Good Practice Protocol for Councillors when Dealing with Planning Matters (Revisions Awaited)
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Good Practice Protocol for Councillors when Dealing
with Planning Matters (Revisions Awaited)
Background
1. In May 2002 the Borough Council
adopted a new Code of Conduct for Councillors. That code
applies at all times to all Councillors not just in relation to
planning matters. However, some provisions of the Code of
Conduct are of special importance in the planning process. In
addition to the Code of Conduct there are other legal and
procedural rules which must be followed by Councillors when dealing
with planning matters. In particular decisions on planning
matters must avoid bias or even the appearance of bias which is
just as damaging to public confidence in the planning system.
2. The Local Government Association (LGA)
recommend that Councils should adopt local protocols of good
practice to supplement the statutory Code of Conduct and to assist
Councillors in ensuring all planning decisions are well founded and
are reached impartially. In 1997 the Nolan Report on
Standards in Public Life found that:
“Not everyone will understand or abide by
rules of conduct. Indeed since huge profits may turn on a
planning application, the risks may be greater there than
elsewhere. A robust and effective system of checks and
balances should be put in place to reassure the public that
misconduct is kept to a minimum”.
3. The Council’s Code of Conduct goes
some way to meeting this objective. However it is appropriate
that the Code should be supplemented by this more detailed good
practice Protocol focussing on planning matters. It has been
prepared taking account of the LGA publication “Probity in
Planning” (2002), and guidance from ACSeS (Association of Council
Secretaries and Solicitors) which itself was produced in
consultation with the Standards Board for England, the Audit
Commission and the Local Government Ombudsman
Aim and Scope of this
Protocol
1. The purpose of this Protocol is to
support and assist the Borough Council in the proper discharge of
its functions as planning authority and to ensure there are no
grounds for suggestion that a decision has been biased or otherwise
not well founded. This applies whether those functions are
being discharged by Officers, the Executive, the Planning Committee
or the Council.
2. This Protocol applies to all Borough
Councillors at all times when dealing with planning matters or
involved in planning decisions. Therefore it applies not only
to decisions on planning applications in Planning Committee
meetings but also, for example, to decisions on enforcement and
preparation of the development plan or Local Development
Framework. It should also be followed on less formal
occasions such as meetings with Officers or the public or
consultative meetings.
3. This Protocol does not apply to parish
councillors although it would be good practice for them to act in
accordance with it when they deal with planning matters.
However parish councillors who are also members of the Borough
Council’s Planning Committee must be conscious of the need to avoid
the appearance of bias when they consider a planning matter at
parish council level. This is dealt with in more detail in
Section B of the Protocol ‘Retaining an Open Mind’ under the
sub-heading ‘Dual Role Councillors’.
4. This Protocol is not part of the
Borough Council’s adopted Code of Conduct. However, breach of
this Protocol may in some circumstances also amount to a breach of
the Code of Conduct. Therefore a breach of this Protocol may
result in a complaint to the Standards Board for England.
Other breaches of the Protocol which do not amount to breaches of
the Code can be the subject of complaint to the Monitoring Officer
and consideration by the Borough Council’s Standards
Committee. The issue of monitoring of this Protocol is dealt
with below.
5. Members should also be aware that
breach of this Protocol could place the Council at risk of Court
proceedings as to the legality of a decision or a complaint of
maladaministration to the Ombudsman. Thus a breach could have
serious consequences for the Council as well as personal
consequences for the councillor.
6. It is therefore important that
if any Councillor has doubts about the application of this protocol
to his or her own circumstances, advice should be sought from the
Monitoring Officer or his staff as early as possible in advance of
any meeting taking place.
7. All references in this Protocol to
‘he’ or ‘his’ should be taken to include ‘she’ or ‘her’ and vice
versa.
Monitoring of this
Protocol
1. This Protocol is part of the Council’s
Constitution. It is not however part of the Council’s Code of
Conduct. Any person whether an officer, councillor or member
of the public, may make a written complaint to the Monitoring
Officer that there has been a substantial failure to comply with
the terms of this Protocol.
2. In the event that such a complaint
amounts to a complaint that the Council’s Code of Conduct has been
breached (for example because an interest has not been declared)
the complainant will be advised that the complaint should be made
in writing to the Standards Board for England.
3. In other cases of complaint, unless
the Monitoring Officer in consultation with the Chairman and
Vice-Chairman of the Standards Committee decides the complaint is
groundless or trivial, the complaint will be referred to the
Standards Committee or Sub-Committee for consideration. The
Committee or Sub-Committee will be presented with the complaint as
soon as a meeting can be convened, together with a report from the
Monitoring Officer thereon and any written submissions from the
Councillor(s) the subject of the complaint. In exceptional
cases the Committee or Sub-Committee may consider it necessary to
allow the complainant and/or the councillor(s) to make oral
statements.
