The controversial planning application for Kensal Rise Library has been tabled for the Planning Committee Meeting of July 16th following legal advice. The item had been deferred at the last meeting LINK in order to seek further legal advice on whether the investigation into fraudulent emails supporting the developer's previous application was a 'material consideration'.
The new report LINK states:
The new report LINK states:
1.
The Council has obtained advice
from leading Counsel, Richard Drabble QC, since deferral of the decision by
Members on the 17 June. The advice was required to establish whether the
Committee could lawfully determine the current application having regard to the
fraudulent emails, in support of the application, received during the
consultation process in respect of planning application reference 13/2058.
Counsel has endorsed the views given by officers, by correctly identifying that
such claims of fraudulent activity, are not a material consideration for the
purposes of assessing the current application.
2.
Counsel contends that he can
see no reason why the grant of planning permission on the current application
should prejudice the police investigation into whether earlier representations
were bogus or fraudulent. In these circumstances Members are obliged to
determine the application on an objective assessment of material planning
considerations alone.
3.
3.The Council’s statutory duty
also extends to determine planning applications within a reasonable period of
time. Accordingly, any unreasonable delay by Members in deciding the current
application second time around could result in the developer lodging an appeal
to the Secretary of State (Planning Inspectorate) under section 78 (2) of the
Act on the grounds of non-determination. Effectively, the Secretary of State
would step into the shoes of the Council as Local Planning Authority and
determine the application. If the matter were deferred again without proper
justification for doing so, the Council will inevitably incur legal costs in
dealing with and defending the appeal. The Council may well have to pay the
developers professional costs as part of this process, if an order for costs
was made on that basis. However, it is very difficult to predict what the
overall costs are likely to be, but an estimated guess could run into thousands
of pounds. In this respect Members should be mindful of the Councils fiduciary
duty towards the local tax payer when balancing the degree of risk.
4.
In relation to the building
being listed as an Asset of Community Value under the provisions of the
Localism Act 2011 and the relevance of the listing status vis a vie the
decision to be taken on the planning application the comments contained within
the body of the report are duly noted by officers. Members should however, be
reminded that inso far as FOKR being named as “preferred tenant” of the D1
community space, this is not an issue the committee should purport to determine
as part of the planning process.
5.
In summary, and for the
avoidance of doubt, Members are under a statutory duty to determine the
planning application within a reasonable period of time; and that neither the
requirements of coming to a proper planning decision or any need to avoid
prejudice to the police investigation require any further delay.
RECOMMENDATION
Grant planning permission subject to the
completion of a satisfactory Section 106 or other legal agreement and delegate
authority to the Head of Planning or other duly authorised person to agree the
exact terms thereof on advice from the Director of Legal Services and
Procurement.
