Gasworks Development : BHCC Failures Chapter 5 – Failure to comply with the Council’s own rules in validating the planning application

This is the fifth article in our series of ten Chapters on BHCC failures relating to the Gasworks development. Read on……

The first four instalments have already been published on the Brighton Society website. These are:

Chapter 1 : Introduction

Chapter 2 : The attempt to extend the Marina Tall Buildings zone on to the Gasworks site

Chapter 3 : Failure to respond to multiple Freedom of Information requests.

Chapter 4 : Failure of both the Council and the Berkeley Group to respond to the Gasworks Coalition’s concerns about the public consultation.

_____________________________________________________________________________________________________

The Transport Economic and Culture Committee of the Council (TECC) decided at its meeting on January 11 in 2018 that applicants set out the proposed affordable housing in full at the start of the process – by either detailing that 40% affordable housing as required by Policy CP20 of the City Plan will be met and explaining how this will be achieved, or if less than 40% is proposed, a full open-book viability assessment must be submitted to demonstrate that the percentage proposed is the maximum which can be achieved.

In the case of the current Gasworks planning application, it was registered without either of these two elements of the required information. This is contrary to the council’s own requirements which were adopted following the vote by councillors in 2018.

As far as we know, the planning officers do not have a remit to overrule that non-negotiable requirement which councillors introduced in 2018.

The Gasworks Coalition wrote to all councillors on January 21 2022 to draw their attention to this failing. The letter also drew attention to the serious failings of the design in relation to Fire Safety issues which had been highlighted by the HSE in its objection which had just been posted on the Council website.

This is the text of our letter:

Dear Councillor,

Planning application BH2021/04167 – Kemp Town Gasworks site

We believe that this planning application has been registered erroneously and is invalid. We are writing to request that you contact the relevant Council officers to have the application withdrawn.

Our concerns about the validation of this application are:

1. Affordable Housing

2. Fire Safety

1. Affordable Housing

The developers have stated that they cannot deliver any affordable housing, even with 553 dwellings proposed in the application. A non-negotiable pre-requisite for 40% affordable housing is required by Policy CP20 of the City Plan.

If the developer argues that figure cannot be achieved, the Council requires a Financial Viability Assessment (FVA) to be submitted at validation stage before the application can be registered. That requirement was approved by councillors in January 2018. Refer to the attached Council documents at the end of this email.

Additionally, that FVA should be fully substantiated, be open-book, unredacted, fully transparent and open to public comment.

The developers have provided no information to support any form of alteration from the 40% requirement. They are proposing no affordable housing.

They have failed to provide a Financial Viability Statement. The application is therefore invalid and should not have been registered.

Our further concerns about affordable housing are discussed in more detail – see para 4, below.

2. Fire Safety

The Health and Safety Executive has posted a “Substantive Response” in the comments section on the Council website. This sets out HSE’s concerns that the proposed design is unsafe in terms of Means of Escape, Fire Service Access, and External Fire Spread. We attach the HSE’s comments for your information at the end of this email.

Their concerns relate to the following issues:

Single staircase accesses
Fire separation between car park areas and other areas
Effectiveness of fire compartmentation
Access for emergency vehicles (e.g. fire appliances, ambulances, etc)
Availability of water supplies for sprinklers + fire service
Need for easy and speedy access for fire crews
Hose laying distances/routes
Sharing of escape routes with fire crews/equipment
Assumption that lifts can be used for fire service access
The risk of fire spread may become more critical, when combined with the “wind tunnel” effect, in an exposed coastal location
The town houses have direct access to an underground car park.

HSE’s response adds the following comment in the case of several of these deficiencies, “Resolving this issue may affect land use planning considerations such as the appearance of the building and layout of the development”.

In other words, it needs a fundamental rethink. In the light of Grenfell, the government has required that fire safety issues be resolved at the earliest stage possible in preparing a tall building application. That has not happened.

Please see https://www.gov.uk/guidance/fire-safety-and-high-rise-residential-buildings-from-1-august-2021#applications-and-planning-gateway-one

3. Precedents

Both the issues of Affordable Housing and Fire Safety are matters of national, not just local concern.

We are considering requesting the Secretary of State to call in this planning application on the grounds that both planning and safety issues of more than local importance are involved, and that failure to request a viability statement as required by the Council’s own rules would conflict with national policies – in this case, the NPPF (National Planning Policy Framework).

