Councillors Abdirazak Abdi, Chan, Perrin, Lloyd and Kennelly have called in the decision to place a contract for Stonebridge Annexe works occasioned by the need to decant Brent Start facilities when the controversial new build takes place on the 1 Morland Gardens site in which the landmark Italianate will be demolished.
The call-in will be heard by the Resources and Public Realm Scrutiny Committee on September 23rd. I understand that its new chair Cllr Roxanne Mashari will not be able to attend.
Decision: Authority to Award Contract for Appointment of Engie Regeneration UK & Ireland as Works Main Contractor under a JCT Intermediate Building Contract with Contractor's Design 2016 Edition for Stonebridge Annexe, Stonebridge, NW10 0ST Date of decision(or date of public notice for officer decisions): 26 August 2020
[Editor’s note: In correspondence Brent Council noted that the decision
was actually signed off by Nick Ljustina (as Operational Director – Property
& Assets) but this was on behalf of the Strategic Director, Regeneration
& Environment, which they say is permitted under the Council’s Officer Scheme of
Delegation.]
The group of councillors gave the following reasons for calling-in the decision.
1.The above decision relates to the placing of a Contract for the works of refurbishment to Stonebridge Annexe ("Enabling Works") enabling the decanting of the Brent Start facilities from 1 Morland Gardens, NW6, preparatory to the demolition of the existing buildings on that site, and the erection of new mixed use buildings under planning application number 20/0345 (the"1 Morland Gardens Application").
2.The tender for the Enabling Works was concluded on or around 9 July, and, according to the Report leading to the Decision, dates (described in the Report as "anticipated")are set out for a Letter of Intent (14 August), a Letter of Award of Contract to Engie Regeneration UK & Ireland (31 August), with a view to Contract Start on Site on 14 September.
3.Having today enquired of officers in Planning and Employment and Skill, I have been informed that this Contract for the Enabling Works would not be placed, if the development under the 1 Morland Gardens Application does not proceed.
4.Issues have come to light regarding the 1 Morland Gardens Planning Application:
·Consent to the 1 Morland Gardens Application is awaited from the GLA;
·Notwithstanding the clear recommendations in paragraph R1 of the Preliminary Bat Roost Assessment dated February 2019 by Middlemarch Environmental ("Middlemarch Report") - based on a survey made in December 2018 (and repeated in paragraph 206 of the Planning Report) that at least 3 emergence/re-entry surveys be carried out during the period May-September, no evidence has been supplied that any such surveys have been carried out.
There are no surveys amongst the planning papers. Enquiry of officers today has not so far revealed any surveys were undertaken.
Condition 13 of the draft Planning Consent for the 1 Morland Gardens Application includes a requirement for adherence to the recommendations of the Middlemarch Report; however, if no surveys have been carried out, works under the 1 Morland Gardens Application must be deferred until after those surveys have been undertaken, results available and appropriate response formulated and actioned to ensure no criminal offence is committed. This would appear potentially to be in autumn 2021.
Appendix 1 to the Middlemarch Report sets out the legislative background; Regulation 41 of the Habitats Regulations 2017 states that a person "commits an offence if they...deliberately disturb bats; or damage or destroy a bat roost (breeding site or resting place)." If the surveys have not been carried out - then the whole process must be delayed until autumn 2021 to avoid the Council's committing a criminal offence.
5.I understand the Enabling Works relating to this Decision do not need planning consent. However, the provisions of the 2017 Regulations would still apply if any part of those works had the potential to disturb, or damage or destroy bats and their habitat in the Stonebridge Annexe as referred to above.
The Stonebridge Annexe is a building constructed in or around the 1930s, with a substantial area of trees surrounding it, and with strong potential for bat roosts and potentially on a Bat Corridor to the Welsh Harp and with Green and Blue Corridors in the other direction.
Accordingly, the Enabling Works may have the potential to disturb bats, and/or damage or destroy their habitats, if any are present. However, no preliminary bat roost assessment was commissioned, which should be undertaken prior to the Contract. There is no evidence that such assessment forms part of the Enabling Works. Indeed, with the timetable referred to in the Report, the programme outlined gives no time for such assessment to be undertaken, let alone any time for any action which may be requisite to comply with statute, should evidence of bats/roosts be present.
6.We understand that it has been agreed by the Chief Executive that an investigation should be undertaken by the Strategic Director following the raising of what I am told are serious concerns by a member of the public about the Morland Gardens Application. This investigation is ongoing and could impact on the Planning Consent for the 1 Morland Gardens Application.
7.The award of the Enabling Works Contract is premature, as there is still no certainty that the scheme envisaged by the 1 Morland Gardens Application will go ahead. Nonetheless, having regard to the importance of the project, I have spoken to officers as to the requirement for an urgent placing of the Contract for the Enabling Works in context of the project. In context of those conversations, I do not understand the reason for the urgency. Unfortunately, the Decision gives an impression of pre-emptive action. It will commit the Council to expenditure which may be wasted. It is at least possible to anticipate that, if delays in the development under the 1 Morland Gardens Application were to arise as a result of one of the factors referred to above, alternative proposals may result.
