Letter: Housing Assessment – Council Is Failing to Exercise Contractual Rights

Published on: 27 Apr, 2016
Updated on: 27 Apr, 2016

From Ben Paton

Our council leader Paul Spooner [Con, Ash South & Tongham] says that when it comes to the “Elected Mayor Petition” the council has to follow the law. It is a shame that the council is not as fastidious about applying other aspects of the law and even aspects of its own contracts.

The contract between Guildford Borough Council (GBC) and GL Hearn for the provision of the Strategic Housing Market Assessment or SHMA report states, in clause 9.1 of the terms and conditions: “The Service Provider shall not assign or subcontract the benefit or burden of the whole or any part of the Contract.” And yet GL Hearn did subcontract the demographic modelling to Justin Gardner Consulting.

Clause 18.1 states: “The Service Provider hereby assigns to the Council all vested contingent and future rights of copyright and all rights in the nature of copyright and all accrued rights of action and all other rights of whatever nature in and to the reports (which shall include all plans drawings documents (written and electronic) and presentation material and all other material capable of being subject to copyright produced by the Service Provider in the course of undertaking the Service for the Council) prepared under the terms of the Contract whether now known or in the future created to which the Service Provider is now or may at any time after the date of the Contract be entitled by virtue of or pursuant to any of the laws in force in each and every part of the world.”

And yet GBC claims it has never received the Justin Gardner demographic model because the subcontractor claims “intellectual property” in the model although the contract clearly states that all copyright in the work belongs to GBC.

Clause 19.1 of the contract states: “The Service Provider shall co-operate with the Council as maybe necessary to enable the Council to fulfil its statutory obligation under the Freedom of Information Act 2000”.

And yet GBC has refused to disclose the demographic model despite two FOI requests on the basis that it has never received it. And yet GL Hearn is contractually obliged to assist GBC in answering FOI requests.

As a direct result of GBC’s failure to exercise its contractual rights Guildford, Waverley, and Woking Borough Council’s have never received a copy of the demographic model which is the main justification for the SHMA.

The National Planning Police Framework (NPPF) para 159 states: “Local planning authorities should have a clear understanding of housing needs in their area.”

Without a copy of the demographic model how can these local planning authorities have a “clear understanding of housing needs in their area”?

It appears that GBC applies the law and its contractual rights highly selectively so as to preclude it receiving this model which in turn conveniently makes it unavailable to the public.

Still another example of GBC being two-faced.

Responses to Letter: Housing Assessment – Council Is Failing to Exercise Contractual Rights

Valerie Thompson Reply

April 27, 2016 at 5:58 pm

This is immoral. Is it also illegal?
Peta Malthouse Reply

April 29, 2016 at 9:19 am

The point is that our council, through it’s members elected to represent us, and by it’s paid public servants, choose not to supply this information.

We need to understand that the council officers are required to do what our elected councillors tell them to do, so we are entitled to conclude that it is the councillors who do not wish to be open and honest with us.

Elected members are supposed to conduct themselves in an open and honest way, as per the code in the Nolan Report. Perhaps they should each look at their conduct and explain why they are not representing us properly on this occasion. Are they fit to be councillors?

I seem to be spending so much time complaining about GBC these days yet I was always happy with my local authority. Why have standards deteriorated so much?
Diane Doney Reply

May 15, 2016 at 6:20 pm

Unfortunately, copyright and intellectual property (IP) are not one and the same thing.

A company’s background (i.e. existing) IP for a program or technology they have created, prior to the execution of a contract, are not normally passed to the purchaser, merely a licence of some sort to be able to use the technology for the purpose set out in the contract, if indeed they have access to the program at all.

Therefore, while the deliverable product of the technology use (i.e., the report) is likely to be owned by Guildford Borough Council, they do not normally take ownership of thetechnology that created it.

One would need to check the IP clauses, not just those relating to copyright. Potentially one could ask for the input data that was used, and the report generated from it, but sadly, the methodology of the processing of the data is highly likely to be considered a trade secret. The IP clauses need to be checked.
- Ben Paton Reply
  
  May 15, 2016 at 8:44 pm
  
  All this quibbling over definitions is besides the point – which is that the contractor’s website states:’All inputs to the model are readily ‘user-defined’ allowing council officers to test different scenarios or update the model as new information become available’.
  
  Despite this the council does not have a copy of the model.
  
  Before splitting hairs about whether copyright is or is not ‘intellectual property’ we should address the logically prior question: is there any evidence that the contractor has or could have any ‘intellectual property’ in the model?
  
  In order successfully to claim patent rights the applicant must show i) that the intellectual property in question is truly novel and 2) that there is no existing prior art.
  
