What Essex did next

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The garden community proposals by Braintree, Colchester, Tendring (and Essex) were rejected by the inspector in June and the authorities are trying to decide what to do next.  If you are new to the North Essex Garden Communities saga, you may wish to read ‘The story so far’ in Appendix 2 below.

The inspector gave three options, and Colchester has instead proposed a 4th option. Although some reality appears to be dawning, the three Councils have not yet fully taken on board the implications of what the  inspector told them. The risk is that they will create further delay and uncertainty allowing the speculators to profit in the meantime.

Inspector’s options

Option 1the best solution.  Remove the GC’s from Section 1, the garden communities plan, leaving the strategic policies.   Allow the Section 2, short-term Plans for each district to proceed to examination while carrying out the necessary work on the strategic sites for the long term.    This is really important, particularly in Tendring and Braintree where, respectively, there is no plan in place and no five year supply.   The reason this matters is because government policy says that where there is no plan or five year supply, the “presumption in favour of sustainable development” applies.  At that point a developer free-for-all ensues because, short of an environmental protection or evidence of severe impact of some form, planning permission has to be granted.

Option 2the developer’s charter.  This allows the councils to pretend that they are still working on the garden community proposals, as evidenced by Braintree’s article in its ‘Contact’ magazine sent to all households in September (see Appendix 1).   It involves doing all the work that the inspector has requested and eventually (he suggests 2/3 years time) submit a new strategic plan.    This blocks the Section 2 plans.   It is not a continuation of work on the same three GC’s, it is an an objective assessment of alternatives in a new sustainability appraisal.

Option 3start again.    Not ideal because a lot of work has been done AND this would expose us to the higher housing number being imposed by government this autumn.

The inspector did say that the councils could suggest a 4th option.

So, what do the councils want to do?

Now it becomes quite hard to keep up.  I’ll keep this as simple as possible.

Braintree & Tendring

Braintree’s Leader, Mr Butland, and Tendring’s Leader, Mr Stock, announced last month that they will go for Option 2.    They presented this as a continuation of the same three garden community blobs.  Mr Butland told Full Council the work required will take three months.   Mr Stock cancelled Tendring’s Local Plan meeting, saying that option 2 simply represents a continuation of the plan which was voted on for submission last year.   Neither is correct, and neither Leader waited for the inspector’s response to further questions or held a debate/vote.

CAUSE’s barrister, Martin Edwards of Cornerstone Barristers, told us that that he has concerns that the officers are potentially misleading the public and that the public has every right to expect those preparing a sound plan to do so on a sound basis – as the law itself requires.  He fails to see how any decision could have been taken without receipt of a formal response by the inspector.  His full comment is below, Appendix 3,

Colchester

Colchester has taken a much more measured approach.   A second legal opinion was requested.   The August Local Plan meeting was postponed to allow everyone time to digest this and the inspector’s follow-up letter which clarified questions about the options.    It became even more apparent in this letter that option 1 is the inspector’s preferred option.

The meeting was rescheduled for September 13th and a full agenda pack[1] sent to members.    CAUSE and other groups have serious concerns about the apparent bias in the pack towards Option 2, particularly in the SWOT analysis of options.

At the meeting[2] the Conservatives, although preferring Option 1, proposed a 4th Option which they suggest is more politically acceptable and may allow north Essex to attract infrastructure investment from government.

Option 4:  the ‘keep government happy’ option

4thWay

This option was agreed.

It is good to note is the acknowledgement, at last, that the inspector requires an assessment of alternative options.    Colchester has accepted that the three blobs project is no longer.  There are a number of caveats which would stop the West Tey proposal in its tracks.  And crucially, this time there must be clear acceptance of proposals by local residents.

The inspector was abundantly clear on the level of infrastructure required to support West Tey and the other GC’s.  For example, the biggest and most challenging of all infrastructure requirements is Mass Rapid Transit.  The inspector said, “A Rapid Transit system for North Essex is an integral part of the GC proposals”…”available early on in the lifetime of the GC’s”   In addition, West Tey would need a new station, dualling of the A120 and widening of the A12.

Colchester’s councillors asked, at the meeting, for independent training on sustainability & viability, in order to provide robust challenge to officers.   They have requested sight of documents three or four weeks before meetings, instead of one week.   They have asked for interim briefings, to prevent the process steaming ahead behind closed doors between committee meetings.   Both the Conservatives and Andrea Luxford-Vaughan (Lib Dem) have asked for clarification about timescales and what a Plan B would look like if this option takes longer than anticipated and Colchester beings to see speculative applications.

CAUSE has requested early meetings with the consultant[3] appointed to carry out the new appraisals.  We are very concerned about the secrecy surrounding their appointment and the scope of their work.  The inspector stated in his letter that CAUSE must be involved.  Colchester’s Mark Cory has insisted that communities and groups like CAUSE must be involved, as have the Conservatives.

