Explanation of Cabinet Decisions
Cabinet did not favour the ‘status quo’ option as this would be likely to mean that all of the existing administrative and enforcement challenges of the Scheme would remain. The Estate Management Scheme would continue to be managed by the planning department and Estate Management applications would continue to be dealt with by planning officers alongside their planning application caseload. The Estate Management Scheme would continue to be funded by a combination of planning application fees and Council Tax. The challenges associated with the different enforcement regimes for freehold and leasehold properties would remain.
Cabinet did not favour the ‘ Article 4 Direction’ option as there would be a number of risks associated with it. Only 16% of existing Estate Management Scheme residents favoured this option. Legal advice suggested that, given the low level of support, the Council would be unlikely to be successful in any attempt to vary/delete the Estate Management Scheme subsequent to the imposition of an Article 4 Direction and could even face legal challenge if it tried to do so.
Cabinet did not favour the ‘other administrator’ option as there was very little support for this and no-one came forward with any viable suggestions for which body or bodies this might be.
Cabinet felt that the introduction of an application fee for residents who live in properties within the Estate Management Scheme area is one which would deliver the greatest degree of fairness and quality to residents of the borough, although it is acknowledged that it will not deliver absolute fairness.
It would enable the creation of an Estate Management team to deal specifically with Estate Management applications and the enforcement and resolution of breaches of the Estate Management Scheme. It is acknowledged that the introduction of an application fee was not fully supported by respondents. However, an application fee is something that is common to many of the other places where such Schemes exist.
The introduction of an application fee would enable the Council to more fully resource a team, the sole objective of which would be to administer Estate Management applications and to investigate and resolve suspected breaches of the Estate Management Scheme. This outcome has been a core objective both of the review as well as residents of the town. Further, this option would maintain the status quo in respect of those properties which are within the Estate Management area, and required to make an application to the Council.
The preferred decisions mean that the Council accepts that it cannot change the Estate Management Scheme ‘pink’ area. This was defined when the Estate Management Scheme was created in 1972 and can only be changed by applying to the High Court Lands Tribunal.
The preferred decisions mean that the Council accepts that the ‘gap’ in the rules which apply to freehold and leasehold properties would remain. This may mean that some of the existing challenges, particularly in respect of the effective enforcement of the Estate Management Scheme would remain, most notably that freehold enforcement is tackled by negotiation, arbitration and Court action in accordance with the Estate Management Scheme Green Booklet and leasehold enforcement is tackled in accordance with the Law of Property Act 1925.
Estate Management applications are currently dealt with by planning officers and the administration of the Estate Management Scheme is funded by a combination of planning application fees and Council Tax. The introduction of Estate Management application fees would improve the current financial situation by ensuring that the administration and determination of Estate Management applications would be largely self-funded. The fee would also be used to undertake enforcement investigations and action against those who breach the Scheme.
Officers have sought legal advice in respect of the principle of introducing an application fee. This advice is clear in that the existing Scheme does deal specifically with the issue of fees and charges. Paragraph 10 of the Green Booklet Appendix permits recovery of a reasonable fee for the approval of such plans, elevations, sections and specifications as are necessary to support an application for consent under the Estate Management Scheme. It is noted however that there is no other provision for imposing, for example, an annual maintenance, monitoring or implementation fee. The legal advice goes on to express the clear view that, should the Council decide that the introduction of an application fee is the preferred option, then this should be subject to public consultation, as has been the previous custom and practice of the Council.
It is anticipated that an Estate Management team of two offices would provide sufficient capacity to deal with pre-application advice requests, the determination of applications and the investigation of breaches of the Estate Management Scheme, all of which would be eased by the existence of a comprehensive Estate Management Design Guide. The officers would have to deal with an average of 174 applications per year or 14 per month. This includes site visits, writing reports and defending appeals. Having regard to the straightforward nature of many of the applications that are received, this is not considered to be an unrealistic caseload. This will allow capacity for the investigation and resolution of suspected breaches of the Estate Management Scheme. The Estate Management team would continue to use the Planning Support team and MasterGov IT software to register applications, collect application fees, consult neighbours and other administrative tasks.
A risk of establishing an Estate Management team and applying a fee for Estate Management applications is that it raises public expectations in respect of Estate Management enforcement to an unachievable level. As will be discussed in the next section of this report, officers have sought to recommend a set of application fees which would cover a team of two officers but would also be realistic in the context of the type of applications that are being made to the Council.
Importantly, Estate Management applications would be determined entirely independently of any related planning applications.
Page updated: 20/05/2019