A Tale of Two Market Stalls

The photo shows two market stalls in Bath's Historic Guildhall  Market (taken from Google Streetview).

According to the local Planning Department,one of these two stalls is completely acceptable in Planning terms - it "causes no harm".  Even though it was constructed without Listed Building Consent, enforcement action is not expedient, and no Listed Building Application is required.

The other stall, according to the same Planning Department, is "too enclosed and too much like a shop".  The Planning Department are insisting that the stall is unacceptable in Planning terms, and that a Listed Building application must be submitted.

Can you tell which is which?

See Inside Guildhall Market Now on Google Maps

Bath's Historic Indoor Market has become one of the latest building interiors to be featured on Google Maps.   The market can now be explored by anyone with Google Maps or or a web browser

The easiest way to see the interior is to navigate to the location of the Guildhall Market (for example at http://goo.gl/maps/BmbIf, and then to drag the little orange streetview man to the centre of the market.



View My Saved Places in a larger map

The photographs were taken in May this year, but it has taken until now for them to be stitched together and published by the Google team.

We are very pleased to see  how good our stall Aranais looks;  we are fully wheelchair accessible, and ours is the only stall in the market open enough that the Google team were able to take photos of the inside of the stall

Open letter to the Director of Planning and Transport

Dear Mr Trigwell,Following the article in the Chronicle about Stall 36 (Aug 8th) and subsequent letters, many readers have contacted me to ask why the Council is in dispute with us when they see that our stall is not significantly different to many others. When I tell them that you personally have written to me to say that many of the other stalls either do no harm in planning terms, or are freestanding and therefore require no listed building consent, but that you still insist that ours is too enclosed and not sufficiently like an outdoor market stall, they are astonished. When I also explain that several councillors and our MP have all asked you to take enforcement action against us in line with  the Council's own Planning Enforcement Policy, but that you have refused to do this, or to explain with reference to the legislation why you believe I have committed a criminal offence, they shake their heads in utter disbelief.

It is now three years since your staff raised these ridiculous allegations - three years in which you have threatened my livelihood on a daily basis. The time has come to either make your case and carry out enforcement action or admit you and your staff were wrong, and then do the decent thing and resign.

Yours sincerely,
Robert Morgan

Who watches the watchers?

Just received a response to my latest Freedom of Information request from BANES Council, concerning charges made for the provision of planning pre-application advice.


The Government's Guidance on Charging says


Limitation to cost recovery

15. By providing a power to charge for discretionary services the Government’s aim is to
     encourage authorities to provide those sorts of services they would otherwise decide not to
    provide (or improve) at all because they cannot justify or afford to provide them for free or
   to improve them. The aim is not to provide a new source of income for authorities, but to
  allow them to cover their costs.
16. The 2003 Act therefore provides that for each discretionary service for which a charge is
   made using the new power, authorities should be under a duty to secure that, taking one
  year with another, the income from charges for that service does not exceed the costs of
 provision.
17. The requirement to take one year with another recognises the practical difficulties local
   authorities will face in estimating the charges. It establishes the idea of balancing the
  books over a period of time (which may be a number of years – see paragraphs 21-23)
   without having to have detailed prescription either on the face of the Act or in secondary
  legislation. Any over or under recovery that resulted in a surplus or deficit of income in
 relation to costs in one period should be addressed by an authority when setting its charges
for future periods so that over time income equated to costs (see also paragraph 26).

Calculating the Costs of Provision and the Charge

18. Each Authority making use of the new power to charge will need to establish a robust
   methodology for assessing the costs to the authority of providing each discretionary
  service. Authorities are free to decide what methodology they wish to adopt. They may
 however find it helpful to draw on existing and familiar principles as set out in the CIPFA
Best Value Accounting Code of Practice (the Code). One option would be to use the
Code’s definition of Total Cost. As an alternative, authorities may wish to consider adding
 to Total Cost an appropriate contribution for Corporate and Democratic Core (CDC) and
Non-Distributed Costs (NDC), as those terms are defined in the Code, as a part of the
costs of provision.

