Development Management: decision making, committees and probity

1. Development Management: decision making, committees and probity Date April 2013 www.pas.gov.uk

2. What is PAS ? • PAS is a DCLG grant-funded programme but part of the Local Government Association • Governed by a ‘sector led’ board • 10 staff – commissioners, generalists, support “PAS exists to provide support to local planning authorities to provide efficient and effective planning services, to drive improvement in those services and to respond to and deliver changes in the planning system”

3. This presentation • Planning and decision making • National planning policy, the Development Plan and other material considerations • Types of decision • Recent developments • Probity issues • Committees

4. Planning… • 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

5. Planning involves balancing issues climate change economic recession 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

6. Understanding the System • Planning takes place within the context of a system, which is defined by: • Legislation • Regulations and Orders • Case law • National policy and advice • Appeals

7. Councillors have an important role • Strategic leadership– setting the vision and direction • Sub-regional working • Plan making: councillors try to reflect local values and priorities in the policies and decisions • Ward level: representing local views • Broker of local partnerships • Neighbourhood planning – link between community and the council, involved in local decisions on spending

8. Councillors have an important role • Development Management • involvement with the community and developers at an early stage • Raising areas of concern • Informed debate • Wide range of issues and material considerations to balance • Making the right decision (not always the easiest) • Delivery

9. Standards in planning are important • Planning manages the right to develop land • It involves balancing private and public interests • Getting it wrong is costly (time, money, reputation and long lasting impacts) • Need to demonstrate, at all times: • Fairness • Openness • impartiality

10. Who decides planning applications (1)? • Over 99% of planning applications are decided first by local authorities • Within authorities, around 90% are dealt with under delegated powers, by officers • Leaving Councillors to focus on the really important ones • Planning Inspectorate or Secretary of State decide appeals (and some applications in the future)

11. Who decides planning applications (2)? • Major contentious development is sometimes dealt with by Government, not by local authorities (call-ins) • Minerals and waste applications are decided by County Councils (and Unitaries) • National Park Authorities decide applications in the National Parks • Major Infrastructure Projects have their own regime (National Infrastructure Directorate)

12. But what’s important is that… Planning isn’t just about: - stopping the bad stuff from happening? It’s proactive, about - encouraging development that delivers the right stuff for your community ?

13. The context for decision making • Development requires planning permission • Government (including the Inspectorate) and local authorities can grant or refuse permission • The rules and power for local authorities to grant permission are given by Parliament • Some development is permitted by order of Parliament – “permitted development”

14. Principles – Decision Taking • Regard development proposals as opportunities for area • Economic (CIL, New Homes Bonus, Business rates) • Social (Affordable housing) • Environmental (Open space) • Understand long term nature of schemes • Early engagement

15. Making a decision • Start with the development plan policies and think about the outcomes • Take professional advice • Take into account other material considerations, including: • National policy • Other council strategies • Context and merits of the particular application • Technical consideration • Consultees views on planning aspects • Other material planning matters • Come to a view

16. What is the development plan? • Local Plans • Local Development Framework Development Plan Documents • Adopted Core Strategies • Adopted Area Action Plans • Other Adopted Development Plan Documents • Neighbourhood Plans • Saved polices and ‘old style’ saved plans • Structure Plans • Local Plans • Minerals and Waste Local Plan • Regional Spatial Strategies (where not yet revoked)

17. National Planning Policy Framework (NPPF) Bringing together all the existing policy into one policy document Pro-growth Golden thread - presumption Plan-led system

18. 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

19. Material considerations Matters that should be taken into account in deciding planning applications as well as policy (NPPF, ministerial statements, emerging policy, supplementary planning guidance) can 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 • Previous planning decisions

20. Non material considerations Matters that should not be taken into account in deciding planning applications include: • 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 • Damage to property fears • Disturbance during building works • Other matters controlled under building regulations or other non-planning legislation

21. Finance considerations as material considerations • Controversial section of the Localism Act (section 143), which deals with local finance considerations. • Defined financial "benefits" (significantly New Homes Bonus and CIL) can be taken into account in the determination of planning applications "where material to the application".

