Section 22 - Members' Planning Code of Good Practice

Introduction

1. Relationship to the Members’ Code of Conduct
2. Development proposals and Interests under the Members’ Code of Conduct
3. Fettering discretion in the planning process
4. Contact with applicants, developers, and objectors
5. Lobbying of councillors
6. Lobbying by councillors
7. Site visits
8. Public speaking at meetings
9. Officers
10. Decision making
11. Training

Background

This Code of Good Practice has been updated following adoption of a revised Code of Conduct by the Council.

Introduction

The aim of this code of good practice: to ensure that in the planning process there are no grounds for suggesting that a decision has been biased, partial or not well founded in any way.

The key purpose of Planning: to control development in the public interest.

Your role as a Member of the Planning Authority: to make planning decisions openly, impartially, with sound judgment and for justifiable reasons.

When the Code of Good Practice applies: this code applies to Members at all times when involving themselves in the planning process.  (This includes, where applicable, when part of decision making meetings of the Council in exercising the functions of the Planning Authority or when involved on less formal occasions, such as meetings with officers or the public or consultative meetings).  It applies as equally to planning enforcement matters or site specific policy issues as it does to planning applications.

If you have any doubts about the application of this Code to your own circumstances you should seek advice early, from the Monitoring Officer or one of his or her staff, and preferably well before any meeting takes place.

Members dealing with planning matters will be required to sign a declaration stating that they have read and understood the code and will observe its provisions.

1. Relationship to the Members’ Code of Conduct

• Do apply the rules in the Members’ Code of Conduct first, which must always be complied with.
• Do then apply the rules in this Planning Code of Good Practice, which seek to explain and supplement the Members’ Code of Conduct for the purposes of planning control. If you do not abide by this Code of Good Practice, you may put:
• The Council at risk of proceedings on the legality or maladministration of the related decision; and
• Yourself at risk of either being named in a report made to the Standards Committee or Council.

2. Development proposals and interests under the Members’ Code

• Do disclose the existence and nature of your interest at any relevant meeting, including informal meetings or discussions with applicants, objectors, officers and other Members. Preferably, disclose your interest at the beginning of the meeting and not just at the commencement of discussion on that particular matter.
• Where a matter arises at a meeting which directly relates to one of your Disclosable Pecuniary Interests (DPI) as set out in the Code of Conduct, do disclose the interest, not participate in any discussion or vote on the matter and must not remain in the room unless you have been granted a dispensation. If it is a ‘sensitive interest’, you do not have to disclose the nature of the interest, just that you have an interest. A Councillor may have a DPI in relation to a planning application in a number of circumstances affecting them or a relevant person. Examples include, but are not limited to:
  • An application for development of a property owned or leased by the Councillor or a relevant person;
  • An application for development of land owned by the Councillor’s employer or a relevant person’s employer;
  • An application for development of a property which the Councillor or a relevant person occupy by way of licence.
    
    There are no longer any exemptions allowing Councillors who have a DPI to speak where a member of the public would be allowed to speak. Therefore where a Councillor has a DPI (either him/herself or through a relevant person) he or she may not participate in the debate or vote on a planning application and must withdraw from the room.  This applies whether or not the Councillor is wishing to speak as a member of the committee, as a ward councillor or as a private individual.

• Where a matter arises at a meeting which directly relates to the financial interest or wellbeing of one of your Other Registerable Interests), do disclose the interest. You may speak on the matter only if members of the public are also allowed to speak at the meeting but otherwise must not take part in any discussion or vote on the matter and must not remain in the room unless you have been granted a dispensation. If it is a ‘sensitive interest’, you do not have to disclose the nature of the interest.
• Where a matter arises at a meeting which directly relates to your financial interest or well-being (and is not a Disclosable Pecuniary Interest) or a financial interest or well-being of a relative or close associate, you must disclose the interest. You may speak on the matter only if members of the public are also allowed to speak at the meeting. Otherwise you must not take part in any discussion or vote on the matter and must not remain in the room unless you have been granted a If it is a ‘sensitive interest’, you do not have to disclose the nature of the interest.
• Where a matter arises at a meeting which affects:
  1. your own financial interest or wellbeing;
  2. a financial interest or well-being of a relative or close associate; or
  3. a financial interest or wellbeing of a body included under Other Registrable Interests
     
     you must disclose the interest. In order to determine whether you can remain in the meeting after disclosing your interest the following test should be applied

Where a matter (referred to above) affects the financial interest or well-being:

1. to a greater extent than it affects the financial interests of the majority of inhabitants of the ward affected by the decision and;
2. a reasonable member of the public knowing all the facts would believe that it would affect your view of the wider public interest
   
   You may speak on the matter only if members of the public are also allowed to speak at the meeting. Otherwise you must not take part in any discussion or vote on the matter and must not remain in the room unless you have been granted a dispensation.

