16 Nov 09 - BSCF seeks investigation into EHDC Planning Department's conduct in proposed schools' move

Letter to the Chief Executive of East Herts District Council

The emails referred to in this correspondence:

The emails - scanned and arranged in chronological order.
The original scanned emails from EHDC .

Ms Anne Freimanis
Chief Executive
East Herts District Council
Wallfields
Pegs Lane
Hertfordshire
SG13 8EQ
16 November 2009

BISHOP'S STORTFORD SCHOOLS RELOCATION

I am writing on behalf of the Bishop's Stortford Civic Federation to ask you to review the conduct of EHDC's Head of Planning and Building Control, Mr Kevin Steptoe, during the course of 2009, as disclosed in the exchanges of emails with Messrs Vincent and Gorbing. The subject matter of the exchanges concerns proposals by two foundation schools in Bishop's Stortford to relocate to a Green Belt site on the edge of town and to fund the move by redeveloping their existing sites for housing together with one acquired by the County Council for educational purposes some 30 years ago. The emails have been disclosed in response to a Freedom of Information Act inquiry together with confirmation that four meetings have taken place between planning officers and the scheme promoters about which no records have been kept by officers.

Planning applications for all these sites were withdrawn by the applicants a year ago, following recommendations by planning officers that permission be refused. Prior to that, in April 2007, EHDC, by direction of the Inspector, adopted the local plan which maintains the designation of the whole of the relocation site in Whittington Way  Map  as Green Belt (overruling attempts by the schools and developers to redesignate some or all of it). She also required the County Council's site at Hadham Road to be retained for educational purposes unless and until some alternative way of meeting the town's shortfall in secondary school places was found. None of the other three affected sites were proposed for residential use or have even a conditional designation for an alternative to their present use in the local plan.

In both national policy (PPG2) and in local planning policy there is an overwhelming presumption against development of Green Belt land. No proposals for relocating the two schools to Whittington Way could comply with this policy or with the local plan, given that an alternative site in County Council ownership has long been available to meet the acute and growing shortage of secondary school places in Bishop's Stortford. Implementing the relocation would lead to the existing schools sites being redeveloped for housing, for which they have no such designation in the local plan.

The scheme promoters have now failed twice, through the adoption process for the local plan, and through the local planning application process, to achieve any recommendation in favour of granting permission for their proposals. Implementing them would involve four major departures from the local plan and the overturning of Green Belt protection policy. Moreover, the proposals published last year generated an unprecedented level of opposition from local residents with nearly four thousand signatories petitioning against them, and nearly one thousand letters of objection against the planning applications themselves, as well as opposition from the CPRE. The clearly expressed wish of local people is for an additional school – not for enlarged versions of the existing schools relocated to a common site on the periphery of the town. In the light of this history, I would have expected that the planning department would have made it clear to the scheme promoters that no variation of their proposals on the same site had the slightest chance of being granted planning permission by EHDC and that they should look for an alternative way of meeting the need for additional school places which was consistent with the local plan and the wishes of local residents.

The contents of Mr Steptoe's emails to Messrs Vincent and Gorbing therefore come as a considerable surprise. In his email of 2 February, his précis of the reasons for recommending refusal of the previous applications is an inaccurate and incomplete summary of the conclusions of the reports to the Development Control Committee which he presumably co-authored. His conclusion that we are able to work constructively with the team promoting these proposals appears to disregard completely the policies for Bishop's Stortford embodied in the local plan. His comment that this Council has moved further forward in relation to the release of the ASR sites to the North of the town and that planning officers are in dialogue with landowners and developers about the process for bringing this land forward for development will be news to local residents. The ability of these sites to accommodate sustainable development and the capability of the town to absorb further major population growth have not been demonstrated, and the state of the housing market, with phase 1 sites in the local plan not yet exploited, suggest that there is no urgency which could possibly justify such negotiations. In any case, it is clear from the email correspondence that the scheme promoters have no interest in the ASR's even though the Hadham Road site can accommodate a 6 forms of entry school and is immediately adjacent to them.

Mr Steptoe's statements in his email of 2 June that we are keen to assist/be involved/work with you to avoid a situation where we could not support any scheme and email of 14 August that I had hoped that…we could work jointly toward a new scheme appear to be completely indefensible. They seem to show the EHDC planning department actively colluding in private with the scheme promoters to bring forward proposals whose aim and effect would be to undermine key aspects of the local plan as it applies to Bishop's Stortford. People who move to Bishop's Stortford rely on the local plan to inform them of the location of schools and of any development proposals. I trust that EHDC has taken account of its exposure to legal action if it transpires that, as a result of these negotiations with the scheme promoters, it has been giving what may turn out to be misleading and inaccurate replies to local search inquiries. Mr Steptoe's conduct in this matter does not appear to be compatible with EHDC's published planning policies for Bishop's Stortford.