The Fire Safety issues too are of national importance and if this group of tall buildings are approved as currently designed, that would affect and set a precedent for other similar developments all over the country.

We suggest that you contact the managers / head of department / head of directorate responsible to require that the application now be made invalid and be put on hold until further information on both issues is submitted. At that point the application should be re-registered as a new application.

We therefore request that this planning application be withdrawn in its current form. The affordable housing issue alone would be grounds for this.

Yours faithfully,

Jeremy Mustoe

Rupert Radcliffe-Genge

This email is sent on behalf of the Brighton Gasworks Coalition, comprising the following amenity societies and community groups:

Brighton Society – charity registration no 271138

Regency Society of Brighton & Hove – charity registration no 210194

Kemp Town Society – charity registration no 1146155

Kingscliffe Society – charity registration no 291839

Montpelier & Clifton Hill Association – charity registration no 267889

Brighton & Hove Heritage Commission – charity registration no 1193686

North Laine Community Association – charity registration no 273989

Rottingdean Heritage – charity registration no 264056

West Hill Community Association – charity registration no 276387

Marine Gate Holdings Ltd – company no 01194507

Due East – Charitable Incorporated Organisation no 1155392

AGHAST

Amex Area Neighbourhood Action Forum

Regency Square Area Society

Southdown Rise Residents Association

Kingsway and West Hove Residents Association (KAWHRA)

4. Affordable Housing – further comment

Those consulted on the planning application cannot comment on any degree of affordable housing provision, which may be proposed at a future date (if any is to be proposed at all). No valuations have been put forward for testing or comment.

This is a direct subversion of the application process and undermines Councillors’ requirements for affordable housing provision.

It also sets an extraordinary precedent. All other developers will now be free to ignore affordable housing requirements. If this situation is allowed to stand, the requirements for affordable housing will become optional.

If Brighton & Hove City Council fails to enforce its own planning policies and allows a developer to dictate the Council’s policy over providing affordable housing, this is of national concern and could prejudice the outcome of discussions on the provision of affordable housing between other developers and other local authorities.

There are no grounds to argue that an exception should be made for this developer, as that would render the council’s affordable housing requirements void. The same rules must be applied to all developers if the requirements are to be enforced.

The council must control the viability process and the validation process – not the developer. By validating, Council officers have surrendered control to Berkeley/St William Homes.

There is nothing exceptionable about this development. It offers no surprises.

It is one of many gasworks developments across the country proposed, in progress or have been completed by this developer. The applicant’s consultant, Atkins, has already carried out a detailed site survey and report, as submitted in the Environmental Statement Volume 3 Appendix 13.1 to 13.5, to confirm their existing expectations based on previous Gasworks developments. The Environment Agency, in their comments on the application, report that a full remediation survey and remediation plan must be approved and in place before any work can be started on the site. This should have been completed before the application.

We also note that the Gasworks site is not designated as a Tall Buildings zone in the City Plan. Yet the developer is proposing precisely that with, again, no justification for an exemption.

For your information we have attached the following documents:

– Decision List Tourism Development & Culture Committee (11 Jan 2018)

– Public reports pack Tourism Development & Culture Committee (11 Jan 2018)

– Printed Minutes Tourism Development & Culture Committee (11 Jan 2018)

5. Fire Safety – further comment

Coming at a time when the Grenfell disaster is still a highly contentious issue, HSE’s concerns represent a damning criticism of the scheme. Would any local authority feel able to approve a planning application given the concerns expressed by HSE in the light of Grenfell?

A Fire Strategy document is included in the planning application documentation, prepared by Elementa who are Fire consultants. It seems to be a purely advisory document presumably prepared in advance of the plan preparation stage. There appears to be no indication that it is a response to the actual proposals made in the planning application. So its value as a document in support of the actual design set out in the planning application is effectively zero.

Key to understanding the issue are the new planning requirements on Fire Safety which came into force in August 2021, referred to in para 2 above. They are designed to ensure that high-rise developments consider fire safety at the earliest stages of planning.

Developments involving high-rise residential buildings must demonstrate they have been designed with fire safety in mind before planning permission is granted – including through their site layout – and with access provided for fire engines.

