26. Contact PAS email [email_address] web www.pas.gov.uk phone 020 7664 3000
27.
Editor's Notes
Housekeeping: Instructions if Fire Alarm sounds Where toilets are Switch mobile phones off or to silent
To help you to be clear about your role and how to take part in the planning process so that your community and the council get the most from the system. • Point out the general aim for the session Make it clear: This session is not about (the facilitators) coming in and telling the council how to do things. It is about using a framework of slides and exercises to discuss what is happening at ( Council ). You (the delegates) are the experts on how you do things here. We hope that the session will be an opportunity for councillors to: stop and reflect a bit (you don’t get time to do this enough), share thoughts and ideas with colleagues, and hear from an experienced (Local Government Improvement and Development) councillor peer who may bring a different perspective on things. Depending on numbers, ask the delegates to introduce themselves and very briefly: • Their specific role at the council; What they would like to get out of the session - Flip chart specific matters and return to them at end of the session as part of the recap/close. If time is tight, skip the introductions and ask the delegates to ‘volunteer’ a few specifics that they might like covered. Inform delegates that you will take questions as they arise during the sessions as well as at the end.
This follows the LGA Probity in Planning publication Run through the bulleted list explain: The whole planning process. Not just about decisions made by the planning committee on applications received. Members need to engage in the plan making process and in the implementation of policies through development management and the planning applications process. So its is about the WHOLE planning system. How to get involved / Avoiding the pitfalls. Helping you to understand the different ways you can take part, and how these affect your role in the decision making process. Looking at the different ‘stances’ you might take or views you may have, different ways of expressing your views, and understanding how this and the way you behave can affect the role you play in the decision making process. By helping you understand this, you can avoid some of the pitfalls. ‘ Positive engagement’: The Nolan Report, Standards in Public Life, (it is old now, ask delegates if they are familiar with it?), resulted in pressures on Councillors to avoid contact with developers in the interests of ensuring probity. However in the place-shaping context, early Councillor engagement is now positively encouraged to ensure sustainable development proposals can be harnessed to produce the settlements that communities need. • Positive engagement is a pre-requisite of development management and the delivery of spatial plans
The 2004 Act changed planning fundamentally. It’s taken years for people to begin to appreciate quite how it works and the new flexibility it gives. Many places are still struggling to come to terms with it. The “local development framework” is a portfolio approach to strategic planning, with a long-term core strategy supplemented by thematic or place-specific documents. Importantly, it is evidence-based and has sustainability as a key concern in the process of decision-making. Development management is short-hand for a new culture in planning. Development Control is a strict, rule-based consideration – some have called it “tick box”. Development management is about actively setting out to help good developments happen. Councillors have a leadership role and a development management approach emphasises that this role must begin earlier in the process – not just at application stage.
Councillors need to know that there are rules and a framework within which they operate. (see ‘legislative framework’ below) The key messages to be taken away from this slide are: Should only serve the public interest Maintain honesty and integrity Be as open as possible at all times Reach your own conclusion on the basis of the relevant information This is about the ‘legislative framework’ that councils and therefore councillors operate in. It sets the scene for probity in general and issues of probity that relate specifically to planning. The Local Government Act 2000 introduced the establishment of directly elected mayors and cabinets/executives distinctly separate from planning committees. It introduced the general principles of public service , including four of particular relevance to planning: (• serve only public interest; • honesty and integrity; • be as open as possible • reach your own conclusions). The Act required that authorities must have their own standards committees to regulate activity and encouraged each local authority to have its own code of operating practice . The Local Authorities (Model Code of Conduct) (England) Order contains a model code of conduct as regards the conduct which is expected of members. It states that each authority should adopt a code of conduct applying to its members which must incorporate any mandatory provisions of the model code. Refer to any local codes of conduct that you know of that are good examples Lord Nolan was the first chairman of a commission that highlighted that planning is probably the most contentious matter with which local government deals. While his report created, as mentioned earlier, an unhelpful atmosphere where councillors shied away from any involvement with applicants, it contained many positive recommendations such as that members of planning committees should be trained and there should be greater openness in the planning process.
