School has cured an alternative means of access to honey, photography and handicrafts. the zoned land in any case. There is an award for the best gone ahead. He said lengthy negotiations had The government has enteredinto controversial scheme exhibit of either flowers or vegetables ensured the school benefited from re- grown by a member of the Peel Allot- an agreement with neighbouring linquishing some land to allow the de- ments Society. landowner Pinecrest Investments rolls dittate, is: of definite advantage to In return, the department will take veloper better access. and developer Heritage Homes. the school.' over 2.01 acres of land to the north and When the deal was originally sug- Children Education and Children Minister ' At a meeting in January, called by the east (rear) of the school site from the gested, a poltof villagers in 2007 found The children's section is free to en- Eddie Teare MEM says the deal will outgoing Michael MHK David Cannan landowner. the majority was opposed to the idea. ter and there are classes for drawing, benefit pupils. who has throughout opposed the land The developer will create a new Since then, Heritage Homes had handwriting, photography, compu- He said: 'If we hadn't acted, there transfer, the majority — 56 people — was sports pitch, hard play area and bound= secured alternative access. to the site ter handwork, salt dough craft and was the strong potential of develop- against the plan. ary works, including ball-stop fencing, which was originally zoned for devel- models. ment up to our existing rear boundary. Supporting it were 37 people and 15 boundary fencing, gates, walls, ramps, opment in 1992. Schedules and entry forms are 'We needed to protect the future of abstained from the vote. paths and landscaping, at no cost to Retired Michael MHK Mr Cannan, available around the town and from the school. The agreement is subject to planning the taxpayer. a vociferous opponent of the deal, ac- Margaret Kennaugh (phone 803269) or 'Negotiating with the landowner/ approval being obtained for residen- Access cused Mr Teare of being 'determined Bert Quayle (phone 843157):- developer to buy additional land at tial development of land behind the to destroy the iconic entrance to Kirk The association is offering prizes in.. the rear, if/when they secure residen- school. Land will also be kept clear to al- Michael village, the Douglas Road the Peel gardens and hanging baskets tial planning approval could have cost Under the agreement, Heritage low for the future enlargement of the corner and adjacent playing • fled, competition. There are three eatego- between 1500,000 and £1 million and Homes will progress a planning appli- school. for .110 other, reason than to please ris:.011,141W45300! households, -, • wevOultizet haVe seen the added ben- Cation within three monMa. A covenant will prevent the,deVelop;- Daridara Mei-Rage •• Horns` - parent Otherhtinsehdlckandlitirigingbas-- efits. The Department of Education and meat of more than 100 homes on the companyl and assist them with their kers. Entry forms are at the town hall. 'The securing of an additional 1.38 Children will give up 0_63 acres of part zoned land, and any development on development plan to construct 100 En tries close on September 3. acres of land, the provision of a sports of a school field, fronting Douglas the land beyond that accessed through houses'. 0 St John's Produce Show will be pitch and new hard play area arid land Road, to the landowner, to allow access the- zoned land. without. the DEC's In January, Mr Canaan made an un- held in the Methodist Hall on. Satur- to the north of the school fOr Attire to a new housing:development onland agreement. successful bid in Tynwald to prevent day. September-3-iat 3'pin Preteed classroom development, as and when zoned for residential development. Mr Teare said the land behind the the land swap going ahead. will go to the Corrin Memorial Home Department of Education and Children r=-Aw•TAUCALVTVG=AtZIMISK-se==wr•

Rheynn Ynsee as Paitchyn Hamilton House, isle of Man Peel Road, Douglas Government From the office of the Isle of Man INI1 5EZ Chief Executive Officer Reitiyg Raid!! Vantrio Direct Dial No: (01624) 685801 Voish Oik yn Ard Sheckier Fax: (01624) 685845 Website: www.gov.imfeducation Our Ref PKOK Stuart Dobson Email: [email protected]

8 November 2011

Mr A D Roberts Slieau Dhoo Main Road Isle of Man IM6 IAD

Dear Mr Roberts

The Minister has asked.me to thank:you for your letter of 31.0ctober and has. noted your . comments regarding the land swap at Michael School.

Yours sincerely

Julie Keeble Secretary to the Minister

4C-MMWMZM V.ItZrnnsrromr,

354 Slieau Dhoo Main Road Kirk Michael Isle of Man IM6 IAD Day tel: 07624 430858 E-mail:[email protected]

31 October 2011

Dear Mr. Karran I should first like to congratulate you on your appointment as Minister f education in Mr. Bells new administration and I realise these are early days when you have to rely more on the input of others whilst you get to grip with your new portfolio. However I was very disappointed to hear you say via the radio in Tynwald last week. Firstly that only 7 % of villagers opposed the swap of school land. This is demonstrably incorrect as recorded in a poll carried out by your department on school premises in 2007. Secondly to try and present this as a health and safety issue in regards of the proximity of the existing school playing fields to the main road when what the swap is actually facilitating a significantly increasing the length of road alongside the existing school field, bringing the intended relief road closer to the generality of the school buildings and increasing the level of particularly diesel fume pollution as stopped traffic pulls away uphill from the traffic lights in two directions.

Yours Faithfully

Andrew D Roberts

355 t 'Whin I 04111-M/I T- IIUM.1* cre. Vov 9011 Welcome Photo News and events •

Here are a selection of photos taken throughout the year. To see them as a slideshow, click on the link.

356

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Manx Independent, Friday, February 17,2012 wwwioneaday.eokro

Opir141/4),- • eat Peei Road. Douglas. M43_ SPZ OPINIONS op-ri 0 rIsCi_zrn costOrn.c.o.irn. - . The Manx Leave bus Independent route alone Questions about I WRITE in support of the views ex- OUR •VIEW pressed by Tim and Thelma Wilson (independent Opinions, February 10) concerning the retention of the bus `land-swap' deal station in Bridson Street in Port Erin. Finance Nothing will be gained by relocat- ing the bus route further along REGARDING recent a.rticies-about deal Conveying the operispace to open space, which he bad to provide Station Road, which is already the proposed development around: the school means that the general anyway, for an access across the very busy and congested. I think theit school, there are some public could only use the amenities school playing field. picture the traders, too, are mistaken it matters troubling manr folks hart& with the consent of the Edimaiion The true value to the developer of they think this will be beneficial for Michael- Deparauent'and only when they are ?bisaccess would be enough to build themselves or the area.The present In the interests of transpar- not being used the School. a new school. is not arrangement is perfectly sensible ency and openness in government The Kirk Michael Strategic Plan ' Opening the door to a pallid-mil- and convenient for bus users, locals the following questions: must be 094 protects the scho olby requir- liOnpound profitfq. *fi;de.vel and visitors, and I suggest if it ain't ansivered: ing any development of the area to oPer exchange for at apple of broke don't try to fix it and leave 1. Who initiated the idea of a allow for future expansion of the goal-poste is a very poor deal for so rosy well alone. laud-swap' in the first place, the school arid for the possibility of a taxpayers. The regeneration of Port Erin calls minister or the developer? by-pass road. This deal is not a 'lane-swap'; THE disclosure of the extent of lo- for rather more from the commis- Z. Was the planning department 4. As the Minister bad clearly a blatant leractoali. cal authority debt this week makes consulted regarding the proposal forgotten the details of the Isle of ThelcIrk ***I Strategic Plan sioners than tinkering with buses Man Strategic Plan 2007, had he also 1994; The Isle afistan•Strategic Plan interesting reading. and a general tidy-up of the area, prior to thedeal being negotiated? 21507, Appendbek and the Character While we. are assured that the gov- is long overdue, Is nothing 3, If consulted, did the.depart- forgottenthe Kirk Michael Conser- which vation Area Character:ppraisal? Appraisal xelatingto Park,Mietrael - ernment has Elba in reserves, the more than cosmetic. ment advise the minister that a lan&swap' deal was not necessary, ale had voted in favour of both in ConserrationArea should bicorn- debt on local authority housing is Vision is needed to make Port pulsotyreading for merabersof the quite large. Add to that the outstand- Erin, which has a superb beach referring him to the Isle of Man Tynwald). • ing debt that the MEA. incurred after and so much potential, an etteac- Strategic-Plan 2007? The:litter doCumenr stress the council of Ministers called uponte the loans fiasco and the financial 'Live place 10 visit, especially if the Appendix 6 to this document importance of the vista to the hills considee the report of the independ- picture of our island doesn't look weather is inclement and you have demands theta development, as Anne Dangles Road comer and the ent inspector into the planning quite so rosy. young children. proposed, would require the ptovi- need to retain the character of the application_ • We'd still rather be in Treasury it goes further with the letter from sion of recreation and amenity open village. Beth would be destroyed by Mr Team will, of course,have Minister Eddie Teare's shoes than John Eirandler on the same page spaces (areas of similar size to those the proposed development- declared an interest and will take those of the UK Chancellor of the which should set alarm bells ringing offered as a 'land-swap') for the use 3. Did the minister really believe no pare Exchequer, George Osborne, or his about the attitude towards tourism of everybody, in chid hie rhe scli 0 DI. he was ge ding the 'best deal for the equivalents in Greece, Italy and and potential visitors to the island: SuCh land and amenities would taxpayers' (his words) by signing.up 3. KERMODE Spain. the easy-going tomorrow will do at- eventually be adopted by:the local to an unnecessary deal? A deal-that Craig Fawn, Douglas Road, While the downgrading of our tri- titude towards tourism and potential authority, with no need for a land called for the developer to exchange Kirk Michael ple-A rating was downplayed (it was visitors tte the island. This easy-gn- trumpeted when we got it, by the ing tomorrow will do attitude is an way) its effect on the cost of interest excuse for indifference and In 2012 dementia, like my mum, is required within two weeks of her trip and it was In this time of economic instabli- is now becoming evident. is not acceptable. to pay £2.600 per month for care NOT in Fuli, also shA did not have to nay -c9i1 358 Clare McDonough

