REPORT OF DIRECTOR OF OPERATIONAL SERVICES
TELEPHONE HOUSE PLANNING APPLICATION

Item No. 4 TUNBRIDGE WELLS BOROUGH COUNCIL
SPECIAL OPERATIONAL SERVICES BOARD • 27 NOVEMBER 2001
REPORT OF DIRECTOR OF OPERATIONAL SERVICES
TELEPHONE HOUSE PLANNING APPLICATION

Executive Summary

At the Operational Services Board meeting held on 26 July 2001 the Board considered a report on the Telephone House planning application appeal (Minute 75/01 refers). The Board noted that I had been instructed by the Chief Executive to investigate the matter and resolved that I should report on my investigation as soon as possible. This is therefore the purpose of this report (OPS/01/11/18).

FOR DECISION

1. My Telephone House Planning Application/Planning Appeal "lessons to be learned" report is attached herewith (Appendix 1).
2. I am pleased to report (but not particularly surprised) that in the main I do not believe that the investigation has identified many or significant flaws in the way this piece of planning business was conducted by officers and the planning committee.
3. The investigation has confirmed that in every significant respect the conduct of the business was undertaken in accordance with our usual practices and procedures and that these are typical/"industry standard" and at or close to generally accepted current "best practice" approach.
4. Where I have identified lessons to be learned and/or suggested modified process/procedure this is in response to a changing operating environment and not because I believe our approach historically has been incorrect. I believe that we now have to accept that a wide variety of stakeholders (e.g. customers, council taxpayers, residents, etc) expect to be more meaningfully engaged on the conduct of our business and given that this expectation is not unreasonable we must respond positively to it. Hence, for example, I have made suggestions for earlier stakeholder involvement in the process. I also believe that now and more so in the modernised local government framework which will apply in 2002 Members will wish/need to be more involved in some decision making processes which hitherto have been solely in the gift of Officers. I have therefore also made suggestions in this respect.
5. With respect to the way forward for considering in detail the ideas I have developed in my report, I am recommending that this task be undertaken by the Best Value Review Team which is due to undertake a B.V. review of the Development Control Service. If this suggestion is adopted it will ensure that the ideas are properly tested in all respects and if in due course adopted are integrated into a comprehensive continuous improvement plan.
6. I wish to place on record my thanks to those Officers and Members who participated in my investigations in such a positive and helpful way. OPS/011/11/18

RECOMMENDED

1. That the report be received and noted; and
2. That the report be referred to the Development Control Best Value Review Team for detailed consideration as part of the forthcoming Best Value Review exercise.

Contact Officer: John Haynes

JOHN HAYNES
DIRECTOR OF OPERATIONAL SERVICES

Background Papers:

1. Report (Minutes) 75/01 of Operational Services Board 26 July 2001 as contained in Agenda/Summons for Council Meeting 9 October 2001.
2. Planning Application No TW/00/01474 Report (Telephone House), Western Area Planning Committee 18 October 2000.
3. Report (Minutes) of Western Area Planning Committee 18 October 2000. Reference Committee Decisions Reference No 32.
4. Planning Application Appeal Decision letter from Planning Inspectorate 3 July 2001.
5. Planning Application Appeal Cost Decision letter from Planning Inspectorate 3 July, 2001.

Appendix:

Appendix 1:
Report On Possible Lessons to be learned from the Telephone House Planning Application and The Planning Inspectorate Appeal

Appendix 2:
Planning Inspectorate Decision and Costs Decision letters dated 3 July 2001

Report of Director of Operational Services

Report On Possible Lessons To Be Learned
From The Telephone House Planning Application
And The Planning Inspectorate Appeal

Instruction To Conduct And Report On Investigation

1. The Operational Services Board held on 26 July 2001 considered a report from the Borough Secretary and Solicitor and Head of Planning and Building Control Services on the subject of the Planning Appeal Decision re Telephone House. The Board noted that I had been instructed by the Chief Executive to investigate the Telephone House matter and hence resolved that I should report back to the Board as soon as possible on the results of my investigation.

