BREAKING: Further demand for recusion of councillors/deferral of Mumbai Junction Planning Application due at Brent Planning Committee tomorrow

 There has been a further request for the recusion of specific councillors or deferral of the Mumbai Junction planning application by Fruition due to be heard at tomorrow's Planning Committee. The request follows the report preamble by officers that Wembley Matters published yesterday.

The letter to Alice Lester, Brtent's Director of Regeneration, Growth and Employment, is very detailed bu I publish here two of the most important sections.

The  respondent suggest that information in the preamble is misleading:

Those reading the addendum to the officer's report would not realise that the finding of "not upheld" is only at Stage 1, and would be  subject to a reasoned request for review, and ultimately by the Local Government Ombudsman. They would probably be aware that the addendum only refers to the initial outcome of investigation of my complaint undertaken internally by an officer, albeit senior. It is not in any sense an independent or  legal assessment of the issues raised.

However, it is clear from that addendum into the Officer's report for Wednesday's planning meeting that consideration of the application by the July Committee Members was deferred pending the outcome of my complaint. It seems, therefore, that the Council realised there was a risk in the July Committee Members hearing the application.

If that is the case, why does the Council not consider that your decision might not be overturned on a final review, and what the risk might then be? It seems that a pre-judgement has been made either that I would not request a final review, or that, if there were such a final review, it could not have  a different outcome, or that it will all be too late anyway, once the consent is granted, if it is. 

 

A detailed argument is put forward about pre-application meetings with develoers and whether those conform to guidance. Of particular significane are those pertaining to the roles of Brent Council Leader, Muhammed Butt, and Lead for Regeneration, Shama Tatler.

 

ii)        You say to me in your response to paragraph 3 in regard to this meeting  that "The Leader and Lead Member meet a variety of people and businesses as part of their leadership roles, including businesses which wish to invest in the Borough and may have planning proposals. Such meetings are provided as a way of update and have no bearing on the assessment of any planning application. They are always attended by a senior  officer of the Council in line with the Planning Code of Practice. Awareness of views the Leader and Lead member may have on a particular application would not as you appear to suggest mean planning committee members are unable to approach the application with an open mind."

iii)       I do not accept that a meeting attended by the Leader, The Lead Member, Mr Ansell and Mr Glover and 4 Fruition representatives (managing director/manager/architect/planning director and communications consultant) can possibly be characterised as you suggest  - as one by a "business which wish to invest in the Borough and may have planning proposals. Such meetings are provided as a way of update and have no bearing on the assessment of any planning application."

iv)        In addition, and by way of evidence,  I attach the Agenda for the meeting, and the notes, which - in so far as they go  - speak for themselves. These were both provided in response to my FOIR and readily available to you in consideration of my complaint. Looking at the meeting notes, what the comment by Cllor Butt "New local councillors. keen to work with developers and the community." means is not clear. Councillor Butt wanted to know the dates of the community group/ward councillor meetings. In fact, he did not attend the resident consultation nor any meeting with the new local councillors on the subject.

v)         As to what was is evidenced as presented at that  June meeting, it did include a 33 page presentation  "for Councillor Butt". Other items may also have been supplied; I have an outstanding query dated 25 July with Mr Ansell, which requests copies of attachments to an email of 22 June from the developer's communications consultants, as they do not appear to be the presentation supplied.

vi)        There may also have been other meetings.(I also have an outstanding query dated 25 July with Mr Ansell, which also requests details of other meetings which the Leader may have attended, as indicated in a redacted email from the developer's communications consultants (I surmise) of 22 June 2022 "We will, of course, keep [name redacted] invited to all of our meetings and our consultation-"). (My emphasis added). I have asked the redaction is clarified by the postholder title, as well as for details of any other meetings. I may well wish to add to my grounds for complaint and review, when I do receive a response from Mr Ansell, the FOI Team to that email.

vii)      To me, it is not credible to suggest that this meeting and possible other meetings and evidence of very direct involvement are not a material factor. As above, it certainly appears to lead to Mr Ansell's arranging the pre-app meeting with the planning committee, although someone (redacted) in the meeting had evidently pre-empted with a contact  with someone (redacted) about "committee presentation". I have asked for postholder details in the cases of these redactions but context indicates it refers to members.   It is certainly a factor  the fair minded and independent observer cognisant of  the practicalities of local government would add into their consideration.