What is important to remember is that in England planning is part of the democratic process – lots of opportunities for councillor involvement. Most people are comfortable with the involvement of councillors in the planning application process, but our advice is that there needs to be democratic involvement throughout the whole planning process . This process starts with the choices made in the LDF. Because we’re talking mainly about the planning process, we have focussed on the LDF. However, other key documents include the SCS, housing strategy, waste strategy – all of which have councillor leadership. Don’t forget –– What you get out depends on what you put in. There is only so much negotiation to be done on an individual application. Councillor involvement is essential throughout the process to ensure it is in the correct place, or that the balance between economic viability and sustainability of an area works.
Officers and Councillors have different, complimentary,roles Both have to operate in accordance with codes of conduct – Councils will have local codes (for Councillors and officers) - Officers will also be members of the RTPI – with a professional code of practice Planning has a significant impact upon everyone’s environment and their lives, so it is always of great public interest. Must be seen to be following code of conduct in respect of any offers (whether accepted or not) of gifts or hospitality Regular training helps to provide good quality decision making, which in turn, is essential to the reputation and integrity of the Local Planning Authority
The basis of the planning system is the consideration of private proposals against wider public interests. Much is often at stake in this process, and opposing views are often strongly held by those involved. Whilst planning committee councillors should take account of these views, the general role and conduct of councillors and officers is they should not favour any person, company, group or locality, nor put themselves in a position where they appear to do so. Councillors who do not feel that they can act in this way should consider whether they are best suited to serve on a planning committee. We’ll deal with pre-disposition later.
Personal Interest - In general terms, a councillor attending a meeting about a matter which they are aware that he/she or one or more of their relatives or friends has an interest (directly or indirectly, for example, through an organisation of which they are a member, or a company of which they are a director) must disclose to that meeting the existence and nature of the interest at the commencement of that meeting, or when the interest becomes apparent. If the decision to be taken by the meeting may be regarded as potentially affecting the well-being or financial position of that Councillor or one or more of their relatives or friends, then such a ‘personal interest’ must be declared before the matter is discussed, or as soon as it comes apparent to that councillor. Councillors must in all matters consider whether they have a personal interest , and whether their council’s code of conduct requires them to disclose that interest. Councillors must exercise personal responsibility in deciding whether they have a personal interest that should be disclosed. They may seek advice from the authority’s Monitoring Officer and must have regard to any advice from the relevant Standards Committee in doing so. In practice, it is more often than not, that a personal interest will be perceived by the public to be a prejudicial interest.
Prejudicial Interest. A councillor with a ‘personal interest’ also has a ‘prejudicial interest’ in a matter if the interest is one, which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the councillors judgment of the public interest. “ the test is not whether the councillor thinks there is an interest to declare but whether other people, knowing the facts of the situation might reasonably think so”
Council owned - planning authorities determine applications for council-owned land . No need for you to declare an interest merely because the land is owned by the council. Proposals for a council’s own development should be treated with the same transparency and impartiality as those of private developers. If you are a member of the cabinet/executive ,this responsibility effectively makes you an advocate for the development almost represents the ‘internal applicant’. Here, the appropriate approach is likely to be that the member is able to argue for the development but should not vote on the relevant applications. Councillor applications – if you who act as agents for people pursuing planning matters within your authority ,you should not play a part in the decision-making process for those proposals. Similarly, if you submit your own proposal to your authority you should play no part in its decision making; 1) a system should be devised to identify such proposals; 2) the council’s monitoring officer should be informed of such proposals; 3) proposals should be reported to the planning committee as main items and not dealt with by officers under delegated powers. The consideration of a proposal from you in such circumstances would be considered as a prejudicial interest under the code and as such, you would be required to withdraw from any consideration of the matter. The code also provides that you should ‘not seek improperly to influence a decision about the matter’. It is important to emphasise here that ‘improperly’ does not imply that you should have any fewer rights than a member of the public in seeking to explain and justify their proposal to an officer in advance of consideration by a committee. However, whilst a member with a prejudicial interest may now address the committee under the code if the public enjoy the same rights,you should consider whether it would be wise to do so in all the circumstances of the case, which could include the nature of the prejudicial interest and the relationship between you and the remainder of the planning committee. These cases will have arisen in most authorities – if time ask the councillors to reflect upon these cases and the decisions which they made.
