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Councillors believe they will be able to state voting intentions in advance

September 23, 2011

Imagine a juror giving an interview before the first day of a trial, in which they pledge to give a guilty verdict. “I’ve listened to the anger in this community about this crime,” the juror might say. “Whatever the defendant says, he’s going down”.
It would, of course, somewhat undermine your faith in the trial-by-jury system, which relies on jurors going into court with an open mind.

A similar principle currently applies to local planning authorities’ decision-making: members are not allowed to “predetermine” their verdicts on applications, meaning that they must enter the committee room with an open mind. This predetermination rule is not intended to prevent councillors discussing schemes with applicants and residents prior to committee – members should be able to talk to developers and local people, as long as they don’t say anything which indicates that they have made up their mind on how to vote. But the government has been persuaded that this is its effect, and that councillors are so worried about falling foul of the rule that they do not engage with applicants and other stakeholders.

Hence it has put a clause in the Localism Bill that alters the rule. It says that a decision-maker should not be seen to have had a closed mind when making a decision simply because he or she “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”.

As I read it, this seems intended to remove all restraints preventing councillors from pledging to support or reject an application at committee. However, lawyers have warned that such pledges will still be risky, and that courts will still overturn decisions where they detect that committee members have closed minds.

In our issue published today, we report the findings of research into planning committee members’ views on the proposed rule change by consultancy Meeting Place Communications. This research shows that, despite the lawyers’ warnings, almost two-thirds of councillors think the revised rules will allow them to state in advance how they will vote at committee meetings.

Commenting on the research to one of our journalists, housing minister Grant Shapps said: “It is ridiculous that a community can vote for someone standing on a particular issue, only for that person to be barred from talking about it once in office. Councillors must be given the freedom to properly represent the views of their constituents and the Localism Bill will do just that.”

This would seem to confirm that it is indeed ministers’ intention to allow members to announce voting intentions in advance of the meeting. This, it seems to me, is likely to damage the perceived fairness of the planning system in the long-term. Have a look at the story – the research reveals that most councillors do indeed think that the current system makes it hard for them to talk to applicants and residents, but also that it is an important bastion of the reputation of the planning system.

If you are interested in finding out more, Meeting Place Communications is hosting seminars on the research in London on 29 September and Bristol on 6 October. Email for further details.

11 Comments leave one →
  1. RichardW permalink
    September 23, 2011 12:33 pm

    The main problem with the criminal analogy is that in most (all) cases tried by jury, there are conflicting views on evidential facts and jurors have to decide whose account to believe. In the majority of planning decisions the facts are not in dispute and the decision maker is simply required to exercise their judgement over a matter of subjective/professional discretion. The issue is whether a councillor in possession of all the facts is entitled to come to a view on the merits of a proposal in advance of hearing the opinions of the public/other councillors/professional officers.

    The other side of it is that councillors are human too, and they will form opinions before a meeting, whether or not they’re supposed to. (What planning officer hasn’t opened a new file, glanced at the plans, and jumped to conclusions about the merits?) Isn’t it better to allow them to voice these opinions openly, rather than having them discussed privately behind closed doors with fellow councillors of a like mind?

    I think the far bigger issue with councillors is bias – whether that be anti-Tesco or anti-Gypsy or pro-local business or pro-their voters.

    • Tom permalink
      September 23, 2011 1:24 pm

      “The issue is whether a councillor in possession of all the facts is entitled to come to a view on the merits of a proposal in advance of hearing the opinions of the public/other councillors/professional officers.”

      How can a councillor make a decision based on all the facts prior to a committee meeting? Surely by definition they dont have all the facts before the meeting takes place.

      Pre-disposition towards a certain scheme is fine, pre-determination is in my opinion not. It makes the whole system a farce.

    • September 23, 2011 3:10 pm

      As I understand them, the existing rules do not prevent councillors voicing their opinions about proposals, so long as they make clear that they are open to the arguments that will be put to them in committee. The danger of the Localism Bill clause is that it tells councillors that they can announce how they will vote before applicants and objectors have had their official opportunity to make their case. If they choose to do this, applicants and objectors will inevitably start to question the fairness of the process.

  2. September 23, 2011 2:23 pm

    I agree with Tom. Pre-disposition OK; pre-determination not OK as I said in a letter to Planning magazine published 17 June.

    Whilst there may be some “facts” around at an early stage, there is likely to be plenty of mis-information as well.

    Apart from new information emerging in an officer report or in debate at committee, it can not be right that a councillor attends a decision making meeting already having made their own decision as to how to vote any more than it can be for a juror to make a decision before the start of the trial (which I think is a good analogy).

    • RichardW permalink
      September 23, 2011 3:48 pm

      OK I can see I’m going to be something of a devil’s advocate here . . .

      What I meant was that there is a difference between forming a view on the probability of events occurring as described by a prosecutor based on conflicting witness statements, oral testimony, and forensic evidence on DNA matching – which clearly requires all of the “evidence” to be presented first AND on the other hand forming a view on whether a housing proposal displays adequate design quality, or whether the need for housing is sufficient to set aside other shortcomings. Neighbour representations (this is ugly) are NOT the same as witness testimony (I saw him do it) and my officer views (this is ugly) are NOT the same as forensic evidence (there is a DNA match). This is why I don’t believe it is a good analogy.

