On 14th December 2010 we learned that that we had won our Judicial Review Appeal



Our County Wildlife site was to be replaced by something like this


SUMMARY

In the Court of Appeal on Tuesday 14th December, Lord Justices Pill, Carnwath and Rimer ruled that a Screening Opinion issued by Basildon District Council was 'legally deficient' for four reasons.

Accordingly they quashed Planning Permission given to Basildon Golf Centre Limited for the importation of 180,000 tonnes of building waste onto the golf course, and ordered that Basildon District Council should pay all the costs.

This full judgement can be found using the following link:

www.bailii.org/ew/cases/EWCA/Civ/2010/1432.html

This was to be the first phase of a development involving 468,000 tonnes (over 20,000 lorry loads). This was to be a joint development between the Council (as landowner) and the Golf Centre (as lease holder) so legally the Council had given itself planning permission.

Planning Permission had been given in September 2007 in spite of protests from local residents who then formed the Friends of Basildon Golf Course with the aim of overturning the decision. They raised sufficient funds for a Judicial Review, but the Judgment went against them. However, FoBGC then found that Basildon District Council had not told the Planning Committee or the Judicial Review about ecological surveys that had been carried out.FoBGC then managed to raise sufficient further funds to go to appeal.

The golf course is green belt land. Since the legal action started it has been recognised as a County Wildlife Site

FRIENDS OF BASILDON GOLF COURSE WIN JUDICIAL REVIEW APPEAL

Ref Royal Courts of Justice Case No C1/2009/1035 heard on 13th and 14th October 2010.

The Friends of Basildon Golf Course are pleased to announce that after a three year legal battle with Basildon District Council they have won their High Court Judicial Review Appeal to quash planning permission allowing the importation of landfill onto Basildon Golf Course.

Long before Basildon was a New Town, many people travelled to the Basildon area at the weekends to escape the pollution of the East of London.

Then as Basildon New Town was built in the 1960’s many people came there to work in new factories and to live in new homes. A big part of the attraction was the areas green spaces, the jewel in the crown being the superb professionally designed golf course.

The golf course is situated on the geologically significant Thames Terrace Ridge, and was designed to complement the existing landscape. It quickly became an even more bio diverse sanctuary for wildlife, providing habitat for a wide variety of protected species such as great crested newts, badgers, reptiles, bats and birds, as well as home to a huge variety of lesser creatures including rare species of bumble bees. This habitat consists of everything from ancient trees and copses, to ponds and open grassland home to orchids and other rare plants, with the entire golf course recently designated a County Wildlife site.

In 2007 residents, environmentalist and local wildlife groups were horrified when news leaked out of plans to dump nearly half a million tonnes of building waste onto the council owned Golf Course over a three year period. In places the waste was to be up to 6 metres (20 feet) deep and within 25 metres of one house and within 50 metres of many others. Trees, copses, hedgerows and rough grassland, all home to a wide variety of wildlife would be destroyed, buried under a mountain of waste. The plans were approved by a Council Committee before any effective opposition could be organised.

Days after Planning permission was granted for phase one of the project residents formed an association, Friends of Basildon Golf Course, to try and protect the Golf Course, its environment and the multitude of wildlife species that inhabit it.

Protests to the local Council fell on deaf ears. Further investigation revealed that this was a joint development between Basildon District Council and a developer with a track record of similar golf course developments, although the proposed development at Basildon was one of the largest and closest to housing.

The developer trades under the “Jack Barker Golf” banner, setting up a separate Limited Company at each site. For the Basildon Golf Course development a new £100 Limited Company ‘Basildon Golf Centre Limited’ was set up.

In effect the Council had given itself planning permission, and a critical document in the planning process (the Screening Opinion) had been signed off months earlier by the Council’s Head of Planning Services without any public knowledge or consultation.

Legal advice from the Environmental Law Foundation was that the only way of overturning the planning permission would be by seeking and winning a Judicial Review. However, the legal action would need to be privately funded and, were we to lose, it was likely that we would have to meet both our own legal costs and those of Basildon District Council. In the end, anger and outrage were such that 45 people, many of them pensioners, agreed to be joint names in the action, thus sharing the financial risk if our legal action failed. In addition we were able to raise funds from several hundred supporters.

