Agenda item

1.

Question from Mary Nelson to the Leader of the Council, Councillor Steve Jordan (questioner present)

On the 24^th September the Audit Committee received a report (Agenda Item 7) reviewing the implications of the Council’s Action Plan, following the Public Interest Report of 2010, which resulted from the failed Laird High Court Action.

Recommendation R11 of the PIR stated that:

“The Council should, in all instances, take decisions based on a balanced range of success factors including service needs, legal issues, financial implications and risk.

Decisions should be informed by appropriate risk scenarios or possible outcomes.”

The only aspect of Risk ever acknowledged and published on the Corporate Risk Register for the Cheltenham Transport Plan (Risk CR9), was stated to be that “if Boots Corner/Royal Well Rd closure does not proceed then the Royal Well Development Plan will be prevented from going ahead “. 

However, even this inadequate sole Risk - rated HIGH, coloured RED with a score of 16  was then downgraded to LOW/MARGINAL coloured GREEN and transferred in June 2012 from the Corporate Risk Register to the Cheltenham Development Task Force Divisional Risk Register (Risk TF03) where it could thenceforth be hidden from public view. 

The Cheltenham Transport Plan has huge financial, economic, reputational, and health/safety risks for the town, none of which have ever been acknowledged, assessed and recorded in any Risk Assessment.
Question

Would the Leader therefore agree that

1. having no proper, full and adequate Risk Assessment for the Cheltenham Transport Plan entered on the Corporate Risk Register, and

2. having provided no Risk Assessment to Full Council when it voted to approve the CTP on the 18^th November 2013 (other than one single risk i.e. that not considering the Petition at the same time as the CTP Public Consultation Report would be ignoring the concerns raised by the petition)

is more than adequate proof that CBC has ignored this vital PIR Recommendation, and intends to continue to do so?

Response from the Leader

The risk management process is complex because there is a differentiation of responsibilities between Cheltenham Borough Council (CBC) and Gloucestershire County Council (GCC). CBC has been sponsoring the proposal as part of its wider town centre regeneration through the Task Force, evidence of which is now visible – Brewery II, Albion St, way-finding system, public realm works, whilst GCC is responsible for any aspects with a highways impact.

For this reason CBC established a risk & accountabilities group as part of the Task Force, specifically to identify how risks are allocated. For this specific issue, GCC are the lead authority and have held an equalities impact assessment as part of their standard practices throughout the process. So in reality risks have been considered and will be further considered in detail as part of the GCC Traffic Regulation Order Committee process.

In a supplementary question, Mary Nelson asked why there were no Cheltenham Borough Councillors on the Cheltenham Development Task Force’s ‘Risk Accountability Group’, only officers and two outside business people. Therefore how can there be real accountability to the residents of Cheltenham if there are no elected representatives taking any responsibility for this major risk to the viability of the town?

In response the Leader advised that overall responsibility for that group lay with the County Council. There were Cheltenham Borough Councillors on the Cheltenham Development Task Force and any concerns could be reported through this process.

2.

Question from Mary Nelson to the Leader of the Council (questioner present)

If the Cheltenham Transport Plan is implemented and there are major problems with traffic flows into, across and around Cheltenham, causing harm to business, tourism and the town’s reputation, who will be responsible for paying for the scheme’s reversal costs, or undertaking such expensive remedial work as may be required – Cheltenham Borough Council or Gloucester County Council (bearing in mind the £100,000 “Mitigation Fund” would be a mere drop in the ocean in the scale of costs for this work)?

Response from the Leader

CBC approved an additional £50k contribution to the GCC £100k mitigation fund at the full Council meeting in November 2013. If the scheme is implemented and any mitigation funds fail to address issues as identified by GCC, then as the highways authority they will determine any reversal strategy. Whether this is a wholesale reversal or a partial reversal will be determined by them as highways authority.