If it is a ‘sensitive interest’, you do not have to disclose the nature of the interest.

• Except where you have a DPI when no participation is allowed, don’t participate, or give the appearance of trying to participate, in the making of any decision on the matter by the planning authority where you have an interest unless the Code of Conduct allows it and then only as part of the speaking scheme set out in detail in the Council’s Planning Practice Note and the Council’s adopted Code of Conduct.
• Do advise the Committee section and the case officer if you wish to exercise your right to speak at committee so that the Chairman and Members of the public are aware that you intend to do so.
• Don’t get involved in the processing of the application.
• Don’t seek or accept any preferential treatment, or place yourself in a position that could lead the public to think you are receiving preferential treatment, because of your position as a councillor. This would include, where you have an interest in relation to a proposal, using your position to discuss that proposal with officers or members when other members of the public would not have the same opportunity to do so.
• Do be aware that, whilst you are not prevented from seeking to explain and justify a proposal in which you have an interest to an appropriate officer, in person or in writing, the Code places greater limitations on you in representing that proposal than would apply to a normal member of the public. (For example where you have a right to speak under the public speaking scheme in respect of a proposal to be put before a meeting, you will have to withdraw from the room or chamber whilst the meeting considers it, whereas an ordinary member of the public would be able to observe the meeting’s consideration of it from the public gallery).
• Do notify the Monitoring Officer in writing of your own application and note that:
  • notification to the Monitoring Officer should be made no later than submission of the application;
  • the proposal will always be reported to the Committee as a main item and not dealt with by officers under delegated powers; and
  • it is advisable that you employ an agent to act on your behalf on the proposal in dealing with officers and any public speaking at Committee (where permitted).

3. Fettering discretion in the planning process

• Don’t fetter your discretion and therefore your ability to participate in planning decision making at this Council by making up your mind, or clearly appearing to have made up your mind (particularly in relation to an external interest or lobby group), on how you will vote on any planning matter prior to formal consideration of the matter at the meeting of the planning authority and of your hearing the officer’s presentation and evidence and arguments on both sides.

Fettering your discretion in this way and then taking part in the decision will put the Council at risk of a finding of maladministration  and of legal proceedings on the grounds of there being a danger of bias or a failure to take into account all of the factors enabling the proposal to be considered on its merits.

The Code of Conduct is clear as to when you must leave the room and take no part in the debate due to an interest. The Local Government Association guidance relating to the Code of Conduct is also specific in it’s references to bias and predetermination. If you have any doubt about the impression you may have given prior to a meeting as to the way you intend to vote, you should take advice from officers.

• Do consider yourself able to take part in the debate on a proposal when acting as part of a consultee body (where you are also a member of the parish council, for example, or both a district and country councillor), provided:
• the proposal does not substantially affect the well being or financial standing of the consultee body;
  • you make it clear to the consultee body that:
    • your views are expressed on the limited information before you only;
    • you must reserve judgment and the independence to make up your own mind on each separate proposal, based on your overriding duty to the whole community and not just to the people in that area, ward or parish, as and when it comes before the Committee and you hear all of the relevant information; and
    • you will not in any way commit yourself as to how you or others may vote when the proposal comes before the Committee; and
  • you disclose the personal interest regarding your membership or role when the Committee comes to consider the proposal.
• Don’t speak and vote on a proposal where you have fettered your discretion.
• Do explain that you do not intend to speak and vote because you have or you could reasonably be perceived as having judged the matter elsewhere, so that this may be recorded in the minutes.
• Do take the opportunity to exercise your separate speaking rights as a Ward Member (with the consent of the Chairman of the Committee) where you have represented your views and have indicated a closed mind and are therefore unable to vote, but do not have an interest that prevents participation. Where you do:
  • advise the proper officer or Chairman that you wish to speak in this capacity before commencement of the item; and
  • ensure that your actions are recorded.

Bias and predetermination

Councillors must also be aware of and act within the rules on predetermination and bias. Avoidance of bias or predetermination is a principle of natural justice which has evolved through the courts, although s25 of the Localism Act 2011 is also relevant.  Even if a Councillor does not have a DPI or is not acting in breach of the Members’ Code he or she may cause a decision to be invalid if he or she participates while predetermined or biased. The rules regarding predetermination and bias are likely to be more strictly applied where the Council is making “quasi-judicial” decisions, such as the determination of a planning application, than in the case of other decisions to be made by the Council.

