Joint formal complaint regarding the Planning Committee meeting on the 4th September 2024 on BH2022/02232

Brighton and Hove Bus company make clear that they have serious reservations about the bus arrangements being proposed and are not viable, yet they appear to have been pressured by Brighton and Hove City Council officers to submit a letter.

This appears to confirm officer bias in support of the application and implicates the council in undertaking work on behalf of the applicant to try and secure commitments from the bus company. This is completely inappropriate. The full email thread is displayed below. As you will see, the council officer writing to the bus company makes clear that without a letter from the bus company, it could “tip the balance” of the application.

In the email thread the bus company make clear:

Below is a screenshot from the officers’ presentation shown at the 4 September 2024 committee meeting, in which they say that S106 money will be used to support the early morning diversion that B&H Buses specifically say they cannot justify.

It is wrong, and if done purposefully, dishonest of Brighton & Hove City Council to have suggested the S106 money will be used to support the bus service, if this is not in fact what it will be used for – as the details released through an FOI request suggest.

Were the committee therefore provided erroneous information on which their decision was based? This in itself could justify a Judicial Review.

Correspondence between Brighton & Hove City Council and Brighton and Hove Buses is detailed below: 

As above, the FOI has highlighted that B&H Buses had serious reservations about the bus diversion being viable. The information in the letter presented at the planning meeting, appears to indicate that the Council were pressurising the bus company into writing, and in fact drafted something for them (as detailed above)!

This information was misrepresented at the planning meeting and should have been available to public scrutiny ahead of a decision being made.

Brighton & Hove City Council repeatedly said that the Patcham Court Farm site was marketed, and implied that this was a factor in considering use of the site for B8 rather than B1 use. Yet the FOI response includes a November 2016 briefing document (also attached), in which it notes that:

“Current demand is not known for the site as the council has not sought occupiers.”

The same briefing refers to the site previously being marketed on several occasions between 1997 and 2009, with several proposals coming forward and deals unfortunately falling through.

The Nov 2016 briefing document, alongside other information in the FOI further support this. For example the fact that Brighton & Hove City Council cannot confirm how much money has been spent on marketing of the site. This indicates that Brighton & Hove City Council has misrepresented the marketing of the site at the Planning Committee meeting and during the preparation of the application. There is no concrete evidence to show any active marketing of Patcham Court Farm has taken place.

Note also the following screenshot of the BHCC website taken in July 2023 confirming that no official advertisement has taken place:

Concerns, such as the Deputy Chair of the meeting raising a point of order to prevent residents from being asked an open question from a councillor on the Planning Committee. This contravenes the Committee's own written protocol.

There were also assurances from the Committee Chair that they would return to residents to take questions, but later not doing so.

For example:

At 1:10 – the Chair stops a resident from speaking in relation to a point about HGV movements and states “we’ll take that later”.

At 1:21:56 – the Chair once again repeats she can’t take questions from the floor, but states “I will come back to you”.

At 1:38 the Chair asks if there are “any observations on those comments”. No councillor asks a question, but when resident tries to ask a question, an officer appears to whisper to the Chair “she can’t ask that” and the Chair then goes on to tell the residents “I’m afraid XXX we can’t take any more questions from the floor”. Yet no questions at all had been taken from the floor, and the Chair is permitted to use discretion.

Resident’s voices are not audible; however, after a resident pleaded to ask a question on a point they believed to be valid, the officer again whispers to the Chair “she can’t”. The Chair then states “We can’t take any more questions because it doesn’t follow the protocol of committee.”

The Chair does have discretion in this type of situation. However, the Chair not only fails to use this discretion, but also failed to honour previous promises of returning to residents to take questions which the Chair had previously indicated they would come back to.

This failure to allow residents’ questions, and the clear barring of residents’ questions being heard, threatens to undermine the key purpose of the Planning Committee process and the open nature of the meeting, which should adequately allow community views to be voiced.

