Probity Issues for Members in Planning Committees

The life of a Planning Committee Member is not an easy one. It is not just about making decisions on particular applications for planning permission. It is about the whole planning process from the plan making at the start involving the development of policy with the core strategy of the development plan and supplementary planning documents through to the pre-application discussions with developers and consultation with interested parties and objectors.

But this involvement invariably raises issues about the nature and extent of Member engagement and the rules surrounding declarations of interests and issues such as bias, pre-disposition and pre-determination. Members very often have problems with the mechanics of getting involved and more importantly with understanding how to avoid the pitfalls.

Under section 30 of the Localism Act 2011 (“the Act”) there is a requirement for disclosure of pecuniary interests on taking office whereby a Member or co-opted Member of a relevant authority has 28 days from when they become a Member or co-opted Member of the authority to notify the authority’s monitoring officer of any pecuniary interests which they have at the time of notification. There are provisions dealing with re-election or re-appointment. For these purposes a pecuniary interest is a “Disclosable Pecuniary Interest” (see further below) and is either an interest of the Member, or it is an interest of the Member’s spouse or civil partner, a person with whom the Member is living as husband and wife, or a person with whom the Member is living as if they were civil partners, and the Member is aware that that other person has the interest. Where notification takes place the interests notified are entered in the authority’s register (whether or not they are Disclosable Pecuniary Interests).

Section 31 of the Act deals with pecuniary interests in matters considered at meetings or by a single Member and applies where a Member or co-opted Member of a relevant authority is present at a meeting of the authority or of any committee, sub-committee, joint committee or joint sub-committee of the authority, has a Disclosable Pecuniary Interest in any matter to be considered, or being considered, at the meeting, and is aware thereof. If the interest is not already entered in the authority’s register, the Member or co-opted Member must disclose the interest to the meeting. If it is, then the Member or co-opted Member need only disclose that they have a Disclosable Pecuniary Interest in the matter concerned. Disclosure must also be notified to the authority’s monitoring officer within 28 days. The Member or co-opted Member may not participate, or participate further, in any discussion of the matter at the meeting, or participate in any vote, or further vote, taken on the matter at the meeting, but this is subject to the dispensation provisions in section 33 of the Act. Executive arrangements, where in operation, are similarly caught as is the position where a function of a relevant authority is discharged by a Member of the authority acting alone.

It is also a criminal offence under section 34 of the Act for a Member to fail to register a Disclosable Pecuniary Interests; to fail to disclose it at a meeting unless it is already registered; or to participate on a relevant item of business, unless the Member has a dispensation from the authority; or to take any action on the matter as a Member of the Executive, other than to refer the matter to another executive Member for determination. An offence is also committed if information provided is false or misleading and the person providing it knows that it is false or misleading, or is reckless as to whether the information is true and not misleading.

Conviction in the Magistrates’ Court carries a financial penalty not exceeding level 5 on the standard scale (currently £5,000) and there is also a provision for disqualification from office for up to five years. Prosecution can only be initiated by or on behalf of the Director of Public Prosecutions and may be brought within a period of 12 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge. The proceedings must be commenced within three years of the commission of the offence, or in the case of a continuous contravention, after the last date on which the offence was committed.

The new definition of Disclosable Pecuniary Interests (DPIs) is contained in the Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012 (SI 2012/1464), which apply to all local authorities in England.

There are seven specific categories of Disclosable Pecuniary Interest which are changed from the old Model Code of Conduct. These are: Employment, office, trade, profession or vocation; Sponsorship; Contracts; Land; Licences; Corporate tenancies; and Securities. Note that the definition of a Disclosable Pecuniary Interest is significantly different from the former prejudicial interest definition in so far as:  

• It applies to interests of the Member and their spouse or partner.
• It is wider than the old requirements for registration because they applied only to interests of the Member him/herself.
• It is narrower than the old definition for disclosure and non-participation purposes, because it omits reference to the Member’s family or friends. 
• It is broader than the old definition of a prejudicial interest, in that it is a Disclosable Pecuniary Interest even if there is no likelihood that it might prejudice the Member’s perception of the public interest.
• It is also narrower in that it applies only to defined categories of interest and omits reference to matters likely to affect the wellbeing or financial standing of the Member, or his/her family or friends.