The basic legal position is that a Councillor should not take part in making a decision on a planning matter if he or she is biased or has predetermined the matter.  Councillors should bring an unbiased, properly directed mind to the consideration of any matters before them at Committee.  This does not mean that Councillors are not entitled to have and to express opinions about general planning matters, or planning cases.  However, they must approach, and must be seen to approach, matters before them with an open mind.

In this respect a distinction is to be drawn between those Councillors who are making the decision (i.e. speaking and voting as part of the committee) and those Councillors seeking merely to influence the decision (i.e. making representations as a Ward Councillor).  The prohibition in respect of predetermination or bias only affects those actually making the decision.  A Councillor who is not a member of the Planning Committee who has predetermined or who is biased may still speak as a Ward Councillor provided that he or she does not also have an interest under the Code of Conduct that would preclude participation.

Predetermination

The law also makes a distinction between predetermination, which rules out participation in decision-making and predisposition, which does not.

A Councillor is entitled to have and to express views on local matters, both general planning matters and more specific applications.  These views may indicate that a Councillor has a predisposition towards a particular policy or viewpoint.  This is perfectly acceptable and a Councillor with a predisposition may take part in decision-making.

A predisposition will move on to becoming predetermination if, in relation to any matter before the committee, a councillor has taken a stance which indicates that he or she has  finally closed his or her mind on the matter and that nothing that he or she hears at Committee will alter his or her position. 

Section 25 of the Localism Act 2011 expressly provides that a councillor shall not be taken to have had a closed mind just because he or she has previously done anything that directly or indirectly indicated what view the he or she took, or would or might take, in relation to a matter. Therefore a councillor will not have predetermined merely because he or she has made statements about a planning application in the past.  However, this does not mean that a Councillor is free to say or do anything and still participate in the debate and vote. If by his or her actions and words the Councillor makes it clear that he or she will be voting a certain way no matter what information is presented at the Committee, then he or she will have predetermined and should not take part in the decision making.

Bias

A Councillor should not be party to decisions in which he is actually biased or gives the appearance of being biased, to the reasonable observer.  The test for the appearance of bias is whether a fair minded and informed observer, having considered the facts, would conclude that there was a possibility that the decision maker was biased.

Bias may arise by virtue of a Councillor being closely connected with a person who has a  vested interest in the application – either the applicant or an objector. This may result from a personal connection, such as an applicant being a relative or friend, or result from the Councillor espousing a particular viewpoint (e.g. by being part of a lobby group). The role of the Committee is to consider applications in accordance with the legislation and to balance the interests of persons with competing views and this may not be possible where a Councillor is closely connected with a particular party.

In addition, circumstances which raise the possibility of bias may also lead to an accusation of a breach of the Members’ Code, as the Members’ Code states that Councillors must act solely in the public interest and should never improperly confer an advantage or disadvantage on any person or act to gain financial or other material benefits for themselves, their family, friends or close associates.  Where this might occur, Councillors should not take part in the decision-making

4. Contact with applicants, developers and objectors

• Do refer those who approach you for planning, procedural, or technical advice to officers.
• Do be careful about entering into electronic dialogue with applicants, developers or groups of objectors or supporters, for example on websites, which may give rise to a claim.
• that you have made a decision on an application before you consider it as part of the committee process.
• Don’t agree to any formal meeting with applicants, developers or groups of objectors where you can avoid it. Where you feel that a formal meeting would be useful in clarifying the issues, you should never seek to arrange that meeting yourself but should request the Development Manager to organise it. The officer(s) will then ensure that those present at the meeting are advised from the start that the discussions will not bind the authority to any particular course of action, that the meeting is properly recorded on the application file and the record of the meeting is disclosed when the application is considered by the Committee.
• Do otherwise:
  • follow the rules on lobbying;
  • consider whether or not it would be prudent in the circumstances to make notes when contacted; and
  • report to the Development Manager any significant contact with the applicant and other parties, explaining the nature and purpose of the contacts and your involvement in them, and ensure that this is recorded on the planning file.

In addition in respect of presentations by applicants/developers:

• Don’t attend a planning presentation unless an officer is present and/or it has been organised by officers.
• Do ask relevant questions for the purposes of clarifying your understanding of the proposals.
• Do remember that the presentation is not part of the formal process of debate and determination of any subsequent application, this will be carried out by the appropriate Committee of the planning authority.
• Do be aware that a presentation is a form of lobbying and you must not state how you or other Members might vote.
• Do be careful about the nature of conversations with residents attending the presentation in case any information you may give could be construed as having already made your decision on a scheme. Direct residents questions either to the Developer or to the officers

5. Lobbying of councillors

Members have a responsibility to consider all material planning considerations, which will mean that no Member should finally make their decision until they are in the Committee Room determining the application. A Member may have a feeling as to how they wish to vote based on things they are told or see, but that is different to being determined on a particular decision.