   Scope Of Investigation.

2. The investigation was to make recommendations on lessons to be learned, avoiding the issue of blame.

   Work Method

3. The investigation has been undertaken in the following manner:
   1. Detailed consideration of appropriate documentation (e.g. Planning reports, Inspectors Appeal decision letters).
   2. Consideration of reports from various officers who were involved in the conduct of the business under investigation (e.g. Officers in Development Control and Legal Services).
   3. Consideration of written and verbal replies received from Members (Planning Committees) in response to my invitation to them to give me their views on the Telephone House matter and/or on planning matters generally (10 replies considered).
   4. Detailed discussion with relevant officers (e.g. Legal, Planning) and the Chairman of the Western Planning Committee, at the time this matter was before that Committee.
   5. I have not sought the views of any non - council third parties.

   Brief History Of Key Events

4. The planning application which is the subject of this report was submitted by Crest Homes (S.E.) in July 2000 and followed an earlier similar application by Crest which had been refused planning permission. The application was for 43 flats on the Telephone House site, Church Road.
5. Development Control Officers spent considerable time and effort working with the developer and their designers and advisors before reaching agreement on a proposal which Officers felt could be recommended for approval.
6. The amended application with a recommendation to approve subject to conditions was finally put before the Western Planning Committee on 18 October 2000. At the committee meeting a representative of the Telephone House Neighbours Association spoke in opposition to the scheme and members spent considerable time debating the matter following a detailed presentation by Officers.
7. A motion was proposed to refuse the scheme for the same reasons Officers had refused the earlier application under delegated authority (conservation area impact, tree loss, residential amenity loss and listed building impact). This motion was not approved. Following further debate a new motion was proposed to reject the scheme for two reasons (adverse impact on conservation area and adverse impact on listed buildings in Church Road). This motion was approved.
8. The applicant appealed against refusal and the application was considered at a public inquiry conducted by the Planning Inspectorate during May 2001. The Council was represented by Counsel and our witnesses were the case officer (one of our most experienced planners) and our senior conservation officer/architect. The applicant was represented by Senior Counsel and a variety of specialist advisors. The inquiry was undertaken by Mr M. Lewis Dip Arch (dist) RIBA. Evidence was also given to the inquiry by several Members, the MP A.Norman and objectors to the scheme.
9. On 3 July 2001 the Inquiry Inspector approved the application subject to conditions and awarded costs against the Council because in his opinion the Councils earlier refusal of the application constituted unreasonable behaviour in light of the prevailing circumstances.
10. In late July 2001 the Operational Services Board following advise from the Borough Secretary and the Head of Planning & Building Control decided not to exercise a right of appeal by seeking a judicial review of the inquiry decisions.
11. In an attempt to identify if there are lessons to be learned the remainder of this report considers the conduct of this matter/planning application in detail during the key stages of its progress through the planning process: pre-application, application consideration by Officers, consideration at Committee, preparation for appeal inquiry, the inquiry. In general however with very few exceptions which I shall pick up later in this report the way in which this application was dealt with by officers and the planning committee was in accordance with our usual practices and practices which are quite common and which to date at least have been regarded as "best practice" (e.g. to participate in pre-application discussion). This may in fact be the first possible lesson which needs to be learned and possibly the most fundamental. It may no longer be appropriate to follow a detailed standard procedure.
12. The way forward may now need to be a more flexible approach (but one which Is still nonetheless within the procedure requirements of the 1990 Town & Country Planning Act) which takes account of the specific nature of a particular development proposal (e.g. its size, complexity, sensitivity, controversy, etc). Increasingly society is expecting to be offered some degree of flexibility in the way organisations deal with affairs in recognition of the nuances of what at first sight may appear to be a routine/standard matter.
13. However if a standard approach is to have additional optional components added to it in certain circumstances the ground rules for deciding which "extras" need to be added in what circumstances would need to be clear and precise. If the ground rules are not clear it will leave the authority open to allegations that what is or is not applied is decided in an arbitrary fashion. This would not be acceptable.

