Code of Practice for Councillors and Officers Dealing with Planning Matters
ThisCode of Practice supplements the Council’s Code of Conduct for Councillors and where appropriate Councillors shouldrefer to the Code of Conduct which is set out in the Council’s Constitution. The Council’s Monitoring Officer’s advice may be sought on the interpretation of the Code of Conduct or this Code.
The term ‘Planning Committee’ in this Code is used in a generic sense and applies to any Council Committee, sub-committee or Cabinet when considering a planning matter. Planning matters include the consideration of planning applications, the preparation of development plans and other planning policy and the enforcement of planning control.
1. Introduction
1.1 Planning affects land and propertyinterests, including the financial value of land and the qualityof their settings. It is not an exact science. It is often highlycontentious becausedecisions affect the daily lives of everyoneand the private interestsof Councillors of the public, landowners and developers. Opposing views are often strongly held by those involved.A key role of the planningprocess is balancingthe needs and interestsof individuals and the community.
1.2 The planning system canonly function effectively if there is trust among those involved. There must be trust between Councillors and Officers and between the public and the Council. The Third report ofthe Committee on Standards in Public Life (the Nolan Committee) (1997) recommended that each local authority’s practices and procedures were set out in a local code of planning conduct to avoid allegations of malpractice in the operation of the planning system.
1.3 The general principles that underlie the Council’s Codeof Conduct for Councillors and apply to this Code of Practice are:
1.3.1 Councillors should serve the public interestand should never improperly confer an advantage or disadvantage on any person.
1.3.2 Councillors should not place themselves in situations where their honesty or integrity may be questioned.
1.3.3 Councillors should make decisions on merit.
1.3.4 Councillors should be as open as possibleabout their actions and those of their authority, and should be prepared to give reasons for those actions.
1.3.5 Councillors may take accountof the views of others but should reach theirown conclusions on the issues before them and act in accordance with those conclusions.
1.3.6 Councillors should respect the impartiality and integrity of Officers.
1.4 The Council is committedto open, fair and transparent decision-making. Planningdecisions should be made impartially, with sound judgement and for justifiable reasons.
1.5 This Code of Practice sets out practices and procedures that Councillors and Officers of the Council shall follow when involved in planningmatters. Planning matters includethe consideration of planningapplications, the preparation of development plans and other planning policy and the enforcement of planning control.
1.6 Failure to followthis Code without good reason could be taken into accountin investigations into possible maladministration against the Council, or have implications for the positionof individual elected Councillors and officers. Breaches of this Code may also amount to breaches of the Council’s Code of Conduct for Councillors. If in doubt about what course of action to take, a Councillor or officer shouldseek the advice of the Council’s Monitoring Officer.
1.7 ThisCode of Practice sets out principles to guide Councillors and officers in determining planning applications and making otherdecisions within the terms of reference of Planning Committee. Although of particular relevance to membersof Planning Committeeit applies to all members of the Council who may become involved in planning and development matters.
2. The Role and Conduct of Councillors and Officers
2.1 Councillors and Officershave different, but complementary roles. Both serve the public but Councillors are responsible to the electorate, while Officersare responsible to the Council as a whole.
2.2 The role of a member of the PlanningCommittee is to make planning decisions openly, impartially, with sound judgementand for justifiable reasons.
2.3 Whilst Councillors have a special duty to their divisionconstituents, including those who did not vote for them, their overriding duty is to the whole community. This is particularly pertinent to Councillors involved in making a planningdecision. A key role of the planning system is the consideration of development proposals against the wider public interest.
2.4 Councillors’ decisions shall not discriminate in favour of any individuals or groupsand, although they may be influenced by the opinionsof others, they alone have the responsibility to decide what view to take. Councillors must, therefore, consider all of the material issues in the light of Development Plan policies, Government advice and their own individual judgement and make a decisionin the interestsof the area as a whole.
2.5 Whilst Councillors should take accountof all views expressed, they shall not favour any person, company, group or locality,nor put themselves in a positionwhere they appear to do so.
2.6 Officers who areChartered Town Plannersare guided by the Royal Town Planning Institute’s (RTPI) Code of Professional Conduct. Breaches of that code may be subjectto disciplinary action by the Institute.
