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Wesham Overrun

Wesham OverrunSadly, we suspect that might be the eventual outcome of the Public Inquiry that he been playing out at Wesham, but our heading is really intended to refer to the Inquiry extending beyond its allotted time.

This seems to us to be a most unusual situation given the circumstances, and we see trouble brewing for FBC.

Readers will recall from our last article 'Wesham Stitch-up?' we made two key points.

Firstly, after Fylde's Development Management Committee had refused the application for 100 houses (Think of England) on 12 September last year, Mr De Poll (the planning expert working for the developer) said in his written evidence to the inquiry that "At the suggestion of the LPA's officers an almost identical application was then resubmitted in October 2012"

Secondly, at the inquiry, the Council's barrister said "Fylde Council" had arrived at a decision to withdraw from the inquiry.

These days, this can mean a multitude of sins.

It can mean a majority vote of the Full Council, it can mean a decision of the Development Management Committee, (using their delegated powers), it can mean a decision of the Cabinet, it can mean a personal decision made by the Council Leader or a decision made by a single Portfolio Holder.

It can even mean a decision made by an officer to whom authority to do so has been delegated.

We had seen no minute, nor even a Cabinet or Portfolio Holder's decision, so we asked the Council's Planning Solicitor who had made the decision to withdraw, were told the decision was made by "the chosen representative of the Development Management Committee" When we pressed further we were told this was "Cllr Linda Nulty".

We were shocked at this, and we struggled to believe it.

Apart from knowing her to be a strong supporter of the Wesham community, there was a question in our mind about the legitimacy of Cllr Nulty's supposed 'nomination' and her position.

There had been no vote of the Development Management Committee to appoint her, and no formal Cabinet or Portfolio Holder decision to appoint her.

So we were not at all sure she had the authority to take any sort of decision on behalf of 'The Council'.

Secondly, even if she had a properly constituted authority, we wondered how it could be that a person who was charged with acting as the Council could specifically refuse to agree the basis of the case to be argued by Fylde's barrister, only for her authority in that matter to be subverted by an officer when she refused and, (we're told), an officer approved the case to be argued by Fylde's barrister?

We provided more detail about this matter in 'Wesham Stitch-up?', and invited readers to judge for themselves whether all this process represented an unfortunate series of coincidences, or a pre-determined and clever stitch-up to ensure the development of this site took place, and Cllr Nulty took the flak for it.

We're now moving toward belief in the second of those two conditions.

When Fylde withdrew its case, their barrister went home and left just Mrs Martin for Fylde at the inquiry. She has said she was there to assist the inquiry if it required factual information about something at FBC.

We (and most normal folk) would have expected that when a major party to a case withdraws their claim because the evidence on which their case rests has been disproven before the inquiry even starts, (leaving only the brave but amateur Wesham Action Group to have their arguments savaged by Mr Lancaster for Metacre), the case would be considerably shortened in time.

Fylde would offer no evidence themselves, nor would they spend time cross examining any of Mr Lancaster's expert witnesses.

So what had been envisaged as an inquiry lasting from Tuesday to Thursday (or possibly to Friday with a site visit), might reasonably have been expected to last only one or two days after Fylde withdrew.

But as we commented in 'Wesham Stitch-up?' when Mr Lancaster called his first witness, we were treated to two and a half hours of him giving evidence about housing numbers in minute detail and from every angle.

It seems this practice continued throughout the week, and the Inquiry did not finish on Friday. It has overrun, and will now conclude on Thursday next week when Mr Lancaster will present his concluding remarks.

After that he is expected to drop his own bombshell.

We're told that last Friday morning, Mr De Pol confirmed under questioning that the second / resubmitted application had been solicited by the Council at a meeting held between the parties prior to its submission.

He was then asked if there was a minute or an informal note of that meeting, and said there was none.

He was then asked if he could say who was present at the meeting, to which (we're told by someone present and taking notes) he replied "I do know, but will it assist the inquiry?"

The issue behind these questions looks to us as though it was about a potential claim for costs against the Council.

Pressed on this matter, we're told Mr Lancaster for Metacre said he would not be claiming costs against Fylde Council for their failure to consider the resubmitted application (see Wesham Postponed of 19th December), but he *would* be submitting a claim for the inquiry costs against Fylde Council "due to withdrawal of defence by the Council".

So because the Council refused the application and caused the Inquiry (which has led do additional costs for Metacre), and they subsequently failed to defend the refusal, he will call for costs to be awarded against Fylde.

And because the inquiry has gone on so long, those costs, if awarded could be more substantial than might otherwise have been expected

This is going to cause ructions, and the blame game will start.

