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
• Context of planning and decision making
• National planning policy, the Development
Plan and other material considerations
• Decision making basics
• Probity and pre-determination
• Committees
4. Planning…
• Manages growth in the public interest
• 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.
6. Planning involves balancing issues
economic recession
climate change
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
7. Understanding the System
• Planning takes place within the context of a
system, which is defined by:
– Legislation
– Regulations and Orders
– Case law
– Policy and guidance (at different levels)
– Appeals
8. • national policy
• National Planning Policy Framework (NPPF)
• National Policy Statements
• G&T policy
• Planning Practice Guidance
• local policy
• development plan
• neighbourhood policies
• neighbourhood plans
Planning in England is policy-led
9. The job of the planning decisions
• Planning isn’t just about stopping bad stuff
from happening
• It’s proactive, encouraging development that
delivers the right stuff for your community
and accords with your plan and strategic
objectives
10. Development and decisions
• Development needs planning permission
(some of which is permitted development)
• Some decisions are made by others
• Mostly, decisions are made by Councils
• Most of these (straightforward, in accordance
with policy) are decided under delegated
authority
• Leaving Committee to focus on the difficult,
contentious, strategic development
11. Councillors have an important role
• involvement with the community and
developers at an early stage
• raising areas of concern
• informed debate
• balance issues and material considerations
• make decision
“…..members are involved in planning matters
to represent the interests of the whole
community”
Planning Practice Guidance 2013
12. Who makes planning decisions?
• Local Planning Authority: delegated or
committee
• Secretary of State (call-ins/recovered appeals)
• Appeals – the Planning Inspectorate
• Government – national infrastructure projects
• Greater London Authority
• Development Corporations/Joint Planning
Units
• And there is the role of the courts
13. Basic principle: start with the plan
• “……have regard to the
provisions of the
development plan, so
far as material to the
application, and to any
other material
considerations”.
Town and Country Planning Act
1990, section 70
14. 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
There is a presumption in favour of sustainable
development
15. What is the development plan?
• National Planning Policy Framework
• Local Plans: development plan documents
adopted by local planning authority
• Neighbourhood plans: where supported by the
local community at referendum and subsequently
‘made’ by the local planning authority.
• The London Plan (London only): spatial
development strategy prepared by the Mayor.
16. “Can we ignore the Development Plan?”
• No, that would be unlawful (s38)
• Can you take a decision which seems to conflict with
the Plan?
• Yes – so long as it is based on the merits of the case,
in the light of all other material considerations, for
example:
- a policy is out of date compared with national
policy
- the monitoring information shows that the
situation “on the ground” has changed
- an unforeseen opportunity has arisen
17. The main types of material
consideration
• National and local policy
• Relevant views of consultees
• Factors on the ground
18. Other Material considerations
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
– Consultee comments
– Previous planning decisions
19. Non material considerations
– 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 (let the market deal with this)
– Damage to property fears
– Disturbance during building works
– Other matters controlled under building regulations or other
non-planning legislation
20. Material Considerations
• what they are and are not - decided by
statements of national policy or by decisions of
the courts
• the weight that should be attached to each
consideration in any particular case is for the
decision maker
21. Key points for decision making
• the policies in the development plan
• other relevant policy considerations
• the results of technical consultation
• all other views – if material
• on its own merits, and in its own context
• come to a view in the light of the debate and
officer assessment and recommendation
22. The Decision
• Grant planning permission
- subject to conditions (& obligations (S106s)
• Special types of approval or consent e.g. prior
approval, listed building consent,
• Refuse planning permission (or prior approval,
LBC, CAC etc)
• Planning applications can only be refused for
genuine planning reasons
23. Conditions
“Planning conditions should only be imposed
where they are:
•necessary;
•relevant to planning and;
•to the development to be permitted;
•enforceable;
•precise and;
•reasonable in all other respects.”
