Hastings & St. Leonards on-line community newspaper

The gonfalon, Standard of William the Conquereor, flying outside the Council building.

Further clampdown on accountability

Whatever happened to openness and transparency at HBC? asks Chris Hurrell of the Save Ecclesbourne Glen campaign. Changes to the Constitution of Hastings Borough Council were approved by full Council without any discussion by councillors in July 2017. These changes have removed the rights of the public to have certain planning applications considered by the Planning Committee.

These include tree works applications, ‘section 73’ applications (minor material amendments) and all applications to change conditions imposed on an approval (some of which could have originally been imposed by the Planning Committee). Other local authorities allow such applications to be considered by the Planning Committee should there be a sufficient number of objections.

The Chief Legal Officers report to full council does not explain the reason, necessity or implications of the changes. The reason for change is given as

The Council’s Constitution is the basis for the Council’s Corporate Governance.”

The changes themselves are described as

Clarification is also provided in relation to planning matters that do not need to be referred to Planning Committee.”

Muriel Matters House

Muriel Matters House

Amber Rudd, our M.P., asked Councillor Chowney why it is considered necessary to make changes to the constitution so that section 73 applications and ‘TPO’ tree works applications never go the Planning Committee. Councillor Chowney answered:

Changes to the constitution are considered by a cross-party committee of council members before they do to full council (I’m not involved with that).  In this case, they were agreed unanimously by all members when they were approved by the council.

The council updates the constitution from time to time, and any changes need to be considered in the context of the whole constitution…”

Cllr Chowney describes how changes were made but does not answer the question, he does not explain the necessity of the changes to the constitution and what they actually are.

These changes represent further restrictions on accountability and open and transparent governance and go against the recommendations of the ‘Bahcheli Report’ [Procedural Review] of 2014. They are also breaches of the Nolan Principles of Public Life, which apply to council officers as well as members, and are invoked in Part 5 of the HBC Constitution.

Additionally the changes contradict other parts of the surviving Constitution, on openness and transparency (assuming these are not just ornate flourishes, there for show).

Entrance to HBC offices

Entrance to HBC offices

Tree works applications

Last year an application for tree works at Rocklands on trees protected by a Tree Preservation Order (TPO) attracted a petition and over 50 objections. Despite this, HBC refused to allow the application to be heard by the Planning Committee. HBC claimed that their Constitution did not allow for the tree works applications to be heard by the Planning Committee and that they could only be decided by officers under delegated powers. A request by Cllr Poole to call the application in to committee was also refused.

SEG did not believe this interpretation of the Constitution to be correct and cited many examples of tree works applications that had previously been heard by the Planning Committee. Many other local authorities allow such applications to be heard by the Planning Committee.

The tree works application was approved by delegated powers by officers behind closed doors. Rocklands now have permission for further reduction of screening of the caravan site.

SEG believe that the Constitution was misinterpreted in order to prevent the Rocklands application going to the Planning Committee for proper scrutiny. In doing so HBC officers removed all accountability for their actions on what was a controversial application. See the article in HOT: Delegated powers proposed for Rocklands decision

Despite denials from HBC that the Constitution was misinterpreted HBC changed the Constitution in July 2017 to explicitly state that tree works applications will never be decided by the Planning Committee.

In an interview with the Hottie in April 2016, Councillor Chowney supported the claims of his officers: Council leader responds to critics

“The tree works will be dealt with under delegated powers in accordance with the council’s Constitution,” Mr Chowney said. “Under our delegation scheme all decisions on tree works, TPOs and conservation areas are dealt with by officers.” The Constitution, he said, doesn’t allow for the Planning Committee to be involved. “We may look at that in future, as larger batches of tree works could potentially be of public interest, but we would have to change the Constitution.”

Despite Cllr Chowney’s recognition that tree works applications can be of public interest, the recent changes to the Constitution do not allow tree works to be considered by the Planning Committee. The Constitution has been changed to ensure that tree works applications will never be considered by the Planning Committee. This change means that the fate of all TPO protected trees is now to be decided behind closed doors by officers. The opinion of the HBC tree officer is the only opinion that will count.

There are many examples where ill-considered and invalid tree works applications have been approved on the nod by HBC officers. It is of great concern that the changes to the Constitution now mean that all works on trees regardless of the concerns of the public will be done without any accountability at all.

