Members of the public, who attended Friday’s sitting (8^th February) of the Committee - that is looking into the involvement of the Braddan Parish Commissioners and their former Clerk, C S Lewin, to identify the extent that they may have caused or contributed to the plans abandonment - listened intently to the three witnesses as they tore the Department’s handling of the plan apart.

 

Local developer, Henry Kennaugh, whose company Baccarat has an ongoing formal complaint against the planning officer who compiled the plan, and the way the complaint has been handled, was the first to deliver a series of hammer blows to the process in which the DLGE conducted the review.

 

However, Committee Chairman, Speaker of the House of Keys, Steve Rodan, in what was possibly an inappropriate exchange during a public session, challenged Mr Kennaugh regarding the accuracy of a part of his written submission.

 

Mr Kennaugh pointed out that he had already made it clear that the submission, made in September 2007, had included a drafting error and that this had been corrected in the revised submission recently delivered to the Committee; and this had replaced the earlier submission. Therefore, he said it was totally wrong of Mr Rodan to raise this matter.

 

Mr Rodan asked if there were any more errors in Mr Kennaugh’s evidence; to which he replied, “If there are I am sure you will find them.” However, he noted that they had only been able to find one so far – and that had been corrected.

 

Mr Kennaugh said that his evidence showed that the DLGE lacked proper administration, management and governance in the plan’s preparation; something he said that was also evident to the Inspector during the strategic plan process.

 

He stated that the people involved in the review process were all experienced officers or public servants that should have known what they were doing and therefore had to be accountable for their actions.

 

He claimed personal opinions were being advanced ahead of expert evidence and that the Department did not produce any reports or surveys, to back up their proposals, which were independent, professional or reliable.

 

Instead, the planning officer, Sarah Corlett, and Braddan Clerk, Mr Lewin had managed to promote proposals that had suited their own personal agenda.

 

He pointed out that Miss Corlett had included her own property in an area proposed for development, without declaring an interest or removing herself from the process, and failed to inform the Department that she was aware that Mr Lewin had been, or was, the owner of a plot of land, in Mount Rule, suggested for development. She was therefore, conflicted from the outset of the review; and her belated removal was too late.

 

He said Mr Lewin had also failed to declare his interest – as would be expected of person in his position - in the sale of land, during the plan process, to a developer who, to Mr Lewin’s knowledge, stood to gain the most from the plan.

 

He was also critical of the role played by Director of Planning, Ian McCauley, who he said either didn’t understand or ignored Miss Corlett’s conflict, and the (former) Chief Executive for not having a suitable management structure that was capable of regulating compliance of proper procedure by officers.

 

He reminded the Committee of the Pilling Judgement which he said was the benchmark for judging the conduct of the Commissioners, Mr Lewin, Miss Corlett and Mr McCauley and any other public official involved in the review.

 

He also quoted passages from the Mount Murray Commission of Inquiry Report - regarding maladministration and the misconceived opinions that there was really little wrong with the systems of government - and said that the conclusions and recommendations had a considerable bearing of the Braddan Plan review process, and its failure, and invited the Committee to take this into account when conducting their investigation.

 

Committee member, Alex Downie MLC, suggested to Mr Kennaugh that he was alleging that the Department had produced a plan that was not fit for purpose.

 

Mr Kennaugh didn’t disagree, and said that the evidence to support a plan should be discussed in public and based on studies and not on personal opinions.

 

Mr Downie thought it was quite proper for the Department and the Commissioners to sit down and discuss what to put into the Issues and Options document before it was issued to the public for discussion.

 

Mr Kennaugh reminded the Committee that, unusually in this instance, it also involved the preparation and issuing of a questionnaire.

 

Mr Rodan pointed out that they were running short of time but allowed a few more questions.

 

Mr Karran MHK, the third member of the Committee, stated that Mr Kennaugh was an experienced developer and wondered if he had noted any difference with other plans.

 

Yes he had – the planning officer and Braddan Parish Commissioners had congratulated themselves on the way they had put the plan together.

 

Mr Rodan inquired of Mr Kennaugh what he considered to be professional judgment.

 

He replied in the negative. He said it wasn’t something that was not evidence based or without independent assessment; and it certainly wasn’t just personal opinion.

 

Mr Kennaugh stated that it had cost him £235,000 for specialists.

 

Mr Downie asserted that it was for Mr Kennaugh to prove that his land should be zoned not the Government.

