The problem of briefing the subcommittee

Councillor briefings are absolutely crucial for a development as substantial and complex as King’s Cross. While the leadership was regularly kept informed and was broadly in favour of the King’s Cross development (subject to a satisfactory deal being negotiated), councillor Woodrow seemed at best ambivalent. He refused to allow the subcommittee to be briefed, or to give any direction on negotiations during the entire six-year process. His grounds were that this would constitute bias and be contrary to the committee’s duty of independent decision-making. This view was not supported by the borough solicitor, the director or the head of planning. However, councillor Woodrow could not be dissuaded and refused all attempts by officers to brief the subcommittee.

The reality was in stark contrast to the way it was portrayed by the KXRLG’s Michael Edwards, writing in the Camden New Journal in 2007:

While Edwards was entirely correct in advocating that councillors clearly need sufficient time and knowledge to be able to consider a complex application,⁶ he was apparently unaware that the chair of the subcommittee had refused any briefing. Interestingly, Argent’s Robert Evans also argues strongly that committee members must be involved earlier and more systematically if they are to reach informed decisions. Argent has even commissioned research in support of this idea.⁷ If community involvement is ‘front-loaded’, then it is only logical that the decision-makers must be involved early as well, if they are to avoid being put at a disadvantage. This view was supported by the 2006 Barker Review of Planning.⁸

The accepted practice in major planning applications is that policy direction is given by the leadership, and within this context, the subcommittee is briefed at regular intervals. Standards of conduct in public life were examined by the Nolan Report⁹ and informed provisions in the White Paper Modern Local Government in Touch with Local People,¹⁰ which in turn informed the Local Government Act of 2000. The Nolan Report accepted that the planning process put elected councillors into the position of taking decisions within a legal framework. However, it rejected the idea that councillors have to behave under the same quasi-judicial constraints as judges or planning inspectors. The Barker Review also accepted the potential benefits of early member briefing:

Following a series of judicial review cases, guidance was issued in 2007 that supports the proposition that councillors should be kept well informed of emerging proposals and should meet applicants for briefing to establish the facts behind a scheme.¹¹ This extends from the pre-application to the post-application period. The proviso is that councillor involvement should operate in a fair and transparent way.¹²

The problem with the subcommittee was well-known to the leadership, but was never

aired within the Labour group.¹³ Councillor Woodrow was well entrenched in the party, and was respected by many on the council.¹⁴ No other councillor had expressed a desire to chair the subcommittee, and there were fears that any attempt to remove him would end in internal conflict and negative publicity in the local paper, the Camden New Journal.¹⁵ The leadership saw the subcommittee and its chair as an irritant, but one to be put up with rather than resolved.

Despite representations from their officers, there was no mechanism whereby Camden’s leadership could break the isolation that councillor Woodrow was imposing on his subcommittee.¹⁶ This created difficulties in the negotiations. First, the Camden planning team had in effect been negotiating blind for six years and had little idea of the opinions or voting intentions of at least half the committee. This made the final decision something of a lottery. The second problem was that Argent was well aware of this, and it undermined the position of Camden council’s negotiating team. After all, why spend time and resources on negotiation when the Camden team had no brief from, or influence over, their own decision-makers? Why not go straight to appeal?

It is unclear why councillor Woodrow refused to be briefed on King’s Cross, although there is little doubt that he viewed Camden’s planners with a deep mistrust, believing them to be too close to Argent.¹⁷ He also believed that the correct vehicle for the planning decision was a public inquiry. In his view, Camden council wished to control the permission for the King’s Cross development because more ‘planning gain’ would be won that way, and he viewed such negotiated benefits with cynicism. He had also expressed concerns over the acceptability of the ‘hybrid’ application. The isolation that he imposed on himself led to a suspicion among officers that he was in fact being briefed independently by opponents to the scheme. The suspicion, based on hearsay, was only circumstantial, but there were similarities between Woodrow’s views and those of some opponents. If these rumours were true, it meant that far from being independent, he was likely to oppose the scheme, and would attempt to have it refused when it eventually came to the subcommittee.

In the absence of any formal briefings, members of the subcommittee were having to rely on information from other sources, including informal conversations with their constituents and community groups supporting or opposing the scheme. In such an environment there was certainly a great deal of misinformation circulating.¹⁸ Regardless of Woodrow’s insistence on absolute neutrality, members were forming views. When Sue Vincent, vice chair of the subcommittee since 2002, became a member of the council’s executive board in 2004, she was shocked and angry at the extent of information that she had not been party to. For her, this confirmed that the scheme was a ‘done deal’ and it was the beginning of her concern that due process was not being applied and that the wider community was being excluded.¹⁹ This exposed the tensions between the council executive and the subcommittee.

