Thursday 17 April 2025 – Anarchy, Lawlessness and Being Nice

Yesterday we got the decision of the appointed lawyer to decide on the dispute between the developer, Arish Living, and the Local Planning Authority on whether they made the necessary contributions to mitigate their development and discharge the obligation from their full planning permission  (see United We Stand, Money-grabbing We Fall) so that they can hand over the development of flats to their client, Hammersmith & Fulham Council: he found in their favour.

Sort of.  Well, not really in their favour because it’s not really favourable to them.  It’s certainly not favourable to us because he concluded that we have to pay their legal expenses.  But the developer seems happy with the decision.  After the decision, forwarding on the lawyer’s Determination, they emailed the Council’s Planning Manager for CIL/S106:

“Dear [Planning Manager (Infrastructure and Viability)],

“Further to the attached Determination received yesterday, please confirm the attached S106 Demand Notice will now be cancelled by Barnet Council and there is no further action required by Arish Living/Bessborough Developments Limited.

“Many thanks in advance,

“[Developer]”

 

I’m not sure he wants that.

In the appointed lawyer’s Determination report, he starts by summarising the provisions made in the S106 contract should a dispute between the two signatories arise:

“In the event of any dispute or difference arising between the Parties in respect of any matter contained in this Deed… such dispute or difference shall be referred to an Expert…”

 

The report then sets out the disputes as set out by BDL (the developer also referred to as Bessborough Developments Limited (BDL) and its building contractor, Arish Living) although, weirdly, not by the Council, that is, me.  What the dispute is as described by Arish Living/BDL is:

“The dispute relates to an Employment and Training Obligation in the Section 106 Agreement for our development at 107 West Hendon Broadway…

“The Section 106 Agreement obligation… states the following:-

“The Owner hereby covenants with the Council:

1.    Prior to the Commencement of Development to use reasonable endeavours to provide for placements and training…

2.    Not to carry out any construction works beyond Substantial Implementation of the Development until the Employment and Training Contribution has been paid.

“Bessborough Developments Limited has made all reasonable endeavours…

·       Demonstrating all reasonable efforts to provide apprenticeship opportunities.

·       Successfully employing two apprentices and committing to employing a third apprentice, in line with the Employment and Training Plan…”

 

Their submission then went into detail on the above points and this excerpt is a good summary of their dispute of my claim that they didn’t make reasonable endeavours.

In response, I submitted that, although they did employ two apprentices, they were not local residents, which Arish Living accepts, and, crucially, that they did not make reasonable endeavours to make one of the opportunities available to local residents because they didn’t follow their own Employment and Training Plan.  Also, they lied about having employed a third resident and, only after this dispute process started did they clearly admit that they hadn’t employed the third apprentice reported.

It is undisputed that this was a dispute about whether Arish Living had made reasonable endeavours to make jobs and apprenticeships available to local residents: they say yes, I say no.  We both each submitted evidence of our case.  The “expert”, the lawyer, was appointed to resolve this dispute.

The lawyer goes on to conclude from this submission that,

“From the consideration of the parties’ submissions and contemporaneous evidence, it is clear to me that the dispute concerns whether BDL is obliged to pay the Employment and Training Contribution to the Council.  That is the issue I must decide to resolve that dispute.”

 

No it’s not!  The dispute is whether or not the developer made reasonable endeavours.  That is clear, was made clear on his appointment by both parties and is clear from the content of our two submissions.  The implication of the needed resolution of the dispute should be that the financial Employment and Training Contribution should or should not be paid to remedy the non-financial contributions objectively deemed needed to mitigate the development to make it viable in planning terms.

The difference between the lawyer’s interpretation of what dispute he has been appointed to resolve, and mine, is whether the S106 charge on the full planning permission for the development has already been discharged by the endeavours made (Arish Living’s case) and that charge can therefore be removed from the planning permission, or whether the endeavours weren’t reasonable (my case) and therefore need to be remedied by making a financial contribution instead and so can be discharged.