This information has to be submitted as part of the planning application in a fire statement. In the case of the Gasworks application, a document has been submitted with the planning application called “Fire Gateway One Form”.

This is mostly a tabular schedule of fire safety measures proposed for each of the buildings. It confirms that the “stay put” policy – which was the Fire Safety policy at Grenfell and which is now under review – will be relied upon for all the tall residential blocks on the Gasworks development. There are also layout drawings showing fire access routes.

These documents were evidently inadequate to reassure the HSE that the fire safety measures described are sufficient. The proposals were evidently not discussed with HSE prior to submission of the planning application, which is one of the requirements of the new Fire Safety policies.

The Leader of the Council Phélim Mac Cafferty referred our letter to the Head of Planning, Liz Hobden.

On January 27 we received the following reply:

Dear Jeremy Mustoe and Rupert Radcliffe-Genge

Thank you for your correspondence on the Gasworks planning application. I have been asked to respond on behalf of the council.

I will respond to the two main concerns you have raised about the Gasworks application and whether it is valid.

1. Affordable Housing

As you have noted, the applicant has not provided either an Affordable Housing Statement setting out full details of a policy compliant level of affordable housing or a Financial Viability Assessment (FVA) justifying why the affordable target cannot be met.

A FVA must accompany applications to provide evidence justifying why a reduced level of affordable housing, below policy requirements, is proposed.

This information is still required and will be submitted shortly by the applicant. The reason for the delay is that the council considers affordable housing such a key issue for the City that the applicant is being pushed to explore all possible options to maximise the level of affordable housing provided with the scheme.

In this case, officers made the decision to validate the application, despite this omission, to give residents and consultees an additional period of time to consider the scheme, given the large number of documents that have been submitted. We hope this has benefited residents and emphasise that further consultation will be undertaken once we have full information and amendments, including the FVA.

Once the FVA is submitted, it will be uploaded to the BHCC planning portal, and notification posted on the Brighton Gasworks Briefing page on the website (which will be updated shortly to answer some questions raised by this and other comments received). The FVA will then be rigorously and independently reviewed by the District Valuer.

Once we have all of the further information relating to the application, another full round of consultation will be carried out. We will advise the applicant what further information is required to make a decision, taking into account the issues raised by consultees, the public and planning officers. When that has been received, we will carry out further public consultation.

2. Fire Safety

As you are aware changes to planning legislation last year included a requirement to ensure the consideration of fire safety matters as they relate to land use planning are incorporated at the planning stage for schemes involving a relevant high-rise residential building. This is called Planning Gateway One.

From 1 August 2021 Planning Gateway One required planning applications for certain types of development over 18m in height or 7 or more storeys to include a Fire Safety Statement.

The Gasworks planning application included a Fire Safety Statement. This was provided on the correct government form as well as a separate Fire Strategy document and as such the application met the validation requirements.

The Health and Safety Executive is a statutory consultee for such applications. We also seek input from the East Sussex Fire Service and the council Building Control Team.

Whilst Fire Safety is ultimately controlled under both Building Regulations and separate Fire Safety legislation, Planning Gateway One has been put in place at the planning application stage to ensure that there are no fundamental fire safety issues which would require changes under land use planning to enable the scheme to comply with the relevant legislation.

As you have set out the HSE has raised some concerns. These will need to be addressed by the applicant to ensure that any final proposals are acceptable in respect to Fire Safety and that the scheme can comply with building regulations and fire safety legislation without the need for future revisions that would require planning permission in their own right.

For the reasons set out above, the status of the application was carefully checked on receipt and is considered valid; and legal advice from the council’s solicitor confirms this.

Although I appreciate this email doesn’t give you the answer you wanted, I hope that this answers some of your questions and provides you with some reassurance that the council will be assessing this application rigorously; and that residents will be given the opportunity to comment on further information/amendments once they are all received.

Kind regards

Liz

(Liz Hobden is the Head of Planning)

This reply raised more questions that it answered.

On 31 January the following statement appeared on the Council Planning Portal. This too raised even more questions.

“Next steps for former gasworks site

31 January 2022

Developer St William Homes has applied for planning permission to build up to 553 new homes and 2,700 sq metres of commercial space at the former gasworks site in East Brighton.