From: Timothy Roberts [[email protected]] Sent: 21 March 2012 19:23 To: Jonathan King Subject: Kirk Michael Land Swap

Dear Sir,

I note the press release inviting the public to submit their views on the land swap and I am submitting my views herein. I live in the village, attended Kirk Michael Primary school as a pupil from 1981 until 1987, and i am lucky enough to have two young children who now also attend the school.

1) Firstly the school playing field, as it is now, is a wonderful asset to the school. It has a magnificent view to the hills which would be lost were the site to be a) turned over to Dandara, b) have a road built through it and c) be surrounded by housing. None of these events would benefit the school in any way.

2) The school playing field as it is now is not only an asset to the school but is also an asset to and an integral part of the village. It is continually used by schoolchildren out of school hours (I was up there myself last weekend playing football with my two young daughters). It has a very child-friendly situation, being in full view of the general public from the road, as opposed to the proposed "new" school playing field, whcih would be out of sight at the rear of the hotel.

3) I do not understand why any contract between Government and Heritage Homes should be secret. We live in an open democracy, and it concerns me that dealings between Government and the largest and most controversial housing company on the island should be kept a secret. There can surely be no possible reason for this.

4) I understand that the main reasons for this deal being entered into by the DoE were "to prevent the school from being landlocked" and secure "room for expansion". To my knowledge, other than prompted by this proposal initiated by Heritage Homes, the Department of Education has never previously expressed any concern regarding these issues nor any desire to prevent them from being a future proble, for example, by stating their expectation that Kirk Michael Primary School will be significantly expanded, or attempting to buy (or compulsorily purchase) surrounding land to allow such room for expansion. It seems to me that Department of Education policy here has been driven by Heritage Homes. This is completely wrong.

In contrast to the stated intention of securing room for future expansion, the DoE and Minister for Education only recently proposed a plan under which part of the school would be annexed and turned into a doctor's surgery, thereby reducing the size of the school. It seems the DoE is unclear about whether in future KM school needs to be larger or smaller, and therefore unclear about the only reason it has entered into this deal.

5) I am concerned that the question of whether Heritage Homes did or did not have alternative access to the site was not properly clarified prior to entering into the deal. At public enquiry Heritage Homes seemed to indicate that they did not have alternative access from the main road after all.

6) I feel that the timing of the deal, annoucned immediately after the retirement of the village's MHK, is cause for concern.

7) Finally i think that if prevention of landlocking and securing land for expansion really are issues of concern to the Government (and as noted above, it is not at all clear that htis is the case) then they should explore other options such as dezoning or re-zoning the land next to the school playing field to protect it, or compulsory purchase, or other means, particularly in light of the local community's well expressed view that the school playing field is a valuable asset of Kirk Michael village (this is of course supported by the fact that it was made a conservation area in 2005).

Yours sincerely

Tim Roberts 1 Slieau Curn Park Kirk Michael\ IM6 1EH

3" 360 19th March 2012 Croite Orry Main Road Kirk Michael 1M6 1AJ

The Secretary of the Select Committee Tynwald Government House Bucks Road Douglas Isle of Man

Dear Sir

Re: Select Committee for Land Swap, Kirk Michael

I am writing to express my concerns regarding the above land swap.

My first concern is that this was done the day after Tynwald had finished sitting and was therefore not subject to any scrutiny by Tynwald and therefore I would question the legality of the swap.

My second concern is that when there was a public meeting chaired by a previous Education Minister, Mrs. Ann Craine, the majority of people from Kirk Michael attending this meeting were against this land swap. Mrs. Craine took the views of the people of Michael into consideration why did Mr. Teare, who I understand approved the land swap, not take the views of the people into consideration?

My third concern is that although the land swap is supposed to give the school a larger playing fie id, if the population of Michael expands and there needs to be further expansion of the school, then presumably, the playing field would the area that is built on, thus negating the original reason for the land swop.

I would be grateful if you could take my views into consideration when making any decisions about the above matter.

Yours faithfully

/Th

Mrs Caroline Sharp BSc RD PGCE DipSpLD RECEIVED 7 2 MAR 2012 of.vicr6 OF 'f' EIE [CLERK OF TYNWALD

361 362 Clyeen, Douglas Rd, Kirk Michael IMO 1AU

7th March 2012

To: The Clerk of the "Kt Michael School Landswap" Committee Legislative Buildings Douglas, IM1 3PVV

Dear Sir,

I understand that submissions may be made on this matter until 23rd of March and therefore hope the following may be considered.

The current proposals for development of the land adjoining the Kirk Michael school do nothing to improve the village nor allow for its future further sensible development which will no doubt be required due to the desireability of the village.

My comments refer predominantly to the general development of the village as I have no knowledge of the actual negotiations first hand that led to the deal being initially agreed.

The current rash of strip development, infill and creep of development behind the existing strip developments fails to achieve what a good and well thought out development plan could do to improve the village.

Currently the school has limited sports facilities and the current sports field is some way from the centre of the village. It would seem a rather more sensible idea to arrange for the sports field (not just the school sports facility) to relocate next to the school and for the development to take place on the existing playing field creating a communal and central recreation space.

With some foresight the village could as suggested start to develop some central green space behind the school, shops and pub and provide room for future development around the fringes of that, allowing more centralized recreational facilities and protecting and enhancing the central green area near to the school,retail, service and other businesses in the centre of the village to a large extent.

363 Before allowing for more high density housing (limiting future options by closing off the area concerned) and despite there being plenty of space surrounding the village, surely it would be wise to try and come up with a plan that also solves the traffic issues in the village by creating a one- way circulation system around the rear of the pub, shops, school and returning on the existing high street thereby enclosing the possible green recreational space generated. This would not remove the traffic from passing the village shops, etc. but simply channel them in a single direction, making the high street safer and more pleasant an experience and generating use of the recreational area.

Hoping that one day the residents can be empowered to decide the future shape of their village (in the knowledge that it must be allowed to grow and expand to protect the facilities we currently enjoy as residents and to allow justification of new ones, such as GP Facilities, etc) and then allowing that it can be developed with a long term view without constant battles with developers who sadly are generally if not always more interested in the bottom line than in improving the quality of life for residents of the locations they wish to develop.

Hoping that despite its generality some of this may find support in the committees findings or at least trigger a rethink of how the very needed development of the Islands villages might be successfully achieved.

