Making your mind up –probity and planning

Alice Lester, Planning Advisory ServiceIan Ward, Deputy Leader, Birmingham City Council

Date: 19 June 2012

www.pas.gov.uk

What is PAS?

A grant funded programme:

“to help local planning authorities to manage and deliver changes in the planning system, and to drive improvements in the overall performance of local planning authorities in England”

To help local authorities with

• Understanding and responding to planning reform• Strong strategic, local and neighbourhood planning• Good decision making• Accountable and value for money planning• Growth, delivery and assets

Via on line tools and publications, events, one to one support, benchmark etc using peers and supplier framework

What we’ll cover

• Importance of ethics and standards in decision making

• The rules

• Being effective as a councillor

• The impact of the Localism Act 2011 on probity issues (pre-determination)

• You can’t have good planning without good decision making by councillors (plan making, pre-application discussions and decisions)

• Public perception of how that works

• Planning decisions have an impact on land values, and lives

• Good behaviour, and good committees, are important

It matters

Boring but important – legislative context

• The Nolan Report (‘Standards in public life’)

• Local Government Act 2000

• Local Authorities (Model Code of Conduct) (England) Order 2007

• Local codes for planning

• Killian & Pretty – role of councillors

• Localism Act 2011

Localism Act 2012

• 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

• Abolishes Standards Board • Requires authorities to have their own code of

conduct • Introduces a new criminal offence of failing to

disclose or register pecuniary interests

Cabinet

Cabinet & Committee

Committee

Local Plan

Master planningPre-Application

PlanningApplications

ward & parish councillor

ward & parish councillor

ward & parish councillor

Local accountability

NeighbourhoodPlanning

(Cabinet)ward & parish

councillor

General Principles for public service• Selfishness

• Stewardship

• Objectivity

• Accountability

• Openness

• Integrity/honesty

• Leadership

• Duty to uphold the law

• Personal judgement

• Respect for others

Personal Interest

If a decision by planning committee potentially affects:

the well being or financial position of you, your family, your friends or your business/employer

If in doubt – declare

Prejudicial Interest

The test is not whether the councillor thinks there is an interest to declare but whether other people, knowing the facts of the situation might reasonably think so

Withdraw

Pre-disposition:

• Having a tendency towards, or likelihood, of deciding a matter in a particular way (ie I’ve got an opinion on this….)

• ………… but with the mind left completely open to the possibility of deciding otherwise in the course of the decision process eg by being influenced by the debate

• Having an open minded disposition, is lawful

Predetermination

• Means making up and closing your mind before a decision. If this happens then the decision is unlawful. The test is the same as for bias.

• Test for bias – to a fair minded observer, who is suitably informed, and who having considered the facts would conclude that there was a real possibility of bias

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… …doing so 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’

What’s changed?

Localism Act – section 25

• Makes it clear that councillors are entitled to campaign on issues and express views etc without disqualifying themselves from decision-making PROVIDED you can demonstrate absence of "bias" or "predetermination“

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 to demonstrably retain an open mind - perception of others as well as intention

Predetermination

Positive engagement but avoid the risks:• Ensure you have all necessary information,

including by neutral site visits

• Respect the professionalism of planning and other officers

• Do not exert undue pressure and also resist it

• Remain able to demonstrate you retain an open mind - perceptions as well as actions

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

Pre-application discussions for major proposals

• Benefit both councillors, applicants and residents

• Enhances councillor role as champion• Positive engagement – a guide for planning

councillors • Discussions within clear guidelines and within

the authorities agreed protocol• Compulsory pre-app discussions between

applicants and community now in force (200 units plus or 10,000sqm

Committee site visits

• Take a consistent approach• Be clear about when a visit is justified• Getting the most out of site visits

- ascertaining facts

- establishing relationship of site with surrounding features/characteristics

- who can speak (these aren’t lobbying opportunities)

Risks

• Risk of judicial review of decision

• Local Government Ombudsman

• Undeclared interests now criminal offence

• Appeals, complaints, judicial reviews all take time and money (even without any costs awards)

• Reputational risk for the local authority – they can’t be trusted to take decisions properly

Planning Committee member possible interest exercise

Your authority receives a planning application for 100 houses in your ward. You are a member of the planning committee.

• You have a newsagent's business on the same road a half mile from the application site, which whilst some distance from the application site is likely to gain some extra trade from occupiers of the development. You get the impression that the planning officer will recommend that permission should be granted.

• From comments, which you receive in your ward you realise that the majority of residents are opposed to the proposal. An election is approaching at which you are seeking re-election.

• A group of agitated residents asks for a meeting with you. • The developer, realising that there is growing opposition, approaches you

intimating that if permission were granted she would fund improvements to community facilities in your ward. She invites you for a meal at the local pub to discuss the matter.

Planning Committee member possible interest exercise

• What contact, if any, would you have with the planning officer?

• How would you respond to the local residents?

• How would you respond to the approach from the developer?

• How would you behave at the planning committee?

Further information

• LGA Probity in planning guide

• PAS ‘positive engagement’

Questions?

Councillor briefing modules

• PAS has produced a series briefings: – Introduction to planning– Probity in planning– Councillors role in decision making– Planning for climate change– Planning Reform (NPPF and neighbourhood plans)– Development management– Sustainable energy – Development Viability

• For use by yourselves or PAS can present them for you

Contact us

email pas@local.gov.ukalice.lester@pas.gov.uk

web www.pas.gov.ukphone 020 7664 3187