4. The Standards Committee will determine
whether there has been a material breach of the Protocol.
There will be a presumption that such meetings will be held in
public and the findings should be published in the same way as
local determination findings under the Code of Conduct
provisions. If they determine there has been such a breach
they may do all or any of the following:-
(a) censure the councillor
(b) request the councillor to undergo
further training or instruction*
(c) in the case of persistent or serious
breaches request that consideration be given by a group leader to
removing or not appointing the councillor(s) to the Planning
Committee whether for a specific period or not and subject to such
terms or conditions as they think fit eg only if the councillor
refuses to undertake further training.
* NOTE: The attendance at
a Planning training session is a pre-requisite to being able to act
as a Member of the Planning Committee or act as a Substitute Member
at meetings of the Planning Committee (Minute No. 247/09/06
refers).
The Protocol Of Good Practice (Revisions Awaited)
Contents
A. Councillor's Interests under the Council's Code of Conduct
(Revisions Awaited)
1. Paragraph 5 of the Council’s Code of
Conduct provides that
“A Member –
(a) must not in his official capacity, or
any other circumstance, use his position as a Member improperly to
confer on or secure for himself or any other person an advantage or
disadvantage”.
2. Under Paragraph 8 of the Council’s
Code of Conduct a Member has a Personal Interest
in any matter if
(a) the matter relates to a financial or
other interest which has to be registered with the Monitoring
Officer (this is the interests form which all Councillors have
filled in containing details of employment, share interests,
land/home ownership, membership of outside bodies, charities etc)
or
(b) a decision upon it might reasonably
be regarded as affecting to a greater extent than other Council tax
payers or ratepayers the well-being or financial position of
himself, a relative or friend
- or any employment or business carried on by
such persons
- any employer of such persons
- any body in which such persons have shares or
securities exceeding £5,000 nominal value
- any public, or charitable or similar body in
which such persons hold a position of general control or
management.
3. These provisions apply when
councillors are dealing with planning matters, as well as all other
matters. They apply to all councillors whether or not they
are members of the Planning Committee. A Member with a
Personal interest must disclose that interest
and the nature of it at the commencement of
consideration of that matter. This applies even to a
councillor who is only attending a meeting to listen to a debate or
speak upon a planning matter as a non-voting councillor.
However councillors should take care not to disclose excessive
detail about the interest as this may be considered as improper
lobbying. For example a Member would meet his obligation by
saying “I wish to disclose a personal interest in that I have a
relative who lives near the site and would be affected by the
development”. The same Member may be accused of improperly
seeking to influence a decision by adding “and the amenity of her
home would be seriously damaged if this development went
ahead”.
4. A Member who has a
Personal interest may, after properly declaring
it, speak (and if applicable vote) on a matter provided it is not
also a Prejudicial interest. A
Prejudicial 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 member’s judgement of the public
interest”.
5. Under paragraph 12 of the Council’s
Code of Conduct a Member with a Prejudicial
interest in a matter must withdraw from the
meeting room altogether and not take any part in the decision or
seek improperly to influence the decision, for example by lobbying
colleagues.
6. It is not always easy to decide
whether an interest is prejudicial. It is important that
advice is sought from the Monitoring Officer as early as possible
in cases of doubt, although the ultimate decision and
responsibility rests firmly with the councillor. However, by
way of illustration the following situations are likely to
constitute prejudicial interests:
- a planning decision relating to a
councillor’s own land or business or the land or business of a
relative, friend etc.
- a planning decision materially affecting a
councillor’s land or the land of a relative, friend etc.
- a planning decision on an application made by
or objected to by a body or authority on which the councillor, a
relative or friend serves or in which such a person has a material
beneficial interest.
7. A ‘relative’ is defined in the
Council’s Code of Conduct as including a spouse, partner, parent,
child, brother, sister, grandparent, grandchild, uncle, aunt,
nephew, niece or spouse or partner of any of these.
Unfortunately “friend” is not defined but it is likely to be
interpreted as something more than an acquaintance. Certainly
a person with whom a councillor is friendly in a regular social
sense should be regarded as a ‘friend’.
8. Mere membership of the same
political group or party in itself will not constitute an
interest. However, if in addition a political colleague is a
‘friend’ in the sense referred to above then this is likely to be a
declarable interest.
