‘Council Officers must always act impartially’.
‘Councillors who are not part of the decision making process (e.g. Parish Councillors) can make representations.’
‘The Localism Act makes it clear that it is proper for councillors to play an active part in local discussions‘
‘It is inevitable that they will be subject to lobbying on planning matters and specific planning applications.’
‘Members must take into account the view of local residents when determining a planning application’.
Parish councils and planning?
- Town and parish councils are not Planning Authorities. Town and parish councils are only statutory consultees in the planning process.
- This means that they only have the right to be informed of planning applications within the parish.
- They cannot approve or reject planning applications.
- They can comment on planning applications in the same way that individuals can comment.
- A parish council can request that it be given extra time to comment on an application.
- The decision whether this is granted rests solely with the planning authority and it’s own deadlines for decision making.
How do Parish Councils comment on planning applications?
- Parish Councils (unlike individual councillors) can only agree to comment on planning applications in properly called council or committee meetings which the public can attend.
- The comments agreed in the council meeting are submitted in writing by the parish clerk to the relevant planning authority.
- The process is exactly the same as that of an individual wishing to comment on a planning application.
- Parish councils are statutory consultees and have no powers to approve or reject planning applications, they can only comment (or not) on applications.
Town and District Councils
As the Nolan Committee’s 1997 report stated: “It is essential for the proper operation of the planning system that local concerns are adequately ventilated.
The Government has used the Localism Act to clarify the rules on ‘predetermination’ . However, these rules had been interpreted in such a way as to reduce the quality of local debate and stifle valid discussion.
In some cases councillors were warned off doing such things as campaigning, or publicly expressing views on local issues. The Localism Act makes it clear that it is proper for councillors to play an active part in local discussions, and that they should not be liable to legal challenge as a result. This will help them enrich local democratic debate. People can elect their councillor confident in the knowledge that they will be able to act on the issues they care about and have campaigned on.
The overriding principle is that Members should not favour any individuals or groups and must represent their constituents as a body and vote in the interests of the County as a whole. Whilst Members should take account of all views expressed, they should not favour any person, company, group or locality, nor put themselves in a position where they appear to do so.
Section 54A of the Town and Country Planning Act 1990 requires all planning applications to be determined by reference to the Development Plan, if material to the application, and any other material consideration. If the Development Plan is material to the application then the statutory position is that the application should be determined in accordance with the Development Plan unless material considerations indicate otherwise. The emphasis in determining applications is upon a plan led system.
Material considerations include also national planning guidance in the form of Circulars and Planning Policy Guidance and case law. A ministerial statement may be a material consideration.
Code of Conduct: The guiding rule is that a Member should not use his/her position to further a private, or personal interest, rather than the general public interest, or give grounds for such suspicion. The test for deciding whether a personal prejudicial interest should be declared is whether a member of the public, knowing all the facts, would reasonably think that the Councillor’s judgement of the public interest would be prejudiced. If so, then not only must the interest be disclosed, but the Councillor should take no further part in the relevant proceedings. The responsibility for declaring an interest lies with the individual Councillor.
In recognition of the principle that decisions can only be taken on planning matters after full consideration of all available information is to hand and has been considered at Committee, individual Members should reach their own conclusions rather than follow the lead of another Member.
To help the Chairman and Vice-Chairman to give an effective lead in Committee they should attend a briefing with officers prior to Committee.
Members will receive specialised training in relation to planning regulations and procedures, and the practical operation of this Local Code and the Development Plan (ie Structure and Local Plans)
Members must demonstrate a commitment to being trained.
Lobbying of and by Councillors, and Attendance at Public Meetings If members are to undertake fully their constituency roles it is inevitable that they will be subject to lobbying on planning matters and specific planning applications. Great care is essential to maintain the Council’s and indeed the Members’, own integrity and the public perception of the planning process when members are lobbied. Members should not, therefore, favour or appear to favour, any person, company, group or locality.
Taking account of the need to make decisions impartially and only after having heard all the relevant evidence and arguments at Committee, Members should not openly and finally declare which way they intend to vote in advance of the Committee meeting. To do so without all relevant information and views would be unfair and prejudicial and may amount to maladministration. If Members are in a position with regard to any matter where they do consider the need to express an opinion, they should make it clear that this is a preliminary view and that they will only be in a position to take a final decision after having heard all the relevant evidence and arguments at Committee. If the Member feels that the public would believe he/she had come to a conclusive view on a planning matter before the meeting, then he/she should not take part in the debate on, or vote on the issue.
Councillors involved in the decision making on planning matters should not organise support or opposition to a proposal, lobby other Councillors, act as an advocate or put pressure on officers for a particular recommendation. However, other Councillors (who are not part of the decision making process) can make representations and address the relevant Committee.
Similarly Members involved in the determination of planning applications should take great care to maintain impartiality when attending public meetings in relation to planning matters. At such meetings it is preferable for no view on the merits or otherwise of a proposal to be given, but if a view is given the advice in paragraph 4.2
Reports to Committee on planning matters must be accurate and cover all relevant points. Where a planning application is subject to a full report this will refer to the provisions of the Development Plan and whether the application is or is not in conformity with it, together with all other relevant material planning considerations.
- Members must thoroughly consider any advice given by a statutory consultee or relevant Government Department, including views expressed by English Heritage or the Environment Agency.
- Members must take into account the view of local residents when determining a planning application, but recognise that such opposition cannot be a reason in itself for refusing planning permission unless founded on valid planning reasons, which are supported by substantial evidence
- Members must take into account earlier Council decisions, appeal decisions in relation to the site, or other related appeal decisions.
- Members must not prevent, inhibit or delay development which could reasonably be permitted.
- In relation to planning conditions, Members must avoid the imposition of conditions which are unnecessary, unreasonable, unenforceable, imprecise or irrelevant.
- All reasons for refusal and conditions to be attached to permissions must be clear and unambiguous.
In discussing, and then determining, a planning application or other planning matter Members will confine themselves to the planning merits of the case and the reasons for making a final decision should be clear and convincing, and supported by planning evidence. If members wish to refuse an application against officer advice, or impose additional conditions to a permission, the reasons for refusal or the additional conditions to be applied must be clearly stated at the time the propositions are moved at the meeting.
If a resolution is passed which is contrary to a recommendation of the Chief Planning Adviser (whether for approval or refusal) a detailed Minute of the Committee’s reasons will be made and a copy placed on the application file.
The debate on a planning application will be confined to the planning merits of a development proposal.
Senior Legal and Planning Officers should always attend meetings of the Regulatory Committee to ensure that procedures have been properly followed and planning issues properly addressed
Members with a personal prejudicial interest, which they are under an obligation to declare, should not speak or vote in the decision making process. If they insist on so doing the decision reached by the relevant Committee is likely to be void on the basis of being contrary to the rules of natural justice. In addition those Members, who have come to and indicated before the meeting that they had reached a conclusive view on an application or other planning matter, should carefully consider whether their continued involvement in determining the application or other matter would prejudice the integrity of the planning process. Their continued involvement could amount to maladministration.
Only Officers and Members of the Council who are prepared to observe this Code ought to be involved in the process of dealing with planning matters, determining planning applications and applications for listed building consent and conservation area consent. What constitutes a material consideration is a matter of law. The weight to be attached to the consideration is a matter of planning judgement for the decision maker having regard to the planning evidence.