THE UNSATISFACTORY NATURE OF THE COUNCIL’S APPROACH TO DEVELOPERS AT THE SANDY LANE BY-PASS AND THE ADJACENT AND MORE DISTANT RESIDENTIAL ESTATES OF THE  CAMBORNE-REDRUTH URBAN AREA  UP TO THE TIME OF MY APPROACH TO INTERNAL AUDIT.

Two years ago I was initially  much concerned by the County Council's  apparent cavalier attitude, not only to the restoration by the private utilities of  road surfaces to the  condition which existed before their operations commenced, but also to the drawing up of bonds, or the receipt of deposits, as security for the construction of roads by developers. My profound worries in regard to the latter were sparked off by the developments at Sandy Lane, where a planning gain in the form of a construction of part of the new by-pass  secured the granting of planning permission  for residential development in the adjacent area. In this context, a number of points, need to be emphasised.

Firstly, here, for a period of 3 1/2 years, a bond for £250,000 was not in place. This was a   violation of clauses 3 (15) and 3 (6 a) of a Section 278 Agreement, which was entered into on 12 November 1998, despite the developer's difficulty of securing surety in the form of a bond. The failure to provide any surety, which was essential to ensure that  the County Council would have been able to complete the road were the  developer unable to fulfil his obligations, was  difficult to reconcile with the authority's policy, which is clearly stated in the Cornwall Design Guide [6.2 Page 43], "Under NO circumstances shall works be permitted within the limits of the publicly maintained highway  until the Section 278 Agreement is completed and the bond (if applicable) is secured".

This is worrying enough, but what is almost as disturbing is the similar degree of slackness, which seems to have been evident in the carrying out of many other aspects of the County Council's procedures at Sandy Lane.

The serious underestimate of the thickness of the sub-base, due to an officer's faulty interpretation of the C.B.R. values of the sub-grade material [incidentally from only three measurements], together with the absence of a geogrid  in an area of former mining activity, must, in the taxpayer' interest, dictate that the most stringent tests, including the thorough examination of the drains, are conducted before the developer's section, as opposed to the excellent Cormac section, of this by-pass is finally adopted  as a public highway maintainable at public  expense. But they were other, more conspicuous and serious flaws. Kerbs, seriously misaligned in both the vertical and horizontal planes, and an irregularly finished wearing course surface were very clearly prominent while in two places there were such accumulations of water in times of heavy rain as to make driving conditions hazardous.

Yet a road with such deficiencies was actually opened to the public on 11 December 2001, even though it had not been the subject of a Stage 3 Safety Audit and clearly did not meet the conditions which would have justified the issue of a Certificate of Substantial Completion. [Cornwall Design Guide, Section 6.8.7, Last Sentence].

Two considerations might suggest that, but for my vigorous and persistent complaints since mid- December 2001, nothing would have been done. Firstly, it was only after that I requested the deputy director of T.P. and E to just drive along the by-pass that there was any really significant reaction. Secondly,  it  does not seem conceivable that a rational developer, who would not have been unaware of defectiveness of the road, would before 11 December 2001 have gone to the trouble of putting road markings in place, had he any doubts that his standards of workmanship, such as they were, would  be  challenged by the County Council and that he would seriously expose himself to the threat of being required at the very least  to dig up and realign the kerbs, lay a regulating course and relay the wearing course, as did finally happen, at a cost which could have been of bankrupting proportions for a small firm.

A rational developer might well conclude that`it  was he who calling the shots at Sandy Lane, having noted the authority's policies and procedures in the Cornwall Design Guide and having managed to avoid conforming to such requirements as:

i] The provision of security in the form of a bond [See above],

ii] Written notification of the key stages in road construction, for which purposes postcards are provided [See C.D.G. Page 69, clause 113, which identifies the key stages, and  Section 6.8.2 on Page 50, which refers to the "notification" postcards, not one of which has been completed, if the evidence of the files is to be believed],

iii] The employment of an approved body or person to carry out and submit to the Group Assistant Engineer the results of the crucial Californian Bearing Ratio Tests,

