Email: whag1000@gmail.com

Sally Marshall

Chief Executive

Dacorum Borough Council

The Forum

Marlowes

Hemel Hempstead

Hertfordshire

HP1 1DN

25 January 2020

Dear Ms Marshall,

COMPLAINT

We, West Hemel Action Group (WHAG) write to lodge a formal complaint against Dacorum Borough Council (DBC) in connection with hybrid planning application reference 4/03266/18/MFA (Application) for mixed use proposed development at West Hemel Hempstead (LA3 or the Development). In particular this letter concerns the conduct of the Development Management Committee (the DMC) Meeting held on Thursday 28 November 2019 (the Meeting) in approving the application for development at LA3 (the Decision).

Our complaint is as follows:

1. DMC did not follow correct procedure:

a. It gave incorrect information and misleading advice

b. It failed to carry out adequate consultation

c. It failed to follow procedural rules

d. The conduct of the DMC did not follow the principles of natural justice: it has shown bias and failed to give affected parties an appropriate hearing

As a result of the above we therefore contend the following.

2. The Decision is not valid:

a. The DMC misdirected itself as to its jurisdiction

3. The Decision is irrational and unreasonable:

a. The DMC failed to consider relevant information whilst taking into account irrelevant and/or anecdotal information and unsubstantiated opinion.

b. The DMC failed to obtain all the information necessary to make a properly informed decision

c. The DMC made mistakes as to fact

d. The Decision is disproportionate to the aim it is seeking to achieve

e. The Decision is discriminatory as it has not equally considered the wishes, rights and objections of the settled community

As a result of the numerous fundamental flaws set out above, we submit the Decision must be set aside without delay.

1 Background

1.1 We reiterate that WHAG is not opposed to the principle of more houses and supports development of this site. It does not support the current proposals which simply exist to maximise quantum and developer convenience without due consideration of national and local policies, and the need to consider and allay concerns and fears of the local communities.

1.2 WHAG’s interest is to represent the view of the people of West Hemel in terms of ensuring sustainability related to infrastructure, ecology, promoting health and well-being of current and future residents. WHAG is holding DBC to account in respect of compliance with national and local policies, joined up thinking and future proofing the development for the benefit of all.

1.3 WHAG has long campaigned against elements of LA3, seeking answers to questions on its sustainability with particular reference to built amenity (total numbers of houses and facilities), highways and inclusivity of the Gypsy and Traveller (G&T) site.

1.4 WHAG’s detailed objections over some considerable time, along with many others, are mostly a matter of public record as submissions, including on the referenced planning application itself. The disproportionate list of matters raised before and during the DMC that have been delegated to the Group Manager is testament to the abject lack of consideration of these concerns.

1.5 The conduct of the DMC is indicative of this manifest lack of consideration or preparation by DBC, which has resulted in an irrational and unfair decision, including, without limitation the following failures on your part.

2 Specific Failures

Consultation and Representation

2.1 At the outset of the meeting, the Chair informed members and the public that the Councillor for Bourne End, Mr Adeleke, had applied to speak. He had been refused permission on the basis that his ward did not fall within the ambit of the application. This is an absurd determination given the scale and impact of the Development and the proximity of the Development to the hamlets of Pouchen End and Winkwell and the village of Bourne End.

2.2 Also, the Local Councillor for Chaulden and Warners End, Nigel Durrant, was not allowed to speak because, we understand, his application had not been received in time. The precise application of the rules may be thus but it is grossly unjust that a DMC member who conscientiously recused himself from the committee on the grounds that he may have pre-determined views that he wished to express, should then be prevented from doing so; particularly as the views were against the recommendation. Furthermore, Cllr Durrant was not only barred from giving his views, but having recused himself from the DMC, he could not vote.

2.3 It offends the principles of natural justice that two such affected parties were not permitted to be heard at the Meeting.

2.4 Conversely, at the outset of the meeting, the Chair cautioned the audience against any interaction with members or officers, including during comfort breaks. Yet, during one such break, the Assistant Director and Group Manager for planning, were witnessed in discussion with six representatives of the applicants.

2.5 Having consulted during the interval, the applicants’ representatives were invited to answer questions directly to the committee i.e. in addition to their five minute address (which of itself followed all the objectors’ addresses). We believe the Council’s legal advisor indicated this was acceptable. However, the same opportunity was not given to any objectors in order that a balanced perspective could be provided.