The Judicial Review was heard in November 2008 by Wyn Williams J and his judgement was given in January 2009. It was a major setback that he refused our application to quash the planning permission and under normal circumstances we might have given up at that stage. However we applied for permission to appeal, and got permission on one legal point. During this time, we were able to confirm our suspicions that Basildon District Council had commissioned Environmental reports and documents that would be helpful to our case.

When we eventually came into possession of these documents we found that they had not been made available to consultees, the planning committee or the public. In addition the council had failed to reveal the existence of these important documents to the Judicial Review.

Renewed anger at the Council’s behaviour led to sufficient additional funds being raised for us to continue our case, with the continued support of 35 of the original 45 names. Using the hidden documents as part of our evidence we re-applied to the court and were granted permission to appeal on further points.

Meanwhile our then MP Angela Smith, now Baroness Smith of Basildon, raised our case in Parliament. In particular she briefed the Minister about the loopholes in the waste management legislation which allowed developers to import huge volumes off waste on to green belt sites under an exemption system. This meant that developers could avoid the need for a waste permit whilst earning millions of pounds from the dumping of the waste by claiming the waste was required for re-profiling a sports faculty. Under this system landfill tax was also avoided. The Minister agreed to a review of the waste management laws, and the Friends of Basildon Golf Course were involved in the consultation process. The result was changes in the waste management legislation.

Furthermore, in possession of the facts, the Environment Agency refused the developer’s contractor a licence to import the spoil onto the site.

We are now delighted that the Lord Justices Pill, Carnwath and Rimer have upheld our common-sense view that something was very wrong with the planning process, and have quashed the planning permission.

Although we have been successful, our experience has led us to be concerned that so little can be done to influence developments when local authorities are giving themselves planning permission. In practice few groups are able to muster the necessary financial and intellectual resources and to sustain a three year campaign which may yet continue.

This contrasts with the options available to developers who can appeal to planning inspectors at no financial risk if they wish to dispute planning decisions.

In this David and Goliath struggle Basildon District Council have given themselves planning permission and have defended their actions with access to unlimited professional expertise and funds.

In the three years since the planning permission was granted Basildon District Council have also spent a small fortune keeping the developers new Limited Company, Basildon Golf Centre Ltd, afloat. They gave the developer a 99 year lease on the golf course, allowed him to raise two mortgages against the company whose only real asset is the lease on the golf course, (for which they paid nothing), gave him gifts of £36,288 and £47,000 to keep the company afloat, and another £60,000 as a loan to be repaid if the dumping went ahead. With Basildon Golf Centre Ltd hugely in debt, the planning permission quoshed, and the Environment Agency refusing to grant a licence to import the waste, it would appear that the repayment of this £60,000 loan may not be a foregone conclusion.

It is also a matter of financial concern that in the lease the millions of pounds that would be generated by the dumping of the landfill is specifically identified as being separate from any agreement that the Council may expect to benefit from.

Neither the council nor the developer have sought to amend any of the plans to accommodate any of our concerns. Our research indicates that other groups have been set up to try and stop similar developments at other golf courses managed by the ‘Jack Barker Group’. When the developer has been working in partnership with a local authority, the work has invariable gone ahead. When the developer’s plans have been rejected by a local authority and scrutinized by a Planning Inspector, it would seem that the plans have always been rejected.

Councillor Malcolm Buckley was leader of the Council when the Planning Application was approved, while his wife chaired the Committee that approved the Planning Application. Councillor Buckley is now the Council Cabinet member responsible for the Environment. He has been quoted in the local newspaper as saying that if our legal action is successful the golf course will be released for housing.

Indeed the Golf Course is one of the few green areas that remain in Basildon as the Council sells off land to developers, often working in association with them. There are now at least four protest groups trying to protect the remaining open spaces, and there has been recent discussion as to whether the current unpopular and discredited Councillor cabinet system could be replaced by a Directly Elected Mayor.