The interview in the Architects’ Journal

Matters came to a head in September 2004 when the Architects’ Journal (AJ) published an interview with Woodrow in which he condemned the scheme:

Figure 8.1: Hellman cartoon from the Architects’ Journal.

This statement was particularly worrying since Woodrow had refused any briefing on the scheme, and was presumably relying on his own sources of information. This was ironic, given the highly principled but erroneous stance he had taken regarding bias and impartiality. To emphasise the point that Camden council was now opposed to the scheme, the Architects’

Journal published a cartoon in the same edition characterising Camden council as an ancient steam train blocking the path of an express train entering King’s Cross (Figure 8.1).

Meetings took place between the borough solicitor, chief executive, senior planners and leader. The leader viewed the matter as very serious, damaging and posing a reputational risk to the council. The nature of Camden’s internal politics, however, meant that it was virtually impossible at this stage to challenge Woodrow’s chairing of the subcommittee.²¹ Instead, the leader sought to reduce the potential risk to the council and asked Woodrow to retract his comments. In September 2004, the borough solicitor wrote to Woodrow asking him to publicly ‘correct’ his statements.²² Woodrow responded in a non-conciliatory manner: ‘The view I expressed in the AJ article indicated no predetermined view of the applications […]. I see no reason to withdraw from the determination of the King’s Cross application and I do not intend to do so.’ He went on to suggest that the AJ was not ‘a journal of record and that its reliability, accuracy and credibility must be questioned’.²³

It is unclear why Woodrow refused to retract his comments. It is possible that he suspected intervention by officers in the political workings of the council, a state of affairs that he would not accept.²⁴ It is also possible that he believed the Labour group would back him if it came to a showdown with the leader. Given the strong views of both officers and some councillors, the leader took independent legal advice that confirmed Roberts’ concerns about the risks to the council.²⁵ In the face of Woodrow’s refusal to back down, the borough solicitor reported Woodrow to the Standards Board for England, in September 2004, as being in breach of his duties of impartiality as a councillor.²⁶

Councillor Woodrow’s removal from the decision-making process

It is difficult to assess just how damaging Woodrow’s comments were. They certainly undermined Camden’s credibility in the negotiations. There was also a chance that if the subcommittee refused the scheme on Woodrow’s casting vote, the council could be legally liable should Argent decided to take them to court. Although the risk might be low, the damages could be very high.

The matter might have ended there, with the political leadership unwilling to pursue the matter further, but Argent, initially relatively sanguine about the article, did expect Camden council to act on it. When it became clear that this would not happen, Argent wrote to Camden’s chief executive:

Figure 8.2: CGI of scheme submitted for planning.

Argent’s letter meant that the council had to respond. The matter was brought to a meeting between senior officers and the executive in January 2005, with a recommendation that Woodrow should either step down as chair or absent himself from the subcommittee meeting. It was referred back to officers to resolve; the leader reasoned that it was an issue that should rightly be pursued by the borough solicitor as the monitoring officer.²⁸ The borough solicitor had no alternative but to pursue the matter. An internal inquiry was conducted with external legal advice. This concluded that Woodrow’s comments, and his refusal to withdraw them, were clear indication of bias and that he should take no part in the decision-making process. While the matter was before the National Standards Board, Woodrow was strongly advised not to take further part in the King’s Cross decision-making.²⁹

Several factors contributed to the officers’ decision to pursue the case, although as noted above, the borough solicitor had little choice. Both Argent and Camden council had been meticulous in avoiding any risk of external challenge, and were acutely aware of the risks posed by taking the scheme to an unbriefed and finely balanced subcommittee with a potentially compromised chair. Given the complexity of the issues, an experienced and capable chair such as Woodrow could have drawn out the debate until the subcommittee ran out of time. This would have had knock-on effects since the timing of the subcommittee was critical. With a local election coming up in Camden council in May 2006, the March subcommittee was the last opportunity to decide the scheme under the present council administration. A new council, with new councillors and new political priorities might have unravelled the entire negotiation process. Furthermore, a new council would be unlikely to hear the case before the autumn, adding to Argent’s doubts about whether Camden council would approve the scheme. Such uncertainty might have persuaded Argent to take the scheme to appeal for non-determination. This was not an outcome that Camden wanted.