  The subcontractor, Justin Gardner Consulting, has not filed any patent claims that I’m aware of. Prima facie it does not have any particular defensible intellectual property in the model.
  
  It is not credible that an excel spreadsheet projecting population growth is novel.
  
  Besides which, the whole purpose of the projections was and is that they should be made public for a public purpose pursuant to a legal process i.e. creating a local plan. It is ludicrous for the contractor to claim after the event that the model cannot be disclosed – especially when its website says it can be disclosed.
  
  It is absurd that there is any proprietary ‘technology’ involved in creating these statistics. Statistical science has been with us since the eighteenth century. Moreover the guidance states that the modelling should be ‘replicable by others’ and should not be a ‘black box’.
  
  If it is a black box then it cannot be tested by the council or by third parties. It therefore fails the most basic test of objectivity – falsifiability. It is just to be taken to be infallible and neither GBC nor the consultant condescend to show their workings. Why? Because the consultant does not want daylight let in on its magic? Isn’t daylight the best antiseptic against wrongdoing?
  
  If it really is the case that GBC has commissioned demographic projections to be created using a ‘black box’ technique that cannot be disclosed then that invalidates the whole process.
  
  The terms and conditions of the contract make it clear that GL Hearn was supposed to do the work itself – not to subcontract it – and that it was supposed disclose the model. A similar contract between GL Hearn and Waverley expressly provided for GL Hearn to train Waverley staff to use the model independently.
Paul Spooner Reply

May 16, 2016 at 8:34 am

Diane Doney is correct.

Unfortunately, Mr Paton is not listening because he does not accept the reality of the situation. He should challenge the validity of the SHMA with PINS Inspectorate at the appropriate time or through JR if he really believes the council is being obstructive and/or the SHMA is fundamentally flawed with respect to OAN.

In relation to Ms Malthouse she has enough personal experience to know that council officers should not do anything that is unlawful or place a council at significant risk because of elected members requests and that is entirely appropriate. My direction has been to release anything we can legally release.

Paul Spooner is the ward councillor for Ash South & Tongham and the council leader.
Jules Cranwell Reply

May 16, 2016 at 1:46 pm

Over 1,000 people have asked for this information to be released, by way of a petition.

Who then is not listening?

This last comment from Mr. Spooner is along the lines of ‘plausible deniability’.

At minimum, he could ask Justin Gardner to release the model for public scrutiny, in the interests of openness and accountability.

All of Mr. Paton’s arguments add up. Those from GBC do not.

Anyone can see that it is ludicrous to argue that the model cannot be made available, as it is a legal requirement for the SHMA to be replicable, and to be tested.

What does GBC have to hide through such obfuscation?
Bibhas Neogi Reply

May 16, 2016 at 4:03 pm

I would have thought an explanation from the GBC lawyers is warranted here. Whether a government contractor can use a methodology that is the company’s secret and not known to anybody is questionable since its validity cannot be proven independently.

How can the contract be evaluated if the methodology used is not available for scrutiny? It could be any old rubbish cooked up to look meaningful, so where is the value for money?
Valerie Thompson Reply

May 16, 2016 at 5:48 pm

When the revised Local Plan is published those people who feel that GBC has broken rules by its refusal to disclose the information, by which Justin Gardner Consulting arrived at the decision to recommend inflated housing needs in Guildford Borough, should vigorously complain to the planning inspector, during the consultation period.

Mr Spooner has not explained why he allowed the rules on sub-contracting to be broken. What is being hidden? I thought he was going to make GBC more open and transparent. There is still too much secrecy and obfuscation by GBC.

Why the councillors themselves have not insisted that this information was shown to them I cannot imagine. How can they make decisions on Guildford’s future without knowing the facts?

Ben Paton’s clear reasoning shows shows why these facts need to be made public.

Why should the public be denied access to this information? We have not paid our taxes in order for GBC to avoid gathering the necessary information as to real housing needs, rather than arriving, by secondary means, at housing numbers based on importing unwanted and excessive businesses, shops and offices to Guildford, which will also require large numbers of new residents.

Our parish council and the Neighbourhood Plan group were able, quite simply, to survey the residents as to the actual needs of our village. Guildford could have asked, with very little effort or cost, each parish to conduct a similar exercise.
Michael Aaronson Reply

May 17, 2016 at 12:38 pm

May I add that this is not just a legalistic wrangle; the consequences of adopting the housing numbers contained in the Local Plan include the destruction of the rural environment – in the case of Normandy, as I have pointed out elsewhere, the elimination of the open space that currently separates the two hamlets of Normandy and Flexford, making an important contribution to the openness of the green belt.

It would be appalling were this to happen because of flaws in a methodology that is hidden from our sight.