This sub-page is intended to contain correspondence with the Chief Executive, Legal and the Land & Finance departments. However, there is some crossover between these departments and also with the Planning and Traffic departments which are on separate sub-pages. For example, the Chief Executive is presumed to have charge of all departments. The legal department to advise all departments etc.
Particularly in the earlier years, it looks probable that some correspondence is missing
See references in titles where the topic of Overage is in the item
Contents
The demonstrably undemocratic behaviour shown by the Council and its officers meant those in different depts had to be contacted. Shown here include the Chief Executive, the Legal dept and the Finance dept including Land. The Traffic people who have a role that is distinctive and intended to prioritise aspects like safety that are seen as not appropriate to be decided by local pressure are to be shown on a different page. Likewise the very important, in the context, Planning.
Andrew Maughan
Head of Legal Services
London Borough of Camden
Town Hall
Judd Street
London WC1H 9LP
cc Aidan Brookes, Principal Lawyer, Culture and Environment Services
21 January 2008
Dear Mr Maughan
Public Enquiry into the Proposed Stopping Up of Dalby Street
I am writing at the earliest opportunity following the above public enquiry which I attended throughout, in case actions that Camden takes now could prejudice the future interests of the borough.
This may concern the signing or changing of the Section 106 agreement and/or the four plans that are annexed to it – especially the Service and Management Plan.
My particular concern at this time is articulated in the first two pages of the document I submitted to the Inspector on 18.1.06 which became a formal enquiry document and was therefore distributed to all interested parties. I made a point of giving it to one of your people who were instructing Peter Harrison QC and stressed its importance to her. I am enclosing it with this letter in case it is not to hand.
In essence it says that either-
(a) Camden’s agreement with the Developer (and therefore also future freeholders of the flats) makes it clear that the Developer will indemnify Camden against the financial consequences of significant changes to eg the Sports Centre. In that case the future service charges would be open ended and potentially crippling. No flats would be marketable and the result would be a disaster for all
0r (b) The interpretation of the words “reasonable costs” is that they could only involve minor changes, and not any major capital or operating ones. I need hardly remind you that the stopping up means loss of control (except as defined in the Section 106), for ever.
I shall be grateful if you will acknowledge receipt of this letter.
Yours truly,
Nick Harding
Mr Aidan Brookes
Principal Lawyer, Culture and Environment Group
London Borough of Camden
Town Hall
Judd Street
London WC1H 9LP
cc Andrew Maughan, Head of Legal Services
Dave Jenkins, Principal Engineer
5 February 2008
Dear Aidan
Dalby Street Development
I refer to our telephone conversation concerning in particular the document submitted by the developer to the public inquiry on its last day which sets out current values and service charges for the flats.
This is one of the documents whose official number I was able to note. It is AP19 and runs to 13 pages. I attach two of the pages relevant to my current concern in case they are not to hand [30.1.22 AP19 linked here]-
1. A3 schedule listing each flat with the current assumed selling price for the 36 private flats together with service charges for all 55 flats.
2. A letter dated 2.1.08 from Paramount Properties Investment 2000 Ltd of 150 West End Lane supporting the prices, service charges and ground rents shown in the schedule.
I have taken a closer look at these figures and have compared them with those of the luxury flats recently completed 100 metres east on Prince of Wales Road, called “Hampstead Gates”. The prices and service charges being asked there show the Dalby Street developer’s figures as being so different from those of the Hampstead Gates that we visited Mr Steven Oliver of Paramount who wrote the letter to check with him that there hadn’t been some typing or drafting error or some other reason for the huge discrepancy which I describe below. We also drew his attention to his reference to Dalby Street being close to Primrose Hill and he confirmed that he knew the Prince of Wales Road area well. He said that he stood by the entire contents of his letter.
You will see what I mean from the following-
Service Charges
Hampstead Gates £2 per sq ft
Dalby St private £5.47 per sq ft
Dalby St “affordable” £3.66 per sq ft
Prices ie today’s value
Hampstead Gates £530 per sq ft
Dalby St private £846 per sq ft
The Hampstead Gates flats I understand all have a parking place within the grounds and there are large communal areas. The prices shown for them come from the Internet and discussions I have held with local estate agents who have them on their books.
I attach also a spreadsheet I have written showing the developer’s figures (shaded or yellow) with sub totals, totals etc and, at the bottom, comparisons with the Hampstead Gates including how I have computed the above figures.[6.2.2022 Linked here]
I think you will agree that these figures show a difference of scale and indicate that there are grounds for concern lest the public sector parties to these agreements are being invited to base their calculations on false assumptions.
Service charges for “affordable” ie SR and SO flats vary between £1,812pa for a one bedroom flat and £3,585pa for 3 bedrooms. The developers informed us at the public inquiry that the affordable flats are to share, with the private flats, in the cost of marshals who have to manage the access routes passing on either side of the flats to the Sports Centre. I don’t know if that share is included in those figures. What will definitely not be included for any of the 55 flats is the open ended potential future costs that owners would have to pay in the event of changes to the operations or structure to those affected by the access road.
This has led me to wonder why the developer should want to show such high figures and I recall that they were somehow intended to justify the £1.1m bond or bank deposit account. This was not of interest to us at the time. Then, as now, we regarded the whole scheme as having so many flaws that this topic was a distraction. If I allow myself to be drawn into the topic, I would say that £1.1m is trivial compared to the obligations involved and any business in the developer’s situation would regard £1.1m as part of its cost. The arguments put forward concerning the unlimited costs liable to be borne by the owners if the word “reasonable” means what the developer’s barrister said it did, makes the amount to be deposited have to be infinitely more.
However, I think the developer was maintaining that the amount should be low due to the expected future value of the freeholds which would secure the obligations. If the ground rent is the test of this, then, again, the amounts shown are greatly in excess of those at Hampstead Gates. In the last of the Results section of my spreadsheet, I show how I reckon that if a comparison can be made between Dalby St and Hampstead Gates, on the information available, it shows average ground rent for Dalby St as £0.9345 per sq ft and for Hampstead Gates as £0.21875 ie Dalby St being over four times more. Before any such figures are used, however, I would feel more comfortable if they were checked by someone with a closer knowledge of the situation and trade to ensure that I am not comparing chalk with cheese..
I would be happy to discuss this further and to elaborate on any of the figures. Should you find any flaws in my maths or logic, please inform me!
Finally, I must comment on a concern that Camden might feel obliged to sign a S106 agreement prior to all approvals being obtained and the Inquiry report. Presumably, the agreement with its four plans would be the one that was given to Objectors at 5.30pm on the second day of the Inquiry. It superceded an earlier one that was delivered to the Objectors the previous day and that superceded a previous one. Not only did this provide totally inadequate time for Objectors but those not registered as Objectors had no sight of them. If the changes had been small, then that might be ignored. However, they related to the most important features of this, commonly agreed to be, unique scheme.
Yours sincerely,
Nick Harding
Andrew Maughan
Head of Legal Services
London Borough of Camden
Town Hall
Judd Street
London WC1H 9LPDk6b1
cc Aidan Brookes, Principal Lawyer, Culture and Environment Services
11 March 2008
Dear Mr Maughan
Dalby Street/Talacre
Following receipt of the inspector’s report, there are some matters to which I would like to draw particular attention.
In my letter to you of 21 January, I focused on the issue of changes following the stopping up, giving rise to the need for the new owners to bear the resulting access and related costs. I also referred to this in the FAQ type document sent to all Councillors and copied to you on or about 11th February.
The inspector’s report reinforces the need for absolute clarity in any agreement between the developer and the council. When addressing issues that might arise in the event of potential future change (referred to in my documents OB6, 16 and 19), he relies upon the “review provisions” of the S106 and the Service and Management Plan. The text of those documents includes the expression “..safeguard public amenity and the reasonable access requirements of the Leisure Centre” (clause 30 of the Service & Management Plan). Reference is made to annual meetings in clause 5.6 of the more recent “supplemental” S106 versions. These were relied upon to answer our questions as to how operational, structural etc changes that might be needed by the Sports Centre would be accommodated. However, the text is quite inadequate. Informal legal advice suggests that, in any legal document, vagueness on something so critical could make the whole agreement void. As it is, any future owners of the land, finding that they had to incur substantial expenses as a result of such change, would be likely to claim that it was “unreasonable”, not least due to the only example given in the report by the developer’s counsel of a possible such change being the need for increased marshalling at busy times.
These review provisions can only be of practical use if mechanisms to overcome unforeseen problems include management devices/equipment, additional surveillance such as more staff for longer periods and so on. The shortage of road space causes the issue of manpower such as marshals to arise and future owners of the land must be told clearly that there is no additional land that can be found to minimize management costs. The legal agreements must be absolutely clear on this. Future planning needs could give rise to a variety of alternative land uses at the present TCSC site and as a result, owners of the 55 flats could have a substantial additional cost burden if a future change of use was as radical as the earlier replacement of the Interchange building by the present Sports Centre.
Given that we are talking about what could be required at any time in the future, ie forever, it is hard to list all possibilities, but to assist in consideration of this subject, I set out below some examples-
From experience of current working
Pedestrian way found to generate crime, put off visitors etc, causing need for dedicated PCSO or similar during hours of darkness when Sports Centre open, or 24/7
At least two marshals needed at busy times to make the vehicular access work
Operating type changes
Longer hours for Sports Centre
Partial (or complete), change of use eg to add a social club similar to what existed in the old Interchange Studios, built in the 1970s and demolished in the 1990s
“Structural” changes
Increase size of Sports Centre on its existing site, upwards or laterally
Rebuild or add on existing park eg fronting on Prince of Wales Road on the site of the existing games court
Refurbishing of Sports Centre
As we know, extra access etc costs resulting from any change, would be reflected in the Service Charge. I wrote to Aidan Brookes on 5th February drawing attention to the fact that the document AP19 submitted on the last day of the inquiry, contained pricing which is totally out of line with even the market situation that applied in January. Confirmation of this can be found on page 60 of the Ham & High’s property supplement of 6th March where a 3 bedroom flat in a luxury new development 100m away is advertised at £675,000 compared with the £983,000 relied upon by the developers in their discussions with you and accepted by the inspector. The developer’s figures show the service charge for such a flat as being £6,305pa (£3,585 for the affordable flats) whereas the service charge for the one in the Ham & High is £2,100pa.
Since the council and the developer were “joint proponents” of the application, the inspector was accepting these figures as being supported by the council. This can be seen from 7.12 were he refers to “the document, produced by the council [6.10] ..”. The only document mentioned in 6.10 is AP19. I am labouring this point to demonstrate how any changes like those shown above are sensitive to the future of the flats. Incidentally, since seeing the extent to which reliance was made on the AP19 document, I have looked at some of its other schedules and find they contain errors, though not of such magnitude as those for the values of the flats and their service charges.
An issue that seems to have been neglected is how pedestrian access will work during phase 3 of the construction period and when the park is closed after dark (4pm in the depth of winter). Costs to ensure that pedestrians can safely go to and from the sports centre and to ensure that the rest of the park is not imperiled by being open to the world, must fall upon the developers. However, I have not seen anywhere what will actually be required. I was aware at the time of the inquiry that this seemed unresolved. However, there was always a danger of causing the long term issues to be crowded out, if something of this nature was raised.
Similarly, there seems to be an anomaly in that one of the parties to the S106 was the housing association but it was not a party to any of the supplemental drafts which appeared. Whereas I can understand the addition of Cornwall, with joint and several obligations per clause 1.9, the removal of a party, especially one as important as the housing association, is curious to say the least. Perhaps I have missed something?
Yours sincerely
Nick Harding
Dear Mr Harding
Thank you for your letter dated 11 March addressed to Andrew Maughan, Head of Legal Services. Andrew has asked that I respond on his behalf. I shall deal
with the points you raise in turn.
(a) Review Mechanism for the Plans . Whilst I do not agree with you that the text in the current draft of the agreement is "inadequate", I will explore with my clients the possibility of further wording being included in the draft Agreement making it clear that for the avoidance of doubt the results of the review mechanism may result in the Developer incurring further expenditure. I do not think there is any purpose served in including wording to the effect that no part of the park will be made available to assist the developers in fulfilling its obligations in respect of the plans there is no suggestion that this would happen in any event.
