Do councillors have to follow the advice of officers in taking planning decisions?

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1 Do councillors have to follow the advice of officers in taking planning decisions? Standard Note: SN/SC/1030 Last updated: 6 January 2012 Author: Christopher Barclay Science and Environment Section This note deals with decisions taken by local planning committees/planning boards against the advice of officers. Another note, SN/SC/931 (Councillors and planning applications), deals more generally with the obligations placed on councillors in the determination of planning applications, for example with reference to lobbying and personal interests. Planning officers have to recommend whether a planning application should be rejected, accepted with conditions or accepted without conditions. The dramatic reduction in the volume of Government guidance may leave planning officers, councillors and planning inspectors to rely upon their own judgement rather than government rules. Councillors who reject a planning application that officers have advised them to accept risk being overturned on appeal, with costs awarded against the council if no good reasons for the decision have been given. Councillors who accept an application that they have been advised to reject will not be overturned on appeal but Government normally brings them into line if they continue not to follow Government guidance. The Local Government Ombudsman can investigate a planning decision on possible grounds of maladministration but cannot overturn the decision. Compensation is sometimes paid. The Localism Act 2011 will abolish the Standards Board regime and the concept of predetermination. Councillors will no longer be prevented from expressing an opinion a planning applications and then taking part in the planning committee decision. The rejection of a planning application might still lead to an appeal to a planning inspector. This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required. This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public.

2 Contents 1 When should councillors take decisions against the advice of officers? 2 2 Delegation 4 3 Do officers have to give a recommendation? 4 4 Is the position of councillors changing? 5 5 Rejection of applications by councillors 5 6 Acceptance of applications by councillors 6 7 The approach of the Local Government Ombudsman 7 1 When should councillors take decisions against the advice of officers? The Local Government Association in 2002 described the different roles of officers and councillors: 3.1 Councillors and officers have different but complementary roles. Both serve the public but councillors are responsible to the electorate, whilst officers are responsible to the council as a whole. Officers advise councillors and the council and carry out the council s work. They are employed by the council, not by individual councillors. It follows that instructions may only be given to officers through a decision of the council or its executive or a committee. Any other system which develops is open to question. A successful relationship between councillors and officers can only be based upon mutual trust and understanding of each others positions. This relationship and the trust which underpins it must never be abused or compromised. 1 However, the relationship between local councillors and their planning officers can occasionally prove difficult. Councillors sometimes feel that officers are pressuring them to accept applications they would like to reject, through fears of being overturned on appeal. Officers, on the other hand, may feel that councillors have not taken sufficient account of the relevant planning policy guidance. Planning law says nothing about this and planning policy guidance very little. The law refers to the role of the local planning authority but does not go into detail about how those decisions should be taken. The Nolan Committee, reporting on standards in public life in 1997, argued that councillors should be more willing to take decisions against the advice of officers. 286 It should be firmly stated that there is nothing intrinsically wrong if planning committees do not invariably follow the advice of officers. Planning officers exist to advise planning committees, which are entitled to reach their own decisions by attaching different weight to the various planning criteria which are relevant to an 1 Local Government Association, Probity in Planning,

3 application. If a decision is thought to be perverse, a planning officer should so advise the committee, but respect the committee's conclusion. 289 Councillors themselves may be influenced by feelings which do not derive from dispassionate examination of the planning issues. They may see themselves as leaders of local opinion rather than as judges, and they may even have been elected on a specific platform of opposing or supporting a particular development or type of development. In our view, if planning decisions by local authorities were to be regarded as quasi-legal decisions, in which councillors played a role similar to that of inquiry inspectors or judges, there would be no point in involving councillors in such decisions. They might as well be taken by planning officers, or by inspectors. 2 This conclusion surprised many in the planning field, mainly because they felt that the analysis did not take account of the main issue. The Sweet & Maxwell Planning Encyclopedia commented: The missing element in the Committee s analysis is the policy framework within [which] decisions must be taken, comprising both national policy (now principally represented by the PPGs) and local policy (now principally represented by the development plan). It is the policy framework which places the greatest constraints upon councillors ability to reflect local community interests. The principal reason for Britain s national policy framework, indeed, is the need to pursue objectives, such as housing targets, that will often override local community wishes. Part of the impetus for planning gain is that the practice, as with its counterparts in other countries, minimises the cost to local communities of accommodating growth that is the product of national forces. 3 In cases where councillors overturn the advice of officers, reasons have to be given. The Local Government Association publication, Probity in Planning, explains the need: 10.4 If the planning committee makes a decision contrary to the officers recommendation (whether for approval or refusal), a detailed minute of the committee s reasons should be made and a copy placed on the application file. Thus, members should be prepared to explain in full their reasons for not agreeing with the officer s recommendation. In so doing, members should observe the Wednesbury principle (the case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223) which, put simply, requires all relevant information (ie material considerations) to be taken into account and all irrelevant information (ie non-material matters) to be ignored. The officer should also be given an opportunity to explain the implications of the contrary decision The courts have expressed the view that the committee s reasons should be clear and convincing. The personal circumstances of an applicant, or any other material or non-material considerations which might cause local controversy, will rarely provide such grounds. A notable exception is where planning policy allows for this, for example, the provision of a dwelling for an agricultural worker. That guidance has no statutory force. However, failure to follow it might make it easier for the decision to be challenged under the Human Rights Convention. 2 3 Third Report of the Committee on Standards in Public Life, Standards of Conduct in Local Government in England, Scotland and Wales, Cm 3702, July 1997 Sweet & Maxwell Encyclopedia of Planning Law and Practice, Monthly Bulletin, August p 19 3