9. Although the Council’s Code of
Conduct allows a councillor in limited circumstances to participate
in a decision despite the existence of a prejudicial interest, this
provision must be treated with extreme caution in the context of
planning decisions. Paragraph 10 of the Council’s Code of
Conduct states that a Member may regard an
interest as non-prejudicial if it relates to another public
authority of which he is a member or a body to which he has been
appointed by the Council. However, a planning application by
such a body must be determined and be seen to be determined
impartially and without bias. Therefore any councillor who is
a member of a public body or authority or a nominated
representative on a body making a planning application to the
Borough Council should declare a prejudicial interest and take no
part in a decision upon it.
10. A councillor who has a prejudicial
interest in a planning matter must not speak, vote or remain in the
room during the decision-making process. A councillor with a
prejudicial interest cannot use public speaking rights and address
the Committee as an ordinary member of the public. This means
the councillor will be unable to represent the views of
constituents on the matter. It is important therefore that as
early as possible the councillor makes arrangements for
constituents’ views to be channelled through another
councillor. The councillor with the prejudicial interest may
only make his personal views known on a matter by writing to the
Development Control Manager in his or her capacity as a local
resident. He should not seek to influence the outcome by
lobbying colleagues or seeking to put his own views forward through
another councillor.
11. Summary:
Do take advice from the
Monitoring Officer or one of his staff as early as possible in
cases of doubt.
Do disclose interests in
accordance with the above rules at meetings of committees and also
at informal meetings and discussions with officers or other
members.
Do then act accordingly and
if the interest is prejudicial take no part in the decision, leave
the room and do not seek to influence the decision other than by
writing to the Development Control Manager in your capacity as a
local resident.
Do not lobby fellow
councillors or seek to put your own views through a fellow
councillor on matters where you have a prejudicial interest
Do not try to represent
ward/local views if you have a prejudicial interest. Arrange
with another Councillor to do so instead.
Do not express your own views
or represent the views of another public authority or body to which
you have been appointed if that authority or body is the applicant
for permission or would otherwise be directly affected by the
decision.
B. Retaining an Open Mind and Avoiding Bias (Revisions
Awaited)
1. Planning decisions must be taken
fairly on the basis of all relevant information and ignoring any
factors which are not relevant. Under Section 54A of the Town
and Country Planning Act 1990 all planning applications must be
determined in accordance with the development plan unless material
considerations indicate otherwise.
2. In effect this means that members of
any Committee making planning decisions must not commit themselves
to speaking and voting for or against a particular matter in
advance of hearing all the information relevant to the decision
(and must not be seen to do so). These principles apply
equally to Members who substitute for Planning Committee Members at
any meeting. It is only after reading an officer’s report and
considering all the views which have so far been put forward that a
member of the Committee should determine his stance on a particular
matter. The strength of public opinion for or against a
particular proposal is but one of the material
considerations. A councillor’s overriding duty is to the
whole community not just to ward constituents or any particular
view held by them. A single biased councillor will be
sufficient to render a decision unlawful no matter how many
unbiased councillors take part in the decision or vote in a
particular way.
3. A member of a decision-making
Committee on a planning matter must always be seen to retain an
open mind on a matter prior to formal consideration at a
meeting. If a councillor is seen to have predetermined his
view and fettered his discretion and then takes part in the
decision it will put the Council at risk of a maladministration
complaint or legal proceedings on the grounds of the decision being
tainted with bias. If a member of the Planning Committee
decides in advance that he is bound to take a particular view on an
application (for example because it is so controversial with
constituents in his ward) or acts in such a way that it amounts to
the same thing then that will preclude the councillor from voting
on the matter at the relevant meeting. In effect the
councillor has to choose between publicly supporting or opposing a
particular application and retaining his ability to participate in
the decision itself at Committee. However a councillor will
not have fettered his discretion merely by listening to and
receiving representations from residents or interested parties,
making comments to such people or being a vehicle for the
expression of local opinion at a Committee meeting provided he
makes it clear that he himself is not already committed to voting
in accordance with those views.
4. The principle of Committee members
retaining an open mind is of considerable importance in many common
situations. Each of these is dealt with in turn below
although there is inevitably some overlap between the various
sub-headings:
(a) Lobbying:
lobbying of Planning Committee Members by applicants, objectors etc
is a perfectly proper part of the democratic process.
However, Members’ responses to approaches by applicants, objectors
or other members of the public are of critical importance if they
are not to be seen to have pre-judged an application.