On 14th September, Braintree and Tendring issued the following statements:

BDCTDCOption4Reaction

So where does that leave us?

More questions than answers.

  1. Have Tendring and Braintree now changed their minds about their next steps?
  2. Do they accept that the inspector requires assessment of all options?
  3. Will either Leader allow members a vote?
  4. Will the inspector like Option 4?
  5. What will the councils do next and how will the public be involved?
  6. When will CAUSE be allowed to meet Land Use Consultants and when will officers allow councillors sight of information relating to LUC?
  7. When will Section 2’s proceed?
  8. How many developer appeals will we see in the meantime?
  9. Will the councils apologise us for the £4m of tax-payers’ money wasted to date?

Appendix 1

Braintree District’s Contact magazine, September 2018:

BDCMagazineSep2018

Appendix 2

The story so far

Over the past three years, Braintree, Colchester, Tendring and Essex, together with a ‘delivery vehicle’ called North Essex Garden Communities Ltd,  have prepared the North Essex Garden Communities proposal.   The proposals, which are extremely unpopular with local people, include three new towns, total  42,000 homes, built over 50+ years, in addition to the rest of the growth in our towns and villages.

The promises made by councils include: infrastructure will come first or alongside homes; the GC’s will solve the homelessness crisis and get people off the housing register; they will be ‘sustainable’, with limited impact on the countryside and there will be a huge modal shift to walking, cycling and use of a mythical, brand new north Essex mass rapid transit system.   Three locations were chosen:  Marks Tey for 24,000-homes, East Colchester for 9,000 and West of Braintree for 10,000-13,000-homes.   The councils have told us that all this will be paid for by borrowing to buy the land, preparing it and providing the infrastructure and selling it to developers.

The north Essex plan is split into two parts.   The Section 1 Plan deals with garden communities.  A Section 2 Plan has been prepared by each council for the short to medium term growth.  The Section 1 Plan was submitted for inspection last year and examined in January and May.

The inspector threw out the proposals in June, saying they are ‘unsound’, citing problems with infrastructure, employment provision, affordability, viability, justification for chosen strategy and lack of objectivity of assessment.   He asked the councils to redo the ‘sustainability appraisal’ looking at a range of alternatives for development.  He gave them some options for what to do next and that is where we are now…

Appendix 3

Advice to CAUSE by Martin Edwards, Cornerstone Barristers

“It is clear to me that the officers are potentially misleading the public and the members as to what the Inspector has recommended and leaving these councils open to further legal challenge. This may be due, in part, to a need to save face. However the public has every right to expect that those preparing the statutory development plans will do so on a sound basis – as the law itself requires. Often when a local plan inspector has decided to effectively reject a plan submitted for examination, he or she then sets out options for the way forward. Whilst not saying as such, these options are expressed in a descending order of attractiveness and practicality. Sometimes, as appears to be the case here, the order is reversed when it comes to political expediency.  On a common sense reading of the inspector’s decision letter of 8 June 2018 it is clear that he is advising that Option 1 is the best route. The language of paragraphs 149-156 (and especially paragraph 155) could not be clearer. Option 1 also has the benefit of being a legally tested and approved mechanism – see the Grand Union v Dacorum BC decision of Lindblom J.

There is a further issue. I fail to see how any decision could have been taken without the receipt of a formal response from the Inspector to the NEA’s letter of 20 July 2018. In effect, the decision by the other council’s to proceed down the Option 2 route could also have been said to be a tainted by the appearance of bias (on the basis of a closed mind and/or predetermination) and also to have disregarded a material consideration i.e. the Inspector’s views. Given that they specifically sought his views then the decision to proceed with Option 2 is also potentially irrational. Finally, any officers’ report will have to be drafted with great care and be balanced so as not to seriously mislead members and the public. In the light of unfortunate premature public announcements already made, this task will be even more difficult than normal as a result.

The Denton’s [the authorities’ lawyer] letter to Michael Robson [CAUSE’S planning consultant] makes matters worse because it makes specific reference to the NEAs seeking the inspector’s views so the NEAs are in danger of contradicting that letter.

The problem that the NEA are now in, having made so many premature pronouncements, is that they have provided all and sundry with ample legal grounds (see above) to question at the appropriate time their decision making process. Sage advice would have been to keep quiet until the NEA were in a position to properly consider all the issues that they need to before coming to a decision on the way forward.”

 

[1] https://colchester.cmis.uk.com/colchester/MeetingCalendar/tabid/70/ctl/ViewMeetingPublic/mid/397/Meeting/673/Committee/12/Default.aspx

[2] podcast here:   https://colchester.cmis.uk.com/colchester/MeetingCalendar/tabid/70/ctl/ViewMeetingPublic/mid/397/Meeting/673/Committee/12/Default.aspx

[3] Land Use Consultants.   Nothing is known about how they were selected, long before council decisions were made, who briefed them, who else bid for the work and what they will be doing.   Officers have refused to divulge the information and CAUSE has lodged a FOI request.