LOCAL GOVERNMENT OMBUDSMAN REPORT INTO COMPLAINT 92/C/0334

(edited by Kirkstall Valley Campaign to show the real names of those involved)

INTRODUCTION

1. Mr Moran, on behalf of Milford Amateur Rugby League Football Club, complains that the Leeds Development Corporation in April 1992 failed properly to consider an application for planning permission on a site close to the Club's premises, with the result that the club which he represents has lost an opportunity to use the playing field within the site. In particular he complains that the application was predetermined; that the information put before members of the Corporation's Board was inadequate and that members failed to declare interests in the application and in policy decisions which affected the way the application was considered. He further complains that the Corporation failed to consider properly whether to take enforcement action to require the reinstatement of the topsoil of the playing field which forms part of the application site. The site (marked A) is shown in Appendix A attached to this report.

2. The law generally requires me to report without naming or identifying the complainant or other individuals, unless to do so would impair the effectiveness of the report. [The names used in this report are therefore not the real names.] This version has been edited to show the real names.

3. An opportunity has been given for the complainant, the Corporation and Board Members to comment on a draft of this report prior to the addition of the conclusion.

4. Officers of the Commission have visited the site, examined the Corporation's files and interviewed an officer of the Corporation and a member of Leeds City Council. I, with one of the Commission's officers, have interviewed Board members. The files of LCDC have also been examined.

INVESTIGATION

Background

5. The Corporation took over responsibility for planning in the area from Leeds City Council on 5 October 1988. The Corporation's powers related to two separate parcels of land within the City Council's boundaries. The Corporation's terms of reference were to encourage economic and physical regeneration by bringing land and buildings into effective use. The Corporation's Board met in private until October 1989. The Corporation ceased to exist on 31 March 1995.

6. Government guidance to planning authorities is that "applications for development should be permitted, having regard to the development plan and all material considerations, unless the proposed development would cause demonstrable harm to interests of acknowledged importance". Thus there is a general presumption in favour of applications succeeding. The guidance goes on to say that the weight to be attached to a development plan will be affected by considerations such as whether it is up to date and applies to current circumstances or whether it has been overtaken by events or other guidance. The age of the plan itself is said not to be relevant. Solicitors acting for the Corporation suggest that little weight had recently been given to the 1972 Development Plan by either the City Council or the Department of the Environment when dealing with appeals against the refusal of planning permission.

7. The site (A) which is the subject of this complaint comprises an area which had until 1985 included a factory building. Another part of the site had been used as a playing field by the staff of the factory. The relevant planning strategy was a Development Plan review of 1972, which described the land as Public Open Space, playing fields and amenity area. That description was amended to industrial in a Local Plan which was drafted in 1980, but not adopted.

8. When the Corporation became the planning authority in 1988 four applications for planning permission to develop a large area (B), which included Site A, had been made to the former planning authority, Leeds City Council, by Peel Investments which had an option to purchase Site A from Waddingtons which then owned Site A. One of Peel Investments' applications (for a supermarket and restaurant on the site) had been approved in principle by the City Council but no permission had been issued. The city councillor interviewed believes there was a procedural flaw on the part of the City Council in giving the approval in principle. The Corporation's solicitors point out that this allegation has been made some time after the event. The Secretary of State for the Environment intervened on 25 March 1988 to prevent the Council from dealing with the four applications, indicating that he would determine them himself.

9. Another application for planning permission for an area larger than Site B (but also including Site A) was made to the City Council on 1 August 1988 by another company (Mountleigh) who then purchased Site A on 6 September 1988. This application and two of the applications by Peel Investments were referred to the Corporation but none were placed before the Board for a determination. Appendix B sets out the interests of the different companies in land in the area, whilst Appendix C lists the relevant planning applications.

Members and their interests

10. Ten members were appointed to the Corporation's Board by the Secretary of State in June 1988. These appointees included Mr Jackson, Mr Richardson and Mr Watson. Mr Jackson was a Vice-President of a sports club owning land adjacent to site A. Mr Jackson is also a paid director of LCDC, a company which was in partnership with Mountleigh to carry out development arising from the application referred to in paragraph 9 and which also owned land in the Corporation's area. He owns no shares in LCDC, which is itself owned by another company established by the City Council to promote development in the area. Mr Richardson was a Director of LCDC until June 1989. Mr Richardson is also an unpaid agent for the owners of other adjacent land (another sports Organisation). Mr Richardson became a Vice-President of the Sports Club in June 1989. Mr Watson was a shareholder and Director of Waddingtons, the company which owned site A until September 1988. Appendix D sets out these interests, and Appendix E lists the presence of members at relevant meetings and whether an interest was declared.