Pre-application lobbying

The Camden New Journal was openly campaigning against the scheme. The edition in the week before the subcommittee, stated: ‘We have to stop this vile, vulgar vision of the future’, quoting members of the KXRLG, and claiming that the scheme was widely opposed by local residents.³¹ The council’s leadership therefore decided that it was too close to leave it to chance.

Councillor John Thane (executive member for Environment) and councillor Theo Blackwell (deputy leader and executive member for regeneration), both members of the development control subcommittee, recognised the importance of the King’s Cross scheme and were prepared to champion it. With an election coming up, they were reluctant to hand over the decision to another administration, fearing that the affordable housing element could be watered down. Their reading of the subcommittee was that the Labour councillors were divided between those who viewed almost all large development with suspicion, and those who saw benefits in growth, especially in affordable housing for those in the greatest need.³²

Councillor Thane had championed the scheme throughout and had worked to build broad support through the Labour administration. Councillor Blackwell also agreed to speak to some of the wavering members of the subcommittee, under the auspices of his role as cabinet member for regeneration. Between them, the key issues were re-framed in a number of ways, emphasising ‘now is the time’ for both short- and long-term reasons. First, King’s Cross’s notorious drug and vice problems had long blighted the borough and were perceived as fuelling new drug markets to the north in Camden Town. The council was leading in the use of new community safety powers (antisocial behaviour orders – ASBOs) to tackle such problems.³³ Physical regeneration had to follow, a message that newer members, for whom crime was the number one priority, readily grasped. Secondly, King’s Cross was no Canary Wharf, then considered a by-word for commercial-only development and displaced communities. The right balance between affordable housing and commercial development would create the right conditions for future growth and would help to cut Camden council’s growing housing waiting lists at a time when the council relied solely on development to do so. The development would ultimately drive up value, potentially enabling regeneration in the longer term of the huge council housing estates surrounding the site on all sides. As the date of the subcommittee approached, the estimated balance of voting began to change:

This would still be very tight, and the entire strategy could be derailed on the night by a particularly impassioned speech or representation.

The subcommittee meeting

The paperwork presented to the subcommittee was daunting. To address the lack of prior briefing, it was agreed to hold a special meeting of the development control subcommittee spanning two consecutive evenings on 8 and 9 March 2006. The first meeting would hear representations for and against the development and allow councillors to question the various delegations on points of detail. On the second evening, Camden council planners would present the report and councillors would have an opportunity to ask questions before debating the scheme. The committee adjourned at 22.45 on Wednesday and reconvened again at 18.00 on Thursday. On the Thursday morning, the front page of the Camden New Journal condemned the scheme and urged the subcommittee to reject it.³⁵

The decision was always in the balance, and at 22.30 on the second evening, with only 30 minutes to go before the vote, Stephen Ashworth, Camden’s external lawyer, called Peter Bishop out of the committee room. He had calculated that the committee was going to vote against the scheme and urged Bishop to seek an adjournment. Bishop, meanwhile, had calculated that the committee was probably going to pass it by a single vote, and his view was to continue to a decision.

The key moment came towards the end of the debate. John Thane, who had remained silent throughout, spoke in favour of the scheme, setting out his previous reservations and explaining why he now whole-heartedly supported the development. At this point the wavering Labour members resolved to follow his lead and spoke in favour of the scheme. The outcome had been uncertain right to the end, but ultimately the King’s Cross scheme was approved by two votes:

The Conservative councillor, Mike Greene, who was not present had given no reason for his absence. Councillor Greene had been a diligent member of the committee and a strong voice on the council. He also respected Brian Woodrow,

whom he described as, ‘a politician wanting to do his best for the borough rather than himself’,³⁶ and Camden council officers had expected him to vote against the scheme. In interview, however, Greene stated that his non-attendance was due to a combination of a personal dilemma and specific circumstances. He personally believed that the regeneration scheme was essentially one that he supported. However, before the subcommittee took place there had in fact been a meeting of the Conservative party political group where King’s Cross had been debated. The Conservative leader gave a strong steer that his members should vote against the scheme. This was not because the Conservatives necessarily opposed the scheme, but with a local election coming up in May, King’s Cross had become a party political issue. It was a simple piece of political opportunism. With his leader asking him to reject an application that he would have wanted to support, and election campaigning meaning he would not have sufficient time to read the papers thoroughly enough to participate fully in the debate, the easiest solution was not to attend at all.³⁷ Had one Conservative councillor not been absent, and had councillor Woodrow still been chair and voted against, the result would have been a tie. In such a tie, the subcommittee chair has a casting vote.

