Last week, the NHF published its final version of its new Code of Governance and made some important changes from the previous draft that will impact on those housing associations looking to adopt it.
A recent study by Nathaniel Lichfields revealed that only 65% of appeals were allowed in cases where councillors refused planning permission despite planning officers’ recommendation for approval, as opposed to 40% of appeals following the planning officers’ recommendation for refusal.
Having assisted many planning councillors in advising matters, we reviewed how we’ve dealt with this situation at planning committee meetings, leading to the following considerations.
We have to accept that even the most well-written and considered planning committee report, setting out the advantages of a new prestigious development in the local planning authority area, for example, can still be refused by members of the planning committee in spite of officer recommendation for approval. Such refusal can often be influenced by “political” issues or, on the face of it, what would seem to be a trivial reason raised by local residents as matters of concern, even if they are not planning-related. The research showed that where reasons for refusal were linked to highly technical considerations, such as highways, there was a higher percentage of successful appeals than where the reasons were more subjective.
We have been involved with a case recently where a planning committee refused a mixed-use hybrid development for car showrooms, workshops, retail and a drive-through restaurant on the basis of noise and smell; members were also concerned about the potential increase in traffic, although highway officers considered with appropriate conditions there was no issue in granting permission for the development. The Council’s environmental health officers were satisfied that, with appropriate planning conditions, the development was acceptable. Should the planning committee’s decision be appealed? And if so, what is the likely result? What tools does the committee solicitor have to support fellow planning officers and how are these best deployed?
Firstly, it is always important to remember that decisions made by the planning committee are solely the decisions of its members; they have the local knowledge, and they represent the people of the local planning authority area. Officers can only advise using their professional opinion.
As a consequence, what solutions may officers suggest to members where it appears that they are resigned to refuse officer recommendations?
Some points to consider:
1. Remind members that they should only refuse a planning application on the basis of good planning reasons, especially where they are putting forward matters that are not planning related, such as in the example above. Members should also be reminded of the content of the NPPF¹.
2. Depending on the nature of the members’ concerns, officers can advise that additional conditions may be appropriate to satisfy the concerns or that Section 106 obligations may meet these (see Paragraph 56² of the NPPF). Officers may put forward the suggestion of deferral if this can be justified; this often provides a breathing space for members and officers to consider the application differently. It provides the opportunity to seek additional information and clarification on matters raised by members, and it can also provide the opportunity for a site visit (so long as it is justified in planning terms). On occasion, members can change their opinions regarding a planning application between the committee and the deferred date for reconsideration of the application. However, you should avoid repeated deferrals.
3. Always ensure that you record fully the reasons the members are putting forward for the refusal – these must be their reasons. Advise in the strongest terms that the reasons for refusal must relate to the particular application and be based on planning reasons. In this situation, it may be prudent to suggest an adjournment so that officers can be clear about the reasons for refusal given by the members.
4. Have a Planning Code of Conduct in place as part of the Constitution that sets out that members should not refuse a planning application that is subject to an officer’s recommendation for refusal without good planning reasons. Advise that if they do refuse a planning application against officer recommendation, they will have to provide the planning reasons and that they may be called as witnesses in any forthcoming planning inquiry that may result from the refusal.
5. Advise committee members that the decision they are seeking could be subject to a planning appeal by the applicants. Such a planning appeal could result in the award of partial or full costs against the Council if the reason for refusal is unreasonable. You should also remind members of their fiduciary duties to the Council.
6. Ensure that before any new or existing members can be part of the planning committee in the new council year, that they attend compulsory planning training. This should be made into a requirement and set out in the planning Code of Conduct.
For more information
¹ Part 4 Decision Making Paragraph 38 of the NPPF July 2018 “Local planning authorities should approach decisions on proposed development in a positive and creative manner…decision makers at every level should seek to approve applications for sustainable development where possible”.
² Planning obligations must only be sought where they meet all of the following tests: (a) necessary to make the development acceptable in planning terms; (b) directly related to the development; and (c) fairly and reasonably related to scale and kind to the development.
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