12        Turning now to the actual planning committee pre-app  meeting, of which the only evidence is the "draft"" Members Feedback"  and a comment in one of the applicant's documents.  I set out in my complaint what I see as evidence of a real possibility of bias or predetermination in those two documents but I will repeat it in summary here.

i)          Firstly, the  "draft"" Members Feedback" referred to in paragraph 2 of the Appendix  is not dated. It is self-evidently not complete,  as I set out in my complaint. ( For example, a comment by members on the "symmetrical option " being " the better building form" - with which preference  the applicant stated it  complied -  appears in the applicant's Planning Statement but not in the "draft"" Members Feedback". If that was omitted, where is the evidence of what else might have been  omitted? ).

ii)        The Member's Feedback is in itself of concern for the inadequate evidencing of such an important meeting for a contentious application, with departures from policy, inconsistency as to mass and construction with its entire surroundings at the gateway to a conservation area . It is a "draft",  though of what stage it is not clear. The record does not follow the Agenda or format.  There is no evidence of when the queries arose - to the developer and answered by the developer, and/or to the officers and whether before or after  the developer left the meeting?

 There is no evidence as to when and whether the "draft"" Members Feedback"   in this or any  other form was sent to the applicant, so there is equally no evidence that the "format" of the meeting was followed. The internal evidence of the Feedback is inconsistent . The developer certainly made responses as to provision of re-worked amenity space calculations, and daylight and sunlight calculations, and overshadowing - to which last point an entirely meaningless remark about trees at the rear of the site providing cover was made - well, meaningless if you know the site.

iii)       the "draft"" Members Feedback"   contains absolutely no reference to detail of applicable policy in the manner suggested in the guidance I quote at Paragraph 10 (ii) above: Local authority members are involved in planning matters to represent the interests of the whole community and must maintain an open mind when considering planning applications. Where members take decisions on planning applications they must do so in accordance with the development plan unless material considerations indicate otherwise. Members must only take into account material planning considerations, which can include public views where they relate to relevant planning matters. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless it is founded upon valid material planning reasons.

Where in the pre-app briefing  or recorded in the "draft"" Members Feedback"   is there any context given to the application from the policy considerations which are to be departed from as set out in the Officer's Report to Committee?  There is no mention of the Sudbury Court Conservation Area to which the site is a gateway. Still less any attention paid to the evidence provided by local photographs of how the original building reflected entirely the residential properties it faced.

The context given is partial, in my view, and a factor  the fair minded and independent observer cognisant of  the practicalities of local government would weigh in their consideration. Especially in the absence of any clear and transparent process or applicable protocol and private and confidential nature of the briefing in a closed forum.

iv)        As to specifics, you have confirmed that the presentation is identical to that presented to Councillors Butt and Tatler previously. The presentation was a 33 page document with illustrations. The first page is marked "Presentation for Councillor Butt June 2022".

You indicate that there is no evidential basis for me to suggest this in itself might have any effect. You were not aware of the content of the June 2022 meeting, as above.

Of course, I do not know what was in the respective minds of the July Committee Members  but to show prejudgement or bias, I do not have to show that. What I have suggested is that  the planning committee, being provided  with a detailed illustrated presentation on its face addressed  to the Leader of the Council and self-evidently given in private session a few days earlier (and ostensibly triggering this presentation to Committee)  is simply a fact, another element  - amongst the many I include in this complaint - for  the fair minded and independent observer cognisant of  the practicalities of local government to weigh in the balance on the issue of pre-determination or bias.

The meeting notes of Cllors Butt and Tatler indeed at least might be seen as  suggesting lines which might be put to ward councillors; it is not unreasonable to think these points might also be put the the planning committee. As above, it appears from the Notes of the Cllor Butt/Tatler meeting  that one of the two councillors contacted a planning committee member in advance about the setting of the pre-application planning  committee presentation.