It is not a problem for councillors to be predisposed. Predisposition is where a councillor holds a view in favour of or against an issue, for example an application for planning permission, but they have an open mind to the merits of the argument before they make the final decision at the council meeting. This includes having formed a preliminary view about how they will vote before they attend the meeting, and/or expressing that view publicly. They may even have been elected specifically because of their views on this particular issue. Councillors are entitled to have and express their own views, as long as they are prepared to reconsider their position in the light of all the evidence and arguments. They must not give the impression that their mind is closed. Predetermination or bias can lead to problems. It is where a councillor is closed to the merits of any arguments relating to a particular issue, such as an application for planning permission, and makes a decision on the issue without taking them into account. Councillors must not even appear to have already decided how they will vote at the meeting, so that nothing will change their mind. This impression can be created in a number of different ways such as quotes given in the press, and what they have said at meetings or written in correspondence. Rarely will membership of an organisation, such as a national charity, amount to predetermination or bias on its own unless it has a particular vested interest in the outcome of a specific decision that a councillor is involved in making.
Many concerns of poor practice are linked to lobbying Legitimate and best done through councillors How to express an opinion Meetings with interested parties W hat to do if approached A question of balance – councillor’s responsibility Concerns - Concerns about poor practices are often based on the issue of lobbying. Public (and ombudsman) expectation of openess and fairness. Committee members especially need to be careful about expressing opinions until all evidence is presented (or they open themselves up to accusations of bias). Legitimate - applicants, neighbours and other interested parties will approach their ward councillor or members of their planning committee. As the Nolan Committee’s third report states that this is essential for proper operation of the planning system and best done through the councillors themselves. Expressing opinions - members of the planning committee in particular should take care about expressing an opinion that may be taken as indicating that they have already made up their mind on the issue before they have been exposed to all the evidence and arguments. In such situations, they should restrict themselves to giving procedural advice, including suggesting to those who are lobbying, that they should speak or write to the relevant officer, in order that their opinions can be included in the officer’s report to the committee. If they do express an opinion, they should make it clear that they will only be in a position to take a final decision after having heard all the relevant evidence and arguments at committee. Meetings - If a councillor wishes to arrange a meeting with planning officers for themselves and/or a small number of constituents about a planning application, this is best arranged at the council offices. If attending public meetings , members of a planning committee should maintain an impartial role, listening to what is said but not expressing an opinion. Members of a planning committee should be advised of any public meeting either organised by officers or which officers have agreed to attend. Balance - It should be evident that it is very difficult to find a form of words which conveys every nuance of these situations and which gets the balance right between the duty to be an active local representative and the requirement when taking decisions on planning matters to take account of all arguments in an open minded way. It cannot be stressed too strongly, however, that the striking of this balance is, ultimately, the responsibility of the individual councillor.
Benefits - A study by the Audit Commission revealed that private sector stakeholders and others identified that the current lack of councillor involvement at the pre-application stage is a drawback in the system . Local authorities are often understandably anxious about engaging councillors at early stages as they feel this may compromise them once a planning application goes to committee for decision. Champion role - However, this approach is at odds with the current emphasis on the councillors’ roles as advocates for their areas and as community leaders . Both ward councillors and portfolio holders have roles to play in pre-application discussions. Local authorities need to ensure this happens by including councillors but being clear about which role they assume during pre-application discussions. This also needs to be set out in a transparent way for applicants. Positive engagement - The leaflet Positive engagement – a guide for planning councillors endorsed by the government and LGA asks councillors to be prepared to engage with officers in appropriate pre-application discussions. In order to avoid perceptions that councillors might have fettered their discretion in any pre application discussions, such discussions should take place within clear guidelines. These guidelines need to be developed by an authority and published to assist councillors and officers. Discussion ( it there is time) – How have you engaged in pre- application discussions in the past? - Did you consider the protocol? - On reflection would you now do it differently?
