Appendix
Hampshire County Council
Local
Code of Conduct
for
Councillors and Officers
dealing
with Planning Matters
2003
Index
1.
General Role and Conduct of Councillors and Officers
2.
Declaration and Registration of Interests
3. Development Proposals Submitted by Councillors and Officers, and Council Development
4. Lobbying of and by Councillors, and Attendance at Public Meetings
5. Pre-Application and Pre-Decision Making Discussions
6. Officer Reports to Committee
10.Complaints and Record Keeping
Annex - Guidelines for determining planning applications
1. General Role and Conduct of Councillors and Officers
1.1 Legislation emphasises the overriding requirements that the public are entitled to expect the highest standards of conduct and probity by all persons holding public office and in particular that when dealing with planning matters only material planning considerations are taken into account. There are statutory provisions and codes setting standards which must be followed if the public perception of the integrity of public service is to be maintained and improved.
1.2 Whilst this Code deals primarily with planning applications the principles apply with equal vigour to consideration of Structure Plans, Local Plans, Development Briefs, enforcement cases and all other planning matters. Although specific references are made throughout the Code to Regulatory Committee, the Code applies equally to all sub-committees and panels exercising planning functions.
1.3 Members are reminded that they are required to comply with Statutory Provisions in the Model Code of Conduct.
1.4 Section 54A of the Town and Country Planning Act 1990 requires all planning applications to be determined by reference to the Development Plan, if material to the application, and any other material consideration. If the Development Plan is material to the application then the statutory position is that the application should be determined in accordance with the Development Plan unless material considerations indicate otherwise. The emphasis in determining applications is upon a plan led system.
1.5 Officers involved in the processing and determination of Planning matters must also act in accordance with the Council’s Code of Conduct for Council Employees and with the relevant sections of the Royal Town Planning Institute’s Code of Professional Conduct.
1.6 This Code is supplemental to the provisions referred to above and provides further specific advice and guidance for Members and Officers involved in planning matters. The overriding principle is that Members should not favour any individuals or groups and must represent their constituents as a body and vote in the interests of the County as a whole. Whilst Members should take account of all views expressed, they should not favour any person, company, group or locality, nor put themselves in a position where they appear to do so.
1.7 Members and Officers should not accept gifts or hospitality. If, however, a degree of hospitality is unavoidable, it should be ensured that this is of the minimum and its receipt is declared as soon as possible. Members should send written notice to the Monitoring Officer. Officers should notify their Chief Officer. In all cases details must be entered in the hospitality record book.
1.8 Officers must always act impartially. The Council will review, on a regular basis, the restrictions adopted on outside activities under the Local Government and Housing Act 1989 under which private work and interests are declarable.
2. Declaration and Registration of Interests
2.1 Members should observe the guidance on declaring personal and personal prejudicial interests in the Model Code of Conduct
2.2 The register of Members’ Interests maintained under the Local Government Act 2000 will be updated at least every twelve months. Where any changes occur to Members interests, whether by way of addition or deletion, they should be notified, to the Monitoring Officer as soon as they occur, by the Member concerned.
2.3 Councillors who have substantial property interests, or other interests which would prevent them from voting on a regular basis, should avoid serving on the Regulatory Committee.
2.4 Guidance on what constitutes a personal and personal prejudicial interest is contained in the Model Code of Conduct. The guiding rule is that a Member should not use his/her position to further a private, or personal interest, rather than the general public interest, or give grounds for such suspicion. The test for deciding whether a personal prejudicial interest should be declared is whether a member of the public, knowing all the facts, would reasonably think that the Councillor’s judgement of the public interest would be prejudiced. If so, then not only must the interest be disclosed, but the Councillor should take no further part in the relevant proceedings. The responsibility for declaring an interest lies with the individual Councillor.
2.5 Whilst seminars are held after the Council elections to give guidance to Members on the declaration of interests, and any other issues in the Model Code of Conduct, Members of the Regulatory Committee will receive specialised training in relation to planning regulations and procedures, and the practical operation of this Local Code and the Development Plan (ie Structure and Local Plans).
2.6 Members appointed to the Regulatory Committee must demonstrate a commitment to being trained.
3. Development Proposals Submitted by Councillors and Officers, and Council Development
3.1 Serving Councillors and Officers should never act as agents for individuals (including a company, group or body) pursuing a planning matter. If Councillors or Officers submit their own development proposal to the Council, they should take no part in its processing. The Council’s Monitoring Officer should be informed of all such proposals as soon as they are submitted.
