Will ‘Your Waverley’s’ new Chief Executive ensure that the developers of the notorious Brightwells Development in Farnham observe planning laws tonight? Or will Crest Nicholson ride roughshod over the law – again?

Cllr Jerry Hyman wrote this letter to Pedro Wrobel, CEO of Waverley & Guildford Borough Councils. Dawn Hudd, Joint Strategic Director, Place and Susan Sale, Joint Monitoring Officer   

                                                                                               Re :   Planning Committee 3^rd April 2024,  WA/2023/00395 East Street Roads s106

Sadly, it seems I must go further in this regard to point out the Council’s duty within EIA Reg.20(8) to either refuse consent or suspend the above application and ask that someone take responsibility. The vital question that we need answered is, ‘Has a copy of the original Brightwells Environmental Statement  and its Supplements been available to the Council, the Planning Committee and the public for 30 days?’ A responsible person would simply answer “no.”

 I met informally with the Leader Paul Follows and Deputy Leader Tony Fairclough recently, where we agreed that the Applicant’s  “EIA Statement of Conformity” is not an Environmental Statement and was not presented or publicised as such and that having added the phrase “This application is accompanied by an Environmental Statement” (ES), the Council must now Notify Crest and ensure that that the ES is made available.    

Cllr Follows advised me that he does not, in fact, have the power to intervene and instruct you to take any particular action and that Tom Horwood (former CEO) was wrong to advise Councillors that such power was ascribed to him.  I apologise for having taken Mr Horwood at his word. 

Nevertheless, Paul and Tony explained that they had put my ‘three points’ to the Head of Planning (HoP) as questions and that if we did not receive straight answers that afternoon, Paul would act as he could to serve residents’ rights under the law.  It is abundantly clear that Crest should have presented the application as an EIA application from the start and that the Council should have “notified the Applicant that the submission of an ES is required”, as per Reg.11(1) and Reg.25. 

The future of our town’s businesses are at stake here.

If I am wrong about SCC having again used the falsification of Paramics modelling to illegitimately support their own and others’ vested interests in the East Street scheme, then the proper provision, notification, publication and 30-day consultation upon the ES and its subsequent environmental information should only cause a couple of months’ delay to the application, which has already been around for 14 months (and which had until recently been expected to be withdrawn). There is no good reason for the Council to proceed unlawfully.   

Having found the need to correct council officers’ misinterpretation of internationally derived environmental legislation many times over the past 18 years, I did suggest that a lack of accountability and an oft-demonstrated inability to admit mistakes would likely result in an after-hours fudge. 

Given that the current situation has arisen from the failure of the Applicant, Waverley Officers and lawyers to correctly apply the EIA legislation from the start, you might yourself also rightly wonder whose advice you can rely upon.  I hope that you have had the opportunity to familiarise yourself with the emails and documents so that you can satisfy yourselves with the proper course of action by looking at the legal provisions yourselves.   For that purpose I have attached a document of all the relevant sections of the EIA Regulations, from Reg.2 (terminology) to Reg.64 (‘Objectivity & Bias’).  I hope it is helpful;  the Regs are online too.   I have also re-attached all the documents pertaining to this thread. 

With regard to the Head of Planning’s responses to the three main questions put to her, you will note that she has chosen to ignore the first question and instead rename the Applicant’s ‘EIA Statement of Conformity’ as a “Certificate of Conformity”, presumably to somehow evade the legislation.     Unfortunately, in doing so, the HoP has misinterpreted the requirement for Certification, which Reg.20(6)(b) explains is a certificate accompanying the ES confirming that the requisite ‘EIA’ Site Notices were in position for the required time.  

Reg.20(2)(d) requires the provision of “a copy of the application for planning permission, any accompanying plan and other documents, and a copy of the environmental statement, and … in the case of a subsequent application, a copy of the planning permission in respect of which that subsequent application has been made and supporting documents”, with Reg.20(2)(f) also requiring (inter alia) “details of a website maintained by or on behalf of the authority on which the environmental statement and the other documents referred to in subparagraph (d) have been made available in accordance with paragraph (7)”.

It is clear that none of those requirements have yet been met. The Head of Planning cannot rightly claim that the application is accompanied by an ES while refusing to ensure that ES is made available and refusing to admit that it is a Subsequent Application to EIA Development. Her statement that “a separate ES is not required” is also nonsensical, as numerous provisions, including Reg.28(1), make it clear that an ES is required. 

The Head of Planning then states that an ES was submitted with WA/2016/0268, which is untrue as only a thin Addendum ES was submitted with that application;   the original ES was submitted with WA/2008/0279, and I can find no copy available on any website.   She then refers to the ‘updated traffic assessment report’, which was only made available on the website last Wednesday evening (26th March), so it requires 30 days’ consultation following WBC notifying Crest that it is ‘EIA Development’.   The HoP then further seeks to deprive the public of their right to compare the Transport Assessment with the original and supplemented Project ES and s106 Plans by simply saying that the Applicant has done so themselves.  Her observation that the application “has taken considerable time to get to the point where it is ready to be considered by the Planning Committee” is irrelevant, other than displaying the emotional investment and vested interest that many Officers and Members appear to have, contrary to the requirements of EIA Reg.64.  Are the necessary ‘Chinese Walls’ in place?

EIA Reg.9(2) requires that given environmental information and ES, the Planning Committee “must consider that information in their decision for subsequent consent”. Without the ES, the Committee obviously cannot meet that obligation.    

It is clear that the applicant has submitted a number of documents to support this Subsequent Application, which are “environmental information” and  “further information”, but has not submitted the ES and its supplements. Nor have they submitted the Screening Direction I successfully sought from the Secretary of State in 2014, or the further information the WBC Air Quality Officer and I sought in December 2010 regarding the falsified 2008 Transport Assessment and ES.     

You are I trust aware that the Council’s commonality with the claimant’s case in CG Fry does provide a legitimate expectation that it would lose a Judicial Review, such that the Council has no authority to place Members or the public in a position where legal action is necessary.  There are no ‘grey areas’.  

The Council must now refuse consent as per Reg.3 or serve its partner Crest with a Notice in accordance with Reg.25.  The nexus is in Reg.20(8), which states,

“Where an applicant indicates that it is proposed to provide an environmental statement in the circumstances mentioned in paragraph (1), the relevant planning authority [ ] must (unless disposed to refuse the permission or subsequent consent sought) suspend consideration of the application [ ] until receipt of the environmental statement and the other documents mentioned in paragraph (6); and must not determine it during the period of 30 days beginning with the last date on which the environmental statement and the other documents so mentioned are published in accordance with this regulation”.

Thus, the law requires that the application must be refused or its consideration suspended pending compliance.    I trust you will now confirm that to be correct.

Yours sincerely,

Cllr Jerry Hyman