Throughout the planning consultation period, and up to and including the date of the Planning Committee meeting, Brighton and Hove City Council’s website stated that:

“Proposed use for storage/distribution is not in accordance with the allocated use.”

A screenshot of this section of the council’s website is below. It is clear from this statement, that at the outset the council was of the opinion that Royal Mail’s application did not meet the classification for land use.

Multiple residents, ward councillors, the former MP, and the new MP, have all raised points about the application falling outside of the classified use. This is clearly set out on the council’s own website.

At no point did the council communicate externally during the consultation period, that they did in fact consider that the application did fit within the City Plan classification.

Residents believe this to be misleading and a serious error on the council’s part and impacted on resident’s ability to scrutinise the table referred to at the planning meeting. This prevented further representations, comment, or challenge of this particular point by residents.

Screenshot of BHCC’s website:

At 2:10:17 – the policy officer, Steve Tremblett, states that:

“The policy CP3 part 1 states that the site is allocated to B class employment floor space, that is the policy wording.”

“Further down in the supporting text there is a table which sets out how it was at the time expected that the floor space requirements for different types of employment use would come forward. So, in that table Patcham Court Farm, at the time, it was expected it would be B1 office, but that’s not the policy wording is for the broader B uses.”

Yet the table was not shown at the Committee meeting, and it remains unclear from the table online and available here:

https://www.brighton-hove.gov.uk/sites/default/files/migrated/article/inline/CP3.pdf

The exact nature of the policy, (A copy of the table is also copied below), shows that there is no wording that explicitly states B8 use. There is no description in the text that residents have identified where B8 use in relation to Patcham Court Farm is specified, either directly, or inferred.

The table the officer referred to has a separate box referencing B8, which is separate to any reference to Patcham Court Farm, and there is no clear text explaining any connection in relation to B8 use.

At 2:24, officer Ben Daines concedes that:

“While I realise the supporting text doesn’t quite marry up with the use that the policy wording does, I think we’ve previously explained why we consider in this case a B8 use is appropriate on this site, when it was otherwise allocated in the supporting text as B1 offices”.

Residents believe that it is not acceptable for new information to be presented by officers on this important point.

If officers were so confident about the interpretation of wording in the City Plan document meeting the B8 classification, the council’s own website should have reflected this, and the council could and should have communicated this key point to interested parties during the consultation process and ahead of the Planning Committee meeting. It is misleading for officers to have not done this.

Ahead of the Planning Committee meeting, new information and a comment from Southern Water was sent to planning officers. This was not referenced at the meeting. The comment from Southern Water was a response sent to an enquiry made by Siân Berry MP, in which she expressed concerns that Royal Mail had already sought to push back against the winter working conditions Southern Water had recommended.

In their response to the MP, although they did not reinstate their objection to the application, they stated that:

“At this stage another conversation needs to be had between Southern Water and the developers to adequately address the risks over the conditions we have requested.”

This is very important and relevant information. The Planning Committee councillors should have been verbally alerted to Southern Water’s view at the meeting. This is particularly important given that significant weight was given to Southern Water’s view in the decision.

At 1:37:35, when asked by the Chair whether he is satisfied by the measures proposed by Royal Mail to mitigate against flooding and water contamination, Nick Bean, the council’s own flood / drainage officer replies that:

“For this condition we would be led by Southern Water and the Environment Agency as Southern Water are drawing water out of the aquifer and the Environment Agency are responsible for managing and issuing permits for water abstraction.”

The officer does not put forward an opinion of their own, and instead pushes responsibility directly to Southern Water and the Environment Agency.

At no point is it referenced during the meeting by officers, that Southern Water have expressed concerns about Royal Mail pushing back against their winter working condition. In fact, their view is that:

“Another conversation needs to be had between Southern Water and the developers about risks, and the applicants understanding and mitigation plans.”

Residents believe it to be misleading and potential bias toward the applicant for councillors on the Planning Committee to be drawn to this information, and not Southern Water’s comments.