In a recent round of consultation, residents were invited to have their say on plans that include building dwellings spread across 9 apartment blocks, ranging in height from 3 to 12 storeys tall.

The developer has held several consultation events in the past but the most recent consultation by the council was the first time residents have been able to make formal comments on the planning application.

Listening to the community

The consultation has so far received 500 responses from residents, local historic and civic societies and campaign groups. Officers will now collate the responses to help identify and flag with the developer any areas that need clarification or amendment to address the main concerns raised.

At least one more round of consultation on the planning application will take place when further information is received. All responses to the various rounds of planning consultation will be considered in making the final decision.

The standard timescale set by the government for deciding a planning application is 16 weeks, in this case that would be 16 March 2022. However, if more time is needed, as is likely to be the case with this proposal, it can take longer.

Well designed spaces supporting carbon neutral aims

For the application to be successful, the Planning Committee will expect proposals that provide well designed, quality spaces, while being mindful of neighbouring residents, the environment, and our drive for a carbon neutral city by 2030.

Residents will be reconsulted on the proposals once updated information has been received. Once officers are satisfied that the issues raised have been addressed, they will make a recommendation to either approve or refuse the planning application. A final decision will be made by the council’s cross party planning committee later this year.

Shaping development sites

A council spokesperson said: “Hearing residents’ views early on in the process is important. We would like to thank everyone who has got involved in helping us to shape the future of one of the last, largest brownfield development sites in the city”.

In a city with a housing crisis, providing affordable homes is a key issue. Some people have queried the lack of detail given so far about how the scheme will address this. The information has been sought by officers and is required from the developer before a decision is made.

The planning team has allowed the developer additional time to explore funding options for affordable housing provision and this information will be available for the next round of consultation.

Evaluating the planning application

Due to the complex issues involved in developing this site, the planning service is working with several specialist advisors to evaluate the planning application.

They include:

Leap Environmental who advise on contaminated land issues.
Building Research Establishment (BRE) who will advise on the impact of the scheme’s daylight/sunlight for existing neighbours and new residents.
District Valuer Services who will assess the scheme’s viability should less affordable housing be proposed than is required by planning policy.
Health and Safety Executive to provide advice on fire safety design of taller apartment blocks. This complies with new central government regulations to consider fire safety at the outset and is a recommendation following the Grenfell tragedy.
Environment Agency in relation to potential impacts on ground and surface water quality.”

The Gasworks Coalition’s 2nd email to the Head of Planning

Following both the reply from the Head of Planning received on on 27 Jan (above), and the separate public Statement from the Council on 31 Jan, both of which added fuel to the confusion surrounding this planning application, on 1 February 2022 the Coalition sent the following email to Ms Hobden, copying it to all councillors and the Council’s Legal Advisor.

No reply to our email was received, other than an offer to meet which we received via Councillor Platts – see “Next Stage in this saga” below.

Here is the email we sent. The Gasworks Coalition’s comments and replies to the various points raised by the Head of Planning are in blue text; the extracts from Ms Hobden’s email of 27 January (see above) are in black italics:

Dear Liz Hobden,

Thank you for your response of 27 January to the Gasworks Coalition’s email to all councillors. Although it clarifies some of our questions, it raises several more and does not reassure members of the Coalition that the Council is handling this planning application in a proper and transparent way.

This impression is reinforced by yesterday’s post on the Planning Portal –“Residents give feedback on developer’s plan to regenerate former gasworks site.”

This document, far from clarifying the Council’s position, has generated even more questions among the 16 member groups of the Gasworks Coalition. We discussed those at our regular weekly meeting last night, and append to this email a copy of the Council’s post annotated with further questions.

Set out below, paragraph by paragraph, is the text of your email to us in black italics. Our responses are shown in blue regular text below each paragraph. This format is repeated for the second part of our email relating to yesterday’s post on the Planning Portal.

With reference to your email dated 27 Jan and our responses:

Thank you for your correspondence on the Gasworks planning application. I have been asked to respond on behalf of the council.

I will respond to the two main concerns you have raised about the Gasworks application and whether it is valid.

1. Affordable Housing

A FVA must accompany applications to provide evidence justifying why a reduced level of affordable housing, below policy requirements, is proposed.

Yes, but the fact is that the FVA was not submitted with the application. Why not, given that an FVA is a requirement? In order to work out if the development was profitable with some affordable housing, the developer must have worked out the figures before the application.

