Attempts at persuasion have not worked. Here are our reasons for seeking a Judicial Review.



Basildon Golf Course, November 2007

It would now seem that the only way of getting Basildon District Council to reconsider their decision to give conditional planning permission is to apply to the High Court for a Judicial Review. The process in in two stages and is explained in detail elsewhere on this website (see latest updates)

Below we detail some of the points which we think might be relevant; it will be for our legal team to pick out those issues which they think are most likely to persuade the Judge to order that Basildon District Council should reconsider their decision.

1. In 2004, Basildon District Council were not satisfied with the income from Basildon Golf Course and decided to try and find someone to run it for them.

2. After a marketing exercise, four bidders emerged – Lexden Wood Golf Course, Jack Barker Golf Limited, Impulse Leisure and Basildon Golf Club. It is not known what information the bidders were given in advance.

3. Tenders were summarised against the following criteria – Proposed Development, Investment Capital, Rental Structure, Period of Lease, and Covenant Strength (ability to pay rental) and management experience.

4. In a table ‘Summary of Golf Course Bids’ prepared by officers for Councillors, ‘course improvements’ are noted as part of the Jack Barker bid but there is no mention of 'inert material', let alone the importation of significant quantities. There is no mention of the satisfaction of local authorities with the bidders, and there is little assessment of the ‘downsides’ of each of the 4 bids.

5. It can be argued that if a bidder departs from the original brief (e.g. by including ‘course improvements’ when these are not specified in the bidding process) and the ‘buyer’ wants to include this feature in the judgment of the tendering process, then the whole tendering process needs to be carried out again. This was not done.

6. Basildon District Council decided on the bid from Jack Barker Golf. Basildon Golf Club appealed against the decision on the grounds that their bid had not been fairly summarised in the Summary Table and this resulted in a Calling-In process carried out by Council members; the Golf Club appeal was dismissed and the decision to award the contract to Jack Barker Golf was upheld.

7. A ‘team’ from Basildon District Council comprising a Councillor and three officers visited two courses (Wavendon, near Milton Keynes, and Delapre, near Northampton) run by Jack Barker Golf on 29 July 2005, presumably to assure themselves that all was well. It would seem that they visited only the Golf Courses and that they did not liaise with the relevant local authorities.

8. The following article is on the world wide web dated the day before the ‘Basildon Team Visit’

CHURCH bells were sounded after villagers learned a controversial scheme for a golf course has been blocked.
In a decision this week, a planning inspector rejected the applicant’s appeal over the plan, on grounds the Little Horwood scheme was against waste policies and would have harmed the rural landscape.
The Jack Barker Group, which owns Wavendon Golf Club in Milton Keynes, had proposed to build a 27-hole course with a driving range at Stearthill Farm. The scheme would have seen a landraising operation carried out involving the dumping of almost a million tonnes of recycled building waste by lorries over a three-year period.
Protests were voiced by villagers concerned about the use of building waste and any potential noise or pollution, and there was also opposition from parish councillors.
See: www.buckinghamtoday.co.uk/buckingham-news/NEW-GOLF-COURSE-PLAN-REJECTED.1098706.jp

9. Also on the internet is the report of a planning application
for Wavendon Golf Course (near Milton Keynes). Part of the report reads thus:

‘When this application was originally submitted, in August 2005, the proposal included additional landscape mounding of the golf course. Officers took the view that, because of the amount of material that would be imported to create the additional mounding, the creation of the mounding should be treated as a waste disposal application rather than a minor engineering application.
Officers therefore requested further information from the applicants, together with the appropriate (much larger) planning application fee that should accompany an application for waste disposal.
The applicants disagreed with the officers’ view and eventually appealed to the Planning Inspectorate against the failure of the Council to issue a decision in relation to the application. The Inspector supported the officers’ position on the fee and declared the application was invalid. However, because the application was found to be invalid the Inspector made no decision on the application.
Following the Inspector’s finding in July last year, further discussions have taken place between the applicants and officers. As a result of very significant concerns expressed by officers about the mounding the applicants have withdrawn that element from the current application and the submitted fee is sufficient for the application as amended to be now determined by the authority.
The document ends thus
RECOMMENDATION
It is recommended that planning permission be granted subject to conditions relating to materials, landscaping, floodlighting and car parking.
Report author / case officer – Jeremy Lee
Contact details - 01908 252316 jeremy.lee@milton-keynes.gov.uk’
(the most recent date on the document is 28.03.07)

10. So this means that the group from Basildon visited a course where a planning application that was made the following month was subsequently refused.

