Mr Whittaker concluded by saying that his, and BADRA’s concern, is that if groups or individuals can not afford to join in the legal proceedings then “the developer bully-boys will get their way.”
A Tynwald Select Committee, established to investigate the Petition of Grievance of Ballasalla resident, Donald Whittaker, listened intently as Mr Whittaker - accompanied by fellow Ballasalla & District Residents’ Association (BADRA) members Bob Pilling and David Allsebrook - gave his evidence this morning (Monday 9th Feb).
Messrs Pilling and Allsebrook were in attendance as witnesses called by Mr Whittaker; and they were asked, on several occasions, to either answer or elaborate on questions posed by the Committee to Mr Whittaker.
The Committee, chaired by Speaker of the House of Keys, Steve Rodan has the dubious pleasure of tackling yet another planning related grievance, and one that regularly rears its head in the Isle of Man - that the depth of your pocket is the ultimate factor in deciding the outcome of development proposals.
Mr Rodan began by reminding Mr Whittaker that the Committee is unable to express a view on particular planning cases, although they may be used to “illustrate” particular issues; and they have to take an “overview” with the intention of determining whether any improvement can be made to the process.
He then invited Mr Whittaker to present his oral evidence after which he said the Committee members would ask their questions.
Mr Whittaker commenced by giving a quick résumé of the events that had led to his Petition. Most of this related to the history of the proposed Crossag Farm development and the view taken by BADRA that, if approved, it would “grossly overload the infrastructure” of Ballasalla; and that the planning inspector and the Council of Ministers (COMIN) had essentially agreed and refused the application.
However, to cut a long story short, he said, the developer lodged a Petition of Doleance against the decision and this is where the problem lies. The ability of groups, or individuals, to be able to afford to join in any proceedings and, in this case, defend the original decision - which, in respect of the Crossag Farm decision, he explained, he and BADRA are convinced is correct.
He concluded by saying that his, and BADRA’s concern, is that if groups or individuals can not afford to join in the legal proceedings then “the developer bully-boys will get their way.”
Mr Rodan sought clarification of the status of BADRA, to which Mr Whittaker, with later inputs from Mr Allsebrook, explained it is an unincorporated body of local residents with a common interest to protect Ballasalla from being swamped by development; and that although in some circumstances the group was given party status, in general an individual with party status would act as ‘representative’ for the group. This had been the situation, said Mr Allsebrook, when they went to court, and he was given ‘power of attorney’ by individuals, so they were only being represented by one lawyer.
Committee member, David Callister MLC, inquired about the position of the Malew Parish Commissioners (MPC) and wondered if there thinking was in line with BADRA (knowing full well several BADRA members are, or have been, Commissioners).
It was clarified that Mr Pilling is the current Chairman of MPC, Mr Allsebrook on several occasions has been a Commissioner and that Mrs Brenda Crellin is also a current Commissioner (and former clerk); and that they are generally in agreement; although not always in the past - which is, Mr Allsebrook explained, one of the reasons why the Association was formed and he keeps coming out of retirement.
Mr Callister also established that Mr Whittaker’s main concern relates not to the initial planning process, which he thought fairly equal, but to the costs once the process becomes a legal one.
Asked if taking out insurance had been considered, Mr Whittaker said he was unaware that this type of insurance is available.
Mr Rodan explored the options of charity status and the possibility of public liability insurance, to protect individuals from personal liability; and although this was accepted as possibly a good idea to consider, it was clear that these items alone would not be a solution to the issue under scrutiny.
Mr Rodan pointed out that in the case of the ‘Poachers Pocket’ it had been the Association’s members that had launched the Doleance proceedings; so he took it that Mr Whittaker was not contesting the right of developers to also mount legal challenges.
Mr Whittaker confirmed that was so, and said he believed in the UK there is some form of legal aid available to groups to help pay their costs.
So would you approve if legal aid was available to BADRA, inquired Mr Rodan; to which Mr Whittaker replied, yes.
Mr Rodan said he thought that legal aid, in the UK and IOM, is only available to individuals and even then it is means tested.
Mr Pilling interjected and said this information had only just come to their attention, and he would make more inquiries, and would pass on what information he find out to the Committee in due course.