(b) Service Charges on the residential units.
As discussed in our telephone conversation of 26 March the obligations on the Developer have been secured through the Section 106 which besides the usual unqualified legal obligations on the Developer contains additional safeguards (in particular the requirements regarding the bond). These arrangements have been scrutinised by officers, by our own Leading Counsel and by the lnspector during the course of the Inquiry. As long as these arrangements are in place and validly entered into there is little gained by looking behind the status of the owner that provided the owner is a properly constituted company with the power to enter into the agreement.
My understanding is that you see the service charges issue as being significant because it could make the scheme unviable. However any range of scenarios may or may not happen in the future- e.g. the developer may conclude the scheme is not viable or may dispose of the site to an entirely different company. I genuinely think it would be unreasonable for the Council to not proceed with the Stopping order on the basis of some possible future event. The issue for the Council to consider in relation to the stopping up order is -are proper and adequate legal arrangements in place to protect the Council -and Counsel has advised that there are. (c) Pedestrian Access to the Park during Phase 3. I'm not sure I understand the point you are making here but if you wish to clarify I will of course respond.
(d) Should the Housing Association be party to the supplementary Section 106. I do not think there is any need to make the housing association who signed the original Section 106 agreement party to the supplementary Agreement. The Housing Association were as I understand it included in the original agreement, not because they had an interest in the land but because they were possibly going to take over the Affordable Housing in the future. The provisions of the original Section 106 being amended by the supplementary agreement do not relate to Affordable Housing.
Regards and hope this assists.
Yours sincerely ,
Aidan Brookes
Principal Lawyer Culture and Environment For the Head of Legal Services
Aidan Brookes
Legal Services
London Borough of Camden
Town Hall
Judd Street
London WC1H 9LP
Cc Andrew Maughan, Head of Legal Services
11 April 2008
Dear Aidan
Dalby Street Talacre
Thank you for your letter of 3rd April on behalf of Andrew Maugham. I am copying this reply to Andrew since we see the legal issues as concerning the Council as a whole, including several departments in addition to Environment and Culture – presumably with different legal advisors for each?
Dealing with the four issues in turn, plus the one in the last paragraph of mine to Michael Cox, copied to you of 31st March.
1. Changing Land Uses. In circumstances where, by common consent, we are in uncharted waters it is imperative that all parties should be made aware of actual and potential planning hazards. Accordingly, I am reassured that you now seek to ensure that the Developer, and by implication in due course his unknown successors, are fully aware of current and potential longer term financial responsibilities. In the field of town and country planning, change is a constant factor and the experience at Talacre over the past 30 or so years shows how dynamic it has been. The Objectors consider that the Sports Centre will not be immune from the pressure for change and it is probably fair to say that the defence of public open space land will force any changes involving roads and buildings to be kept outside such cherished areas as the park
The test of the wording for the draft agreement must be whether both:
the developer and his successors (eg freeholders) understands its full implications and
it covers all circumstances where additional costs could arise in order for the Sports Centre (or indeed any successor as provider of public amenity) to operate and adapt as it would otherwise.
The best way of satisfying these criteria would be to provide some examples and test them against both (a) and (b) above. I gave some in my last letter but that was very much off the top of my head.
The flats and the reduced access to the Sports Centre are there for all time. Yet no public facility lasts unchanged for ever and one only has to look back 25 years within Camden to see a constantly changing scene – let alone 50 or 150 years. The uniqueness of the access plans was recognised at the inquiry but the long term consequences were brushed aside.
2. Service Charges. Service charges on the residential units is a related issue to 1 above. If both (a) and (b) are satisfied, then the council is in danger of being accused of colluding with the developer in the misleading of the buyers of freeholds. Who would buy a freehold in the knowledge that they could suffer unlimited costs and inconvenience so that the Council’s rights can be maintained?
3. Temporary Pedestrian Access during Phase 3 of Construction. Paragraph 13 of the Temporary Access Plan states “Pedestrian access will only be available to/from the Leisure Centre via existing routes across the park during this stage [ie Stage 3, weeks 23 to 34]. The Owner shall ensure that … marshals …shall be on duty to direct/manage traffic at all times that the Leisure Centre is open, in addition to an hour before it opens and an hour after it closes each day, during Stage 3 to ensure that pedestrians do not use the vehicular route.” The park closes at dusk eg 4pm in the winter. The Leisure Centre is open until late so there is no explanation as to how pedestrians will get to and from the Leisure Centre.
4. Housing Association involvement. I note what you say about the omission of the Housing Association from being a party to an agreement but this surely defies common sense. The RSL must be a part of the supplemental agreement just as much as they were to the “original” agreement. Whichever way they have been involved it is imperative that they fully identify with the supplemental matters. It may be that this is all covered in the agreement between the Developer and the RSL which was referred to in the schedule of prices and service charges that was tabled on the last day of the Inquiry ie AP19. I would be grateful if you could let me have a copy of that agreement since it is essential to understanding how the long term interests of the community are safeguarded.
5. Affordable Housing, Valuations etc. In mine to Michael Cox of 31st March, copied to you, I drew attention to very large differences between the figure (£360 per sq ft) provided to the Council by the Developer when he was pleading for relief from the 50% affordable housing target and the amounts of between £731 and £936 provided by him on the last day of the Inquiry, to justify a low figure for security. If I have misunderstood this, please let me know. Otherwise there would seem to be grounds for concern.
This contributes to our deep unease that the Council as “joint proponents” is party to a scheme of events where relief from affordable housing targets of 50% has been agreed and yet acknowledges a yawning gap between the estimates given at the outset and those now proposed by the Developer. How can our representatives be a party to an “anything goes” financial planning strategy? Should not the full Council be made aware of these startling disparities and be given the chance to decide whether or not they wish to remain in the role as “joint Proponents”?
It is our expectation that the Council lawyers with their unique overview of matters relating to this issue, will see fit to alert the entire Council to the desirability of examining the full implications of the Developer’s (and Council’s) plans that only emerged at the January inquiry held in public. Failure to do so would leave a huge “democratic deficit”.
Yours sincerely
Nick Harding
Solar House, 50-56 Talacre Road, London, NW5 4LX
020 7485 5476
29 May 2008.
Dalby Street et al
Dear Mrs Gibb,
Thank you for your interest and assistance especially with the Dalby Street issue.
As far as we can judge, it is still the case that, other than yourself, there is no single officer of the Council with a coordinating overview of the various issues involved with this complicated scheme.
As you will know, the main justification for this scheme has been the prospect of finding scope for affordable housing at Dalby Street.
The Council has bent over backwards by exercising its authority to reduce the proportion of the (so-called) “affordable” housing from 50% to some 35%.
Putting the building on the exising highway has meant creating a new, narrow private vehicular access route which Council officers have determined (rightly in our view) could only function with marshals, on duty daily. The price tag for such provision will in part fall forever on the social housing occupants to the tune of £60 weekly service charge per flat for such marshalling (that was the developers estimate which if anything was on the low side).
Objectors perceptions are that the entire scheme in which the Council are “joint proponents” (the description given to the Inspector and accepted by him), is unsustainable, inappropriate, undeserving of any Council concessions and stands in need of a thorough and profound review and likely abandonment.
Additionally, from information circulated to relevant officials and every Councillor, it should be evident that on numerous grounds the entire project gives rise to serious cause for concern as being potentially very harmful to the well-being and utility of the neighbourhood.
Objectors do not challenge the goal of providing more social housing locally. In our view, this is the least satisfactory of possibilities for achieving such an objective and we have even suggested alternatives to some local Councillors.
Before the Environment Sub-Group gathers on 19th June, it seems most desirable that it are appraised by the Officers of the many contradictions that afflict this project – it is so many-facetted that to rely upon a Traffic Engineer to present the issues would be unwise and unreasonable.
I write before I go to work abroad on Saturday for a fortnight. I wanted you and the Officers to be aware that an holistic approach to evaluating this scheme is vital if a fraught initiative is not to become an undesirable imbroglio fomenting lasting chaos and confusion locally.
Yours sincerely,
Peter Cuming
Moira Gibb
Chief Executive
LB Camden
Argyll Street
London WC1H 8EQ
17 December 2008
Dear Moira Gibb
Dalby Street Stopping Up – Talacre
I enclose a letter I have today sent Rachel Stopard in the light of the information that has reached me that she is making a decision on the above on Monday.
I believe the issues at stake are of major consequence and hence hope that you will be in a position to ensure that her decision is consistent the interests of the public including the safeguarding of the public amenity as well as with the decisions of the Council. I believe that the grounds for refusing the Stopping Up orders are overwhelming.
There was a plan some nine months ago for us to meet to discuss this (with others). I don’t know what happened and it is my regret that I haven’t had the opportunity to meet with you. I am not clear as to what happened.
Yours sincerely
Nick Harding
Moira Gibb
Chief Executive
London Borough of Camden
Argyll Street
London WC1H 8EQ
31 December 2008
Dear Moira Gibb
Freedom of Information request RFI/0 03555
Travellers Site, Dalby Street
I refer to the above FOI request made over three months ago. Following a discussion held with Michael Warby, it seems that the appropriate action for me to take is to send you this formal complaint as I have not received a response. The details are as follows:
On 20.9.08 I made the following FIA application
“Please could I have sight (or copies) of all documents, correspondence etc related to the Travellers Site on Dalby Street from 1.1.2002 except to the extent that they have been provided to me by Eric Daniels in the files for planning applications 2004/2689/P, 2004/2690/C and 2005/4187/P or that are provided as part of the FIA request made today for earlier correspondence on that site”
I received the standard formal acknowledgement from Judy Gough on 22.9.08 referring to a response being due within the statutory timescale of 20 working days ie by 20.10.08.
The other FIA request to which I referred was RFI/03553. It essentially requested information on what was regarded by council officers as pre planning application correspondence etc. In fact, because the first planning application for Dalby Street had to be abandoned and a substantially changed access scheme produced, what was and was not pre planning application correspondence was not clear, at least to me.
On 23.10.08, Ben Maskell emailed me saying that he was the FIA officer for Camden. His email referenced both 03553 and 03555 but included a letter which referred to 03553 only. See D(ocuments) 1.1 and 1.2 enclosed
On 24.10.08 I spoke to Ben Maskell. My note of the telephone conversation was as follows:
“24.10.08. I spoke to Ben Maskell following his email of 23.10.08.
I told him very firmly that I needed a formal reply to both requests. If Camden cannot provide what I have asked for and they are claiming it comes within an exception of the FIA, then they must tell me precisely so that I can decide whether to take it up with eg the LGO of Commissioner. He will reply on Monday.
He said that he thought that both applications were the same and that I would speak to Eric Daniels. He asserted that 03553 wasn’t for pre-application correspondence until I insisted he read it.
Eric Daniels has left. His place has been taken by Sylvia Bryan.
Ben Maskell has moved to a different job. His FIA type work is now be done by Anne Smith 020 7974 4998”
On 27.10.08, Ben Maskell sent a further email again enclosing a letter which related only to RFI/03553. See D2.1 and D2.2. As I had heard nothing on 03555, I emailed him on 27.10.08 – see D3
On 27.10.08, following the above, Ben Maskell emailed part of mine of 27th to Gavin Polkingham. See D4.
On 27.10.08, following the above, Gavin Polkingham rang me. In the course of my explaining to him that I was not seeking copies of S106 agreements but of correspondence and agreements related to the sale of a piece of land, I pointed him to recital clauses in the supplementary S106 agreement dated 30.9.08 that had been sent to the GLA with copy to me. (It became apparent during that conversation that he did not have that agreement but another one for the same development, with the same date which had not been sent to the GLA. I therefore asked him to email me a copy which he promptly did).
On 31.10.08, I received an email from Ben Maskell asking if I had received the agreement I was seeking, referring to the S106 team. See D5
On 31.10.08, following the above, I sent a detailed email to Ben Maskell with a copy to Peter Swingler stating firmly that I had not received what I was seeking and giving as much information as I had on the subject. See D6
On 7.11.08, following receipt of information from another application from Judy Gough, I emailed her (see D7) and copied her mine to Ben Maskell of 31.10.08
On 7.11.08, having been contacted by Judy Gough, Ben Maskell emailed me saying that he had again chased the Legal Services team for the sale agreement. I replied on the same day, stressing that my request was broader than being for just the one agreement (I was aware of there being more than one from published information, anyway). See D8 for both emails.
