Further to Minute 13 (23 September 2019) David Ball, Assistant Director Major Growth Projects & Housing Delivery introduced the report of the Interim Director of Economic and Housing Growth that updated and advised Members on the present position in connection with the erection of three marquees at Thornton Manor. The report further provided Members with assurance that the Council was taking appropriate measures to address the criticisms set out in the recent Court of Appeal judgement.

The Assistant Director Major Growth Projects & Housing Delivery provided Members with a summary background to the matter and detailed the issues whereby Planning application APP/10/00445 (received by the Council on 9 April 2010) sought permission for the erection/retention of 3 marquees within Thornton Manor Estate (at The Dell, The Walled Garden and the Lake) to be used for private functions and conferences. He informed that following the Planning Committee decision, negotiations were begun about the detail of the Section 106 Agreement and on 11 November 2011, a Section 106 agreement was concluded.  Schedule 2 of the Agreement detailed a draft notice of the grant of planning permission, which included all 11 conditions and the reasons for them, including the condition with the five-year time limit.  At this point the Decision Notice containing all conditions should have been issued to the applicant thereby releasing the grant of Planning Permission.  However, for reasons that it has just not been possible to understand, a decision notice was not produced or issued on 11 November 2011 but was issued on 20 December 2011 and published to the Council’s web.  This Decision Notice had been issued without any conditions.

The Assistant Director Major Growth Projects & Housing Delivery informed that on 23 August 2017, a claim for judicial review of the Council’s decision was brought to the High Court by Thornton Hall Hotel Limited. The claimant (Thornton Hall Hotel Ltd) maintained that the decision issued on 20 December 2011 was a mistake and that the planning permission should have been subject to the conditions approved by the Planning Committee but omitted in error from the decision notice that granted the planning permission. The Local Planning Authority accepted and asserted that it made the error and did not contest the claim.

Following further explanation of the legal process in respect of the judicial review, and confirmation that in August of this year an appeal was lodged with the Planning Inspectorate against the Council’s decision to refuse planning permission - an appeal against the Enforcement Notice was also lodged on 17 September 2019. The Assistant Director Major Growth Projects & Housing Delivery confirmed that both matters were now with the Planning Inspectorate and were likely to be subject to a public inquiry in the coming months.  He stated that he wished to assure the Committee that the issues that brought about this situation had been addressed, to ensure nothing like this happened again.

Members questioned the Assistant Director Major Growth Projects & Housing Delivery on matters relating to the reasons for delay in identifying the issue, the risk of potential compensation and why, when officers knew that the planning notice was incorrect, the matter had not been addressed at the time.

Additional questions were raise concerning quarterly reviews, monitoring of S.106 agreements and costs in respect of the legal action and legal representation.

A Member requested that a full summary of costs be presented to the Audit and Risk Management Committee in due course, once all expenditure had been confirmed.

Another Member informed the Committee that when acting as Chair of the Planning Committee on the night of the application in question, the Planning Committee had been advised that application would assist in the restoration of the grounds and although residents in attendance had objected the conclusions of Planning Committee had recommended approval subject to limiting of the application. Over time English Heritage had also moved to support a S.106 agreement and would expect this sensitive application to be ‘closely monitored’.

The Audit and Risk Management Committee (ARMC) was apprised that systems had been reviewed – the IT system was new at time – and now each decision was recorded when produced. The applicant was working Council to discharge conditions (S.106 did include the 11 conditions), and although legal advice had been taken at the time and acted upon – Counsel and Wirral Legal – the Judge had disagreed.

The Director of Governance and Assurance informed that the report detailed what happened and when. The Council’s legal department were in a position to advise ‘what to do’ and a novel approach had been taken in this instance. Council had encouraged a Judicial Review (JR) itself, with the most practical approach being for the 3^rd party to JR the Council. As a result, in effect Council won, quashing the permission, with reduced costs, because the applicant had also been at fault.  He added that policies and practices were now in place to ensure incidents of this nature did not happen again.

The Chair re-iterated the request that a further report be presented to the ARMC on costs. With a review working of policy practices to follow at an appropriate time in the future.

Further questions were asked of the Officers regarding the Council’s business arrangements with the Thornton Manor, and if there were any conflicts of interest arising. Members were advised that no such conflicts existed.

Resolved – That

1)  the report be noted; and

2)  a further report - detailing the legal findings, financial costs and resultant action plan - be presented to a future meeting of the Audit and Risk Management Committee.