Accordingly when approached, Planning Committee Members should
never commit themselves to speak or vote in any particular manner
or express such a firm point of view that it amounts to the same
thing. In practice Members can respond by saying they
understand the person’s views and that whilst they can report that
view to the Committee they cannot commit themselves until they have
addressed their minds to the full range of information at the
Committee. Members may also advise that the person’s best
interests would be served by putting their views in writing to the
relevant planning officer who will include them as part of a formal
report to Members or be obliged to take them into account if the
decision is taken under delegated powers.
(b) Meetings with Applicants,
Objectors etc: individual members of the Planning
Committee should not attend private meetings with applicants or
groups of objectors on their own. Such meetings, if
considered helpful in order to clarify issues, should be arranged
by or attended by relevant planning officers as well so that those
present at the meeting can be advised from the outset that the
discussions will not bind the authority to any particular course of
action and to ensure the meeting is properly recorded on the
application file and disclosed when the matter is reported to
Committee. The same principle applies to formal presentations
which are sometimes requested by applicants particularly on very
major proposals. Such presentations are a form of lobbying
and whilst Planning Committee Members at such events may quite
properly ask questions and seek clarification about the proposals
they should not express strong views or indicate how they are
likely to vote when the matter comes before the Committee.
(c) Dual Role
Councillors: members of the Borough Council’s
Planning Committee may also be members of other bodies/authorities
who are consultees on a particular planning proposal eg an amenity
society or a parish council. It is important that councillors
wishing to retain their ability to take part in the ultimate
decision at the Borough Council’s Planning Committee do not fetter
their discretion if they take part in consideration of the matter
at an earlier stage when the consultee body forms its view on the
matter. Such ‘dual role’ councillors should therefore make it
clear to the consultee body that any view they express on the
matter is on the basis of the more limited information before that
body and they do not commit themselves to vote in a particular way
when the matter comes before the Borough Council’s Planning
Committee and when fuller information and a full report will be
available. Such councillors should then declare a personal
interest regarding membership of that consultee body when the
matter comes before the Borough Council’s Planning Committee (this
should be done at the beginning of the meeting and there is a
standing item on each agenda to facilitate this).
(d) Ward
Councillors: Planning Committee Members who are ward
councillors for major or controversial planning proposals are in a
particularly difficult situation. Lobbying by objectors may
be particularly strong. If a ward councillor who is a member
of the Planning Committee decides that he must publicly take a
particular position on an application in advance then that will
preclude the councillor from voting on the matter but he – with the
agreement of the Chairman – would still be permitted to speak at
the Committee but should do so not from the normal Members’ seating
area but from the public speaker position and his reason for doing
so should be explained to the Chairman.
(e) Action Groups:
local residents sometimes form action groups specifically to
support or oppose particular planning proposals. The
participation of or association with such groups by members of the
Planning Committee requires particular care. Membership or
active participation will give the appearance a Member is committed
to the aims of the group and therefore to a particular view on the
application. Membership would also need to be registered on
the interest form as an organisation seeking to influence public
opinion and is therefore likely to give rise to a prejudicial
interest when the matter comes before Committee, as well as giving
the clear impression of bias. Accordingly a member of the
Planning Committee would have to choose between being a member of
or supporting such a group or participating in the Planning
Committee decision. A councillor should not do both.
This would not of course preclude the Councillor from receiving the
views of the group. Attendance at any meetings of the group
would be inadvisable unless it is a public meeting and attendance
is on the express basis of listening only and not being committed
to vote on the matter in a particular way until all the evidence is
to hand.
(f) Group Whips:
Planning decisions must be made on the basis only of material
planning considerations. Both the Ombudsman and the courts
have ruled that a decision on a planning matter is unreasonable and
unlawful if a councillor is blindly toeing a party line on a
particular matter. The Ombudsman has expressed the view that
a party whip on a planning decision can in itself amount to
maladministration since it potentially removes councillors’ ability
to make balanced decisions based only on material planning
factors. Councillors must not have closed minds on planning
decisions, whether on the grounds of party loyalty or
otherwise.
(g) The “Advocate”
role: A member of the Planning Committee should not
speak or vote on a planning matter if he has become so associated
with a particular proposal as to be regarded as an advocate for
it. This could arise, for example, when the Council itself is
the applicant for consent and the councillor has taken a
significant role – beyond ordinary membership of another relevant
Council Committee – in proposing or advocating the proposal.
It may also arise, for example, in relation to any proposal which
has been positively promoted or supported by another body on which
the Council is represented by a member of the Planning Committee
eg: any outside body including Ashford’s Future Delivery Board.