Para. 206 of the NPPF
24. S106 obligations
• Site specific to that development
• Where it is not possible to use conditions
• Often in mitigation of an impact
• Or to support provision of infrastructure or affordable
housing
• Necessary to make the development acceptable
directly related to the development,
• Fairly and reasonably related in scale/kind to the
development
• Must be governed by the fundamental principle that
planning permission may not be bought or sold
25. Overturns/different decisions
• Councillors can come to a decision that differs
from the recommendation
• But it must be justified on planning grounds
(based on the plan and material considerations)
• Committee must give justified planning reasons
for decision (it cannot be left to officers)
• May be subject to appeal (or other challenge), so
reasons should be defendable
26. Refusing permission
• Are the reasons lawful (which includes being generally
“reasonable”)?
• Are they based on planning grounds?
• Could you mount a credible case on appeal?
• Is there a sufficient “evidential basis” for the decision?
• Would anyone reading the decision – especially the
applicant – understand why permission was refused?
27. Refusing permission (2)
• are you able to describe the harm that would result
if the development went ahead? And why
conditions would not be sufficient to mitigate that
harm?
• is it clear what the policy support is for the
decision?
• have all the other material considerations been
given the appropriate weight?
28. 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 … very localised group of residents should be
able to prevent planning permission being granted simply
because they do not want it.”
29. The performance ‘sticks’
• Planning guarantee: fees to be returned if no
decision after 26 weeks (unless extension
agreed)
• Designation: major applications can be dealt
with by PINS where LPA shows “consistently
poor performance in speed or quality of
decisions” or where a high proportion of
decisions on majors are allowed on appeal
This will have implications for your timetable
and deferrals
31. Propriety and good practice
• the 1947 Act vested the right to develop land in the
State and created local planning authorities
• planning involves balancing public and private
interests
• although the British system is very “clean”, the public
perception is often negative (e.g.: “what matters in
planning is who you know”)
• so we need to be able to demonstrate fairness,
openness and impartiality at all stages of the process
32. Fair and Unbiased Decision Making
• Consider all proposals on their individual
merits.
• Should not come to a firm view on a matter
before taking all the material considerations
into account (or appear to have done so)
33. Localism Act 2011 (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
34. Predetermination & predisposition
• Predisposition (inclination/opinion) is fine; must have
a willingness to listen to all material considerations
before deciding how to vote
• Predetermination (a ‘closed mind’) is not
• The fact that a councillor may have campaigned
against a proposal will not be taken as proof that
they are not open-minded
• Lobbying is normal and perfectly proper part of the
process – not indicate finally made mind up
35. Lobbying
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
• Raise concerns with officers
• If expressing a view, explain it is your initial view and
may change, taking all valid considerations into
account
• Record your involvement
36. 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’
37. Spot the difference...
• “Should I be elected to the Council and serve on the
Planning Committee, I will oppose each and every
wind farm application that comes up. They are blots
on the landscape and need to be stopped. Enough is
enough. NO MORE WINDFARMS!!
• “Should I be elected to the Council and serve on the
Planning Committee, I will need a lot of persuading
that any more wind farms should be allowed in our
District. Many people find them ugly and noisy, and
there is evidence that they are harmful to wildlife.”
38. Has everyone got the message?
“Fracking may well be a useful technology for
other areas and good luck to them if it is,
however the people of xxxx have our assurance
that there won’t be any in our borough.”
Leader of xxx Council 13 January 2014
39. Interests
• in accordance with the Seven Principles of
Public Life, required to register pecuniary or
other personal interests
• pecuniary interests MUST be registered
• Council may determine other personal
interests to be registered
• or you may ask the monitoring officer to
include an interest on the Register
• Best to also raise these at committee
See Openness and Transparency in Personal Interests: A Guide
for Councillors (DCLG, August 2012)
40. Planning Committees
• Think about how the public see you –
committee as a shop window
• Think about how an investor sees you
• This is how important decisions get made –
would you be impressed?
– Serious
– Clarity
– Transparency
– Fairness
41. 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?
42. 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)
43. Committee site visits
• Council should have a protocol on when and why to
hold a site visit and how it will be conducted –
ensures a consistent, transparent and fair 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)
44. • 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
Being effective at Committee
45. An effective commitee
• Has 10-15 members
• Acts professionally, fairly, and transparently
• Understands what the job of the committee is;
and individuals understand their role
• Reviews how it is doing it’s job
• Makes responsible decisions
46. Top Tips
1. Respect the process
2. Follow the statutory planning framework
3. Think about the bigger picture – the outcomes, and wider
public interest
4. Seek advice from planning officers, solicitors and other
technical experts
5. Carefully consider the reasons for your decision, and
robustness against challenge
6. Have the right planning reasons: do not make a decision and
instruct officers to come up with reasons
7. Regularly review your decisions
This is intended for councillors new to planning and / or a refresh for councillors
It covers the basics of development managements and a councillors role in decision making.
