Borders councillor cleared after conduct complaint

by EWAN LAMB

An unidentified elected member of Scottish Borders Council who was referred to the Standards Commission for Scotland for an alleged contravention of the councillors' code of conduct was cleared of any wrongdoing without the need for a hearing.

But although the anonymity of the member is preserved in a report setting out the reasons for dismissing the claim, the respondent is described as chair of the council's Planning & Building Standards Committee at a meeting in July 2018 when the alleged breach of the regulations occurred. It would therefore be relatively simple to identify the so-called respondent. The complainer is not named either.

The 'No Action' report explains that following his investigation into a complaint concerning an alleged contravention of the Councillors’ Code of Conduct dated July 2018 by an elected member of Scottish Borders Council, the Acting Ethics Standards Commissioner [ESC] - Ian Bruce - referred a report to the Standards Commission on 20 December 2022. 

"The complaint was that, when considering two planning applications at a meeting of the Council’s Planning & Building Standards Committee the Respondent, as Chair, allowed the Committee members to mislead themselves and make decisions that were capricious. 

"The Complainer (who was the applicant) alleged that, in doing so, the Respondent failed to ensure the decisions were taken properly and failed to act fairly."

In his report, the Acting ESC advised that he had found that the Respondent spoke in support, and voted in favour, of both planning applications, in accordance with the Council planning officers’ recommendations. 

The Acting ESC advised that he was of the view that this tended to show that the Respondent did not behave unfairly towards the Complainer. 

"He [the ESC] had found that the Respondent spoke only once during the meeting. He had not found any evidence to support the contention that the Respondent had misled other committee members or led them to make improper decisions. 

"He had found, from contemporaneous notes taken by both the Council’s Planning Officer and Solicitor who were present at the meeting, and from the meeting minutes, that the issues discussed in respect of the planning applications were relevant and material."

As such, the Acting ESC concluded that the Respondent had not allowed the Committee members to mislead themselves and make decisions which were capricious, as alleged. He was not satisfied, on balance, that the facts of the complaint had been established, or that there had been any breach of the Code by the Respondent. 

Having considered the terms of his report, the Standards Commission did not consider that it was necessary or appropriate to direct the Acting ESC to undertake any further investigation into the matter.

In making a decision about whether to hold a Hearing, the Standards Commission took into account both public interest and proportionality considerations, in accordance with its policy. 

In assessing the public interest, the Standards Commission noted that a breach of the provisions in the Code that require councillors to act fairly, and to be seen to be acting fairly, when making quasi-judicial or regulatory decisions (including decisions on planning applications), could have the potential to bring the role of a councillor, the Council’s committee system and the Council itself into disrepute. It could also leave the Council open to the risk of a successful legal challenge. 

"In this case, however, the Standards Commission was of the view that, on the face of it, there was no evidence of any such breach of the Code. The Standards Commission noted that holding a Hearing (with the associated publicity) could promote the provisions of the Code, particularly if it was found that the Respondent’s conduct amounted to a breach of the Code. There could, therefore, be some limited public interest in holding a Hearing. 

"Regardless of this, the Standards Commission was, however, also required to consider whether it would be proportionate to do so. In considering proportionality, the Standards Commission noted that the Acting ESC, in his report, had reached the conclusion that the facts of the complaint had not been established and, as such, there had not been a breach of the Code by the Respondent. 

"Having reviewed the evidence before it, the Standards Commission found no reason to depart from that conclusion. Having taken into account the above factors, and in particular the fact that it was not satisfied, on the face of it, that the conduct as established could amount to a breach of the Code, the Standards Commission concluded that it was neither proportionate, nor in the public interest, for it to hold a Hearing. The Standards Commission determined, therefore, to take no action on the referral."

 

Great Tapestry's COVID-induced financial deficit

EXCLUSIVE by LESTER CROSS

Scotland's latest five-star visitor attraction sustained financial losses averaging around £6,000 per month following its opening in a £6.7 million custom-built gallery, jointly funded by the Scottish Government and Scottish Borders Council.