• Do explain to those lobbying or attempting to lobby you that, whilst you can listen to what is said, it prejudices your impartiality (and therefore your ability to participate in the Committee’s decision making) to express an intention to vote one way or another or such a firm point of view that it amounts to the same thing.
• Do remember that your overriding duty is to the whole community not just to the people in your ward and, taking account of the need to make decisions impartially, that you should not improperly favour, or appear to improperly favour, any person, company, group or locality.
• Don’t accept gifts or hospitality from any person involved in or affected by a planning proposal. If a degree of hospitality is entirely unavoidable, ensure it is of a minimum, its acceptance is declared as soon as possible and remember to register the gift or hospitality where its value is over £50 in accordance with the authority’s rules on gifts and hospitality.
• Do copy or pass on any lobbying correspondence you receive to the Development Manager at the earliest opportunity.
• Do promptly refer to the Development Manager any offers made to you of planning gain or constraint of development, through a proposed S.106 Planning Obligation or otherwise.
• Do inform the Monitoring Officer where you have been exposed to undue or excessive lobbying or approaches (including inappropriate offers of gifts or hospitality), who will in turn advise the appropriate officers to follow the matter up.
• Do note that, unless you have an interest in the matter under the Code of Conduct, you will not have fettered your discretion or breached this Planning Code of Good Practice through:
  • listening or receiving viewpoints from residents or other interested parties;
  • making comments to residents, interested parties, other Members or appropriate officers provided they do not consist of or amount to pre-judging the issue and you make clear you are keeping an open mind;
  • seeking information through appropriate channels; or
  • being a vehicle for the expression of opinion or speaking at the meeting as a Ward Member, provided you explain your actions at the start of the meeting or item and make it clear that, having expressed the opinion or ward view, you have not committed yourself to vote in accordance with those views and will make up your own mind having heard all the facts and listened to the debate.

6. Lobbying by councillors

• Don’t become a member of, lead or represent an organisation whose primary purpose is to lobby to promote or oppose planning proposals. If you do, you may have fettered your discretion and are likely to have to withdraw to ensure that the decision of the Council is not open to challenge.
• Do join general interest groups which reflect your areas of interest and which concentrate on issues beyond particular planning proposals, such as the Victorian Society, CPRE, Ramblers Association or a local civic society, but where that organisation intends to make representations on a particular proposal, make it clear to that organisation and the Committee that you have reserved judgment and the independence to make up your own mind on each separate proposal.
• Don’t excessively lobby fellow councillors regarding your concerns or views or attempt to persuade them that they should decide how to vote in advance of the meeting at which any planning decision is to be taken.
• Don’t decide or discuss how to vote on any application at any sort of political group meeting, or lobby any other Member to do so. Political Group Meetings should never dictate how Members should vote on a planning issue.

7. Site visits

• Do try to attend site visits organised by the Council where possible.
• Don’t request a site visit unless you feel it is strictly necessary because:
  • particular site factors are significant in terms of the weight attached to them relative to other factors or the difficulty of their assessment in the absence of a site inspection; or
  • there are significant policy or precedent implications and specific site factors need to be carefully addressed
• Do ensure that any information which you gained from the site visit is reported back to the Committee, so that all Members have the same information.
• Do ensure that you treat the site visit only as an opportunity to seek information and to observe the site.
• Do ask the officers at the site visit questions or seek clarification from them on matters which are relevant to the site inspection.
• Don’t hear representations from any other party, with the exception of the Ward Member(s) whose address must focus only on site factors and site issues. Where you are approached by the applicant or a third party, advise them that they should make representations in writing to the authority and direct them to or inform the officer present.
• Don’t express opinions or views to anyone.
• Don’t enter a site which is subject to a proposal other than as part of an official site visit , even in response to an invitation, as this may give the impression of bias unless:
  • you feel it is essential for you to visit the site other than through attending the official site visit;
  • you have first spoken to the Development Manager about your intention to do so and why (which will be recorded on the file); and
  • you can ensure you will comply with these good practice rules on site visits.

