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Wesham: Home Truths?

Wesham: Home Truths?As we showed in our last article 'Culture of Secrecy' the introduction of the Leader/Cabinet System at Fylde has been very damaging for our democracy.

One effect is that it is now much more difficult to tell who is responsible for making decisions.

And, as we alluded to in Snippets: September 2012  the Cabinet had taken to having 'Informal Cabinet Meetings' where decisions were really taken, and then re-enacted (to a much lesser extent) in the 'proper' Cabinet Meeting a few days later.

In practice, the Leader and Cabinet System at Fylde sees the majority political group choose the Leader. That Leader then handpicks a cabinet of (currently) six councillors.

In Fylde's case his six Cabinet members are all of the same majority party - so in reality they can meet behind closed doors as a political group (albeit they might think of it as an Informal Cabinet meeting).

And so it can be that Cabinet meetings become mostly the performance of a show that was rehearsed earlier.

This is a very bad system for the electorate of course, because you can't tell who is driving or supporting a particular decision, and it's not possible to know who to vote, or not to vote for come election time if you don't know their track record on issues.

The Leader System has also drawn Council officers into party politics to a much more significant extent than in the past.

We think the worst example of this to date was the scandal of Melton Grove - where we were entirely convinced that several very senior officers failed to maintain adequate impartiality and their separate responsibility to all councillors of whatever party, and indeed, to the whole Council, from their responsibility to the single party Leader and his Cabinet.

This can happen partly because the Leader and Cabinet now makes almost all the day to day decisions in the name of the Council.

So over time, impartial officers have moved to relate more to Cabinet than they do to Council. And because the Cabinet members are all from one single party, it has drawn officers toward supporting the desires and wishes of what is, in effect, a single political party, rather than the Council as a whole.

The officer class at Fylde has become too politicised in trying to meet the demands of a Cabinet that cannot sufficiently distinguish itself between the hat it wears as a Cabinet and the hat it wears as political party - as evidenced by Leader David Eaves' admission at Scrutiny that the decision about spending the £100,000 grant for Town Centres had been made at "an informal meeting of Cabinet."

We said that Melton Grove was the worst example to date of the sort of shenanigans of which we complain so often, but there is another decision that is now vying for that infamy, - it's the process that we firmly believe will see a 'U Turn' on the refusal of planning permission at Wesham when it is reconsidered by the Council's Development Management (Planning) Committee.

We've been made privy to some concerning emails on this matter. Bits of them have come to us from differing sources, but we have been able to use them to reconstruct some of the events of recent weeks.

First, a bit of background about the Wesham scheme. If you already know the background, follow this link to skip forward.

27 August 2008:
We reported a planning application expected from developers who were receiving 'pre-application advice' from Fylde's planners.

3 December 2008:
A public meeting of about 80 Weshamites was held by the Town Council, to air concerns about the proposed plan. This was where Conservative Cllr Trevor Fiddler coined his "Alice in Wonderland" description of the planning system which he said had been introduced by the Labour Government.

He said under the old system, local people would use local needs and local circumstances to decide how much housing was needed and where it should go, but that had been changed by Government who, in future; would decide how much economic growth they wanted the country to produce. They would assess the workforce that was needed, and thus the housing that was needed to accommodate that workforce. They would then divide that up across the country, saying to particular councils you will build XX of the houses that are needed.

He went on to say that the shadow planning minister (We think it would have been Eric Pickles MP at that time) had recently announced that a Conservative Government would scrap Regional Planning, and they would scrap the Local Development Framework that was a bureaucratic nightmare. He said this LDF system was so bad that it would take until 2012 for Fylde to produce the new plan that Government has outlined, and then it would only say the same thing that the old one said anyway. It was a huge waste of money and a bureaucratic nightmare.

That Wesham meeting closed with a show of hands to oppose the proposed development - it was apparently unanimous.

