David v Goliath: mass irrational behaviour by Cllrs in council chamber – final part

Tim Steer (pictured) “applied for judicial review of the decision by Shepway District Council (SDC) on 18 May 2017 to grant planning permission to the Interested Parties – The Westgarths,  for a holiday park on their land at Little Densole Farm, Canterbury Road, Densole, Kent, CT18 7BJ”.

It is necessary to point out from the outset that the officers report was to refuse development on the site. Eight Cllrs went against this advice.

The nub of that matter are the minutes of the meeting of 28 February 2017 which were, in effect, the sole reasons for the Committee’s decision. Cllrs could not rely upon the Officer’s Report to refuse permission, since it did not follow its reasoning or recommendations. According to Councillor Dick Pascoe (pictured), members rejected the Officers Report (OR) in its entirety (see the minutes of the meeting of 28 March 2017 above). So with a microphone system and a webcam system which can record and cost in excess of £60,000 could have saved the day for the Cllrs, but alas no recording or streaming was undertaken, even though both facilities have been in the chamber for nigh on two years.

In re Poyser and Mills’ Arbitration [1964] 2 QB 467, 478), Judge Megaw set out that the reasons must be “proper, adequate and intelligible” and can be “briefly stated” (p 673E-G). Similarly local planning authorities are able to give relatively short reasons for refusals of planning permission without any suggestion that they are inadequate.”

The CPRE (Kent) victory regarding 521 homes to be built on land at Farthingloe , Lord Carnwath went one step further than Judge Megaw and concluded, at para [68], that the Planning Committee’s failure to explain the reasons for its decision, and its departure from the Planning Officer’s recommendations:

• “… raises a “substantial doubt” (in Lord Brown’s words) as to whether they had properly understood the key issues or reached “a rational conclusion on them on relevant grounds”. This is a case where the defect in reasons goes to the heart of the justification for the permission, and undermines its validity. The only appropriate remedy is to quash the permission.”

So eight Cllrs who voted for Little Densole Farm to be approved, all had a combined mass irrational moment. Is that a first we ask? Cllr Govett has previously suggested in the chamber that some Cllrs ought to be in a care home. So the eight who succumbed to mass irrational behaviour in the chamber were:

• Cllr Dick Pascoe (Con) (Proposer) (pictured below left)

• Cllr Peter Simmons (Con) (Seconder)

• Cllr Ann Berry (Con)

• Cllr Claire Jeffrey (Con)

• Cllr Len Laws (Ind)

• Cllr Rodica Wheeler (Con)

• Cllr Philip Martin (Con)

• Cllr Paul Peacock (Con) (pictured below far right)

Abstentions

• Cllr Mary Lawes (UKIP) (pictured below left)

• Cllr Susie Govett (Ind)

 

With regards to the decision it raises a “substantial doubt” as to the eight Cllrs as they all voted irrationally, thus leading to the decision to be eventually quashed by Justice Lang. Should SDC now consider having a Psychiatrist/Psychologist present in the chamber to determine when and if the eight Cllrs are behaving rationally or not? You can ponder that, as we think it’s important no more moments of mass irrationality should happen in the Chamber.

The Site comprises about 13.5 acres (5.5 ha) of agricultural land. It is located in open countryside to the east of the village of Densole, within an area designated nationally as the Kent Downs Area of Outstanding Natural Beauty (“AONB”) and locally designated as a Special Landscape Area (“SLA”).

Justice Lang ruled at the start of the hearing,

• “that the witness statements from Mr Geering, Head of Planning, and Ms Claire Dethier, Development Management Team Leader, at the Council, were not admissible because they gave ex post facto reasons for the decision in an attempt to answer the Claimant’s criticisms in the litigation. Applying the principles and authorities helpfully set out by Green J. in Timmins v Gedling BC [2014] EWHC 654 (Admin), at [109] – [114], I concluded that they were self-serving statements, intended to “plug the gap” in the Defendant’s contemporaneous documentation, and so were inadmissible. Part of their evidence purported to give an account of what was said at the meeting which could, in principle, have been admissible. However, their accounts were inconsistent with each other, not supported by any contemporaneous notes, and also hotly contested by Councillors Lawes and Govett who were present at the meeting and opposed the development. In those circumstances, I could not treat any of their witness statements as a reliable record of the meeting. For the same reasons, I also ruled that Mr Westgarth’s witness statement, giving his account of the meeting, was inadmissible ex post facto evidence and not a record which could be relied upon.”

The draft minutes of the 28^th February for the decision on Little Densole Farm proposed by Cllr Dick Pascoe, and seconded by former Cllr Peter Simmons and voted on 8:2, came before the Planning and Licensing Committee on the 28^th March. At this stage, Cllr Mary Lawes objected to the Chairman Cllr Clive Goddard (pictured) about the minutes on the grounds that:

• “none of this paragraph 6 was actually said within the meeting, and things that were said aren’t in the minutes …. Councillor Pascoe was asked by the Head of Planning what were his reasons to [sic] approving the application because it was recommended to be refused and Cllr Pascoe said he wanted to overturn everything that was recommended to be refused. No other comment was made than that…..”

Cllr Mary Lawes was supported by Cllr Susie Govett.

In reply, Councillor Pascoe said:

• “To clarify ……what I stated was, all the reasons for refusal of the application, were my reasons for approval. So all you have to do is to just turn the wording around and that was the words I used and I am seeing nods as well, that’s what I actually asked for. That the reasons for approval, were it to be opposite of my reasons for approval and that is why this is staying as it is because this is exactly what I said and asked for …”

Make of that what you will.

And Cllr Hollingsbee added her tuppence worth on the 28^th March – even though she was not at the meeting of the 28 February – gave her explanation for the wording of the minutes:

• “This isn’t what the councillors … this isn’t word for word what the councillors said, this is what Ben [Head of Planning] has read back as being the reasons that councillors felt it should be approved. And that would’ve been agreed, because that’s what we do, what we always do, as an overturn.”

Ben Geering (pictured) Head of Planning at SDC  could only have read back what Councillors would have told him, passing the buck Cllr Hollingsbee, surely is below the belt. We know as our public face was at the meeting on the 28^th March 2017 and the 28^th Feb 2017.

So to sum up and allow those of you who choose to read the full judgment to draw your own conclusions. Justice Lang said “the decision must be quashed.” due to eight irrational Cllrs providing inadequate reasons. Well done Cllrs Lawes, Govett and The SDC Planning Officers present, as they were the only rational people in the room.

No doubt there are questions some of you may like to ask of the eight Cllrs. Also how much did it cost? Yes Shepway no doubt has some form of legal insurance, but it will have cost. Will the eight Cllrs who acted irrationally on the 28th Feb receive further training, so as to ensure such behaviour does not happen en masse again in the Council Chamber.

The Shepwayvox Team