I remain

Yours Faithfully

James Stevenso

364 APPENDIX 11 366 OPINION or ADVICE

To: THE CHAIRMAN AND MEMBERS OF THE SELECT COMMITTEE OF TYNWALD ON THE KIRK MICHAEL LAND EXCHANGE AGREEMENT

INTRODUCTION

In April 2012 I was instructed to advise and provide an opinion to the Select Committee set up by Resolution of Tynwald Court on 22nd February 2012 and in the following terms:- "That Tynwald appoints a Committee of three members with powers to take written and oral evidence pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to investigate the Kirk Michael School Land Exchange Agreement between Heritage Homes, Pinecrest Investments Ltd and the Department of Education and Children; whether by January 2011 access to the land had been secured, as was stated at that time by the Hon. Member for Ayre; the manner in which the negotiations were conducted; and the value for money achieved; and to report with recommendations by May 2012." I was provided with a set of questions you wished to have answered, by the Clerk to the Select Committee, on 18 April, along with certain documents, further questions were posed, and additional documents were provided, on 25th May 2012. I have since requested further documents. These were delivered on 31st May and 2nd June. I submitted a draft opinion in time for consideration by the Select Committee on 7th June.

I was provided with further documents on 26 June 2012, which I had not been provided with previously and was instructed to cross reference them to my opinion in draft and make any necessary amendments. These included submissions by the Dol Planning and Building Control Division, by the DEC and by Heritage Homes. I was asked to provide an estimate of the fees involved. I provided my estimate on 20 April but I was not able to commence work until after that estimate had been accepted on 23rd May. Further questions were raised in September 2012 and I was unable to complete my answer to those until early October. BACKGROUND

Kirk Michael is a unified Village and Parish authority in the West of the Island. Kirk Michael Village is, mainly, a linear/ribbon development along the main A3 highway (which runs from Castletown to Ramsey) where it passes through the Village.

Legal advice: page 1 367 Kirk Michael is an ancient settlement, being the location of the historic former Bishops residence and seminary (Bishopscourt) and a Court House (long since disused). Much of the existing Village development along the A3 is 19th century. From the 1930's there have been developments at either end of the historic Village boundaries and to the east and west of the A3. To the South of the Village centre lies Glen Wyllin, which is on the A4 Peel to Kirk Michael Road. The A4 joins with the A3 opposite Kirk Michael School which is on the eastern side of the A3, and, which, is just at the start of the old heart of the Village. Colloquially this is known as Douglas Road Corner. Kirk Michael School and playing fields are situate to the east and north of Douglas road Corner. Next to the school going north are the ancient Court Courthouse and the Mitre Public House, and behind them the old Fire Station. The original school buildings date back to the 3rd quarter of the nineteenth century, they have been extended and modernised. The school has a large area of land, at Douglas Road Corner, which is used as playing fields and for other ancillary purposes. In the latter half of the nineteenth century the railway reached Kirk Michael. Services stopped in the late 1960's. The railway ran to the seaward/western side of the A3. Infill development over the years has filled in the gap between the A3 and the line of the railway track and crossed the track and extended towards the coast. To the east of the A3 there has been less development, with Mull View, Slieau Curn Park and Cannan Court. Over the last 15, or so, years there have been several plans to develop housing in Kirk Michael village. In 2001 planning, which had been opposed by a residents group, MOVE (Michael Opposes Village Expansion), was granted to Heritage Homes to develop 51 houses at the northern end of the Village, between the A3 and the line of the railway. That planning process took over 4 years. Reasons for opposition at the time included major infrastructure and road safety issues, capacity of the school, sewage plant capacity and the traffic volume/safety on the A3. I am not instructed as to whether all of these issues are now addressed so that there is no longer any infrastructure objection to development in Kirk Michael. However review of the report of the planning inspector into the current application shows that most issues are resolved or resolvable, drainage is about to be addressed with a work on a new treatment plant scheduled, the school has been modernised, although the road through the Village and traffic upon it still presents problems and the question of a bypass or relief road is unresolved. Looking at maps and satellite pictures of Kirk Michael it is apparent that there is only one area of land within the Village boundary available for development. That is land which is to the north and east of the A3 behind the ribbon development as Kirk Michael is entered from the south east from the Cronk y Voddy, behind the school and its playing fields and extending towards Mull View, behind the Mitre Public House and on to Slieu Curn Park. At least some is zoned for development in the Michael area plan.

Legal advice: page 2 368 The land concerned is mainly field number on the 10M Survey 234456, but it does involve other fields. The land is owned by Pinecrest. Historically the land is part of the Drimneagh treen and Lhergyvreck and Ballachrink quarterland estates as shown in the Michael plan in Woods Atlas in 1867. For a large part of that time those estates, along with Ballajackley and Whitehouse quarterlands, have been in common ownership; initially by Lady Laura Buchan and, by the 1960's, by Isle of Man Produce Company Limited. They lie between the A3 and Baltic Road. At some time since 1867 the quarterland names have become confused and names have been changed; what was Lhergyvreck is now sometimes referred to as Upper Lhergy Vreck and Ballachrink appears to be universally called Lhergy Vreck. Ballachrink appears to be the proper quarterland name of the lands on which the school is built and the land subject of the land swap and planning application. Access to the relevant parts of this land is currently via Lhergy Vreck Road, ie the lane that runs north from the A3 across Ballachrink to High Tilt and Lhergy Vreck Farm, between Westlands and Cass a Lhergy, although some access might be possible (with additional land purchase) from Slieau Curn Park, the former Kelly Brothers yard and from Baltic Road which runs from the A3 north of Slieau Curn. Indeed on some older plans and in Woods Atlas, and the Tithe and Asylum plans, on which Woods is based, Lhergy Vreck Road is shown as running through from the A3 to Baltic Road.

Lhergy Vreck Road is clearly an ancient quarterland road, which crosses Ballachrink to access Lhergy Vreck, over which will have existed rights of the owners of adjoining parts of Lhergyvreck and Ballachrink to access their land. These rights are not written and are hard to establish with detail and precision. They are recorded in the Tithe and Asylum plans prepared in the 18th & 19th Centuries, after Revestment to ascertain land ownership and rents payable to the Crown. Some are now recorded as public rights of way on the definite rights of way plans/maps. Their origin is ancient. They are first referred to in The Customary Law Act 1577 in the following terms:- 32. Also we give for law, that when a Man cometh to the Deemsters to move that he wants an Highway from his House to the King's Highway he ought to drive as far upon his own ground as he may to the King's Highway; and then he ought to have a way upon his Neighbour, and that ought to be xvii] [18] Foot broad; and if his own ground come to the Highway he can have none of his Neighbours; for altho' he want the nearest way, he ought not to have it in that Order, aitho' it be further about. The access via Lhergy Vreck Road is not considered the safest by campaigners against development or, possibly, to give the best/safest access/lay out for development by the developers. Indeed even although Heritage have bought or taken options over Cass a Lhergy, Westlands, Knock e Tholt and Westlands on Douglas Road in the vicinity of Lhergy Vreck Road on the A3 to widen their frontage the Inspector concluded the length of frontage was not wide enough for required visibility splays for vehicular access for planning purposes. However, Heritage maintains that this conclusion by the Inspector was "fundamentally incorrect". They, and the DEC, have provided documents to the Select Committee, copies of which have been provided to me, showing that in April 2011 the Highways Division advised

Legal advice: page 3 369 that the Lhergy Vreck access route was viable. There appear to be many issues raised against the development by objectors, put simply they appear not to want it at all, believe it will overload infrastructure such as drainage, exacerbate traffic problems and they believe it will be the start of a Kirk Michael relief road (something which was apparently rejected in 2004 as deleterious to the Village).

At some stage initially in 2005, and later after the Dol had confirmed to Heritage and the DEC that the Lhergy Vreck Road access was viable in terms of meeting visibility splay requirements, in f in 2010 and 2011„ negotiations were opened between Heritage (the potential developer) and Pinecrest (the owner) (who had initially come to an agreement in 2004/5) and the DEC to swap the school playing field with some of the land that Pinecrest owned and Heritage wished to develop. The rationale of the developers appears clear, to improve access and developability, and by improving access, to maybe reduce objections on the grounds of safety, the rationale of the DEC is less clear, and I have not been instructed what it was. I am sure this is something the Select Committee will be looking at.

