Who guards the guards when the all the guards are in trouble?

This is the board of our Local Enterprise Partnership:

http://www.heartofswlep.co.uk/chief-executive-and-non-executive-directors

Post-Brexit, the vast majority of this board is having trouble: housebuilding slowing down, AgustaWestland talking of massive redundancies, universities losing EU funding and students, and many of them have cross-interests and common interests that are going to be very fragile (several have nuclear power interests).

How can we be sure that they will not put their own interests first in tough times when funding is tight?

If, given their interests, they had to decide between, say, supporting their direct or indirect business interests or supporting small and isolated rural communities which would you expect them to choose?

Exeter residents use neighbourhood plan to challenge “studentification”

Residents group Exeter’s St James Forum has issued judicial review proceedings against Exeter City Council in a dispute over ‘studentification’.

It opposes construction of a 320-bed student development near the St James Park football ground, which it argues is a breach of an agreed neighbourhood plan, which sought to change the balance of the locality by resisting the spread of student accommodation.

The neighbourhood plan was approved by a planning inspector and won the support of 92% of residents in a 2013 referendum, the forum said.
It was then adopted by the city council and became part of Exeter’s local development plan.

The Forum argues that the neighbourhood plan should “carry considerable weight” in any planning application in the St James area, as in April planning minster Brandon Lewis said in a letter to local MP Ben Bradshaw: “Where a planning application conflicts with a neighbourhood plan that had been brought into force, planning permission should not normally be granted.”

It asked the minister to call in the planning application, which forms part of Exeter City Football Club’s regeneration around its St James Park ground, in March but he declined to interfere with the council’s judgement on the matter.

A statement by the forum said it had been “left with little choice, other than on one hand to concede that the neighbourhood plan was a worthless document in so far as consideration of community balance was concerned or on the other hand stand up for the plan and the residents of St James”.

Exeter City Football Club said it was “bitterly disappointed” by the forum’s legal challenge.

Club chair Julian Tagg said: “Our efforts to work with the forum and find a compromise have been thrown back in our face by what appears to be a minority of individuals who, rather than engage in sensible and amicable discussion seem to be hell–bent on having a confrontation with the city council with the future of the football club as potential collateral damage.”

http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=27601%3Acouncil-faces-planning-judicial-review-challenge-over-studentification&catid=63&Itemid=31

Remove rural tourism red tape = more holiday lets for farmers!

Isn’t it just predictable that the givernment would think that tourism can only be improved by more holiday lets!

What about removing VAT on ALL tourist accommodation – as is the case in most of – you would never believe it! – Europe! What about not concreting over our green fields? What about not building houses on our beauty spots and AONBs? No – just let farmers (and other developers) build more!

Rural campaigners have called for the abolition of planning red tape to help turn round a decline in the number of visitors to Devon and Cornwall’s glorious countryside.

The Environment, Food and Rural Affairs (EFRA) Committee has announced that it will examine the reasons behind a national wane in visitors to the countryside.

Sarah Lee, head of policy at the Countryside Alliance, said tourism was vital to the economy of rural areas in the region and the Government needed to take action.

“Tourism is of enormous financial importance to rural areas like the Westcountry and it is alarming to see the market decline in this way,” she said.

“We welcome the Efra Select Committee inquiry into the problem and urge parliament to do everything it can to boost and support rural tourism.”

Ms Lee said the Government could act to “remove the red tape” that surrounds planning permission to make it easier for redundant farm buildings to get a new lease of life as holiday lets…. ”

http://www.plymouthherald.co.uk/remove-red-tape-call-to-boost-rural-tourism/story-29484249-detail/story.html

Devolution: if one size doesn’t fit all, how can you be sure you have the right size?

“… In his speech Clark also announced the launch of an official consultation on business rates retention, and insisted that devolution deals were “very much available to all of the country”.

The Communities Secretary said: “No place is the same and no deal should be the same. The geography and powers and governance that are right for one place will not be right for another. But in every case I will look for local agreement, not central imposition.

“Now I know that in many cases it would seem easier to give a standard blueprint and compel authorities to adopt it. But if you believe in devolution as I do that is to miss the whole point. I will not compel any council to join any devolution arrangement. It needs to be locally agreed.