11. Both the sports Organisation and the Sports Club had been negotiating earlier in 1988 to sell their land for development.

12. At a Board meeting in June 1989 the Board were advised of Counsel's opinion that members with pecuniary interests should declare and withdraw from the board room when matters were being discussed involving such interests. In July 1989 the Board agreed that members with a declared pecuniary interest could remain in the room if other members did not object and provided they took no part in any discussion.

13. The Corporation says that, following advice from its solicitors and a Board meeting on 19 October 1989, a register of members' interests was established in November 1989 and updated every year. The advice suggested that members should make a standing declaration of interest in this register. For one-off situations members were advised to make a specific declaration of that interest when a relevant item of business arose. Members were advised to refrain from voting or taking any part in discussions in such a situation and that in certain circumstances it might be tactful for them to withdraw.

14. In the general register Mr Richardson declared his status as an agent, having advised the Chairman of this in writing on 17 November 1988 and 15 June 1989. He had also written about his Directorship of LCDC on 17 November 1988 but by the time the general register was established he was no longer a Director. Mr Richardson informed the Chairman of the Corporation in writing on 15 June 1989 that he had been invited to become a Vice-President of the Sports Club. Mr Richardson comments that prior to the register being established he understood that once an interest had been declared it need not be repeated at each Board meeting. Mr Jackson declared an interest in the general register as a Director of LCDC because it owned land in the area. Mr Jackson has not registered an interest as a Vice-President of the Sports Club.

Allegation (a): that interests were not declared when Board members considered the planning policy for the area

15. Mr Moran is concerned that several members were present when the Board discussed and formulated planning policies for the area without declaring interests and that these policies affected consideration of the application in April 1992.

(i) The Strategic Plan

16. Following work done by a group of officers and a senior member of the Board, a strategic plan for the Corporation was considered at meetings of the Board on 18 August and 15 September 1988. The Corporation's work was based on an initial study by independent consultants which the Secretary of State had confirmed as the basis for strategic development. The draft put to the August meeting referred to the use envisaged for the area (including the Sports Club's land and that owned by Waddingtons) as "a substantial retail development, residential, leisure and business" and said that there was a great deal of development interest. This proposed use appeared elsewhere in the draft.

17. By the next meeting the draft had been expanded to say that the Corporation's objective for the local area was to seek early implementation "of a comprehensive development scheme for this area which will co-ordinate proposals for a range of land uses .... an integrated retail development on a district centre scale, a significant number of residential units, major leisure facilities, and opportunities for business uses in a business park setting". The draft was then circulated to the City Council and the Department of the Environment for comment. The statement of objectives noted earlier in this paragraph was not changed at the meeting on 20 October (which effectively adopted the Plan) and features in the Plan subsequently published.

18. Mr Richardson attended the meetings in August and September. Mr Jackson attended all three meetings. Mr Watson attended the August and October meetings. There is no record that any of them declared any interest. Mr Watson says that it was well known by the Board that he was a Director of Waddingtons and that the discussion was wide ranging, covering strategic issues throughout the Corporation's area and reached no conclusions. He recalls no specific discussion about Site A. He says that by October 1988 Waddingtons no longer owned Site A. He also points out that in August 1988 Peel Investments already had an option to purchase Site A. The Corporation says that no interests were declared because the Strategic Plan set out a general framework for the whole of the Corporation's area.

(ii) Planning guidelines

19. The Corporation's consideration of the development proposals put forward by Mountleigh in the context of its planning application made on 1 August 1988 (paragraph 9) led it to issue guidelines for development for an area larger than and including both Sites A and B. A general report about the area was considered by the Board on 20 December 1988.

