Tesco at Little Lever - Reply to my complaint from Bolton Council

Following my Complaint of maladministration by Bolton Council in the matter of the Tesco Application for Pennine Pets (86999/11), I have received the following response from Tim Hill, Chief Planning Officer.

This was by letter which I have transcribed.

Dear Sir,

Further to your letter dated 28 February 2013 addressed to Helen Gorman you raised a number of concerns regarding the determination of planning application 86999/11. These are as follows:

1)      Planning permission relating to the above development is unlawful because the Certificate of Ownership submitted with the original planning application was inaccurate as a number of people who should have been served notice were not and (according to advice published by North Somerset) the application should have been withdrawn to enable a fresh application with a correct Certificate of Ownership to be submitted. You consider the Council was not able lawfully to entertain and thus determine the original application.

2)      That the letter from Mr Harris dated 02/02/2012 was published on the Council’s website under the date of 01/01/1900 which you think was misleading.

I would comment as follows:

In relation to the validity of the Certificate of Ownership and the lawfulness of the current planning permission (Ref: 86999/11), this is a matter which is ultimately for the Court through the established process of judicial review.

You correctly detail the timetable of events for application 86999/11 whereby you informed Mr Allen (the case officer) that the Certificate of Ownership was inaccurate on 23/01/12. Mr AAllen informed the planning agent for the application on 30/01/12. Subsequently the planning agent provided an updated list of persons who had been served notice within their letter of 02/02/12. The application was subsequently considered by Planning Commmittee members in May 2012 who delegated final approval to the Director of Development and Regeneration pending the signing of a s.106 agreement. The final decision is dated 17/08/12.

I note therefore that the time period within which an application for judicial review could and should have been submitted has now expired. However, my view is that in any even the Council has not failed to follow procedures or the law and the granting of planning consent was not unlawful.

There is no express or implicit requirement in the TCPA 1990 to the effect that the notice must pre-date the submission of the planning application and nor is such a requirement to be found expressly or impliedly in the articles of the relevant order. Article 11 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 does not fix the date when the notice must be given; it simply fixes the relevant date for ascertaining whether someone is an owner of the land for the purpose of determining who needs to be given notice.

The Court has recently held (in the case of R(on the application of O’Brien) v West Lancashire BC (2012) that, if the Act or the Order had intended to make it clear that the notification had to take place before the application was issued, it would done so. There was no express requirement to that effect nor could one be implied. In that case the Court’s attention was drawn to the guidance published by North Somerset Council but the Court attached no weight to this. This is only guidance used by North Somerset Council – it is not a determination of the law.

The reason for the certification requirement is to enable the applicant to confirm to the planning authority that the notification requirements have been complied with; it is not a document which is intended or required to be publicly displayed or relied upon by the public at large.

In relation to your other concern, you infer that is was the Council’s desire to this information ‘in plain sight’ as it was dated 01/01/1900 on the application file contained on Bolton Council’s website. In fact, this was a simple oversight. The information was scanned in accordance with our normal practice, but it would appear that no scanning date was recorded for the document and therefore a default date of 01/01/1900 was allocated by our system to the document which is ( as you have found) published on the website and clearly referenced ‘Additional Notice under Article 11’. I have asked my technical support team to amend the date to reflect the actual position and thank you for drawing this oversight to my attention.

For the reasons set out above, I do not propose to take any further action on this matter.

I trust this clarifies the matter but if you are not satisfied with my decision you may appeal in writing to the Chief Executive of the Council within 28 days of the date of this letter at: Chief Executive, Bolton Council, Town Hall, Victoria Square, Bolton, BL1 1RU. Please quote reference DER0679272 in any correspondence.

Yours sincerely

Tim Hill

Chief Housing and Planning Officer.

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.

…………………………………………………………………………………………….

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)

………………………………………………………………………………………………

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.

………………………………………………………………………………………………..

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.

…………………………………………………………………………………………………..

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.

………………………………………………………………………………………………….

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

Tesco at Little Lever. Trees at Crossley St under threat?

In order to widen the Access to the Supermarket at Crossley St, Bolton Council have agreed to sell the 'Tree Plot' to the developer. Widening Crossley St, the provision of the mandatory turning head and the as yet unspecified but obviously necessary signage necessarily puts the trees on this plot at risk.

These are not scrubby shrubs as can be seen from the pictures, but mature trees which have had Tree Protection Orders placed on them specifically to prevent development.

I thus submitted a FOI request to Bolton Council in order to discover what the current state of play is.

The FOI request and response so far is as follows:-

From: Paul Richardson 5 July 2012

Dear Bolton Metropolitan Borough Council,

This is a request made under the Freedom of Information Act. As
usual it is precisely worded.