At 1:33 - a representative from Royal Mail refers to Southern Water having “no objections” to the scheme after discussing the hydro report. This is misleading given the conditions Southern Water have applied, and comments they have made previously in correspondence.

One such email is shown below which details their very real concerns regarding the risk to residents water supply and those regarding further conversations being needed with the applicant about risk mitigation.

A little later at 1:48:29 – a Royal Mail representative advises that:

“The bus is something that Royal Mail will strongly promote, should it not be deemed to be the most appropriate form of transport for that solution, we will look to implement alternative modes of travel, basically to adhere to the targets that will be included in the travel plan that will be agreed with the council. So, it’s part of an ongoing process that goes on well beyond one year throughout the lifecycle of the five year process, and is done in conjunction and will be responding to the council’s requests.”

It is alarming there is no clear travel plan, and that Royal Mail continue to talk in such vague terms on important and realistic traffic to and from the site, and trip volumes.

At 1:57:23 – a representative from Royal Mail says:

“We would ask the committee to approve this application today so we can continue to provide the universal service to 108,000 addresses across Brighton and Hove for many years to come”.

This is laughable when Royal Mail has consistently not met its universal service obligation (USO) targets. In Brighton first class stamped deliveries fell to just 44.1% of the 93% target in quarter three of 2022 and have frequently hovered around the shocking 60% level in the city!

Royal Mail’s failure to meet its delivery obligations has been the subject of much local and national media; as well as a Panorama investigation, and Royal Mail bosses being recalled to a House of Commons Committee after concerns were raised they had lied to a previous committee.

It is misleading and disingenuous for Royal Mail to imply that they will “continue” to meet the USO, because they are not, and have not, met this for some time. They have a legal duty to perform this service and to suggest that they won’t perform it for Brighton and Hove if they don’t receive the outcome they want goes against their legally bound duties. They do not perform it - new depot or not….

The case officer refers to his view that it is acceptable for councillors to consider the future proposed use of the existing Royal Mail sites in central Brighton and Hove when they reach a decision.

At 2:04 on the webcast, in response to a question raised by a Planning Committee Councillor about the weight they can give to the housing potential on the other sites, the case officer states that:

“Obviously they are not linked planning applications but there’s clearly a direct correlation between the two and I don’t think we can ignore the fact that it will ultimately release two sites which are allocations in the City Plan Part 2. So it is a material consideration that has to be given some weight, albeit there isn’t an accompanying planning application running alongside with it.”.

A legal officer from the Council then puts forward a different view, noting that councillors should (audio not fully clear):

“Look at this application on its own merits, because you don’t have the information relating to the other sites. So it’s this application. Is it acceptable in the location that is proposed and that’s the information, that’s what the information is concerned with so that’s what we need to consider today.”

A different Council officer and the Planning Committee Chair then both put forward a different alternative view, not relating to future housing plans at the 2 sites as referred to by the planning officer, with the officer stating that:

“I think one of the differences with this application is that it will divert traffic and disturbance and all those things from the centre of Brighton and Hove, so that is a material consideration if this site is successful.”

And the Planning Chair notes that the application will help achieve “net zero”.

Aside from any confusion the differing opinions from 4 different people advising the Planning Committee had on this very key point, it is a concern that the case officer, who prepared reports and the officer recommendation, was under the assumption that the Planning Committee can give weight to the future use of the two existing Royal Mail sites.

We are concerned that the officer was incorrect in their view of the future use of the existing sites being material considerations, and their recommendation was biased because of their incorrectly held view about the weight that should be afforded to separate sites in this decision. Again, this on its own justifies a Judicial Review, and taken in combination with the misleading bus information provided to planning committee members needs addressing.