8.There is no compelling urgency to place the Enabling Works Contract before the above matters are resolved. By contrast, unless the Decision is called in, the Contract will be placed, and the Council will have irrevocably incurred an expenditure of £1.2m, which may be wasted – hence the reason for this carefully considered action.
When a decision is called-in the councillors signing the call-in are required to put forward an alternative proposal. This is their statement.
The decision should be deferred until:
1.It is certain that the proposals for 1 Morland Gardens comprised in the 1 Morland Gardens Application have received all necessary consents, including GLA consent; and
2.The legislatively required minimum of three bat emergence/re-entry surveys between May and September in one year have been undertaken, consequent assessments undertaken, the results considered and appropriate response actioned; and
3.The potential requirement of bat surveys for the Stonebridge Annexe considered and (if necessary) dealt with as above.
Scrutiny Committee will agree to one of the following outcomes:
1. The Committee does not wish to refer the matter back to the decision maker or to Council, at which point the decision is deemed to be confirmed and takes effect immediately following the meeting; or
2. The Committee decides to ask the Strategic Director – Regeneration & Environment to reconsider their decision, in light of any observations of the Committee; or
3. Having had regard to the advice of the Director of Legal and HR Services or Chief Finance Officer, the Committee considers the decision is contrary to the Council’s Budget or Policy Framework, at which point it refers the matter to the next practicable meeting of the Council, subject to the provisions of Standing Orders
The investigation referred to in 6 above is that instigated by indefatigable Wembley Matters contributor Philip Grant who has requested to speak to the Committee.
3 comments:
The demolition of this building would be yet another act of cultural vandalism by Brent Council. Our thanks to the Councillors who have called it out
As well as requesting to speak at next Wednesday's Scrutiny Call-in meeting, I also pointed out to the Head of Executive and Member Services ("HEMS") that the Officer's Report to the Committee (which they should be able to rely on for the facts of the matter they are considering) was incorrect:
'Paragraphs 1.1 and 3.1 of the Report on item 4 refer to 'a decision made by the Strategic Director – Regeneration & Environment on 26 August 2020.' That decision was NOT made by the Strategic Director - Regeneration & Environment. It was made by the Operational Director - Property & Assets.
My evidence for that statement comes from a response to my Freedom of Information Act request, ref. 15491780, which was sent to me on 4 September 2020 by the Strategic Director, Regeneration & Environment, Alan Lunt. The information requested and answer to it were as follows:
Q - Please let me know whether the decision of 26 August to award the contract to Engie Regeneration, of around £1.2 million, for refurbishment work at Stonebridge Annexe, Twybridge Way, NW10, was made by Alan Lunt himself, or whether it was made by a deputy on his behalf.
A - The decision providing Authority to award the contract was made by Nick Ljustina, Operational Director for Property and Assets.
My FoI had also requested a copy of the decision, and that was provided. I attach that decision document. As well as correcting the Report to the committee, this decision document should also be supplied as part of the agenda pack, as it will be relevant to the matters the committee will need to consider.'
The response I received from the HMES was that she would 'arrange for this to be clarified on the agenda papers.' As far as making a copy of the Decision Notice available to the Committee, she did not consider this necessary, as they already had the Report requesting the Key Decision in their agenda papers: 'This is the same approach as followed for all our previous call-in meetings.'
My comment continues as Part 2:-
Part 2:-
I have replied as follows:
'I note what you have said about the person who made the Key Decision being permitted to do so under the Council’s Officer Scheme of Delegation, but I still believe it is important that the agenda papers for the meeting should be quite clear on what has happened in this case, and that a copy of the decision notice should be among the papers that Committee members have available to them.
What happened over the key decision was this:
1. Nick Ljustina signed off the Officer Key Decision Report, which was a 'Report to the Strategic Director of Regeneration & Environment', recommending that a contract be awarded for a sum of around £1.2 million, at a time when the Strategic Director himself was not available.
2. The 'Record of Officer Key Decision' document begins by stating: 'Decision Maker: Strategic Director, Regeration and Environment', although there is a note below this in the next box referring to the basis of 'Authority for Delegated Decision'. However, it is only on the next page of the document that the identity of the person who made the delegated decision is shown to be Nick Ljustina,' the same person who had recommended that the contract be awarded.
I believe that, in the interests of transparency, the full facts and the decision document should be disclosed to the Committee, who will be considering that Key Decision. One of the points they will need to consider must, surely, be whether there was a potential conflict of interests, as the officer who recommended the award of the contract was the same officer who decided that it should be awarded!'
It will be interesting to see what the Resources & Public Realm Scrutiny Committee make of all this, if they are given the chance to understand it. Hopefully, they will at least make a recommendation that, in future, Council Officers cannot make Key Decisions to award contracts based on their own recommendation that that contract should be awarded (especially when the contract involves potentially wasting over £1 million of the Council's [OUR] money!).
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