This Guest Blog by local historian Philip Grant is longer than usual but raises some fundamental issues regarding planning that merit full exposition.
12. If any officer of the Council who is involved in making recommendations or decisions on planning applications has had any involvement with an applicant, agent or interested party, whether or not in connection with the particular application being determined, which could possibly lead an observer with knowledge of all the relevant facts to suppose that there might be any possibility that the involvement could affect the officer's judgement in any way, then that officer shall declare a prejudicial interest in the public register held by the Director of Regeneration and Major Projects and take no part in the decision making process. The declaration of such interest shall also be recorded in the minutes of the meeting. This public register to be available for inspection at Planning Committee meetings.
If you are interested in how Brent’s local
government works in practice, I invite you to consider this case study.
Although I have asked the question, I will leave you to decide the answer. If
you wish to leave a comment, please do. You can comment anonymously, but it
would help if you could give some (genuine) information, so that other readers
know whether you are a “Willesden Green resident”, a “public relations
consultant from Winchester”, a “Brent Council insider” or an “unconnected
outsider”.
At a special Planning Committee meeting
on 21 February, consent was granted to an application in the name of Galliford
Try Plc to redevelop the Willesden Green Library Centre. On 22 February I
lodged a complaint with Brent's Chief Executive that there had been a breach of
Brent's Planning Code of Practice at that meeting. This breach was the failure
to make available for inspection at the meeting the public register in which
the Planning Officers reporting on the application should have declared a
"prejudicial interest", so that the decision was taken without the
committee being aware that the report, and the recommendation which they
accepted, might not be impartial. I made it clear that my complaint was about
the actions of Council Officers; I was not criticising the Planning Committee
members in any way. Councillor Ketan Sheth had chaired the meeting in an
exemplary way, treating all parties fairly and with great courtesy.
Brent’s Planning Code of Practice
is part of the Council’s Constitution. It ‘seeks to ensure that officers and
members consider and decide planning matters in an open and transparent
manner’, and sets out rules which are intended to make sure that planning
decisions are not only made fairly, but that they are seen to be made fairly.
Item (or rule) 12 says:
12. If any officer of the Council who is involved in making recommendations or decisions on planning applications has had any involvement with an applicant, agent or interested party, whether or not in connection with the particular application being determined, which could possibly lead an observer with knowledge of all the relevant facts to suppose that there might be any possibility that the involvement could affect the officer's judgement in any way, then that officer shall declare a prejudicial interest in the public register held by the Director of Regeneration and Major Projects and take no part in the decision making process. The declaration of such interest shall also be recorded in the minutes of the meeting. This public register to be available for inspection at Planning Committee meetings.
The complaint was not some
"trumped-up" delaying tactic or "sour grapes" on my part.
As Brent was in reality a “joint applicant” with Galliford Try in the plans for
the new Cultural Centre, I had first raised the question of the need for any of
Brent's Planning Officers reporting on this proposed development to declare a
"prejudicial interest" in the public register, with Brent's Chief Planning
Officer, Chris Walker, as far back as May and June 2012, in respect of the
initial application which was later withdrawn. I had reminded him and his Area
Team Manager, Andy Bates, of this a few days before 21 February.
I had
also alerted the Democratic Services Officer responsible for the Planning
Committee meetings of the importance of this matter, and that I would wish to
inspect the public register a few minutes before the meeting. At around
6.45pm on 21 February I had approached this Officer in the Committee Room,
introduced myself, and asked to see the public register. He gave me conflicting
reasons as to why the register was not available to view, one of which seemed
to be that no such register existed, another that it was only available to view
online and a third that it was kept at Brent House, and that I would have to
make arrangements to view it there. I asked him to inform the Chairman, at the
start of the meeting, about the absence of the public register, and that it was
important for the business of the meeting that it should be available. He did
not do so.
When it was my turn to speak, as an objector, I took the opportunity to
say that the public register of Officers' prejudicial interests should have
been available to inspect at the meeting, and that Mr Walker and Mr Bates
should have signed it. Later in the meeting Councillor Mary Daly asked the
Chief Planning Officer for his comments on the points I had raised. Mr Walker
did not refer to the public register or to "prejudicial interest",
but did say that his department took care to separate staff dealing with
planning applications from those who were giving advice to colleagues in
Regeneration and Major Projects on proposed schemes. He also said that no
one could tell him what to recommend in terms of planning matters. The
committee’s Legal Advisor stayed silent on the Code of Practice points
throughout the meeting.