A last minute amendment

One final unexpected event had serious implications for the scheme. At the last minute during the voting, councillor Stewart proposed an unexpected amendment to a standard recommendation that, following approval, council officers would have delegated authority to sign-off the details of the section 106 agreement. No formal approval of the planning application could be issued without this sign-off. The amendment was that the section 106 agreement should come back to the subcommittee for formal approval. This effectively deferred a final decision until after the local election in May 2006. The councillors were probably unaware of the full implications of the amendment, but officers were dismayed. In retrospect though, Heather Johnson, chairing the meeting, was clear that this amendment was possibly necessary to persuade any wavering members to vote for the scheme.³⁸

Such was the confusion in the final minutes of the meeting that even Argent was unsure of the final outcome. When Peter Bishop went to congratulate the Argent team, Roger Madelin swore vividly, before Robert Evans confirmed that they did indeed have a consent.

Normally, this amendment would not have caused serious problems. The subcommittee had approved the scheme, and to revoke the decision would have cost considerable sums in compensation. The section 106 agreement could not be used to change this decision, and signing it off should therefore have been routine. However, there would be no opportunity to do this before the local elections in May 2006. What was not foreseen at the time was that Labour would lose the local election, and that the Conservatives and Liberal Democrats (who had largely opposed the development) would take control of the council.³⁹

Approval of the section 106 agreement

The project still had to be taken back to committee for section 106 agreement to be signed-off. Greene took on the task of reassembling a cross-party coalition on the subcommittee. The working assumption was that the Conservatives would support investment and development, Labour would support projects that had commenced under its administration, and the Liberal Democrats would vote at random. Although a few councillors wanted to use the section 106 issue to reopen the King’s Cross debate, the legal advice was unequivocal. On 25 November 2006 the subcommittee approved the section 106 agreement by a clear margin.

The planning approvals were signed on 23 December 2006, which was, coincidentally Bishop’s last day working for Camden council. Following Camden’s grant of planning permission, the mayor, satisfied that Transport for London’s interests had been accommodated, endorsed Camden’s decision within four days and passed it on to the secretary of state. The secretary of state’s staff at the Government Office for London (GOL) had received letters asking for a call-in for an inquiry. GOL wavered but accepted that with such a thorough planning report, a call-in would have completely invalidated the principles of the plan-led system and the legitimacy of both local decision-making and the office of the mayor.

Normally, the achievement of planning consent would have cleared the way for construction to begin. The London property market was booming and the King’s Cross scheme was ready to start. Throughout the negotiations, however, it was anticipated that KXRLG would seek a judicial review of the planning permission, and the scheme could not start until this had been resolved.

Grounds for the judicial review

The application for judicial review was made on two grounds, both of which were dismissed. The first was whether the newly elected council had been wrongly advised by officers and the council’s legal consultant that they had no legal grounds to reject the scheme when the section 106 agreement came back to subcommittee for consideration. Given the change in political control, it was argued that members should have had ‘full and unfettered discretion to reconsider all or any of the matters of the old committee’.⁴⁴ The judgement accepted that Camden council’s advice to members was ‘both clear and correct’, and that as a whole it did not fetter their discretion or ‘box them in’.⁴⁵

The second ground was that the planning permission went against policy regarding affordable housing. It was argued that the decision should have taken into account emerging guidance on affordable housing (PPS3).⁴⁶ On this, the judgement found that ‘there is, in practical terms, no difference whatsoever between the definition of affordable housing in PPS3 and the definition of affordable housing in the section 106 agreement’.⁴⁷ The judgement also found that the advice given to the committee on the adequacy of the affordable housing, and whether or not the committee could decide for itself whether the failure to meet the 50 per cent target meant that there was a departure from the development plan, ‘was impeccable’.

Commenting on the experience, KXRLG’s Michael Edwards had no regrets on seeking the judicial review, and expressed a personal view that such challenges are an important check on the ‘autocratic power of the cliques which run “reformed” local government, and on the power of officers, who are far too often in a dangerously cosy “partnership” with developers’.⁴⁸ Costs were awarded against the King’s Cross Think Again Group. Camden council pursued these but Argent waived them.

Ironically, the relentless opposition by KXRLG may well have saved the King’s Cross scheme. By October 2008 the effects of the credit crunch were affecting the entire banking industry. The six-month delay between the grant of planning permission in December 2006 and the judicial review hearing in May 2007 meant that Argent had delayed and then scaled back its borrowing to finance the development. Had Argent not done so, it could have faced severe financial difficulties. This is picked up in Chapter 9.