A little known change to Standards Commission advice has led to Edinburgh Council carrying out a review that could affect the consideration of planning applications across Scotland. Last week Edinburgh avoided considering applications where local members were seeking to make a representation.
The revised advice was issued in December 2011 and has had a positive impact on the scrutiny of ethical issues in all Scottish Councils.
At that point, the advice recommended two key changes to the way in which planning applications are considered:
- Where a councillor makes representations on a planning application, the advice is that councils should afford equal opportunity as agreed by the council to any parties wishing to make representations on the application.
- The advice also states that after you declare an interest and make a representation, the councillor should then ‘retire fully from the meeting room’.
These changes could dramatically change the way that planning applications are considered. Theoretically, if a councillor now makes representations for (or against) an application, councils should now allow others to express an alternative view. The nature of debate on planning applications could now shift completely, because generally the majority of representations made by councillors are representations against development proposals.
In addition, the requirement for elected members to leave the room could be equally profound. Some councils allow local members to be part of the consideration of planning applications. This practice, and the tradition of councillors taking a direct part in the consideration of applications, may be about to change. It is not clear what the legal implication may be for applications that have been determined since December 2011, but it is not expected to be profound.
Edinburgh’s planning committee met last Wednesday and agreed to receive an early report on the issue, such is the urgency to have new procedures in place. A significant number of councils already have procedures in place that are consistent with the new guidance, but others are now expected to review their procedures.
To view the relevant section of the Standards Commission’s advice, click here and read from section 7.9
Councillors can actually meet with developers – shock horror!
It is a common frustration from many developers that councils and councillors often refuse to meet to discuss their proposals. At times, developers with developments worth hundreds of millions of pounds of investment, and hundreds of jobs, find doors closed at the Council Chambers. Often, the councillors ‘Code of Conduct’ is misquoted as a justification for a refusal to meet. Indeed recently, one senior council officer in a large urban council even rebuked a developer for writing to local members on an application. This on the spurious grounds that it could lead to ‘a members eligibility to participate in any discussion or debate on the matter being prejudiced’. This is of course complete nonsense, but it is nonsense that has wide currency in some councils. So what should you do if your request to explain your proposal is refused on these grounds?
The key sections of the Code of Conduct to quote back to counter any errant advice are section 6 and 7:
- Section 6 states: (A councillor) may be lobbied by a wide range of people including individuals, organisations, companies and developers. As a general note, it is an essential element of the democratic system that any individual should be able to lobby the council or councillor.
- Section 7.14 of the code states that ‘it is entirely appropriate for councillors including those who will have a decision making responsibility, to make known to planning officers what representations from constituents and prospective developers they have received on a planning application, to attend public meetings/events (including those relating to statutory pre-application consultation).
The Code of Conduct could not be any clearer. Councillors should meet those with an interest in a development because ‘it is an essential element of the democratic system’. So why don’t they? Well there are a variety of reasons, but mostly it is a combination of a lack of understanding and a lack of confidence – particularly for new elected members. Also, Councillors who are pro-development are often attacked, and their integrity can often be challenged, especially through unregulated online blogs. For many, it is easier not to bother to meet. In some instances, officers prefer it that way, as it gives them far greater certainty in the planning system and committee decisions. In some cases officers are genuinely concerned that Councillors may prejudice their ability to participate in a planning committee decision.
Remember though, councillors can meet, and it is explicitly stated in the Code of Conduct that they should meet.
PPS is happy to advise on any aspect of your development proposal. With extensive experience of complex development issues, PPS is uniquely placed to help secure investment and development.
Written by Donald Anderson