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Constitution - Part 6F - Code of good practice for Members and officers involved in the planning process

 

 

This Code of Practice ('The Code') supplements the County Council's Member's Code of Conduct and where appropriate members should refer to the Members' Code of Conduct which is set out in Part 4B of this Constitution. The County Council's Monitoring Officer's advice may be sought on the interpretation of the Members' Code of Conduct or this Code.

1.1 Planning affects land and property interests, including the financial value of land and the quality of their settings. It is not an exact science. It is often highly contentious because decisions affect the daily lives of everyone and the private interests of members of the public, landowners and developers. Opposing views are often strongly held by those involved. A key role of the planning process is balancing the needs and interests of individuals and the community.

1.2 The planning system can only function effectively if there is trust among those involved. There must be trust between members and officers and between the public and the County Council. The Third report of the Committee on Standards in Public Life (the Nolan Committee) (1997) recommended that each local authority's practices and procedures were set out in a local code of planning conduct to avoid allegations of malpractice in the operation of the planning system.

1.3 The general principles that underlie the County Council's Members' Code of Conduct and apply to this Code are:

(a) Members should serve only the public interest and should never improperly confer an advantage or disadvantage on any person.

(b) Members should not place themselves in situations where their honesty or integrity may be questioned.

(c) Members should make decisions on merit.

(d) Members should be as open as possible about their actions and those of their authority, and should be prepared to give reasons for those actions.

(e) Members may take account of the views of others but should reach their own conclusions on the issues before them and act in accordance with those conclusions.

(f) Members should respect the impartiality and integrity of officers.

1.4 The County Council is committed to open, fair and transparent decision-making.  Planning decisions should be made impartially, with sound judgement and for justifiable reasons.

1.5 This Code sets out practices and procedures that members and officers of the County Council shall follow when involved in planning matters. Planning matters include the consideration of planning applications, the preparation of development plans and other planning policy and the enforcement of planning control.

1.6 Failure to follow this Code without good reason, could be taken into account in investigations into possible maladministration against the County Council, or have implications for the position of individual members and officers. Breaches of this Code may also amount to breaches of the Council's Members' Code of Conduct. If in doubt about what course of action to take, a member or officer should seek the advice of the County Council's Monitoring Officer.

1.7 This Code sets out principles to guide members and officers in determining planning applications and making other decisions within the terms of reference of Development Control and Regulation Committee ('the Committee').  Although of particular relevance to members of this Committee it applies to all members of the County Council who may become involved in planning and development matters.

2.1 Members and officers have different, but complementary roles. Both serve the public but members are responsible to the electorate, while officers are responsible to the County Council as a whole.

2.2 The role of a member of the Committee is to make planning decisions openly, impartially, with sound judgement and for justifiable reasons.

2.3 Whilst members have a special duty to their electoral division constituents, including those who did not vote for them, their overriding duty is to the whole community. This is particularly pertinent to members involved in making a planning decision. A key role of the planning system is the consideration of development proposals against the wider public interest.

2.4 Members' decisions shall not discriminate in favour of any individuals or groups and, although they may be influenced by the opinions of others, they alone have the responsibility to decide what view to take. Members must, therefore, consider all of the material issues in the light of Development Plan policies, Government advice and their own individual judgement and make a decision in the interests of the County of Cumbria as a whole.

2.5 Whilst members should take account of all views expressed, they shall not favour any person, company, group or locality, nor put themselves in a position where they appear to do so.

2.6 Officers who are Chartered Town Planners are guided by the Royal Town Planning Institute's ('RTPI') Code of Professional Conduct. Breaches of that code may be subject to disciplinary action by the Institute.

2.7 Officers in their role of advising members shall provide:

(a) Impartial and professional advice;

(b) Consistency of interpretation of planning policy; and

(c) Complete written reports covering all necessary information for a decision to be made.

2.8 The County Council endorses the statement in the RTPI code that, 'RTPI members shall not make or subscribe to any statements or reports which are contrary to their own professional opinions', and extends it to apply to all officers in the County Council advising on planning matters.

2.9 That the County Council may not always follow the advice of their professional planning officers is perfectly proper. The professional officer too, may have a change of opinion, but this must be on the basis of professional judgement, and not because the County Council whether by its members or other officers, have prevailed upon the officer to put forward his or her professional view as something other than it really is. If the Committee is minded to refuse or grant an application contrary to officer recommendation, it should consider whether to defer the application to the next available Committee, before making the final decision. This will allow members to obtain further legal advice on the proposed reasons for acting contrary to the recommendation based on material planning considerations. If such a decision is made it must be clearly minuted, expressed clearly and be based upon sound planning reasons supported by evidence.