Some will try and say it is the fault of the Development Management Committee because they refused an application that could not be defended. Some will undoubtedly try to blame Cllr Linda Nulty who will be credited with effecting the abandonment of the case if she was - as we were told - "the chosen representative of the Development Management Committee"

We do not believe either of these is correct.

The big questions will be - who was responsible for:

(1) soliciting the second application - and especially whether Councillors knew about it and who attended the meeting with the developer's representatives?

(2) when was the decision made not to participate in the inquiry - and again, which Councillors knew, and who made the decision?

(3) whether Cllr Mrs Nulty had proper authority to take a decision not to participate if, indeed, that is what took place.

We've had a look at this to clear our perspective a bit, because we can see trouble coming.

From what we can see, and according to Mr De Pol's evidence, it was Fylde's (presumably planning) officers who solicited the second application. Whether Councillors knew of this at this time we cannot tell, but certainly there were 'Training' sessions put on for DMC members before each meeting and we were told these were thinly disguised attempts to brainwash a decision to approve the application, and senior Councillors spoke at those meetings.

We were also told the decision was made to withdraw by "the chosen representative of the Development Management Committee" (Cllr Mrs Nulty).

We have a problem with this. First, we have yet to find an official authority for such a move. But more importantly, this appears to us to be a decision that is the responsibility of Fylde's officers, so it should not therefore be transferred to an elected member such as Cllr Mrs Nulty, and certainly not by an ad-hoc group of members.

Fylde is bound by, and must operate within, both the law and its own constitution. Part 3 of that Constitution says that: following consultation with the appropriate chief officer, the responsibility for instructing Counsel; engaging professional witnesses and external solicitors is a responsibility delegated to the Head of Governance.

So it appears to us that only one person could have instructed Fylde's barrister to abandon or withdraw from the case, and it wasn't Cllr Mrs Nulty.

It looks as though it was officers who designed, constructed, developed and signed off the case that Fylde would use. Clearly Cllr Nulty was present at these meetings but, as we reported in 'Wesham Stitch Up?', she told us she had refused to 'sign off' the case that Fylde would use because she thought it too weakly constructed.

And it was officers who carried the responsibility for deciding whether the case they had constructed with the barrister was fit to defend or not, and it must therefore have been officers - despite what they might have told Cllr Mrs Nulty - who decided to instruct their Counsel to withdraw from the Inquiry. We know that Cllr Fiddler knew nothing of the withdrawal - because we heard his exclamation in the morning break at Wesham on day 1 of the inquiry

Now, this raises some fundamental questions.

  • If officers recommended approval of the 100 house planning application
  • and it was officers who solicited the resubmission of the application
  • and it was officers charged with that responsibility who prepared the case and instructed the Barrister
  • and officers charged with that authority who decided the case they had prepared was not fit for purpose and withdrew it from the inquiry
  • and it was officers who said that decision to withdraw had been made by Cllr Mrs Nulty

who is it that should shoulder the responsibility in this matter?

We hope to be at the final summing up at Wesham on Thursday and will conclude this article after that.

Dated:  26 February 2013


UPDATE  28 February 2013
We understand that last Friday, in relation to the advice FBC might be receiving (or might have received?) from the Government with regard to the calculation of what might be counted in their housing numbers, the Inspector advised that he did not expect to take into account anything that was not before the Inquiry as evidence. We were told by someone who was there he said "I'm not expecting any correspondence from Nick Boles"  and "I can only take evidence before me at this Inquiry"

In this regard, we were musing with a friend on the opportunities that might exist about possible further considerations after close of an Inquiry and were reminded that

The Queensway re-determination

  • 21 Mar 12 Inspectors recommendation to SoS (not published)
  • 27 Mar 12 NPPF
  • 12 Apr 12 SoS request for comments on NPPF implications
  • 21 Jun 12 SoS decision

1st Wesham appeal

  • 22 Sep 10 Inquiry closed (assumed RSS had been revoked)
  • 10 Nov 10 Cala High Court quashed RSS revocation
  • 18 Nov 10 SoS request for comments
  • 4 Dec 10 Inspectors report (not published)
  • 23 Mar 11 SoS decision

So whilst there have been instances of further evidence being submitted it has only been after the publication of the National Planning Policy Framework, or the decision of a court. That does not bode well for Fylde to get advice from the Minister into the Wesham Inquiry consideration, even if it is favourable advice to them.

One final point in this update concerns the "re-submitted application"

After the revelation that "the Council's officers suggested resubmitting an application", on Friday in response to a public suggestion for a condition not to apply for any 'Phase 2' o subsequent development until (say) 40 homes had been completed - (which would have made this application give a similar undertaking to the "re-submitted application", Mr De Pol noted that for the 'resubmitted application' "The officers wanted to make the application different". Mr Lancaster also spoke up to say there was - "absolutely no way they would include such a condition!"