2.7 Officers in their role of advisingCouncillors shall provide:
2.7.1 Impartial and professional advice;
2.7.2 Complete written reports covering all necessary information for a decision to be made.
2.8 The Council endorsesthe statement in the RTPI code that, ‘RTPI membersshall not make or subscribe to any statements or reportswhich are contraryto their own professional opinions’, and extends it to apply to all officers in the authority advising on planning matters.
2.9 That the Council maynot always follow the adviceof their professional planning officersis perfectly proper. The professional officertoo, may have a changeof opinion, but this must be on the basis of professional judgement, and not because an authority, its Councillors or other Officers, have prevailed upon the Officerto put forward his or her professional view as something other than it really is.
2.10 Ifthe Planning Committee is minded to refuse or grant an application contrary to an Officer’s recommendation, it should considerwhether to defer the application to the next availablecommittee, before making the final decision. This will allow Councillors to obtainfurther legal advice on the proposedreasons for acting contrary to the recommendation based on materialplanning considerations. If such a decisionis made it must be clearlyminuted, expressedclearly and be based upon sound planningreasons supported by evidence.
2.11 Officers shall follow the guidanceon their standardsof conduct as set out in the Code of Conductfor Employees in the Council’sConstitution and any National Code of Conduct for Local Government Officers issuedby the Secretary of State under Section 82 Local Government Act 2000.
2.12 Councillors shall follow the advice in the Councillor’s Code of Conduct about accepting gifts and hospitality. Councillors should treat with extreme caution any offer which is made to them personally; the normal presumption should be that such offersmust be courteously declined. Similarly, officersshall politely decline offers of hospitality from people with an interestin a planningproposal. If receipt of hospitality is unavoidable, Officers shall ensure it is of a minimallevel and declare it in the hospitality register as soon as possible.
3. Councillors Interests and Allegations of Bias
3.1 Where Councillors have interests which may be thought likely to influence their decision, the fact should be declared at the meeting.
3.2 Where the interest is such that members of the public may feel that the Councillor will not be able to approach matters with an open mind and considerthe application on its planning merits, that Councillor should consider withdrawing from the Committee.
3.3 These principles apply equally toCouncillors who are not membersof Planning Committee. Councillors who have such interests should consider whether it is appropriate for them to participate in the planning process,and in any event, should declare such interest at any meetingwhich they may attend or in any letter which they may write.
3.4 The Code of Conduct for Councillors provides guidance as to disclosable interests which may (depending on their nature) affect a Councillor’s ability to take part in the decision-making process. However, Councillors may have other interestswhich may influencetheir decision which will not amount to disclosable interests for the purposesof the Code. In orderto maintain the integrity of the planningsystem, Councillors should be carefulto ensure that such interests do not unduly influencetheir decisions or give rise to a perception of bias in decisionmaking. Examplesof such interests are:
3.4.1 from being closely aligned with division campaigns or issues;
3.4.2 from membership of other Committees of the Council;
3.4.3 from membership of other public or community bodies;
3.4.4 from membership of voluntary associations and trusts (including where appointed by the Council);
3.4.5 from a connection with a particular policy initiative ofthe Council;
3.4.6 from membership of clubs, societies and groups;and
3.4.7 from hobbies andother leisure interests.
Suchinterests may mean that a Councillor is involvedwith a planning application beforethe matter comes before the PlanningCommittee. Such involvement need not on its own debar a Councillor from participating in making the planningdecision when the matter is considered by Planning Committee,providing that the Councillor has not already decided how they will vote on the matter before the Committee. Councillors should, however, always considercarefully whether in any particular case they could reasonably be seen to approach the planning merits of the application with an open mind. If the Councillor considers that this is not possible, the Councillor should withdrawfrom consideration of that item.
3.5 As a minimum, the integrity of the planningsystem requires openness on the part of Councillors; it must operate fairly and beseen to operate fairly.
4. Development Proposed by the Council or a Council Owned Company
4.1 Planning legislation allows the Council to submit and determine proposals for development that it proposesto carry out itself. Councilowned companies also submit proposals that are decided by the Council.
4.2 Proposals submitted bythe Council or a Councilowned company shall be considered in the same way as those by private developers.
