What is “pre-determination” in relation to planning?

Some other candidates for some other parties are suggesting that it isn’t worth voting for GGG because of “predetermination”.

They have suggested the fact that we have manifesto commitments, or that we have campaigned in relation to various matters, might mean that GGG candidates would not be able to vote on planning issues if elected.

Frankly, this isn’t true.  Is this dirty tricks? It might seem so.

As a result, it seems worth exploring what the law actually says here and what political candidates are allowed to say, and the views that they are allowed to hold, in relation to planning matters.

There are some useful extracts which is relevant in this context:

http://democracy.leeds.gov.uk/documents/s84153/Appendix%201%20-%20Draft%20briefing%20note%20on%20bias%20and%20predetermination.pdf

This is from another local authority and gives guidance to actual councillors.  Once a councillor is elected, it is important to be sure that the councillor can demonstrate that they have an open mind on a particular planning proposal, and will weigh that issue in the light of the evidence shown to them, especially the evidence that will be disclosed and discussed at the meeting where decisions are taken.

In particular, note the following extract here:

“Section 25 Localism Act 2011

Section 25(2) of the Localism Act 2011 provides that a decision maker is not to be taken to have had, or to have appeared to have had, a closed mind when making a decision just because –

  1. (a)  the decision maker had previously done anything that directly or indirectly indicated what view the decision maker took, or would or might take in relation to a matter, and
  2. (b)  the matter was relevant to the decision.

The section makes it clear that if a councillor has given a view on an issue, this, considered in isolation, does not show that the councillor has a closed mind on that issue. So, the mere fact that a councillor has campaigned on an issue or made public statements about their approach to an item of council business does not prevent that councillor from being able to participate in discussion of that issue and to vote on it.”

It also notes:

“The leading case on local authority bias and predetermination ((R(Lewis)v Persimmon Homes Teeside Ltd [2008] EWCA Civ 746)  acknowledges the difference between judges sitting judicially and councillors making decisions in a democratic environment.”

It’s also worth noting the specific advice given by Brandon Lewis MP, Minister of State for Housing and Planning at the Department for Communities and Local Government, in  a letter discussing pre-determination. This noted that the previous administration had fettered freedom of speech in local government but that has now changed.  The letter may be read in full here:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/200496/Letter-Predetermination-March2013.pdf

This reiterates the substance of the advice in relation to Section 25, noting

a councillor is not to be regarded as being unable to act fairly or without bias if they participate in a decision on a matter simply because they have previously expressed a view or campaigned on it. The effect is that councillors may campaign and represent their constituents – and then speak and vote on those issues – without fear of breaking the rules on pre-determination

“However, before the meeting, councillors may legitimately be publicly pre-disposed to take a particular stance. This can include, for example, previously stated political views or manifesto commitments.

This is detailed advice from a QC on this matter:

http://www.11kbw.com/uploads/files/LocalismActSection25PredJS.pdf

“How does section 25 compare with the approach that the courts have taken without Parliamentary assistance? In fact, the comparison is a pretty close one. The general trend of court decisions in this area has been to recognise that local councillors really are politicians, and that they are required and expected to hold political opinions, particularly on matters of local controversy. The courts have also recognised the potential for rough and tumble in local politics, and to try where possible to distinguish this from genuine predetemination…

For example, the judgment of Collins J in R v (Island Farm Development Limited ) v Bridgend CBC ([2006] EWHC 2189 (Admin), [2007] BLGR 60). This concerned a refusal by a local authority to sell land to the claimant, who wished to develop it. There was strong local opposition to the claimant’s proposal. There had been a local election in which some members who were subsequently elected, and who decided not to sell the land to the claimant, had made the land sale a manifesto issue. Other  members had campaigned against it. The Judge was clear that members are entitled to take into account policies they believe in especially if they were part of a manifesto.

Here is another legal opinion:

http://www.39essex.com/docs/articles/biaspaperapril2010.pdf

which quotes a judge’s comments:

elected members who would be entitled, and indeed expected, to have and to have expressed views on planning issues. When taking a decision councillors must have regard to material considerations, and only to material considerations, and to give fair consideration to points raised… They are not, however, required to cast aside views on planning policy they will have formed when seeking election or when acting as councillors. The test is a very different one from that to be applied to those in a judicial or quasi-judicial position.”

 

Here are other blogs discussing the issue:

http://www.localism-agenda.com/2012/01/abolishing-predetermination-what-it-really-means/

 

Advertisements

Please leave a reply- we value your thoughts

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s