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Warton Inquiry and the 5 Year Supply Issue

Warton Inquiry and the 5 Year SupplyWe report the first 2 days of the recent Warton Planning Inquiry and look into the related mess that Fylde is making of its '5 Year housing supply' calculation

Warton residents are - understandably - angry that FBC's officers have just let them down by throwing in the towel on the Warton appeals, then changing Fylde's 5 year housing supply calculation - just after it was too late for the folk at Warton to use at their Inquiry.

This is another long counterbalance, because in addressing the matters at Warton, our report wraps together five large planning applications, two appeals, a Parish  Council meeting, and a significant change in Fylde's planning policy, together with some very disturbing and unsatisfactory administrative processes at FBC which, in our view, need fundamental change.

SYNOPSIS

We begin with the background before moving on to Day1 of the Warton Inquiry, then we have the shock of FBC barrister's comments as they throw in the towel. We move on to report the Day 1 speakers - resident: Jean King, and Hallam's Land Expert.

In Day2 of the Inquiry we cover contributions from residents: David Hoyle, Tony Guest, Alan Child, Jacqueline McDermot, Tony Wood, John Rowson, Tony Guest again, Alan Child again, then we give our own analysis of the Inquiry covering The appeals themselves, Fylde's capitulation (What was said to whom and when, What did the Parish Council Know,  and what we see as Fylde's systemic failure in this matter.

We then move on to look at the  5 year supply issue in Warton, before looking at it in more detail when it was raised (or not?) at a stormy Development Control Meeting considering an application for Dowbridge in Kirkham, before giving our own analysis of the 5 Year housing supply issue and the tangled mess Fylde has got itself into with this matter.

 BACKGROUND

In 'Warton Anger' we reported an uprising of Warton residents when the draft of Fylde's local plan had suggested building around 1,200 new houses there.

A packed and angry meeting of about 400 people at BAe's Lightening club left the Borough Council in no doubt that the plan was not what local residents wanted.

A subsequent parish poll (a sort of referendum) further emphasised the anger, and a protest group was formed and spearheaded the campaign against the plan.

Public anger was sustained, and around the time of the last local elections, Fylde relented, and halved the number to around 650.

Many still thought this too much, but the reduction took did reduce the opposition.

However, the damage had been done and - in the same way that a weakened animal is at greater risk of predators - Warton had been weakened by Fylde's plan for 1,200 houses. The predatory developers were circling....

The result was a plethora of speculative applications, some won on appeal, and others with appeals still to be heard.

Two of those outstanding appeals were heard on Tuesday 12th July 2016 when planning Inspector Paul Clark sat down in Warton Village Hall with sixteen or so experts and about 40 to 50 members of the public to hear two appeals against FBC's refusal to determine their applications by 'Warton East Developments Ltd' for up to 375 homes at the Freckleton end of Warton village, and by 'Hallam Land Management Ltd' for up to 115 homes at the Lytham end of the village.

These applications were on top of the almost 800 homes that have already been approved for Warton.

Sadly for our readers, the situation gets even more complicated, because when they appealed to the Government to take the matter out of Fylde's hands, Warton East Developments Ltd'  also withdrew their application from FBC.

But as well as launching this appeal regarding their original application (dating from June 2014),  they ALSO re-submitted the same application to Fylde *again.*

This was considered by Fylde within the timescale allowed. And although officers recommended it should now be approved, the elected members of Fylde's Development Management Committee REFUSED this second application.

At the Lytham end of the village things were no less complicated - because Hallam Land Management Ltd' had submitted their original application in August 2015, and launched this current appeal in December 2015.

In response to that, FBC's committee of April 2016 considered what it would have decided if it had taken this decision within the timescale allowed - and decided it would have REFUSED the application.

Undeterred, 'Hallam Land Management Ltd' followed the path being laid at the opposite end of the village, when they too re-submitted more or less the same plan (but with different access arrangements) *again.*

Once again, Fylde's officers recommended approving this resubmitted application - but Fylde's elected members disagreed with them and voted to REFUSE this resubmitted application as well.

We were actually at Fylde's meeting in May 2016 when the officers' recommendations were not accepted by the Committee and they refused planning permission for both the resubmitted applications. We saw the faces of the developers representatives which were black as thunder as they left.

The Committee had been very clear in its vote of 25th May on these items. It voted to refuse permission. But even as this was going on, it transpires that behind the scenes, their officers were negotiating with developers, and those negotiations would undermine the decision of the Committee.

Using what everyone assumed were powers that had been delegated to Fylde's officers, they went on to agree a 'Statement of Common Ground" with the developers.

At a stroke, this had the effect of overturning the democratically taken decision taken by elected councillors to refuse these applications, and it almost certainly means that the developments will now go ahead.

 DAY 1 OF THE INQUIRY

The meeting opened in the usual manner and, until the bombshell announcement, it was mostly plain sailing.

The Inspector explained that both were outline applications, and both had been 'recovered' (that means the decision had already been taken out of his hands by the Secretary of State) because there were more than 10 houses and because a Neighbourhood Plan was involved - so the Inspector will only make a recommendation to the Minister.

In a surprising comment, he gave us the first inkling that something was afoot when he said the Inquiry had originally been scheduled for 8 days, but it was now likely to be less and might only be 4 days.

He then went through the basic admin processes of an inquiry - identifying the maps and documents they would use etc. He said that because it was an outline application (which is essentially a decision in principle as to whether some form of development would be allowed) all the documents except the plans were mostly irrelevant except that they were illustrations of what might or might not happen.

He then ran through the standard rules for the conduct of the inquiry and, in an approach that we've not heard before, he said that on the site visit, members of the public may attend, but their presence on site was subject to the permission of the landowners because the public need consent to access land owned by others.

Then the bomb was released.

He said over the weekend, there had been some agreements made, and whilst he *had* been expecting Fylde Council's case to take most of the rest of the first Inquiry day, and, in particular, much time would have been needed to address one of the main issues which was to do with traffic and highways.

But, he said "Agreement had now been reached between the three main parties on this matter"

And he also went on to indicate there had been agreement on housing matters as well.

To increasing incredulity amongst the public present, he said that over the weekend, he had received two 'Statements of Common Ground' which - to his reading - indicated that agreement had been reached on these matters.

The Inspector said that at this point in an inquiry, he would usually set out what the principal arguments were, but in this Inquiry, he could not even do that, because there was no longer any argument between FBC and the two developers - so he expected to spend most of the inquiry discussing the conditions to be attached to what were likely to become permissions to develop the land.

By now, the public was very confused, and, we thought, the inspector seemed at something of a loss as well.

 FBC BARRISTER'S COMMENTS

Fylde's barrister, Mr Easdon, then spoke.

To a rising tide of anger that flowed from the dawning realisation that 'Fylde' had once again, (as they had at Wesham and elsewhere before), failed to meet the expectations of local residents, he said:

 "Despite the appeals having been lodged, the Council has kept its position under constant and careful review. In doing so it sought to engage proactively with the appellants to seek solutions to the problems that gave rise to the reasons for refusal.

It should be noted that those reasons for refusal said that the appellants had failed to discharge the burden on them, to demonstrate that their proposals were acceptable, rather than any positive allegations of planning harm.

The Council has also been mindful of the need to ensure it is considering  housing in the most sustainable way, especially in circumstances where it cannot show a five year supply of housing land. [our emboldening]

This process has been successful, and the appellants have addressed the issues raised in the reasons for refusal to such an extent that it [The Council] will not now play an active role in the inquiry. More particularly, it will not present any evidence, or cross examine the appellants witnesses...."

The room erupted, as a cacophony of residents vented their anger at being so badly let down.

To these howls of anger and anguish from the public, the Inspector called for order.

One member of the public later said to us "Yet again Fylde planning has collapsed like cheap garden furniture"

The black humour in his comment belies a fundamentally important point on which we will expand later as we analyse what we suspect has taken place.

