Submitted by Editor on Tue, 26/11/2019 - 14:23

At today’s meeting of the Policy and Sustainability (P&S) Committee, members discussed a Report written by the Chief Executive Andrew Kerr and recently summarised by the Spurtle here

The Report examines decision making around the controversial Christmas Market in East Princes Street Gardens, which has been erected and is now operating without planning permission. 

The Report will be sent to the Governance, Risk and Best Value Committee with a request for comments. A further Report to the P&S, including a detailed Timeline, will be submitted in February 2020.

Today’s discussion is summarised below. It is available as a Council webcast (Item 7.l) here.

Chief Executive Andrew Kerr (AK): Investigations are still continuing. No doubt some mistakes were made in the organisation of this report. But public safety not compromised. No systematic problem concerning events in Edinburgh.

I am talking directly to Underbelly to get full details before further making recommendations on improvements.

Cllr Jim Campbell (JC, Con): Scottish National Galleries (SNG) proposals were first submitted in 2015. Underbelly’s contract was signed in March 2017. The actual planning application by SNG followed in December 2017. Did Underbelly ever raise concerns about the Gardens after signing its contract? When did they first raise concerns?

AK: Arguably we could have anticipated more disruption. But we will wait for further detail from Underbelly before going into detail. We must consider how to go forward.

JC: This is an issue of anticipation. We could have avoided tensions and public disquiet. Hence need to know when problems were first raised.

Cllr John McLellan (JM, Con): Do you accept that CEC appears to have been operating different standards for Underbelly to what are applied elsewhere. How do we reassure business and development communities so that everyone knows how to proceed and what kind of reception they will get. Need to show CEC processes are fair and balanced for everyone.

AK: Planning procedures are processed consistently across the board. Retrospective applications are common (50 made recently). We admit having made mistakes, but we have not applied the wrong rules.

Cllr Joanna Mowat (JMW, Con): Point 4.18 of the Report – Underbelly were informed they had to apply for planning consent. Officers said not appropriate to cancel the event. Was non-consultation with councillors appropriate at this stage?

AK: That will be part of the Report in February.

JMW: Point 4.15 of the Report – SNP Group were briefed on use of south side of the Gardens. Why weren’t all Groups and councillors informed?

AK: Will address that in the Report.

Cllr Adam McVey (AM, SNP): Groups can request briefings. SNP sought information on delayed SNG activity. As officers briefed on this they briefed on other matters.

JMW: We cannot request briefings in a vacuum.

AM: The initial SNP briefing request was public knowledge.

Cllr Alex Staniforth (AS, Grn): I have met Underbelly since the last Culture & Communities Commitee. They were aware in advance of problems. I asked Underbelly why they didn’t contact councillors? They said officers discourage direct contacts by contractors with councillors. Is this right?

AK: Not a policy. It’s a huge assumption by Underbelly. Officers would always take advice from procurement policy in general. No such policy exists as you describe being assumed by Underbelly.

AS: When it became obvious Underbelly couldn’t apply for normal planning permission in time, why weren’t they encouraged to appeal for Plannning Permission in Principle so that interested parties could offer comments timeously? Underbelly said they would show contrition for mistakes over Christmas Market. Will Council also apologise to the public?

AK: Wait for the report. We will  try do better in future.

Cllr Iain Whyte (IW, Con): What rights did we as park owner have to make sure SNG finished their work in time? Do we have the right to apply pressure? Did Council think about this in advance?

AM: Good question.

Executive Director of Place Paul Lawrence (PL): There was a contract between SNG and the Council. It mirrored the planning consent. Time slippage was subsequently managed by officers.

IW: No penalty clauses or bonds?

PL: No penalty clauses in that contract. We have reinstatement clause with Underbelly, but not with SNG.

IW: On planning consent for the Christmas event. Why couldn’t a report be brought to committee in June? Officials met Underbelly in August. No warrants or planning permission last year. Is there something special about events that has allowed these lapses to take place?

AK: No difference in law. Circumstances of short timeline in Gardens had an effect of course. We do not treat planning differently for events. Did we do this perfectly? Very obviously not.

IW: Scheme of Delegation, Report 4.11 – Individual elected members are limited in what they can ask for. Under the Scheme of Delegation, officers may consult with one or two individuals, but how can Council committees find out about this and ask to be included in decision making?

AK: It would have been better for Chief Executive and Executive Director of Place to talk to spoken to Group leaders. Will address this in forthcoming Report.

IW: More widely, do you believe it’s fit for purpose for the Council (not just Convener or Vice Convener) to take control of controversial political decisions?

AK: Will look into this. Scheme of Delegation is tightly formed. Whether it’s appropriately worded requires further attention.

Cllr Neil Gardiner (NG, SNP): Point 4.17 on Planning Consent – Building Control and Planning Consent. Why couldn’t they have applied for consent much earlier (not as detailed as Building Warrant)? Did Council fail or where did the problem arise?

AK: Will investigate.

AM: Moved the report with slightly amended Conservative amendment. Hope that’s Communication of Christmas Market and members’ awareness of scale were not as good as possible. SNG delays had raised problems. But far better safety, permeability and reduction of crowding in this year’s Christmas Market – so improvements in the round. Need a grown-up conversation, not just about who shouts loudest. There’s a mixture of opinions. Increase in numbers attending Christmas Market over first 9 days, and in number of residents seeking discounts. We should be seeking a Christmas every citizen is proud of.

Cllr Cammy Day (Lab): Seconded. Cited number of visitors as token of successful event.

IW: Issues are raised here on how CEC acts on several fronts. And there are concerns among public over the Edinburgh World Heritage site and use of public spaces. We need public consent. Decision making must be open, but circumstances this year led to panicked response and the overriding of normal procedures. We must assure the public we’ve taken account of their concerns. There are conflicting strategies in the Council over world heritage, tourism, and the economy: we need to sort these out at an early stage. The Scheme of Delegation is wrong. It became tight 10-15 years ago because of problems with politically controversial decisions. These have to be played out in plain view. Officers need the support of committees – gives them the back-up to know public scrutiny had happened and politicians have taken responsibility. We need greater scrutiny. All our points must come out in the next Report.

JMW: Accept amendments in spirit of consensus. Report should come back for further consideration by this committee. Confusion about hierarchy of policies – needs clarity for members and public. Must improve communication.

Cllr Melanie Maine (Grn): Agree with IW. Considerable public concern. Need to check our governance documents are fit for purpose. All councillors have equal right to access to information. Pleased this report will go to Governance, Risk and Best Value Committee. Want GRBV’s comments to come back to this committee with Chief Executive’s report in February.

NG: I see real merit in JMW’s comments. Need to seek balanced judgement, as in Planning. Report will be controversial, but must look at it with measured evaluation. Unfortunate that it will come after Christmas Market event.

AS: Agree with JMW on inadequacy of briefing process for this event. We were kept in the dark about information shared with SNP Group. Councillors should inform other members, as should officers. ‘I cannot ask for a briefing on a problem I don’t know exists.’

After some procedural wrangling, the Report was noted and the Conservative amendment (below) accepted with one point deferred for consideration in March 2020.