1.      INTRODUCTION AND BACKGROUND

1.1    Following the activation of the Planning Referral process earlier in the year when the Head of Planning and Development referred a decision of the Planning Committee to the Planning Referrals Committee, Group Leaders asked the Democracy Committee to review the arrangements for managing risk in relation to Planning Committee decisions, including the Planning Referral process.  The Democracy Committee, at its meeting held on 3 July 2017, appointed a Working Group comprising all Members of the Committee to carry out the review.

1.2    The terms of reference of the Working Group were agreed as follows:

To consider how the Council can provide a check and balance for Planning Committee decisions and reduce the financial and legal risk for the Council giving consideration to:

(a)   Other Councils’ arrangements and models;

(b)   Options for and/or improvements to the current arrangements; and

             (c)   Any other ways to manage and reduce risk in relation to Planning Committee decisions.

1.3    The Working Group was asked to report the findings and recommendations arising from the review to this meeting of the Democracy Committee.

1.4    The Working Group has met twice to carry out the review.  At the first meeting the Group considered a briefing paper prepared by the Head of Policy, Communications and Governance covering current arrangements, examples of arrangements at other local authorities and possible options.  A copy of the briefing note is attached as Appendix A.  James Bailey (Development Manager) and Russell Fitzpatrick (Lawyer, Team Leader, Planning) attended the second meeting to provide further background information and to advise on issues such as pre-determination, Member training and possible options.  

1.5    The procedure for referral of planning applications to a second body for determination was introduced in 2006 to provide a further safeguard against the possible risks associated with not being able to sustain Planning Committee decisions at appeal.  The award of costs against the Council, following the granting of a planning permission on appeal, had a significant impact on the Council’s financial resources at that time.

1.6    Although the first stage of the process (deferral of the decision of the Planning Committee to its next meeting) has been invoked on several occasions, the second stage (referral of the application by the Head of Planning and Development on the advice of the Legal Officer present to the Planning Referrals Committee for determination) has been invoked twice (in relation to the Boughton Lane and Woodcut Farm appeals) given the anticipated very significant costs involved.

1.7    The Working Group was mindful that when the Planning Committee’s decision to defend the Woodcut Farm appeal was referred to the Planning Referrals Committee by the Head of Planning and Development, there was a lot of public interest and extensive lobbying, and the three Members of the Committee felt under considerable pressure.

1.8    The Working Group agreed that there is a need to provide a check and balance mechanism in relation to Planning Committee decisions, and that there should continue to be provision for the referral of an application to a second body for determination in circumstances where the Committee votes to continue with a decision that it has been advised cannot be sustained at appeal and which could have significant cost implications for the Council’s budget.  However, that body should be the Policy and Resources Committee and the Planning Referrals Committee should be abolished.

1.9    In reaching this conclusion, the Working Group reviewed the Council’s existing Committee framework and took into account manageability of the process (including using the existing framework), representation, Member training and pre-determination issues.  The Group considered the advantages and disadvantages of an alternative referral body and of increasing the size of the Planning Referrals Committee, details of which are summarised in Appendix B.

1.10  During its discussions, the Working Group sought guidance on pre-determination and the implications for Members and Substitute Members of the Planning Committee who might also be Members or Substitute Members of the alternative referral body.

1.11  The Localism Act 2011 clarified the rules on pre-determination.  The rules were developed to ensure that Councillors come to Council discussions on any matter with an open mind.  Section 25 of the Act provides that a Councillor should not be regarded as having a closed mind simply because they previously did or said something that, directly or indirectly, indicated what view they might take in relation to any particular matter.  This reflects the common law position that a Councillor may be predisposed on a matter before it comes to Committee, provided they remain open to listening to all the arguments and changing their mind in light of all the information presented at the meeting.  In terms of any Members and Substitute Members of the referral body having participated in a decision of the Planning Committee which has been referred to it, even in the event of a named vote being taken at the Planning Committee, it does not necessarily mean that they will be pre-determined.  Each individual case would need to be looked at, but it is ultimately the responsibility of the individual Councillor to decide, and Substitutes could be used if required.

1.12            In formulating its recommendations, the Working Group took into account the need to provide appropriate training on the policies, procedures, legislation and guidance relevant to the work of the Planning Committee for Members and Substitute Members of the referral body.  It was accepted that it would be impossible to train all 55 Members of the Council, and that the Members and Substitute Members of a smaller referral body could participate in the mandatory training arranged for Members and Substitute Members of the Planning Committee, including training on pre-determination of planning applications.  The Working Group also felt that as far as possible Planning Committee processes should apply to the referral body; for example, the existing provisions relating to public speaking at meetings of the Planning Committee should apply for consistency and fairness.  Further, it was agreed that the decision of the referral body should be final.

1.13  The Group considered the wording of the sections of the Constitution/Local Code of Conduct for Councillors and Officers Dealing with Planning Matters relating to Planning Decisions Which Have Significant Cost Implications.  It was suggested, and agreed, that the delegation to the Head of Planning and Development upon the advice of the Legal Officer present to refer an application to a second body for determination (currently the Planning Referrals Committee) should be amended to be in consultation with the Chairman of the meeting; however, the decision would remain with the Head of Planning and Development.  Initially, the Working Group thought that the delegation should be exercised in consultation with the Chairman and Vice-Chairman of the Committee, but accepted that these Members might not be in attendance at the meeting.

1.14            Any decision to abolish the Planning Referrals Committee will necessitate a review of the allocation of seats on Committees.        

2.      AVAILABLE OPTIONS

2.1    The Committee is asked to consider and agree the recommendations made for submission to Council.

2.2    The Committee could decide that no action be taken on the recommendations of the Working Group, however this would not be appropriate having regard to the concerns which have been expressed about the current Planning Referral process.

3.      PREFERRED OPTION AND REASONS FOR RECOMMENDATIONS

3.1    The recommendations reflect the views of the Working Group appointed by this Committee to undertake a review of the arrangements for managing risk in relation to Planning Committee decisions, including the Planning Referral process.  It is considered appropriate that the Committee give consideration to the recommendations arising from the review.

4.      RISK

4.1    The procedure for referral of planning applications to a second body for determination was introduced to provide a further safeguard against the possible risks associated with not being able to sustain Planning Committee decisions at appeal.  The recommendations of the Working Group are intended to address concerns which have been raised about the current arrangements.

5.      CONSULTATION RESULTS AND PREVIOUS COMMITTEE FEEDBACK

5.1    The Working Group has balanced the need to provide a check and balance mechanism in relation to Planning Committee decisions against concerns expressed about the existing arrangements and formulated recommendations which, if adopted, will improve the process, be fully representative and increase public and Member confidence.

6.      NEXT STEPS: COMMUNICATION AND IMPLEMENTATION OF THE DECISION

6.1    The recommendations of the Democracy Committee, arising from its consideration of the findings of the review, will be reported to the Council for final decision.

7.      CROSS-CUTTING ISSUES AND IMPLICATIONS

1.        REPORT APPENDICES

The following documents are to be published with this report and form part of the report:

·         Appendix A:  Planning Referrals Committee – Short Briefing Paper on Current Arrangements, Examples of Arrangements at Other Local Authorities and Possible Options

·         Appendix B:  Planning Referrals Committee – Advantages/Disadvantages of Alternative Referral Bodies

2.        BACKGROUND PAPERS

None