Mr Rodan reminded them the Committee is exploring all the options that may be open to groups, that wish to either launch or defend legal actions, post the planning appeal stage.
He said he was aware that in the case of the Poachers Pocket the cost had been a deterrent to continuing with legal action.
Mr Whittaker put it to the Committee the group now felt bound to defend the evidence they had presented earlier in the Crossag Farm case; but it has financial implications for them.
Mr Rodan responded by pointing out that legal aid is paid out by the Treasury and ultimately funded by the Manx taxpayers.
Mr Whittaker replied that what the group wanted to happen is that developers have to put money up front if they wish to challenge a decision; and accepted that they too would have to do the same if they wished to challenge a decision. However, he added that, in his opinion, the Poachers Pocket situation was different as they had accepted the decision but had commenced action when they believed the developer was ignoring the approved planning conditions.
Mr Allsebrook expanded on the point, and explained that although they had “won” the first case over Crossag Farm and been awarded costs, which were £21,000, the developer has appealed the decision (including the costs Order), not that it is thought there is a likelihood of success, and their lawyers want £10,000 up front (to continue representing them) as they are not sure they will ever recover the costs from the developer.
He went on to suggest that a law should be introduced to deal with the issue of costs and payments; and as his evidence had been quoted 42 times by the developer he didn’t know how anybody else could defend the evidence.
Mr Callister picking up on the possibility of deterrents to ‘frivolous’ claims and the awarding of ‘penalty’ costs against ‘losing’ parties, he wondered who would decide.
It was agreed it couldn’t be government and would probably have to be the courts.
Mr Rodan suggested that surely the court would have to hear some evidence before making a decision, so this wouldn’t help as the costs would have already started.
Mr Whittaker countered by suggesting it could be settled before they got into the main arguments (which the Manx Herald believes already regularly happens).
Mr Pilling made an important point by asking what happens if a developer commences a Petition of Doleance and then goes bankrupt. The risk is nobody gets paid their costs so there should be a requirement to pay some money into court up front. “It is a matter of putting your money where your mouth is”, he said; and should apply to both sides.
The third member of the Committee, DTI Minister, David Cretney MHK then made his first comment, suggesting it was an issue of the ‘small’ versus the ‘large’; with the ‘small’ being at distinct disadvantage and it is a question of how we get over that position.
Mr Callister wondered if there is any alternative to a Petition of Doleance, some ‘pre-process’; and that triggered a discussion on a lack of an ombudsman and the merits of tribunals etc.
Mr Rodan pointed out a ‘Tynwald Commissioner of Administration’ is proposed and perhaps the remit could be widened to cover matters like the one before his Committee.
Mr Whittaker thought that it was “an excellent idea”.
Mr Cretney added that this may act as the filter of ‘actions’ at an early stage before the legal costs clock starts ticking.
Mr Callister returned to the issue of the cost to the taxpayer and said using taxpayers’ money would be the only way to level the playing field; but Mr Whittaker thought this should only be a last resort.
Mr Callister put it directly to Mr Whittaker, would he be happy for the tax payers to pick up the bill if lots of groups lodged Petitions of Doleance.
Mr Whittaker reminded Mr Callister that a ‘sieving exercise' would be done first to take out the frivolous actions; and Mr Allsebrook added that the ‘guilty’ party would pay.
But, how would the group be able to pay if they lost and had no money, Mr Callister wanted to know; to which Mr Allsebrook agreed it would be a difficulty.
Mr Pilling though groups wouldn’t take on a case unless their lawyer advised them they had a good chance of succeeding.
The issue of ‘called-in’ applications, and the different process involved, taxed their minds for a while; and whether there should be an open right to challenge decisions if you do not like the outcome. A discussion also took place over the differences between the Poachers Pocket and Crossag Farm actions, not that the two sides agreed over the findings of the Poachers Pocket Select Committee - but it did not move things along much further.
Mr Whittaker wound up the session by reiterating that the Committee needs to come up with some way of stopping the ‘smaller person’ being discouraged from taking out a Petition of Doleance.
Mr Rodan thanked Mr Whittaker and said they would be taking further evidence and may recall him later if needed.