Letter to Head of County Legal Services  4th August 2004

Dear Mr Williams.

Two years ago, I raised matters regarding road and residential development in my electoral division at Sandy Lane, which affected a number of the people I represented. I must tell you that I have found a marked disinclination to address my concerns and [most worryingly there is some evidence to suggest that this disinclination may have been associated with a concerted effort by a number of prominent people, perhaps involving some senior officers and possibly councillors.] many of my original questions have remained unanswered. Since these matters impinge directly on my ability to efficiently discharge my duty to my electorate, I am now approaching you as Head of Legal Services to seek your professional assistance in providing answers to the following questions, the answers to which will give me a fuller picture when I approach both the Deputy Prime Minister, the Head of the Audit Commission and at least one other significant source.

Firstly, It is my understanding that it is, and has been since 1980, a statutory duty of the County Council to protect homeowners on new residential estates against a possibility of street works charges by securing surety before any construction work begins. This could only be achieved by a cash deposit or bond, associated with either the Advanced Payment Code or a Section 38 Road Adoption Agreement. I would be very appreciative if you would kindly enlighten me in regard to each of the following:

i] Since much construction work on residential estates prior to the lodging of surety has been observed and documented by myself in and around this urban area, a widespread practice which has been confirmed elsewhere in the County by Internal Audit, would you confirm whether it is your view that there may be reasonable grounds for suspecting that the Council may have disregarded its lawful duty? (1)

Would you also kindly confirm that your legal officers have invariably advised officers in P.T. and E. that a bond or cash deposit, associated with an A.P.C. notice or a Section 38 Road Adoption Agreement, must be in place before the construction of dwellings commences? (2)

ii] In a letter to me a senior officer of this council wrote, on 3 July, 2002, "In practice because of cash flow issues, and since the bond usually attracts significant interest charges, a developer often delays signing his Section 38 Agreement until such time as sales are actually taking place".  click here to see a copy of the letter

Do you find this statement in any way surprising, in view of the requirements of the Highway Act, 1980? (3)

Do you find it surprising that neither Internal nor External Audit seem to have regarded this statement as unexceptionable? (4)

Could I have your unequivocal assurance that the apparent misconception of this officer has not resulted from ambiguous and inconsistent advice offered by County Legal Services to Planning, Transportation and Estates?

iii] Since it has been my understanding that the onus is on the Highway Authority, namely the County Council, to protect ALL home owners on new residential estates, irrespective of size, and it is Kerrier's understanding that it is a part of its statutory duty to inform the County Council of ALL impending residential developments, where as the County Council has been concerned only with estates where the number of dwellings exceeds 5, could you explain in your professional opinion whether my and Kerrier's  or whether the County Council's interpretation of the legal position is correct? (5)

Which interpretation have your officers consistently presented to your colleagues in P.T. and E.? (6)

Secondly,  it has been conceded independently and publicly by two Chief Officers that the failure to discharge a number of council policies and a legal duty was made necessary by the budgetary cuts of the 1990s which subsequently were not restored,

Does it not follow in your opinion that for years this council may, since this time, have acted ultra vires? (7)

If, in the 1990s after prioritising its commitments, senior management found that council policy and especially a statutory duty, could still not be met, would it be correct to say that Members of the Council should have been advised accordingly? (8)

Would it also be correct to question why the cuts were not restored when the financial climate improved (9) and why, as a result of my intervention and the Internal Audit investigation, they were apparently restored without reference to Members in 2003? (10)

Does this sequence of events suggest that senior management may have been making policy decisions, which had financial and legal implications, which perhaps it might not have been entitled to make? (11)

Thirdly, the Local Government and Housing Act 1989 laid down that:  

"It shall be the duty .... of the monitoring Officer, if it at any time appears that to him that any proposal, decision or omission by the authority, by any committee, sub-committee or officer of the authority or by a joint committee on which the authority is represented constitutes, has given rise to or is likely to or would give rise to a contravention  by the authority, by any committee, sub-committee or officer of the authority or by any joint committee of any enactment or rule of law or any code of practice made or approved by or under any enactment,  or any such maladminstration or injustice as mentioned in Part III OF THE [1994 c. 7.] Local Government Act 1974 [Lord Commissioners] to prepare a report to the authority with respect to that proposal, decision or omission." [SUBSECTION 2]

"It shall be the duty of a relevant authority's monitoring officer in preparing a report under this section to consult as far is practicable with the authority's head of paid service and with their chief financial officer, and as soon as practicable after such a report has been prepared by him or his deputy, to arrange for a copy of it to be sent to each member of the authority." [SUBSECTION 3]

"It shall be the duty of the of a relevant authority and of any such committee as is mentioned in Subsection 4 above to consider any report under this section by a monitoring officer or his deputy at a meeting held not more twenty-one days after copies of the report are first sent to members of the authority or committee and without prejudice to any duty imposed by virtue of section 115 of the [1988 c. 41.] Local Government Finance Act 1988 (duties in respect of conduct involving contraventions of financial obligations) or otherwise, to ensure that no step is taken for giving effect to any proposal or decision to which such a report relates at any time while the implementation of the proposal or decision is suspended in consequence of the report." [SUBSECTION  5]

Could you confirm whether in your opinion ALL the requirements, which were laid down by the above Acts, were valid up to 2001 and are still valid today? (12)

Would you incline to the view that once a monitoring officer becomes acquainted with the fact that a decision would inevitably give rise to unlawful activity, he might reasonably be expected to ensure that all members of the council were promptly made fully and unmistakably aware of the seriousness of the situation?(13) And would it not also be reasonable to expect that, if this were done, their reaction would be rather more consequential than merely to have done nothing? (14)

Can it be assumed that you would concur with the explanation of the Monitoring Officer, which has been accepted by External Audit, that the forwarding of the 6 January, 2003 recommendations by Internal Audit to the Council meeting on 1 April, 2003 was an appropriate way of discharging his responsibility, even though the Council then merely received, along with those of other committees, the unapproved minutes of the Community Life Scrutiny Committee meeting on 6 February, 2003, where the 31 procedural recommendations, which PRECLUDED any specific consideration of the breaching of a number of council policies and the serious contravention of a statutory duty, were merely noted? (15)

Fourthly, the Cornwall Design Guide, which is prescribed reading material for developers and is presumably council policy, having been approved by members, indicates that a Part 1 Certificate will be issued only when the stipulated safety measures have been met. These include " drainage , carriageways and footways up to and including base course level together with street lights being energised and street plates erected" and, it is claimed on Pages 51 and 52, are "listed in Part  1 of the Schedule attached to the Section 38 agreement", a specific clause of which "stipulates that no dwelling can be occupied until a Part 1 Certificate has been issued."

Would you confirm that the previous two sentences accurately represent council policy? (16)

Would you also kindly confirm that meticulous care has been taken invariably by your legal staff in the drawing up of Section 38 Agreements to ensure that the requirements of County Council policy, as reflected in the above extract from the Cornwall Design Guide, are fully and accurately  represented? (17)

I look forward in due course to receiving your reply, for which I offer my anticipatory thanks.

Yours sincerely

Graeme Hicks CC

 Click on the arrow to read my reminder email to the Head of County Legal Services