Wednesday, 25 January 2012

Leyton Marsh: Supplementary Comments

Below are the additional comments we have sent to Waltham Forest planning following ARUP's letter dated 18 January (on behalf of the Olympic Delivery Authority)

Site selection


1.    A compelling case has still not been made that there are no alternative sites available and that it is therefore necessary to build on Leyton marsh.
2.   The site selection assessment information reveals startling facts that undermine the Olympic Delivery Authority’s (ODA) case that it is necessary to build on the Marsh.
3.     The search for a suitable site only started in 2009, after the Olympic Park Masterplan was fixed. The Olympic Park Masterplan apparently includes no contingency to accommodate facilities that subsequently could not be sited elsewhere, despite the fact that the number of venues within the Park was reduced and the Park contains a great array of facilities that have nothing whatsoever to do with International Olympic Committee requirements. The ODA has still not presented evidence why the courts cannot be incorporated into the Olympic Park. 
4.     The applicant states that the LVRPA first ‘offered’ Leyton Marsh for development in 2009. There are curious statements in the original submission that the LVRPA led ODA to believe that the Marsh was designated playing fields (which is a different use from open space) and, as such, may be more suitable for active leisure uses. Is this error the reason why Leyton Marsh was wrongly assumed to be a suitable site and held as a low cost fall-back option should other sites fell through; but without a proper appraisal of the land use planning position?
5.     Insufficient effort was made to secure a privately controlled brownfield site in order to avoid the need to build on Metropolitan Open Land (MOL) at Leyton Marsh. The ODA attempted to secure only one private site and cannot, therefore, assert that there is no suitable private brownfield site available. In any case, it quickly abandoned the search on the basis that publicly controlled open land could be secured at a lower cost. It is axiomatic that MOL, which in almost all cases cannot be built upon, will attract a lower commercial development value, whilst the public value and utility of public space is difficult to value commercially (but is invaluable to the community it serves).
6.     The LVRPA agreed a license at below commercial market rates which calls into question the inter-relationship between the terms of this land transaction, the decision to build on the Marsh by the LVRPA, and the evidence of a scarcity of appropriate sites marshaled by ODA in order to secure planning permission. Having fixed upon developing the Marsh and secured a deal with ODA, the LVRPA’s statements in relation to alternative options to build upon the Ice Centre car park cannot be accepted as independent or objective, but the ODA refers to this as evidence of their exhaustive search and the unsuitability of these alternative sites.
7.     It is still not clear how the sum of £65,000 for improvements to the Marsh was arrived at. This seems to be about half of the reported sum agreed with LVRPA securing a ‘profit’ of £65,000 at the cost of developing a part of the Park it is empowered to protect from development and closing public open space it is  empowered to preserve and to protect the freedom to roam.
9.     The argument that it has been impossible to secure private sites does not seem to correlate with the fact that the Olympic organizers (ODA, LCOG, LDA, the Mayor, TfL) together hold an extensive land bank, possess powers and resources and had sufficient time to acquire land for all Olympic purposes. They have clearly succeeded in securing private sites, until now. The LDA has effectively acted as agent for the ODA in land acquisition, so statements claiming the ODA lacks sufficient powers are dissembling.
10.  The ODA state that other countries’ National Olympic Committees have taken some of the available sites identified by them. This indicates that sites were available, but that ODA failed to secure them in good time. Is this the result of bad luck, delayed action, or just poor planning?
11.  The ODA state it rejected offers on the basis funding and planning permission could not be secured in time, but proceeded with Leyton Marsh on the basis that it would receive consent, when there is and was, prima facie evidence that this could not be assumed. The conflict with planning policy and the strong policy presumption against development was crystal clear. The lack of perseverance in securing private sites, combined with the failure to properly assess the constraints and concerns that arise with development of Leyton marsh, highlights the fact that the ODA and LVRPA have always considered the Marsh as a development soft option.
12.  The ODA is happy to agree to the provision of individual practice courts dotted across the area. However, when it came to the Marsh the decision was made to construct two courts together with a large visitor facility. Whilst the cost savings for ODA are clear, the decision further complicates the alternative site search, which must necessarily be larger.
13.  The Local Planning Authority (LPA) should not accept the ODA’s complicated requirements for two courts together when the ODA did not require this elsewhere. For example, in relation to Essex Wharf, this site can easily accommodate one court and proportionate visitor and parking facilities. In relation to the Ice Centre, the claim that the courts will prevent the Centre working normally clearly does not apply where only one court is built, and probably does not even apply if two courts are built. In any case, there is clearly plenty of spare or redundant capacity in the car park, given a weekend motorcycle school operates there and LVRPA’s recent proposal to construct a hotel.

