Ernie Clark. Hilperton Division, Wiltshire Council.

I received the following at 6.00pm last night....

You can guess what the legal-eagles at WC think...

'Hi Ernie,

Further to my email of 14 November I am now able to confirm the council’s position on this matter.

The Scheme of Delegation Specific to Planning in Part 3 Section D3 of the Constitution defines the extent of powers delegated to officers in relation to planning matters. As you have identified, the Associate Director, Economic Development and Planning Services (and any officers authorised by him) may :

make changes to conditions approved at Committee (in the light of changing circumstances between the meeting and the issue of the decision) provided this is in line with the principles of the Committee’s decision. Any such changes will be reported back to a subsequent Committee for members’ information;

I agree, therefore, that this qualifies the extent to which an officer may make changes to conditions approved by the planning committee between the meeting and the issue of the decision as a result of changing circumstances.

In this case the relevant condition, condition 18, imposed by WWDC Planning Committee in 2005, states: ‘The speed limit on the road shall not exceed 40 mph’. I understand that the design and construction of the HRR is such that the appropriate speed limit, now being proposed by the Council as highways authority, is 50 mph.

Legally, condition 18 is ultra vires as it is unenforceable. The speed limit for the HRR is set by the Highways Authority through a Traffic Regulation Order (TRO) made under the Road Traffic Regulation Act. It is not, therefore, something which can be conditioned as part of a planning permission. The fact that the developer at the time of the planning application was happy to accept this condition, and did not appeal it, does not affect the position. We are not dealing with whether the condition was appropriate or met the Circular or National Planning Policy Framework ‘tests’ for reasonableness (which are matters that could have been determined on appeal if the applicant was not happy with the condition), but rather whether it is lawful. If it is not a lawful condition, then it has no validity and is not an extant condition. Therefore, there is no need for it to be removed or varied. It is simply ineffective.

In terms of the proposed speed limit itself, the issue is whether that is appropriate, in highways terms, at this time.

This needs to be considered separately from the planning decision and processed in the usual way through the making of a TRO. This is a statutory process which requires a formal public consultation in which representations may be made by any interested party. As this is legally defined as executive business the decision is then made by the Cabinet Member for Highways and Streetscene and Broadband having regard to any representations received, relevant guidance and advice from officers. The wishes of the WWDC Planning Committee in seeking to impose condition 18 in 2005 may be a relevant consideration in determining the TRO but the Cabinet Member will not be bound by it.

I trust this clarifies the legal position. I will be happy to discuss further if necessary.

Regards.'

My reply sent last night was

'Hi,

Thanks for this the content of which was not unexpected.

Needless to say I disagree with you 100% - you have simply repeated (in more legal terms) what WC highways told myself and Cllr. Oldrieve. If this condition is, as you claim, ultra vires, why was this not pointed out to the planning committee? The meeting was so important that a legal officer would have been there.

I agree with you that WC highways has the right to consult on this but the ultimate decision needs to be made by the planning committee NOT Cllr. Thomson.

Perhaps the WC strap line needs to be amended to ‘Where officers’ opinions matter’.

Ernie.'

I will keep you advised of how this develops but I think a public outcry might do some good in convincing the Cabinet member (Conservative Cllr. John Thomson) that democracy needs to be seen to be done and not carried on in 'a smoke filled rooom'.

This decision by WC could be straight from the pages of George Orwell's '1984' - Q. Don't like a decision that was made in the past? A. Simply re-write history as if it had never happened!