Wednesday 22 November 2017

Monitoring Officer's response regarding councillors, developers and planning decisions

Guest post by Philip Grant, first published as a comment on earlier posting.
Further to my "update" comment of 17 November LINK, I have now heard back from Debra Norman. She has said that 'it would not be appropriate for me to become involved in “public debates on issues of local interest”,' as 'I have to remain impartial and avoid any appearance of bias or pre-determination.'

I respect her position on this, but she also said: 'However, as there is no legal rule prohibiting the publication of my previous email to you, it is a matter for you whether you publish it.'

As her reply of 15 November was well-reasoned, and will help to contribute to a balanced discussion of the issues raised, I have told her that I will "publish" the full text of it on "Wembley Matters".

Dear Mr Grant

I am responding to your email below of 12 November 2017.

Allegations of breaches of the Members’ Code of Conduct (the code) are dealt with in accordance with the Council’s formal complaints procedure and should be submitted using the Council’s standard form – both of which are available on the Council’s website (see here:

To date, I have not been contacted directly by anyone to complain about the matters set out in your email.

As therefore I can comment in general terms only, I hope the following is helpful.

In principle and for practical reasons, allegations of breaches of the code which are non-specific and don’t contain any direct evidence are likely to fail to disclose a potential breach of the code. For example, such allegations are incapable of being investigated in any meaningful or reliable way and/or are not susceptible to proof.

Of course, all Members, and especially senior Members, can reasonably expect to be held to account for their conduct and for complaints alleging serious misconduct to be dealt with properly, not only in accordance with established standards of good administration but also natural justice.

It is therefore regrettable when allegations of serious wrong-doing which are not specific and substantiated are made against individual councillors and made publicly available for repetition and comment by others. Allegations of this nature can cause serious reputational damage to the individual councillor concerned without him/her being able to properly defend themselves or clear their name, risk undermining public trust and confidence in local government and could even prejudice the Council’s ability to properly investigate or determine allegations of serious wrong-doing.

Public trust and confidence in all areas of Council decision making is important, with planning being a high profile example. It is for this reason that Planning Committee Members receive training on how to undertake their decision making role. In addition, all Members from time to time are reminded that planning decisions should always be taken in the public interest and on proper planning grounds (often referred to as material planning considerations, for example, planning policy and guidance) and in accordance with the general obligations set out in the code and the principles of conduct which underpin the code.

Members are made aware of the need to comply with the rules of natural justice i.e. the duty to act fairly; the duty to keep an open mind (i.e. the rule against pre-determination); and the rule against bias (both actual bias which may arise as a result of a direct (usually financial) interest in the matter to be decided and the appearance of bias i.e. the real possibility of bias arising from relationships or the decision maker’s conduct or actions or strongly worded views).

Members are also made aware of the standards of conduct expected of all Members whenever they conduct the business of the Council or their office and whenever they act, claim to act, or give the impression they are acting as a councillor. These include not using or attempting to use their position as a Member improperly to confer on or secure for themselves or any other person, an advantage or disadvantage, giving reasons for decisions and not bringing their office or the Council into disrepute.

The Council’s Planning Code of Practice supplements and reinforces these requirements. Members of the Planning Committee are aware that if they are approached by any persons or groups regarding an application they intend to decide, they are required to inform the Monitoring Officer.

Members of the Planning Committee know that they are required to make up their own mind. Voting blindly in support of party policy or the party whip is clearly not allowed. This includes not accepting a direction from their political group as to how they should vote. Nor should individual Members exert undue or inappropriate pressure on Members of the Planning Committee on how they should vote.

However, Members are not required to have a blank mind. The law permits Members to be pre-disposed to a certain point of view which they can give weight to but they must consider and give weight to all material planning considerations, other views and arguments, and all the evidence. In other words, they must be prepared to change their view if persuaded they should. In drawing a key distinction between pre-determination (which is unlawful) and predisposition (which is recognised as a reality of political and local government life), the courts have sensibly struck a pragmatic balance.

Provided Members comply with these rules, there is no legal rule against Members, whether of the same group or not, discussing strategic planning issues, general policy issues or, provided these rules are not breached, even a future decision.

Similarly, joint working, both formal and informal, and dialogue between Members of the Planning Committee and Members of the Cabinet is recognised as a legitimate reality of local government life. Members of the Planning Committee simply need to ensure that when making planning decisions, they make up their own mind and on the planning merits.

[Debra Norman, Chief Legal Officer, Resources Department, Brent Council]


Anonymous said...

'Members of the Planning Committee simply need to ensure that when making planning decisions, they make up their own mind and on the planning merits.'

So why are some of them not doing that???

Anonymous said...

Exactly anonymous, exactly. History is full of fine words by experienced lawyers being completely ignored by arrogant politicians. Brent is governed by the Rule of Butt, not the Rule of Law.

Sandro said...

Or in other words....."I'm completely washing my hands of it"!