11. The other course visited by the ‘Basildon Team’ on 29 July 2005 was the Delapre Course in Northamptonshire. There is no obvious date on the following link, but the discussion about suggests that things came to a head there in March and April 2006, about 8 months after their visit. Notes on the linked website say
‘At the public meeting on Monday evening, several Councillors revealed they had recently visited Delapre Park and had been horrified by the scale of destruction and devastation. No less a person than Councillor Tim Hadland, Leader of the Council, stated “If we had known it was going to be like this, we would never have voted for it” (verbatim, taken from contemporaneous notes).
www.bbc.co.uk/northamptonshire/content/image_galleries/delapre_bunding_gallery.shtml?2
This suggests that, at the time of the ‘Basildon visit’ at the end of July the previous year, work either had not started at Delapre or its full impact was not yet apparent.

12. So around the time of the visit by the Basildon team a Planning Inspector at Buckingham, officers working for the local authority at Milton Keynes and a second Planning Inspector all rejected developments proposed by Jack Barker Golf in the grounds that they were to do with the disposal of waste. And after the ‘Basildon visit’ to Delapre, things went wrong there. In a recent interview on BBC Radio Essex (November 2007)Paul Varnsverry, a local councillor at Delapre, said that there were still problems at the site because two large stagnant ponds had formed; further, the Council were considering action against Jack Barker Golf in respect of breaches of regulations. However, the team from Basildon apparently approved of what they saw during their visits and, so far as we know, did not find anything before or after their visits to cause them to think again.
(Note too, that the information from Wavendon suggests that Jack Barker Golf had an earlier mounding scheme approved. If a contract is signed here in Basildon, how many further applications for dumping landfill will ‘Jack Barker’ make at Basildon?)

13. Had the Councillors or their officers looked at other Jack Barker sites they should have had further cause for concern. Research on the web reveals that Jack Barker Golf had also been refused planning permission at Rother Valley (Sheffield) There were 4 reasons for rejection at Rother Valley, the last of these stating 'The development would produce an 'engineered' landform in an otherwise gently rolling landscape and would be in conflict with advice contained in PPG17 'Sport and Recreation' which advises that golf courses should be designed to be in harmony with the surrounding countryside and to conserve the national environment.’

14. Further, where re-contouring and other ‘improvements’ had gone ahead, there had been complaints about the work at Goldenhills Golf Course, Stoke on Trent, Staffordshire which had been reported thus.

‘Environment Agency officials are contemplating the prosecution of a company for what is being called ‘a mindless act of vandalism’ that has seen an important wildlife and fishing habitat at Goldenhill completely destroyed, and quality fish washed away leaving a dried out series of pools which could now be filled in. Work is currently being carried out on the Stoke on Trent City Council owned golf course at Goldenhill, by contractors who the council say are working on behalf of the Jack Barker Golf Centre who currently lease the land and control the golf.

But that work is sure to bring everyone into conflict after the contractors dragged away reeds and opened up and completely drained two pools which had over the past 18 years become not only a haven for endangered species of wildlife, but also a perfect breeding ground for fish which had been used in the past to stock local waters.’

Report 13 January 2005: see
www.bbc.co.uk/stoke/sport/angling/2005/janandfeb_reports.shtml

15. A question about this development was asked in the House of Commons
Ms Joan Walley (Stoke-on-Trent, North): In respect of landfill sites, my right hon. Friend is right to emphasise the importance of planning decisions. Can he give a progress report on the work that he has been able to do with the Environment Agency to ensure that golf courses are not using loopholes in planning legislation inadvertently to set up landfill sites when developing golf courses? In my constituency, at Bagnall and Goldenhill, we have real fears that we will end up with waste disposal sites when what we have at the moment are golf courses.

16. There is also information about Risebridge Golf Course, Romford. Council Minutes for the London Borough of Havering read thus:

Residents in Beauly Way asked the Committee if it was aware that the contractors working on the golf course were causing problems, not only in the size of the causeway that was being constructed in an area that was designated as a natural drainage basin, but in the materials that were being used in its construction. The case put by the residents was reinforced by the Havering representative for the Campaign for Rural England, whose observations were that the existing works were wholly inappropriate, that in bulk and height it overlooked neighbouring properties and that the proposed results could have been achieved by the construction of a 10 metre wide low-level bund.
www.havering.gov.uk/media/pdf/l/6/061005agenda_1.pdf#688391902169441225

17. Following the visits of the Basildon Team to other Jack Barker Courses, there then followed a period of time in which Council Minutes and Press Releases reported in the local Echo newspaper made repeated reference to the £1 million investment that Jack Barker Golf were to be making in the Golf Course. However, in none of information was the public alerted to the fact that ‘inert’ landfill was to be imported (let alone the amount) or to the loss of trees, or to the possible adverse impact in terms of health and harm to wildlife.