3.2 Proposals submitted by Councillors and Officers should be reported to the Regulatory Committee as main items and not dealt with by Officers under delegated powers. As part of the report the Chief Planning Adviser (or such other person as may be appointed to take on this role) should confirm that the application has been processed normally.
3.3 Proposals for the Council’s own development (or a development involving the Council and another party) should be treated in the same way as those by private developers and in accordance with guidance given in Circular 19/92. This Circular outlines that the same administrative process, including consultation, should be carried out in relation to the Council’s own planning applications, and that they should be determined against the same policy background (ie the Development Plan and any other material planning considerations). This paragraph also applies to private applications in respect of Council owned land (eg prior to a land sale being agreed or negotiated). Decisions must be made strictly on planning merits and without regard to any financial or other gain that may accrue to the Council if the development is permitted. It is important that the Council is seen to be treating such applications on an equal footing with all other applications as well as actually doing so.
4. Lobbying of and by Councillors, and Attendance at Public Meetings
4.1 If members are to undertake fully their constituency roles it is inevitable that they will be subject to lobbying on planning matters and specific planning applications. Great care is essential to maintain the Council’s and indeed the Members’, own integrity and the public perception of the planning process when members are lobbied. Members should not, therefore, favour or appear to favour, any person, company, group or locality.
4.2 Taking account of the need to make decisions impartially and only after having heard all the relevant evidence and arguments at Committee, Members should not openly and finally declare which way they intend to vote in advance of the Regulatory Committee meeting. To do so without all relevant information and views would be unfair and prejudicial and may amount to maladministration. If Members are in a position with regard to any matter where they do consider the need to express an opinion, they should make it clear that this is a preliminary view and that they will only be in a position to take a final decision after having heard all the relevant evidence and arguments at Committee. If the Member feels that the public would believe he/she had come to a conclusive view on a planning matter before the meeting, then he/she should not take part in the debate on, or vote on the issue.
4.3 In recognition of the principle that decisions can only be taken on planning matters after full consideration of all available information is to hand and has been considered at Regulatory Committee, individual Members should reach their own conclusions rather than follow the lead of another Member. In this regard, any political group meetings prior to Committee meetings should not be used to decide how Councillors should vote and votes on such matters should not be taken at such political group meetings. The view of the Ombudsman is that the use of political ‘whips’ at group meetings in this way amounts to maladministration.
4.4 To help the Chairman and Vice-Chairman to give an effective lead in Committee they should attend a briefing with officers prior to Committee. Such a briefing with officers will be available to other Spokespersons on the Committee, if requested.
4.5 Councillors involved in the decision making on planning matters should not organise support or opposition to a proposal, lobby other Councillors, act as an advocate or put pressure on officers for a particular recommendation. However, other Councillors (who are not part of the decision making process) can make representations and address the relevant Committee.
4.6 Officers involved in the processing or determination of planning matters who, with their Chief Officer’s consent, attend public meetings in connection with development proposals (ie. pre-application) or submitted planning applications should take great care to maintain impartiality and concentrate on providing factual information and listening to comments and avoid giving views on the merits or otherwise of the proposal.
4.7 Similarly Members involved in the determination of planning applications should take great care to maintain impartiality when attending public meetings in relation to planning matters. At such meetings it is preferable for no view on the merits or otherwise of a proposal to be given, but if a view is given the advice in paragraph 4.2 should be followed.
4.8 If Members consider that they have been exposed to undue or excessive lobbying or approaches, these should be reported to the Monitoring Officer who will in turn advise the appropriate officers (usually the Chief Planning Adviser).
5. Pre-Application and Pre-Decision Making Discussions
5.1 In relation to pre-application and pre-decision making discussions on planning issues, it will always be made clear at the outset, that such discussions will not bind the Council to make a particular decision and that any views expressed are personal and provisional.
5.2 Advice given will be consistent and based upon the Development Plan (ie Structure and Local Plans) and other material considerations. Every effort will be made to ensure that there are no significant differences of interpretation of planning policies between planning officers.
5.3 A written note will be made of such discussions and normally at least two officers will attend potentially contentious meetings, with a follow up letter sent, particularly when material has been left with the Council.