In the week when a study by Aberdeen University found the Galashiels-based Great Tapestry of Scotland had "improved public perception of the historic Borders town", it has also been revealed that Live Borders, the trust which runs the tapestry centre, experienced a £48,500 loss between the gallery's opening in August 2021 and the end of the financial year in March 2022.

The figure was provided in response to a Freedom of Information [FOI] request asking for information about the size of the deficit resulting from disappointing visitor numbers attributed to the COVID-19 pandemic.

According to one of several business cases produced prior to the project's development a total of 51,000 paying customers were expected to attend the gallery in the first twelve months to view the 160 hand-stitched panels depicting Scotland through the ages. But it was confirmed in December that only 24,000 tickets were sold during the initial year of operation.

The losses over those first eight months are markedly different to the forecasts made by consultants commissioned by Scottish Borders Council, and by Live Borders themselves.

One version of the business case warned of the revenue implications with projected deficits in each of the first five years after opening, ranging from £79,600 in year one to £21,500 in year five.

However, a Live Borders operational model predicted a loss of just £2,000 in year one with surpluses in each pursuing year of between £23,700 in year two and £65,600 in year three.

A report presented to members of Scottish Borders Council stated: "The council agrees to initially underwrite any shortfall in the revenue budget for the project until the estimated shortfall is filled by the opportunities mentioned above.

"The council has confidence in the success of the additional income generation opportunities to obtain at least a cost neutral position for the facility. However, the authority will ultimately fill any remaining funding gaps."

Elected councillors were also assured "Value for money is addressed at all stages of the project design and procurement process, and in the Economic Impact Assessment".

The FOI request to Live Borders asked: "What was the shortfall in the revenue budget for those first 12 months and how much has Scottish Borders Council underwritten to bridge the gap?"

In their response the attraction's operators stated: "The financial reporting period for Live Borders, and therefore the Great Tapestry for Scotland (GTOS), is April to March. The operating deficit for the period August 2021 (when the Tapestry opened) to March 2022 was £48.5k. 

"Live Borders absorbed this amount into its overall operating deficit of £1,087.7k for the year ending 31 March 2022 as Scottish Borders Council had provided funding to support GTOS prior to opening as well as significant additional support to Live Borders during COVID. Scottish Borders Council support for GTOS for the financial year ending 31 March 2023 remains under discussion as we are part way through the financial year."

The newly published study led by the University of Aberdeen's SPOT (Social and Innovative Platform on Cultural Tourism) Team found that the tapestry centre was the key reason why 60% of holidaymakers interviewed visited the area.

The Aberdeen SPOT survey of 460 tapestry centre customers also found:

“Visitor satisfaction at the Great Tapestry of Scotland was overwhelmingly positive, with 74.5% of visitors stating that their visit to the Great Tapestry of Scotland made them feel more positive towards Galashiels. And for 58.2% of those visiting the area on holiday, the purpose of their visit on the day of the survey was to visit The Great Tapestry of Scotland."

A lengthy press statement from the university team includes statements from a number of stakeholders in the Great Tapestry of Scotland project with a claim the gallery has been welcomed by retailers in Galashiels, who have reported a noticeable increase in footfall since the Tapestry first opened. 

Mike Gray, chair of Energise Galashiels Trust, said: “It’s brilliant to see the hugely positive impact that the Great Tapestry of Scotland and our associated Energise Galashiels Trust regeneration initiatives, which are funded by South of Scotland Enterprise and Scottish Borders Council, are delivering in our town centre.

“The results from the University of Aberdeen’s study reinforce what we’re seeing on the ground. There really is a renewed positivity about Galashiels with many businesses reporting increased footfall from those who have come to see our town’s new five-star visitor attraction.”

Borders' former chief planner's take on Lowood proposals

by DOUGLAS SHEPHERD

Scottish Borders Council's former Director of Planning and Economic Development has again hit out at proposals by the authority to build hundreds of new homes on a local country estate, warning the concept  "will create an alarming context for determination of future developments elsewhere in the Borders".

