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Park Authority not to appeal Dalfaber decision

20th December 2006

The planning committee of the Cairngorms National Park Authority (CNPA) has decided not to appeal the decision taken by the Scottish Executive’s Inquiry Reporter’s Unit (SEIRU) with regards to planning permission for 104 houses at Dalfaber, Aviemore.

Head of Planning and Development Control at the CNPA, Don McKee explained: “Having refused planning permission for 104 houses on this site earlier in 2006, the Park Authority was naturally disappointed that the reporter in his decision dated 16 November 2006 allowed the applicants appeal and granted planning permission subject to 18 conditions.

“The CNPA sought Counsels opinion to see if there were grounds for applying to the Court of Session to have this decision quashed. Counsel considered there were grounds for challenging the decision principally around the reporter’s appreciation of the National Park’s status as a designation and his interpretation of the first aim: to conserve and enhance the natural and cultural heritage of the area.

“However, for many reasons the CNPA planning committee has concluded that it is not in the public interest to proceed with this.”

Meeting in Grantown-on-Spey on Friday (15 December), the planning committee considered how to proceed in light of Counsel’s advice. Discussions focused on whether it would be in the public interest to challenge the decision. A range of factors were taken into account:

  • An appeal to the Court of Session could cost a six figure sum which would have to be funded from the operating budget of the CNPA at the expense of other activities.
  • If the challenge was successful the decision would have to be quashed and the reporter would have to issue a new one. However, it is quite feasible that any new decision would be the same as the present one, particularly as the area in question is allocated in the current adopted Local Plan for Badenoch and Strathspey.
  • The conditions attached to the appeal decision allow the CNPA considerable scope to influence the layout, phasing and appearance of the development in the subtext of subsequent applications.
  • The CNPA has already stated that it wishes to have a general dialogue with SEIRU on the way in which the status of the Park and the statutory aims are reflected in the reporter’s deliberations in appeal situations.
  • With regards to the previous point, the CNPA may wish to focus wider public discussions and debate on these issues through the Local Plan, due to go on deposit in June 2007, rather than in the context of a court hearing in Edinburgh with the possibility of a decision that could create legal precedent taken by a judge.

Members discussed the matter at length and found this a very difficult decision to take, especially as the CNPA had received confirmation from Counsel that the reporter’s decision was effectively a flawed one. After weighing up the various issues however, members resolved that it would not be in the public interest in this instance to appeal against the reporter’s decision. Central to this decision were the following points:

  • A six figure cost with the prospect of effectively the same decision by the reporter at the end of the day.
  • The considerable influence that the CNPA will still have via the conditions.
  • The relatively imminent deposit of the CNPA Local Plan that will clearly provide a Park-centric focus for future appeal decisions and the understanding that a reporter’s decisions contrary to the CNPA Local Plan would be vigorously challenged.
  • Urgent pursuance of the recently initiated dialogue with the SEIRU to ensure that future appeal decisions are not flawed.

Don McKee added: “This decision has been taken in the wider public interest. The Park Authority appreciates that there is a considerable body of opinion around the site in question that will be disappointed and may find the CNPA’s decision a hard one to comprehend.

“This is understandable but the various factors referred to provide the context for what was a very difficult decision – one where there was much tugging between heart and head.

“We can assure people however, that the Park Authority will continue to safeguard the interests of the community in Dalfaber in its consideration of any future planning applications.”