And so it was Thursday of the following week (28 Feb 2103). To Wesham again to hear the closing stages of the Public Inquiry into Metacre's appeal to build 100 houses at Wesham.

It was a very civilised 11:00 am start, and this time we were upstairs in a smaller committee room. With a more intimate setting you feel to be more part of the action, you can't avoid eye contact, and sotto voche comments together with (less sotto) asides, are more audible than in the big hall.

the Inspector was prompt and effective. He opened with:

CONDITIONS
These often upset folk, because they are the conditions that would be imposed if the appeal is granted. He was at pains to point out that no decision had been made, and the fact that conditions were being discussed did not pre-judge the fate of the application, but it was normal practice to consider conditions at this stage.

There were 22 conditions proposed, the first three dealt with "reserved matters" This is an Outline application so things like landscaping and the sort of brick that might be used and so on are all 'reserved' - listed as things to be decided later, if the outline appeal is granted.

He then went through the other conditions which has been agreed between FBC and the Appellant outside the meeting and made comment on them. With several he said he planned to change the wording to his preferred form of words but it would not change the sense of what was agreed. Both parties accepted this and he promised a written draft for their comment.

With the Conditions disposed of we moved to:

THE SECTION 106 AGREEMENT
This is a planning jargon name for some community benefit that will be provided if the appeal is allowed. Some who disagree with the underlying principle call it a planning bribe, but it is, at least, transparently conducted.

In this case we heard of three proposed community benefits

First the developer would make 30% of the 100 houses as 'affordable' houses, and of these 80% would be 'social rented property' run by a Registered Social landlord. The other 20% would be of an affordable type that would be agreed with FBC.

Second, the developer would make a 'reasonable contribution' (we didn't hear figures on this),  toward the cost of upgrading a couple of bus shelter's and stops nearby up to 'Quality Bus Route' standards. This usually involves changing kerb levels to allow flat wheelchair access to the bus, and marking them out as bigger spaces and so on.

The third community benefit was a request from Lancashire County Council for 6,000 toward monitoring of a 'travel plan' which is probably to see how traffic from the new houses goes on.

We then came to the closing statement from ace advocate and barrister Roger Lancaster who is always a delight to listen to.

Even when you disagree with him so strongly that you want to remove him from the face of the earth, you have to admire his preparation and the professionalism he exudes. Watching him is like watching Muhammad Ali boxing - a professional at the top of his game. But sadly in this case, he was arguing for what we see as the 'wrong' side.

He began by saying FBC had withdrawn their evidence. He said it was inevitable that the Council would do this as, their position was untenable.

He said the [Development Management] Committee had been consistently recommended to approve the applications and he read long tracts from Fylde's own officer's reports before concluding that the Council had ignored the officer's recommendations. He then went on to say that within a month of the first refusal, the Council had gone on to approve an application in Wrea Green which was in similar circumstances.

The Development Management Committee had, in December 2012 also been recommended to approve because Fylde cannot demonstrate a five year supply.

Adding fuel to what will become a fire, he said "It was the Council that specifically requested the second application" [from his client].

He said the council's professional advisor had sought to argue on matters that were not the reasons given by the Committee for its refusal. He said the Council knew they could not justify the refusal and "on the morning of the inquiry, the Council bowed to the inevitable"

On he ploughed with quotes like "It is utterly irresponsible for the Council to refuse this application" and "The Inspector is entitled to find that the appellant's case is unanswerable"

There was then a long passage about the numbers in the five year supply of housing land. He reasserted FBC could not demonstrate a five year supply and it was "absurd that CPRE and WAG to assert there is" and "The Council must be prepared to accept the position with the five year supply as they have submitted no evidence to the contrary"

There was then a long period of listing - one by one - all the reasons why he thought the appeal could not be refused.

As we said above, he does a first class job.

He summarised the position by saying:

  • Fylde's housing land policy was out of date because of the National Planning Policy Framework (NPPF)
  • The Local Plan policies are out of date
  • It was not adopted under the 23004 Act so it's content is subservient to the NPPF
  • The appeal cannot be refused in accordance with the NPPF

CONCLUSION
It was clear to us that the glum faces on Weshamites said it all really. They indicated that the one-sided but articulate oration by Mr Lancaster - both during the Inquiry and in his concluding statement today, (especially with no input or testing by the Council) meant the arguments were all over bar the shouting.

