Stage II Response From CCC.
Further to our formal complaint to Chelmsford City Council, we have now received the Stage II Response from the Chief Executive Nick Eveleigh.
For ease of reading we have included the text of our original complaint in bold. You can read the full complaint here.
A. Failed to act in an open and transparent manner.
i) Did not notify residents of changes of position to allow worship. In a letter to residents and interested parties dated 23.09.20 the council state : “We will update residents as to the timeframe for the submission of this application, and any other significant developments in this case”
i). The number of people attending Friday prayers or very occasional large‐scale events, such as Eid or Ramadan, is not the determining issue when considering whether planning permission is required.
The lawful use of the building allows for events/hires to take place. If the events/hires are lawful in planning terms, then a high number of people attending does not make the use unlawful. In any case, it is most unlikely that 500‐800 people would attend the building for Friday prayers.
We have previously set out those occasions on which our Enforcement Team have provided updates to complainants who previously contacted us in this matter. We will continue to inform them of any significant developments in the case.
The premises hold a premises licence under the Licensing Act 2003. In common with many licences there are no capacity limits on the premises licence. The premises licence holder would normally carry out a fire risk assessment to determine the maximum number of attendees that can be accommodated in the premises safely.
ii) Issued confusing and incorrect information in the response to residents dated 23.09.20. The council are now claiming that this letter refers to plans submitted by the CMS in June 2020, and not the documented planning breach.
ii). The most recent information provided by Chelmsford Muslim Society (CMS), namely the details of the current hirers/users of the building, set out that there was only limited religious related use of the premises. This information was passed on to Save the Hamptons (STH) in an email from Town Planning Services dated 24 November 2020.
iii) Did not notify residents of the full results of the enforcement investigation in July/August 2020.
iii). A report setting out our initial findings in this case was produced on 12 June 2020. The Council does not usually circulate copies of its report to complainants, although any further correspondence is of course informed by the report’s findings.
However, a copy of the report is attached (read it here). Like many local planning authorities, we do not display details and documents relating to planning enforcement investigations on our Public Access service. These documents do not form a part of the statutory planning register and they relate to alleged, and as such unproven, breaches of planning control. The findings of these investigations often contain personal data, which the Council also has a duty to protect.
iv) Have not issued any public statements explaining the ongoing situation despite considerable public interest.
Not answered in Stage II
v) Have withheld documents requested under the Freedom Of Information Act.
Not answered in Stage II
vi) Responses from Town Planning are now unsigned. Residents have a right to know who they are dealing with !
vi. The Council always tries to communicate with residents in a clear, concise, easy‐to‐read way, avoiding overly technical terms or jargon.
However, some of our correspondents expect more detailed responses. This has increasingly been the case with correspondence received from STH. In these instances, we adapt our responses to address the technical and legal queries that are posed, which may involve using more technical terms.
The Council has a legal duty to apply S.55(1) and S.171A(1) of the Town and Country Planning Act 1990. It must determine whether what has happened to date, in fact and law, is 'development' under the Act ‐ 'a material change of use'. Carrying out development without the required planning permission is a 'breach of planning control' and planning enforcement may be justified.
For details of the Council's approach, please see the Development Management Enforcement Plan (2020). It is the case that sometimes (as in this instance) the issue is not straightforward. Both the overall character of the building / land's use and the effect of the activity happening there on the neighbours' amenity are relevant. The Act does not define what is 'material', but there is relevant case law.
The Council must consider the facts relating to the centre as a whole and all of the activities taking place within it. It is the view of the planning professionals, using the information available and with the benefit of legal advice, that the very limited worship and teaching activity which is taking place has not caused a 'material change of use' of the community facility building.
The Council's considered view was set out in an email to STH on 24th November 2020.
vii) Responses from Town Planning now largely consist of sections copied and pasted from the briefing statement prepared by Legal Services and Connected Chelmsford.
vii. Please see the above. The premises must be considered as a whole. They are being used for a mix of community purposes: See B(i) below. This mixed use does not fall neatly into a defined 'Use Class'.
viii) Made significant decisions behind closed doors that will affect the residential amenity, without public consultation of any kind.
