Agenda item

Planning Protocol for Members (Agenda Item 9)

To consider the attached Planning Protocol for Members, which has been referred to the Commission from the Council meeting held on 28 May 2009.

 

The document has been previously considered by the Development Control Committee and the Standards Committee.

 

 The Standards Committee recommended to the Council that the Protocol be amended by the addition of the words shown in bold type as follows (minute 13/09 of the Standards Committee meeting held on 28 April 2009 refers):-

 

“……               2 to 5 APPLY TO ALL MEMBERS

 

2.            Lobbying of Members by Applicants/Developers/Objectors/Supporters

 

2.1       If you are contacted by applicants, developers, objectors or supporters:

 

§         Consider referring those who approach you for planning, procedural or technical advice to the officers.

§         Apart from usual discussions with your constituents as Ward Member, you should not normally agree to private briefings with applicants, developers, objectors or supporters unless there are very good reasons to see them – if you do wish to attend such a meeting, then an officer should also be present to take a record of what went on for the planning file.

§         Members of the Development Control Committee should reveal at the discussion in Committee any meetings with or written material from applicants, developers, objectors or supporters. ……”

 

The Council has welcomed the introduction of the Protocol but there was some concern that the advice in relation to dealing with discussions with members of the public was unworkable.  In the circumstances, the Council deferred a decision and has referred the document to the Commission for further consideration.

 

The Commission’s views are sought accordingly for recommendation back to the Council.

Minutes:

The Consultant Solicitor explained that this item had been previously considered by the Development Control Committee and the Standards Committee, the latter Committee having recommended some amended wording as set out on the agenda.  When the matter was considered by the Council on 28 May, there had been some concern that the advice in relation to dealing with discussions with members of the public was unworkable.  In the circumstances, the Council had decided to refer the matter to the Commission for further consideration.

 

The Planning Protocol was intended to be a general guide to Development Control Members on planning matters and for other Members generally in their roles as Ward Representatives.

 

Breckland was one of the few Councils that had not adopted such a Protocol.  The main reason for having a Protocol was because people were generally more litigious these days and the number of applications for Judicial Review on planning matters was growing.  Any perceived gaps in the Council’s procedures would be used by litigants to get a planning decision reviewed.

 

However, it was important that any Protocol was acceptable to and supported by the Council as whole.

 

The Standards Committee had proposed the inclusion of “supporters” as an additional lobbying group to those of applicants, developers and objectors and this was accepted. 

 

The main wording in question was that contained in the second bullet point in paragraph 2.1 of the Protocol.  While the Development Control Committee had agreed the draft Protocol, the Standards Committee had proposed an amendment to this part of paragraph 2.1 as shown highlighted on the agenda, taking the view that the protocol should not cramp the style of the ordinary Member in their relations with their constituents.

 

The Consultant Solicitor reiterated the legal advice given by Queen’s Counsel, which was, in effect, that Members should not meet with applicants, objectors, etc. without the presence of an officer, to avoid misunderstandings, and that responding to lobbying had to be exercised with great care, since if not, a Member’s integrity and honesty could be called into question.  By way of further explanation, the view on the matter as expressed in the Nolan Report was read out, i.e. that it was not the intention to stifle the role of the Member in their constituency work, and it was this intent that the Standards Committee had in mind when proposing the amendment.

 

If Members’ concerns were not allayed by that explanation, their options were to recommend back to Council to either amend or cut the offending wording or to delete the paragraph in its entirety.  A third option was to move that the section be applied to Development Control Committee Members only, bearing in mind the QC’s advice as reported to that Committee that its Members were ‘in the firing line’ as the decision-making body.

 

A lengthy debate then followed during which Members endorsed the need to have a Protocol but, at the same time, expressed their continued concerns that the wording in question would create more problems than it solved and would have the effect of unduly limiting the Ward Member’s ability to respond in a timely and flexible manner to their constituents’ needs on planning issues.  Members felt it would be impossible to have an officer in attendance when meeting people, not least because the majority of discussions either on site or in the street took place out of office hours and/or at very short notice. 

 

Some Members took exception to the wording in question as they felt it removed their ability to use their knowledge, judgement and discretion in their role as Ward Members.  The view was also put that their constituents saw it as their fundamental right to have full and reasonable access to their elected Ward Representative.  It was felt it would be damaging to this relationship if Members felt obliged to have to defer any discussions for an officer to be present to take notes.

 

The Consultant Solicitor reiterated that there was no intention to question the need for Members to be available to their constituents and he felt the Standards Committee had covered this point.  The point in question was to guard against instances where an applicant or others might try to influence a decision by giving information in private that could not then be corroborated.

 

Members agreed but suggested that was precisely when they would use their judgement and knowledge to stop such a situation developing.  While the risk was acknowledged, generally it was felt that it was a small risk given that most planning applications that Members were involved with in their Wards could be considered to be of a minor nature.

 

It was proposed that an acceptable way forward was to delete the second bullet point in its entirety from paragraph 2.1 and to amend the third bullet point so that it applied to all Members (by deleting the words “.. of the Development Control Members..” in line one and to insert the words “…undue influence or pressure or any …” between the words “any” and “meetings” in line two.   The insertion of “supporters” as a lobbying group was also agreed.

 

The Chairman concluded the debate by assuring the Chairman of the Standards Committee that Members fully supported the principle of the Protocol but wished to protect the ability of the Ward Member to fulfil their role.

 

RECOMMEND TO THE COUNCIL that paragraph 2 of the Planning Protocol for Members is amended to read as follows, subject to which the Protocol is recommended for adoption:

 

“….   2 to 5 APPLY TO ALL MEMBERS

 

2.            Lobbying of Members by Applicants / Developers / Objectors / Supporters

 

2.1       If you are contacted by applicants, developers, objectors or supporters:

 

§         Consider referring those who approach you for planning, procedural or technical advice to the officers.

§         Members should reveal at the discussion in Committee any undue influence or pressure or any meetings with or written material from applicants, developers, objectors or supporters. …”

Supporting documents: