Planning Committee: one rule for us, another rule for SeaChange…

March 20, 2015 by combehavendefenders

When the planning application for the Queensway Gateway road was put in, we contacted various councillors on the planning committee to ask if we could meet with them to explain our views on the project.  The answer was a very firm no.

‘Totally inappropriate’ for councillors to meet objectors…

It would ‘be totally inappropriate’ (the chair, Richard Street), ‘not be appropriate’ (the vice-chair, Phil Scott) and would ‘rule me out of sitting at that meeting’ (Castle ward councillor Judy Rogers).  They cited the requirement that they be seen to be impartial at all times before the actual meeting where the decision would be made, and said they could not meet with those on either side of the argument.

But fine for SeaChange to meet councillors

Other planning committee councillors, however, were rather less scrupulous.  SeaChange Sussex, the applicant, held a ‘briefing meeting’ about the scheme for councillors last September.  In its ‘Queensway Gateway consultation report’, SeaChange says (4.6):

‘Councillor meetings: On 23 September, SeaChange briefed councillors on the proposals, responded to their questions and listened to their views. Attending the session at the Sussex Exchange were Cllrs John Hodges, Bruce Dowling, Liam Atkins, Dominic Sabetian, Kim Forward and Peter Pragnell. Sea Change also separately briefed Cllr Michael Edwards. A brief summary of discussion at these meetings is included in Appendix 1.’

‘Overwhelmingly positive’ views

If we turn to Appendix 1 we find this: ‘

Summary of councillor feedback: The councillors’ views in the consultations meetings were overwhelmingly positive. They supported the scheme for the access it would provide to the employment land and for being a key element in a package of measures to improve the traffic flows in the area, particularly on The Ridge.’

One of the councillors who attended the meeting – Bruce Dowling – is on the planning committee, as is Mike Edwards who received his own private briefing from SeaChange.

Probity in planning
Whilst this kind of behaviour is clearly not ethical, whether it is allowed is another question.  The Local Government Association produces a booklet called ‘Probity in planning for councillors and officers’ which addresses precisely these questions of how councillors should (or should not) be involved in the planning process.

Predetermination?
According to Probity in Planning:

‘Clearly expressing an intention to vote in a particular way before a meeting (predetermination) is different from where a councillor makes it clear they are willing to listen to all the considerations presented at the committee before deciding on how to vote (predisposition). The latter is alright, the former is not and may result in a Court quashing such planning decisions…. If a councillor has predetermined their position, they should withdraw from being a member of the decision-making  body for that matter.’ (emphasis added)

Whilst the ‘overwhelmingly positive’ views cannot be pinned directly onto either of the planning committee members who attended the SeaChange briefings, there is no mention in the report of any countervailing views, so it is reasonable to suggest (backed up by their performance in the planning committee meeting) that Bruce Dowling and Mike Edwards did in fact express positive views.  If this is the case, this would constitute predetermination, and in that event they should have withdrawn from the consideration of the application.

Lobbying
The same document talks about lobbying.  We were told that it would be ‘totally inappropriate’ for us to meet with planning committee members before the vote, even though we were not asking them to express any opinion, merely to listen to what we had to say.  In fact, there is nothing to suggest that planning committee members cannot meet with concerned residents.  Probity in planning has this to say about it:

‘Lobbying is a normal part of the planning process. Those who may be affected by a planning decision, whether through an application, a site allocation in a development plan or an emerging policy, will often seek to influence it through an approach to their ward member or to a member of the planning committee. As the Nolan Committee’s 1997 report stated: “ It is essential for the proper operation of the planning system that local concerns are adequately ventilated. The most effective and suitable way that this can be done is through the local elected representatives, the councillors themselves”‘

It goes on to say that:

‘As noted earlier in this guidance note, the common law permits predisposition but nevertheless it remains good practice that, when being lobbied, councillors (members of the planning committee in particular) should try to take care about expressing an opinion that may be taken as indicating that they have already made up their mind on the issue before they have been exposed to all the evidence and arguments.’

In other words, there appears to be nothing to prevent planning committee members from listening to the views of objectors: all they are advised not to do is to express an opinion.

Public record
Whilst there is no prohibition on councillors meeting with the applicant, as happened in this case, Probity in planning sets out a number of guidelines for such meetings.  The most important of these is that planning officers should be present at all such meetings, and:

‘a written note should be made of all meetings…. An officer should make the arrangements for such meetings, attend and write notes. A note should also be taken of any phone conversations, and relevant emails recorded for the file. Notes should record issues raised and advice given. The note(s) should be placed on the file as a public record.’

 Failure of the democratic process

Whether these guidelines were followed in this case, we don’t know (we’ve put in a Freedom of Information request to try to find out).  What we do know is that objectors were denied access to planning committee councillors to express their views, whilst SeaChange was allowed to hold private briefings for them. Two councillors who may well have predetermined their position on the road did not recuse themselves from the decision meeting.

At the very least, this is a miserable failure of the democratic process.  At the worst, it is a clear breach of duty by those particular councillors.  Either way, it stinks.