Mendip District Council has promised that “the options are open” for how the Saxonvale site in Frome will be regenerated – despite councillors voting to sign a legal agreement with the original developer.
The council has granted outline permission to two different schemes to regenerate the vacant site in Frome town centre – one from the Acorn Property Group (comprising 300 homes, commercial units and an arts venue) and one from Mayday Saxonvale (comprising 182 homes, commercial space, a lido, hotel, spa and other facilities).
The council’s asset management group – which makes decisions on council-owned property – voted in Shepton Mallet last week, on 24th August, to sign a legal agreement with Acorn concerning its planning application.
But councillors have sought to assure the public that both the Acorn and Mayday schemes will be fairly evaluated, with the scheme which provides the best value to taxpayers being taken forward.
The decision to sign the legal agreement has been criticised by the alternative Mayday group saying it was unnecessary and that they raised ‘multiple legal issues’ but these were ‘not referenced when assessing the risks of signing or not signing the S106.’
“We hold the council to their word that they will open discussions that can include an alternative candidate for the site,” said Damon Moore and Paul Oster, Mayday Saxonvale directors, after the decision.
Here’s everything you need to know about how we got to this point, and what could happen next:
How did we get here?
Mendip District Council acquired the ten-acre Saxonvale site in August 2018, with the then-Conservative administration entering into a sale and overage agreement with Acorn – meaning the council will receive additional money if the value of the site increases after development.
The council purchased additional land from Frome Town Council in March 2019 and subsequently secured a further 9.2 acres from Notts Industries and Terramond. In February 2020, the council was provided with £3.935M from Homes England to clear the site for any future development – of which all but around £430,000 has currently been spent.
Acorn’s plans to redevelop the site were originally approved by the council’s planning board in January 2021, and were re-approved in September the same year in light of the council’s planning policies being updated.
In both cases, approval was granted subject to various conditions and a Section 106 agreement being signed between Acorn, the district council and Somerset County Council.
This draft agreement was uploaded to the council’s planning portal on March 22, 2022 – more than a year after the initial vote to approve the plans.
Mayday Saxonvale formally submitted plans for its alternative vision for the site in November 2021, but they did not come before the planning board until August 17, 2022 – where they were approved by a wide margin (again, subject to conditions and a signed Section 106 agreement).
What is in the Section 106 agreement?
A Section 106 agreement is effectively a contract between a housing developer and the council, in which the former agrees to contribute either physical amenities or money towards these as part of a development.
In the case of the Acorn proposals, the Section 106 agreement includes a commitment to the following:
• 24 per cent of the homes will be affordable
• Contributions to local schools
• Improvements to Garsdale and the Gorehedge roundabout
• A footbridge over the River Frome, linking the site to Willow Vale
• Public open space within the site
The Mayday Saxonvale agreement – which includes similar commitments, but a greater proportion of affordable housing – will be negotiated with the council and come back before the planning board for final sign-off before Christmas.
Why did the council want to approve the Acorn agreement just after its planning board approved the Mayday plans?
The council is an unusual position with the Saxonvale site, since it is both the landowner and the local planning authority.
To ensure the council makes objective planning decisions which comply with both local policy and UK law, its planning and asset management functions are handled by different departments, which do not regularly communicate.
While planning decisions are routinely made in public by the planning board (or by planning officers through their delegated powers), decisions about the council’s assets (such as land and buildings) are made by the asset management group.
This latter organisation, comprising council leader Ros Wyke and three other cabinet members, makes the majority of its decisions in confidential session due to the commercially sensitive nature of its remit.
Details of the group’s decisions are typically published one month after they have been ratified – a change which was only introduced following criticism from the council’s auditors in April 2021.
Councillor Barry O’Leary, the council’s portfolio holder for enterprise and finance, clarified this distinction when the asset management group met on 24th August.
He said: “Theoretically, I could put a planning application in for Buckingham Palace, to turn it into 100 one-bedroom apartments, even though I don’t own Buckingham Palace, obviously.”
How has Mayday Saxonvale responded to this turn of events?
Mayday Saxonvale director Paul Oster addressed the asset management group, at a meeting which was picketed by a number of the scheme’s supporters – at least one of whom was asked to leave after being disruptive.
He said, “The local community has made it abundantly clear that the Mayday plan is the right plan for Frome.
“The council can now initiate discussions with both Mayday and Acorn to establish which plan provides the best consideration for their land interests, together with offering the best outcome for the residents of Frome and the future of our town.
“We’ve received no contact from the council to initiate such a process. Instead, the council’s response is to seek the approval of the Acorn Section 106 agreement.
“It is unclear why, a week after Mayday achieved planning consent, this is such an urgent matter.”
Paul Oster added that signing this agreement would limit how far the Acorn scheme could be scrutinised or amended in the future – and warned that Mayday could lodge a judicial review against the council.
He said, “If the Section 106 is signed, then it would be the only opportunity to challenge Acorn’s planning permission, and so we would be forced to launch a judicial review.
“This would be costly for the claimant and the council. As well as further delaying the development of Saxonvale, it would damage or possibly end the chance of positive engagement with Mayday, to ensure the right decision is taken for the Saxonvale site.”
A separate judicial review, concerning the demolition of “listed and heritage buildings” within the site – all of which are key to the Mayday proposals – is due to be heard in court on 16th September.