 

Mr Kennaugh retorted that it was for Government to decide where was suitable for development, taking into account expert advice.

 Mr Downie responded by saying the Dept. of Transport would submit evidence on traffic issues.

“Yes - and Miss Corlett ignored it!” exclaimed Mr Kennaugh.

 

Mr Karran asked Mr Kennaugh why he thought his land was being treated differently to others.

He replied it was the letter Mr Rimington, the former Minister of the DLGE, had brought up in his evidence, from Miss Corlett to Mr Lewin, bolstering up the reasons to keep his land out of the plan.

Mr Rodan interjected that the planning officer took the plan to the Department and it had received political endorsement.

 

Mr Kennaugh came back with a rhetorical question, “Did the Department understand what it was being asked to approve?”

 

Mr Rodan wanted to know where Mr Kennaugh thought that the Department was supposed to get its planning advice.

 “Not from a junior planning officer” he stated; and especially if no proper evidence was produced.

Tony Pass, who was introduced by Mr Rodan as the Committee’s planning ‘advisor’, put it to Mr Kennaugh that he was suggesting the planning officer did not have a role to play.

 

Not so replied Mr Kennaugh. The planning officer should do the preparation, he conceded, but what they produce should travel up the chain of command to the Director, or another senior person, before it went to the Department. This included all the evidence that had been collected.

 

Mr Pass thought that was how the Department did things already; but perhaps not to Mr Kennaugh’s liking.

 

Mr Kennaugh said he followed best practice brandishing a document from among his papers on the desk.

 

A curt exchange of views then took place between Mr Kennaugh and Mr Rodan regarding planning Law and the part played by English planning Law in the Manx system; with Mr Rodan giving the impression that he thought English planning Law has no part to play in the Island which has its own Laws.

 

You are saying that the (Island’s) planning process is not up to the job, stated Mr Rodan.

 

“Yes your right” retorted a very sincere Mr Kennaugh.

 

Before Mr Kennaugh departed he pressed the Committee on being recalled to finish giving his evidence; claiming the time allowed had been far too short. However, an assurance this would be possible was not forthcoming.

 

Braddan Commissioner, Andrew Jessopp was then called to give his evidence.

 

He stated that he wished it recorded that the opinions he expressed, during the giving of his evidence, were his own and that they didn’t necessarily reflect the views of the Board of Braddan Parish Commissioners.

 

Mr Rodan said it was quite proper of Mr Jessopp to make that point.

 

Mr Jessopp began by reading out a prepared statement in which he described his concern, from a very early stage, as to how the DLGE was conducting the review of the Braddan and other local plans.

 

He stated that he had doubts about the integrity of the process from the moment the Issues and Options document was published; as it was clear the Department was trying to make amends for under provision of development land in Douglas and Onchan.

 

He had even attended the Laxey & Lonan Local Plan Inquiry to object to the inclusion, in that plan, that Braddan was a more appropriate location for additional housing.

 

He said he had thought in 2000 and 2001 that the review should stop, and that if the Department had listened to his and others rational and sensible arguments, that the process was flawed, they may not have needed to be here today.

 

However, the Department appeared unable to comprehend the problems they were creating for themselves; and pressed on as though they were immune to any errors of judgement or challenges to their authority.

Mr Jessopp claimed that the Braddan Commissioners had been allowed a special status during the review process which had disadvantaged other interested parties.

 

He said that when he became a Commissioner he had uncovered evidence which showed how this special status had unfairly influenced and helped shape the draft plan taken to the public inquiry.

 

The plan process is supposed to be a public process, he explained, but the Commissioners had adopted a different approach. This had entailed persuading the planning officer, in private meetings and correspondence, to make changes to the plan to suit their interests.

 

He thought the planning officer had been receptive to the approach and that as a result the strategy had been very successful.

 

Furthermore, he thought that the Chief Executive of the DLGE had been aware of what had been going on as correspondence made it difficult to believe otherwise.

 

Mr Jessopp explained he had thought that in the public interest these concerns should be brought to the attention of the Department, and out of courtesy informed the Braddan Board first.

 

He said the response was a warning, by the Clerk, of a potential breach of the confidentiality clause of the Local Government Act if he had the matter discussed in public, a vote of no confidence by the Board and the removal from external committees.

