A MOVE by developers to be free of a commitment to upgrade a footpath at a new housing estate in Musselburgh has been backed by Scottish Ministers.

East Lothian Council's planning convenor Norman Hampshire branded Taylor Wimpey's actions 'dishonourable' when the company asked for a condition to improve the path, known locally as The Drift, to be removed from planning permission granted in 2018.

The house builder argued it could not carry out the work on the path because it did not own the land it crossed and that made the condition unenforceable.

But at a meeting of the council's planning committee in February, Taylor Wimpey's application to have the condition removed was refused by members and saw more than 50 objections lodged from local residents.

One mother told the committee she was told the path would be created, offering a safe route to school for her children, when she bought her home two years ago;  instead she said she has to cross 12 roads to get her daughter to class each day.

Councillor Hampshire said at the time: “I am extremely disappointed a company like Taylor Wimpey have taken a decision not to honour a condition proposed by this planning committee.

“They actually used this as a way to sell properties to people; this is not an honourable thing to do.”

The committee refused to remove the condition leading to an appeal to Scottish Ministers.

This week the Scottish Reporter issued his ruling in favour of the developers - although it appeared to hang on the wording used by council officers when they drew up the condition in the first place.

The Reporter said the issue was around the way the condition had been worded, which made it a "positive obligation" instead of a "negative obligation".

He pointed to other conditions imposed by local authorities which began with the phrase "prior to the commencement of development" as examples of negative obligations because they ensure the condition has to be met before housing was built.

In this case, the condition covering the path upgrade did not begin with the prohibition and the Reporter, while acknowledging that an upgrade of The Drift would benefit people living in the estate, said since the houses had now been built there was no way back.

He said: "In light of this stage of development, the opportunity does not arise for me to include a negatively worded suspensive condition, prohibiting further development until the upgrading works to the footpath have been carried out.

"I judge the condition is unenforceable because it is phrased as a positive obligation to require works on land which the appellant does not control."

Pauline Mills, land and planning director for Taylor Wimpey East Scotland said: “We acknowledge the decision by the Scottish Government Reporter to uphold our appeal to provide upgrades to the path known locally as The Drift in Musselburgh.

"The Reporter has concluded that East Lothian Council imposed a planning condition that was unreasonable and unenforceable.

"As a responsible homebuilder, we remain fully committed to working constructively with East Lothian Council to find a resolution to this matter, and we have written to them in that regard.”

The path runs from the new housing at Pinkie Mains down to a railway bridge and links Musselburgh to Wallyford Railway Station and Wallyford Primary School.

Councillor Hampshire said he was disappointed by the Reporter's ruling.

He said: "This is a hugely disappointing decision by the Scottish Government Reporter.

"Taylor Wimpey’s planning condition to upgrade the Drift Path was included by the council as a planning authority to provide a safe route to school including better access to public transport for residents of this new development and the existing homes in the area.

"We will be discussing this further with transportation colleagues and the developer to try to reach an agreement on how we can now complete the upgrade work on this key path for the benefit of the residents in the Taylor Wimpey Homes.”