In a supplementary question, Mary Nelson asked the following:

 Since the risk was transferred from the Corporate Risk Register to the Cheltenham Development Task Force’s own “divisional” Risk Register, and is now inaccurately entitled merely as “North Place”, the sole risk is stated to be that :

“if the changes to the traffic network linked to the LSTF funding are not effectively managed then there is a risk to the council’s reputation”.

Will you please take action to ensure that the title of the risk is listed in full as being “Cheltenham Transport Plan”,  and that all the component risks involved, especially the financial, but also the economic, and health and safety risks, are now properly assessed with realistic scores, as they would have been in any other business that is not funded by the tax-payer?  

Otherwise there is a serious chance of the same shameful risk failure scenario that occurred with the Laird High Court case.

In response the Leader refuted any correlation with the case of the former Managing Director. He was happy to look again at the document but his understanding is that the wording is correct as it is. 

3.

Question from Carl Friessner-Day to the Leader, Councillor Steve Jordan

In light of the recent Council objection to the plans for building on lands in Leckhampton with one of the concerns being that such a development could cause severe congestion problems, would it not be prudent to re-evaluate the outdated Cheltenham Transport Plan as the vote on Leckhampton confirms that despite the modelling that has been done, there is genuine concern in and around Cheltenham about traffic and that the Cheltenham Transport Plan cannot be taken in isolation now that the JCS has been put in place?

Response from

The JCS has been subjected to public consultation but to date has not been formally adopted. The vote concerning Leckhampton was complex and emotive because of prematurity relative to the JCS process. It was not merely relating to traffic modelling.

4.

Question from Carl Friessner-Day to the Leader, Councillor Steve Jordan

With the recent downgrade of Cheltenham A&E and Gloucester receiving money for congestion relief at one roundabout that is comparable to that being spent on the Cheltenham Transport Plan, Cheltenham having a similar sized population, it is apparent that Cheltenham is rapidly becoming the poor cousin and losing out to funding elsewhere in the county.

Question

Could the council explain why Cheltenham is accepting a compromise in the Cheltenham Transport Plan and why instead they are not fighting for adequate transport relief in the form of a bypass, which Gloucester already has?

Response from

The Cheltenham Transport Plan has been funded through a GCC bid to the Department for Transport Local Sustainable Transport Fund. The A&E decision is one for the health authority.

The congestion relief to which you refer is I believe being funded through the Gloucestershire Local Transport Board. Cheltenham has secured funding from this fund towards the A40 bus lane at Benhall, improvements at Cheltenham Spa station and A40 bus connectivity, so in reality Cheltenham has presented comprehensive bids and fared well in the current funding process.

A bypass for Cheltenham is not identified in the GCC Local Transport Plan 3 so unless GCC as the highways authority change their position, it is currently not a realistic achievable outcome.

5.

Question from Helen Bailey to Cabinet Member Development and Safety, Councillor Andy McKinlay

An extract from the licensing committee page of the Cheltenham Borough Council website states.. 

‘18.1 In terms of regulation, our aim is to target those premises which are causing problems within our communities whilst supporting well managed premises and community activities, which provide worthwhile opportunities for the enjoyment of leisure time without having a negative impact. Premises that produce disorder, or threaten public safety, generate public nuisance, or threaten the well being of our children will be targeted for enforcement action.’

The implication is that the committee include SEVs as 'worthwhile opportunities for the enjoyment of leisure time without having a negative impact'.   Is this the case or do you consider SEVs to be incompatible with some of your policy statements?  Having read the ‘Evidence and Information in Support of a Zero Limit on Sexual Entertainment Venues in the Borough of Cheltenham’ I am concerned about their possible negative impacts which may threaten the well being of our children and therefore our communities in subtle but profound ways. 

Response from Cabinet Member

The policy extract is from Licensing Act 2003 Licensing Policy Statement adopted by Council in February 2012.  The Licensing Act 2003 deals exclusively with the licensing of alcohol, entertainment and late night hot food outlets.