Residents are also concerned by information in a blog post written by local journalist and commentator, Andy Winter. They note that he has referred to discussions taking place, via council email, between the Leader of Brighton and Hove City Council Bella Sankey, and the Labour Party candidate for the Brighton Pavilion constituency Tom Gray, about it being:

“Important that we co-ordinate any comments going out from Tom re: PCF and Southern Water and flooding in Patcham.”

Residents have concerns that the Leader of the Council agreeing to assist an election candidate during the purdah period is not appropriate.

Residents also express concerns that, although not visible from the public gallery, the Deputy Leader of the Council, and the administration’s finance lead, Councillor Jacob Taylor, was present at the meeting.

Although clearly it was a public meeting, so it is of course permissible for councillors not on the Committee to attend, residents want it noted as part of their complaint that given the financial benefit to the council of the lease sale, they view the presence of the finance lead as an indication of potential whipping among Labour councillors. Whipping the planning committee is against the law.

Deputy Chair of the Planning Committee, Councillor Jacob Allen, at the outset of the meeting stated that he was a member of CPRE, an organisation who had recently submitted an objection to the application. By remaining at the meeting, as a councillor experienced with planning law and probity in planning, would likely have been aware that in the scenario that the application did not go through, and if he had voted against, it would have been fairly likely that Royal Mail may have been able to have made a strong case that Councillor Allen’s membership of CPRE may have led to him having predisposition against the application.

If Councillor Allen was aware that his membership of CPRE could have given rise to complaints about predisposition, or potentially pre-determination by the applicant if he were to vote against the application, the only options left to him would be to abstain, or to vote for the application, in order to avoid this accusation from Royal Mail.

Councillor Allen should have not taken part in the vote to avoid all doubt and concerns about the potential for pre-determination.

At 1:37:35 – Councillor Liz Loughran (the Chair) asks BHCC’s Nick Bean (Flood Risk Manager) whether he is satisfied with the measures proposed by Royal Mail (i.e. the groundwater and contamination mitigations. Interestingly, he did not answer yes or no or give a view of his own. He stated that:

“For this condition we would be led by Southern Water and the Environment Agency as Southern Water are drawing water out of the aquifer and the Environment Agency are responsible for managing and issuing permits for water abstraction.”

It is quite interesting that BHCC’s officer leading on flood risk, did not answer the question with a yes or no, instead deflecting responsibility to Southern Water. Yet Southern Water repeatedly have stressed the limitations in their role, eg that they are not a statutory consultee, and that the Local Planning Authority are ultimately the decision-maker and responsible for surface and groundwater flooding. Again, this justifies a Judicial Review.

Therefore, it is of great concern that a senior BHCC officer directs responsibility for flood risk to Southern Water and the Environment Agency, when the local authority should be playing an important role in evaluating the responses from organisations, rather than pushing the weight of responsibility for the decision to those bodies.

Questions have also been put into this application objection site regarding the “Designers Roles and Responsibilities” and, like all the other objections, was ignored.

The main point in the rules is:

“Designers must:

Make sure the client is aware of the client duties under CDM 2015 before starting any design work”

This has not been done, so this project has not conformed to HSE rules. Obviously, the instability of the land at Patcham Court Farm would be a significant issue under these rules, with regard to safety of construction workers. Full details on the link below:

https://www.hse.gov.uk/construction/cdm/2015/designers.htm

At the meeting, one of the residents attempted to clarify a point that had been incorrectly presented by Jane Moseley. This was in regard to the ‘Area of Outstanding Natural Beauty’. Patcham Court Farm was originally part of this area, but at some stage has been removed. Jane Moseley said it was “not in it”.

The point the resident attempted to make was that it is difficult not to take account of the AONB because the site is surrounded by the area. Jane Moseley will know that it is just not the area within the designation that is protected in any case, BUT ALSO THEIR SETTINGS. The site is within the setting of Patcham Conservation Area, South Downs National Park and an Area of Outstanding Natural Beauty (AONB).

In 1997, a bid to place a similar traffic intensive use in the form of a supermarket on the proposal site was rejected as well as a park and ride scheme. It was concluded that Patcham Court Farm was not the right site due to its proximity to heritage interests. It is also in the settings of the National Park and an AONB.

