Ken Kinrade, Chief Executive of the Department of Local Government and the Environment, admitted that, with hindsight, it would have been better for a new planning application to have been submitted to deal with a controversial planning condition included within the approval for the Poachers Pocket development in Ballasalla.

Mr Kinrade was giving evidence to the Tynwald Select Committee, chaired by House of Key’s Speaker, Steve Rodan, on Thursday 31^st January, regarding the approval by Ian McCauley, the Director of Planning, using delegated powers, of information relating to condition 19 of the planning approval.

Condition 19 relates to a flood alleviation scheme to protect the proposed new dwellings.

Members of the Ballasalla and District Residents’ Association (BADRA) claim that the approval allowed substantial changes to what had originally been discussed, before the Independent Planning Inspector, at the Appeal hearing; and therefore a fresh application should have been required.

They drafted a Petition of Doleance but, owing to a lack of funds, they didn’t take the matter the whole way to Court.

Unknown to BADRA, the Department took legal advice on the draft Petition and were advised that a fresh application should have been lodged.

However, as Mr Kinrade explained to the Committee, because BADRA didn’t pursue the case, the decision had to stand as the Department does not have the power to reverse it.

Many of the issues raised by this case, and others, would be considered by the Department as part of the review of the planning procedures and hopefully a method of correcting ‘mistakes’ could be found that avoided the need for court action.

Chairman of the Planning Committee, Claire Christian MLC, was first to face questioning by the Committee and was asked about her role as Chairman.

Mrs Christian stated that she has been the Committee Chairman since July 2005 and was in position before the new Regulations were adopted by Tynwald in November 2005. Under the new Regulations she decided, with the assistance of a senior planning officer, who was not the Director, which applications would be considered by the Planning Committee and which could be determined, by delegated authority, by an officer.

The scale of the proposals, any planning history and the number of representations were some of the matters taken into consideration when she made her decision.

Under the new Regulations decisions relating to planning conditions was delegated to the Director. This was one of the ‘balancing’ measures taken following the introduction of the planning committee sitting in public; which had resulted in additional administrative work.

Committee member, Michael MHK, David Cannan raised concerns about a loss of a democratic process by allowing a bureaucrat to determine some applications.

Mrs Christian reassured him that many of the delegated decisions were to do with trivial issues, such as the colour of roof tiles, and the decision would be the same even if it went to the planning committee. In any case, Mrs Christian argued there is an appeal process for applications and the Director could exercise discretion, in respect of planning conditions, and refer them back to the planning committee.

Mr Cannan didn’t think the subject matter, being investigated by the Select Committee, was trivia; and that the delegated powers exceeded the public interest.

He also suggested it was strange that the Director hadn’t exercised his discretion in respect of this planning condition, which was clearly contentious.

Mrs Christian said he would have to ask the Director that question.

During questioning, it became apparent that there is no obligation on the planning department to notify the public, or even ‘interested’ parties, of the submission of information required by planning conditions; but that it is done ad hoc and only as a matter of courtesy.

A debate ensued regarding what the Inspector may have or may not have understood was going to happen once he made his recommendation, whether a reserved matter would have been preferable to a condition, and whether the plan submitted to satisfy the condition was a major change to the original proposal.

Mrs Christian said it was all a matter of degree and interpretation; but restated that the Inspector had decided the matter could be dealt with by a condition.

She did concede that in retrospect, and looking at the matter from a political prospective, it should have gone to the planning committee; even though there was no legal, or from a professional view, requirement for it to go to Committee.

Mr Cannan pressed Mrs Christian to admit that the Director had committed an error of judgment; but she said she didn’t know.

Juan Turner MLC, the third member of the Committee, wondered whether the interested parties had been mislead by a letter issued, by the secretary of the planning committee, in response to calls for a new planning application. The letter apparently stated that a case for a new application was being assessed. Mr Turner continued to say, then without any further notice to the interested parties the Director makes the decision that the information satisfies the condition.

Mrs Christian, having heard what Mr Turner had to say, thought he was right; but claimed not to have seen any of the correspondence.

Mr Rodan asked if Mrs Christian if she thought that any lessons had been learned from the experience with the Poachers Pocket application.

Mrs Christian said that the Minister had determined that a revision to the delegation would be made but otherwise they were awaiting the outcome of the review of the planning procedures.

Mr Rodan put it to Mrs Christian that by making a change, to the Director’s delegated powers, it was an admission of failure or at least an acceptance that something was not quite right.

Mrs Christian suggested they ask the Minister; and made it clear that she had not been consulted by the Minister about the change.

Ian McCauley, Director of Planning, explained that when he first joined the DLGE, in July 2001, he had no delegated powers. These were introduced in November 2001; but the powers were limited and excluded applications for which objections had been received.

Mr McCauley said the Committee had to bear in mind that 80% of applications were approved without any objections.

Moving onto the introduction of the new regulations - which allowed the Director to determine opposed applications and make decisions in respect of conditions – and the planning committee sitting in public, Mr Rodan asked Mr McCauley if he thought the system was working well.

Mr McCauley thought it was; although he said that the public wanted to speak at planning committee meetings.