It is a long presentation, but is intended for you to dip in and out of to use the most relevant aspects for your needs. There are other councillor presentations on our website that go into certain areas in more detail.
We provide
Planning is about big things.
Planning is about sustainable development – balancing the economic, environmental and social impacts of new development. Planning is not just about dealing with planning applications. Your local plan and the decisions you then make on applications, will impact on housing, job creation, climate change, investment, infrastructure and the quality of people’s lives. That is one of the reasons why planning is often controversial. Finding the right balance between different objectives is what makes your job challenging and exciting.
There are two main aspects to planning in local government – writing and implementing a plan, and dealing with development proposals. But also important to work with economic development and other colleagues within the council, as well as others outside the council responsible for making development happen – landowners and developers, the LEP, public bodies etc.
Controversial – affects people’s lives as an applicant and/or resident or business owner.
Sometimes these are very difficult – hard choices to make.
Your decisions affect the actual changes that happen within your area.
You make these decisions by using the plan and a decision making framework which aims to manage competing uses for space by having reference to the plan, by consulting others and ensuring value for the community as much as possible.
But is all within a legislative framework as well.
And this complexity is one of the things that the government wants to sort out.
Since 2011 the government has introduced across the board changes to the planning system, from the introduction of the NPPF and PPG to extensive changes to Permitted Development regulations, all designned to simplify and speed up planning processes.
The role of planning and planning committees today has moved away from development control to development management
Planning isn’t a regulatory/control thing – its about making the decisions to implement your local plan.
Development proposals in you area should be regarded as opportunities for
Economic (job creation, CIL, New Homes Bonus, Business rates)
Social (Housing, Affordable housing)
Environmental (Open space, heritage)
Give figures if possible – within the authority, % approved, % delegated
Despite what you might think, almost all planning applications are approved.
They are for low impact, straightforward changes and adaptions to the buildings we use to live in and work from.
As a councillor, though, you will be required to work on the more difficult ones. In most places this is less than 10%
The straightforward applications should be left to officers under delegated powers to free up councillor time to concentrate on the most significant and controversial cases.
Getting it wrong is costly (time, money, reputation and long lasting impacts)
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
Restated in 2004 TCP Compulsory Purchase Act
It’s the law.
A development that is consistent with the National Planning Policy Framework does not remove the requirement to determine the application in accordance with the development plan unless there are other material considerations that indicate otherwise
In March 2014 Planning Practice Guidance (PPG) was published. The PPG adds further context to the NPPF and it is intended that the two documents should be read together
The starting point for decision making is your local plan.
You might know your Local Plan as a core strategy. Any development plan document adopted by your council makes up your local plan
Arguments that an application is premature are unlikely to justify a refusal of planning permission other than where it is clear that the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, taking the policies in the Framework and any other material considerations into account.
Such circumstances are likely, but not exclusively, to be limited to situations where both:
a) the development proposed is so substantial, or its cumulative effect would be so significant, that to grant permission would undermine the plan-making process by predetermining decisions about the scale, location or phasing of new development that are central to an emerging Local Plan or Neighbourhood Planning; and
b) the emerging plan is at an advanced stage but is not yet formally part of the development plan for the area.
Refusal of planning permission on grounds of prematurity will seldom be justified where a draft Local Plan has yet to be submitted for examination.
Where planning permission is refused on grounds of prematurity, the local planning authority will need to indicate clearly how the grant of permission for the development concerned would prejudice the outcome of the plan-making process.
National Planning Policy Framework ( NPPF), ministerial statements, emerging policy, Planning Practice Guidance, other council policies, supplementary planning guidance
The list is not exhaustive, and not all will apply in every case. Have to relate to the use and development of land
The weight to be given to the different considerations will vary according to the circumstances of the case.
