Agenda item

To consider a call-in of the Cabinet’s Decision on ‘Release of Restrictive Covenants’ (C-018-2015/16). The decision was taken at the Cabinet meeting held on 05 November 2015.

 

Attached is a covering report, the call-in sheet, the public Cabinet report, extract from the Cabinet decision sheet and a copy of the Call-in rules.

 

 

The Chairman welcomed the participants for the Call-in, the relevant Portfolio Holder, Councillor J Philip and the two lead members who initiated the call-in, Councillors Chris Pond and H Kaufman. Also in attendance was Brian Page, the interim Principal of Epping Forest College; County Councillor Ray Gooding, the ECC Cabinet Member for Education and Lifelong Learning and Mark Pincombe the ECC School Organisation Officer.

 

The Committee considered the call-in of the Cabinet’s decision (report C-018-2015/16) taken on 5 November 2015 regarding the release of restrictive covenants on land at Epping Forest College, Loughton. The decision being called in was:

 

(1)        That a Deed of Release of the 1952 and 1955 Covenants be issued by the Council, consistent with the previous Deeds of Release on the land at Epping Forest College, on the  following basis:

 

(a)        A Deed of Release of the 1952 and 1955 Covenants consistent with the previous deeds of release is executed by the Council and is held in escrow pending written confirmation from the College’s Solicitors to the Council that:

 

            (i)         the College’s application for [outline] planning permission for the      development of its new Sports, Health and Well-Being facility for the benefit of the College’s students and the wider community has been submitted to the            Council; and

 

            (ii)        Contracts for the College’s sale of the Middle Site and part of the Playing Fields for residential development, conditional upon execution of such Deed of Release of the 1952 and 1955 Covenants, have been signed and are held in escrow pending execution and delivery of the said Deed of Release; and

 

(2)        That the pre-emption rights of the Council not be exercised on the land.

 

 

The Call-in was based on the following premises, that:

 

1)         The covenants were imposed by the London County Council to protect an adequate supply of land for educational and NHS use in the vicinity of the residential development they had undertaken.

2)         That need remains valid today.

3)         ECC projections of rising 5s, plus the factors of extensive EFDC council house building and of continuing in-migration, imply a new school will be needed in 7-10 years.

4)         There is no suitable spare land in Loughton on which a new school could be built.

5)         Therefore this land, use of which was restricted for the needs of the then LEA (and NHS), should continue to be protected by covenant, for its original purpose.

 

The lead member of the call-in, Councillor Chris Pond was asked to open the discussion. He noted that the covenants were applied by the London County Council (LCC) on completion of the Debden Housing Estate to provide educational facilities. Later the land was transferred to the further education college. The covenant was transferred to EFDC and was still valid for educational facilities. He also noted that the financial compensation would not be sufficient.

 

The education projection of the population by the ONS suggested that no new places were to be needed in the next 10 years. But this did not take into account the Local Plan and the need for new houses. ECC had responded to the expanding need for places in Loughton, but now there was no more room left to expand. County Councillor Val Metcalfe and myself have been worried about this situation and had asked Councillor Gooding to visit Loughton. He did say that the county was not in a position to buy the land immediately but he would like to protect it for the future.  The site on the field was of 11 acres and would be able to provide a new sports centre, a valuable asset for the community, as well as a new primary school which would take up about 3 of the 11 acres. Pertinent to protect at least a part of it for the purpose it was designated for.

 

Therefore I am asking that this be referred back to the Portfolio Holder for further consideration with a view to adding into the conditions after the words: “and the wider community” something like “taking into account the need to protect the suitable area of land for establishing a new school to the requirements of the education authority”.

 

I would also point out that I think that the proposed condition as it is presently drafted maybe legally defective, in that it would permit the college, having secured planning permission for a new sports facility then not to proceed with it and to sell the land on without any protection from the covenant. As a grant of planning permission did not always compel the applicant to build as authorised. Although, I am not saying that Epping Forest College was acting in bad faith; but we know that colleges are subject to the whims of government policy and their finances are not always ensured.

 

Councillor Kaufman added that part of the site was in his ward and provided a local amenity.  There were also pressures on school places in that area. All the land was urban open space as defined by EFDC’s Local Plan. It would be a departure from Council policy to open up open space just for housing. I suggest that we have some local research commissioned by the Council to look at the local plan. Until we have a new Local Plan we would not know how many houses were to be built and therefore how many school places were to be needed. He also noted that no local consultation had taken place; neither the ward members nor the local population had been consulted. Other authorities having a similar case had decided to consult their local residents. On a site like this, including blocks of flats you would be looking at about 200 to 250 units being built. Where were these people to put their kids? There was no provision for education. We should reserve 3 acres from the covenant for the provision of a school.