Not answered in Stage II
ix) Sought to gag councillors and prevent them from responding to residents concerns, and issued a briefing statement for them to use. Thus denying them the right to exercise their own independent judgement, and to take decisions for good and substantial reasons by attaching appropriate weight to all relevant considerations including, where appropriate, public opinion and the views of political groups.
ix). It is important to distinguish between the investigation and analysis of a factual situation, the conclusions reached and then, if a breach of control is detected, the action taken.
It is only if proposed increased worship and teaching becomes the subject of an application for planning permission that Councillors could be involved in decision taking ‐ were it to come before the Committee.
At the present time there has been no application and the view of the responsible planning professionals is that planning permission is not required (for reasons explained above). The advice was given to Councillors on 5 November 2020 to avoid misunderstanding and inaccuracy. It followed details received by the Council from CMS in late October 2020 which were the subject of professional assessment: see email from officers on 24 November 2020.
Under the Council’s constitution, there remains, at present, no matters for Members to determine.
x) The CEO in particular has publicly stated that “There is no formal role for Councillors as regards this site or indeed in the vast majority of planning issues” This clearly conflicts with the 1997 Nolan Committee report which concluded “It is essential for the proper operation of the planning system that local concerns are adequately ventilated. The most effective and suitable way that this can be done is through the local elected representatives”.
x). It is certainly not my intention to intimidate complainants or control the narrative. The e‐mail of 10 November 2020 sets out the constitutional position: 'formal role' should be understood to refer to formal decision making as at the present time. Councillors do not decide whether there could be or has been 'a breach of planning control'. That is a matter for professional planning and legal consideration. Should a proposal for increased religious activity come before the Planning Committee in the future, as an application for planning permission, then, of course, Councillors would be the decision‐makers.
B. Failed to properly apply due planning process as per the Town and Country Planning Act 1990 and Localism Act 2011.
i) Made an informal ruling that a materially and substantial change of use is lawful and permissible. No formal application for a change of use under the Town and Country Planning Act 1990 has been submitted or granted.
i. (See section Av of the Council’s response to the Stage 1 complaint.) It remains the Council’s view that the lawful use of the building is a sui generis mixed use, namely a community use for sports/recreation/leisure and social activities.
The planning application to which the report refers (11/01814/FUL) was for a variation of conditions 6 and 14 of the original planning permission to amend the design and the location of the refuse/recycling storage and the car parking arrangements. The reference to D2 assembly and leisure use was because that was the nearest use within the Essex County Council Parking Standards against which to assess the likely parking requirements arising from the development. These standards are used as a guide. It is not an acknowledgement that the Council considered the use to fall neatly within the D2 use class.
ii) The above will not stand the test of a Judicial Review.
Not answered in Stage II
iii) No Certificate of Lawful Existing Use or Development has been applied for or granted under the Town and Country Planning Act 1990: Section 191 as amended by section 10 of the Planning and Compensation Act 1991
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iv) The above will not stand the test of a Judicial Review.
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v) Failed to fully consider the impact on the residential amenity, highway safety and traffic generation on local roads.
v). The Council has given the view that use of the main hall for an act of public worship for a short period during one day of the week and the use of a room for one morning a week for religious teaching is not so material to require a specific grant of planning permission for worship use. More intensive regular use of the building for religious use would be likely to need planning permission. The adequacy of parking arrangements would be a matter for consideration as and when such an application is submitted.
vi) Acted in a manner which could expose the council to legal action.
vi). The Council has no further response to add.
C. Failed to act impartially:
i) CMS have been assisted a member of the planning committee inappropriately, since there has been no formal submission of a planning application for a change of use under the TCPA 1990. It is clearly against LGA guidelines for a councillor to offer material planning advice without the assistance and guidance of a member of the Town Planning department. Any meetings, emails or telephone calls should be documented. As an experienced member of the Planning Committee, this councillor is well aware of these restrictions.
i). The LGA advice on Probity in Planning refers to decision‐taking on applications for planning permission. Currently, there is no application. The Council has sought to respond accurately and impartially to requests for information and advice from both concerned local residents (including STH) and from CMS as owners of the Centre.
ii) Cllrs Sosin J and Wright are the chair and vice chair of the Planning Committee. Their involvement in the ongoing discussions of the situation are inappropriate, and would result to predetermination and bias should any formal application be submitted by the CMS
Not answered in Stage II
iii) By failing to attempt to mediate or help resolve the ongoing issues, have acted merely to protect the council’s legal position instead of acting on the genuine concerns of residents.
iii. It is not correct that the Council has failed 'to attempt to mediate or help to resolve the ongoing issues' and it is wrong to assert that 'the Council have acted merely to protect the Council's legal position instead of acting on the concerns of residents.'
