How free are planning councillors? - TrustNews Mar 07
If a controversial development is proposed in the area where you live, it might seem useful if your local councillor also serves on the committee which decides, but only up to a point. You will need to appreciate the basis on which applications are decided and also the limits within which councillors are required to act.
The Law
Section 38(6) ot he Planning and Compulsory Purchase Act of 2004 provides that in determining applications this shall be in accordance with the approved Development Plan ‘unless material considerations indicate otherwise’. ‘Material considerations’ will vary from case to case, but can include matters not directly related to the contents of the relevant plan. But the thrust of the provision is to enable plans to be interpreted with a degree of flexibility. As they age, conditions change: indeed, it is common for work on preparing a new plan to be started even before the current one has been adopted. It is therefore wrong to expect, as many do, that a proposal which conflicts with the plan will automatically be refused. (They rarely seem to adopt the complementary view that a scheme they violently dislike must nevertheless be approved if it conforms with the plan’s provisions.)
Councillors’ responsibilities
Members of planning committees are said to be acting in a ‘quasi-judicial’ capacity. Essentially this means that they must deal with proposals with an open mind and neither let their decision be influenced by personal or other interests nor allow it to appear that they may have been under such influence. In particular, it is unacceptable to form a definite view to oppose (or support) a proposal without giving it proper consideration. If, for example, a councillor is so fundamentally opposed to mobile ‘phone masts that he announces that he will never support one, a vote on any such application could be regarded as maladministration by the local authority concerned. It would be rather like a judge telling a prisoner who appears in the dock: ‘I don’t like your face.’ In such a case, the proper course for the councillor is to declare that he or she will not participate in the vote, without being prevented from taking part in the debate. In the debate, councillors need to ensure that they are present for the whole of the discussion, since leaving the room, even for a short time, can be deemed a disqualification.
So far, this probably all sounds straightforward common sense. But unfortunately in many areas (including both Hampshire County Council and Winchester City Council) a combination of unjustified apprehension on the part of councillors and misguided pressure from officers has been threatening to weaken and undermine the effective role of councillors.
There are instances of local members being told that the very fact of sitting for a ward where there is an application means that they could be regarded as having a prejudicial interest and should not take part in the decision-making. More insidiously, where there is a proposal of such importance that the final decision may well be referred to a full committee rather than a subcommittee, or even to full Council, all the members have been warned that they may find themselves in a quasi-judicial role and are induced to be unnecessarily inhibited.
In some cases so many members have been persuaded to withdraw from discussion that it has been difficult to secure a quorum to take a decision. On one occasion a Council was led to request a special exemption on an application for a new football ground because virtually all the members held season tickets from the club involved.
Apart from producing the odd result that only councillors from other wards can actively discuss applications in wards represented by members who are also on planning committees, the illogical conclusion of an over-restrictive approach is that the only action that committee members can take is to vote right at the end of the process: any earlier expression of opinion would, by definition, be made before all the evidence was available.
Planning committees are not juries. Individual members are more akin to judges - with the right and duty to ask questions and request information as a case develops, but reserving judgement until after the summing-up.
Some simple guidelines which HC found useful while serving on the County’s Planning and Transportation Committee - and which never caused any problem - suggest themselves.
Starting from the Section of the 2004 Act quoted earlier, the key question to be asked of any new application is whether or not it appears to be in conformity with the Development Plan. This will indicate where the burden of proof lies: if it does conform, then the question is whether other considerations can constitute a valid reason for refusal. If it does not conform, what matters can be identified to suggest that public benefits from the proposal would outweigh upholding the plan?
The planning officer handling the case should be asked for his initial opinion as to whether the application would mean a departure from the plan or not. Members can then explain to their constituents how the proposal needs to be approached. They can, and should, gather information and make their own inquiries and feel entirely free to contact groups and individuals in their wards to sound out opinion.
As time passes and information accumulates, a (planning committee) member will inevitably begin to develop an opinion. There can be no objection to replying to questions about voting intentions along the lines: the burden of proof is on the council to show why this should be refused (or on the applicant to demonstrate why it should be allowed) and, on the basis of the information I have so far, I am inclined to oppose (or support) it. But I have not yet come to a final conclusion, and will not do so until the Committee has discussed the officer’s report on the matter.
At the meeting itself, the member should report on the reactions received from constituents, setting them out in a full and balanced way on both sides of the argument so that a proper picture is presented to other members. At that stage it is perfectly in order to argue in favour of approval or refusal, on the basis of all the material that is by then available.
It is also vital to ensure that the judgement is influenced only by the relevant considerations. Many points raised by constituents will not be planning matters at all and may well not be material considerations either. In weighing the relative strength of support and opposition, it is almost always the case that a proposal arouses more active hostility than acceptance. Hence the frequency of the complaint ’they said they were consulting us but they never listened to what we said’. Councillors should of course listen – to both sides- but they can only make one decision. If councillors ensure they understand the planning process and attempt to convey its basic points to their voters, that is a refrain we might at least hear less often.