1)    After the Chair opens the meeting the Members who asked for the decision to be called in will be asked to explain their reasons for the request and what they feel should be reviewed;

 

2)    On matters of particular relevance to a particular ward, ward division Members who are not signatories to a call-in have the opportunity to make comments on the call-in at the meeting, such speeches not to exceed five minutes each. Ward Members will take no further part in the discussion or vote. Ward Members must register their request to speak by contacting Democratic Services by 12 noon on the day prior to the relevant hearing;

 

3)    The relevant Cabinet Member for the portfolio (or holders if more than one is relevant) will then be invited to make any comments;

 

4)    The relevant Executive Director or his representative will advise the Panel on the background and context of the decision and its importance to achieving Service priorities;

 

5)    Panel Members will ask questions of Members and officers in attendance;

 

6)    The Cabinet Member(s) will be invited to make any final comments on the matter;

 

7)    The Panel votes on a decision.

Oran Norris-Browne read out the procedure for the call-in for transparency and clarity for panel members and the public who were watching.

 

Councillor Singh as the member who called in the decision read out the reasons that were submitted by himself, Councillor Price and Councillor Hill as to why they were calling in the decision. This was present within paragraph 1 of the report.

 

Councillor Singh outlined three key issues for the call-in. These were viability, infrastructure delivery and strategic placemaking. On viability, costs, demand, inflation, and energy prices were all increasing. The viability update report had been published after the consultation was complete. He continued by saying that the reached conclusion was that the development of AL13 should still be delivered in a way that met all requirements of the BLP and SPD. He also noted the deterioration of the market which could lead to added disruption for residents.

 

In terms of the infrastructure delivery, he noted that AL13 would have a funding shortfall for infrastructure and mitigation of £47.4 million. Only £10.6 million would come as a contribution from the Triangle site. He also expressed concern over the reports that housing on the golf course site would not be completed until 2041 and what impact this would have on infrastructure funding. He was also concerned about the approach in the SPD to how much each developer would have to pay and the risk to future developments if they did not make up the shortfall. More borrowing would need to occur for the Council up to £200 million, an increase from £50 million.

 

Councillor Singh reminded the panel that the SPD was funded by the developers and therefore it was very conceivable that the amount of Section 106 that must be paid, would work to the advantage of the developers and not necessarily the residents.

 

On his final point, Councillor Singh said that he wanted to place on record that he was very concerned about the failure to provide an area-wide master plan and that this undermined the whole point of placemaking. Given the historic examples of a lack of master planning, such as a playground in St Marys ward, there are many issues and a lack of maintenance due to the lack of a plan being in place by the Council. He also expressed concern about the development on the Magnet site and the lack of master planning as well as issues with the town centre and a lack of master planning.

 

Councillor Singh said that there was a policy shortfall in the SPD which had left a loophole for developers to maximise their GDV and have no cohesive plan around the whole site. Councillor Singh wished for the loophole to be fixed, so that the Council could move forward with a decent scheme. 

 

Councillor Singh was also concerned about the lack of cohesion between plots within the development. He did not wish for plots to be developed and some to be left empty in the site. Without a master plan, this would cause issues in the future and needed to be sorted. That concluded Councillor Singh’s reasoning for calling in the decision agreed by cabinet.

 

The Chairman invited the public speaker to address the panel. They had three minutes to do so.

 

Mr Bermange said that the adopted BLP was set to have a profound impact on the future of Maidenhead, especially the area dubbed The Southwest Maidenhead Placemaking Area. He said that regardless of individual members’ personal views on the principle of development on the golf course and the Triangle site or indeed how they voted on adoption of the BLP, the document should be cause for real concern as it constituted a threat to plan-led development within the Borough. Firstly, because of the way the adopted Borough Local Plan (BLP) had been worded, the document was, by implication, not an SPD but actually a full Development Plan Document and should be treated as such if the Council wished to adopt it.