Do your officers’ reports provide you with all of the relevant information to allow you to make a sound decision? If not,what is missing? Are the reports too long,too complex or detailed. Do you always read them? If not,why not? Which bits are most/least useful in your opinion and why is this? Do you appreciate why certain technical information has to be presented to committee? The starting point with any recommendation is to consider the relevance of the development plan,then other material considerations should be taken into account Are the relevant material considerations always presented and explained clearly?
Public speaking can enhance the decision making process,but it’s for each Council to decide whether it suits them. There are costs associated with any procedure which have to weighed against the reputation of the Council and whether it adds to the quality of the decision making process. It provides an opportunity for interested parties to feel that their views are being taken into account. Increases confidence in the process. Helps to demystify Planning. Must be operated in accordance with clear rules (eg deadlines for requests to speak,time allowed for each speaker ) with excellent administration It is not an opportunity for any new information or evidence to be introduced or circulated at the meeting. The opposing party must always have been given the time to respond to new information. It should be designed to allow information to be presented to committee,not for speakers to be cross-examined by members Speakers should be reminded that only relevant material planning considerations can be taken into account . Should also note that offensive ,defamatory comments are not accepted
In accordance with the plan- The plan-led system - The law requires that decisions should be taken in accordance with the development plan, unless material considerations indicate otherwise (s38A Planning & Compensation Act 2004). Material considerations - if it is intended to approve such an application, the material considerations leading to this conclusion must be clearly identified, and how these considerations justify overriding the development plan must be clearly demonstrated. The application may then have to be referred to the relevant secretary of state, depending upon the type and scale of the development proposed. If the officers’ report recommends approval of such a departure, the justification for this should be included, in full, in that report. The Association of Council Secretaries and Solicitors ’ Model Planning Code advises planning committees to take the following steps prior to making a decision contrary to officers’ recommendations: • encouraging the formation of tentative reasons by discussing a predisposition with planning officers beforehand; • writing down the reasons as part of the mover’s motion; • adjourning for a few minutes for those reasons to be discussed; • if a very strong objection from officers on validity of reasons, considering deferring to another meeting to have the putative reasons tested and discussed. If the planning committee makes a decision contrary to the officers’ recommendation (whether for approval or refusal), a detailed minute of the committee’s reasons should be made and a copy placed on the application file. Thus, members should be prepared to explain in full their reasons for not agreeing with the officer’s recommendation.
Consistent – little consistency amongst councils on the operation of site visits, both in terms of why they are held and how they are conducted. While a variety of approaches can be healthy, the lack of any common approach on when and why to hold a site visit and how to conduct it can leave a council open to the accusation that such visits are arbitrary and unfair or a covert lobbying device. A protocol setting out the arrangements for a council could be used to encourage consistency and transparency of process. Councils should set out the criteria for deciding when a site visit is justified and consider the procedures for such visits. In doing so, the following points may be helpful: • site visits can cause delay and additional costs and should only be used where the expected benefit is substantial; officers will have visited the site and identified material considerations on behalf of the council; A site visit is only likely to be necessary if • the impact of the proposed development is difficult to visualise from the plans and any supporting material, including photographs taken by officers; or • there is a good reason why the comments of the applicant and objectors cannot be expressed adequately in writing, or the proposal is particularly contentious • they should be carefully organised to ensure that the purpose, format and conduct are clearly established at the outset and subsequently adhered to throughout the visit; Site visits – points to note: • they are intended to be fact- finding exercises • you should use the opportunity to establish the relationship of the site/buildings with surrounding buildings/features/characteristics • it is not part of the formal consideration of an application • the applicant/agent may not address the meeting, unless it is to establish points of fact (for example, identify location of development proposal within the site) • there is no public right of attendance and they are not permitted to address the meeting • the planning officer must attend to explain the proposal and answer questions • wherever possible you should make notes so that you can accurately recall the visit when the application is formally considered at the committee meeting • in preparing for the committee meeting if you believe the visit highlighted issues that are not addressed in the officer’s report, liaise with the officer prior to the meeting It is recognised good practice for councils to adopt criteria for site visits: • they should only be used where substantial benefit • the purpose, format and conduct must be clearly established and adhered to • the reasons for site visits should be minuted • preferably it should involve inspection by panel or subcommittee only, with officer assistance; otherwise all parties must be treated fairly and equitably (Ombudsman) • no delegated powers – report back to committee
