The Catalogue of Errors that is Braintree District Council’s planning record over the last 15 years recently culminated in the Planning Inspectorate’s wholesale rejection of its proposed garden communities at "West Tey” and “West of Braintree” for the second time in just two years costing the Braintree taxpayer dear. The question is who should be held responsible for such protracted incompetence and what should be done about it?
To gain a full insight into the extent of Braintree District Council’s (BDC) delinquency as it relates to its role as a local planning authority one has to consider events going back to 2005.
BDC last adopted a local plan in 2011. Entitled the “Core Strategy” (CS) it was a high level planning document which, in contemporary parlance, might reasonably be described as an early version of a “Section 1” plan. Work then started on its “Section 2” plan known as the Site Allocations and Development Management Plan (ADMP) i.e. the document designed to fill in the detail but this was never to see the light of day (legitimately at least).
Because of the CS’s generalised and conceptual nature, when it came to determining planning applications, BDC resorted to its earlier local plan which had been adopted in 2005 and which expired in 2008. Known as the Local Plan Review, all but 11 policies of this plan where saved through an application to the Secretary of State meaning that they would still have effect right up to the present day. In other words BDC has operated and will now continue to operate on a collection of policies that are as much as 15 years old and designed to facilitate a far smaller house building programme than the council is required to provide today.
Some 9 months after the CS was adopted the government published its National Planning Policy Framework (NPPF) in mid 2012. In May 2012 a well respected local plan development officer at BDC conducted a detailed and competent assessment of the NPPF in terms of its impact on BDC’s then local plan policies and presented a report to full council at its 30 July 2012 meeting. In particular it drew attention to the need for a new method of calculating housing need that would result in a much higher housing delivery target.
The minutes record a decision for the council to assess the impact that the NPPF would have on its “Local Development Framework” (LDF) and to consider proposals for the amendment of such policies, as appropriate. This review was to be conducted within the 12 month transitional period allowed for by the terms of the NPPF in order to bring said local policies into line. However, this pivotal report would be ignored with far reaching consequences.
The council ploughed on with its ADMP regardless but just before submitting it for examination in the spring of 2014 it was suddenly withdrawn on the grounds that it stood no chance of being found sound since it had been based on a pre NPPF housing delivery target (the by now defunct East of England Plan) which stipulated a target much lower than the NPPF was now calling for. This despite the specific warnings given in the officer’s aforementioned assessment some two years earlier (item 3.11 on the 30 July 2012 council meeting agenda) that local plan housing requirements going forward would need to be based on the NPPF’s “objectively assessed housing need” (aka the OAN).
This major oversight meant that the ADMP could not be legally amended without a further round of public consultations and a new call for sites which would require a substantial delay. Having lost at least 2 years already, BDC decided to cut its losses and start anew including the launch of a further call for sites.
The decision not to submit the ADMP for examination was formally taken at the council’s 30 June 2014 meeting. However the council somewhat mercurially went on to “adopt” the unexamined ADMP unilaterally at its 15 September 2014 meeting and inserted additional wording to that effect into the ADMP, the so called “Interim Planning Policy Statement”. The objective was to provide additional direction over and above existing, and by now outdated, planning policy to both planning officers and the planning committee based on the policies contained within the ADMP when determining applications going forward.
To be clear, as of 30 June 2014, the ADMP ceased to be a planning policy work in progress and all intention to submit it for examination was dropped. As such it had and still has no legal force as a planning policy document.
The council's logic for "adopting" the ADMP, according to the Interim Planning Policy Statement, was that it had been subjected to public scrutiny via the consultation process thereby vesting it with a level of legitimacy. However, as we have seen twice now, conducting such a process does not determine if a plan, and by implication the policies contained within it, is "sound". Only an examination by an independent inspector can do that. Since BDC withdrew the ADMP from examination we can safely assume that it was not sound.
Also, in as much as a public consultation had been carried out, this was on the premise that the ADMP presented a spatial strategy sufficient to support an annual housing delivery of approximately 280 homes. And yet, at the very time the ADMP was being "adopted" by the council the housing delivery requirement, as called for by the NPPF (now out of its transitional period) was 2 ½ times this amount at 716. The implications for the ADMP's spatial strategy were profound. In a word, the site allocations designated in the ADMP were woefully inadequate to support the annual housing target BDC were now obligated to deliver. Under such a scenario, such public consultations as had been conducted on the ADMP were meaningless.
What BDC did in "adopting" the ADMP should not be confused with the legitimate and accepted practice of giving increasing weight to policies contained in duly considered "emerging plans" according to the stages of their development including of course the public consultation stage such as was the case with the Section 1 and 2 plans that BDC would go on to develop.