4.3 Members of the Planning Committee who sit on the board of a Council owned company which has submitteda planning proposalshall declare an interest and take no part in the discussion and determination of that proposal, except where they are the local Councillor when they may speak on matters of local concernbut shall not vote.
4.4 Officers who areinvolved in the preparation of development proposalsshall not advise on, or take any part in the consideration of, planningapplications in respect of such proposals.
5. Statutory Duties
The Council is also subject to a number of statutoryduties which it must comply with when carryingout its statutory functions. These will apply to the planningfunction except when such mattersare clearly immaterial because they are not capableof relating to the use of development land. Examples of these duties include:
5.1 Equality Act 2010
Section 149 provides that:
5.1.1 A council must, in the exercise of its functions, have due regard to the need to:
(a) eliminate discrimination, harassment, victimisation and any other conduct which is prohibited by or under the Equality Act 2010;
(b) advance equality of opportunity between persons who share arelevant protectedcharacteristic and persons who do not share it;
(c) foster good relations between persons who share a protectedcharacteristic and persons who do not share it.
5.2 Human Rights
Section 6(1) of the Human Rights Act 1998 provides that:
“It is unlawful for a public authority to act [or fail to act] in a way which is incompatible with a Convention right.”
5.3 Best Value
Section 3(1) of the Local Government Act 1999 provides that:
“A best value authoritymust make arrangements to secure continuous improvement in the way in which its functionsare exercised, havingregard to a combination of economy, efficiency and effectiveness.”
5.4 Crime and Disorder
Section 17(1) of the Crime and Disorder Act 1998 provides that:
“Without prejudice to any other obligation imposedon it, it shall be the duty of a [localauthority] to exerciseits various functionswith due regard to the likely effectof the exerciseof those functionson, and the need to do all that it reasonably can to prevent, crime and disorder in its area.”
6. Lobbying of and by Councillors
6.1 Lobbying is a normal and proper part of the politicalprocess. The applicant, supporters or those who may be affectedby a proposal will often seek to influence the decisionby an approach to their local Councillor or membersof the Planning Committee. However, reacting to lobbying can lead to the impartiality of a Councillor beingcalled into question and require that Councillor to declare an interest.
6.2 The information provided bylobbyists is likely to represent an incomplete picture of the relevant considerations in respect of a planning matter. The views of consultees, neighbours and the assessment of the case by the planningofficer all need to be considered before a Councillor is in a position to make a balanced judgement on the merits of the case. Councillors should provide officers with copies of any lobbying material they may have received, whether in favour or against a proposal.
6.3 The time for individual members of the Planning Committeeto make a decision on a proposalis at the committeemeeting when all availableinformation is to hand and has been duly considered.
6.4 A PlanningCommittee membershall be free to listento a point of view about a planning proposal and to provide procedural advice (in particular referring the personto officers). Even though they may agree with a particular view, PlanningCommittee Councillors should take care about expressing an opinionindicating they have made up their mind before the decision-making meeting. To do so, withoutall the relevant information and views, would be unfair and prejudicial. A decisionis at risk of being challenged if Councillors do not retain open minds and are not genuinelysusceptible to persuasion at the decision-making meeting. Councillors who are lobbied should:
6.4.1 make clear that they reserve their final decision on a proposaluntil the committee meeting;
6.4.2 only give procedural advice;
6.4.3 consider referringthose lobbying to the relevantOfficer who can provide furtheradvice; and
6.4.4 not seek to meet an applicant or potential applicant alone.
6.5 Members of the PlanningCommittee shall not, in general,organise support or opposition for a proposal, or lobby other Councillors (other than when addressing the PlanningCommittee). Councillors shall not put improper pressure on Officersfor a particular recommendation.
6.6 The local Councillor who is not a member of the Planning Committee will be allowedto attend and speak at the decision-making meeting (representing the views of their division) but not vote. The Councillorfor an adjacent division substantially affectedby the proposal shall, at the discretion of the chair of the Planning Committee, also be allowed to attend and speak but not vote. A local Councillor who has an interest in an application, within the meaning of the Code of Conductshould seek prior advice from the Monitoring Officer about his or her position.