18. Eventually Planning Application 07/00375/FULL appeared on the Agenda of Basildon District Council’s Development Control and Traffic Management Committee for 11 September, 2007. The Officers’ recommendation that the Application should be given conditional planning permission was carried by 4 votes to 2.

19. It should be emphasized that the approved application ‘represents the first stage of proposals for the golf course and that a subsequent application will follow for the remainder of the site, which will also include re-contouring and the importation of additional inert material.’ Information about the second stage was not available to any of those consulted, although information in a report from the Council’s Environmental Health Officer suggests that the total amount of inert landfill to be imported will be 312,000 cubic metres. The first phase concerns only 28 acres of the Golf Course close to the Clubhouse, Club Kingswood and Curlew Cresent and Ravensdale ; the total size of the Golf Course is 165 acres.

20. We have now had the opportunity to find out more about the information on which the planning application for the first phase was based and would make the following observations.

21. The application states (page 9): ‘It is therefore clear that the nature of the Golf course is proposed to change. However, this is not a planning issue.’ We would contend that the importation of some 120,000 cubic metres of inert landfill is a planning issue – see the decisions made by Council Officers and Planning Inspectors and reported above at Rother Valley, at Stearthill Farm and at Wavendon.

22. Also on page 9 there is reference to the loss of trees, but the numbers is not specified here or elsewhere. It is clear from comments made by one Councillor (Anne Blake) after the meeting that she believed that 91 mature trees would be lost. We believe that Councillor Blake was referring to a single line of semi-mature trees that will be cut down to make way for the proposed driving range and which is described on page 12 thus: ‘The driving range would involve removing a belt of trees that currently delineates the southern boundary of the practice field’ However, the report continues ‘and additional trees adjacent to an existing fairway’. And on Page 9 the report states ‘The proposals involve the loss of trees, mainly those set out in linear patterns to the south of the existing practice field and between fairways’ A visit to the site has led us to believe that 167 free-standing semi-mature trees will be lost - in addition there are many more trees that form two 'screens' of trees; accordingly we have sought clarification from Council Officers Bala Mahendran and Dawn French; eventually Dawn French replied that 'the exact number of trees to be removed is not known'.

23. Consultation with Natural England was reported thus: ‘No objections in terms of legally protected species, subject to mitigation measures, but recommends appropriate measures be put in place to protect populations of glowworms and their grassland habitat’.

However, this was the first paragraph of Natural England’s letter to Basildon Council on 17th April 2007:
The application site lies close to Basildon Meadows Site of Special Scientific Interest (SSSI).
Based on the information provided, Natural England has no objection to the proposed development on the basis of impacts on Basildon Meadows SSSI, subject to the proposal being carried out in strict accordance with the details of the application. The reason for this view is that we consider that this proposal in isolation will not have a significant effect on the interest features of Basildon Meadows SSSI. However, we are aware that this application is linked to the developer’s aspiration to develop a much larger area of the golf course. The impact of this larger scale of development, including the proposals within the current application, would be likely to result in significant adverse impacts upon Basildon Meadows SSSI. These impacts would include significant hydrological change as a result of landscaping and air pollution impacts caused by increased road traffic, therefore, based on the currently available information, Natural England would object to such proposals.
On page 9 of the Planning Application it states’ The application represents the first stage of proposals for the Golf Course and a subsequent application will follow for the remainder of the site, which will also include re-contouring and the importation of additional inert material. From the previous paragraph it can be seen that Natural England have given a clear indication that they will not support the subsequent developments, but this was not reported to the Development Control Committee.

24. Consultation with Sport England was reported to the Development Control Committee thus: Whilst not a statutory consultation, support for the principle of the planning application.

In subsequent correspondence with Sport England we have learned that Sport England were supporting the principle of a new clubhouse and the principle of a new driving range forming part of the facilities, but no more.