20. The proposals following the application by Mountleigh were outlined to the Board on 17 November 1988. The Board agreed that it did not want to indicate any specific or general acceptance of Mountleigh's proposals at that time. Mr Richardson declared an interest as an agent of a sports organisation (see paragraph 10). Specific guidelines were discussed at a meeting of the Board on 19 January 1989 and then agreed at a meeting on 16 February 1989 in the context of proposals made by Mountleigh following its original application. These mainly related to car parking requirements and standards of landscaping and open space. Mr Jackson and Mr Richardson are both recorded as present in the minutes of both meetings. There is no record that any interests were declared.

21. At Board meetings between December 1988 and October 1989 neither Mr Richardson nor Mr Jackson declared an interest when present at meetings which discussed Mountleigh's development proposals made following its application, except the meetings on 15 June and 20 July 1989 when interests were declared (but were not specified). However Mr Richardson points out that he wrote to the Chairman on 17 November 1988 when he referred to his involvement with LCDC and his agency for the Sports Organisation. He also wrote to the Chairman on 15 June 1989 reiterating his agent's status and notifying his invitation to become a vice president. The Corporation's solicitors point out that this practice accorded with the Corporation's policy at that time. As noted above (paragraphs 12, 13 and 14) Mr Richardson believed that he had registered his interests on a continuing basis and did not need to make specific declarations when issues arose on which those interests might have a bearing.

(iii) Planning Framework

22. In December 1990, after public consultation, the Corporation issued a planning framework which set out what the Corporation envisaged for the area. This described the land and surrounding area (including the Sports Club's land) as suitable for local shopping, housing, commercial, leisure and hotel uses.

23. Prior to this the Board had discussed the proposed Framework on 14 December 1989 and 19 April 1990. On both occasions progress by officers in developing a draft was reported. Mr Richardson was present and according to the minutes declared an interest at both meetings, as did Mr Jackson. Neither is recorded as having left the meeting. Mr Richardson says he does not recall ever participating in a discussion after declaring an interest, usually leaving the room thereafter.

24. In May 1990 the Corporation sought advice from its solicitors about declarations of interest by members who were Vice Presidents of the Sports Club. The solicitors responded that the Chief Executive should establish whether there were benefits in kind resulting from being a Vice President but that otherwise:-

"... just so it can never be said that the vice-presidents' interests have not been disclosed and that they unduly promoted the affairs or interests of the club, then I suggest that these should be formally declared with a statement that they have no pecuniary interest."

The Chief Executive says he satisfied himself that there were no benefits in kind and that there was therefore no registrable interest. The solicitor's letter is marked as having been sent to both Mr Richardson and Mr Jackson.

25. The Board discussed a draft Framework on 21 June 1990 and following public consultation adopted it on 13 December 1990. Mr Richardson was present at both meetings and declared an interest both times. He is not recorded as having left the meeting. Again he says that he usually left the room after a declaration. Mr Jackson was absent on both occasions.

Allegation (b): that the decision to give permission was predetermined

26. Mr Moran has suggested that the Corporation's earlier actions in relation to planning strategy and applications to develop the site effectively predetermined a decision to grant planning permission on 16 April 1992 (see paragraph 32 below).

27. After the application by Mountleigh of 1 August 1988 was referred to the Corporation, discussions took place with officers of the Corporation and at meetings of the Board. These discussions were about Mountleigh (by then the site owners) and LCDC developing the larger area encompassed in Mountleigh's application. Mr Richardson was present at one such Board meeting on 17 November 1988 and declared an interest as agent for the Sports Organisation who owned part of the site. The discussions did not lead to any amended application.

28. The Corporation's consideration led it to issue guidelines for development for the larger area including both Sites A and B. A general report was considered on 20 December 1988. Specific guidelines were discussed in the context of the Mountleigh/LCDC proposals at a meeting of the Board on 19 January 1989 and then agreed at a meeting on 16 February 1989. Mr Jackson and Mr Richardson are both recorded as present in the minutes of both meetings. No interests were declared. Paragraph 21 records declarations at other meetings between December 1988 and October 1989 when proposals arising from Mountleigh's application were discussed. No items of subsequent significance were agreed at these meetings. Mr Richardson comments that as he had declared an interest in November 1988 it was not necessary to repeat it at every meeting.

