Revised Planning Probity Guidance Issued
On 28 May 2009 the Local Government Association (LGA) issued Probity in Planning
– the Role of Councillors and Officers (“the Guidance”). This new Guidance seeks
to explain the importance of balancing the needs of individual constituents and
communities with the need to maintain a system of impartial decision making on planning
issues.
Conduct and Declaration of Interests
The Guidance makes clear that the basis of the planning system is the consideration
of private proposals against wider public interests. It is stressed that councillors
and council staff should ensure that they act impartially and that they should not
favour any particular person, company, group or locality. The Guidance highlights
that it is good practice for councils to provide training on planning legislation
to members, especially when first serving on a planning committee.
The Local Government Act 2000 places a requirement on members to register and declare
their interests. For information on personal and prejudicial interests members should
refer to The Standards Board Code of Conduct – Guide for Members (May 2007).
Development Proposals and Lobbying
The Guidance highlights how planning applications or development plan proposals
made by an officer or councillor to their own authority, can give rise to suspicions
of impropriety. Although it is made clear that such proposals can legitimately be
submitted, local planning codes and protocols should make sure that there can be
no accusations of favouritism. The codes/protocols should, for example, make clear
that councillors who submit proposals (either for themselves or as an agent) should
not be a part of the decision making process, and that proposals for the council’s
own development should be treated with the same transparency as would apply to a
private developer.
The Guidance stresses that although lobbying is a normal and necessary part of the
political process, there is also the danger that if care is not exercised it can
lead to the questioning of a councillor’s impartiality and integrity. If a councillor
is being lobbied, the councillor should take care not to express opinions which
suggest that they have already made up their mind on an issue before examining all
the evidence.
In this situation, the Guidance suggests that councillors restrict
themselves to explaining the proper procedure, and also suggests that the lobbyist
should contact the relevant council officer, so that their opinions can be included
in the officer’s report to the committee. Any local code or guidance on planning
good practice should address lobbying.
Pre-application Discussions and Officers Reports to
Committees
Although discussions between a prospective applicant and a councillor prior to an
application submission can be beneficial, such discussions can also be misinterpreted.
Limits need to be put in place to protect the council and councillors, to avoid
accusations that councillors have fettered their discretion. Authorities should
develop and publish guidelines which cover points such as: maintaining impartiality;
ensuring that councillors are not bound into making a particular decision; and the
importance of officers giving consistent advice (based on the development plan and
material planning considerations).
Officer reports on planning applications must be accurate. They should contain a
clear exposition of the development plan, identify the application site, and any
other material considerations. They should also contain a written recommendation
for action; and contain technical appraisals justifying the recommendation. If the
report’s recommendation is contrary to the provisions of the development plan, the
material considerations which justify the derogation from established planning policy
must be clearly stated.
Public Speaking and Decisions
It is not mandatory for public speaking to be allowed at planning committees. However,
the Guidance indicates that the benefits of allowing this can include enhanced public
confidence and a reduction in direct lobbying. Disadvantages include lengthened
meetings and perceived difficulties of managing the meeting. If public speaking
is allowed, care should be taken to ensure that bias does not occur, for example
time allowed for presentations for and against the development should be equal;
and documents not previously submitted should not be circulated to the committee
at the meeting, as other parties may not have had an opportunity to react to the
submissions.
S.38A Planning & Compensation Act 2004 requires that decisions should be taken
in accordance with the development plan, unless material considerations indicate
otherwise. Consequently such decisions must be identified and advertised, and the
material considerations and their justification for overriding the development plan
must be identified. The Guidance recommends that planning committees are familiar
with the Model Planning Code drawn up by the Association of Council Secretaries
and Solicitors.
Site Visits, Reviews and Complaints
To encourage consistency and transparency, the Guidance advocates that Councils
have a protocol setting out the arrangements for committee site visits. The protocol
should set out the criteria for deciding when site visits are necessary and consider
the procedures for such visits. The Guidance also proposes that annual reviews of
implemented planning permissions should be made to assess the quality of decisions.
Such reviews can improve public confidence and ensure a better quality and consistency
of decision making.
Although following the Guidance may reduce the likelihood of complaints, a robust
complaints procedure is still necessary. To assist investigations record keeping
should be complete and accurate. Planning application files should allow someone
not involved in the application to understand the decision and why it was made.
Conclusion
The updated Guidance makes clear that probity in planning is an essential element
of the planning process. It is evident that planning decisions are not an exact
science but a matter of informed judgement and so it is important that authorities
maintain transparency, consistency and impartiality.
To read Probity in Planning – the Role of Councillors and Officers in full please
click here.
To read Standards Board Code of Conduct – Guide for Members in full please
click here.
To read Model Planning Code – Association of Council Secretaries and Officers in
full please
click here.
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For More Information Contact:
Pav Jawanda
TPP Law Limited
53 Great Suffolk Street
London SE1 ODB
t 020 7620 0888
f 020 7620 0778
e info@tpplaw.co.uk
Email: Pav
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