Month: February 2017

February 28, 2017 Nick Kempe 1 comment
The old Loch Venachar House, as pictured in the Bell Ingram sales brochure,  was derelict and has not been lived in since 1995..

In a post last week (see here)  I explained how the LLTNPA had landscaped the area its owns by Loch Venachar House to block off access and how it is no longer possible to walk round the shore of Loch Venachar from the car park to Loch Venachar dam.   In this post I will look at how the LLTNPA dealt with the planning application for Loch Venachar House, to which its Convener Linda McKay was a joint party, but first how subsequently access to the shoreline has since been expropriated.

 

Access to the shore of Loch Venachar

 

The biggest issue relating to the development of the new Loch Venachar House came after the final application in 2013.   All the planning applications were for a property whose boundaries did not extend to the shores of Loch Venachar.  The LLTNPA therefore had no reason to consider any potential access issues created by the development because it could be assumed that access along the shore of Loch Venachar would continue.

 

What then appears to have happened however is that the land between the house and the loch shore was either bought or leased and incorporated into the garden of Venachar House.  The best map that illustrates this is the one associated with the 2006 application:

The left of the map shows a strip of ground between Linda Mackay’s property and the shore along which people could walk to Loch Venachar dam.

No further planning permission was applied for.   In my view this should have required planning permission because its effect has been to stop the public walking along the shore.

The double height barbed wire fence surrounding part of Loch Venachar House has been extended to close to the shoreline – seen here from Loch Venachar Quay

And access to the piece of ground in front of the fence, as shown in the previous post, has been blocked off to the public, at least for the last nine months.

How does any of this fit with the National Park’s statutory aim of promoting public enjoyment of the countryside?    We know that Linda McKay, as Park Convener personally led the attempt to try and get the Land Reform Review Group to remove the right to camp by roads (see here) but it also appears she has placed her personal interests in respect of her property before the access rights of the public.  She may have the legal right to do so but how in Scotland we could have ever allowed  such a person to be elected convener of a National Park Authority and then lead the introduction of camping byelaws is a question that needs answering.

 

The planning history and applications

 

Loch Venachar House had been publicly owned, being originally built by the Glasgow Corporation as part of the Loch Venachar waterworks (see here) as a store, had been converted into a house but was abandoned in 1995 and had become derelict.  It was then sold by Scottish Water.

 

In 2002 a planning application was submitted to redevelop the old house but then withdrawn.   In 2004 a planning application from S.McGhee to redevelop the property was refused by the newly created LLTNPA as it contravened Stirling’s local plan and policies (see here).   The reasons for this included the size of the proposed new extension compared to the existing house, the angle of the roof was too low and there was too much glazing.

 

 

In 2006 a revised application from Mr McGhee was approved.   There is then a gap in the planning history during which time the property was marketed by Bell Ingram (top photo) and then bought on 16th July 2010 for  £250,000 according to a house price website.

The artists impression of the plans for Loch Venachar House which appeared in the Bell Ingram sales brochure and appear to be the same as those granted planning permission in 2006.

 

 

In 2011 a revised planning application was submitted to the LLTNPA by John Young and Linda Mackay, who was by then convener of the National Park Authority, to demolish the existing house and replace it with a house of similar footprint.  The existing house had been found to be structurally unsafe by engineers and beyond repair.  While much of the stone was judged unusable the LLTNPA required that that which was salvageable should be reused in building a new chimney because planning policy was that “The re-use of materials arising from demolition is maximised”.    The application was determined by Committee rather than officers because Linda Mackay was  a Board Member 2011_0161_DET-Committee_report_final-72143.  

The application approved in 2011 by Committee was for a traditional looking house. On far right is location plan and it shows that at that time the property did not extend to the shores of Loch Venachar.

While the conditions attached to the planning application were quite vague – and that matters in legal terms because its conditions rather than comments on the merit of an application that ultimately count and the applicant was not bound in this place to carry out the plans – the process otherwise appears to have been exemplary and there is no reason to question that the house needed to be knocked down.

 

In 2012, a new planning application was submitted to the LLTNPA, after the old house had been demolished, for a totally new design of house.

The footprint and design of the house approved in 2012 was totally different to that approved in 2011

This surprised me, why would someone apply for planning permission for one thing, gain it, and then after demolishing the property apply for something completely different?    I have however checked with planning experts and there is nothing to unlawful about anyone who has been given permission to demolish a house, to replace it with a new house of a specific design, from then submitting a completely new application once they have demolished the house as happened in this case.   The reason for this apparently sudden change in plan is not explained in the Committee Report on the revised application (see here).   The Committee approved the application.   Because the minutes are no longer published on the LLTNPA website,  its not possible to see whether Owen McKee, the then chair of planning, who was forced to resign from the LLTNPA for failing to declare interests (see here), chaired the meeting.

 

The consequence of the Committee approval is that the house which was built by Linda McKay and John Young was totally different to the original house and the plans which had been approved the year before.

 

 

The new building has won architectural awards (see here for photos).

 

The wording of the Committee Report was unclear about whether all the stone from the old building, some of which due to be re-used, was removed from the site:

.

7.6  The original dwelling has already been demolished and the resulting building materials
removed off site as previously approved. In these circumstances, criteria (d) of Policy HOUS8
regarding ‘the re-use of materials arising from demolition being maximised’ is not applicable to
this proposal.

 

On account of this, I asked the LLTNPA what information they held on this “approval” and received this reply:

In my view this does not answer the question.  The Committee Report says approval was given to remove the stone but the previous planning report had said the re-salveagable stone would be re-used.  Its not clear that it was.  At least as a result of other questions I asked about this development the Park did put the older planning applications onto the planning portal – a welcome step in the right direction in terms of transparency EIR 2016-003 Response

 

The more fundamental issues here however are two-fold:

 

The National Park planning process.

 

If you read the Planning Reports from 2002 to 2012 they start by trying to replicate the footprint and size of the original building and end up agreeing to a  completely different type of house.     The message appears to be that if you own a traditional building, there will be very limited things you will be allowed to do with it, but if you allow that building to fall into sufficient state of disrepair (and that Loch Venachar House was in a state of disrepair was clearly not Linda McKay’s responsibility) you can do anything.     This appears to me to be an invitation to developers to buy buildings, let them collapse and you can then do whatever you want.     Now I am not against new buildings and I think most people would agree Loch Venachar House is a very nice house, the issue though is about consistency of the planning process.

 

During the time-span covered by these applications planning policy in the Park has changed but its still difficult to see how what has happened at Loch Venachar House reflects the latest policy as expressed in the Park’s Local Development Plan:

 

Historic Environment Policy 3:Wider Built Environment and Cultural Heritage

Development proposals will be expected to protect, conserve and/or enhance a building or feature of architectural and/or historical merit or of cultural significance. Buildings or features of merit which are important to the cultural heritage of the National Park should be retained and incorporated in new developments where possible and any adverse impacts of the development should be avoided or mitigated.

 

The message this case gives.  

 

While nothing unlawful has been done, and while there may have been a very good reason for Linda McKay’s radical change in her plan after the old Loch Venachar House had been demolished,  this has not been explained publicly.   The message that unscrupulous developers who want to get around Historic Environment Policy 3 could take from this, therefore, is that the chances of getting planning permission to redevelop buildings within the National Park appear to improve if first you apply to build something similar to what is already on site and then, once the building is demolished, you submit new plans.   I think that is extremely unfortunate and it potentially puts the LLTNPA planners in a difficult position if similar situations recur in future.

 

To put this in perspective though there are plenty of other policies in the LLTNPA which are not worth the paper they are written on, including for example design of hydro schemes (see here for example)  but the importance of this case is it does involve the person who till 28th February 2017 has been Convener of the National Park Authority.  In my view its important that those on National Park Board not only follow the rules, but the LLTNPA can show they have followed the spirit of these rules.   On the information that is available there are legitimate questions to be asked about this.

 

What needs to happen

 

Its too late to do anything about the planning applications now but the LLTNPA needs to set an example and re-establish access along the shores of Loch Venachar by whatever means necessary, including compulsory purchase if Linda McKay fails to co-operate.

 

James Stuart, the new convener of the LLTNPA needs to set a new direction for the National Park and a core part of that should be to re-affirm that its NATIONAL, works for national as well as local interests, and there is no place for NIMBYISM anywhere in the National Park

 

 

February 27, 2017 Nick Kempe No comments exist
Slide 17th August 2016. The Park is far more interested in branding than getting signs to be information. How would you know from these signs that the byelaws apply to campervans and motorhomes or shelters?

Ten days ago I received a response to another Freedom of Information request,  EIR 2016-068 Appendix A list meetings of the secret Loch Lomond and Trossachs National Park Authority Board business sessions that took place in 2016.    There were six of them, a slight reduction from the ten  held in 2015 (at the height of the Board plotting on the byelaws) and back to the average since 2010.  That’s still six secret meetings compared to four public meetings, worse than Police Scotland which is rightly being criticised for wanting to hold 50% of its meetings in private (see bottom of last past).    I have also obtained, thanks to the Information Commissioner’s ruling that the Park required to make public if asked written materials from such sessions,  written materials circulated at these meetings.  The LLTNPA has not put these on the FOI section of its website – indeed so far it has put up none of its FOI responses sent out in 2017 – so if you are interested in seeing/scrutinising any of them please contact parkswatch which will cover some of them in due course.

 

This post covers the secret Board Meeting held on 17th August 2016 which was devoted wholly to  camping YP Informal Briefing – 17th August 2016 – FINAL Staff.  While the agenda described it as an informal briefing, that is quite obviously false as you can see from this slide:

 

Recommendations are not made to informal briefing sessions, only to decision making meetings.  The whole way the LLTNPA Board has operated in developing the byelaws is corrupt.

 

The content of the slide is of great significance.   It shows there still appear a few decent staff in the Park, who are prepared to hang on to their principles, because they recommended to the Board there should be NO charge for camping permits. (You can see the logic in the argument in the full presentation 20160817 – Your Park Camping Management Models Final).     Indeed, staff estimated only c£6k would be raised through sale of permits, so it was hardly worth doing and in fact they thought the costs of collecting the money might be more than that.   However, staff appear to have been overruled by the Board  because in the paper to the Board in 2016 (see here) in the section on “Permits: Charging considerations” (paras 5.8ff) there was no reference to the principle of charging for access, the  proposal to accept donations had disappeared completely and instead there was only one option, to charge £3.    This makes it pretty clear that its the Board that is behind charging for access and is yet another example of the Board acting ultra vires because it is supposed to take decisions in public.   Reason enough for the Scottish Government to intervene now and insist all charges for permits are dropped.

 

Another example of secret decision making is that in the August slides the original proposal for campsite fees was £7.50 (up from £5 due to the extravagant costs of creating the Loch Chon campsite) but the option put to the Board in December and then approved was £7.  Perhaps the reduction in charge was because in October 2016 this is what the LLTNPA told the Scottish Government in response to a question about charges:

 

 

 

 

No indication there that the Park had been discussing a 40-45% increase in charges: the Scottish Government civil servants don’t appear to have appreciated yet that they really cannot trust anything that the Park tells them.

 

The development of the Your Park signage

 

While there was very little debate on charging at the December Board Meeting, there was debate on the signage examples accompanying the Board paper  some of which was quite encouraging (see here). What I and other members of the public did not appreciate at the time was that the Board had already discussed all of this in August.   No wonder staff looked put out when Board Members belatedly realised and suddenly started to insist, quite rightly, that there should be signs telling people when they were leaving the camping management zones.

 

A comparison of the August proposals with those put to the Board in December  (see here) is revealing:

The signage examples presented to the Board at their secret meeting in August 2016.  The permit area sign and colouring was in paper approved at the public Board Meeting in December 2016.

The “NO CAMPING HERE” signs, proposed at the secret Board Meeting in August were completely absent from the December Board paper and it appears the Board decided there shouldn’t be such signs at the August meeting.   I says “appears” because it is possible the Park decided NOT to present the “NO CAMPING HERE” in December because this would appear anti-access:  because there were no camping management signs of any description when I visited the Trossachs a week ago (they were supposed to be put up from the beginning of February), I was unable to check.