6.7 If a member of the Planning Committee identifies themselves with a group or individual campaigning for or against an application (to the extent that they are pre determined), they shall advise of their involvement at the start of the meeting and not vote or decide on the matter. However, that Councillor shall be given the opportunity to address the Committee and then leave the meeting for the remainder of that item.
6.8 Councillors of a Planning Committeemust be free to vote as they considerappropriate on planning matters.A Councillor cannot be instructed how to exercise their vote on aplanning matter.
6.9 Councillors should inform the Monitoring Officer where they feel they have been exposed to undue or excessive lobbying or approaches (including inappropriate offers of gifts or hospitality).
7. Pre- and Post- Application Discussions and Negotiations
7.1 Discussions between an applicantand a planningauthority, prior to the submission of an application, can be of considerable benefit to both parties and is encouraged. Continued discussions and negotiations between these parties, after the submission of proposals, is a common and important facet of the planningprocess. However, they should take place within clear guidelines, as follows.
7.2 It shouldalways be made clear at the outsetthat the discussions will not bind the Council to makinga particular decisionand that any views expressed are those of the Officer only, and are provisional.
7.3 Advice should be consistent and based upon the Development Planand material considerations. There should be no significant difference of interpretation of planning policies by individual planning officers.
7.4 A writtennote should be made of all potentially contentious meetings.Two or more officersshould attend potentially contentious meetings. A note should also be taken of potentially contentious telephone discussions.
7.5 Councillors need to preserve their role as impartialdecision makers and members of Planning Committeeshould not take part in pre- or post- submission discussions and negotiations with applicants regarding development proposals. Should there be occasions where a pre application discussion with the Committee or with other Councillors is considered appropriate, it should be part of a structured arrangement with Officers.Councillors must avoid indicating the likely decisionon an application or otherwise committing the authorityduring contact with applicants.
7.6 Councillors may receiveinformation from applicants and give information to applicants and members of the public but, to safeguardtheir impartiality, they should maintain a clear distinction between receiving information and negotiating. Any information received by Councillors shouldbe provided to the officersdealing with the application. Councillors who are approached for planning,procedural or technicaladvice should refer the applicant to the relevant officer.
8. Officer Reports to Committee
8.1 The Head of Planning and/or the Planning Development Manager will submit written reports to the appropriate Planning Committeeon planning applications to be determined by the Council.The reports will give the background to the application including any relevant planning history of the site, a description of the proposalsand their likely effects, and the relevant Development Plan and all other material considerations including government policy considerations. Where a planning application requires an environmental impact assessment the Head of Planningand/or the PlanningDevelopment Manager shall include in their report a summary of the environmental statement, comments by bodies consultedand representations from members of the public together with their own comments. The reportswill include a summary of representations made about the application. The Head of Planning and/or the PlanningDevelopment Manager in their report will give a reasonedassessment of the proposals and a justified recommendation.
8.2 Supplementary written reports may be provided to Members prior to a meeting. This can be to deal with late representations after the publication of the agenda. Oral reports(except to present and update a report)may be provided and fullyminuted when they do occur.
8.3 Thefull planning application, environmental statement (where required) and representations from bodiesconsulted and membersof the public are available through the Planning Portal and can be made available to Councillors for inspection if required.
9. The Development Plan and Planning Considerations
9.1 Planning law sets out how decisions should be made in accordance with the Development plan unless materialplanning considerations indicate otherwise and shouldnot be based on immaterial considerations.
9.2 Planning legislation, as expanded by Government Policy, Ministerial Statements and other Guidance and decidedcases, defines which mattersare material considerations for the determination of planning decisions. There is much case law on what are material planning considerations. The consideration must relate tothe use and development of land.
9.3 It should,however, be noted that the risk of costs being awardedagainst the Councilon appeal is not itself a material planning consideration.
9.4 Personal considerations and purely financial considerations arenot on their own material; they can only be materialin exceptional situations andonly in so far as they relate to the use and development of land such as, the need to raise income to preserve a listed building which cannot otherwise be achieved.
9.5 The planning system doesnot exist to protect private interests of one person againstthe activities of anotheror the commercial interestsof one businessagainst the activities of another.The basic questionis not whether owners and occupiers of neighbouring properties or trade competitors would experience financial or other loss from a particular development, but whether the proposal would unacceptably affectamenities and the existing use of land and buildingswhich ought to be protected in the public interest.