[Cornwall Design Guide 7.2.3 Page 60 indicates that the C.B.R. value should have been determined by an UKAS-accredited laboratory, such as the County Council's Engineering Services Laboratory, or an approved consultant and not by the Group Assistant Engineer who, by his efforts has conceivably deprived the Council's own Laboratory of work, for which it was well qualified, and was using the relatively basic Clegg hammer as opposed to more rigorous and sophisticated testing techniques] and

iv]  for the deployment, in this well known area of former mining activity, of a geogrid [the incorporation of which, adds considerably to construction costs and which, according to the estimates of the County Council's own staff, which appear in internal e-mails in the files at Scorrier, would have exceeded  £100,000 ], which Cormac felt compelled to employ  in its section of the by-pass and which can only add to concerns about adopting the road, in view of the limitations  in the sub-base material alluded  to earlier,  

Secondly, while trying to get to the bottom of the by-pass fiasco, I have experienced a persistent evasion in the response to most of my concerns both in quite voluminous correspondence and in a number of meetings allegedly arranged for my enlightment. Even the T.P.E. Report, which I had been assured would be a "comprehensive and independent review" and would address all my questions, turned out to be a no more informative mechanism than the correspondence and the meetings, which had preceded it.

My detailed response to this T.P.E. Report will be submitted to the Internal Audit Officer and circulated to members in due course. In the meantime, I would merely emphasise two points which, in my view, are particularly pertinent. Firstly, the damning evidence, which I recorded during the period of road construction and confirmed by the County Council's own inadequate records in the Scorrier files, has been airbrushed from the chronology of the report, perhaps so that officers' responses are seen in a more expeditious and responsible light. Secondly, the recommendations to prevent the recurrence of the failure to ensure that a bond was in place and that the by-pass was soundly constructed, seemed   bizarrely to largely mirror  EXISTING procedures, which, had they been faithfully followed in  the first place, the problems almost certainly would not have arisen!!.

The conclusion seems inescapable that this report was apparently less concerned with an objective scrutiny of a serious situation than with the extrication of officers from the mire.  What appear to be fundamentally wrong are not the Council's policies and procedures, but the manifest failure in their implementation. Ample confirmation of which can be seen in the incredibly shambolic state of the Q.A.Audit [Quality Assurance] returns in the files at Scorrier. These were designed, to ensure that the prescribed inspection procedures were being carried out, but they demonstrate only too clearly the extent to which practice is removed from procedural theory. How otherwise could the inadequate sub-base, and the very conspicuous kerb and wearing course deficiencies have remained undetected? Without a doubt, a part of the answer to the shortcomings of the by-pass is to be found in these files.

Frankly, one can't help feeling that members are  being treated not as rational beings  but as people of rather limited mental capability, and it really is an insult to our intelligence that means, such as a  persistently evasive and  even an obstructive attitude, supplemented with  dollops of whitewash, can be deployed in such cavalier fashion against elected representatives in a purportedly democratic institution.  

Thirdly, my concerns have been exacerbated by further anomalies in the adjacent residential estates, which have come to light during the course of my investigations and the explanations of which have, replicating my by-pass revelations, been of a most perfunctory and evasive nature.

I was rather concerned when the Redruth Town Council received a letter informing them that a Section 38 Agreement, supported by a bond, had been drawn up on 17 April 2002 for the proposed development adjacent to Raymond Road. What was profoundly disturbing was that at the time when an agreement had been entered into for a PROPOSED development, the residential estate was actually at an ADVANCED stage of construction!

The Highways Act 1980 specifically states that, unless an exemption applies, it is a criminal offence for a developer to construct houses before an Advance Payments Code deposit is paid or before a Section 38 Agreement, supported by a bond or a cash deposit, is in place. Section 219 (sub-section 2) stipulates on conviction a draconian daily fine not exceeding £100 for each building which contravenes Section 219 (sub-section 1). This fine has now been index-linked and currently stands at £1000, a situation with which officers of this Council seem to be unfamiliar, if the evidence of recently issued A.P.C. notices is to be believed.

The purpose of the legislation is to ensure that the Highway Authority has available a sum equivalent to the cost of providing the estate roads should a developer default on his obligation to make such provision. Unless there is valid reason for exemption, if an Advance Payments Code deposit has not been paid, building operations can begin only if a Section 38 Agreement, supported either by a bond or a cash deposit, is actually in place. Merely to have the intention of so doing is clearly not enough.