The policy extract quoted is neither the policy nor the legislation relevant to the licensing of SEVs.  The inference drawn from the policy extract and the Council’s position with regards to the licensing of SEVs is therefore wrong not least because the statutory requirements and tests of the Licensing Act 2003 vary significantly from those of the Local Government (Miscellaneous Provisions) Act 1982.

The Council’s position with the regards to the licensing of SEVs is set out in its adopted “Sexual Entertainment Venue Policy”.

In response to the question posed, the Council does not consider the licensing of SEVs to be incompatible with its policy statement.

6.

Question from Helen Bailey to Cabinet Member Development and Safety, Councillor Andy McKinlay

Given that this debate is only relevant to permanent venues, and that the current loophole in the law allows infrequent sex entertainment to go unlicensed, what commitment will the council put in place to monitor the situation regarding infrequent sexual entertainment in the town?  This relates to advertising, girls dressed in character, mobile vehicles publicising the sex venues and distribution of flyers.  

Response from Cabinet Member 

The Council has already undertaken a lot of work to monitor and regulate infrequent sexual entertainment in so far as it is able to, given that the exemption is a statutory one.

1.    Dedicated Council officers in partnership with Gloucestershire Police run special operations during March and November’s race meetings specifically targeted at premises offering sexual entertainment.  These have resulted in a number of closure notices being issued where offences and/or licensing breaches have been identified.

2.    The Council has adopted a “Sexual Entertainment Code of Practice” that is specifically aimed at premises and operators offering sexual entertainment on an infrequent basis.  The code of practice has been adopted through the local ‘Pubwatch’ group and in now fully implemented and being adhered to by operators.

3.    Recent changes to temporary events forms have made it easier for the Council and police to identify premises that intend to offer sexual entertainment.  The changes to the statutory form now require premises to tell the council if they intend to offer sexual entertainment which was not the case prior to October 2014.

7.

Question from Deanne Tombs  to Cabinet Member Development and Safety, Councillor Andy McKinlay

Recommendations from the Licensing Committee, which were subsequently agreed by a majority at a Cabinet meeting, involved setting a zero limit in areas of the Borough outside the cleansing area.  Within the cleansing area, it was proposed to work on a case by case basis when deciding whether or not to grant an SEV license, and judge each application on its own merits.  Was a limit >0 but still low, ever considered or explored and if so, why was it rejected?  If not, why not? Surely no one, except perhaps SEV club owners, would want a proliferation of SEVs in the cleansing area?

Response from Cabinet Member

For clarification, the majority Cabinet view was not to approve the designated area as the cleansing area but as the central shopping area.

All options will be considered and properly debated by Members including whether a zero limit is a more appropriate policy.

Setting a zero limit for outside the central shopping area is merely a proposal at this stage due to the fact that the formal debate is yet to take place.

The Cabinet rationale for the approach is that:

1. The Council accepts that sexual entertainment is a legitimate form of entertainment.

2. Permitting the operation of SEVs in the proposed shopping area would not be incompatible given that the area is inside the core night time economy area.

8.

Question from Deanne Tombs  to Cabinet Member Development and Safety, Councillor Andy McKinlay

Given the above recommendations for the cleansing area, do the Councillors not think that it would be a risky policy, given the previous granting of a license to premises which appear to fail on a number of counts mentioned as being sensitive in the Council’s own guidelines on the matter, e.g. the venue is close to a park, places of worship and premises which offer young people facilities such as dance studios and youth theatres?  What confidence can the public have in the Licensing Committee to make considered decisions in the future?

Response from Cabinet Member

The Licensing Committee functions in a quasi-judicial capacity which means it is obligated to objectively determine facts and draw conclusions from them so as to provide the basis of an official action.

In respect of the Bath Road application the Licensing Committee in this capacity decided that the licensing of the premises was appropriate in light of the statutory requirements and policy.

In response to the question, the Licensing Committee will continue to act as a quasi-judicial body and will continue to objectively determine applications on their facts and be guided by statutory requirements and its policies.

9.