 

If NO CAMPING HERE signs are now being erected, then it appears that has been done contrary to the approval given at the Board Meeting in December.  If, however, the LLTNPA has indeed  decided there should be no NO CAMPIMG HERE signs, that will make the byelaws even harder to enforce.   The problem is neatly illustrated by the slide below presented at the August secret Board meeting:

 

The A82 is a major through route with tens of thousands of people driving along it each year.  So, drivers glimpse a sign as they roar past at 60mph saying “Camping Management Zone”  and even possibly “Camping in the Park”.   What would your reaction be?  Great, let’s find somewhere, stop and pitch our tents…………….so unless there is a NO CAMPING HERE sign in every single stopping off point, as was proposed back in August,  what’s going to happen is people are going to pitch tents and completely unknowingly committed a criminal offence.   The NO CAMPING HERE signs put to the August meeting were crucial for enforcement purposes.

 

However, what do the NO CAMPING HERE signs tell the public apart from tents are not allowed?  What about campervans, motorhomes or sleeping in the back of the car?    And, then consider the wording of the byelaws:

 

Unauthorised Camping
(6) It shall be an offence for a person to:
(a) set up, use or occupy a tent, wigwam or bivouac at any time; or
(b) set up, use or occupy overnight any other form of shelter (other than an umbrella)
within a Management Zone unless they have been authorised to do so by the Authority
under byelaw 11.

 

Does the NO CAMPING HERE sign give you the message that pulling off in a campervan or putting up any other form of shelter apart from an umbrella is a criminal offence?   How on earth will the fishermen or anyone else know from the signage that hanging a tarp between trees or putting up one of those fishing shelters are criminal offences, with fines of up to £500, which could result in them losing their jobs or being prevented from travelling abroad?  They won’t.

 

The LLTNPA’s signage, whether or not it includes the “NO CAMPING HERE” sign is completely inadequate.   The Park is pretending to be in favour of camping and encouraging it (“camping management zones”, “camping in the park”) while at the same time trying to ban it.  Its then tried to reduce the criminal law to a branding exercise where people are supposed to be able to tell from signs and symbols what they can and can’t do.   This won’t work.

 

Even if the Park put the NO CAMPING HERE signs in every layby and added smallprint so people could see shelters were banned it would still not tell campervans where it is legal to stop off overnight.  The Park would need to put signs up indicating to campervaners all the private roads in the Park (where you can stay overnight in a vehicle) for the byelaws to be properly understood.  That is never going to happen and as a consequence the byelaws are unenforceable.

 

The consequences of this is the Park is going to have to deploy its Rangers, as they do at present on Loch Lomond, chasing away campers and campervaners from every place that is not properly signed.  This is a complete waste of resource.   The new Convener, James Stuart, when he starts on Wednesday, needs to signal a completely new direction for the Park otherwise its going to sink.

February 25, 2017 Nick Kempe No comments exist

Following my posts (see here) and (here) on the rights of and need for National Park Board Members to speak out, this excellent letter appeared in the Strathie this week.  (I know Peter very slightly, he preceded me on the Board of SNH, but I have not had contact with him for c 10 years).

 

What I think Peter has missed – and which I have only found out in the last week – is that the right to speak out is not just about the Code of Conduct but also the CNPA’s Standing Orders (the rules which set out how the Board operates).  They include this clause:

 

30. Board Members share corporate responsibility for decisions taken by the Board as a whole. Members must therefore either accept and publicly support the collective decision of the Board or resign. Members must respect the confidentiality of sensitive information held by the organisation, as well as the discussions and papers taken in private session.

 

In other words, once the Park Board has taken a decision, Board Members are gagged under the rules of the Park.     While Peter Argyle denies that he tried to get Cllr Lobban to resign, it appears if he had done so he would have only have been following the rules of the National Park.

 

I found this quite extraordinary so I checked the rules of three other environmental Non-Departmental Public Bodies.   Neither SNH or the Loch Lomond and Trossachs National Park contain similar clauses in their Standing Orders.  However, the Scottish Environment Protection Agency has a similar if less draconian gagging clause:

 
Collective Responsibility and Confidentiality
79.SEPA’s boards and committees operate on the basis of collective responsibility for decisions.
Members are therefore expected, if questioned on a matter where a board or committee has
taken a view, to support the position reached

 

The gagging clauses appear to be incompatible with the Code of Conduct for Board Members.  For example all four Boards have a clause in their Code of Conduct on Accountability and Stewardship which reads as follows:

 

You are accountable for your decisions and actions to the public. You have a duty to
consider issues on their merits, taking account of the views of others and must ensure that
SNH uses its resources prudently and in accordance with the law.

 

It appears that the CNPA is try to make Members accountable to itself rather than to the public.   This is wrong.

 

That this is not just a National Park or environmental NDPB issue is demonstrated by Paul Hutcheon’s investigation in Friday’s Herald on the resignation of Moi Ali from the Scottish Police Authority after the chair tried to silence her (see here).  The parallels with CNPA Board Convener Peter Argyle’s alleged attempt to silence Cllr Bill Lobban are striking and one can’t help thinking that Moi Ali should have followed Cllr Lobban’s lead and refused to resign.

 

The story also mirrors other things that have been happening in our National Parks.  The Scottish Police Authority’s attempt to delay publication of Board Papers until the day of the meeting mirrors the LLTNPA decision in 2015 to change their Standing Orders so that papers only needed to be published 3 days (instead of 7) before meetings.   If you don’t know what’s on the agenda of course, you don’t know if its worth attending.    The increasing propensity of the SPA to meet in private, which led to Moi Ali’s resignation, is nothing compared to the LLTNPA which developed the camping byelaws which are due to come into force next week over 12 secret Board Briefing sessions between September 2013 and April 2015.   Moi Ali’s observation that “If dissent is only allowed privately, then I think decision-making becomes enshrouded in a type of fog” seems a pretty good description of the byelaw making process.

 

What the experience of the LLTNPA also demonstrates is that you don’t need formal gagging orders enshrined in Standing Orders in order to silence Board Members.  The problems go far deeper than that and appear to be linked to a style of leadership which appears authoritarian rather than democratic.

 

What needs to happen

 

The inclusion of gagging orders in NDPB Standing Orders conflicts with the Code of Conduct for Ethical Standards in Public Life for Members of those Boards.  While members of the CNPA Board therefore need to review their standing orders, the Standards Commission which oversees and enforces the Code of Conduct for NDPB Board Members, should have a role here.   What the public, to whom Board Members are accountable, deserve to know is the extent to which Board rules and practices enable and facilitate individual members to abide by their Codes of Conduct.

 

The Scottish Government also needs to start taking an interest in how our National Parks operate and to introduce reforms which would increase transparency and public accountability.    That should include the abolition of gagging orders – what is a Board Member not even allowed to approach the Minister if s/he thinks a decision by the Board is fundamentally flawed.   I would also like these to include a requirement that Board Meetings should always be held in public (with any confidential business held in private at the end of the meeting), that all Board Meeting should be recorded as available as pod/broadcasts for at least a year after the meeting and that papers for meetings should appear at least one week before the meeting is held.

February 24, 2017 Nick Kempe 6 comments
Unlawful sign, Loch Lubnaig, last Sunday. Even if the camping byelaws come into force next week, such signs will still be unlawful because camping is not banned for the whole year even in camping management zones. The sign has been up for several years and National Park staff must have passed it frequently but none have taken action.  That tells you something about the LLTNPA’s attitude to access rights.

Alteration of the camping byelaws

The camping byelaws that now appear on the Loch Lomond and Trossachs National Park website (see here) differ signficantly from those approved by the Loch Lomond and Trossachs National Park Authority Board and then sent to the Minister (see here).    This came as a surprise to me because the then Minister, Aileen McLeod, in her letter to LLTNPA approving the byelaws (see here) only made one formal modification to the byelaws, reducing the length of time they apply by one month.   I have asked the Scottish Government civil servants if they made the changes but they have treated this as an FOI request which means they can delay responding for a few weeks.

 

I had not picked up on these changes when previously commenting on the wording of the byelaws (my apologies to readers for this), and the changes do have some implications of what I wrote on campervans (here) and (here) and lighting fires.    I have detailed all the changes in a line by line comparison of the byelaws approved by the Board with those that have now been published.

 

The most significant changes are:

 

  • Instead of saying “no person shall sleep overnight”,  the byelaws now say “it shall be an offence…...”   This makes it crystal clear that the purpose behind the byelaws is to criminalise people simply for camping (with a £500 fine and criminal record) although senior Park staff keep claiming in their usual parkspeak there is not a ban.
  •  Instead of stating that people sleeping overnight in vehicles are exempt from the byelaws if the vehicle is on a public road or car park operated by the roads authority  the exemption now applies to people sleeping overnight in vehicles on roads, as defined by the Roads Traffic Act 1984.    Under that Act the definition of a road includes both public and private roads.  This means that the exemption for campervans and caravans is far wider than I had previously stated although, to add to the confusion, the ability to stop overnight in carparks operated by the roads authority may have been reduced (FOI requests have established there are not that many carparks operated by the Roads Authorities in the National Park and in most of them overnight stays have been banned under the Road Traffic Acts).
  • The definition of “damage” which was used in the Your Park consultation and rejected on the advice of SNH has been re-introduced to the byelaws.   (SNH have not been consulted on this – I have checked – or any other changes since the byelaws were approved by the Board).

 

In my view, none of the process through which the camping byelaws have been developed is  legitimate (e.g the LLTNPA failed to consult their Local Access Forum, a statutory consultee, before they had decided what they wished to do, fiddled the results of the byelaw consultation process, took decision outside public Board Meetings etc).   The whole process would make an ideal case study of how the process of good government can be corrupted.  However, that civil servants and LLTNPA staff appear to have taken it upon themselves to “improve” the byelaws (if the Minister made these changes she surely would have stated this in her letter) hits a new low and is an absolute indictment of the way officials, who are meant to serve the public, operate.

 

Whether this could be successfully challenged legally I don’t know, but it raises serious issues about how byelaws are created.   Byelaws are serious, they can criminalise people, but unlike other criminal laws they are not scrutinised by the Scottish Parliament and then decided democratically by majority vote.  Instead, it appears civil servants have the power to  alter the wording, and thus the extent and effect of what becomes criminal, on a whim.   They have not even consulted SNH the Government’s statutory adviser on access rights.    This is totally wrong.

 

The meaning and likely impact of the changes in wording

 

The changes to the camping byelaws have not made them any clearer, will have unintended consequences and raise further issues about enforcement.

 

Campervans and vehicles

 

The change of the scope of the exemption to allow people to sleep  overnight in vehicles to include private roads, opens up far more and better areas for campervans and caravans to spend the night.   I had previously commented that campervans might be forced into villages, as these were the one place you could be certain you were on the public roads network.  That now appears less likely as generally private roads offer more attractive places to spend the night than public roads.   To give one example, who would not rather pull onto the private road leading to the Ben Ledi carpark (in the Trossachs North camping zone), where cars already park in the day, rather than spend the night on the verge of the busy A84 through Strathyre?

 

There are dozens of private roads in the National Park, so this change probably drives a coach and horses through the byelaws – a good result if unintended in my view –  but the problem is what counts as a “private road”.   For example, what about tracks down to jetties on the loch side?     I suspect they do count as they are obviously going somewhere, but what about a vehicle track down to a loch used by the owners to go fishing?   Because of this uncertainty, one possible consequence is campervaners will stop off on the verges of the most obvious private roads, which are usually those leading to houses, rather than places they would prefer to stay.

 

Originally one of the main claimed purposes and justifications of the byelaws was to prevent overnight stops and encampments in laybys and the LLTNPA sold the byelaws to local communities on the basis that they were all about keeping anti-social campers away from where people lived.   While the Park has gone very quiet on campervans and motorhomes, there is a little give away on the “camping” section of their website:

.

In order to protect some of our most cherished lochshores, byelaws covering camping and firelighting are in place in certain areas from March to September.

During this time, you will need a permit to camp or (in some locations) to stay overnight in your motorhome in these Camping Management Zones.

 

What I believe I have shown is the locations where people will be unable to stop off overnight in a vehicle are probably very few.   While the changes to the byelaws appear to have made it more difficult for people to stop off overnight in vehicles in carparks, as even carparks run by the Roads Authority are no longer exempt from the byelaws, anyone can now in theory stop off on the private roads leading to car parks!

 

The problem here is the legal position of where people can and cannot stop overnight in vehicles is totally unclear.  First, the Park has completely failed so far to say what counts as a private road or not, and I doubt it will ever be able to do so, the legal position is far too complicated.  What instructions it has issued to its Rangers, who are supposed to enforce the byelaws, so they don’t hassle or try to refer people to the Procurator Fiscal who have not broken the byelaws, is unclear.  Second, how will the public know unless there is a sign by every private road?   There is no plan to do this and the cost would be prohibitive.  People sleeping in vehicles therefore will find it very difficult to know where they stand.  It may all come down to who is prepared to stand up for their rights and challenge the LLTNPA.  This is all wrong.