This request is to do with the disposal by Bolton Council of land
at Crossley St Little Lever.

This is the land referred to in the Report to the Executive Member
for Strategy and External Relations dated the 28th March 2012 and
titled ‘ Monitoring of Executive Member Decisions’.

The report states that ‘ …the disposal of the site is currently
being advertised in accordance with Sec123(2A) of the Local
Government Act 1972.’

1) Could you provide me with a copy (in whatever form) of the
advertisement referred to and the names of the newspapers and
journals where it appeared and the dates upon which it appeared.

2) Could you provide me with details of any representations or
objections received as a consequence of the advertisement.

3) Could you provide me with the details of the terms of disposal
of this land to show that maximum benefit has been achieved for the
ratepayers of the Borough.

4) Could you provide me with the current status of the Tree
Preservation Orders which apply to trees on that land.

5) Should those TPO’s have been removed, could you provide me with
details of when, on whose authority and by what process this was
carried out.

6) Should it be the case that the disposal of the land has already
been completed and the TPO’s are still extant, since the TPO’s were
placed on the trees in order to prevent development , an appeal
against that decision would have to be lodged in order for the
TPO’s to be rescinded. Could you provide me with details of any
such appeal if it exists.

(I refer you to your reply to my FOI request Ref RFI 600 dated 24th
March 2011)

Yours faithfully,

Paul Richardson
………………………………………………………………………………………………

Response received from Bolton Council

Dear Mr Richardson,

Request for information under the Freedom of Information Act 2000

In response to your request for information, we have contacted the
relevant department and Bolton Council is happy to supply the following
information.

You requested:

Information relating to the disposal by Bolton Council of land at Crossley
St Little Lever:

1.     Copy of the advertisement referred to and the names of the
newspapers and journals where it appeared and the dates upon which it
appeared.

The Notices were placed in the Bolton Evening News under the Public
Notices section on 29^th February and 7^th March 2012. Copies of the
Notices are attached.

2.     Could you provide me with details of any representations or
objections received as a consequence of the advertisement.

No objections to the intended disposal were received as a consequence of
the Notices.

3.     Could you provide me with the details of the terms of disposal of
this land to show that maximum benefit has been achieved for the
ratepayers of the Borough

Bolton Council has considered this part of your request and feels that the
information you requested is exempt from disclosure under the Freedom of
Information Act 2000 (“the Act”).  Section 17 of the Act provides that
when refusing a request, Bolton Council must provide a notice which (a)
states that fact, (b) specifies the exemption in question, and (c) states
(if that would not otherwise be apparent) why the exemption applies.

In this case, we consider that the exemption under section 43(2) of the
Act applies.  Section 43(2) provides an exemption where the disclosure of
the information under the Act would, or would be likely to, prejudice the
commercial interests of any person (including the public authority holding
it).

As the disposal has not yet been completed, we consider that to release
this information would prejudice Bolton Council’s commercial interests,
therefore making the application of section 43(2) appropriate in this
case.

In accordance with the Act, this email constitutes a refusal notice for
this part of your request.

4.     Could you provide me with the current status of the Tree
Preservation Orders which apply to trees on that land

There is a Tree Preservation Order on  Lever Street/Ainsworth Road, Little
Lever, which relates to the land on Crossley Street. The Tree Preservation
Order was confirmed 8th May 2009. The reference number is TPO 2009 DC
23.882.

5.     Should those TPO’s have been removed, could you provide me with
details of when, on whose authority and by what process this was carried
out.

The Tree Preservation Order relating to the land on Crossley Street,
Little lever is still in force.

6.     Should it be the case that the disposal of the land has already
been completed and the TPO’s are still extant, since the TPO’s were placed
on the trees in order to prevent development , an appeal against that
decision would have to be lodged in order for the TPO’s to be rescinded.
Could you provide me with details of any such appeal if it exists.

There were no objections to the Tree Preservation Order received and no
applications have been made to fell or prune the trees.

………………………………………………………………………………………

I have since requested a copy of the TPO

From: Paul Richardson  18 July 2012

Dear Bolton Metropolitan Borough Council,

Thank you for your prompt reply.

To finalise this FOI request could you please in addition to your
reply kindly provide me with a copy of the Tree Preservation Order
you identify relating to this land. ie . The Tree Preservation
Order confirmed 8th May 2009. The reference number is TPO 2009 DC
23.882.

Yours faithfully,

Paul Richardson

Tesco at Little Lever - Public Meeting - Intimidation -2

Following on from the letter in the Bolton News, I have indeed written to the Bolton Council Borough Solicitor and Monitoring Officer.