29. The Corporation later considered an application for housing for Site A submitted by Mountleigh in May 1991. Discussions, including correspondence, took place between the site owners and the Corporation's officers and members. The Corporation had received objections to development from the National Rivers Authority (NRA) which had not completed an investigation into potential flooding in the local area. In July 1991 the Board decided it would "be minded" to grant permission if satisfactory proposals were made for flood protection and amenity space. The Board also indicated that the area adjacent to the site (the land owned by the Sports Club) should remain capable of phased development.

30. At the next meeting in August 1991 the Board decided the proposal should be amended to overcome difficulties about access to that adjacent area and to exclude a former playing field from the application site. The Board also wanted the NRA to speed up investigations into potential flooding in the area. However, the application was not determined and was then the subject of an appeal by the developers to the Secretary of State. (This appeal was deferred and subsequently withdrawn in October 1992).

31. Mr Richardson attended the meeting in July and is recorded as having declared an interest. Mr Jackson attended the August meeting, but no declaration of interest by him is recorded.

Allegation (c): failure to give consideration to planning issues

32. A duplicate application to that of May 1991 for Site A (paragraph 29) was made on 4 March 1992. It was advertised as a departure from a development plan. The Board considered a nine page report on the application on 16 April 1992. At that meeting permission was granted subject to conditions and the signing of a legal agreement about access and open space requirements. The agreement was also to include a requirement that the former playing field should not be developed until the NRA had reported upon potential flooding. The Board directed the Corporation's officers to investigate the possibility of open space, particularly playing fields, being established elsewhere locally.

33. Mr Moran complains that the information put before Board members at the meeting on 16 April 1992 was inadequate. In particular he says that objections to the application were not given adequate weight and that reference to guidance about the development of playing fields from the Department of the Environment (DoE) was not sufficiently expressed.

(i) the planning history of the site

34. The planning strategy decisions taken by the City Council and the Corporation (Development Plan 1972, Draft Local Plan 1980 and the Corporation's Planning Framework) were mentioned in the written report to members of the Board. In another section ("Open Space Issues") the report detailed the applications for planning permission made before the Corporation assumed responsibility for planning in the area. The report made no mention of the procedural flaw alleged by the City Councillor. The Corporation's solicitors comment that this allegation was not made before the meeting itself. The Councillor says that residents were not then aware of this flaw. The report elsewhere referred to the Board's consideration of the previous (duplicate) application and the decisions taken in July and August 1991.

(ii) departure from the Development Plan

35. Having referred to the relevant planning policies and the various designations for the Site, the report continued that, although a departure from the 1972 Development Plan designation of Public Open Space, playing fields and amenity was proposed, more recent planning policies for the Site meant there was a reasonable expectation of development taking place there.

(iii) access

36. The report explained that access arrangements had been drawn up in discussion with the City Council's Highways Department and adjacent landowners: the arrangements were designed to allow access to adjacent sites at a later date. The report pointed out that while the proposed access did not meet the requirements of the Corporation's Planning Framework, it was satisfactory for the proposed density of development.

(iv) flooding

37. The applicants were reported to be willing to enter into a separate legal agreement to exclude the former playing field from the development until off-site flood defence measures agreed with the Corporation and the NRA had been constructed. The report mentioned that otherwise floor levels would need to be raised, as would the levels of the former field if that were later developed. The NRA was said to be satisfied by the applicant's proposal, subject to these conditions.

(v) planning guidance

38. Planning guidance was issued by the DoE in September 1991 about "all types of open space of public value". The guidance suggests that land which has recreational or amenity value should either be protected from development, if there is a local deficiency, or replaced, if lost to development. The guidance more specifically states that land which comprises playing fields should usually be protected from development except, amongst other things, where alternative provision of equivalent community benefit is made available.

39. The report to the Board referred to this government guidance as:-

"suggest(ing) there should be a balance struck between the needs of the development and the need to preserve space for sport and recreation. Once built on open space is lost forever, .... this should be taken into account in dealing with planning applications."

Board members were advised that the site (8.5 acres) included land (2.5 acres) formerly used as a playing field. The report said that the application was in line with government guidance, because the former playing field represented a small percentage of total land in the local area which either was or could be made available for sport and recreation. (The City Councillor doubts that much land is locally available for this purpose, as there is a shortage of such land which is easily accessible).