On 12.11.08 I received an email from Ben Maskell saying “our Legal Services team are considering whether the agreement for sale document you requested can be released as part of your request for information”. I replied on the same date. See D9 for both emails.
On 8.12.08, I rang Ben Maskell who said that Anne Smith had taken over but I should go to James Sneddon as a re-organisation was in progress and Mr Sneddon was dealing with such matters. I then spoke to Michael Warby several times in James Sneddon’s absence following which I sent Mr Sneddon an email – see D10
I have heard nothing since 8.12.08. In case it is relevant, on 1.12.08, the land registry Croydon office recorded the attached information –see D11. This showed the sale of the land I have been trying to find information about, for £325,500 to the developer of the Dalby Street flats (2005/4187/P) on 5.9.08.
Yours truly
Nick Harding
Cc Andrew Maughan
Mike O’Donnell
Finance Department
London Borough of Camden
Argyle Street
London WC1H 8EQ
26 June 2009
Dear Mike O’Donnell
Dalby Street Talacre – Land Issues
I am addressing this to you as it concerns the land aspects of the Dalby Street potential development.
It was at least 9 months ago that I first sought information concerning the land sale aspects of this development. I have experienced considerable difficulties and attempts to use FOI requests failed. That notwithstanding, I then obtained many of the documents related to the sale of the Travellers Site from the Land Registry. This lack of transparency even when it came to documents in the public domain, re-inforced the impression gained over the months that there were serious questions to be answered.
I have now put in a number of FOI applications to your department, via Neville Kay and the Culture & Environment Department, via Rod Innes to seek further information. The reason for there being so many applications is not, as it may appear, to harass and burden the Council, but to avoid rejection of all that I am seeking as a result of one part of it being capable of rejection. . I attach a copy of my email to Neville Kay of 25.6.09.
With these FOI applications, I have enclosed a file/document “Dalby Street Summary of Documents, Decisions etc relating to the land” which I also enclose here. It contains many links to documents on Camden’s web site and to documents which are attachments to a web site I have created http://sites.google.com/site/talacrefacts/. [16.1.2022. That site is now out of date. Its content is in the many pages of this site currently being viewed]
This makes it much easier to follow this complex project without having to seek individual documents from different electronic or paper files. Its combined length is therefore its strength rather than weakness.
My purpose in writing to you in addition to seeking the FOI information is to request information that is more targeted ie:
1. The title to the Travellers Site.
The Dalby Street Summary referred to above and enclosed best illustrates this question. Part way through I show some lines covering all the columns, in CAPITALS. Generally, what is above the line, concerned a project for a “One-Way” system. Below is for a project for a “Two-Way” system. The difference was very substantial. For example, under the Two-Way scheme, marshals have to be employed for the entire lifetime of the development ie forever. Something that, at the public inquiry, both QCs (ie representing the Developer and Camden) accepted was not known to exist anywhere at least in the UK. Pedestrians who are the most important customers of the Sports Centre, its gymnasium and Treetops, no longer could walk as they do now on a pavement on the side of a road, but would have to use a narrow separate path covered by the building– a daunting route for many especially after dark.
The authority to sell the Travellers Site derived from the Executive meetings of 14.1.04 and 7.4.04. The report to the Executive described the “One-Way” system which by the end of 2005 was known to be unworkable as it didn’t have the support of Network Rail who were the owners of Wilkin Street Mews which would be most of the “One-Way”. Before Camden was aware of that critical point, the 19.4.05 Conditional Sale Agreement was signed for the Travellers Site. It may be significant that Chis Day, in his note to the inquiry inspector in January 2008 referred to that agreement as being the relevant land agreement.
As shown on the Summary of Documents, on 6.7.07 a “Supplemental Agreement” for the land was executed. It quite improperly stated that the Condition Precedent of planning permission contained in the 7.4.04 agreement had been fulfilled due to the later ie “Two-Way” planning permission having been given.
As Chris Day said in his note to the inspector, it was up to the developer to obtain the necessary approvals etc. Unless the matter was addressed again by the Executive which I don’t believe was the case, the land was not properly sold to TRAC. It belongs to Camden.
I should perhaps pre-empt any response that Executive approval for the sale of the land existed due to events after the two Executive meetings in 2004. The meetings of the Environment Sub-Group dealt only with the four access plans as did the public inquiry. Both the planning department and, I think, your property section, were absent from those meetings. Indeed, Dave Jenkins, who had the task of representing Camden at the inquiry, was not aware of the 2004 Executive meetings.
I hope that you can, in your capacity as director of the part of Camden with the fiduciary duty to look after its land holdings, confirm that this “sale” was void.
2. Second Property Contract V Conditional and Supplemental Agreements
An anomaly seems to exist in that obligations etc related to the Land, between Camden and the developer (TRAC and/or Cornwall) are stated as being in different documents. Camden seems to recognise those dated 7.4.04 and 6.7.07, while the developer recognises only an entirely different one, dated 10.1.06. I have not been able to get hold of a copy of the latter. This leads to deep unease. For example, what obligations might there be in the 10.1.06 document (which one can expect the developer to use when raising non recourse finance from banks)?
3. Overage ie Share of Development Profit
Rather similar to 2 above, is the situation with regard to the share of development profit of “overage”. This is referred to as being an obligation in the first ie 19.4.05 conditional agreement by Camden (including by Chris Day in his note to the Inspector). The developer, on the other hand, refers to the 10.1.06 agreement. Since I haven’t yet seen the 10.1.06 agreement, I have no means of knowing if the text on “overage” is identical in both agreements.
I am available to discuss this further, formally or informally, with you or any of your colleagues at short notice if it would help. There may be errors of detail due to my limited experience in property matters (I am a retired Chartered Accountant whose career was in project finance). However, I am confident that the overall substance of what is shown here is correct.
I am also emailing this so that, if you wish, you can use the links more easily
Yours sincerely
Nick Harding
PS Interestingly, though not strictly relevant, the developer ie Cornwall Overseas Developments Ltd and its parent Findon Urban Lofts Ltd, may have an interest in the land sale agreement being void as that may allow them to recover the £3.5 million they paid TRAC Properties Ltd for, in effect, the planning permission. They must surely know by now that they can only make a massive loss on the development.
WHAT FOLLOWED IS A TABLE OF DOCUMENTS, DECISIONS ETC INCLUDING LINKS TO EG MEETING MINUTES, RELATING TO LAND IN DATE ORDER. IT CAN BE FOUND ON THE LAND DOCUMENTS PAGE HERE
Dear Moira Gibb
I refer to Rachel Stopard’s email to me which she said was also on your behalf of 18th September. Since the issues surrounding Dalby Street span several directorates, I am replying to you.
The statement that “It would be unlawful for the Council to attempt to frustrate or prevent the development on this basis. Furthermore the Council would not be supported by the courts if it did make any such attempt”, I find particularly disturbing. I am very aware that the developers are capable of threatening legal action (even to me). Also that this is presented to Councillors and Council Officers as a reason for supporting the developer come hell or high water. However, the issues I am raising would not incur any such risk and use of the legal threat as a reason for not addressing them is quite improper.
Also, I must protest at the failure to answer questions that are very critical, on the grounds that they are “matters that you regard as unsatisfactorily resolved because you disagree with the merits of decisions taken to date”.
I may disagree with the merits of many decisions, but the points made in my last emails are about decisions that conflict, have not been carried out and/or are absent. To elaborate:
Columns on Pedestrian Access Route
(a) Decision of Council reflected in signed s106 agreement:
Pedestrian Access Plan
“7. That visibility along the Pedestrian Access Way shall be such that there shall be no areas that cannot be seen by a pedestrian walking along the footpath”
(b) Decision of Council reflected in agreed drawings such as
KTW4/P A1/02 rev E “Proposed ground floor plan”
KTW4/P A2/02 revs A and B (the same columns but the earlier drawing is clearer and even shows people walking on the park side of the columns)
(c) CLOPUD Informative(s) with Decision 2008/3688/P of 5.11.08
1. You are advised that this decision only applies to the building itself and does not apply to any changes to external areas surrounding the building including the rear service road, front footpath, turning circles and parking areas.
2. You are reminded of the need to comply with all conditions attached to the planning permission granted on 10.1.06 (ref 2005/4187/P) for the substantive scheme and with all obligations of the associated S106 agreements.
The above show two decisions and informatives which are in conflict. Is it unreasonable to ask which decision is paramount?
Rachel says “The Council does not believe that the consents issued are unimplementable or that the Agreements linked to those consents are unenforceable. If there was any breach of the relevant Agreements the Council would take steps to secure compliance”. Is she referring to the possibility of (a) being breached and the Council taking steps to secure compliance? If so, compliance with (a) will lead to non compliance with (b). Both (a) and (b) cannot be implemented – its one or the other.
This is no small matter. At present the public at large – mainly patrons of the Sports Centre, the children’s playground and the park – can walk on either of two open footways on each side of a road. That is being substituted by a 2.5m wide footway overhung by and against a building on one side and a park boundary (which closes at 4pm in the winter) on the other. The claims of through visibility, enforceable obligations and so on have been crucial.
Road Safety Audit of new accesses (mainly New Dalby Street, the turning circle and the Pedestrian route).
This is a decision made at the Public Inquiry, and referred to by the Inspector as having been agreed ie that a road safety audit would be carried out.
It is a decision that has not been carried out. The next stage in the construction process is the building of New Dalby Street which is the main subject of any audit. It is a road with no pavements, a basement car park entrance coming out into it, so narrow that it requires a retractable bollard to be managed by marshals so that large vehicles can only be admitted under supervision and so on. There is no known example of such a road being managed in this way anywhere in Britain.
Not carrying the audit out prior to the commencement of building New Dalby Street is a breach of a decision made by the Council
5th Column
The developer in his original submission for Clopud 2008/3688/P said that he had professional advice that there was a need for a 5th column ie one towards the front of the building which was not included in the approved planning application.
The council planner made a decision that no such change to the agreed plans could be permitted under the de minimis rules governing Clopuds
The question is therefore if the Council intends to ignore its decision and allow a 5th column or if it will be potentially complicit in allowing a building to be put up which is dangerous.
There are many more such issues and I can continue to use the FOI act to bring them out and to pursue making a complaint of maladministration to the LGO if that is my only way forward
Yours sincerely, Nick Harding
Dear Moira Gibb
I refer to my email of 25 September concerning Dalby Street, Talacre and look forward to your reply.
Yours sincerely, Nick Harding
Mr David Tullis
Head of Property
London Borough of Camden
Argyle Street, WC1H 8EQ
6 October 2009
Dear Mr Tullis
Dalby Street, Land (and Finance)
I was disappointed to receive yours of 18th September partly because I was relying upon a further meeting before you replied so I could draw attention to aspects of the situation that you might not have been aware of.
I will deliver this when I see you as there seems to be a possibility that emails I send to Council Officers and Councillors may not reach them (though I find this hard to believe, but see the attached email I received from Vinod Mandora).
I discussed my original letter to Mike O’Donnell of 26.6.09 with a planning lawyer and asked him to play devil’s advocate. Not surprisingly, he said that Camden officers might claim that the change from the one way system (2004/2689/P) to the two way system (2005/4187/P) was minor and therefore those meetings hadn’t required Council Officers to revert.
Indeed that was probably the only justification that could be produced for disobeying the resolutions of the Executive.
I therefore set out the differences between the two schemes that were obvious to me:
1) 2689 was for 45 flats. 4187 for 54 flats
2) 2689 had one way access. 4187 narrow two way access
3) 2689 required Wilkin Street Mews to be part of the scheme. At one time, Network Rail was to be a signatory to the s106 but that seemed to changed and, for example, 4.7.2.2 of the s106 read:
“The land identified under the Permanent Access Plan as being necessary for the creation of the new Highway has either been dedicated and that dedication has been accepted under a separate agreement to be entered into between all relevant parties pursuant to S38 of the Highways Act 1980 or any agreement enforceable by the Council securing permanent public rights of way together with maintenance obligations over the new Highway have been agreed by the Council, acting reasonable and without delay, in writing.
