Final decision to appoint Flamingo Land as a preferred developer: FOI response (reference 0523)

31 July 2024

04 September 2024

Scottish Enterprise applied exemption Section 39(2) of FOISA as we determined that the information sought was environmental information. We therefore handled this request under the terms of the Environmental Information (Scotland) Regulations 2004 (EIRs).

1. Any information that Scottish Enterprise holds about who and how the final decision to appoint Flamingo Land as preferred developer was taken, including correspondence within Scottish Enterprise and with external organisations, written reports and agendas and minutes of any meetings, including the follow up meeting with the LLTNPA which took place soon after the interview. This should also include the names of all bodies that were represented at that meeting and names of those representatives who attended.
2. Any information that Scottish Enterprise holds about how the proposal for an Exclusivity Agreement (EA) was developed and agreed, including any correspondence with Scottish Ministers. Balloch and Haldane Community Council (BHCC) request confirmation of who the signatories to the EA are and which bodies did they represent and has the EA been resigned since its inception I.e., we wish to establish which legal entity signed between Scottish Enterprise & FL, or Iconic Leisure or Lomond Banks.
3. BHCC also requests confirmation of the rational to extending the EA after FL withdrew their previous planning application - or was it resigned and if so, on what date?

You have requested information held by Scottish Enterprise on how the final decision to appoint Flamingo Land was taken. We have addressed this specific question below. We also wish to outline the appropriate steps Scottish Enterprise took in advance of the decision to appoint Flamingo Land as preferred Developer to provide broader context.
In August 2014 a competitive tender exercise was undertaken to appoint a commercial property marketing agent specialising in tourism related leisure development for Scottish Enterprise's site at West Riverside in Balloch. In October 2014 GVA were appointed as Scottish Enterprise’s national marketing agent. In spring 2015 an open marketing process was undertaken. Following a closing date for interested bids on the 31st July 2015, 5 bids were received and analysed in accordance with pre agreed selection criteria. As a result of this open marketing exercise and assessment of the bids against the selection criteria, the highest scoring bidder was Flamingo Land Ltd, which was thereafter identified as the preferred developer. Scottish Enterprise could have elected to sell the land unconditionally. However, Scottish Enterprise intentionally adopted a sale mechanism that is subject to detailed planning consent to ensure that the statutory planning process is fully respected including community consultation by the proposed developer as part of the planning application process.

Turning to how the specific decision was made we would respond as follows:

• On the 3rd August 2015 there was email feedback on the bids from Scottish Enterprise’s property advisor GVA on the bids received at the closing date. A redacted copy of that document is provided respecting GDPR and commercial sensitivity. Appendix A
• On the 25th August 2015 there was an email exchange between Scottish Enterprise on LLTNPA. We have a record of the final scores held on our file.. A redacted copy of the email exchange and a separate copy of the final scoring matrix is provided respecting GDPR and commercial sensitivity. Appendix B and C
• On the 27th August 2015 a briefing note was prepared for the Director of Business Infrastructure where the recommended next step includes ‘Invite Flamingo Land, LLTNPA and relevant Scottish Enterprise persons to a meeting to discuss areas of concern in proposal and ascertain whether any irreconcilable differences exist. If not, progress Approval Paper seeking to appoint Flamingo Land under preferred developer status’. A redacted copy of the briefing note is provided respecting GDPR and commercial sensitivity. Appendix D
• On the 19th September 2015 a further briefing note was prepared updating on progress with the appraisal process. A redacted copy of the briefing note is provided respecting GDPR and commercial sensitivity. Appendix E
• On the 30th September 2015 a meeting was arranged shortly after the conclusion of the appraisal process. Redacted copies of emails exchanged to arrange this meeting, and the meeting agenda, are provided, respecting GDPR. Appendix F
• On the 26th October 2015 there is a further briefing note on file proposing to enter into an exclusivity agreement with Flamingo Land. A redacted copy of the briefing note is provided respecting GDPR and commercial sensitivity. Appendix G
• On the 17th March 2016 there is a Development Brief (internal approval paper) confirming Flamingo Land as the preferred developer. A redacted copy of the Development Brief is provided respecting GDPR and Commercial Sensitivity. Appendix H
• On 23rd August 2017, Scottish Enterprise issued a FOI response which contained email correspondence from 2015 relevant to your request. For completeness, the relevant extract is provided to you now, respecting GDPR and commercial sensitivity. Appendix I.

Following legal negotiations Scottish Enterprise announced Flamingo Land as preferred bidder on the 19th September 2016 and the legal exclusivity agreement was concluded 1st November 2016.

You have asked Scottish Enterprise to provide information about how the proposal for an Exclusivity Agreement (EA) was developed and agreed. We refer you to the information provided above for question 1. We also advise that a review of our records to this point of the project did not identify any correspondence with Scottish Ministers.
For context, Exclusivity Agreements are commonly used as preliminary agreements to property sales, usually to allow the proposed buyer the opportunity to carry out investigations into the title and the property (due diligence) and to complete negotiations for the sale. An Exclusivity Agreement between Scottish Enterprise and Flamingo Land was considered appropriate at the time principally because development of the land is heavily constrained by several factors such as ecology, flooding, and possible contamination from previous uses.
The initial Exclusivity Agreement was signed on the 1st November 2016. The parties to the agreement were Scottish Enterprise and Flamingo Land Limited. Maclay Murray and Spens LLP acted on behalf of Scottish Enterprise; Friels Solicitors and Notaries acted on behalf of Flamingo Land Limited. The Exclusivity Agreement was extended on the 11th September 2017 and then again on the 21st December 2018.

We advise that the Exclusivity Agreement was not extended after the withdrawal of Flamingo Land’s planning application in 2019. A Conditional Missive was concluded with Flamingo Land in 2021.

Whilst we have attempted to release as much information to you as possible, please be aware that some of the information provided in Appendix A to F has been withheld under regulations 10(5)(e) and 11(3A)(a) of EIRs. Where these regulations have been applied, the information has been redacted. It is Scottish Enterprise's view that the release of the information would, or would be likely to, cause substantial harm to the legitimate economic interests of the developer, Flamingo Land (FL) and Scottish Enterprise itself. Additionally, release of any personal information would be in contravention of the data protection principles.

• Appendix A (PDF,64kb)opens in a new window 
• Appendix B (PDF,43kb)opens in a new window 
• Appendix C (PDF,274kb)opens in a new window 
• Appendix D (PDF, 120kb)opens in a new window 
• Appendix E (PDF, 290kb)opens in a new window 
• Appendix F (PDF, 767kb)opens in a new window 
• Appendix G (PDF, 149kb)opens in a new window 
• Appendix H (PDF, 52kb)opens in a new window 
• Appendix I (PDF, 34b)opens in a new window