muston planning
for
Bath & North East Somerset
Council
3 June 2015
Councillor Training – Planning
Mike Muston – Muston Planning
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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
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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:–
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–
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Primary legislation
Secondary legislation
Government advice (NPPF & NPPG)
Case law
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The Development Plan
• Section 54A 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.”
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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”)
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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
–
–
–
–
–
–
–
–
–
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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)
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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
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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.
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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.
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