 

SNH in their response to the camping byelaws stated this quite clearly:

 

“The byelaws must be reasonable, proportionate and clear (the actions that are an offence) if they are to command support from the publíc”

 

The camping byelaws are not reasonable, proportionate or clear about where people can sleep overnight in campervans and vehicles.  These byelaws would never have been passed if they had been scrutinised properly, for example by the Scottish Parliament.

 

Damage caused by fires and collecting wood

 

What the re-introduction into the byelaws of the definition of damage rejected by SNH does is potentially to make any fire within a management zone unlawful.   The problem here is twofold:  what constitutes damage or what activities could be said likely to cause damage is subjective;  and how will the Park let people know what is responsible?  I had asked  the Park some time ago about the meaning of the word “damage” in respect of fires before realising a definition had been re-inserted into the byelaws, and received this response EIR 2017-001 Final Response fires.    Its still relevant as the Park was responding based on the definition of damage inserted into the byelaws.  It failed to provide answers to any of the scenarios I had raised and its unclear which of them could turn you into a criminal.

 

Since the response, the Park has added information on what constitutes damage caused by fires and collecting wood to  the camping section of the Park website (under permit terms and conditions) (see here).  If you are not camping but simply going for a picnic or staying in a vehicle overnight on a road and want to have a fire, you are unlikely to have any idea of this or what activities could turn you into a criminal.   While the Park could improve the information of their website,  the much more serious  issue is how will people know what is lawful unless there are signs everywhere spelling out what is and is not allowed in respect of fires?

 

The information contained in the terms and conditions for camping permits suggests that the LLTNPA is now interpreting “any damage” to mean that if you burn wood that you find, that is criminal offence, but its ok to bring your own.   If that was the intention of the byelaws, it would have been  clearer if they had simply said what is in the permits:  “Should you wish to light a fire, you must bring your own firewood and kindling”.    After spelling out the offences you could be committing, the terms and conditions include a  section on “Advice for Campers” which is far more like the Scottish Outdoor Access Code.  However, taken with the all-encompassing definition of damage in the byelaws themselves, this “Advice” just adds to the confusion: 

 

Wherever possible use a stove or fire bowl.
If you have an open fire keep it small, on a surface that cannot be easily damaged, under control, supervised and bring you rown wood,or other kindling
Comment:  so when does having an open fire count as causing damage and a breach of the byelaws which will turn you into a criminal?    So when will Park Rangers count open fires as causing damage with breaking the byelaws and try and turn them into criminals?   I am none the clearer from reading this.  It will probably depend on the Rangers who’s on duty at the time.  That is totally wrong.

 

Enforcement Policy

 

The lack of clarity over the meaning of the byelaws, and therefore what activities are and aren’t legal, raises issues about enforcement.   I have been asking the LLTNPA about this for some time and in January received EIR REVIEW 2016-057 Response-1 Enforcement policy.

 

The most important part of this letter – which is full of the usual obfuscation – is the statement at the end:

 

Finally, given your interest in the enforcement of the byelaws, the Your Park project team is currently in the process of developing an Enforcement Policy. This will be released to the public in due course via our website

 

It will be interesting to see if this policy provides clear guidance to Park rangers on all the issues that have been raised on Parkswatch but the most important thing here to note is that any Park Policy should be srutinised and then approved by the Board.    The camping byelaws thus cannot be enforced on 1st March as there is no Board Meeting scheduled till mid-March.

 

I would go further and suggest that the Minister for Environment and Ministers for Justice in the Scottish Government should comment on this policy before it is put into effect  because of the significant implications for who could be made a criminal or not.    Were Ministers to do this, and not rely on opinions of their civil servants, they would realise the byelaws as they relate to campervans and sleeping overnight in vehicles are unworkable and, as a consequence of this, there is a complete lack of parity between how campers and campervaners are affected by the byelaws which undermines their whole rationale.

 

What can be done?

 

Its only a matter of time before someone decides to challenge the legal basis of the byelaws.  As soon as someone is referred to the Procurator Fiscal for lighting a fire or sleeping in a vehicle for example, it should be possible to challenge the LLTNPA  without incurring great costs.

 

The LLTNPA’s success in enforcing  these byelaws mainly depends on bluff.  This is not just about the impossibility of enforcing badly wordly byelaws,  the Park clearly wants to make camping in a tent in a management zone a criminal offence, but if the Park tries to refer lots of innocent campers camping according to the Scottish Outdoor Access Code to the Procurator Fiscal, their reputation will collapse.    If people call the Park’s bluff,  the byelaws will collapse.

 

In the longer term we need to prevent this situation recurring.  A good way to ensure this would be if ALL byelaws affecting access and thus access rights could be called in for scrutiny by the Scottish Parliament.

 

Meantime, people could follow the excellent advice from Cameron McNeish in his article on Walk Highland and write to Scottish Ministers asking them to intervene

 

A look to the future?

 

February 23, 2017 Nick Kempe 4 comments
The construction track as it looks after “restoration”  .   It appears very little vegetation was saved prior to construction for use once the track was removed and the pile of boulders created by the construction work has simply been left without any attempt to re-position so they would appear more natural.   Photo Credit Jonathan Binny

The stretch of land between Dalwhinnie and Feagour, on the A96 west of Laggan, taken by the Beauly Denny powerline is fairly unfrequented.   Following my posts on the Beauly Denny at Drumochter (see here) and (here), my thanks to Jonathan Binny for sending these photos of the section between Feagour and the col east of Meall nan Eagain.

 

 

The Scottish Government, which overruled the objections of Cairngorms National Park Authority to the Beauly Denny, required all construction tracks  to be restored to their original condition. These restoration works were supposed to be complete last year, so the photos show the “final restoration” – clearly not the original condition.

 

In 2013, Ben Alder Estate, which covers part of this area, applied for planning permission to keep part of the construction track (just like the Drumochter Estate did at Drumochter) but this was refused by the CNPA – for which they deserve credit.  I suspect it helped the CNPA that an excellent case was made by John Thomas for refusing the track, including the added impact it would have on wild land (see here).     (NB I know John slightly but I had no idea he had made representations on any part of the Beauly Denny until I checked the application on the Park’s planning portal).   The primary problem that the photos illustrate is not that the CNPA are failing to consider planning applications properly or set appropriate conditions – they do most of the time – its that they are failing to enforce those conditions.

 

I checked with the Scottish Government about responsibility for enforcing the Beauly Denny planning conditions:

 

My question

“I am interested in trying to find out what the role of the Scottish Government is in ensuring the Planning Conditions that were attached to the decision to allow the Beauly Denny powerline to be constructed are enforced”

The Scottish Government Response.

“In relation to the enforcement of conditions on planning consent, this is primarily the responsibility of the relevant planning authority, i.e. the planning authority within whose area the development is taking place.”

 

I think this is pretty clear.  Responsibility for ensuring Scottish and Southern Electric properly restored the land after the construction of the Beauly Denny lies with the CNPA within the Cairngorms National Park.     I can sympathise with the CNPA that they never wanted the Beauly Denny to run through the National Park but once that decision was made their responsibility was to ensure the work was done to the highest standards.  That clearly hasn’t happened and there is no record of the National Park taking any enforcement action.

 

In case any reader is thinking from all the photos of destruction posted on parkswatch that destruction is an inevitable consequence of development in our hills, its worth comparing Jonathan’s photos with restoration work elsewhere

Photo of moorland restoration on the upper Gynack hydro scheme Kingussie February 2016.  The line of the pipeline runs from the view up the centre of the photo.

The Pitmain Estate avoided constructing a new track here and used different construction techniques for this hydro (which I will feature in a future post) but you can see quite clearly that heather has been retained and then replanted.  Most hillwalkers probably walk past this pipeline without realising its there.  That is not going to happy any time soon with Beauly Denny – in fact they are now talking of 20-30 years before the land “recovers”.   That is NOT restoration but a very slow reclamation by nature processes.

Part of the track from Feagour went through woodland. Photo Credit Jonathan Binny.

 

The land looks just like any other clearfell, a mess, which will take years to recover.   Contrast this with the restoration of the ground in Stank Glen by Loch Lubnaig in the Loch Lomond and Trossachs

National Park

The line of the pipeline runs diagonally across photo from bottom left and has been cut through the trees.

Again, this was not restoration of a track as shows, but does show how woodland can be restored after major construction works.  The work here post-dates the Beauly Denny and will be all but invisible long before nature reclaims the Beauly Denny destruction.

In addition to the destruction caused by the construction track, which appears to have been in addition to the forest track far right, you can see the usual failure to restore the ground around the base of the pylons Photo Credit Jonathan Binny

 

What Jonathan’s photos demonstrate along with the photos published in earlier posts, is that there has been a serious failure to restore the ground and tracks after the Beauly Denny works within the Cairngorms National Park.    This should matter to SSE the developer – it claims to take a responsible approach (see here), including treating staff decently and tackling climate change.  Along with claims about sustainability  its foundational aim is to “Do no harm”.   That’s not what these photographs show.   SSE’s claims seem to count for nothing when it comes to how it treats the land.

 

However, responsibility for addressing SSE’s failures lie with the CNPA.   This is not just one isolated bit of land that has been trashed by some landowner that doesn’t care, its a huge swathe of ground running right through the National Park.  The CNPA should be exposing SSE for failing to hold by its own claimed principles.  This is actually one case where the public could have an influence.   If the destruction was publicised and SSE does nothing, customers could change their accounts.   There is huge potential in this case for CNPA to sort matters out without the costs of any legal action simply through the adverse publicity for SSE which would be created if it threatened to take enforcement action along the length of the Beauly Denny.  What has the CNPA got to fear?

February 21, 2017 Nick Kempe 2 comments
The Loch Venachar Quay carparking area – a nice scene or a demonstration of how powerful interests control how we enjoy the landscape?

On Sunday, I was reminded of Oscar Wilde’s story of the selfish giant.   The story is about a giant who returns to his castle, finds children playing in his garden and infuriated, builds a wall to keep them out but then the hard way learns the error of his ways.  Its a parable about many things, but access and sharing land is at the heart of it.   For readers who don’t know it,  its a recommended read (5 minutes – see http://www.online-literature.com/wilde/180/). 

 

I had gone to the Trossachs to check a couple of hydro schemes (about which more anon) but first of all wanted to check some details about the land around Loch Venachar House, the home of Linda McKay, the soon to depart convener of the National Park.  She appears to have been the driving force behind the forthcoming camping byelaws (see here).   I stopped at the carpark at the Quay on the Invertrossachs Rd, which the Loch Lomond and Trossachs National Park upgraded in 2015.   Parkswatch has previously covered how the Loch Lomond and National Park Authority had changed some of the original plans for this site (see here for the cock and bull stories about why gates were installed)   as set out in the Five Lochs Visitor Management Plan in 2012.  What I had not appreciated till last week was that the Park had applied for planning permission to itself for re-landscaping this car park and planning documents were also available:

The plan that was approved 14th January 2015 by planning – note the footpath out along the quay.

In the original Five Lochs Visitor Management Plan,  the area to the right of the gate which is directly adjacent to the grounds of Loch Venachar House, Linda McKay’s House, was to be grassed.  On the planning application the grass was replaced by trees.  You can see from the photo that many are of prickly variety and sit in front of a full height barbed wire fence.  The objective would appear to be the prevention of any public access along the shoreline towards the old water works. Why the LLTNPA should be so determined to curtail  public access here remains obscure.

 

While the landscaping in the foreground of the photo at the top accords with the plan granted planning permission, the path along the quay has totally disappeared and been replaced by closely planted trees making access very difficult.  Again, it would be in the public interest to know why it was decided to do this.

According to the plans approved by the LLTNPA the path was supposed to run just to the right of the larger trees on the left side of the Quay

The land at the Quay was gifted to the people of Callander on 7th August 1909 as part of a deal in which a builder, John Watherston, bought the lands of Easter Duilater (now known as Dullater) from the McLaren Educational Trust.   The original deeds from the Register of Sasines state that the purpose of the gift was for local people “to enjoy the rights and privileges of fishing and boating in Loch Venachar……together with the right of access to Loch Venachar for these purposes”.   Over the years the land was managed on behalf of the people of Callander, first by the McLaren Educational Trust, then Callander Borough Council before being transferred to Stirling Council and thence to the Loch Lomond and Trossachs National Park Authority on 22nd September 2004  (along with other parcels of land on the north side of Loch Venachar, Rowardennan, Milarrochy Bay and some other places).

 

While the quay had fallen into disrepair, one might have thought a National Park would have wanted to respect the terms of the original gift.  Not so – the LLTNPA has now effectively stopped anyone from launching boats from the quay while  the dense treeplanting  discourages anyone from walking out to the end of the Quay and enjoying the view along the shoreline to the dam and waterworks, a  fine piece of Victorian architecture.

Loch Venachar House is behind the Scots pine, Venachar dam to the left. The full height fence appears to stop close to where what I believe is willow scrub can be seen in the water

This landscaping appears to contravene one of the four statutory aims which is to promote enjoyment of the countryside.  An artificial quay built into a loch is not the sort of place that would normally be planted or where tree regeneration would be promoted.    I have written to the LLTNPA asking for them to explain why the path has been replaced by a barrier of trees and the basis for this decision.

 

One might have hoped that with the Convener of the LLTNPA, Linda McKay living next door, she would have taken a close interest in the need for the Park to demonstrate best practice here and intervened to prevent this measure.   On the contrary, I have – despite asking – seen no evidence that she made any written representations on the Park’s development of the Quay site.

 

The main thing I wanted to check on my visit though was access along the boundaries of Loch Venachar House.    Last summer I had seen a barrier between the high fence, which I suspected marked the property boundary, and a lower fence that runs along the edge of the quay.  It was still there:

The wire is very hard to see from a distance (you can see a faint haze across between the fences if you look carefully) and its only if you tried walking between the fences that you would realise it was there:

Close up though the barbed wire and wire netting below it form a very effective barrier with no way round without wading through the Loch.   I have no idea of who has done this.   It appears though to be fairly recent from the way the barbed wire is wrapped round the fence wire, i.e it post dates that, and whoever did this appears to care little for trees.  Nor do I know who owns the land outside the fence.  This could form part of the Venachar House property or could be owned by someone else, such as by Scottish Water – or it could form part of the harbour and quay and be owned by the National Park itself (I was not able to find the diagram of the land originally gifted from the Register of Sasines).

 

What I did learn on Sunday though, from a man fishing with his son, is that people used to walk around the shoreline of the loch here to the dam during the long period when the former Venachar House was derelict.  The intention of the new wire is clearly to stop people doing this and because its outside the fence that marks the garden boundary, whatever the ownership, it appears to be an obstruction to access, possibly on land owned by the LLTNPA.    Interestingly, the man fishing – who turned out to be a police officer in his day job – also told me that when the reservoir is low you can still walk round to the dam along the beach.  LLTNPA photos from the Your Park consultation prove that people used to camp on the beach along the shoreline by the Invertrossachs Rd and perhaps they also used to camp on the beach in front of what is now Loch Venachar House.

 

After checking the Quay side of the shoreline and being unable to get further, I walked round Linda McKay’s house then took the track to the dam.

The track to the dam, Loch Venachar House on the left.

 

The access is not welcoming, there are no signs making  walkers welcome however,  I knew the track was used by Scottish Water to access the dam and the last time I had visited, a woman from the house to the right of the track gave me a friendly wave as I walked past.

The view of the dam and track beyond the houses – clearly an access track

At the dam I tried walking back towards the Quay along the lochside, but this was soon blocked by vegetation, so I walked through the open field (to left of picture), climbed over a wire fence and then realised by a short section of wooden fence between the fence and the shore that if I went further I could be in what is now Linda McKay’s garden.  I turned round.

The view from the wooden fence outside the field.  This is where apparently people used to walk along the loch shore between the Quay and the dam. The Quay is round the corner in the distance. The double height fence in the previous photos stops somewhere between here and the Quay allowing the occupants of Loch Venachar House open access to the lochshore.

 

 

I don’t know as yet whether the shoreline here forms part of the property of Loch Venachar House or whether the wall or line of trees in the photo forms the boundary and, if so, who owns the land outside the boundary, including the sloping embankment down to the reservoir.     If the wall or lines of trees forms the boundary, the land outside of this would still be within access rights.  However,  because there is no information and because no-one wants to walk into what is legally someone’s garden, what this would effectively mean is that the owners of Loch Venachar House have secured part of the shoreline for their own private use.   I turned back because of this.    If the owners had continued with the boundary fence, as they have every right to do, this would indicate to the public that the land outside the fence was within access rights but would have blocked Linda McKay’s access to the shore.

 

If the entire shoreline now forms part of the Loch Venachar House property, since its been effectively treated as being part of the garden, then access rights would no longer apply.    If that is the case, this is a land reform issue – how do we protect land that is important for recreation from being bought up for exclusive private use?

 

I live in Glasgow, am lucky enough to live in a nice house on a fairly quiet residential street and on an average day several hundred people walk within metres of my front door.  If people, whether children or drunks step onto the property I happen to own, I tolerate it and sometimes welcome it.  In this respect I am no different to many thousands of other city dwellers.  I know there are though some people who live in the countryside or very large houses who feel differently.  They become so hooked on their own privacy or right to enjoy the land that they try and put barriers around their property, like the selfish giant.

 

One of the significant things that have changed for the better as a result of our access legislation in 2003 has been the whole culture of access among the general population (if not among public officials).    Many people who live in the countryside have become far more relaxed about access and have come to realise that people visiting and walking close to where they live are not a threat but a positive thing.  There are now walkers welcome signs all over Scotland.    Views have changed, like those of the Selfish Giant, but on a mass scale.  This is something that Scotland can and should be very proud of, one of the greatest achievements of the Scottish Parliament.

 

Unfortunately there are still some people who have not seen the light, who, like the selfish giant, remain shut up in their properties.   While Linda McKay appears to have done nothing illegal, my investigations have re-inforced what I thought the first time I saw how she had fenced her house and how the National Park had blocked off access at the Quay.  Neither she, nor the National Park staff who changed the landscaping design at the Quay,  appear to be to be among those people who understand or appreciate the importance of access.   Such people have a right to their views but should not be holding positions of power in a National Park which has a legal duty to promote access to the countryside and that they do is a matter that should be of the greatest concern.

 

What needs to happen

 

We need to learn from what has gone wrong  in the Loch Lomond and Trossachs National Park Authority.    A key lesson for  the Scottish Government is to avoid in future the appointment of anyone to a National Park Board  who appears to  have strong private interests which conflict with the protection and promotion of access rights.    I think that should require that at Board Interviews, people who own land should be asked to demonstrate how their management of land is in sympathy with the National Park’s objectives.  This should include not just access but also conservation and sustainable use.  If people cannot demonstrate this in their own ownership of land they should not be appointed (that would also rule out any landowners who had in any way tolerated raptor persecution or flouted planning permission from serving on National Park Boards)

 

At Loch Venachar, public access should be restored from the quay to the dam area along the shoreline linking to the path alongside the river beyond.   The dam is a listed building, a great place to visit and it could form part of a path network linking Gartchonzie with the Invertrossachs Rd, a distance of c1.5k.   Walking along river and lochside would be immeasurably superior experience to walking along the Invertrossachs Rd, which is currently marked as a core path.   If that requires the LLTNPA to purchase of a strip of land on the edge of Linda McKay’s property then they should do this, as soon as possible, using their compulsory purchase powers, if necessary.

The downstream side of the Loch Venachar dam – an interesting place to visit that could be linked to a path along the river and the Invertrossachs Road
February 20, 2017 Nick Kempe No comments exist
The “temporary” construction track looking north towards Dalwhinnie. Note the piles of spoil running alongside the left of the track – an artificial esker!

Following my  post about the failure to restore the destruction caused by the Beauly Denny  by the developer, Scottish and Southern Electric, I went last Monday to have a look at the section of the “temporary” construction track on the Drumochter Estate.

 

Under the Beauly Denny planning application determined by the Scottish Government, all construction tracks were to be fully restored.  The Drumochter Estate however submitted an application in 2013 to the Cairngorms National Park Authority to retain the section of track on their estate.   The first application was refused, mainly because the estate wanted to keep the entire section of track which ran through the estate.   The section south of North Drumochter Lodge ran into the Drumochter Special Area of Conservation – why is it that only European designated sites appear to have any teeth?  – and cut across the open hillside.  The revised application removed the southern section of track but is still 4.7 km in length.

The track granted planning permission runs from 750m south of Drumochter Lodge to just south-east of Dalwhinnie. Most of it is hidden from A9 by a shelter belt of trees.

 

The Committee Report which considered the application in February 2015 track planning application was very thorough.  The CNPA had opposed the Beauly Denny, was concerned about the proposed track, but was won over by arguments that with the new A9 dualling would make it very difficult for estate vehicles to access the existing hill tracks onto the east side of Drumochter.   Their assessment of the construction track was pretty damning:

 

However, the assessment of staff was that as long as the construction track was narrowed considerably – to a maximum of 3m – and the spoil heaps used to do this, retention of the track was acceptable:

 

The North East Mountain Trust, which to its credit had objected to the application for the existing track was also persuaded and agreed not to object.   Both the NEMT and the CNPA were no doubt partially persuaded by the illustrations from the estate of what they were proposing:

 

The problem is that two years later absolutely none of what was promised by the estate has happened.

No work has been undertaken to narrow the track from 5m in width and no work undertaken to conceal the plastic culvert

Some of the track is “floating” which means it was created by dumping aggregrate onto the peat in sufficient quantities to support construction vehicles.  Proper restoration would mean all this aggregate being removed.   The estate promised to improve this by narrowing the track to 3m maximim and revegetating the sides using vegetation from a new drainage ditch and seeding.

 

The track is almost two landrover widths and should have been almost halved in breadth according to the planning conditions.

Part of the restoration proposed by the estate was removal of this “hammerhead.   Nothing has been done.  There are piles of spoil in the centre and along right side of the area.

Another view of one side of the hammerhead.  All this ground should have been restored.

Spoil heaps on either side of the opposite section of the hammerhead to that pictured above.

The priority of the estate is indicated by these new grouse butts.  They were being brought in from the A9 by landrover and trailer.  It appears it has suited the estate to retain a large storage area rather than restore the land as promised.

The access to the A9, more spoil heaps on right. The shelter belt helps conceal this mess.

 

The CNPA, again to give it credit, had required that all the works be completed by June 2016:

Six months after the deadline for works to be completed, on the section I looked at at the north end of the proposed track, there is no evidence that any work has been completed.  There are two issues here:

  • first you cannot tell from the planning portal whether the CNPA has agreed in writing with the estate to extend the deadline for completion of the works beyond June 2016 and, if so, the justification for this and what the new deadline is;
  • second, if the CNPA has not agreed an extension, its not clear what enforcement action they have taken if any.

 

Unfortunately, this is yet another planning case where the credibility of our National Parks is at stake.  What appears to be happening in a number of cases from Natural Retreats at Cairngorm to the Bruar Hydro to Drumochter is that the CNPA approved planning applications with conditions which the developer then simply ignores.   The failure of the CNPA to go public about this and use its enforcement powers gives a clear message to developers that as long as they pay someone to complete good looking paperwork, they can do what they want.

 

In the Drumochter access track case there is an added complication.  SSE were supposed to restore this track and, being a huge company, obviously have the resources to do this properly (if there was anyone insisting they should do so).  Having agreed that Drumochter Estate could keep the track, however, the risk is that all obligations of SSE will have been taken over by the estate.   My guess is that will now make it impossible for the CNPA to turn round to the estate and say the planning permission no longer applies and ask SSE to do the works.

 

This supposition is reinforced by the fact that SSE has not been at all co-operative about restoration of the Drumochter and the atrocious standards of the restoration work they have undertaken.

The restoration of the land under the pylons (access track foreground and background) is SSE’s responsibility though the communications I have had from the Scottish Government say its the CNPA’s responsibility to enforce this

The trouble is that the CNPA has allowed them to get away with this.    Although very concerned about the standard of work, and taking time to visit the site, they have then resorted to their normal practice of writing letters rather than taking enforcement action when things go wrong:

 

20. The Convenor advised the Committee on her reflections following site visit with Scottish & Southern Energy (SSE) to the Beauly – Denny overhead transmission line that she and other members had attended, along with SNH staff. She advised that it seemed that SSE Officers were not sufficiently clear as to what the restoration of the tracks involved. SSE Officers were also rather vague as to who was ultimately responsible for carrying out the restoration and reinstatement and what standard would be deemed acceptable. Following a full discussion the Committee agreed that Convenor of the Board should write to SSE expressing significant concerns.  (Planning Minute June 2015)

 

The failure of the CNPA to take a robust line against either SSE or the North Drumochter estate means that the CNPA is storing up serious problems for itself at Drumochter and setting further poor precedents for the rest of the National Park.

February 19, 2017 Nick Kempe No comments exist

Back in 2011 the justification for the camping byelaws on east Loch Lomond was all about anti-social behaviour.  Here is what then Chief Executive Fiona Logan said on BBC News 10 March 2011:

 

“National park chief executive Fiona Logan said she did not believe there were any other areas of the park where similar bans would be “appropriate”

“We really want responsible people to come to the park and enjoy themselves,” she said.

“This is about tackling anti-social behaviour and not penalising West Highland Way walkers or those people with a backpack on.”

Ms Logan said the measures had been welcomed by local residents who had complained for many years about informal camping on the Lochside.

But she told BBC Scotland that the by-laws were not permanent and could be revoked if the park was confident the problems had been successfully tackled.

“We would like not to have these laws in three years,” she said.”

 

The LLTNPA did claim in the review of the east Loch Lomond byelaws that the problems on east Loch Lomond had been solved but instead of revoking the byelaws, as Fiona Logan had promised, the Park decided to extend them – because of their alleged success in tackling anti-social behaviour.    Leave aside the fact that the Park’s analysis was totally flawed (see section 4 of Report on Your Park consultation process)  the Minister at the time, Paul Wheelhouse, thought the byelaws were about tackling anti-social behaviour too judging by his Letter to Linda McKay Oct 2014:

 

The report provides a useful and detailed analysis of the positive impact that the introduction of the byelaws have had in tackling significant issues of anti-social behaviour on the east side of the loch.
I imagine the current Government Minister Roseanna Cunningham, and all the people who have believed what the LLTNPA has said,  might be surprised to hear that the camping byelaws as published (and they have been changed which I cover in my next post) will do nothing to stop anti-social behaviour.   This is because under the new byelaws it is NOT an offence to sleep outside and the provisions relating to vehicles will be impossible to enforce (see here)  
While the byelaws will make it a criminal offence (you get a full-blown criminal record and fine of up to £500) for putting up a tent or any kind of shelter, for the people who want to party on the shores of the lochs in the National Park, having a tent is hardly crucial.  If you think about all the Park’s photos of wrecked tents, the wrecking  almost certainly takes place when people are drunk and in all likelihood a significant proportion of wrecked tents were never slept in.   While the  east Loch Lomond byelaws made it an offence to sleep outside, that provision has been removed, so the dead drunk can simply collapse on the ground – as the dead drunk tend to do – and not a single byelaw will have been breached.     Morever, it won’t take long till the party goers realise that if they hire a van instead of taking a tent, as long as they leave that on the road verge they can sleep in it without committing any offence under the byelaws.
All the byelaws will do therefore is make criminals out of responsible campers.
There won’t though be any influx of revellers to east Loch Lomond as long as the alcohol byelaws and the restrictions on parking north of Balmaha continue to be enforced – which only goes to show it was not the byelaws that stopped the anti-social behaviour there as the LLTNPA claimed to Government Ministers.   The problem for the LLTNPA is it cannot promote clearways throughout the rest of the National Park because it can only do so for road safety reasons and the effectiveness of alcohol byelaws is dependent on policing.
The extension of camping byelaws in the rest of the National Park therefore is very unlikely to stop anti-social behaviour – which is almost certainly why Gordon Watson, Park Chief Executive, is now claiming the real reason for the byelaws is the “sheer volume of campers”.    The problem of anti-social behaviour though remains – as it does across Scotland – and the solution is the same as it always was, good policing.

Encampment

A second major justification for the camping byelaws given in the Your Park consultation was the “summer long encampments in the area’s most scenic laybys”.   Now, there were already powers to deal with this under Section 61 of the Criminal Justice and Public Order Act 1994,  although the LLTNPA has never worked with others to use the existing law. Instead it claimed to local communities that camping byelaws would deal with the problem of encampments.   That now appears to be a lie because the byelaws definition of a “vehicle” includes a “vehicle designed or adapted for towing” – which I understand includes caravans which are classified as “leisure accommodation vehicles” – and its NOT an offence to sleep overnight in a vehicle as long as its on a road.  Since the definition of a road includes the verge and laybys which are part of the roads networkthe byelaws will do nothing to stop encampment.

I am sure local communities will be surprised to learn this because vehicle encampments were one of the major reasons for their support of the byelaw.  This is illustrated by these responses to the camping byelaw consultation (which I obtained through FOI but are also on the Your Park website):

 

399) BLS Community Council:  “there seems to be a misconception, amongst a minority of visitors, that they can bring a caravan to the lochside and leave it parked up for the whole ‘fishing season’.  This ruins the opportunity for other genuine visitors………”  Comment  unfortunately its just the genuine campers who will be affected by these byelaws.

 

460) East Strathearn Community Council – wanted all laybys Loch Earn to be accessible to visitors.  “We absolutely support any measures that will discourage any semi-permanent occupation of our loch shores”.

394) Crieff Community Council  Member of Strathearn and District Forum of Community Councils, “through which we are aware of the problems and difficulties causes at St Fillans and the adjacent area of Loch Earn by rogue campers and caravaners, anti-social behaviour and rowdyism, and drink related problems and litter” and “ask if the proposed changes will tackle the particular and regular problems of caravans being left in lay-bys and authorised parking places for weeks at a time”.   Comment – sorry Crieff, the answer appears to be no.

551) Comrie Community Council.  “The members of Comrie Community Council fully support St Fillans Community Council, and residents of St Fillans, in their efforts to combat/control the ongoing problems along Loch Earn of prolonged camping, particularly over the summer months – whether in tents or motorhomes……………..”     Comment the provisions of the Criminal Justice and Public Order Act could be used against tents as well as motorhomes or any time of Leisure Accommodation Vehicle.  The byelaws will only stop campers, the vast majority of whom are not camping for prolonged periods.

What needs to happen

 

I hope these local communities will now start calling on the LLTNPA to use the powers under the Criminal Justice and Public Order Act, which might just address the problems they have experienced, and unite with recreational organisations in calling for the camping byelaws to be ditched.

February 16, 2017 Nick Kempe 1 comment

On 8th February, a few days after my post on freedom-speech-democracy-national-parks  Peter Argyle, Convener of the Cairngorms National Park Authority, posted a Statement on Cairngorms News   about his dispute with Board Member Councillor Bill Lobban titled “Convener Clear on Code of Conduct”.    Its positive that Peter Argyle has been  open about this because what he has done, albeit inadvertently, is to highlight a fundamental contradiction at the heart of the Code of Conduct.

 

The issue that has arisen is emphatically not about Mr Lobban’s right to speak out or support his constituents as a councillor. It is not about freedom of speech. It is simply about the duties imposed upon him and all of us on the CNPA board by the Code of Conduct which we all signed up to when appointed to the board. It specifically requires us to act at all times in the best interests of the CNPA.

 

The relevant part of the Code of Conduct which Peter Argyle refers to comes under “General Principles”:

 

Duty
12.You have a duty to uphold the law and act in accordance with the law and the public trust placed in you. You have a duty to act in the interests of the Cairngorms National Park Authority of which you are a member and in accordance with the core functions and duties of that body.
Peter Argyle has then interpreted this as requiring Bill Lobban to agree with CNPA Board Policy:
My actions and discussions were directed solely to try to resolve a situation of a Board member’s personal opinion being at odds with the agreed policy of the Board.

 

However, as he is a Councillor, Bill Lobban is also bound by the Code of Conduct for Highland Council and guess what, this also includes, under the section on General Principles, a clause on Duty:

Duty
You have a duty to uphold the law and act in accordance with the law and the public
trust placed in you. You have a duty to act in the interests of the Council as a whole
and all the communities served by it and a duty to be accessible to all the people of
the area for which you have be en elected to serve, and to represent their interests
conscientiously.
If this clause had the meaning that Peter Argyle imputes to it, that every member of the Board should on all occasions support Board policy, every councillor on our National Park Boards would be in an impossible position each time their Council adopted a different policy position to that of the National Park.   What duty should be put first, the duty to the National Park or the duty to the Council?  This doesn’t just affect Councillors as some National Park Board Members also serve on other Boards that are also governed by a Code of Conduct with a similar duty clause.  What this shows is there cannot be a duty on Board Members always to uphold Board Policy.
 
This though has not prevented our National Park Conveners acting as if there was an absolute duty on Board Members to uphold Board Policy.  In the case of the Loch Lomond and Trossachs National Park Authority its been taken so far that any disagreements between Board Members are resolved in secret Board “Briefing Sessions” and then all “decisions” are agreed unanimously.  In the case of the  camping byelaws, strict instructions were issued telling Board Members they could not talk to the media.  Thank goodness therefore Councillor Bill Lobban was prepared to go public about his disagreement on planning policy and that his local paper was prepared to carry the story.
 
Our National Park Authorities, ability to silence debate and opposition is helped by the wording of the Duty clause.  In the Council Code of Conduct the duty on councillors is not just to uphold the law and act in the interests of the Council as a whole but to act in the wider interests of all communities and  to represent the views of the community which elected them.  This allows Councillors  to speak out against their own council policies or actions. The Council Code of Conduct in effect recognises that the interests of the Council, as a public authority, may not be the same as the people who have an interest in it, ie local residents.
The National Park Code is significantly different.  The only duty on Board Member is to uphold the law and the interests of the public authority. There is no duty to anyone or anything else.   Even the locally elected representatives to the Board have NO duty to represent the views of the people who elected them.  This is very wrong.  It puts the interests of the National Park Authority, which is only an organisation, before that of the people who live in the National Park or the people who visit – there is no duty to represent national interests, such as outdoor recreation – and no duty to protect nature.
 

What needs to happen

The Duty clause in the Code of Conduct for our National Parks – the LLTNPA one is very similar – needs to change.  I would like to see it become about upholding  the four statutory aims of the National Park  rather than upholding the interests of the National Park Authority, which basically means the interests of staff and Board Members.
Such a change would, I believe, encourage open debate and allow room for disagreement on the National Park Board because interpretation of those four statutory aims (ie conservation of nature, enjoyment, sustainable use of resources and sustainable economic and social development of local communities).varies.  It would enable Board Members to speak out, for example, against inaction on raptor persecution, which contravenes the conservation aim of our National Parks, or on the LLTNPA camping byelaws which will stop people enjoying the countryside.     It would I believe help Board Members focus on the fundamental issues, such as how planning powers could be  used more effectively to achieve the statutory aims of the National Park, rather than the question of whether planning applications are best dealt with by Highland Council or the CNPA which led to the dispute between Peter Argyle and Bill Lobban.
February 15, 2017 Nick Kempe 1 comment
Sign in centre of Balmaha (see below). Park Rangers have passed this sign on an almost daily basis for over 10 years but no-one from the LLTNPA ever thought to challenge it

I have now had responses to two of the issues I took up with the Loch Lomond and Trossachs National Park  after the appearance of Gordon Watson, their Chief Executive, on the Out of Doors programme on National Parks early in the New Year and which I covered in a post at the time (see here).

The first issue, I took up with Gordon Watson directly by email.   Here is my question and the LLTNPA reply, which they have dealt with – as is their way – as an Environmental Information Response:

 

So, in respect to Mr Watson’s claim that “some signs are put up by landowners” it turns out that he had no specific sign in mind and indeed, what’s even more telling, the LLTNPA holds no information about “No” signs put up by landowners.   In other words Mr Watson’s statement was completely made up – it bore no relation at all to the truth.   Funnily enough I could have told Mr Watson of one sign on east Loch Lomond (see above).  I don’t think though that this sign contradicts the general point made by Mark Stephen and Ewan McIlraith, that the first things that hits the visitor on east Loch Lomond are the “No” signs  and most of them are put there by or with the agreement of the National Park Authority – a point Gordon Watson was trying to deny.

 

I took the second issue up with Linda McKay, the LLTNPA convener (the letter is pasted below), because one of the duties of the LLTNPA Board is to hold its Chief Executive to account and that, to my mind, should include ensuring any public statements he makes bears some resemblance to the truth.  His claim that “measures we are taking are purely about heavily used areas” was clearly utter rubbish.