4 2 Delegation In March 2002, the Labour Government introduced a target that planning committees should delegate 90% of decisions to officers, so that the planning committee could concentrate its efforts on the remainder. The target is not meant to be an absolute rule. 4 In January 2008 Norman Baker complained about the extent of delegation: In recent years, however, the Government have moved almost to exclude elected members from taking decisions on planning applications; there is a push to delegate as much as possible to officers. Why should unelected officers be more accountable than elected councillors? Of course, some applications fit in to a system and are clearly within the terms of the local plan. Such applications are either controversial or uncontroversial, so they can be clearly rejected or accepted. In my day, about 50 per cent. of applications were delegated, so I am not suggesting that councils should take every single decision. However, we are now getting to the stage where 80 or 90 per cent. of applications are dealt with by officers the figure is even higher in some local authorities. Council members find that frustrating, but so do members of the public. They do not understand why, when they elect local councillors to take decisions on planning matters and lobby them to that end, a decision on an application that is important to them should be taken by an officer of whom they have never heard in a room that they did not know existed. It might be a small matter in the big scheme of things, but if a person s next-door neighbour gains permission for something that will intrude on them, it is a serious matter to them. The least that such people would wish to do is to lobby the local council and have some influence on the matter, but that is increasingly rare under the current system. 5 3 Do officers have to give a recommendation? People sometimes ask whether planning officers could just state the facts to councillors without a recommendation for action. They cannot really do so. Local councils will have rules on the roles of councillors and officers, which should conform to the good practice on planning decision-making laid down by the Local Government Association in its publication, Probity in Planning. It contains a section on officer reports to committee: 8.1 The courts and Ombudsman advice have determined officer reports on planning applications must have regard to the following points: reports should be accurate and cover, amongst other things, the substance of any objections and the views of those consulted; relevant information should include a clear exposition of the development plan; site or related history; and any other material considerations; reports should have a written recommendation of action. Oral reporting (except to update a report) should be avoided and carefully minuted when it does occur; reports should contain technical appraisals which clearly justify a recommendation; if the report s recommendation is contrary to the provisions of the development plan, the material considerations which justify the departure must be clearly stated. 4 5 DTLR Press Notice 085, New Best Value Indicators Help Deliver Planning Reform, 11 March 2002 HC Deb 8 January 2008 cc56-7wh 4

5 It is particularly important to do so, not only as a matter of good practice, but because failure may constitute maladministration, or give rise to judicial review on the grounds that the decision was not taken in accordance with the provisions of the development plan and the council s statutory duty under s38a of the Planning and Compensation Act Is the position of councillors changing? Under the Labour Government, councillors had little scope for intervention in planning. They could not vote on a topic on which they had expressed a view, under the predetermination rule. They were greatly restricted in what they could do if the application was near to where they lived. The planning officers would base their recommendations upon the large volume of planning guidance, taking account of targets in the Regional Spatial Strategies. That is all changing under the current Government. The notion of predetermination, the Standards Regime, and Regional Spatial Strategies are being abolished by the Localism Act. The draft National Planning Policy Framework (NPPF) reduced planning guidance from 1300 pages to 52. In many cases planning officers will no longer be able to find guidance dealing with particular situations. They will still have to recommend whether an application is accepted or rejected. However, they will have to rely more upon their own judgements. That might make councillors more willing to reject the recommendations. The disappointed applicant retains the right of appeal to the Secretary of State almost always in practice to a planning inspector. The same issue arises for planning inspectors, who will have to rely more upon their judgement than upon Government guidance. 5 Rejection of applications by councillors In this case, the disappointed applicant has the right of administrative appeal to a planning inspector. The appeal will be heard on the basis of the national planning policy guidance. If the officers made a recommendation based on the planning policy guidance, then a rejection by councillors is likely to lead to the council losing the appeal. In some circumstances, costs can be awarded against the council. That particularly applies in the case of unreasonable behaviour. A DOE Circular explicitly states that planning authorities risk an award of costs against them if they fail to take into account relevant policy statements in Departmental guidance or relevant judicial authority. 6 However, that is a cost on the council rather than the councillor. An article in Planning in April 2001 argued strongly against the Nolan position (which was described in Section 1 above): Ever since claims for costs came into the public arena in 1987, awards against planning authorities following rejection of officer advice continue to be made with monotonous regularity [recently there were a further four cases]. All of these demonstrated a situation where local authorities, having reversed their officers recommendation, failed to back up their reasons for refusal with adequate evidence and in some cases with any evidence at all [In light of the cost] I can see little case for democratic interference in the decision-making process, and none at all where the outcome is to be a refusal. Only in the small number of cases which officers propose 6 Department of the Environment, Award of costs incurred in planning and other (including compulsory purchase) proceedings, Circular 8/93, March