Officers, seem to have been most reluctant to explain the anomalous situation at Raymond Road. After persistent probing, the Senior Development Control Officer made an attempt when on 3 July 2002 he drafted a letter, which bears the signature of the Director of T.P.and E. and in which the following comment occurs, “In practice because of cash flow issues, and because the bond usually attracts significant charges, a developer often delays signing his Section 38 Agreement until such time as sales are taking place"

One would infer from this that, contrary to a specific requirement of the Highways Act 1980, the cash flow problems of developers take precedence over the need to protect the house owner against the eventuality of incurring road charges, if the developer defaults on his obligations. I for one just do not accept the idea that we are here to look after the interests of developers rather than the interests of the people we represent.

Moreover, I do not take kindly to the refusal to respond to my request for the name of the officer, who has actually authorised such highly irregular and irresponsible behaviour. Furthermore, I find it distinctly unpalatable to be a member of a council, where seemingly an officer arrogates to himself, or officers arrogate to themselves, the right to decide which council policy, and  even  which law of the land, should be implemented and which should be disregarded. This situation, which is totally abhorrent to the democrat, is just not acceptable. I am bound to say that my confidence in the system has not been enhanced by the fact that all but one of the four very senior individuals, to whom I have sent copies of my correspondence with the aforementioned Chief Officer have failed to communicate to me any concern whatsoever at these developments.

Fourthly, in August, in the Sandy Lane area, the position at Carknown Gardens came to light. Here people are actually living in houses, which should be empty. Because the gulleys and manhole covers are set above the level of the existing base course  surface, Part 1 Works has not been completed and therefore such development does not qualify for the issue of a Part 1 Certificate, the houses, according to the County Council's policy, [Cornwall Design Guide :  Section 6.8.7] should not be occupied.

Even worse, people are living in houses which should not have been built.  NO Advanced Payments Code notice had been issued  nor a deposit made [ Section 219 (sub-section 1) of the Highways Act prohibits work being done to buildings requiring building regulations approval unless the appropriate sum of money has been deposited ] and NO exempting Section 38 Agreement, supported either by a bond or a cash deposit, had been entered into. [Section 219 (sub -section 4) nullifies Section 219 (sub-section 1) if there is an agreement under Section 38, which will include a bond to secure the cost of the highway works.]  In view of the developer's liability to the draconian fines alluded to previously, one might reasonably have expected the situation depicted above to be no more than a fanciful possibility rather than such a striking reality. Frankly, compliance, or the prospect of penury, should be the stark choice confronting a recalcitrant developer seeking to challenge the lawful authority of this council.

The inescapable truth is that were the developer, for whatever reason, to be become  bankrupt at this moment, the people at Carknown would be confronted by the threat of private street works charges. Yet this would be the very situation which the council is charged with avoiding. The Cornwall Design Guide tells us that,"Under the Highways Act 1980, A Highway Authority must protect the owners and prospective owners of residential and industrial premises from the ultimate liability of private street works charges." While there can no doubt that it is the intention of the County Council to discharge its responsibilities under the law, there appears to be a serious discrepancy between intention and practice. It would be unacceptable were the interests of people to be so irresponsibly compromised.

It is difficult, to understand why, in these circumstances, people have even considered the purchase of such houses. Perhaps, a detailed examination of the Land Charges' Register might be of some interest. It should be added that in the last week of August, I met the Director of T.P.and E. on site to bring to his attention this extraordinary spectacle and on 28 August, a belated demand for an A.P.C. deposit of just over £100,000 was sent to the developer.

Fifthly, quite recently I became familiar with yet another case in the Camborne area, which came to my attention through a conversation, which my sister-in-law happened to have with a colleague at work. At Parc-an-Bans, people have been living, for up to three years, on an estate where some of the footpaths remain unconstructed, the gulleys and manhole covers are set high and where the road has been built only up to base course level. The first two features are uncompleted elements in Part 1 Works, which must be completed before houses can be occupied.  Here, houses would have been lawfully built if an Advanced Payments Code deposit had been made beforehand, but this remains to be established.  What is beyond dispute, however, is that a deposit of a paltry sum of £2,600 is inadequate and is clearly insufficient to safeguard the position of house owners. Residents have been up in arms at their plight but have been assured by the Group Assistant Engineer that the developer would rectify matters before the end of November. Of course, in such a situation the County Council could have used the deposit to get the roadworks completed long ago but, in view of its apparent inadequacy, one can readily understand why this course of action has not been pursued. With inadequate leverage at their disposal, it is perhaps unsurprising that Officers are now reduced to the forlorn hope that K.D.C., whose enforcement record, of which the state of the public open space at Parc-an-Bans is but one of countless examples, is widely regarded as little short of appalling, will somehow bail them out for their own shortcomings.