These negotiations resulted in a land exchange agreement dated 16 August 2011. It is clear from the Dol correspondence, and the DEC and Heritage submissions that by that date the DEC were satisfied that Heritage had a viable visibility splay to use the Lhergy Vreck Road access, subject to planning being granted and probably with the use of traffic lights, although it is also clear that the Douglas Corner access was always the preferred access.

When it became public there was an outcry by certain of the objectors. They raised many issues and as a result of questions, particularly by the newly elected MHK for Michael, the Select Committee was established. I am told that Treasury approved the land swap agreement, before it was executed, in August 2011.

Heritage then applied for planning consent for 100 houses on the DEC and Pinecrest land at Douglas Road Corner. It is safe to say there was considerable opposition by Michael residents and the matter was dealt with by a Planning Inspector at an enquiry which lasted two days.

The report of the Planning Inspector, recommending refusal of the development, was approved by Council of Ministers and published in March 2012, after the Select Committee had been appointed. I understand Heritage has subsequently submitted another application. Papers relating to that application are available on the Government website. They include a Dol Planning Division report of 18 May 2012 which confirms that "the provisions for access and drainage remain largely as previously proposed"; I have no instructions to comment upon that application and in any event the second application is not part of the Select Committee's remit .

Legal advice: page 4 370 THE QUESTIONS ADVICE WAS REQUESTED UPON

I was first asked to advise in respect of the following

i. Please provide an explanation in layman's terms of the effect of the Agreement.

ii. Does it appear to be a good Agreement from the Department's point of view? Does it cover the eventualities which ought normally to be covered in such Agreements? (The words in italics were subsequently removed as this is a value for money/political question, rather than a legal one)

iii. Where does the Agreement leave the Department if the Developer fails to get planning approval?

iv. Is there a fixed end date to the Department's obligations under the Agreement?

v. Does the Department have the legal power to enter into an Agreement of this kind?

vi. Does the Agreement raise any other legal concerns?

On 25 May 2012 I was asked to consider the following additional questions and advise upon them

vii. In the event that Heritage Homes had not been able to secure, through the Agreement, the preferred Douglas Road Corner access to the development site, would the rights asserted by Dr and Mrs Naylor have prevented a development on a similar scale from going ahead on the basis of access to the zoned land via the alternative "Lhergy Vreck access"?

viii. Are there any rights held by anyone else which could have affected the viability of the "Lhergy Vreck access"?

ix. If you had been advising the Minister for Education and Children in May 2011, how would you have assessed the likelihood that the rights referred to in the Naylors' letters of 9th May 2011 and 17th May 2011 would have had a material impact on the viability of the alternative "Lhergy Vreck" access and hence on the value of the Department's land? Would you have recommended that the Department investigate further?

In September 2012 I was asked to consider my original advice further in the light of the fact that the Developer had submitted a subsequent planning application on or around 20 April 2012, after I was originally instructed

Legal advice: page 5 371 THE DOCUMENTS REVIEWED

Instructions, as amended, 18 April, 25 May and 11 September 2012

Land Exchange Agreement dated 16 August 2011 between Pinecrest, DEC and Heritage with plans and appendices

Correspondence and copy conveyances as set out in a schedule provided by the Clerk to the Select Committee NB notes and comments are not mine

1 Naylor/ 9th May 2011; Correspondence between Dr & Mrs Naylor Teare 11th May 2011; and Minister for Education (as supplied to 17th May 2011; the Committee within March 2012 27th May 2011 submission from Alf Cannan MHK) Naylor, Dr 19th March 2012 Submission to the Committee and Mrs Naylor, Dr 22nd May 2012 Submission to the Committee with extracts and Mrs from deeds dated 19th May 1989 and 2nd September 1996 Lewis, Clare 24 May 2012 Submission to the Committee inviting the Committee to consult abstract at Pinecrest' s advocates' office Cregeen, 8th May 2012 Covering letter. Land Registry map (not Stephen provided. Electronic version of Land (Chief Registry map supplied instead.) Re• istrar)

List of documents accompanying Stephen Cregeen's letter of 8th May 2012 Date Between And Notes A 1 May 1984 Isle of Man Bishopswood Large area Produce Trust Limited north of Company (purchaser) Lhergy Vreck Limited Lane and east (vendor) of farm buildings 12 May 1986 Isle of Man Hastie, Farrant Appears to be Produce and Keig, south of Lane Company purchasers and (Erinville) Limited executors (vendor) C 28 August Bishopswood Pinecrest No plan 1987 Trust Limited Investments attached (grantor) Limited (beneficial owner) and Lewis (grantees) D 2 May 1989 Chester Lewis No plan (vendor) (purchaser) attached

Legal advice: page 6 372 E 22 May 1989 Chester Lewis (vendor) (purchaser) F 18 September Lewis Commissioner Affidavit of 1990 for oaths solvency referring back to deed of conveyance of 25 August 1987 G 18 April 1995 Simpsons Naylor Land south (vendors) (purchasers) and east of farm buildings H 2 May 1995 Creasey Naylor Not sure (vendor) (purchasers) where this is I 2 October Creasey Naylor Not sure 1995 (vendor) (purchasers) where this is J 2 September Creasey Naylor Farm house 1996 (vendors) (purchasers) K 22 August Creasey Davies Land on either 1997 (vendors) (purchasers) side of track

A Copy of the report of Alan Langton, the Planning Inspector

The following further deeds were supplied to me at my request

L 17 March Cyril Walker Cannel Christopher John 1970 (vendor) Southall and Elizabeth Anne Southall (purchasers)

M 3 June Isle of Man Produce Christopher John Lhergy 1980 Company (vendor) Southall and Elizabeth Vreck Anne Southall(purchasers) _ N 13 Isle of Man Produce Robert Stewart November Company (vendor) Kennedy (purchasers) 1987 O 1st Robert James Lewis Pinecrest Investments Lhergy November and Sally Lewis (purchasers) Vreck 1988 (vendors) recorded DEC 1988 — 65 P 1st Robert James Lewis Pinecrest Investments Lhergy November and Sally Lewis (purchasers) Vreck 1988 (vendors) recorded DEC 1988 — 66

Legal advice: page 7 373 FQ 19th Pinecrest Robert Charles Creasey May 1989 (vendor)Investments and Wendy Margaret Limited Creasey (purchasers)

R 4th Isle of Man Produce Robert Charles Creasey February Company (purchasers) L1991 (vendor) 19 June Awlex Limited (vendor) Ronald Simpson and 1992 Rita Simpson (purchasers) T 31st March Awlex Limited (vendor) Robert Charles Creasey 1 1994 (purchasers)

I did not have full abstracts of title for all of Westlands, Cass a Lhergy, High Tilt, Lhergy Vreck Farm, and/or the land currently owned by Dr & Mrs Naylor and Pinecrest/Mr & Mrs Lewis, they may have been of some use and it may be that the compilation of those abstracts and examination could assist further. I requested the provision of 9 other deeds and plans, L to T, which I considered might be relevant from my initial examination of 1 to 5 and A to K above. The clerk to the Select Committee and Mr Garth Anderson, the Deputy Chief Registrar and Legal Officer (Land) were kind enough to arrange their supply.

The following additional documents provided on 26 June 2012 after I had submitted a first draft of my opinion

1. Copy Submission of the Dol Planning and Building Control dated 18 May 2012, 2. Copy Submission of Heritage Homes dated 18 April 2012 3. Copy letter from Bryan Hall (on behalf of Heritage) dated 14 March 2011 to Kevin Almond (Dol Highways Directorate) about the viability of the Lhergy Vreck Road visibility splay 4. Copy e-mail from Kevin Almond to Bryan hall dated 15 April 2011, in which the viability of the Lhergy Vreck Road visibility splay is confirmed 5. Copy submission of the DEC dated 22 March 2012. The text and appendix to this document provides a chronology and makes it clear that the DEC had seen the e-mail of 15 April 2011 from Mr Almond to Mr Hall soon after it was sent and were aware that the Lhergy Vreck Road visibility splay was viable and this that, subject to planning and any private law rights, Lhergy Vreck Road was a viable potential access to the site

Legal advice: page 8 374 OPINION ADVICE AND ANSWERS TO THE QUESTIONS RAISED

i. Please provide an explanation in layman's terms of the effect of the Agreement.