While I appreciate that the provision of school places is not a matter for EHDC, their location certainly is. The Bishop's Stortford Civic Federation has demonstrated in relation to the previous applications that the shortage of school places for year 7 admission to secondary schools was between one and three forms of entry in 2007 and 2008. The data for 2009 suggest that the problem is getting worse. Had it not been for Birchwood school being persuaded to take a whole form of entry in excess of its published capacity of 8 forms of entry, there is every reason to suppose that the admissions procedure for Bishop's Stortford would have been overwhelmed by the demand. The result of Mr Steptoe's encouragement of an inappropriate solution (which would deliver only two additional forms of entry three to four years after scheme commencement) has been to delay by a further year a lasting and sustainable remedy for the shortfall in school places, which meets the wishes of parents to have their children educated locally.

In the circumstances I would be grateful for the following:

I appreciate that the Council's Monitoring Officer would normally be asked to investigate the issues raised in this letter. However, in view of the seriousness of the matters raised, and the fact that the Monitoring Officer is Mr Steptoe's line manager, I hope you will agree that it would be more appropriate for any investigation to be undertaken by yourself, as Head of the Paid Service.

In view of the important matters of public interest to which these information disclosures have given rise, I am copying this correspondence to the Councillors representing Bishop's Stortford at Town, District and County level, and to the Herts and Essex Observer. I am also arranging for a copy to be placed on the Civic Federation's website. I am afraid that this evidence provides further confirmation of the widely held view among the residents of Bishop's Stortford that EHDC is incapable of either understanding or promoting the interests of the town

I should be obliged if you would treat this letter as a formal complaint.

JOHN RHODES
Vice Chairman, Bishop's Stortford Civic Federation


19 Nov 09 - Reply from the Legal Manager, East Herts District Council   Top 

Page 1 of 2

Reply from East Herts District Council

Page 2 of 2

Reply from East Herts District Council

25 Nov 09 - BSCF response outlining formal complaint to the EHDC Legal Manager   Top 

George Robertson
Legal Manager
East Herts District Council
Wallfields
Pegs Lane
Hertfordshire
SG13 8EQ
25 November 2009

FORMAL COMPLAINT PURSUANT TO S5 OF THE LOCAL GOVERNMENT AND HOUSING ACT 1989

1. Thank you for your letter of 19 November in reply to mine of 16 November to the Chief Executive about the conduct of the Head of Planning and Building Control in relation to proposals to relocate two schools to a Green Belt site to the south of Bishop's Stortford. I am sorry that you have neither understood the nature of the complaint I have made on behalf of the Bishop's Stortford Civic Federation nor answered any of the criticisms made in my letter. I shall therefore have to put the complaint to you again in terms to which I hope EHDC will now respond properly.

2. The Civic Federation is of course aware that planning officers hold pre application meetings with developers. However, it is not the fact that such meetings took place about which we are complaining, but what appears to have been discussed at those meetings, as disclosed by the material released by EHDC under the Freedom of Information Act.

3. The Government Guidance to which you have referred us, 'Positive Engagement, a Guide for Planning Councillors' includes in both the original and updated versions the following

'Do recognise the distinction between giving advice and engaging in negotiation'

'Stick to policies included in adopted plans but also pay heed to any other considerations relevant to planning'

'Keep a note of meetings and calls.'

4. The Government Guidance is addressed to Councillors. However, since you appear to be relying on it to justify the Council's conduct, we assume that its advice, where relevant, is equally applicable to officers. The Bishop's Stortford Civic Federation believe that the material disclosed under the Freedom of Information Act appears to show that a number of significant breaches of the Government Guidance have occurred. Our detailed reasoning is set out in the Annex to this letter. The Council's Code of Conduct for Officers does not appear to give any advice which is relevant to these issues.

