Friday, 30 May 2014

Will changes to Brent's Planning Code address the real issues?

In addition to the constitutional changes already covered on Wembley Matters there are also recommendations for revisions to the Members' Code of Conduct and Licensing and Planning Codes of Practice.

Planning decisions in Brent have been controversial not least because departmentally it comes under the same Director and Lead Member as Regeneration and Growth.  Andy Donald, Strategic Director of Regeneration and Growth has expressed the view that belief that the local authority should have the role of smoothing the way for developers.

Fiona Ledden's report states:
The aspect specific to planning identified as benefiting from inclusion in the Code was the position where the Council is the applicant or landowner.
The issue may appear dry and dull but arguably has the most impact on the lives of local people in somewhere like Willesden Green where the Council was giving land to a developer in exchange for the building of a new Cultural Centre and where the Council relieved the developer of any duty to provide affordable housing.

The question is whether the revised code will in any way give residents a voice faced with the Council-Developer combo.

The amendments can be found HERE but I will highlight some of the changes for the benefit of readers so that they can answer the above question for themselves.

Members of the Planning Committee are warned:
If a member does not abide by this Code the member may put the Council at risk of proceedings on the legality or maladministration of the related decision; and the member may be at risk of either being named in a report of the Audit and Governance Committee or Council; or if the failure to abide by the Code is also likely to be a breach of the Member Code of Conduct, of a complaint made to the Monitoring Officer.
The disclosure of 'disclosable pecuniary interests' is added to the requirements and members are told that decisions should not be influenced by the interests of Councillors or because of pressure exerted by applicants, agents or third parties. A new paragraph is inserted:
Members of the Planning Committee must take decisions in the public interest and take account of only of material planning considerations. They should not allow themselves to be influenced by members of the public and applicants, agents or third parties who might approach them and they should not be influenced by party politics.
There is something rather odd about having to take decisions in the public interest but also not being influenced by the public. This is reinforced by the duty to follow the 'rules of natural justice' and give people a hearing:
The rules of natural justice include the duty to act fairly, the duty to give all those who will be affected by a decision the opportunity of a hearing before a decision is made; and the principle that no person should be a judge in his or her own cause. That principle means that members must be and be seen to be be impartial and without bias, and that members should not take part in any decision that affects their own interests.
A section of 'Bias and Predetermination' has been added:
Members should not take a decision on a matter when they are actually biased in favour or against the application, or when it might appear to a fair and informed observer that there was real possibility of boas, or where a member has predetermined the matter by closing their mind to the merits of the decision before they come to take it.
 ...A member taking part in a decision on a planning matters must be open to any new arguments about the matters up until the moment of a decision. A member should not comment or make any commitment in advance as to how they intend to vote which might indicate that they have closed their mind. Any planning decision made by a member who can be shown to have approached the decision with a closed mind will still expose the council to the risk of legal challenge.
The section on Interests has been amended to allow a member with a disclosable pecuniary interest to have a right to attend a meeting:
...where a member of the public has the right to attend the meeting, make representations, answer questions, or give evidence, then a member will have the same right. Once the member has exercised that right then they must withdraw from the room for the rest of that item and play no further part in the discussion or vote,
At present many planning decisions are made by officers alone but Council members have the power to 'call-in' decisions so that they will be decided by Committee. The Code is amended:
A member considering using the 'call-in' power should consider whether their objective could be achieved by an alternative means, for example by discussing the matter further with the relevant officer or facilitating a meeting between the objector and an officers, bearing in mind the additional cost to the council when a matter has to be considered by Committee. 
The key issue of planning submissions where the council is the applicant or landowner is covered by this paragraph:
Where the council itself is the landowner or planning applicant then a Planning member should consider whether he or she has had such a significant personal involvement in advocating or preparing or submitting the planning proposal that the member would be likely to be perceived as longer able to act impartially or to determine the proposal purely on its planning merits. A member would not be required to withdraw simply because they were, for example, a member of both the Cabinet, or a proposing committee, as well as the planning committee, However a member with a relevant portfolio or individual  responsibility for implementing a particular policy should carefully consider whether that role makes it inappropriate for them to participate in a particular planning decision.
 Does this sufficiently deal with the wider conflict of interest over the Planning Committee being the judge of the Council's own development schemes?

 On the issue of Committee member site visits a paragraph is added:
Members should take care not to show any apparent partiality to people they already know when acknowledging members of the public or applicants that are present. Members attending the site visit should avoid expressing opinions about the application either to another Planning member, or to any person present.
It begins to look like the three wise monkeys would be ideal members of the Planning Committee!

The local press may be interested in this amendment (38) which adds journalists to the list:
Members of the Planning Committee should not speak to members of the public (including applicants, agents and journalists) during a meeting of the Planning Committee or immediately prior to or after the meeting concerned, other than where permitted by this Code of Conduct.
I am sure that a case could be made in terms of freedom to report that journalists are rather more than 'members of the public'.