The agreement is a fairly typical tri partite agreement between adjoining landowners and a developer for the swap of land to facilitate development of some part, or all, of the land by the developer. It runs to 42 pages, with schedules, and annexures in addition. Those annexures include draft conveyances, which set out covenants and easements and restrictions, and specifications for the work to be done for the benefit of Michael school at the expense of the developer. It appears to have been drawn up by the Dandara Group Legal Office and approved by the Attorney Generals Chambers. The facts this question, and the subsequent 3 questions, have had to be asked indicates a failure in drafting. The language is, in places, confusing, obfuscatory and in the worst legalese. Maybe it highlights the need to train drafters in the use of plain English. The documents would not have been considered for the Crystal Mark award.

The Agreement is made conditional upon Heritage applying for obtaining planning consent on terms which are acceptable. "Acceptable" is defined.

The Agreement provides that if acceptable planning consent is granted to Heritage, in respect of land owned by Pinecrest and the DEC, then the DEC will transfer ownership of a triangular area of land, part of Michael school playing field at Douglas Road Corner, to Pinecrest in exchange for Pinecrest transferring to the DEC a larger area of its land, part of fields 234456 and 234455, immediately behind Michael school, the Mitre and the Old Fire Station. The areas are not stated in the agreement but the land involved is adequately identified by plans. From the report of the Planning Inspector I have ascertained that the area of DEC land to be exchanged is 0.63 acres and the area of Pinecrest land to be exchanged is 2.01 acres. le DEC is getting slightly more than 3 times as much land as it is giving away.

There are drawings attached to the Agreement which indicate that the development is to be accessed by a road/site entrance running from the Douglas Road corner where the A3 and A4 meet, across the DEC land and then behind the school and Mitre Public House and connecting with Slieau Curn Park.

Legal advice: page 9 375 Additionally the Agreement anticipates possible later development of additional areas of Pinecrest land to the east of this land and north of Lhergy Vreck Road (fields 234265, 234455, 234252 and 234253).

The values of the land to be swapped are stated to be: DEC EXXXXXX and Pinecrest £XXX,XXX. In addition Heritage is to carry out works for the benefit of Michael school to the value of 00(XXXX. As only part of the Pinecrest land is within the area which is shown as land zoned for development on the Michael plan there is also agreement that if in future its status changes, ie it is zoned for development on any new Michael plan, then payment will be made to DEC to release a "stop covenant" which is to be granted to the DEC by Pinecrest and which gives the DEC power of veto over access to the land identified for possible additional development. ii. Does it cover the eventualities which ought normally to be covered in such Agreements?

Yes, despite its length and language/drafting style, it appears to cover all eventualities. One of the draft conveyances attached is a nightmare of poor drafting in my opinion, but I have not been asked to advise on the draft conveyances, and in spite of its style and length it is, in my view, workable. iii. Where does the Agreement leave the Department if the Developer fails to get planning approval?

If planning is not approved in acceptable terms for Heritage and Pinecrest the Agreement comes to an end and the DEC is in exactly the same position as it was before the Agreement was entered into, ie it owns the playing field free from restriction. Planning was recommended to be refused by the Inspector's report which was then approved by CoMin. It appears prima facie the Agreement came to an end. I have not been advised that the parties have agreed to vary or extend it to allow for a new application, although I am instructed such a new application was submitted on or about 20 April 2012. The notification of CoMin that the Inspectors report had been accepted and planning refused was dated 27 February 2012. As a result, under the terms of the agreement as the second application was made within two months of refusal, the agreement continues to be live. iv. Is there a fixed end date to the Department's obligations under the Agreement?

Legal advice: page 10 376 came to an end when the Inspectors report, approved by CoMin, was published in February 2012. Clause 5.12 does not in my opinion allow extension in the case of refusal. In other words it would have come to an end by 16 May 2014 (if planning had not been resolved by then) or by refusal of planning (which has happened) except that if a second application was made before the expiry of two months from the refusal of planning the agreement continues, but that is still subject to the long stop expiry date of 16 May 2014.

v. Does the Department have the legal power to enter into an Agreement of this kind?

Yes. I am not aware of any restriction on a Department of the IOM Government which limits its ability to enter into an Agreement to sell or exchange land or requires it to obtain Tynwald approval in advance. There are requirements for Treasury approval. I am instructed that Treasury approval was obtained prior to the Agreement being entered into. The DEC thus satisfied Treasury requirements. Obviously it should also have attempted to ensure value for money and any decision had to be reasonable, based on rational criteria and decision making, or it may be subject to judicial review by way of Petition of Doleance, in appropriate circumstances and by persons with locus standii. The Agreement is not stated to be subject to approval by Tynwald, I presume the draftsmen did not consider it necessary either.

vi. Does the Agreement raise any other legal concerns?

My advice is that it does not. It deals with legalities appropriately. It does not deal with planning and it is not concerned with the rights of others, ie the rights of way issues raised in particular by Dr & Mrs Naylor. They are civil matters which could be subject to judicial determination. Dr & Mrs Naylor retained all their rights to object to detailed planning and to raise in the appropriate forum at the appropriate time any questions of infringement of their access rights

On 25 May 2012 I was asked to consider the following additional questions and advise upon them

This is a question which has to be answered in two parts, there are planning issues to consider as well as conveyancing/legal rights issues to consider. They fall to be considered completely separately. It is a common misconception that planning involves investigation into ownership and private land rights. It does not.

Legal advice: page 11 377 1. Planning. The existence of rights in favour of Dr & Mrs Naylor, or anyone else, and possible interference with them if planning were granted, would generally be something which planning would not take into account or consider when determining an application. An easement of access is a civil law matter between the landowners. So planning could be granted, irrespective of civil rights such as rights of way, and then, if their rights were actually interfered with, Dr & Mrs Naylor MIGHT be able to claim damages or an injunction to prevent the interference. It is not for the planning committee or inspector to determine legal rights of ownership, boundaries and rights of way etc. or to settle disputes as to them. It is worth pointing out that the Inspector appears to agree with my advice in the final sentence of para 30 of his report "...these are outside of the planning system". This comment applied to covenants, not easements such as rights of way. However the same principle does apply. It is notable that the only mention, by the inspector, of such private legal rights is in relation to the covenants in respect of the playground at the Ebenezer Chapel, where apparently legal advice had been sought. It is, in my opinion, significant that Dr & Mrs Naylor do not appear to have specifically identified what they claim their rights are and what land they serve, either to the DEC, Heritage the Planning Inspector or the Select Committee. Indeed the only discussion by the Inspector is at para 114 of his report. It appears that he accepted what he was told by Heritage, that Heritage had access via not just Lhergy Vreck Road, but had widened that access by acquiring options over or purchasing the properties Cass a Lhergy, Westlands, Knock e Tholt and Greystones etc close to the junction of the Lhergy Vreck Road and the A3, which also abut upon part of the development land to its east and north, The Dol Highways Directorate had confirmed the theoretical adequacy of the visibility display with the extra land but the actual suitability of such access in planning terms could only be tested in a planning application using Lhergy Vreck Road. No such application has been submitted; Heritage clearly had potential access via Lhergy Vreck Road and Cass a Lhergy, Westlands etc. The fact that other owners had rights over Lhergy Vreck Road was not relevant to planning; it was not relevant either to the question of entering into the land swap agreement. It may have been relevant, on both points, the adequacy of the visibility splay and the restriction on use that the rights might have caused, to the value attributed to the Douglas Corner playing field. In fact my advice, as appears later, is that the adequacy of the visibility splay would be much the more important issue than the rights over the Lhergy Vreck Road, especially as Heritage had acquired Cass a Lhergy, Westland etc and could possibly create an entrance without using Lhergy Vreck Road and interfering with any rights of way over it. The Select committee may feel it needs to explore this further. 2. Legal Rights. I have reviewed the documents disclosed. My supplementary instructions on this issue were

Legal advice: page 12 378 In the debate establishing the Committee, Mr Alf Cannan MHK drew attention to concerns which had been raised in May 2011 by a local landowner about the proposed Lhergy Vreck access. He said:1

In a letter to Minister Teare and the Department of Education on 9th May 2011, a Kirk Michael landowner writes:

"We understand there is a proposal to exchange land at the school in Kirk Michael to enable Heritage Homes access to land zoned for building. The details of this proposal seem to be based upon the belief that Heritage Homes, in the absence of access through the school, would have access from the Douglas Road through the entrance of High Tilt. This is uncertain since we own the farm buildings and some of the land of Lhergy Vreck Farm and our deeds give us right over the access road to High Tilt. We simply do not know whether our rights would or would not prevent Heritage Homes access to the zoned land."

