Decision making, committees and probity

Date: presentation updated June 2014www.pas.gov.uk

This presentation• Context of planning and decision making

• National planning policy, the Development Plan and other material considerations

• Decision making basics

• Probity and pre-determination

• Committees

Planning…

• Manages growth in the public interest• sets out a long term vision for places• provides a decision making framework to

manage competing uses for space;• balances economic, social and environmental

needs.• provides legitimacy through consultation and

testing of evidence; • delivers change on the ground

Planning creates headlines

Planning involves balancing issues

economic recessionclimate change

environmental issues

meeting housing needs localism

long term strategies today’s pressures

brownfield development town cramming

retail “market forces” viability of town centres

individual interest public interest

Understanding the System

• Planning takes place within the context of a system, which is defined by: – Legislation – Regulations and Orders– Case law– Policy and guidance (at different levels)– Appeals

• national policy• National Planning Policy Framework (NPPF)

• National Policy Statements• G&T policy• Planning Practice Guidance

• local policy • development plan

• neighbourhood policies• neighbourhood plans

Planning in England is policy-led

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

Development and decisions

• Development needs planning permission (some of which is permitted development)

• Some decisions are made by others

• Mostly, decisions are made by Councils

• Most of these (straightforward, in accordance with policy) is decided under delegated authority

• Leaving Committee to focus on the difficult, contentious, strategic development

Councillors have an important role

• involvement with the community and developers at an early stage

• raising areas of concern

• informed debate

• balance issues and material considerations

• make decision

“…..members are involved in planning matters to represent the interests of the whole

community”Planning Practice Guidance 2013

Who makes planning decisions?

• Local Planning Authority: delegated or committee

• Secretary of State (call-ins)

• Appeals – the Planning Inspectorate

• Government – national infrastructure projects

• Greater London Authority

• Development Corporations/Joint Planning Units

• And there is the role of the courts

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

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

There is a presumption in favour of sustainable development

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.

“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

The main types of material consideration

• National and local policy

• Relevant views of consultees

• Factors on the ground

Other Material considerationscan include:– Overlooking/loss of privacy

– Loss of light or overshadowing

– Parking, highway safety and traffic– Noise– Effect on listed building and conservation area– Layout and density of building

– Design, appearance and materials

– Disabled person’s access

– Nature conservation– Consultee comments– Previous planning decisions

Non material considerations– Loss of view– Negative effect on the value of properties– Land ownership or restrictive covenants– Applicant’s personal circumstances (unless exceptional

such as relating to a physical disability)

– Business competition

– Too many already (let the market deal with this)

– Damage to property fears– Disturbance during building works– Other matters controlled under building regulations or other

non-planning legislation

Materiality: some recent refinements

• “local finance considerations”

• viability of the development

• Assets of Community Value

• healthy eating policies*

• fear of crime*

* needed the intervention of the Courts

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

Key points

• the policies in the development plan

• other relevant policy considerations

• the results of technical consultation

• all other views – if material

• on its own merits, and in its own context

• come to a view in the light of the debate and officer assessment and recommendation

The Decision • Grant planning permission

- subject to conditions

- subject to planning obligations (S106s)

• Special types of approval or consent e.g. prior approval, listed building consent, conservation area consent

• Refuse planning permission (or prior approval, LBC, CAC etc)

• Planning applications can only be refused for genuine planning reasons

Conditions

“Planning conditions should only be imposed where they are:•necessary;•relevant to planning and;•to the development to be permitted;•enforceable;•precise and;•reasonable in all other respects.”

Para. 206 of the NPPF

S106 obligations• Site specific to that development• Used where it is not possible to use conditions• Often in mitigation of an impact, or to support

provision of infrastructure or affordable housing • Must be necessary to make the development

acceptable in planning terms, directly related to the development, fairly and reasonably related in scale/kind to the development

• The use of planning obligations must be governed by the fundamental principle that planning permission may not be bought or sold

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 should be defendable

Refusing permission

• Are the reasons lawful (which includes being generally “reasonable”)?

• Are they based on planning grounds?• Could you mount a credible case on appeal? • Is there a sufficient “evidential basis” for the decision?• Would anyone reading the decision – especially the

applicant – understand why permission was refused?

Refusing permission (2)

• are you able to 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?

Localism and 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.”