(A scrutiny of the planning files in the Town Hall provided nothing in writing from Network Rail so the extent to which they really were ever prepared to co-operate with TRAC’s scheme is not clear).
4) 2689 had a pedestrian footpath on the road access (condition 14). 4187 does not
5) 2689 did not require marshals following completion. 4187 requires marshals for the lifetime of the Sports Centre and its successors. No one is aware of any comparable ongoing marshaling arrangement of this nature in the country.
6) 2689 had two wheelchair accessible flats on the ground floor. 4187 has none on any floor
7) 2689 had two dedicated disabled parking bays, additional to the continuing 3 such bays. 4187 has none except for the existing three
8) 2689 had 6th Floor Mezzanine. I don’t believe 4187 did
9) 2689 application was formally made on 21.6.04 and included a fee of £11,220. 4187 was treated as a new application. It was formally made on 29.9.05 and included a fee of £14,840
10) 4187’s car parking arrangements are very different from those of 2689 and changed over time. The narrowness of New Dalby Street caused special arrangements to be needed. There have been drawings on 4187, but none on 2689 to compare.
In your email you seem to say what was anticipated ie
“Officers who were authorised to complete the necessary documentation did not consider subsequent events and statutory consents (such as planning consent) obtained by the purchasers thereafter to be sufficiently material to the sale to warrant any subsequent authority being sought from the Executive. Town Planning issues were matters for consideration through the completely separate planning process”.
If you are saying that the decision that the later planning proposal was in essence the same as the earlier one, was not made by your department and that exonerates your department from responsibility, then I cannot see how it can be claimed that your fiduciary duty has been fulfilled.
The Executive meetings you refer to were about the sale of the land and it is clear from the text of the reports to the Executive that the sale was conditional upon the scheme as presented to them and that it was required that the Executive be reverted to otherwise.
The decision to sell the travellers site and Dalby St was described as “finely balanced”. See for example, “policy observations on planning application” of 7.9.04 to the DC Case Officer from Rob Farnsworth, Forward Planning:
“…The case for and against the scheme is finely balanced, but is considered to be acceptable, given that housing is the priority land use , that a total of 45 new dwellings will be developed and that 18 affordable dwellings will be provided by one of the Council’s partner Housing Associations.”
The same note used the fact that Camden was the owner of part of the site and therefore had access to the development appraisals. (A different issue but of some interest is that those appraisals showed values that doubled two years later when the developer wanted to prove a different point).
The planning files for both 2689 and 4187 are, I suspect, incomplete but for 2689, I was able to find emails involving Chris Day in September 2004 where there was mention of the Executive resolutions and of concern from Leisure/parks (Martin Stanton) and Traffic Engineering (Elliott Della). These showed considerable concern about both safety and impact on the Sports Centre. That was in relation to the one-way scheme. Given that the two way scheme has much greater negative impact on both safety and the Sports Centre, it is apparent that the Executive should have been reverted to.
When 2689 was found to be impossible due to Network Rail’s failure to co-operate, a new proposal was submitted by the architects on 29.11.04 for a two way road on the land owned by the developer (two months after the DC meeting approving 2689 and, curiously, 24 days before the signing of the s106 related to 2689). On this letter, in longhand, it says “Spoke to Charlie Fulford on 9.12.04 stating that these ?? to request new app as materially different. Confirmed the same with Lee Rossetto. Left msg with Charlie 9.12.04 to ? confirm”. That proposal was evidently similar to, though worse than, 4187 as the two way road was to be 2.75m in both directions – 4187 ie the present one, is 2.5m in both directions. The words “materially different” tell the story.
The above proposal looks at first sight like that referred to in later correspondence being a hybrid proposal that eventually got nowhere. That scheme was for a one way road north from the Sports Centre to Wilkin Street and a two way route south to Prince of Wales Road – both involving Network Rail and a spur road for the last few metres to the Sports Centre entrance. Chris Shaw’s letter of 24.1.05 refers to it and to the related sale of land and discussions with Chris Day and Brian Jefferies. Importantly, the two way road as well as being wider than the 4187 route, envisaged having a footway along one side. It looks like a scheme that was significantly closer to 2689 than to 4187. I mention this as anyone looking at the background could well find this a confusing aspect of the story.
Camden traded the Travellers site for some affordable homes. Important features were the change of access for the Sports Centre, the capital cost and overage. The Property department had responsibility to ensure that the Council’s constitution was obeyed. That required any deviation from the scheme put to it at the two executive meetings, to go back to the executive. That is all to do with the situation of Camden as landowner.
“Second Property Contract”.
Was it your intention to respond to the question concerning the so-called “Second Property Contract”? I received an FOI reply which was far from complete. On the face of it, the buyer of the land reckons he has rights and obligations under an agreement which Camden doesn’t recognize exists – at least that is the only interpretation I can think of.
It is surely wrong for the Council to know that the buyer of its land or later buyers will be under the impression and perhaps claim that they have rights from Camden that Camden doesn’t recognise?
The contract between TRAC and Cornwall dated 5.9.08 which is on the Talacrefacts site http://sites.google.com/site/talacrefacts/ and was obtained from the Land Registry says that the Second Property Contract, dated 10.1.06, included the “overage” provisions. The prevailing (de facto only) planning approval at that date was the 2005/4187/P one which was, as described above, significantly different from the 2004/2089/P approval. Thus any overage provisions in the Second Property Contract should be more relevant than those under Clause 10 and the second schedule in the Conditional Sales Contract of 19.4.05.
Market value obtained for Travellers Site and Dalby Street
When we last met, you asked if I would like you to provide chapter and verse to demonstrate that the market value requirement for the price of the Travellers Site and Dalby Street was satisfied and I confirm that I would welcome that – though as I said, it is of lower priority than the issue as to whether the sale itself is void.
Finance Questions
In view of your role as Assistant Director Finance, I should like to mention something in case it comes within your remit. On 25.6.09 I put in an FOI request for details of all payments made by the developers on 2589 and 4187. It was one of several requests and I thought it would be the easiest of all of them to get a reply to.
I have now had replies which have failed even to include the application fees (which surely must have been paid) and other fees which should have been paid.
The officer responsible (Michael Warby) seems to have requested information from different departments and the situation now is that either the Developers have failed to pay several amounts or they have paid them, but Camden is unable to trace them.
In exasperation, I have referred the matter to the Internal Review panel. If this does come within your remit, and you read the correspondence, I think you will agree that the situation is highly irregular.
Yours sincerely
Nick Harding
Land Sale and Valuation
Dear Mr Tullis
Thanks for seeing us this morning. This relates
(A) to one of the matters briefly discussed and I thought I would tackle it while it is fresh in our minds – and perhaps the document in question is still on your window ledge! And
(B) to the topic of “material change”
(A) Until you told me, I hadn’t appreciated that the calculation for the valuation of the Travellers Site and Dalby Street was derived from the 4th Schedule “The Development Appraisal” in the Conditional Sale Agreement of 19.4.05.
I understood you to say that the amount of £320k shown as the cost of site is the amount needed to ensure a return of 16.33% as shown on the second page. I had however previously noticed that the £320k had been added in twice ie the total of £10,181,486 includes all of the six amounts above it and two of them include the same £320k. If I understood the theory right, I would have expected the land sale amount to be £640k in order for the 16.33% requirement to be met. Have I misunderstood? The appraisal doesn’t include the value of 52 Prince of Wales Road which was owned by the developer. Presumably, ignoring it is how such an appraisal should be done. Its value was ascertained to be £3.5m less presumably, the site value and relocation costs totalling £520k I understood that the selling price was to reflect the open market value and that was stated to be the case in the Conditional Sale Agreement. Using a development appraisal with a percentage return as a criterion doesn’t seem to me to be the same thing.
(B). In our discussions I spoke about what I saw as material changes which required the Executive to be reverted back to. In the otherwise very Developer-friendly Conditional Sales Agreement, it is very clear on this eg:
“9. Amending the Development. If in the opinion of the Seller acting reasonably the Development materially alters from the Development described in the First Schedule then the Seller will expeditiously report to the Executive to ascertain whether the Executive will consent to the amended Development”
“The First Schedule. The Development. To undertake a mixed use development, to include private and affordable housing substantially in the form approved by Planning consent ref 2004/2689/P dated 23 December 2004 the affordable housing details of which are contained in the s106 Agreement between the developers and the Council as dated 23 December 2004, with the aim of providing 14 social rented and 4 shared ownership affordable housing units. The aggregate gross internal floor area for the purposes of clause 17.2 is 5,186 sq m.”
Since starting this, the Response to my FOI request relating to evaluation has arrived. I have read it and find that there is nothing in it to cause me to change any of the above.
Yours sincerely
Nick Harding
Dear Mr Harding,
I refer to our discussion and write in an endeavour to clarify your further points:
1. Valuation issues
At the time of the negotiation over the disposal, the appraisal took the total combined site value of the development area at £640,000 and the parties agreed that the respective site values of the individual parts was approximately 50:50 hence the amount for the Council’s interest.
In addition there is provision for an overage to give the Council potentially a further receipt when all the costs and values can be reassessed namely when the scheme is actually built and the units sold off. As this has not yet happened, we do not know whether any overage will occur.
Your reference to £3.5 million is in respect of a subsequent transaction made between two parties at a later date reflecting a number of changed factors. The Council were not a party to this, and nor does it know what, if any relationship may have existed between the parties and whether there were costs incurred to reach this figure or other special circumstances relating to the transaction. In any event, it is not relevant to the valuation at the date the Council agreed the sale of the site.
2. Additional Clause
I confirm that the clause to which you refer was put into the transaction at officer’s request to give opportunity to go back for further review if the developer tried to materially change the scheme from that which the Council have been trying to achieve. The Council required at the time a mixed scheme primarily residential and if, for example, the developer had subsequently decided to change his plans to build, say a large office block with no residential then this would have invoked this clause. The changes to which you refer are not material to the sale.
I further confirm that factors such as changes to the road details and other points of the scheme to which you refer were all planning and highways factors separate from consideration for the sale.
3. Land Registry Entry
With reference to the land registry document that mentions the second transaction, and upon further investigation, the Council's legal department have stated that this error occurs in a document to which the Council was not a party, please note that this document is mentioned in another title, not the Council's title document and can only therefore be rectified by the parties to the document by way of deed of variation to the original documents made between them. This error will be brought to the site owner's attention.
4. Will the council confirm that it will adhere to the conditions set down by the planning consent? Will the Council guarantee that we won’t “turn a blind eye to the requirements of the consent”
I have obtained assurances that the Council will not ignore any of the requirements of the various consents in particular the Section 106 Agreements.
The Section 106 requirements have been carefully drafted on the basis of advice from an external barrister. Given the sensitivities of the site these requirements are being particularly closely monitored.
Our general experience (even through the current recession) is that developers invariably do comply with Section 106 requirements-non compliance is an issue only in a small percentage of cases. However Camden has robust mechanisms for tracking and monitoring compliance with Section 106 obligations. If the developer breaches any of the Section 106 requirements the Council will take appropriate steps to remedy the non compliance.
The Council has to act reasonably in enforcing any Section 106. Not least this is because in the final analysis the mechanism for securing compliance with Section 106 obligations is a court injunction and this will not be granted unless the Council has demonstrated it has acted fairly and proportionately. However were there to be a breach which fundamentally impacts on the key Section 106 obligations ( such as access to the Leisure Centre or highway safety) it is likely that the court would grant an injunction, at short notice if the situation was urgent.
5. Is it possible to unravel the conditions and summarise the position for residents in a single statement.
The obligations in Section 106 Agreements are wide ranging and complex .
However some of the key terms are summarised below:
· The legal orders for the Stopping Up of Dalby Street will not be formally confirmed until a bond of £1.1 Million has been paid to the Council (which will then be supplemented by a further separate bond of £100,000.) This will be held as security to guarantee the developers' compliance with the "Paramount Objective" (defined as being the absolute requirement to safeguard safe free marshalled properly maintained and commodious access for the public at large to and from the Talacre Leisure Centre.) If at any time the Council considers that the Paramount Objective is being breached it may serve notice which the developer is required to comply with specifying action to remedy the breach (in addition to being able to use the £1.2Million bond referred to above to remedy the breach.)