40. Objections to granting planning permission from two local Councillors, the National Playing Fields Association and the Central Council for Physical Recreation were reported. In conclusion the report referred to the playing field as having been a private one principally used by the staff of the company that formerly owned the site. The City Councillor points out the guidance makes no distinction between public and private playing fields.

41. The planning agreement on which the proposed permission was conditional required the provision of land of amenity value by a clause which required 0.5 acres of open space for each 50 dwellings. (This accords with the City Council's policy for open space in residential development).

(vi) objections

42. The report to the Board explained that 480 representations had been received (235 having been received about the previous (duplicate) application). The 480 representations were summarised in an appendix to show what percentages were objecting to the development because of: the loss of sports pitches; more housing in the area; flooding problems; the increase in traffic. Others were shown as not objecting to the development of the former factory site. Specific organisations (including that of the complainant) and individuals objecting were separately listed in a similar appendix.

43. The report also referred to objections having been made because the proposal was against government policy, because of the loss of green space and that there were unmet needs for sport in the area. Some of those who had specifically objected to the application under consideration (two local councillors; National Playing Field Association and Central Council for Physical Recreation) were also referred to in the body of the report.

44. In the event no agreement was signed following the Board's decision to approve the application because the owners could not reach agreement with adjacent landowners. A duplicate planning application was approved by the Board on 15 October 1992 and permission issued on 24 March 1993 following a revision of the access arrangements.

Allegation (d): that interests were not declared when Board members considered the planning application

45. Mr Moran is concerned that some members were present during the Board's consideration of the application on 16 April 1992 without declaring interests and that these interests affected the way the application was determined. These interests are those of Mr Jackson and Mr Richardson as Vice-Presidents of the Sports Club, Mr Richardson having declared an interest as agent of another sports organisation. Mr Moran says the Sports Club stood to realise a substantial sum from selling its land if the development next door was approved and suitable access to its site was not compromised: he cannot see how the Board could take an impartial decision on the application.

46. As noted above, the Corporation had sought to ensure that development should not prejudice the development of the rest of the area and in August 1991 Mountleigh had reached a preliminary agreement with its neighbours (the Sports Club and the other sports Organisation) about a suitable access. The Corporation's decision on 16 April 1992 required access to the development to be designed so as to ensure that that access allowed for the possibility of future development for the adjoining land.

47. Guidance was issued by the Secretary of State for the Environment about the declaration of interests by Board members of Development Corporations in February 1991. Relevant interests include:-

" - involvement with non profit making organisations (eg a charity) whose success may affect the ... Board member's standing

- family connections

- personal friendships

- business associations"

The Guidance also states:-

"Conflicts of interests or the suspicion of conflict may arise where ... the ... Board member has an interest in a .... company or body ..... of the kind described (above) where that body or individual seeks planning ... consent from the Corporation."

48. The Guidance requires interests to be declared on a register:-

"... of any pecuniary interest, or other material benefit .... or other links which may be thought to affect the exercise of (the member's) duties ...

"The register of interests is additional to and in no way a replacement of the requirement ....... to declare an interest as and when a conflict or potential conflict occurs. The register will not ..... cover all the types of interest listed in (paragraph 47 above) which may be relevant."

and says further that:-

"If, during a Board meeting ...... a member becomes aware that a particular case gives rise to a possible conflict of interest or the suspicion of it, the member should declare the interest instantly and this should be minuted in detail."

In this event the Guidance also says:-

"... it is for the Chairman and other members of the Board to decide how significant that interest is. In doing so the Chairman and the Board must seek the advice of its Accounting Officer and that advice must be formally recorded in the Board minutes. If the conflict is significant, the Board member should leave the room and not take part in any discussion of, or decision on the issue giving rise to the conflict. However, if the interest is remote or insignificant, and the Chairman and other members so decide, then the member may participate in the discussion and decision. In these circumstances it will be particularly important that the decision to allow the member's participation is formally recorded in the Board minutes, and can be referred to if any question is subsequently raised."

49. In March 1991 Mr Richardson declared on the Corporation's register his interest as the agent for the other sports organisation owning adjacent land. The register does not note his interest as Vice-President of the Sports Club until 9 July 1992 (when Mr Richardson began to act as agent for the Club) but Mr Richardson had written to the Board's Chairman about this Vice-Presidency in June 1989. Mr Jackson has not registered an interest as a Vice- President of the Sports Club.

