Tuesday, 22 July 2014

Brent's legal flip-flopping over Kensal Rise Library planning application

In this Guest Blog Meg Howarth tries to disentangle the various interpretations of the law involved in the Kensal Rise Library development planning process.

Last week, Brent's planning committee gave the go-ahead to Andrew Gillick's latest plans for the Kensal Rise Library building he now owns. Brent & Kilburn Times report HERE

Regarding the still-unresolved fraudulent email affair surrounding the developer's original scheme - there's currently some speculation that matters might now be in the hands of the CPS (Crown Prosecution Service). This is unconfirmed, however, and shouldn't stop anyone from writing to their ward councillors to ensure that Brent police's investigation isn't quietly dropped on the back of last Wednesday's planning consent.

Last Wednesday's decision was made in the face of apparently contradictory advice from the council's lawyers about the relevance of ACV (Asset of Community Value) legislation to the application - the library building was listed as an ACV in December 2012. The committee's legal advisor told the committee that the Localism Act and ACV was 'separate legislation' and 'not under the consideration of this committee'. This is not only untrue, as Jodi Gramigni says on the following Wembley Matters' blog  LINK

The advice appears also appears to contradict points 7 & 8 of the planning officer's report. These state unequivocally that 'in this case [KTR planning application] the fact that the building is listed as a Asset of Community value is...a material planning consideration' and 'is also relevant...as a partial change of use to residential is proposed' - link to report HERE 

But the most glaring evidence of Brent legal's flip-flopping regarding ACV legislation comes in the statement from Andrew Gillick's spokesman on the eve of the planning committee: 'Further to advice provided by the LPA [Brent local planning authority] in respect of the Assets of Community Value Regulations 2012, I am pleased to advise that the applicant [the developer] has today confirmed that he is naming FKRL as the "actual" tenant, as opposed to his "preferred" tenant'.

So less than 24 hours before the Localism Act and ACV was declared 'separate legislation', it had been  used by Brent's planners to enable a shift from 'preferred' to 'actual' tenant status for FKRL. Why, then, did committee members fail to probe these inconsistencies? Were they asleep on the job? The 2012 legislation either applied to the application or it didn't.

In the event, the shift to the much-heralded status of 'actual' tenant appears to have been little more than a PR move to encourage support for Mr Gillick's latest attempt to convert the library building into unaffordable residential flats. As his spokesman said: 'We trust this ['actual' over 'preferred' tenant status] goes some way to giving the Council, the FKRL and the local community the confidence to support this application'. But as Jodi Gramigni says: there's no 'legally binding requirement to reinstate a library [in the KRL building] or agree a lease with FKRL, confirmed by committee member, Cllr Kasangra, when he said clearly at the meeting that a lease is not part of the planning conditions. 

Those with long memories will here recall the developer's apparent untrustworthiness when, in his original change-of-use application for the Mark Twain library - the one linked to the fake email support - he offered D1 space in the basement of the-then publicly funded building in breach of the legally binding contract he'd signed with then-owner All Souls College: 'none [of the D1 space shall be] in the basement of the Property)' (Option Agreement para 15.1). Jodi's appeal for 'vigilance' is surely spot on.

A further point regarding the Localism Act: if a property is listed as an Asset of Community Value before a sale is agreed, the property is subject to the Community Right to Bid - a 6-month period to enable community groups to prepare alternative sale proposals. Brent's legal counsel argued that the Option Agreement to purchase Kensal Rise Library from All Souls College, allegedly signed in November 2012, preceded the building's ACV-listing in December, and that the building was therefore exempt from the right-to-bid period. But the Option Agreement wasn't a sale contract. That wasn't signed until later, almost certainly in January 2013. So it's arguable that the 6-month bidding process should have started then, enabling FKRL to exercise a bid. For clarification of this alone and/or other aspects of Brent's handling of the application or the police investigation, it might be worth requesting the Secretary of State to call in the planning committee's decision for reconsideration advice on how to do so HERE


18 comments:

  1. For absolute clarity, penultimate sentence of final para above should have read:

    'So it's arguable that the ACV-listing of the library in December preceded the sale of the building and should have triggered the 6-month bidding process, giving FKRL until June 2013 to exercise its right under the Community Right to Bid...'

    For those who'd like to write to their ward councillors about any of the above concerns, a list of their names can be found here

    http://democracy.brent.gov.uk/mgMemberIndex.aspx?bcr=1

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    1. Binding Agreement to sell carries same legal weight as sale for purposes of exemption to ACV listing.
      Brent planners had nothing to do with change of tenancy from 'preferred' to actual'. Not a planning consideration but an agreement between interested parties.