· During the period of construction (and until the development and the replacement access ways have been built out) the developer has to comply with a Temporary Access Plan which safeguards pedestrian and vehicular access to the Leisure Centre during this time . This Plan requires the developer to put arrangements for two marshals in place during this period to manage traffic flow on to Prince of Wales Road from the time the existing Dalby Street is formally stopped up until the development and the replacement access ways to the Leisure Centre have been built out .
· The Temporary Access Plan also sets our timescales for the carrying out of different phases of the construction works which the developer must comply with. These include a period when pedestrian access to the Leisure Centre will be routed over Talacre Open Space which should be no more than 60 working days . If the developer fails to comply with this timescale financial penalties will be payable to the Council beginning at £2,000 per day initially but escalating steeply thereafter.
· When the development is built out there will be two permanent access routes to the Leisure centre -one for pedestrians and one for vehicles. The developer is required under the Section 106 to comply with two documents which safeguard and manage access to the Leisure Centre - the Permanent Access Plan (in respect of vehicles) and the Pedestrian Access Plan (governing access for pedestrians. ) There is also an additional plan (called the Service Management Plan) which sets out measures for managing traffic to and from the development (including the provision of a marshal at all times when the leisure centre is open.)
6. Payment details on the project including – planning application fees, section 106 contribution, public enquiry costs etc and have these all been paid?
All the payments due under the Section 106 Agreement signed on 30 September 2008 have been made, including the Highways Contribution, the Traffic Management Order Contribution, the Leisure Centre Contribution and the Education Contribution. The Stopping Up Contribution was paid under the original Section 106 Agreement signed on 10 January 2006. The expenditure to date on the stopping up process, including all the costs for the Public Inquiry, has far exceeded to the original Stopping Up Contribution of £15,000. To date, all the Council’s expenditure on the stopping up process has been covered by the developer. He is actually in credit with the Council for the stopping up, as he has paid our estimated costs for completing the process, i.e. making the Stopping Up Orders when the site progress is such that they can be made, in advance.
The following obligations were due under Clause 4.2 of S106 1527:
Education contribution of £68,638 – received 12th December 2008.
Leisure centre contribution of £10,000 – received 12th December 2008.
Stopping Up Order contribution of £15,000 – received under the previous S106 (1010) on 22nd May 2006. I understand that an additional £108,814.38 paid on 9th November 2007 for Public Inquiry in January 2008.
Traffic Management Order contribution of £3,000 – received 12th December 2008.
Clause 4.3 required the payment of a Highways contribution of £89,000 prior to implementation. This was received 12th December 2008. However, under Clauses 4.3.3 and 4.3.4 of the S106 the Council may specify a Certified Sum upon completion of the highways works (which reflects the actual cost of the works). If this sum exceeds the contribution then the owner must pay the Council the difference.
A number of financial obligations are also due under the ‘supplementary’ S106. Other than the further stopping up contribution, these have not yet been received.
4.1 Further stopping up contribution: £123,814. Receipt of this contribution acknowledged in the text of the clause.
4.9 Continuing works contribution: sum to be worked out in line with the methodology set out in Schedule 1 of the S106. Due in the event that stage 3 takes more than 60 working days to complete.
4.10 Security marshalling costs: £43,000. Due on or prior to the Council making the stopping up orders.
4.10 Security marshalling management contribution: £2,400. Due on or prior to the Council making the stopping up orders.
4.18 Cash deposit: £1,100,000. Due on or prior to the Council making the stopping up orders and prior to the commencement of Stage 3.
I have endeavoured to further answer the points you raise and I do not believe there is anything I can add to the correspondence and discussions we have already undertaken.
I should be grateful if in terms of your freedom of information requests and complaints you would now communicate direct with Peter Swingler and Michael Warby as defined in their note following on from the internal review panel.
With regards,
David Tullis
Head of Property Services
Finance
London Borough of Camden
Telephone: 020 7974 1604
Web: camden.gov.uk <http://www.camden.gov.uk/>
Town Hall Extension (Finance)
Argyle Street
London WC1H 8NG
Dear Mr Maughan
I refer to the Refusal Notice under the FOI Act sent to me by Michael Warby. Since it emanated from Legal Services, I am attaching the Complaint letter I have sent to the Information Commissioners Office as this is evidently the only method of appeal open to me.
I am shocked that Camden should regard my FOI requests as vexatious. Having read the FOI Act and the various guidance notes of the ICO, the meaning of that word seems to accord by and large with what one would expect. I have reread all that I have sent and cannot understand how the Council could take the view it has. If Camden believes that I have wasted my time on requests that have no serious purpose, value and justified cause, then I am afraid they have misunderstood the situation.
Yours sincerely, Nick Harding
I am not personally acquainted with this matter but have asked to be briefed on it.
Andrew Maughan
Head of Legal Services
Herewith an email I have sent to my mailing list and to Councillors.
Regards
Nick Harding
DALBY STREET, TALACRE – TO ALL ON MAILING LISTS, COUNCILLORS AND OTHERS
We have just heard that on Monday 20th June, Camden is allowing the developer (Findon Urban Lofts) to start piling in the site next to Dalby Street.
This follows his use of Dalby Street for construction traffic which was contrary to the legal (s106) agreement (for obvious safety reasons).
Pictures of Dalby Street can be found here. [16.1.2022 No longer readily available]. You will see children walking next to unattended open gates with diggers working close by and drops where excavation has taken place.
When Findon was required by Camden to stop they ignored the request and the safety situation was eventually reported by us to the Health and Safety Executive.
A call to people living close to Dalby Street to report and take pictures has meant that at least six people have been recording and passing on information daily.
Eventually, Camden decided from Monday 13.6.11 to send an officer to Dalby Street every day to ensure compliance. However, on Tuesday a 40 ft. low loader was pictured by the Chair of a nearby residents association reversing into Prince of Wales Road.
A new gate onto Prince of Wales Road has just been constructed. From Monday 20.6.11 Camden are understood to be allowing the developer to use this gate which is about 3m from the bridge.
No safety audit of any sort has been carried out regarding the construction period. This is confirmed by these Freedom of Information replies:
Request about the Dalby Street, Talacre development and the Temporary Access arrangements.
Looking through the traffic consultant’s evidence to the public inquiry, I see (8.59) that it says “The Temporary Access Plan has been discussed/agreed with the Council and has been the subject of a legal audit/review and is, therefore, considered to be reasonable and appropriate”. I understand the position of the council at the public inquiry was agreed to have been that they were joint proponents. Could you let me have a copy of the "legal/audit review" document referred to
Response
In accordance with Section 1(1) (a) of the Freedom of Information Act I am obliged to inform you that the information you requested is not held by Camden Council.
In a letter dated 6.4.11, a council officer wrote to each of the undersigned, including:
“The developer is planning to start Stage 2 of construction (building the replacement access road) in a few months time. We are currently working with them to complete the detailed design of both the new access road and the measures on Prince of Wales Road, which will then be safety audited. The exact programme is yet to be determined ...
Although Dalby Street will no longer be public Highway, it will remain open and accessible to the public for access to the sports centre. Under the S106 agreement, the developer will not be able to occupy it to start construction on the new building until the new access road is complete and ready for use. If you have any queries, please do not hesitate to contact me.”
We promptly asked a number of questions, many of which remain unanswered and which relate to both safety and the ability of the marshalling scheme to work.
The dangerous situation we have described is nothing to that which will exist if the flats are built and this entrance, less than 3 m from the bridge becomes the only road to the sports centre. The new road will be 5.5m wide, have a bollard 14 m along it to stop vehicles that are over 2 m wide from entering unless/until lowered by a marshal stationed 90 m away at the Sports Centre building.
It is a manifestly dangerous situation and yet there has been no Road Safety Audit (RSA) – because it is a private road. Please join us in demanding that Camden commission a full RSA from a reputable independent firm who are provided with all the facts and able to do whatever surveys are needed. The developer (followed by the owners of the private flats) may not have any obligation to pay attention to such a RSA but Camden has the authority, under the s106 agreement, to require the owner to carry out whatever is needed to fulfil the Paramount Objective defined here:
“The Paramount Objective. The overriding objective underpinning this Agreement ... being the absolute requirement to safeguard secure and guarantee public amenity and safe free marshaled properly maintained and commodious access for the public at large to and from the Leisure Centre (either in its current built form or in any later rebuilt form which has been granted planning permission) and specifically over the Pedestrian Access Way and Permanent Access Way”.
If Camden fails in its duty at this point in time and there is a serious accident, it will be Councillors and Council Officers who are in place NOW who will be guilty of criminal negligence.
For further information see www.savetalacre.co.uk (a campaigning site) and www.talacrefacts.org.uk (an information site). To reach a particular topic directly, rather than via the sidebars, you should be able to click on the following: [16.1.2022. These links now removed as they are to the old sites. The content of all of them here within the pages of this site you are viewing]
Latest News.
Press articles and letters
Dalby Street Development.
The Planning Agreement. Also, for more detail here
Planning Applications
Land Sale. How Dalby St itself and the Travellers Site were sold to a private developer. More detail here
The Developer (Findon Urban Lofts)
Developer’s financing on TASE
Findons 6 other developments (in Hackney, Southwark, Greenwich, Lewisham, Lambeth and Wandsworth plus its failed company in Romania, R O Futures
Sport England.
The Tale of Talacre A stirring and very readable account of the Sports Centre and its previous incarnations – if you start it, you won’t put it down.
Contact
The main correspondence with Camden. This is the first of several pages. The letters etc are referred to as KDs (“Key Documents”) which became a misnomer. Some like #27 and #50 contain a lot of useful information
Freedom of Information (foI) requests known to have been responded to
FoI requests rejected on the grounds they were vexatious
Information Commissioner and Tribunal correspondence
Local Government Ombudsman
Public Inquiry Documents
Road Safety Audit
Please distribute this as widely as possible
Nick Harding, 1 St Ann’s Gardens, NW5 4ER. 020 7485 9397. 0780 180 2344.
www.savetalacre.co.uk campaign.
Working with Friends of Talacre Town Green (Peter Cuming, Chair)
Nick Harding
I am out of the office the 17th June at an all day meeting so will only be checking emails when possible. If urgent therefore contact my PA Amelia Walker. Thank you.
Andrew Maughan
Dear Mr Cooke,
Belated congratulations on you becoming Chief Executive. At the time of your appointment, I recall your commitment to delivering joined-up services. This goal I endorse.
Within the past hour, the Dalby Street project manager has authorised the placing of a large container precisely in the area allocated for disabled parkers. The area has long been allocated for this purpose and should continue to be a disabled parking area for the long term future. It lies within the Camden land ownership and I have been informed that Mr Tullis has not sold or leased the land to anyone. Accordingly, it should not be used for construction activities and should revert to being a disabled parking area ASAP. Some 14% of Londoners claim some disability and a large number have 'blue badges'. The various stages of the Section 106 Temporary Access Plan agreed by Camden all show the land in dispute as vacant and available for disabled parking. Furthermore the elusive 'red line' plan supplied to the public for the first time by the area planner - Mr Charles Thuaire - only today ( after we have been seeking it over a period of 52 months), also shows the area in question as a disabled parking area. To simply 'purloin' public land for construction purposes is unacceptable, especially a facility for the needy. The nearby Talacre Community Sports Centre now attracts 130,000 visitors annually and currently lacks signed and allocated disabled parking contrary to all best practice. Disabled parking space is only one of a number of local concerns about this scheme. Were a project officer appointed to handle issues such as this, I would not be in the absurd position of having to approach you the Chief Executive to seek advice.
With kind regards,
Yours sincerely, Peter Cuming - Chair of the Friends of Talacre Gardens,
c/o 50-56 Talacre Gardens, NW5 4LX
Dear Peter,
Thank you for your opening kind words and for getting in touch on this specific matter.
