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Tolley's First Report 05 SEP 90

NOTE:- This is Tolley's cover-up report
to Caradon District Council dated 05 SEP 90.

Anyone with half a brain immediately spots the weak spots in it.





1.1a    The complainant, Mr T. Wilmot
1.1b    owns the land known as Target Tip at South Hill Road (O.S. 2984).

1.2a    The land was formerly a local council rubbish tip
1.2b    since the closure of which the land has only an agricultural use.

1.3a    Other land in the vicinity (O.S. 2285 and O.S. 2888)
1.3b    is also in Wilmot's ownership.

2.1a    In August 1988 Mr Wilmot submitted an application
2.1b    for outline planning permission for the change of use of the land to a garden centre.

2.2a    He was advised by the Council's Planning Department
2.2b    that the application should be altered from "outline" to "full"
2.2c    because permission to change the use of land
2.2d    (as opposed to permission for building operations)
2.2e    cannot under the present Town and Country Planning legislation,
2.2f    be granted in outline.

2.3    The advice was limited but strictly correct.

2.4a    An outline planning application could have been made
2.4b    for the operational development of the land as a garden centre.

2.5a    However, Mr Wilmot sought permission only for the change of use of the land
2.5b    and the application was registered, as it had to be, as a full application.

The covering letter specifically asked
that the Planning Department check for silly mistakes,
but it seems it was too difficult to spot one.

One so simple to remedy -
by altering "change of use" to "operational development".

However, registering the application as "full"
enabled the Planning Department to put in place blocking delays -
a classic tactic with applications that are not welcome.

2.6a    The report of the Planning Officer
2.6b    to the Planning Committee Meeting of 03 OCT 88
2.6c    stated that as no details of "the proposed building or layout" are available
2.6d    it had to be treated as an outline application.

2.7a    This clearly signalled to the Planning Committee
2.7b    that if planning permission for the change of use were granted
2.7c    then planning consent was likely to be sought for the operational development
2.7d    required for or associated with the proposed garden centre use.

2.8a    Mr Wilmot confirms that some operational development would have followed
2.8a    but he was not committed
2.8a    to any particular form or type of buildings, structures , materials or layout.

All Tim Wilmot wanted answering at outline stage,
was the geographical location suitability question -
with all else dealt with afterwards, if successfull.

3.1a    The results of the normal consultations by the Planning department
3.1a    established that
3.1a    neither the Callington Town Council
3.1a    nor the County Surveyor on behalf of the Highway Authority
3.1a    had an objection on the proposed use of the land as a garden centre

Ignore Callington Town Council's unusual supporting rider:-
"The Town Council wishes Mr Wilmot every success with his venture" -
which is very unusual.

3.2a    However the application came before the Planning Committee Meeting of 03 OCT 88
3.2a    with a recommendation for refusal from the Planning Officer
3.2a    on the grounds that the proposal represented
3.2a    an unplanned commercial development within the countryside
3.2a    which, in the opinion of the Planning Officer,
3.2a    would be detrimental to the rural character and appearance of the area.

The 16 to Nil approval vote shows what the Planning Committee thought of that.

3.3a    The Planning Officer referred
3.3a    to the Council's Environmental Health Officer's concern
3.3a    over the possibility of methane gas from tipped waste
3.3a    causing a danger of fire or explosion
3.3a    and he indicated
3.3a    that if the Planning Committee were minded to approve the application
3.3a    it would, in his opinion, be essential that no consent be granted
3.3a    until that aspect be thoroughly investigated.

Please note the "no consent be granted"
before landfill gas thoroughly investigated.

Please remember that Tolley verbally told Tim Wilmot on 26 APR 90
that "no survey, no consent" was unreasonable -
but this soon vanished.

4.1a    Mr Wilmot states that before the Planning Committee Meeting
4.1a    he knew that the application was being recommended for refusal
4.1a    and that a member of the planning staff invited him
4.1a    to withdraw his application
4.1a    or to ask for it to be deferred for a methane gas report.

4.2a    He says that during the Planning Committee refreshment break
4.2a    he spoke directly to the Planning Officer.