Ecology

14.   The development of Metropolitan Open Land (MOL) within a wider Site of Metropolitan Importance for Nature Conservation (SMINC) and immediately adjoining a Site of Special Scientific Interest (SSSI) should surely not be permitted on the basis that the impact is ‘negative’ but which, after mitigation, will be raised only to ‘neutral or minor positive impact’. Even these potential impacts are based upon a ‘sub optimal’ ecological appraisal, whilst the amount of mitigation has been determined by the amount of a land transaction, rather than measured impact or justified need.
15.   The report fails to refer to adopted plans, policy and guidance for the Marsh that clearly indicate that the proposed development conflicts with the ecological and environmental aims for the Marsh.
16.   The appraisal includes a plan that shows three paths/tracks/road traversing the scrub margins, which conflicts with other submitted plans. The survey is clearly premised upon a different scheme from that submitted for planning.
17.   This ‘sub optimal’ report is a limited desk-top review, partly based upon informal and unrecorded conversations with LVRPA, the land owner and recipient of over £120,000 if the scheme is approved. The survey referred to in the report is actually a mid-winter site ‘walk-over’. The desk-top study draws upon environmental data sets that are partial, not site specific and dated. There is a potential compounding error in the appraisal in which the partial and dated GIGC information is correlated with the limited desk top study and out of season survey. The GIGC information is itself partial and is now more than eight years old (July 2004).
18.   The ‘sub optimal’ mid-Winter timing of this limited survey means that it is unreasonable to conclude that no stage two habitat assessments are required. Whilst it may not now be possible to properly assess this until the Spring, it should be noted that the scheme was envisaged and the land transaction first considered in late summer 2010 whilst the site was first offered to the ODA in 2009. There seems to be no valid reason to allow an exception and to accept a sub optimal report on the basis that it would be unreasonable to expect the applicant to have commenced this before January 2012. It is reasonable to expect that this should have been undertaken much sooner, because the potential ecological constraints are clearly set out in adopted policies and other published information.
19.   An essential function of the ecology report is to gather and present sufficient evidence in order to conclusively demonstrate whether or not more detailed habitat assessments are required. This ‘sub optimal’ report does not conclusively answer this question: It has been ducked, apparently because the evidence base is insufficient. The assessment of the appropriateness and effectiveness of mitigation measures, addressed later in the report, is undermined if a habitat survey is first needed but has not been undertaken.
20.   There is clear potential for foraging bats on the scrub margins and around the perimeter of the Marsh.  An up-to-date appraisal should therefore be undertaken. The light effects of the development will not be limited to the external environment. The temporary tent like structures will cast an iridescent light and appear as glowing features visible across a wide area. The potential effects have not been assessed. The applicants seek to remove all external lighting from the scheme, but subsequent installation of lighting may not be subject to planning control.
21.  More widely, the report indicates the potential for reptile and amphibians in water bodies, which have not been assessed further.’ (4.5.1). The report is inconclusive in relation to crested newts and fails to accurately describe the location, extent and proximity of ponds, seasonal pools, wetland, and dry ditches surrounding the Marsh. It is not clear if a habitat survey is required or not but section 4.6.1 contains much speculation without conclusion.
22.   At 4.5.1 the report asserts that the site does not contain any areas likely to be used by nesting birds contradicting other statement that nesting had been observed on the Marsh. Which is true? This is important because 4.5.1 clearly indicates that an alternative scheme may bee needed if nests are found.
23.   The report identifies potential habitat for small mammals such as mice and hedgehogs, but does not then recommend any further survey.
24.   The ‘sub optimal’ stage one report is inconclusive in relation to a number of species’ habitats. The report adopts an optimistic approach that any habitats subsequently discovered can be protected; the impacts mitigated; or, failing that, the development could be subsequently stopped or altered. This is an unjustified leap of faith.
25.   This ‘sub optimal’ report post-dates the decision to build on the Marsh, the planning application, and also post dates the environmental impact ‘screening opinion’ and subsequent decision not to trigger a scoping report. What was the basis of earlier statements on ecology in the first submission (the planning statement) and the screening request and why were they accepted and not challenged by the LPA? It is though clear that the scheme has been altered after the study was undertaken. The reasons for these alterations are not made explicit, but should be.
26.   The surveyor have not entered or attempted to assess the ox bow lake feature and island in the south west corner of the Marsh which is describes the natural course of the River Lea and immediately adjoins the proposed access road and the SW corner of the proposed development. This water body is also missed in relation to reptiles and amphibians. Is this data gap the reason why the site has been moved in the revised plans?
27.  The assessment is based on there being no external lights, but the Arup letter suggests there may be some external lighting, or possibly a further application. The luminescent effect of the tented structures, as noted earlier, has also apparently been ignored.