The council’s decision to “adopt” the ADMP was a window dressing exercise that had all the hallmarks of a “fig leaf” designed to cover the council’s embarrassment as well as being an act of desperation designed to shore up what was by now a seriously weakened planning policy regime. In hindsight the council’s “adoption” of the ADMP has been demonstrably ineffectual in planning management terms and appears to have no precedent in planning procedure.
At some point following this debacle the “garden community” idea surfaced as a planning strategy that would be pursued by BDC. Council leader Cllr Graham Butland announced that BDC would be joining the NEA but, as BDC was a year ahead of the other NEA members in terms of its local plan preparations it would hold back its plan in order to align with the other NEA members for the purpose of presenting a unified “Section 1” plan. Hence another year was lost.
In the meantime BDC was suffering considerable and repeated assaults on its woefully outdated local plan. It fared badly against several “off plan” applications submitted by Gladman, a particularly acquisitive and successful land agent, with large projects being granted in Hatfield Peverel, Halstead, Silver End, Cressing, etc. Several of these applications were allowed through appeals (full inquiries as is Gladman’s habit) to the extent that BDC was obliged to start budgeting large sums to enable it to mount defences but still with only limited success.
In consequence BDC’s planning resources were heavily compromised as the most experienced planning officers were diverted to appeal defence duties. This resulted in a serious manpower shortage and a growing backlog of applications which led to non delegated applications taking 2 years or more to determine with at least one taking twice that time. Without the applicant’s agreement the maximum time allowed for determination is 13 weeks (in some cases 16). In consequence there were several appeals arising as a result of applications not being decided within the allotted timeframe (so called non determination) and again some of these were full inquiries.
On a number of occasions, BDC’s claim to have had a 5 year housing land supply (5YHLS) was overturned by the appeal inspector and which decision was material to the appeal being allowed. In one case BDC was reprimanded for over-egging its supply by none other that the Secretary of State for the MHCLG and also by a planning inspector for calculating it incorrectly. Nevertheless BDC chose to unilaterally reinstate some 7 of the 10 development sites disbarred by the SoS thus restoring its 5YHLS only to have this rejected by the inspector in a further appeal decision. Evidence of the council’s action to reinstate the disbarred sites can be readily seen in the several application case reports produced at the time.
BDC also went to court over its interpretation of the NPPF in terms of what constituted an “isolated location” and lost at appeal (NPPF 2012 para 55).
All of these actions were indicative of a siege mentality as planning applicants sensed BDC's weakness brought on by its earlier mistakes and submitted unprecedented numbers of "off plan" applications. At one point close to 80% of applications in the pipeline were situated on unallocated sites i.e. off plan.
Planning legislation requires a local plan to be formally reviewed every 5 years or it will otherwise be found “out of date” meaning that NPPF paragraph 14 (later paragraph 11) i.e. the so called “presumption in favour of sustainable development” principle is brought into play thereby favouring “off-plan” applications. BDC has never reviewed its local plan which is well past the 5 year review point. This again has factored in both determination and appeal decisions.
At one meeting at the height of this crisis the then cabinet member for housing and planning committee member, Cllr Lady Patricia Newton, addressed the planning committee by drawing attention the council’s poor appeals performance. She warned the committee against refusing applications on other than solid planning policy grounds since the ratio of allowed vs disallowed appeals had risen well above the average for the country as a whole and the norms expected of a planning authority. This was a reflection of the council’s largely abortive efforts to resist the continuous stream of “off-plan” but otherwise viable applications whilst armed with what amounted to a close-to-empty planning officer’s tool box.
The foregoing mismanagement has undoubtedly resulted in a very large number of “off plan” homes being built or approved in the district with the result that its newly calculated OAN for the current plan period would now be largely met making the additional capacity provided by the garden communities project all the more difficult to justify. By the local plan inspector’s own calculation the proposed GCs housing contribution would lead to an 18% over allocation (all NEAs) for the local plan period to 2033 (inspector’s 15 May 2020 letter para 84).
When the NEA’s proposed plan was rejected for the first time in June 2018 (on account of the GCs proposals contained within it being considered undeliverable) it took until the next council meeting for Cllr Butland to declare that he had decided (under powers delegated to him by the council) to select the inspector’s “Option 2” for the amendment of the Section 1 plan declaring that this would cause the least delay amounting to just 3 months (or "however long it takes to get it right”). In the end this delay cost close to 2 years.
Cllr Butland was warned repeatedly (including by the inspector himself) that Option 2 would leave the door open to acquisitive developers to continue plying their trade in exploiting the council’s weaknesses and we can now see the extensive damage that this has wreaked.
