LEGAL

1. LEGAL NEW MEMBERS 2012 JOY MORTON PLANNING & HIGHWAYS LEGAL MANAGER

2. Planning & Highways legal Agreements • S106 Planning Agreements – covers open space sums, affordable housing, travel plans • S278 Highway Agreements – covers highway works outside of the development site – traffic signals, widening of highways, traffic calming measures • S38 Adoption Agreements – adopting the access roads on housing estates

3. What the team covers • Planning legal queries and Agreements • Highway legal queries and Agreements • Demolitions • Traffic orders • Preservation of trees • Public rights of way • Parks and Recreation • Byelaws • Contracts • Building control • Private streets and adoption of highways • Alleygating • Conservation Areas • Enforcement • Prosecutions • Planning and Highway Appeals

4. PROBITY AND CODE OF CONDUCT The Planning Code of Conduct is binding on members and officers and minimises the likelihood of costs being incurred by the Council through ombudsman investigations or legal challenge to the council’s decisions

5. COUNCILLORS DUTIES • Contained in Section 2 of the Code • You have a Dutyto the whole of the community • Members and officers should therefore support the Council’s planning policies and make decisions in accordance with them unless there are sound and valid planning reasons for doing so.

6. Gifts and Hospitality • The code requires any members receiving any gift or hospitality “in their capacity of members” over the value of £25.00 to provide within 28 days of its receipt written notification of the details to the monitoring officer. This includes to any gift ect..offered. • The best advice is for all gifts to be declared.

7. Declaring Interests • Personal interests • These have to be declared to the monitoring officer/chair of the committee. • It is now a criminal offence for councillors to deliberately withhold or misrepresent a financial interest

8. Pre-Determination • Part III of the Local Government Act 2000 introduced a new ethical framework for members and employees of local authorities. This included a statutory code of conduct for councillors and the creation of a standards committee for each local authority. It also established a new investigating body, the Standards Board for England. • Councillors had very clear guidelines – they must declare any personal interest and were not allowed to vote for an application if they had a prejudicial interest.

9. Past Pre-determination • The position on where members stood on lobbying was not as clear cut • playing it safe many councillors took the stance that they could not express an opinion on a proposed development and then take part in a planning committee meeting. • Up until now councillors may have found themselves in a difficult situation – they may have been elected on their very vocal campaigning against a controversial development, only to find that further down the line their campaigning has excluded them from taking part in making the decision.

10. Localism • The Localism Act has seen the Standards’ Board being abolished/disbanded on the 31st March 2012. • From 15th January 2012 the coalition government stated that councillors were able to fully engage with applicants as the predetermination rules were abolished. • Members will be able to engage with people of Stockport, irrespective of committee membership, without fear of losing their vote. • On the flipside, councillors would also now be able to actively campaign against or for a planning application and still be able to sit on the committee when that application is determined

11. Legal Advice? • Councillorsstill need to be careful. • By no means does the abolition of predetermination remove the legal obligation that planning applications should be determined in accordance with the development plan, “unless material considerations indicate otherwise.” • And despite the removal of predetermination, councillors must still be open minded in determining planning applications. The difference now is the fact that they may have campaigned against a proposal will not be taken as proof that they have a closed mind.

12. What is the difference? • An example now is that you can wear ‘ban the supermarket’ or ‘no disposal site’ tee-shirt and support the residents/constituents and still take part in the decision making if on the planning committee • I do suggest this is removed at the door of the committee room (obviously ensuring that you are still decently clothed!)

13. So a step forward? • No doubt the next few months will see many councillors trying to find their feet, cautiously trying to find a balance between engaging with developers and residents whilst making sure they appear to keep an open mind when it comes to decision making. In summary • The clarified rules on predetermination still require a planning committee member to have an open mind when determining a planning application. However, proof of previous campaigning against a proposed planning application would not be proof that the member had a closed mind

14. Legal cases confirm • Although the common law has always regarded a closed mind to be a bad thing, it has never required decision makers to undertake their work with empty minds.

15. The Near Future • Each authority will be under a general statutory duty to "promote and maintain high standards of conduct by members". SMBC will adopt a voluntary code of conduct. This is anticipated for July 2012. • In a world where authorities are coming under ever increasing financial pressure and are being encouraged to think creatively (the "It's up to you" mantra), I predict a steady stream of legal cases where parties seek to place under the legal microscope, the dividing line between on the one hand political disposition (and the sense that we elect our politicians to make decisions and make a difference) and, on the other hand, bias and predetermination. • Some firm ground rules would be welcome and the principles of the (now abolished) code of conduct, based on principles established by Lord Nolan in his report on ‘Standards in Public Life’, remain a useful starting point: selflessness; honesty and integrity; objectivity; accountability; openness; personal judgment; respect for others; duty to uphold the law; stewardship; leadership.

16. PLANNING AND HIGHWAYSLEGAL TEAM CONTACTS • JOY MORTON LEGAL MANAGER 474 3219 • KAREN HILLEN PRINCIPAL LEGAL OFFICER 474 3640 • JACKIE CONNELLY PRINCIPAL LEGAL OFFICER 474 3134 • ZOE ALLAN LEGAL OFFICER 474 3138 • NEW POST LEGAL ASSISTANT 474 3233 • SHAMEEM AKTAR TRAINEE SOLICITOR