Fisher German LLP on behalf of FlyUp Limited
"This representation is written on behalf of FlyUp Limited, Simon Ruskin and Angela Ruskin [Redacted], the freehold owners and occupiers of the land with plot numbers 1/19, 1/19a, 1/19b, 1/19c, 1/19d, 1/19e, 1/19f, 1/19g, 1/19h, 1/19j, 1/19k, 1/19m, 1/19n and 1/27 (part) and as right holders in the land with plot numbers 1/1, 1/15 and 1/15a in the above mentioned Development Consent Order. This constitutes a formal objection to the application for a Compulsory Purchase Order over the land referred to above. Over the course of two years, we have been meeting with representatives of Highways England to discuss the design proposals and tried to reach a position of mutual agreement as to the works. These discussions have generally been frustrating for our clients as key points provided to us have been contradicted at subsequent meetings and requests for amendments to the scheme to deal with our clients’ concerns have in many cases not been addressed at subsequent meetings, new areas of concern being added to instead. As example of this, we have been asking for Highways’ clearly stated position as to provision of replacement buildings at the site since before Christmas. Such arrived on 23rd August (Highways’ representatives being aware that I was away on holiday week commencing 23rd August) leaving little time to avoid objection being submitted or for the contents of such to be incorporated into this objection. The response is muddled in that it clearly states that requirement for permanent buildings is not justified but makes two references to supporting permanent buildings. Our clients’ live and work [redacted] running a downhill bike centre, with uplift vehicle shuttle, indoor and outdoor dirt jumps, bike shop and café. Customer access to the site currently runs between the house and the A417, past the existing buildings to the car park. Customers have to pass the registration building to reach the uplift pick up, also passing the café and shop. This is important as there is an insurance requirement that all users of the site are paying customers and income is maximised by all elements of the business being in close proximity. Highways’ current plan is that the existing car park be used for construction works, with new car park being provided by the scheme to the west of the site away from the registration buildings, shop and café. Highways have offered to potentially pay the costs of temporary buildings at the car park location. The access road to the site would be diverted and, post-works, all traffic would pass behind the house with the A417 remaining to the front, though closer than before. The house would therefore become an island between two roadways. There is a long and difficult planning history to this site, the current planning use having been hard fought. [redacted] We have asked that Highways’ gain planning consent for permanent buildings as part of their scheme. If the replacement car park is only temporary, then my clients’ wish for the access road to be reinstated to between the house and the A417 post works for the amenity of the house. Unfortunately Highways’ appear confused as to the operational requirements of this business and the specific issues raised by their works. Our clients’ grounds for objection are as follows; 1. The existing business’ main constraint is car park space. If the replacement car park and buildings at the entrance to the site are only to be temporary, then the existing car park needs reinstating to its full size at the end of the works. Highways’ plans appear to require permanent occupation of part of the existing car park. The site will not practically work with new car park to the west of the site and the business operating out of the existing buildings to the east. Any temporary building/s at the site of the new car park need to be fit for purpose, providing reception, café and shop space. The shop needs to be secure for holding c.£150,000 of bike stock in an isolated rural location, with access being away from the house (unlike at present). There are two known local examples of similar sites being raided leading to the closure of businesses due to being unable to gain further insurance. In practice the bike shop needs to be on the first floor and of suitable secure construction. We believe that the best value for money answer to the above issues is to provide a permanent set of buildings at the site of the new car park. Highways have not agreed to such. 2. Provision of the above replacement buildings is clearly mitigation for the impact of the scheme. Despite this, Highways have refused to entertain the buildings being part of their scheme, initially quoting betterment. It is not clear why their providing funding for temporary buildings is allowable under betterment but their providing them themselves is not. In their email of 23rd August, they give a number of further reasons which, with suitable time to discuss pre-submission of this objection, could have been answered to enable Highways to include the buildings within their scheme. Our clients found the process of gaining planning for the current use highly stressful, the local council not being supportive of the scheme. They are wary of having to follow a similar process to gain right for buildings that should be part of Highways’ own brief. Their great concern is that, if planning is refused, Highways’ work will continue anyway, leading to closure of the business. If the buildings are part of Highways’ scheme, this is less likely to be the outcome. 3. Highways’ have designed the access road to be diverted from the front of the house to the rear. This is acceptable if all customer access is to permanently terminate at a car park to the west of the site, meaning that the only traffic past the house is personal traffic and the uplift vehicles. It is not acceptable for, post construction, all traffic to be routed to the rear of the house whilst the A417 remains to the front, closer than previously. Either the track should be re-routed to the front of the house post construction, or the car park and buildings should remain permanent to the west of the site as per objection point 1. 4. Highways have included in their application areas of permanent and temporary acquisition that will interfere with the existing bike tracks. Due to the layout of the land and the physical requirements to make such tracks work, their land take will likely reduce the viability of the site. We have not been provided with meaningful engagement as to this land take and the effect on the business. As we understand that much of the relevant land take is for planting, we have offered alternative land or for the planting to be undertaken by our clients by agreement. Such has not been progressed by Highways. The lack of reasonable engagement has led to it being very difficult for the business to plan for the future, leading to losses in advance of the DCO being confirmed. We believe that Highways should be liable for such as part of the compensation process. 5. Highways’ consultation and design to date have not taken account of our clients’ concerns and lead to very real prospect of the business being closed for the duration of the works. The nature of the industry, with a number of competing sites having appeared in the area after FlyUp had established themselves, means that a temporary closure would likely become a permanent one. The provision of permanent buildings within the scheme to provide practical replacement for those currently in use would deal with these concerns and likely be cheaper option to the taxpayer. Highways’ refusal to entertain such idea and leaving their formal response on these matters so late in the process has led to this objection. The above objections have been raised directly with Highways England on previous occasions and have not been taken into account in the drafting of the Development Consent Order. In light of the above, we ask please that Highways be directed to meet the costs of objecting to the scheme. We reserve the right to amend these grounds and to raise further objections, should that prove necessary in due course."