Mr Alf Cannan reiterated this concern in his written evidence to the Committee, which also includes copies of the May 2011 correspondence between the Naylors and the Department. The Committee has also received a written submission directly from Dr and Mrs Naylor making the same point. They say:2

We asked for further information and at the same time pointed out that any entrance via Lhergy Vreck Lane might infringe our rights and therefore might not have been possible as an access route. Mr Teare did not provide us with any information, and did not even ask us for further details of the potential problem with Lhergy Vreck. He, therefore, knew that Lhergy Vreck Lane might not be useable as access to a development before he signed the contract.

The Committee has decided to follow this issue up in order to establish (a) whether the Naylors' rights could indeed have enabled them to block the use of the Lhergy Vreck access, as they claim; (b) whether the use of the Lhergy Vreck access could indeed have been threatened by rights enjoyed by any other landowners in the vicinity, including Pinecrest Investments Limited/the Lewis family; and (c) whether the Department erred in ostensibly ignoring the Naylors' concerns when they came forward in May 2011.

1 Hansard 22nd February 2012 lines 1042 to 1050 2 Letter to the Committee dated 19th March 2012

Legal advice: page 13 379 Investigation undertaken so far The Committee asked Dr and Mrs Naylor for further particulars of the legal rights they refer to in their letter of 9th May 2011. They responded by their letter dated 22nd May 2012 enclosing extracts from deeds dated 19th May 1989 and 2'1 September 1996.

The Committee also asked Pinecrest Investments for details of its rights over the land. They responded in Clare Lewis's letter of 24th May 2012 saying they have instructed their advocates to make the relevant documents available to the Committee.

Turning first to the correspondence from Dr & Mrs Naylor and between Minister Teare and Dr & Mrs Naylor, it is clear that Dr & Mrs Naylor are staunch opponents of this proposed development. They objected at planning stage, as was their right, and gave evidence to the inspector. However there do appear to be a number of lacunae or other issues and contradictions in the points they raise

Letter Naylor to Teare 9 May 2011. Dr & Mrs Naylor are not sure what their rights of access to High Tilt or their parts of Lhergy Vreck are or whether, if planning were granted, those rights would be infringed, during development. They refer to the value of the access as £9,000. As we have seen the value to the DEC is stated in the land swap agreement to be £XXX,XXX.They indicate that they would not want their rights infringed. They also express dissatisfaction at lack of contact from Heritage that is a matter between them and Heritage, and not the DEC. It appears to me that they should by now be able to identify what their rights are, sight of the agreement or planning application would not be a pre-requisite to that. Their rights are set out in their title. Yet they still do not do so. Second, under the agreement it appears that the DEC is receiving land and works to a value of £X,XXX,XXX in exchange for land worth £XXX,XXX, ie a "profit" of £XXX,XXX. In exchange for giving away 0.63 acres it was to acquire 2.01 acres. I am not qualified to value, but it appears to me that the values in the 1st and 2nd schedules of the Agreement can only be values with the benefit of planning, although that is not anywhere stated to be the basis. The Select Committee may wish to consider how these values were arrived at and to ask the DEC/Treasury Government Valuers how it/they valued the land and its interests and the basis of the valuations and whether any valuation advice was received and if so from whom?

Letter Teare to Naylor 11 May 2011. Minister Teare seems to have responded appropriately from a legal point of view. It really is nothing to do with him and the land swap agreement is not a legitimate concern of Dr & Mrs Naylor. The question of the rights of Dr & Mrs Naylor is clearly one on which they should take legal advice and they should deal with Heritage

Letter Naylor to Teare 17 May 2011. Again Dr & Mrs Naylor do not actually assert what their rights are. They confuse the existence of their rights, and the enforcement of them, and the planning process. Their rights are generally going to be irrelevant to planning. What may be relevant to planning is the suitability of Lhergy Vreck Road and Cass a Lhergy access

Legal advice: page 14 380 and the safety of any junction with and increased traffic on to it from the A3. Their private rights of way, and their enforcement of them, are not a planning issue. They again raise the question of value. I advise there are a number of issues as identified already. If planning is refused, as it has been to date, then value is not relevant as the swap, put simply, will not go ahead. If planning is granted then clearly it is the value of the land with planning that is relevant. They raise the spectre of the playing field having a much greater value due to it being akin to a ransom strip. The question of access via Lhergy Vreck Road is one between Pinecrest, Heritage and Dr & Mrs Naylor from a legal perspective. It has nothing to do with the DEC. However from a value for money and economic perspective it is of relevance to the DEC, if Lhergy Vreck is not a viable access, either on legal or planning grounds, then the only access to these, otherwise, landlocked areas is via the school playing field. That increases the value of the playing field as it is in effect a ransom strip. But I doubt that Minister Teare or his officials in the DEC had any obligation to analyse the rights of Dr & Mrs Naylor in depth. After all they were not advancing them as definite. It was up to Dr & Mrs Naylor to put forward their case. Dr & Mrs Naylor also raise the question of tender from other developers. That appears to me to be a non-starter. The land belongs to Pinecrest. Pinecrest has an agreement with Heritage there is no other developer.

Letter Teare to Naylor 11 May 2011. This is merely an acknowledgement.

Letter Naylor to King 22 May 2012. This again indicates, in my opinion, that Dr & Mrs Naylor are avoiding addressing the issue as to what their rights are. To obtain advice, from their advocate, as to what their rights were and how the development of the land within the zoned for development area contained in the Kirk Michael plan using exclusive access via Lhergy Vreck Road, would affect those rights, interfere with them and whether they had the right to stop such development as a result did not, and does not, depend on the information they say has not been provided to them. With hindsight and the advantage of the inspectors report it appears they made no such submission to him, or if they did he has not reported it or factored it in to his recommendation. As indicated above, and at para 6 of his report, their private legal rights were irrelevant to planning

Submission of Dr & Mrs Naylor to the Select Committee dated 19 March 2012. Again Dr & Mrs Naylor set out that they have rights over Lhergy Vreck Road. Their highest point is that any development using access via Lhergy Vreck Road "might infringe our rights". At no stage do they identify what they claim their rights are and what land in their ownership has the benefit of them. They go on to comment that the junction between the A3 and Lhergy Vreck Road would not be suitable from a planning perspective due to visibility issues. That may be so, but that is a planning issue, not one that relates to their rights over Lhergy Vreck Road. Again they confuse planning issues and their rights of way over Lhergy Vreck Road and potential interference with them. Again they refer to agricultural land and values. What was going to be swapped was not agricultural land at agricultural vales but land with access and planning.

Legal advice: page 15 381 They also raise a number of questions, I will deal with these briefly as it is not clear that they are within my instructions, but they are part of the overall picture.

1 David Cannan was MHK for Michael up until the election in September 2011. I am not sure what democratic deficit they allege as the agreement did not require Tynwald approval in any event. It did require, and had, Treasury approval, or so I am instructed, not having seen any documentary proof. Government goes on, even after the House of Keys has been dissolved and an election called. The Dissolution was in any event after the date of the Agreement, if my memory serves me right.

2. This was not a legal requirement. I am not sure what benefits a public consultation would have brought. The planning process is a public consultation. Indeed I understand Dr & Mrs Naylor have been parties as objectors and taken part throughout the planning process. The Kirk Michael plan had also previously been subject of consultation, although a long time ago. It is easy to jump to the conclusion that they seem to want multiple cakes, or at least multiple bites, by way of "public consultation", on the land swap itself, at planning and via this Select Committee

3. I was not sure, initially, if the suggestion of a relief road was relevant, it is not shown as such in the plans, although the 1st 200 meters of the access from the A3 at Douglas Road corner is designed in such a way as to be the start of such a relief Road. This is a strategic planning issue. The connection with Slieau Curn Park is only shown as emergency access. However there are other Island wide economic and political and social issues, such as housing shortage, better school infrastructure, access both from the A3 and the new estate roadways, affordable housing provision (25 out of 100 units), improved public land/facilities, etc. that Minister Teare, and perhaps his CoMin colleagues, might validly have taken into account in balancing the decision. The Select Committee may wish to examine these areas. At the end of the day there has been full public discussion and consultation via the planning process. Refusal appears to have turned on the resolution of the Michael relief road or bypass issue, rather than other planning considerations.