They were not endorsing the detailed design, the precise location, the importation of landfill, the cutting down of trees, other aspects of environmental impact etc. Nor (importantly) were they endorsing changes to the design of the course itself including the use of mounding 20 feet high between the fairways and the consequential loss of trees.
Sport England has produced guidelines about the construction of driving ranges but these are dated and mainly concern their length. There is no guidance about their actual construction.
Sport England have drawn up a detailed tool-kit to help assess the need for Sports Facilities but this is for use by Local Authorities and was not used by Sport England to assess the Basildon Golf Course proposals. Accordingly they had no knowledge of the alternative driving range facilities in our area or of the recent closure of the driving range at Langdon Hills Golf Centre because of lack of demand.

In our view, the Development Committee were misled about the extent to Sport England’s support for the Application.



Risebridge Golf Club: the deserted driving range. 12.11.07; 11.40



25. Consultation with the Environment Agency was reported to the Development and Control Committee thus: The quantity of the material to be imported exceeds that allowed under the exemption criteria of the Waste Management Licensing Regulations and a waste management licence will be required, which cannot be issued unless planning permission is in place.

Further, on page 13 the Application stated ‘Such would need to be the subject of a Waste Management Licence issued by the Environment Agency’. We understand that the Environment Agency had written to Basildon Council prior to this application saying that a licence issued by the Agency would not be required.

26. Consultation with neighbours. The Development and Control Committee were not told how many neighbours were consulted, only that 38 responses were received. Concerns about flooding and drainage were not reported to the Committee – in the past there has been flooding to properties backing on to the golf course, and even now there has been flooding in some gardens in the recent past. Although over 100 properties directly back onto the golf course (or face it) we now understand that only 76 letters were sent out. Further, there was no consultation with the local Primary Care Trust, nor with Basildon University Hospital, St.Luke’s Hospice and Basildon College which are all close to the proposed development and which are likely to be affected by it.

27. In addition to the consultations that were carried out, is our understanding that it would be normal for a development of this size to have an independent Environmental Impact Assessment paid for by the developer. Assurances were given that such an assessment had been carried out, but were later withdrawn. In the application report there is no mention of particulates that will be created when the inert landfill is dumped, and there has been no assessment of their risk to health. Also a report from the Council’s Environmental Health Officer mentions concrete breaking; again there has been not assessment of the impact of this activity in terms of particulates or in any other way.

28. It has also been reported that the proposed lessee has identified ‘tracts of land’ on the golf course which are surplus to requirements and which could be sold to help raise the cost of a proposed new sports centre at another site in Basildon. The linkage bit etween these two projects was not made clear to the Development Committee considering the application.

29. The final financial arrangements between the Jack Barker Golf and Basildon District Council are not clear; requests for information about them have been rejected by a senior Council Office on the grounds of ‘commercial confidentiality’. When bids were assessed, the Rental Structure was described as being £15k -£65k p.a. or 10% of turnover (5%food and beverage) from year 4 onwards.

30. These arrangements do not take account of the income that the developer will receive from the importation of the inert landfill, which will be exempt from landfill tax because of its use in the development of a golf course. One estimate has been at least £100 for each lorry load. Assuming that 120,000 cubic metres are delivered in lorries that can carry 15 cubic metres, the number of lorry-loads would be 8,000 and the income to the developer would be at least £800,000. If the second phase is also approved, a total of 312,000 cubic metres will be delivered, the number of lorry- loads will be 20,800 and the total income to the developer will be £2,080,000. However, early in February 2008 we learned that Ron Maydon of Jack Barker Golf had told Risebridge residents that he was receiving £300 for each lorry-load, meaning that the total income from Basildon could be in excess of £6 million. Worse still, there is no reason why Jack Barker Golf should not make further applications to Basildon District Council in the future. The following picture gives an indication of the huge volume of inert landfill that has been imported there.



Risebridge Golf Course, Romford, facing east towards Harold Hill. The foliage at the front of the picture is the tops of trees. Out of view to the right of the picture is the A12 between Rise Park and Gallows Corner. Current legislation means that tax is not paid on landfill used for golf course 'improvements'

31. There has been no independent assessment of the proposed 'improvements' on Basildon Golf Course by an recognised golf course designer. The current course was professional designed in 1967 and is widely regarded by experienced golfers. The Planning Application stated: the proposals form part of the proposed improvement plans for the Golf Course as a whole, to improve and upgrade the facility, and to provide opportunities for new golfers to take up the sport and for more accomplished golfers to improve their game. We are not against the principle of improved clubhouse or the principle of a driving range which could be used in poor weather and outside daylight hours; however, we are strongly against the size, location and proposed construction of the planned range. Further, we are against the changes for proposed for the main part of the course – we understand that in total 312,000 cubic metres of inert landfill may be imported, and that hundred if not thousands of semi-mature trees may be lost as the trees between the fairways are replaced with mounding up to 20 feet high. We do not believe that any number of top independent golf course designers will see these changes as improving the course itself. Indeed on Saturday 12th January, Peter Dawson, Chief Executive of the Royal and Ancient Golf Club at St. Andrews (Golf's Governing Body) expressed his support for environmentally-friendly golf 'The Challenge for golf is to maintain course quality and playability while respecting and positively contributing to the social and natural environment (Daily Telegraph, W17)

