The controversial planning application for Kensal Rise Library has been tabled for the Planning Committee Meeting of July 16th following legal advice. The item had been deferred at the last meeting LINK in order to seek further legal advice on whether the investigation into fraudulent emails supporting the developer's previous application was a 'material consideration'.
The new report LINK states:
The new report LINK states:
1. The Council has obtained advice from leading Counsel, Richard Drabble QC, since deferral of the decision by Members on the 17 June. The advice was required to establish whether the Committee could lawfully determine the current application having regard to the fraudulent emails, in support of the application, received during the consultation process in respect of planning application reference 13/2058. Counsel has endorsed the views given by officers, by correctly identifying that such claims of fraudulent activity, are not a material consideration for the purposes of assessing the current application.
2. Counsel contends that he can see no reason why the grant of planning permission on the current application should prejudice the police investigation into whether earlier representations were bogus or fraudulent. In these circumstances Members are obliged to determine the application on an objective assessment of material planning considerations alone.
3. 3.The Council’s statutory duty also extends to determine planning applications within a reasonable period of time. Accordingly, any unreasonable delay by Members in deciding the current application second time around could result in the developer lodging an appeal to the Secretary of State (Planning Inspectorate) under section 78 (2) of the Act on the grounds of non-determination. Effectively, the Secretary of State would step into the shoes of the Council as Local Planning Authority and determine the application. If the matter were deferred again without proper justification for doing so, the Council will inevitably incur legal costs in dealing with and defending the appeal. The Council may well have to pay the developers professional costs as part of this process, if an order for costs was made on that basis. However, it is very difficult to predict what the overall costs are likely to be, but an estimated guess could run into thousands of pounds. In this respect Members should be mindful of the Councils fiduciary duty towards the local tax payer when balancing the degree of risk.
4. In relation to the building being listed as an Asset of Community Value under the provisions of the Localism Act 2011 and the relevance of the listing status vis a vie the decision to be taken on the planning application the comments contained within the body of the report are duly noted by officers. Members should however, be reminded that inso far as FOKR being named as “preferred tenant” of the D1 community space, this is not an issue the committee should purport to determine as part of the planning process.
5. In summary, and for the avoidance of doubt, Members are under a statutory duty to determine the planning application within a reasonable period of time; and that neither the requirements of coming to a proper planning decision or any need to avoid prejudice to the police investigation require any further delay.
RECOMMENDATION
Grant planning permission subject to the completion of a satisfactory Section 106 or other legal agreement and delegate authority to the Head of Planning or other duly authorised person to agree the exact terms thereof on advice from the Director of Legal Services and Procurement.