The dispute that needs to be resolved isn’t whether we can obligate the developer to pay the financial contribution because, if the actual dispute isn’t resolved and the lawyer finds that the contract doesn’t allow us to, and the developer chooses to dismiss the demand notice the Council has already sent them (which is exactly what has happened in the email above), then the charge on the planning permission won’t be discharged and they won’t be able to sell or lease the flats to any potential buyer with a half-decent conveyancing lawyer.

It’s not in the developer’s interest to dismiss the demand notice just because the “expert” says he can.  I don’t think he gets this distinction made because that is exactly what the lawyer has done.  He explains in his Determination report:

“Waiver is an equitable doctrine by which the party can give up its contractual rights.  [The form of] waiver [that is] relevant to this matter:

“[…]

“b. Waiver by estoppel: This is where a party acts in such a way that it is fair to treat it as having made a deliberate choice to waive a contractual requirement.

“The S106 Agreement contains the following obligation that BDL had to meet, failing which it would be in breach of [the] clause:

“a. before the Commencement of Development, to use reasonable endeavours to provide for placements and training.

“b. to pay the Employment and Training Contributions if placements were not made before the Commencement of Development.

“c. not to carry out any construction works beyond Substantial Implementation of the Development until the Employment Training [sic] Contribution had been paid.

“The parties have focussed their submissions on the requirement to use reasonable endeavours to provide for placements and training after Commencement of Development, by which time the requirements of the S106 Agreement in that regard should already have been met.

“These submissions are largely irrelevant to my decision because, more fundamentally, the evidence shows that the requirements at b. and c. above were not met by BDL.  Placements were not made before 1 August 2022 [the agreed date of the substantial commencement of construction referred to in the contract as “Substantial Implementation”] and payment was not made, yet the Council permitted construction works beyond Substantial Implementation of the Development to take place.

“On 9 May 2023, [the Economy and Skills Manager, my boss] wrote on behalf of the council as follows:

[…]

“Subject: RE: 107 West Hendon Way [sic] Hendon NW9 7BN – Ref No – 21/0932/FUL

“Hi [Construction Manager],

“I am just writing to confirm that following our review of the terms of the agreement we agree that the Employment and Training Contribution is not payable now, whilst you are actively delivering against your agreed targets and obligations.  Should you fail to deliver agreed outcomes before site completion there may be a financial contribution in lieu of non-discharged jobs or apprenticeships.

“I hope all goes well with the development.

“Kind regards,

“[Economy and Skills Manager]”

“[…]

“It is not claimed by the Council that there was a binding agreement that the provisions of the S106 Agreement in relation to the Employment and Training Contribution were varied or that the S106 Agreement should be rectified.  That being the case, the agreed express terms are binding on the parties.  Even if there “must have been a mistake” as suggested by the Council there is no evidence of Common Mistake [“Common Mistake” is where both parties hold the same mistaken belief of facts].  There was no change to the parties’ express obligations relevant to this dispute.

“The S106 Agreement carries a clear obligation such that if placements have not been provided by BDL before Commencement of Development BDL must pay the Employment Training Contribution.  If payment was not made Development could not continue.  The requirement was not met yet the Development continued and was completed.

“There is no need for me to recite the evidence submitted by both parties that I have considered concerning the circumstances in which the Development continued without placements being made…

“Clearly the Council elected not to enforce its contractual rights.  A binding election occurred when BDL was clearly in breach of the S106 Agreement and the Council had a choice between:

“a. enforcing the terms of the Agreement so that the Employment Training Contribution had to be paid failing which the development could not continue; or

“b. electing to disregard the breach and allow the Development to continue.

“Having made that election, the Council could not change its mind later and impose the Employment Training Contribution subsequently.  This is particularly the case where there was no binding agreement to vary the terms of the S106 Agreement.

“Further, even if the position regarding election is incorrect, BDL has plainly relied on the Council’s election by proceeding with the Development.  This creates an estoppel by which the Council cannot rely on a claim that BDL is in breach of Section 6 of the S106 Agreement.”

 

Basically, what the lawyer has found is that, rather than write into the S106 Agreement that the apprenticeships have to be filled by the “practical completion” of the construction of the development, the chimpanzees employed by the council in the Legal Team have written “Substantial Development”, that is, the apprentices have to be employed on the construction of the development before construction has commenced.