Mr Rodan wondered if this facility could be incorporated into the proceedings; particularly if it allowed an opportunity for mistakes or misunderstandings to be addressed.

Mr McCauley said it was a matter for the Department to consider, but didn’t rule out the possibility. He explained that the new procedures had been a big change and perhaps allowing the public to participate was too big a change. In any case, he said, the applicant had the opportunity to read the planning file, including the planning officer report, prior to a decision and, if it was likely to assist the gaining of approval, they were able to submit an amended plan or submit additional correspondence.

Mr Rodan wanted to know if the Director applied a check list or certain criteria when deciding whether to use his delegated powers.

Mr McCauley said that generally, as the applications had been referred to him by the Chairman of the planning committee, he assumed it was appropriate for him to determine the application. Sometimes, if he disagreed with the planning officer’s recommendation, for example, he may decide to refer the application back to the planning committee. He had to use his judgement.

He confirmed that he did sometimes make decisions in respect of ‘large’ applications or when a revised layout was submitted, as a new application, on one previously approved.

Mr Cannan inquired if that meant he made decisions on amended plans.

Mr McCauley again confirmed this was the case if the application wasn’t ‘contentious’ or no objections had been received. He was at pains to emphasize that in regard to the Poachers Pocket application it was not an amended plan but a detailed plan to satisfy a condition.

He also made it clear that he had nothing to do with notifying parties that a detailed plan had been submitted, but admitted that he assumed this had occurred because the application was contentious. He said he used his professional judgement to decide whether objections to the proposal were substantiated. In his opinion they were not and, in reaching his conclusion that the condition was satisfied, he also took into consideration that the Inspector had decided the issue did not require a fresh application and the Dept. of Transport were satisfied.

Mr Rodan inquired whether the opponents should have had an opportunity to ‘test’ the DOT’s evidence. “In my opinion, no” replied Mr McCauley.

Mr Turner queried the increase in the height of the plots on the ‘detailed’ plan.

Mr McCauley said that he had stepped aside and allowed planning officer, Fiona McMullen, to take over and he was satisfied with her decision. “It’s all a matter of fact and degree” he claimed; and said the Committee would need to take view on that.

Mr Rodan said they were only looking at the process that the application had been subjected; and asked if he had taken legal advice when the claims were made that the submitted plan amounted to substantial changes to the approved application.

Mr McCauley replied that he had taken advice, and he was satisfied that it did not need a new application; and reiterated that he took the view the changes were not substantial enough to require a new application.

Mr Rodan responded by saying that the Department had asked for legal advice, when the draft Petition of Doleance was issued, and that had said it should form a new application.

Mr McCauley said he didn’t agree with the opinion because they had been working on the wrong premise. It was a condition not a reserved matter.

Mr Rodan strangely suggested that the Independent Planning Inspector had acted ultra vires in dealing with the matter as a condition and not a reserved matter.

Mr McCauley was satisfied with the manner in which the Inspector dealt with the issue.

Mr Turner quizzed Mr McCauley about the ‘misleading’ letter from the secretary of the planning committee.

Mr McCauley conceded that there had been a failure in not notifying the parties that a decision had been made that a new application was not required.

Mr Rodan wondered whether in retrospect Mr McCauley would have done things differently, and he agreed that with the benefit of hindsight he would have.

The issue of the perception of ‘bias’ was raised by Mr Rodan, in that Mr McCauley had presented the planning committee’s case at the Inquiry and then been involved in the issue of satisfying the planning conditions.

Mr McCauley said that at the time he had not thought about it – but perhaps he thought otherwise now.

Mr Rodan then asked if Mr McCauley had anything to add before he left.

He responded by saying he didn’t think the Committee had asked many questions directly related to their remit, the wording of which he found confusing. He said that he accepted that the case turns on whether there were major changes in the ‘detailed’ plan but it came back to what he had maintained before - that it did not.

He also made the point there was another party to the issue, the applicant, and they had a right to work to the granted planning approval.

He summed up by saying, “It will remain a bone of contention, between the parties, whether it needed a new planning application.”

Secretary of BADRA, and an adjacent landowner, David Alsebrook was last to be questioned by the Committee.

He explained that originally the applicants had denied that the site formed part of flood plain but had later conceded that it was; and that when the adjourned appeal hearing had recommenced the applicant had come back with a scheme – most of which involved his land.

BADRA wouldn’t have objected if the plan, to satisfy the condition, had been along the lines of the original proposal; but it wasn’t – in fact he said what had resulted was a ‘disaster’.

He claimed that trees had been removed and the remainder would die because the ground level had been raised by one and half feet; not the deminimus amount claimed by the Department.

He said that the Association was so disgusted by the affair they would never accept conditions again for significant issues; but would press for a reserved matter and a new application to be submitted in future.

Mr Alsebrook did not want to blame the DOT but they had got it wrong.

The changes to the original proposal, he claimed, “were an engineering convenience and destroyed the landscaping; and would not prevent flooding.”

He said that even if the opponents were entirely wrong, the proposition – that the evidence from both parties should be tested through a new application – was correct.

The final question from Mr Rodan, asking whether BADRA expected the applicant to have contacted them to discuss the issue, drew the response from Mr Alsebrook, “relations have deteriorated so much it is unlikely to happen”.