Monitoring Officer's response regarding councillors, developers and planning decisions

Guest post by Philip Grant, first published as a comment on earlier posting.
 

Further to my "update" comment of 17 November LINK, I have now heard back from Debra Norman. She has said that 'it would not be appropriate for me to become involved in “public debates on issues of local interest”,' as 'I have to remain impartial and avoid any appearance of bias or pre-determination.'

I respect her position on this, but she also said: 'However, as there is no legal rule prohibiting the publication of my previous email to you, it is a matter for you whether you publish it.'

As her reply of 15 November was well-reasoned, and will help to contribute to a balanced discussion of the issues raised, I have told her that I will "publish" the full text of it on "Wembley Matters".

Dear Mr Grant

I am responding to your email below of 12 November 2017.

Allegations of breaches of the Members’ Code of Conduct (the code) are dealt with in accordance with the Council’s formal complaints procedure and should be submitted using the Council’s standard form – both of which are available on the Council’s website (see here: https://www.brent.gov.uk/your-council/complaints/complain-about-a-councillor/).

To date, I have not been contacted directly by anyone to complain about the matters set out in your email.

As therefore I can comment in general terms only, I hope the following is helpful.

In principle and for practical reasons, allegations of breaches of the code which are non-specific and don’t contain any direct evidence are likely to fail to disclose a potential breach of the code. For example, such allegations are incapable of being investigated in any meaningful or reliable way and/or are not susceptible to proof.

Of course, all Members, and especially senior Members, can reasonably expect to be held to account for their conduct and for complaints alleging serious misconduct to be dealt with properly, not only in accordance with established standards of good administration but also natural justice.

It is therefore regrettable when allegations of serious wrong-doing which are not specific and substantiated are made against individual councillors and made publicly available for repetition and comment by others. Allegations of this nature can cause serious reputational damage to the individual councillor concerned without him/her being able to properly defend themselves or clear their name, risk undermining public trust and confidence in local government and could even prejudice the Council’s ability to properly investigate or determine allegations of serious wrong-doing.

Public trust and confidence in all areas of Council decision making is important, with planning being a high profile example. It is for this reason that Planning Committee Members receive training on how to undertake their decision making role. In addition, all Members from time to time are reminded that planning decisions should always be taken in the public interest and on proper planning grounds (often referred to as material planning considerations, for example, planning policy and guidance) and in accordance with the general obligations set out in the code and the principles of conduct which underpin the code.

Members are made aware of the need to comply with the rules of natural justice i.e. the duty to act fairly; the duty to keep an open mind (i.e. the rule against pre-determination); and the rule against bias (both actual bias which may arise as a result of a direct (usually financial) interest in the matter to be decided and the appearance of bias i.e. the real possibility of bias arising from relationships or the decision maker’s conduct or actions or strongly worded views).

Members are also made aware of the standards of conduct expected of all Members whenever they conduct the business of the Council or their office and whenever they act, claim to act, or give the impression they are acting as a councillor. These include not using or attempting to use their position as a Member improperly to confer on or secure for themselves or any other person, an advantage or disadvantage, giving reasons for decisions and not bringing their office or the Council into disrepute.

The Council’s Planning Code of Practice supplements and reinforces these requirements. Members of the Planning Committee are aware that if they are approached by any persons or groups regarding an application they intend to decide, they are required to inform the Monitoring Officer.

Members of the Planning Committee know that they are required to make up their own mind. Voting blindly in support of party policy or the party whip is clearly not allowed. This includes not accepting a direction from their political group as to how they should vote. Nor should individual Members exert undue or inappropriate pressure on Members of the Planning Committee on how they should vote.

However, Members are not required to have a blank mind. The law permits Members to be pre-disposed to a certain point of view which they can give weight to but they must consider and give weight to all material planning considerations, other views and arguments, and all the evidence. In other words, they must be prepared to change their view if persuaded they should. In drawing a key distinction between pre-determination (which is unlawful) and predisposition (which is recognised as a reality of political and local government life), the courts have sensibly struck a pragmatic balance.

Provided Members comply with these rules, there is no legal rule against Members, whether of the same group or not, discussing strategic planning issues, general policy issues or, provided these rules are not breached, even a future decision.

Similarly, joint working, both formal and informal, and dialogue between Members of the Planning Committee and Members of the Cabinet is recognised as a legitimate reality of local government life. Members of the Planning Committee simply need to ensure that when making planning decisions, they make up their own mind and on the planning merits.

[Debra Norman, Chief Legal Officer, Resources Department, Brent Council]

Cllr. Butt and hospitality from a property PR company – the details

Thanks to Philip Grant for this guest post. It is a long article but worth reading in full by anyone concerned about the relationship between Brent Council, its councillors and developers.

A recent blog on questions over “hospitality” for councillors, raised by Cllr. Duffy with Brent’s Standards Committee LINK led to many comments from “Wembley Matters” readers. In one comment, I drew attention to an entry in Cllr. Butt’s “Register of Interests” on the Council’s website, which raised concerns over its possible effect on planning matters in the borough:

'09/05/17 - Three course meal with developers from the construction industry. Estimated value between £30-40. Received from Terrapin Communications, London.'

I decided to seek further information from the Council Leader about this meal (paid for by a PR company which represents a number of property developers), so sent him an email and added the text of it as another comment. I had intended to put any reply received from Cllr. Butt as a further comment below that blog, but now feel that more readers could see it, and make their own judgement about the details given and their implications, if they are set out in a separate blog.

I was not optimistic that I would receive a reply from Cllr. Butt, as he has not replied to any emails I have sent him since September 2014. A number of these have included important questions, such as in February 2015, when I asked him (and repeated this in a blog, and in a letter published in the “Brent & Kilburn Times”) why he was still “protecting” two senior Council officers, Cara Davani and Christine Gilbert, when he had known about their misconduct in the Rosemarie Clarke Employment Tribunal case since at least September 2014? [I have previously suggested, only half-jokingly, that the reason he won’t reply is because he is afraid that anything he writes to me may be used in evidence against him!]

However, on 3 October I received an email from Brent, thanking me for my Freedom of Information request (I didn’t know that I had made one!) and saying that it had been forwarded ‘to the relevant department’. A few hours later, I received an email from the Chief Legal Officer, Debra Norman, giving the Council’s response to my FoI request. I don’t know why the Council Leader could not just provide the information himself, but at least the Council’s Monitoring Officer (Ms Norman’s “other hat”) realised that the points I had raised needed to be answered fully, and quickly. This is what she wrote (the numbered paragraphs begin with the six questions, in bold type, I had asked Cllr. Butt, so the answers are as if from him):-

Dear Mr Grant 

I set out the council’s responses to your request for information sent to Cllr. Butt which has been allocated to me via the council’s FOI system.  I have spoken to relevant senior officers concerning your request and the members and officers declarations of gift and hospitality have been reviewed.

1. Who else from Brent Council (members or officers) attended that "Terrapin Communications" meal with you? 

·      Cllr Tatler  [Author’s note: Lead Member for Regeneration etc.]

·      Aktar Choudhury  [Note: Operational Director Regeneration]

·      Amar Dave  [Note: Strategic Director Regeneration and Environment]

The officers concerned declared the hospitality on 23.5.17 and 10.5.17 respectively.  Cllr. Tatler declared the hospitality on 10.5.17. Cllr Butt declared the hospitality on 09/05/17.

2. Which companies were the 'developers from the construction industry' who were at that meal with you?

The guest list indicates the following companies sent representatives to the event: 

·      London Square

·      Dukelease

·      Dandi Living

·      Pinnacle

·      Henley Homes

·      R55

·      Stanhope

·      Countryside

·      The Collective

---

3.    What current or proposed developments in the London Borough of Brent are those companies (in question 2) involved with?

The relevant developer and addresses are included below.

·      London Square - 60 Neasden Lane

·      Dukelease and Dandi Living - York House – this is a permitted development

·      Pinnacle - Shubette House aka Pinnacle Tower

·      Henley Homes - Brent House

·      R55 - 255 Ealing Road and Minavil House

·      Countryside - Barham Park Estate

4. What reason did Terrapin Communications give for inviting you to that meal?

To engage and enable developers to better understand the Borough and our aspirations. 

It is important that the council’s Cabinet Member for Regeneration, Growth, Employment and Skills (who is not the chair of the Planning Committee and who has a different role) promotes a clear understanding of the council priorities in respect of affordable housing and quality of design.

5.    Were any past, present or proposed developments in Brent discussed at the meal, and if so, what developments or proposals?

The discussions consisted of generalisations about the borough aspirations and what the council wants to achieve. Only one developer (Dukelease) raised a particular development, which was York House.

6.    Were any of the matters discussed at the meal passed on afterwards to any other Brent Council member or officer, and if so, to whom were they passed?

Aside from requesting a relevant officer to respond to a transport issues raised by Dukelease, no information was passed on as operational matters were not discussed.

Best wishes 

Debra Norman 

Chief Legal Officer

Now that we have the information, what are we to make of it? I will give a few thoughts of my own, and I would invite anyone who wishes to, including Ms Norman and the councillors and officers who attended the meal, to add a comment in reply, giving their own views.

I will start with the reply to question 4, the reason that the PR company gave for inviting the Council Leader, and Brent’s top “Regeneration” people, to a meal with a number of their developer clients. The first sentence may be what they said, but the rest looks like a “gloss” put on that, to justify the attendance of Cllr. Tatler. 

Frankly, there was no need for a get together over dinner, especially if (as the answer to question 5 states) ‘the discussions consisted of generalisations about the borough aspirations and what the council wants to achieve.’ Brent’s Regeneration aspirations, and the planning guidance in respect of them, are set out clearly on the Council’s website. For example, this is the online package for regeneration in Wembley LINK .

Terrapin Communications could also have given their clients the information they needed on these issues from its own experience the previous year, in advising Hub Group over its successful planning application for the “Twin Towers” development at the corner of Wembley High Road and Park Lane. This was the proposal for two blocks of flats, up to 26 storeys high, which Planning Committee approved in April 2016 by four votes to two, with two abstentions. It was opposed by hundreds of local residents, but recommended by Planning Officers, despite it not complying with Brent’s and London’s policies on density, carbon emissions, living space, open space, play space and the proportion of affordable housing.  LINK .

Terrapin, as a PR company, of course put a positive “spin” on this decision, when reporting it on their website shortly afterwards:

‘Residents in Brent are set to benefit from an exciting new community centre along with other public improvements thanks to a new development in the Borough.  Terrapin Communications helped Hub Group secure planning consent for the scheme.  Designed by Macerator Lavington, it will also include 239 new residential units in two new buildings, one twenty six stories, the other twenty one stories. Commenting on the success at the Planning Committee, Terrapin Senior Adviser, Christian Klapp, said "It was hard work but rewarding knowing the benefits the new scheme will bring for people in the local area".’

In my opinion, Terrapin’s reason for arranging the meal and inviting Cllr. Butt and others was to “engage and enable developers” to meet, and hopefully influence, key decision makers in the borough. I agree that Cllr. Tatler ‘is not the chair of the Planning Committee’, but she, and particularly the Leader of the Council (and of the Labour Group, which has seven on the eight committee members) are in a position to influence the decisions made by that Committee (even though it would be a serious breach of Brent’s Planning Code if they were to do so).

Turning to the answers to questions 2 and 3, the developers at the meal with Cllr. Butt and the other Brent attendees, and what developments in Brent they are involved with, there are definitely some areas of concern. I will focus on the developer R55. They are not a potential developer who needed to ‘understand the Borough and our aspirations.’ They already had at least one development under construction, and other planning applications “in the pipeline”. 

The meal took place on 9 May 2017, and at the Planning Committee meeting on 24 May 2017 R55’s application 16/2629, for a large mixed-use development (including blocks of flats up to 26 storeys high) at Minavel House, Alperton, was unanimously approved, even though the Council’s regeneration masterplan for this area had set a height limit of ‘up to 17 storeys’. In the declarations of interest at the start of the meeting, under “approaches”, the minutes record: ‘Minavil House - All members and officers received a brochure from the applicant’s agents.’ Although not opposing the development in principle, a speaker against the application ‘expressed concerns on behalf of the residents in the development to the south of the site regarding the scheme’s scale, massing, height and obstruction to light.’  LINK

Although not listed in the response to question 3 above, R55 also have a pre-planning application, 16/0445/PRE, on the agenda for next Monday’s (9 October) Planning Committee meeting. This is in respect of ‘land at 370 High Road, London, NW10 2EA and 54-68 Dudden Hill Lane’, ‘for a mixed use development consisting of 224 residential units, a supermarket, nursery, gym, café, workshops and amenity space.’ A previous pre-planning presentation had been made to the committee on 15 March 2017, when it appears that some councillors may have expressed concern over the proposed height of some of the blocks of flats, in the vicinity of Willesden High Road.

Many Brent residents, and residents’ groups, have been disappointed by Planning Committee decisions in recent years, allowing developments which seem to go against the borough’s own agreed planning policies. An opposition motion calling for an investigation of this issue was put to the Full Council meeting on 18 September, but lost – although the details are not yet available on the Council’s website, it appears from the webcast that most of the Labour Group’s large majority of councillors voted against it. Yet a number of Labour councillors have told me privately that there is “political interference” within Brent’s planning system.

In his email to Cllr. Allie, the Chair of Standards Committee, the comments on which gave rise to this blog, Cllr. Duffy said:

‘In my experience its best to keep clear of hospitality from developers as “When you dance with a developer, it’s always to their tune".’

I hope that Brent’s Monitoring Officer will endorse that view, when she considers the lessons which should be learned from this episode. The Codes of Conduct for both members and officers include a requirement to comply with the seven general conduct principles in public life. If citizens of our borough are to have confidence in the Council, a key principle is:

‘Integrity: you should not place yourself in situations where your integrity may be questioned, should not behave improperly and should on all occasions avoid the appearance of such behaviour.’