 

Instead of apologising for this – and in the heat of an interview it is very difficult to get your words right – I received COMP 2017-008 Complaint Response reply from the Park’s Governance Manager (who no longer signs her letters so I am unclear if this really was sent by Ms Amanda Aikman or not).   Here is an extract from my response which is now being dealt with as a stage 2 complaint about Mr Watson:

 

“it is completely irrelevant that Mr Watson was not speaking in detail about “levels of usage”.  What he said was that the “measures we are taking are purely about managing heavily used areas”.   “Purely” is a very strong word.  If Mr Watson had said “mainly about” I would have had no complaint but he said “purely” which is not true.  I stated to Linda McKay in my letter that I appreciated words could slip out in interviews and suggested that if the words were not intended, if Mr Watson apologised I would not pursue a complaint.  Since the LLTNPA has chosen to deal with this as a complaint, I can only assume Mr Watson is not prepared to apologise, although I note in your response there is no indication of whether you have actually asked Mr Watson whether he believes his statement was correct or not.      I can therefore only assume that Mr Watson is standing by a statement which is clearly false.”     

 

I have little faith that the LLTNPA will investigate this properly because under their procedures complaints about the Chief Executive are investigated by a fellow Director – in other words someone whom Mr Watson directly line manages.  This is wrong.  There are very few people brave enough to find against their boss.  In my view it should be Board Members who investigate complaints against the National Park Chief Executives as part of their role of holding the post-holder to account.    That will never happen while Linda McKay is convener but needs to change once James Stuart becomes convener in March.

 

Previously where the LLTNPA has failed to uphold my complaints, I have been unable to take them to the Scottish Public Service Ombudsman because in order to do this you need to have suffered a personal injustice or hardship (e.g the public authority has caused you some harm).   What is shocking is that if you complain on matters of principle or governance to the National Park you have no redress.   However, and the point of outlining my complaint in public in this post, is its my reputation as a commentator on National Parks that is now at stake.  The camping byelaws are not purely about heavily managed areas as Mr Watson himself wrote in a paper for the secret Board Briefing session on  16th June 2014  (see here) released after the intervention of the Information Commissioner:

So, if whoever has been allocated to investigate my complaint fails to do so properly and to take account evidence such as this,  I will  take this complaint to the Scottish Public Services Ombudsman on the grounds that I have suffered “personal injustice”.      If they still maintain such a complaint is outwith their remit, I think that adds to the case that the law needs to change.  The public need to have some way to hold Chief Executives of Public Authorities to account when their Boards fail to do so.

 

Addendum – email to LLTNPA convener

 

Dear Ms McKay,

You may be aware that Gordon Watson was on the Out of Doors programme on Saturday and while in my view he made a number of misleading statements, one was clearly wrong:

“measures we are taking are purely about heavily used areas”. 

He said this in the first part of the programme in which he was featured (which starts after 7 minutes 53 seconds).

The reason this statement is not true is that:

a) the camping byelaws clearly cover areas which are not “heavily used” .  Data held by the Park’s disproves this including the  maps that were presented to the secret Board Meetings in September and October 2013 (see here) and Ranger records which have been made public as a result of Freedom of Information requests (which show very low numbers of people camping at Loch Arklet for example).   Mr Watson, as Chief Executive, is fully aware of this – as is the Park Board which has clearly stated that the reasons why the byelaws cover some areas is not that they are heavily used but because of anticipated displacement (the justification used for Loch Arklet for example).   He has therefore deliberately misled the public.

b) if the measures the LLTNPA were taking was purely about heavily used areas, the LLTNPNA would not now be building a campsite at Loch Chon, which is inaccessible and currently where very few people camp

c) if the measures the LLTNPA were taking were about heavy use, as Mr Watson’s statement implies, then the Park would be allowing some use to continue.  You are of course doing that in some areas, including the four permits that will be allowed on the lochshore by your own house, but there is not provision for a single permit along the shores of west Loch Lomond (which was not in any case one of the most heavily used areas)  which again shows that the byelaws are not “purely about heavily used areas”.

I am aware that interviews can be difficult and its easy to say things that might not be right and therefore if the National Park is prepared to issue a statement apologising for Mr Watson’s misleading statement that would satisfy me otherwise I would like to pursue this as a formal complaint.  As I have previously stated to you I believe there are serious deficiencies in the Park’s complaints procedure in that complaints against the Chief Executive are investigated by people managed by him which cannot be right and again ask that if you proceed to investigate this as a complaint, rather than issue a public apology,  that this is conducted by Board Members.

Yours Sincerely,

Nick Kempe

 

February 14, 2017 Nick Kempe 1 comment
Top section of track onto Carn Leth Choin at head of Glen Banchor.  The spoil has been dumped onto the windswept heath

 

 

The Cairngorms National Park Planning Committee on 8th July 2016 were informed under Any Other Business of the unlawful creation of yet another hill track in the National Park – at the head of Glen Banchor on the Cluny Estate.  This was reported in the Strathy and the minute records that “The Committee were advised that there were ongoing investigations being carried out……………and agreed to delegate enforcement powers to Officers should they be required”.    There was no further report under Matters Arising at the August Planning Meeting and I have been unable to find any further information:  there has been no retrospective planning application submitted on the planning portal.   Complete silence from the National Park.

 

I had been sent some photos of track and three weeks ago I went to look for myself, starting from Cluny Castle, over Srath an Eilich to Glen Banchor and then,from Dalnashallag bothy took the track to the summit of Carn Leth Choin.

The track takes the flank of Sron na Creige, centre left

 

My OS maps which are at least 20 years old show the Srath an Eilich track stopping at the bothy.  Interestingly the map on the National Park planning portal also sees the track stopping here.

The first section of the track is older than the section that now leads onto the summit.

The creation of the track has not stopped off-track use of vehicles on the south side of the Allt Madagain.

The slopes on the south side of the Allt Madagain are just inside the Monadliath wild land area.  One wonders how long it will be before the estate decides a track is needed here too?

 

The older section of the track is too steep – far steeper than in SNH’s Guidance on Hill tracks – and is eroding.  Its only a matter of time before this track washes out.

The track cuts over the shoulder of Sron na Creige – view here is to Carn Dearg above Loch Dubh

This culvert also contravenes SNH’s good practice guidance – neither track nor culvert are appropriate in wild land areas in a National Park.

The older section of track used to end at this “borrow pit” at c650-700m

 

 

The track has now been extended to the summit of Carn Leth Choin at 843m well into the Monadliath Wild Land Area.
The section of track just above the large borrow pit. Loch Dubh in distance on left.

 

 

The aggregate has been dumped onto the hillside and in time will erode out over the grass slopes on the right.

The aggregate has been “won” from borrow pits at the side of the track, adding to the destruction of the summit heath.

You can even see the joins between the aggregate sourced from different borrow pits.

How can the National Park justify not taking prompt action about this?

The summit of Carn Leth Choin is just to the right

The end of the constructed track – but vehicles continue from here along the ridge.

This is another example of hill tracks being unlawfully constructed in an area of wild land.   Landowners need to notify the planning authority about all new tracks, and seek their views, and in planning terms all planning auuthorities now need to take account of wild land areas.  In our National Park there should be no “ifs” and “buts” but a clear commitment to protect wild land.   This track is also within the Monadhliath Site of Special Scientific Interest and Special Area of Conservation.  Within SSSIs there are certain operations that require consent from SNH and among those listed for the Monadliath SSSI are the following:

 

20 Extraction of minerals including peat, sand and gravel, topsoil, sub-soil, limestone and spoil.   COMMENT: so the estate needed permission before digging the borrow pits
21 Construction, removal or destruction of roads, tracks, walls, fences, hardstands, banks, ditches or other earthworks, or the laying, maintenance or removal of pipelines and cables, above or below ground.  COMMENT: so the estate needed permission before constructing this track – did they ask and was it granted?
26 Use of vehicles or craft except on existing tracks.  COMMENT: so has the estate got permission from SNH to drive its vehicles beyond the end of the new track?

 

Another reason for the CNPA to take action, both it and SNH need to work together to sort this track out (just as they need to do at Dinnet (see here)).   The problem for the concerned public is there is a complete lack of transparency about what, if anything, is being done.   A first step towards improvement would be if the National Park published all cases where it was investigating the need for enforcement action as well as what enforcement action it has taken http://cairngorms.co.uk/wp-content/uploads/2015/09/Planningenforcementregister1.pdf.   The second problem is that the CNPA takes so long to take enforcement action that landowners reckon they can get away with anything – this is undermining the whole purpose of the National Park.

 

The new National Park Partnership Plan, which is due to be sent to Ministers for approval in a couple of months, could signal a change of direction and set out a new sense of purpose in respect of hill tracks if it made a commitment to:

 

  • mark the extent of all hill tracks in the National Park on a public map (as Kincardine and Deeside did 20 years ago) so that its easy for the public to report any unlawful new tracks
  • taking immediate enforcement action against any new hill tracks which are created without planning permission or prior notification and that these should be restored stone by stone if necessary
  • work with SNH, using powers under the SSSI legislation, to stop off-road use of vehicles in protected sites and to consider the introduction of byelaws to do the same in areas which are not SSSIs.
February 9, 2017 Nick Kempe No comments exist
Extract from decision paper written by Gordon Watson, current Chief Executive, and presented at secret Board Meeting on 16th June 2014 and obtained as a result of an appeal to the Information Commissioner.

The above extract speaks for itself and confirms what most people already knew, the LLTNPA deliberately omitted the Loch Lomond Islands from the camping byelaw consultation because they thought if they did so, this might stop their attempt to undermine access rights because of the opposition it would create.   This extract and the minute of the Board Meeting of April 2015 both record that the islands will be next.

 

The LLTNPA is picking off recreational groups one by one.  The boating interests on the loch were first and they have just been told that the boat launching facility at Milarrochy will be closed from 1st April.  That leaves just one place to launch boats onto Loch Lomond – and this is meant to be a National Park that serves the people on the west of Scotland.    It appears likely that the Rangers that were deployed to help boats get onto the loch are to be redeployed in order to enforce the camping byelaws.     In other words, the various attempts to control recreational use are all connected, and people need to set aside their own recreational perspectives (which tends to divide motor boats from dinghy sailors and campervans from campers) and see the wider picture.   I would like to see recreational organisations unite against what is happening and not allow themselves to be divided by their differences.   This ultimately is about people retaining their rights to enjoy the countryside.

 

The extract is also significant because it provides yet more proof that the LLTNPA’s claim that the secret “Board Briefings” did not take decisions is complete rubbish.  Recommendations were clearly made and approved in a meeting that was not open to the public.      This is not how public authorities should operate and I will repeat my call that the new Convener, James Stuart, should abolish this practice as soon as he takes up post on 1st March.

February 8, 2017 Nick Kempe No comments exist
Ardchullarie hydro intake. While the intake is well located, nestling in the burn, the finishing contravenes the Loch Lomond National Park Planning Guidance on renewables: the intake dam is concrete and not finished with natural materials; the two intake vents are the usual Park blue whereas they should be in colours that match the natural landscape; the safety fencing on the intake again stands out and the slope on the right is an eyesore. Photo Jane Meek.

A few weeks ago Jane Meek sent me photos of the Ardchullarie hydro scheme.   The Ardchullarie Burn runs parallel to the path popular with hillwalkers that leads into Glen Ample and Ben Vorlich from Loch Lubnaig.   I checked the Loch Lomond and Trossachs National Park Authority planning portal to find out more about this scheme.  A large number of documents, which the developer was required to submit by the Decision Notice which approved this scheme, were missing.     This caused me, quite mistakenly, to wonder if the documents had for some reason been submitted to Stirling Council.    In its response EIR 2017-003 Response Ardchullarie the LLTNPA has clarified that the documents were sent to them but also that it does NOT publish any planning information that it requires to be submitted to it as part of a Decision Notice:

 

The claim that “Post Decision information is not published” is not true, as is shown in this case, where  the LLTNPA did publish one piece of information (on the design of the pipe bridge), but also other cases where some information does appear post-decision.   I find it hard to comprehend the thinking behind the decision to remove the one small piece of information in this case.

 

The barriers on the pipe bridge were subject to further approval by the Park but the designs for this, where were on the planning portal, have now been removed. The ground beyond the pipe bridge, through which the pipe runs, has been better restored than the access tracks, but the concrete holding walls for the pipe bridge again are not in natural materials and could have used all the boulders dumped below and to the left of the rear wall. There has been no attempt to blend the casing of the pipe bridge into the landscape as recommended in the Park’s design guidance. Photo credit Jane Meek.

