Friday 12 November 2021 - Introduction

In my job I help people.  That’s what we’re asked when we are young adults: what would you like to do when you grow up?  Some people, like me, say, “I want a job where I help people.”  Despite now being in middle-age and nearer the end of my career than the beginning, this sentiment has stayed with me.  Cynicism never crept into my jobs with Government contracts and London boroughs, and helping people has always been the foundation for how I’ve negotiated the bureaucracy of the public sector.

Some people might say, “I want to do something creative”, “I want to work with animals”, “I want to change the world”, “I want to do as little as possible” or “I want to be famous”.  These are all fine goals and to each his or her own.

“I want to earn lots of money” is a common ambition, a goal in and of itself and otherwise it doesn’t matter what job that young person might end up doing.  This, too, can be a noble goal when we’re taught that we’re appropriately rewarded for the contribution we make to the economy and society.  Boris Johnson celebrates the creators of vaccines for COVID-19 as they have become rich as a result, reflecting on the contribution they have made to people’s lives and the world economy.  I’m not saying that these scientists were motivated by money to find a solution but, perhaps instead, by vocation, curiosity of the science or they simply enjoyed taking on a high-profile challenge, and/or, like me, they like working in a job where they get to help people.  I’m sure they were happy to accept the financial rewards and I wouldn’t necessarily ascribe this to greed.  But for those who are motivated by money and make the contributions as a result, then, I agree, greed is good.  It is the basis for capitalism.  It is the motivator, the payment for risk and application and, therefore, progress.

But most economists accept that the capitalist market has failings.  So what happens when people are motivated by greed to pursue money for initiatives that do harm?  In the modern economy, this is where government intervenes.  And this is my role in local government: to steer or redirect efforts of private companies to make money from doing general harm to doing general good.  I am the Section 106 (S106) Officer for Economic Development for Hammersmith & Fulham Council.  What this means is that I apply, monitor and enforce planning obligations on construction developers to mitigate the negative impacts of their major developments on our local area in West London.  In simple terms, I ask them, if you want to meet the conditions of your planning permission, you have to employ our local residents in your development’s construction, and that usually means training them up first.  This is how I help people.  I help local residents, usually those who are unemployed, get training and qualifications in construction, usually funded or arranged by major construction companies, who then progress into careers.  In so doing, developers get to build much needed homes, places of work and the infrastructure on which we rely, and people in the same neighbourhoods as those developments get preferential access to the subsequent jobs created where, otherwise, they would have been excluded from the labour market.  In theory, this works very well.  In reality, greed can be a very distorting force and one that needs to be scrutinised.  Here I scrutinise these distortions.

When I started at Hammersmith & Fulham Council, my Head of [the Economic Development] Service and line manager told me developers have always struggled to hit their employment & skills targets and that I shouldn’t expect too much of them.  I didn’t know why he said this.  Although I welcomed my new boss already excusing my lack of contribution to the team before I’d even started and taking most accountability and pressure away from me, I was curious why S106 shouldn’t work well.  The mechanics were there.  Legal agreements were made between the local planning authority and planning applicant and their developers.  These are backed up by planning law.  Agreements can be enforced in contract law and planning law.  Planning permission can be withheld for non-compliance, or financial remedies sought for non-delivery, eating into the sole purpose for private companies building in the first place: profit.

So why should local councils struggle to hold private developers to account for the benefit of our residents?  Hammersmith & Fulham Council has principles to guide decisions made by its officers.  They are permanently displayed on our laptop desktops and they are:

•      Creating a compassionate council
• ·       Doing things with residents, not to them,
• ·       Taking pride in H&F
• ·       Being ruthlessly financially efficient
• ·       Rising to the challenge of the climate and ecological emergency and
• ·       Building shared prosperity

It’s this last point that guides me to think that the Council wants me to hold developers to account to ensure that the economic development of the borough, through its physical regeneration, is shared with its residents.  In my case, this would be sharing the jobs created and brought to the borough.  That, and the fact they specifically created a job and employed me in the Economic Development team to manage S106 to apply, monitor and enforce employment and skills contributions and this is now my sole purpose.  So one might reasonably conclude that the council wants this to happen.  Coupled with the fact the council has the stick with which to beat developers, this doesn’t sound like a hard job to do and, in any case, the council would back me up with any resistance I might face from developers in delivering these contributions.  At my disposal, there is the Legal team to arrange legally-binding S106 contracts with planning applicants and advise me on their interpretation and application.  The Development Management team can apply S106 obligations in negotiation for planning permission.  On this they can give me advice and support.  The Infrastructure Delivery team will monitor S106 triggers such as construction start dates, and disallow permission to progress if obligations in said contract are not satisfied.  One such obligation is having agreed an employment and skills delivery plan with me that I am confident will genuinely benefit our residents.  This gives me the power and urgency to help developers design truly effective training and employment interventions because, until then, they’re not permitted to start construction.

