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Opinion: Guidelines Must Allow Democratic Debate – Not Create A Lawyer’s Paradise
Published on: 12 Apr, 2015
Updated on: 17 Apr, 2015
The Plain English Guide to the Localism Act was published in 2011
By Gordon Bridger,
Hon Alderman Gordon Bridger, a former Lib Dem councillor, gives his view on the “predetermination” issue.
Guildford Borough Council’s (GBC) advice or instruction to future councillors on the vexed matter of “predetermination” makes it clear that members of the Planning Committee should not compromise their position by ruling out planning applications before they are made.
The consequences for the Guildford Greenbelt Group (GGG), whose main purpose is to stop any green belt development, could be lethal. Either they will have to say there could be exceptions or accept that any of their elected candidates would not be able to participate on the application.
This, of course, is very convenient for those political parties who accept that some marginal developments are likely to be justified in the green belt, something I personally support.
But I think this whole predetermination issue is undemocratic and that a planning bureaucracy has introduced terms such as “predetermination” and “open mind “which are capable of many interpretations and enable planning lawyers to dictate to councillors, and even threaten them with penalties, if they ignore their interpretation.
To quote from the governments own, “A plain English guide to the Localism Act”:
“These rules were developed to ensure that councillors came to council discussions – on, for example, planning applications – with an open mind. In practice, however, these rules had been interpreted in such a way as to reduce the quality of local debate and stifle valid discussion. In some cases councillors were warned off doing such things as campaigning, talking with constituents, or publicly expressing views on local issues, for fear of being accused of bias or facing legal challenge.
“The Localism Act makes it clear that it is proper for councillors to play an active part in local discussions, and that they should not be liable to legal challenge as a result. This will help them better represent their constituents and enrich local democratic debate. People can elect their councillor confident in the knowledge that they will be able to act on the issues they care about and have campaigned on.”
Precisely.
There is really a simple solution and that is to abandon terms such as “predetermination” and “open minds” and simply require that “planning councillors should be guided by planning policies and planning regulations in making decisions” .
This was the case in the past and we did not have to censor what we were likely to say as we were aware of the guidelines and restrictions placed upon us. Councillors who were unaware would be corrected but there was no threat of penalties if they dared open their mouths beforehand.
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Responses to Opinion: Guidelines Must Allow Democratic Debate – Not Create A Lawyer’s Paradise
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"Found any?" - "Nope, it all looks green to me!" (See Opinion: The Future is Congested, the Future is Grey)
Jim Allen
April 12, 2015 at 8:11 pm
According to my web research councillors still need to be careful. By no means does the abolition of predetermination remove the legal obligation that planning applications should be determined in accordance with the development plan, “unless material considerations indicate otherwise.” And despite the removal of predetermination councillors must still be open minded in determining planning applications.
The difference is that the fact that they may have campaigned against a proposal will not be taken as proof that they have a closed mind. 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.
At the decision-making meeting, councillors should carefully consider all the evidence that is put before them and must be prepared to modify or change their initial view in the light of the arguments and evidence presented. Then they must make their final decision at the meeting with an open mind based on all the evidence. Such a fair hearing is particularly important on quasi-judicial matters, like planning or licensing.
Any question of prejudice aside, Lord Greaves may have had a point. For some local authority lawyers have indeed been unduly cautious in advising on bias and predetermination and have in the process managed to stifle legitimate democratic expression. However, the common law of bias and predetermination in local democratic decision-making had in fact already matured to what is its current sensible and highly context-sensitive position.
But whilst section 25 of the 2011 Act was intended to replicate the common law status quo, many lawyers (including Lord Pannick) have expressed concerns that it does, in fact, go further. As Lord Pannick put it in the debate: “What it actually does is amend the existing common law in a way that will prevent real cases of predetermination being brought and succeeding”.
A member in the discharge of his or her democratic functions within a political environment should not be afraid to express views, even strong views provided that they remain as views i.e. open to argument. A member should consequently be careful not to convey an impression in the mind of a reasonable person before the decision in question that they have already made up their mind – in other words effectively taken the decision in advance, come what may.
In this political and democratic context, the evidential threshold is quite high for a finding of apparent or actual bias or predetermination. However, the more a member gives an impression (by way of public statements, articles, web material, interviews or otherwise) that his or her part in the decision is a foregone conclusion (i.e. predetermined) the more likely this is still to be able to surmount the high evidential threshold and provide the ‘clear pointers’ to an already determined decision.
So, whilst members should not be afraid to conduct their political and democratic role vigorously, they need to ensure that they are (and are seen to be) taking part properly and conscientiously in decision making processes, having proper regard to the advice and material before them in the decision – meeting and what is said in the relevant debate and discussion.
Jules Cranwell
April 13, 2015 at 7:49 am
On this basis, the daft Local Plan is illegal, and must be scrapped, as the Tory led plan ‘pre-determined’ the outcome as early as the Issues and Options phase, by proposing to take 16 of 24 villages out of the green belt.