50. Nine Board members attended the meeting on 16 April 1992. Mr Richardson is recorded as declaring an interest at that meeting. The minutes do not record discussion about whether he could remain in the room or whether Mr Richardson took any part in the discussion. Mr Richardson says he cannot recall ever participating in any Board discussion after having declared an interest. He says that by that time he usually left the board room after declaring an interest. That statement is endorsed by one of the Corporation's senior officers. Mr Richardson emphasises that he took no part in discussion of the planning application at this meeting.

51. Mr Jackson attended the meeting on 16 April 1992 but did not declare an interest. Mr Jackson says that he played for the Sports Club some 35 years previously and like many ex-players pays a regular subscription to support the Club; such a payment brings with it the title of Vice-President which is an honorary position only. Mr Jackson says he has played no part in running the Club and has no pecuniary interest in it. He says Vice-Presidents have no shareholding and thus could obtain no advantage from enhanced land value. He endorses the view of one of the Corporation's senior officers, which is that Vice- Presidents (80 in total) do not have an interest of the kind that ought to be declared. Mr Jackson does not recall contributing to the debate about the application. He says he was in favour of the application, which was a satisfactory and sensible proposal.

52. The Corporation comments that minuting in detail as suggested by government guidelines is not useful as it would repeat what is in the register of interests. Furthermore the Corporation believes that the procedure of members of the Board deciding in a meeting whether an interest is significant is neither practical nor appropriate in that a member has an interest or has not. The Corporation emphasises that members declare interests and then do not participate further.

Allegation (e): failure to take enforcement action on unauthorised removal of topsoil

53. Mr Moran complains that the Board failed to consider properly whether to take enforcement action to require the reinstatement of the topsoil of the playing field which forms part of Site A. The City Councillor says that Mr Watson was present at the meeting which decided to take no further action but did not declare an interest as a Director of Waddingtons who owned the site at the relevant time.

54. In October 1987 topsoil was removed from the playing field by contractors working for Peel Investments which then held an option from Waddingtons to purchase the site. This action was reported by Mr Moran's organisation to the City Council which then had planning responsibility for the area. A planning officer of the City Council visited the site on 28 October and prevented further removal of topsoil. No further action was then taken by the City Council because planning applications to develop the site (paragraph 8 above) were being considered. However the applications were not determined by the City Council before the Corporation became responsible for planning on 5 October 1988.

55. The City Councillor first mentioned the removal of the topsoil to the Corporation in July 1991 but no action resulted. The Corporation then received a request from him to take action about the removal of the topsoil on 11 September 1991. Information was sought from the City Council. The Council replied to the Chief Executive that a Council officer visited the site on 28 October 1987 when work was in progress. The officer had contacted the contractors who had agreed to stop work. The Council explained that no further action was taken at the time in the light of the likely development of the site.

56. The request was considered by the Board on 17 October 1991, when Mr Watson is recorded as submitting apologies for absence. A written report prepared by the Director of Planning stated that evidence from the City Council and a local councillor was "inconclusive", with some doubt about the date of the action and the identity of the perpetrators. The report continued that the City Council had not taken action and that the ownership of the site had changed since the topsoil was stripped. Members were reminded that the present site owners had two applications with the Corporation awaiting determination. Members were advised that in view of these factors enforcement action would not be expedient and might not even be possible.

57. A recommendation to take no action and to negotiate to remedy the unauthorised works (as part of the development then proposed by the site owners) was agreed. Following this a new planning application was made by Mountleigh and dealt with as described in paragraphs 32 and 44.

The effect on Mr Moran's organisation

58. Mr Moran's Organisation is an amateur sports club. The club rents pitches and for some time has sought a pitch which could be developed to a national league standard. To this end, in September 1987, Mr Moran's organisation corresponded with valuers acting for Peel Investments (who then had an option to purchase site A). The letter enquired about the possibility of renting the playing field within the site. In reply the valuers said that a short term agreement might be possible, but no assurance was received about a long term agreement as this depended upon the outcome of Peel Investments' planning applications. Mr Moran's organisation believes that the Corporation's handling of matters relating to Site A thereafter caused it to lose the opportunity of securing the field as a pitch for its use.