The Council, through both its Members and its Officers must act in accordance with the relevant law and it must be even‐handed. The concerns of residents have been understood and the factual position regarding the uses made of the Hamptons Centre since its purchase by CMS has been investigated. The outcome of that investigation is referred to above. It is emphasised below that the investigation is not closed.
The position may change after the present 'lockdown'. If it does, the matter will be reconsidered. There is no ‘coordinated response against STH and other local residents who have spoken out'. There has been an effort made to ensure consistency in the Council's position given the conclusion reached, after careful professional consideration of the information provided by CMS in late October 2020. That is to all parties' benefit.
It is not understood how the provisions of the Regulation of Investigatory Powers Act 2000 bear on the situation nor how the Human Rights Act 1998 / Article 8 of the ECHR are engaged. Full details in this regard can be forwarded to Lorraine Browne for further consideration and a response will be provided.
iv) By making questionable informal decisions behind closed doors, without full public consultation and by failing to be open and transparent, have acted in a manner that reasonable person would consider to be biased and impartial.
Not answered in Stage II
D. Failed to enforce a documented planning breach:
i) The breach reported by a number of residents regarding the use for Friday Prayers that started on July 31st 2020 is still live and unresolved. No formal application for planning permission or CLEUD has been submitted or granted. The breach has not been resolved by the informal decision that the council has made.
i). The Council’s position in relation to the planning enforcement case remains as set out in the Stage 1 response and the matter remains open. As already set out, if further reports of increased activity are received in future, the Council will investigate these.
ii) Planning Enforcements email to residents dated 23/9/20 referred to 'regularising the situation' which indicates the council’s view was that the use investigated did in fact amount to a planning breach.
Not answered in Stage II
E . By virtue of all of the above have failed to act in a manner that inspires public confidence.
As has been stressed above, the Council, through both its Councillors and its officers must, of course, act according to the relevant law and with impartiality and openness so as to inspire public confidence.
What has happened in this case is that the understandable concerns of local residents, as articulated by STH and others, have been addressed by the Council in its role as local planning authority. The sale of the Hamptons Sports and Leisure Centre to CMS is a private property matter, over which the Council has no control. The mix of community use of the Centre was lawful according to planning law prior to the sale.
The issue which the Council has addressed, on representations from STH (and others) and also from CMS is whether the introduction of Islamic worship and associated activity would involve 'development' and therefore require planning permission. There was initially (in Summer of 2020) a proposal by CMS which would have involved a significant degree of worship and religious teaching. Advice was given that planning permission would be required for this. However, that proposal has not been taken forward.
In late October 2020 CMS set out in writing the extent of the (then) use for worship of the main hall on Fridays only (1‐1.5 hours) and of a room on Saturday mornings for hosting a youth group. That limited use is not judged by the Council to materially change the overall mixed community use of the Centre. Accordingly, planning permission was not required at that time or now. CMS was informed on 5 November 2020. The above was communicated to STH in the response on 10 November 2020.
The Council has sought throughout to address the planning / legal issues in a proper manner. It has engaged with the parties impartially. It has been open in its investigation of the matter, the information obtained, and the conclusions reached.
OUR CONCLUSIONS
It comes as no surprise to us, that this Stage II response is as unhelpful and biased as the Stage I response. It is worth pointing out that the two responses are both from major protagonists in this case, so we did have low expectations.
Once again the council have denied any wrongdoing, and claim to have acted impartially and lawfully: we do not agree. The whole tone of the letter indicates a degree of contempt for anyone daring to challenge the council’s authority.
It is important to note that in the two responses, there is no note of apology or admission of any kind of liability or wrongdoing.
We have significant evidence to reinforce and prove many of the points of our complaint, which we will now be referring to the Local Government Ombudsman.