The guidance (and the text of the Act itself) is quite clear; Authorities may make no more from the charges of providing a service than it actually costs them.

BANES make £150,000 per year from planning pre-application advice, charging £70 per hour.


Here is their response.  They appear to be claiming that "benchmarking" is a robust methodology for setting charges (in other words, ask a few other councils what they are charging and copy them).


Request  
“With reference to this mandatory guidance, please provide me with the information 
that shows how the Council has complied with the Act in respect of the provision of 
Planning pre-application advice, showing the methodology used, and the actual 
calculated costs of delivering the service for each year since the implementation of 
the Act”. 
 
Response  
We believe that we comply with the act. 
 
The Local Government Act says: 

“Calculating the cost of provision and the charge: 18. Each authority making use of the new power to charge will need to establish a
robust methodology for assessing the costs to the authority of providing each
discretionary service. Authorities are free to decide what methodology they wish to
adopt”.
 Charging rates were determined through benchmarking.  We hold information on pre 
application charges i.e. invoices sent, payment received , however no information is 
held which confirms whether the Council has made a surplus or a loss on these 
charges since they were implemented.  
 

This is the same Planning Department that is supposed to be holding us to account if we break the law. In their response they have only quoted part of the guidance, attempting to give it a meaning completely different from that intended by the full text.

Aren't they a bit hypocritical?

Planning Dispute with Bath and North East Somerset Council

Here's the text of an article that appeared in the Bath Chronicle recently.  It only tells part of the story.  Scroll down to the bottom to read more of the real facts..

http://www.bathchronicle.co.uk/Bath-market-stall-holder-s-year-battle-Guildhall/story-19599986-detail/story.html

Bath market stall holder's three-year battle Guildhall pitch

By Bath Chronicle

Thursday, August 01, 2013

  FOLLOW  

                        A market stall holder claims to have been treated unfairly by council officials.

Skin care specialist Robert Morgan, who runs the Aranais stall in the Guildhall Market with his wife Anna, has been locked in a planning battle with Bath and North East Somerset Council since he took a lease at the market three years ago.

1. ​
   Robert Morgan in his Aranais Stall in the Guildhall Market

He has taken his complaint to the Local Government Ombudsman and met B&NES cabinet member Ben Stevens.

Mr Morgan moved into the Guildhall Market, which is run by the council, in 2010 and was told he would need listed building consent for any work he wanted to do to his stall. He produced a design but this was rejected by officers, and at a planning appeal, amid objections from English Heritage.

Mr Morgan was then advised that if he built a free-standing structure he would not need consent. He claims he proceeded to adapt his stall but partway through the work council officials demanded he stop and dismantle what he had built because the structure was not free-standing enough.

Mr Morgan has accused B&NES of being inconsistent, unsure of its own planning policies and deliberately obstructive.

"My stall is no different to any others – the windows and panelling are not attached to the frame – but the council are trying to argue because it would take three days to dismantle and would involve damaging the existing frame it's not free-standing."

Mr Morgan said his requests for the application to be taken to development control committee were refused.

A spokesman for the council said: "The council discussed options with Mr Morgan and agreed a solution involving free-standing cabinets and a counter which would not require any consent.

"However, the work which has taken place is more extensive than what was originally discussed to the point where listed building consent is required. The work is very similar to the proposals that were contained in the refused listed building application in April 2010."

A spokesman for the council said it did not believe it had treated Mr Morgan unfairly and stood by its planning decisions.

He said: "The council wants to support a vibrant, prosperous Guildhall Market for all traders. However, the businesses that take out a lease in the market must observe national planning law."

The Facts

Most stalls in the market have been altered without Listed Building Consent.

I was told I had to pay for pre-application advice from the Council and pay £70 per hour.
This charge is illegal, Under the Local Government Act 2003 the Council may only cover its costs for providing a service like this, and it must be able to show that year-on-year it does not make a profit from the service.

The Listed Building Application made to the Council number 10/00564/LBA was refused, mainly on the grounds that it would create too much of a formal shopfront style that would be less open in style than many others in the market.

