Quote: Theboyem "I suppose that phrase is all in the interpretation. With the phrase 'in no way' i read it straightway as a seperate application with no legal binding to the original application and as such won't count towards the s106. Other may read if differently. I guess thats why it would be a legal minefield.
As for the second part that certainly sounds rather convenient on the councils part. Although in any meetings i attend all departments represented usually get a copy of the minutes. Glover and Elston should gave chased this up on the trusts behalf. That said they were too busy spending money we didn't have to bother with that.'"
Ok, that is how you 'read' it but you are, I know, a reasonably intelligent guy but equally I read it differently because I also knew that S106 agreements are land charges, so while they might have written that, Section 106 of the Town and Country Planning Act clearly takes precedent and as such, they can write what they like because they cant avoid the S106... well, we thought not (because they have) and we think this may be unlawful, but equally I am sure WMDC's opinion is different and a such while that is my opinion it remains that until tested in law.
Now, lets take the legal argument out of it. Lets ask people here, as laypeople, what do they think? Has it been made clear that this did not count towards the trigger areas in the S106 agreement? The first time they actually state that this will NOT count towards the unilateral undertaking is in the planning officers report, when it was no longer possible to object?
Also, when Peter Box was asked in a letter about this, he said, and I quote verbatim "At the time that the application [Newcold] was received, we took legal advice which confirmed that as a separate application,
it could not be subject automatically to the same conditions as those applied by the ones granted by the Secretary of State."
When we asked about this and his contention that he told the Trust and the Club about this too, this is, verbatim, what we got back from WMDC.
[iThank you for your request for information about the issues raised in the letter from Council Leader Peter Box dated 28/8/14 Ref PB/KES concerning Newcold development at Newmarket. Namely the request asked for
1. In what form were both parties [the club and the trust] alerted (written, verbal, other etc) and if there is any record or copies of these alerts and their subsequent replies available, could I please see them and
2. Copy of the legal advice sought by WMDC in respect of the planning application for the Newcold Development at Newmarket and a copy of the advice given with the details of the lawyers who provided it.[/i
[iWith regard to Question 1 following careful consideration, I regret to inform you that we have decided not to disclose this information. The information you requested is being withheld as it falls under the exemption in Section 43(2) under the Freedom of Information Act which applies to information which, if released, would be likely to prejudice the interests of the Council or another person.[/i
[iAs this is a qualified exemption, we have also considered whether in all the circumstances of the case, the public interest in withholding the information outweighs the public interest in disclosing the information. In reaching our conclusion we have considered the factors in favour of and against disclosure. We believe in promoting transparency and accountability by public authorities for decisions taken by them.[/i
[iWith regard to Question 2 concerning legal advice I can confirm that the Council do not hold a record of the legal advice received. I am unable therefore to provide you with the information requested.[/i
You can make of that what you will.
I can also add that both Sir Rodney and James Elston have both acknowledged that meetings took place but they have also said that they do not recall being informed that the Newcold development would NOT count towards the S106. Sir Rodney can not recall (not surprisingly, given how long ago this was) whether any meeting minutes where taken and having looked back through his and the trusts records, no minutes have been found.
So, the above are just facts, we have put them out there and you guys have to decide what you think and what you might like to do about it. We have made it clear that feel an injustice has been done and the ultimately, we might have to go to the High Court to test this in law. In our opinion we have a case, and I am sure they will say the same, so that at the moment is that!