2.6 Additionally, we understand that the applicants attended two pre committee briefings with councillors yet those same councillors did not fully engage with the objectors, including WHAG, often citing a fear of accusations of prejudice and predetermination.

2.7 Such unilateral exceptions and repeated bias in favour of the applicants were procedurally unfair and partial, and therefore failed to consult properly and failed to take account of all available information relevant to the decision.

Advice to Members

2.8 On a number of occasions during the Meeting, Members requested clarification regarding the options for approval of the application, specifically enquiring whether, in the process of approving the housing recommendations, would members additionally be approving the quite separate matter relating to changes in the spine road within LA3, Chaulden Lane and, in particular, access to the Gypsy and Traveller (“G&T”) site and adjacent Foul Pumping Station (“FPS”).

2.9 Councillor Hobson raised several valid points leading to a practical compromise suggestion to resolve major matters of contention between the existing community and the proposal put forward by the developers, namely:

2.9.1 the devastation of the rural lanes in preference to designing the new, purpose built, spine road within the development to provide access to the G&T site.

2.9.2 the general vehicular access into LA3 for travellers to provide inclusivity to facilities

2.9.3 to avoid domination of the local community

2.10 Following a period of consultation between the Chair and Officers, external to the meeting, Members were then directed by the Chair, and specifically who we believe to be the DBC legal advisor, they could only approve the Application exactly as presented; the change proposed was a material change and would require the applicant’s acceptance or resubmission (of the whole application).

2.11 The Chair asked the applicants if they would consider incorporating the change as proposed by Cllr Hobson. After brief consultation they stated they would only do so as a reserved matter and not as a condition. This therefore rendered the proposal ineffective.

2.12 There was no explanation, by the Chair, that they could resolve to defer consideration on the basis that this element was unacceptable with the applicant being invited to amend their application and return.

2.13 Members then voted on the basis of this incomplete information and lack of attention to local and national policies.

2.14 It is clear that the Members were misdirected as to the extent of the DMC's jurisdiction. The DMC wrongly concluded that it could not invite the applicant to amend its application. Therefore, Members voted on the basis of incorrect information and unnecessary rigidity of policy, resulting in an invalid decision.

Highways

2.15 In spite of concerns raised by numerous local organisations and individuals intimately familiar with the roads, planning officers gave assurances to members that the highways submissions by the applicants, validated by Hertfordshire County Council Highways department (“HCC”), demonstrated conclusively that the highways plans were fit for purpose and would not lead to “severe” problems. This was predicated on a limited scoping in the immediate area of the development. Specifically, it missed areas (in the south and west of LA3) where local and rat run traffic would coalesce.

2.16 In particular, members were assured that the provisions along Chaulden Lane for vehicles accessing the G&T site and FPS (as in 2.8) had been professionally assessed and adequately met; including for low loaders delivering and removing static caravans.

2.17 However, this is demonstrably incorrect advice as the proposals provided by the developers, and endorsed by HCC, do not reflect the Road Vehicles (Construction and Use) Regulations 1986 or the prospective loads. Conflicting and incoherent advice was given to members who were advised that all mobile homes and caravans coming to the site would have to come via Chaulden Lane, that Chaulden Lane was not proposed to be widened (save for passing points) and that a low loader carrying a mobile home or static caravan would likely have to have a police escort when driving down Chaulden Lane. In that context the advice that such a route was to be preferred in favour of using the internal spine road and access to LA3 was perverse and irrational.

2.18 The assessed loads are set out in the submitted drawing title “Chaulden Lane Vehicle Profile – articulated lorry” by C&A Consulting Engineers for the applicants. The assessed vehicle profiles are set at maximum load dimensions of overall length 17.9 metres (58.7 feet), width 3.0 metres (9.8 feet) and height 3.6 metres (11.8 feet). These conform only to the European convention for “normal loads”, i.e. a standard 40-foot ISO container, not static caravans.

2.19 The carriage of single – wide static caravans, of up to 5.5 metres (18 feet) wide is permitted in the UK, albeit anything over 2.9 metres (9.5 feet) wide is considered to be a “wide” or “abnormal” load.