What constitutes a material consideration is a matter of law for the courts
Weight to be attached to a material consideration is a matter for the decision maker
Test of reasonableness applied by the courts
including:
National policy
Other council strategies
Context and merits of the particular application
Technical consideration
Consultees views on planning aspects
Other material planning matters
It is helpful if the Council explains to third parties what are material considerations and what are not (e.g. information provided with public speaking or neighbour notification guidance) . This will help objectors to understand the process who otherwise may feel that their comments are being disregarded.
When matters are addressed by other legislation (eg licensing regimes, health & safety, fire safety) they should not be taken into account in the planning decision.
The history or character of the applicant is unlikely to be a material consideration other than in certain exceptional circumstances such as a mineral operator’s experience in managing and restoring a site.
Commercial competition (eg Tesco v Sainsburys) is not a material consideration BUT whether the development proposal is out of town or in town (i.e. relative impact on the vitality and viability of the town centre) MAY be material.
Issues related to decency or belief (e.g. sex shops, places of worship) are not likely to be relevant material considerations.
So remembering that you should “……have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations”.
What are those material considerations?
Well run committees keep focus on these.
The Committee can decide to grant planning permission and therefore allow the development to proceed
Or refuse permission.
Otherwise unacceptable development, can be made acceptable through the use of conditions or planning obligations.
Planning obligations, achieved through Section 106 agreements, should only be used where it is not possible to address unacceptable impacts through a planning condition and are required to meet the following tests
Necessary to make the development acceptable in planning terms
Directly related to the development; and
Fairly and reasonably related in scale and kind to the development. (NPPF paragraph 204)
Trees can be protected by the designation of Tree Preservation Orders or if they are located within a Conservation Area. For such protected trees consent is required for works to prune or fell them.
Planning conditions must be seen to be fair, reasonable and practicable.
The LPA must “state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision”.
must be as specific as possible – what does “to safeguard the interests of residential amenity” or “to enable the local planning authority to control the development” actually mean?
There is a right of appeal against conditions – so must be able to explain and justify
It is important to ensure that conditions are tailored to tackle specific problems, rather than standardised or used to impose broad unnecessary controls.
Planning obligations, achieved through Section 106 agreements, should only be used where it is not possible to address unacceptable impacts through a planning condition and are required to meet the following tests
Necessary to make the development acceptable in planning terms
Directly related to the development; and
Fairly and reasonably related in scale and kind to the development. (NPPF paragraph 204)
Changes to CIL and S106 regulations in April 2015 placed limits on the pooling of S106 developer contributions and will impact on councils and how they seek to fund infrastructure. Those councils who have not adopted CIL will possibly be in the position that they cannot levy a developer contribution nor mitigate a proposed scheme.
Pooling changes – can only pool 5 contributions for each bit of infrastructure (project). Serious implications if no CIL.
For more info see PAS briefing : Making Defensible Decisions
Remember, all decsions can be challenged and unpicked at an appeal.
Poor decision making (brought into focus via appeals) is wasteful – costs time and money. And bad for a council’s reputation.
A reminder that localism has not changed the basis for making planning decisions
The consultation is not a referendum.
The views of consultees are material considerations, but the role of the committee is to make decisions in the public interest – a broader view than the interests of an individual or even a ward. Decisions for the benefit of the whole area – or beyond.
Designation threshold: Fewer than 40% of major applications dealt with in 13/16 weeks, unless otherwise agreed, over a 2 year period (eg July 2013 to June 2015).
Is this generally understood and accepted as a starting-point?
Planning is often an emotive matter for those involved and it is of upmost
important that processes are not only carried out fairly but appear fair to an
unbiased observer. This minimises the risk of challenge to the Council as
Planning Authority but also to the individual Members from a conduct point
of view.
The Localism Act aimed to provide additional protection to Councillors who have expressed views on proposals before a planning committee and paved the way for the abolition of the Standards Board for England.
The Standards Board was set up as part of the new ethical framework for local councillors in the Local Government Act 2000. In its place, the Localism Act introduced a new criminal offence of failing to disclose or register members’ pecuniary interests and requirement for authorities to adopt a code of conduct
This is all part of the ‘Localism Agenda’ – that councillors have a proper role to play in planning for the area and getting involved.