 

Councillor Kaufman also went on to note that the value of the land differed substantially whether it had a covenant or not attached to it.

 

Finally, in his opinion, he did not believe that EFDC had undertaken its statutory duty of obtaining ‘best value’ for this council.

 

He would like O&S to send it back to the Cabinet for further consultation.

 

The responsible Portfolio Holder, Councillor Philip, was then asked to make his opening statement. He thanked the councillors for calling in this decision and noted that it was interesting that it was only for educational facilities and not for health facilities which were equally valid.

 

However, he thought that Councillor Pond’s legal points were not valid. He had asked officers to consult ECC about this on a number of occasions asking them specifically to confirm if they wanted this site for educational purposes. It was not until we had confirmation from the County Council that they did not want this site that he took it to the Cabinet.

 

He noted that for a number of reasons we did not have our Local Plan in place at present. However we know that we are not looking to have the Local Plan adopted until 2017/18.

 

The Council received a request from Epping Forest College to release the Covenant and had to process that request in a reasonable timescale. So, waiting for another two years to know what our Local Plan was going to look like would not be a timely response.

 

Councillor Philip noted that it was not his job to address the provision of primary educational needs for the area.  Officers had asked Essex County Council’s Education department and they said that they did not want it. 

 

He would not want to say that Epping Forest College would not line up with the conditions that we had put on. We had seen on previous occasions that when the Council had put on conditions on the release of covenants that Epping Forest College had followed those.  He took legal advice on whether the conditions we were putting on were appropriate and they were.

 

Looking at the issue of local input into this; they had discussed this fully at Cabinet, which was a perfect opportunity for local ward members to put forward their points of view.

 

He was surprised to hear Councillor Kaufman say that that the average in this district were 18 to 20 dwellings per hectare. It was not.

 

The area of release was requested for the whole site. It would give an opportunity for the college to generate sufficient revenue to put in place the sports facilities that have been identified by everyone as delivering significant benefit to the area. Not just Loughton but also the surrounding areas.

 

The difference in value as Councillor Kaufman referred to has to be taken back to the difference in value to when the covenant was put in place in 1952. Which was in the order of £10k. The cost of taking this to the Land Tribunal would be significantly in excess of that.

 

This was a decision that we looked at in great depth, this was a decision in which we asked the education authority whether they wanted the land and they did not. Given that we had no option but to say that it made sense to release the covenants.

 

We have looked at this in great depth, it was a sensible decision and I ask you to keep the decision as is.

 

The Chairman asked if any of the invited guests had any comments to make at this point.

 

Mr B Page the interim Principal of Epping Forest College emphasised that the proposed sports centre would be for Community use as well as college use. They were seeking to replace the leisure centre that was there. The sports centre would be for their students use and for the community. They were also seeking to dispose of their surplus land and the derelict building there now using the capital receipts to fund the development and he added that their financial base was very strong.

 

If the release of the covenants did not go ahead then their plans would have to be slimmed down.

 

County Councillor R Gooding, the ECC Cabinet member for Education and Lifelong learning thanked Councillor Pond for his summation of their discussions. He noted that at present the ECC was not in a position to purchase this land to bank for future use. He was confident that we did not need this land for school development in the next 10 years. He would like to hedge his bets as this may be an issue in 15 to 20 years time, but the covenant was in the District Council’s control now. In terms of overall pupil numbers this was not an issue for new housing.

 

In summary the ECC did not need new places for the next 10 years and it was up to EFDC what they did with the covenant.

 

Mr M Pincombe, the ECC School Organisation Officer noted that the situation had been well described. As for the forecast for school places for the next 10 years; they were confident for the first 5 years as it was based on children living in the area; but the following 5 years they were less confident as that was based on trends and ONS data. But statically they are fairly accurate on a long term basis. They had looked at the forecast over two areas, Loughton and Buckhurst Hill. They would require additional places over the next 10 years but we already have that planned. It takes into account housing that we are aware off and planning permission in these areas. But obviously it did not take into account new housing. But for the figures that we have we are confident that we could accommodate them certainly from 2017.