    Pre-Application Debate

14. The pre-application debate between the applicant/their agents and the Council followed the usual practice in that it was (a) continued for so long as it was considered that productive use of time was being made and (b) considered confidential. I cannot disagree with this approach. In particular with respect to I feel that this is essential if the applicant wishes it to be so. To adopt any other position would make some applicants reluctant to approach us and to engage in meaningful discussion which may include commercially sensitive information.
15. However it is clear that there will be occasions when it would be helpful if third parties (e.g. anticipated objectors/neighbours/consultees) could participate in some aspects sooner rather than later. It may therefore be appropriate to be more proactive than hitherto to encourage developers to share information and/or to engage other stake-holders at this early stage. If the developer is prepared to do this it may be appropriate for the local authority to facilitate and/or participate in the engagement, subject always to it maintaining its independent decision making integrity.

    Consideration Of Application By Officers

16. Following receipt of the application officers continued their discussions.with the applicant with a view to addressing concerns they had with respect to the proposals. This practice is usual in a scheme of the complexity of Telephone House and is not considered to be problematical albeit that it will result in a decision on the application being later than the targeted decision date. However I believe that an approach which is more likely to result in agreement of a quality proposal is preferable to early rejection of a nonetheless promising proposal simply to hit targeted decision making timescales. Clearly however in a more ideal world both would be achieved.
17. There is however a danger in protracted comprehensive or detailed discussions at pre and/or post application stage. This is that in due course Members (and others) may feel that they are simply being asked to rubber stamp officers views/recommendations. To avoid this it would be appropriate in such instances for a "mid-debate" briefing session to be held for Members to bring them up to speed on progress and perhaps to test their reactions to proposals or issues which were emerging. For such a process to be viable there would need to be proper "ground-rules" and acceptance that such briefing sessions were not decision making or even decision influencing sessions.
18. This approach was in fact tried on this particular application and key members (Chairman/Vice Chairman/Ward Members) were given a briefing. On this occasion it did not appear to draw out members concerns in any meaningful way. Notwithstanding this however I consider that such a process could be useful and could be developed so that it was both productive but nonetheless proper. If this approach was favoured a detailed process protocol would need to be debated and agreed.
19. During the officer consideration period the council received objections from the consultees, the people who now largely constitute The Telephone House Neighbours Association. These were in the main dealt with in the usual way.
20. The usual way is that every effort is made to ensure that objections are taken into account in a meaningful way and that objectors views are fairly reported. Beyond this basic commitment to objectors no undertakings are given. However sometimes we do engage in debate with objectors in writing or face to face (e.g. visits to Parish Councils).
21. However our approach to objectors is somewhat inconsistent and there is no hard and fast documented procedure which determines what we will do in any particular circumstance.
22. A lesson we may therefore need to learn is that this approach is not acceptable in an environment in which individuals and communities wish to be engaged in a more meaningful way and to have and exercise enhanced opportunities to a fair hearing (generally and in the context of the Human Rights Act).
23. This more fundamental involvement of stakeholders in planning issues is clearly evidenced in those situations where we develop a planning brief or planning guidance and is evidenced in significant detail when we engage in community based "planning-for-real" exercises. It may well be that we need to move further in this direction in our routine development control work.
24. If we do so however we will need to ensure that we give all parts of the wider community as appropriate the same degree of opportunity of engagement.
25. It would for example be inappropriate to have a mechanism which gave opportunities to (say) a vocal group of local (with respect to the particular application) residents but to exclude input from a wider community who may have an equally valid (if different) interest in an outcome.
26. If we were to move towards a wider stakeholder engagement approach it would also be necessary to ensure that officers and Members nonetheless had "protected space" in which to make (and to be seen to make) their decisions in a proper fashion.