Environmental assessment

28.   A new stage one screening request should be submitted and determined because:
·      The development proposal has not been included in ant strategic environmental assessment relating to the entire Olympic development scheme.
·      The layout of scheme has changed and additional details relating to plant/air conditioning etc. have been added.
·      The red line and position of the development has changed (again).
·      Material relating to ecology has now been submitted which was not available when the initial request was made.
·      A stage II habitat assessment may be needed and this should be determined first as part of the EA screening rather that the substantive planning application.
·   The Ecology Report identifies impacts that need to be mitigated which separately or cumulatively may amount to significant impacts.
·    The visual impact of the proposals has still not been satisfactorily described, which is a criterion for the assessment of environmental impacts.
·    Concerns remain in relation to archaeology, which is a criterion for the assessment of environmental impacts
·      The ecology report is a limited desk-top stage one appraisal, partly reliant on old information and informal conversations/hearsay with a limited survey conducted out of season. The potential for gaps or flaws in the data that  may hide significant environmental impacts need to be carefully weighed.
·      The LVRPA is conflicted in relation to the application so that the environmental information, advice and decisions provided by the Authority and its staff cannot be relied upon without independent assessment.
·      The views of consultees, such as English nature, may have altered in relation to the revised and additional information.
·      Re-running the screening exercise will allow the changes to be advertised in accordance with the regulations and may help to comprehensively correct flaws in the planning consultation and determination process.

Revised application materials

29. The newly submitted information comprises a substantive material amendment to the previously submitted scheme, not an addendum or supplementary information, as the applicant mistakenly claims.
30.  The proposed layout has changed and the position of buildings and boundaries has changed. There are also now a series of different schemes in circulation ranging from the pre-application plan, the application plans submitted in December and the current plans (and there are three different plan layouts shown in different supporting documents).
31.   The red line boundary has changed (again) and is incorrectly described. It excludes the two (or three) access roads/paths from the Sandy Path and arguably should include the link road to the Lea Bridge (permission for the creation of alteration of an access to a highway).
32.   The layout given in the ODA leaflet indicates an alternative or additional vehicular site access to the east of the Ice Centre. What are the plans for this route in terms of construction, operation or decommissioning?
33.   Given thee changes the Mayor should be re-consulted along with all other statutory consultees and, most importantly, the wider public.

Roads


34.   The applicant falsely claims that the inclusion of a vehicle turning area within the site, allowing the removal of the loop road arrangement, will involve additional road surface on the Marsh. The Design and Access Statement should demonstrate convincingly the options considered and demonstrate convincingly that the layout minimises the impact upon the Marsh: it does not.
35.   The justification for the loop road has still not been made. The proposal conflicts with the claim that vehicle movements will be both few and infrequent. The ecology report confirms that the impact upon the scrub between the Sandy path and the enclosure may be significant and should be minimised.
36.   The ecology statement clearly concludes that road links from the Sandy Path, through the scrub, and onto the marsh are undesirable and should be avoided, or at least minimised.