If this was not bad enough, the changes to the Constitution also prevent a large number of other applications being considered by the Planning Committee.

Section 73: Minor Material Amendments

There have been concerns about the misuse of minor material amendments (MMAs) by HBC for some time. Following the ‘Bahcheli Report’, a Planning Improvement Plan proposed changes to the use of MMAs. Unfortunately the misuse of MMAs has continued.

A MMA is intended to be used when an application is made under section 73 of the Town & Country Planning Act 1990 to vary or remove conditions associated with a planning permission. If granted, the effect is the issue of a new planning permission, sitting alongside the original permission, which remains intact and unamended.

The first retrospective Rocklands planning application was treated as an MMA. This application attracted over 450 objections and was refused by the Planning Committee against the HBC officers’ recommendation to approve. Had the revised Constitution been in place then the application would not have gone to the Planning Committee and the application would have been approved to retain the Bunker despite it being built in contravention of its approval. This is a good example of why the Planning Committee is essential as a means of keeping planning officers accountable.

There is a long history of developers misusing MMAs to obtain significant changes to previously granted permissions. There are examples where a development of 35 two-bedroom house was slowly transformed by a series of MMAs into a development of 35 four- to five-bedroom houses by the misuse of MMAs. Objectors were able to get these changes taken to the Planning Committee for consideration. Had the new Constitution been in place then the application would not have gone to the Planning Committee.
The gonfalon flying outside the Council's offices

The gonfalon flying outside the Council’s offices

Other applications to change conditions imposed on an approval

Approvals usually have a series of conditions imposed. It is common practice for applicants to seek to change conditions after approval. These conditions cover such things as approved plans, drainage, landscaping etc.

Under the new Constitution all such changes however controversial and regardless of the number of objections will be decided by delegated authority by officers.

An application that was approved by the Planning Committee will not be reconsidered by the Planning Committee should any of its conditions change.

Other changes to the Constitution

Since July 2017, the number of objections required to take an application to the Planning Committee has been increased from 3 to 5. The time an objector-petitioner has to address the committee has been reduced from 5 minutes to 3. The symmetry shows the erosion of democratic participation in how we are governed.

The Constitution has been changed to reduce the rights of the public to ask questions to the leader of the council at full council. The Chief Legal Officer may reject a question if it is about a matter which is the subject of legal proceedings, an appeal to a tribunal or government minister, an investigation by the Local Government Ombudsman or the Standards Committee, or through the Council’s Corporate Complaints Procedure. In the past SEG has asked questions of the leader at full council – these changes to the Constitution will prevent such questions being asked in the future. Any individual or group which has made a complaint to the council will now be unable to ask questions at full council – a further erosion of open transparent governance.

Close up of Muriel Matters House

Close up of Muriel Matters House

Scope for redress of proved grievances

The HBC Constitution is a strange, improvised document that will never threaten the reputations of Jefferson and Madison. It is rambling, repetitive and ungrammatical. It is confusing — perhaps deliberately so. Other local authorities do much better in offering lucidity and coherence — Cambridge City Council for instance, and Canterbury City Council.

Part 8 of the HBC Constitution discusses the various roles of Officers. Part 3b of Part 8 discusses them in relation to the Assistant Director, Housing and Built Environment, and the application of furtive ‘delegated powers’ | ‘delegation’.

The much-repeated assertion that tree works cases and the like now never go to Committee is however challengeable. Exemptions are stated in Paragraph 44 of Section E of Part 3b of Part 8:

44.  This authority is subject to the following exceptions:

a. The application has attracted five or more letters of objection from different households or businesses, or a petition as defined in Standing Orders.

. . .

d. The application relates to or affects Council owned land and the application is submitted by or on behalf of the Council, or

e. The application is submitted by, or on behalf of, a serving Member or officer of the Council where the officer is employed in a politically restricted post and/or within the Council’s planning service, or

f. The Planning Committee otherwise direct in respect of any particular application or reserved matter; or . . .

So there are many bases for cases to go to Committee for open decision.