    Consideration Of Application By Western Area Planning Committee

27. Evidence from Officers records and the view expressed by several Members indicates that the Planning Committee dealt with this application in accordance with our usual practice and in a particularly thorough fashion in most respects.
28. A site visit was held, speakers for and against the application were given a generous hearing by the Committee. Officers gave a detailed presentation (using, with the agreement of the Chairman material produced by the Applicant in addition to our own material) and the Committee debated the matter at some length.
29. As indicated earlier in this report a proposal to refuse the scheme for the same reasons as the previous Crest Scheme was rejected by a narrow majority and a subsequent motion to reject the scheme for two reasons was approved unanimously.
30. There seems to be very little to be learned from this particular aspect of the handling of the case and in many respects it is a model for good practice in that considerable time and effort was spent in discussing the issues in detail and then focusing on the decision (in this case the reasons for refusal).
31. The refusal decision itself is not unreasonable in the circumstances given that the Committee was entitled to take a different "on-balance" view from officers with respect to the proposals impact on the conservation area and listed buildings (both somewhat subjective issues I would suggest). Clearly Planning Officers at the meeting had no significant concern with the Committees view and hence no warning was given with respect to the possible adverse consequences of the decision (such warning having been given on other occasions when Officers have felt strongly that a Committee was in danger of making inappropriate decisions). However from some of the comments from some Members which I have received as a result of undertaking this inquiry I am somewhat concerned on one issue.
32. I am not convinced that all Members fully understood the scope of the reasons for refusal finally agreed. I am concerned that some Members may have believed that the reasons for refusal did include aspects of the proposal which they objected to albeit that these reasons did not form part of the wording of the specific rejection reason. I also have some concern that some Members feel that the pragmatic way forward when it is the Committees wish to refuse an application is to focus on the most powerful/defendable reasons for rejection and to ignore other reasons albeit that these may accurately focus on aspects of the proposal which were considered problematical. However the view of Officers is that all relevant and sustainable objections should be and are used.
33. It is therefore important that in cases of refusal, particularly where that refusal is contrary to Officers recommendations that refusal reasons are crystallised and that all Members are clear with respect to which parts of the proposal the reasons apply. If necessary on complex cases I consider that the meeting should be adjourned for a short while for this task to be done properly. More detailed and specific Member training on this particular issue may also be appropriate and productive in the longer term.

    The Planning Appeal Preparation

34. The Councils preparation for the Inquiry which was set up to hear the appeal followed usual practice: the method of handling the case was formulated (in this case this was that we would use Counsel and in-house witnesses), Counsel was appointed and in-house witnesses produced evidence statements. Counsel, the witnesses and the DC Manager met to discuss the case and the tactics for the inquiry. Further dialogue was conducted by telephone as necessary.
35. With respect to our preparation for inquiry I have been asked by several persons to consider two aspects: the level of representation at inquiry and the determination of principal witnesses. In practical terms the Council has three choices with respect to legal representation. It can be represented by Officers, by Counsel or by Senior Counsel, (a QC). The decision on the level of representation is made by Officers and is based on the complexity of the case. It is not a cost driven decision. This seems a perfectly logical way forward and if there is any lesson to be learned here it is only that we ensure that relevant Officers and if considered necessary relevant Members are consulted in the debate on representation.
36. With respect to principal witnesses in cases like Telephone House the Council has three options. The witnesses can be Members of the Planning Committee, Council Officers case Officers and/or their supervisors and/or Officers at Case Officer level but not involved in the particular case) or external planning consultants. The decision on the choice of principal witnesses is made by Officers and is based on the nature of the case. Again this seems a logical and pragmatic approach and one which is acceptable provided that the way forward decision is made by the relevant officers and that other appropriate officers are consulted as part of that decision making process.
37. In most instances the principal witnesses are likely to be case officer level because it is unreasonable to expose Members who are not qualified in planning or planning law to cross-examination by planning experts in an increasingly complex and often hostile environment and in other instances the use of external planning consultants will also be inappropriate. Whilst they may be able to bring to the inquiry a professional view which supports the reasons for refusal it is difficult to see how they can be presented as articulating the views of a committee at which they were not present.
38. Their use may however be appropriate in those instances where it was decided to defend the reasons for refusal by expert witness analysis/argument with respect to the reason if not necessarily the debate which led to it.
39. A further issue which I have explored with respect to the preparations for an inquiry is the degree to which other third parties (objectors in particular) should be drawn into the process. In this case the main objectors views and objections were known both as a result of the information made available at the application consideration stage and as a result of pre-appeal hearing meetings with Planning Officers. The objectors views were made known to our Counsel but the objectors were denied a meeting with Counsel.
40. This level of involvement seems reasonable given the fact that the Council is in the business of preparing its case not a general case.
41. 0bjectors are of course free to appoint their own Counsel if they so wish or as they did on this occasion to make their own representations to the inquiry. In this respect therefore the approach we adopted seems reasonable because the objectors have a direct access to the inquiry to ensure that they get a fair hearing. They also have the remedy of judicial review if they consider that they have not been given a fair hearing by the Inquiry Inspector.
42. Pre-appeal inquiry meetings with professional officers also provides objectors with some professional input should they wish to use it. The authority must however act with extreme caution in this respect to ensure that a conflict of interest (with respect to the Councils case) is not created.

