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/

 

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Office of National Statistics data show Guildford Borough Council’s housing numbers are too high

The Office of National Statistics (ONS) has just published new population projection data for the whole country (yesterday, 27/2/2015), which can be found here:

http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-335242

National Planning Policy Guidance was updated yesterday too, to reflect the fact that this ONS projection, as the most up to date assessment of future housing growth, should be the basis of assessment of housing need – see the new guidelines here:

http://planningguidance.planningportal.gov.uk/revisions/2a/016/

The Office of National Statistics estimates that the population in Guildford borough will grow by a total of 21,600 people between 2012 and 2031.

We have reviewed housing need, taking into account outstanding planning permissions, because these clearly affect the number of homes that will be needed.

Our provisional calculation suggests that an annual housing provision below 400 homes per annum would meet Guildford’s housing needs, including that of any incoming population.  This number is before any adjustment for constraints, such as Green Belt, infrastructure, congestion and air quality.

Why is Guildford Borough suggesting that we need 816 new homes per annum- more than double this?

 

Brownfield first is now government policy

We have had a major change in government policy – for which we should be grateful, I think – but we need to make sure that this is not just tokenism.

George Osborne gave a major speech at the Mansion House – full text is here:

https://www.gov.uk/government/speeches/mansion-house-2014-speech-by-the-chancellor-of-the-exchequer

Scroll down the speech to find this:

“We’ve got the biggest programme of new social housing in a generation; we’re regenerating the worst of our housing estates; and we’ve got the first garden city for almost a century underway in Ebbsfleet.

Now we need to do more. Much more.

We have beautiful landscapes, and they too are part of the inheritance of the next generation. To preserve them, we must make other compromises.

If we want to limit development on important green spaces, we have to remove all the obstacles that remain to development on brown field sites.

Today we do that with these radical steps.

Councils will be required to put local development orders on over 90% of brownfield sites that are suitable for housing.

This urban planning revolution will mean that in effect development on these sites will be pre-approved – local authorities will be able to specify the type of housing, not whether there is housing.

And it will mean planning permission for up to 200,000 new homes – while at the same time protecting our green spaces.

Tomorrow, Boris Johnson and I will jointly set out plans for new housing zones across London backed by new infrastructure, so that we see thousands of new homes for London families.

And we’ll take the same approach in the rest of the country; with almost half a billion pounds of financial assistance in total set aside to make it work.

Now I suspect there will be people who object to new building, even on the brownfields of our cities.”

This is good news. It was followed by a statement by Eric Pickles, Secretary of State, who gave this press announcement:

https://www.gov.uk/government/news/government-initiatives-to-help-build-more-new-homes-on-brownfield-land

Communities Secretary Eric Pickles said:

“We’re determined to make the very best use of derelict land and former industrial sites to provide the homes this country desperately needs in a way that protects our valued countryside. By ensuring commitments to housing development are in place early and having dedicated housing zones, building becomes, quicker and easier for homebuilders, businesses and councils.”

He also was quoted in the Daily Telegraph on 14 June 2014 as saying “We’ve always been a green and pleasant land and we must stay that way, prerving the best of our countryside  and other green spaces…we’ve also been facing a serious housing shortage in this country, and we’ve got to increase supply in line with demand.  I’m determined that we rise to that challenge without building unnecessarily on undeveloped land.  The way to do that is to use brownfield better”.

Nick Boles letter to the Planning Inspectorate 3 March 2014

Nick Boles letter-1

This is the letter from Nick Boles to the Planning Inpectorate which states “a Green Belt boundary can be altered only in exceptional circumstances and reiterates the importance and permanence of the Green Belt.  The special role of Green Belt is also recognised in the framing of the presumption in favour of sustainable development, which sets out that authorities meet objectively assessed needs unless  specific policies in the Framework indicate that development should be restricted. Crucially, Green Belt is identified as one such policy.”

It is also made clear that Mr Boles expected that this advice would be heeded by the Planning Inspectorate.

Some commentators have instanced the reply from the Planning Inspectorate, and the second letter from Mr Boles, as indicating a withdrawal from this clear statement.  This is not the case- the second letter makes it clear that the NPPF still applies.  But then, the statement above is actually a quotation from the NPPF – see the GGG open letter to councillors dated 25 March 2014 which makes that clear (link here ). So of course it isn’t rejecting the NPPF.

Mr Boles’ statement clearly states that if policies in the Framework (especially Green Belt) indicate that development should be restricted, there is no obligation to meet objectively assessed needs. This is the opposite of the statements currently made by the planning officers in the summary to the Executive for the meeting on 4 June 2014.  We would suggest that they reconsider this advice, which seems to be in contradiction to clear ministerial guidance.