The Park’s explanation for its actions is that unless it is legally required to make information public, it won’t do so.   I find this shocking.  Our National Parks should be demonstrating best practice but instead appear to be trying to cover up what they are doing (see here for lack of openness in Cairngorms National Park).  The only reason for the Park not to publish information about the implementation of planning decisions is to make life as difficult as possible for people who want to monitor them and to cover up what is actually happening.

 

Why its important to know what is in planning documents is illustrated by the Construction Method Statement EIR 2017-003 Ardchullarie Appendix A which the Developer was required to submit as part of the Decision Notice.   Here is an example:

 

 

The new access track linked an existing track to the Ardchullarie intake (the hill path to Glen Ample is just beyond the end of the track in the  photo). Photo Jane Meek.

The access track has clearly not been restored to quadbike width.  What is the Park doing about this?  Does the Park really believe that placing a line of boulders down the middle of the construction track, to demarcate what is track and what is “restored”, demonstrates good practice for hill tracks in our National Parks?   If the information was public, we might know the answers to these questions.

The poor finishing of culverts pictured here is evident in almost all the hydro scheme tracks in the Loch Lomond and Trossachs National Park. Photo Jane Meek.

 

Ardchullarie is a very small hydro scheme and being in woodland, its landscape impact is at present limited – limited until that woodland is felled.    However, it illustrates some of the fundamental problems at present with how our planning system operates in our National Parks.

 

The  fundamental problem is that, while as in the Ardchullarie scheme the Report on the planning application may be very thorough 2013_0151_DET-Delegated_report_final-100102989 Ardchullarie,  the approval in effect is for an outline plan which then requires further documents to be submitted.   In a significant number of cases, the required documents are not submitted or approved before work commences.   If the Planning Authority does not publish all these documents, the public simply don’t know if planning requirements are being met and indeed cannot report breaches of planning permission (including works commencing before the Planning Authority is notified).   So, any Planning Authority which is committed to operating a planning system which is open, transparent and effective should be publishing all the documents it requires developers to submit as a consequence of Decision Notices.   The LLTNPA is saying they won’t publish any.  That speaks for itself.

 

This issue is not just about the Construction Method Statement which I obtained via FOI (and which you can read above).  There were 21 Conditions attached to the Decision Notice (I must commend the Park officer for their thoroughness in this case) and what the Park is saying is it won’t publish as a matter of course ANY information about the implementation of ANY of those conditions.    So, documents you or I might want to see that help explain the photos above include those required to illustrate “finishing materials and colours of all above ground structures” and the Landscape Restoration Plan (which was separate to the Construction Method Statement).  The only way to get those is through constant FOIs, where the Park then takes weeks to respond.

 

It would be interesting to know if the decision to make none of this information public and to operate in such an obstructive way came from the Board or is a staff decision.  I wonder too whether this has  been approved by the Information Commissioner.

 

What needs to happen

 

  • The LLTNPA and Cairngorms National Park Authority should commit to making public, as soon as they are provided, all documents submitted to them as part of planning decisions and also to publish the National Park’s response to these (eg correspondence if they are not adequate)
  • The Scottish Government should require – it could make a commitment to do this following the current consultation on its planning white paper – all planning authorities to publish Post Decision planning information on their planning portals.
  • I would like the Information Commission to include in their guidance on publications schemes, that Planning Authorities should be publishing post Decision Notice information relating to that Notice.  Unfortunately, the Information Commissioner does not have the powers to force the National Park to do this.

 

February 7, 2017 Nick Kempe No comments exist
Slide from the Secret LLTNPA Board Meeting on 9th September 2013 – the slide makes no reference to Linda McKay and senior’s staff’s unsuccessful attempt to try and change our access legislation earlier in 2013

I have been puzzling about the development of the camping byelaws by the Loch Lomond and Trossachs National Park now for some time.  Back in 2011 when the east Loch Lomond camping byelaws were put into place, the then LLTNPA Chief Executive Fiona Logan made a number of statements (these are taken from BBC News Bulletin 10th March 2011:

 

National park chief executive Fiona Logan said she did not believe there were any other areas of the park where similar bans would be “appropriate”

She told BBC Scotland that the by-laws were not permanent and could be revoked if the park was confident the problems had been successfully tackled.

“We would like not to have these laws in three years,” she said.

 

Yet, less than two years later the LLTNP submission to the Land Reform Review Group advocated that the right to camp within a certain distance of a public road should be removed completely from access rights and that sanctions be introduced, in the form of Fixed Penalty Notices, for breaches of the Scottish Outdoor Access Code.  This would have completely changed the Land Reform Act.   The LLTNPA proposals were rejected by the Land Reform Review Group which had been charged with reviewing how our access legislation was working in their Interim report of May 2013 and the LLTNPA proposals,  along with other access matters, were  referred to the National Access Forum for further consideration:

 

Members of the Group were given a presentation by the Loch Lomond and Trossachs
National Park which graphically highlighted their concerns………………
However, the general view is that most of the complaints about access will be resolved by better implementation of the Access Code and better visitor management rather than by modifying the legislation. This is the core business of the National Access Forum (NAF) . We therefore propose to share the evidence from the LRRG submissions with the NAF, invite them to review it and to
report back to the Group through our advisers.

 

Just four months after being told by the LRRG that there was no need for the changes in our access laws the LLNPA Board held its first secret meeting to consider using its powers as a National Park Authority to change the law.

 

There is no evidence, as far as I am aware, that the National Access Forum ever discussed the LLTNPA submission on camping or that the LLTNPA tried to engage the National Access Forum about visitor management in the National Park.     If this was not a conspiracy, I am not sure what would be.  No wonder the LLTNPA developed its byelaw proposals in secret because if they had done so openly they would have been seen to flout the recommendations of the LRRG.

 

What the Information Response I received last week  EIR 2017-004 Response LRRG and EIR 2017-004 LRRG Appendix A  shows is two things:

 

  • First, the submission which purportedly came from the Loch Lomond National Park Authority to the Land Reform Group was never considered by the Board (this conclusion follows from the Park’s declaration that it holds no information on meetings or communications between Board Members to discuss this matter).
  • Second, that Linda McKay, the Convener of the Board headed the delegation which met with the LRRG on 15th February 2013 to discuss the LLTNPA submission.  This also included Grant Moir, now Chief Executive of the Cairngorms National Park, Gordon Watson (current Chief Executive LLTNPA) and Bridget Jones.

 

What this tells us is that  Linda McKay was personally leading the case to change our access laws despite not having discussed or agreed this with her Board.  Just how far individual members of staff were willing participants in this is unclear but Grant Moir had previously said publicly he did not support any further extension of the byelaws.  The submission to the LRRG did say though that this might be reconsidered AFTER the review of the East Loch Lomond byelaws.   That review only took place in March 2014 so what’s quite clear is, that having told the LRRG there were no immediate plans to extend byelaws, someone in the Park then authorised staff to spend time working up proposals to do just that for the Board in September 2013.   That person, it appears, was Linda McKay, the Board Convener.

 

All the evidence therefore now points to Linda McKay, a Scottish Government appointee to the Board who is also a non-executive director of the civil service, as being the driving force behind the camping byelaws.  It appears therefore that she is also responsible for the secretive process that has led to them being approved first by the LLTNPA Board and then approved by the Minister for the Environment.

 

The timeline is as follows:

  • 2011 introduction east Loch Lomond camping byelaws
  • October 2012 – January 2014   Call for evidence LRRG  – LLTNPA submit response
  • 15th February 2013 LLTNPA meeting LRRG led by Linda McKay
  • 20th May 2013 Interim Report form LRRG referring LLTNPA and other submissions to National Access Forum
  • 9th September 2013 first secret “Board Briefing” session to discuss camping byelaws
  • 28th October 2013 most of secret “Board Briefing” session taken up with camping byelaws
  • December 2013 Board Meeting – Visitor Management paper (first time visitor management plans raised publicly, camping just one of number of issues)
  • 17th March 2014 Board Meeting.   Review of East Loch Lomond byelaws signed off and sent to Scottish Government
  •  23rd May 2014 Final report LRRG – proposes no changes to access legislation (just as the LLTNPA was undertaking intensive drive community organisations in the LLTNPA to get them on side for the byelaws)
  • October 2014 launch Your Park consultation proposing byelaws

 

February 6, 2017 Nick Kempe 3 comments

A further insight into the failure of the Cairngorms National Park to protect native wildlife was revealed in the article above which appeared in the Strathy last week.  There may also be a link between the CNPA’s approach to mountain hares and its apparent attempt to silence Councillor Bill Lobban last week (see here).

 

While I welcome the fact that the estates involved in the mountain hare counting project have agreed to stop culling mountain hares – (and if Glenlochy’s claim is true it appears they stopped culling mountain hares while poisoning of buzzards was still happening on their land (see here)) –  there is  another agenda here which is illustrated by some of the quotes from the piece:

  • Glenlochy is claiming that overpopulation of mountain hares can be detrimental while at the same time claiming mountain hares are “notoriously difficult”  to count, which is why this project is needed.   How, one might ask, does any keeper know there is an “overpopulation” of mountain hares if they do not know numbers?
  • What is an “overpopulation” of mountain hares – who sets the criteria for this? – and what is the impact of hare numbers of flora and fauna?   It is generally accepted that without human intervention, mountain hare numbers rise and fall naturally.  If its impact of mountain hares on flora, from so many nibbling mouths, which estates are concerned about, well…………….how does this compare to the impact of the muirburn conducted by these same estates on vegetation?   We know the main alleged impact on fauna which concerns estates is that Mountain Hares carry the tick which can infect Red Grouse with the louping ill  virus and this is what has led to the mountain hares culls.  But how will counting mountain hares tell us anything about the levels of transmission of ticks between one species and another?    There appears very little rationale to the counting project unless its purpose is to kick any action to protect mountain hares in the National Park into the long grass for a three further years.
  • The claim that culling hares is necessary for the “general health of the species itself” seems based in eugenics.  While genetic manipulation and selection by humans has been integral to the development of farm crops and animals, applying such thinking to what should be wild is a different matter.   Why not let nature sort this out?    The claim is complete nonsense anyway.   All the photos that have appeared on Raptor Persecution Scotland (see here) show there is indiscriminate culling of mountain hares.  If natural ecosystems were functioning in the Cairngorms no culling would be necessary anyway as there would be eagles and other predators which would live off the mountain hares and control their numbers.   The populations of predators would then fluctuate along with the population of their food source.  The fact that the impact of predators, or rather their absence, appears to have no role in this study tells you its not about tackling the real issue, wildlife persecution.

 

While the CNPA has no direct role in the study, to design a study which is to take place in the National Park without considering how it meets the overriding national conservation objectives of the National Park appears to me just wrong, a mis-use of public resources.   The CNPA too has claimed it cannot take any action to protect mountain hares until this study is completed.  Whatever happened to the precautionary principle, which says you protect nature until you know its safe not to, or the conservation objectives of the National Park?

 

Our public authorities and research institutions are studying all the wrong things in our National Parks.   They should not be funding studies whose main purpose can be to serve the interests of the shooting lobby.  What we need from the CNPA is  a proper assessment of the wildlife deficit in the Cairngorms – just how many stoats, weasels, hen harriers, golden eagle etc are missing from the the eastern Cairngorms and what is the potential for species like the beaver – and then fund research into alternatives to the current model of sporting estate.

 

Species champions, in Highland Council and in the National Park

 

A few years ago Highland Council decided to support its Councillors becoming  species champions:

 

The elected members will be invited to become a species champion. This follows on from the successful initiative that Scottish Environment Link undertook with MSPs. The choice of species will come from a list of over 70. The role of a species champion will be to take an interest in “their” species and act as an advocate for it, highlighting its importance and/ or the issues affecting it in relevant debates or other opportunities that arise.

There are currently at least 27 Species Champions in the Council including such species as harbour porpoise, red kite, strawberry spider.   The three Highland Councillors who sit on the Cairngorms National Park Authority Board are all species champions, Dave Fallows for the Capercaillie, Gregor Rimell for the Northern Damselfy and Bill Lobban……………. for the mountain hare!   Indeed, Councillor Lobban has spoken out for the Mountain Hare (see here) unlike the convenor of his planning committee (see here).     Evidence I think that the attempt to silence Councillor Lobban last week on planning issues was part of an attempt to silence one of the few CNPA Board Members prepared to speak out for wildlife.    .