 

He explained that at the same time the BLP was being examined, another draft Local Plan for Epping Forest was also being examined. By coincidence, the same inspector conducted both examinations. Epping Forest were however slightly behind RBWM in the process, however at the end of the Epping Forest examination, a new inspector suddenly took over from the previous one.

 

The new inspector was so concerned about the wording used when it came to citing other development documents that he insisted on a fresh Main Modifications consultation with the amended wording.

 

Mr Bermange stated that the offending words included phrases such as “in accordance with” or “confirming to”. This new inspector was clear that such phrases left a policy gap which was then filled by the subordinate document.

 

He then said that because much of what was contained within the document was essentially additional policy, it also inherently met the definition of a Development Plan Document (DPD). The case law in Skipton Properties was clear that any local development document that strayed into setting new policy on development management would be a full DPD and should be independently examined.

 

In his closing remarks he said that parts of the SPD clearly conflicted with the adopted Development Plan so, even ifpanel members disagree with the previous points and maintained that the document was an SPD, adoption by the executive contravened both the statutory provisions controlling SPD and conflicted with the Policy Framework. He urged the panel to send this back to the relevant body for consideration.

 

The Chairman thanked the public speaker for their thoughts. The Chairman then referred to the queue of panel members who wished to speak and asked if it would be advantageous to them to hear what officers and the Cabinet Member had to say before they asked their questions. Councillor Clark wished to speak before this.

 

Councillor Clark said that there were several elements to the call-in and asked for some clarity from both the Chairman and the Monitoring Officer as how was best to go about responding to these points.

 

Emma Duncan said that the decision was called in as being unlawful, however said that there was no clear reason as to why the call-in members thought this was unlawful and asked for Councillor Singh to offer some clarification.

 

Councillor Singh said that the 2012 Local Authorities Regulations concerning executive arrangements required the decision-making body to advertise the time and place of all public meetings at the offices of the relevant authority, in addition to publishing on the website. This was to be done five working days before the meeting. In this case, the agenda was placed in a box file on the first floor of Maidenhead library, instead of on the notice board outside of the Town Hall.

 

Councillor Singh then said that section 149 of the Equalities Act 2010 required public authorities to meet the needs of people who shared a relative protective characteristic and encourage those people to participate in relevant public life.

 

Emma Duncan thanked Councillor Singh for the clarification. She then explained that all meetings and specifically the cabinet meeting in question on 15 December 2022 were advertised via the website and also by displaying the agendas in both Windsor and Maidenhead libraries. Library staff in this case had displayed the agenda in an open box file within the community noticeboard section of Maidenhead library. She then admitted that this could be improved and said that going forward, all meetings would be advertised on the notice board outside of the Town Hall in Maidenhead. The box file was visible as you walked in, however it was not ideal. This however did not render the decision unlawful and until quashed by the courts, it was deemed a lawful decision.

 

Emma Duncan admitted that in this scenario it would be very difficult to identify any people who suffered any injustice or disadvantages in the way that the notice was displayed and therefore any prospect of judicial review challenge would be unlikely to be successful. As the Monitoring Officer, she declared although improvements could be made to the process, the cabinet decision was indeed lawful at this stage.

 

Councillor Haseler, Cabinet Member for Planning, Parking, Highways & Transport was then invited by the Chairman to contribute. He asked for some clarification also from Councillor Singh as to why he had called this decision in as there was no evidence provided that backed up the points that he had made. It was agreed that Councillor Haseler would give his statement and then Councillor Singh would offer clarity afterwards.

 

Councillor Haseler said that the adopted BLP was sound and that an SPD would be produced and that it provided the opportunity to ensure that development within the area came forward in a strategic and comprehensive manner. He said that the SPD in question comprised of 3 main sites, being AL-13, AL-14 and AL-15. Paragraph 6.2 of the SPD showed a site-wide framework plan, suggesting that it did come together in a cohesive manner, contrary to Councillor Singh’s remarks. He then explained a few key points about SPDs for clarity to panel members.

