Draft Local Government (Organisation and Standards) Bill Appendices to the Minutes of Evidence - First Report


Note by Mr Andrew Whetnall, Director for Local Government, Department of the Environment, Transport and the Regions

  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 neighbourhood.

  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 party.

  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 investigate.

  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


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