Clearly latterly recognising this as a boneheaded typo, Arish Living started construction and started creating the apprenticeship opportunities.  However, when they eventually queried the mistake with my manager, over a year before I ever started at the Council, rather than ask Legal for a contract variation, the lawyer is saying that, in his pathological need to be nice to everyone, my boss told the developer in an email not to worry about it.  That declaration created an estoppel clause and, in effect, my boss waived all rights the council had to demand financial remedies should the non-financial contributions not be made, so much so that the lawyer didn’t even bother reciting his findings on whether they (the reasonable endeavours) had or had not been made.

The problem with this is that I said in United We Stand, Money-grabbing We Fall above that this is a contract dispute, not a planning dispute.  Although the lawyer is clearly an expert in contract law, he has determined to turn this into a planning law issue of which he is not an expert: he doesn’t understand the implications of not bothering to determine whether reasonable endeavours were made.  Accepting that we now can’t demand BDL pay the financial remedy, the planning contributions required to mitigate the development and make it viable still have to be made or they can’t sell the flats.

The seeming lazy conclusion by the lawyer seems to be made worse when you add in his finding that there is no evidence that a “Common Mistake” was not made by both parties.  The “RE:” in the subject header in his email to the developer is evidence that my boss was replying to a query from the developer, who had already signed the S106 contract committing to employ apprentices into jobs before they were created, about the error both parties had made because that is what his reply was about.  As flawed as it was, that Arish Living also submitted to the lawyer evidence that they had continued to endeavour to deliver the apprenticeships is further evidence that they didn’t recognise this Common Mistake. This is a clear error never intended by either party nor any right-minded person other than a time-traveller, queried and resolved by both parties albeit by my manager in a clearly unprofessional and by the least-effort-possible required of the developer lest he upsets them.

The lawyer has resolved a dispute that no-one had.  For other developers looking on in the interest of the implication for LPAs being able to enforce that they actually employ local residents, all this finding demonstrates is that Barnet Council can’t draft a contract.  No case has been tested here.

Red Dwarf: Quarantine

Kryten: Now here are the results.  And, we’re going to… live.

Lister: We’re a real Mickey Mouse operation, aren’t we?

The question, now, is what will Planning do with this stalemate?  The point of planners is to plan how things are built and, in this case, the socioeconomic infrastructure needed to be created alongside capital developments.  That is placemaking.  It is the regulations, the law, the council’s policy and their job.  To dismiss the planning obligation is to be doing no planning at all.  The planning regulations don’t allow them to discharge an obligation they previously deemed as necessary to grant planning permission for a development, or else what’s the point of them?  People might as well go and build anything they want wherever they want.  Yes, we should enshrine these planning obligations in a written contract to aid common understanding and enforcement should it come to that, but the planning obligations are required by planning law in their own right.  Whether or not we can now enforce the contributions, Planning has no authority to discharge a necessary obligation not made: it’s either objectively needed or it’s not to make the development viable.  So the question becomes, even with rogue senior officers in other services, like my manager, running around getting involved in planning matters they are in no way qualified to get involved in, do the Council’s planners care about planning law?

My boss also didn’t want to upset the housing association, Notting Hill Genesis (see A Criminal Mastermind).  I didn’t drop the matter since I stumbled across it in September that they had £300,000 of the council’s money, public money, that they had not spent on what we gave it to them for, that is, paying for apprenticeships, asking my manager to escalate it to the Executive Director to look into which Chief Officer in the council agreed unconditional public funding as claimed by NHG, or else I would refer the matter to the Fraud Investigation Team to look into whether or not there was a contract with the housing association: if there wasn’t, then the Chief Officer who entered into an agreement without writing it down is at fault, probably criminally, or, if he or she had written it down, NHG is lying that they don’t have a contract with the council in order to keep public money they are not due, which is embezzlement.  He did escalate it and our Exec Director agreed with my analysis.  He instructed him to pursue NHG.