 

Councillor Haseler said that Council were entitled to update and develop the evidence base further to help inform preparations of the SPD. It had been expected that this development would extend beyond the end of the plan period, and this was accepted by the inspector. However, he noted that the SPD was not prescriptive on time scales and did not get into any detailed times of delivery. Therefore, there was no mention of the year 2041 and that this had been published in the press and not by the Council. He concluded by saying that he did not personally believe that the SPD was a De Facto development plan and that officers had been careful to avoid this.

 

Adrien Waite, Head of Planning, said that the adopted BLP was there to ensure affordable homes are built along with ensuring that good placemaking was delivered along with addressing climate change. It also married up with the Council’s Corporate Plan and key goals from this. He said that the policy framework set out clearly that a further SPD would be created to provide further guidance on key issues.

 

Adrien Waite said that paragraph 1.1.2 of the SPD clarified its purpose quite clearly and set out that it was a document that was not policy or capable of changing policy within the BLP. It merely provided updated information to assist developers in delivering policy compliant developments. Paragraph 1.1.6 of the SPD ensured that developments came forward in a coordinated manner and ensured a coherent approach. The SPD included a high-level framework masterplan and set out how the infrastructure needs of the developers would be met, amongst other things.

 

Adrien Waite then said that the SPD was fundamental for the two applications that had already been submitted to the planning department, with a third expected shortly. Without an SPD, Adrien Waite expressed concern over receiving the required level of infrastructure contributions that the Council wished to see.

 

Ian Motuel, Planning Policy Manager, reiterated some of the points that were covered by Councillor Haseler within his earlier remarks. He said that the regulations stated that SPDs could contain statements regarding any environmental, social, or economic objectives that were relevant to the attainment and development of land. The SPD in question was indeed consistent with this. Officers took counsels advice on whether the SPD sought to set policy and as highlighted within the report, amendments had been made to ensure that this was not the case.

 

Ian Motuel gave a few examples of these amendments. The first was the text for housing mix no longer requiring around half of the development as flats and half as family housing. This would have created new policy that was not present within the BLP, and this of course wanted to be avoided by officers.

 

Ian Manktelow, Principal Planning Policy Officer, echoed officers’ comments and explained briefly why some of the evidence had been updated, right up to the adoption of the plan in December 2022. He said that costs were up to date and would be constantly updated as and when this information became available, based on evidence. He also said that the £36.8 million funding gap that was discussed by Councillor Singh was not a gap and instead was the funding that was to be sought through Section 106 agreements with the developers. The SPD provided a framework to be able to do this.

 

The Chairman thanked officers and the Cabinet Member for their information and invited members of the panel to ask any questions that they had.

 

Councillor Sharpe asked for some clarity over where the panel currently sat in terms of what points of the call-in were no longer relevant and which ones were. He said from his understanding that the Monitoring Officer had clearly stated that point 1 of the call-in had been clarified and was now not relevant. Emma Duncan confirmed as the Council’s Monitoring Officer that her advice to the panel was that the decision was indeed a sound one until struck down by a court of law. In her view, there was not enough evidence to suggest an application for judicial review would succeed.

 

Councillor Sharpe said that from what he had heard from officers at the meeting, the reasons for the call-in were not accurate and that the members who called in the decision had misunderstood the SPD. He then proposed that an immediate vote would occur on the call-in to take no further action as officers had said that there were no grounds for the claims made by Councillor Singh. The Chairman disputed that officers had said that and said that members of the panel had questions and that they would keep to the format of the call-in as listed within the agenda.

 

Emma Duncan agreed with the Chairman that the panel would stick to the format of the call-in and that any members of the panel could now ask questions to the officers. Motions would need to be proposed once having heard all of the debate, as to make an informed decision on the matter at hand and therefore the motion would not be voted on.