2.10 The County Council shall have a designated Head of the Planning Service, who is qualified for election to membership of the RTPI and who has direct access to members as their professional adviser on planning matters. A superior officer shall not have the power to overrule the professional advice of the Head of the Planning Service.

2.11 Officers shall follow the guidance on their standards of conduct as set out in the Officers' Code of Conduct in Part 6B of this Constitution and any National Code of Conduct for Local Government Officers issued by the Secretary of State under Section 82 Local Government Act 2000.

2.12 Members shall follow the advice in the Member's Code of Conduct about accepting gifts and hospitality. Members should treat with extreme caution any offer which is made to them personally; the normal presumption should be that such offers must be courteously declined. Similarly, officers shall politely decline offers of hospitality from people with an interest in a planning proposal. If receipt of hospitality is unavoidable, officers shall ensure it is of a minimal level and declare it in the hospitality book as soon as possible.

3.1 The conduct of all members in dealing with planning matters needs to be guided by:

(a) The Members' Code of Conduct;

(b) The legal rules which apply to participation on local authority decision making.

3.2 The principles that apply can sometimes be complex and are interrelated but are summarised below.

3.3 The Members' Code of Conduct sets out the standards of conduct that members are expected to observe. It also provides guidance as to disclosable pecuniary and other registrable interests which may affect a member's ability to take part in the decision-making process. These interests are summarised as follows:

(a) Disclosable Pecuniary Interests ('DPIs') - where a member of the Committee has a DPI as defined in the Members' Code of Conduct in any matter to be considered or being considered at a meeting of the committee then the existence and nature of this must be disclosed at the meeting. Having disclosed a DPI a member must not participate in any discussion or vote and must leave the meeting room.

(b) Other Registrable Interests - where a member of the Committee has other registrable interest as defined in the Members' Code of Conduct in any matter to be considered or being considered at a meeting of the Committee then the existence and nature of this must be disclosed at the meeting unless it has been previously registered. A Member with other registrable interests may still participate in any discussion and vote on the matter in which he/she has such an interest.

(c) Other Interests - The Members' Code of Conduct also contains seven important general principles of conduct which member must observe when acting in an official capacity.  Therefore members may still have other interests which may influence their decision which will not amount to disclosable or registrable interests for the purposes of the Code.  In order to maintain the integrity of the planning system, members should be careful to ensure that such interests do not unduly influence their decisions. 

(d) Where a matter arises at a meeting which relates to or affects a financial interest of you, a friend, relative or close associate (and it is not a DPI or other registrable interest) you should declare the existence and nature of the interest. If the matter is such that it affects you or the individual concerned more than the majority of people in the area and a reasonable member of the public would think your view of the public interest would be adversely affected you must leave the room and may not vote. You may speak if members of the public are able to speak.

3.4 Where any interest is such that members of the public may feel that the member will not be able to approach matters with an open mind and consider the application on its planning merits, members should consider withdrawing from the committee for that item.

3.5 These principles apply equally to members who are not members of the Committee. Members who have such interests should consider whether it is appropriate for them to participate in the planning process, and in any event, should declare such interest at any meeting which they may attend or in any letter which they may write.

3.6 Members should seek guidance from officers.

3.7 Pre-Determination- a member may become involved with a planning application before the matter comes before the Committee.  Such involvement need not on its own debar a member from participating in making the planning decision when the matter is considered by the Committee providing that the member has not already decided how they will vote on the matter before the Committee.  Members should, however, always consider carefully whether in any particular case they could reasonably be seen to approach the planning merits of the application with an open mind.  If the member considers that this is not possible, the member should withdraw from consideration of that item.

3.8 As a minimum, the integrity of the planning system requires openness on the part of members; it must operate fairly and be seen to operate fairly.

4.1 Planning legislation allows the County Council to submit and determine proposals for development that it proposes to carry out itself. County Council owned companies also submit proposals that are decided by the County Council.

4.2 Proposals submitted by the County Council or a County Council owned company shall be considered in the same way as those by private developers.

4.3 Members of the Committee who sit on the board of a County Council owned company which has submitted a planning proposal shall declare an interest and take no part in the discussion and determination of that proposal, except where they are the local member when they may speak on matters of local concern but shall not vote.