5.4 Every effort will be made to ensure that advice is not partial, nor seen to be.
5.5 To maintain impartiality it is preferable that Councillors do not take part in formal pre-application or pre-decision making discussions requested by the applicant of the County Council. Should there be occasions when Councillors are involved, they will be advised by the appropriate professional officers of the Council, which will always include a senior planning officer. The involvement of Councillors in such discussions will be recorded as a written file record. Such formal pre-application or pre-decision making discussions of this nature are to be distinguished from approaches to local Members by their constituents about prospective applications for planning permission or other planning issues.
6. Officer Reports to Committee
6.1 Reports to Committee on planning matters must be accurate and cover all relevant points. Where a planning application is subject to a full report this will refer to the provisions of the Development Plan and whether the application is or is not in conformity with it, together with all other relevant material planning considerations. Where appropriate this will include a full description of the site and any related planning history.
6.2 All reports will have a written recommendation of action/decision, and oral reporting (other than to update an existing report) will only be used on rare occasions when absolutely necessary and carefully minuted when this does occur.
6.3 All reports will contain a technical appraisal which clearly justifies the stated recommendation.
6.4 All reasons for refusal and conditions to be attached to permissions must be clear and unambiguous.
7.1 In determining all types of applications submitted pursuant to the Town and Country Planning Act 1990, the Planning (Listed Buildings and Conservation Areas) Act 1990 and The Hazardous Substances Act 1991, the Council will follow the Guidelines adopted and attached as an Annex to this Local Code. This will be subject to change from time to time to reflect government guidance and case law.
7.2 At a meeting of the Regulatory Committee an applicant/agent and interested parties including Parish and District Councillors will be allowed to address the meeting for up to a maximum of 10 minutes. If there are a number of interested parties the Chairman may request that contributions be restricted to nominated Spokespersons. In any case deputations will normally be completed within one hour except in exceptional circumstances the Chairman in consultation with Members of the Regulatory Committee agrees to extend the period.
7.3 In discussing, and then determining, a planning application or other planning matter Members will confine themselves to the planning merits of the case and the reasons for making a final decision should be clear and convincing, and supported by planning evidence. If members wish to refuse an application against officer advice, or impose additional conditions to a permission, the reasons for refusal or the additional conditions to be applied must be clearly stated at the time the propositions are moved at the meeting.
7.4 If a resolution is passed which is contrary to a recommendation of the Chief Planning Adviser (whether for approval or refusal) a detailed Minute of the Committee’s reasons will be made and a copy placed on the application file.
7.5 Conscious of the public arena in which planning decisions are made, Members will conduct the business of the Regulatory Committee in a fair and sensitive manner. The debate on a planning application will be confined to the planning merits of a development proposal.
7.6 If the report of the Chief Planning Adviser recommends approval of a departure from the Development Plan, the justification for this should be included, in full, in the report.
7.7 Senior Legal and Planning Officers should always attend meetings of the Regulatory Committee to ensure that procedures have been properly followed and planning issues properly addressed.
7.8 Members with a personal prejudicial interest, which they are under an obligation to declare, should not speak or vote in the decision making process. If they insist on so doing the decision reached by the relevant Committee is likely to be void on the basis of being contrary to the rules of natural justice. In addition those Members, who have come to and indicated before the meeting that they had reached a conclusive view on an application or other planning matter, should carefully consider whether their continued involvement in determining the application or other matter would prejudice the integrity of the planning process. Their continued involvement could amount to maladministration. In this connection members’ attention is drawn to the advice in paragraph 4 above.
7.9 Only Officers and Members of the Council who are prepared to observe this Code ought to be involved in the process of dealing with planning matters, determining planning applications and applications for listed building consent and conservation area consent.
8.1 A decision by the Regulatory Committee to carry out a site inspection should normally only take place where objective decisions cannot be taken without viewing the site and adjoining land. Examples of when site visits might be appropriate would be:
· The proposal represents a departure from the Development Plan; or
· The proposal is contrary to a specific policy, or raises wider policy issues; or
· The proposal raises particularly unusual factors, for example it would have a major environmental impact or could lead to loss of jobs and/or financial hardship (eg enforcement against an existing use or development that has already been carried out); or
· There is considerable local concern about a proposal, allied to planning reasons for carrying out a visit (eg the physical relationship of the site to other sites in the neighbourhood).
8.2 The purpose of a site inspection is for Members to gain knowledge of the development proposal, the application site and its relationship to adjacent sites.
