Making robust planning decisions which can be defended to the public and at appeal can be challenging. The ‘Localism' agenda has changed some expectations. If your council would like to review, reflect and learn from some of its past decisions, we can support you on this. - See more at: http://www.pas.gov.uk/web/pas1/events/-/journal_content/56/332612/6206809/ARTICLE#sthash.e4ZUvPZf.dpuf
2. What is Planning Advisory Service for?
The Planning Advisory Service exists to
provide support to local planning authorities
in England to provide efficient and effective
planning services, to drive improvement in
those services and to respond to and deliver
changes in the planning system
4. Objectives for this session
• Think about how decisions are made
• And how they might be improved
• So that you can justify them to:
– Applicants
– Residents
– Inspectorate
• Avoid costly mistakes
• Enhance Council’s reputation as ‘good people
to do business with’
5. We will look at
• Context for planning decision making
• Councillors role
• Taking defensible decisions and avoiding
unreasonable behaviour
• Consequences
• A case study from here
6. The job of the planning decisions
• Planning isn’t just about stopping bad stuff
from happening
• It’s proactive, encouraging development that
delivers the right stuff for your community
and accords with your plan and strategic
objectives
8. The context for decision making
• Development requires planning permission.
Some of which is ‘permitted’ (PD)
• Nearly all decisions (99%) are taken by local
authorities
• Some are taken by Government (major
infrastructure), the Inspectorate (for
government), the Greater London Authority,
and agencies (joint planning units,
development corporations)
• Refusals (and conditions) are open to appeal
• Costs for unreasonable behaviour
• Judicial Review and Ombudsman
9. Planning in England is policy-led
• national policy
• National Planning Policy Framework (NPPF)
• National Policy Statements
• G&T policy
• Planning Practice Guidance
• local policy
• development plan
• neighbourhood policies
• neighbourhood plans
10. The Councillors role
• Officers deal with over 90% of all applications
(delegated)
• Leaving you to deal with the most contentious
(where the weight given to the balance of
planning issues needs Committee
involvement)
• Each development proposal considered by the
Council involves an assessment of the
balance of all material considerations based
on evidence
11. What is a councillor’s role and does
your role change?
• As an area committee member
• As a member of the planning
committee
• As a ward member
• As a member of the Cabinet
• As a member of a political group
12. Duty of an elected member
• Dealing with decisions on planning proposals your
duty is to the whole community
– Avoid bias: predisposition v predetermination
– Consider the implications for the wider community not just
those making representations
– Only take into account material planning considerations
including precedents and previous decisions –
“benchmarks”
– Base decisions on evidence not hunch – reasonableness
– Jurist or elected representative?
13. Localism in Planning
“Reference has been made to the Government’s localism
agenda.....Any decision-maker must determine planning
applications on planning grounds………. in accordance with
the development plan unless material considerations indicate
otherwise. Decisions should not be made solely on the basis
of the number of representations or signatures on a petition,
whether they are for or against a proposal. The Localism Act
has not changed …(this). Nor has it changed the advice
………, namely, that local opposition or support for a proposal
is not in itself a ground for refusing or granting planning
permission unless it is founded on valid planning reasons. “
Eric Pickles 28 June 2012
14. Basic principle: start with the plan
• “……have regard to the
provisions of the
development plan, so
far as material to the
application, and to any
other material
considerations”.
Town and Country Planning Act
1990, section 70
15. The presumption in favour of
development
• At the heard of the National Planning Policy
Framework is a presumption in favour of
sustainable development which should be
seen as a golden thread running through both
plan-making and decision taking.
16. NPPF and decision making
• Local planning authorities should:
– approve development proposals that accord with
statutory plans without delay; and
– grant permission where the plan is absent, silent,
indeterminate or where relevant policies are out of
date…………………..
– unless….adverse impacts of allowing development
would significantly and demonstrably outweigh the
benefits, when assessed against the policies in the
Framework taken as a whole
17. What is the development plan?
• Local Plans: development plan documents
adopted by local planning authority
• Neighbourhood plans: where supported by the
local community at referendum and subsequently
‘made’ by the local planning authority.
• The London Plan (London only): spatial
development strategy prepared by the Mayor.