 

Councillor Del Campo echoed the concerns of Councillor Singh with regards to the location of the notice of meeting for the cabinet meeting within Maidenhead library. Secondly, at the City of York Council, several meetings had to be postponed due to the notice of meeting having not been issued correctly and asked if this should be implemented. She acknowledged the Monitoring Officer’s remarks but said that the fact that it had been admitted that improvements could be made to the process of the displaying of public notices, this did bring the decision into question.

 

Councillor Del Campo then said that with reference to section 149 of the Equalities Act 2010 as mentioned earlier by Councillor Singh, was the decision to place the notice of meeting within an open box file on the first floor of Maidenhead library followed up with an Equalities Impact Assessment (Eqia) and if not, what were the Council doing to ensure that it was fulfilling its public sector equality duty.

 

Emma Duncan responded by saying that the meeting in question had already taken place, and therefore could not be postponed. Nobody at this stage had also been identified as being adversely affected by the decision who were unable to make representations at the meeting. A court would look to see some harm to a member of the public being able to not participate at the meeting, which had not occurred. She acknowledged that not all of the notice was visible to the public within the library, dependant on what angle you looked at it. The way forward to a gold standard, was to now pin the notice of meeting to the noticeboard outside of the town hall, which had now begun happening.

 

Emma Duncan said that in terms of access to the document, if placed within a building for example this would of course cause issues potentially for equality, however the staff at these locations were there to aid and assist in any way that they could. The notice was of course also available via the website. She acknowledged that it was likely that not all equality aspects of the Council were gold-plated however Eqia’s were being developed for multiple reports.

 

Councillor Del Campo asked how the Council could be sure that no member of the public was disadvantaged by this issue if perhaps they were not aware of the meeting taking place, due potentially to this issue. Emma Duncan responded by saying that if anybody wished to come forward and state this, then that would be dealt with as and when, but currently that was not the case.

 

Councillor Clark said that Councillors did rely heavily on officer advice as they knew the legalities around things and that the Monitoring Officer had clearly now said that the first point of the call-in was not challengeable. He said that he would second Councillor Sharpe’s motion when it came to that point of the meeting, unless the debate unearthed any information that would change his current stance. The Chairman reminded the panel of the process that the panel would be following.

 

Councillor Singh said that the displaying of the notice was a serious issue and that there was no notice placed on the notice board within Maidenhead library or outside of the Town Hall. He said that having a notice on the first floor of the library in a closed box was not an example of it being clearly displayed. He asked how many members of the panel had been to Maidenhead library to view the file. Nobody other than Councillor Singh had been to see the file and he explained that it was at the furthest point from the stairs, facing the back wall, vertically on its side and it merely displayed the plastic binder.

 

Councillor Singh asked that if one single resident was impacted and brought a challenge to the Council, what would be the impact of this. Emma Duncan confirmed that the notice was in an open file on a shelf and not in a closed one as he had said. Oran Norris-Browne then shared a photograph of the file to the panel members for them to see and gain a visual representation. She said that exceptional circumstances would have to be shown of a breach of process by the Council and that they were significantly disadvantaged. She wished to protect the Council from any judicial review and was happy to change processes to protect the Council. She believed that the risk to the Council was very low in this case.

 

Councillor Del Campo then showed the panel members a picture of the file that she had received and said that the file had been moved within the first picture. Councillor Clark then said that it also could have been moved during the taking of her photo. She agreed that this was plausible.

 

Councillor Singh asked how long his residents had to submit for a judicial review of the matter. Emma Duncan replied by saying that she could not advise residents on this and suggested that they contact their own solicitors. He then asked how long the Council was open to a potential judicial review. Emma Duncan said that she would provide advice to the Council with regards to this in private if applicable.

 

The Chairman then advised a member of the public who was attending in the public gallery as an observer to lower their hand as they had not registered to speak at the meeting and therefore, they were not entitled to do so as this was the process that needed to be followed.

