Note by Mr Andrew Whetnall, Director for
Local Government, Department of the Environment, Transport and
When I appeared before the Committee on 17 June,
I undertook to write with further information on matters relating
to propriety and planning.
This arose on Lord Marlesford's questions, 80-81
in the transcript. His interest was in the Government's position
on recommendation 38 in the Nolan Report (The Committee on Standards
in Public Life, Standards of Conduct in Local Government, Cm 3702-I)
concerning the handling of local authorities' applications for
planning permission on their own land. The Government's observations
on this are set out in the Green Paper Modernising Local Government:
A New Ethical Framework, in Annex D), and not in the White Paper
as I mistakenly recalled. The following reflects the advice of
colleagues in the planning directorate of my Department.
Ministers recognise that particular care needs
to be taken in the handling of local authorities' own planning
applications. The power of local planning authorities to grant
themselves planning permission is subject to a number of safeguards.
The procedures governing development by local authorities are
contained in the Town and Country Planning General Regulations
1992, with guidance in Environment Circular 19/92. The general
principle underlying these regulations is that local authorities
must make planning applications in the same way as any other person
applying for planning permission. The proposals must be advertised
and applications may not be determined by a committee or officer
responsible for the management of the land or buildings concerned.
The public cannot be excluded from committee meetings at which
local authority development proposals are to be discussed.
Local authority development proposals, like
those of others applying for planning permission, must be decided
in accordance with the development plan unless material considerations
indicate otherwise. In reaching their decisions, local authorities
must take account of relevant objections by local residents. Only
genuine land use considerations can be material, for example the
layout, siting and design of the proposal and its impact on the
If it is intended to approve such a proposal,
and it is not in accordance with the development plan in force
in the area, the application must be notified to the Secretary
of State so that he can consider whether to call in the application
for his own determination.
I mentioned that part of the reason why planning
complaints come to the Ombudsman, is that there is no direct appeal
for third parties who object to planning permissions. It is the
responsibility of local planning authorities to act in the general
public interest when determining planning applications. As noted
above, applications must be decided in accordance with the development
plan, unless material considerations indicate otherwise. Such
considerations can include views expressed by local residents
and other third parties. A third party right of appeal in the
planning system would cause unreasonable delays for acceptable
applications. When the Select Committee on the Environment considered
this issue in the mid-1980s, they concluded that a third party
right of appeal would not be appropriate for the planning system.
It is essential for those who may be affected
by a proposal to be made aware of it and to have the opportunity
to have their say on its impact. As such, there are opportunities
built into the system for third parties to comment on local plan
policies and to be notified of specific planning applications.
There are several stages to the plan process, and the public have
the opportunity to comment or object at a number of these points.
Local people therefore have the chance to influence the policies
which will steer the authority's planning decisions.
There is a minimum requirement that all applications
for planning permission are publicised by site notice or by notification
to neighbours. Any interested parties then have 21 days to make
their comments. During this time the authority cannot determine
the application. Any relevant comments made must be weighed up
along with all other factors when the authority makes its decision.
If a local planning authority propose to grant
permission for an application which departs from the development
plan (a "departure") they must advertise it and take
account of any representations received before reaching a decision.
Some departures (in addition to the local authority development
proposals mentioned above) must also be notified to the Secretary
of State to give him the opportunity to call them in for his own
decision, although this power is used sparingly. Where applications
are called in to be decided on the basis of a report by an independent
Planning Inspector after a public inquiry. These arrangements
offer an additional safeguard to third party interests.
For the applicant, it is important to have a
firm decision within a reasonable time of making the application.
One of the reasons the plan-led system was introduced was to give
developers greater certainty. To have a third party right of appeal
would create delay and uncertainty, even though the developer
had satisfied the local authority that their proposals were acceptable.
Ministers feel that the current arrangements maintain a correct
balance between the rights of the applicant and those of the third
In some circumstances, it may be possible for
third parties to challenge a planning decision in the courts on
the grounds that it is wrong in law, for example if the council
did not follow the correct procedures. And third parties who feel
that they have suffered injustice as the result of maladministration
of planning processes can ask the Local Government Ombudsman to
I should add that the Organisation and Standards
Bill is not intended as a vehicle for substantive changes in planning
law, although complaints that councillors had failed to observe
the Code on Members Conduct while participating in a planning
function would be open to proceedings under the new ethical framework
set out in the Bill.
13 July 1999