Making the most of attending public meetings/developer presentations/open days and so on: A council will itself often organise presentations to keep councillors informed generally on matters which appear to have or are likely to have strategic importance for the authority. Councillors may sometimes be invited to attend presentations/open days etc on likely development proposals by developers. Councillors should: • be circumspect in accepting such invitations and give consideration to how their attendance might be perceived • maintain an impartial role , listening to what is being said and asking questions, but not expressing an opinion • use the opportunity to listen to different viewpoints • if the meeting raises issues you would like to see investigated further liaise with the planning officer after the meeting • declare their attendance and role therein at such meetings at the appropriate stage at the committee meeting
The report of the Audit Commission Building in Quality recommended that councillors should revisit a sample of implemented planning permissions to assess the quality of the decisions. Such a review should improve the quality and consistency of decision-making, strengthening public confidence in the planning system, and can help with reviews of planning policy. Such reviews are best undertaken at least annually. They should include examples from a broad range of categories such as major and minor development; permitted departures; upheld appeals; listed building works and enforcement cases. Briefing notes should be prepared on each case. The planning committee should formally consider the review and decide whether it gave rise to the need to reconsider any policies or practices. Scrutiny committees may be able to assist in this process but the essential purpose of these reviews is to assist planning committee members to refine their understanding of the impact of their decisions from the visiting of completed developments. It is therefore important for planning committee members to be fully engaged in such reviews.
Prompts if none are asked: Has this session given you the information you expected/need? If not,what points/issues would have helped you? What is the one useful/essential point which you will take away from this session? This session covered a wide range of issues – Are they any areas/issues which would benefit from more information/further training?
Committee on Standards in Public Life (1997) Third Report: Standards of Conduct in Local Government in England, Scotland and Wales, Volume 1 Report Cm 3702-1: http://www.public-standards.org.uk/Library/OurWork/3rdInquiryReport.pdf The Local Authorities (Model Code of Conduct) (England) Order 2007: http://www.opsi.gov.uk/si/si2007/uksi_20071159_en_1 National Development Control Forum (1988) Guidelines for the Handling of Planning Applications Royal Town Planning Institute Code of Professional Conduct: http://www.rtpi.org.uk/download/154/Code-of-Professional-Conduct-2007.pdf Royal Town Planning Institute (1997) The Role of Elected Members in Plan-making and Development Control A Study Commission from the School of Planning, Oxford Brookes University Standards Board for England, May 2007 Code of Conduct – Guide for members http://www.standardsboard.gov.uk/TheCodeofConduct/Guidance/CodeofConduct/filedownload,16126,en.pdf Standards Board for England Occasional paper August 2007 Predisposition, Predetermination or Bias and the Code http://www.standardsboard.gov.uk/Publications/OccasionalPaper/filedownload,16105,en.pdf Members involvement in planning decisions, Department of Communities & Local Government 2007 London Councils November 2007 Connecting Councillors with strategic Planning Applications http://www.londoncouncils.gov.uk/Transport/Publications/connectingcouncillorswithstrategicplanningapplicationsagoodpracticeguideforlondon.htm Positive Engagement – a guide for planning councillors 2008 leaflet PAS http://www.pas.gov.uk/councillors Association of Council Secretaries and Solicitors, 2007 Model Members’ Planning Code of Good Practice update: http://www.acses.org.uk/public_file/filename/8/ACSeS_Members_Planning_Code_update_draft_07_07.pdf Councillor Involvement in pre application discussions Development Management Practice Project Guidance note 3, 2007 Planning Officers Society: http://www.planningofficers.org.uk/documents/Guidance_Note_3_Member_pre_application_discussions.pdf The Planning System – matching expectations to capacity Audit Commission, February 2006: http://www.audit-commission.gov.uk/Products/NATIONAL-REPORT/EFF8A0E9-4071-4fc9-8099-77FDFBD3D7CB/Planning_FINAL.pdf Published by CLG on behalf of the Killian Pretty review Planning applications; a faster and more responsive system Final Report November 2008: http://www.planningportal.gov.uk/uploads/kpr/kpr_final-report.pdf