I shall look into how and why this has happened as a first step; what i find may dictate the consequent actions we need to take. It is helpful to have your concerns so clearly set out and I hope that we can resolve this quickly. I also hope you will appreciate why I can't say more at this stage - I simply need to get more background
With regards, Yours sincerely, Mike,
Mike Cooke
Chief Executive
London Borough of Camden
Dear Peter
I now have the background I referred to in my earlier email and can advise as follows.
The site accommodation you have observed has been erected on the Council’s land under licence. The licence allows the developer to erect a site hut on the land shown hatched for a short-term period prior to and during Stage 3 of the Temporary Access Plan as set out in the Section 106 agreement. I understand you will be familiar with this document from your long standing interest in the development at Dalby Street. The licence is for an initial period of 60 days and could remain valid for a maximum period determined by the end of Stage 3. Stage 3 has not commenced yet, but is anticipated to last no more than 60 days. You will recall there are significant financial penalties in the S106 agreement if Stage 3 goes beyond 60 days.
The developer has provided three replacement disabled parking bays next to the site hut, but they have been asked to provide clear road markings to go with them. I am assured they will be marked by next week, weather permitting.
If you have further queries regarding the development at Dalby Street the lead officer is David Jenkins in Engineering, 020 7974 3314 David.Jenkins@camden.gov.uk , and I am sure he will be able to provide you with the information you require.
Yours sincerely, Mike Cooke, Chief Executive, London Borough of Camden
Dear Mike,
I do not wish to nag you on this specific matter but I fear I must. Passing the " replacement disabled parking bays " 50 minutes ago they were double parked with 9 vehicles (none ostensibly for the disabled) and one vehicle with a cardboard notice on the dashboard proclaiming its ownership or use by a member of the building contractor's staff (Sheldon Ltd). There is not the remotest chance of a disabled driver using the labelled spaces. Kindly please advise as to whether or not this is a matter for Camden's Enforcement Team. Neither Jenkins nor the Enforcers have been evident. Contacting the Council's engineers, as monitors seems unreasonable. So far the" lead officer" seems to have confined his concern to more directly highway matters. Furthermore, from a management standpoint it is hard to understand why Jenkins should be expected to undertake responsibility outside his normal competence. Over the next 2 years and involving a budget of some £9millions the Dalby Street project should not be managed by a highwayman.With the best possible intentions, I hope not to have to trouble you again over this matter. Regards Peter
Dear Peter
Thank-you for your further email which I raised with colleagues in our Engineering section.
As you will be aware, Dalby Street is no longer a public highway and so parking enforcement within the site is no longer the Council’s jurisdiction. However, at my request officers have visited the site and have discussed the issue with Sheldon Construction. They should no longer park vehicles in the disabled bays and will also ensure where possible that the bays are kept accessible and are not parked in by anyone other than blue-badge holders. The sports centre staff will also assist where possible.
As noted previously, if you have further queries regarding the development at Dalby Street please contact David Jenkins in Engineering, 020 7974 3314 David.Jenkins@camden.gov.uk, who will be able to take action as appropriate.
Yours sincerely, Mike Cooke, Chief Executive, London Borough of Camden
Sent: 20 June 2012 11:58
To: Maughan, Andrew; Cooke, Mike
Subject: Dalby st Talacre-S106 AGREEMENT
Dear Mr Maughan,
There has you know been a lot of concern expressed over the residential project next to the railway line in front of Talacre. However recently,I have been asked by clients concerned over the Dalby St, Talacre project as investors to look into the development and I was told to contact you about reference( or lack of it) to the Supplementary s106 agreement dated 30.9.08 at the Land Registry.
It appears that this important document is not and has never been registered with the Land Registry in spite of being effective and registering it being a specific obligation per clause 6.5.This is a mistake by the developer and unmonitored by the Council.
“6.5. The Owner hereby covenants with the Council that it will within 28 days from the date hereof apply to the Chief Land Registrar of HM Land Registry to register this Agreement in the Charges Register of the title to the First Property and will furnish the Council forthwith on written demand with official copies of such title to show the entry of this Agreement in the Charges Register of the title to the First Property and further that the Owner will within 28 days of being registered as Owner of the Property (comprising all of its parts including those currently owned by the Council) re-execute this Agreement and apply to the Chief Land Registrar of HM Land Registry to register this Agreement in the Charges Register of the title/s to the Property and will furnish the Council forthwith on written demand with official copies of such title to show the entry of this Agreement in the Charges Register of the title/s to the Property”
The only s106 agreement registered under the relevant number (NGL637463) is the original one dated 10.1.06. The Supplementary s106 contains new clauses which should be of major importance to anyone concerned with the development including in particular buyers of the private flats and lenders who take security from the land and its development.
I am advised that between 10.1.06 and 30.9.08 the Supplementary s106 including its schedules which deal with access to Talacre Sports Centre and the park was the subject of a public enquiry and much correspondence involving the Mayor of London and Sport England. The result was a document which purports to protect the public amenity. Anyone having a future interest in the land would be likely to be particularly concerned with the impact of many of the clauses not least those which require marshals to manage access to the extent required by the Council for all time.
IN MY VIEW, THOSE OBLIGATIONS ARE SO ONEROUS THAT A SOLICITOR WOULD HAVE DIFFICULTIES IN ADVISING HIS CLIENT TO BUY A FLAT, LENDER TO LEND ON THE SECURITY OF A FLAT/PROVIDE A MORTGAGE LOAN OR SIMILAR WITH RESPECT TO MASS PURCHASE OF FLATS.
Unless I have missed something, this omission is extremely serious. At the very least, it means that persons may obtain an interest in the development who are not aware of these onerous obligations and therefore who will attempt to resist the impact which is likely to be in the cost of marshalling being recovered through service charges. Those service charges are estimated to be substantially higher that would apply to any development anywhere in Camden.
One is aware, of course, that anyone impacted by these onerous conditions should eventually become aware of them through their solicitor checking Camden’s Charges Register and/or the information pack provided by the developer/freeholder. However, that is late in the day and by that stage, a buyer or lender will already have made non-binding commitments.
The need for the situation to be very transparent and clear to anyone is especially important due to the exceptional nature of these obligations. At the public enquiry, it was common ground that using marshals, paid for by the owners of the land to ensure access to a public area was unique. The obligation was usefully spelt out by Peter Harrison QC in his closing submission where he said “31. LBC rely on the Section 106 agreement. It has to be remembered this provides some important safeguards for Camden-
A. These obligations run with the land.
B. Anybody who buys the land from the current owners or in any other way is a successor to them (eg a land leaseholder in the flats, the owners of the Dr’s surgery or a housing association running the affordable housing) will be liable to keep the marshal on site and to maintain and footpath and the access road...”
The history behind this development was that it was originally to have the access on a one way route which required the applicant to procure that Network Rail allowed the whole of Wilkin St Mews to effectively become available for public use. When it was found that NWR were not willing to co-operate, the developer came up with the existing scheme which involves fitting the development into a much smaller area with a two way road which they persuaded Camden could work provided it was managed by marshals. It has always been the conviction of opponents that it was totally unfeasible unless Camden reduced the marshalling obligations which arise from the Sup s106. Unlike other developments, where one would expect relatively minor issues to arise from the due diligence work carried out in the late stages of a transaction, here there are fundamental aspects which should be known well in advance.
I would be most grateful for a reply to this letter
Marshall Levine
Marshall F .Levine & Associates
81 Haverstock Hill
London NW3 4SL
Dear Mr Levine
As you will imagine I am not close to the specifies of this matter and therefore have asked a college (Aidan Brookes) to deal with this on my behalf. He will be in touch shortly.
Andrew Maughan
Dear Andrew Maughan
As you are aware I have taken a very close interest in the Dalby St, Talacre development including publishing the www.savetalacre.co.uk website.
I have become aware in the last fortnight that the developer’s publicity and his quoted service charges do not reflect the agreement between him (and therefore subsequent private flat owners in particular) and Camden.
Accordingly, on a new page on the website (for the Prince’s Park development as it has been christened by the developer), I have included extracts with some commentary from the agreement.
I don’t know whether the Council will welcome this – as far as I can see, it helps to ensure that it is less likely that a buyer or lender will fail to appreciate the full consequences of buying or lending at an early stage.
Be that as it may, I would welcome any comments or corrections. I am not a lawyer but find there is little need than to stress the text of the Supplementary S106 agreement and to draw attention to its existence (as it is not on the Land Registry). From what little experience I have of buying flats in a new development, I find that it is only at a very late stage that anything unusual (eg car capping) becomes known to the buyer if the agent has not informed him. In this case, the obligations are extremely significant.
Because the web page changes as I find it can be approved, I will copy in the current text relating to the s106s below:
EXTRACT FROM PRINCE’S PARK PAGE ON THE SAVETALACRE WEBSITE AS AT 4.7.12
“In June 2012, the developer started to market, off plan, the 36 private flats including holding open days. See Attachment #1 at the bottom of this page.
These are some of the facts anyone interested should know:
SERVICE CHARGES. A "Fact Sheet" states that Service Charges will be about £4 per sq ft. We calculate that to mean the charges for the average 1, 2 and 3 bedroom flat would amount to about £1800, £3,300 and £4,600 pa respectively. These are amazingly high even for London. However, we estimate that they need to be much higher, perhaps two or three times that amount.
This is due to the development being unique because the flats are build on top of the road which until 11th June 2012 provided access for vehicles and pedestrians to the Talacre Community Sports Centre (TCSC). The TCSC is very popular, having roughly a third of the number of visitors as the London Zoo.
The development has to provide a new road to replace the one that is occupied by the building. The new road is so narrow (4.8m wide for most of its distance) that it has to have marshals to manage it for all time. That road has no pavements and is crammed in between the building itself and a mews with arches containing businesses including a brewery. Pedestrians are meant to use a route which is also part of the development so has to be managed, on the other side of the building. The cost of employing the marshals and of the upkeep of the road and pedestrian route falls on the owners of the private flats and therefore has to be included in their service charges. (Because the developer has an obligation to enter into a contract for marshalling for three years prior to the flats being occupied, it might be possible for the service charges for those years not to reflect some or all the marshalling costs but it would mean a dramatic increase would take place in year four)
ONEROUS S106 OBLIGATIONS. An agreement known as a s106 agreement sets out the planning conditions. Owners of flats will take on extremely onerous obligations which will apply for all time and which are open ended. To appreciate this, you should read the Supplementary s106 agreement, “s106” dated 30.9.08. It is attachment #2 at the bottom of this page [6.2.2022 now linked here]. It is 86 pages long. Below we give extracts of the more important sections and explain what they could mean in practice. That agreement contains all that had to be added to the original s106 in order to include for the special access arrangements mentioned below.
The obligations in a s106 agreement fall on all those with “an interest in the land”. The following is an extract of Camden's submission to the public enquiry
"31. LBC [Camden] rely on the s106 agreement. It has to be remembered this provides three important safeguards for Camden. A - the obligations run with the land. Anybody who buys the land from the current owners or in any other way is a successor to them (eg a long leaseholder in the flats, ...will be liable to keep the marshal on site and to maintain the footpath and the access road...".
In practice, the responsibility will rest upon the 36 private flats and if they don’t fulfil it, their owners will face legal action and possession from Camden.
As as 26.6.12 there has been no reference to it on the UK Land Registry website (Title Number:NGL637463). Only the original s106 agreement is shown there and that is out of date.It can, however, be found on the Camden Planning site reference 2005/4187/P. It is part of a number of separate postings on the site which makes it less accessible than the attachment at the bottom of this page. This Camden site contains the original s106 agreement separately and the Re-Executed s106 dated 30.9.12 joined with the Sup s106. For an explanation of the relationship of these three s106s, see the final posting listed (mistakenly twice)
WHAT FOLLOWS IS A DRAFT GUIDE TO SOME OF THE MORE ONEROUS CLAUSES IN THE SUP S106 AGREEMENT. IT CONTAINS OUR COMMENTS WHICH ARE NOT A SUBSTITUTE FOR LEGAL ADVICE. ANYONE CONSIDERING BUYING A FLAT OR FLATS OR LENDING TO A PURCHASER SHOULD READ THE FULL SUPPLEMENTAL S106 AGREEMENT OF 30 SEPTEMBER 2008 WHICH IS ATTACHMENT 2. [6.2.2020 See Link here]
INTRODUCTION
The following are some of the clauses in the Sup s106 agreement which are understood to protect the public amenity, together with our understanding of their purpose and background.