9.6 Local opposition or supportfor a proposal is not in itself a ground for refusingor granting planning permission, unless that opposition or support is founded upon valid planningreasons which can be substantiated.
9.7 It will be inevitable that all the considerations will not point solelyto either grant or refusal. Having identified all the development plan policies, materialplanning considerations andput to one side all the immaterial considerations, Councillors must come to a carefullybalanced decisionwhich can be substantiated, if challenged on appeal.
10. The Decision Making Process
10.1 Councillors shall recognisethat the law requires that where the Development Plan is relevant,decisions should be taken in accordance with it, unless material considerations indicate otherwise.
10.2 Where an environmental impact assessment is required,the Planning Committeeshall take the information provided in the report into consideration when determining the application.
10.3 Ifthe report's recommendation is contraryto the provisions of the Development Plan, the material considerations which justify this must be clearly stated.
10.4 Where the PlanningCommittee decide to adopt the recommendation of the Head of Planningand/or the PlanningDevelopment Manager,the reasons contained in their report will be minuted, together with any additional reasons determined by the Committee.
10.5 Where the Planning Committeeis minded to approveor to refuse a planningapplication, contrary to the recommendation of the Head of Planning and/or the Planning Development Manager, or the Development Plan, consideration should be given to deferring the item unless agreement can be reached at the meetingon the planning reasons for that decision which shall be fully minuted.
10.6 The reasons for Committee’s decision to defer any proposal should also be recorded.
10.7 Councillors who are not present at the meeting for the duration of the planning officer’s presentation, any subsequent representations and the entire Councillor debate shall not (save with the discretion of the Chair) be entitled to vote on the matter under consideration.
11. Site Visits by the Committee
11.1 Asite visit may be held if the Head of Planning and/or the Planning Development Manager in consultation with Chair of the relevantcommittee considers it will assist Councillors in reachingtheir decision, where a site visit has been requestedor an application deferred for such a visit. The purposeof a site visit is to gather factualinformation relating to the planningapplication. Site visits should only be undertaken where there is a reason to do so for example, where the impact of the proposed development would be difficult to visualise from photographs, satellite imaging, plans and supporting material or where the development is very contentious or complex.
11.2 Sitevisits should be requestedin advance of the PlanningCommittee meetingand Councillors should liaise with Officers at the earliestopportunity to considerthe need for a site visit.
11.3 Whena site visit is held prior to the meeting of the Planning Committee it is desirable that all Councillors attending the Planning Committee should also attend the site visit. Councillors voting on a planning application without having attended the visit to the particular site may give the impression that they have not taken the opportunity to be fully informed about the application. Information gained from the site visit should be reported back to committee so that allCouncillors have the same information.
11.4 Sitevisits should be conducted in a formalmanner. They are not a forum for the interested parties to make representations and the Committee should not get involved in discussions with other any parties attending the site visit.
11.5 The organisation of the site visit will fallto the planning officer, who will informDemocratic Services of the need to send out site visit invites to the following:
· All Members of the Planning Committee including nominated substitutes;
· relevant Division Members;and
· relevant Parish Councillors.
· where the agent or representative of the applicant is required on a site visit to meet health and safety requirements a representative from the objectors will be invited to the site visit as an observer.
11.6 The Applicant/Agent will beinformed that a site visit will take place in order to ensure that site access can be arranged. This is arranged by the planningofficer due to their ongoing contact with relevant applicants/agents.
11.7 The site visit will be attended by the relevant planning officer(s) who will answer any questions raised. The planning officer(s) will describe the development and point out the relevant issue(s) that the Committee has come to view.
11.8 Onassembling at the site, at the time specified, the Chair will explain the purpose and procedures of the site visit so that all are aware that it is a fact finding exerciseonly and that no decisionwill be taken until the committee meeting. The planningofficer will explainthe application as it relates to the site and relevant viewpoints. Parties who attend the site visit will be permitted to point out the salientfeatures relevantto the subsequent decision. However no discussion of or debateon the merits of the proposal will take place on site. Discussion of such mattersmust take place in the Committeemeeting itself. Following any questionsto the planning officer,or clarification sought on matterswhich are relevantto the site inspection, the Chair will bring the site visit toa close.
