Minutes:
During the declaration of interests, Councillor Connor reported that he had been advised that on applications F/YR22/0632/RM and F/YR22/0338/F, which he had called in to be considered by Planning Committee as per the Council’s Constitution, and linked applications F/YR22/0217/LB and F/YR22/0218/F that he was pre-determined which he does not agree with and feels that this has been judged harshly.
Members and officers made comments as follows:
· Councillor Mrs French asked for an explanation why officers believe the Chairman is already predetermined as her understanding is that when the Chairman decides to bring an application before Planning Committee the Chairman makes a recommendation and the Head of Planning actually makes the decision so she cannot see why the Chairman is pre-determined? She expressed the opinion that if this is the case the authority to call-in applications to committee will be taken away from the Chairman and the Head of Planning and authority given to the Portfolio Holder for Planning to make the determination as it is not right that the Chairman has to sit back and not vote and take part in planning applications which he sits on committee to do.
· Councillor Benney expressed the view that when this method of bringing applications to the Planning Committee was discussed previously it was decided that the Chairman would decide in conjunction with the Portfolio Holder to recommend applications to committee and it is down to the committee to determine the applications. He made the point that the Chairman is part of the Planning Committee and, in his view, to take him away from the committee he feels is wrong, with people paying good money and a lot of money for their planning applications to be heard and this is impeding the process for these applications to be heard in a fair, open and democratic way and the Chairman should be able to consider these applications. Councillor Benney expressed the opinion that, in terms of pre-determination, everyone who sits on the committee starts with an open mind but by the time the report has been read members all have an opinion of some sort that can be swayed and changed at the meeting, which is the democratic process.
· Councillor Connor stated that he has been undertaking these call-ins for approximately two years and he used to use openness and transparency as his reasons and it is only in the last three months that the terms of calling-in applications has been altered whereby he has had to provide reasons why they should come to committee, not his personal thoughts but for committee to decide whether an application is approved or refused.
· Councillor Mrs Davis stated that her view is that the process was brought in for the Chairman of Planning Committee to be able to call-in applications that were recommended for refusal and when you call them in you are not calling them in as Councillor David Connor but as the Chairman of the Planning Committee so that the wider view of the members of the committee can be obtained and she does not see how this then should then make the Chairman pre-determined.
· Councillor Benney stated that he remembers when this procedure was brought in, with members looking at changing the Constitution to do this and this was an agreement made between the Head of Planning and members, it was agreed that if this was the method and process of bringing applications to this committee and the Head of Planning agreed that he would allow those to be brought forward then the Constitution would not be changed and he feels that this puts members in a position as a member-led Council to changing the Constitution again as, in his opinion, this is not fair on the people members are supposed to represent, they need a fair and full service that is available to them. He feels this service has been running well for several years and it is not right to take the Chairman’s vote away due to the Chairman calling an application in and as a committee member he should be allowed to vote.
· Councillor Sutton stated that he does not 100% agree with the other speakers, he thinks that when the Chairman calls an application in and provides the reasons of openness and transparency it is a lot different to giving a specific reason, which leaves the Chairman open to challenge, the committee open to challenge and thus the Council open to challenge so he feels the advice that the Chairman is being given is good advice and if he was in the Chairman’s position he would be taking it.
· Councillor Connor reiterated that for around 2 years it was accepted that openness and transparent and he did not provide any specific reason why these applications should be called-in but in the last 3-4 months that has changed significantly, he feels that openness and transparency is what all members want to see on the committee and he was asked to give reasons why these applications should be considered by committee against officer’s recommendation. He stated that it is not what he wanted to do but what he has to do to bringing fairness and openness to the residents of Fenland who are paying a lot of money for planning applications and they should get the full service.