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    2. 'Interested parties'? Planning is supposed to be disinterested yet Andrew Gillick's spox stated ''Further to advice provided by the LPA' (Local Planning Authority). How then do you explain that?

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    3. Curious wording, Anonymous 15.46 'Binding Agreement to sell' was actually an Option Agreement to Purchase. Just saying.

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    4. Seems like All Souls were trying speed up process of sale rather than following ACV and at the time should have immediately accepting the need to Holt sale.

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    5. Yes fully agree, All Souls is not the saintly soul you would expect.

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  2. Fully support Seretary of State intervention as it is the only way this matter can be put to bed one way or another.

    Currently drafting my own submission and suggest others do the same.

    We can have community assets given protection and the at whim have them sold to developers to make private profit.

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    Replies
    1. I'm also drafting a submission to Secretary of State.

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  3. If the premises was sold after the date of ACV listing then there has been a breach of legislation. A moratorium of 6 months should have been invoked. The freeholder should have informed the local authority, who should have informed the nominating group to ascertain if they wanted to bid. The group has 6 weeks to decide.

    This should have stopped the sale until the 6 weeks, and then 6 months were up if the group wanted to put together a bid.

    So somebody has breached legislation and it should be Brent Council who should consider why one of their assets was not protected as consistent with the law.

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  4. Regulation 21 makes it clear that the disposal of an ACV without complying with procedure will be ineffective, save for where the owner making the disposal can demonstrate that it made all reasonable efforts to identify whether the land was listed.

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  5. If eventually in the case of both Kensal Rise and Barham Park Council Officers have not followed correct procedure, "heads should roll"

    This also include no "golden goodbye."

    Fiona Ledden should be on that list as she was due to say goodbye, but was saved at the last minute. Richard Barrett was also on the list but was given a reprieve.

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  6. Anonymous 15.46 above - do you have link to appropriate legal regulation re Option Agreement and sale contract being of equal weight for purposes of ACV exemption? Thank you.

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    1. Yes, 15.46, please cite the appropriate legislation. This is a citizens' blog. An unsubstantiated assertion proves nothing.

      Agree, also, 18.45 above - either Brent's planners/legal advised Andrew Gillick's spokesman about the change from 'preferred' to 'actual' tenant, or they didn't. Here's the announcement that appeared on FKRL's Facebook page on 16 July:

      'Mandip Sahota, associate planner for the developer, stated:

      "Further to advice provided by the LPA in respect of the Assets of Community Value Regulations 2012, I am pleased to advise that the applicant has today confirmed that he is naming FKRL as the 'actual' tenant, as opposed to his 'preferred' tenant, subject of course to lease negotiations, management plan etc being satisfactory".

      Did Mr Sahota make a mistake? I must say, that seems most unlikely to me.

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  7. The only way to clarify ACV is for those in government who passed the Bill to review this matter by way of Secretary of State.

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  8. I've written to Brent's planning officers for clarification re the assertion, 22 July 15.46 above, that 'Binding Agreement to sell carries same legal weight as sale for purposes of exemption to ACV listing'.

    As commentator today, 13.23, notes - 'Binding Agreement to sell' was actually an Option Agreement to Purchase, suggesting 15.46 isn't familiar with the Option Agreement, or trying to mislead readers.

    I agree with 17.06 above - the only way to clarify ACV is for a review of the Kensal Rise Library decision, and the Community Right to Bid legislation. This is new legislation and needs to be subjected to case-review.

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    1. Well done Meg.

      Sadly if FKRL had stood up for ACV we would not have to refer this matter to Secretary of State.

      FKRL should not now be the preferred tenant if Secretary of State eventually rules the sale contract was illegal.

      It will be interesting in the run up to 2015 election which way Secretary of State will jump.

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    2. If Brent legal and its independent counsel got the bidding period wrong - if indeed they ever considered it - a compulsory purchase of the building is the only responsible way forward. Local residents deserve nothing less.

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  9. A reminder that anyone intending to write to the Secretary of State requesting call-in of the application/planning consent should do so as soon as possible before permission granted for the scheme. Useful advice on the letter can be found in this link:

    http://www.planninghelp.org.uk/planning-explained/planning-applications/call-ins/how-to-request-a-call-in/letter-advice

    The KRL application/overriding of ACV bidding period could yet make case-law on the Community Right to Bid.

    ReplyDelete