In a Cabinet Report of 16th October 2008, the sustainability implications of the site were laid out along with this planning history and it is worth considering them in full:

The sensitivity of the site’s location cannot be understated: within the AONB and adjacent Patcham Conservation Area and 3 no. listed buildings.

From May 2008, the Property and Design team and its appointed agent DTZ sought to widen the planning brief to generate more market interest; potential additional or alternative use discussed including a care home/medical use; a trade counter and small industrial use; a hotel/ancillary use (e.g. restaurant but no public house); and an Ambulance “Make Ready” station.

In late 2007 and from June to September 2008, discussions took place between the Property and Design team and South East Coast Ambulance Service (SECAS) which would have included offices but their main planning use would have been industrial which is considered wholly inappropriate for the area,

These same reasons apply to the proposed storage and distribution use proposed by Royal Mail: irreparable substantial harm to the form and character of the area which is rich in heritage and ecological interests in terms of the AONB and South Downs National Park. In the Hangleton Bottom update of 18th January 2010 by Angela Dymott and Richard Butler, it confirms this in item 4 of the alternative sites considered and it is worth considering this in full:

The site was indeed within the southern portion of the South Downs National Park and Area of Outstanding National Beauty (AONB). Whilst it has now been removed, IT IS STILL WITHIN ITS SETTING AFFECTING VIEWS WHICH IS A MATERIAL PLANNING CONSIDERATION DOWNPLAYED BY COUNCIL OFFICER JANE MOSELY.

The building proposed is 15 metres high on the hill on the submitted plans for the Royal Mail proposal, completely inappropriate for the AONB. Views looking southwards from the National Park would see the 15-metre-high building.

This is stressed in the Council’s Development Management Site Schedule of May 2012 (top of page 2) which follows and it would also be inappropriate in the setting of the Patcham Conservation Area (bottom of page 1) and the listed buildings all around.

On 17th February 2011, Cabinet report agenda item 171 approved the disposal of the site on a 125 year lease for a mixed hotel and office development subject to planning permission being granted. Bidder A’s scheme proposed a 128 bed 4 star Village Hotel and Leisure Club providing conferencing, banqueting and community facilities, a full service restaurant, café and wine bar together with a health and fitness centre including a swimming pool, spa, sauna and gym. They also proposed incorporated 4,900 square feet of offices within the envelope of the Village Hotel. The plans for the hotel, leisure use and office space subsequently were not progressed due to harm to the Patcham Conservation Area, the AONB and National Park.

The Council’s Employment Land Study of December 2012 still identified the site for B1 employment space only – the development and environmental constraints scored a low out of 5 due to the site’s close proximity to South Downs National Park which would have prominent views of any large hotel building or storage and distribution depot like the Royal Mail proposal looking southwards.

As of today, over 11 years later, nothing has changed and the substantial harm to the AONB and heritage interests should have been avoided at all costs.

What had materially changed for the Council to recommend approval? Why was it considered acceptable now to irreversibly harm the settings of the Conservation Area, AONB and South Downs National Park when it wasn’t when a supermarket, ambulance HQ, Hotel and Leisure Club, restaurant, café and wine bar, health and fitness centre including a swimming pool, spa, sauna and gym, care home, trade counter and small industrial uses were considered?

Why has the value of the heritage and natural environment assets been downgraded?

Given the above concerns about the handling of this application, and concerns that there has been maladministration, alongside the potential for predetermination and officer bias, residents would like these concerns addressed as a formal complaint.

Given the serious implication of the errors that residents believe can be evidenced, as set out above, we would like Brighton and Hove City Council to not only provide explanations for errors and incorrect information being presented at the 4 September Planning Committee meeting, we would like the local authority to suggest remedies and steps that they will take to remedy the above.

We look forward to your swift response on this urgent matter.