 

He stated that he had ignored the attempted intimidation and gone to the Chief Executive of the Department any way, but that he didn’t seem too interested; and in fact no formal investigation of his complaint was ever progressed.

 

However, he gave some credit to former DLGE Minister, John Rimington, who Mr Jessopp believed had, to some extent, incorporated the nature of his complaint into his own investigation.

Mr Jessopp said that when Mr Rimington had finally determined to withdraw the plan, although the Minister had stated in Tynwald the double perception of bias had contributed significantly to the decision, he believed to a small degree the nature of his complaint had also been a factor.

Mr Jessopp put to the Committee that his written submission identified two areas for them to investigate.

 

The first was the mismanagement of the administrative process, during the review, predominately within the DLGE; and the second the apparent ‘conflict of interest’ of several parties, most notably the one involving the former Braddan Clerk.

 

Mr Jessopp thought that the former was another failure of the DLGE to prevent the ‘corruption of the systems of Government’; and the latter had resulted in an understandable public perception of actual corruption in the sense of acting dishonestly for financial gain.

 

He said it was the job of the Committee to decide whether evidence existed to support either proposition, and if so what to do about it.

 

In concluding, he asked the Committee to try and establish why Mr Lewin had been so keen to recommend, to the Commissioners, to call for the Department to scrap the plan when the ‘McKinney Complaint’ was considered by the Commissioners in December 2004; yet, in total contrast, he had been so keen to avoid an investigation into the Commissioners’, and his role, in the plan process when the possibility of that arose in May 2005.

 

Mr Rodan thanked Mr Jessopp and during questioning, members of the Committee sought to draw Mr Jessopp into making judgements on the actions of several parties during the review process. On more than one occasion he responded by saying they needed to read his evidence, and the documents, and make up their own minds.

 

It was suggested to Mr Jessopp that as the Commissioners were the elected representatives of the area, it was right and proper for them to be involved in the formation of the plan; and to promote the interests of the electorate.

 

Mr Jessopp responded by giving an example of where the Board had ignored the views of the majority of residents and had instead made a deal with the DHSS to enable them to build houses on the Union Mills football field. The field the Commissioners had gained from the deal, for community facilities, was still that – a grass field.

 

Mr Jessopp also stated that the Board had been claiming in public, and to the Association of Braddan Residents, of which he had been a committee member, that they had no view on the plan.

However, the evidence he had seen suggested they had already made their mind up, as early October 1999, which bits of land they would or would not support in the plan. He said he had even seen a claim that they had achieved 90% of what the Board had wanted and couldn’t have done any more.

 

Mr Jessopp was questioned about Mr Lewin’s sale of land to Dandara and whether he agreed that in accordance with the Local Government Act there was no requirement for Mr Lewin to make a declaration.

 

Mr Jessopp agreed but said that Common Law also had to be taken in to consideration and that Deemster Corrin’s judgement in 1996 had set new standards for public officials.

 

He said Mr Lewin knew that his land ownership would create conflict issues and he should have made a declaration at the earliest opportunity. The Commissioners could then have made a decision whether to allow him to continue to be involved in the review.

 

Mr Jessopp said that a declaration had been made by Mr Lewin in respect of ‘Lewin Plant Hire’, which was contracting for Dandara at the business park.  A decision had been made, at least superficially, to remove Mr Lewin from any involvement in any planning applications to do with the business park.

 

So if the Commissioners thought there was a reason to remove Mr Lewin from having any involvement in advising on planning applications, why couldn’t they see that they would also need to remove him from any involvement in the Braddan Plan review.

 

Mr Jessopp claimed that documents, relating to these issues, had ‘disappeared’ from the Commissioners’ files and that Minutes of meetings had, only in the last few days, come to light that had never been put into the Minute book.

 

Mr Karran quizzed Mr Jessopp about the problems he had faced during his time as a Commissioner, and whether he had ever felt threatened as other people had been.

 

Mr Jessopp said that he had received threats of litigation but no action had resulted; and added that, in the past, there had been an atmosphere of fear and intimidation but that situation had now improved.

 

Further questions followed but Mr Rodan said they were straying off the Committee’s remit.

 

Mr Jessopp was visibly annoyed by this intervention and reacted by forcibly informing the Chairman he misunderstood the Committee’s remit. He told Mr Rodan that the Committee needed to identify the extent the Commissioners and Clerk contributed to the plan’s termination. That meant they would have to determine whether it was, for example, 10% or 50% and, if it was say 50%, he was sure, when he reported to Tynwald, his colleagues would want to know who contributed the other 50%.