That doesn’t explain why the application was validated in direct contravention of Council Policy, given how important an issue affordable housing is claimed to be by the Council. Was this decision taken by officers alone? If not, was it tabled and discussed by the TECC committee? Was it discussed with any councillors at all? And if it was, who were they? Was the decision discussed and approved by the Council’s Legal Advisor? If so, was this before the application was validated, or after?

Why is the applicant “being pushed” given that an FVA is a requirement? Why didn’t the council refuse to validate the application until the information was provided?

The failure to include any information at all regarding the provision and delivery of Affordable Housing, without a cogent written explanation to the relevant planning officers, is at odds with best practice, statutory local plans and current national guidance.

By validating the application the Council has put the developer in the driving seat. Berkeley can now delay and delay – and the non-determination clock is ticking away. The possibility of the application being taken out of the Council’s hands is becoming more likely by the day. Has Berkeley agreed to extend the period within which the planning application has to be determined?

You write that there was a worthy intention to give residents more time. So why wasn’t this stated on 10 December when the application appeared on the Council website? Why was the application validated just before Christmas? Why was this announced on 27 January, 6 days after the consultation period officially ended? Many residents looking at the Yellow Planning Notices on their local lamp post, or in the “Important Dates” page on the Council website Planning Portal, saw that the consultation period ended on 14 January. Why was this not corrected?

What does “further consultation” mean? Will consultation cover the entire planning application or just application updates? How long will “further consultation” last? From when to when? Is this a Berkeley St William decision or a planning officer decision?

Once the FVA is submitted, it will be uploaded to the BHCC planning portal, and notification posted on the Brighton Gasworks Briefing page on the website (which will be updated shortly to answer some questions raised by this and other comments received). The FVA will then be rigorously and independently reviewed by the District Valuer.

Will the FVA be available for public inspection and comment? Will it be un-redacted and open book? Will it set out the active spreadsheets and iterations of the appraisals in a readable format which non-specialists can understand, including all the key variables defined and their sources declared?

You write that “another full round of consultation will be carried out”. Is that the same as “further public consultation”. This is confusing. Who will be consulted? Is “full round” different from “further public consultation”. What is a “full round”? What does “further public consultation” cover?

2. Fire Safety

As you are aware changes to planning legislation last year included a requirement to ensure the consideration of fire safety matters as they relate to land use planning are incorporated at the planning stage for schemes involving a relevant high-rise residential building. This is called Planning Gateway One.

From 1 August 2021 Planning Gateway One required planning applications for certain types of development over 18m in height or 7 or more storeys to include a Fire Safety Statement.

It isn’t particularly important that the FSS was on the correct form. The key point is that it’s obviously not workable. Planning Gateway One also required the applicant to confer with the HSE and sort out any problems before an application is put forward. Why didn’t that happen? Why was the application validated, given that Gateway One was not followed?

The Health and Safety Executive is a statutory consultee for such applications. We also seek input from the East Sussex Fire Service and the council Building Control Team.

As the HSE notes, fundamental redesign is needed, which means new plans.

For the reasons set out above, the status of the application was carefully checked on receipt and is considered valid; and legal advice from the council’s solicitor confirms this.

What does “carefully checked” mean when there are fundamental flaws? Could we see the legal advice from the Council Legal Advisor, and was this advice given before the application was registered, before validation, or after validation or after our email? And what about the site not being in a Tall Buildings area, non-compliance with the City Plan 1, the UDF SPG and the proposed City Plan 2?

Nevertheless the apparently serious criticisms of the design set out in HSE’s “Substantive Response” indicates that either Berkeley St William have not taken the new planning requirements seriously enough, or that the requirements set out in the planning regulations are inadequate to ensure that the Fire Safety design is carried out properly. Either way, it points to a failure to examine the requirements adequately prior to validation.

This is not an issue where minimum standards can or should be applied. Fire Safety concerns after Grenfell must ensure that the safety of future residents of residential tower blocks is paramount.

The concerns we have set out above indicates clearly that we are not reassured at all. Again, is it that residents will only be able to comment on amendments? When and for how long? We had been told by planning officers that local residents could comment right up to the point of determination, as has happened in the past with other developments.

