OLD BERMONDSEY VILLAGE NEIGHBOURHOOD FORUM OBVNF INFORMATION OFFICE 14 CRUCIFIX LANE SEI 3}W WWW.BVAG.NET ADMIN@BVAG.NET Councillor Mark Williams, Cabinet Member for Regeneration, Planning and Transport, Cabinet Suite, Southwark Council, P.O. Box 64529, London, SEP SLX 15 May 2015 By First Class post and email to mark.williams@southwark.gov.uk Dear Councillor Williams, Introduction We write to express the deep concerns of Old Bermondsey Village Neighbourhood Forum (‘OBVNF’) at the contents of the Council's Report, dated 12 May 2015, which recommends that its application to be designated as the Neighbourhood Forum for the designated Neighbourhood Area, known as Area A, be refused. We trust that this letter will be supplied to all decision-makers prior to any final decision being made. In particular, and for all of the reasons which follow, it is quite plain that if the Council proceeds as currently proposed it will be susceptible to immediate legal challenge. Indeed, for the Council's Report to recommend as it docs, notwithstanding that the same Report expressly acknowledges that OBVNF fulfils all of the statutory criteria for designation suggests that there may even be an underlying pre-disposition of the Council simply to stand in the way of not just OBVNF, but the entire Parliamentary purpose of localism itself, enshrined in the Localism Act 2011 and the provisions thereby inserted in the Town and Country Planning Act 1990. We make it clear at the outset, however, that this letter is written to help prevent the Council from falling into that challengeable error. We have no desire to engage inlitigation against the Council but wish - as an open, representative, Neighbourhood Forum - to work with it, and within the statutory framework established by legislation. To this end, we have not only written this letter to the Council in an endeavour to correct the erroneous basis upon which it is currently proceeding, but have copied it to the new Secretary of State for Communities and Local Government, inviting the DCLG to intervene directly with the Council so as to mediate a resolution of the current impasse in fulfilment of Parliament’s objective and without the need for recourse to Court if that is at all possible. Factual and Legislative Background The Localism Act 2011 is, of course, flagship legislation making legislative provision for “Neighbourhood Planning’, the purpose of which was initially and accurately described on the website for the Department of Communities and Local Government as follows: “Neighbourhood Planning is a new right for communities introduced through the Localism Act 2011. For the first time, local people will have a major statutory say in helping to shape development in the areas in which they live. Neighbourhood Planning empowers communities to shape the development and growth of a local area through the production of a Neighbourhood Development Plan, a Neighbourhood Development Order or a Community Right to Build Order. Neighbourhood Development Plans will become part of the local statutory Development Plan and will form the basis for determining planning applications in that area. A Neighbourhood Development Order enables the community to grant planning permission for the development it wishes to see. While the planning system provides opportunities for communities to get involved in development decisions that affect them, in practice they have often found it difficult to have a meaningful say. The introduction of Neighbourhood Planning puts power back in the hands of local residents, businesses, parish councils and civic leaders. Communities will be in the driving seat of Neighbourhood Planning. The local Parish or Town Council will lead the work. In areas without a parish council, new Neighbourhood Forums will take the lead.” The provisions of the 2011 Act by which the above purpose is to be delivered are contained in Part 6, Planning, Chapter 3 (Neighbourhood Planning), and Schedules 9 and 10. In particular, section 116 makes provision for Schedule 9 to the Act to have effect. ‘That Schedule introduces important amendments to preceding legislation, principally by inserting new provisions into the Town and Country Planning Act 1990, after section 61B.Amongst other inserted provisions is new section 61F which provides as follows, in subsection (5), so far as the designation of a Neighbourhood Forum is concerned: “61F(5) A Local Planning Authority may designate an organisation or body as a neighbourhood forum if the authority are satisfied that it meets the following conditions - @ ® oO @) @ It is established for the express purpose of promoting or improving the social, economic and environmental well-being of an area that consists of or includes the neighbourhood area concerned (whether or not it is also established for the express purpose of promoting the carrying on of trades, professions or other businesses in such an area); Its membership is open to ~ @ w (iii) individuals who live in the neighbourhood area concerned; individuals who work there (whether for businesses carried on there or otherwise); and individuals who are elected members of a County Council, District Council or London Borough Council any of whose area falls within the neighbourhood area concerned, Its membership includes a minimum of 21 individuals each of whom - lives in the neighbourhood area concerned; works there (whether for a business carried on there or otherwise); or is an elected member of a County Council, District Council or London Borough Council any of whose area falls within the neighbourhood area concerned, It has a written constitution, and Such other conditions as may be prescribed.” As set out below, it is quite plain that OBVNF satisfies all of the above