8. Public speaking at meetings

• Don’t allow members of the public to communicate with you during the Committee’s proceedings (orally or in writing) other than through the scheme for public speaking, as this may give the appearance of bias.
• Do ensure that you comply with the Council’s procedures in respect of public speaking.
• Do take advantage of your right to speak where you have an interest but you are permitted to do so under the Code of Conduct but only to address matters that any member of the public could raise under the Council’s public speaking scheme

9. Officers

• Don’t put pressure on officers to put forward a particular recommendation. (This does not prevent you from asking questions or submitting views to the Development Manager which may be incorporated into any committee report).
• Do recognise that officers are part of a management structure and only discuss a proposal, outside of any arranged meeting, with a Head of Service or those officers who are authorised by the Head of Service to deal with the proposal at a Member level.
• Do recognise that officers involved in the processing and determination of planning matters must act in accordance with the Council’s Code of Conduct for Officers and their professional codes of conduct, primarily the Royal Town Planning Institute’s Code of Professional Conduct. As a result, planning officers’ views, opinions and recommendations will be presented on the basis of their overriding obligation of professional independence, which may on occasion be at odds with the views, opinions or decisions of the Committee or its Members.

10. Decision making

• Do ensure that, if you request a proposal to go before the Committee rather than be determined through officer delegation, your reasons are recorded and repeated in the report to the Committee.
• Do come to meetings with an open mind and demonstrate that you are open-minded.
• Do comply with section 54A of the Town and Country Planning Act 1990 and make decisions in accordance with the Development Plan unless material considerations indicate otherwise.
• Do come to your decision only after due consideration of all of the information reasonably required upon which to base a decision. If you feel there is insufficient time to digest new information or that there is simply insufficient information before you, request that further information.  If necessary, defer or refuse. (See below for decisions contrary to officer recommendation).
• Do recognise the importance of the debate and that you may not be able to vote or take part in the meeting’s discussion on a proposal unless you have been present to hear the entire debate, including the officers’ introduction to the matter.
• Do have recorded the reasons for Committee’s decision to defer any proposal (and that this is in accordance with the Council’s protocol on deferrals).
• Do make sure that if you are proposing, seconding or supporting a decision contrary to officer recommendations or the development plan that you clearly identify and understand the planning reasons leading to this conclusion/decision. These reasons must be given prior to the vote and be recorded.  Be aware that you may have to justify the resulting decision by giving evidence in the event of any challenge.  In the case of an approval the type of conditions proposed should be indicated and minuted (see below for decisions contrary to officer recommendation).
• Don’t ask for a recorded vote as the decision is a corporate one.
• Do bear in mind the following considerations in the event of a decision contrary to officer recommendation:
  
  As stated above, planning decisions should be taken in accordance with the local development plan (in so far as it is relevant to the application) unless material considerations indicate otherwise.

All decisions, whether taken by the Council’s appointed Planning Officer, or by the Planning Committee, are decisions made by Wyre Forest District Council, and may be subject to challenge either by judicial review or on appeal.

Planning Officers offer advice and make a recommendation, which may, on occasion, be at odds with the views, opinions or decisions of the Planning Committee or its Members. The Planning Committee can accept, reject or place a different interpretation on, or give different weight to, the various arguments and material planning considerations.

Planning Committee decisions contrary to Planning Officer recommendation can be subject to appeal or to legal challenge and an associated cost application. Members should therefore ensure that the planning reasons for the decision are set out and based on proper planning reasons prior to any decision being made.

In the event that a member tables a motion contrary to the recommendation of the Planning Officer, the Member proposing the motion contrary to the recommendation must set out the reasoning and material planning considerations relied upon for reaching such a decision prior to  the motion being debated and the Committee voting on the same. Such reasoning should explain, as and when appropriate, why it is proposed to depart from the development plan and/or the departure from policy or policy interpretation relied upon and/or what material planning considerations are to be attributed determining weight.

Where Members propose approving an application contrary to an officer recommendation for refusal, consideration will need to be given as to what conditions should be imposed to ensure that the development is acceptable and controlled and as to whether any section 106 obligations should be sought.

• Do be aware that any decision taken the Committee contrary to officer recommendation may need to be defended by a member of the committee in an appeal or judicial review challenge.
• Do recognise that decisions that cannot be defended by the presentation of clear evidence to justify the decision may expose the Council to significant costs risks.

 11. Training

• Don’t participate in decision making at meetings dealing with planning matters if you have not attended the mandatory planning training prescribed by the Council.
• Do endeavour to attend any other specialised training sessions provided, since these will be designed to extend your knowledge of planning law, regulations, procedures, Codes of Practice and the Development Plans beyond the minimum referred to above and this to assist you in carrying out your role properly and effectively