Appendix 2
1. Duties of Elected Members
In determining applications, Planning Committee are not bound to follow the Officer’s recommendation contained in a report. The Committee should form its own views as to whether permission should be granted. However, this should not be interpreted as meaning that there are no possible grounds for challenge in the Courts, by the Ombudsman or some other external agency whatever Elected Members do, for example in approving applications contrary to Officer’s recommendations, National and Development Plan Policy.
Elected Members of the Local Planning authority have the following duties:
- i) Elected Members must at all times act within the law;
- ii) The overriding duty of Elected Members is to the whole community, not to individual applicants. For example, the avoidance of sporadic development in the open countryside is in the interests of the whole community;
- iii) Elected Members have a statutory duty when determining planning applications to have regard to the provisions of the development plan where material to the application and to any other material considerations (Section 70 of the Town & Country Planning Act 1990).
- iv) Elected Members have a statutory duty to determine planning applications in accordance with the development plan, unless material considerations indicate otherwise (Section 38(6) of the Planning and Compulsory Purchase Act 2004) Elected Members have a statutory duty when determining applications for listed building consent to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses: Section 16 of the Planning (Listed Building and Conservation Area) Act 1990.
- vi) Elected Members have a statutory duty when considering whether to grant planning permission for development which affects a listed building or its setting, to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest: Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
- vii) Elected Members have a statutory duty when determining planning applications in respect of buildings or other land in a conservation area, to pay special attention to the desirability of preserving or enhancing the special character or appearance of the area: Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
2. Actions against Local Planning authorities and Elected Members
Actions against Local Planning Authorities and Elected Members are necessary because duties without recourse would be potentially unenforceable. This part of the code briefly examines the remedies available to aggrieved persons who consider that the Council has acted unreasonably or unlawfully in making a planning decision and the implications these actions may have for the Council and Elected Members.
The consequences of an unlawful or unreasonable planning decision are that the Council and Elected Members would become subject to the scrutiny of the following external agencies:-
(1) The Audit and Governance Committee
Part III of the Local Government Act 2000 introduced the Ethical Framework for Local Government. This was a statutory framework within which Elected Members should operate. These provisions have now been amended through the Localism Act, 2011, but which still provides for a duty upon local authorities to promote and maintain high standards of conduct.
The Ethical Framework has the following key elements:
- Codes of Conduct;
- Register of Interests
- Arrangements to deal with complaints received by the Council, with reports and possible hearings through the Audit and Governance Committee (see generally Article 8 and Part 3 of the Council’s Constitution).
- A criminal offence provision under Section 34 of the Localism Act, 2011..
The framework is concerned with the proper behaviour of politicians in public life, namely:
- the way in which politicians conduct themselves in decision making;
- their relationships with constituents, officials and outside interests; and
- how conflicts of interest are declared and handled in the decision making environment of a Council.
(2) External Auditor
Each year the Council publishes an Annual Governance Statement to comply with the Accounts and Audit Regulations. This document is part of the Council’s corporate governance framework as is the Annual Statement of Accounts as audited through the Council’s external auditors. .The Annual Statement of Accounts therefore contains the opinion of the external auditor on the legality and prudence of the Council’s financial affairs.
Extraordinary headings of expenditure which could be raised by the external auditor from decisions of the Planning Committee are:
- a) an ombudsman finding of maladministration and injustice giving rise to recommendations for remedial action and financial recompense;
- b) costs of litigation and award of costs following an application for Judicial Review;
- c) costs of local public inquiries, including possible award of applicants’ costs including the possible substantial compensation payments following actions by the Secretary of State for the revocation, modification or discontinuance of a permission granted by the Council.
(3) Local Government and Social Care Ombudsman
Aggrieved individuals who consider that they have been unfairly treated by the Council may refer their complaint to the Local Ombudsman for investigation to see if they have suffered injustice caused by maladministration. Examples of maladministration would include:
- a) failure to follow a Council’s agreed policies, rules or procedure;
- b) failure to have proper procedures; bias or unfair discrimination;
- c) failure to give due weight to Officer’s recommendations and National Policy coupled with a failure to give and record clear and convincing planning reasons for approving a planning application where a planning application for substantially the same development has previously been refused;
- d) taking into account irrelevant matters, allowing them to outweigh important planning considerations and failing to take fully into account Government guidance on personal circumstances.
If, after investigation, it is found that injustice has been caused by maladministration, the Ombudsman’s report will contain recommendations as to what action the Council ought to take, which may include the payment of compensation.
The powers of the Local Government Ombudsman are contained in the Local Government Act 1974, as amended.
(4) Judicial review
If an aggrieved individual or group of individuals believe that the Council’s planning decision is wrong in law, they can make application to the High Court for Judicial Review of the decision, which might result in the planning decision being quashed.
In considering an application for Judicial Review the Court has regard to the following factors:
- a) whether the Council determined the planning application in accordance with the Development Plan or other material considerations;
- b) whether the Council has taken into account an irrelevant consideration;
- c) whether the Council has failed to take into account a relevant consideration;
- d) whether there is evidence to suggest that if the Council has taken into account all relevant considerations it could not reasonably have taken the decision it arrived at;
- e) whether all required procedures had been followed or there had been any procedural unfairness.
If the claimant succeeds on an application for Judicial Review, the planning decision may be quashed. In such circumstances it would be normal for the costs of the claimant's action to be awarded against the Council. (5)
(5) The "call in" powers to the secretary of state
The Secretary of State has call in powers which can be exercised where a Council appears to be making inconsistent decisions which are seriously in conflict with National and Development Plan Policy. Planning applications called in by the Secretary of State, usually require a local public inquiry to be held, a part of the costs of which may be incurred by the Local Planning Authority. This power is contained in Section 77 of the Town & Country Planning Act 1990, as amended. The Town and Country Planning (Consultation) (England) Direction 2021 should now be read in conjunction with this power. There are broad categories of development a Local Planning Authority must refer, in relevant circumstances, if it does not propose to refuse the development. These are Green Belt development, large office retail and leisure developments outside town centres, world heritage development, playing field development, flood risk development and commemorative object development. Referral to the Secretary of State may also be required in certain cases involving heritage development and the Health & Safety Executive.
(6) The powers of the secretary of state to revoke or modify a planning permission
Where planning permission has already been granted by the Council, the Secretary of State has powers to revoke or modify planning permission, or to require a discontinuance of a land use. This power is used if the original decision is judged to be grossly wrong.
Cases giving rise to intervention include those where some important wider planning objective is at stake, such as protection of fine countryside. Cases involving revocation and modification almost invariably require a local public inquiry before the Secretary of State’s decision is confirmed. In addition to costs falling on the Council for the inquiry, where a planning permission is revoked or modified, there would be a liability for compensation to those with an interest in the land to be paid by the Local Authority.