6 to allow even though they may not be entirely in accord with policy would I concede that such a decision should be subject to democratic control. 7 6 Acceptance of applications by councillors There is no analogous right of appeal for third parties when planning applications are accepted in circumstances contrary to national guidelines. The issues were fully considered in North Cornwall, however. Complaints were made that councillors were granting planning permission for isolated houses in the countryside, partly because they felt that local people had the right to build houses there. A senior civil servant was appointed to enquire into the situation, and reported in The report notes that the Secretary of State does have certain powers to revoke or modify planning permission, but that they are only used in exceptional cases. It also notes the financial issues, which potentially apply also to the refusal of permission: Four extraordinary headings of expenditure which could arise from decisions of a Council or its Planning Committee are: i an ombudsman finding of maladministration and injustice giving rise to recommendations for remedial action and financial recompense; ii costs of litigation and award of costs following application for judicial review in the high Court; iii costs of local public inquiries including possible award of applicants costs following use of Secretary of State s call in powers; iv costs of local public inquiries together with landowner s costs and possibly substantial compensation payments following actions by the Secretary of State for revocation, modification or discontinuance. Another case of disagreement arose in Wales in January 2008, reported in BBC News: Officials in a Welsh language heartland have been criticised for granting planning applications from Welsh speakers despite advice to reject them. It came after Ceredigion councillors approved three applications against the advice of planners which were later rejected by the assembly government. ( ) The incident came to light when one of the three approved applications was called in by the assembly government. In a subsequent report, planning inspector Ian Osborne said it would be "discriminatory" to grant permission solely on the grounds the applicant was a Welsh speaker. "Whilst the planning system should take account of the needs and interest of the Welsh language, the fact that the applicant is a local, Welsh-speaking person active in the community does not outweigh the environmental harm," said Mr Osborne. "Moreover it would be discriminatory to grant permission solely or largely on the grounds that the applicant is Welsh-speaking." Ceredigion Council's senior planning officer Aled Richards has warned the council's planning committee that it could lose its planning powers if it continued to take decisions that breached regulations. "We have to take this very seriously," he added. "What's happening is that time and time again we refer to the fact that the applicant is a local Welsh speaker. We have to look at the application, not the applicant." 7 8 Gordon Holt, Refusals against officer advice may cost dearly, Planning, 6 April 2001 Audrey M Lees, Enquiry into the planning system in North Cornwall, HMSO,

7 But Cllr Lyndon Lloyd who sits on the planning committee said he disagreed with Mr Osborne's comments. "We have assembly government ministers saying there should be policies in rural areas that rely on positive discretion, and then we have comments from Mr Osborne that seem so rigid," he explained. "All we're trying to do is stand up for our young people and our communities. There seems to be a lack of awareness of that in Cardiff from the assembly's officials." 9 7 The approach of the Local Government Ombudsman The Local Government Ombudsman for England can investigate complaints of maladministration but cannot go into the planning merits of a decision. The report of a ruling in 2003 by the Local Government Ombudsman, relating to unnamed members of the North Shropshire District Council shows how these issues are handled. The Ombudsman concluded that they had been unduly influenced by the lobbying of a developer seeking planning permission to build 22 houses. However, the Ombudsman judged that there was no evidence of any improper relationship between the developer and the councillors involved. The minutes of the relevant committee meeting recorded few reasons why councillors voted to grant approval against officers advice, she noted. Although many councillors discussed the proposal with the developer, there was no record of what was said or agreed. Taking into account the financial viability of the development was not a material planning consideration, she pointed out. For all of these reasons, the Ombudsman concluded that the decision to approve the application was affected by maladministration. However, she found no evidence of any underhand dealings. In assessing the level of injustice to the complainant, she noted that the council had approved more houses on the site than was advocated in a local plan policy and that there would be some overlooking, since the distances between the properties were below recommended guidelines. The Ombudsman concluded that a smaller scheme would probably have resulted if councillors had appreciated that the proposal departed markedly from local plan policies and from national advice in PPG3. She recommended the council to pay the complainant 1,000 and called for applicants and objectors to be allowed to address the development control sub-committee in order to reduce accusations of unfairness. 10 An interview in Planning in March 2006 with local Government ombudsmen gave examples of what they look for: If any part of the planning process has been circumnavigated, investigators have to look into what decision would have resulted if it had been done properly. If important information has been missed, like consultation with English Heritage or the highways authority, the ombudsmen have to examine what would have happened and whether it would have made a difference to the decision, says [planning editor] Vaile. It also gave an idea of how much compensation is paid: White [one of the Local Government ombudsmen] says the ombudsmen think in the region of 2,000 compensation for a defective planning decision leading to statutory nuisance, 1,000 for loss of amenity not leading to statutory nuisance and 500 to 9 10 Planning row over language favour, BBC News Online, 24 January 2008 Lobbying found to have affected homes decision, Planning, 15 August

8 1,000 for someone who has lost an opportunity to have their say by being locked out of the planning process Ombudsmen serve up quality controls, Planning, 3 March