statutory criteria, Indeed, our compliance with the same is acknowledged even in the Council's Report, dated 12 May 2015. We refer to the relevant paragraphs of that Report below, for ease of cross-reference. Paragraphs 23-26 - Section 61(F)(5) criterion (a) OBVNF has been established for the express purpose of promoting or improving the social, economic and environmental well-being of Area A, as acknowledged in paragraph 26. Indeed, our Constitution has been amended precisely to reflect this purpose. Paragraph 27 - Section 61(F)(5) criterion (b) It is equally plain that OBVNF’s membership is open to all individuals who meet the relevant criteria, as acknowledged in paragraph 27.Paragraph 28 - Section 61(F)(5) criterion (c) Likewise, it is plain that the membership requirements are met, as acknowledged in paragraph 28. Paragraph 29 - Section 61(F)(5) criterion (d) Similarly, it is plain that OBVNF has a written constitution, as acknowledged in paragraph 29. Indeed, as above, it has been re-written precisely to reflect the new area, Area A, for which it seeks designation. It has also been further amended precisely to take into account the specific stipulations of the Council (notwithstanding our belief that the Council has no authority to make such stipulations), Paragraph 30 - Section 61(F)(5) criterion (e) ‘There are no other conditions that have been prescribed by statute, as acknowledged in paragraph 29. All of the criteria of section 61F(5) are therefore agreed to be satisfied. That leaves the further considerations set out in section 61F(7), the considerations which a Council must take into account when determining whether or not to designate an organisation or body as a Neighbourhood Forum. The statute provides as follows in this regard: “61F(7)A local planning authority— (a) must, in determining under subsection (5) whether to designate an organisation or body as a neighbourhood forum for a neighbourhood area, have regard to the desirability of designating an organisation or body— (i) which has secured (or taken reasonable steps to attempt to secure) that its membership includes at least one individual falling within each of sub-paragraphs (i) to (iii) of subsection (5)(b), (ii) whose membership is drawn from different places in the neighbourhood area concerned and from different sections of the community in that area, and (ili) _ whose purpose reflects (in general terms) the character of that area.” ‘As set out below, however, it is once again quite plain that OBVNF satisfies all of the above statutory considerations. We refer once more to the relevant paragraphs of the Council's Report, dated 12 May 2015, in this regard. Paragraphs 31-2 - Section 61F(7)(a)(i) Per section 61F(7)(a)(i), the Council must have regard to the “desirability” of designating an organisation or body which has secured, or has taken reasonable steps to attempt to 4secure, a membership which includes at least one individual falling within each of subparagraphs (i) to (iii) of subsection (5)(b). It is, however, plain that OBVNF has fulfilled this, as acknowledged in paragraph 32. Paragraphs 31-2 - Section 61F(7)(a)(ii) Per section 61F(7)(a)(ii), the Council must also have regard to the “desirability” of designating an organisation or body whose membership is drawn from different places in the Neighbourhood Area and from different sections of the community within that Area. It is however, once again plain that OBVNF has fulfilled this, as also and expressly acknowledged in paragraph 32. Paragraphs 31-2 - Section 61F(7)(a) (iii) Per section 61F(7)(a)(iii), the Council must also have regard to the “desirability” of designating an organisation or body whose purposes reflect (in general terms) the character of that area. It is however, plain that OBVNF has fulfilled this - indeed its constitution has been re-written to make this quite clear. Nothing in the Council's Report, dated 12% May 2015, suggests otherwise. Given the above, and given in particular the statutory use of the word “desirability”, it quite plain that in fulfilment of the Parliamentary purpose of legislating for Neighbourhood Planning, the Council have absolutely no basis for the refusal it is recommending. ‘We further note as follows in these regards, matters which have all been pointed out to the Council already in our letter dated 11" February 2015: (1) 0n 18% August 2014 the Council made it clear that what was then known as St Thomas St Plan (‘STP’), coordinated by Bermondsey Village Action Group (‘BVAG’), but which has since been re-constituted as OBVNF, with all necessary changes being made to satisfy the statutory requirements, “could be capable of being designated as a Neighbourhood Forum” (paragraphs 21 of the Council’s Report dated 20% August 2014. (2) Pursuant to the same report, on 28% August 2014 the Council refused to designate what was then known as STP, coordinated by BVAG, as a Neighbourhood Forum only because the Council considered its proposed Neighbourhood Area to be inappropriate for designation as a Neighbourhood Area (paragraphs 24-25 and 35-36 of the Council's Report dated 20° August 2014.