This is Mrs Helen Gorman who, in her capacity as Monitoring Officer maintains the standards of conduct of Councillors, Officers and anybody else in their relationships with the Council.

I have asked her to investigate the remarks made by Councillor Mrs Connell to ascertain the truth  of the allegation and find out who felt intimidated and by whom.

I obviously will not post the text of my letter, but I did point out the limited number and categories of people who might be guilty of the alleged intimidation.

Whoever they might be, there are necessarily consequences.

Since Mrs Gorman is not Mr Eastwood, I am hopeful that she will get to the bottom of this and make public the truth of her findings.

I am assured of a response within fourteen days.

Tesco at Little Lever - Public Meeting - Intimidation?

 

 

Public meeting: Who was intimidated and by whom?

Thursday 28th June 2012

 

Might I compliment your reporter Charlotte Dobson on her article last week covering matters discussed at the Little Lever and Darcy Lever Area Forum. Incisive and to the point and yet, with the addition of Mr Magee’s statement, balanced.

There was one episode during this meeting, as yet unreported, which gave me cause for serious concern.

Following my statement to the forum that I had been reliably informed that the public meeting had not taken place in the form requested because Tesco had refused to attend, the chairman stated that this was incorrect.

She further stated that the meeting had not taken place because “some people felt intimidated”.

When asked to clarify who had felt intimidated and by whom, she refused to elaborate.

This is a serious allegation which cannot be allowed to pass.

Relations and communications between electors and elected in whatever place, must be conducted in a civilised and temperate manner. Equally, councillors must be free to conduct their business on our behalf without any hint of undue pressure or intimidation from whatever source.

This does not preclude legitimate challenges to or the holding to account of councillors by their electors, provided it is done in an appropriate and acceptable way.

Since I am 100 per cent confident that all of the people who wanted the public meeting have conducted themselves properly, I am at a loss to think who could have been doing the intimidating.

I am therefore proposing to write to the new Monitoring Officer of the council to ask for an investigation to get to the bottom of this allegation.

No doubt, in due course, she will report her findings either directly or through the area forum.

Paul Richardson Ripon Close Little Lever

Tesco at Little Lever - Mr Magurk's letter to the Bolton News

Councillor connections

Friday 22nd June 2012

 

I have read the article about Tesco in Little Lever, and the letter by Paul Richardson and both are right on the button.

However, what amazes me is nobody has connected the fact that the chairman of the forum, Cllr Maureen Connell, is the wife of Cllr Anthony Connell, chairman of the planning committee.
There must have been conflicts of interest.

When the store is built and the novelty factor has worn off, I just wonder how much notice the likes of both Cllrs Connell will take of the residents of Little Lever over the traffic congestion and rat runs created by their pet project, Tesco.

Or is this all part of Bolton’s plans to gridlock Bolton completely so that they can bring in congestion charging.

Desmond Magurk
Bolton

Tesco at Little Lever - My reply to Simon Pearce

Supermarket application was railroaded through system

Wednesday 20th June 2012

 

I AM indebted to Simon Pearce for broadening out the discussion surrounding the shenanigans of the planning committee and the planning department.

Upon reflection, it is clear that from the very start the planning department was determined that the Tesco application would be approved.

From the gerrymandering of the town centre boundary through the spending of ratepayers money so transport for Greater Manchester could ensure the traffic modelling would produce the desired result — to the downright distortion of the language of planning guidelines — these people were going to get their way.

The applicants, in the meantime, had the benefit of using the same public relations firm which Bolton Council had hired to sweet-talk council house tenants into the housing stock transfer.

None of this could be guaranteed to work without the co-operation of a supine and servile planning committee, which appeared to turn a blind eye to the obvious deficiencies in the application — some of which were put before them by myself in a 50-page dossier — and meekly did their master’s bidding and handed it back to the director.

This is the director who now presides over the stalled grandiose Central Street, Church Wharf, Merchants Quarter and Westbrook Gateway projects, all of which, on the admission of the leader and the chief executive, are going nowhere anytime soon. It is understandable that he is desperate to get anything developed or regenerated.

He can, of course, point to Bolton One (or Waterplace Two as I prefer to call it) and frequently does, but this is a £31m PFI project which the ratepayers will be paying through the nose for years from now.

The lack of pivate investment in the town is sad, but understandable in the present climate, but it doesn’t justify railroading another supermarket application through the system without assessing the effects on the community and existing businesses where it is to be located.

The Tesco tail has wagged the planning department dog and then the planning department tail has wagged the planning committee dog — and it’s all wrong.

Paul Richardson
Ripon Close
Little Lever