4.3a    He says that the Planning Officer strongly urged him
4.3a    to withdraw his application or to ask for a deferral
4.3a    and that he, Mr Wilmot, equally firmly
4.3a    insisted that he wanted a decision on his application,
4.3a    adding that if methane gas were found it would be dealt with properly.

Please note the "if methane gas were found".

Tim Wilmot had told Tolley that at the site meeting on 03 OCT 88,
Dr Ankers, the scientific advisor, had stated
that gas would DEFINITELY be issuing from the site
for a period of 35 years from end of tipping.

This is simply scientific fact,
which has been 'bent' to protect Caradon District Council from liability,
because Caradon want everyone to believe that any gas found
means no development of any kind.

5.1a    The Chief Planning Officer
5.1b    has no personal record or recollection of that discussion.

5.2a    It is open to elected Members, Council Officers, the public and others
5.2b    to mingle during the brief period in which the Committee adjourns for refreshment.

5.3    Discussions of various kinds do take place.

5.4    Such discussions must, of necessity, be informal and very short.

5.5a    The Planning Staff have no files or papers with them during this interval
5.5b    and no immediate means of note taking.

5.6    There are many short encounters of no consequence.

5.7a    The discussion to which Mr Wilmot refers may have taken place,
5.7b    the probability is that it did.


5.8a    The point is that Mr Wilmot gave no authority or direction
5.8a    that his application should be withdrawn or deferred.

As neither withdrawal or deferral was an option for Tim Wilmot,
if either appeared in the Planning Committee Minutes,
one might expect Tolley to consider the Minutes as deeply suspect.

6.1a    When, later in the Meeting, Mr Wilmot's application came to be considered,
6.1b    Mr Wilmot states that the Chief Planning Officer informed the Committee
6.1c    that Mr Wilmot wished to withdraw his application.

Causing Councillor Pengelly to turn around in shock / horror to Tim Wilmot
"like a scalded cat, with his eyes popping out on stalks".

Tim Wilmot suggests that those are details that only truth brings.

6.2    The Chief Planning Officer has no recollection of saying that.

Surprise, surprise.

6.3a    The Minutes of the Meeting record
6.3b    that the Senior Planning Assistant
6.3c    did say that the applicant had asked for deferral
6.3d    for further information to be submitted.

So that makes the Minutes suspect.

6.4a    The notes taken at the time by the Committee Clerk
6.4b    might have been of assistance
6.4c    but, despite an extensive search, these notes cannot be produced.

The reader is asked to believe
that the ONLY document that would instantly prove
Tim Wilmot's falsification of the Minutes allegation true,
has somehow disappeared from Caradon District Council's security archives.

Hence the charade played out in Tolley's office on 26 APR 90,
when his secretary pretended to look for the notebook.

6.5a    I conclude that Mr Wilmot gave no instruction
6.5b    that his application was to be deferred or withdrawn.

Please note no explanation of HOW defer appeared in Minutes!


6.6a    If it had been withdrawn or deferred
6.6b    (that is not considered at that Meeting at all)
6.6c    this would have been unjust.

At the 26 APR 90 meeting with Tolley,
Tim Wilmot wondered why it was not withdrawn instantly,
and Tolley replied
that the Chief Planning Officer was a very old hand at the game,
and would have seen Councillor Pengelly spin around,
and Tim Wilmot shaking his head to signify "No!" it is not true.

6.7a    However the Members did proceed to deal with the application at that Meeting
6.7b    and I conclude, therefore, that Mr Wilmot's intentions prevailed.

Not true.

The Chief Planning Officer was calling the shots.

It was his decision to continue speaking,
as at all times he held authority over the application.

7.1a    At the Meeting of 03 OCT 88,
7.1b    Councillor Pengelly spoke in support of the application.

7.2a    Councillor Miss Pearce (seconded by Councillor Smale)
7.2b    proposed that planning permission be granted
7.2c    subject to satisfactory results of a survey
7.2d    to be carried out by the applicant regarding landfill gases on the site,
7.2e    subject to appropriate conditions
7.2f    and in accordance with Minute number 1645 (1975/1976)

Councillor Pearce actually said something to this effect:-
"I propose we approve with a condition on gas!"

