I am very disappointed to see the state of the planning system and decision making process in Shetland as witnessed by the recent Co-op application in Scalloway.
I have been moved to put pen to paper and go public which is not something I do lightly or often but this recent decision on top of several others, raises concerns about the whole system and how it has come to operate.
I should first declare an interest in that I trained as Town Planner and am still a member of the Royal Town Planning Institute and practiced for a number of years south. I also have done some planning work as a consultant within the economic consultancy business I have run for over 25 years from Scalloway.
I should also make it clear at the outset that I have no wish to criticise fellow planners and I do have some sympathy with the difficult job they have in trying to work through the maze of legislation and constraints on how the system operates.
However there does seem to have been a tendency to not ask searching questions of developers and to play safe and accept what is presented whether it is actually true/correct; or question whether it is indeed in compliance with policy as stated in the Shetland Local Development Plan (SLDP).
There seems to be a fear of being challenged by developers who could appeal and claim compensation despite this not being a material consideration in planning terms. In some cases developers may try to do this but it would at least test the system and help to clarify the interpretation of policy.
The policies as stated in the SLDP are at the centre of this and may well be the root of the problem in that they tend to be expressed in such a general way that they can be interpreted in different ways and thus open to challenge. It is the responsibility of the council to ensure they are as clear as possible.
The council cannot hide behind national planning policies or planning law and legislation and say it is all their fault as suggested by Ms. Macdonald, the chair of planning. It is the Local Development Plan approved by the council, which is the key document, even though there may be some amendments made to it by central government.
It is also not helpful for the chair of planning to attack a fellow councillor in public and accuse them of not understanding the role of the committee and expressing personal opinions. Unfortunately, the planning committee did not seem to have adequate relevant information in front of them in order to have a meaningful discussion and make a reasoned decision. The remarks made suggest the chair of planning does not understand how the process should work (as distinct from how it does work).
Neither is it a black and white process based on planning legislation. It is much more nuanced and based on the interpretation of what policies actually mean. The process does not involve much that could be considered technical, except possibly in relation to roads and drainage issues. It is based on professional judgements, made as objectively as possible, with some knowledge of the planning system and constraints.
The Scalloway Co-op case is a very good example of the system failing to reach the right conclusion in line with council policy. This is not a personal opinion. It is an objective professional assessment based on the facts and on council policy statements.
The decision will only serve to further undermine the SIC SLDP. It will become a worthless document with words and policies that can be ignored or interpreted in a way which is a distortion of what was meant by them.
This is a crucial point as the planners are interpreting what the policy means. It is their opinion or professional judgement. It does not seem to be based on any complex technical calculation or analysis of planning law. In this case there is no explanation or justification to show how the project does comply. Unless they can come forward with some explanation it is clear they got it wrong. How, by any stretch of the imagination, can you argue that the project complies with stated SLDP policies GP1, GP2, ED1, ED2 and supplementary guidance on business and industry SGED8, to name the main ones.
Where is the evidence? There is none, just broad sweeping statements which says it does comply. Yet the council policies clearly state that projects should “enhance the viability and vitality of existing settlements”, “It should contribute to strong healthy vibrant and sustainable communities”, “support should be given to proposals for retail, commercial and business development that will contribute to the viability of existing settlements” and “ outside Lerwick proposals to create new or to extend existing retailing developments will only be accepted if they can satisfy the planning authority the new proposal cannot be met in an existing shop unit or on a vacant site within an established settlement”.
The onus is on the applicant and the planning department to prove that these policies are being followed. This has not happened. No substantive or accurate or independent evidence has been presented, only general unsubstantiated statements. I would never have got away with that when I was a planning officer and quite rightly so. Why did the council not seek an independent professional assessment of the case rather than rely on the developer’s assessment?
If the council wishes to be open and transparent and if, in the professional opinion of the planning officers the proposal does meet policy, it needs to be spelt out why and how it does based on reasoned judgements and an independent assessment of the facts. There should be no hiding behind a regulatory smokescreen.
Nor should you hide behind the fact that you are not supposed to take account of the impact on another business when there is a much bigger and wider picture. The vitality and viability of town centres has long been accepted as a material planning consideration; in this instance, however, the officer’s report eliminates that issue by arguing that, because Scalloway is not regarded as a ‘town’ and (it is claimed) has no identifiable centre, those criteria do not apply.
In fact, Scalloway does have a very obvious centre, with virtually all its retail facilities clustered on Main Street. There is, sadly, a failure here to use judgement to adapt national guidance to local circumstances. In some situations, we may be right to argue that national policy does not fit Shetland circumstances, but in this case it would have been perfectly possible to exercise reasonable judgement and interpret that policy in a way that had proper regard for the Scalloway situation.
The chair of planning made it clear that personal opinions were not valid yet the convener is quoted as giving a number of personal opinions and suggesting that we should not be entering into competition issues.
Yet he was effectively using competition arguments to support the case in direct contravention of the fact that a planning decision should not be based on the impact on an existing business. It was arguing that this project would lead to more consumer choice and lower prices. How is it doing this? i.e.it is by changing the market and intervening in the competition system!
It seems that the one rule for some and not for others applies in Shetland as well as nationally!
There is of course no recourse for the community as it is not possible for a third party to appeal the decision; as a developer could if they were turned down. The only alternatives are a judicial review, but that is likely to cost a lot in legal fees; or an appeal to the local government ombudsman, but the grounds for an appeal are very narrow.
If the council policies are indeed meaningless waffle that can be interpreted any way you wish or have been overridden by other policies, then the council should amend and update them.
Despite the failings of the system in this case I still strongly support the need for a planning system, but one which is open and transparent, based on unambiguously stated policies, and decisions justified on clear grounds based on the policies. Also it needs to be a system that has the support and backing of the community. I was trained in the Skeffington principles of public participation and engagement. These seem to have been forgotten.
There was a comprehensive consultation process undertaken in Scalloway under the Recreate Scalloway banner and the council formally adopted a Local Place Plan as supplementary planning guidance, but it had now decided to ignore it as of lesser “material” significance. So much for public consultation.
The sad fact of this decision is that the facilities and services available in Scalloway are going to be affected and Scalloway may end up with poorer choices and fewer amenities unlike the claim (personal opinion) from the convener. It is also likely to make the task of regenerating the centre and waterfront in Scalloway more difficult. Scalloway Community Council and Scalloway Community Development Company will have to redouble their efforts in order to address the fallout from this decision.
Unfortunately this case is not a one off as there are other examples where the council has ignored, or interpreted their own policies in an inexplicable way, to permit something that clearly breaks their policies.
I would hope as a matter of urgency that the council pushes for a comprehensive review/update of the SLDP to be higher up the agenda, so that we can have a more transparent, user friendly and workable local development plan. I understand work has been ongoing for some time but seems to have disappeared down a black hole. It needs to be resurrected and completed within a short timescale rather than some time in the next five to 10 years.