11.9 Members of the Committee should address any requestfor clarification throughthe Chair of the PlanningCommittee. Shouldthe Chair deem it appropriate, those present may be requestedto respond to questions of fact only.
11.10 Councillors should not engage in open discussion either individually or in groups with the applicantor any other people present. Any request for Councillors to expressa view or accept an offer of hospitality should be politely declined.
11.11 Unofficial site visits are not encouraged as they do not have the appropriate procedural safeguards. Any Councillor attending an unofficial site visits must ensurethat they avoid giving the impression that they represent the views of the Planning Committee or the Council.If a Councillor feels compelledto give a personal view, they should emphasisethat the final decision is one for the PlanningCommittee.
12. Public Speaking at Planning Committee
12.1 Wherever possible, objections or representations to planningapplications should be made in writing. Writtenrepresentations received will be made availablefor public inspection and objections summarised and reported to the Planning Committee. Councillors have the opportunity to inspect all letters receivedbefore the decisionon the application is made.
12.2 The Council operates a scheme of public speaking at Planning Committee meetings. Normallythe following people can speak at Planning Committee in relationto any specific application:
· One speaker representing the applicant– usually the applicant themselves or their agent.
· One speaker representing the objectors.
· The relevantParish Council representative.
· A Division Member.
Inexceptional circumstances the Chairhas discretion to allow any other person to speak if it is considered necessary to do so.
Order of Speakers
1. The objectorhas five minutes to put their case.
2. A representative of the relevant parish council then has five minutes to put their case.
3. A division member who wishes to speak on the application will be allocatedfive minutes to put their case.
4. At the appropriate time, any other person allowed to speak at the discretion of the Chairman will be allowed five minutes to put their case.
5. Finally, the applicant or their representative, will be allowedfive minutes to put theircase.
There is no discretion for the Chair to extend the stated speaking times.
12.3 The speaker representing theapplicant must have the permission of the applicantto represent them.
12.4 The speaker representing the objector(s) can be a neighbour, an interested individual or a representative of a residents group.
12.5 The first objector to register to speak will normallybe appointed as the spokesperson. Where there is more than one person wishing to speak, objectorsare encouraged to agree on a spokesperson who is prepared to cover all the points of concern, so as to make best use of the time available.
12.6 Persons wishing to speak on an application, which is to be considered at a Planning Committee and who have previously made representations on the application, should contactDemocratic Services by 12 noon 3 working days before the Planning Committee meeting. Contact details will be provided on the relevant Planning Committee agenda.
12.7 The purpose of the scheme is to enable speakers to put forward any pointsthey wish to make directlyto the Committee. There will be no need to read any submission already made in writing,as this will already be summarised in the report Councillors have before them. If a representation is prepared by a speaker for the meeting it is helpful if a written copy could be provided to Democratic Services in good time in advance of the meeting.
12.8 Speakers should confine their comments to matters relevant to planning applications.
12.9 People wishing tospeak at Planning Committee cannot hand out documentation to members of the Committee except at the discretion of the Chair. Photographs may be handed out, providedthat a minimum of 20 copies have been deliveredto the Councilby 12.00 noon on the last working day prior to the meeting.There is also no provisionto display maps, photographs or other information on boards or on screens in the meetingroom on behalf of those making representations at the meeting.
12.10 The Chair of the Committee retains the right to decline to hear someoneif they behave improperly, offensively or if they, in the Chair’s view, intentionally obstruct the business in hand.
12.11 Officers may comment on the representations and the merits of the application in the light of those representations.
12.12 The Committee will proceed to debate the application and make adecision.
13. Training
13.1 Councillors including named substitutes should not participate in decision-making at meetingsdealing with planningmatters if they have not attended the mandatory planningtraining prescribed by the Council.
13.2 Councillors should endeavour to attend any other specialised training sessionsprovided since these will be designed to extendCouncillors’ knowledge of planning law, regulations, procedures, Codes of Practice and the Development Plans beyond the minimum referred to above, and thus assist them in carrying out their role properly and effectively.