59. The Corporation's solicitors say that Mr Moran's Organisation never had a realistic chance of renting the field, particularly in the longer term. Furthermore they say his Organisation did not approach Mountleigh at any time when it owned Site A. Mr Richardson comments that all the various owners of Site A have been keen to see it developed and therefore part of the Site was unlikely to be leased to Mr Moran's Organisation.

CONCLUSION

Allegation (a): that interests were not declared when Board members considered the planning policy for the area

(i) The Strategic Plan

60. When a planning authority deals with a strategic plan it is likely that some members of the authority stand to be affected by the decisions they have to make. Provided they are affected simply as any other inhabitant of the area there is no need for them to declare an interest and refrain from taking part.

61. The responsibilities of the Leeds Development Corporation were for two circumscribed areas of land and its members did not necessarily live within those two areas.

62. If members of the Corporation had pecuniary or nonpecuniary interests in land which was affected by its Strategic Plan then those interests needed to be declared when that Strategic Plan was under consideration and, if the interest was significant, then the member concerned should not have taken part in the Corporation's consideration of the matter. I do not accept the validity of the Corporation's argument that such interests did not need to be declared in the context of a plan setting out the general framework for the whole of the Corporation's area.

63. In my view, it is not sufficient for a member to make a general declaration of his interests. In addition to that general declaration relevant interests need to be declared when particular matters are under discussion.

64. Was the interest of Mr Jackson which arose from his Vice Presidency of the Sports Club an interest of a kind which needed to be declared? I accept that it was not a pecuniary interest but it was an interest which members of the public would reasonably think might have affected his consideration of whether to establish policies which would have a clear effect on the Sports Club. The failure to declare this interest when the Strategic Plan was under discussion was therefore in my view maladministration.

65. Mr Jackson was also a Director of LCDC as was Mr Richardson (until June 1989). LCDC had a clear interest certainly from 1 August 1988 and probably before then in the Development Corporation's area. I note the comments that Directors derive no benefit from LCDC apart from a fee. The determining factor is not whether the Director stood to benefit but whether LCDC was affected. This interest should therefore have precluded Mr Jackson and Mr Richardson from taking part in the Board's discussions of the Strategic Plan.

66. Mr Watson was a Director of Waddingtons, a company which until September 1988 owned land (Site A) in the area covered by the Strategic Plan. He should not have taken part in the first consideration of that Strategic Plan. Again his failure to declare an interest and withdraw from participation in the decision-making was maladministration.

67. What was the effect of these undeclared interests? The planning history of the site and its inclusion in the Corporation's area meant that some development would take place. The initial study confirmed this. The draft did change between August and September 1988 but not in substance. The plan was also subject to comment from elsewhere. I have seen no evidence to suggest that the involvement of Mr Jackson, Mr Richardson or Mr Watson swayed the Board towards a view of strategic development to which otherwise it would not have been inclined.

(ii) Planning guidelines

68. Mr Richardson was agent for the Sports Organisation owning adjoining land. He was as well a Director of LCDC which was proposing to develop (other) land in partnership with Mountleigh and which owned other land in the Corporation's area. I note Mr Richardson had written to the Chairman about his interests and that, at that time, the Board met in private. Nevertheless those interests should have precluded him from participating or being present when the Board established the planning guidelines by which the Corporation would assess Mountleigh's proposals for development in the area.

69. Mr Jackson shared an interest as a Director of LCDC and he had another interest as a Vice-President. My criticism applies also to his failure to declare those interests and to his presence.

70. These undeclared interests however could not have led to any injustice given that no application was judged against these guidelines.

(iii) Planning Framework

71. By the time the Corporation came to consider the Planning Framework, advice had been received that interests should be declared. Mr Jackson and Mr Richardson recognised and recorded what they considered to be their interests.

72. I accept Mr Richardson's statement that he usually leaves the room after declaring an interest. Mr Jackson, however, does not appear to have left the room when such consideration was taking place. His action in remaining was in accordance with the recorded policy of the Corporation. Some doubts about that policy should have been recognised in light of the legal advice which the Corporation received before and shortly after the policy was adopted. The continued presence around the table of a member with a significant interest in the outcome of the discussion is likely to be a factor which constrains that discussion and could influence the subsequent decision.