    The Planning Appeal. The inquiry

43. The inquiry was conducted under a relatively new procedure whereby the key parties had agreed beforehand a statement reflecting matters agreed between the parties (called a Statement of Common Ground).
44. As indicated in the Brief History part of this report a number of Members gave evidence to the inquiry. They did not do this as a formal part of the Council team, they did not consult officers beforehand on their proposed attendance and the nature of their evidence and they were not able to be questioned at the inquiry by our Council because whilst not part of the Councils team they were nonetheless on the same side in that they were articulating support for the Councils position (i.e. a refusal of the application).
45. I would imagine that they found the experience somewhat gruelling given the robust way in which Crests very senior and professional team defended the application. It is my understanding that none of the Members who attended the inquiry have had training in planning inquiry process and procedure or with respect to the issues which can or cannot be introduced at this stage in the planning process.
46. The outcome of the evidence given to the inquiry by one Member was that the Inquiry Inspector was left with the impression that the reasons for refusal given to the applicant were not the real reasons for refusal. This in my opinion was a significant factor in the award of costs decisions made by the Inspector. If correct such action by the planning committee would most likely amount to maladministration. Based on the evidence I have considered I do not believe this to be the case (see para 30 of this report). I have of course had the benefit of discussing this matter with a variety of people whereas the Inspector clearly had to form a view on the evidence before him at the inquiry. To assist the Board to form its own view on this aspect of the case I attach to my report as appendix 1 and 2 copies of the Inspectors Appeal & Cost Decision Letters. If the Board considers that maladministration may have been committed it should instruct the Councils Monitoring Officer to act accordingly. However I am not recommending this action.
47. l do not believe this situation would have happened if Officers and Members had worked together more closely on the Members involvement in the inquiry. I fully accept that individual Members have a right (similar to many others) to appear before an inquiry and I accept that they may need to do so to be seen to be supporting the view of their constituents but clearly it would be preferable if these objectives could be achieved without putting at risk the Councils' position. The award of costs is likely to be significant given the scale and seniority of the Crest team which worked on the matter and the length of the inquiry and we must clearly take whatever steps are necessary to avoid a repetition of this.
48. In addition to the closer working referred to above, these steps need to include development and adoption of a protocol setting out precisely what conduct is expected of Members in this situation and acceptance that if a Member breaches this they will be called to account, (b) more detailed and specific Member training and (c) preferably development of a strong and positive relationship between Officers and Members so that the number of times Members feel it is necessary to supplement Officers action is minimal and that they are able with confidence to convince their constituents of this fact. Such a relationship will only be established/maintained and developed if all parties are fully committed to it and are able to devote the time necessary to have productive and honest debate on important issues in a way which respects each others roles, opinions and integrity.
49. I have had concerns expressed that at the inquiry the Councils Case Officer was proactive at the start of her evidence in pointing out the fact that the views expressed in her evidence were intended to reflect those of the Committee and were not necessarily her own. I personally see no problem with this given that the statement was factual, widely known and that the purpose of her evidence was to present the Councils case.