However, rather than contact a director of NHG as would be appropriate, he emailed my predecessor S106 Officer (and, therefore, his previous employee) now employed by NHG after being a party to directing this money to them as a delivery manager.  So, with NHG largely unbothered by my manager’s unimposing and polite queries to a junior member of their staff, I chased NHG and explained that either they engage in the conversation about how the money has been used or else, if they insist that they don’t have a contract with the Council, I refer it to Fraud Investigation to investigate who in the Council agreed to direct it to them without entering into a contract first.

It took three and half months, but on 19 March, my boss and I were eventually granted a meeting with NHG’s Director of Places and Built Environment/Homes.  Up until now, these had been faceless people trying to grab public money even if that meant unscrupulously defrauding the council, and they were all a bit theoretical in my mind.  I was used to wrestling with Rhinos who are deliberately appointed by developers to be a barrier between me and directors by being as obtuse and obstructive as possible.  Normally I never get an audience with directors.  This was a relatively rare opportunity to learn a bit more about this elusive species.  I wondered who this housing authority director, of a public authority in its own right, was that thought it was ok up until now to avoid the council, keep their money and avoid answering their polite queries for three and half months about what she had done with it.  Is she going to front it out, be unapologetic and dismiss us?  Can someone this boorish really be a director of a housing association and, if not, how was she going to account for this obvious fraud and evasion of accounting for public money now that she had agreed to enter into a face-to-face conversation with us about it?  I was curious.

The money was just resting in my account.

In the end, in the meeting, the director started off by apologising profusely for the many weeks of delay in replying to me.  At least, I thought, she recognised that, outside of the gorilla cage at London Zoo, that this was not ok which made me feel better about her and humankind in general.  However, she never went further as to why she might have thought keeping the money was ok except to say that she was relatively new and was only looking into the matter now but still wasn’t sure why NHG had dismissed my boss all those years ago (my boss, at this stage, looking a bit discombobulated that his sensitivities were being considered by a director and he didn’t have the opportunity then to be as subservient to her as was his instinct).  With that unpleasantness behind us, deftly managed by the director without explicitly having to say that her senior colleagues past and present were a bunch of gangsters, she continued onto her deftly planned agenda: of course the money was owed by NHG to the council since only three apprentices had been employed (that, on further investigation since September, I had established and also that Poly Global, the developer, had paid them more of the £300,000 obligated so that the balance paid less the cost of the three apprenticeships ended up as £276,973.50), but could they retain the balance to deliver apprenticeships?  The reason was that they currently had a successful apprenticeship programme plus NHG was, as is public knowledge, in financial dire straits and didn’t have the cashflow to pay it back.

“No, of course not!”, I thought.  Why would the council ever trust you again?  And, in any case, it’s not up to us.  The whole point of we ending up having this embarrassing conversation in the first place is that, seemingly, there was no governance process or written contract that led to you being paid this money which is why you have to pay it back lest we get the police involved.  The last thing we’re going to do now is, two officers who are not Chief Officers in the council unilaterally decide to let you keep the council’s money.  It’s a ridiculous suggestion!”

“Yes, we could do that.”, my manager replied.

Ok, I think I can now see how we got into this pickle in the first place.  My manager didn’t work for the council in 2011 when the original decision was made to direct the £300k to NHG but they’re all my manager!  He thinks it’s ok to ponder on spending over a quarter of a million pounds on a service we never wanted, never asked for, can’t afford, from a provider that demonstrably cannot be trusted either to deliver any service, this particular service, account for the public funding or honour a contract, without going through the democratic process, the constitution on how decisions of such magnitude are made and ratified by the senior executives of the council and its elaborate governance processes, and with reference to the labyrinthine regulations on accountability for both public money and money we have invoked our planning authority to enforce payment from private sector developers for specific purposes, just to avoid the awkwardness of having to say no to someone he is trying to be nice to.  Our leadership and laws are trumped by his need to be obsequious.

“Paul is our expert on these matters.  How would that work?”

 

What?!  It doesn’t work!  And since when am I a constitutional expert?  Ok, let’s just agree to get the demand notice out there and Legal can then just chase it in the weeks to come and I can forget I was ever in this meeting.