· Nick Harding stated that the Constitution was specifically altered at Full Council to facilitate the arrangement whereby applications recommended for refusal under delegated powers went through a consultation process with the Chairman and the Constitution sets out that in the response that the Chairman must give a planning reason why the application has been requested by the Head of Planning to be considered for presentation to committee. He stated that it is correct to say that for a period of ‘openness and transparency’ (without an explanation of where the issue of openness and transparency lay) was accepted as a ‘call in’ reason. However, in light of a number of formal complaints regarding decisions made by committee, where the decision has gone against the officers recommendation, he had reflected on whether simply accepting the phrase, ‘openness and transparency’ was compatible with the requirements of the constitution and he had concluded that it was not. Nick Harding stated that since the change to properly implement the requirements of the constitution, he has given the Chairman the opportunity to explain where the issue of openness and transparency lies, because that can legitimately be a planning reason and if it is not known where the issue of openness and transparency lies, then on what basis is he making a decision on whether or not to allow an application to come to committee. He added that if there was a formal complaint made that asked where the issue of openness and transparency lay, the Head of Planning said that he would not be able to provide an answer, unless it was given by the Chairman. Nick Harding stated that with regard to the issue of ’predetermination’, the Chairman b can give a planning reason using words in a way that do not identify what his personal opinion is on that application. He added that as soon as a personal opinion is expressed in that reason, such as ‘ I believe that planning permission should be given for X because of A, B and C, then this is virtually the same as a ward councillor who sits on the committee, responding to an everyday planning consultation who would be considered to be ‘pre determined’. Nick Harding explained that this is why the advice has been given to the Chairman in relation to the meeting today, but the decision on whether or not the Chairman wishes to accept that advice is entirely up to the Chairman.
· Stephen Turnbull, the Legal Officer, stated that one of the main principles of probity in planning is developers, stakeholders and the broader public being reassured that members when they are at committee approach applications with a genuinely open mind and it may be that individual members in their own heads do not have an open mind but there is the need to make sure that watching members of the public and applicants know that applications will be dealt with impartially by members who have not made up their mind before they come to committee, hear the debate, hear the representations, advice from officers and then make their decision, which is the correct way for it to happen. He made the point that if his attention is drawn to a member who said in advance of a committee meeting words to the effect of I don’t like this application or I do like this application it his duty to say to that member you are pre-determined and if you go ahead and vote and a member of the public observes what is going on they may well conclude that the committee has already made its mind up and what is the point of having a Planning Committee they might say if members have already decided which way they are going to vote. Stephen Turnbull stated that the proper advice that he has to give to the Chairman or any other member is that you can express your views in whatever way you want but if you are sitting determining a planning application you cannot in the run up to the application express views which demonstrate that you have already made up your mind. He made the point that this is the principle at stake and is embedded in Local Government advice and the legal framework that is operated, therefore, the Constitution requires the Chairman to give planning reasons and if those planning reasons involve an opinion on the merits of an application one way or another, the right approach from him as Legal Officer is to say that the Chairman cannot take part in that debate to reassure the public and other stakeholders that members have not already made up their minds.
· Councillor Marks expressed his confusion and queried that as a ward councillor if someone approaches him and say they have a problem with planning he will ring the Chairman and say is there any possibility that this can be called-in giving a reason and if the Chairman then puts the reason in writing then the Chairman cannot take part but has had nothing to do with this at all so how can the Chairman be pre-determined if he has been given a list of issues that someone is complaining against and stated this cannot happen. Stephen Turnbull responded that in this situation the Chairman simply verbatim reports to officers that this individual has expressed views, that is not the Chairman expressing a view but just passing it on to officers and the same can be applied to can this be called-in as this individual has expressed these views. He stated that what needs to be avoided is the member introducing his own opinions in advance of the planning meeting. Councillor Marks questioned that planning officers can give their own opinions? Stephen Turnbull responded that is correct as they write the reports but members make the decisions and members should not be expressing any view.
· Councillor Connor stated that there are 3 applications that he has made some sort of comment on to bring these applications to committee due to an officer’s recommendation of refusal and the issue is not going to be resolved at this meeting with Councillors Benney and Mrs French indicating that they might want to change the Constitution but if this does not take place he may need to get legal advice on what to say if an application needs to be called into Planning Committee that does not implicate him as pre-determined which he will certainly do in the future. He stated that this time he will be following officer advice and will hand over to Councillor Mrs Davis to chair those applications.
· Councillor Mrs French referred to the Chairman stating that up to 3 months ago everything was working fine and this has now changed which she feels has put undue pressure on the Chairman and as Deputy Leader of the Council she is going to recommend to the Leader of the Council that the Constitution be changed for the Portfolio Holder for Planning to make the decisions taking the burden away from the Chairman.
· Councillor Connor stated that he is more than happy with this as it does take up a lot of his time.