It is worth including in this report the existing Code in regard to Member and Officer relations which has been an issue in the past:
Any criticism by members of Planning Committee of officers in relation to the handling of any planning matters shall be made in writing to the Strategic Director Regeneration and Growth and not to the officer concerned. No such criticism shall be raised in public.
If any officer feels or suspects that pressure is being exerted upon him or her by any member of the Council in relation to any particular planning matter, he or she shall forthwith notify the matter in writing to the Strategic Director Regeneration and Growth.
A substantial section has been added to the Code requiring Planning Committee members to undergo a course of training on the planning system:
If a member of the Planning Committee fails to participate in compulsory elements of the training this may result in that member being asked to stand down as a member of the Planning Committee,


  1. Seems very interesting particularly in relation to EmailGate and Kensal planning application.

    It could be argued that any recently elected Councillor who publicaly declared their support for the revised planning application could be subject to bias, as it was in their personal interest in terms re-election prospects.

    Not exactly sûre how this can all be policed apart from a Judicial Review when there is límited scrutiny.

    It just goes to show having a large majority could result in greater external scrutiny by those not elected who feel agrieved that decisions are not democractical reviewed. A JR might be the only substitute.

  2. Why hold elections if the local authority is to be run by officers?

    It is clear that officers consider council members to be incapable of actually doing anything and that it should be left to the wise officers to make decisions. Then again, council member performance has not been impressive so far, with 20 of the newly electeds being absent from the first group, get-together earlier this week.

  3. Cross-posting from blog 'Brent Labour's new cabinet announced' 1 June 2014 13:21:

    'As James Denselow is now in charge of libraries under his Stronger Communities' portfolio, he must act immediately to

    i) ensure that no further change-of-use planning application for the historic Kensal Rise Library (KRL) building is heard before Brent police have completed their investigation in to the fraudulent email affair. Cllr Denselow is bright and well-informed. He must rebut the Gilbert/Ledden line that the current application can't been deferred because 'the Council has a responsibility and obligation to consider any valid planning application that is put forward from any individual(s)... consider[ing] each on its merits in accordance with its statutory obligations'. This oft-repeated mantra insults the intelligence of residents. Deferral isn't breaching 'statutory obligations'. It is merely, and clearly, the correct thing to do;

    ii) back the compulsory purchase of KRL, not only the correct thing to do in order to restore the library to local residents but in order to protect the building's Asset of Community Value (ACV) status. Without returning the library to the people, its ACV status is meaningless.

    As for newly elected councillor Keith Perrin - it seems he attended council executive meetings for months before last week's election - to see 'how things were done', just in case a job came his way should he be elected, as he now has been? Interesting - was he invited to attend or did it of his volition? I understand that his ward wasn't an obvious Labour win but that the new executive member for the environment was active in the community'.

  4. Cross-posting from blog: 'Powney calls for...' Anonymous 4 June 2014 12:56

    'It may be unpalatable coming from James Powney but what he says about scrutiny is surely true? It's doubtful that Powney has had a Damascene conversion as the commentator above hints at - a party-politician without a hidden agenda is a rare beast, and Powney's eyes are probably on an electoral come-back. But it would be a mistake to ignore his message.

    Regarding the closure of 50% of Brent's libraries - as Nan Tewari has said on a recent WM blog, the grandiose-titled 'Library Transformation Project' sounds as if it were an officer-led idea - implemented by 'elected' politicians, of course, with Powney in lead role. An October 2012 WM post 'Is Donald's the right development road for Brent'?

    is long but well-worth the read in light of the apparent strengthening of the role of senior officers under the proposed new scrutiny arrangements - Andy Donald is still in post.

    Was it Brent council tax payers who paid for Mr Donald's trip to the Cannes-based 'Le marché international des professionnels de l’immobilier', colloquially known amongst the international real-estate jet-set as MIPIM: 'one of the largest real estate shows, including an exhibition area, networking events and expert-led conference sessions over a period of 4 days' (Wiki)!? A long way from Brent, and the shabby, on-the-ground reality of the closure of 6 local libraries. Yes, rightly castigate Powney and co for pushing through the LTP - they're the 'elected ones' and Brent was the only London borough to close any libraries. But it'd be disastrous to ignore the powerful role of senior officers - and their apparent treatment of junior colleagues (the Davani case, for example).' 1/2

  5. LOL - 'smoothing the way for the developers'. Sounds like officer- supremo Andy Donald has been chatting to London Mayor Boris Johnson - at Cannes? Mayor Johnson loves to talk about 'smoothing traffic flow', ie putting the motorist first - in our already filthy polluted city where public-health demands that we reduce the number of vehicles on the capital's streets.

    Correction to post above - it seems that Brent was not the only London borough to close libraries. Camden and Barnet each closed one, Barking&Dagenham two.