25 January 2009:
We were back in Wesham for another public meeting after the plans for 264 houses had been made public. An action group grew out of that meeting determined to stop the development.

13 March 2010
We're back in Wesham at a public meeting to prepare for the 17th March, where the planning Application will be debated by FBC

18 March 2010
We report the meeting at Lowther where after several hours, every councillor on the planning committee voted to refuse the application.

7 September 2010
Back to our friends in Wesham for another Public Meeting because the Developer has appealed against Fylde Council's refusal of planning permission, and the appeal will be heard at a Public Inquiry staring on 14th September.

14 September 2010
The Public Inquiry opens and runs for seven days of detailed legal planning arguments. It closes, and the Secretary of State will consider the Inspector's report.

4 November 2010
The Planning Inspector who had conducted the Inquiry and sifted the evidence reported to the Secretary of State that the appeal should not be allowed. He said the Council's refusal should stand, and the developer's appeal should be dismissed.

23 March 2011
Secretary of State Eric Pickles took time to study the Inspector's recommendations and said he agreed with the Inspector’s conclusions, and with his recommendation to dismiss the appeal and refuse planning permission. He dismissed the appeal.

1 September 2011
The developer, not content with the decisions made to date, employed a Judicial Review of the Secretary of State's decision to refuse permission and argued six separate grounds that the Secretary of State had failed to give the right weight or to take proper account of various aspects of planning law.

The Judge hearing the case in the High Court dismissed the challenge brought by the developer saying "The planning judgments were exercised lawfully in accordance with the statutory test and the correct approach was adopted. The reasons given were in all respects adequate."

7 December 2011
The developer submitted a second planning application on part of the former site. This time it was for 100 houses.

13 January 2011
We visit Wesham once more where yet another Public Meeting is considering the new plans. Most present seem to think this is going to be Phase 1 of what will become a salami slice process to recreate the last application that was refused.

23 March 2012
Wesham Action Group hand Fylde planners a 1,000 signature petition opposing the new plan.

8 September 2012
Fylde's Development Management (Planning) Committee consider the application for 100 houses and, after yet more hours of debate, they voted to refuse planning permission for 100 houses on part of the same site where permission for 264 houses had been comprehensively refused on every occasion it has been considered to date.

We produced a full report of that 8th September meeting in 'Think of England', and there are three very salient points to come from it.

Firstly, the night before the meeting, all councillors - but especially those with planning responsibilities were invited to attend a "Learning hour" about the housing numbers that are crucial to determining planning applications.

In 'Think of England' we had said "The night before the Wesham application meeting, Fylde held something called a 'Learning Hour.' This was supposed to be a training/brainwashing session for councillors - especially those on the Development Management Committee in this case. We're told the aim was to convey a clear message about housing numbers and the five year housing supply.

The cynics amongst us thought it was more likely to be a backbone-stiffening exercise, and an attempt to browbeat those on Development Management Committee into approving the application.

We've been assured in high places that it was a long established and planned meeting date. And it is true that traditionally Fylde holds its 'learning hours' on a Tuesday evening. So we can only conclude that the session by Fylde's Portfolio Holder for Planning - Cllr Trevor Fiddler - was purely a co-incidence to be taking place on the evening immediately before the Development Management Committee considering the Wesham application.

We heard all manner of rumours about fines, and threats, and insistence that councillors *must* approve the application in the days leading up to the meeting.

We couldn't confirm any of them.

But when smoke is billowing out of all sides of a building it's usually a sign there is a fire."


After that meeting / learning hour took place, were told by several different councillors that it HAD felt to them like a brainwashing and threatening session to stiffen their resolve to vote to approve the application.

So we conclude that despite our being told it was a long planned training meeting, there were grounds to believe that, like the 'informal Cabinet Meetings' it could have been designated as 'training' in order to easily justify the exclusion of the press and public.

