Joint Report of the Town Clerk, the Director of the Built Environment and the Comptroller and City Solicitor.
The Committee considered a joint report of the Town Clerk, the Director of the Built Environment and the Comptroller and City Solicitor recommending that the Planning Protocol be amended to reflect current case law and procedural updates, and particularly to address the recent judgement in the Holocaust Memorial case in respect of local authorities’ own developments.
A Member highlighted that Members were permitted to serve on the Property Investment Board and Capital Buildings Committee from which planning applications for the City of London Corporation’s own properties originate and also to serve on the Planning Committee which went on to determine those applications. He went on to state that the Corporation’s Planning Protocol used to set out that a member of a property committee who also sat on the Planning Committee could not participate in the determination of a planning application made by the Corporation. However, in 2014, this provision was removed meaning that if any member of the Planning Committee who also serves on a property committee believes that they can participate in the determination of a planning application made by the Corporation they may do so. He recognised that it may be the case that members had the ability to compartmentalise their thinking and vote against an application if they felt it failed on planning grounds even though they may have spent some time supporting the plans in a property committee but added that this would generally be perceived as a conflict by most members of the public. The Member added that he did not feel that the law and public perception were distinct concepts and highlighted that the judgement of the House of Lords in the ‘Magill and Porter’ case had made it clear that avoiding even a perception of bias was a principle of public law. This case was referenced within the advice received from Counsel referenced within this report.
The Member went on to state that he was aware that there was other authority for bias being interpreted as personal rather than political and that this may be relied upon by members participating in the determination of a planning application for a development which they may have supported on another committee. He added that he believed that drawing fine distinctions between conflicting legal authorities was not the path to public confidence and that the City Corporation had enough elected Members for this to not be necessary. Against this background, the Member referred to the proposed amendment to paragraph 8) e) ii) of the Planning Protocol which would have the effect of reinstating previous bans on members participating in the determination of a planning application for a development which they have supported in another committee and underlined that he welcomed this. He added that it was, however, wrong for this amendment to be presented as being an action taken solely due to the recent Holocaust Memorial case as it did not establish a new legal principle – something which the Comptroller and City Solicitor had agreed with. The Member commented that the review of the Planning Protocol triggered by this case should be one of several steps taken to improve the Corporation’s planning regime.
The Member went on to comment that the suggested amendment to paragraph 4 b) of the Protocol which would require that any Member meeting an applicant or objector should now also ask an Officer to attend and make a record of the meeting was also to be welcomed. The new wording included a statement that these meeting records would also be disclosable under the Freedom of Information (FOI) Act but the Member stated that he felt that this was problematic and questioned how a member of the public, affected by a particular application, would know that such a meeting had taken place in order to make a FOI request. He stressed that navigating the procedure involved in making such a request placed an undue burden on the public and that it would therefore be preferable for the meeting records to be placed on the planning file and published alongside all other documents. He concluded by stating that this was what was proposed within the Transparency International (TI) report that he had drawn to the attention of the Committee at its last meeting by way of a Motion but which Members had voted against taking into account as part of this Protocol Update. The Member underlined that he supported these amendments in so far as they went but would like to see these go further still in due course.
Another Member agreed with the point made on meeting records being FOIable and questioned whether the intention was actually to make these publicly available, if not, she questioned whether the Protocol could be further amended at this stage to make it so.
She noted that this practice had already been adopted by other bodies such as Westminster CC. She went on to refer to telephone discussions and stated that she felt it would be sensible for these to meet the same criteria as any other form of meeting with Officers also being involved and keeping a record of these.
The Comptroller and City Solicitor responded to the points raised by stating that she had discussed the publication of minutes with colleagues in planning who deal with such meetings on a regular basis who had confirmed that the inclination was not for these to be uploaded to the public webpages automatically alongside planning application material as this information could already be vast and it was considered that not all information around meetings, such as administrative arrangements, would be useful. Some information could also be considered exempt or confidential which would mean that not all documents could be uploaded as a matter of course. Having said that, any note which included information that was material to a decision would form part of a report and therefore readily available.
Another Member commented that she welcomed the proposed amendments but felt that other advice should also have been taken into account when reviewing the Protocol. She also questioned whether consideration was given to the audience when producing these documents – Members, Officers and members of the public - to ensure that they were provided with all of the information they might need to understand the planning process. She went on to comment that she found the LGA’s Probity in Planning document for Councillors and Officers a lot clearer on certain matters where it stated that Members should attend pre-application meetings with Officers who should make a full record of the meeting with this then placed on public record with any confidential material also alluded to within the resulting report to ensure full transparency around any discussions that have taken place. She therefore felt that there should be a more fundamental review of the Planning Protocol to make it easier to understand and incorporate all of the recommendations within the LGA’s Probity in Planning document. Finally, the Member questioned whether Officers also made a record of pre-application advice and whether this was made available to the public. She questioned whether the Protocol might therefore be further reviewed by this Committee in January 2021 to take into account wider recommendations from the LGA and TI for example.
Another Member stated that he was supportive of the proposed amendments presented today. He commented on the points raised earlier in the debate as to the structure of this Committee and potential conflicts for Members who sat on both this and the Property Investment Board – himself included – and stressed that such matters were being reviewed as part of the City Corporation’s Governance Review and, as such, were outside of the remit of this Committee.
The Comptroller and City Solicitor highlighted that paragraph 9 referred to the Officer pre-application meeting information which was available online and included very similar information to what was now proposed in respect of Member pre-application meetings.
RESOLVED – That the Planning and Transportation Committee :-
(i) Recommends to the Policy and Resources Committee that the amendments to the Planning Protocol shown tracked at Annexure 1 to the report be approved; and
(ii) Authorise the Chief Planning Officer and Development Director to prepare any necessary Regulation 64(2) Handling Note in respect of any development proposals promoted by the City.