Agenda item
BONNER PRIMARY SCHOOL
Minutes:
Mr Neil Weeks, Interim Senior Planning Lawyer, introduced the report and informed the Committee that two requests for deputations had been received, Mr Tom Ridge on behalf of the Save the Bonner School Campaign and Mr Martin Tune on behalf of Bonner Primary School. He advised the Committee to hear the representations of the two deputations, after which he would give detailed legal advice as to the Committee’s powers in relation to the item.
Members expressed concern that the item had come before the Committee when it related to a decision made by the Cabinet. The view was also expressed that Members should hear the legal advice before deciding whether or not to hear the speakers.
Mr Weeks explained that the report had been generated by a motion passed at the meeting of the Council on 13September 2006 to “refer the demolition of the Old Bonner School to a meeting of the planning committee to enable officers to consult on this decision, and enable a proper debate involving residents and councillors…”. The motion should have been referred to the Cabinet, which had originally made the decision to demolish the school. The Strategic Development Committee did not, therefore, have any discretion to make any recommendations. However, it was felt that the motion should be reported to the Committee for information, due to the level of concern on the issue expressed by full Council.
The Committee resolved that pursuant to Rule 27 of the Council Procedure Rules to suspend Rule 20.1 to enable the deputations to make their representations.
Mr Tom Ridge spoke on behalf of the Save Old Bonner School Campaign in objection to the demolition. His letter of representation had been circulated to Members prior to the meeting. In particular, he disagreed with the statement in the report to the Committee which stated that the demolition of unlisted buildings was not a matter which required planning consent and made reference to paragraph 29 of Circular 10/95.
Mr Martin Tune, Headteacher of Bonner Primary School, spoke in support of the demolition of the old school. His letter of representation was tabled for Members at the meeting. He stressed the need for improving external curriculum and outdoor play facilities for the pupils and the newly built school building was preferred by both staff and children at the school.
Mr Weeks provided the Committee with legal advice relating the demolition of buildings. In reference to paragraph 29 of Circular 10/95, other than a dwelling-house or a building adjoining a dwelling-house, the demolition of a building did not constitute development, as stated in section 55 of the Town and Country Planning Act 1990 and the Town and Country Planning (Demolition – Description of Development) Direction 1995. The demolition of a dwelling-house or a building adjoining a dwelling-house was permitted by virtue of class 31 of the General Permitted Development Order (GPDO) subject to a prior notification procedure and other limitations. Circular 10/95 constituted government guidance on planning controls over the demolition of certain buildings. The Circular only applied to those buildings where there were planning controls over demolition. This would only be the case where a dwelling-house or a building adjoining a dwelling-house was involved and the advice in paragraph 29 could only be applicable in those circumstances. Article 4(3) of the GPDO did not permit any development which was contrary to any condition imposed on a planning permission granted under Part III of the 1990 Act. Therefore, when a dwelling-house or a building adjoining a dwelling-house required demolition as part of a redevelopment, the advice in paragraph 29 of Circular 10/95 pointed out that the local planning authority could impose conditions controlling the proposed demolition as part of its consideration of the redevelopment. Article 4(3) provided the power to do this. That was not the case with Bonner School. The matter fell squarely within the provisions of the Town and Country Planning (Demolition – Description of Development) Direction 1995 and its demolition was therefore, as a matter of law, outside the scope of planning control as it did not constitute development. Something that did not constitute development could not be brought within the scope of statute by reference in a circular.
Mr Weeks also advised the Committee of its powers and functions, as set out in Part 3 of the Council’s Constitution. They did not include power to review decisions by the Cabinet to demolish unlisted buildings. While the decision to let the contract to demolish the old school might raise significant issues of local interest in some quarters, it was not a matter listed within the terms of reference of the Strategic Development Committee, or indeed of the Development Committee. Accordingly, the terms of the motion did not disclose a proper reference to an “appropriate body or individual” as required by Part 4 of the Constitution. If the motion as passed formed an item of business on an agenda of either Committee then officers would be obliged to advise that committee, in due course, that it did not have the remit to make decisions on demolition.
The motion, howsoever it came about was, nevertheless, at least a formal expression of concern by the Council, as a corporate body, that the demolition of the old school should be reconsidered. In these circumstances, it could be difficult to persuade a judge that the demolition of the building should not be restrained prior to the matter being dealt with by the Council one way or another.
The motion was plainly in direct conflict with the Cabinet’s decision of December 2002 which had been implemented. If it was only referred to the Strategic Development Committee to confirm that it has no jurisdiction to consider the demolition of the old school building, there would be a risk attached of further injunctive proceedings and consequential uncertainty. The matter could have been returned back to the full Council but there would be nothing it could do to resolve the issue. Accordingly, the Committee was advised that the motion would be referred to Cabinet, which authorised the demolition, to consider it and make a key decision on its merits.
Members asked questions relating to the reasons for the Council’s opposition to the listing of the building; the allegation that the applicant had not stated in the last application that demolition would be involved; the difference between a dwelling-house and a building; the need for playground space and whether alternatives had been sought.
Mr Weeks informed the Committee that the representations made by the Council in respect of the listing of Bonner School were made as the owner of the building and were based on an assessment of the educational needs of the area, the history of the development and the Council’s contractual obligations. Both English Heritage and the Secretary of State agreed that the building should not be listed. No challenge had been made to the decision within the following statutory 28 day period.
Mr Michael Kiely, Head of Development Decisions, confirmed that the original planning application had, in fact, been publicised in accordance with statutory requirements by the posting of a site notice and writing to local residents. He also informed the Committee of the Council’s dual role as the owner of the land and the Local Education Authority. It would have been improper for the Council not to have made representations to English Heritage regarding the listing of the building. Mr Kiely also reiterated the legal advice given in relation to Circular 10/95 relating to demolition and stressed that a local authority could only operate within the power granted to it, otherwise it would be undertaking an ultra vires act.
Ms Isobel Cattermole, Head of Strategic and Operational Services – Children’s Services, informed the Committee of the alternative options which had been explored for the provision of outdoor play space for the children at Bonner School. She explained that it was not feasible to use an area on the opposite side of a busy road and that the Council had a duty of care to the pupils of the school.
Mr Weeks reminded Members that the appropriate forum for questions was at the meeting of the Cabinet and reminded Members that the Committee had no power to make a decision on the issue. Mr Weeks was asked if there had been anything reviewed by the Courts which could assist the Committee. Mr Weeks advised that this particular matter had been looked at by both the Administrative Court and the Court of Appeal who had both upheld the Council’s position. Members expressed concern that there would not be an opportunity when the matter was discussed at Cabinet to ask questions. However, the Committee was given an assurance that any Member wishing to ask a question on the matter at the meeting would be given an opportunity to do so.
On a vote of 5 for, 1 against and 3 abstentions, the Committee RESOLVED that it confirmed that the demolition of unlisted buildings is not a matter which requires planning consent and under the functions set out in the Council’s Constitution, the Committee has no power to consider the demolition of the old school building.
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