(3) 4 6) (6) ™ ‘Legal Error The Council then proceeded to designate its own selected area (Area A) as a Neighbourhood Area and invited applications for designation as a Neighbour Forum for that Neighbourhood Area. Following an open meeting to consider the matter, STP/BVAG as it was then known, promptly revised its application for designation as a Neighbourhood Forum to precisely the Neighbourhood Area which the Council considered appropriate for designation (Area A). Subject only to satisfying the Council as to any remaining technical matters, and all of the statutory requirements related to its designation as the Neighbourhood Forum for Area A rather than the area for which it had initially sought designation, there could be no adequate, proper or intelligible reason for refusing that application. As set out below, and as part and parcel of BVAG re-constituting itself as OBVNF, we have conscientiously made all of changes necessary to satisfy all of the relevant technical matters and statutory requirements, Further, we held an open group meeting on 22" April to which the Head of Planning, Simon Bevan, and yourself had been invited specifically to identify any objections the Council could possibly have to approving our application. The following day a delegation of four of our members attended the Council offices for a meeting with Juliet Seymour specifically to precisely identify and overcome any objections still maintained by the Council to our application. That meeting was recorded and we will, if necessary, rely on that recording to demonstrate that Ms Seymour confirmed that the Council's objections had all been met. The Council's Report confirms this, as amply demonstrated above. It follows that the Council now has no lawful basis upon which it can properly refuse the Forum's application to be designated as a Neighbourhood Forum for the designated Neighbourhood Area, known as Area A. Further, and without prejudice to the above, which sets out the generality of our concern as to the obvious illegality of the course which the Council is currently proposing to follow, it is quite plain that insofar as the Council's Report, dated 12% May 2015, recommends otherwise, it is premised on an entirely false, self-contradictory and/or non- statutory basis.We comment on further relevant paragraphs of that Report below, once again adopting for ease of cross-reference the same paragraph numbers. Paragraph 33 ‘The Council’s Report purports to suggest that OBVNF may not have presented “convincing information” to the effect that it satisfies the criterion set out in section 61F(7)(li) above. However, in the paragraph of the same Council's Report which is immediately above, paragraph 32, the same author expressly states that this criterion is “considered to have been met’ Paragraph 34 The Council's Report expresses concerns about the “style of operation” of OBVNF, noticeably misspelling “consensus” when so stating. These criticisms are rejected. Moreover, this is no part of the statutory remit which the Council is to look at, precisely because these are (or will be) matters for the Neighbourhood Forum itself to take a view on - noting that it will run its own affairs, subject to its own constitution, and in accordance with the decisions of its own members. If there is any concern as to the “style of operation’, that will be for the members of OBVNF to address according to the constitution. Paragraph 35 The Council’s Report expresses concerns as to whether OBVNF is “genuinely established" for its express purpose. That is a quite extraordinary and unfounded issue to raise. As noted above, paragraph 26 of the Council's Report concedes that this requirement has been satisfied. There is no evidential basis whatsoever for questioning whether this express purpose is genuine; of course it is and it is enshrined in the constitution. Paragraph 36 The Council's Report expresses concerns as to “aggressive intolerance” There is no basis whatsoever for this, save perhaps that Council Officers may have misconstrued as hostility to them the entirely understandable questioning of their (generously interpreted) prevarication over designating OBVNF and its precursor at the meeting they attended. Indeed, there is an abundance of evidence that the meetings of OBVNF are ‘open, welcoming and cordial during normal business. Moreover, and once again, this is no part of the statutory remit which the Council is to look at, precisely because these are (or will be) matters for the Neighbourhood Forum itself to take a view on ~ noting that it will run its own affairs, subject to its own 7constitution, and in accordance with the decisions of its own members. Once again, if there is any concern as to such matters that will be for the members of OBVNF to address according to the constitution. Conclusions For all of the above reasons, OBVNF consider that the decision that the Council have been recommended to take would be ultra vires and unlawful. It appears that the Council consider themselves vested with a discretion to hand pick whom they are willing to designate as a Neighbourhood Forum, irrespective of the statutory framework, the statutory criteria and the statutory considerations which Parliament has enacted. That is not the case. If it were, it would enable Councils capriciously to stand in the way of the very purpose of Neighbourhood Planning, described by the DCLG itself, and place themselves in the lead position and not the Forums to whom localism intends the lead role be delegated. Accordingly, we will, if need be, proceed to apply for judicial review if that decision is taken as recommended, and will rely upon this and previous correspondence as part of our fulfillment of the pre-action protocol should that become necessary. We do hope that such action proves unnecessary, however, and invite both that urgent consideration be given to this letter before any decision is made, and, as above, that the DCLG intervene directly so as to ensure that good sense, and Neighbourhood Planning, prevails as Parliament intended. Yours sincerely Russell Gray OBVNF Coordinator cc. The RtHon Greg Clark MP - The Secretary of State for Communities and Local Government Jenny Frew - Decentralisation and Neighbourhood Planning, DCLG Simon Bevan - Director of Planning, Southwark Council Juliet Seymour - Planning Policy Manager, Southwark Council