2. Residents give feedback on developer’s plan to regenerate former gasworks site, 31 January 2022

The formal consultation period for residents to comment on proposals to regenerate the former gasworks site in east Brighton has now ended. Residents were invited to have their say on plans that include building up to 553 new homes and 2,700 sq metres of commercial space.

Planning Officers previously stated that residents would be able to lodge objections right up to the day of the Planning Committee hearing. Why has this changed?

Developer St William Homes has applied for planning permission to build dwellings spread across 9 apartment blocks, ranging in height from 3 to 12 storeys tall.

We don’t wish to nit-pick, but it is misleading to say that there are 9 blocks. There are 16. Do you mean 9 Tall Buildings, when the site is not in a designated Tall Buildings area?

Building A – 6 storeys

Building B – 11 storeys + link of 7 storeys

Building C – 11 storeys + link of 7 storeys

Building D – 12 storeys

Building E1 – 4 storeys

Building E4 – 6 storeys

Between E1 – E4 are 3-storey townhouses.

Building F – 2 blocks, 11 storeys and 7 storeys

Building G – 2 blocks, 10 storeys and 8 storeys

Building H – 10 storeys

Building I/1 – 7 storeys

Building I/2 – 10 storeys

The Berkeley Group held two informal consultations on its proposals. In both cases local residents and amenity societies, including members of the Gasworks Coalition, communicated their views – strongly in many cases – to Berkeley so they were very much aware of the views of the local community and most city amenity societies, which were almost unanimously against tall buildings on the site. Berkeley St William paid minimal regard to their own consultations.

Shaping development sites

A council spokesperson said: “Hearing residents’ views early on in the process is important. I would like to thank everyone who has got involved in helping us to shape the future of one of the last, largest brownfield development sites in the city”.

At the latest count this morning 1 Feb (and objections are still coming in) – there were about 630 objections, not 500. The latest count includes a strong objection from Save Britain’s Heritage, the leading Conservation organisation in the country.

Again, where are we in the planning process? Is the first consultation proceeding or is it now stopped? What is the status of the 630 objections already lodged? If new proposals are introduced, will the whole process have to start again? Will new objections need to be made to any revised proposals?

Affordable housing

The planning team has allowed the developer additional time to explore funding options for affordable housing provision and this information will be available for the next round of consultation.

The Council didn’t follow its own rules by validating the application. As a result we are now in a sort of no-man’s-land where the application is proceeding, the Council are attempting to draw up an as yet undefined list of further issues to discuss with the developer, the results of which will be put out for some form of public consultation, the timescale for which is unknown.

As far as we are aware, this is unprecedented. It points to a failure to follow the planning process.

Is the reason that the FVA was not insisted upon at the time the planning application was lodged, related to the fact that after 28 March, new government requirements will apply and at least 25% of affordable homes provided will have to be First Homes?

Was this an attempt to circumvent these new requirements by validating the application before the required FVA was submitted, in an attempt to get the application decided before 28 March?

What does “later this year” mean? Does it mean by 16 March or before 28 March? Or much later still? And if so when? If so, will post-28 March planning rules apply?

Well designed spaces supporting carbon neutral aims

We repeat – what does “later this year” mean? Does it mean by 16 March or before 28 March? Or later still? And if so when? If so, will post-28 March planning rules apply?

Evaluating the planning application

Due to the complex issues involved in developing this site, the planning service is working with several specialist advisors to evaluate the planning application.

They include:

Leap Environmentalwho advise on contaminated land issues.
Building Research Establishment (BRE)who will advise on the impact of the scheme’s daylight/sunlight for existing neighbours and new residents.
District Valuer Services who will assess the scheme’s viability should less affordable housing be proposed than is required by planning policy.
Health and Safety Executiveto provide advice on fire safety design of taller apartment blocks. This complies with new central government regulations to consider fire safety at the outset and is a recommendation following the Grenfell tragedy.
Environment Agencyin relation to potential impacts on ground and surface water quality.

If you missed the deadline and wish to comment on this application, sign up to the planning register.

We look forward to reviewing the comments and advice from these consultants.

The Gasworks Coalition would appreciate your answers to these questions at your earliest opportunity.

There is one more question on which we request your response. The Brighton Society, acting on behalf of the Gasworks Coalition, first made a Freedom of Information Request on February 8 last year – almost a year ago – asking to see pre-application correspondence between the Council and the Berkeley Group.