 

Mr Jessopp also made it clear that in his opinion, despite the former Chief Executive of the DLGE claiming that he had introduced a new management structure, the internal regulation of the Department was woeful and this had significantly contributed to the problems with the plan; in effect the Department was not fit for purpose.

 

In winding up his contribution Mr Jessopp commented that there had been a difference in the way bits of land were treated by the Commissioners during the review.

 

He said that on the face of it, supporting the provision of a golf course, on Middle Farm, had seemed to be of benefit to the residents; by keeping the area free from development. However, Mr Jessopp sarcastically noted that the area was already starting to resemble an industrial estate.

 

And promoting the building of a new civic amenity site next to the incinerator also seemed like a sensible idea. The only thing was, he said, Dandara paid £50,000 per acre for the land but the Commissioners were going to pay £300,000 per acre for it.

 

Mr McKinney was the third witness called to give evidence and he delivered a highly entertaining and damning submission to the Committee.

 

Clearly irritated by the revelations he had heard from the previous two witnesses, which had confirmed some of his worst fears about the process, he set about his demolition of the Department, and the way it had conducted the review, with gusto.

 

He pointed out that it was almost 5 years ago that he had, in a detailed non-site specific submission to the Braddan Plan Inquiry, dared to point out some fundamental flaws in the process adopted by the DLGE in taking the Plan to Inquiry.

 

He said many of the documented flaws were valid but the most fundamental flaw was that the planning officer principally involved in the preparation of the Plan lived near areas proposed for development.

 

Having being accosted by the Director of Planning outside the Inquiry, claiming the complaint was ‘below the belt’ the Department had then gone to great lengths to avoid admitting they had done anything wrong.

 

However, the irregularity had breached Manx Law and rendered the Plan unsafe, and ultimately his complaint of ‘perception of bias’ had been upheld by the Chief Internal Auditor, Clive McGreal.

 

Mr McKinney said that a lot of what he would say to day would not be liked in certain quarters, and actively rubbished or ignored. However, this wasn’t because what he said was wrong but because some people find truth and reality an unpalatable medicine to take.

 

Mr McKinney invited the Committee to endorse the conclusions in the McGreal Report.

 

He said the Department should be criticized for its apparent failure to understand the rule against bias, and he was clearly amazed that as recently as the Archallagan Inquiry the Inspector had described his alarm that the Department was ‘blind’ to this rule.

 

He invited the Committee to criticize the former Vice Chairman of the Braddan Parish Commissioners, Ray Corkhill for rubbishing his submission to the Plan Inquiry, which he felt had adversely influenced the Inspector against his valid points.

 

He also invited the Committee to recommend that the Department pay his reasonable costs in successfully pursuing his complaint.

 

Mr McKinney thought the Committee should inquire of the Chief Secretary if the Government has implemented the first two recommendations of the 2002 Pilling Report, and the proposal in the McGreal Report – that there was an urgent need to review the training and guidance to government and local authority officials as to the Pilling judgement – and if so, to what extent.

 

Mr McKinney stated this was not an isolated example of serious maladministration by the Department and if senior office holders are not to be disciplined or sacked; then there needed to be appropriate ‘checks and balances’.

 

This was so if the ‘man in the street’ came up against the same level of ineptitude as he had, they didn’t have to go through the same ‘Herculean’ task he had faced to be proved right.

 

However, he had found that one such ‘check and balance’ was not open to him, in that his constituency MHK, and his predecessor, did not seem interested in the fundamental flaws in the preparation of the Braddan Plan, but decided to abdicate their responsibility for ‘planning matters’ to the Commissioners.

 

They, along with the Department, he claimed, and help create the unsupervised ‘vacuum’ in which the Braddan Plan emerged with the resultant consequences for all to see.

 

Therefore, Mr McKinney concluded, the case illustrated that the time was right for the introduction of an Ombudsman scheme, and as quickly as possible; along with the introduction of legislation so that conflicts of interests could be effectively regulated, to enhance public confidence in the decision making process.

 

Mr McKinney thanked the Committee for their attention and asked if they had any questions.

 

Mr Rodan put it to Mr McKinney that the ‘killer flaw’ he had described, regarding the planning officer’s potential conflict, was identified in 2000 and the Director of Planning had taken steps to negate it.