“But in a Britain in which the question has changed from whether to devolve to how significantly, there is a huge opportunity for leaders who are willing to work together in harmony to take powers and budgets which can be used to magnify the impact on the lives of their residents.”

http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=27623%3Alocal-government-to-have-seat-at-brexit-negotiating-table-says-communities-secretary&catid=59&Itemid=27

Unfortunately, this probably means that those areas which have not built in robust scrutiny will probably not get it.

When does a park become an “ecology park”? When it’s in Cranbrook!

“We are currently being consulted on the following planning applications:
16/1007/MRES (access, appearance, landscaping, layout and scale, for the construction of 134 dwellings, highway infrastructure, including highway access from London Road/B3174 and associated landscaping works at the land north of London Road and east of Royal Court)

16/1235/MRES (access, appearance, landscape, layout and scale for the construction of an Ecology Park and drainage basins at the Ecology Park land east of Cranbrook Education Campus)”

The “drainage basin” sounds just a bit ominous – let’s hope the ecology isn’t drained away with its first flood!

Bovis and Seaton affordable housing – a long and winding road

Below is a report of the original discussion EDDC had in July 2013 about affordable housing on the (then) Tesco site. It should be notec that, though “overage” was discussed and apparently agreed at this meeting, the requirement was subsequently dropped, though no explanation was given for this:

“… Tesco has petitioned for the removal of all the affordable housing on its site to make it more saleable, as it has many problems associated with the infilling of the site which mean that only certain types of houses can be built and fewer of them.

“What I say below is a personal opinion only and reflects my layperson understanding of the debate.

The DMC heard from myself [Sandra Semple] and Paul Arnott: there were no representatives of the town council in attendance. District Councillor Peter Burrows was in attendance earlier in the day as a member of the DMC but left before this item. District Councillor Steph Jones appeared in her capacity as Deputy Portfolio Holder for Housing.

Members of the committee appeared strongly of the view that Tesco was going a step too far. They particularly disliked the comment from the company’s agent that if EDDC did not agree to what they wanted, they would appeal. Some thought this was unacceptable pressure. One member of the committee noted that no affordable housing has been built in Seaton for many, many years and if this reduction was allowed other developers in the town would think they should have the same treatment.

Mr Freeman (I forget what title he has these days) pointed out that there was a mistake in calculations in the documentation (not sure whose fault) and that whereas it had been stated that the company might sustain a loss of over £2 million if affordable housing were included, the real amount on the figures provided was more like £750,000.

It was suggested that this application was a good candidate for EDDC’s new policy of “overage” and here I get a little fuzzy about what they mean – and to be fair so did some of the members of the committee. However, what it appears (to me) to be is that yes, Tesco will be allowed to take out the affordable housing BUT EDDC will put in place an overage clause which says that when the potential loss has been recovered (i.e. after the £750,000 loss has been taken into account – or whatever the correct figure is) then EDDC will take a percentage of the profit thereafter. This means, as I understand it, that, say, Tesco sells the site for £5 million, then they ignore the first £750,000 and the remaining profit is then split between EDDC and Tesco. The EDDC lawyer in attendance could not remember what the percentages agreed were but I have looked it up and the default allowed in the new policy is 50% each but EDDC has the option to increase this percentage if it sees paperwork which shows that the profit could be extremely high.

This only applies to the current planning application. If the site is still vacant when the current planning application runs out then everything has to be renegotiated including the S106 agreements and percentage of affordable housing.

Throughout the afternoon several members of the committee (perhaps with an eye to the next election) said that the economic climate was improving and that this meant that Tesco has less to worry about.

https://sidmouthindependentnews.wordpress.com/2013/08/21/seaton-eddc-votes-to-share-the-profits-with-tesco-but-no-affordable-housing-on-the-site/

The legal requirements of consultation … watch out, EDDC!

“Clearly in austerity times the moment of reckoning approaches where traditional well tried strategies and tactics of keeping posts vacant, business process/organisation design, efficiencies, productivity improvement, mergers and outsourcing will not alone balance the budget and services will need to be rationed or cut entirely.

Furthermore take it as read if you are cutting a service that will have a detrimental effect on a current service user, it cannot be done without consulting those affected.

At the same time understandably your clients [written for lawyers dealing with local authorities] may be tempted to carry out a low-profile consultation for a number of reasons, not least the cost and fear of agitation of organised and political objections.

Well that’s local government.

[The paper goes on to set out current case law on consultation]

… what does this mean in a nutshell? It means that where there is a duty to consult going through the motions will not do. If there is a prescribed method such as set out in the primary or secondary legislation or by a code it must be followed and at the stage where the consultation feedback can be taken into account in the final decision making. Furthermore the case made clear that while there is no general common law duty to consult persons who may be affected by a measure before it is adopted an obligation to consult may arise because of the common law duty of fairness.