However, ten months into my job, I’m starting to see why my line manager was so sceptical.  The reality is that most of that corporate support is not really available.  Council services are largely dysfunctional and developers are very good at playing council teams against one another to minimise the public contributions, that make the difference between a development being harmful or good, that they are otherwise obliged to make.

In fact, this strange relationship between developers and councils has been going on for so long that some major developers are getting a bit cocky.  They know there is already inherent social value to their developments.  There is currently a housing crisis in the country, especially in London.  Councils don’t want to scupper residential development.  The Government sets councils targets for so many homes to be built.  These targets undermine councils’ authority to impose contributions to make good the harm developers are doing or otherwise reject applications to build homes when, really, the homes themselves are a relief.  The same can be said of commercial development which attracts investment and jobs to an area as well as much needed infrastructure such as (recently in H&F), mega-sewers, national exhibition centres, retail centres with a London, national and international catchment area, and bridges over the Thames.  Are we realistically going to block these things for the sake of a few construction jobs?  The reality, in my job, is I have to be diplomatic with developers and avoid the word “breach” in terms of their S106 contract, instead being encouraging and supporting developers by arranging construction training centres paid with public money but for the benefit of the private, profit-orientated construction industry.  In turn, developers pay lip service to their “corporate social responsibility” and the “social value” they “deliver” to “communities”.  In fact, the PR machine is better funded than any efforts to help communities.  Any suggestion by me, the S106 Officer, that their efforts might not be compliant is met with a collective shrug and they place someone who is not very bright and with a thick skin with which for me to wrangle to keep me away from the management.  It’s akin to trying to achieve my ambition of helping people by punching an inflatable rhinoceros planted in front of me to distract me from the people making the actual decisions while they choose, intermittently, to make soothing noises to senior managers and council members.  The strategically placed rhino they usually call an “Employment & Skills Coordinator”, “Social Value Manager” or “Community Engagement Manager” in lieu of thinking of a more ironic title since their job is mostly to minimise these efforts.

This is all fine with me.  I do my best with the authority I have without upsetting people too much and while there’s hardly any pressure on me to achieve much anyway.  However, not all developments have inherent value, especially in inner London where land values can be so stratospheric they distort the economics of building homes.  A recent and well understood phenomenon has appeared in inner London: the “investment flat.”  Flats on this land can be so valuable, the housing market in central London so bullish, and global interest rates historically so low, that these “luxury apartments” serve as more profitable and secure investments than most financial instruments, and certainly better value than High-Net-Worth Individuals (HNWIs as described by wealth management companies) keeping their millions and billions in bank accounts.  So there is now an established market for home building, not to be used as homes, but as financial instruments of investment.

Planning committees have no choice but to allow legally compliant planning applications to proceed.  There may be a common perception that they can reject unsavoury developments on a whim but, although there is an element of judgment and preference, committee members have little power to decline most applications, especially if S106 contributions have been offered to mitigate its impact on the local community.  And the PR machine, so important to developers in their applications for objective approval against cold planning legislation, is operating well to oil the wheels.

In my job, it’s often a slow, uphill struggle to get morsels out of developers with the wall of impervious ignorance shielding decision-makers operating in a cut-throat culture of maximising profit margins.  They minimise contributions to dysfunctional council services who are mostly entrenched in their own empire-building intra-service competition meaning we don’t like to co-ordinate our efforts to maximise the benefits we might get from development.  This is coupled with a bizarre public sector recruitment practice that favours oddballs and public sector officers sacked from other local and regional government organisations bouncing from one failed service to another, and rejects anyone with private sector experience, new ideas and, often, good old-fashioned sanity.

But, despite this, if the proverbial stars one day aligned, what if such a mercenary development with no inherent social value met a particularly cocky Rhino which in turn met an idealistically dogged S106 officer?  This situation has now occurred and this is a diary of such a distortion in the normal way of things.  Berkeley Group is a large residential developer.  They currently have four major developments in our borough on some of the most sought-after and expensive land on the planet: Chelsea and Fulham.  Combined, these developments have a build cost of £1,705,900,000.  This is just the cost of building these flats and does not include the margin they will receive from sales.  To give you an idea, some flats already completed and advertised are on sale for about £5m each and a small studio flat starts at £750,000.  These “homes” are not contributing to alleviating the London housing crisis.  Nobody wants them.  Nobody will probably live in most and the few people that do occupy them are not affected by housing shortages or an overheated property market.