(h) Gifts and
Hospitality: Under the Council’s Code of Conduct
every councillor must within 28 days of receiving any gift or
hospitality over the value of £25 provide written notification to
the Monitoring Officer of the existence and nature of the gift or
hospitality. This applies at all times, not just in relation
to planning matters. However, any offer or acceptance of a
gift or hospitality as an inducement or reward for any action a
councillor may take as a Member is prima facie corruption and could
lead to criminal prosecution. The sensitivity of planning
decisions means Members must avoid accepting any gift or
hospitality from an applicant supporter or objector to any current
planning proposal and should take particular care in relation to
offers which may be motivated or seen to be motivated by possible
future planning proposals. Any councillor who considers he
has been exposed to inappropriate offers of gifts or hospitality
should inform the Monitoring Officer immediately.
(i) Referring Delegated Planning
Decisions to Planning Committee: Planning officers
have delegated powers to determine most planning
applications. However, the Council’s Constitution allows ward
councillors (in conjunction with parish councils in parished areas)
to request in writing that determination of an application be
elevated to the Planning Committee. It is important that a
ward councillor who is a member of the Planning Committee so
requesting does not do so on grounds which suggest he has a
pre-determined view on the matter. The Constitution therefore
provides that, whatever a parish council’s reason for requesting
elevation, the ward councillor’s request should be solely on the
basis that he considers the application raises “issues of
significant local importance”.
(j) Ward Councillors as
Consultees on Planning Matters: ward councillors who
are also members of the Planning Committee should not express firm
views on planning applications as consultees in advance of formal
consideration of an application (eg by writing to the planning case
officer). If he does so he is likely to be regarded as having
fettered his discretion and unable to participate if the
application is reported to Committee. In the event a ward
councillor does express a firm view in the belief that the matter
will be determined under delegated powers and it is subsequently
elevated to the Planning Committee the ward councillor will be
regarded as biased and unable to vote on the matter unless he has
made it clear that his view as a consultee is on the basis of
currently available information and he is not committed to that
view in the event that further information becomes available eg
through a Committee report.
5. It is important to appreciate that the
requirement for Planning Committee Members to retain an open mind
does not prevent their taking full part in Council-organised
events/meetings which are sometimes convened in the formative
stages of major development prospects before the decision-making
procedures of the Planning Committee take place. Typically,
such events can take the form of design workshops or presentations
to Members by Applicants or Officers. Whilst the overriding
requirement for Planning Committee Members to avoid expressing or
forming fixed and committed views in advance still applies, such
events provide an important opportunity for all Councillors to
receive information, seek clarification and ask questions and for
Officers/Developers to receive feedback on likely key issues for
the decision-making process.
6. Summary:
As a Planning Committee Member (and this
includes any Councillor substituting for such a Member):
Do retain an open mind on all
matters coming before the Committee and be aware of the wide range
of circumstances in which there is a risk of fettering discretion
precluding you from participating in Planning Committee
decisions.
Do not speak or vote on
matters where you have fettered your discretion in any of the
circumstances described above unless you are a ward member and you
follow the guidance in (d) above.
Do base your judgements only
on material planning considerations and not factors such as party
loyalty.
Do follow the guidance set
out above if you are lobbied or asked to attend meetings with
applicants, objector’s groups etc.
Do take advantage of the
opportunities afforded by Council-organised events during the
formative stages of major development proposals but remember to
avoid expressing committed views on the overall acceptability of
such proposals.
Do take particular care not
to be seen to form a final view on planning matters when they come
before other bodies of which you are a member eg parish councils,
amenity societies.
Do not join or become
identified with any pressure group formed for the purpose of
promoting or opposing specific planning proposals unless you wish
to do so in preference to taking part in the Planning Committee
decision.
Do not accept gifts or
hospitality from applicants or objectors to current planning
proposals.
Do notify the Monitoring
Officer if you consider you have been subjected to inappropriate
lobbying or offers of gifts or hospitality.
Do not allow members of the
public to communicate with you during the Planning Committee
proceedings (including passing of notes) other than through the
scheme for public speaking as this will give the appearance of
bias.
Do make it clear if
responding to consultation letters as a ward councillor that your
view is on the basis of information currently available and you are
not committed to the view in the event that further information (eg
by way of a report to Committee) becomes available.
Do not request a delegated
decision to be elevated to the Planning Committee on any ground
other than that you consider the matter raises issues of
significant local importance.
C. Planning Site Visits (Revisions Awaited)
1. Site visits must be treated as part of
the Planning Committee’s consideration of a planning
application. They are intended to enable Members to evaluate
the nature and impact of proposed development and are subject to
the same restrictions as ordinary meetings of the Committee.
This means:
(a) Members should disclose personal
interests either to the Chairman or a Member Services Officer
before the site visit commences.