    Summary And Way Forward

50. The report identifies the following areas where lessons can be learned and/or where changes in our processes/procedures should be contemplated:
    1. The need to supplement our standard D.C.procedure/process with optional additional process components which would be applied when necessary/appropriate to address the scale/ complexity/sensitivity/degree of public interest/etc in a particular application. For example the scale of consultation may need to be more of a variable than it currently is or the way in which we undertake consultation may need to be more interactive in certain instances.
    2. In appropriate circumstances we should more proactively, encourage developers to engage the community/appropriate stakeholders at a pre-application stage. Where developers are prepared to do this we should be prepared to facilitate and/or participate.
    3. Briefing sessions for Members should be undertaken in those instances where the size, complexity, impact, interest, etc of a development proposal warrants such action and there has been or is likely to be comprehensive/detailed negotiations/discussions with developers at pre and/or post application stage over a lengthy period.
    4. Committees reasons for refusal (and as appropriate conditions following an approval) of an application particularly where the decision is contrary to the advise of Officers or in spite of the evidence of expert witnesses must be crystallised and clear in every respect to all Members of the Committee at the time the particular application is debated. If necessary the meeting should be adjourned for this to be done. However this approach will be disruptive and hence if an equally robust but more practical solution can be identified it would be preferable.
    5. There should continue to be a flexible approach with respect to the way in which the Council should respond to planning inquiries. However appropriate senior management must be party to the decision making process and consideration should be given to informing and/or consulting with appropriate Members on the issue Not withstanding this however I consider that the final decision on the way forward should remain an Officer level decision.
    6. That Member attendance as a witness at inquiry should be the exception rather than the norm and where it is to feature Members should take advise from Officers on their intentions with respect to the nature of their participation and the evidence they are proposing to give. Attendance and participation should be undertaken in accordance with an approved protocol.
    7. That the general planning training given to Members should (at least in the case of those Members who will sit on planning committees) be made more comprehensive and contain specific modules dedicated to critical parts of the process. I consider that the training should be seen as an ongoing process for Key Members engaged in the process (e.g. Chairman of Committees) and that it should utilise more novel methods than simple "talk and chalk". For example shadowing of Case Officers may be one such method. I consider that more novel methods on these lines would also have the added benefit that it would enable Officers and Members to build meaningful relationships and mutual understanding and respect.
51. Clearly some of these lessons to be learned /possible process changes have resource implications which would need to be considered as part of any way forward plan.
52. With respect to the way forward I do not consider that it would be appropriate to contemplate changes solely on the basis of this report (this particular application situation). For approximately 12 months now Planning Officers with the assistance of certain Members have been undertaking consultation and analysis work with a view to developing a "D.C. Charter" which will aim to deliver an efficient, effective and economic service which meets customers, stakeholders and Members aspirations. This work has therefore also identified lessons to be learned. In addition the D.C. service is due to go through the Best Value Service Review process. This process is also designed to identify lessons to be learned and the ways and means of addressing continuous improvement. The Best Value process will use a methodology which includes fundamental challenge by appropriate stakeholders, comparison with best practice elsewhere and consultation with interested parties both with respect to the problems and issues and the appropriate response changes and remedies. It is therefore suggested that the way forward for this report and any comments on it is for the D.C. Best Value team/project to be the vehicle used for further consideration of the matters detailed herein.
    This course of action is therefore recommended.

TELEPHONE HOUSE INTERNAL INQUIRY - TWBC

TWBC Internal Inquiry into the Telephone House debacle

The Telephone House Neighbours Association, Tunbridge Wells The aims are to heighten peoples' awareness and concern for the controversial high density development on Telephone House site, Church Road / York Road, Tunbridge Wells.