CLAIMS ABOUT EXPENSIVE DELAY WITH LITTLE CHANCE OF SUCCESS
On 9 September last year we reported how Duddingston House Properties Ltd (DHP) and Urbanist Hotels (UH) had successfully applied for a sist (legal delay) on their appeal against City of Edinburgh Council’s refusal of planning permission for a hotel development at the old Royal High School.
At the same time, they announced that they would shortly be bringing forward an alternative scaled-down proposal.
Now (on 29 December 2016), Edinburgh World Heritage (EWH) and the Cockburn Association (CA) have formally applied for removal of the sist, and an award from DHP and UH cover their expenses incurred since 19 September (when DHP and UH sought permission for another preapplication notification) ‘on the grounds of unreasonable behaviour by the appellants’.
EWH and CA say the appellants should have withdrawn their appeal in the light of details about the new scheme publicly exhibited on 3 November. Their advocate argues that the sist is no longer appropriate because:
The appellants cannot promote two schemes for the same site and listed building when the first scheme is larger in scale and involves bigger new build buildings and more bedrooms than the second scheme and at the same time have any reasonable likelihood of success in persuading the Reporters or Scottish Ministers that the first scheme (that is the subject of the Current Appeal) is the minimum achievable to retain project viability meets the requirements of the SHEP [Scottish Historic Environment Policy]. The Current Appeal will therefore inevitably be refused and the proper planning decision that requires to be determined will be in respect of the New Scheme or any other scheme that is presented to the planning authority.
If the current appeal goes ahead, EWH and the CA would rack up considerable expenses at the inquiry and hearing sessions. So:
In circumstances where the Current Appeal has no reasonable likelihood of success it would be inequitable for the Applicants to bear these costs and the costs should be borne by the Appellants.
You can read the full legal reasoning, published on 10 January, here.
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Marion Yvonne and the response from DPEA:
'Thank you for your e-mail of 29 December regarding the sisted appeals.
'The reporters have considered your representation regarding the implications of the amended proposals for the likely outcome of the sisted appeals. They are firmly of the view that this would be a matter to be considered at inquiry, where that contention could be properly tested. Consequently they are content that the appeals ought to remain in sist for now, as expressed in my e-mail of 21 December. As stated in that e-mail, however, they will continue to closely monitor progress on the amended proposals.
'The reporters note the application for expenses and confirm that they will consider this at the appropriate stage, having afforded the appellant the opportunity to respond.'