4. I do not follow this. Any development without the school playing field site could well have landlocked the school access wise

5. I have no instructions about the conservation area, but again this is a planning issue and appears to be adequately analysed by the inspector in his report

6. Dr & Mrs Naylor again raise issues of secrecy and tender. This was a commercial deal. Whilst one party is a government department that does not override the need for commercial considerations and as the development deal was between Heritage and Pinecrest, and Pinecrest owned the land with which DEC was to swap the playing field land, there was no other developer who could have had an interest in the playing field and land swap. Tender would/could not have served any useful

Legal advice: page 16 382 purpose. Any other developer would have had to come to an agreement with Mr & Mrs Lewis and Pinecrest. There is no evidence to suggest that there was another developer waiting in the wings to make Pinecrest an offer.

I now turn to my analysis of the relevant deeds. My commentary is in the right hand column in italics.

A 1 1 May Isle of Bishopswood Large area north of Lhergy Vreck Lane 1984 Man Trust Limited and east of farm buildings. Produce (purchaser) This Conveyance transfers the whole of Company Limited the area to be developed, the area with (vendor) potential for future development, Lhergy Vreck Farm buildings, and other land, including Lhergy Vreck Road itself and creates an easement of access to a water pump at Lhergy Vreck Farm which serves land, part of Ballachrink, owned and retained by the Vendor, IOM Produce, which had unrestricted and absolute rights of ownership of the land and roadway. No rights over Lhergy Vreck Road are created or referred to. However that does not mean that there were not rights over the Lhergy Vreck Road that existed or had been established and acquired by virtue of its status as a quarterland road. NB 10M Produce retained large areas of Ballachrink and Lhergy Vreck and an area of Intack to the east and to the north of the land sold to Bishopswood including Ballajackley and Whitehouse to the north of Baltic Road. Apart from the right of way to the pump house none of this land required access over Lhergy Vreck Road and no rights were granted or reserved. It is highly unlikely, in my opinion, that any rights over Lhergy Vreck Road existed or exist and serve the retained land 12 May Isle of Hastie, Farrant Appears to be south of Lane (Erinville) 1986 Man and Keig, Correct analysis. Sale off in respect of a Produce purchasers and field, part of Ballachrink, behind Erinville. Company executors Limited This field had not been transferred to (vendor) Bishopswood. Not relevant. No rights created over Lhergy Vreck Road

Legal advice: page 17 383

28 August Bishopswo Pinecrest No plan attached. Plan not needed. All 1987 od Trust Investments the land bought by Bishopswood on 1st Limited Limited May 1984, and also Knock e (grantor) (beneficial Tholt, owner) and acquired from Mr Cannell, is transferred Lewis to Mr & Mrs Lewis. The conveyance (grantees) schedules have been poorly drafted and do not indicate when Knock e Tholt NB this Pinecrest is became owned by Bishopswood, which is incorporated in surprising. No rights of way over the the Bahamas. Lhergy Vreck Road are granted, reserved Mr & Mrs Lewis or referred to. It appears that the abstract later transfer supplied to the Select Committee for this the land to a new company part of Lhergy Vreck was incomplete as it with the same transpires Mr & Mrs Lewis later name which is transferred the majority of this land back incorporated in to a different Pinecrest, which was the IOM and is incorporated in the IOM, by Deeds the current owner reference Dec 1988-65 and 66 both dated 1st November 1988. Pinecrest later sold off a substantial portion of Lhergy Vreck to Mr & Mrs Creasey by conveyance dated 19 May 1989. See T below 2 May Chester Lewis Station Road. Not relevant 1989 (vendor) (purchaser) 22 May Chester Lewis Kerrocruin. Not relevant 1989 (vendor) (purchaser) 18 Lewis Commissioner Affidavit of solvency referring back to Septembe for oaths deed of conveyance of 25 August 1987. r 1990 Technical document. Not relevant 18 April Simpsons Naylor Land south and east of farm buildings 1995 (vendors) (purchasers) Includes 10 acres of Lhergy Vreck estate and the house Little Acres. Mr & Mrs Creasey had acquired 12 Acres of Lhergy Vreck land from Pinecrest in 1989, as indicated above, and had then sold the majority of that land to Mr & Mrs Simpson by Conveyance dated 19 June 1992. Land which had belonged to Awlex is also included. However there is no reference to any rights of way over the Lhergy Vreck Road and the land is abutting the Baltic Road so no easement of necessity over Lhergy Vreck Road appears to have been created. In fact these fields have no direct connection to Lhergy Vreck Road and are certainly not contiguous with it. There appears to be no evidence of any rights of way over Lhergy Vreck Road in favour of Dr & Mrs Naylor in respect of this land.

Legal advice: page 18 384 [H 2 May 1 Creasey Naylor Not sure where this is 1995 (vendor) (purchasers) These fields are further east along Baltic Road and have no rights of way over the Lhergy Vreck Road either created or reserved by this Conveyance or referred to in the Deed as having been created by any other conveyance and no rights of necessity can have been created as they have no connection to Lhergy Vreck Road and are certainly not contiguous with it. Again there appears to be no evidence of any rights of way over Lhergy Vreck Road in favour of Dr & Mrs Naylor in respect of this land. 2 October Creasey Naylor Not sure where this is 1995 (vendor) (purchasers) Ditto with H above J 2 Creasey Naylor Farm house Septembe (vendors) (purchasers) This is a barn and a small area of land at r 1996 the top of Lhergy Vreck Road and a right of way is created over a yard. There is reference to the benefit the easement of right of way, over Lhergy Vreck Road, created in the conveyance from Pinecrest to Mr & Mrs Creasey and dated 19 May 1989. This property has rights of way over Lhergy Vreck Road for the benefit of its owners and their lawful visitors and invitees 22 August Creasey Davies Land on either side of track 1997 (vendors) (purchasers) Land immediately to the South of J at the top of the Lhergy Vreck Road. There also is reference to the benefits of rights, over Lhergy Vreck Road, created in the conveyance from Pinecrest to Mr & Mrs Creasey and dated 19 May 1989. This property has rights of way over Lhergy Vreck Road for the benefit of its owners and their lawful visitors and invitees 17 March Cyril Christopher On the Baltic Road further to the east. No 1970 Walker John Southall rights over Lhergy Vreck Road Cannel and Elizabeth (vendor) Anne Southall (purchasers) 3 June Isle of Christopher Grant of right to install tail drains for a 1980 Man John Southall septic tank, property Triskele on Baltic Produce and Elizabeth Road. No rights over Lhergy Vreck Road Company Anne Southall (vendor) (purchasers)

Legal advice: page 19 385 N 13 Isle of Robert Stewart Another large part of Lhergy Vreck to the November Man Kennedy east of the land owned by Pinecrest and 1987 Produce (purchasers) contiguous with Baltic Road. No rights Company (vendor) over Lhergy Vreck Road are reserved or granted. There may be an argument that quarterland rights exist up Lhergy Vreck Road from the A3 BUT in my view this is unlikely. 10M Produce owned a vast area of Lhergy Vreck, Ballachrink and other quarterlands including Ballajackley and Whitehouse on both sides of Baltic Road. When it sold off it would have been prudent to create or reserve rights of way to service any land it still owned. The fact none were created over Lhergy Vreck Road means, in my opinion, that there was sufficient access off Baltic Road and that Lhergy Vreck Road was not required as access. This is reinforced by the fact that there is a fencing covenant which prevents any access to/from this land via Lhergy Vreck Road. The same argument, ie access from Baltic Road would, probably, mean no historic rights existed over Lhergy Vreck Road as a quarterland road for this land. If they did they have, in effect, been surrendered or negated by the fence 0 1 Robert Pinecrest Lhergy Vreck November James Investments It is not clear why Mr & Mrs Lewis 1988 Lewis and (purchasers) recorded Sally transferred the land they had so recently DEC 1988 Lewis (1987) had vested in themselves, having — 65 (vendors) previously had it held for them, on trust, by Bishopswood, to the new Pinecrest and even less clear why it was transferred in two separate transactions by two separate deeds. This deed transfers Lhergy Vreck farmhouse, three field and the upper part of Lhergy Vreck Road where it turns to the south east at the entrance to Lhergy Vreck farm yard. No rights of way are referred to or created.