When I started in my job at the start of this year, St James, St William and St George, subsidiaries of Berkeley Group, reported the names, postcodes and jobs of “local” residents they had employed as part of their S106 contributions.  With brief scrutiny, I could tell that most postcodes were not in our borough, many not in London.  These were not our residents and not people benefitting from the development in their local area.  I politely and diplomatically asked them about these employees and why they had been reported against their contributions.  From then on the shutters came down and they refused to report anything other than anonymised and unverifiable statistics citing data protection for their employees.  Logically, this seemed an odd excuse.  They had been happily providing their employees’ details to Hammersmith & Fulham for years (since 2014) before my post was created.  They continue to report details to S106 officers in other London boroughs.  They only decided it was against the law days after I scrutinised these back reports and I was supposed to believe that this was a coincidence? 

Officially, I must be objective and indifferent in my job.  I shouldn’t and don’t take offence.  I do not make decisions; I simply interpret and apply planning policy.  I will do my best to encourage and support delivery of employment and skills provision to developers and their sub-contractors where they are making an effort to work with me but, if they won’t co-operate, there is little I can do.  In these cases, I shouldn’t and don’t care whether they meet the conditions of their planning applications; I just monitor and report back to the planning officer whether the obligations have been discharged or not.  What happens next is none of my business.  Technically, charges should remain on planning permission meaning these properties can’t be sold or leased.  Yet, for the reasons described above, I don’t think this has ever happened in the history of S106.  But, with Berkeley Group, the situation feels unique.  All that’s missing from the mythical alignment is an unfeasibly intractable Rhino.  Step up Kimberley.

Kimberley is a solicitor employed by Berkeley Group, to whom the Employment & Skills Coordinators with St James, William and George have deferred, to explain why they are no longer reporting evidence of their contributions.  Just from the name alone I can’t help but bring to mind Victoria Wood’s Kimberley.  But this is an unfair comparison until I heard her talk, at which point I realised this is not someone with whom I can reason.

Suffice to say, when she realised I had taken legal advice on the wording of the S106 agreement, that the evidence I was requiring, the identifying names and postcodes of the employees Berkeley’s subsidiaries were claiming were local residents, and that the council’s Legal team who drafted the contract were steadfastly claiming was clearly specified, she conceded that she would make the arrangements for permission to be sought from these employees to submit their details to the council in their next quarterly reports as evidence of local jobs contributed.  Alas, this promise was only temporary and, come the next quarterly monitoring report, due in October, anonymised statistics only and, therefore, no evidence was provided again.

“…as we’ve been having an ongoing conversation on” I emailed St James’s Employment & Skills Coordinator on 8 November in reply to her anonymised monitoring returns, “I can’t consider these reports… if the council can’t verify the information in them…

“I did agree this with your Legal team (Kimberley) and you said to me a few weeks ago that you would confirm with her that she did agree this (or not).  Did you manage to speak to her?

“In the meantime, I have not received any reports that are compliant with the minimum requirements in the S106 agreement and so can’t consider these contributions.”

 

I didn’t hear back from her again but instead the next email I received was from Kimberley two days later:

“Hi Paul,

“How are you?  I’ve just looked at the calendar and realised we are 5 weeks away from the holiday season!  I don’t know where the time has went…”   

 

Where do I start with this?  I don’t mean to be unfriendly but this level of chumminess is completely out of context within the short but combative relationship we’ve had so far.  And “holiday season”?  She’s not American!  Do we have a holiday season here?  Does she mean Christmas?  As for “I don’t know where the time has went”, let me remind you that this is supposed to be an educated professional.  She has the job title “Solicitor” in the signature of her email.  Am I supposed to accept that she might be better qualified to interpret the English language in the S106 contract than the council’s lawyers?  She continues,

“I received a message from my colleague [the Employment and Skills Coordinator for St James], asking me to please finalise the arrangements between you and I [sic].

“I’ve told [the Employment and Skills Coordinator for St James] that she should continue providing you with [anonymised data on local residents trained and employed].  We would need to agree a formal change to the agreements, via an Addendum, and I do not believe I would be able to get this signed off my end.”

 

What arrangements?  We agreed she would make the arrangements with Berkeley’s employers to seek permission from these employees and add their identifying data in the next report due in October.  There was and is nothing for me to arrange.  What addendum (inexplicably capitalised here) is she referring to?  The council has no desire to renegotiate the contract as the council’s Legal team are adamant they’re satisfied with the wording as it is and this was made clear in our last conversation.  Yet Kimberley is implying, without reason, that we agreed to renegotiate.  Or perhaps not.  Perhaps she is implying that the wording of the contract prohibits St James providing the data I’m requesting, even with permission from their employees but, if so, this is both not a conversation we have had or in any way true.  I can’t tell if she is just filibustering awaiting some future event that will make this requirement go away, although I can’t imagine what this event might be, if she is a fantasist or just plain muddled.  I replied:

“Hi Kimberley,

“I’m well thanks.  How are you?