Sixthly, other problem estates have now come to my attention. There is a part of the Wheal Agar Estate,  being developed, at Broadlane, where houses have been built before either an  A.P.C. deposit or a Section 38 Agreement, with surety, have been in place and  occupied before Part 1 Works have been  completed and, therefore, before a Part 1 Certificate has been issued. People are in residence, in spite of the fact that footpaths have not been built, gulleys and manhole covers are set too high and the road has not even been  built up to base course level.  A broadly comparable situation also occurs at Merritt's Way, while at   Crembling Way another irregular situation seems to exist. A number of the dwellings should not be occupied since the absence of footways and manhole covers and gulleys not being set flush with the top of base course level, would preclude the acquisition of a Part 1 Certificate. Furthermore,  while an Advanced Payment Code notice [No.2440 ] was issued on 10 March 2000, no A.P.C. deposit, as far as I know  has been received and, moreover, 2 1/2 years later a Section 38 Agreement, supported by a bond or a cash deposit, is still  not in place. If this is correct, then no houses should have been built.

Incidentally, one wonders why there should be such a difference between the estimated costs of the street works for Parc-an-Banns and Crembling Way. The figure recorded on the A.P.C. notice for the former, which was issued on 7 June 1999, was  £2,600 while that on the A.P.C.notice  for the latter, issued on 10 March 2000,  amounted to £53,600!  

At Pennance Lane, Lanner, where a Section 38 Agreement was apparently belatedly entered into during February 2002 but where the Council's appraisal of a £10,000 cash deposit seems inadequate, houses appear to have been built in contravention of Section 219 of the Highways Act, 1980. However, since  the gulleys and manhole covers are set too high, the road and pavements have not been constructed up to and including base course level and some of the street lights, have not even been erected, let alone energised, Part 1 Works is incomplete and, as a result,  the houses  concerned  should not be occupied.  Residents are simply appalled by this state of affairs and the issue of safety, highlighted by raised gulleys and drains and the dumping of builders' materials on at least one of the rudimentary footways, is a cause of particular concern.

The setting of low deposits would not be helpful to householders, who would face street charges if the developer became bankrupt, and certainly would be inimical to the interests of the County Council. This would occur because the inspection fees, to which the Council is entitled and which, amount to 5% of the estimated total cost of the street works, are correspondingly reduced. Moreover, since the inspection of the works only begins when the inspection fee has been paid, there would rightly be concern for the quality of any previous construction work, unless the Council insists, as it should, on the submission of proof, at the developer's expense, of the satisfactory nature of such work. For example, in the case of drains, the evidence provided by closed circuit TV surveys should be required. It is in the council tax payers' interests, that any doubts are allayed, before the street works are finally adopted and maintained at public expense.  

This apparently shambolic state of affairs, which has not resulted in any disciplinary action whatsoever, is profoundly disturbing but the suspicion that, what seems to be widespread locally,  may be in  fact only the tip of a very large iceberg embracing a very much wider area, is a matter of added concern. That the problems are not of recent origin is demonstrated by the situation at Forth Vean, Godolphin Cross. It will be most disconcerting, should evidence emerge, that the council tax taxpayer, has been asked either to meet the cost of street works through a developer's defaulting or bankruptcy or the premature costs of repair, when roads are adopted as public highways without the necessary assurances that their construction has been sufficiently satisfactory, because of the apparent irresponsibility of some of its officers.

The situation depicted here, requires a detailed explanation. Therefore, on 30 September , on the advice of Councillor Biscoe, I approached the head of Internal Audit who, having looked at the considerable evidence I was able to supply, intimated his readiness to conduct what he asserted would be a comprehensive and completely independent investigation into all the issues, which are raised in this communication. Having received an assurance that he would have the discretion to call in the fraud squad and the district audit, if necessary, which was confirmed by the protocol which I was given, I left the matter in his hands.

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