What One Judicial Decision Can Lead To?

In one of the judicial review claims currently pending against the South Cambridgeshire council in the High Court

that related to Steeple Morden, the Fews Lane Consortium alleges that the council’s practice of taking delegation decisions on planning applications at unannounced meetings, from which the public are excluded and for which no agendas or minutes are published, is a violation of the Local Government Act 1972.

According to the act, local authorities are to take decisions at public meetings and produce written records of decisions that are open to inspection by the press and the public.

In response to that claim, officers submitted a proposal to the council’s planning committee to correct the legal defect in the council’s delegation scheme for planning decisions. This would mean future planning decisions would not be subject to being challenged on grounds of illegality.

On February 12, the council’s planning committee voted 5-4 to approve the proposal, which removed all powers to call-in planning applications from elected councillors and parish councils and instead transferred those powers to the council’s joint director of planning.

On February 17, officers uploaded an amended version of the council’s constitution onto the council’s website that incorporated the changes proposed by the council’s planning committee despite those changes never having been approved by the full council itself.

Documents provided by the Fews Lane Consortium cite the provisions regarding local authority constitutions contained in Part 1A of the Local Government Act 2000 and in particular section 9R(6) of the act, which expressly prohibits councils from delegating the passing of resolutions in relation to councils’ constitutions to their committees, sub-committees, or officers.

Daniel Fulton, who is leading the Consortium’s litigation efforts, stated that “not only did the council not delegate the authority to change its constitution to its planning committee, but it was prohibited from doing so by section 9R(6) of the statute.”

“It is deeply regrettable that the Consortium has been forced to issue further legal proceedings against the council in this case. Just last week, we wrote to the members of the council’s cabinet explaining that the Consortium would greatly prefer to sit down and find a collaborative and cooperative way to address our concerns about the problems in the council’s planning service without the need for further legal proceedings. However, no response was received.

“As long as the council’s leadership continues to refuse to engage in any kind of meaningful or constructive dialogue, we will have no choice but to continue to hold the council accountable for the illegality of its decisions through the judicial process”.

Now let us look locally at the WLBC case 2019/1182/ARM, which is Phase 2 of Yew Tree Farm for over 250 houses and it is due to be decided on the 22nd May. Drainage was a reserved matter and it was called in by Burscough Borough Councillor Cynthia Dereli because of the widespread flooding problems in Burscough. This development is the largest single application for homes in Burscough ever.

Because it was called in, WLBC hived of drainage conditions 26 and 30 into 2020/0293/CON and hasn’t linked it to 2019/1182/ARM and won’t let it be called in. When it was recently found, in case 2020/0293/CON, the only evidence it contained was from the developer LCC, UU and WLBC no objections to 2019/1182/ARM on drainage/flooding grounds were included. WLBC have stated that they provided that evidence to themselves, UU and LCC, and if they agree the development won’t cause flooding then conditions 26 and 30 will be approved.

Burscough Flooding Group and Burscough Town Council (BTC) having previously objected to 2019/1182/ARM on flooding/drainage grounds, then on finding their objections weren’t linked in to 2020/0293/CON asked that they be considered and WLBC said that they will be sent to LCC and UU for them to consider.

However, it is in the financial/political interests of WLBC to approve the application because it supports a key part of their local plan and generates new housing revenue. It is impossible for UU to refuse a connection without breaking the law and it is financial disadvantageous for them to record all of the additional flooding problems which have been provided to it by BFG, because it would result in £20M+ expenditure on expanding their network capacity.

It is impossible for LCC to advise against a connection to their drainage system without it being financial disadvantageous, because it would result in additional expenditure in restoring and increasing their surface water drainage network and taking action against riparian owners who neglect their systems.

The largest and most comprehensive source of flooding evidence available is that provided by BFG collected from residents over several years. It shows much more frequent levels of flooding than that recorded by UU, LCC and WLBC. Virtually the only evidence against the development is BFG’s data and it, along with some professional flooding reports mislaid or lost by WLBC, form the basis of BFGs comments on all applications with flooding/drainage problems, as does BTC’s objections to planning applications on flooding/drainage grounds.

UU and WLBC publicly stated that it would not accept BFG’s data (Public Meeting with WLBC, LCC and UU Chaired by UU on the 5th June at Briars Hall Hotel). LCC would not accept evidence from BFG in its S19 report on the Boxing day 2015 floods and publicly stated it in a LCC Council meeting in 2016. That S19 report paints a false picture of few flood problems mostly resolved, when the opposite was the experience of residents. LCC has worked with BFG since and has praised our work but has never included our evidence into its records.

UU, LCC and WLBC will determine whether 2020/0293/CON is approved. They will decide what weight to give residents evidence, yet they have predetermined themselves not to consider BFG data and therefore the vast majority of the information available and provided by BFG and BTC also.
In 2015 Rosie Cooper MP stated “We can’t afford to ignore flooding threats until it is too late. We must hold each of the agencies to account”. Five years on and our supposed democratic rights to be represented by elected members have evaporated into the powers of officers. No agency has been held to account. And after Thursday this coming week they never will. Whoops, there ARE the Royal Courts of Justice, just ask the Fews Lane Consortium!

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