“I suppose, if we issued the demand notice for the £276k, then that would show as an asset in our financial records.  Based on having this resource, we can then propose a service to the Executive Director and, if he agreed, I would draft a Chief Officer Decision Paper, the Executive Director would sign it and we take it to CAB and then Procurement and invite NHG to submit a proposal as a Single Tender Action, that is, without competition for the contract.  If [NHG’s director] could email us what service she was thinking of, if you agree, I could draft it as a proposal for a COD Paper.”

 

Phew, quick thinking!  My boss seemed happy with that.  I had no idea if it bore any relation to the council’s procurement processes but it had enough jargon in it to sound plausible.  The director seemed convinced too but uneasy that I suggested the decision be made by someone not in the meeting that she couldn’t charm/embarrass/corner into agreeing with her.  But, if she ever thought that a Head of Service would ever be allowed to make a decision for that much money, she’s an idiot.

Except she’s not, because NHG obviously got the £300k from someone like my manager before and, had I not been there to intervene in the first place and to give my expert opinion in this meeting, my boss would have simply said, “yeah, keep it” and who would have known?  It’s not like that other vehicle for council corporate governance, the Employment and Skills Steering Group (ESSG) for the Brent Cross Town development owned by the Joint Venture of Barnet Council and Related Argent, is much good at scrutinising its own legal obligations (see Gaslighting).

After the ESSG met on 12 February and I gave my objective feedback as a Local Planning Authority officer on the compliance of the draft Employment and Skills Action Plan (ESAP) for the next phase of development (5E) with the planning (S106) obligations, it was dismissed by its Chair (an employee of Related Argent).

Now, the group cannot dismiss planning obligations; that is not a decision in its scope, rather, it is a law they have to abide by just as much as they can’t decide to rob a bank.  Yet, here we were, meeting adjourned, the S106 officer’s feedback aggressively dismissed by the Group via its Chair and without protest from any member including the council’s Assistant Director for Brent Cross Town present for the debacle.  I didn’t know what would happen next except that my Planning colleague who insisted I attend to give my feedback to the Group subsequently apologised to me for how aggressive the Chair was to me.  Frankly, I don’t care; it’s my job in the governance process to be an objective expert, not to make an executive decision.

Then, on 12 March, I was copied into an email to my manager from RA’s Social Value Manager, the Chair of the ESSG:

“Hi [Head of Economy and Skills],

“I’m copying Paul because I felt our recent meetings and discussions were really constructive and we were both in agreement around what additionality was needed for inclusion into the document [the ESAP], who was leading on which action and when we were going to get this completed by.  Happy to have a further call but if there [is] a sense that things have stalled it is news to me – but happy to be corrected otherwise and meet ASAP to get things back on track.

“Social Value Manager

“Related Argent”

 

Our last meeting is where I asked him why he dared log into the meeting with me after the ESSG meeting and he apologised for his unjustified, gaslighting attack on me in the ESSG meeting.  As a byproduct of the apology, he did accept that the draft ESAP needed further work and he was going to talk to the council’s Education and Learning Service (BELS) about how their young care-leavers could be included in the delivery plan for jobs and training.  We left it at that.  I think my exact response was, “Whatever.”  So I can see here we’re back to the gaslighting stage of drafting the ESAP.

My boss responded to me alone saying,

“Hi Paul,

“I feel a bit disingenuous speaking to you before I respond to [the Social Value Manager], but it sounds like he feels this is now in hand and progressing as it should be.  Do I respond and just say, ‘great, I’ll leave it with you and Paul then and let me know target date for final draft to be shared’ or do I push for a meeting [based] on your concerns?

“Head of Economy and Skills”

 

I replied conceding that the Social Value Manager had agreed in the one and only meeting we had had since to speak to BELS and that I was continuing to work with the partners to include their frontline services in the delivery plan when it came to that stage of agreeing a draft with RA but that,

“Otherwise, we did not address my other points [made to ESSG and that I had since shared with him, my manager] or have a steer from the Steering Group on my points I was asked to raise, or RA’s denial of them.  Other than potential [work experience placements] for BELS participants, we did not discuss drafting the ESAP or when a version might be done by, or even agree that the current version of the draft otherwise needed reviewing since they denied in the ESSG that there was anything missing and the ESSG has since not given a steer on this.”