 

Councillor Davey asked Emma Duncan if she accepted that the process of displaying notice of meetings was to be changed as the current process was not adequate. Emma Duncan replied by saying no she did not accept that point and had not said that. He then asked how many residents would need to sign something to initiate a judicial review. Emma Duncan confirmed this could be triggered by one sole person.

 

The Chairman asked to bring this discussion to a close and asked the Monitoring Officer to make a closing statement with regards to her professional advice on the matter. Emma Duncan confirmed as the Council’s Monitoring Officer that the Council had done enough to satisfy the law in this case. If a review was received, then this could be dealt with as and when and that it was not unlawful and should not need to be referred back to the cabinet.

 

The Chairman then invited questions on point two of the call-in reasons.

 

Councillor Brar asked what evidence had been used to justify guidance in the SPD that the mix should diverge from the 2016 strategic housing market assessment. Ian Manktelow said that the SPD had been amended so that was not the case but that in relation to the affordable housing mix the policy allowed a variation from the 2016 strategic housing market assessment mix where more up to date evidence was provided and the SPD had done this. 

 

Councillor Singh said that CALA Homes had made a statement that new homes would not be fully delivered on the golf course until 2041, compared to the BLP’s aim of 2034. He asked if officers accepted that the SPD viability update was constructed on the assumptions that were set out in the 2013-2033 stepped housing trajectory. Ian Motuel reiterated his earlier comments about the BLP not referring to any specific time scales. Councillor Singh asked if developers land banked, would there be a shortfall of money. Ian Manktelow replied by saying that in this circumstance less housing would be built, and therefore the impact on infrastructure would be less. Adrien Waite said that a planning document set out policies for the development of land and that the SPD set out guidance for those policies. No planning document can set a requirement for a developer to build out a development. We do not have that control. Ian Manktelow said that the Section 106 contributions would be negotiated on individual planning applications and that it was not a new way forward of negotiating the timing of infrastructure payments would be part of that negotiation.

 

Councillor Singh then asked why the viability report was published after the consultation occurred. Ian Manktelow said that it was produced in response to the consultation and that there was no legal obligation for it to be completed - it was prepared as a sense check replicating the approach in the viability assessment of the Borough Local Plan. It was there to check viability due to changes over 3 years using more up to date information. It indicated the development was still viable. Councillor Singh said that he was concerned by the rising costs in the infrastructure from when the viability report was created in 2019. The Chairman asked for clarity over what Councillor Singh was asking the officers, which was given by Ian Manktelow.

 

Councillor Singh asked again about the viability report and also CIL payments. The Chairman said that these were not policies within the BLP and therefore were not to be considered further by the panel as they were not relevant to the call-in.

 

The Chairman asked officers about the BLP policy QP1 and the difference between master plans and illustrated framework plans, giving a definition for both. She asked if they were two separate things or if they were interchangeable. Ian Manktelow said that the document showed a high-level master plan but said that it was not a detailed master plan with detailed layouts. Developers with more detailed master plans would then come forward with their individual applications. Adrien Waite said that the framework master plan within the SPD and the policies within the development plan set out key things that were wished for, such as connections and routes passed through the site. Developers were not instructed in the SPD to place building and roads in certain locations though for example.

 

 

Councillor Clark said that the reasons for the call-in had been discussed at length by officers and that every point had been explained successfully by officers. He said that it was clear that nothing so far had been discussed to show that the decision was not made correctly by cabinet. Councillor Sharpe agreed with Councillor Clark’s comments and looked forward to moving on swiftly.

 

Councillor Del Campo asked if there was a full master plan for the area at present. Ian Motuel said that there was no such thing as a full one, as it was up to interpretation. It was a high level one, which was appropriate for the site. Adrien Waite said that the stakeholder master plan that had been set for other sites had been set out for sites that would not follow an SPD. The SPD did set out the requirement for developers to produce a master plan and that it would come in with the planning applications. He added that it also required design codes.

 

Councillor Del Campo asked if that conflicted with policy QP1. Ian Manktelow said that paragraphs 6.3.42 to 6.3.57 of the SPD set out the next steps of the master plan and design coding process and how it fitted in to the application process. There was no conflict.

