With the dust beginning to settle it is perhaps now time to start considering how the North Essex Authorities’ (NEA) lauded Garden Communities (GC) project went so wrong.
Was it over ambition or perhaps incompetence that brought this much hyped scheme down? Some have said it was a wrong decision on the part of the local plan inspector in his role as examiner. And is there any cause to believe that wrongdoing on the part of the BDC leadership may have played a part?
So did the inspector get it wrong? These things always come down to a matter of judgement. There is rarely a clear cut answer although in this case the judgement as to the efficacy of the proposition or rather the lack thereof was damming. Nevertheless, there were cries of foul on the part of some advocates of the project.
The real test of course comes in the form of a challenge to the inspector's decision. Despite assertions that he got it wrong there has been no such challenge. Instead all 3 NEAs have fallen into line and accepted the inspector’s decision by formally agreeing to incorporate his “main modifications” in an amended version of their respective but hitherto jointly submitted local plans that will now exclude 2 of the 3 GCs originally proposed with only the smallest one surviving constituting just a fifth of the homes envisaged by the planners. It is noted that none of these homes will be built in Braintree. Given the absence of any credible push back by some complaining BDC councillors this must signify that they agree, albeit begrudgingly, with the inspector's logic.
Further, all 3 NEAs have agreed to the dismantling of the GCs’ delivery vehicle North Essex Garden Communities Ltd (NEGC) and its 3 local development vehicle (LDV) subsidiaries without so much as a brick having been laid but at a cost to the public purse approaching £8M.
Was the project overly ambitious? One might say that at 46,000 homes spread over 3 conurbations with a timeline of 80 years to completion said project was most obviously over ambitious. It’s the same thing as planners after the war trying to predict how our world would look in 2020. Back then nobody could have predicted the many twists and turns the future had in store for us and how this has moulded the development of our society as we see it today. Why would the NEA planners of today think they would be better able to predict the future beyond say a decade or so hence? To advocate such an unprecedented timescale was naive to the point of exposing the protagonists to ridicule for their lack of grasp of reality.
In his report on the NEA’s local plan submission the inspector made scant direct reference to this fanciful timescale which had been determined with such purposeful alacrity by its promoters but he nevertheless tore down the assumptions supporting it by pointing to the fundamental lack of viability of the project even within the more realistic timescale of the current plan period.
There was also a lot of vested interest from developers, consultants and their agents plentifully represented throughout the protracted deliberations that led up to each of the 2 failed submissions which gave the plan a momentum of its own. Like the king’s new clothes this was at the cost of objectivity. It took the inspector to call it out and tell it like it was. This loss of objectivity might well be considered as incompetence on the part of those advocating a proposal that became increasingly unrealistic as the project's plans progressed. BDC looked to be increasingly in over its head and so it proved.
So was there any wrongdoing in the mix? According to a complaint recently filed with BDC by a seasoned local campaigner the answer would appear to be quite possibly.
It refers to the role played by the leader of the council Cllr Graham Butland. Some of the details of this complaint have emerged and point to a number of issues. Of these, one stands out above the rest in terms of its binary nature and its far reaching consequences for the GCs project as well as the enormous costs incurred by the taxpayer. Conveniently all the evidence one needs to corroborate what follows is in the public domain (and online) so can be reviewed and easily verified by anyone interested in doing so.
On 23 July 2018 Cllr Butland made a statement to full council with reference to the inspector’s initial rejection of the NEAs’ local plan proposals. In that statement he announced that, as leader of the council, he was invoking his executive powers by selecting the inspector's “Option 2” as the means by which the council would proceed in order to secure the adoption of a local development plan for the district.
In rejecting the NEA’s Local Plan submission in June 2018 (for the first time) the inspector provided the NEAs with 3 options for proceeding.
Option 1 was to drop the GCs from the plan and resubmit it with the GCs being considered for inclusion at a later date.
Option 2 was to rework the GCs aspect of the plan and resubmit it.
Option 3 was to withdraw the plan altogether and go for a rewrite.
Whilst offering these options to the NEAs the inspector was clear in his believe that Option 1 offered the quickest way for them to put a local plan in place. This would of course have been at the cost of delaying the GCs project perhaps for a number of years.
Whist the wording of the regulations governing local government executive powers is somewhat arcane it would seem to support the leader’s claim that he held such power although it is arguable that such a far reaching decision should have been put before the council for debate in the interest of democratic representation and accountability. That said, the complaint does not seek to challenge this aspect of Cllr. Butland’s statement.