The text for the condition is NOT set by the Planning Committee,
but by the Planning Department after the Meeting.

This is an important point,
and Tolley is manipulating the truth here.

7.3a    Minute number 1645 (1975/1976)
7.3b    relates to the drawing up of conditions and reasons by the Planning Officer.

7.4    The proposition was carried by sixteen votes to nil.

8.1a    The Meeting of the 03 OCT 88
8.1b    produced a clear decision by the Committee in exercise of it's delegated powers,
8.1c    to the effect that if the gas survey was satisfactory,
8.1d    then planning permission was to be granted
8.1e    for the change of use of the land to use as a garden centre.

Tolley has deliberately concealed the truth here.

On 26 APR 90, Tolley accepted
that the Chief Planning Officer's verbal offer to the Committee, of:-

"If Members were minded to grant planning permission,
it should be subject to satisfactory results
of investigations into [ landfill gas ]"

was weaker than that written in the Listing:-

"If the Committee were minded to approve this proposal,
it is essential that no consent is granted
until this aspect [ landfill gas ] has been thoroughly investigated."

The Chief Planning Officer has said, effectively,
"If you want to GRANT planning permission,
I want a condition on gas!"

Please note that he has NOT said -
as Tolley has manipulated it to seem -
"no consent to be issued,
unless a gas survey is in some unspecified way, satisfactory!"

It was the Chief Planning Officer himself who said the magic word "GRANT!"

8.2a    If, subsequently, planning permission had been granted,
8.2b    it would not have encompassed planning permission
8.2c    for the erection of any buildings on the land
8.2d    nor would it have given permission for any mining or engineering operations.

8.3    Such development would have required express planning permission.

9.1a    Mr Wilmot attended the Planning Committee Meeting of 03 OCT 88,
9.1b    and was aware of the decision made by the Planning Committee.

9.2a    The Officers were aware of Mr Wilmot's presence
9.2b    and in subsequent conversations between Mr Wilmot and the Planning staff
9.2c    it was clear that both the Planning staff and Mr Wilmot
9.2d    were in no doubt as to the decision which the Planning Committee had made.

Complete rubbish. Click here - then click 'back' button.

10.1a    Mr Wilmot points out that no letter was sent to him
10.1a    formally informing him of the Planning Committee's decision.

10.2a    He says that there should have been
10.2b    a formal request to him for the methane gas report.

10.3a    I agree that it would have been preferable for the Planning Department
10.3b    to have informed Mr Wilmot, in writing, of the Planning Committee's decision
10.3c    and that I would normally have expected to find a copy of such a communication
10.3d    on the Planning Department's file.

10.4a    However, as both the Council and the applicant
10.4b    were clearly aware of the Committee's decision,
10.4c    I conclude that no injustice occurred.

11.1a    Following the Committee's decision
11.1a    Mr Wilmot made no immediate decision to commission a methane gas survey and report.

11.2a    He explains that he was considering an alternative approach
11.2b    of putting in a detailed application
11.2c    for the erection of structures (and associated services)
11.2d    so designed as to not give rise, in his opinion, to methane gas problems.

11.3a    He spoke, in DEC 88, to the Planning Department,
11.3b    in particular with Mr Kimberley on 21 DEC 88.

11.4a    Mr Kimberley, as he explained,
11.4b    was not dealing with the case which rested with Mr Neil Harvey.

11.5a    Mr Harvey is no longer employed by Caradon District Council
11.5b    but, on enquiry, he confirms that Mr Wilmot's communication was understood.

11.6a    Mr Harvey says that he was aware
11.6b    that methane gas survey was unlikely to be forthcoming from Mr Wilmot
11.6c    and, further, Mr Harvey confirms that Mr Wilmot was considering
11.6d    the possibility of tackling the matter another way,
11.6e    i.e. by structures so designed as to not give rise to methane gas problems.