2.20 Expert advice obtained from Abaco Transport Limited, a long-standing professional haulier who specialises in the transportation of large loads and specifically static caravans and mobile homes, is that:

· Chaulden Lane is not suitable for Abnormal Loads, [emphasis added] including Static Caravans and Park Homes and to make it so would require significant widening well beyond the scope of the limited passing points proposed.

and that:

· Smaller Statics up to 10’ wide would be more accessible on the route however nowadays most of the homes we deliver that are suitable for families to live in are 12 feet to 14 feet wide, often wider.

2.21 Additional advice is that to transport such a load to the proposed site, even if the lane was widened to accommodate, would require the lane to be closed to traffic completely, including all parking on Chaulden Lane. This has not been considered.

2.22 This same point was challenged by the G&T liaison officer who stated in his report that “I would also make the point that Chaulden Lane would need to be widened in order to allow a low loader to access the site”. This comment was derided by officers as not being from a highways expert but who better to understand the nature and needs of travellers’ accommodation units than their own liaison officer?

2.23 Therefore, the correct loads have not been assessed or accommodated and the advice given to Members was incorrect, perverse and misleading. Simply put, the application and design are based on an assessment of loads up to 10 foot wide, whereas the intended loads will be in excess of 12 feet.

2.24 Such a flagrant error in judgement and disregard for numerous concerns expressed by both the local residents and the travelling community undermines any confidence in the veracity of the entirety of the highways assessment provided by the applicants, not just in regard to Chaulden Lane.

Gypsy and Traveller Site

2.25 The point was made a number of times by various speakers that the Development posed a potentially harmful threat to the hamlets of Pouchen End and Winkwell and the village of Bourne End and the lack of consideration being given to this, with particular reference to traffic and the design of the G&T site making it practically part of these hamlets as opposed to part of LA3.

2.26 Members were advised by officers that the G&T Liaison Officer was supportive of the proposed plans relating to location and access of the site.

2.27 However on page 3 of the supplemental addendum appended to the meeting papers, written by the G&T liaison officer in respect of this application, it is clear that this support was conditional and not absolute. In particular his support was subject to the following fundamental assumptions:

2.27.1 That Chaulden Lane needed to be widened, which is not being proposed (as per paras 2.12 through 2.23 above):

“Plots need to be of a size to accommodate 2 vehicles to ensure the site road remains clear. I would also make the point that Chaulden Lane would need to be widened in order to allow a low loader to access the site.” (emphasis added)

2.27.2 That the Foul Pumping Station will be underground, whereas it was confirmed at the DMC by the Case Officer that it would be two storeys above ground as well as below. (See also paras 2.34 to 2.38 below on FPS):

“The few travellers that I did speak to regarding this development, voiced concerns as to the close proximity of the site to the pumping station, as some sites in the past have been placed next to sewerage works or recycling plants. Though I believe this installation would in fact be underground. (emphasis added)

2.27.3 That vehicle access through LA3 to amenities would be available, which it is not:

“I believe that they would be happy with the pedestrian/cycle connection in order to

access schools and shops. Though many would simply drive through the housing estate to take their children to school.” (emphasis added)

2.28 It is clear from the foregoing that these assumptions were wrong and therefore the support of the G&T Liaison Officer was misrepresented by Officers presenting the application. This was not made clear to the Members.

2.29 Following the mid meeting comfort break, the Chair proceeded to make her own presentation regarding travellers and the G&T site, drawing on her past experience in a former role as HCC member responsible for gypsies and travellers. She informed Councillors that the G&T community want to be integrated and like to be near shops, though heavily emphasising that they wish to retain their own sense of identity; that most sites have an element of separation; they wish to have good access to schools, medical facilities and amenities, while at the same time being “apart”.

2.30 She opined that previous speakers’ desire for the travellers to be integrated according to policy (i.e. current 2015 policy) was, and we quote “commendable” but stated this was not what they (the travelling community) want, and that they want access to facilities but to maintain separation. We reiterate that the 2015 Policy for Gypsy and Traveller sites seeks to address the problems of exclusion, contrary to the chair’s intervention.

2.31 While the Chair stated that her comments were generic, it is churlish to consider that such an intervention was impartial and we consider it distracted members from the specifics of LA3, and was misleading. Whilst arguably well intentioned, this intervention is surely contrary to procedure and very incorrect. Decisions should not be taken on the basis of personal feeling and the Chair, surely, should be overtly neutral and it was not for her to impart her own views to other members in respect of such a matter at such a key moment of the debate. Any direction by a chair should point to qualified opinion, due process, policy and the law.