Question from Clare Winter to Cabinet Member Development and Safety, Councillor Andy McKinlay (questioner present in the public gallery and was invited to ask a supplementary question)

Following the Licensing Committee meeting on the 5.9.2014, I was led to

believe that the current SEV on the Bath Road lay just outside the no

limit zone, i.e. in an area where proposals were to set a zero limit. 

I was going to ask how this would affect license renewal, but I now

understand that this is not true and that it lies on the boundary, i.e.

in the town centre area where licenses would be decided on a case by

case basis.  Could this be clarified please, and were the proposals

changed or was my initial information incorrect?

Response from Cabinet Member

A decision about amendments to the policy has not been approved and therefore the Council cannot comment on the individual licence.

There are a number of proposals open to the Council including the option not to change the policy, the option to designate a number of areas as zero and/or no limited areas.

As a general principle, Members must be guided by the policy but the policy itself should not fetter discretion.  Hypothetically, there would be a presumption against the grant of a renewal application if the policy is amended and as a result the licensed premises falls inside an area where the limit has been set to zero but, notwithstanding, the Council would still be obligated to consider the renewal application.

10.

Question from Clare Winter to Cabinet Member Development and Safety, Councillor Andy McKinlay (as above)

I would like to ask the council why, in the light of such strong local opposition for valid reasons which made reference to the council's own published guidelines on the matter, a license was granted to the Bath Road premises in the first place?  The current legislation in the Home Office's own words, was introduced to 'further empower local communities' and 'give local people a greater say over where and how many lap dancing clubs open and operate in their neighbourhoods.'

Response from Cabinet Member

Reasons for the Licensing Committee’s decision to grant the application are available on the Council’s website (https://democracy.cheltenham.gov.uk/mgAi.aspx?ID=6796).

In accordance with the guidance and statutory requirements, consultation was undertaken with the local community and these were taken into account by the committee when the application was determined.

Similarly, local consultation has also been undertaken with the residents of Cheltenham about the Council’s policy and these will fully be taken into account when amendments to the policy will be debated.

11.

Question from Ken Pollock to the Leader of the Council, Councillor Steve Jordan (questioner present)

Until just before today's deadline for Public Questions we were approaching eight weeks after the close of the JCS consultation, yet councillors and MSG councillors (and of course the public) were and are still unaware of what the JCS Response contains. 

The major document responses (many of them very relevant to improving Cheltenham's deal) were all uploaded ready for viewing (since 12th September) but access continued to be blocked quite doggedly by officer decree (CBC Chief Executive), which was unnecessary and manipulative behaviour.

Considering that

(1) under Localism it is solely the responsibility of locally elected representatives to reach the wisest Core Strategy version, and considering that

(2) once Submitted for Examination all local control of the JCS site choice is relinquished, and considering further that

(3) Examining inspector(s) are not permitted to "improve" a Plan whatever the evidence set before them (they merely check for compliance and soundness),  accordingly it is disreputable that key Response information (from both objectors and developers) has been suppressed from view by senior officers (which political leaders have been slow to correct) until it will soon be too late to be able to use those contributions to improve the JCS version.

Question

Therefore, will Cheltenham's Leader secure not only this (belatedly achieved) display of the document responses, (which now need rigorous independent analysis), but also the immediate publication of the officers' "Summary" of those Responses whatever its current shortcomings "pending update", because this emerging document 'guides' the Inspectorate and needs to be seen to be fair and accurate at all stages ?

Response from Cabinet Member

There was a large response to the JCS pre-submission publication with representations from over 2,800 individuals, groups and companies. Scanning these in, entering details onto a database for the Planning Inspector’s use and then reading them has taken some time.

There is a legal obligation on the Council to make copies of the representations available, so far as practicable, together with the main issues summary statement, as soon as practicable after the JCS has been submitted for examination.

Although it is a number of weeks since the close of the consultation, going beyond the legal requirement, the representations are now already available to view on the JCS website and although a final summary of the main issues raised within the representations has yet to be completed, an interim draft of this is also already to view on the JCS website.