That might indeed be the case, but Planning Inspectors are nobody's fool, and they will know the arguments the Council would have put if they'd had the courage to stand up and be counted. So we think he will weigh the arguments from both sides before coming to a decision.

That said, sadly, the Anti Planning Minister Nick Boles has been trotting out pro-development rhetoric irrespective of location, and that is hugely damaging for the good people of Wesham.

Because he speaks for the Government on planning matters, local people can therefore only blame the leader of the party that put him there, and make their views known at the next election as - it seems- so many appear likely to do as this scenario is played out on green land up and down the country.

Sadly, we think Boles' views will carry the day, and the first in a series of salami slice applications will cut through Wesham as surely as a plough cuts through the land now. We'd love to be proved wrong here (as we were on the decision over the Vic public house in St Annes), and we hope the inspector will dismiss the appeal, but we fear he will not.

Then we came to the more explosive issue of costs.

APPLICATION FOR COSTS
An application for costs to be awarded is another argument / negotiation, just like the planning ones. They can be full or partial costs depending on what has happened, and what has caused the costs.

Mr Lancaster opened the batting. He said he was seeking a full award of the costs of the inquiry against Fylde Council because they had behaved unreasonably and put the appellant to the very considerable expense of the appeal. He said the Council withdrew on the morning of the appeal. They offered no evidence.

He said The first application saw officers recommend approval, but the Council refused. Then within a month they granted an application at Wrea Green because they were unable to meet the five year supply.

He then repeated that Metacre has "made application at the specific request of the Council" and officers had again recommended approval. he said "it is clear beyond any doubt that approval should have been granted on the second application"

Three weeks later the re-submission of the application gave the Council chance to avoid this appeal, adding "The Council knew they could not sustain their arguments well before preparing their proof. On the morning of the Inquiry, the game was up and the Council withdrew"

He argued that his clients should be awarded the cost they had been put to in staging off the Inquiry and Fylde Council should pay those costs.

For the Council, Nicola Martin said that it was only on receipt of the rebuttal proof by Mr Del Pol that a decision could be made. The council had acted quickly when it became clear they could not defend their arguments and therefore they did not act unreasonably.

She went on to say that if costs were awarded against FBC it should be a partial award because

  1. The highway matters were never objected to by FBC. The Statement of Common Ground says Fylde would raise no objection.
  2. It had never been the Council's case that Best and Most Versatile agricultural land was part of its case.

So for these reasons, she concluded that if costs were awarded, the parts relating to expert testimony and reports on highways and agricultural land should be excluded, and the costs for those witnesses should be dismissed.

Mr Lancaster was, to say the least, pretty cross.

He said "It is disappointing that the Council sees fit to opposed the costs application."  and "I can't imagine a later stage that the Council could have withdrawn."

He went on "This is nothing to do with the rebuttal proof  [the one Mr De Pol submitted at the last minute], it is to do with justifying its reasons for refusal"

"The Local Authority has withdrawn its evidence. It can't substantiate its reasons. That, frankly, is it."

"The Council knew they did not have a five year supply of housing land - when did they know that from? The knew it from last November, not when our rebuttal proof arrived"

"This is a Council that has been found out; knew it never had a case but,. because of their political situation, they refused it."

"Officers asked us to submit the application in order to avoid costs"

"Does the Council have no basis whatsoever for its decision making?"

He described Fylde's resistance of costs as "obscene" adding "we had to produce a BMV [agricultural land] expert because that was part of the reason Fylde refused permission - even though they didn't seek to defend it at the Inquiry"

He said there was no basis for anything other than full costs and he was "massively censorious of the Local Authority but not of the officer who was having to present the case for them" We presume here he was saying he did not criticise the messenger in the form of Nicola Martin for the Council.

He ended by saying "Costs are justified in full in this case"

The inspector concluded by saying "Obviously this is  matter of great public concern locally"

Quite what we can draw from that we don't know.

He did say he expected the appeal decision around the middle of April and definitely before the end of April.

And with that the overrunning Public Inquiry closed.

We await his decision as, no doubt with trepidation, do the good people of Wesham. But we don't think this matter is over yet. There is a deal of shouting to go on about the costs and how the issue has been handled by FBC.

Attention is likely to focus on the Development Management Committee (DMC) members who voted for what Mr Lancaster said was an unsustainable argument.

But the subtext here is the classic, perennial feud between what Government wants and what local people want.

We believe DMC members did the right thing. The committee represented the views of their electorate and said "No." That was the right thing to do and, if it costs us - well, Amen to that.

We have a greater problem with the role of officers in this matter but the establishment will probably close ranks around them to produce an ongoing, festering distrust that isn't healthy at all.

Either way, we expect to be writing more about this before April.

Dated:   28 February 2013


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