(b) no councillor with a prejudicial
interest or whose presence would give rise to bias or the
appearance of bias should attend a site visit.
2. The Council has approved a guidance
note for Member site visits prior to determination of planning
applications. For ease of reference a copy of that note is
attached to this Protocol. The guidance note should be
followed at all times by Members.
3. It is important to avoid any
appearance of bias which could arise by entering an application
site other than as part of an official site visit, even in response
to an invitation. If a Planning Committee Member considers it
essential to enter a site other than through an official site visit
then the Development Control Manager should be informed of the
intention and reasons for doing so, so these can be recorded on the
relevant file. The principles of the Guidance Note on site
visits should then be adhered to.
4. Summary:
Do declare personal interests
in relation to site visits in the same way as you would at the
Committee meeting itself.
Do not attend a site visit if
you have a prejudicial interest in the relevant application or if
you have fettered your discretion on the application in any of the
ways described in the previous section of this Protocol.
Do follow the Council’s
Guidance Note in relation to site visits.
Do not enter planning
application sites on ‘unofficial’ visits unless you comply with the
rules set out in paragraph 3 above.
D. The Council's Own Applications (Revisions Awaited)
1. The law allows the Council to
determine many of its own planning applications. This
inevitably gives rise to problems of public perception and there
can also be internal tensions in that a member of the Planning
Committee may have been involved in the service decision to seek
planning permission or as a portfolio holder or otherwise may have
become closely identified with supporting a particular project.
2. The Council is a single legal entity
and the fact that a Member has been involved in the decision to
seek planning permission does not of itself give rise to a personal
or prejudicial interest when the matter comes before the Planning
Committee.
3. However the rules on bias do still
apply. In taking the decision to apply for planning
permission Members must recognise that the application has still to
be considered on its planning merits and the decision to seek
planning permission does not in any way commit the Planning
Committee to grant permission.
4. A member of the Planning Committee
should not participate or be present during the consideration of a
planning application if they have previously committed themselves
on the planning merits of the proposal or if they have become so
associated with it as to be reasonably regarded as an advocate for
it (see Section B under ‘Advocate Role’).
5. Summary:
Do be aware that you may
usually fully participate in planning decisions at the Planning
Committee on the Council’s own applications even if you were part
of a service decision to seek planning consent.
Do not take part, however, if
at the service Committee or otherwise you have committed yourself
on the planning merits of the proposal or publicly advocated the
proposal.
E. A Councillor's Own Planning Application (Revisions
Awaited)
1. Particular care is needed when a
Councillor applies for planning permission on his own behalf.
On occasions following recommended good practice may mean a
councillor is treated differently and less advantageously from
other applicants for planning permission.
2. It is good practice for a councillor
to notify the Monitoring Officer of his/his partner’s intention to
submit a planning application. The Monitoring Officer can
then ensure that the proper internal procedures are followed
including the reporting of such applications to Committee
regardless of whether they would otherwise fall to be determined
under officer delegated powers.
3. The applicant councillor, whether or
not a member of the Planning Committee, will clearly have a
prejudicial interest and cannot participate in the decision-making
process or attend the relevant part of the meeting. The
Councillor cannot himself make use of the public speaking facility
although he can arrange for an agent to do so on his behalf.
4. The councillor must take particular
care not to lobby any officer or member of the Planning Committee
in respect of the application as this is likely to be regarded as
improperly seeking to secure an advantage in breach of the
Council’s Code of Conduct. The Ombudsman has advised that
councillors should not normally seek personal meetings or undertake
personal discussions with officers regarding their own
applications. They should appoint an agent to do so.
5. Any member of the Planning Committee –
or indeed any other councillor who may wish to speak on the
application - who is a “friend” of the applicant Member will have a
personal interest in the matter which must be declared at the
Planning Committee. The interest will also be prejudicial
(which would preclude any participation at all in the decision) if
the friendship is so close that a member of the public, informed of
the facts, might reasonably conclude that it was likely to affect
the manner in which the Member would speak or vote on the
matter. Membership of the same political group or party on
its own will not be sufficient to amount to a personal or
prejudicial interest.
6. Summary:
Do notify the Monitoring
Officer of your/your partner’s intention to submit a planning
application to the Council.
Do not take any part in the
decision-making process on your own applications or those of a
fellow Councillor who is a close “friend”.
Do not seek to influence
officers or other Councillors on applications in which you have a
prejudicial interest.
Do appoint an agent to
undertake negotiations and discussions with Officers in relation to
your own applications.
F. Other Sensitive Applications (Revisions Awaited)
1. The Council’s own applications and
applications by councillors will always be reported to Planning
Committee for decision even if the proposals are such that they
would normally fall to be dealt with by officers under delegated
powers.