The performance ‘sticks’• Planning guarantee: fees to be returned if no decision

after 26 weeks (unless extension agreed)• Designation: major applications can be dealt with by

PINS where LPA shows “consistently poor performance in speed or quality of decisions”

• Or where a high proportion of decisions on majors are allowed on appeal

This all has implications for your timetable and deferrals

Probity in planning guide

The significance of propriety and good practice in planning• the 1947 Act vested the right to develop land in the State

and created local planning authorities

• planning involves balancing public and private interests (both financial and “quality of life”)

• although the British system is very “clean”, the public perception is often negative (e.g.: “what matters in planning is who you know”)

• so we need to be able to demonstrate fairness, openness and impartiality at all stages of the process

Fair and Unbiased Decision Making

• Consider all proposals on their individual merits.

• Should not come to a firm view on a matter before taking all the material considerations into account (or appear to have done so)

Localism Act 2011 (s25)

• Changed rules around pre-determination – you can express a view, meet with people and still be involved in the decision– provided an open mind is retained

• Abolished Standards Board • Requires authorities to have their own code of

conduct • Introduced a new criminal offence of failing to

disclose or register pecuniary interests

Predetermination & predisposition

• Predisposition (inclination/opinion) is fine; must have a willingness to listen to all material considerations before deciding how to vote

• Predetermination (a ‘closed mind’) is not• The fact that a councillor may have campaigned

against a proposal will not be taken as proof that they are not open-minded

• Lobbying is normal and perfectly proper part of the process – not indicate finally made mind up

Lobbying

Engage, but don’t predetermine• Let other Councillors advocate for their areas• Work with input from applicants as well as from

parishes and the community • Raise concerns with officers• If expressing a view, explain it is your initial view and

may change, taking all valid considerations into account

• Record your involvement

Councillor conduct and role

1) As a Ward Councillor…you can support or oppose an application and represent the views of your constituents

2) As a Planning Committee Member…you still can, but you must still retain an open minded disposition; if not it could compromise your (impartial) role on the committee.

‘Avoid favouring a person, company, group or locality or putting yourself in a position where you appear to do so’

Spot the difference...• “Should I be elected to the Council and serve on the

Planning Committee, I will oppose each and every wind farm application that comes up. They are blots on the landscape and need to be stopped. Enough is enough. NO MORE WINDFARMS!!

• “Should I be elected to the Council and serve on the Planning Committee, I will need a lot of persuading that any more wind farms should be allowed in our District. Many people find them ugly and noisy, and there is evidence that they are harmful to wildlife.”

Has everyone got the message?

“Fracking may well be a useful technology for other areas and good luck to them if it is, however the people of xxxx have our assurance that there won’t be any in our borough.”

Leader of xxx Council 13 January 2014

Interests

• in accordance with the Seven Principles of Public Life, required to register pecuniary or other personal interests

• pecuniary interests MUST be registered

• Council may determine other personal interests to be registered

• or you may ask the monitoring officer to include an interest on the Register

• Best to also raise these at committeeSee Openness and Transparency in Personal Interests: A Guide

for Councillors (DCLG, August 2012)

Planning Committees

• Think about how the public see you – committee as a shop window

• Think about how an investor sees you

• This is how important decisions get made – would you be impressed?– Serious– Clarity

– Transparency– Fairness

If you walked into your committee…

• Would you understand what is going on?

• Does it look ‘professional’?

• Is it clear who the ‘players’ are? – and their roles?

• Do the public know when a decision has been taken and what it was?

Some basics

• Introductions• Explain procedures• Manage public contribution• Don’t allow circulation of new materials• Don’t eat your sandwiches, read the evening

paper, or play with your phone• Politicing• Don’t undermine officers (and vice versa)

Committee site visits

• Council should have a protocol on when and why to hold a site visit and how it will be conducted – ensures a consistent, transparent and fair approach

• Getting the most out of site visits

- well organised

- ascertaining facts

- establishing relationship of site with surrounding features/characteristics

- who can speak (these aren’t lobbying opportunities)

• Be prepared• Be focused:

• focus on the precise points where you agree or disagree with officer assessment

• Know your policies• Stick to policies and material considerations• Ensure your points are valid in planning law (take advice

in advance if necessary)• Be aware of the need for probity and the public

perception of your actions

Being effective at Committee

An effective commitee

• Has 11-15 members

• Acts professionally, fairly, and transparently

• Understands what the job of the committee is; and individuals understand their role

• Reviews how it is doing it’s job

• Makes responsible decisions

Top Tips

1. Respect the process

2. Follow the statutory planning framework

3. Think about the bigger picture – the outcomes, and wider public interest

4. Seek advice from planning officers, solicitors and other technical experts

5. Carefully consider the reasons for your decision, and robustness against challenge

6. Have the right planning reasons: do not make a decision and instruct officers to come up with reasons

7. Regularly review your decisions

Contact PAS

email pas@local.gov.ukweb www.pas.gov.ukphone 020 7664 3000