The old standards regime was disapplied with effect from 1st July 2012 by the Localism Act 2011 (Commencement No. 6 and Transitional, Savings and Transitory Provisions) Order 2012 (SI2012/1463) (the Order). The new regime is brought into force from the same day although the old provisions still apply for resolving outstanding complaints.

So in respect of Disclosable Pecuniary Interests the position for Members must be quite clear. Provide proper and lawful disclosure and take no part in the relevant consideration and decision in order to avoid the criminal sanction and to avoid creating grounds for challenge to the decision made.

The Act also provides additional protection to Members who have expressed views on proposals before a Planning Committee. There is recognition in the ‘Localism Agenda’ that Members have a real and proper role to play in planning for their area. It is accepted that Members should be free to campaign, to express views on issues and to vote on those matters, without fear of being unjustly accused of having a closed mind because of it. Section 25 of the Act in effect makes clear that the normal activities of a councillor; campaigning, talking with constituents, expressing views on local matters and seeking to gain support for those views should not lead to an unjust accusation of having a closed mind on an issue that can lead to a legal challenge. The section makes clear that a decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and the matter was relevant to the decision but for the avoidance of doubt applies only to decisions made after this section comes into force although the reference to anything previously done includes things done before the section comes into force.

Clearly Members have to appreciate the distinction between on the one hand pre-disposition and on the other pre-determination.

Pre-disposition means having a tendency towards, or likelihood, of deciding a matter in a particular way but with the mind left completely open to the possibility of deciding otherwise in the course of the decision process e.g. by being influenced by the debate. It is clear that having an open minded disposition is lawful.

Pre-determination on the other hand means making up and closing your mind before a decision. If this happens then the decision is unlawful. The test is the same as for bias that is to say to a fair minded observer, who is suitably informed, and who having considered the facts would conclude that there was a real possibility of bias (see Porter v Magill). The general role and conduct of Members is they should not favour any person, company, group or locality, nor put themselves in a position where they appear to do so. Members who do not feel that they can act in this way should consider whether they are best suited to serve on a Planning Committee.

So what can Members actually do?

As a Ward councillor, a Member can support or oppose an application for planning permission and represent the views of their constituents

As a Planning Committee Member, a Member can also do so but must still retain an open minded disposition. To do otherwise would compromise their role on the committee and put any decision reached at risk of challenge.

Members can therefore engage in the debate surrounding a particular application or issue. This can include talking directly to developers and objectors; holding an opinion on a proposal; and expressing an opinion on a proposal (in and outside of a committee meeting). Members can certainly meet with any interested parties be it applicants, objectors or local residents. It is always best to do so with a planning officer present. When attending public meetings, Members of a Planning Committee should maintain an impartial role, listening to what is said and if expressing an opinion, should make sure that it is just that, not a fixed view.

It is important however that Members avoid the potential for any misunderstanding and misinterpretation that community groups and developers will seek to exploit. They should avoid for example advocating a particular outcome or directly opposing a particular position. They should not pre-determine the outcome before hearing all of the argument in the committee meeting. Members still need to take care to show that whilst they might have a view, they are open to the debate and will make their minds up on the basis of all the evidence.

When being lobbied Members of the Planning Committee should be very careful about nailing their colours to the mast too early. That could amount to pre-determination. If expressing a view then they should explain that it is an initial view and may change, taking all valid considerations into account. The involvement should be recorded should take place within clear published guidelines developed by the authority to assist both Members and their officers.

So there you have it.

Members of a Planning Committee have a responsible role to play. They are no longer restricted in the way that they previously were and can certainly play their part in the ‘political’ process of planning.

But there are concurrent obligations and responsibilities not least of which is the criminal sanction and they would be well advised to pay heed to them. The penalty for not doing so could be costly both to their finances and to any budding political career.

If you require advice on the specifics of any particular interest or issue associated with a development proposal please do not hesitate to contact me at my day job.