The second very salient point is that some members of the Development Management Committee were unable to take their usual places on the Committee because of prior commitments elsewhere. So they were substituted for by colleagues. Notably Cllr Christine Akeroyd substituted for Cllr Tim Armit, and even more crucially, Cllr Angela Jacques substituted for Cllr Trevor Fiddler.

We have no doubt they, and the others from the same political group were 'expected' to vote for approval; especially if they had been 'trained' the night before. But that's not what happened.

Possibly to their great credit (or perhaps because of their uncertainty of the detailed issues as stand-in members) Conservative Cllrs Mrs Jacques and Ackeroyd abstained in the vote, as did Cllr Redcliffe. This allowed those opposing the scheme (chiefly those who were not members of the Conservative Party) to carry the vote, and the 100 house application was refused.

The third salient point was that despite being 'trained' the night before, Committee Members dug in their heels and refused to be browbeaten into submission.

Now, you'd think that most developers would have got the message. But only three weeks after this refusal, they submitted exactly the same planning application again.

Yes really!

It was suggested to us that they had been advised to do so. We have no way of knowing whether that was right or not, but it was a most unexpected turn of events. The normal course would be for the developer to submit an appeal to the Government. But that didn't happen - (at least not then).

The only difference with the re-submitted application is that the developer voluntarily undertook not to submit a further housing application for three years (unless FBC allocated the land for development in its local plan) if this application was approved.

We are fortunate to be close to lots of different sources and readers who hear aspects of what happens within the Council. Some of them are away from the centre of activity at the Town Hall, but news of what goes on inside reaches them, and they forward some of that news on to us.

We've been told of a chain of events that began when a Councillor asked a very senior officer whether the application (which seemed to be identical to the original application) was covered by the Council's rules that say in effect, a decision made at a Council or Committee meeting within the past six months can only be re-opened by a notice of motion if it is signed by at least eight members (from at least two political groups), of the Council or the Committee in question".

The implication here was that the Development Management Committee should not be considering the same decision for 6 months unless at least 8 Councillors from the committee and spanning at least two groups signed to say they wanted to.

From what we can see there might have been 8, but based on the voting last time, they probably would not have been from two separate political groups as required.

The email answer to this question was timed at 15:25 and it said that, after consultation with other officers, the decision made at the 12 September Development Management Committee was a decision on a specific planning application, (number 11/0763). If another, separate application was submitted for the same or similar development, it was a new application that came before the committee, and any decision made would be on the new later application, not on application 11/0763, and so the six month rule would not be apply.

We think the test here might not have been properly applied. We think it is the *decision* that has to be tested for having been made, not the application for it, but even if not, the question still remains as to whether this was a new application, or a resubmission of the same application.

We see here again the sort of explanations that wound their way through the Scandal of Melton Grove, when Councillors were Company Directors acting only in the interests of the Company when it suited the purpose, and acting as Councillors when it did not. Hats were taken on and off more often than Tommy Cooper doing impressions with a suitcase full.

It seems the officer might have had second thoughts on this, because two minutes after sending it, at 15:27 they sent another email saying they would 'like to recall their message, "Constitution Rules Query".' (Which in email-speak means 'please pretend I didn't send this in the first place')

But they had already written to other officers (timed at 15:25) saying "We need to be ready for a comeback on the response that has been sent."

Sharp eyed readers will see that the message timings suggest something odd going on here.

Follow up questions sought by the questioner resulted in the officer confirming their previous advice was correct and the situation was that a new application was to be considered, it was not a previous decision being re opened.

We'll return to this later.

Subsequently, another Councillor asked about whether the re-submitted application should have been accepted for consideration anyway.

We had noted in our former article 'Planning Madness' that repeated similar applications can trigger a justification to refuse to accept resubmissions of the same application. The aim here is usually to prevent officer time being spent in studying and contacting statutory and other consultees and the public, and evaluating their responses and preparing reports and so on. The relevant legislation is Section 70 of the Town and Country Planning Act 1990.

