4 ENGAGING WITH ELECTED MEMBERS
4.1 Elected members have a critical role to play in the ultimate decision on a particular planning application. Local councillors have the most frequent involvement in planning decisions, but MPs and MSPs can also be involved, depending on the scale of the application or any controversy surrounding the application.
4.2 Concerns about probity make this a difficult area. Although it is entirely understandable that developers wish to establish the views of elected members as early as possible in the process (and of the planning committee in particular), this is in direct conflict with many of the guidelines on the behaviour of councillors. 10
4.3 Advice in England 11 has suggested that councillors should involve themselves in discussions with developers, constituents, and others about planning cases at pre-application stages, but not at subsequent stages. However, the advice in Scotland does not draw this distinction and suggests that councillors who are involved in making a decision on a planning application should not make any prior statements about the application, e.g.
"Where a councillor has a responsibility - either at a committee or at the Council - for dealing with planning applications, then he or she must not have - or be seen to have - prejudged any application before the proper occasion for deciding on the application, that is when all the material considerations will be before the meeting that will determine the application"'12
4.4 In its detail, the English guidance is heavily caveated, and suggests that councillors should, in their pre-application discussions, preface any discussion with disclaimers, keep a note of meetings and calls and make clear at the outset that discussions are not binding. It too emphasises that councillors should not expect to lobby and actively support or resist an application and still vote at committee or even stay in the room during discussions. 13
4.5 Also in England, the impact of the ground rules set out in Positive Engagement 13, shown below in Table 4.1, is such that developers are unlikely to achieve much certainty from their pre-application discussions with elected members.
Table 4.1: ODPM Guidance to Councillors on discussions with developers
Hold discussions before a planning application is made, not after it has been submitted to the authority
Meet developers alone or put yourself in a position where you appear to favour a person, company, or group - even a 'friendly' private discussion with a developer could cause others to mistrust your impartiality
Preface any discussion with disclaimers; keep a note of meetings and calls and make clear at the outset that discussions are not binding
Accept gifts or hospitality
Recognise the distinction between giving advice and engaging in negotiation
Expect to lobby and actively support or resist an application and still vote at committee (or even stay in the room during discussions)
Structure discussions and involve officers
Seek to influence officers or put pressure on them to support a particular course of action in relation to a planning application
Stick to policies include in adopted plans, but also pay heed to any other considerations relevant to planning
Invent local guides on probity in planning which are incompatible with current guidance - look for commonly held and common sense parallels in other authorities or the principles set out in the national LGA Guidance
Use meeting to show leadership and vision
Encourage positive outcomes
Source: ODPM 'Positive Engagement: a guide for councillors', 2005
4.6 The decision of elected members to oppose an application - including an application which is in line with current policy - is often linked to the strength of opposition to the proposal on the part of the public.
4.7 This is a real difficulty for developers, and one which is unlikely to be fully overcome by pre-application discussions, as it will only be after the pre-application consultations are held, the pre-application consultation report submitted, and indeed ultimately, the objections to the application lodged, that the full force of local opposition to a proposal will be known.
4.8 However, the practice of informing councillors - and allowing them to air their concerns - through periodic issues reports to the Planning Committee and local members appears to represent a helpful way of engaging councillors at the earliest stage possible.
4.9 In the final analysis, though, it is not possible to resolve the tensions between developers' perfectly proper and understandable desire to predict the decisions of elected members, and the probity rules, as they are currently formulated.
4.10 A report to the Planning Advisory Service and ATLAS on the piloting of planning delivery agreements ( PDAs) 14 in England articulated these issues as follows:
"Concerns over probity have led to many requests from planners and developers for further clarification on developer contact with members; numerous planners find the restrictions frustrating and unnecessary and believe that members could usefully be engaged at an earlier stage than is currently allowed in their authority. One planner thought that '"there must be some way of testing the committee's view early, as part of the PDA, so we don't get a surprise later." 15
4.11 It was felt by participants in the pilot project that Communities and Local Government ( CLG) could usefully publish guidelines on the subject. 15
4.12 The majority of Scottish local authorities interviewed for this research expressed reluctance about getting elected members too involved in planning applications at any stage of the process, for a variety of reasons:
- Perception that this would prejudice their views when it came to deciding the application.
- For political reasons - there is strong rivalry between members within a single multi-member ward in some places, and this means that members are keen to score political points from voters by being the first to object to a proposal. It also means that very few members are willing to positively back a proposal when they know their electorate will be against it.
- Many local authorities have a policy of informing all members of a multi-member ward of a proposal, and ensuring that they all have exactly the same information. This means that briefing meetings can be logistically difficult.
- In some areas, members have been known to leak information about proposals that they have been consulted on pre-application, because they want to be seen to be the first to oppose it, and gain support through this. This makes some developers reluctant to discuss applications with members.
- Any information that is leaked about an application at the early stages creates a great deal of work in responding to concerned residents, when proposals are still uncertain. For this reason, some local authorities were reluctant to discuss proposals pre-application, and were also keen to get as much of the detail of a scheme finalised before it became public, so that the public were responding to proposals that were more appropriate for input from other consultees. The new planning system will however require developers to set out clearly what they propose for the required pre-application consultation. Thus, proposals for pre-application consultation with the community for certain categories of planning applications as part of planning reform may reduce this problem.
4.13 On the other side, the developers and planning consultants we spoke to had more mixed views in relation to consulting elected members. They wanted to inform members about their proposals in order to gauge what the response to their proposals might be. Many use PR consultants to gain access to members, and feel that it is possible to have more useful discussions about the local impacts of a proposal before it is in the public domain, and when the plans are still more easily amended.
4.14 The benefits of engaging with members prior to committee meetings were recognised by most of the case study authorities consulted in England. Methods include: regular internal member briefings and training sessions; a system where a summary of all proposals that had involved any pre-application meeting is forwarded to the chair of the planning committee or members for comment and/or questions; site specific members' presentations; the use of concept statements (as discussed in paragraph 3.11 above). Members were not, however, invited to the pre-application meetings themselves. Arranging member sites visits early on in the process can also prevent applications being deferred at committee.
4.15 Good practice generally involves elected members restricting their comments to outlining the current policy position and identifying the issues which are likely to be significant in developing a proposal which meets the Council's aspirations and objectives and/or in determining the application.
4.16 Glasgow City Council informs local members of proposals at pre-application stage in relation to major applications. This is generally limited to briefings, and they do not see it as appropriate for councillors to have full involvement in pre-application discussions, as this is likely to make it difficult for planning officers to give full and frank advice.
4.17 City of Edinburgh Council have developed an effective way of informing elected members early in the process, as they brief neighbourhood partnerships of pre-application proposals, and the members sit on these partnerships. Where community consultation is proposed at pre-application stage, this makes involvement of elected members more straightforward, as proposals are already public, but they need guidance as to their role in this process.
4.18 Many consultees requested further guidance on how best to include members at pre-application stage - guidance which takes into consideration the different political structures in Scotland from those in England, and the impact of multi-member wards, particularly when one member is on the planning committee and others are not. Further training for elected members in relation to their involvement and requirements to stay impartial would also be useful in some areas.
4.19 Although there is no simple solution to the potential conflicts faced by elected members in relation to planning applications, the research has highlighted some potential benefits to be gained from regular briefings (written or verbal) by local authorities to members in relation to major planning applications. There is also a need for clear and up-to-date guidance in this area which specifically relates to Scotland.