Paul Oster claimed that Mayday offered to delay this hearing until November to allow for further discussions with the council, but that this offer had been refused.
He concluded,“Your approach appears designed to block any prospect of the Mayday plan being delivered, despite the clear desire of your constituents in Frome for this to happen.
“We would politely ask that you stop pretending that Mayday Saxonvale doesn’t exist. Please stop ignoring the community in Frome that elected you and whom you represent.”
Does signing the Acorn Section 106 agreement stop the Mayday Saxonvale scheme from going ahead?
According to the council, the answer is no.
Adam Savery, the council’s senior property officer, said that approving the Section 106 agreement did not mean that the Acorn scheme was the only one which could proceed.
He said in his written report, “It should be noted that agreeing to the Section 106 agreement will not affect the council’s current position as owner of the freehold of the site.
“Under the provisions of the sales and overage agreement entered into with the developer, it would remain free to pursue the best option for the taxpayer.”
Keith Pennyfather, the council’s lead property officer, said signing the agreement was “a relatively small part of the process” towards any development of the Saxonvale site.”
He added that not signing the agreement would put the council “in breach of contract” with Acorn, warning that “there could be consequences”.
Ms Wyke added, “The options are open. The options would not be open if we failed to signed this, because then we would be going into litigation with a third party.
“That is really serious and quite significant in terms of finance, time and the impact which it could have on the site.”
Was Mayday Saxonvale denied access to the site by the council?
When the Mayday Saxonvale proposals came before the planning board, it was alleged that the council as landowner had denied the applicant the chance to access the site to carry out ecological surveys – one of the four reasons planning officers had proposed for a refusal.
Cllr Ros Wyke sought to deny these allegations, stating on 24th August,“At no time did we refuse access to the site for Mayday.
“In May 2021, an email was received from a party not declaring that they were working for Mayday, asking for access to the site.
“At the time we responded that we were not able to support and facilitate access. This was largely due to health and safety implications of the remedial work being carried out on site by our contractor.
“At no time since then has Mayday corresponded with myself, the chief executive, our property team or anyone else requesting access to the site.”
However, it subsequently emerged during the same meeting that the email in question was sent by Andrew Kirby – who is listed as the lead architect of the Mayday Saxonvale scheme on the group’s website.
Furthermore, cllr Wyke divulged that there had been emails regarding access to the site from the same party on April 14, 2021 and April 23, 2021, as well as numerous phone calls during that time – a revelation which prompted laughter and shouts of “you’re cherry-picking!” from members of the public.
The remedial work to the Saxonvale site – paid for by the Homes England grant – included re-covering open manholes, removing unwanted vegetation and disposing of contaminated land. Crucially, it is not tied to a specific planning application.
So, why is this decision happening now?
Cllr O’Leary said the current state of affairs had been brought about by a “schoolboy error” from the previous administration when it signed the initial sale and overage agreement with Acorn.
He said, “Councils do things in strange ways, that’s for sure. You don’t run a business like this – you wouldn’t even run a family like this, no matter how dysfunctional your family would be.
“We and our predecessors signed a binding contract with a third party, and so we are locked into this contract and need to fulfil our duty.
“If we did this before planning last week, we’d have been told we were pre-empting the planning decision – and if we did it afterwards, we’d have been told we were seeking to overrule the planning decision. But this has got nothing to do with planning whatsoever.
“Passing this paper allows the progressing of the Section 106 agreement. It doesn’t mean that we think one plan is better than the other. We could have an agreement multiple times over for the same site, though it would be an odd thing to do.
“This paper has nil impact on the status of the land – it’s still owned by us. It has nil impact on the status of planning permissions granted to different people.”
As landowner, the council is obliged in law to sell the Saxonvale site (to whomever it chooses) at full market value.
The site was purchased for the benefit of all Mendip residents – not just those in Frome – and the council’s investment in the site must provide a dividend for taxpayers.
Cllr O’Leary added, “When we come to the time to make a decision on this site, it’s not for the asset management group to make that decision at all.
“We [the council] will make the decision based on our rules – getting fair value for money in every sense of the word, our corporate priorities, addressing the climate emergency and the cost of living emergency.”
What happens next?
The asset management group voted to approve the signing of the Acorn agreement after around 90 minutes’ discussion.
Lesley Dolan, the council’s principal lawyer and practice manager, said “further assessments” would now be needed to ensure taxpayers got the best value for money from whichever proposal was taken forward.
She said, “The current valuation and financial modelling are out of date. The valuation and the viability of the Acorn scheme will need to be fully understood and considered.
“The council has a statutory responsibility to obtain the best consideration from the site. It could still choose to explore options other than the Acorn scheme.”
Mayday Saxonale directors Damon Moore and Paul Oster issued a joint statement the following morning, 25th August, in response to this decision.
They said, “We do not deny that the signing of an Section 106 is normal and due process; however, this situation of having two planning applications on the table is unique and exceptional.
“For the first time, the council set out its position on the comparison of the two schemes. It confirmed the Acorn scheme will be re-evaluated and it is not bound to proceed, and it has confirmed it has the mechanisms to consider other options, such as Mayday Saxonvale, and proceed with them if they wish.”