In a supplementary question Mr Pollock asked the following:

As there have been no appreciable changes (since the original JCS draft) to benefit Cheltenham's environment, (apart from the inevitable removal of the unsound Up Hatherley scheme, which would have narrowed the critical GreenBelt gap towards Shurdington and Brockworth), will our MSG leader councillors now take steps to achieve some significant improvement for most sensitive Cheltenham?

In response the Leader advised that Council had debated the issue at their meeting in April when they had approved the JCS Pre-submission document for publication. The Up Hatherley site had been removed from the JCS plans before the Council meeting. Since Council agreed the document there have been no significant changes which would cause the plans to be revised. The council was awaiting the outcome of traffic modelling and housing numbers review.  The next stage would be to submit the document to the Secretary of State.

12.

Question from Ken Pollock to the Leader of the Council, Councillor Steve Jordan (questioner present)

In view of the clear scale and severity of the Objections (still being sustained at this late Pre-Submission stage), and in view also of the closeness of the most recent CBC and TBC votes (18-14 and 18-15 respectively), have Cheltenham's leaders sufficient commitment to fairness and openness to demand a Full Council debate and vote on the final Submission version, regardless of how negligible are the amendments which the officers are willing to propose (in the very short time they have contrived to leave remaining following their suppression of the major responses)?

Railroading this (still defective) Plan silently onwards, with near zero modification, is a national outrage in peerless Gloucestershire, most especially for Cheltenham's environment.

Response from Cabinet Member

The Council discussed the Pre-Submission JCS at length on 9 April 2014.  The Council resolved that authority be delegated to the Chief Executives in Cheltenham and Tewkesbury and the Corporate Director of Services and Neighbourhoods for Gloucester City Council in consultation with the relevant Lead Members to make any necessary minor amendments including the identification of any saved plan policies as considered appropriate by the three JCS Councils before the plan is sent to the Planning Inspectorate for independent examination.

The response to Question 11 deals with issues around publication of responses. The Plan has not changed significantly since the council meetings in April; therefore another meeting of all three full councils would be unnecessary.   

In a supplementary question, Mr Pollock asked the following:

Will Cheltenham's Leader ensure that the 'Interim Response Report' (just disclosed) is amplified (close to its final version) and thereby contains some real discussion/analysis of the initiatives which have been advanced by Pre-Submission respondents (major developers as well as objectors), and that the report is published immediately, to enable its debate by CBC Full Council prior to Submission ?

There may be no need for a Gloucester debate, because the city has secured virtually all its preferences (and it duly approved the JCS version by 33 votes to 3).   If Tewkesbury want a speedy Submission, they can easily accommodate Cheltenham's site preferences.

In response the Leader highlighted that the council had undertaken a non-statutory process consultation in 2013 in order to gain as much feedback as possible on the draft strategy. Many of the latest submissions had already been taken on board. He advised that the Interim Response Report was still being worked on but once completed would be published.

13.

Question from Ms Kit Mallet to Cabinet Member Development and Safety, Councillor Andy McKinlay

I understand the current SEV on the Bath Road falls just outside the cleansing area.  I am assuming that this will be a significant factor when deciding whether or not to renew the current license.  What are the councillors views on this?

Response from Cabinet Member

As a general principle, Members must be guided by the Council’s policy but the policy itself should not fetter discretion.  Hypothetically, there would be a presumption against the grant of a renewal application if the policy is amended and as a result the licensed premises falls inside an area where the limit has been set to zero but, notwithstanding, the Council would still be obligated to consider the renewal application.

14.

