muston planning for Bath North East Somerset Council

muston planning for Bath & North East Somerset Council 3 June 2015 Councillor Training – Planning Mike Muston – Muston Planning muston planning

Why is probity significant? • the 1947 Act vested the right to develop land in the State and created local planning authorities • planning involves balancing interests (both financial and “quality of life”) that MATTER to people • although the British system is very “clean”, the public perception is often negative • so we need to be able to demonstrate fairness, openness and impartiality at all stages of the process muston planning

Members’ different roles • providing leadership and “vision” at a strategic level • ward representation • political considerations • in deciding planning applications, the need to act openly, fairly and accountably • …. but also to listen There can be conflicts between these tasks

Dealing with lobbying • listen to all sides • get more information (speak to the case officer) • explain the way decisions are taken • explain the importance of policies etc (if you can) • don’t commit yourself

Dangers of predetermination • different from an interest, although impact may be similar • to predetermine your view on an application and remain part of the Committee for that item may well make the decision itself unlawful – • note Localism Act Section 25, scrapping predetermination rule, but implications not fully spelt out so advice remains unchanged. • if it can be proved (based on evidence of what you said or how you behaved) that you have predetermined your view of an application, the decision itself could be quashed by the Courts – which has serious consequences

Predisposition & predetermination • Expressing a view before a decision is made can be predetermination • Being involved in earlier applications or policy is not predetermination, although might indicate a predisposition • Much depends on exactly what you say

Basis of Current UK System • UK system gives flexibility and discretion • Is intended to be “plan-led” • We are guided by: – – Primary legislation Secondary legislation Government advice (NPPF & NPPG) Case law muston planning

The Development Plan • Section 54 A of the 1990 Act replaced by Section 38(6) of the 2004 Act “If regard is to be had to the development plan for the purpose of any determination under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise. ” muston planning

Material Considerations and Weight • Important distinction between what is a material consideration and the weight you can give it. • Whether something is a material consideration is a matter of law (usually case law) • The weight to be attached to a material consideration is for the decision-maker (as long as it is “reasonable”) muston planning

Material Considerations • Includes: – National policy – National Planning Policy Framework (NPPF) and National Planning Practice Guidance (NPPG) – Emerging Development Plan – Supplementary Planning Guidance or Documents (“substantial weight”) – Points raised by Consultees (if they are relevant) – Other factors determined by case law (growing all the time)

Other Factors • Material – – – – – Character & appearance Overlooking Loss of light Access/traffic Viability and vitality of a centre Noise, smell Crime Health issues & fear of harm to health Design & Urban design Affordable housing • Not Material – Identity of applicant – Loss of view – Restrictive covenants or land ownership – Impact on property value – A better use exists for the site – Commercial competition – Personal circumstances (except rarely) muston planning

Interests (Localism Act Section 28) • Localism Act sets out “disclosable pecuniary interests • These include a beneficial interest in the land involved, a contract entered into, sponsorship • If a Member has a disclosable pecuniary interest, should register it in advance, then disclose it at the meeting and withdraw • See the Council’s Code of Conduct adopted July 2012 muston planning

Other interests • you may have a “non-disclosable pecuniary interest or nonpecuniary interest” in an item • a decision in relation to that business might reasonably be regarded as affecting the well-being or financial standing of you or a member of your family or a person with whom you have a close association to a greater extent that it would affect the majority of the Council Tax payers, ratepayers or inhabitants of the ward or electoral area for which you have been elected • it relates to or is likely to affect any of the pecuniary interests listed in the Council’s Code, in respect of yourself, a relevant person, a member of your family or a person with whom you have a close association and that interest is not a disclosable interest. muston planning

What to do if you have a nondisclosable interest • make a verbal declaration of the existence and nature of that interest at or before the consideration of that item of business or as soon as the interest becomes apparent. • consider whether your participation in the consideration of that item of business would be reasonable, particularly if the interest may give rise to a perception of a conflict of interests in that item of business. muston planning