My complaint was passed to Fiona
Ledden, Brent’s Chief Legal Officer and the Council’s Monitoring Officer for
ensuring that all its planning procedures are carried out properly, to look
into and reply to me. If he considers it appropriate, Martin will have added
links below to pdf versions of her letter to me 1 March and my reply of 2 March
to her, setting out our respective views. Please feel free to read them if you
are interested, but I will summarise the main points as follows:
It is
Fiona Ledden’s view that:
1. Chris Walker and Andy Bates do not have an “involvement” with Andy
Donald, Director of Regeneration and Major Projects. They just happen to work
for the same Council department.
2. Because of the Separation of Powers between the Planning and
Regeneration sides of the department, there is no real possibility that the
report to Planning Committee could be anything other than totally impartial.
3. She agrees 'that as a matter of good practice the Public Register should
have been available at the Committee meeting for inspection', but does not
consider that this had any effect on the Committee's decision.
It is my
view that:
1. Messrs Walker and Bates should have declared a "prejudicial
interest" in the register (it is possible that they did, but without
seeing it I can't be sure) because their "involvement" with Andy
Donald, and his with the WGCC project, might possibly have affected how
they wrote the report and recommendation.
2. Applying the proper tests for "prejudicial interest" it
is clear from the actual report that there were parts which were not impartial.
This, coupled with their "involvement" (although they may not have
taken part in discussions with the Regeneration Officers, they have
been working together in Brent House for the past year with colleagues who
were promoting the scheme and expecting it to be approved, and their boss was
the man responsible for "delivering" this project for Brent
Council), means that item 12 of the Code of Practice must apply.
3. The public
register of prejudicial interests is supposed to be available to inspect at
each meeting of the Planning Committee, but it
was not and members were not made aware of the key information it should have
contained. Reports to committee have to be impartial, and the committee are
generally expected to accept the Planning Officer’s recommendation. Had they been aware that this report might not be impartial, they would
have considered it in a more critical way. As a result, their decision cannot
be seen to have been made fairly, which is the whole point of Brent’s
Planning Code of Practice.
Another
important part of Brent’s Planning Code of Practice is item (or rule) 1, which
puts in formal terms another of its stated purposes: ‘The provisions of this
code are designed to ensure that planning decisions are taken on proper
planning grounds’. Item 1 says:
1. Members of the Planning Committee shall determine applications in accordance with the Unitary Development Plan [now the adopted Local Development Framework] unless material considerations indicate otherwise.
As the committee need to know whether applications meet Brent’s adopted
planning policies, and if they do not whether there are “material
considerations” which mean that an application should still be accepted, you
would expect the Planning Officer’s report to contain this sort of information.
The report on the Willesden Green Library Centre application was noticeably
lacking in such details. I will illustrate this using the issue of open space
as an example.
The
Officer’s report to the 21 February meeting on application 12/2924 included a
list of 22 issues on which objections had been raised, including these on open
space
OBJECTIONS
I had actually sent a detailed letter about the open space issues to Planning Case Officer, Andy Bates, on 13 January. I summarised in an online comment, which can be seen on the Brent Planning “view comments” webpage for application 12/2924. Here are some extracts:The principal issues that have been raised are set out below:
2. The new building would lose the sense of openness towards the front of the site that the existing building provides for.3. The loss of the open space to the front of the existing library is unacceptable in itself. It is well used by the community. The proposed open space is hidden around the back of the new library building and will not be welcoming.