Ian Lindley, who previously lodged an objection to SBC's allocation of the 110-acre Lowood Estate, near Melrose, for development has now submitted more written comments to the on-going Examination of the Borders Local Development Plan by a team of Scottish Government planning reporters.

In his newly published statement, Mr Lindley claims an accurate visual appraisal would lead to an honest assessment of the estate development's true (adverse) impact on the setting of the listed Lowood Bridge, the fringe of the Eildons' National Scenic Area, [NSA] and the Tweed river valley, before any development was contemplated or commenced. 

He adds: "Proposed new residential clusters are centred within existing tree plantations which the consultants’ reports recognise form part of a designed parkland, albeit not one that SBC has included within previous surveys to afford it greater protection. Indeed, SBC has, in the interim, declined to add the estate to the schedule of designed landscapes and gardens. 

"If this site is to be developed along traditional ‘planning application treated on merit’ processes, then one can assume that a number of reassurances given to date by the Consultant’s assessments and by SBC will in reality carry little weight. Look for guidance from the north side of the Tweed foothills at the Langlee estate east of Galashiels to consider whether time alone mitigates the impact of new development."

On the issue of tree retention, Mr Lindley says at a time when UK and devolved national governments are promoting tree planting against a backdrop of tree disease, drought, storm, inappropriate land management and demographic decline, "it is disturbing that we witness proposals for new development in mature tree plantations which are to be hollowed out except for a few specimens along some edges."

And he has this to say on Ecological Impacts: "There is no clarity on the future specialist management regime required of any retained neutral semi-improved grassland and unimproved river margins. These are integral to the parkland design and ecological value of the estate and its designation as part of the Tweed Special Area of Conservation, NSA and for the setting for Lowood Bridge."

In Mr Lindley's view, no detail is given to the after-care/ long-term funding of the riverside footpaths, (including routing and erosion control), or of how to address the adverse impact of increased public land use on the Sand Martins which currently nest in this stretch of river bank. 

"Further east a land owner has lately fenced in paddocks and narrowed public access alongside the river bank with consequent greater path wear, bank collapse and disturbance to bank nesting birds in that section. The proposed development could be expected to achieve the same unwanted impacts."

SBC was already seeking consents to undertake infrastructure works to enable the development of Lowood which limited the value of any Local Plan Inquiry into its acceptability in principle, or its implementation in detail.

In a section of his submission headed Co-ordination, Mr Lindley writes: "Alternative increases of on-street parking along Tweedbank Drive are mooted, together with the possible double-decking of the existing car park in an area stated to be visually sensitive. One could recall that use of the adjoining quarry formerly situated due east of the [Tweedbank] station site (now the site of recent office developments) might have provided a suitable site for a ready-screened multi-level car park below the surrounding land-level. 

"This might have enabled adjoining public space and business development north and or east of the station without the need for expensive land-fill and foundation construction. One is reminded of the lack of forward thinking, or of any apparent coordination between each stage of development, or between respective agencies. It does not reassure, and one is left to concur with the consultant’s sentiment on employment land that ‘it is difficult to know what is being proposed’".

In conclusion, Mr Lindley argues the concept illustrations are inadequate given the outline level of detail available and the apparent negative impacts upon protected species and sensitive landscapes. 

"Diagrammatic proposals for tree retention and landscape treatment are unrealistic, ineffective and inadequately detailed. The visual and ecological impacts of development along the summit of the river valley will be considerable and adverse in the short and long terms and will breach all the designations for the protection and enhancement of this important asset. It will create an alarming context for determination of future developments elsewhere in the Borders."

Development of Lowood 'cannot be justified'

EXCLUSIVE by DOUG COLLIE

A fresh bid has been made to block the construction of over 400 new homes together with commercial and community facilities on a 110-acre country estate in the Central Borders with a claim the development of such a large greenfield site runs counter to Scottish planning policies.