12.1a    Mr Harvey states and the Chief Planning Officer confirms
12.1b    that the Planning Assistants were under considerable pressure
12.1c    to reduce the number of outstanding and undecided planning applications
12.1d    and generally to reduce the time taken for the issue of final planning permissions.

12.2a    It is true that Mr Harvey could have referred the planning application
12.2b    back to the Planning Committee
12.2c    with a report that Mr Wilmot had not obtained a methane gas survey report
12.2d    accompanied by a further recommendation for refusal.

12.3a    I accept that this would have been unhelpful
12.3b    to both the Planning Committee and the applicant.

12.4a    Mr Harvey decided instead to ask the Council's Environmental Health Officer
12.4b    to provide his observations.

12.5a    The Environmental Health Officer's observations
12.5b    were strongly and firmly against planning permission being granted
12.5c    because of the potential danger from methane gas.

12.6a    The matter was put to the FEB 89 Planning Committee
12.6b    and it was resolved that the application be refused.

12.7    The refusal notice was not issued until 29 MAR 89.

12.8a    Apart from the volume of work undertaken by the Planning Department
12.8b    and the staff difficulties at that time,
12.8c    there appears to be no other explanation
12.8d    for the delay in issue of the formal refusal notice.

13.1a    Mr Wilmot complains that he was not informed by the Planning Department
13.1b    that a report from the Environmental Health Officer was being sought
13.1c    and he was not informed
13.1d    that the matter was going to be referred to the February Planning Committee.

13.2a    He says that he was under the impression that nothing further would occurr
13.2b    until such time as he decided to obtain the methane gas survey report
13.2c    or submitted some form of additional or amended application.

13.3a    He says that if he had been informed
13.3b    he would have challenged the Environmental Health Officer's report
13.3c    and asked for further discussions with the Planning Department
13.3d    about the way in which this site or other land of his might be developed.

13.4a    He explains that after the Planning Committee of 03 OCT 88
13.4a    he informed his bankers that he had planning permission for a garden centre
13.4a    subject to a satisfactory gas survey
13.4a    and that after 29 MAR 89, he had to inform his bankers
13.4a    that planning permission had been refused.


14.1a.    As to the consultation with the Environmental Health Officer,
14.1b.    I am satisfied that Mr Wilmot had sufficient opportunity
14.1c.    to obtain and submit an independent methane gas survey report,
14.1d.    that he had failed to do so,
14.1e.    that he had no immediate intention of commissioning such a report
14.1f.    and that he had successfully conveyed this information
14.1g.    to the Planning Assistant handling the application.


14.2a    In those circumstance I think it was right for the Planning Assistant
14.2b    to obtain the observations of the Council's own Environmental Health Officer
14.2c    before referring the matter back to the Committee for a decision
14.2d    particularly bearing in mind
14.2e    the reservations expressed by the Environmental Health Officer
14.2f    when the application was originally before the Committee.

14.3a    There was no legal obligation on the Planning Department
14.3b    to provide the applicant with a copy of the result of the consultation
14.3c    with the Environmental Health Officer.

14.4a    Certainly, in respect of any planning application
14.4b    there are a number of consultations, both statutory and non-statutory
14.4c    and it is the practice, and indeed the correct practice, of the Planning Department
14.4d    to place the results of those consultations on the Planning file
14.4e    where they may be inspected by the applicant or his agent.

14.5    Copies are provided on written or oral request.

14.6a    It is not the practice or the policy of the Planning Department
14.6b    to provide otherwise than upon request,
14.6c    copies of consultation requests or consultation replies.

15.1a    I have considered whether the Planning Department
15.1b    ought to provide, as a matter of course and without specific request,
15.1c    details of the bodies, organisations, persons and departments
15.1d    consulted in connection with each application
15.1e    and whether the Planning Department should,
15.1f    as a matter of course and without request,
15.1g    provide applicants with details of the results of the applications.

