Decisions issued 2017-2018
Halfway Community Council
Participation Request Decision – dated 15 December 2017
I refer to your participation request received by the Council on 10 November 2017 in which you ask that Halfway Community Council participate in an outcome improvement process and in which you state that “The outcome to which this request relates to is the legal agreement that was signed between Persimmon Homes and SLC and the detail in that document in relation to (a) the community gain money and (b) the wider improvements that are expected to the infrastructure in Cambuslang East to cope with the increase in population.”
Although you do not provide a specific reference to the legal agreement, I assume that it is the Planning Obligation by Minute of Agreement entered into between the Council as planning authority, Alan Michael Barns-Graham as landowner and Persimmon Homes Limited as planning applicant in relation to the proposed development at Gilbertfield relative to planning consent number CR/15/0239 and registered in the Land Register for Scotland against title number LAN182904 (“the Agreement”).
In considering your request, the Council had regard to the wording of Section 22(1) of the Community Empowerment (Scotland) Act 2015 (“the Act”) which states: “A community participation body may make a request to a public service authority to permit the body to participate in an outcome improvement process.”, and also to the wording of Section 22(7) of that 2015 Act which defines an “outcome improvement process” as “a process established or to be established by the authority with a view to improving an outcome that results from, or is contributed to by virtue of, the provision of a public service”.
The Council also considered the status of a planning obligation. A planning obligation is a binding agreement by a landowner in terms of Section 75 of the Town and Country Planning (Scotland) Act 1997 which states that :(1)A person may, in respect of land in the district of a planning authority (a)by agreement with that authority, or (b) unilaterally enter into an obligation (referred to in this section and in sections 75A to 75C as a “planning obligation”) restricting or regulating the development or use of the land, either permanently or during such period as may be specified in the instrument by which the obligation is entered into (referred to in this section and in those sections as the “relevant instrument”).”
The planning obligation is agreed with the planning applicant as part of the statutory planning determination process and the extent of the planning obligation is fixed before the planning consent is issued. The planning obligation is enforceable by the Council in the precise terms of the agreement and the Council has no discretion to deviate from it. Therefore, it is the Council’s view that a planning obligation is not an outcome improvement process as defined by the Act and so is not a process in which a community participation body is entitled to participate in terms of the Act.
The Council then considered if the Council could consider your participation request as a request to participate in the performance of the Agreement and the enforcement of it by the Council.
In deciding if it could accept your request, the Council, firstly, had regard to the terms of the Agreement which sets out the developer contribution requirements as affordable housing and financial contributions. The financial contributions are for works required to St Cadoc's and Cairns primary schools, Cathkin and Trinity high schools, Halfway Hall and Library and for affordable housing. Contributions of £5,000.00 for a bus shelter and £15,000.00 for a park and ride study are also required.
The Council took the view that, as the purpose of the Agreement is to contribute to the provision of public services, the Council could consider your participation request as a request to participate in the performance of the Agreement and the enforcement of it by the Council
Having accepted your participation request, the Council then considered if it could agree or refuse it. In doing so, the Council noted that Section 24 of the Act sets out the matters which the Council must take into account when deciding to agree to or refuse a participation request. These matters are the reasons and any other information set out in the participation request and whether agreeing to the request would be likely to promote or improve economic development, regeneration, public health, social wellbeing, or environmental wellbeing. Section 24 also states that the Council must consider whether agreeing to the request would be likely to reduce inequalities of outcome which result from socio-economic disadvantage, to lead to an increase in participation in the outcome improvement process to which the request relates by persons who experience socio-economic disadvantage, otherwise to lead to an increase in participation by such persons in the design or delivery of a public service the provision of which results in, or contributes to, the specified outcome mentioned in the request, any other benefits that might arise if the request were agreed to, and any other matter (whether or not included in or arising out of the request) that the Council considers relevant.
The Council again looked at the terms of the Agreement and looked at the developer contribution requirements in the context of the planning decision-making process and noted that the requirements were negotiated with the planning applicant and justified by the Council as necessary for a planning purpose as part of the planning process and in accordance with the tests set out in statutory guidance being Scottish Government Circular 3/2012 “Planning Obligations and Good Neighbour Agreements”. The Council considered the specific terms of the Agreement which state that (i) the contributions are payable per completed residential unit annually in arrears and (ii) if the contributions paid by the developer are not used by the Council for the purpose set out in the agreement, the funds collected must be returned to the developer. The Council took the view that the contributions are for specific purposes already agreed as part of the planning process and if not used for those purpose must be repaid to the developer.
The Council then had regard to the reasons as set out in your request that Halfway Community Council as a statutory body with the general purpose to ascertain, co-ordinate and express to the Council and other public bodies the views of the community of Cambuslang East in relation to matters for which the Council is responsible, and, that Halfway Community Council wants to make sure that all commitments and agreements are fully implemented to benefit the community within Cambuslang East. Your request lists these matters as addressing inadequate community facilities and amenities, poor access to NHS services, high pollution levels, lack of green spaces in Cambuslang East, inadequacy of parking in several areas, unsafe roads and no high school provision.
The Council then had regard to Section 24(5) of the Act which states that: “(5) The authority must agree to the request unless there are reasonable grounds for refusing it.”
