by Cllr Karen Chilvers on December 2, 2012
This weekend, 13 councillors including the entire opposition and two administration councillors put their differences aside to ask for an official legal opinion on William Hunter Way.
The entire press release and letter is here:
Thirteen Brentwood councillors have put political differences aside and joined forces on this important issue as individual members to ensure that Brentwood’s residents are not short changed on the proposed William Hunter Way ‘cinema’ deal. This is also part of a collaborative campaign to persuade the leadership at Brentwood Council to come clean and to begin to walk the walk of openness and transparency in their dealings in order that their actions start to match their rhetoric in this regard.
Since the forced debate of no debate in the Brentwood Council Chamber on 26th November, many members of the local authority remain unconvinced by the position being taken by the current council administration with regard to the expiry date of the deal relating to the proposed William Hunter Way development.
The William Hunter Way scheme has become a protracted farce having been first agreed by majority of members back in June 2007. Over five years later and nearly four years subsequent to planning approval being granted, the project has stalled.
The council’s administration has categorically failed to deliver on its promise to provide a cinema for Brentwood residents.
As a consequence, the developer has now explained to the council that they wish to renegotiate the financial deal so that it better suits them in the current economic climate. That is inevitably likely to be to the detriment of Brentwood’s council tax payers. We as undersigned view this as unacceptable.
Within the original deal is a ‘long stop date’ which allows for either council or developer, Stockland Limited, to walk away from the deal without liability to one another.
The 2007 documentation, recently retrieved from the archives at the request of the concerned members below, specifically states that the agreement between the parties ends on December 6th 2010. However, this was extended by 12 months at a meeting of full council in October 2011. This, at the request of the administration whom stated at the time that construction would, at last, begin ‘by mid 2012′. As is plain to everyone, there remains a distinct lack of any construction activity at the proposed site.
There is an additional proviso that concedes a further 12 months extension in the event that certain land transfer issues have not been met. Hence the actual longstop date now becomes December 6th 2012 as those issues still remain unresolved.
The legal deed of variation that amends and extends the 2007 Development Agreement, further to the October 2011 resolution, has now been scrutinised by the undersigned members. But only after having to cajole the council into allowing us to view the paperwork in a private meeting under supervision from the council’s officers. This is on the back of repeated refusals to provide any other information to councillors on this subject and the scandalous FOI responses that now comprise around 500 blank, redacted pages and as widely reported in the national press and broadcast media.
To members’ surprise and disdain, the deed of variation provides for an extension to the principle 2010 long stop date of 24 months, not the 12 months that councillors agreed and that is indisputably minuted as such in the council’s records. (October 19th 2011 full council minute number 288 so refers).
However, the council still insists on arguing that one year is really two years in order to play for even further time. Therefore the council are attempting to state that the longstop date is now December 6th 2013.
Until November this year, the council’s own formal paperwork noted the longstop date as December 6th 2012. The undersigned council members are unsure as to how the foregoing misrepresentation as described, can possibly hold true.
Time has run out for the council and its top table. Or at least it does on 7th December.
The longstop date of 6th December 2013 that the council now contends, is spurious and entirely disputed. Therefore the undersigned members of the attached letter insist that the council’s managing director seek properly independent legal advice via counsel to determine the truth to this particular and important aspect of the continuing debacle.
Once the long stop date can be determined as just a few days hence, the members named in this letter seek to lobby the Conservative administration to do what should have been done a long time ago and that is to go out to competitive tender in respect of this proposed scheme so as to ensure the absolute best value for the tax payer rather than just the most ‘convenient’ deal for the select few within Brentwood Council’s leadership.
The letter, below, is signed by all eight Liberal Demcrat councillors, two Conservative councilors, the Labour group and the independent councillor:
To: Ms Alison Crowe, Managing Director, Brentwood Borough Council, Town Hall. Ingrave Road, Brentwood CM15 8AY
1st December 2012
Further to the extraordinary council meeting of the 26th November, it appears that there is still disagreement between some members of the authority and the administration and officers with regard to the interpretation that is now, suddenly, being advanced in respect of the correct longstop date within the 2007 Development Agreement and as extended by the October 2011 council resolution.
We are aware that the council conceded in various items of documentation that the correct date is December 6th 2012. Subsequent to this, the agreement provides for council and developer to ‘walk away’ without liability to one another.
The arithmetic as far as we can see is straightforward. The original longstop date as laid down within the Development Agreement is set as three years from the date of signing of the Development Agreement.
This would necessitate that, given that signature was effected in December 2007, the natural long stop date is December 2010.
A caveat within the Development Agreement allows for the long stop date to slip by 12 months if the land transfers have not been concluded in respect of the Barclays and Sainsburys involvements. At the time of the expiry of the three year anniversary as above, this as now, had not taken place and therefore it follows that the caveat was exercised at that point. The new, extended long stop date thus became December 2011.
This holds true on the further basis that the resolution to extend was made in anticipation of this in October 2011.
At the October 2011 meeting of full council, members agreed to extend the long stop date by a further 12 months. The narrative within the minutes (288 refers) specifically eludes to this action necessitating that ’12 months would seem appropriate to take account of this and accommodate the intended start time of mid 2012.’
From this it is further clear that the intended long stop date provided for within the Development Agreement was and is December 2012.
There is no further provision for an additional 12 months to be achieved.
As a consequence, our belief is that the current contract between this Council and Stockland is null and void from 7thDecember 2012.
We understand that you will dispute this as it is evident that the council’s position has altered to one that seeks to provide a further 12 month breathing space and this was demonstrated by the email that was sent by Clive Power to the Brentwood Gazette in error recently and which purported to ‘deal with’ the question of the altered long stop date internally.
The solicitors representing the administration’s views will also no doubt continue to say that they interpret that the concluding date is the latter of December 2013.
In order to ensure that this particularly significant aspect of the William Hunter Way redevelopment scheme is clarified, we hereby request that this council fund the instruction of independent counsel to provide opinion on this issue. We will wish to be involved with the choosing of the lawyer in question.
This will necessitate that counsel see sight of all relevant documentation so relating in order that they are able to properly execute their instructions.
Alison, we make this request on behalf of the residents that we represent and that have a right to expect their elected councillors to do what is in their best interests and in full knowledge of all of the facts.
We do hope that you will ensure that our request is actioned in the spirit in which it is intended and without recourse to submission of formal motions to council and such like.
Cllr Barry Aspinell
Cllr Ross Carter
Cllr Karen Chilvers
Cllr Graeme Clark
Cllr Vicky Davies
Cllr David Kendall
Cllr Mike Le Surf
Cllr William Lloyd
Cllr Julie Morrissey
Cllr Phil Mynott
Cllr Russell Quirk
Cllr Roger Keeble
Cllr James Sapwell