[What else can I say?]

“In our last conversation, I understood we agreed that, for Q1 2021/22, the S106 Economic Development monitoring reports would remain as they were with anonymised outputs until the employers had the chance to get permission from our residents to disclose the support and employment they had received from the developers as a result of the Employment and Skills Plans[…] designed and agreed with the council, and that the Q2 report would then include all the required evidence of contributions made.

“We discussed the S106 agreements and that I had taken advice from the council’s Legal team and that this evidence of contributions is already a requirement in the S106 agreement.  As such, anonymised data doesn’t constitute evidence and I am unable to verify the outcomes.

“Therefore an addendum to the S106 agreement wouldn’t resolve this issue and, given the advice I received from Legal, they wouldn’t consider an addendum anyway because they believe this point is already covered and does not need to be renegotiated.

“I’m happy to have another chat about this if that is helpful?”

 

She replied the following day:

“Hi Paul,

“I’ve spoken with our General Counsel, and we have a different understanding of the agreement.”

 

This, I have noticed, is a common tactic of private developers; they try to intimidate council officers trying to exercise authority on their own with little support because officers simply don’t have the co-ordination to gang up on developers like they do on us.  I’ve been in meetings to negotiate S106 obligations where besuited men and women sit around a conference table in video calls challenging my justification for the obligations I am asking for.  The sight of such a corporate tableau is contrived to cow me into accepting their dominance and authority in these matters.  I never see these executives again when the obligations are agreed and it comes to committing to supporting our residents.  Citing the “General Counsel” with capital letters without any explanation of what this might be is a similar tactic to give me the impression that a higher order of elders has the final say and a group with whom no one can raise a challenge.  However, I stick to my guns because I’ve already decided in my first week of work that my line manager can’t be right that there’s no way of enforcing planning obligations on “Big Business”.  She continues:

“Would you please provide your legal team’s contact details, so we can address this directly?”

 

No.  The council’s Legal team is there to give advice to councillors and council officers.  It’s a corporate service I’m sure much like her own.  They are not there to give counsel to third parties, particularly ones with which we are in dispute.  I’ve already advised her that I have taken counsel from them and they are happy with the clauses in the contract and we have no intention of renegotiating.  Of course she can dispute the contract, and provision is made in it to call in a planning arbitrator (at the developer’s expense should they lose their claim).  But Legal is not going to advise her on how to safely breach the contract they wrote.

Maybe she means to negotiate the relevant clauses with our lawyer.  But our Legal team is not there to negotiate planning obligations, merely draw up the contract when the obligations have been negotiated (and our lawyer took offence to Kimberley’s suggestion that her draft was ambiguous).  The S106 Officer negotiates S106 contributions (me in this case) and that negotiation was completed before development was allowed to start (before I started at the council and negotiated by a previous Economic Development Officer) and I have no desire or intention to re-open negotiations and nor has our lawyer.  And we’ve never given any indication that we might want to; in fact, quite the opposite.  I replied simply:

“I’m the nominated contact for the planning applicant in the agreement for S106 Economic Development reporting.”

 

There are three potential outcomes.  I do not care which one comes about but I am intrigued to see what happens next:

1. Berkeley Group backs down and provides evidence of their S106 contributions just like I’m sure they do for any other local planning authority that asks for it,
2. I get sacked by Hammersmith & Fulham Council for being so dogged and upsetting a big economic concern in the borough or,
3. We create a precedent and be the first local planning authority to ever withhold planning permission based on S106 Employment & Skills non-compliance alone.

As it stands, this supercilious authority Kimberley and her Grand Counsel of Elks possess seems to have no bounds.

I may get in trouble for my inflexibility but I can always refer to the council’s value of trying to share prosperity and make clear that Berkeley Group had no such fear of data protection law when they were happily reporting personal information on employees that weren’t residents of our borough and none of our business, and that they provide this evidence to other local authorities, and we ask every other major developer in the borough to provide identifying data without any quibble from those developers or our Legal team.  However, in my experience, being right doesn’t always save me which is why I’ve worked at so many different Government contractors and councils in the first place.

Or, with a bit of resilience on my part, this saga will demonstrate that local authorities can insist on developers sharing their prosperity, Development Management declines planning permission on over £1.7bn of developments and my line manager needed not be so defeatist.

The General Counsel deciding what planning contributions they are going to make.

I honestly don’t know which of these three outcomes will transpire; they all seem quite implausible except something has to give.  In these pages, I intend to keep a diary of whether unashamed and harmful greed will win over dysfunctional governance and trying to successfully do a job where I help people.  In the meantime, I take solace from the example of Eliot Ness that, despite the hideous crimes Al Capone committed, he eventually arrested Capone for tax evasion.