The Barrister went on to say the withdrawal was conditional on the signing of a 'Section 106' agreement and traffic alterations at the Church Road traffic light junction.

He went on to say "I turn now to the Council's position. By way of introduction, it is common ground that the Council is unable to demonstrate a five year supply of deliverable housing land. The Councils supply  is 4.8 years....." before going on to say that in any case, the level of shortfall was immaterial, because all parties accepted that paragraph 14 of the National Planning Policy Framework was triggered, and the existing adopted Local Plan for Fylde was out of date.

He concluded by saying "Subject to the detailed points set out above, the Council is now satisfied that the basis of its reasons for refusal have been addressed by each of the appellants.

Sir, I recognise that some local people take different views as to  the merits of the appeal scheme, and so of course, you will take local people's representations into account. However, the Council has been mindful of its continuing obligation to work with developers to remove obstacles to sustainable development. That process has led, in this instance, to objections and reasons for refusal being overcome. That is the Council's position."

 THE INSPECTOR INTERVENED

The Inspector said what Mr Easdon had said had changed the order of the Inquiry because the Council would not now be presenting any evidence and what he [the inspector] been intending to do today would not now be done.

He then went on  (perhaps phrasing it unwisely in the circumstances) to say ".... what it does also mean, is that it refocuses attention on you people out in the room there, because many of you have said you want to speak - because you can't rely on the Council to object....."

And at this point his voice was lost in a rage of shouting and public anger against the Council's failure to support its residents and to defend their village against rapacious developers.

Eventually he could make himself heard once again and said he quite accepted that people who had come with prepared speeches to recite to the Inquiry would need some time to adapt and prepare what they had intended to say at the inquiry in the light of these changed circumstances.

He said that broadly it was agreed that traffic and highways were the most contentious issues, so he thought it would be a good idea to hear the evidence of the experts in these matters first, and to allow people time overnight to digest what the experts had said, and to adjust what they wanted to say.

And at that point he called a short break in the proceedings (we imagine this was in the hope that tempers would calm down)

And that's what happened.

When the meeting resumed, the Barrister for Hallam Land Investments (who had proposed the 115 dwellings) told the meeting that the Statements of Common Ground were formally agreed on Friday 8th July 2016, and there were now no points of issue between Hallam and FBC.

But before moving to the highway expert, the Inspector said if anyone couldn't come tomorrow and wanted to speak today, they could do so now.

One person did so.

 JEAN KING

Spoke (we understand on behalf of someone unable to attend in person) about air quality and the increase in air pollution and said the additional traffic from the houses would make it worse. She cited statistics to show that Warton was exceptionally bad for air pollution already, and the developments could only make it worse and that should not be allowed. The developer's argument was that the change on air quality would be minimal and thus it was not material to the decision. She was also critical of FBC for not monitoring and enforcing air quality sufficiently well.

By now the inquiry was still full of angry people, but it was settling down.

The inspector had his own style (which put us in mind of Griff Rhys Jones to be honest, with a desire to explain, coupled with a light humour that, in the circumstances, was quite appropriate to defuse the anger in the public gallery).

He was certainly very accommodating to the public who were struggling to adapt to the changed circumstances, and he did his best to accommodate the difficulty in which everyone found themselves.

 HALLAM'S LAND EXPERT

After lunch the Hallam Land expert stood for questions.

He was asked why they re-submitted the same scheme to Fylde for a second time. He answered to say that they thought LCC's officers had reached a point where the highway matters were resolved, and they thought FBC might now be satisfied and approve the application.

He shocked us a bit when he went on to say that LCC had designed the scheme under contract to the developer.

We found that a bit unsatisfactory really.

Whilst we suspect it will have been LCC with an imaginary 'Chinese Wall' separating two of its divisions, it's difficult to believe that where you have one part of LCC working hand in glove (and presumably being paid by developers) to design road layouts that would satisfy and convince another part of LCC to accept them - (and in the event it seems, to convince them to agree to withdraw their previously stated objection to the proposals) - then the prospect of a conflict of interest must raise its head in the minds of many.

The expert went on to make the point that traffic flows had significantly reduced in recent years (presumably because of lower staffing levels at BAe) before explaining the development would bring various highway improvements, pedestrian access to facilities, improved bus services, (they planned to give £125,000) to LCC to improve the frequency of the bus services on Lytham Road.

He concluded that the impact of the traffic flows from this development were not serious and would be minimal in impact.

His overall view was that any adverse effect will be minimal and not "severe" ('severe' would have been the silver bullet that would kill off the scheme) and in any case they were planning a series of improvements.

At the conclusion of his evidence the Inspector had questions. He asked the expert how, when traffic at one point was predicted to double, how he could class it as not being 'severe'?

The expert's answer did not appear to convince him, and he asked whether there was any official guidance or any official definition of 'severe' - or whether it was simply the expert's professional judgement.

The answer was there was no official guidance, it was a professional judgement.

We thought the Inspector was very fair, and to some extent was asking questions that an unprepared public would have wanted to be answered.

Then came the turn of the second traffic expert who, to be honest, was so quietly spoken that even with a microphone, we couldn't hear his report.

The public reaction throughout Day 1 had mostly been respectful - except on one or two occasions when an expert said something with which the collective consciousness of the public gallery did not agree - and a chorus of disapproval arose from those assembled.

And with the promise of local people having their say on Day 2, the first day of the inquiry came to an end.

 DAY 2 OF THE INQUIRY

Day two began with the highway experts from the previous day answering questions from the public.

 DAVID HOYLE

The first question was from David Hoyle who asked about the £125,000 'for the bus service' and asked precisely what it was for. The answer was to subsidise the bus service for five years.

 TONY GUEST

The second questioner was Tony Guest who asked why they were paying £125,000 to subsidise the bus service.

The answer was that LCC had decided to cut the subsidy funding and this would help to provide the service.

Mr Guest then wanted to know if that subsidy was what had established the sustainability of the scheme?, to which the answer was that it improved things.

He then wanted to know what happened at the end of 5 years, did the subsidy stop? The expert couldn't say. Mr Guest made the point that this appeared to mean that the sustainability of the development was limited to the subsidy period, i.e. it may only be sustainable for 5 years. The expert disagreed.

Well, said Mr Guest, when would the contribution start? The expert said there would be five, one-yearly periods, the first of which would usually be when 'x' houses had been occupied. "So", Mr Guest wanted to know, "How long would it take for the development to be completed? What was the timescale to complete the 115 houses?" The expert thought it might be about 4 or 5 years from start to finish.

Mr Guest then said, "So we might end up with a situation where either the first people to move in have the benefit of this improved bus service or, by the end of the development in four or five years, the sustainable service is recalled because the funding had stopped." To rising laughter from the public gallery, the expert said he thought that would be very unlikely.

Mr Guest then turned to the traffic modelling which had been used to change LCC's mind that the development would be acceptable and the impact of the traffic would not be 'severe' He said he realised that the expert was a professional making a professional judgement, but it seemed to him that this decision on severity was a subjective judgement and it was difficult for the public to see where the objectivity on this decision lay. He continued in this vein for a while longer and drew the expert into saying that even though the developer was paying for his professional advice, if he thought it would have had a severe impact, he would say so.

Our readers can probably guess where this is going. Mr Guest said "So, have you ever turned up an inquiry and said 'Well, on reflection, I think it probably is a bit too severe?' In other words, have you been in a position where your professional opinion differed from what the developer wanted.?"  To his credit, the expert said what we thought was an honest "No", adding that he had not said that in an inquiry, because he had usually been involved before the inquiry and been able to persuade the developer to make changes to prevent the scheme being classed as 'severe.'

 ALAN CHILD

In what we thought was a very perceptive and incisive set of questions, Mr Child said he didn't quite understand something that had been said yesterday, and he asked the expert to confirm that from a particular date, discussions had been going on between LCC and the Developers, but he couldn't remember the date and asked what it was.

The expert said it was the date of the re-submitted planning application in 2015.

Mr Child then said "So those discussions were between the appellant and Lancashire County Council. I just wondered at what point Fylde Borough Council were appraised or informed about those discussions."

The expert said "All the way through the process - at engineering meetings that were arranged and attended by the County Council and ourselves and our clients were also attended by representatives of Fylde Borough Council"

Mr Child then asked when the re-design of the Church Road / Lytham Road junction (which had been a key factor in LCC changing their mind and accepting the revised highway proposals) had become available for members of the public to see?

The expert said "I'm not sure it was available to members of the public to see" adding that it was a matter between his client and the County Council. Mr Child said "So it's only now that it's in the public domain as it were?" The expert said it became public when his Proof of Evidence was published.

Mr Child then asked about the cost and timescale for the re-designing of the junction before moving to what we thought was a very interesting question regarding the Statement of Common Ground on highway matters.

He said " I've really only got one question. When was the agreement actually reached between LCC and the appellants?"  The expert answered "The actual document was signed I think on the 1 July, but agreement, verbal agreement, was reached a week or so before that time."

Mr Child continued: "And of course Fylde Borough Council were fully appraised and involved in that?"

Expert: "Yes, the document was seen and accepted by Fylde Borough Council"

Mr Child: "So, Let me get this absolutely clear in my head. Approximately, a week before 1July, all parties had agreed verbally on the Statement of Common Ground on highways matters, and then on the first of July, the form was signed off?"

Expert: "Yes, it will be that the verbal agreement was sometime before that, probably early in June, but the document was finalised on1 July, having been fully appraised and considered by all the parties"

Mr Child moved on to the matter of "severity". He said "my background, for what it's worth is formerly as a teacher of English, so I'm  rather interested in the use of words, and I just wonder whether you would agree with me that, were I able to employ a traffic management expert like yourself,  and he or she were to conclude, based on their data, that the situation in Warton as a result of the developments, that the impact was 'severe', that would just be ultimately, a professional disagreement, between two experts. Would you agree?"

The Expert said "The level of severity is subjective, I accept that, but the basis on which the modelling has been done is extremely objective. And the result of that objective modelling leads me to the subjective view that that is not severe"

Mr Child: "I'm not challenging your personal conclusion. What I'm suggesting is, that an equally competent professional analyst of these matters might, from the data that they've gathered, draw a different conclusion, and attribute the word 'severe' to the consequences of the developments that are proposed here in Warton."

Expert: (To the obvious displeasure of the public gallery), "No, I don't think they would."

Mr Child: "It's just, I put that to you because the conclusion in the use of the word 'severe', has severe impacts on how this inquiry might ultimately make its recommendations to the Secretary of State. Because the word 'severe' carries great significance, doesn't it not?

Expert: "It does"

 JACQUELINE MCDERMOT

Said she had counted 1,200 cars past her house between 8 and 9 am that day, and she wanted to know if that was acceptable. The traffic expert said the traffic level was what it was.

Other residents followed in similar vein, saying that happened for more than an hour a day, and another who said that modelling is not real life.

The expert did his best to answer, but most people seemed to us to have made up their minds already.

 TONY WOOD

On behalf of the Parish Council, Mr Wood asked a number of questions including one about the period during which modelling data remained valid, whether the expert thought LCC's requirements were excessive, and whether experts like him ever went back to schemes they had specified to see how things had worked out in practice.

There was then a break, after which the public questions continued for a while longer with several people asking questions, including a telling admission that the modelling had not taken account of times at weekend when traffic destined for holidays and for events taking place in the resorts of Lytham and St Annes was heavy and causing tailbacks.

Then it came time for the public to express their views. First was:

 JOHN ROWSON

Spoke from the perspective of Wrea Green just up the road. He argued that the traffic passing through Wrea Green to Aerospace was already excessive, and he argued there should be no further development in Warton until sufficient infrastructure had been provided to deal with the problems it would cause. In effect - as was suggested to him in cross examination - he was calling for a moratorium on development until the infrastructure was provided.

 TONY GUEST

Mr Guest produced (as we had expected he would) a robust criticism of the proposals, and in particular of the status of Warton as a strategic development centre. He has been involved with local planning for longer than most of Fylde's officers (and many of its councillors as well), and he can recall the background history of issues which many people will not know. Under cross examination there developed a terrific argument between him and the developer's barrister, with neither side willing to give ground.

Other speakers followed, the most notable of which was:

 ALAN CHILD

After pleasantries and some personal details, he said "On Thursday 7th July, I met with Mr Evans and Mr Stell along with Mr Wood, Clerk to Bryning with Warton Parish Council, Councillor Brickles, Chair of the Parish Council, and Parish Councillors Mr Gilbert, Mr Wright and Mrs Parkin.

That meeting was recorded, fully recorded, but  I've not had an opportunity to listen to the recording, however, none of my Neighbourhood Plan Steering Group colleagues have any recollection of being advised that the planning Statement of Common Ground was to be agreed between Hallam Land Management and FBC on the 8th of July, or that the statement of Common Ground (Highways) was already agreed and signed on the 1st July 2016.

And certainly I have no recollection (although I'm happy to be advised if I'm wrong), of being told that those statements of Common Ground were to be emailed to you, Sir, for your attention over the weekend of 9th and 10th July."

He went on to speak about how the developments in Warton had come about. He spoke of being saddened that the competing needs of developers combined with Fylde's inability to demonstrate a five year supply of housing led to the view that a much needed masterplan to co-ordinate the developments would never come into being.

He went on to deliver an authoritative and devastating critique of the developers' approach and he quoted from a letter he had received from our MP, saying "I have always felt Fylde in its original draft plan had allocated too many homes for Warton, and successfully fought hard with local representatives to get that figure reduced by around half. However, I know in Warton those efforts have been undermined by developers submitting applications before the local plan has been ratified, in the full knowledge that they would be dismissed once that plan is in place."

He then quoted from another letter sent by Mr Menzies to the (then) Local Government Minister in charge of planning (Greg Clark MP) in which he had said "I believe this is a clear case of developers wilfully abusing the local plan process and submitting applications before Fylde's plan has been ratified."

In a presentation that won the hearts and minds of all the residents present at the Inquiry, and for which he achieved something akin to a standing ovation at the end, he continued to outline the process which had brought them to the present unsatisfactory state of affairs; he criticised Fylde's failure to deal with their neighbourhood Plan in a timely manner, (which we covered in 'That's The Way To Do It').

To many nodding heads in the public gallery, said at one point "I cannot understand how the absence of a five year housing supply and the absence of an adopted local plan can permit the approval for such a large number of dwellings in the village."

And in a well chimed point made in a humorous manner - but with underlying seriousness - he said "I also know, and I hope I'm right here - that the Borough Council will receive - from the Highgate Park development, I'm led to believe that the sum of £75,000 will come forward to support improvements in the village centre, once 100 dwellings have been occupied on that site.

All I can say about that, if my understanding of the figures is correct, is that I would not want the person who achieved that deal to represent me in negotiations with the EU"

He went on in some depth to criticise the developments that were now being proposed for Warton and calling the appeals to be dismissed.

We thought he gave the best presentation of the Inquiry, and the village was lucky to have such an able and cogent speaker advancing its arguments.

And following a cross examination that scored a couple of hits - most notably that the Neighbourhood Plan itself had proposed the allocation of these sites for development albeit that was before the enormous 300 site Blackfield Green appeal was granted (which we covered in 'Blackfield Green Inquiry')

And with that, the public speaking, and our coverage of Day 2 ended. The inquiry ran un until Thursday, but we didn't hear anything spectacular emerged when we were not able to be present on the remaining days.

 OUR ANALYSIS OF THE INQUIRY

So at this point, we all thought the matter was finished, and was now in the hands of the Inspector to write his report - before passing it to the Minister who will decide whether to allow the appeals or not.

For us (again at this point in proceedings) there were two issues.

Firstly and most obviously, was the planning appeals themselves, and secondly, the process by which the 11th hour capitulation by Fylde arose, and whether Fylde has been open and transparent in its dealings.

However, since the Inquiry, another matter (regarding the five year supply of land for housing)  has come to light.- and this is a matter that could have had a significant impact on the inquiry decision, so the fat lady may not yet be singing.

 THE APPEALS THEMSELVES

Despite the good case put up by residents, it will take a lot of mental jujitsu to justifiably refuse the appeals when Fylde has thrown in the towel on behalf of Warton's residents.

To be fair to FBC, probably their main (but not only) argument was always the highway matters, and it was LCC who pulled the rug from under Fylde's case in that regard.

We've seen LCC do this sort of thing before, and we have little confidence that they have the courage to stand as firm as they should against assertive developers. To us they seem too ready to accommodate developer arguments, and the perception of that accommodative stance is not improved when we learn that one part of LCC is trying to convince another part of LCC on the developer's behalf!

From what we can see, unless the Inspector pays more regard to the issues raised by the public than we've ever seen happen in an Inquiry before, then the appeals themselves are now almost certain to go ahead - because there is no longer any official objection to them.

As the Inspector himself said, the situation he now faces is that the only arguments he can make to the Minister are those that have been put to him by the (largely unprepared) public at the inquiry.

On that basis, and being as fair as you could hope he might be, it is difficult to see how he could make anything other than a recommendation for approval of the appeals.

 FYLDE'S CAPITULATION

We think FBC's handling of this matter is a different kettle of fish, and one that is deserving of censure.

We see three problems here

 What was said to whom and when.

From what was said at the inquiry, it is clear that Fylde's officers were party to all the discussions with the developers and LCC. It's also clear that oral agreement on the matters of Common Ground for highways was reached in (as the developer's expert witness said) early June.

So at that point, Fylde's officers could not have been unaware that agreement had been reached. (as the developer's expert witness said ""Yes, it will be that the verbal agreement was sometime before that, probably early in June, but the document was finalised on1 July, having been fully appraised and considered by all the parties"

But when Fylde's officers met with representatives of Warton's Neighbourhood Plan Steering Group (which includes several members of the Parish Council) on 7th July, they made no mention of this fact.

Readers may like to remember that, whilst they are separate and autonomous entities, the Borough Council and the Parish Council are supposed to be 'on the same side.' Both are supposed to be working for the common good of the community. We've no doubt that the Parish Council and the Neighbourhood Plan Steering Group were singing from the hymn sheet, but it very much appears that Fylde's officers were not in tune with them.

In fact, we have been told that the recording of that meeting (referred to by Mr Child) shows FBC officers were specifically asked about the position they would take at the Inquiry (which, as far as anyone apart from the FBC officers knew on 7th July, was to present the case and the evidence to oppose the developments).

We're told the recording shows one of the Warton Parish Councillors asking the officers:  "What is your position ? Has your position changed ?" and the Fylde officer replies "Our position has not changed."

That statement was made on 7th July. But we now know that oral agreement on the highway matters had been reached between all parties in early June, and the formal statements of Common Ground were signed off the day after the meeting with the Parish Council (i.e. on 8th July). It simply cannot be the case that Fylde's officers did not know the change was to be made the following day.

Even if you make some allowance for the fact that the officers wanted to be 100% sure of the change before making it known, and waited until after the actual agreement was signed off on 8th July before saying anything, they sent it to the Inspector on the Friday or Saturday and they could have emailed the Parish Council then, to give them time to prepare what they might have wanted to say.

Furthermore, Fylde's officers were at the inquiry well before it opened on 12th July, as was the Parish Council Chairman and several people from the Neighbourhood Plan Steering Group who we saw there. So Fylde's officers could, even at that 11th hour, have given the Parish Councillors an hour or so's warning of what was to come.

Bit they did not.

The waited until the Inquiry had opened and let their barrister make the announcement of withdrawal.

We regard that as shameful.

If this sort of behaviour by Fylde's officers does not deserve censure, it's difficult to see what would.

But there was actually worse to come as our second reason for censure emerged into the light.

 What did the Parish Council know?

More than one member of the public told us on day 1 of the Inquiry that when they challenged FBC officers in the short adjournment the Inspector called  soon after the announced the withdrawal, the officers had told them they made the Parish Councillors and the Neighbourhood Plan Steering Group aware their change of heart and their withdrawing from the appeal when they met them on 7th July (the day before the Inquiry).

But it would transpire that this was not the case.

This statement was before Fylde's officers knew that a recording of that meeting existed.

What they said seriously undermined the credibility and trust that Warton residents were entitled to have in their elected parish councillors. It made it look as though they knew about FBC's withdrawal when they did not.

It made them out to be unreliable and untrustworthy because they had not made their residents aware of the change.

There was also a most unwelcome and potentially partisan political dimension to Fylde's officers' behaviour.

We have been told by a wholly reliable source that at least one of the Fylde Conservative councillors knew about their withdrawal from the appeal over the weekend - (i.e. before the matter was announced at the Inquiry on the following Tuesday). This is entirely inappropriate. Officers should be seen to be wholly impartial in their dealings with councillors, and should not do anything that provides advantage to one political faction of the Council over another.

The attempted deception that Warton parish Councillors were told on 7th July continued until as recently as 20th July, via a reply to a question from a member of the public who wanted to know about Fylde backing out of the Inquiry.

Fylde's officer replied to explain how between May and the Inquiry date they had worked with all parties to see if agreements could be reached to allow the applications to go ahead, and they were able to do this.

He continued "It was on this basis there was common ground on the matters of dispute in May and so the council did not need to present any witnesses to the public inquiry. This position was explained to the Parish Council the week before the Inquiry started."

When the resident took up his complaint with his Parish Council, they were (understandably) not going to be happy bunnies, and we understand a complaint was made, and Fylde's CE is supposed to be investigating the matter at present.

But in the interim, we the officer concerned sent a further explanation  to the individual who asked the question.

It was read out at the Bryning with Warton Parish Council meeting we attended on  2 August and says........


"It has been brought to my attention that my response below contains an inaccurate representation of the level of knowledge that the Parish Council had over the position that Fylde Council and Lancashire County Council presented to the Inquiry.

When I briefed the Parish Council on the Thursday before the Inquiry, the position I explained was that there was a limited scope of dispute with the appellants, and that progress was being made in agreeing common ground on those outstanding points, and over the wording of a legal agreement that would deliver the infrastructure improvements that the council needed for the development to be acceptable. I also explained that if these matters remained outstanding then the council’s position would be to argue its case at the Inquiry.

Following that meeting further progress on these matters was made with the appellants and this meant that FBC and LCC were not required to present witnesses to the Inquiry. This update was not conveyed to Warton PC, and so my statement in the earlier email that the councils position was explained to the Parish Council is not entirely accurate.

I hope this clarification assists and helps you understand more clearly the information that was available to the Parish Council."


and we understand this further explanation has also posted in the Parish Council's Notice Boards.

We don't just see the word 'apologise' in that further explanation from Fylde's officer, but perhaps that word is being saved for the Parish Councillors themselves if the CE's investigation reveals shortcomings in his staff.

The matter was actually on the Bryning with Warton Parish Council's formal agenda for its 2 August meeting, under the heading "c) Misrepresentation of Fylde Borough Council regarding PIN’s Inquiry 12th July, 2016"

For the benefit of those who were not at the Inquiry, the Chairman first gave a précis of what had happened there before going on to explain the outcome of the exchange between Fylde officers and what they had asserted the parish Council knew.

Just before she asked for the exchange to be read out, another Parish Councillor queried who it was at Fylde that had made the misleading statement, implying that the person who responded may not have been the person who should take responsibility. 

We've no doubt the Chief Executive's investigation will deal with that sort of issue - assuming, of course, that he does a better job this time than some of the historic whitewashes for which Fylde has developed something of a reputation.

The Chairman then said she believed that whilst aggrieved individuals had a right to take the matter up with FBC, she thought the Parish Council as a corporate body may wish to take some action, and she sought the view of Parish Council members.

One said: "Just let me get this right. The spent money on having a barrister for a week here, and didn't present any opposition" adding if that was the case it was a disgrace because they did have grounds to object even if it wasn't on the highways matters. They had changed the local plan to a different method of calculation and they had proper planning grounds that others had presented to them to object to the developments. It was a disgrace that they had continued to spend taxpayers money to fund the barrister when they knew they would not present evidence or cross examine any of the developer's witnesses. He said it was insult beyond insult.

Our readers now have the flavour of how angry Warton Parish Council now is with FBC and it may come as no surprise to hear there was a proposition "to write a letter to the LSA Express, The Gazette and to counterbalance, outlining our disgust, and our position, and what we perceive as continued bad behaviour....."  adding they did not accept arguments about resource problems at FBC as an excuse,  and concluding "....the Borough deserves to know how shocking this village has been treated, again."

With some further clarification in the wording, (to include a strong objection to the FBC having misled Warton residents, and including the officer's further explanation of Fylde's 'inaccurate representation'), and in view of what some members of the Parish Council saw as Fylde's Chief Executive's failure to adequately deal with their concerns about the way officers have treated them in the past, our readers may not be surprised that the Parish Council had to resort to defending their position in the press, and that became a resolution of the Parish Council.

There was also a second motion to ask Fylde's Chief Executive to attend a future Parish Council meeting, then a third to copy all the correspondence to the Planning Inspector.

We think this episode has illustrated an awful way for Fylde's officers to have behaved, and we would at least expect a formal letter of apology from Fylde's Chief Executive if we were a member of the Parish Council

 Fylde's Systemic Failure

But the third - and in our view, most serious - failure by Fylde is, yet again, a systemic one.

We explained at the start of this article that the two developers had each made appeals to have the Government decide their planning application.

But in May 2016, Fylde was obliged to consider two new applications on those same sites. These were re-submissions of the applications on which the appeal was scheduled to be heard.

Fylde's officers had recommended approval of both these re-submitted applications, but the elected members took a different view.

They resolved a unanimous refusal of one and a majority refusal of the other.

What was clear from this decision was that the councillors we elect to take decisions on our behalf had decided that neither of these applications should be approved, despite their officers having recommended that they should be allowed.

We now know that at around this time Fylde's officers were party to discussions with LCC and the developers, and that between May and the opening of the July Inquiry that heard the appeal on the *original* (almost identical) applications, officers had negotiated out the *original* objections they had, and had agreed there were no longer any grounds to refuse permission. So they withdrew from the appeal and did not contest what the developers wanted.

The Council's barrister said "..... it [The Council] will not now play an active role in the inquiry. More particularly, it will not present any evidence, or cross examine the appellants witnesses...."

But Fylde's elected councillors had not reconsidered their refusal of substantially the same applications since May. They had not judged (or even seen) the changes that had been 'negotiated' by Fylde and LCC officers, and yet Fylde's barrister credited 'The Council' with having withdrawn from the appeal.

Our readers (and the good people of Warton) would no doubt be confused by this state of affairs. They would be right to wonder how might it be that Fylde's hired hands could, in effect override the decision taken by the people they elected to represent them? Why had the technocrats usurped the power of elected members.

The answer that everyone (including us at first) assumed to be the case, was that officers had been given delegated authority to approve these Statements of Common Ground, and by doing to they had removed the obstacles to development.

It is the case at Fylde that, over time, the decision-taking power that rightly belongs to elected councillors has been slid quietly from them - with their consent - it has to be said, as they have allowed salami slices of increase in the scope of the delegated authority afforded to their officers.

From a base of deciding what were, at first, quite minor matters, these delegations have now grown to a scale that can have a fundamental effect on both the functioning of the Council and the trust that we rightly expect from our elected members.

So we looked in the Council's Constitution to see exactly what the wording of this power to approve 'Statements of Common Ground' might be.

But when we looked more closely, and especially at the list of powers delegated to the Director of Development Services, we could find no specific authority delegating the approval of Statements of Common Ground to officers.

So it may be that the officers in this case simply went ahead and agreed the Statements of Common Ground because no-one thought to call a halt to what they were doing, or it may be that we missed finding the delegated power they would claim the right to use.

Either way, It is a complete nonsense that a Committee must decide whether it will or will not approve a planning application, but officers can then negate all that consideration and simply negotiate and agree terms with the developer that cause the refusal to be undermined and overturned.

It make a mockery of our democracy and of the trust and responsibility we are entitled to place in, and to expect from, those we elect to represent us.

So we regard this issue as systemic failure that Fylde needs to address.

The Council should either make the power of delegation for Statements of Common Ground explicit to officers - in which case we may as well abandon the Development Management Committee altogether, and simply leave it to technocrats to run the show. Or the officers should be required to keep the Development Management Committee updated as the negotiations take place, and to seek a mandate and a final authority from the committee for the wording of all Statements of Common Ground.

It will be no surprise that we think it should be the latter.

 THE FIVE YEAR SUPPLY ISSUE AT WARTON

Fylde's other key weakness in this appeal was the issue of the five year supply of housing land.

This is because National planning policy implies that if a Council can't demonstrate a five year supply of  land for housing, it more or less has to pass every planning application that comes forward until they have got a five year supply. (It's not actually that simplistic, but that's the rough and dirty explanation)

Readers will note that Fylde's barrister at the Inquiry had said "The Council has also been mindful of the need to ensure it is considering  housing in the most sustainable way, especially in circumstances where it cannot show a five year supply of housing land. ...." and later that "it is common ground that the Council is unable to demonstrate a five year supply of deliverable housing land. The Councils supply  is 4.8 years....."

But what no-one (except FBC officers) properly understood at the time of the inquiry, was that FBC's Development Management Committee had just voted to change the way they calculate the five year housing supply and that change meant that, contrary to the impression given to the Inquiry,  at the time of the Inquiry, Fylde Council DID have a five year supply of housing land.

This all became clear when sharp eyed Councillor (and our own 'Queen Elizabeth') Oades was arguing the case against development on a flood plain at Dowbridge in Kirkham at a Development Management Committee meeting last week.

We'll look at that issue as the final piece of this article, but for the moment we'll stay with its impact at Warton.

The decision to change the calculation method was actually taken by Fylde's Development Management Committee  on 15 June 2016, and the minute was confirmed by its next meeting on 29th June, at which point it became the adopted Council policy.

But the way in which the minute of that meeting was written (see later) meant that its true meaning was obscured.

And it's difficult to tell whether this was, in fact, intentionally introduced obscurity aimed at preventing understanding of what had been decided. Or whether it was incompetent administration.

From subsequent events, we think the former is the most likely case.

What Fylde actually decided has resulted in a resolution requiring the use of that new method of calculating the five year supply in respect of planning applications received after the date of their change of method (because you can't backdate decisions on planning applications), and at first, we thought the same thing applied to planning appeals.

But the rules on planning appeals are different.

When we investigated further, we were told by an authoritative source who has been dealing with this matter in some depth, that an appeal is determined not on the planning policies that appertained at the time the application was made, but on the planning policies that apply on the date of the Appeal hearing (or perhaps even when the Inspector - or in this case, the Minister - takes the decision).

In this case, the formal date of adoption of the new policy by FBC was 29 June, and the Warton Inquiry was 12th July.

That means the new method of calculating the 5 year housing supply should have applied at the Warton Inquiry, and in our view, Fylde's officers were extremely negligent in failing to point this change out to the Inspector.

Last week, when this 'secretive' change that Fylde had made became more widely known, we were copied in to a flurry of absolutely (and understandably) furious emails flying about amongst folk in Warton where some of our readers live, and we're not sure that anger has subsided yet.

And at its meeting of 2 August, Bryning with Warton Parish Council heard from Jessica Ashworth of the Neighbourhood Plan Steering Group about Fylde's change in its method of calculating the 5 year supply. She said this change means that it now exceeds the minimum of 5 years, but unfortunately this change was not notified to the Planning Inspector during the Inquiry and he currently believes Fylde only have a 4.8 year supply.

On hearing this, the Parish Council resolved to make urgent representations to the Inspector and/or the Government to point out FBC's failure to properly inform the Inspector of the changed position regarding the five year supply of developable housing land in the borough.

We suspect there may be more to come on this matter.

 THE FIVE YEAR SUPPLY ISSUE AT DOWBRIDGE

 It must be the time of year, because there were also ructions at Fylde's Development Management Committee meeting of 27 July 2016.

An application for housing that was contentious in its own right, led into the matter of the five years housing supply trying to be raised at the meeting, and all hell broke loose when the Chairman refused to allow debate on it.

This application has some parallels to the Warton applications. There was another earlier application (in this case a much bigger one - for up to 170 residential units on a 13 hectare site) and that had now been submitted for appeal, but at the same time as that appeal was in preparation, this further application had been submitted by the same developer

But this time the application is for 'only' up to 95 residential units.


Click for bigger map

From what we heard at the meeting, and from our own knowledge of that area, we thought it was a pretty stupid place to try to build houses.

It is poor building land and abuts Dow Brook which regularly floods in winter. 42% of the smaller site is on a floodplain - albeit that this time the developers have put the open space on the area to be flooded and put the houses just outside it.

(We couldn't help thinking this illustrated how much regard the developers might have for those who might want to use the open space (unless they were water polo teams) and how quickly the pretty trees they had drawn on the 'illustrative' plan would suffocate through lack of oxygen in the soil during flooding, and cease to be living trees).

Our concern about the proposals was heightened by some very professional and capable presentations against the proposed development by a team of local residents who mounted what for us was a compelling and cogent case to refuse it.

We were especially impressed with a lady who spoke about the issue of riparian ownership and security. The boundary between existing houses on the Kirkham side of the brook, and the proposed public open space on the other bank is actually the centre of the brook, where you cannot erect a fence.

Furthermore she said the water authorities require a strip of land atop either bank for access purposes, so there will be about 8 or 10m on either side of the brook that may not be fenced.

The (abundantly obvious) problems with safety, security and nuisance that this will cause for existing householders was plain for all to see from the drawing displayed at the meeting and, given that FBC has a statutory planning responsibility to take measures to prevent (not facilitate) crime and disorder, we imagine they should have given more credibility to this aspect.

Then someone spoke about the character of the area. Later, and also very memorable to us, was a former Police Traffic Officer who said he had acted as an expert witness on road traffic matters at Crown, Magistrate's, Civil, and Coroner's courts, and now worked as an independent traffic consultant.

He had first hand knowledge of traffic on that stretch. Using police radar he had recorded vehicles travelling in excess of 60 mph and he still sees that sort of speed today.

Furthermore, he had first hand experience of road accidents there. He said he was the reporting officer at the fatal accident at the Dowbridge bus stop in 1995. "But, he said, "With all the documentation from your own planners, and the developer,  there is no accident data." and he went on to give the Committee details of several of those accidents, before predicting an significant increase in the number of serious and fatal accidents if the plan went ahead.

We found his evidence compelling.

Altogether, about a dozen people spoke, and these were solid pillars of the community types who were well able to articulate their concerns. They did a good job in doing so.

Finally the developer's representative spoke in the public session. He reminded the Committee his clients had satisfied the County Council Highways experts with their proposals. He said the flooding and drainage bodies has likewise no objection. He gave other reasons why the application should be approved.

After the public speaking came the officer presentation of the application. To be honest we were not much impressed with this. Then it came time for councillors to debate the application.

Chief amongst these was Cllr Oades. She first asked some questions about land contamination, (which didn't get a satisfactory answer), and the linear parkland and ponds. She wanted to know whether the safety and security issues had been considered, and also she asked who would be responsible for the maintenance of the land if it was developed.

The officer gave what we considered to be an unsatisfactory answer, saying these matters would have to be dealt with at a detailed application stage, if this outline permission was granted.

What he was saying here was that they could not rely on anything about illustrative layout and so on - because it was an outline (i.e. in principle) application.

The tricky bit is - as Cllr Oades highlighted in her response - that once an application is granted in outline, it pressurises the Council to finding solutions to problems that may not have satisfactory solutions.

She tried to raise other questions as well, most notably to us she asked for more detail about a proposed emergency access to the site. She wanted to know where it would be and whether it could be used at any time or whether there would be some sort of restriction to prevent use by non-emergency services.

The officer said "We don't need... To determine this application we don't need to know those details. All we need to know is that there will be an emergency access, so that can be provided with the detailed design...."

That comment produces some (understandable) restless murmuring in the public gallery.

Time was that a comment like that would have resulted in the officer being 'eaten alive' by Councillors who understood that THEY, and not officers, were in charge of taking the decisions at Fylde, and of deciding what they needed to know to be able to do so, an heaven help an officer who failed to anticipate their needs and gave the sort of reply this one just did.

Perhaps mindful of his faux pas, he went on to try to provide a limited amount of further information, but Cllr Oades was not convinced, and not happy.

She then delivered a long but clever and well thought out series of arguments to refuse the application.

Chief amongst these was that although officers had provisionally allocated the Dowbridge site amongst the land they were prepared to consider for development, when it had been considered for inclusion in an early version of the emerging Local Plan Fylde's elected members had specifically removed it from that list, and replaced it with an equivalent area of land more suitable for development at what became known as 'The Kirkham Triangle'

Notably she referred to a letter from Fylde's Leader, Cllr Susan Fazackerley who, she said, "wrote to residents in January last year stating that Cllr Fiddler had demonstrated to her that the Conservative Administration had listened to the concerns of residents during consultation by deleting this site."

She went on to give reasons to justify a decision to refuse the application then said "The perceived lack of a five year supply should not automatically trigger presumption in favour of development resulting in a change to the settlement boundary. In March, we had a supply of 4.8 years. Since then, we've approved a large number of dwellings, so it follows that we are near, if not at, the five year supply.

However, in June, at the DM Planning Policy Meeting, this Committee accepted the proposed housing policies for inclusion into the emerging Local Plan, and the minutes record, in Resolution 2, To approve the policies in the Housing Chapter, Chapter 10 - Provision of homes in Fylde, of the Publication Version of the Local Plan for immediate use as interim housing policies for the use of the DM Committee and for decisions determined under delegated authority by the Head of Planning.   Paragraph....."

At this point,  the Chairman (Cllr Trevor Fiddler), interrupted her saying "Can I just stop you there. This is a very, very important point. When I tried.. before the debate started..., to say the weight you attach to that scenario you've just described, that in the publication version we are describing the housing policies for use for DM Purposes, this is the opportunity to just reflect how much weight you put on that. It's very, very, important. Central to the entire debate isn't it?"

Cllr Oades responded "Yes, it is, and it's a Minute that's been approved by this Council, by this DM Committee and it says for immediate use. And I think that you will find that it's said by the NPPF that you can attach weight the closer you get to adoption. I think you'll find that"

She started to pick up from where she was interrupted "Paragraph 10.19 of the Publication Version of the Local Plan, which describes the 'Liverpool Method' is used, and a housing trajectory in Appendix 2 shows the deliverable supply which exists at 3,546 homes.

Using Fylde's method of calculation, this is an approximate 6.3 year supply.

The Local Plan Publication Version has been approved by the DM Committee and also the Council, so Chapter 10 is approved for IMMEDIATE use, as are the Interim Housing Policies.

She went on to say that, as most of the evidence to approve the application before them rested on the five year supply issue, and she contended that Fylde had an approximate figure of 6.3 years supply, and noting that the NPPF gave weight to policy that was made near the end of the Local Plan period, (and Fylde's was due this Autumn) she argued it was safe to use the Policy the Council had adopted to move refusal of the application, and she did so, before going on to list the reasons she was giving for moving that refusal.

To applause from the public gallery, her proposition was seconded by Cllr Heather Speak.

Cllr Fiddler said "Cllr Speak, Can I just note that you are..., you've given the intent to second that. Can we have a debate, and then I will come back to the fact that it's been moved for refusal and seconded for refusal. That within the content of that debate, may help you to formulate and get  clearer idea of what reasons you have for refusal. [sic].

I take it now, I've got to immediately adjourn to describe the reasons. I think it's healthier if we have a full debate, and then I'll give you a guarantee that I won't allow any other recommendation to come in over the top if them."

Before the debate began, the Chairman said "....There is no doubt that the Fylde Planning Authority, that was represented by the Portfolio Holder and the Steering Group, did - so therefore Fylde has - the intent to remove H7 [this site] from the local plan for the reasons given. 42% is in the flood plain, visual impact, and so on. and the Housing that this site would deliver was transferred elsewhere. The central issue, and I addressed this earlier, is how material is our position?

Now, We've got to the Publication stage and if it's in your mind that that is material, and outweighs some of the other aspects then you come to that conclusion."

He continued "In terms of the 5 year supply, I think that we have rehearsed this and I don't really think we should start to go into that debate again, and you've heard Cllr Oades say about the could be 6.3 because you use the Liverpool method of determining housing supply figure with a local plan exercise, in a different way to the way Public Inquiry Inspectors deal with applications of this nature when they use the Sedgefield one, and I think it would be healthier..."

At this point he was interrupted by Cllr Oades who, shaking her head said "You're wrong"

Cllr Fiddler: "No I'm not"

Cllr Oades: "You are wrong, because it's not been tested by this Council".

Cllr Fiddler: "It was tested by the Full Council when it had a debate and....."

- Interjection by Cllr Oades "We've got a Minute Chairman"

- Cllr Fiddler speaks over the interjection and continues "the conclusion of the Full Council was to use the Sedgefield methodology in terms of determining the five year supply. Now I don't really think it's too significant in the ultimate decisions that this committee will make this morning. And I don't think we should get bogged down on whether it's 4.8 6.3 my advice to Committee following the recent debates it should be the Sedgefield and the 4.8 figure. Right. Vice Chairman followed by Cllr Speak then Cllr Mulholland.

What he did here (and what we've seen him do before when he is under pressure and doesn't want to do something), is to speak very quickly so as not to leave space for anyone except the most determined to interrupt him, and to move quickly on to the next part of the meeting. Some would see this as bullying the committee.

But he WAS wrong, as we shall show.

The other members he called to speak made the points (some very good ones) they wanted to make, but we're passing over that, because we want to follow the five year supply argument in this article.

Cllr Oades had to insist on her right, as proposer, to sum up the debate. She then did so and at the conclusion said ".... Finally, the 5 years supply. I would like the Legal Department (an officer was at the meeting) to rule on this, because we have a Minute which says that it is for immediate use. The NPPF states that it is a material consideration, the fact that we're so close to it being adopted. I feel that that Minute is quite clear that we can use it with immediate use, and I would feel quite happy to use it. The only thing we haven't done is test it. And if this goes to appeal, it's not going to be until very near or after this Local Plan has been adopted, so I feel that we can safely use it."

Cllr Fiddler was in before the cadence in last word of  her sentence had abated with: "That's your view and I'm also offering an alternative view. I have ruled that....."

Yet another interjection by Cllr Oades (in obvious exasperation, and raising her voice to speak over the Chairman with a tone not dissimilar to that of Violet Elizabeth Bott in the 'Just William' books): "BUT THERE'S A MINUTE.    A MINUTE, CHAIRMAN.    LETS HAVE AN ANSWER ABOUT THAT MINUTE"

Cllr Fiddler said "Councillor Oades, you've had several goes at it...."

At this point Cllr Oades, again with exasperation in her voice speaks, and both she and the Chairman are speaking at once, and it is difficult to be clear about who says what, but the Chairman can be heard to say "I am ruling this morning that we continue, and I emphasise we...

Cllr Oades: "You Can't!"

Cllr Fiddler: "...continue business with the Sedgefield methodology in terms of determining the Five year supply.

Cllr Oades, (by now as angry as we have ever seen her) " Chairman: you are a Chairman, not a Portfolio Holder. You cannot rule that. If there is a Council Minute to the effect that this can be used, then it can be used and that's why I'm asking for a Legal Opinion."

Cllr Fiddler: "The Council resolution was that we continue with the Sedgefield method of determining......"

Cllr Oades: "LOOK AT THE MINUTES OF THE 15TH OF JUNE"

Cllr Fiddler: "Councillor Oades....."

Cllr Oades (again): "LOOK AT THE MINUTES OF THE 15TH OF JUNE"

Cllr Fiddler: "You're..."

Cllr Oades:"You're ignoring it, and I'm afraid your (unclear word?) ignoring it because the Legal Officer can tell you"

Cllr Fiddler: "Its not a question of ignoring it, its a question of having a different view to yourself....."

Cllr Oades:"A MINUTE'S A MINUTE!"

Cllr Fiddler: "And now I intend to proceed by saying that Cllr Oades has moved refusal, it was and has [been] seconded by Cllr Speak. Do you want to reiterate your refusal Cllr Speak?

Cllr Speak declined to make further comment.

Cllr Fiddler: "At that stage, it has been moved and seconded for refusal. As indicated, we will adjourn. The Mover and Seconder will adjourn with the officers and come back shortly. (Then to the gallery) I suggest a five minute break for the rest of you.

And with that, the meeting temporarily adjourned.

PHEW!

We haven't seen an exchange like that in ages.

The Chairman's gavel marked the end of the break. He said "What's happening now is that Andrew is tidying up the three reasons for refusal. When he returns, he will read those three reasons for refusal out. I don't intend to have any debate on those three reasons. This has been a long debate, we've been here and it's been comprehensive and extensive. You will appreciate, or not, those reasons if you are against refusal and don't agree with that you will vote against refusal, and if you agree with those reasons you will vote for it, but in no way will we open the debate again."

To be honest, we thought Cllr Oades had given far more than three reasons for refusal, but perhaps they had been rolled up into broader headings in the discussion with officers.

The officer read out the 'composite' of the reasons for refusal reduced the three spoken of by the chairman.

The Chairman then said "As indicated, those are the reasons for the movers and seconders for refusal." And he called for the vote. "Those in favour of refusal please show. (pause for counting).  Those against?  Six : Three.

We didn't get chance to see all the hands, but it looked to us like the Conservative majority were the six that voted to against refusing the application, and the Independent Councillors were the three that voted to refuse it.

The Chairman continued: I'll put the substantive motion in favour of approval please show. And the vote was carried.

Cllr Mrs Oades asked that her vote be recorded against that, as did Cllr Mrs Speak.

Cllr Oades said "I'd also like the 5 year supply looking into more closely I do believe that we have made..."

The Chairman interrupted her to say: "Save that for a different forum..."

Cllr Oades: "No, No, this is very important"

Cllr Fiddler: "Take it up in a different forum"

To his credit, Conservative Cllr Neil Harvey - who spoke during the debate to say he was persuaded to refuse by some arguments but not by others - made it clear to the meeting that he had abstained on the substantive motion.

And with that, (accompanied by a very unhappy public gallery leaving the room) the Chairman moved to the next item of business on the agenda.

 OUR ANALYSIS OF THE 5 YEAR ISSUE

We've covered the difference in the 'Sedgefield' and 'Liverpool' methodologies in the first (Warton) part of this article, so we won't rehearse them again here.

Historically, Fylde has amended the methodology it uses to calculate its 5 year housing supply over time.

In the latter years of the 'Regional Spatial Strategy' Fylde used the 'Liverpool' method, and in four appeals relating to sites at Wrea Green that were determined alongside one another, an Inspector supported Fylde's use of the 'Liverpool' method over the 'Sedgefield' one which the developer argued should have been used.