Elsewhere however, Part 3b of Part 8, Section E, has a preamble to Paragraph 46 — a declaratory and canting statement on delegation:

For the avoidance of doubt the following applications in paragraphs 46 to 56 (inclusive) are delegated to be determined by Authorised Officers under delegated authority and unless expressly specified will not be determined by the Planning Committee unless submitted by, or on behalf of, a serving elected Member or officer of the Council where the officer is employed in a politically restricted post and/or within the Council’s planning service in accordance with paragraph 44(e) above.

But why 44 (e), when (say) 44 (f) (above) is even more wide ranging? Clearly the Planning Committee can call in a case if they think it fit. For the avoidance of doubt, the quoted paragraph immediately above is specious.

Additionally in Part 8, Section 18 of the Standard Instructions to Authorised Officers is clear about how any case could be given to elected representatives for further consideration:

18.  The Authorised Officers acting under these Instructions are not obliged to exercise the powers delegated to them under these Instructions and may, whenever they deem it appropriate, consult the relevant Lead member or refer the matter to the Cabinet for decision.

For once the clarity is commendable.

Paragraph 2 of the Planning Protocol (the Appendix to Part 5) is also relevant:

. . . This Protocol seeks to ensure openness, transparency, fairness and consistency in planning decisions and to ensure that the planning process operates properly, legally and effectively. Planning decisions should be made openly, impartially, with sound judgement and for justifiable reasons. The process should leave no grounds for suggesting that a decision has been partial, biased or not well-founded in anyway.

So what is the Council to do about the widespread discontent about the functioning of the planning system and its decision making?

Despite the chaos of the HBC document and the recent changes, there are still some grounds for hope. The exemptions and exceptions are there and can be invoked. Additionally our elected representatives could bring in improvements rather than accept disimprovements. It is untrue that the Constitution does not allow for Members to decide such matters. Local democracy can still happen, if it is sought.

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Posted 18:25 Wednesday, Sep 13, 2017 In: Home Ground


Please read our comment guidelines before posting on HOT

  1. Ms.Doubtfire

    Mr. Lewcock misses a point here: why would our elected Members show much interest in any planning applications now? The role of the Planning Committee has been downgraded to such extent that it is becoming superfluous to requirements.
    They will no longer be required to make any decisions on tree works – even though the application may affect ancient woodland.
    They will no longer be required to make any decision on Amendments to a previously approved application even though, as pointed out in this article, it could be to change approved two bedroomed homes into three of four bedroomed homes. Hardly a minor amendment.The amendments made to the Constitution will have far reaching and serious outcomes for this historic town.

    Comment by Ms.Doubtfire — Thursday, Sep 14, 2017 @ 17:36

  2. Chris Lewcock

    Well done Chris H for setting this out. Two problems exposed. Firstly, Councillors simply not paying enough attention to matters of detail in Officers’ Reports and nodding them through. Such reports are almost certainly well-intended but generated from a basis of short-term operational expediency and without the sensitivity to local circumstances which attentive Councillors should (that’s what they are elected and paid for) bring to bear. Secondly the default position of the current cabal of leading Councillors being to exclude local residents (and in many cases their fellow Councillors) from decision-making. These are two key reasons why the Grenfell Tower disaster happened.

    Comment by Chris Lewcock — Thursday, Sep 14, 2017 @ 15:08

  3. Ms.Doubtfire

    There are murmurs which seem to indicate elected Members are not aware of that which they voted for when the Constitution of Hastings council was so subtly altered. Did they really vote for a situation whereby our Planning Committee is excluded from making comment on important and contentious applications which involve the felling of trees including ancient oaks in important woodland???
    Did our elected Members agree that the residents of this town should have no say in these matters?
    Did our elected Members actually read the documents which were presented at this council meeting? Surely not.

    Comment by Ms.Doubtfire — Thursday, Sep 14, 2017 @ 08:14

  4. JJ Waller

    This is strange very strange, i have never met Mr Chowney but he comes across as strange!. I have walked these hills, how anybody could defend the tree felling and construction here is erhh strange…

    Comment by JJ Waller — Wednesday, Sep 13, 2017 @ 23:47

  5. Andy Ammo

    An excellent and devastating article. The bad management at HBC extends to the Members who allow so much to be got away with. Many people want their elected representatives to take action on their behalf, and to represent them.

    Comment by Andy Ammo — Wednesday, Sep 13, 2017 @ 20:00

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