4.4 Officers who are involved in the preparation of development proposals shall not advise on, or take any part in the consideration of, and/or the assessment of planning applications in respect of such proposals.

5.1 The County Council is also subject to a number of statutory duties which it must comply with when carrying out its statutory functions.  These will apply to the planning function except when such matters are clearly immaterial because they are not capable of relating to the use of development land.  Examples of these duties include:

(a) Equality Act 2010, Section 149 provides that:

(i) A council must, in the exercise of its functions, have due regard to the need to:

 Eliminate discrimination, harassment, victimisation and any other conduct which is prohibited by or under the Equality Act 2010;
 Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
 Foster good relations between persons who share a protected characteristic and persons who do not share it.

(ii) The above powers relate to the following protected characteristics:

 Ages;
 Disability;
 Gender reassignment;
 Marriage and civil partnership;
 Pregnancy and maternity;
 Race (including colour, nationality and ethnic or national origins);
 Religion or belief;
 Sex; or
 Sexual orientation.

(b) Human Rights, Section 6(1) of the Human Rights Act 1998 provides that:

(i) "It is unlawful for a public authority to act [or fail to act] in a way which is incompatible with a Convention right."

(c) Best Value, Section 3(1) of the Local Government Act 1999 provides that:

(i) "A best value authority must make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness."

(d) Crime and Order, Section 17(1) of the Crime and Disorder Act 1998 provides that:

(i) "Without prejudice to any other obligation imposed on it, it shall be the duty of a [local authority] to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent, crime and disorder in its area."

6.1 Lobbying is a normal and proper part of the political process. The applicant, supporters or those who may be affected by a proposal will often seek to influence the decision by an approach to their local member or members of the Committee. However, reacting to lobbying can lead to the impartiality of a member being called into question and require that member to declare an interest.

6.2 The information provided by lobbyists is likely to represent an incomplete picture of the relevant considerations in respect of a planning matter. The views of consultees, neighbours and the assessment of the case by the planning officer all need to be considered before a member is in a position to make a balanced judgement on the merits of the case. Members should provide officers with copies of any lobbying material they may have received, whether in favour or against a proposal.

6.3 The time for individual members of the Committee to make a decision on a proposal is at the committee meeting when all available information is to hand and has been duly considered.

6.4 A member of the Committee shall be free to listen to a point of view about a planning proposal and to provide procedural advice (in particular referring the person to officers). Even though they may agree with a particular view, the Committee members should take care about expressing an opinion indicating they have made up their mind before the decision-making meeting. To do so, without all the relevant information and views, would be unfair and prejudicial. A decision is at risk of being challenged if members do not retain open minds and are not genuinely susceptible to persuasion at the decision-making meeting. Members who are lobbied should:

(a) Make clear that they reserve their final decision on a proposal until the committee meeting:

(b) Only give procedural advice (if appropriate);

(c) Consider referring those lobbying to the relevant officer who can provide further advice; and

(d) Not seek to meet an applicant or potential applicant alone.

6.5 Members of the Committee shall not, in general, organise support or opposition for a proposal, or lobby other members (other than when addressing the Committee). Members shall not put improper pressure on officers for a particular recommendation.

6.6 The local member who is not a member of the Committee will be allowed to attend and speak at the decision-making meeting (either presenting their own views if they are an affected party or representing the views of their electoral division members) but not vote. A local member who has a disclosable pecuniary interest in an application, within the meaning of the Members' Code of Conduct should seek prior advice from the Monitoring Officer about his or her position.

6.7 Members of the Committee must be free to vote as they consider appropriate on planning matters. A member cannot be instructed how to exercise their vote on a planning matter.

6.8 Members should inform the Monitoring Officer where they feel they have been exposed to undue or excessive lobbying or approaches (including inappropriate offers of gifts or hospitality), who will in turn advise the appropriate officers.

7.1 Discussions between an applicant and the County Council, prior to the submission of an application can be of considerable benefit to both parties and is encouraged.  Continued discussions and negotiations between the parties, after the submission of proposals, is a common and important facet of the planning process. However, they should take place within clear guidelines, as follows:

(a) It should always be made clear at the outset that the discussions will not bind the County Council to making a particular decision and that any views expressed are those of the officer only, and are provisional and impartial.

(b) Advice should be consistent and based upon the Development Plan and any other material considerations. There should be no significant difference of interpretation of planning policies by individual planning officers.