2.32 We would also contend that her comments are not evidence based but anecdotal, and thus have no place in a discussion that was about compliance with strategy and policy. What travellers want is no more important than that which existing or any future residents want – it is about complying with the policies and guidelines that are intended to guard against subjective social engineering and avoiding divisive planning.

2.33 Therefore, the consultation was incomplete; representations were misrepresented; the officers’ advice was misleading having taken into account incorrect assumptions; the Chair’s intervention was partial; and the decision irrational.

Foul Pumping Station (“FPS”)

2.34 Significant concerns were raised as to the efficacy of the design of the FPS, including its location and access, in particular, by local resident, Carol Elvin, and the G&T Officer.

2.35 Expert Civil Engineering advice was referenced that challenged the ability of the site to meet ‘Sewers for Adoption’ criteria - a Design and Construction Guide for Developers, Eighth edition – August 2018 written by Water UK. i.e.:

· D4.1 Location as relates to proximity to residential buildings (minimum of 15m), susceptibility to flooding (max 1:30 years) and visibility to the water company.

· D4.2 Site Access as relates to safe and reasonable access at all times, including maximum gradients.

2.36 It is accepted that due to topography, such a facility is required to be located in the south of the site. However, it appears its position has been considered as an “after thought” and it has been squeezed into a position as far away from the developed properties as possible, and specifically allowing the developers to maximise developable space, without any consideration of the adjacent settled community or environment. Moreover, it is foisted upon the G&T community.

2.37 Conversely, while this access point is part of the Stage 1 full application, no detailed designs (plans, elevations, etc) have been provided to show how this will be achieved. Instead, concerns were dismissed out of hand, in preference to generic applicant assurances that it would be manageable.

2.38 Once again, this is an example of a failure to ensure that the Decision was rational and evidence-based. No sensible authority with full appreciation of its responsibilities would decide to go ahead with such a fundamental part of the development based on a verbal assurance from the applicant without any evidence to support that position. Therefore, the advice is incomplete and the decision irrational.

Conditions and Delegations

2.39 The number of matters that have been deferred through draft conditions and the myriad of Members’ questions effectively left to be resolved under delegated powers, is disproportionately high given the significance of this development. Outstanding issues include, without limitation:

· Adoption of key infrastructure, including open spaces, highways and SUDS

· Bus provision – on which highway and travel plans are dependent

· Deliverability of critical infrastructure including healthcare and schooling

· Regional water capacity, given ongoing drought warnings and prospective restrictions on existing residents (https://www.affinitywater.co.uk/my-water/water-resources)

· Adequacy of sewage infrastructure

· Provision of sports pitches

2.40 Advice from Phillip Hughes, a chartered town planner is that:

“In my experience it is very unusual to find Members resolving to grant permission for such significant development when the heads of terms of the proposed undertaking and in particular its trigger points are unresolved such that Members cannot be confident that the undertaking will address the community concerns about the impact of development on existing infrastructure. Added to this the lack of any cogent schedule of conditions leaves the decision purely one in principle and not one any member could have confidence addressed all their concerns.”

2.41 The list of conditions and reserved matters is so huge and contentious as to be disproportionate and therefore render the decision irrational.

3 Actions Required

3.1 The DMC decision to be set aside and the application deferred pending your procuring of and making public the following:

A. Independent traffic assessment encompassing all areas affected by all aspects of the development, including, without limitation, the implications for health and safety in its delivery alongside pedestrian and cyclist provision and design of access points from Chaulden Lane; and

B. Independent appraisal of the plans for the G&T site for compliance with all related policies, guidelines and strategies and other relevant documentation;

C. Full appraisal of the site in relation to the FPS and G&T site, including layout, access, drainage and elevation, without which this part of the application cannot be included in Phase 1.

3.2 The terms of reference and outputs for these studies to be agreed with WHAG.

4 Next Steps

We look forward to receiving confirmation that you accept that the Decision is unlawful and provide your full written proposal for setting aside the Decision and procuring the independent assessments within 14 days of the date of this letter, namely by 10^th February 2020.

4.1 We reserve all our rights, including the right to commence Judicial Review proceedings against you.

Yours sincerely

WHAG Committee

Fiona Guest, Chair DMC

DBC Councillors

Sir Mike Penning, MP

LA3: Letter from WHAG to Dacorum Planning