The Sup s106 is the main legal agreement between Camden and the “owners of the land” as defined in planning law and understood to be anyone with an interest in the land which would, according to Peter Harrison QC, include owners or leaseholders of the private flats.
The Sup s106 largely or entirely supersedes the Original s106 agreement which is the only s106 agreement registered at the Land Register at 29.6.12 in spite of the obligation in Clause 6.5 in which the Owner (ie the developer) covenanted to register the agreement at the Land Registry
Extracts from Supplementary s106 agreement (Sup s106) dated 30.9.08 related to the obligations of Leaseholders, Freeholders of Flats etc, arising from the access requirements
SOME CRITICAL CLAUSES AND THEIR BACKGROUND AS UNDERSTOOD BY US
2.20 “The Paramount Objective”
The overriding objective underpinning this Agreement (which both parties shall have regard to and give effect to carrying out and enforcing the obligations of this Agreement and the plans/briefs incorporated herein) such objective being the absolute requirement to safeguard secure and guarantee public amenity and safe free marshalled properly maintained and commodious access for the public at large to and from the Leisure Centre (either in its current built form or in any later rebuilt form which has been granted planning permission) and specifically over the Pedestrian Access Way and Permanent Access Way
[This clause was added along with several references to the defined term, due to the desire to see more clarity that the public amenity was not to suffer as a result of the existing road being sold, stopped up and built on top of and new accesses being provided.]
4.23 The Owner covenants that it will give full effect to the overriding requirement to secure the Paramount Objective in carrying out its obligations under this Agreement and agrees to do nothing that will conflict with or impede the Paramount Objective and in the event that the Council in its reasonable opinion (after taking into account any representations made by the Owner and balancing the need to secure the Paramount Objective (having regard both to the past operation of the Plans/Brief and arrangements under this Agreement and to any changes or proposed changes in the built environment I highway network/ open space in the vicinity of the Development) against the reasonable operational requirements of the Owner) concludes that the Paramount Objective is being breached (or fundamentally compromised or impeded) by any action or inaction on the part of the Owner it may serve notice on the Owner to this effect setting out the steps that the Council reasonably considers would remedy such breach or fundamental compromise and in the event of receipt of such notice the Owner shall at its own expense comply with the requirements of such notice as soon as reasonably practicable
[This describes the Council’s rights to enforce the Paramount Objective]
4.25 In the event that in the reasonable opinion of the Council the Owner at any time after the Occupation Date is in material breach of the obligations in this Agreement to the extent that the Paramount Objective is seriously compromised the Owner covenants that upon receipt of written notice from the Council it shall as soon as reasonably practicable dedicate any areas of land specified in the notice (being any part of the Permanent Access Way or the Pedestrian Access Way) as highway within the meaning of the Highways Act 1980 upon such terms as the Council considers reasonably necessary (including terms as to future maintenance) to secure the Paramount Objective ALWAYS PROVIDED THAT the parties acknowledge that the right of the Council to serve such notice is without prejudice to the Council's right to enforce the obligations of this Agreement on the Owner and shall not in anyway be taken as diminishing or altering the requirements on the Owner under this Agreement for the Owner to comply with such obligations.
[The development including the flats is on top of the road “Dalby Street” that was owned by the Council. It agreed to sell the road and an adjacent plot of land and to assist in getting the road stopped up in order for the planning consent to be exploited.]
5.6 The parties hereto and their successors in title agree to meet (in accordance with the requirements set out in the Agreed Service Management Plan and the Traffic Marshalling Brief) on at least an annual basis unless both parties agree such a meeting is unnecessary to consider the Agreed Permanent Access Plan and the Agreed Pedestrian Access Plan and the Agreed Service Management Plan and the Traffic Marshalling Brief to make any amendments which they may agree are desirable at that time for the safe and efficient operation of the Permanent Access Way and the Pedestrian Access Way.
[Similar to what is in more detail in Schedule 5 clause 28 below]
Schedule 5. The Agreed Service Management Plan
MARSHALS
6 That a marshal will be employed at all times that the Leisure Centre is open and also for one hour prior to the Leisure Centre opending and one hour after the Leisure Centre closes, in order to maintain the free of traffic along the access road for all vehicles and manage servicing/delivery activity. The marshal shall ensure the following: ….
[The duties of the marshals are set out at length in what follows the above extract and demonstrates their essential role in ensuring that access at the optimum level is secured. At the public enquiry in 2008, the developer tabled AP19 which can be found as attachment 3 on the Prince’s Park page of www.savetalacre.co.uk. It includes an estimate of the cost of one marshal for that time as £82,768 at 10.1.2008. It is possible for the extent of marshaling to be increased or reduced due to these schedules of access plans being defined as capable of being changed. It has frequently been publicly stated that at busy times, there could be a need for an additional marshal at the junction with the main road (Prince of Wales Road). It is the contention of local observers that the need is for an additional marshal full time at that critical junction. Camden has recently stated that they have no plans to change the above obligation ie one full time marshal at the start. £82,768 , 4 ½ years ago, could be £100k at the time the flats are completed. There are 36 private flats understood to be the only source of funds, through service charges, to finance that amount which means that an average flat would have to bear nearly £3k. Advertising of flats seen in late June 2012 state that service charges are estimated to be £4 per sq ft. The AP19 document showed the total area of the private flats to be 23,314 sq ft. That would only provide £93,256 and then there would be the other costs of maintaining these special access routes. None of these costs provide any benefit to the private flats. On top of that, the service charge of course have to cover normal costs for concierge etc. Thus there appears to be a major discrepancy]
MONITORING
28 The Council as highway authority has agreed to the Stopping Up Order and the
Further Stopping Up Order on the basis that the Paramount Objective shall be secured in perpetuity through the effective operation of the Agreed Permanent Access Plan, the Agreed Pedestrian Access Plan, the Agreed Service Management Plan and the Traffic Marshalling Brief (“the Plans/Brief”). The parties agree that the operation of these Plans/Brief shall be subject of continuous review by the Council to secure the Paramount Objective on an ongoing basis - this review to take place at least annually (or at shorter intervals If the Council reasonably considers that such review is required in the interests of securing the Paramount Objective.) In determining whether the Paramount Objective is being secured, the Council will have regard both to the past operation of the Plans/Brief, but also to any changes or proposed changes in the built environment / highway network / open space in the vicinity of the Development. As part of that review, the Council may require the Owner to produce such reasonable information on the operation of the Plans/Brief as the Council may reasonably require.
[Gives the Council the right unilaterally to review the terms of the access agreements at any time. Representations made prior to this clause being inserted pointed out that the Sports Centre is a place where changes in its operation and requirements for maintenance and even rebuilding constantly take place. If the damage to its interests is to be reduced, the marshalling and other access features have to be capable of speedy change and without there being any risk of objection]
29 In reviewing the operation of the Plans/Brief, the Council may require the Owner to make amendments to the operating arrangements for such Plans if the Council reasonably considers this to be necessary to safeguard the Paramount Objective (Whether these changes are in the reasonable opinion of the Council required in light of the past operation of the Plans/Brief or in response to any changes or proposed changes in the built environment / highway network / open space in the vicinity of the Development). For the avoidance of doubt, the Owner shall comply with the Plans/Brief as amended by the Council even if this requires increased expenditure falling upon the owner.
[This follows the concern expressed that a loose wording might cause there to be doubt as to the obligation to provide whatever is needed in the event of operational, maintenance (routine and major, planned and unplanned). The Council’s right to unilaterally impose obligations is again stated]
30 For the avoidance of doubt, the Council shall act reasonably in requiring any amendments to be made, taking into account any representations made by the Owner and balancing the need to secure the Paramount Objective against the reasonable operational requirements of the Owner. For the avoidance of doubt, the Owner shall comply with the Plans as amended by the Council.
[This requires reasonableness in relation to the operational requirements of the Owner. The Owner is anyone with an interest in the land including the freeholders or leaseholders of the private flats, the RSL and the NHS. Their operational requirements in this context would not seem to be significant but might include ability of cars entering and leaving the car park not to be unduly hindered, recycling etc not to be obstructed]
31 That if following a review, the Plan requires updating it shall only be done so with the prior written approval of the Council. For the avoidance of doubt if the written approval of the Council is not obtained the previously agreed arrangements shall remain in place.
[This remained in from earlier versions before it was decided that, although the Council reckoned it was protected, it needed there to be the clarity which can be seen in the other clauses]
32 That it is acknowledged that the Council reserves the right to make amendments to this plan if required to safeguard public amenity and the reasonable access requirements of the Leisure Centre and for the avoidance of doubt in the event of the Council making any such amendment the Owner shall comply with the Plan in its amended form.
[This puts it beyond all doubt that the Council has a right to impose its decisions as to what is needed to protect the Paramount Objective defined in clause 2.20 of this Sup s106]
See also in particular:
Schedule 3 Agreed Permanent Access Plan
Schedule 4 Agreed Pedestrian Access Plan
Schedule 6 The Traffic Marshalling Brief
Nick
Nick Harding
Dear Sarah Hayward and Mike Cooke
I took this video [16.1.2022 No longer readily available]. yesterday (Sunday 8.7.12) afternoon starting at the turning area outside the Talacre Sports Centre and ending at the junction of Prince of Wales Road. It is over 4 minutes long and I haven’t learnt how to edit so please don’t be put off by the seeming irrelevance of the early part.
I have been visiting the area for about 10 minutes every day since Dalby Street was closed. Although this is the worst example, similar situations are witnessed frequently.
The situation when the turning circle is completed (which should have happened before the new road was opened) will be that there will be a slight improvement.
If/when the building is occupied, the road will be about 5% wider which wouldn’t have made any difference to the situation filmed.
If/when the building is occupied, there is to be no marshal at the Prince of Wales Road junction where there are two at present. If you add a marshal to the one they have to have at the building, the service charges, already well above anything that you could sell a flat at, reaches absurd levels.
I make no criticism of the marshals. They have a difficult job and try their best.
Imagine the situation if several more cars had arrived during this time. And/or if there were an emergency?
Perhaps when I have cleaned it up and given it a sound track or commentary, I may distribute it to and beyond my mailing list but in the meantime wanted to rush it to you. A link will probably go onto the www.savetalacre.co.uk web site.
Sorry for the staccato nature of this, it may sound rude – if so, that was not intended.
July 8, 2012 Killer video [16.1.2022. No longer readily available]
Regards
Nick
Further to your e-mail below addressed to Andrew Maughan, Borough Solicitor, Mr Maughan has asked I respond on his behalf.
However, given the past history of communications, neither Mr Maughan not other Council officers are willing to enter into correspondence with you on this matter.
Thank you for your cooperation.
Aidan Brookes
Principal Lawyer
Dear Julie Baum
The e-mail below refers to “your e-mail below” but there was no e-mail below (hope that makes sense).
I would be grateful if you would resend it so that it is complete
Regards
Nick Harding
Dear Mr Harding
Further to your e-mail below addressed to Andrew Maughan , Borough Solicitor, Mr Maughan has asked I respond on his behalf.
However given the past history of communications, neither Mr Maughan nor other Council officers are willing to enter into correspondence with you on this matter
Thank you for your cooperation
Aidan Brookes
Principal Lawyer
Thanks
Dear Andrew Maughan
I have now established that the Supplementary s106 and re-executed s106s for this development have at last been registered at the Land Registry and have scrutinised them.
Because of the importance of the sup s106, I have put what follows onto the Latest News page of www.savetalacre.co.uk. It is obviously an amateur effort and I have included a clumsily worded health warning – not least because the developer has in the past threatened me.
What I have omitted because they seem pedantic in the context, are the following in case they are of interest:
1. The drawing referred to in clause 2.12 of the Re-executed s106 bears no resemblance to the Plan X drawing provided. It was and is clearly an error. I pointed this out in two FoI requests but Camden, in its wisdom, decreed that they and five other requests were “vexatious”.