Jules Cranwell
April 13, 2015 at 9:19 am
Advice below from Brandon Lewis, Minister for Communities and Local Government, makes it crystal clear that ‘pre-determination’ is a non-issue, whatever the Tories are trying to whip up. [Click here to view advice.]
Paul Spooner
April 13, 2015 at 1:13 pm
There is a fundamental misunderstanding by some towards personal and/or political/party position in generic terms and a specific position on a planning application.
Stating ‘save the green belt’ or ‘build over everything’ in generic terms is not pre-determination, whereas signing a petition, for example, against a particular planning application does leave the signee at risk of ‘pre-determining’ an application.
Avoiding “East of the Borough”, a good example is the Bewley Homes planning application for 400 homes south of Ash Lodge Drive in Ash where the Council Leader was unable to vote as he had signed a petition organised by Ash Residents Association against the application. He had “pre-determined” his position.
Concerns raised by Guildford Borough Council are not aimed just at the Guildford Greenbelt Group, they apply equally to all councillors.
Susan Parker
April 14, 2015 at 7:05 am
Brandon Lewis has made it clear that “gold plating” of policy is inappropriate and not in accordance with UK law.
By law politicians are allowed to campaign on planning matters, including on specific issues, provided they keep an open mind when it comes to the actual planning decision if new information is provided. Guildford Borough Council chooses to interpret the rules more aggressively than the law requires or allows,
Jules Cranwell
April 14, 2015 at 7:25 am
In my view, he [Cllr Mansbridge] did not need to vote. Nobody else’s votes seem to count so the development has stopped anyway.
Gordon Bridger
April 16, 2015 at 7:31 am
Jim Allen’s well intentioned comments illustrate what a ridiculous tangle we have got into by the introduction as such vague confusing terms as “predetermination” and “open minds”.
These terms, well intentioned but vague, should apply to every decision – not just planning. But what is more serious is that planning bureaucrats imply that anyone transgressing them could be penalised.
As a result we had a ludicrous situation in the council when 23 planning councillors had to leave the chamber as their colleagues were going to debate a policy on a site on which they would have reach a decision.
Now they are even reluctant to comment on the fifteen storey Solum scheme for the station as it might prejudice their position on the planning committee. And, if the Guildford Greenbelt Group manifesto states that none of the 89 per cent of Guildford should be built on, a lawyer is almost certain to tell them they are breaking the predetermination requirement – or that they must consider their position if they wish to ignore penalties (if the manifesto had exceptions and stated that 88.5% should not be built upon – a policy I would support – they should be OK).
The localism advice and the minister’s endorsement are fine – but until they clarify the means to achieve the objectives they will not be achieved.
Is there a way out? Yes as I have previously outlined, we should revert to the system which applied until a few years ago which required the Planning Committee to be guided by the “policies and regulations laid down for the approval of an an applications”.
Such issues a density, height, spacing, public views and design were all planning requirements which had to be the basis for approval. Since anyone on the Planning Committee could, or should, be aware of them, one could predetermine one’s decision before going to committee.
We were never threatened with penalties if our views were not accepted.
Planning bureaucrats may object – but who is meant to be in charge?
I know someone will say that our planning guidelines are out of date. They are right. That’s why we need urgently a new plan.
Neville Bryan
April 16, 2015 at 5:21 pm
How much more undemocratic can you be than suggest this predetermination nonsense?
The fact that these comments seems to emanate in part from council officers posting this on the web site (see letter sent from head of governance sent to councillors) – makes this even worse – is this even allowed? It could affect the election process.
Do they really want to take voters and residents out of the discussion and leave it to the offshore and university property developers to shape our borough?
Luckily the Localism Act allows people to campaign and be elected on issues which affect the communities, citing as it does that people should know what they are getting when they vote.
Nothing is more important to the people of Guildford right now than looking at the composition of the Local Plan. Last July 7,000 People gave some very strong responses to the consultation. That is 7,000 people of 100,000 electorate – give or take a few.
Most candidates are being asked on the doorstep – I know I am – what are the developments they support. How many are saying nothing due to “predetermination”? Look at the local party manifestos.
Do we really want a re-run of 2011 where the Conservative party promised to protect the Greenbelt, and two years later proposed to build 10,000 homes on it, based on a housing needs as set out in a Strategic Housing Market Assessment (SHMA) report which remains completely unexplained?
The Local Plan determines policy not planning approvals. It sets the planning strategy for the borough. To even suggest that a political party cannot represent those people in policy and principle in the formation process of those policies, is in my view profoundly undemocratic, something the Localism Act directly addresses in favour of voters.
I am representing GGG because my ward residents who responded to the GBC consultation needed a voice; a voice denied them in the local plan presented so far. I know others of my party are doing the same.
Far better that GBC Councillors and Council represent their constituents, and fight the challenges that come their way, than allow Guildford to be turned into a metropolis and submit to behind closed doors to become an undemocratically nominated “business hub”, with all that entails (and with all respect that place) “Croydon” comes to mind.
Nevill Bryan is a Guildford Greenbelt Group candidate in Worplesdon ward.