Legal advice: page 20 386 '1st Robert Pinecrest Lhergy Vreck November James Investments This conveyance includes the majority of 1988 Lewis and (purchasers) the Lhergy Vreck land and the Lhergy recorded Sally DEC 1988 Lewis Vreck Road running from the A3 north — 66 (vendors) east to the entrance to Lhergy Vreck farm yard. No rights are created by this deed over Lhergy Vreck Road, and even if they had they would have immediately merged and extinguished as they remained in common ownership. There is reference to a conveyance of the same date whereby Mr & Mrs Lewis had created rights in favour of a Premier Rank Properties Limited to which they had also sold part of Lhergy Vreck that day. By comparison of the plans attached to the two conveyances to Pinecrest and the plans attached to the conveyance described at A, above, it is possible to ascertain that the land sold to Premier Rank was a house on the Baltic Road called Bay View and that it had no rights of access over or connection to Lhergy Vreck Road 19th May Pinecrest Robert Charles Sale off of Lhergy Vreck farmhouse and 1989 I nvestmen Creasey and two fields, and part of two other fields, at is Limited Wendy top of Lhergy Vreck Road. Specific (vendor) Margaret Rights are given to the purchasers and Creasey subsequent owners of this land over the (purchasers) bottom half of Lhergy Vreck Road, ie the part that runs north east from the A3 to Lhergy Vreck Farm. These rights are a right of way for all purposes with or without vehicles at all times in favour of the owners of Lhergy Vreck Farm, their lawful visitors and invitees over the private road way coloured blue on the plan. These are the only written rights I have been able to find created over Lhergy Vreck Road. Given the division of this land and its subsequent sales there are now two properties with rights over Lhergy Vreck Road, namely Lhergy Vreck Farm and High Tilt

Legal advice: page 21 387 R 4th Isle of Robert Charles Part of Lhergy Vreck and Ballachrink and February Man Creasey some intack to the east of Lhergy Vreck 1991 Produce (purchasers) Road and to the south of Baltic Road and Company (vendor) with its only access via the Baltic Road. The intack is wrongly described as part of Whitehouse, which is to the north of Baltic Road and separated from it by Ballajackley. No rights over Lhergy Vreck Road. s 31st Awlex Robert Charles This is the land conveyed at N which Mr March Limited Creasey Kennedy had subsequently conveyed to 1994 (vendor) (purchasers) Awlex in 1991. No new easements or rights of way are created or reserved. The deed has many typographical errors and the plan is wrong and these defects were the subject of a later confirmatory conveyance and an explicatory affidavit! 19 June Awlex Ronald Part of the land conveyed to Mr Kennedy 1992 Limited Simpson and by N below. It is one field below Baltic (vendor) Rita Simpson (purchasers) Road. A specific easement of access or right of way is created to allow access to these fields from Baltic Road, the implication being they had no access rights over Lhergy Vreck Road. These have since been surrendered and extinguished. I can find no evidence of any other rights of way and certainly none over Lhergy Vreck Road viii. Are there any rights held by anyone else which could have affected the viability of the "Lhergy Vreck access"?

Apart from the owners of Lhergy Vreck farm, Dr & Mrs Naylor and the current owners of High Tilt, not on the documents currently provided to and inspected by me as part of my instructions. Although the titles are confused and piecemeal, it appears various parties acquired land, part of the larger Lhergy Vreck and Ballachrink estates, almost jig saw like, by a number of conveyances over a period. Much of the land they acquired does not appear to have the benefit of any right of way up the Lhergy Vreck Road. No rights appear to have been created except for those created by the Pinecrest to Creasey conveyance of 19 May 1989.

It is fundamental to the creation and existence of a right of way that the land over which the right is granted belongs to an owner and that the land which has the benefit belongs to a separate owner. It is also fundamental that the rights are subject to any specific terms, either authorising or limiting the exercise of the rights contained in the document creating or transferring them. The right is very wide. It does not give the two dominant tenements, Lhergy Vreck Farm or High Tilt, rights of

Legal advice: page 22 388 ownership so as to prevent the owner of Lhergy Vreck Road using it for his own purposes (including developing it and granting more rights over it) but it does allow unrestricted passage. It cannot be obstructed so as to limit the exercise of the right of way. The owners of Lhergy Vreck Road cannot obstruct or interfere with that right without the risk of civil sanction, damages for interference, by obstruction, and injunctive relief to stop interference. Of course development might interfere or it might not. I cannot say, but even if it did there are solutions and remedies.

However that is not a planning matter. And it has to be remembered that Heritage had acquired Cass a Lhergy, Westlands etc, so it is quite possible that they could arrange access to the development site for building and development operations (subject to beneficial planning) without interfering with those rights, and, what is more, the sheer fact that a road way was to be put in to serve the new estate with other people having rights over Lhergy Vreck Road, would not be an interference with the rights attached to Lhergy Vreck farm or High Tilt ix. If you had been advising the Minister for Education and Children in May 2011, how would you have assessed the likelihood that the rights referred to in the Naylors' letters of 9th May 2011 and 17th May 2011?

a. would have had a material impact on the viability of the alternative "Lherqy Vreck" access, and hence, b. on the value of the Department's land? c. Would you have recommended that the Department investigate further? a. I would not have advised they had any impact in planning law. The suitability of the access for planning was the much more important issue. It could not be accurately predicted what the outcome of a planning application using Lhergy Vreck Road might be, although the Dol Highways Directorate had indicated their satisfaction. b. I am not qualified to value, but the grant of planning must logically have increased the value of both the Pinecrest and DEC land, not the question of the legal rights of way. c. It would have been useful, but not essential, to have a full set of abstracts and to have marked on a large scale plan who owned what and what rights existed over the Lhergy Vreck Road in favour of each area of land and when and how it was created and in what terms it was created. BUT I stress that I am of the opinion that this was a planning, not a rights of way issue. I can, on request, still do this. There are three questions which are explicit, and stated differently to the questions I was instructed to answer, included in the Select Committee papers sent to me, as follows:

(a) whether the Naylors' rights could indeed have enabled them to block the use of the Lhergy Vreck access, as they claim;

Legal advice: page 23 389 (b) whether the use of the Lhergy Vreck access could indeed have been threatened by rights enjoyed by any other landowners in the vicinity, including Pinecrest Investments Limited/the Lewis family; and

For completeness I answer them briefly:

a. No, not without actual physical interference and that is not a given, especially as Heritage owned or had options over Cass a Lhergy, Westlands etc. b. Ditto. c. In my view probably not, as the more relevant and serious matter, by far, was the adequacy of the visibility splay at the entrance to Lhergy Vreck Road and Cass a Lhergy and Westlands etc and not the rights over the Lhergy Vreck Road. That matter had been the subject of the 15 April e-mail

In any event to consider the rights and the effect they might have the DEC and Minister Teare would have needed to be provided, by Dr & Mrs Naylor, and by legal advice, whether from the Attorney General's Chambers or externally, with full details if what the rights are and how they would have been interfered with and whether the rights, if interfered with would have had an impact on access. Dr & Mrs Naylor still have not spelled that out, their best or highest case is vague words such as "uncertain" and "might".

Legal advice: page 24 390 CONCLUSION

If I can be of any further assistance or if my opinion and advice raises further questions I would be pleased to answer any further questions

John Wright

2nd October 2012

Legal advice: page 25 391 392 MAP 1

393 394

396 MAP 2

397 398 Map 2

127 I

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Ballachrink Beg Cass A New boundary h Lergy wall to Cass 399

WORKING ON VERSION.dwg 400 MAP 3

401 402 Map 3

Kirk Michael Schaal Second Property

First Property

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