8.3 The Chief Planning Adviser will ensure that the purpose of a site inspection is recorded on the application file.
8.4 Site inspections will be carried out by members of the Regulatory Committee.
8.5 At the beginning of a site inspection the Chairman of the Regulatory Committee will advise all persons present of the purpose of the site inspection, the format and conduct of the inspection and procedure. Those present will be instructed to comment only on the physical features of the proposal and not discuss the merits of the application. Should comments as to the merits of the application be made the Chairman will indicate that the Committee will not consider the comments and if the Chairman’s instructions are ignored he may terminate the inspection forthwith. Anyone wishing to comment on the merits of application should do so by means of a deputation to a meeting of the Regulatory Committee.
8.6 Following a site inspection officers will prepare a report on the planning issues and include any relevant information obtained during the site inspection to the Regulatory Committee.
9.1 At least on an annual basis arrangements will be made for Members to inspect a sample of implemented planning permissions in order that the quality of decisions can be assessed.
10. Complaints and Record Keeping
10.1 In order that any complaints can be fully investigated, record keeping will be complete and accurate. In particular, every planning application file will contain an accurate paper and/or electronic account of events throughout its life, particularly the outcomes of meetings or significant telephone conversations.
10.2 The same principles of good record keeping will be observed in relation to enforcement and Development Plan matters. Monitoring of record keeping will be undertaken on a continuous basis by Managers in the Environment Department.
Further information:
Jeff Pattison
Head of Corporate and Legal Services and Monitoring Officer
Ext 7321
Profs id CXCSJP
Annex
Guidelines
for determining planning applications
A. Applications Under the Town and Country Planning Act 1990 (TCPA)
(i) Section 54A of the Town and Country Planning Act 1990 requires all planning applications to be determined by reference to the Development Plan, if material to the application, and any other material consideration. The Development Plan includes the approved Structure Plan and Local Plans. If the Development Plan is material to the application then the statutory provision is that the application should be determined in accordance with the Development Plan unless material considerations indicate otherwise. The emphasis in determining applications is upon a plan led system.
(ii) Other material considerations include policies and proposals in emerging Plans such as the Deposit Structure Plan (Review) and Deposit District-Wide Local Plan which will gain increasing weight as the Plans approach adoption. Where policies appear in a Deposit Draft and have not been objected to, considerable weight should attach to those policies. Where other documents are incorporated within a Local Plan and are able to be the subject of consultation and objection also, such as Supplementary Planning Guidance, they too will be material to the planning decision which is to be taken.
(iii) Material considerations include also national planning guidance in the form of Circulars and Planning Policy Guidance and case law. A ministerial statement may be a material consideration.
(iv) In exceptional circumstances the personal circumstances of an applicant for planning permission may be a material consideration which may outweigh other planning considerations. Where this is the case specific and valid reasons must be given to justify an exception.
(v) What constitutes a material consideration is a matter of law. The weight to be attached to the consideration is a matter of planning judgement for the decision maker having regard to the planning evidence. In attaching weight to any offers of community benefit accompanying any planning application Members will be mindful of the Advice in Circular 1/97 (planning obligations: Section 106 Agreements) as to the legality and materiality of such offers.
(vi) Member must thoroughly consider any advice given by a statutory consultee or relevant Government Department, including views expressed by English Heritage or the Environment Agency.
(vii) Members must take into account the view of local residents when determining a planning application, but recognise that such opposition cannot be a reason in itself for refusing planning permission unless founded on valid planning reasons, which are supported by substantial evidence (Circular 8/93 – Annex 3 Paragraph 15)
(viii) Members must take into account earlier Council decisions, appeal decisions in relation to the site, or other related appeal decisions.
(iv) Members must not prevent, inhibit or delay development which could reasonably be permitted.
(x) In relation to planning conditions, Members must avoid the imposition of conditions which are unnecessary, unreasonable, unenforceable, imprecise or irrelevant.
B. Applications Under the Planning (Listed Buildings and Conservation Areas) Act (PLBCA)
(i) It is now established that the determination of planning application and applications for PLBCA are two separate statutory duties. The provisions of the TCPA do not override those of the PLBCA.
(ii) The Development Plan contains policies that deal with development in Conservation areas and applications for Listed Building consent to which under the PLBCA enable Members to consider the desirability of preserving the building or its setting or any feature of special historic interest or the Conservation Area.
(iii) Members will also have regard to the replies of statutory consultees (eg English Heritage and amenity societies).
(iv) Planning Policy Guidance Note 15 in particular paragraphs 2.3, 2.4, 2.11, 3.5 and 4.26 will be relied upon.
(v) Any other material consideration (eg appeals decisions and relevant case law).