 

He replied,

“Shall I just go ahead and ask [him] for a catch up anyway and ask him to share the latest draft ESAP so we can review?  To be honest I’m really confused.  I just want to be told that there is now an ESAP in place that meets everyone’s expectations.”

 

The Council’s lead for Employment and Skills, ladies and gentlemen!  Employment and Skills delivery does confuse him so.  But there is no point him reviewing the latest draft Employment and Skills Action Plan because:

1.    It’s not an Action Plan,

2.    My boss wouldn’t know an Employment and Skills Action Plan if it bit him on the backside.  I’ve already reviewed it and it’s both rubbish and non-compliant so he needn’t stress his confused and fragile little mind over it, and

3.    It’s not up to him; it’s up to ESSG and they say it is fine, or at least didn’t disagree with its Chair that’s it is fine.

I replied,

“I think that this is why we have the ESSG to steer this; so that there is not confusion between the two parties.”

 

As well as employment and skills delivery, governance is not my manager’s strong suit.  Nor management.  I went on:

“I do think we need a direction first from, say, [the Assistant Director], given that this matter did go to ESSG and I don’t think we should ignore it or what’s the point of it?

[…]

“Basically, I think this should be escalated and not discussed with [RA’s Social Value Manager] who simply hasn’t produced a compliant ESAP (never mind a good one) over at least 15 months and that should be evidence enough that it’s not happening [despite his obvious lie in his previous email].  That is unless ESSG disagrees with the points I raised.

 

He replied the following day,

“Thanks Paul,

“I will deliberately avoid getting into the nitty gritty on this, that’s for you and [he] to work through.  I just need an honest conversation with [him] about whether this is now happening in a way that will meet all our needs…”

 

Good luck if you’re looking for honesty!  However, he is still missing the point.  RA is happy with the nothing plan.  Committing to doing nothing does meet their needs.  The ESSG seemingly accepted it. The conundrum they now all face is just that it isn’t compliant in order to release the planning permission, but ESSG, including the council’s AD for Brent Cross Town, doesn’t seem to care.  I replied,

“Just to reiterate, [RA’s Social Value Manager]/RA has already told ESSG that the draft ESAP submitted by [RA’s Planning Manager] on 5/2/25 already meets the needs and that is how it has been left.”…

 

…but you ignore ESSG and the council’s governance bodies if you think you being nice to the council’s partners will do a better job of things for our residents.  He replied later in the day,

“I have just had a good chat with [the Social Value Manager].  It is accepted that the ESAP is still a work in progress and not meeting the need, but getting there…

“[…]

“I’ll inform [the AD] that this is where we are and that you and [the Social Value Manager] will bring this to a conclusion without the need for any workshops.”

 

If that is the case, then what was that ESSG meeting all about?  The word “whatever” immediately comes to my mind again as a response but I chose to articulate the governance process again rather than he and the AD leaving it in my junior hands to do something complicated that the developer doesn’t want to do and are adept and proven at gaslighting him and the AD that “they have done”, and since transforming those words without shame to “they are doing” something about it.  Me railing at them isn’t going to make a difference:

“I will do my best but it is not in my control to ensure a compliant ESAP is produced.  RA is leading on this.  As it was last left, it was presented by RA to ESSG that the current version of the ESAP is the final version and I’ve not had any feedback [from ESSG or the AD] that that [conclusion] has changed…”

 

He is also not taking the hint that I want him to tell me why the AD has since changed her mind that the ESAP is not compliant when she sat in the ESSG meeting and watched a member of her staff be attacked.  Why was she even there if she hadn’t read the ESAP herself and formed an opinion of it?  But, to assuage me if not to satisfy my curiosity, he replied,

“I have updated the AD and she asked me to pass on her thanks for your patience and perseverance!”

 

Another trait of corporate management communication is to praise you for behaviour that you are clearly not displaying but that they wish you would.  “Whatever”.  I think I’ll leave the onus on the developer.  My playing nice certainly hasn’t worked.  If they want planning permission, they can draft a compliant ESAP; that’s how the system works… maybe.  It’s the council’s licentiousness when doling out money and planning permissions that keeps me guessing.