73. Given the minuted policy of the Corporation, criticism of members who declared their interests might seem harsh. Nevertheless I regard Mr Jackson's continued presence at the meetings as maladministration, the cause of which lies in the earlier decision of the Corporation to adopt such a flawed practice.

74. Mr Jackson was present at the first two meetings, neither of which considered a specific proposal for a Framework. I do not see that his presence can have affected in substance the draft or final versions, which were considered later on at meetings he did not attend.

Allegation (b): that the decision to give permission was predetermined

75. The original application by Mountleigh was discussed on several occasions by the Corporation's Board and officers. This was never determined, although guidelines for development were issued. The Corporation's officers also discussed other planning applications by Mountleigh. Such guidance is generally given without a commitment that approval would necessarily be forthcoming and I have found no evidence to the contrary. It seems to me that the Corporation's Board made clear the shortcomings in these applications, which is part of the normal planning process.

76. The application of May 1991 was also considered by the Board but was not determined because it was felt that the proposals did not overcome difficulties about access and potential flooding in the area. This is not consistent with the belief that the Board was predisposed to grant planning permission. Expressing views in this way does not, in my opinion, amount to predetermination nor imply that the granting of permission is inevitable.

77. While the Corporation did decide to grant permission on 16 April 1992, this was subject to conditions including a requirement that a formal agreement be signed. Earlier events clarified the planning issues and may have created a climate conducive to approval but I am not convinced the Corporation was prevented from properly considering the merits of the later (duplicate) application. For these reasons I find no maladministration.

Allegation (c): failure to give consideration to planning issues

78. The focus of the complaint is the application which was considered by the Corporation on 16 April 1992. The report to the Board did in my view adequately address the planning issues, including the planning history of the site, the fact that the proposals were a departure from the Development Plan, access and flooding. objections made to the Corporation were also adequately represented. I do not therefore endorse Mr Moran's criticisms.

79. Mr Moran suggests that the reference to guidance about the development of playing fields from the Department of the Environment was not sufficiently expressed. While the report may not have conveyed the spirit of the guidance, the planning agreement on which the proposed permission was conditional sought to ensure the provision of land of amenity value. This outcome would, in my view, have been reasonably consistent with the guidance provided by the Department of the Environment. I do not therefore find evidence of maladministration.

Allegation (d): that interests were not declared when Board members considered the planning application

80. The permission granted could have increased the chances of developing adjoining land and the value of that land. Mr Richardson's interest as the agent acting for the owners of that land was declared both as a standing declaration and at particular meetings. The records do not show whether Mr Richardson remained during discussion of the application on 16 April 1992. However I am satisfied that he played no part in the decision.

81. Permission to develop the site could have increased also the possibility of development of other adjoining land owned by the Sports Club of which Mr Richardson and Mr Jackson were Vice-Presidents. The Corporation's solicitors advised that such an interest was not pecuniary, but advised nevertheless the declaration of an interest. It was, in my view, and for the reasons given earlier necessary to declare that interest.

82. I am satisfied however that the failures to declare made no difference to the outcome of the application. As noted above I do not believe Mr Richardson played any part in the decision. Officers recommended approval, which Mr Jackson endorsed. There is no evidence to suggest that he sought to persuade the other eight Board members to his point of view. In my opinion, Mr Jackson is unlikely to have had a pivotal role in the decision to approve the application.

Allegation (e): failure to take enforcement action on unauthorised removal of topsoil

83. Topsoil was removed from the site before the Corporation became responsible for planning in the area. The City Council prevented further removal taking place, but was aware of current applications to develop the site. Not until 1991 was the Corporation asked to consider whether to take enforcement action. A decision on whether to do so lay in the discretion of the Corporation. Like the City Council the Corporation too had held its hand, in part because there were applications for permission to develop the site under consideration.

84. I am not persuaded that the report was accurate in describing the evidence as "inconclusive". However I am satisfied that all the other relevant factors were set out in the report and do not consider the report to have been so flawed that it amounts to maladministration. The minutes record Mr Watson as absent. I see no cause for criticism here. In the absence of maladministration it is not for me to question the merits of the decision.

FINDING

85. For the reasons I have given above I do not consider that any injustice has arisen because of maladministration. I do not therefore uphold this complaint.

13 December 1995 MRS P A THOMAS

Local Commissioner

Beverley House

Shipton Road

York Y03 6FZ