The Council has consistently refused to provide any of that information. The ICO gave the Council until 28 January to respond to our request, otherwise it will consider legal action against the Council. In spite of this the Council has still not responded. Why not?

We suggest that councillors – who are copied in to this email correspondence – should ask these questions too.

On behalf of the Brighton Gasworks Coalition,

Jeremy Mustoe

Rupert Radcliffe-Genge

Next stage in this saga

Local Councillor for East Brighton Nancy Platts, then contacted the Head of Planning and the Council’s Legal Advisor to assist us in getting these concerns addressed. The Head of Planning suggested we had a meeting to discuss our questions.

The Coalition discussed this at length and decided that although we would be very happy to meet local councillors and the Head of Planning, this should happen after not before our questions were answered.

In the meantime Councillor Platts had received a reply from the Council’s Legal Advisor. Here are the relevant extracts:

It is a matter of fact that an unredacted viability assessment for schemes proposing non policy-compliant affordable housing on viability grounds is one of the Council’s validation requirements. This is as agreed by the Tourism, Development & Culture Committee in January 2018. Accordingly a viability assessment should have accompanied the planning application.

However, in the absence of any court order quashing the decision to validate, the validation of the application without a viability assessment does not mean that the application must be held to be invalid and the process halted. Nevertheless, I must stress that the provision of affordable housing will, of course, be a material planning consideration in the determination of the application and the application will not be determined without the viability assessment having been provided. The applicant confirmed, yesterday, that the financial viability assessment will be provided by 16 March next at the latest.

In her email of the 27 January to the Brighton Gasworks Coalition Liz set out the reason why the application was validated despite a viability assessment not having been provided, namely, that this allowed an additional period of time for residents and consultees to consider the scheme, given the large number of documents submitted with the application. Hopefully you will be assured from that email that once the viability assessment has been submitted it will be placed on the website and independently reviewed. Once that has taken place a further round of full consultation will be carried out. The developer has not gained anything by not submitting the viability assessment with the application, and the further round of consultation will ensure that residents and consultees will not have been prejudiced by its receipt post validation.

We were encouraged that the Council’s Legal Advisor did not claim that the validation procedure was lawful – only saying that,

“in the absence of a court order quashing the decision to validate…… does not mean that the application must be held to be invalid and the process halted”.

And she went on to confirm that,

“It is a matter of fact that an unredacted viability assessment for schemes proposing non policy-compliant affordable housing on viability grounds is one of the Council’s validation requirements.”

Her claim that, “this allowed an additional period of time for residents and consultees to consider the scheme, given the large number of documents submitted with the application.” is factually correct, but it is utterly misleading to make such a claim after the Council refused to publicise the date that the consultation ended on the Yellow Public Notices, and after residents and campaign groups had spent hours and hours putting together about 650 objections to the proposals.

We learned one thing though – confirmation that the Council was talking to Berkeley St William about affordable housing and that a Financial Viability Statement will be provided by March 16.

On 23 February we wrote again to the head of Planning, copied as before to all councillors. As previously noted, no reply had been received to our email dated 1 February. We hoped the simplified format within which our questions were asked might stimulate some response.

Here is the Coalition’s email which again included a list of 20 questions to which we requested answers.

Dear Liz Hobden,

The Gasworks Coalition wrote to you on 1 February with a series of questions arising from your response dated 27 January to our earlier email.

Councillor Nancy Platts subsequently approached you to help get our questions answered.

We understand that you offered to arrange a meeting with Cllr Platts, up to two other councillors and a few representatives of the Gasworks Coalition to talk about our questions.

The Coalition has discussed that idea but the consensus view is that, although we would very much like to have a meeting with you, it would be far better to discuss your answers to our questions rather than just our questions, which have already been clearly expressed. We have also taken account of advice we have received from a Planning Consultant we have commissioned.

We have not had any answers from you yet – but we have seen a copy of an email from the Council’s Legal Advisor to Cllr Platts, dated 17 February, which does provide some useful information, in particular that Berkeley St William will provide a Financial Viability Assessment by 16 March at the latest, and following that, a further round of consultation will be carried out.

