Tesco at Little Lever. Planning Consent is Invalid

I have sent a Formal Complaint of Maladministration against Bolton Council to the Borough Solicitor and Monitoring Officer, Mrs Helen Gorman for her consideration.

I reproduce that e-mail below.

From: Kathy Richardson [mailto:kathy.maddox@ntlworld.com]
Sent: 28 February 2013 19:20
To: Gorman, Helen
Cc: Harriss Sean
Subject: Formal Complaint of Maladminstration against Bolton Council

FORMAL COMPLAINT OF MALADMINISTRATION AGAINST BOLTON COUNCIL

Mrs H Gorman

Borough Solicitor and Monitoring Officer.                                        28^th February 2013

Dear Mrs Gorman,

I address this complaint to you, as I am required, for your investigation, consideration and response. If at the end of this I am not satisfied with that response I then would propose to forward the complaint to the Local Government Ombudsman for his consideration.

I must stress that the complaint is not made against any individual who might be named in this document since I am not privy to who may have made the decisions to take the actions I complain about.

A - Substance of the Complaint. – Background.

1) This complaint relates to the processing by Bolton Council Planning Department of the Planning Application 86999/11 for the erection of a Supermarket at the former Bradley Mill at Little Lever.

2) Article 12 of the Town & Country Planning (Development Management) Procedure Order 2010 imposes a requirement that all applications for planning permission must be accompanied by a certificate confirming that either the applicant is the sole owner of the land to which the application relates or that the appropriate notice has been served on any person who is an owner of the land or a tenant.

Section 65(5) of the Town & Country Planning Act 1990 says that a local planning authority shall not “entertain” any application for planning permission where these requirements have not been satisfied.

3) Application 86999/11 was submitted to Bolton Council on 7^th October 2011.

Certificate B within the Application certified that the requisite notice had been given to the owners of the land involved in the Application and identified those owners as being

a)      Mark and Linda Seddon

b)      Bolton Council Estates Division.

4) On 23^rd January 2012 An e-mail was sent from Paul Richardson to Alex Allen pointing out that the Land Registry Register relied on by the Applicant for Bradley Mill was out of date and that the up to date Register recorded a charge against that land in the name of Mr Wayne Seddon. This e-mail also informed Mr Allen that only one half of Crossley St (which formed part of the land involved in the Application) was owned by Bolton Council, the other half being held on lease by Bolton at Home.

5) On 30^th January 2012, Mr Allen e-mailed  Mr Stephen Harris of EPP Planning (Agent for the Applicant) asking for clarification of land ownership in light of the above and stressing that Certificate B was a legal requirement and needed to be accurate.

6) On 2^nd February Mr Harris wrote to Mr Allen informing him that Addition Notices under Article 11 had been issued to Mr Wayne Seddon, Bolton at Home and Mr & Mrs Walsh leaseholders of  No 15 Ainsworth Rd (immediately adjacent to the northern half of Crossley St). These notices are dated 2^nd February 2012.

7) This document from Mr Harris was posted on the Planning Website under the date ‘1st January 1900’

8) The Planning Application was then progressed through to Committee in May 2012. It was delegated to the Director and final consent was given in August 2012.

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B - Conclusions to be drawn from the above.

1)      Certificate B dated 7^th October 2011 was incomplete/inaccurate.

2)      This was recognized by Mr Allen between the 23^rd January and 30^th 2012. He also recognized that it was a legal requirement that it should be complete/accurate.

3)      This was also tacitly acknowledged by Mr Harris in his issuing of ‘Additional Notices’ on 2^nd February.

4)      Posting Mr Harris’s letter of 2^nd February under the date 1^st January 1900 ensured that the document appeared on the website before the original application. (A cynic might say – hiding it in full view)

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C- Planning Guidance as to procedures to be followed where Certificate B is found to be inaccurate/incomplete.

(No such guidance appears to be available from the Bolton Council Website but I quote the following documentation from North Somerset Council)

‘North Somerset Council Development Management Advice Note dated May 2011’

Legal Position

Article 12 of the Town & Country Planning (Development Management) Procedure Order 2010 imposes a requirement that all applications for planning permission must be accompanied by a certificate confirming that either the applicant is the sole owner of the land to which the application relates or that the appropriate notice has been served on any person who is an owner of the land or a tenant.

Section 65(5) of the Town & Country Planning Act 1990 says that a local planning authority shall not “entertain” any application for planning permission where these requirements have not been satisfied.

Implications of incorrect certificate

Accordingly, if a certificate is inaccurate as a matter of fact, we (North Somerset)will not deal with the application any further. We will cease work on it and cannot lawfully determine it one way or the other. If a local planning authority either ignores a defect in an Article 12 certificate or is unaware of this and proceeds to determine an application and grant planning permission, then any permission granted will be invalid and there would be a real risk that the High Court would quash the permission if any person aggrieved by the grant of the permission brought judicial review proceedings.

What happens if an incorrect certificate is submitted?

If an incorrect ownership is submitted, this cannot be remedied by simply replacing it with a replacement certificate completed at a subsequent date before the application is determined. This is because planning law requires that where any person other than the applicant is the owner of the land then notice has to be give before the making of the application.

Unless the notice has been given before the date when the application is submitted, an applicant could not truthfully or accurately complete an alternative certificate. Therefore, the only way of remedying the situation will be to withdraw the current application and re-submit it after serving of the notice with a new ownership certificate correctly completed. Even if all the actual owners are aware of and support the proposed application, an inaccurate certificate could still enable any third party aggrieved by the grant of planning permission to apply for judicial review to quash the permission if they wished. If the Council becomes aware of a defect in the certificate before the application is determined we will be unable to make a decision on it.

How to avoid problems

To prevent delay and expense for applicants and the Council, it is essential that all applicants (or their agents) explore the issue of ownership fully and, where possible, check the ownership position by obtaining Land Registry records. They should then serve any necessary notices before completing the certificate and submitting the application.

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D – What should have happened.

Between 23^rd January 2012 and 30^th January 2012 and upon realizing and accepting that the Certificate B of 7^th October 2011 was incomplete/inaccurate, Mr Allen should have advised the Applicant or his Agent that as a consequence of this, Bolton Council could no longer lawfully determine the Application one way or the other. He should have further advised the Applicant/Agent that the deficiency in the Certificate could not be rectified by serving ‘ Additional Notices’ since all notices had to be served before the Application was made (ie before 7^th October 2011).

Mr Allen should have advised the Applicant/ Agent that the only way forward was to scrap 86999/11 and submit a new Application after serving new notices on all the owners.

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E – Conclusion

In failing to advise the Applicant/Agent as above and in allowing the Application to progress

Bolton Council have failed to follow procedures or the law and are thus guilty of maladministration.

Furthermore the granting of Planning Consent to Application 86999//11 was and is unlawful.

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I respectfully submit the above complaint to you and understand that a reasonably period for your consideration is twelve weeks from the date of the complaint.

I attach all necessary e-mails/documents et al referred to above.

Should you require any further clarification from myself, I would be only too willing to assist.

Yours sincerely

Paul Richardson

24 Ripon Close

Little Lever

BL3 1EQ