Visual impact and misleading images 

37.   The artist’s impression is not based upon a photograph of the site and is not a ‘verified view’. The proportions of the development and of the surrounding site, including levels, do not accord with the actual site proportions. The image also includes invented features that appear to be intended to soften the apparent impact. The view cannot be described as typical or indicative of the actual views that the public and residents will experience. It is therefore misleading. This is compounded by the fact that this image has been given such prominence in the leaflet recently distributed by the ODA.
38.   The artist’s impression illustrates a magically transparent boundary fence with poles but no bracing. Will fencing panels be of wire mesh alone or they include canvas screening attached to the fence? How can this be controlled?

Leaflet and consultation 

39.   The action of the ODA in releasing a consultation leaflet has undermined and potentially compromised the integrity of the statutory consultation on the application. This compounds our earlier concerns regarding the pre-application scheme (which differed from the submitted scheme) and our concern with running the consultation exercise over the Christmas period.
40.   The leaflet misdirects the public and undermines the integrity of the consultation on the planning application. The ODA has no status as an ‘Authority’ in relation to this planning application (which is actually being progressed by a private supplier/contractor with a leaseback arrangement), or in relation to ‘Planning’ for the Marsh, as the leaflet claims. Comments on the application may be mistakenly addressed to the ODA, or even to the ‘Construction Hotline’ on the advice in the leaflet.
41.   The leaflet is premised upon the misleading assumption that the development will receive consent and proceed, without appropriate caveats.
42.   The leaflet offers assurances and presents these as certainties in relation to the proposals, when in fact they are not offered and may not be secured as a part of the planning application process.
43.   The leaflet falsely and misleadingly states: ‘we do not plan any significant disruption to normal use’. The leaflet also falsely states that all of the sum of £65,000 will be spent on Leyton Marsh by LVRPA when other documents state that it may not.
44.   The absolute assurances in statements relating to the SSSI’s are not fully supported by the ecology assessment.
45.   The inclusion of so many public agencies, governmental and departmental logos (but importantly the not the LPA’s), further adds to the confusion between which is the regulatory authority in relation to town planning and which are the applicants. The proposed strategic (MOL) development needs to be referred to the Mayor, who is also given as a promoter of the application. Does this not give rise to a conflict of interest? If the Mayor is party to the development then is it not appropriate for the application to be referred directly to the Secretary of State?
46.   The LPA should prepare a leaflet of equal quality and distribute this to the same number of addresses in order to remedy any misdirection and to correct, qualify or counter balance potentially misleading statements.
47.   The newly submitted information does not clearly present the nature of the incremental changes that have been carried out, nor does it give the reasons for these changes.

Reconsultation
48.   The LPA should re-register the application and re-run the entire consultation process if it is to avoid the risk of legal challenge on a number of fronts: The concerns in relation to the ODA leaflet; the absence of a local authority consultation process of equal quality and reach; concerns in relation to the earlier consultation processes; incremental but material alterations to the scheme; changes to the application boundary (the red line); additional and altered supporting statements which no longer correspond with one another and which contain different scheme drawings.
 

Continuing and further concerns and queries 

49.   The revised material does address the basis of our objection that remain, but we will not repeat here.
50.   The applicants continue to mistakenly assert that the wider sport legacy benefits of the Olympics are a material consideration in this application. These benefits are not dependent upon or triggered by the development of the Marsh and do not relate to or mitigate the open space, visual and ecological impacts of the proposed development. The wider Olympic legacy is not material and should not be given weight.
51.   The applicant gives a false impression of the date on which the Marsh will be returned to normal use with full public access. The proposal to re-seed the re-laid topsoil in late October (or later) will mean that the Marsh may need to continue to be fenced off until the grass is fully established; which, in winter, may be many months.
52.   The layout continues to show extensive undefined and undeveloped areas within the boundary fence line. What are the purposes of these areas? Will they be used for temporary installations of less than 28 days duration and therefore not needing separate permission during the Games? These uses and activities, if they are planned, should be fully described and controlled as a part of this application.
53.   What were the drawing changes requested by the LPA and referred to in the Arup letter? Where is the record of this request?

In conclusion and, above all, the subsequent material amendments to the proposed scheme for Leyton marsh clearly trigger the need for the Waltham Forest to re-consult prior to this being considered by the planning committee.

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