2. On occasions there will be other types
of application which are considered sensitive and which should be
dealt with in the same way. These include applications by
officers, some applications by ex-Councillors (for example by
former councillors who have served recently or are otherwise still
well known political figures) and, exceptionally, some applications
by former officers. In such cases the officer reports will
make clear the reasons for bringing the matter before
Committee.
3. In all such cases Members must be
aware of the potential public sensitivity of decisions and be aware
of the need to declare personal (and where appropriate prejudicial)
interests if applicants are “friends”.
4. Summary:
Do be aware of the need to
consider and declare personal (and prejudicial) interests in
accordance with the normal rules where applications by Councillors,
ex-Councillors, officers etc are reported to Planning Committee for
decision.
G. Relationships with Officers (Revisions Awaited)
1. Planning officers preparing reports
and recommendations for Committee decision (and making delegated
planning decisions) are subject to rigorous professional duties
under conduct codes monitored by their professional body the Royal
Town Planning Institute. Members must be aware of and respect
these duties. They include the following duties:
“to fearlessly and impartially exercise
independent professional judgement to the best of their skill and
understanding” and “not to make or subscribe to any statements or
reports contrary to their own bona fide professional opinion”.
They are accordingly under a professional duty
to make recommendations solely in accordance with their
professional judgement.
2. The Council’s Code of Conduct provides
at paragraph 2 (c) that a Member must not
3. “do anything which compromises or
which is likely to compromise the impartiality of those who work
for or on behalf of the authority”.
4. It follows from the above that
councillors must not put pressure on officers or their managers to
put forward a particular recommendation even if the officers
professional judgement is at variance with the views of the
councillor. This does not prevent a councillor asking
questions or submitting views to the planning officer although a
councillor who is also a member of the Planning Committee must take
care not to express opinions which indicate a pre-determined
view.
5. Summary:
Do be aware of and respect
the planning officer’s professional duties.
Do not seek to improperly
influence an officer’s report on a planning matter or delegated
decision by putting pressure on him or his manager to make a
particular recommendation or decision.
H. Decisions Against Officer Advice (Revisions Awaited)
1. On occasions the Planning Committee
will wish to determine an application contrary to the
recommendation of officers. This is perfectly proper provided
the Committee is able to substantiate its decision with proper
planning reasons. A failure to do so could lead to an appeal
and the award of costs against the Council.
2. Where the Committee is minded to
determine an application in a manner which is contrary to the
Development Plan, it must specifically address the issue of “other
material considerations” and the resultant Minute clearly record
which material considerations Members considered outweighed the
Development Plan in that particular case.
3. The attendance at a Planning Training
Session is a pre-requisite to membership of the Committee,
including Substitute Members. (Minute No. 247/9/06
refers).
4. In cases where Members propose to make
a decision contrary to officers advice, Officers may
request deferral (which would remain at the
discretion of the Committee) but only in the following exceptional
circumstances where the complexity of the case demands:
- In order to formulate proper summary reasons
and/or appropriate conditions and/or planning obligations in
relation to a grant of permission.
- In order to formulate effective full reasons
in relation to a refusal of permission in the light of Members’
views at the meeting.
Requests would be made only in exceptional
circumstances where the issues arising are so complex that Officers
consider the Council’s interests are best served by a deferral to
allow time to prepare such.
In such cases the “first” Committee would make
a resolution that it is minded to grant/refuse whilst the “second”
Committee would make the formal decision and give reasons and agree
conditions etc. This is necessary as a matter of law to avoid
the situation of one Committee formulating reasons etc for a
decision taken by a different Committee which would be legally
problematic. (Minute No. 72/6/08 refers).
5. Summary:
Do be aware of the need to
give sound planning reasons for all decisions and where acting
contrary to advice the need to formulate detailed reasons at the
time of the decision and prior to the vote so the same may be
included in formal decision notices.
I. Planning Obligations (Revisions Awaited)
1. In some circumstances it is reasonable
to require a developer to provide or fund community benefits or
works in connection with a grant of planning permission. The
Secretary of State's guidance is that whether it is reasonable to
do so depends on whether what is being required is fairly and
reasonably related in scale and kind to the proposed development
and:
- is needed from a practical point of view to
enable the development to go ahead; or
- in the case of a financial payment will
contribute to meeting the cost of providing such facilities in the
near future; or
- is necessary from a planning point of view
and is otherwise so directly related to the proposed development
and to the use of the land after its completion that the
development ought not to be permitted without it.