Objective of the changes: ‘Councillors should be free to campaign, to express views on issues and to vote on those matters, without fear of being unjustly accused of having a closed mind…because of it. We will be legislating …to make it clear that the normal activities of a councillor; campaigning, talking with constituents, expressing views on local matters and seeking to gain support for those views should not lead to an unjust accusation of having a closed mind on an issue that can lead to a legal challenge….The (Localism) Bill will give councillors the assurance that they can campaign, discuss and vote on issues with confidence.’ (Coalition proposal 2009)
The Council’s Code of Conduct should establish what interests need to be disclosed and registered by a councillor. A disclosable pecuniary interest requires the withdrawal of the councillor from the committee when that pecuniary interest relates to an item under discussion by the committee.
The system trusts you generally to approach decision-making with an open mind. Much depends on what you actually say, and in what context.
The Nolan report recognised that being lobbied is a normal part of a councillors role in planning.
Difference between advocating/opposing and engaging in the debate.
Engage on the basis of knowledge and information or ask questions.
You can talk to developers
You can talk to objectors
You can have an opinion on a proposal
You can express an opinion on a proposal (in and outside of a committee meeting)
But there is still potential for misunderstanding and misinterpretation that community groups and developers will seek to exploit – it can be a legal minefield.
Always apply the perception test – with full possession of the facts would a member of the public regard you as being biased.
Legitimate - applicants, nieghbours and other interested parties will approach their ward councillor or members of their planning committee. As the Nolan Committee’s third report states, this is essential for proper operation of the planning system and best done through the councillors themselves.
Expressing opinions - members of the planning committee are able to express opinions, and listen to those of others. The Localism Act makes it clear that just because you have expressed an opinion, it does not necessarily mean that you have pre-determined the proposal. But you still need to take care to show that whilst you might have a view, you are open to the debate and will make your mind up on the basis of all the evidence.
Meetings – If you want to meet with any groups – be it residents or applicants - it is best to do so with a planning officer present. If attending public meetings, members of a planning committee should maintain an impartial role, listening to what is said and if you express an opinion, make sure that it is just that, not a fixed view. Members of a planning committee should be advised of any public meeting either organised by officers or which officers have agreed to attend.
Balance - It is difficult to find a form of words which conveys every nuance of these situations and which gets the balance right between the duty to be an active local representative and the requirement when taking decisions on planning matters to take account of all arguments in an open minded way. It cannot be stressed too strongly, however, that the striking of this balance is, ultimately, the responsibility of the individual councillor.
The basis of the planning system is the consideration of private proposals against wider public interests. Much is often at stake in this process, and opposing views are often strongly held by those involved. Whilst planning committee councillors should take account of these views, the general role and conduct of councillors and officers is they should not favour any person, company, group or locality, nor put themselves in a position where they appear to do so. Councillors who do not feel that they can act in this way should consider whether they are best suited to serve on a planning committee.
Also remember any other roles you have – as a cabinet member, or within your political group.
Pecunary interests – should not take part in committee
Personal – still can
ALWAYS CHECK WITH YOUR MONITORING OFFICER
This is a serious decision making forum where
Consistent – little consistency amongst councils on the operation of site visits, both in terms of why they are held and how they are conducted. While a variety of approaches can be healthy, the lack of any common approach on when and why to hold a site visit and how to conduct it can leave a council open to the accusation that such visits are arbitrary and unfair or a covert lobbying device.
A protocol setting out the arrangements for a council could be used to encourage consistency and transparency of process.
Site visits – points to note:
• they are intended to be fact-finding exercises
• you should use the opportunity to establish the relationship of the site/buildings with surrounding buildings/features/characteristics
• it is not part of the formal consideration of an application
• the applicant/agent may not address the meeting, unless it is to establish points of fact (for example, identify location of development proposal within the site)
•there is no public right of attendance and they are not permitted to address the meeting
• the planning officer must attend to explain the proposal and answer questions
• wherever possible you should make notes so that you can accurately recall the visit when the application is formally considered at the committee meeting
• in preparing for the committee meeting if you believe the visit highlighted issues that are not addressed in the officer’s report, liaise with the officer prior to the meeting
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