• Any ‘saved policies’ from the former Regional
Strategies, until such time as these are replaced
by Local Plan policies.
18. “Can we ignore the Development Plan?”
• No, that would be unlawful (s38)
• And anyway it’s your plan, so why would you?
• Can you take a decision which seems to conflict with the
Plan?
• Yes – so long as it is based on the merits of the case, in
the light of all other material considerations, for example:
- a policy is out of date compared with national policy
- the monitoring information shows that the situation
“on the ground” has changed
- an unforeseen opportunity has arisen
19. Material Considerations
• what they are and are not - decided by
statements of national policy or by decisions of
the courts
• the weight that should be attached to each
consideration in any particular case is for the
decision maker
20. Committee application and
determination
• Preparation before planning committee?
• How much weight should be given to the
various issues?
• Useful to have considered conditions/reasons
prior to the meeting and taken advice on their
legality/enforceability/reasonableness
• What does the decision making process look
like to interested parties?
21. Avoiding unreasonableness
• Lack of bias and personal taste
• Precedents from appeal decisions after
detailed examination of evidence
• Precedents from Council decisions -
consistency
• Like a jury you can only base decisions on
evidence (and material considerations)
22. Bad evidence
“the d e n s ity is much higher than the surrounding area”
xx: what do you mean by “the surrounding area”? and higher by how
much, exactly?
xx: and what if it is? That’s not evidence of harm, is it?
“there is a lot of vacancy in the high street”
xx: are you talking about total floorspace? Or do you mean volume?
Or percentage of total frontage? Or perhaps of the number of units?
xx: and how long has this floorspace been vacant?
xx: there’ll always be some natural turnover of occupancy, won’t
there? So it’s not really a problem at all, is it?
“the site is a considerable distance from local facilities
and the bus service is poor”
xx: which “local facilities”? how far is “a considerable distance”? how
frequent is the bus service?
23. Good evidence is a combination of...
verifiable fact and informed and reasonable commentary upon
the facts
•“ the net density of the scheme is 90dph. This compares with an
average of 22 dph within the area shown on my plan no 5. In my
opinion this great discrepancy, while perhaps not conclusive, is an
indication of the incompatibility of the design with the existing
character of the area”
•“in the section of the high street from…to…(both sides), there are
roughly 40 ground floor business units, of which six occupy double
frontages. At 30.5.2012, eight of these (20%) were vacant, six of them
for at least a year. In my opinion, this level of vacancy has a harmful
effect on…..”
•“the nearest primary school / shop / etc to the site is about…..miles
away along an unlit road with no separate footway. I consider it highly
unlikely that anyone would make the journey on foot. There is a bus
service, but it runs only twice a day. I conclude from this that the vast
majority of trips to and from the development will be by private car.”
24. The Committee Decision
• You are not expected to be experts
• You are expected to listen to the experts and
then apply judgement (within the parameters)
• Then either accept the recommendation
• Or explain your ‘rebalancing’ (the weight) of
policies and material considerations to reach a
different decision
• The officer report and the full minute of any
decision not to accept the recommendation
then provides a transparent audit of how the
decision was arrived at
25. Overturns/different decisions
• Councillors can come to a decision that differs
from the recommendation
• But it must be justified on planning grounds
(based on the plan and material considerations)
• Committee must give justified planning reasons
for decision (it cannot be left to officers)
• May be subject to appeal (or other challenge), so
reasons must be defensible
26. The decision can be challenged
• Appeal - SoS is a higher authority and PINS
stand in his stead – more forensic
examination of issues from national policy
position
• Costs for unreasonable behaviour (even when
not sought) – decisions based on evidence?
• Judicial Review and Ombudsman
27. Reasons for refusal
• Must be:
Accurate
Directly related to the development proposal
Have regard to the development plan
Relate to material considerations
You can always ask officers for advise
28. Ask yourself……
• Is there a sufficient “evidential basis” for the
decision?
• Would anyone reading the decision – especially the
applicant – understand why permission was refused?
• Can you describe the harm that would result if the
development went ahead? And why conditions would
not be sufficient to mitigate that harm?
• Is it clear what the policy support is for the decision?