But otherwise it confirms our view that the validation requirement still stands and should have been complied with. It fails to explain why the application is not ‘invalid’ – stating only that the LPA registered the application despite it being invalid.

We are therefore requesting once again that you provide your written answers to our questions.

Once we have your responses and after a reasonable period to consider them, we would be very happy to attend the meeting you have offered to arrange.

We have set out the questions in the form of a simple list. We hope this format will help you to provide clear answers.

We also note that there are two outstanding Freedom of Information requests in relation to the Gasworks development to which the Council has consistently failed to respond. The status of the first of these (still unanswered after over a year), which requested information on pre-application correspondence between the Planning Dept and Berkeley St William, is currently the subject of a Decision Notice from the ICO, which has given the council until March 15 to provide the information requested.

The other is currently being considered by the ICO following our complaint to them that the Council has failed to provide the information within the required four-week period.

When we receive information on either or both of these FOI requests, we would appreciate being given time to consider the findings before the date of any Planning Committee meeting is finalised. 30 days would seem to us to be a reasonable period.

We look forward to your reply.

Yours sincerely, on behalf of the Brighton Gasworks Coalition

Jeremy Mustoe

Rupert Radcliffe-Genge

Questions from the Brighton Gasworks Coalition: 23 February 2022

1. Why was the application validated without either a commitment to 40% affordable housing or a Financial Viability Assessment (FVA)?

We do not accept the argument that this gave more time for objections. If that was the case why did the yellow Public Notices put up around the area give a deadline for objections as 14 January?

2. Who took the decision to validate the application without an FVA?

– Was it the Planning Dept?

– Was it discussed by TECC?

– Was it discussed with any councillors?

– If so who?

3. Was the question discussed with the Council’s Legal Advisor before validation or after?

Or when Cllr Platts asked the question in her email dated 13 February?

4. You say Berkeley is being “pushed” to provide its proposals on affordable housing?

Why, given that there was a requirement for affordable housing before the application could be validated?

5. We now understand that an FVA will be submitted by Berkeley St William by 16 March at the latest.

– Will it be transparent, unredacted and open book?

– Will it be available for public inspection and comment?

– Will it set out the information in a readable format able to be understood by non-specialists, including all the key variables defined and their sources declared?

6. Is the first consultation still proceeding or is it now stopped entirely?

7. What discussions are being held with Berkeley? What are the topics being discussed which might result in further amended proposals?

8. What timescale is being envisaged for these discussions? Has Berkeley agreed to any timescale?

9. What does a “full round of consultation” mean? Is it the same as “further public consultation”? How long is a “full round”. When will this start?

10. Who will be consulted again? The public? Statutory Consultees? Amenity Societies? All objectors?

11. National organisations such as Historic England and Save Britain’s Heritage?

12. What is the current status of the approximate number of 630 objections already lodged?

13. Will they still be taken into account in a consultation on any future proposals?

14. If new proposals are introduced, will the whole process have to start again?

15. Will new objections need to be made to any new or revised proposals?

16. Is the reason that the FVA was not insisted upon at the time the planning application was lodged, related to the fact that after 28 March, new government requirements will apply and at least 25% of affordable homes provided will have to be First Homes?

17. Was this an attempt to circumvent these new requirements by validating the application before the required FVA was submitted, in an attempt to get the application decided before 28 March?

18. If – as now seems highly likely – the application will be decided after 28 March, will the new planning rules referred to in Question 16 then apply?

19. Why has the Council consistently for the past 12 months, refused to respond to the Brighton Society’s Freedom of Information Request asking to see pre-application correspondence between the Council and the Berkeley Group?

20. Why has the Council recently failed to comply with our Freedom of Information request to see the minutes of three meetings with the Council on viability and affordable housing? These meetings are listed in the Planning Statement submitted by the applicant and should be in the public domain.

These questions were never answered.

The next key step in the progress of this planning application occurred when a revised planning application and design was made on 22 November 2022. Far from responding to the Coalition’s concerns, this actually proposed a larger development including slightly more housing (565 new homes rather than the 553 originally proposed).

Cookie	Duration	Description
cookielawinfo-checkbox-analytics	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional	11 months	The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy	11 months	The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.

Gasworks Development : BHCC Failures Chapter 5 – Failure to comply with the Council’s own rules in validating the planning application

Leave a Reply

archive