This councillor must have had the same idea, because around 12th October, they asked for advice from Fylde's legal officers about the statutory provision relating to the power of a local planning authority to decline to determine a planning application.

Unfortunately, they asked (and received a reply) about Section 70a rather than S70b. Both cover similar issues about grounds to refuse an application but quite different aspects of it.

The officer responded regarding 70a and did not mention the alternate provisions of S70b

Section 70a is labyrinthine in its complexity. It involves deciding whether the application is "similar" and about who 'the local planning authority' might be. (This is especially difficult these days when authority is often delegated to officers) Is it the Full Council, the Development Management Committee, or can it be an officer, and if so has that officer formally been designated as holding that delegated authority?

It also involved deciding whether the land to which the applications relate were "the same or substantially the same"

There were another two or three similar decisions that needed to be made and, whilst in our view, with a fair wind, you could just have just about interpreted it as justifying refusal to accept this application if that's what you wanted to achieve, but it was quite a weak argument to do so.

So we were not altogether surprised when the legal advice concluded that the planning officer's opinion on this matter was that in this particular circumstance, the applicant has indicated that, if planning permission were to be approved, they would be prepared to enter into a legal agreement that would prevent them applying for planning permission on the adjacent land within the next three years or until the local plan is adopted, whichever is the sooner, and given that there was some debate at the committee about the application being a phase 1 of a future larger development, the planning officer considered that there has been a change of relevant considerations and the applicant should be given the benefit of the doubt, and that to do otherwise would be to put the Council at a risk of a judicial review.

This answer was raised by Councillors with a very senior officer at Fylde. They supported the legal views that had been expressed and added that the "resubmitted application is identical to the application considered and refused by DM committee on the 12th September with the exception of the unilateral undertaking which the applicant has offered to give"

Personally, we thought the reason for it not falling foul of the 6 month rule referred to above was because it was not the same application, it was a new application. Yet here is the same senior officer now saying the resubmitted application is identical. Can you have it both ways like that we wonder?

They went on to admit that there was no delegated officer authority to exercise the section 70A powers, so any decision to refuse to consider any application would fall to the Development Management Committee, and, if grounds for that existed, a report would be taken to the committee.

But the view at that time was that such grounds did not exist, so nothing was going to happen.

And they spectacularly failed to consider or even to mention Section 70b

Until someone else did.

Section 70b is quite difficult to interpret, but it is about what are called 'overlapping applications' - and cutting out the irrelevant bits, it says:

(1) A local planning authority may decline to determine an application for planning permission for the development of any land which is .....made at a time when any of the conditions in subsections (2) to (4) applies in relation to a similar application.

(4) The condition is that a similar application .... has been refused by them

(5) An application for planning permission is similar to another application if (and only if) the local planning authority think that the development and the land to which the applications relate are the same or substantially the same.


This regulation has two purposes. Firstly it avoids the situation where developers try to browbeat councils into submission (we're not saying this is happening here), but they also prevent taxpayers money being wasted on oodles of consultations and reports that repeated applications can bring about.

We understand the issue of Section 70b - when put to FBC, put the cat amongst the pigeons somewhat.

Despite having either missed, or studiously ignored, it in the earlier enquiries, there was no way out once this had been pointed out to officers.

The application had been received by FBC's officers without them meeting their statutory obligation of asking the Development Management Committee whether they wanted to decide whether it was a similar application and to decline to accept it.

We get the impression that Fylde's officers were having to be dragged kicking and screaming to comply with legislation they knew or ought to have known existed - an impression that leads us to the view they are being pulled in the opposite direction by some politicians.

It gets even worse when you hear what happened next.

To comply with the legislation, a report was eventually prepared to ask the Development Management Committee whether it wanted to treat this as a similar application and decline to consider it.

Fine.

And that report was put on the agenda for 12th November meeting.