But in 2014 (perhaps in order to speed up its achievement of a 5 year supply?) Fylde adopted the 'Sedgefield' method.

We couldn't find a minute authorising either of these decisions.

That's not to say there isn't one, just that we didn't find it.  But what we did find was a reference to the methodology having been 'agreed' [sic] by Fylde’s SHLAA Steering Group"

If that is its basis, neither method has any formal validity whatsoever.

Cllr Fiddler thinks the Council adopted the Sedgefield method, but he is wrong.

Knowing that it would help the Council to achieve a 5 year supply more quickly, Cllr Peter Collins gave notice of a motion to Fylde's Full Council meeting on 28 Feb 2016.

The minute of that meeting say: "8. Notice of Motion - Five Year Housing Supply.  Following notice given under rule 12 of the Council Procedure Rules, the following Motion was proposed by Councillor Peter Collins. "That, with immediate effect, this Council adopts the `Liverpool´ approach in applying the shortfall in delivery of the Objectively Assessed Need (OAN) identified in the Housing Requirement Paper (2015) to the calculation of Fylde´s five year housing supply position, i.e. the shortfall would be applied over the plan period and NOT over the first five years of the plan (the `Sedgefield´ approach)."

The motion was seconded by Councillor Linda Nulty.

During the course of the debate, Councillor Trevor Fiddler proposed the following amendment;  "The council defers the motion to allow for a full report on this  matter to be considered by the Development Management Committee prior  to 31 March 2016, with a report on this matter coming back to the next available Council meeting on 11 April 2016."

That resolution was carried

It went to the Development Management Committee on 9 March 2016 where "It was RESOLVED to recommend to Full Council to continue using the "Sedgefield approach" in the calculation of the 5 year housing land supply as it most closely reflects current Government guidance as set out in the National Planning Policy Framework and Planning Practice Guidance having regard to the circumstances appertaining to Fylde borough."

That decision was confirmed at the following Development Management Committee of 16 March 2016

The matter was then considered at Council on 11 April 2016 where (There is more preamble but  we have shortened it here)........ "Councillor Fiddler concluded by stating that as the matter had been discussed at length at the Development Management committee, he proposed that the council proceed to the next business."

Councillor Richard Redcliffe seconded that proposal.

A recorded vote was taken and 27 Conservatives and one Ratepayer present at the meeting voted for Cllr Fiddler's guillotine' motion not to debate the item, and 11 Independent and one Liberal democrat voted to effect the change to the Liverpool method. 3 Councillors (two Conservatives and one Independent): abstained.

So the guillotine motion was agreed and the meeting did not take a decision on Cllr Peter Collins's proposition at all, they simply ignored it and went on to the next item of business.

But because the 'next business' guillotine device had been used, the Councils rules say that the motion originally proposed by Councillor Collins at the 8 February 2016 Council meeting, was deemed to have been lost.

We now come forward to the Development Management Committee meeting of 15 June 2016 which Cllr Oades made so much of above. The relevant minute of that meeting says "2. Approve the policies in the housing chapter (Chapter 10: Provision of Homes in Fylde) of the Publication version of the Local Plan for immediate use as ‘Interim Housing Policies’ for use by the Development Management Committee and for decisions determined under Delegated Authority by the Head of Planning."

And when you look up those policies in the latest 'Publication Version' of the Local Plan, Paragraph 10:19 sets out the housing trajectory before saying "The shortfall of 802 homes has been spread over the remainder of the plan period and added onto the annual requirement figure of 370 homes resulting in an annual requirement figure of 420 homes from 2016-2032."

Spreading the shortfall over the whole Plan period *IS* the Liverpool method of calculating the 5 year supply, and the Minute says this is the policy to be used in the future.

Ergo, Cllr Fiddler was wrong.

So what's to be done?

Well, when it changed to the Committee system of operation, Fylde did not restore the old tried and tested Committee System, they unnecessarily opted for an untried and untested new form of Committees.

This arrangement (with certain exceptions about 'calling in' and 'recovering' decisions that don't apply here) gives Committees delegated authority to take decisions themselves.

So instead of having the Development Management Committee Minutes approved by Full Council (as we consistently argued that they should), the minutes are now approved by the following Development Management Committee.

Once that happens, they have the authority of the Full Council and are as though the Council had taken the decision itself.

The Development Management Committee Minutes of 15th June 2016 were confirmed by DC on 29th June.

Ergo, at that point it became formal council policy to use the Liverpool method of calculating the 5 year housing supply.

Cllr Fiddler is wrong: Cllr Oades is right.

But of course that's left things in a terrible quandary because the Chairman of Fylde's Development Management Committee consistently overruled Cllr Mrs Oades during the meeting as we have shown above, and he used his influence as Chairman to prevent proper debate of the 5 year supply issue.

It is now likely that the DM Committee has made an unconstitutional decision that it should not have been allowed to make.

It could also be that the validity of the decision it has taken to approve the planning application can be called into question (because the Chairman gave the Committee incorrect information and could have seriously influenced their consideration of the matter).

It may be that some councillors would not have voted to approve the application if they had been convinced by what Cllr Oades said rather that what the Chairman told them.

Certainly, at the meeting we spoke to one very able and experienced councillor who told us they were sure the Council had adopted the Sedgefield method and they did not have a 5 year supply. If that view affected their voting, then the basis on which they came to that decision was wrong.

We believe there is now scope for a Judicial Review of this decision to be made if Fylde does not re-consider the decision it took to approve the application.

And just when you thought things could not get worse, they do.

Because Fylde has implemented a previously untried committee system (instead of the former tried and tested one), they are in uncharted waters, and it is by no means clear what they can do to set this to rights.

Technically, in this specific application, they have some scope to review things because the decision they took is contrary to the Local Plan and they have to give the Secretary of State the opportunity to call in their decision (and possibly change it). So it is possible that someone could ask the Minister to 'Call In' the Application and retake the decison himself.

In theory Fylde's Chief Executive could ask the Minister to do this, but we can't see him wanting to show how incompetent Fylde has been in this matter so we can't see him going on that road voluntarily.

Another possibility is that it is probable that the 'Section 106 Agreement' for this application has not yet been signed. This is a complicated technicality, but until it is signed, as we explained in our article Road Block, the permission is not finalised, and the decision can be changed.

We're not sure there is any provision for a Committee to 'undo' a decision it has already taken, so we think Fylde is in yet another administrative mess with potentially explosive results, and we're fascinated to see how they try to extricate themselves from it.

Two final considerations.

First, The Council's Monitoring Officer has a duty and responsibility to stop the Council taking decisions that would be unconstitutional or unlawful. That's why she is present at all the Council meetings. She can't stop them taking an unlawful decision, but she MUST tell them it is unlawful before they take it, so they do so in the knowledge they are - in her view- breaking the law.

This approach is a hangover from the old tried and tested former Committee system, when all decisions of committees were confirmed by the full Council before they became final. It depend for its working on all decisions going through Full Council, and if that had been the arrangements Fylde had adopted, it would have been possible to right this wrong at the next Council meeting.

But under the new committee system. All the decisions do not go through Full Council. As we have seen, they are approved by the next meeting of he Committee.

If Fylde is to continue in this vein, we suspect its Monitoring Officer will need to attend each Committee that has delegated authority to take decisions.

That's going to go down like a lead balloon.

The other way is to change back to the tried and tested method where Committee decisions have to be confirmed by Full Council.

We'd very much approve of that, but we can't see it happening.

Second, and in a lighter note to end, we are reliably informed by someone who attended a recent Conservative Group Meeting that before his "move to next business guillotine motion", Cllr Fiddler had said at the meeting that if the Liverpool method went into the local plan, he would resign as Chairman of the Planning Committee.

We suspect all those residents in Fylde who have had unwanted development thrust upon them will be hoping he is a man of his word.

Dated:  04 August 2016

   

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