15.2a    I have concluded that although some applicants,
15.2b    including the present applicant,
15.2c    would welcome the information,
15.2d    and that a number, including the applicant in this case,
15.2e    would react to the information,
15.2f    that the increase in financial and other resources
15.2g    which would need to be allocated to the Planning Department to achieve the task
15.2h    would be significant and disproportional to the benefits conferred.

15.3a    It would not have been wrong for the case officer in this instance
15.3b    to have made an exception to the practice and policy of the Planning Department
15.3c    and, on his own initiative,
15.3d    to have prepared and despatched a copy of the Environmental Officer's report
15.3e    to the applicant.

15.4a    I find, however, no legal or other obligation on the case officer to do so
15.4b    and I do not consider that the case officer was at fault in not doing so.

15.5a    I accept that where the results of consultations are adverse
15.5b    (as indeed they are in many instances)
15.5c    applicants and their representatives would like to be informed
15.5d    and have the opportunity of making counter representations.

15.6a    It would, however, be expensive to provide that service
15.6b    and the policy and practice of not providing it is not unlawful or unfair
15.6c    as long as applicants are treated equally.

15.7a    If the Council's policy and practice was to inform some applicants
15.7b    and others of the nature of consultations and the responses.
[ note:- part missing? ]

15.8a    I have said, and I repeat, that, in my view,
15.8b    it would not have been wrong in relation to Mr Wilmot
15.8c    for Mr Harvey to have notified Mr Wilmot
15.8d    of his referral to the Environmental Health Officer and of the result.

15.9a    Had he done so, however,
15.9b    he could have created an unfair situation
15.9c    in relation to any number of other applicants
15.9d    whose applications had attracted unfavourable comment from consultees
15.9e    and who had not been notified of that.

16.1a    As to the complaint by Mr Wilmot
16.1b    that he had not been informed that his application
16.1c    was to be referred back to the Planning Committee Meeting in February 1989,
16.1d    similar considerations apply.

16.2a    I have no doubt that Mr Wilmot would have taken some action
16.2b    had he known that his application was being taken back to the February Committee.

16.3a    I can understand his belief and reasoning
16.3b    that all the while he had not submitted his methane gas survey report
16.3c    the planning permission would remain in abeyance.

16.4a    It was not the policy and practice of the Planning department
16.4b    to inform applicants, other than on specific request,
16.4c    of the date on which applications are going to be referred to Committees.

16.5a    The resources required for doing so
16.5b    are not insignificant and individual applicants are always informed on request.

16.6a    I have considered very carefully
16.6b    whether an exception should have been made in this case.

16.7a    There is no doubt that it would have been extremely helpful to Mr Wilmot
16.7b    for Mr Harvey to have taken the trouble to inform him of the position
16.7c    and I think it would have been courteous of him to do so.

16.8a    I conclude, however,
16.8b    that bearing in mind
16.8c    that this service is not available, unsolicited, to other applicants,
16.8d    that it was not unfair or unjust of Mr Harvey
16.8e    to bring the application before the Planning Committee again
16.8f    without informing Mr Wilmot.


17.1a    In fairness to the Chief Planning Officer
17.1b    I must record that
17.1c    although he did not believe that he or his Department were, in any way, at fault,
17.1d    that in the particular circumstances of this case,
17.1e    looking at them from Mr Wilmot's point of view,
17.1f    he expressed the view that it would be right for the Council to allow Mr Wilmot
17.1g    to make a further application for planning permission for a garden centre on his site
17.1h    without payment of the normal application fee.

17.2a    This generous suggestion, put forward with the best of motives,
17.2b    is not one which I endorse
17.2c    because I am aware that there have been many instances
17.2d    since the introduction of planning fees,
17.2e    where applicants have submitted revised proposals,
17.2f    following a refusal of an application after adverse response from consultees
17.2g    where no exceptions
17.2h    (other than those provided by the Regulations themselves)
17.2i    have been made.

17.3a    To allow a 'free' application
17.3b    in the absence of fault in this case
17.3c    would be inequitable.

Paragragh 17 is merely Tolley having a joke with the Chief Planning Officer.


05 SEP 90

M G Tolley,

Solicitor to the Council

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