Government planning reporters who are currently examining Scottish Borders Council's new Local Development Plan [LDP] are being urged not to sanction the allocation of the Lowood estate, near Melrose, for housing and associated infrastructure.

A detailed written submission from eminent planning consultant David Bell seeks to demolish the council's reasoning for the 'urbanisation' of Lowood which the authority purchased for £11 million in 2018. Permission is currently being sought for earthworks and the laying of roads as a first step towards extending the village of Tweedbank.

Mr Bell represents Gowanloch Investments Ltd., owners of the Upper Pavilion salmon fishing beat on the River Tweed, adjacent to Lowood. It is feared construction work would have a detrimental impact on water quality of the Tweed, a Special Area of Conservation [SAC].

One of the main planks of Mr Bell's argument against developing Lowood is linked to the revised national planning policies which recommend a shift from development away from greenfield land by actively enabling the redevelopment of vacant and derelict land.

According to Mr Bell: "For the Council to simply say it “acknowledges the drive within the revised draft NPF4 for the development of brownfield land but highlights that there is a finite supply of brownfield sites across the Scottish Borders…” is not a sufficient nor evidence-based response.

He continues: "The policy approach was also indicating that there was a need to provide greater protection to natural spaces and to make places greener and more resilient to the impact of climate change."

And Mr Bell adds: "Fundamentally, in terms of infrastructure, which is a key constraint within this local area, the National Planning Framework (NPF4) Position Statement made it clear that there was a need to prioritise areas where there was existing capacity in infrastructure. 

"A key concern expressed in January 2021 was that the Council had failed to address a delivery mechanism in relation to the considerable infrastructure requirements and that in many respects, the Lowood site failed the effectiveness test and indeed has not been deliverable within the original timeframes set for the allocation."

He explains that SBC was clear that the fundamental driver for the site allocation is close proximity to the railway station at Tweedbank. The council had also noted the site was one of the largest greenfield allocations within the Scottish Borders. 

"The Tweedbank Spatial Framework document which the Council has now provided to the Examination provides a schedule of accommodation which shows circa 411 residential units. There would be other mixed use development and road and other infrastructure."

In Mr Bell's view, the council’s approach was now based on a dated assumption that the majority of residential occupiers would utilise the train for transport. 

"This is thinking from several years ago: is one in which work/travel patterns which were conventional at that time are no longer today. Today live/work patterns are much more flexible by way of hybrid and homeworking, which means that reliance on train for day-to-day travel is much less than it has been in the past. Notwithstanding that position, the Council’s assumption that there would be high levels of train use from occupiers of a land parcel which is severed from the main settlement by the railway, was overly simplistic and remains so today."

It was clear from the local authority's Supplementary Planning Guidance (SPG) for Lowood that the predominant mode of access would be by way of car and other motorised vehicles. The Lowood site was effectively “cut off” from the remainder of the Tweedbank settlement and the wider urban pattern in the area. The council had acknowledged that this severance would necessitate a new vehicular overbridge and pedestrian bridge(s).

The six-page written submission on behalf of  Gowanloch Investments states: "Whilst it is accepted that it will be a requirement of developers in due course to satisfy the infrastructure requirements, it is clear from the list of infrastructure deficiencies that there is a considerable constraint in the area ranging from wastewater to NHS provision which undermines the effectiveness of the location. 

"When these considerations are examined in the round with how the site fails to perform in terms of the climate emergency and biodiversity matters which are fundamental to and which underpin the NPF4 policy approach, it is considered that there is limited justification to continue the allocation of this urban expansion site. 

"The lack of accordance with this most recent part of the Development Plan is expressly clear. To include a site that is severed from the main urban pattern in this part of the Scottish Borders simply because it is close to a railway terminus, is the thinking of a decade ago and is contrary to the rebalanced new policy framework which must be taken into account. The development of the site in the way proposed by the Council would undermine the National Spatial Strategy and would not ensure the delivery of a sustainable, liveable or a productive place within the Central Borders."