This year (February 2016) the Cabinet Office published guidelines on consultation. These are to be treated as expectations for local government too.

What this now means for consultation

The Courts have made a restatement as to who should be consulted and on what basis for consultation. This is of general application for all consultation. The key message is that consultations must be carried out fairly.

This can be summarised as Who, How, When, What and an Evidence Based Analysis:

1. Who do you consult? – In broad terms it is to let those who have a potential interest in the subject. In terms of who must be consulted the demands of fairness are expected to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit.

2. How? – So if a person is likely to lose something or be worse off, then they should be specifically identified and consulted. In Haringey all those affected were written to and the letters were hand delivered. This is considered to be sound practice. So if you know that an individual or household will be adversely affected an attempt must be made to contact them by preferably personal calling and hand delivered letters or by phone call and this be re-enforced by press releases and street and notice poster media.

Twitter “tweets” or council web pages augmented with Survey Monkey are not good enough on their own. If there are partners involved in the services such as health authorities or the third sector, get them involved and seek their view on the consultation and its message even if they may one day turn out to be objectors better you are on cordial or respectful terms with them.

3. When do you consult? – So when should consultation take place? You have to do it with sufficient time to let people know what you are thinking of doing, telling them what your options are and giving them time to reflect upon it and give their views to you that you can take them into account so:
Firstly – consultation must be at a time when proposals are still at a formative stage and give sufficient reasons for any proposal to permit a person to in the court’s words “give an intelligent consideration and response”.

Secondly – adequate time must be given for consideration and response, and,

Finally – the product of consultation must be conscientiously taken into account in finalising any statutory required proposals. This should be evidenced by a briefing document presented to the decision making body

4. On what basis? – The purpose of a statutory duty to consult is to ensure public participation in the local authority’s decision-making process. In order for the consultation to achieve that objective, it must fulfil certain minimum requirements.

Meaningful public participation in the decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about proposals such as a draft scheme or policy, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of its preferred option.

The courts say that there is an obligation to let consultees know, “what the proposal is and exactly why it is under positive consideration”, and telling them enough (which may be a good deal) to enable them to make an intelligent response”.

5. An Evidence Based Analysis – Consultation will only be of use if the data collected from the consultation is properly handled and objectively managed.

This means there must be a sound methodology for data collection, processing and analysis. Responses must be clearly presented and not cherry picked so as to support a particular preferred approach.

This means the findings of a consultation are backed by evidence and where assumptions are made reasons for doing so are identified such as for example statistics supplied by other accredited organisations such as Government sources.

Consultation plans

What does this mean for services particularly in the context of austerity?

The key message is that the quantity and quality of information may need to be re-examined. Thus any strategy or policy likely to have an impact on the community needs to be founded on proper consultation. This is best done by drawing up a consultation plan.

Methodology of qualitative and quantitative collection handling and analysis needs to be stated. While judges are not expecting a full scale committee report to be sent to the public at large, effective consultation plans will need to have anyone likely to be affected specifically identified and targeted to receive information on the subject matter of the consultation and a strategy worked up on how they can be enabled to take part. …

http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=27528%3Aconsultation-in-austerity-2016-a-practical-guide&catid=59&Itemid=27

Brexit and the environment

“… Boris Johnson was careful to say that deregulation “will not come in any great rush”. However, since the 2010 election, the Government has already shown some eagerness to disengage from the environmental agenda:

In December 2012 Eric Pickles made a statement to Parliament on the emerging new EIA Directive criticising the ‘regulatory creep’ of the European Union
In June 2013 the Environmental Audit Committee report on the UN Rio+20 Earth Summit noted that: ‘the Treasury appears to view the environment as a block to economic development.’

The Technical Consultation on planning carried out in 2014 stated that there was ‘over-implementation’ of environmental assessments;

In March 2015, the Code for Sustainable Homes was removed, and only partially reinstated into Building Regulations;

In July 2015, the Government announced it would no longer proceed with regulations to make all new homes carbon neutral.”

http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=27567%3Adontleave-me-this-way&catid=63&Itemid=31

And that is only the tip of the iceberg. The current government has always wanted to reduce the environmental load on developers and now, with developers on the back foot, they will be inclined to put their interests first.