32. There are two additional pieces of legislation that seem to us to be relevant. The first is Article 4 of the Waste Framework Directive (75/442/EEC) as amended by Directive 91/156/EEC states:
“Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:
- without risk to water, air, soil and plants and animals,
- without causing a nuisance through noise or odours.
- without adversely affecting the countryside or places of special interest.”
From www.jillevans.net/spnyg.html
It would appear that we could be expressing our concerns in terms of (a)
risk to water (will drainage be affected?) (b) risk to air
(dust and particulates) (c) noise and (d) adverse effect on the countryside

33. The Second is Human Rights Legislation (Human rights Act 1998) which appears to give people the right to ‘peaceful enjoyment of their possessions’.

34. In addition to the above, we have concerns about the way that the Development Control Meeting on 11th September 2007 was conducted. The Chairman, Councillor Sylvia Buckley, whilst allowing the public to comment extensively, did give one extraordinary piece of advice to the public. One resident produced e-mails addressed to the Planning Department to which no replies had been received. He was told that these e-mails should have been sent to individual members of the committee rather than the department.
The chairman referred to the import of the inert material as “landfill”. This was not contradicted by officers or other members of the committee. As such, the issue would require input from the County Council. Not only were the County Council not involved, but they have since written to Basildon District Council saying that regretted that their expertise in waste management had not been sought and asking to be involved in any future planning decisions.

35. Also, the following was reported by John Austin, Political Correspondent of the (local) Echo newspaper who attended the meeting
‘Ron Maden (actually Maydon), director of Jack Barker, said ‘We have not had one case of contamination or complaints at any or our courses. I understand your concerns but it is a difficult process to understand.’

36. The web tells us a different story: see
www.golfmagic.com/forum/forummessages.asp?UTN=9461&URN=6&SP=332566698433342414308&V=1&searchdate=0&cp=1&dt=4

Here is one of the comments:

Monday had the misfortune to play at Leen Valley course one of the Jack Barker Centres. It is possibly the worst kept course I have played at and want to complain. Does anyone have an address for the parent company? Did a quick Google but no success.
(dated 31.8.05, a month after the visit of the 'Basildon team' to other Jack Barker courses)

And a further comment:

Jack Barker also run Keele Golf Course in Newcastle-under-Lyme, Staffordshire.
What should be potentially one of the best courses in the area has been criminally neglected by Jack Barker, to the point where membership has dropped from almost 500 to under 150.
The fairways and greens only seem to be cut once a week during the height of summer, the greens, though better and flatter than they were a couple of months ago are still a lottery and the rough is overgrown to the point where you are losing ball after ball.
It seems to be very hard to contact Jack Barker directly, and the only course for members of Keele has been to contact the local newspaper who ran a damning article a couple of months ago. Surprise, surprise, within a few days, a JCB digger had turned up and several trenches have now been dug to aid with drainage.
A couple of summers ago, I took a relative from the United States to play the course, and he was quite impressed and wanted to play again when he visited England just recently. To be honest, I was embarrassed to take him to Keele. (also dated 31/08/05)

And a third comment posted 21/11/06:

I worked for Jack Barker for a short time and i can tell you that all they are interested in is money.
The top management has no training in greenkeeping! They make all there money for soil dumping, they make it sound like a good thing and the money they make will go back into the golf course but it never dose. when they have drained every last penny out of a place it will then be sold for housing.
avoid JACK BARKER's golf course at all costs if you love the game


37. In conclusion, if implemented, these plans will change the face of Basildon Golf Course for ever. Instead of a beautiful tree lined course with a wide range of wildlife we will have fairways running between endless man-made green hills. The cost of rectification of any mistakes will be prohibitive because, if inert landfill if removed to another site, landfill tax will need to be paid in addition to removal and transportation costs. It is our view that at every stage of the decision-making process there have been errors and omissions, and all of them have been in favour of the developer. Accordingly we believe that the conditional planning permission granted should be revoked.