In advising the council that he had selected Option 2 Cllr Butland stated that he had done so after “careful consideration” of all the options and risks.
The minutes of the meeting helpfully record the moment thus
“The Leader stated that after careful consideration of the options and the risks associated with each he had determined, in accordance with delegated powers that Option 2 was the best way forward.
It is his claim to have "carefully considered” the options that must be considered in light of a letter from the NEAs to the inspector dated 20 July 2018 i.e. 3 days before the leader made his statement to the council.
This letter, designated NEA004 on the local plan website, sought clarification by the NEA's local plan officers in respect of several aspects of the aforesaid options. The letter sought the inspector’s “further advice” specifically with respect to Option 1. The seven questions posed in the letter were by no means trivial in their nature but most decidedly substantive by any acceptable measure. The existence of this letter makes it clear that the local plan officers of all 3 NEAs had not concluded their deliberations with reference to the inspector’s options given in his 8 June letter at the time of the 23 July meeting. It is therefore difficult to see how they could have advised their respective executives and councillors on the options on or before 23 July without the caveat of there being more pertinent and substantive information yet to be received.
The inspector replied to the letter only on 2 August 2018 (IED013 on the website entitled Inspector's Section 1 response to NEA004). In other words, at the time of Cllr Butland’s statement and decision to select Option 2 he could not have been in possession of the inspector’s answers to the questions posed by the NEA’s letter and which provided further authoritative clarification of the points raised.
Despite the clear and indisputable fact that the NEAs were still awaiting clarification on a number of important aspects relating to Option 1 Cllr Butland claimed in the meeting to have given “careful consideration” to the options. How could he have undertaken such “careful consideration” when the NEAs were still awaiting the inspector's answers relating to Option 1 i.e. from the very authority that had proposed the options in the first place. He also refers to having considered the “risks associated with each [option]” when the local plan officers i.e. his advisors were still seeking a fuller understanding of such risks as the 20 July letter makes clear? On 23 July he was in no position to determine "the best way forward" without being in possession of the information that the inspector was yet to produce.
The 20 July letter gives no indication of Cllr Butland’s intention to announce his decision to select Option 2 at the upcoming council meeting nor does it request any deadline for the inspector’s reply that would have facilitated such an announcement. It reads as though the authors are expecting that all the NEAs would be waiting on his reply before settling on their respective decisions, a perfectly reasonable position for them to take.
Had Cllr Butland waited to receive the inspector’s reply he would have read that in paragraph 10 thereof the inspector states
“Option 1 is intended as a constructive response to the shortcomings I found in the evidence base for the key strategic-scale (garden community) proposals in Section 1. My purpose in suggesting it is to offer the NEAs a way to proceed to the examination of their individual Section 2 plans, and the adoption of both Section 1 and Section 2, more quickly than via Option 2 or 3.”
This is a clear reference to the inspector’s view that Option 1 offered the shortest route to the adoption of a local plan. After all he had already indicated in his 8 June 2018 letter to the NEAs that the Section 1 plan could be found sound with the GCs sections removed.
Cllr Butland countered this by arguing in his 23 July statement that his decision to select Option 2 would result in a delay of just 3 months, a timescale that was met with incredulity at the meeting. This was in no way credible and was challenged by the Green opposition councillor James Abbott and at least one member from Cllr Butland's own side of the chamber. In reality we now know that the actual delay amounted to almost 2 years (and still no plan in place) thus simply reinforcing the inspector's view that Option 1 was the superior route and rendering Cllr Butland’s 3 month estimate farcical. If this was an example of Cllr Butland's "careful consideration" then it's no wonder things went so badly wrong.
We are accordingly left with the question of why Cllr Butland thought it necessary to press his decision on the council at the 23 July meeting whilst not being in possession of all the information his advisors deemed necessary in order to conduct a full and “careful consideration” of all the options and the risks associated with them.
The question therefore arises as to whether Cllr Butland knew or should have known of the existence of the 20 July letter. Said letter must have been sent under the direction of someone in authority at all 3 NEAs. It should also be noted that Cllr Butland is a long standing member of the council’s Local Plan Subcommittee, the very body that formulates planning policy and recommends it to the council. Given that he had elected to use his executive powers, he had a solemn duty to equip himself with all the pertinent facts including the fact that the 20 July letter had been sent and a reply was still awaited.