(c) A written note should be made of all potentially contentious meetings. Two or more officers should attend potentially contentious meetings. A clear note should also be taken of potentially contentious telephone conversations.

7.2 Members need to preserve their role as impartial decision makers and should not take part in pre- or post- submission discussions and negotiations with applicants regarding development proposals. Should there be occasions when members are involved, it should be part of a structured arrangement with officers, including the Head of the Planning Service. Members must avoid indicating the likely decision on an application or otherwise committing the County Council during contact with applicants.

7.3 Members may receive information from applicants and give information to applicants and members of the public but, to safeguard their impartiality, they should maintain a clear distinction between receiving information and negotiating. Any information received by members should be provided to the officers dealing with the application. Members who are approached for planning, procedural or technical advice should refer the applicant to the relevant officer.

8.1 The officer will submit written reports to the appropriate Committee on planning applications to be determined by the County Council. The reports will give the background to the application including any relevant planning history of the site, a description of the proposals and their likely effects, and the relevant Development Plan and Government policy considerations, together with any other material considerations. Where a planning application requires an environmental impact assessment the officer shall include in his/her report a summary of the environmental statement. For all applications, comments by bodies consulted and representations from members of the public together with his/her own comments will be included in the reports. The reports will include a summary of representations made about the application. The officer in his/her report will give a reasoned assessment of the proposals and a justified recommendation.

8.2 Oral reports (except to present and update a report) should be extremely rare and fully minuted when they do occur. A publically available written update on late representations and any changes to the report shall be circulated to members of the Committee on the morning of the meeting prior to the meeting commencing.

8.3 The officer will have available for inspection by members the full planning application, environmental statement (where required) and representations from bodies consulted and members of the public.

9.1 Planning decisions should be made on planning considerations and should not be based on immaterial considerations.

9.2 Members and appointed substitutes of the Committee should attend training sessions which may be organised from time to time.  All other members are encouraged to attend.

9.3 Planning legislation, as expanded by Government Guidance and decided cases, defines which matters are material considerations for the determination of planning decisions.  There is much case law on what are material planning considerations.  The consideration must relate to the use and development of land.

9.4 Briefly, at the date of the preparation of this Code, material planning considerations include:

(a) The Development Plan;

(b) Government Guidance (contained in such documents as Circulars, Planning Policy Guidance Notes, Mineral Policy Guidance Notes, Planning Policy Statements and Ministerial announcements, the National Planning Policy Framework and Planning Practice Guidance);

(c) Supplementary Planning Documents adopted by any related Committee;

(d) Non-statutory planning policies adopted by the County Council;

(e) The statutory duty to pay special attention to the desirability  of preserving or enhancing the character or appearance of conservation areas;

(f) The statutory duty to pay special attention to the desirability of preserving a listed building or its setting or any features of special architectural or historic interest which it possesses;

(g) Representations made by statutory consultees and other persons making representations in response to the  publicity given to applications, to the extent that they relate to planning matters;

(h) Planning obligations (given unilaterally or by way of agreement) under Section 106 of the Town and Country Planning Act 1990 (as amended);

9.5 It should, however, be noted that the risk of costs being awarded against the County Council on appeal is not itself a material planning consideration.

9.6 It is the responsibility of officers in preparing reports and recommendations to members to identify the material planning considerations and highlight to members those matters which are immaterial planning decisions.

9.7 Personal considerations and purely financial considerations are not on their own material; they can only be material in exceptional situations and only in so far as they relate to the use and development of land - such as, the need to raise income to preserve a listed building which cannot otherwise be achieved.

9.8 The planning system does not exist to protect private interests of one person against the activities of another or the commercial interests of one business against the activities of another.  The basic question is not whether owners and occupiers of neighbouring properties or trade competitors would experience financial or other loss from a particular development, but whether the proposal would unacceptably affect amenities and the existing use of land and buildings which ought to be protected in the public interest.

9.9 Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless that opposition or support is founded upon valid planning reasons which can be substantiated.

9.10 It will be inevitable that all the considerations will not point towards granting or refusing planning permission.  Having identified all the material planning considerations and put to one side all the immaterial considerations, members must come to a carefully balanced decision which can be substantiated, if challenged on appeal.

10.1 The County Council has a public participation scheme for the Committee which sets out the procedure for members of the public and applicants to speak at the Committee meeting. A copy of this procedure shall be sent to all those who submit written representations to a planning application and can be found at part 6A.
11.1 Members shall recognise that the law requires that where the Development Plan is relevant, decisions should be taken in accordance with it, unless material considerations indicate otherwise.