• Have all the other material considerations been
given the appropriate weight?
29. Managing meetings
• It is important for members to be able to take advice
on precedents and reasonableness of
reasons/conditions if moving a proposal contrary to
officer recommendations
• Some authorities decide they are minded to reach a
decision with the broad reasons for the officers to
report back working up those putative
reasons/conditions or explaining any risks of costs
when full consideration given
• Better if trust to seek advice before the meeting
30. Managing meetings
• During the debate, where the committee has
reached a different balance of material
considerations (to the officer recommendation)
officers could be asked to explain to the committee
before a motion is made:
– Which issues raised by the members/public can be given
weight and why others cannot
– What conditions/reasons are likely to be found reasonable
if challenged
– However as public sessions and appeal rights officers
inhibited and advice before the event is better
33. Summary : reasonableness and
balancing material considerations
• Decisions on behalf of whole community
• Consistency expected - precedents
• Presumption in favour of sustainable
development - needs explaining often
• Officer reports set out material considerations
and recommendation but what if your balance
is different to the recommendation?
• Will you take advice and discuss this and
putative reasons/conditions in advance?
34. Making a planning decisions : key
points
• start with the policies in the development plan
• consider any other relevant policy context, if
necessary
• take into account the assessment of your officers
• take into account all other views – if material
• look at the application on its own merits, and in its
particular context
• come to your view in the light of the officers’
assessment and recommendation
35. Take away tips
• Follow codes of conduct
• Start with the development plan
• Take everything relevant into account
• Seek advice from officers (planning and legal)
• Carefully consider the evidence that might be
needed to defend a decision at appeal
36. Take away tips …
• Reach a decision that a reasonable decision
maker, properly directed, could have reached
• If you refuse, make sure you have sound
planning reasons which are reasonable
• Visit the results of your decisions - to improve
quality and consistency of decision making
37. Contact PAS
email pas@local.gov.uk
web www.pas.gov.uk
phone 020 7664 3000
Editor's Notes
The slides in this presentation provide the basis for and introductory presentation for this councillor training support.
Each time the presentation is used, it should be tailored to address the key issues around making defensible planning decisions following discussions with the LPAs lead planning officer.
Funded by DCLG but live with the Local Government Association 3rd iteration (speed of decisions/plan making/planning reform)
DCLG set out terms and priorities
Commissioners from framework/peers
Events, training, one to one, groups of councils, tools, case studies, discussion forum, peer reviews, benchmarking……..
Not just the committee, but all planning decisions
It isn’t a regulartory thing – its about making the decisions to implement the plan.
Regard development proposals as opportunities for area
Economic (CIL, New Homes Bonus, Business rates)
Social (Affordable housing)
Environmental (Open space)
The decisions you make will be controversial – affects people’s lives as an applicant and/or resident or business owner/ community
How you make your decisions and reason for them must be transparent
Localism and what it means in practice is widely misunderstood by the community
More articulate community, social media campaigns - Pressures on councillors as committee leaders and decision makers
Planning is done within parameters – law, the plan, the material considerations
Balance, evidence & bias
Can be difficult and make you popular – or not
Affects people’s lives
Involves balancing different priorities
Getting it wrong can be costly
Planning permission is required for development
'Development' is defined by statute in the Town and Country Planning Act 1990 s55(1), as 'the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land'. This definition is clarified by the remainder of s55 and the inclusion of the Generally Permitted Development Order 1995 and the Use Classes Order 1987.
Most planning applications are determined by either district/borough councils (or unitaries) .
County Councils (or unitaries) determine specific applications for development associated with minerals and waste and the authority’s own development (eg. Schools)
Other agencies determine specific categories of development (eg. Infrastructure Development Commission – major national infrastructure projects ,or development corporations which determine applications in certain areas to help drive regeneration )
The rules and powers are set out in the Town & Country Planning Act 1990 and associated legislation.
Town & Country Planning (General Permitted Development ) Order 2005 and subsequent amendments specify which development can be implemented without the need for planning permission . This is referred to as “permitted development “
Decision makers are requirement to balance all material considerations on behalf of the whole area, rather than reflecting the views of a small part of the community.