2. The above policy is intended to bring
about some certainty and uniformity of approach and to avoid any
perception that planning permissions can, in effect, be bought and
sold. Current local plan policies on planning obligations are
based on this guidance. If planning obligations are offered
or required which have little or nothing to do with the proposed
development, apart from the fact they are offered by or required of
the developer, they are likely to be regarded as an improper
attempt to buy or sell a planning permission. The courts have
in the past quashed planning permissions where local authorities
have been seen to give undue weight to the offer of extraneous
benefits.
3. Furthermore government guidance urges
greater openness in the handling of planning obligations and
avoiding the perception that they are a parallel but private system
of development control. A councillor who negotiates or
discusses privately with a developer the nature of possible
planning benefits or obligations is also in danger of being seen to
reach a pre-determined view on the proposed development by agreeing
to support or oppose it on the basis of a developer’s stance in
such discussions.
4. For all the above reasons individual
councillors should avoid seeking to discuss or negotiate planning
benefits directly with developers. Officers will be able to
advise on what may be properly required in particular cases and
where potential benefits meet the relevant criteria officers can
seek to negotiate their provision with developers in an open manner
which can be properly documented on case files.
5. Summary
Do not seek to discuss or
negotiate possible planning benefits directly with
developers. Instead discuss your views with the planning case
officer who will consider whether such benefits can properly be
sought and, where appropriate, will discuss their provision
directly with the developer.
Guidance Note (Revisions Awaited)
Planning Committee - Members' Site Visits Prior to
Determination of Planning Applications
1. Background
In determining planning applications the
Council is acting in a quasi-judicial capacity and as a matter of
law it must act fairly throughout the determination process and
observe the rules of natural justice at all times. In
recognition of this position, the Planning Committee at its meeting
of 11 August 1993 adopted a procedure for all site visits made
prior to the determination of a planning application. The
procedure, set out below, was modified in September 2000 to take
account of the Council’s obligations under the Human Rights Act to
ensure equal treatment as between applicants and objectors
throughout the decision-making process.
2. Site Visit
Procedure
(a) The normal practice will be for
Officers to obtain an applicant/landowner/s agreement to a Members’
site visit taking place on his land. Other persons invited to
attend will be a Parish Council representative and the Ward Member
(if not a member of the Committee). In addition relevant
Council Officers will attend. Neighbours will be contacted
and informed of the arrangements only where it is thought likely
that Members will wish to enter their land as well in order to
assess the impact of a particular proposal.
(b) Since objectors do not have any right
to attend a site visit held on private land neither the applicant
or his/her agent will be invited to take an active part in the
Members’ site visit. Similarly if Members enter the property
of an objector, that objector will not be invited to take any part
in the site visit.
(c) Site visit arrangements will be
confirmed in writing to all interested parties. Letters of
confirmation will make it clear that representations on merits will
not be permitted at the site visit and that the purpose of the site
visit will be simply to enable Members to familiarise themselves
with relevant features of the site and surroundings.
(d) Whilst neighbours, objectors and
amenity society representatives will not be invited to site visits,
where such persons nonetheless attend the site then, subject to the
landowner’s consent, such persons may be allowed to remain but the
limited scope of the site visit – and the fact that neither
applicant nor objectors will be permitted to take any active part
in the site visit – should be explained as necessary.
(e) During site visits there must be no
separate discussions taking place between Officers or Members and
either applicants or objectors etc.
(f) The site visit will proceed on the
basis that the Strategic Sites and Design Manager’s or Development
Control Manager’s report adequately describes the proposal and the
issues of policy/amenity/safety involved. The Strategic Sites
and Design Manager’s or Development Control Manager’s report will
normally have been submitted to the previous meeting of the
Committee and a copy of it will be sent to all parties with the
letter confirming the site visit arrangements.
(g) Members may seek clarification, where
necessary, or geographical or other relevant features of the site
or surroundings by way of questions of Officers. There
should, however, be no discussion of or representations on the
merits of proposals or objections thereto. The proper forum
for any such discussion is the Committee meeting itself.
(h) In the event that Members consider new issues have
arisen from a site visit then the proper course will normally be to
request Officers to seek any necessary clarification from the
relevant parties and in this respect it would be helpful if
interested parties could be available to provide any such
clarification to Officers between the site meeting and the
Committee meeting. Exceptionally, it may be necessary to
defer a discussion at the Committee meeting and request a further
report from the Strategic Sites and Design Manager or Development
Control Manager upon those issues. Otherwise, the Chairman at
the formal Committee meeting itself will invite discussion and
debate in the light of the Officers’ report and site visit.
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Civic Protocols
This webpage was updated on
9/29/2010