Also fine.

But on the same agenda was to be - guess what - yes, that's right Dear Reader, the application itself.

Unbelievable.

So the regulation designed to help save the cost of researching repeated applications has been disrespected because the application had been put on the same agenda and the work had to be done anyway.

When was the last time we saw agenda being manipulated like this Dear Reader?

Oh yes, it was Melton Grove, when items were put onto the Council agenda before they had been considered by the committee that needed to make the recommendation to the Council. That was the last time we saw an administrative steamroller used at Fylde.

Looks to us like they're "Doing a Melton" on this one too. We sense steamrollering here.

You can bet that behind the scenes here there has been uncertainty caused by Section 70B, and all sorts of arguments and tensions going on. Sometime before 15th November we understand the developer lodged an appeal with the Planning Inspectorate, presumably in case Fylde were going to refuse to consider the repeat application, or because there was a risk of the application being refused for a second time if it went to Committee. (Usually, an appeal follows the refusal, it doesn't come after a resubmission of the same application).

But, Dear Readers, it gets better still.

In an email sent on 30th November, Councillors have been advised that the Chairman of the Development Management Committee has agreed to defer the meeting of the committee scheduled for 12 December until the following week. (on 19th December)

The reason given for this is in order to enable any observations of the relevant parish council to be properly taken into account in relation to the application that they are first going to decide whether to consider or not.

Yes really!

Does that sound to you as though there is a cat in Hell's chance of the resubmitted application being declined to be considered?

It goes on to say that the meeting that was scheduled for 12th December has now been rescheduled as (another!!!) Training Session for Development Management Committee Members and their substitutes at 11.00 in the Reception Room at the Town Hall.

We have to wonder if those attending will regard it as they told us they did the previous one - a brainwashing and backbone stiffening attempt to ensure the application is approved this time.

We also begin to wonder if the new way around the openness and transparency regulations that Fylde approved at its last meeting is simply to re-define what used to be called 'meetings' and to re-name them as 'training sessions' to which the press and public are not allowed.

After all the twists and turns this matter has taken, we will be utterly amazed if the Committee is not populated with those who will first vote to allow the application to be considered and then go on to vote to approve it later in the same agenda.

This system of substitute members really is awful when it is used - as it could be here - to pack a committee to produce a particular result.

The Gazette quoted Cllr Trevor Fiddler at a recent Wrea Green planning meeting as saying "...we have been forced into this position. Six months ago we could confidently have supported refusal. We are now in an Alice in Wonderland crazy world of planning where the process is detached and is no longer suitable"

He used this same "Alice in Wonderland" quote at Wesham in 2008 to describe the planning system which he said had been introduced by the Labour Government. He said a future Conservative Government would change things. They would stop decisions being made by Government Office and the Councillors just being there to give the process a cloak of apparent democratic legitimacy.

We're tempted to ask - as Sarah Palin recently asked of President Obama in the run up to the US elections - "How's all that hopey-changey stuff workin out for ya?"

The answer is that it's not working out so well for Cllr Fiddler either.

In the localism Bill Debate in January 2011 St Eric Pickles said "There was a time when local councils really were the centre of a community - when the local councillor was revered and honoured as a local person of importance and local government got things done, improved public health, cut poverty and ended slum housing. That is the sort of courage and ambition that we need in councils today."

We pretty much can't see the sort of courage that St Eric is calling for being evident on 19th December's Development Management Committee. In fact we wouldn't be surprised to see Cllr Fiddler and his colleagues vote for approval of the Wesham application this time.

More a 'Mad Hatter's Tea Party' than the grinning 'Cheshire Cat'

You can pretty much feel someone's hand has been at the tiller trying to ensure this application goes through.

But what you can't tell, is whose hand it is.

Localism? Transparency? Democracy? Impartial officers?

This wonderful Leader and Cabinet system has it all, doesn't it?

Dated:  11 December 2012


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