19 January 2002, Comments by the THNA on the TWBC Internal Report
TELEPHONE HOUSE ENQUIRY
Members of our Committee analysed the Report (of 18.11.2001) by John Haynes, Director of Operational Services, Tunbridge Wells Borough Council.
We found that it would be difficult for us to identify with some of his comments and views for the way forward.
- In a democratic society it is the role of the elected representatives to decide policy and take all important decisions. It is the function of the executive and its technical officials to apply those policies and carry out those decisions. In Tunbridge Wells we seem to have lost sight of this division of responsibility.
- The fundamental lessons to be learned from the Telephone House Planning saga are:
- that when Officers fail to consult with, and keep Members fully informed of the policies they are formulating and/or pursing and the direction in which negotiations are proceeding over important developments, there is a very high risk that a clash of views will result, and
- that when interested parties are not consulted and involved at an early stage in the process of planning major developments, and when these parties are deliberately kept at arms length from developers, suspicion and mistrust will inevitably arise, and any chance of avoiding the costly public enquiry process, by negotiated compromise, is lost.
- that once the TWBC has made a decision the Officers of the Council must be fully committed to the implementation and be prepared to defend that decision without reservation.
- In paragraph 50 (e) Mr Haynes states "....I consider that the final decision on the way forward should remain an Officer level decision" In our view this statement underlines what is wrong with the TWBC. The Officers appear to think they have the right to dictate to the Members! Professional guidance and advice are certainly required but final decisions must be in the hands of the elected Members, inexperienced though some of them may be. The problems with Telephone House arose because the Officers have acquired too much power and have come to regard planning meetings as a rubber stamping process. Even Mr Haynes is prepared to concede that there is a problem here (see his para 17) although we cannot agree with the view that Members should be prevented from directing Officers on matters of policy which is implicit in the last sentence of para 17 of the report.
- In the case of important sites such as Telephone House it is vital to get the policy for the site agreed by the appropriate planning committee before detailed negotiations with developers start. A basic flaw in the Telephone House case was that when Officers started negotiations they had no idea what the planning committee thought about this development and, it would appear, that they made very little attempt to find out. The Officers formulated a policy and proceeded to negotiate with the developers on the basis of that policy without obtaining the approval of the planning committee. That the current rules did not specifically require them to bring the matter before the planning committee does not detract from the disastrous results achieved by proceeding unilaterally. The refusal of the first planning application by Officers without reference to the planning committee (although within their present powers) is particularly regrettable as such a referral would have given the Members the opportunity to make known their views on this important site.
Consideration of Second Planning Application by WAPC
- Mr Haynes, in his paras 27 and 28, says that the usual procedures were followed and seems well satisfied with the way affairs were conducted. Indeed in para 30 he describes the process as a model of good practice. He does not address the real defect in this process, the failure of Officers to consult the committee on the nature and type of development they were calling for from the developers. By the time the Members were fully briefed (if they ever were) it was too late to influence the development and they were, in effect, being presented with a fait accompli.
- Mr Haynes says (in his para 32) that he is not convinced that Members fully understood the scope of the reasons finally agreed. Whatever we may think of the Inspector's decision to ignore many of the real reasons for refusing the 2nd Planning Application, it was clearly the duty of the Officers to advise the committee that "all relevant and sustainable objections should be used". From first hand accounts of those present in the public gallery at that meeting of the WAPC it is clear that this was not the advice given to the Committee and many matters of concern to Members were not included. In consequence, when agreeing common ground prior to the Public Enquiry many good reasons for refusing the development were negotiated away. Whilst we would strongly agree that Members need a great deal more training in these matters, we would suggest that it needs to be made clear to Officers that, regardless of their personal views, their duty is to present the Council's decision in the best possible light.
The Planning Appeal Preparation
- Mr Haynes (para 35) and the Council's Legal Officer are apparently happy with the Counsel appointed to represent the TWBC. Whilst we would not suggest that TWBC appoint a QC for every planning enquiry, it was patently obvious to all who sat through the four day hearing that the Barrister appointed did a very poor job and was made to look foolish by the opposition. To be fair this may have been partly because he was inadequately briefed. It is essential that the TWBC be adequately represented in any future enquiry and that whoever is appointed is given unfettered access to all parties willing to support the Council's case and to all available evidence.
- Members are criticised for electing to give evidence without adequate preparation. It is implied that they were wrong to do this - that it was not their place to undertake what was a task for experienced Officers. Firstly, being a councillor and a Member of the WAPC cannot and must not be a bar to giving evidence at a Public Enquiry. Secondly, the TWBC witnesses were inadequately prepared and gave the impression that they were either completely incompetent or trying to undermine the TWBC case. Members of the planning committee could have been used, and with proper briefing by Counsel, have contributed to the Council's defence of their refusal of the application. In the event the Members of the WAPC were kept at arms length from the Legal Counsel engaged to represent the TWBC, the witnesses fielded by the Council were too junior and manifestly lacked experience in carrying this duty.
- Mr Haynes devotes several paragraphs (34 - 40) to the matter of the choice of witnesses used to put the TWBC's case. Whilst the procedure for performing this task may well have been correct according to current rules, it cannot, by any stretch of the imagination, be said to have been successful. It should be common sense that the Council use any witness, regardless of who they represent, who can add support to the Council's position. Mr Haynes seems to be putting forward the idea that being a witness for the TWBC at a public enquiry should be a "closed shop" restricted to planning Officers only. Given the appallingly inept performance of one Officer witness, the importation of a few genuine independent planning experts to support the Council's view might well have made a difference to the outcome of the enquiry.
- We can understand My Haynes' reluctance to involve objectors in the preparation period in circumstances where those objectors are contesting the Council's decision. However, it is bordering on the absurd to exclude them when they fully agree with the Council's decision and wish to fully support it. Once again, Mr Haynes appears to advocate the "keep it in house" principle. This report is inhibited by the culture of secrecy which seems to prevail at the Town Hall.
The Inquiry Phase
- Mr Haynes refers (in his para 43) to the relatively new procedure whereby the key parties agreed, in advance, matters on which there was no dispute. Whilst this way of working might well speed up proceedings we are more than a little concerned at the way in which this process was used to disallow the evidence of interested parties who were not involved in the pre inquiry agreement negotiations. If the new rules have been correctly interpreted and applied in the case of the Telephone House Planning Inquiry, it would appear that Council Officers have the power to negate any point of evidence raised by other parties (or by Members acting independently), with which they do not agree. During the Telephone House pre Inquiry phase Planning Officers negotiated away much of the WAPC's reasons for refusing the planning application and effectively made the attendance of THNA and other objecting parties a waste of time and money. We are not sure whether this is really the way in which the rules are intended to work but it is what actually happened. We would therefore suggest that strict control must be exercised over what Officers agree as common ground and that they be required to refrain from negotiating away points of concern that have been registered by other objectors. It is no good saying that Members of the public have the opportunity to put their concerns to the inquiry in person, if their evidence is going to be disallowed by the Inspector because it has already been negotiated away by Officers as common ground (as it was in the case of Telephone House). As matters stand the whole purpose of a Public Planning Inquiry has been undermined.
- There is an implied suggestion in paragraph 44 of the report that by giving evidence at the enquiry, Members acted against the interests of the Council's case. It is further implied that they failed to be adequately briefed and that they were somehow or other at fault for not forming part of the Council's team. According to the Members concerned they were not invited to give evidence on behalf of the Council and they were certainly not briefed by Council Officers who were most reluctant to discuss the defence to be put forward with the elected Members for the ward affected by the proposed development. In these modern times of "open government" this degree of secrecy is not acceptable. Councillors and their constituents are entitled to know what is being done in their name and to voice their views on the matter. The idea that Officers should be free to secretly negotiate with developers to an advanced stage on development that is going to be extremely unpopular with both Councillors and their constituents alike must be quite firmly suppressed. Similarly, in public matters such as planning, commercial confidentiality cannot be used as an excuse for keeping planning Officer/developer negotiations on potentially unpopular developments secret from the Public and their elected representatives.
- We would agree most heartily with the view that closer co-operation of Officers with Councillors would have avoided many of the problems that arose during the TH planning application exercise and might well have saved the Borough the considerable expense of a Public Inquiry. However, we can not see this most desirable improvement in liaison between elected Members and Officers coming to pass without clear and unequivocal instructions to Officers to keep elected Members properly informed from the very beginning of all important planning developments. In this connection it will be necessary to define what is considered to be an important development. We would suggest the present limit for delegated authority to approve developments (up to three dwellings) would be a suitable point to draw the line. There is also some merit in the suggestion that brief details of all planning applications received should be placed on a running list, showing what stage in the planning process had been reached, to be appended to agendas sent out to Members.
- In his paragraph 49 Mr Haynes has sought to excuse an Officer for her statement disclaiming her support for the case being put forward by the TWBC. We cannot agree with his view that this causes no problems. It shows a lack of loyalty on the part of the employee concerned. It was clear to everyone present at the Inquiry that the lady concerned thought the Council were wrong to refuse planning permission. The choice of who is to be used as principal witness for the TWBC needs much more careful thought than was given in the case of the TH Inquiry.
The Way Forward
- To some extent this section of the Haynes Report was overtaken by the decision of the full Borough Council at their meeting of 4th December. However there are some
recommendations embodied in this section which need to be examined:
- Para 50 (a). This sub paragraph is written in the very worst kind of
official jargon and we are not sure what it means. We think he is trying to say that there may be occasions when a wider degree of consultation with interested parties, than is current practice, may be necessary. If our understanding is correct, we would go a great deal further and say that much greater consultation with interested parties (especially those who have to live with the results) is essential.
- Para 50 (b). As far as TH was concerned Developer/Resident contact was actively discouraged by Council Officers (according to the developers). Since the Inquiry it has become clear that, at the time of the first planning application by Crest, there would have been much common ground between the Developers and THNA if they had been allowed to meet. We agree that the Council should invariably encourage such contact at the earliest possible stage so that time and money is not wasted pursuing ideas which are likely to generate opposition.
- Para 50 (c). It is most regrettable , if not reprehensible, that Members were not fully briefed on the TH planning application from the outset (i.e. the receipt of the first planning application from Crest). It is a site of major importance in the centre of the Town and as far as the first application was concerned there was no political input whatsoever. It is absolutely essential that Members of planning committees and Members whose Wards the proposed development is situated, are fully briefed on what is being proposed from the very beginning of the planning process. The rules for the conduct of such planning matters must be drawn up to make it impossible for Officers to decide any future major application unilaterally.
- Para 50(d). This is a vitally important point. Of course it is common sense not to proceed with a planning decision without fully understanding the reasons for making that decision, and however disruptive the procedure may be we do not see any alternative to adjournment until the matter can be clarified to the satisfaction of the planning committee.
- Para 50 (e). Whilst there should indeed be some flexibility given to Officers in dealing with planning inquiries the TH exercise has made it patently obvious that currently there is far too much! Senior management must certainly be party to the exercise but we strongly disagree with the proposition that "the way forward should remain an Officer level decision".
- Para 50 (f). Member attendance as a witness at a public inquiry is a matter for individual Members and we would be strongly against any attempt to shackle them in any way. As a matter of courtesy we would expect Members to inform the Chairman of the appropriate planning committee of their intentions but the idea floated in this sub para that the Members should be required to report their intentions to Officers is turning the chain of command upside down!
- Para 50 (g). We could not agree more that Members need to do their home work if they are to be effective. Planning is a complex subject, but it is not a black art and a good working knowledge can be achieved by any reasonably intelligent person. In other councils individual Members of planning committees are given responsibility for overseeing all planning applications for a specific area and have to liaise with the appropriate planning Officers. Such a system would be a good way forward in Tunbridge Wells. It would certainly be better than the present arrangement of giving the planning committees four or five days notice to read and understand a whole agenda of planning applications of which they have no prior knowledge.
- The role of Members in the decision making process is being undermined by Officers undertaking negotiations to an advanced stage and reaching agreements with developers before bringing the matter before the planning committee. The final decision on matters of policy must be the prerogative of the Members.
- Consultation with both elected Members and other interested parties who are likely to be affected by any proposed development must take place at an early stage and cannot be constrained merely to meet the wishes of the developers. The conduct of Council business in secret breeds public mistrust and in the case of Telephone House was a major reason why we ended up with an expensive Public Inquiry. Secret negotiations between Officers and developers should not be permitted. The planning committee should be fully aware of any negotiations in progress and pre application agreements with developers should be subject to scrutiny by Members before they are finalised.
- Officers must be fully committed to Council decisions regardless of their own views.
- At a Public Inquiry where the applicant is legally represented the TWBC should, as a general rule, be represented at a similar level.
- Any counsel appointed to represent the TWBC at a planning inquiry should have access to all witnesses (whether they be Officers, Members or other interested parties) who support the Council's case.
- No obstruction or impediment should be placed on Members who wish to appear before a Public Inquiry.
- Delegated authority to Officers permitting them to reject planning applications should be restricted to developments of three dwellings or less (as is already the case in respect of delegated authority to approve planning applications). However, the right of Members to call in any planning application must be retained.
- Members should be kept fully briefed on the progress of all major planning applications (including any preliminary negotiations with developers). Any new policy, or change of policy regarding a specific site of a proposed development should be approved by Members before it is used as a basis for negotiations with developers.
- The final decision on the way forward must be made by Members not Officers.
- Greater liaison between Members and Officers is essential. Members need to be more involved in the consideration and development of planning policy, particularly for major sites. The present practice of Members having first sight of the details of major planning proposals some 4/5 days before a meeting at which a final decision is required places Members in an impossible position.
Tunbridge Wells Borough Council's Internal Inquiry into the
Telephone House Debacle
The Telephone House Neighbours Association, Tunbridge Wells
The aims are to heighten peoples' awareness and concern for the controversial high density development on
Telephone House site, Church Road / York Road, Tunbridge Wells.