How does accepting an invitation to dine with developers, who may want you to help them get their planning applications approved, fit with that principle?

Brent Council and Cara Davani – when (if ever) will we really know what happened?

 

Brent and Kilburn Times June 30th 2016

Guest blog by Philip Grant

Cara Davani – didn’t she leave Brent Council two years ago? And it was a year ago that the Council finally admitted that she had been given a “pay-off” (of £157,610). Surely the enquiry into this must have been sorted out by now? I’m afraid not.

When I last gave an update about “progress” on the investigation of objections to Brent’s 2015/16 accounts LINK we had been told by the Auditor that he anticipated sharing material documents with the objectors by the end of June. When the agenda for Brent’s Audit Advisory Committee meeting on 26 June appeared on the Council’s website,  KPMG’s “External Audit Progress Report” said that they expected to share the documents, and other material, ‘in July’.

As the Auditor had agreed to share those material documents (which he received from the Council in mid-December) with the objectors, and we had been expecting to get them early in 2017, I asked to speak about this item on the agenda for Monday evening’s meeting, and the committee Chair (David Ewart, an independent member) agreed in advance that I could. I hope that Martin will be able to attach the text of what I said to this blog, so that you can read it in full if you wish to. There were two points that I wished to raise with the committee, and the Chair asked me to deal with them separately. 

The first was the objectors’ disappointment with the lack of progress in KPMG’s enquiries, and our concern that the investigation process might have been changed, without explanation. We were originally told that we would have the chance to make further comments before the Auditor reached any ‘provisional findings and views’. The latest progress report spoke of sharing ‘our provisional view and material documents’ at the same time. I asked the committee to invite the Auditor to clarify the position, and to encourage him to provide a timetable for the remaining steps in his investigation, through to his final decision on the objections.

The Auditor, Andrew Sayers, did not seem to accept that there was any real change from what his predecessor had set out in November 2016. He thought that knowing what his provisional views were would help us and the Council when he shares those views and material documents with us. He still wants any further comments from us, and assured the meeting that his provisional views will be open to change in the light of any further comments and evidence he receives. On how long it was taking, his response seemed to be that he had to do his job properly [I would agree that he should, but does it really need to take so long?]. 

The Auditor seemed to suggest that the material would be shared in about six weeks (so August, rather than July?), but said the timetable after that would depend on what further comments he receives and what further investigations he may need to make, so he could give no indication of when his final decision might be published.

There were murmurings from the committee over how long his investigation was taking, and what it would cost (Mr Sayers did not know how much it had cost so far, but he would write with a figure that could be passed on to committee members). Cllr. Davidson, in particular, was concerned over the costs, and appeared to suggest that KPMG could be carrying out unnecessary work, just to increase their fees.

My second point, asked the committee to recommend that Council Officers consent to Mr Sayers sharing the legal advice with us "in strict confidence". The papers around that advice comprise very ‘material documents’, as they provide the only evidence in support of Brent’s decision to make the payment to Ms Davani.

The Chair asked Brent's Chief Legal Officer, Debra Norman, to address them. She told the committee, effectively, that "Legal Privilege" was a fundamental principle that should never be breached. She did not appear to consider whether, in the particular circumstances of this investigation, refusal by the Council to allow the objectors access to the documents, in strict confidence, might appear to be unfair.

The Chair asked Mr Sayers whether the lack of consent from the Council was "impeding" his investigation, and the Auditor said that it was not, although it might mean that he had to take legal advice himself over whether to disclose certain documents to the objectors. I am not sure whether committee members realised that this would mean additional costs to the Council for the investigation.

I was allowed a brief reply, but like Mr Sayers, I had to say that I could not disclose the full nature of the allegations in the objection, but that they did involve matters which were 'contrary to law', and that this was more than a possible query over whether a QC's advice was correct.

There was no real discussion or vote on what action the committee should take over my second point. It was almost like a shrug of the shoulders to say "well, we can't go against the advice of the Chief Legal Officer".

I was probably naïve to think that the Audit Advisory Committee might, just might, be persuaded to recommend that the legal advice, which the Council claims as justification for the £157,610 “pay-off” to Cara Davani, could be shared with the objectors. But at least I tried to move things forward towards getting this long-running matter resolved, and the minutes of last Monday evening’s meeting will hopefully record the main points of what was said.

So, Wembley Matters readers, and the rest of Brent’s citizens, will have to carry on waiting for details of why the payment was made, if that is found to be different from the Council version(s), to be officially revealed. You can be sure, however, that the five local electors who objected to Brent’s 2015/16 accounts will do their best to see that the truth comes out, eventually.

Philip Grant.