      And if by my saying that a councillor may have the facts before a meeting you include in the meaning of “facts” third party and expert opinion – I never meant to include these – these are not facts. Which is actually the same point as above – witness testimony is presented as fact and whether or not it is also “true” is a different matter. Expert or lay opinion is not true/untrue and hence not factual. Although it may include facts, expert or lay opinion is ultimately just another judgement on the significance of those facts. “The house is 8 metres high” is a fact – “the 8 metre high house is too tall in its context” is opinion.

      Consider this, why is it OK for a planning officer to reach a view BEFORE hearing the debate at Committee, but it’s not OK for a Councillor to do the same?

      The duty on the decision maker (for the moment at least) is to have regard to the development plan and other material considerations etc. I think a Committee member would only breach this duty IF they stubbornly maintained a prior position in spite of material considerations BUT the fault is in refusing to consider the issues when they vote, NOT in forming or expressing a prior position. The stating of a prior position does not breach this duty neither does deciding how to vote. The only thing that breaches this duty is voting without considering all material considerations.

      Everything else is risk management with a view to what might go wrong (but might not) and /or playing your cards close to your chest in order to avoid embarrassment and U Turns. And I think that member’s should be trusted to be adult about this. And I actually mean that. After all if officers can’t trust members, why should members trust officers?

      • Tom permalink
        September 26, 2011 7:20 am

        “Consider this, why is it OK for a planning officer to reach a view BEFORE hearing the debate at Committee, but it’s not OK for a Councillor to do the same?”

        Because the officer is not the decision maker. They are making a recommendation,and should be writing a report which fairly (as far as possible) sets out the cases for and against a development and then offering their advice.

        The Councillors are entitled to follow that advice or not. So long as they give their reasons for doing so.

  3. Roger permalink
    September 23, 2011 3:57 pm

    As an experienced planning committee chairman, I would be very uncomfortable chairing a committee where a number of members had already broadcast to the world how they intened to vote on an itme. Not only would it undermine the whole process of presentation of the key facts followed by an informed debate and a final decision, it would also undermine what little faith the public has in the elected member involvement in the process.

  4. RichardW permalink
    September 23, 2011 4:22 pm

    Roger, you’re not wrong, but don’t you think that public faith in elected politicians is earned through acting with integrity. This requires taking responsibility for your own actions. If politicians need regulation or policing to act with integrity then this is not good enough. Do you not think it’s akin to an old lag in prison claiming to be a reformed character because he hasn’t knocked over any banks whilst he was inside? It’s only when we are free to act as we choose that we reveal the depth of our personal integrity IMHO.

  5. Roger permalink
    September 23, 2011 9:06 pm

    RichardW, I am currently unable to workout where your comments are coming from, but do not get the feeling that you have experience as a member of a planning committee. This is mainly based on your somewhat bizarre comment, ‘why is okay for an officer to make up his mind before the committee debate, but not a member’.
    The officer who wrote the report, who may not be the one presenting on some occasions, will have studied all aspects of the proposal and will also have a sound knowledge of both the current planning guidance and any local policies that exist, all of which, even the most committed members are extremely unlikely to have. It is a complete nonsense to suggest that members are comparable to officers.
    Why should any applicant or member of the public be expected to tolerate a system where the outcome is potentially determined by the political posturing of a number of ill-informed politicians? If that is what some members want to do then fine, let them do all the grandstanding they want, just don’t allow them to be involved in the final decision.

    • September 24, 2011 8:43 am

      A key difference between the officer role and the member role is that the former makes a recommendation; the latter makes the decision.

  6. RichardW permalink
    October 4, 2011 12:54 pm

    Back off my hols . . .

    I am a planner, not a politician, with several years experience handling major cases and dealing with members both inside and outside committee. I think where I’m coming from is a wish to debunk some of the mythology that has grown up around planning.

    Firstly, “officer/planner” and “member/politician” are just labels; ultimately we’re all just people. Secondly, “officer” and “member” are just roles within a larger system. “Officers make recommendations; members make decisions”. Well actually, 90% of all planning decisions are delegated to officers (more if you count decisions on discharging conditions etc) and members, as individuals, make no decisions at all – rather you might say they present their individual “recommendation” to the committee by way of their vote. And any decision made by a Local Authority (delegated or committee) is not a final decisions as it can be challenged through appeal or the courts. So is a committee decision to refuse, knowing an appeal is likely, anything more than a “recommendation” to an Inspector?

    “Why should any applicant or member of the public be expected to tolerate a system where the outcome is potentially determined by the political posturing of a number of ill-informed politicians?”

    Now there’s the nub, what is the proper role for members in planning decisions? If it is to be purely rational and analytical and “a good members’ decision” requires a thorough understanding of policies and guidance etc, this sounds to me like a “professional” task, and isn’t this best left to the professionals? But if their role is to be the voice of local communities, and to challenge the uncaring technocrats, then where is the harm in allowing them to give full voice to their principles and feelings at whatever point in the process they feel is most appropriate?

    And ultimately wouldn’t allowing members to speak out in advance be more “honest” than the current (hopefully outgoing) system which police’s members’ public behaviour but actually does nothing whatsoever to stop them predetermining cases (in their own minds)?

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