I have received a letter from Ms Aileen Jones, Head of Planning LBE defending her officer, Mr Adrian Harding, in respect of my comments made on the Forum that he misdirected the Planning Committee in the Hanwell Clock Tower Mews case ref: PP/2014/4933 that came before the Planning Committee on Wednesday 26th November 2014.Ms Jones did not attend the Committee and her letter which can be seen at the URL shown below seems to be riddled with errors and omissions. The Case Law (Chisnell) matters that I raised are simply not addressed at all. One would have thought that Ms Jones would have at least acknowledged this landmark case. N.B. Some years ago, in a High Court covenant case relating to land in Weybridge, the developers Cala Homes (South) Ltd were insisting that a restriction limiting development to "a private dwellinghouse only" with a garage thereto permitted would not be infringed by a Block of 12 Flats with 22 car-parking spaces below ground. Gerald Moran (the leading covenant solicitor in the country) cited the 1900 Covenant Judgment "Rogers v Hosegood" which ruled that a building comprising lots of flats did not constitute "a private dwellinghouse only". The solicitors acting for the developers completely disregarded Mr Moran's legal argument and did not even include the case in their List of Case Law Authorities presented to the Court. The Judge ruled against Cala Homes and ordered them to pay full "Indemnity Costs" (very rarely awarded) to the residents saying that the important 1900 case had been brought to their solicitors' attention at an early stage by Mr Moran and adding "why should the residents have to pay a penny in costs?"In my view, Ms Jones's very senior Planning Officer, Mr Adrian Harding (the recently appointed "Interim Major Projects Manager"), did being ignorant of the case law unfortunately MISDIRECT the Committee possibly resulting in some of the Members (most of them with only 7 months experience on the Planning Committee) being unaware that they need not have been forced to vote for a development that they might have otherwise wish to have refused.Ms Jones's letter can be read at:https://dl.dropboxusercontent.com/u/14377445/LetterfromHeadofPlanning_15thDec2014.pdfBACKGROUND: If you read my earlier postings, you will see that I referred to the previous Application at the same address. This was Application PP/2014/1051 for the creation of a third storey on the existing properties at 1 -7 Clock Tower Mews, Hanwell W7 3SY.This Application was decided by the previous Council (before the May 2014 Elections). Since then, many newly elected Members are now on the Planning Committee with just 7 months experience as Ealing Councillors, who obviously were not involved with the previous Application, which was submitted in February 2014 and REFUSED by the Council on 25th April 2014. The Decision Notice refusing plannning permission is not shown on the Council's Website. Some Appeal papers are shown on the Website but the Report to Committee does not list the Appeal or refer to it, which is surprising!The Report mentions that the previous Application was REFUSED on only 2 grounds (Design and the Failure to provide a Light Assessment). It was not for instance refused on issues of Overdevelopment, Bulk, Density, Lack of on-site Parking, Lack of Private Amenity space.In Ms Jones's defence of Mr Harding's comments she writes:"With regard to the Hanwell application, the lead planning officer, Adrian Harding, responded to a councillor's comments about overdevelopment. He advised that in circumstances where the scheme is the same as a previously approved scheme it is not appropriate for the committee to introduce a new reason for refusal that was not previously a reason".I find difficulty in making relevant sense of Ms Jones's remarks because:The previous similar application PP/2014/1051 to add a third storey that I referred to was not "approved" - it was REFUSED by the Council on 25th April 2014. This is stated in the Report to Committee on 26th November 2014 on page 7 of 15 (N.B. 14 out 15 pages of the Report are misdated as "08/01/2014").Ms Jones appears to have copied this text from the Council's Minutes of the Meeting, which read: "Adrian Harding introduced the application......He advised that in circumstances where the scheme is the same as a previously approved scheme it is not appropriate for a committee to introduce a new reason for refusal that was not previously a reason."Ms Jones seems to have copied her text virtually word for word from the Minutes.But as mentioned above, the previous scheme to add a third storey was REFUSED in April 2014.The comments from Ms Jones copied from the Minutes simply do not make sense!Ms Jones does not anywhere in her letter of 15th December 2014 refer to the landmark case "Chisnell" to which I had referred and copied widely. Ms Jones does not refer to the Law Property Journal detailed article by property solicitor, Gerald Moran of Lincoln's Inn with over 40 years experience on property law.This legal findings and issues in this case and the article were also highlighted by the Chairman of the Hanwell Community Forum, Ms Carolyn Brown, in her detailed Formal Complaint to Planning Services dated 11th December 2014.Ms Jones merely mentions that the previous Decision is a material planning consideration. It is not really clear whether Ms Jones knows that the previous Decision on 25th April 2014 was for REFUSAL! - but assuming that she does, then Ms Jones