 

Finally to state again, they are just forecasts; I can’t say we will not require any additional places in Loughton primary schools in the next 10 years but what I cannot do is demonstrate with evidence that there was a need for additional places in the next 10 years in the area.

 

The meeting was then opened to general discussion. Councillor Surtees asked if consent would be held off until planning permission was granted or had been applied for; when we have some clarification. Councillor Philip said it would be for an application for outline planning permission. 

 

Councillor Surtees went on to say that for matters as important as this it was not satisfactory just to involve the local councillors, it was more appropriate to have wider public consultation.

 

Councillor Mohindra noted that he was a Chigwell Councillor and was interested in what the Essex Officer had to say about the provision of places in Buckhurst Hill and Loughton but not necessarily Chigwell. They had issues with Chigwell Primary School and he had concerns about the provision of schooling in that urban triangle.

 

He thought the proposal of part of the site not being released was an interesting one. He did not agree with the other sentiments being put forward about consultations especially as we have had the college at our meetings and we have discussed potential future plans. He had reservations and if the Portfolio Holder would like to revisit part of the decision I would be agreeable to that.

 

Councillor Girling remarked that he had a young family who may be affected by this and so had people that he knew. They were not being listened to. They could not get school places in Loughton and had to go to Chigwell. Many had to travel over the district and you may have people from Epping having to go to Loughton or Chigwell schools. There was a need to involve families over this as there were no local schools for local families.

 

The Local Plan does not talk about amenities needed, but school places were a major problem. For my information I would like to know if the ECC own all the school sites; do educational trusts and independent schools have a say if the wanted this land? 

 

I have spoken to eight local head teachers in Loughton who all said they could not take any more children into their schools. Population statistics should relate to the whole district and not just to Loughton. And if ECC cannot afford it, could another education establishment take this on.

 

County Councillor Gooding accepted his concerns. In the issue around preference for school places the County had less input and control as more schools are becoming academies and become more directly related to the Department of Education. Parental preferences across the county can mean you might not go to a local school. So all good schools are over subscribed and have waiting lists.  Also, we cannot have an over supply of school places. It was a difficult process matching supply with demand. The DFE are the only other education authority likely to make speculative purchases and I can’t speak for them.

 

Councillor Wixley was aware that in the past schools closed down and then had to be replaced. Could we have a compromise on this and set aside some local land in case a primary school was needed. Seems to me an air of caution should be adopted and some land set by for the eventuality that we would need an extra primary school.

 

Mr Page replied that the College had been working with some property advisors, giving them some advice on figures and he would say that unless we can dispose of all the area that we do not require it would become unviable and therefore needed release of the covenant. So even keeping part of it in reserve would still have significant impact on our model for the scheme we would like for the community.

 

The lead member responsible for the call-in and the Portfolio Holder were asked to sum up the debate.

 

Councillor Pond in summation asked that the decision be referred back to the Portfolio Holder for:

·         Correction of the loopholes when the covenant was discharged on just a planning application;

·         To allow for consultation of local residents as nothing matters more to people with children than their education; and

·         That the question of the reservation of part of the site be pursued as it had not been considered before. We heard what Mr Page said but we need to see those figures.

 

Finally I ask the Committee to refer the decision back to the Portfolio Holder for reconsideration.

 

Councillor Philip thanked Councillor Pond. He wanted to address the key points:

·         The provision of sports facilities was something that we as a council want to happen. Only EF College could do this as they own the land;

·         Trends for school places were driven by ONS data. The same data we use for forecasting housing figures and as part of our Local Plan; and the evidence of ONS figures are accepted by Planning enquiries and I would suggest Land Tribunals;

·         He understood Councillor Girling’s passion for young families and it was important. However, we must look at this on the basis of the evidence that we have. It’s not a guess, we used the same figures that the County Council used;

·         I do not agree with the call for local consultation, we can’t consult on every local decision the Cabinet takes, we have local councillors who can partake in the discussion at Cabinet meetings. And, who should we consult, families, people who propose to have families in the future, or all residents?

 

We were asked by the college to release these covenants, not just on part of the site; and we have looked carefully at this and our research has led us to believe it would not be needed for the next ten years for education needs. Given that was the case I believe we made the right decision to release the covenants, we made the right decision at Cabinet and I ask you to endorse that decision.

 

 

RESOLVED:

 

That the Overview and Scrutiny Committee confirmed the original decision of the Cabinet (C-018-2015/16) regarding the release of restrictive covenants on land at Epping Forest College, Loughton.