 

(The meeting adjourned at 19:27 and resumed at 19:37)

 

The Chairman said that with the third and final point to avoid repetitiveness and to keep succinct, that panel members would be able to speak and ask questions once, in order for the rest of the meeting to flow smoothly.

 

Councillor Brar asked about natural resources and said that on the golf course site, the developer would need to provide an assessment report on whether the prior extraction of minerals was required or not. She said however that paragraph 7.2.5 of the SPD said that this site was not available to do this. She asked if officers agreed with her that the wording of the SPD conflicted with policy M2 of the BLP. Ian Motuel said that there was no paragraph 7.2.5 in the SPD. Councillor Brar clarified that she meant paragraph 7.2.5 of the BLP and not the SPD. Ian Motuel said that the talk of minerals within the SPD echoed that of what was said within the BLP, and therefore there was no conflict between either the BLP or the SPD.

 

Councillor Davey asked about the water course and its description by some as a main river. Ian Manktelow said that officers had no real comment on this and that it did not necessarily relate to point three of the call-in. Councillor Davey said that it related to an economic reason as per the call-in. Adrien Waite responded by saying that the original policy within the BLP around site allocations policy, protected things such as biodiversity. The SPD provided further guidance on certain aspects of this and that it would be dealt with at the planning application stage.

 

Councillor Singh said that words used regarding the BLP were very worrying. He then referred to the public speaker’s comments on Epping Forest. He said that the new planning inspector insisted on changes to wording when they viewed it with a new pair of eyes. He said that it posed a risk and could potentially create new policy. He asked if officers were confident that the decision to adopt the document without treating it as a development plan was safe from legal challenge. Ian Manktelow said that legal advice had already been sought on the SPD to cover this point and confirmed that it was sound and that they believed that it was safe from legal challenge.

 

Councillor Sharpe said again that he had heard nothing that was relevant within the discussion that was relevant to point three of the call-in. He then tried to re-propose a motion to take no further action. The Chairman advised the panel that no motions would be made yet and that the process needed to be kept too as agreed earlier on within the meeting. She advised at the point in the meeting when the panel could put motions forward, then Councillor Sharpe would be able to put a motion forward.

 

The Chairman invited Councillor Haseler as Cabinet Member to make his closing remarks.

 

Councillor Haseler thanked the Chairman and all of the officers for their hard work during the meeting and reiterated that the BLP and the SPD was a sound document. He said that certain members of the panel had clearly misunderstood the reasons around the SPD. He then expressed his disappointment that only one external speaker who was Councillor Price had attended the cabinet meeting where the SPD was discussed and said that the majority of the questions that had been heard during the meeting could have been asked and dealt with at that meeting, before the SPD was agreed to by cabinet.

 

The Chairman thanked the Cabinet Member for their words and attendance and asked for a proposer to put forward a motion on the item. Councillor Del Campo put forward option two of three that was available to the panel, which was to refer the decision back to cabinet. This was seconded by Councillor Singh.

 

Councillor Sharpe and Councillor Clark then questioned why their motion had not been taken into consideration. Oran Norris-Browne said that he had recorded them stating earlier in the meeting that they would listen to the rest of the debate and then decide on their motion later, after the Chairman had stated that the panel would keep to the process of the call-in. Emma Duncan advised that she had heard the motion by Councillor Sharpe be seconded earlier on in the meeting, and therefore it should be voted on. Councillor Sharpe then withdrew his motion and allowed for Councillor Del Campo to put forward her motion, which was to refer the decision back to cabinet. Councillor Singh seconded this.

 

A named vote was taken.

 

The result was five for and 6 against, so the motion fell.

 

Councillor Sharpe then proposed that no further action be taken. This was seconded by Councillor Clark.

 

A named vote was taken.

 

The result was 7 for and 4 against, so the motion passed.

 

AGREED: That no further action be taken.