Cllr Butland has complained publicly and repeatedly that not to implement the NEA’s proposed local plan and build the GCs would be to allow the continuation of opportunistic ad hoc housing developments that lack sufficient infrastructure on the fringes of our towns and larger villages whilst failing to mention that, due to his mismanagement, this had already been going on for several years.
It is on his watch that two major opportunities to prevent such uncontrolled housing expansion were lost. The first being the failure to adopt (in the legal sense) the ADMP in 2014 and then Cllr Butland’s unilateral (and over hasty) decision to chose “Option 2” as laid out in the local plan inspector’s June 2018 letter thereby delaying further (by yet another 2 years) the implementation of the ADMP’s successor; the council’s Section 2 plan. Given the latest developments, adoption of Section 2 is even now probably some 18 months to 2 years away at the very least.
Now, within 24 hours of the recent inspector’s decision to reject the NEA’s local plan proposals for a second time Cllr Butland would appear to have exercised his delegated authority yet again by asking that the inspector provides the “Main Modifications” the latter now expects to see in what will be the authorities’ third attempt at presenting the Section 1 plan for approval. Thanks to this double failure the North Essex Authorities are no longer in charge of the local plan agenda. The inspector is.
The other NEAs are not obligated to take this route and may decide to go for a full withdrawal or perhaps abandon a collective Section 1 altogether and make their own representations. Colchester Borough Council has recently acted twice to curtail further activity relating to the garden communities by withholding funding (amounting to £850K) indicating clear dissatisfaction with the joint planning process. It is however, too early to say how this will all play out. Either way we are now in for a further protracted delay in the adoption of the Section 2 plan leaving speculative planning agents to continue doing their nefarious work unabated.
The point is that we appear to be seeing yet again this discredited council leader making unilateral decisions under delegation instead of bringing this fundamental and critical matter before the council where it so obviously belongs.
Then there is the question of NEGC Ltd, the vehicle created by the NEAs to deliver the garden communities, and Cllr Butland’s role within it. Its closed structure has often been described as nondemocratic which of course is not entirely accurate since its directors are all democratically elected members of their respective communities. It is however most obviously not accountable to those it purports to represent. In the BDC case even more so.
Cllr Butland’s council colleagues have very little influence over what goes on in NEGC so what chance for us, the council taxpayer and funder of this now discredited enterprise?
Contrast this set up with the government’s recently published directive for Locally Led New Town Development Corporations (LLNTDC) with their generous arrangements for community participation and representation together with their comprehensive checks and balances. Accountability and openness is the new watchword.
Where the transfer of taxpayer funds from each NEA member to NEGC is concerned the potential for conflicts of interest are palpable. In Cllr Butland’s case even more so given that he is de facto NEGC’s Chief Financial Officer (it is his signature that appears on the company’s annual returns). To be both the granter and receiver of taxpayer’s funds may not break the letter of any regulation but is otherwise entirely untenable and open to speculative accusation whether justified or not.
As a director of NEGC (as well as its de facto CFO) Cllr Butland has a legal fiduciary obligation to ensure that the company remains solvent and yet it is predominantly reliant for its funding on the contributions made to it from taxpayer funds over which he and his fellow directors also have at least partial control as senior elected members of their respective councils. Whilst it may be argued that oversight comes from those same council’s there is nevertheless no board position for any independent party to oversee this company’s activities (including spending) from the inside so to speak and prior to decisions being made. There was never any need for such an unaccountable and secretive arrangement.
For good measure Cllr Butland also sits on BDC’s Local Plan Subcommittee, the body responsible for producing its planning policies including of course the council’s proposals for the now discredited garden communities.
It has become abundantly clear that over the years council leader Cllr Butland has been granted (or has assumed) far too much power to determine the course of events and, without what might be considered proportionate and effective checks and balances, he has made a demonstrably poor job of it. One gets the strong feeling that he has been the primary driver of the NEAs GC’s project from the start and he must therefore surely take a commensurate share of the blame for its abject failure.
When one considers the sum total of BDC’s planning performance over the last 15 years it can only be described as abysmal. Cllr Butland has overseen this performance in its entirety. There is no one else to blame. He has been active in many of the most important and far reaching decisions and been the sole decision maker in the most far reaching of them all, his unilateral decision in 2018 to ignore the inspector’s preferred “Option 1” in favour of “Option 2” which has turned out to be a disastrous mistake.
The trouble is that he is still at it and needs to be stopped.
If you agree you can register your view by signing a petition. The link is
Apart from alleging incompetence and a performance below the standard a Braintree elector might reasonably expect the author neither implies or asserts any wrongdoing on the part of any party.
The author is a member of the Better Braintree Together Group who were not involved in the production of this blog.
If you observe any errors in this document please comment. They will all be considered.