2. The date of the planning consent letter is wrongly shown as 10.1.2005 when it should be 10.1.2006. Usually that has been changed in longhand, but not in the versions on the Camden web site or the Land Registry. I mention this for completeness – I can’t imagine it being important.
In view of your department’s unwillingness to respond to what I have sent in the past, I am not expecting anything of substance in reply. I can only hope that this gets read and any relevant action is taken..
THIS IS WHAT IS ON THE LATEST NEWS PAGE OF WWW.SAVETALACRE.CO.UK
“Saturday 4 August 2012 Update
This follows our update of that of 27 July. We have now received from HM land registry copies of the documents which should have been registered there by the developer in October 2008, following the signature of the Supplementary s106 and Re-executed s106 agreements. They reached the Land Registry around 19th July 2012.
Unlike most s106 agreements, this Supplementary s106 agreement contains conditions which we believe are hugely important for anyone contemplating buying a lease of one of the 36 private flats (eg adding £,000s to annual service charges) and for others who have what is termed “an interest in the land”. Hence the detail provided here. What follows is not written by a lawyer and, of course, is no substitute for the due diligence work usually carried out by a buyer’s solicitor shortly before completion. What we hope is that no purchaser will reach a late stage in his decision making without being aware of what he is potentially taking on.
Any member of the public can obtain copies of these agreements by completing Form OC2 and paying a total of £12 for which you can ask for any or all of the documents referred to on the Land Registry site for NGL637463 by ordinary mail (snailmail) – usually arriving within three days in the UK. The completed form needs to be sent to HM Land Registry, Croydon Office, Trafalgar House, 1 Bedford Park, Croydon CR0 2AQ. To find out what documents are available, a search of NGL637463 on the web check site with payment of £4 provides an extract of what is on the Land Registry and available. An extract at 19.7.12 can be found as an attachment at the bottom of this page ("19.7.12. NGL637463-1.pdf").
Our request for these new documents has produced basically what we show in attachments at the bottom of the Planning Agreement page of this site. In addition, the Memorandum and Articles of Association of Cornwall Developments Ltd (reg. In the British Virgin Islands) is provided by the Land Registry. Unlike in the version on our Planning Agreement page, the drawings for both agreements were not collated in the version sent from the Land Registry though the meaning is clear enough in the copies we received.”
Nick
Nick Harding
Dear Mr Harding
I have been passed your e-mail of 31 August 2012 by the Borough Solicitor .
As you are aware a decision has been made that the Council will not enter into any communication with yourself in relation to the Dalby Street Scheme and you were declared a vexatious correspondent for freedom of information purposes on 25 January 2010 in relation to the matter.
That being the case the Council will not be responding to your e-mail.
For the avoidance of doubt please note
(i) any correspondence between yourselves and any third party is entirely a matter for yourself and the Council does not wish you to forward it any such correspondence. However given the nature of the correspondence we would suggest that if you wish to contest the matter you seek independent legal advice.
(ii) the Council will not (as you may be suggesting in your e-mail) provide you with what would amount to any form of legal advice on the matter.
I trust this clarifies the situation
Aidan Brookes
Principal Lawyer
Dear XXX,
In response to your e-mail of the 30th September 2012, I have been informed that "The area occupied by the developer beyond the area of the licence referred to has been occupied without the Council’s permission. The developer has been instructed to clear it and this is currently on-going."
I trust that this answers your query.
Kind regards
Michael Warby
Access to Information Officer - FOI & DPA
fyi
Regards
Peter Cuming
Dear Mike,
Exactly a month ago, I was informed thus that the "Occupied Territories" is being vacated - it was cleared by 31st Oct, ( 4 weeks later) since when it has been re-occupied! Do we need to get outside assistance for the people of Camden to enjoy their own facilities? Today (Sunday) the disabled who used to have access to 9 spaces had NOTHING. I have learned from Councillors that your forte is HR- can we have a posse of tough folk to deal with this issue please? The developer seems to relish ignoring the Council's instructions and this afternoon has been erecting an array of scaffolding on the above Camden's land. Camden's newsletter on this project is now filed under the heading "Fiction". The matter is no joke and needs urgent attention. Many thanks Peter Cuming
Dear Mr Cuming
Thank you for your emails to myself and David Tullis regarding the development on the former Dalby Street. I apologise for the delay replying.
The paving to the disabled parking area was completed and the area was fully cleared on 6 November. It has been open to the public since then.
The scaffolding you refer to along the park elevation of the building is licenced to sit within a 1.2m margin along the edge of the park, which is the area excluded for that purpose when the rest of the park was made a Town Green. The developer constructed a concrete beam outside that 1.2m margin in error and was instructed to remove it, which he agreed to do and was removed the following weekend. The temporary heras safety fencing the developer had erected some 4m into the park was removed by the developer when he was asked about its need, as he did not plan to erect the remaining scaffolding for another two weeks or so. However, it was a condition of the licence that safety fencing was used when the scaffolding was erected, to ensure that the public enjoying the park are adequately protected from the scaffolder’s activities. Now erected, the scaffolding and the protective fencing at its base all sits within the 1.2m margin.
The extension of the scaffold on this elevation, which sits alongside the disabled parking area, is wholly within the land owned by the developer and as such requires no licence. Its presence is in accordance with what is expected under the provisions of the Temporary Access Plan in the S106 Agreement.
If you have any further queries regarding this matter they should be addressed to David Jenkins, who is the lead officer. I should perhaps explain that, although nominated as the lead officer, Mr Jenkins is not in a position to make decisions on every aspect of the developer’s activities and issues surrounding the development.
However, he is the first point of contact and will act on issues that are within his control. He will also ensure that any other issues are referred to the correct section within the council for appropriate action to be taken where necessary.
Yours sincerely
Message sent on behalf of Haverstock Ward Councillors by Leader of the Liberal Democrat Group Keith Moffitt
The issues surrounding planning and enforcement of the "Prince's Park" development at Dalby Street, Talacre Town Green continue to give rise to a great deal of concern to local residents. This has recently gained the oxygen of borough wide publicity by becoming a campaigning issue for the Camden New Journal. In that local paper in the last month there have been a number of letters, John Gulliver columns and editorials.
The result is damage to general confidence about Camden's planning and enforcement processes and growing suspicion of a cover-up.
We write as the Haverstock ward councillors to ask you to address these concerns directly by immediately instigating a truly independent investigation into matters surrounding Prince's Park. This should include:
1 Evaluation of the decision not to pursue any enforcement having been based on an after-the-fact plan that was never placed in the public domain and, apparently, never scrutinised by any planning officer. In the circumstances of the emphasis placed on pedestrian sight lines at the public inquiry, the applicant was surely obliged to highlight any such material change.
2 The circumstances surrounding Mr Nick Harding’s being officially declared as “vexatious” despite his polite vigilance on the community’s behalf and outstanding personal contribution.
3 In a location used daily by hundreds of children each day, why health and safety and delivery and construction practice infractions have repeatedly been condoned with no apparent enforcement action.
4 Why Counsel’s opinion was denied to the ward councillors despite repeated requests.
Submitted by and on behalf of
Councillors Rahel Bokth, Jill Fraser and Matt Sanders
Dear Mr Brookes
I attach a letter dated today (1.8.13) delivered to the Town Hall this afternoon.
Regards, Nick Harding
Mr Aiden Brookes
Legal Services
London Borough of Camden
Town Hall
Judd Street
London WC1H 9LP
cc. Mike Cooke, Chief Executive
1 August 2013
Dear Mr Brookes
Proposed Claim for Judicial Review
Re: Dalby Street Planning Approvals related to 4 Y shaped columns
I acknowledge receipt of Camden’s response of 24 July 2013 (CLS/Aiden Brookes) to my “letter before claim” of 1 July 2013.
My letter was written in accordance with the Ministry of Justice’s Pre-Action Protocol for Judicial Review. Therefore it included (a) a section for “Details of any information sought” (in which I itemized six pieces of information) and (b) a section for “Details of documents relevant and necessary”.
In your response, you have sent me pdf versions of many of the items in (b), pointing out that I already have them as they are on my website. In view of your reference to my being “on the Council’s vexatious and repetitious list” in the context of your sending me these documents, I would like to point out that I did not request them. Had I done so, it might indeed have appeared vexatious and/or repetitious.
I note that you have been unable to locate the response to Peter Cuming’s FoI request where very precise details of the consented positions of the Y-Columns were given, including that the columns would be 0.2m from the park fence. There seems no point in me forwarding a copy of this to you because you rightly say it is on my website. However, I am alarmed that such an important document should not be known to you, if that be the case.
Since you are unwilling to provide me with the brief to Camden’s counsel, I can only surmise that he did not receive this and perhaps other relevant documents although he opined that it was a minor matter by saying the building had not been constructed STRICTLY in accordance with the Planning Permission and the four columns were constructed otherwise than as PRECISELY permitted [my caps].
With regard to the six items I did request, the only one you have sent is the Planning Contravention Notice (undated but known by me to have been issued on 18.3.13). The situation with the other five appears to be:
· Leading Counsel’s opinion from Morag Ellis QC
You have treated this as an FoI request and stated that “on balance the public interest is better served by withholding this information”
· All correspondence between yourself and Mark Beard, Camden’s Counsel including your brief to him, on this matter.
You have treated this as an FoI request and stated that “on balance the public interest is better served by withholding this information”
· Correspondence with the Members Briefing Panel in addition to the Officer Delegated Report of 16.2.12 which refers to the decision being made by “nominated members on Monday 16.4.12
You have ignored this request
· Any other information upon which you relied when deciding to support the developers claim that its application 2012/0151/P was valid in respect of the position of these columns
You have made no reference to this request
· Correspondence with the developer, his associates and advisors since you became aware of the changed position of the columns
You have ignored this request
You have provided the link to the Camden site where the supplementary s106 agreement can be found and note that I have referred to it on my website. I rely as others I am sure do on the pdf version which currently is on both www.savetalacre.co.uk and www.talacrefacts.org.uk since the link you give to the Camden site provides a web page where you have to join up the contents of over 11 different links and then extract content which is not part of that important document.
I just hope my joined up version is accurate. Very recent information I have gained shows that those who have committed to buy leases, are informed in the leases that their service charges will include for “employing such people that the landlord or their managing agents consider appropriate in general and specifically as are required for the suitable marshalling of the private road on the Estate”. (P41) 7.3.16. This does not reflect what the supplemental s106 says and it is rather important for buyers to be properly informed at an early stage and for Camden residents to be confident that its Council will be able to enforce the relevant monitoring clauses. Therefore, I hope you will either confirm the accuracy of what is on my websites or change the content of the Camden site so the supplemental s106 is in one clearly defined link.
In case it becomes relevant, I would like to point out that in two separate paragraphs, you have implied that the opinion of Camden’s Counsel was obtained first whereas the order of events was that the opinion of the developer’s Leading Counsel (Ms Ellis) was received and then sent to Camden’s Counsel (Mr Beard) presumably with your brief, for comment. Hence Ms Ellis’s opinion and your brief and correspondence is relevant to establishing how Camden came to carry out its volte face.
I also note that the developer (Cornwall Overseas Development Ltd) have been copied into yours of 24.7.13 so presumably have Mark Beard’s opinion, if they didn’t have it before.
Now on a matter of fact which can readily be checked by anyone visiting the footpath
You say
“In any event the position of the Y columns does not cause any material planning detriment because (i) positioning of the columns still allows uninterrupted views from the road to the sports centre and does not affect pedestrian safety along this footpath (ii) the columns themselves are not wide enough to hide behind and they are well spaced apart (iii) the footpath is still wide enough to allow unimpeded passage of pedestrians, wheelchairs etc and there are also CCTV cameras along the footpath to ensure public safety.”
(i) and (ii) of the above are both simply not true and the situation can easily be checked. These photos taken on 16.2.13 go some way to demonstrate this. This is not, in spite of what you say, a minor change which “does not cause any material planning detriment”. The justification for the planning approval and for the stopping up of Dalby Street was that there would be the conditions set out in the Pedestrian Access Plan of the s106 agreement, Hence the Councillor’s question and Mr Cuming’s FoI request to establish beyond any doubt, what was consented.
Yours sincerely
Nick Harding
www.savetalacre.co.uk