22. The pre-application phase • Your local knowledge and contacts in your neighbourhoods • Being aware of other resources and opportunities • Asking the questions • Helping to solve problems • Engaging and representing the community • Balancing pro-active and fairness • You can express an opinion, but keep an open mind

23. 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

24. The Decision must be lawful if different from the recommendation, the change and the reasons for it should be clearly expressed and minuted must be justified by reasons, based on the Plan and any other relevant material considerations may be subject to appeal (or other challenge), so reasons (for approval or refusal) should be defensible

25. Conditions • Conditions (Circular 11/95 – 5 tests) – test of reasonableness (must meet all 5) • Necessary – would permission need to be refused without it • Relevant to planning • Relevant to the development • Enforceable • Precise

26. 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 • For affordable housing contributions • Must be necessary, directly relevant, reasonable, fair and 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

27. Appeals • About 10,000-11,000 per annum • 90% by Written Reps; 7% by Hearing and 3% by Inquiry Success Rate • WR – 34%; Hearing – 43%; Inquiry – 53% • One in 4 cases awarded costs to appellant • One in 10 cases costs awarded to LPA

28. Judicial Review • JR – only errors of substance • Claimant to show prejudice • Without this – no unfairness • Under review • Possibly reduced time from 3 months to 6 weeks to seek JR • Many are weak and unfounded

29. Overturns/different decisions It is perfectly acceptable for councillors to disagree with a recommendation and come to a different decision. Provided that it can be justified in planning grounds (based on the plan and material considerations Committee must give justified planning reasons for decision It cannot be left to officers

30. Regular review of decisions • Impact of decisions • Quality and consistency of decisions • Undertaken annually, broad range of applications • Learning from experience

31. Recent Developments • Designation of ‘poorly performing’ authorities. • If designated, applicants can go straight to Inspectorate for a decision • Planning guarantee – fee refund • Post application agreements • Section 106 agreements - modification or discharge of affordable housing elements to make a development viable. • Requirement to state on decision notice how the LPA has worked with the applicant in a positive and proactive way.

32. Localism and planning decisions • A number of decisions have been granted on appeal where there is no 5 year land supply or a plan not yet in place • “…there is nothing in the Localism Act to suggest that delegating decisions to LPAs will alter the requirement for a 5 year HLS….Allowing LPAs to review their requirements locally is not the same as allowing them to postpone their obligations under PPS3.. (Homelands, Bishops Cleeve) • Highfields Farm decision (13 February 2013) allowed consent for a housing scheme in an AONB, where there was no 5 year HLS.

33. 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 the SoS has taken the view that a particular, and in this instance, very localised group of residents should be able to prevent planning permission being granted simply because they do not want it.”

34. Background to probity • Cream Teas and Concrete – Channel 4 December 1991 • Independent inquiry by Audrey Lees • Nolan Report (1995) • Reports/issues on planning – Warwick, Doncaster, Fenland • LGA Probity in Planning • Localism Act 2012 • Councillors advising applicants

35. Localism Act 2012 (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

36. Codes of Conduct • Integrity • Selflessness • Objectivity • Accountability • Openness • Honesty • Leadership

37. Predetermination & predisposition • Predisposition (inclination) is fine • Predetermination (a ‘closed mind’) is not • The fact that a Member may have campaigned against a proposal will not be taken as proof that they are not open-minded • Predisposition to an initial view but with a willingness to listen to all material considerations before deciding how to vote • Lobbying is normal and perfectly proper part of the process – not indicate finally made mind up

38. Predetermination – how to avoid 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 Free to speak in advance, provided you are able demonstrably to retain an open mind - perception of others as well as intention

39. Dealing with lobbying if on Planning Committee • Be careful about ‘nailing your colours to the mast’ too early – that could still be pre determination • If expressing a view, explain it is your initial view and may change, taking all valid considerations into account • Record your involvement • Note that it is easy sometimes to be swayed by your heart rather than your head

40. 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’

41. Probity in planning guide

42. Planning Committees • Think about how the public see you – committee as a shop window • Think about how an investor sees you • This is how the most important decisions get made – would you be impressed? • Clarity • Transparency • Fairness

43. 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?

44. 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)

45. Committee site visits • Ideally the Council should have a protocol on when and why to hold a site visit and how it will be conducted – ensures a consistent 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)

46. Being effective at Committee • 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

47. Improving Are you focussing on the right applications (what is the benefit of this application coming to committee?) Do you have what you need to make good sound decisions? Do you regularly review your decisions

48. Top Tips • Respect the process • Follow the statutory planning framework • Think about the bigger picture – the outcomes, and wider public interest • Seek advice from planning officers, solicitors and other technical experts • Carefully consider the reasons for your decision, and robustness against challenge • Have the right planning reasons: do not make a decision and instruct officers to come up with reasons • Regularly review your decisions

49. To close • Feedback forms • Follow up impact assessment • Use our website/forums • Newsletter • Keep in touch