5. The Civic Federation had asked for my previous letter to be treated as a formal complaint. You have not done so. We had suggested previously that since the Council's Monitoring Officer includes planning among his service delivery responsibilities, it might be invidious to ask him to carry out the investigation we had requested. However, since it appears from your response that no formal investigation has taken place into our complaint, we would now be obliged if you would refer my previous letter, and this letter and attachment, which now form part of our complaint, to the Council’s Monitoring Officer for investigation as to whether the Head of Planning and Building Control has been discharging his statutory responsibilities in a lawful and proportionate way and has not taken action which would bring the Council, his post or profession into disrepute.

6. Until that investigation has been completed, we believe that our previous requests about limiting contact with the scheme's promoters, recording any discussion which does take place with them, and the deployment of the officer concerned remain entirely appropriate.

7. The Civic Federation remain committed to finding a solution to the shortage of secondary school places which respects the adopted local plan and can command the support of the whole community. We can see no justification for any officer of the Council pursuing a different objective.

8. You do not say to whom you have copied your letter. I am therefore giving your letter and this reply the same circulation as my previous letter. I am, in addition, sending a copy to the Council’s Monitoring Officer so that he may be aware of this formal request that he exercises his statutory functions.

JOHN RHODES
Vice Chairman, Bishop's Stortford Civic Federation

Annex - Evidence in support of the BSCF's formal complaint  Top 

EVIDENCE IN SUPPORT OF THE CIVIC FEDERATION'S FORMAL COMPLAINT

1. The Government has published two editions of the guidance to which you have referred us, Positive Engagement, a Guide for Planning Councillors. We assume that this is the publication on which EHDC is relying rather than the title quoted in Mr Robertson’s letter and that the Council is aware that the guidance was updated in 2008. It includes in both the original and updated versions the following

'Do recognise the distinction between giving advice and engaging in negotiation'

'Stick to policies included in adopted plans but also pay heed to any other considerations relevant to planning'

'Keep a note of meetings and calls.'

As indicated in the covering letter, we assume that where relevant, this guidance is applicable to officers as well as to the Councillors to whom it is addressed. Taking each of the points highlighted above in turn, we wish to draw particular attention to the following points:

2. The Distinction between Advice and Negotiation

The following email extracts are particularly relevant:

3. Stick to Adopted Plans and other Considerations Relevant to Planning

We had hoped that it would not be necessary to emphasise to you again that the proposals about which the Head of Planning and Building Control was hoping to work jointly with the scheme sponsors involve development on the Green Belt of a kind for which there is an overwhelming presumption against development; that the site had its Green Belt status confirmed in the adopted local plan, in spite of the efforts of various parties, including EHDC, to redesignate some or all of it for some form of development; and that when the associated proposals on the vacated sites are taken into account, it would involve four major departures from the local plan. The email exchanges with the scheme promoters have plainly ignored this advice in Government guidance. Moreover, EHDC have not dealt with the question about the reliance which property purchasers can place on the local plan in these circumstances. The Council surely has a duty to uphold the plan which it has been directed to adopt.

4. Keep a Note of Meetings and Calls

The Freedom of Information Act disclosures reveal that four meetings took place between the Planning Department and the scheme promoters without any record having been made or kept of who attended or what was discussed. Here too, we would have expected the Council to have ensured that such a routine requirement of public administration was uniformly observed.

5. Conclusion

We note the suggestion that East Herts is seeking to follow Government guidance in moving away from an adversarial to a proactive approach but these examples suggest that the distinction between giving advice and entering into negotiation has not been adequately grasped. The reasons for the refusal of the previous scheme, when properly analysed, are unlikely to be overcome by a variation of the same scheme. We therefore ask whether the Council has any guidelines in place to help officers to understand the difference between advice and negotiation and to avoid the following stricture in the guidelines:

‘Do not meet developers alone or put yourself in a position where you appear to favour a person, company or group – even a 'friendly' private discussion with a developer could cause others to mistrust your impartiality.’

6. We also find it difficult to reconcile the Head of Planning and Building Control’s apparent willingness to work jointly with the scheme promoters to develop a proposal which he could support with another point in the guidance

'Be aware of what predisposition, predetermination and bias mean in your role.'

7. The Council's Code of Conduct for Officers does not appear to give any advice which is relevant to these issues. We therefore conclude that a formal investigation into the propriety of the conduct disclosed in these emails is eminently justified, not least to help officers learn from the experience so that they may have a better understanding of their statutory responsibilities in future.


26 Nov 09 - Second reply from the Legal Manager, East Herts District Council  Top 

Second Reply from East Herts District Council


After receiving the above letter of 26 November 2009 from EHDC's Legal Manager, the BSCF wrote to the Local Government Ombudsman.