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
Councillors need to understand their role –this will vary depending upon the details and location of a development proposal.
The primary role of the members of planning committee is to make decisions for the benefit of the whole community, not factions or individuals.
Occasionally (for instance where development is proposed in their ward ) a member of the committee may choose to be a local advocate (either supporting or opposing the development). In these cases the member would be able to address the planning committee, but could not be a member of the committee determining that application.
Good decision making - adding value to decision making
- only getting involved where you can make a difference
- Having a good scheme of delegation
the Standards Board regime abolished
a new criminal offence of failing to disclose or register members’ interests introduced .
the concept of predetermination abolished so that councillors are able to express an opinion on a proposal at an early stage, but still be involved in taking a decision upon it provided they retain an open mind
Localism has not changed the basis for making planning decisions
“It cannot be that a strategic facility to provide for the needs of a very wide area can be decided solely on the basis that the local community do not wish it to be located within their area. This would be to hold much needed, major development to ransom. If applied widely, this could hold up economic recovery as well as deprive future generations of important developments and facilities.”
“There is nothing in the Act…or the Framework which indicates that … very localised group of residents should be able to prevent planning permission being granted simply because they do not want it.”
28 June 2012, SoS decision.
A major waste management and energy recovery facility in Leicestershire. Considerable public opposition to the proposal.
LB Richmond refused a mezzanine on traffic, parking, and unneighbourliness grounds after an inspector at a previous appeal decision on the same site only considered design to be at issue and defended their decision as being driven by Localism as they had been pressed very strongly by residents. Costs were awarded against the Council in June 2012 because they were judged to have been unreasonable. (Aaron House, Bardolph Road, Richmond on Thames APP/L5810/A/11/2166737/NWF). Eric Pickles restated the government view that local opposition or support is not in itself a ground for refusing or granting planning permission unless founded on valid planning reasons in June 2012 (see slide 18)
Restated in 2004 TCP Compulsory Purchase Act
It’s the law.
Might know yours as a core strategy
Arguments that an application is premature are unlikely to justify a refusal of planning permission other than where it is clear that the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, taking the policies in the Framework and any other material considerations into account.
Such circumstances are likely, but not exclusively, to be limited to situations where both:
a) the development proposed is so substantial, or its cumulative effect would be so significant, that to grant permission would undermine the plan-making process by predetermining decisions about the scale, location or phasing of new development that are central to an emerging Local Plan or Neighbourhood Planning; and
b) the emerging plan is at an advanced stage but is not yet formally part of the development plan for the area.
Refusal of planning permission on grounds of prematurity will seldom be justified where a draft Local Plan has yet to be submitted for examination, or in the case of a Neighbourhood Plan, before the end of the local planning authority publicity period. Where planning permission is refused on grounds of prematurity, the local planning authority will need to indicate clearly how the grant of permission for the development concerned would prejudice the outcome of the plan-making process.
So remembering that “……have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations”.
What are those material considerations?
READ THE PAPERS IN ADVANCE & TALK TO OFFICERS IN ADVANCE TOO
Once it is agreed that an application will be determined by planning committee the committee member needs to be aware of their role in this process and the factors which should (and should not) be taken into account
This section will also provide councillors with an opportunity to discuss the usefulness of speaking at committee and committee site visits in the decision making process.
“xx” is the kind of cross-examination point which would be put to a witness at a PLI – note the “forensic” nature of the exchange.
But even in written reps and hearings cases, the evidence will be carefully scrutinised by appellants and the Inspector
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
Need to have sound reasons and evidence (and to have followed appropriate procedures) for committee decision
3 types of appeal
Risk of costs
Judicial Review now less expensive and therefore more common
Ombudsman and complaints procedures – lessons learned ?
Reputation of your Council
Remember, all this can be challenged and unpicked at an appeal.
Poor decision making (brought into focus via appeals) is wasteful – costs time and money. And bad for a council’s reputation.
This is good practice
And if you want to talk this through with an officer before the committee that is fine – it is not predetermining yourself to ask these kinds of questions.
Details of a recent planning decision that was lost on appeal
List of key issues from the case study presentations ( agreed with officers) for discussion
Facilitated discussion on each issue to reach agreed actions for follow up report