 

The ability of the three Highland Councillors to become advocates for wildlife on Highland Council is quite a contrast to what they are allowed to do as CNPA Board Members.  When the Cairngorms Nature plan (see here) was being drawn up, it was suggested that Board Members could become species champions – what an opportunity one might have thought for the National Park?    After all according to the plan, the Cairngorms is home to 1/4 of all rare and endangered species in the UK.  The CNPA rejected this proposal.    This failure in leadership has had a huge impact.  Contrast the attitudes of landowners and local communities in the West Highlands to species like the sea eagle, which they know are fantastic for tourism, and to how the Cairngorms National Park treats its wildlife.  A little diversification of the tartan tourism on Deeside which is based on Balmorality to wildlife could do not harm.

 

What needs to happen

 

  • In the forthcoming Partnership Plan the CNPA could show its commitment to wildlife by encouraging all its members to become species champions and allowing Highland Councillors to play this role both within their own Local Authority and the National Park.  The first new species that should be championed is the beaver, with the Board Member advocating for it leading the re-introduction of this species into the National Park
  • The forthcoming Partnership Plan needs to include a commitment to put wildlife in the National Park first and stop any species, including the mountain hare, being persecuted for the benefit of shooting interests.  That entails developing measures to regulate shooting, trapping and the use of dogs to hunt wildlife in the National Park.
February 4, 2017 Nick Kempe 1 comment

The way our National Park Boards operate is fundamental to their future.  Parkswatchscotland has highlighted a large number of concerns about their governance, including a lack of transparency and decisions being taken behind closed doors in the Loch Lomond and Trossachs National Park Authority, which help explain why they are failing at present.   What our National Parks need is not consensus, imposed from the top down, but open and transparent debate which engages all interests, not just businsses and landowners.   For this to happen, we need Board Members who articulate different points of view and are allowed to disagree.

 

The article above from the Strathie on Thursday suggests that the very opposite is happening at present in the Cairngorms National Park Authority.  While the exact words said by Park Convener Peter Argyle to Bill Lobban may well be a case of one person’s word (or memory in the heat of the moment) against another, the quote in the very last paragraph of the article does indicate there has been an attempt to silence Cllr Lobban “there is an expectation that policy lines are adopted by all members”.    Its worth considering the implications of the this statement.

 

Just think if this line was applied to local authorities or to the Scottish Parliament,  the opposition parties would be forced to adopt all the policies of the party or coalition in power.  That only happens in authoritarian states.  OK, so the CNPA Park Board is not like a Council, but its not like the cabinet of a ruling political party either where there is a doctrine of collective responsibility.  The Convener is only involved in the appointment of some members, unlike party leaders (the Convener usually sits on the interview panel for Government nominees to the National Park Boards but its the Minister who decides).  The rest are elected.   So why shouldn’t members speak out?

 

The general issues of principle here, about free speech and open governance, are important not least so that there can be a full debate about the effectiveness of the planning system in the CNPA.

 

It would appear from this letter (left) published in the Strathie in September, from previous CNPA convener, Duncan Dryden, that people high up in the Park Authority don’t like Bill Lobban’s views that the powers the CNPA has in relation to planning applications and their enforcement would be better undertaken by local authorities.   Rather than trying to ridicule him, as Duncan Bryden attempted to do, or silence him, as Peter Argyle appears to want to do, what the CNPA should be doing is asking Cllr Lobban, who is vice-chair of Highland Council Planning Committee is doing better.   This should be part of an informed public discussion on how the CNPA currently uses its planning powers,  part of which  should be an assessment of how the CNPA operates compared to other planning authorities.

 

To give one example, in terms of transparent decision making Highland Council appears considerably ahead of the CNPA.   All committee meetings of Highland Council are recorded and put out as webcasts which are available on the internet for a year.  So, if you want to see what contribution your local representative made at a meeting or understand how a decision was made you can see it for yourself and make a judgement.   You cannot do this for CNPA meetings.   George Paton has provided an eyewitness account of what happened at the Planning Committee meeting which considered the Shieling Hill Track as a comment on Parkswatch (see here).     Someone has commented that he sounds like a disgruntled employee, which he is not, but how does anyone know if what he is saying is a reasonable account of the meeting?   Its George Paton’s word against the National Park, rather like it being Cllr Lobban’s word against Peter Argyle’s.  Not a satisfactory situation.

 

One might think this would be easy enough to address, all the CNPA needs to do is to make the recordings it used to make of planning meetings for minuting purposes public.  However, Parkswatch has just been informed that after the Badenoch and Strathspey Conservation Group asked for the recording of the last planning meeting under FOI they have been told:   “A recording is not available as we no longer record planning meetings”.   This change follows CNPA’s attempt to stop photographers from the Strathie taking photos at Board meetings.   It looks like they are copying the Loch Lomond and Trossachs National Park Authority who forbid all recording.   If Highland Council and our Scottish Parliament can broadcast their meetings, so can our National Parks.  What have the CNPA got to hide?

 

Democracy requires openness and transparency and the problem with our National Parks at present is they are unaccountable, except upwards to the Minister.  We need National Parks which are accountable to the people who live there and visit.   This means we need absolutely to defend Cllr Lobban’s right, and the right of other Board Members, to express their views in public.

 

By chance, a by-election for a locally elected member has just been announced in the CNPA (see below).  I hope all candidates commit to making the Park more open and transparent in the way it operates and declare they are happy to have their contributions at meetings recorded and available to all to watch.

 

CNPA Board By-Election

Nominations open today (2 February) for the CNPA by-election with a deadline for submission of 23 February. Triggered by the resignation of Katrina Farquhar, a vacancy is available on the CNPA Park Board to represent Ward 5, which covers Deeside, Glenshee and the Angus areas of the Cairngorms National Park.

 

It is the Park Authority’s role to safeguard the outstanding landscapes, rich habitats, rare wildlife – and of course, the Park’s communities – while helping to develop a sustainable economy within the National Park. The board of the Park Authority agree the long term objectives for the Park and set out the CNPA’s priorities for work. They also play a key role in representing the National Park and the Park Authority by acting as ambassadors.

 

A Depute Returning Officer from Aberdeenshire Council is to administer the by-election so for information on how to stand and on the nomination process visit the Council’s website. All registered voters in Ward 5 over the age of 16 will receive their postal votes around the 8 March with votes to be returned by 4pm on Thursday 30 March. Information on current board members can be found here .The appointment will be from 1 May 2017 to the next park-wide elections in 2019.

February 1, 2017 Nick Kempe 1 comment
Motorhome Magazine March edition

Even by the standards of the Loch Lomond and Trossachs National Park Authority, the article which they appear to have placed in the March edition of the Motorhome magazine reaches new lows.  I hope that every campervaner or motorhomer who reads the magazine complains to the National Park.

 

The statement that campervaners/motorhomers require to apply for a permit in advance is a double lie.  First, because staying in a vehicle overnight on roads is exempt from the camping byelaws.

 

 

And public road is defined as follows:

What’s more, legally the definition of a road includes the verge.  This was clearly stated in the definition of road in the first version of the byelaws but since been removed (possibly because it did not suit the National Park to draw anyone’s attention to this).

What this means is that anyone can stay overnight in a vehicle on any road, layby or carpark run by a roads authority unless the roads authority has explicitly prohibited this under Road Traffic Legislation.   Since at present there are very few places in the Management Zones where the Roads Authority has prohibited vehicles stopping off or staying overnight, campervans will still be able to stop off almost anywhere in the camping management zones as long as they are prepared to stay on the road network.   The statement in the article that a permit is required to stop overnight is therefore a lie.

 

The second part of the statement, that if you want a permit you need to book in advance, is also a lie unless the Park has secretly has changed its plans.   The public position of the LLTNPA at the last Board Meeting was that campers and campervanners who turned up in permit areas should be able to book a permit through their phone, i.e not in advance.  That’s why the lack of phone coverage in some of the management zones is of such concern to the LLNPA.

 

The further statement in the article that “if you want to camp in these areas (the camping management zones) you will need to stay at a designated campsite or, if you prefer to wild camp, you will need to buy a permit in advance” repeats the lie and misinformation.  I don’t blame the Motorhome Magazine at all for this.  They will have been fed the information by the LLTNPA and accepted it in good faith.  The lesson for all recreational organisations and journalists is not to trust a word the LLTNPA says without checking it independently first.

 

So why has this mess happened?

 

There is clear evidence that the LLTNPA has always intended to ban campervans and motorhomes just like campers.  Indeed if anything its taken a harder line against campervans and motorhomes.  This is illustrated by it allowing only 20 permit places for campervans across all four management zones and its failure to provide a single campervan place at the new campsite at Loch Chon despite the doubling in size of the parking area there (see here).

 

The obstacle the LLTNPA has faced in its wish to ban campervans is road safety and the provisions of the Road Traffic Act, many of which are about freedoms to travel.  It was because of this that roads and laybys were exempted from the byelaws.

 

 

 

 

 

 

The application of the byelaws to campervans and motorhomes

 

The LLTNPA does not appear to have thought through the implications of this exemption on its attempt to ban campevans.  Instead,  their focus at present is on trying to persuade Transport Scotland to ban overnight stays in its laybys.  However, even if they succeed (and I believe there needs to be full public consultation on this), unless all the roads in the management zones are turned into clearways, there will still be hundreds of places that are classified as being part of the roads network and where you can still lawfully sleep in a vehicle overnight.

 

Parkswatch has previously commented on the implications of the roads exemption for enforcement of the byelaws and how, without clear signage, they could displace campervans into villages(see here).  Building on that analysis, there is an important difference in how the byelaws apply to campers and campervaners:

 

  •   The offence for campers is to put up a tent, wigwam or bivouac at any time, or to occupy any form of shelter overnight – not to go to sleep as such.  Indeed, under the byelaws you can still sleep in the open overnight.
  • The offence for people with vehicles who take their vehicle off the road network is to sleep in the vehicle overnight.

 

Its important to note here that under road traffic legislation no offence is caused by parking your vehicle up to 15m off the road network and overnight for both campers and campvaners is defined as anytime between 7am and 7pm.

 

The legal position as outlined will I believe make it impossible for the LLTNPA to enforce the byelaws  with respect to campervans.  Fancy stopping off along the A82 as you used to do on the way north?   Well, if your favourite stopping off place is  beyond the road verge, for example one of those tracks down to lochside, you have every right to stop off there in your vehicle, even overnight, so long as you don’t go to sleep.   If while sitting in your vehicle, Rangers come and tell you its an offence to stay in the place overnight, if you acknowledge that and say that you ntend to park the vehicle on the verge before going to sleep there is NOTHING the rangers. And unless the Park starts to deploy Rangers overnight (which would cost a fortune) if you do fall asleep without moving your vehicle onto the verge the likelihood of being caught is minimal.

 

Now, imagine the scenario where the Rangers visit early in the morning and find a vehicle parked off road with the curtains drawn.  How will the Rangers be able to prove whether someone was asleep or not?      All the occupants of the vehicle need to say is they were not asleep, they had moved the vehicle to its current position when they had woken up and had drawn the curtains for privacy reasons.    It would be very very hard for the Park to prove anything in a Court of law.  In fact this is all very reminiscent of some of the LLTNPA’s concerns about alcohol byelaws: they claimed such byelaws did not work because the offence was to drink in the outdoors and drinkers when approached could avoid being charged by retreating with their tipple into their tent.   If that’s difficult to prove (and I am not so sure what the LLTNPA claimed is true), how much harder will it be to prove anyone was sleeping in a campervan in a camping zone?

 

Instead of being open and honest about the legal position – and informing its own staff who are supposed to enforce this  –  the LLTNPA appears to be hoping to cover-up their own incompetence and legal shambles by trying to con the public into believing they can only stop off in a vehicle in a management zone with a permit.   Hence the placed article in Motorhome magazine.   Hence the lie.  The only way that the Park is going to be able to stop campervans stopping off overnight is not through byelaws, but by blocking off all exits from roads and parking areas.  The LLTNPA has been busy trying to do this by installing gates to all its car parks, which has huge implications for people’s ability to enjoy the countryside, but it has a long way to go before it can control all access in the National Park.

 

More parkspeak

 

As an addendum to this, the LLTNPA claims in the article that the  20 campervan places provided through the permit system are  “particularly well suited to providing places for visitors in campervans to stop overnight”.   The Park’s “criteria” for how it selected permit sites, included nothing specific on campervans:

Every campervaner who enjoys being able to stop off and enjoy the countryside should ask the LLTNPA what criteria they have used to decide whether  a place is “particularly well suited” for campervans.   There is none.  The people who know best where to stop are the people who use campervans, not the National Park Authority and because of the way the byelaws are worded, they can still  stop off in most of their favourite places by the lochshores as long as they ensure their vehicle is on part of the roads network when they go to sleep.