In order to complete a “careful consideration” of the options and their risks, Cllr Butland would have had to consult with his local plan officers before coming to his decision. Had he done so prior to his 23 July announcement it is reasonable to suppose that he would have been advised of the existence of the 20 July letter and that its authors were awaiting further pertinent information before they would be in a position to provide their final considered advice. With the knowledge that further information/clarification was being sought Cllr Butland would have had to postpone the announcement of his decision. Either he chose to ignore such advice or he failed to consult with his officers at all. In which case he either misled the council by claiming he had undertaken “careful consideration” of the options or he was negligent by failing to consult his professional advisors.
In any event his unilateral decision to select Option 2 was, up to that point, arguably the most important decision of the entire local plan process with the potential for extremely far reaching negative consequences if he got it wrong and, as we now know, he did just that.
As has already been stated, Cllr Butland was acting within his powers when making his decision to select Option 2. However his action very much calls into question his judgement as the leader of the council. The regulations allow him to make such a decision but do not require him to do so. So why did Cllr Butland not wait until he was in possession of all the facts? What was his hurry? Why not open up such a critical matter to council debate before arriving at a decision? Why take such a professional risk by failing to take his officers’ advice on board or perhaps by failing to consult them? Was it necessary to make a decision on that day and at that meeting?
For him the answer may well have been yes and here is a possible explanation as to why.
The council’s 23 July meeting was the last before the summer recess but the first opportunity for the leader to brief the council following the inspector’s 8 June decision to reject the local plan. Having delivered his statement Cllr Butland needed to then apprise the council of his decision to go for Option 2 since the council would not meet again until October. Whilst he was exercising his executive power it remained necessary to provide an opportunity for challenge in the form of questions from councillors even if a full debate was to be denied them. That one and only opportunity prior to the summer recess was on 23 July.
Cllr Butland’s predisposition towards the GCs project is well known. His participation as a director of NEGC is testament to that. It is reasonable to suppose that he would have wanted the GC’s to remain part of the local plan proposition. Nothing wrong with that. Option 1 would have delayed adoption of the GCs project by 2 or 3 years (the inspector’s estimate) and possibly far longer. It is therefore no surprise that he favoured Option 2 that would keep the GCs in play.
In forcing his preference through at the 23 July meeting Cllr Butland would ensure that Braintree was the first of the NEAs to take a position. This would effectively tie the hands of the other NEA members since unity was an indispensable aspect of the combined Section 1 local plan proposition. Had Cllr Butland waited for the inspector’s reply to the 20 July letter as he should have done he would have missed his opportunity at the 23 July meeting which was, as pointed out above, the last scheduled meeting before the summer break. This meant that the next opportunity would have been on 8 October when the council was scheduled to next meet.
By that time both the remaining NEAs could have already met to decide their respective positions over which Cllr Butland had no jurisdiction. His opportunity to influence events would have been lost. It was well known that Colchester Borough Council was less committed to the project as proposed with much opposition from the minority Conservative group together with a small number of other detractors. If this was Cllr Butland’s concern then it was well founded given that CBC’s decision to stay with the project and go for an opposition backed modified version of Option 2 was put on a knife edge with a tied vote and only succeeded with the chairman’s casting vote.
The foregoing is of course conjecture but it would explain why Cllr Butland was so keen to establish BDC’s position at the 23 July meeting to the extent of taking the risk of making his decision before all the facts were in.
Whether this is the case or not, whilst there is nothing wrong with a councillor being predisposed towards an idea and working to realise its outcome there is no excuse for his acting in a predetermined manner in order to achieve his desired end goal. However Cllr Butland was playing fast and loose with his executive powers by forcing an ill considered and premature decision on both the council and the taxpayers of Braintree before all the relevant information was to hand and, as it has turned out, with disastrous consequences. He misled the council by stating that he had given due consideration to all the facts when he knew or should have known that not all the facts were available to him.
Acting in a predeterminate manner offends the Nolan Principles and is counter to the councillor’s code of conduct. It is also called out under the Localism Act and is contrary to the council’s constitution. Cllr Butland’s premature action has had dire consequences for the Braintree community at large which may well be felt directly as steps are taken by the council to recoup its losses.
Cllr Butland has made a grave error brought about by poor judgement in the pursuit of his preferred outcome that he saw as being under threat with disastrous consequences. He should consider his position and surrender his post as leader of the council. The residents of Braintree must now pick up the pieces and deserve nothing less.