Question from Ms Kit Mallet to Cabinet Member Development and Safety, Councillor Andy McKinlay

I have heard Councillors talk about the ‘spirit of the Act’ and the ‘will of Parliament’,e.g. that Parliament’s intent was that SEVs would occur in places, and that they should be regulated rather than banned.  However, I think this should be balanced with the comments in the Ministerial Forward of the Home Office document Sexual Entertainments Venues Guidance for England and Wales, in which Alan Campbell writes of the:  “Government’s intention to give local people greater say over the number and location of lap dancing clubs in their area. These new measures, which take effect on 6th April 2010 in England and on 8th May in Wales, will, if adopted by local authorities, give local people a greater say over where and how many lap dancing clubs open and operate in their neighbourhoods.  These are important reforms to further empower local communities.” 

Question

Do the councillors think that the above should necessarily mean that a zero limit couldn’t be placed in the cleansing area also?  If it is true that Parliament’s intent is that SEVs would occur in places, does that necessarily mean occur in places in every town?

Response from

The council has taken a balanced approach between the legitimacy of these types of premises to operate and the views of local residents (via the consultation) in terms of where it may be appropriate for them to do so.

It is not outside the council’s legal powers to also restrict SEVs in the central shopping area but the approach must be balanced taking into account all the relevant factors including consultation feedback, statutory requirements, the legitimacy of these types of premises and the local character and use of the area.

15.

Question from Penelope Oliver to Cabinet Member Development and Safety, Councillor Andy McKinlay

My question is why can't Cheltenham council set a zero limit for sexual entertainment venues? Other councils such as Exeter, Haringey, Harrow, Richmond and Slough have a zero limit. Has Cheltenham borough council spoken to any of these councils for advice? Surely it is important to gain information from these other councils when considering a zero limit and this must surely be considered?

Response from Cabinet Member

Officers have extensively researched the approach by other Councils and the outcome of this was presented at the Licensing Committee meeting in September.  Consideration was also given to a number of recent high profile court cases involving Leeds, Oxford and Cheshire. 

Whist the approach and reasons for such approaches have been taken into account, it would be inappropriate and unlawful for the Council to adopt a similar approach simply because other Councils have.

The statutory requirement is for the Council to consider the appropriateness of SEVs taking into account local factors such as the character of areas and the use to which any premises in the vicinity are put (i.e. the prevalence of sensitive premises in the vicinity).

16.

Question from Steven Smith to Cabinet Member Development and Safety Councillor Andy McKinlay (questioner present)

Captain Steve Smith of the Salvation Army previously has presented research which suggested that SEVs result in an increased probability of sexually related crime, and crime figures from London which support this.  In papers prepared by Council Officers for the meeting of the Licensing Committee on 5 September, there was a suggestion made that there was no evidence to suggest that the research and figures were relevant to Cheltenham, and that there were a number of 'external factors' which needed to be considered.  

Questions

1) Could you please explain what the external factors and special circumstances which make Cheltenham exempt from the possible negative effects of SEVs are?

2) If there are no specific factors, is it not the case that the research that shows a rise in the probability of sexual crime as a result of SEVs is as relevant to Cheltenham as it would be anywhere else?

Response from Cabinet Member

 The external factors referred to are wide ranging and include:

1. Has the relevant authority adopted provisions to control SEVs?
2. Have they adopted a robust policy and fit-for-purpose conditions?
3. Are these enforced and properly so?
4. The location of the licensed SEV i.e. located in a saturation zone with potentially high crime and disorder levels.
5. How, and how effectively, crime is recorded, interpreted and used.

The point is that Councils have an incredibly wide discretion in terms of the control and regulation of SEVs in their local areas and the purpose of this is to enable Councils to use local understanding and circumstances to adopt an approach right for the localities.  Due to this wide discretion, no one approach is the same and circumstances vary between districts.

In a supplementary question, Mr Smith asked what part of the research he had provided at the last Council meeting was not relevant to Cheltenham and therefore would it not be fair to say that this evidence needs to be considered.

In response the Cabinet Member advised that the evidence provided by Mr Smith was only part of a large body of evidence, some of it contradictory, which the Council needed to consider today. It was also important that the evidence was relevant to Cheltenham today and evidence from other towns 5 years ago may not be so relevant to the debate.