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Pontins: Ten Grand?

Pontins: Ten Grandcounterbalance broke the news that the Pontins scheme "had been withdrawn or was not being proceeded with" in our 13th January Newsflash for subscribed readers

(Subscribers - who don't pay - get notified by email when a new article has been published, and get occasional breaking news by our Newsflash emails).

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After we sent the Newsflash, we had a few replies doubting the accuracy of what we had said.

We also had Northern Trust (the developer) seemingly denying the application had been withdrawn.

Both were partly right, and partly wrong.

As we showed in 'Pontins Puzzle' it wasn't so much that Northern Trust had 'withdrawn' the application, it was because the planning permission that Fylde had given had been 'quashed' that it wasn't being proceeded with.

The effect is the same. There's no planning permission in place. But the nomenclature was imperfect.

Whilst there are a number of ways that quashing can happen, the usual one is that an injured party seeks a Judicial Review of a decision made by a Local Authority, and seeks a Quashing Order - where a Judge with the power to do so - sets aside a decision made by the Council. The situation then becomes as though the decision had never been made.

The process to undertake a Judicial Review is quite straightforward - at least in the early stages - and anyone can institute it if they choose.

It goes something like this.

You assemble your arguments and send a letter before action to the other side, explaining in detail where  the public body has gone wrong; asking for a detailed response within say, 14 days,  and threatening a judicial review if these are not forthcoming, or are unsatisfactory.

The other side has to respond within your (reasonable) timescale. If they don't cave-in and make the change(s) you want, you complete a form, and send it, together with a cheque for around £100 and a summary of your  assembled arguments / evidence as your Statement of Case, to the Administrative Court in London. Then you serve the other side and any interested party with these papers as well.

A Judge sitting alone then looks through your application and decides whether to grant you permission to proceed to a Judicial Review.

The purpose of this first stage is to avoid clogging the courts up with no-hopers and to help people avoid wasting oodles of their own dosh.

Often, just making a claim will encourage a previously unresponsive public body to review the matter, as they can see that you mean business.

A public body's concentration on the issues involved will be increased even more if permission for a judicial review is granted. So sometimes, only the first stages of the process are enough to effect change (especially if t'other side know they are on shaky ground).

But if the Judge doesn't grant permission for you to proceed to a review, then the other side have won, and you skulk off with your tail between your legs. Sometimes you might find a small claim for costs is made against you, but we don't think that's a common situation in these circumstances.

If the Judge does grant you permission, then you have a problem. Because then you definitely need a barrister and you start to incur big costs. We've heard it said that a typical Judicial Review can cost upward of £25,000 (and £30,000 to £50,000 is more typical). On top of that, if you lose at the end of the actual Review, the other side can make a claim for their costs from you, so you could be looking at upward of £50,000 to £100,000.

However, if - when the other side sees your Letter before Action or your Statement of Case - they do cave in, and admit to being in the wrong, then they would usually agree to undo (or have undone) what they've done. And they usually have to pay your costs up to that point. Such costs are usually less than a full Judicial Review of course, but can nevertheless be substantial if you've had to involve experts to prepare your case and engaged barristers to set out the Statement of Case.

We think this is what's happened at Pontins.

From the outset, the Airport complained that the plans as proposed would limit their ability to expand in the future because there would be too much noise when bigger and more frequent flights were undertaken. They were very upfront and open about this.

You can see from our previous article 'Pontins Puzzle' that there was a lot of to-ing and fro-ing on the matter of noise. The airport maintained its objection throughout. Fylde's planners said, in effect, that in their opinion the airport was being unreasonable and it would all be OK.

With a few individuals expressing concern, all the Committee except Cllr Eastham backed the advice of their officers and granted outline permission for the first 275 dwellings.

When the second outline application for a further 73 dwellings came in, there was a similar set of arguments about noise. The airport had promised to provide more detail about why it would be too noisy, but were taking a long time to do so and Fylde seems to have thought they were prevaricating.

Some Councillors were getting tetchy. Cllr Armitt told the Gazette “The airport has, for two months, been writing these letters to us saying they are going to do something and not doing it; so I can’t start to take that seriously.”

Then the airport came up with more information. They said the mixture of noise from both the road and the aircraft would push parts of the site outside what was acceptable in terms of noise nuisance, and that would prevent them from expanding their services.

Officers countered this argument saying a scheme of acoustic ventilation and glazing could solve it.

The Committee didn't grant permission for the additional 73. They deferred a decision, and so far, haven't reconsidered it.

In the meantime, another planning application arrived from Northern Trust. This time it was for Reserved Matters that would convert the outline permission to full planning permission.

That application was subsequently withdrawn, and we think it was withdrawn in September last, probably after Fylde was forced to admit it's failures and the existing permission was quashed (thus rendering the Reserved Matters application entirely redundant).

