Response on behalf of West Craigs Limited 1 INTRODUCTION 1.1 We act for West Craigs Limited, and have been instructed by them to submit a response to Scottish Government following the City of Edinburgh Council’s response dated 5 April 2019 to the Scottish Government’s letter of 7 March 2019. 1.2 The Council has produced four different draft versions of its Supplementary Guidance (SG) following the adoption of the Edinburgh Local Development Plan in November 2016. Our clients have submitted responses to these drafts, and copies of those should already have been made available to you. For completeness, we enclose copies of our clients’ submissions. 1.3 The Council’s response is 39 pages and accompanied by a significant amount of supporting material. The response contains new explanations from the Council as to its approach, as well as new submissions of policy and fact. These submissions were not provided by the Council when responding to third party representations on the various different versions of the draft SG. 1.4 Our clients previously raised concerns regarding the Council’s failure to undertake proper and meaningful consultation on its draft SG, constituting a failure to comply with the requirements of Section 22 of the Town and Country Planning (Scotland) Act 1997 and Regulation 27 of the Town and Country Planning (Development Planning) (Scotland) Regulations 2008. The extensive nature of the Council’s response illustrates its failure to provide sufficient information during the consultation process. 2 QUESTION 1 LDP POLICY DEL 1 AND CIRCULAR 3/2012 2.1 In response to question 1, the Council make various submissions on policy Del 1 of the Edinburgh Local Development Plan, and Circular 3/2012. The purposes of these submissions is not entirely clear. However, the Council appear to be saying that, insofar as there is a difference between policy Del 1 and the Circular, preference should be given to policy Del 1. In the Council’s submission, both the policy and the Circular are material considerations. 2.2 The purpose of Supplementary Guidance is explained in Circular 6/2013 on Development Planning at paragraph 135: “Scottish Ministers envisage that to allow plans themselves to focus on vision, the spatial strategy, overarching and other key policies and proposals, that much detailed material can be contained in Supplementary Guidance.” 2.3 Paragraph 139 sets out suitable topics for Supplementary Guidance, and states that Supplementary Guidance should not include: “items for which financial or other Live: 45422094 v 1 contributions, including affordable housing, will be sought, and the circumstances (locations, types of development) where they will be sought”. 2.4 It is clear from Circular 6/2013 that it is not the function of Supplementary Guidance to seek to create new policy, but to provide further detail to existing policies within the LDP. 2.5 The Council do not specify in what way policy Del 1 may be said to differ from Circular 3/2012. Rather, their point appears to be that the requirement for Supplementary Guidance in policy Del 1 is, in itself, a justification for the current draft document. With respect, that submission cannot be correct. That policy Del 1 requires Supplementary Guidance does not remove the need to consider the content of the draft guidance, so that the planning authority, Scottish Ministers and other interested parties can consider its terms against the relevant legal requirements and national planning policy. 2.6 In any event, there are no submissions from the Council that policy Del 1 does not accord with the Circular. Indeed, policy Del 1 was substantially modified on the recommendation of the examination Reporters to ensure its compliance with the Circular. At paragraph 30 on page 761 of the examination report, the Reporters state: To achieve compliance with the 2012 Circular I consider revision of Policy Del 1 is required to establish the broad principles, including the items (generally) for which contributions will be sought and the occasions when they will be sought.” 2.7 In our submission, if Ministers are of the view that the draft SG does not accord with the national planning policy contained in Circular 3/2012, then it follows that it will also fail to accord with the relevant parts of policy Del 1. 2.8 The Council also refer to the 2017 Supreme Court decision in Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Co Limited. The approach to the use of national planning policy such as Circular 3/2012 was considered at paragraphs 53 – 54 and 60 of that decision. As the Council has correctly identified, the Circular is policy not law. However, the Supreme Court did go further than the Council’s submissions on the application of national planning policy. In particular, they made it clear that, given the fact the Circular is an expression of national policy, if a decision maker is seeking to depart from its terms then they need to make that position clear and give reasons. 2.9 There are no submissions from the Council as to why a departure from the tests in the Circular would be justified in this case. Moreover, there were no submissions from the Council during the LDP process in respect that policy Del 1 did not accord with national planning policy. As noted above, the Examination Reporters recommended extensive modifications to policy Del 1 to ensure it did comply with the Circular. 2.10 Insofar as the Council are seeking to justify the draft SG, notwithstanding compliance or otherwise with the Circular, in our submission, their case has not been made out. Policy Del 1 was modified to ensure compliance with the Circular, and there was no suggestion to the contrary. The draft SG requires as a matter of law to confirm to the LDP, including policy Live: 45422094 v 1 2 Del 1. If the Council wished to put in place a policy document that did not accord with national planning policy then they were required to give reasons for doing so. That has not been done. The proposition that the draft SG should be adopted simply because there was a requirement for such a document in the LDP is not a good one. POOLING OF CONTRIBUTIONS 2.11 On page 7 of their response, the Council say: “In simple terms, within each contribution zone, contributions are pooled and along with any allocated front funding, are used to deliver each new piece of infrastructure at the appropriate time.” 2.12 Not all infrastructure within a contribution zone is needed for each development within that zone. For example, the LDP (as well as the draft SG and Action Programme) identify a requirement for a new primary school on site HSG 19. This primary school will serve new housing on sites HSG 19 and HSG20. West Craigs Limited’s appeal for residential development of the majority of site HSG 19 (DPEA reference PPA-230-2207) has been upheld subject to completion of a legal agreement securing developer contributions. 2.13 The Council’s position in respect of Site HSG 19 is that the developer contributions payable towards non-denominational primary school education should be calculated by reference to, and for the purposes of, delivering a new primary school. Whilst other non-denominational primary school infrastructure is also identified for the contribution zone (an extension to Gylemuir Primary School), it is not disputed that this school extension is not required either cumulatively or individually for development of sites HSG19 and HSG 20. The use of contributions from sites HSG 19 and HSG 20 to fund that extension would fail the “more than trivial” connection test set out in Elsick. This will likely be the case in other contribution zones. 2.14 The draft SG (page 14) confirms that unused contributions will be held for a period of years and then repaid if they have not been utilised. However, this commitment is undermined if contributions are used on a “pooled” basis, rather than for the infrastructure for which they were collected. 2.15 It also produces a disconnect between those developers paying contributions and the delivery of infrastructure. Using our clients and HSG 19 as an example, if contributions paid by developers of site HSG 19 for the new primary school were actually used by the Council to fund other, unrelated, primary school infrastructure within that zone, it is not clear how these funds would be replaced. 2.16 The Council intends to pool contributions across a contribution zone to deliver various different infrastructure. The Council appears to have acknowledged this this could include infrastructure that is not required for the development from which contributions have been secured. The Council’s response also confirms that it will apply contributions in accordance Live: 45422094 v 1 3 with its own Action Programme timetabling requirements. This may not be linked to the infrastructure required for a development from which contributions have been secured. 2.17 Scottish Government’s question 1 highlighted that “planning obligations should clearly specify the purpose for which any contribution is required, including the infrastructure to be provided (Circular 3/2012)”. 2.18 The Council’s response appears to confirm that it may not use contributions for the purpose for which they are originally required. This approach is not consistent with the requirements of Circular 3/2012. 3 QUESTION 2 3.1 At page 4 the Council relies on the text in paragraph 141 and appendix C of the LDP as setting the basis for education interventions. On the basis of this text, it is the Council’s position that the LDP does not prescribe or limit what the school capacity of new school actions should be, and these are matters left to the SPG.