 

Mr McKinney replied that he had dealt with this in pages 12, 13 and 14 of his submission. With a hint of mockery in his voice, he reminded the Committee of the memo from Mr Vannan, telling Miss Corlett to distance herself from the area around Mount Rule. This was followed up by a memo from Miss Corlett to Mr Vannan, after having been told not to have any part in the area, to distance herself, become divorced from the process, where she had ‘helpfully’ prepared some suggestions as to which bits of land should or should not be zoned for development.

 

“It’s all a contortion”, he exclaimed. “She was supposed to be divorced from the process”, he said, “but there it is in her own hand”.

 

He stated she was the author of the Braddan Plan, “It’s all documented”.

 

He continued, “The MHK’s didn’t want to know - it was all concocted between the planning officer and Buster Lewin; and the Commissioners when it suited them. It’s there in the evidence.”

 

After suggesting the Committee ask the MHK’s to come and give evidence, he told of meetings with the Commissioners where they were asked if they had a vision for the Parish. They didn’t have a vision - it was more like they were on a mission – they were just collecting facts. But now we know what happened, he said, and they insulted and ridiculed the members of the Association.

 

“Mr Lewin says the developers will sue us!” was what we were told.

 

Mr McKinney said a new Braddan Plan was needed and the Association got their members to fill in the questionnaires but they didn’t like the results so they ignored them. They were not given to the Inspector to inform him of the people’s views, they just closed ranks to concoct a fiction to disguise the truth, he said.

 

Mr Rodan said that when Mr McKinney had made his complaint he had not questioned the professionalism of the planning officer.

 

“I am not here to cast a slur but I will stand by what I have to say”, he replied.

 

He said he made it clear in his evidence he was not making a judgment either way – he didn’t know whether she was on the side of the angels or not.

 

Any way it didn’t matter as the bias was already there by her living in the area.

 

“We are talking about a £200 million plan, there should have been proper supervision and there was not” he asserted.

 

“I stopped the Braddan Plan – I put the first spoke in it – and I am proud of that, I had to do it.”

 

He said he had nothing against Sarah (Corlett), he was just making a legal point when he included a copy of her title deeds in his evidence. If he had wanted to be mischievous he would have left the price in – but didn’t.

 

Peter Karran innocently inquired “You didn’t get the support of your MHK?”

 

“No” said Mr McKinney, David North had taken to the international stage and the new boy, Martyn Quayle, was taken under the wing of the Clerk, who he suggested prepared the questions and speeches for Mr Quayle.

 

“They probably thought they had all done a first class job – unfortunately not the right job!” he added with some sarcasm.

 

Mr Downie tried to explain to Mr McKinney that in a small jurisdiction, and with limited staff, it was difficult to deal with the issue of perception of bias.

 

This had the effect of waving a red rag at a bull.

 “You don’t understand” responded Mr McKinney, “I am astounded, well I am not astounded.”

He continued, “I love the Island but I don’t like what I see a lot of the time. It is frightening, so terrifying – you just do not realise what you are saying. It’s the Law, Deemster Corrin set down the standard.”

 

Mr McKinney then recounted how he had taken on the Government over Litts, the old knackery in East Baldwin, and won. But during the discovery process they had been sent a document that said they intended to change the law so one government department couldn’t take another to Court. “It’s the route to Mugabe” he stated to a shocked looking Committee.

 

Mr Downie tried to smooth the waters by suggesting they may be looking to recommend a different system for certain planning matters.

 

Yes but you need to bring proper, quality people in to run it, of which Mr McKinney suggested there were plenty already on the Island.

 

“A £200m plan and the public were cut out of it. Sarah Corlett said it was important that the people had ownership of the plan, but it was contrived and manipulated; as weak Commissioners and weak people in the Department, had allowed a vacuum in which Miss Corlett and Mr Lewin took over.”

 

In one final flourish, Mr McKinney conjured up an interesting picture. “You need to have a witch, and in the Braddan Plan the Witch was Camlork. The people think, the Commissioners are doing a good job, they are good environmentalists, and they are fighting Camlork. But while they are being distracted by this fight, meanwhile the dumper trucks are left to desecrate all the other developers’ sites.”

Draft transcripts of the hearings can be found on the Early Publications page of the Tynwald website, prior to them becoming available as official Hansard records on the Hansards page.

 Hearings are expected to continue in March.

Link: www.tynwald.org.im

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