has totally failed to take into account the ratio decidendi (the rationale for the decision) in the Judgment in the High Court case of Mr Justice Newman (which has also been widely circulated).In Ms Brown's formal complaint, she said and referred to the following:a) The Chisnell case found that Planning Committee is never fettered by previous Decisions of the Council and can introduce a new Reason for Refusal even if that reason was not employed in a previous application of the same nature, so long as the Committee explains the grounds for its decision.b) The Chisnell case was covered in the "Property Law Journal" article by Gerald Moran of Lincoln's Inn dated 7 March 2005. I quote from this article: "... previous refusals had not identified design or neighbour impact as being unacceptable. At the meeting the officers were asked to advise on the position, and an officer advised that it would be difficult to take a different view on what had been considered previously. Newman J said that this opinion was not sufficient guidance on the legal principles concerning consistency. The committee should have been told in clear terms that it was open to them to exercise their own judgement, and that the previous decisions were merely a material consideration. Another officer advised the committee that there would need to be a material change in circumstances to introduce a new ground for refusal based on neighbour impact. Newman J said that there was no justification for this advice. There was simply a need for the committee to understand the importance of consistency, and a need for it to express a reason if it departed from the reasoning of the previous decisions by the officers, reflecting its own judgment on this issue.One committee member (the former chairman) emphasised that members were bound by the previous decisions, limiting grounds for refusal. Newman J concluded that the advice of officers may also have led other members to this conclusion, or at least to influence the weight given to the factor. There was a real risk that members believed that their judgment on these objections were fettered by the previous decisions...."c) The committee should have been told in clear terms that it was open to them to exercise their own judgement, and that the previous decisions were merely a material consideration. I also again refer to the High Court Judgment in the Chisnell case where the Judge, Mr Justice Newman, stated:"In my judgment there was no justification for the committee being told that there was a need for there to be a material change in circumstances in order to introduce a new ground for refusal..... I am satisfied that on this occasion the committee were misinformed as to the approach to be adopted in connection with the previous decisions. Next I must consider whether that could have had any impact upon the committee. The material assists, in my judgment, at page 111, where the recorded observation by Councillor Elengorn, appears as follows, "Bound by case decisions - limits grounds for refusal. No substantial harm caused". This entry leads me to conclude that I cannot exclude the possibility that the advice as tendered led to this conclusion being formed, not only by that councillor, but by others, or at least influencing the weight that others gave to this material consideration.... I am satisfied that the committee did consider the neighbour amenity objections. I am also satisfied that there is a real risk that the members of the committee, or some of them, believed that their judgment on those objections was fettered by the previous decisions. It follows that there is a real risk that the claimants' objections were not considered in accordance with law. To that conclusion Mr Mould has, in response, drawn attention to the vote: three of them were against it. That is true. But the difficulty is that one does not know why." (Extract from High Court Judgment of Mr Justice Newman 27/1/05).On the second page of her letter, Ms Jones also refers to Dr Sahota's case in Castlebar Road but my second Forum complaint against her Planning Manager, Mr Harding, relates to the misleading and incorrect legal advice he rendered to Mr Joel Mahabir relating to a Section 106 Agreement (where he cited the Prudential case as a binding precedent, when it is nothing of the sort!) and that is dealt with in a separate topic on the Forum entitled "Planning Manager - wrong in law again? (TVU case)", to which she has not referred or even written to me about.I am still puzzled why planning officers are dispensing incorrect legal advice to the Committee when the LBE Legal Officer is present?Victor Mishiku - "The Covenant Movement" 21/12/14.References:CHISNELL case - High Court Judgment of Mr Justice Newman dated 27/1/05. Please see at: https://dl.dropboxusercontent.com/u/14377445/JUDGMENT27thJan2005.pdfPROPERTY LAW JOURNAL article by Gerald Moran dated 7/3/05. Please see at: https://dl.dropboxusercontent.com/u/14377445/PropertyLawJournal_GeraldMoran.pdf PS. Cllr. Chris Summers (former Deputy Chairman of the Planning Committee) who was present at Committee on 26th November 2014 knew of the legal precedent because last year, I interjected during a Planning Committee Meeting he was conducting saying exactly the same and Cllr. Edward Rennie and the Legal Officer both acknowledged that I WAS correct (despite the unauthorised interjection). For my good works, Cllr. Summers wanted me evicted from the Town Hall!
Victor Mishiku ● 4061d