11.2 Where an environmental impact assessment is required, the Committee shall take the information provided in the report into consideration when determining the application.

11.3 If the report's recommendation is contrary to the provisions of the Development Plan, the material considerations which justify this must be clearly stated.

11.4 Where the Committee decide to adopt the recommendation of the officer, the reasons contained in his/her report will be minuted, together with any additional reasons determined by the Committee.

11.5 Where the Committee is minded to refuse a planning application, contrary to the recommendation of the officer, or the Development Plan, a final decision on the application shall be deferred until the next meeting.

11.6 This deferral of the decision will allow time for confirmation that clear and convincing reasons for refusal of the application can be made, based on material planning considerations. Legal representation to advise members will be provided when the application is reconsidered.

11.7 Where the Committee resolve to grant planning permission contrary to the officer's recommendation, agreement shall be reached at the meeting on the reasons for the decision. These reasons should be clear and convincing and shall be minuted.

11.8 The reasons for the Committee's decision to defer any proposal should also be recorded.

12.1 A site visit may be held where a proposal is contentious or particularly complex, the impact is difficult to visualise or assess from the plans and supporting information or there would otherwise be a substantial benefit from a visit because of the scale or nature of the proposal.

12.2 Site visits are intended to give members of the Committee an opportunity to visit and view the site of the planning application and its locality.  Site visits are not meetings of the Committee and must not be used as an opportunity to discuss the merits of any planning application.  The appropriate place for such discussion is the formal meeting of the Committee.

12.3 When conducting a site visit, members must take care to maintain their impartiality and not to be drawn into discussions about the merits of an application or any representations made by the applicant or objectors at the site.  This is not the purpose of the site visit and may leave the applicant and/or objectors with a distorted impression of a member's objectivity.

Attendance at Site Visits

12.4 All members of the Committee and all substitute members of the Committee will be invited to each site visit.

12.5 The local County Council member will be invited to the site visit. 

12.6 Other county councillors will not be invited on site visits, nor will representatives from other councils or authorities.

12.7 Where the site cannot be viewed from a publicly accessible view point, the applicant will be asked to facilitate access to the site. The applicant will not be invited to attend the site visit. If the applicant attends, this will be managed in accordance with the site visit procedure below.

Procedure for Site Visits

12.8 The Chair of the Committee (or in his/her absence the Vice Chair) is responsible for the conduct of the site visit and his/her decision will be final on any points of procedure connected with the conduct of the site visit. Site visits will be organised in accordance with the procedures set out below:

(a) The Chair will introduce himself/herself and welcome all attendees to the site visit.

(b) The Chair will invite those attending who are not members of the Committee to introduce themselves.

(c) The Chair will explain that the purpose of the site visit is to look at the application site and surrounding area as appropriate and that the application will be considered at a future meeting of the Committee.

(d) The Chair will explain that only the planning case officer will be invited to make a presentation at the site visit, but that the applicant may be asked questions of fact which they may answer.

(e) The Chair will introduce the planning case officer who will outline the application and will circulate an attendance record for completion by invited attendees.

(f) Members will then view the site and the surrounding area as appropriate.  During the site visit, those attending may ask questions of fact of the planning case officer or applicant.

(g) Once the site visit has been completed the Chair will close the visit by thanking all attendees.

13.1 The Audit Commission's Report, 'Building in Quality', recommended that members should visit a sample of implemented planning permissions to assess the quality of decisions. This can improve the quality and consistency of decision-making and help with reviews of planning policy.

13.2 Visits to application sites previously considered by the County Council shall be organised in tandem with visits to current application sites, as appropriate. Briefing notes shall be prepared in each case.

13.3 Attendance at the review site visits shall be restricted to members of the Committee and the local member.
14.1 Political Groups may wish to hold pre-meetings prior to formal meetings of the Committee. It is important to bear in mind that decisions on Planning Matters may only be made at the Committee meeting once all relevant information has been made available for members full consideration and all representations, either for or against the application, have been heard.

14.2  Accordingly it is important to stress that the purpose of any Group Meeting is for Group Spokespersons to feed back to the members of their Group on the Committee (or official substitutes) on relevant issues arising from the Chairman's Briefing with Officers. Group Meetings must not be used to determine how members should vote and members must never use the political whip on a planning matter. This would leave the decision open to challenge and could give rise to a finding of maladministration by the Local Government Ombudsman.