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.