 

But even before the Reserved Matters application was received at Fylde, the Airport had, back in July 2011, started to assemble its case against Fylde.

As we showed in 'Pontins Puzzle' the Airport cited nine reasons and four sub-reasons in its case against FBC. They were

  1. The absence of summary of reasons on the Decision Notice
  2. The failure to include a Statement re. Environmental Information
  3. The absence of details in the Design and Access Statement regarding approximate location of buildings, routes and open spaces, and the failure to express heights in measurements.
  4. Failure to notify the Civil Aviation Authority and Blackpool Airport
  5. Failure to notify as above upon receipt of further Environmental Statement Information (Environmental Impact Assessments Regulation 19 / now renumbered 22)
  6. Failure of the Environmental Statement to:
       - fully assess cumulative effects
       - accurately assess the scheme as amended
       - fully assess noise impacts
       - fully appraise baseline conditions – a Biological Heritage Site
  7. Failure to attach conditions necessary for mitigation
  8. Failure to attach valid planning conditions
  9. Failure to interpret and report consultees’ comments in Committee Report

As a result of these shortcomings, the Airport was ready to argue that Fylde's decision "was irrational and inadequately reasoned” and they appeared ready to undertake a Judicial Review of Fylde's decision(s). In effect, but probably with a bit more flesh on the bones, this would have been their 'Statement of Case'.

In response, Fylde appear to have thought that, even if they *were* in the wrong on Grounds 1 (the summary of reasons) and 2 (the absence of ref to Environmental info) these two matters were unlikely to persuade the court to quash the decision it had made.

In other words these two matters were not serious enough to persuade a court to quash the planning permission they had given.

Furthermore, Fylde did not accept the arguments advanced under Grounds 5 (failure to notify further ES info) and 8 (invalid conditions) - so it's likely Fylde would have contested these allegations.

However Fylde did accept that the remaining arguments made on behalf of the Airport vis.....

  • 3: Deficiencies of the Design and Access Statement
  • 4: Failure to notify CAA / Blackpool Airport
  • 6: Deficiencies of the Environmental Statement (including failure to properly assess the noise impacts)
  • 7: Failure to attach mitigation condition
  • 9: Failure to report consultee comments

.....were substantive and substantial. So they admitted being in the wrong on these, and, in effect, they agreed to 'settle out of court.' In technical terms they 'Consented to judgement'

A Consent Order was issued 18 October 2011 and this quashed the planning permission that Fylde had issued.

That, of course, brings us to the matter of costs.

How much of your money did Fylde have to pay to the Airport for getting it wrong?

Well, in the absence of a statement from FBC, the answer is that it might be £10,000 - as you can see if you run a magnifier over the financial report made to the 16th November Cabinet.

There's an item there in the small print toward the bottom of the page headed "Schedule of Unavoidable Forecast Changes" as item "xviii) Legal fees - Pontins case £10,000"

That might be for something else of course, but it's not really the cost that's at issue here anyway. It's the cover up and the secrecy. if we hadn't persisted with our assertions and our investigations, it's quite possible none of this would have come to light. It would have been buried.

For electors, this sort of information is essential to be able to make judgements about how well or how badly their Council is using their money, and how well or badly it is running things, and whether or not to elect the same people next time.

Time was that when something like this was discovered, the officers responsible would be called to attend a committee and (usually publicly) asked to explain why it had happened. Furthermore, it was usually the elected Councillors who produced the impetus for that to happen. That process did two things. It firmly reminded officers that they shouldn't do anything like that again, and secondly, it acted as a reminder that the Councillors were running the show and that officers were there to advise them, not t'other way round.

But the Cabinet system has changed all that. Many responsibilities have been delegated to officers; almost all decisions are taken nominally by the Cabinet but actually on the say-so of officers. So rank and file councillors are sidelined, distanced, and disaffected. Many of the newer ones simply don't understand what their role ought to be. And so it is that secrecy and cover-ups of mistakes (like Heeley Road, like Streetscene, like Melton Grove, and like the Accommodation project) proliferate.

So where to we go from here?

Well Fylde's mystery Pontins planning application number 11/0790 is still showing as "not yet validated". But according to the Gazette, Fylde's officers are discussing with the applicant what changes need to be made, and they say "it is a live application again"

But it's not live for anyone else of course, because it hasn't been validated, so Jo Public can't yet see what's now being proposed.

Time was that you could call in and see a planning application the morning it was deposited at Fylde.

So we can expect to see a new application that takes account of the things that were done wrong last time. Whether that leaves a development with enough dwellings to fund all the work necessary to clear the site and so on (without increasing the height), remains to be seen. Maybe there will be an inkling at the Development Management Committee on 15 Feb.

Either way, lets hope it's not cocked up next time, and we don't have to pay another chunk of cash for no good reason.

Dated:   3 February 2012


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