 I do suggest that it is not fanciful for me  to imply that the views of the Leader  of the Council -and  the fact that he took a meeting with a 33 page presentation from the developer and its advisers - would  be seen as influential. Again, however, an issue for fair minded and independent observer cognisant of  the practicalities of local government to weigh in the balance.

v)         I mentioned other specifics in my complaint. You have not dealt in any way with these in your response, let alone  my reasoning. Indeed, it seems all you state here is that "expressing a general view does not indicate a closed mind or pre-determination". However, the Members Feedback  does not deal with "general views"; it deals with specifics. I will repeat these here.

vi)        The members "supported the general approach to redeveloping the site with housing". So they had already reached a decision on (a) the change of use (for which planning was required); (b) the loss of a well used local business and provider of employment; and (c)  the loss of  a popular and long-standing local restaurant and bar, takeaway provider, and  community hub and venue, used by local walking patrons as well as car users.  For me, evident pre-determination. What would the fair minded and independent observer cognisant of  the practicalities of local government think of that as evidence of pre-determination or bias?

vii)      The mass of the building and its complete lack of accord with the surrounding area. Members "were happy with the overall massing changes presented"  (Admittedly, one member considered it too large). For me, evident pre-determination. What would the fair minded and independent observer cognisant of  the practicalities of local government think of that as evidence of pre-determination or bias?

viii)     The form of the building -  The applicant's own planning statement indicates the Committee's favourable comments on a "symmetrical" approach from the various illustrations in the 33 page  presentation, which the applicant "accepted". For me, evident pre-determination. What would the fair minded and independent observer cognisant of  the practicalities of local government think of that as evidence of pre-determination or bias?

ix)        Finally and very seriously, affordable housing provision.  It is apparent that officers gave advice on issues of affordability. It is not clear when this was given, whether before or after the developer left. However, what is clear is that firm advice was given on a most important policy issue.  "It was also highlighted to members that the RPs do not often want to take on board affordable housing within a single core scheme given the constraints associated with management arrangements". It is impossible for a layperson to understand what the sentence  means, or what it represents in terms of what was actually said to Committee members. There is nothing to indicate that any actual  evidence of that broad statement was proffered, or tested. It appears to be an all encompassing reference to all Brent's "RPs".

However, what seems clear is that that  was officer advice to July Committee Members, which they could surely do nothing other than accept. There is no affordable housing provision in this application.  The only possible conclusion is that officers were explaining to members the position  which must be accepted on the final aspect which might be considered in an affordability test. No RP will take this on, put simply. This particular piece of advice however appears nowhere in the Officer report to Committee under the heading Affordable Housing. The members remained significantly concerned about the lack of affordable provision on site   - but it remains the case that the advice was unchallenged, was given in a totally private and confidential setting and not repeated in the public domain. For me, I am unable to see what other conclusion can be reached but that that there is a risk of bias or pre-determination when that "fact" is introduced into their heads. A "fact" not in the public domain. What would the fair minded and independent observer cognisant of  the practicalities of local government think of that as evidence of pre-determination or bias?

To return to the Persimmon case guidance:

"1. Actual or apparent bias or predetermination on the part of a decision maker renders his decision unlawful.

2. If a fair minded and informed observer who is neither complacent nor unduly sensitive or suspicious, having considered the facts, would conclude that there was a real possibility of bias or predetermination, then apparent bias or predetermination is established. For the sake of brevity, I shall use the phrase "the notional observer" to denote an observer who is fair minded, informed, not complacent and not unduly sensitive or suspicious.

3. In the context of decisions reached by a council committee, the notional observer is a person cognisant of the practicalities of local government. He does not take it amiss that councillors have previously expressed views on matters which arise for decision. In the ordinary run of events, he trusts councillors, whatever their pre-existing views, to approach decision making with an open mind. If, however, there are additional and unusual circumstances which suggest that councillors may have closed their minds before embarking upon a decision, then he will conclude that there is a real possibility of bias or predetermination.

4. Before the court makes a finding of apparent bias or predetermination, it must first identify with precision the facts which would drive the notional observer to such a conclusion."

 

I believe that I have established with precision such facts, that a fair minded and informed observer who is neither complacent nor unduly sensitive or suspicious, having considered the facts, would conclude that there was a real possibility of bias or predetermination, that the precise circumstances of the operation of the pre-application planning committee process and its output, when the Council at the time had no protocol for involvement of any member in pre-application processes are "additional and unusual circumstances"  and that apparent bias or predetermination is established.

The July Committee Members cannot properly consider the application on August 9th,and should recuse themselves. I wish my complaint to be carried to Stage 2 final review.