A tale of two planning controversies

By Kenneth Carruthers | 13 July 2020

Since first coming into being, the planning system in the UK has thrown up a steady stream of alleged scandals. Typically, critics maintain, these involve dodgy decisions taken by planning officials or councillors with their own financial or personal interests. The reality is almost always much less interesting or corrupt.

A storm in a tea cup or a slam dunk?

This month's excitements involve English communities secretary Robert Jenrick , who has the distinction of featuring not in one but two planning controversies simultaneously. The first involves the alleged hurrying through of a ministerial planning decision to avoid the application of a new policy which would have obliged the developer to pay a very substantial infrastructure levy. No suggestion has been made that this involvement was unlawful - after all, ministers will quite often intervene to speed up planning decisions perceived to be in the public interest, for example, where extensive urban renewal or the provision of affordable housing can be secured on the back of the development - benefits which few would dispute.

But Mr Jenrick's difficulty was in having social contact with the developer shortly before the planning decision was taken and his Party accepting a small donation - chicken feed in the scheme of things - shortly after the favourable decision was taken (the latter apparently unknown to Mr Jenrick). These issues, Mr Jenrick conceded, could give the impression of bias and for this reason the decision to grant consent was reversed.

Contrary to the views expressed by a number of objectors, bias, or the appearance of bias, is a recognised ground of challenge against decisions taken by public authorities. It goes to the core of the operation of the planning system and on the basis of legal advice, Mr Jenrick may well have concluded that better simply to concede the point than to have the matter dragged through court, over many months, where the political damage could conceivably have been much greater.

Some may say that this approach is to be commended. Planning decisions require to be made in what ought to be regarded as a well understood legal context - decisions are to be in accordance with the Development Plan unless material considerations indicate otherwise. The Development Plan has to be properly understood and applied; what are and are not ‘material planning considerations’ is itself subject to an extensive body of case law which aims to identify what matters can be properly taken into account and what cannot. Furthermore, the procedures followed by the planning authority have to observe the rules of natural justice - the decision maker should not have a vested interest in the outcome and everyone has the right to a fair hearing.

The key point, however, is that planning authorities do sometimes get it wrong - and far better that they simply accept their error, agree to the consent being set aside and the process gone through properly than to compel objectors to resort to litigation at considerable cost and delay to all involved (including the beneficiary of the consent). Well advised authorities do deal with contentious decisions in this way. Doing so does not represent the concession of corruption on their part but that the decision taken may be readily set aside by the courts.

Who should have the power to decide?

Mr Jenrick's second difficulty, superficially more mundane, in fact raises another fundamental issue - who do we trust to make planning decisions which can have such a fundamental impact on the people's enjoyment of the property they own?

Mr Jenrick and his wife are reported to have embarked on a number of attempts to obtain planning permission for an extension to their London house. Two previous applications were rejected by planning officers; the third, also opposed by the planning officials in the council, was remitted to the planning sub-committee of Westminster Council which decided to support the application and consent was duly granted.

Should the planning committee have this power you may well ask, or should we leave such matters in the hands of planning officers unsullied by political considerations and the whims of the electorate?

In addressing that question, let us remember that until comparatively recently those who owned property could do with it pretty much what they wished; only in 1947 was the right to develop land vested in the state and the need to obtain the state's permission was required to build on the land, change its use or otherwise carry out other forms of development.

Few decisions taken by public bodies can have such profound financial implications for the applicant or generate such opposition by those who wish no development to be permitted; planning decisions, even for apparently minor proposals, can have a profound impact on those directly affected. Should decisions of such potential importance be delegated to a single, nominated individual in the planning authority - possibly with limited experience or their own baggage of prejudices - or should applicants have the right to have proposals adjudicated upon by a committee of councillors, locally elected and theoretically at least representative of the local electorate and bound by a Code of Conduct which regulates how they should approach the decision-making process?

In practice, planning authorities aim to strike a balance between small, uncontroversial applications which can often be delegated to single officers and those which are subject to substantial local objection (or indeed support) where decisions have to be taken by the planning committee or sub-committee in the interests of local democracy. Critics should bear in mind that remit from the single officer to the body of councillors need not reek of abuse but is the most appropriate means by which planning decisions of any importance or contention should be taken.

Kenneth Carruthers is a partner and head of the real estate litigation team at independent Scottish law firm, Morton Fraser.

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