A recent update on the Borders LDP examination which is on the Scottish Government planning website states: "The examination of the proposed plan is progressing with most unaccompanied site inspections now carried out. The reporters have issued some further information requests already and are likely to issue more in January/February 2023 relating to transport, minerals, NPF4, housing (with the possibility of a hearing on housing) and other matters."

No 'fines' for Avocet directors' breaches of company law

EXCLUSIVE by OUR BUSINESS STAFF

The revelation that Companies House has not issued a single penalty notice for late filing of annual accounts by the directors of the Avocet Group of "disruptive technology" companies has left some shareholders appalled, angry and frustrated.

A number of the businesses are now insolvent and in the hands of liquidators or administrators with investors fearing they may have lost millions of pounds.

The failure to impose sanctions on Avocet directors including Martin Frost and Dr Robert Jennings - joint life presidents of Avocet firms -  has been attacked by critics. And the entire Companies House penalties system has been branded 'not fit for purpose'.

The failure to lodge accounts and confirmation statements on time is a criminal offence, according to  Companies House regulations. In the case of Avocet's separate entities, management has repeatedly failed to meet deadlines for the submission of financial information.

In a bid to establish how many penalty notices had been slapped on those who have served as directors of Avocet businesses, a Freedom of Information request was sent to the Information Rights team at Companies House.

The requester wrote: "Companies House stipulates the following list of penalty fees for private companies whose directors file their accounts late: not more than one month £150; 1-3 months £375; 3-6 months £750; Six months plus £1,500. 

"The regulations go on to state 'Penalty doubled if accounts are filed late in two successive financial years'. Companies House also makes clear: 'Not filing your confirmation statements, annual returns or accounts is a criminal offence and directors could be personally fined in the criminal courts'.

 "Therefore: Please provide me with details of all individual late filing penalty notices served on the following registered companies, this to include dates when notices were served, the amount being sought, and the amount which has peen paid to Companies House. Also provide details of all referrals for criminal prosecution against the directors of each company."

The companies named in the FOI request were Avocet Natural Capital PLC (accounts overdue since December 28th 2020); Avocet Faculties Ltd (September 27th 2021); Omega Infinite PLC (December 24th 2019); Avocet IP Ltd (September 30th 2021); and Orrdone Farms Ltd (December 24th 2019). In each case, confirmation statements were also overdue although these do not attract monetary penalties.

Companies House, in their response, has told the requester: "Civil late filing penalties are issued on accounts when they are filed late. The value of the penalty is determined by how late the accounts are filed and only levied on receipt of the accounts. Until accounts are filed, a penalty is not issued. In the case of the companies listed, the accounts you have indicated have not been filed, therefore a penalty has not yet been levied and penalty notices have not been issued."

The business regulator also explained that once a company is in any type of insolvency it is no longer required to file confirmation statements or accounts. And there is no late filing penalty for any insolvency documents. 

The FOI response concluded: "Two of the companies listed have an active proposal to strike off. This is compulsory strike off initiated by the Registrar of Companies as they appear to be defunct and no longer in operation as they are in default of their filing obligations. Once companies are in the process of being struck off the register, the Registrar of Companies ceases active pursuit of any outstanding statutory documents." 

These disclosures have incensed some of those seeking to find out what happened to their cash.

One investor told us: "Companies House have, amazingly, managed to design a system which actually rewards directors for continued noncompliance with the statutory disclosure requirements, and the result is that likely many shareholders are deprived of much-needed, timely information about the companies in which they have invested.

"A properly-designed framework would see directors personally fined for each month that statutory disclosure requirements are not met. This would not only immediately improve compliance, but as a side benefit, directors would likely proactively remove any dormant companies from the register rather than waiting for Companies House to do so, thus reducing administrative costs.

"Whoever in government is responsible for the current absurd policy should be ashamed of themselves. It is neither in the best interest of the country’s shareholders nor of Companies House."

Another observer of the Avocet saga remarked: "Nothing surprises me, and the banal response to the FOI request is entirely as I would have anticipated from a public body with no accountability to anyone. It mirrors the complacent attitude of the insolvency service."