The Council took the view that the as the terms of the planning obligation are prescribed as contributions for certain schools, for Halfway Hall and Library, for affordable housing and for a bus shelter and a park and ride study, the Council cannot use any of the contributions for the reasons set out in your participation request. Accordingly, none of the objectives of Section 24 of the Act would be met and that these are reasonable grounds for refusing your request.
As required by Section 24(6)(b) of the 2015 Act, the Council must give reasons for refusing a participation request. The Council’s reasons for refusing this participation request are, for the foregoing explanations:-
1. A planning obligation is not an outcome improvement process as defined by the Act and so is not a process in which a community participation body is entitled to participate in terms of the Act; and
2. The contributions due in terms of the Agreement are for specific purposes which have already been agreed. As the contributions cannot be used for the purposes set out in the participation request, the objectives of Section 24 of the Act cannot be met.
Head of Planning and Economic Development
Boghead Community Council
Participation Request Decision – dated 4 October 2017
I refer to your email dated 21 August 2017 submitting a Participation Request under the Community Empowerment (Scotland) Act 2015. The outcomes that Boghead Community Group wish to be involved in were stated to be as set out in your letter of 28 July 2017 and were:-
- Traffic calming on Lesmahagow Road, Boghead;
- Improved non-vehicular connections to neighbouring communities; and
- A Temporary Traffic Regulation Order (TTRO) on Lesmahagow Road
As regards your request for a Temporary Traffic Regulation Order closing Lesmahagow Road for a community event, you also asked for the Council to meet the costs of this. As you will be aware this has been agreed to by the Council who have met the costs of £2,022 to enable your event to take place.
We have carefully considered the other parts of your request and would advise that:-
1. Traffic calming on Lesmahagow Road, Boghead
The email sent to yourself by the, Roads Engineering Manager on 17 July 2017 explained the reasons why the Council does not consider there to be a justification for reducing the speed limit in the area or for other measures to be taken as regards traffic. There do not appear to have been any changes in circumstances or the location since that email and the Council’s position remains as stated in it and regretfully we do not feel able to proceed with this part of your request at this time.
2. Non-vehicular connections to neighbouring communities
We understand this relates to the community's wish to have a cycle path between Boghead and neighbouring communities as per your recent discussions with Sustrans and the Council’s Access Officer. The Council's has published its cycling strategy for 2015-2020 and this can be found at http://www.southlanarkshire.gov.uk/downloads/file/10930/cycling_strategy_2015-2020
This strategy was prepared following a period of consultation, which included with South Lanarkshire Cycling Partnership and includes, at Appendix 1, a list of the cycling projects schemes to be progressed by the Council once funding is secured. Unfortunately Boghead does not appear in any of the proposals identified through this consultation.
Should you wish the Council to consider projects for future editions of the strategy then we would be keen for these to be submitted. Also, Boghead Community Group, as well as any other groups or individuals would be able to make representations at any time in relation to desired cycle / walking routes. Accordingly we are agreeable to this part of your request and look forward to receipt of any representations that the Group wish to make.
Head of Roads and Transportation Services
Cambuslang Community Council
Participation Request Decision – dated 21 August 2017
I refer to your email dated 23 July 2017 to the, Head of Planning and Economic Development submitting a Participation Request under the Community Empowerment (Scotland) Act 2015.
Having considered the matters set out in your Request the Council has agreed to accept it. Accordingly please treat this as a Decision Notice in terms of Section 25 of the Act.
Your Participation Request asks for:-
“the immediate participation of Cambuslang Community Council in the process of designing, commissioning, managing and conducting the planned feasibility study for a Park and Ride in Summer/Autumn 2017 and the wider processes of planning and implementing parking provisions in Cambuslang”.
In accordance with the requirements of Section 25(2) I would advise as follows:-
(a) The outcome improvement process is to carry out a feasibility study for Cambuslang Station Park and Ride facility. There are currently no other studies or strategies under consideration by the Council in respect of parking in Cambuslang;
(b) The current position is that the Council has obtained funding from SPT to carry out the study. However the Council is currently reviewing its Park and Ride strategy for all of the South Lanarkshire area. Once a decision has been taken on this strategy we will contact Cambuslang Community Council to advise them of the implications of that decision for the proposed Cambuslang Park and Ride study;
(c) Should the Cambuslang Park and Ride study proceed we will provide you with a copy of the proposed scope for the study which will be the basis on which the Council will seek tenders to carry out the work. Your comments on the proposed scope will be considered by the Council and you will be advised of any changes which the Council propose to make in response to these;
(d) Thereafter the Council will procure a consultant to carry out the study through the Council’s professional services framework. Once a consultant has been appointed we will provide you with the identity of the consultant appointed;
(e) Part of the requirements of the study is that the consultant will undertake consultation with, among others, Cambuslang Community Council. This will involve regular progress meetings with you. Once the Consultant’s report has been provided to the Council we will provide a copy to you, under redaction of any parts which are commercially sensitive, and invite your comments; and
(f) Thereafter we will keep you advised as to how the Council intends to implement the findings of the reports.
(g) There are no other persons participating in the process.
I hope this is clear but if you have any questions please do not hesitate to contact Roads and Transportation Services.
Head of Roads and Transportation Services