In previous correspondence the Council Officer stated her view that the market should “retain the character of an outdoor market”' This is not a reasonable statement because the market was designed and built as an indoor market, opening in 1863.

Opening Day 1863

Marks and Spencer Penny Bazaar around 1900

Architecturally and historically, the market has always had some enclosed stalls that resemble shopfronts with upper glazed windows and the goods displayed in the opening lower half – that's how it was designed.

It is true that English Heritage sent a comment cited by the officer in her decision saying that they believed that market stalls should be open, but when challenged later on this the EH officer admitted she was merely repeating back information provided by Bath officers.

Even now, Stall 36 is one of the few that are fully wheelchair accessible. When Google came to take 360 degree photos Stall 36 was the only one open enough for them to take photos inside, so to say it is less “open” than others is ridiculous.

English Heritage were not consulted in the appeal – the Inspector rejected the appeal (APP/F0114/E/10/2139717 ) because of a line in the Statutory Listing (version published in October 2010, so not valid at the time of the application) which said “Council Presently trying to restore uniformity to design of stalls.” I tried to find out via Freedom of Information Requests, and ultimately by appeal as far as the Information Commissioner, who had inserted this line and when, but no-one at English Heritage or BANES had any record. English Heritage subsequently agreed that the line was inappropriate and it has now been removed from the listing

The stall as built now is similar in some aspects of design to the one that was refused. However, the main differences are the ones that mean it is not subject to the Listed Building legislation. The current structure does not “alter or extend the building” and does not affect any historical or architectural features. We know this because the Council commissioned an independent expert to carry out a historical survey.

The Council has just spent £500,000 on developing the co-working hub in the old Council Connect Offices – part of the Grade 1 Listed Guildhall. No Listed Building consent was required for this project because no architectural or historical features were affected.

The Council has spent £30,000 in officer time over the last 3 years in accusing me of being a criminal. I have repeatedly asked them to explain what laws I have broken and why they believe that to be so. I have asked that they apply the Council's own Planning Enforcement Policy to determine whether or not I have committed an offence but they refuse to do so. I have sent them the government's own guidance notes which explain how to determine if an offence has been committed under the Listed Building Legislation.

Council Officers, on the other hand, have refused to comply with the Council's own Enforcement Policy and Complaints Procedure. They have made repeated claims that I have contravened the Planning (Listed Buildings and Conservation Areas) Act 1990, but have refused to give details. They have contravened the Freedom of Information Act by refusing to provide information when requested, and they have contravened the Human Rights Act by denying me a fair and timely trial for the criminal accusations they have made. They have also, as mentioned above, contravened the Local Government Act 2003.

A complaint was raised in respect of another market stall in 2006. This was investigated by a senior officer of the Council. One of its findings was that Planning and Property Services should work together to create proper plans for the market, so that stallholders would know what was or was not permitted in terms of stall development. The report also pointed out that it was inconsistent and unreasonable of the Council to make it difficult for stallholders to obtain Listed Building consent, but then to take no enforcement action against stallholders who made no attempt to obtain Listed Building consent. English Heritage also issue official Guidance to councils on managing Listed Buildings they own that again states that Council's should have conservation management plans for each building. Bath has no such plans for the Guildhall Market.

The Council's attitude has been completely unreasonable.  After three years they have failed to explain why they believe the stall as built is subject t Listed Building legislation, and they refuse to take the steps that would prove the issue one way or the other.

We are complimented time and again by visitors on how nice the stall looks.  People are generally amazed when we tell them that the Council find out stall unacceptable, particularly when they look at others nearby that the Council has said are perfectly acceptable.

If you think the Council are being unreasonable then we urge you to write to the Chief Executive or Councillors and put your views.

Chief Executive

B&NES Council

The Guildhall

High Street

Bath

BA1 5AW

Leader of the Council

Paul Crossley

B&NES Council

The Guildhall

High Street

Bath

BA1 5AW

paul_crossley@bathnes.gov.uk

A full list of Councillors can be found at http://democracy.bathnes.gov.uk/mgMemberIndex.aspx?bcr=1.