14/01/2013: BRENT'S
PLANNING POLICY SAYS OPEN SPACE SHOULD BE PRESERVED - The development proposals
contained in this application, to build the new Cultural Centre over that open
space, go against policy CP18 in the adopted Core Strategy of Brent’s Local
Development Framework and against policies set out in Chapter 7 ("London's
Living Places and Spaces") of the 2011 London Plan. / This local open
space was created as part of the Willesden Library expansion scheme in the
1980's, as one of the policy commitments given by Brent Council in the
Willesden Green District Plan, adopted in December 1980. / The District Plan
identified the site which Brent Council was then acquiring for its new Library
Centre as the ideal location for a variety of new community facilities. The
plans which were then drawn up for those facilities, in full consultation with
the local community, included this 'much-needed open space' on the Willesden
High Road side of the Library Centre. / Part 5 of Brent's 2010 planning Core
Strategy shows that the area around the High Road in Willesden Green is still
an area of open space deficiency, and says that local open space in such areas
is 'crucially important to the borough' and in 'need of protection'. That is
why core policy CP18 says 'Open space ... of local value will be protected from
inappropriate development and will be preserved for the benefit, enjoyment,
health and well being of Brent's residents, visitors and wildlife.' / It is
clear that the proposals in the planning application to build over the open
space in front of Willesden Green Library Centre would be 'development harmful
to its use and purpose as open space', so that the open space should be
preserved.
The summary of objections did not reflect the
planning policy points I had made, so what did the main body of the Officer’s
report say on these matters? These are the main extracts:
FACILITIES OUTSIDE THE BUILDING
The development proposes to change
the current open areas around the building – principally by providing the new
‘Brondesbury Walk’ and improvements to the public realm in Grange Road. / The
range of current outside areas includes the space to the rear of the library,
the small children’s play area adjacent to it and the space to the front of the
library building./
The application scheme creates a
new street entitled ‘Brondesbury Walk’ to the rear of the new library which
provides a single space larger than any of the single areas that exist at
present. However, the space would be some 65 square metres smaller than a
combination of the existing space to the rear and the open area to the front
(total 565 square metres rather than 625 square metres). This small reduction
is acknowledged. However, in qualitative terms it is considered that the
proposed spaces will, at least, be equal to the existing offer.... / The
intention is that the space will be used as a new local square for use by
existing and future communities. It will be predominantly hard paved, but will
include mature trees to provide visual interest and shade. The level change
between the WGCC and the residential Block A will allow for a double terrace of
seating to be provided for visitors of the Centre to use. /
It is proposed that the new WGCC
building will sit in a sensitively interpreted civic space which will provide a
high quality setting for the building. The spaces will not only provide formal
civic amenity, but interesting play facilities making the public space around
the centre as much of a destination as the building. The quality of landscape
interpretation, including the use of level changes, has allowed a sensitive
designed progression from the civic public spaces adjacent to the Cultural
Centre to the semi-private and private areas of the residential development
behind.
There was still no mention of Brent’s
core policy CP18, an admission that there would be a smaller area of open space
of at least equal quality ‘to the existing offer’, but a claim that it would be
a better ‘civic space’, which presumably is regarded as a “material consideration”.
If the report had stated that the application’s proposals on open space went
against Brent’s planning policies, but had then set out a clear argument as to
why the benefits of the new scheme were considered to outweigh those policy
considerations, then it might have been considered even-handed. However, I can
see no valid reason why core policy CP18 was not brought to the attention of
Planning Committee.
The report also failed to mention that
the main function of the top level of “Brondesbury Walk” is to provide
pedestrian access and natural light to one side of residential Block A (which
will be built right up to the edge of the land which Brent is giving to
Galliford Try in return for the developer constructing the new Cultural
Centre). Another factor making the proposed new open space even smaller is that
its western (Grange Road) end must be kept clear, to allow lorries servicing
the Cultural Centre to reverse into “Brondesbury Walk” in order to turn round.
The open space issues are just one of a
number of areas where clearly identified failures to comply with Brent’s
planning policies, which were brought to the attention of Planning Officers,
have not been properly reported to Planning Committee in this case. The
Officers' report can hardly be claimed to be impartial in these circumstances.
Add to this the strong case as to why those Officers should have declared a
“prejudicial interest” in the public register, and the failure to have that
register available for inspection at the Planning Committee meeting, and I hope
you can see why I felt it necessary to complain about the apparent breach of
Brent’s Planning Code of Practice.
Was what has happened the result of
incompetence, a corporate cover-up or was there nothing wrong at all with the
actions of Council Officers? Fiona Ledden is a trained lawyer, and I am not, so
it is possible that I may have misunderstood how the Code is meant to work in
practice. What do you think?
