Codes of Conduct are back in the news – whether it’s Jeremy Hunt and BSkyB, or the convener of the East Lothian planning committee who was suspended from his duties earlier this year following a report to the Public Standards Commissioner. The behaviour of councillors within the planning system is often controversial. Most consultants will have stories to share of clients left feeling badly let down by some dubious intervention in the process. The question then arises, what can be done about it?
A breach of the Code of Conduct won’t necessarily lead to a legal remedy (or at least an affordable one), but at least in Scotland the arguments are there to be made. Elsewhere in the UK, things may be more difficult.
Take a recent case in Newport involving consent for a Morrison supermarket. Judicial review was sought on various grounds, including an allegation of bias on the part of a member of the planning committee, a Councillor Richards. Prior to the committee meeting, a leaflet supporting the scheme had been distributed by local councillors, including a Councillor Richards. A supportive petition had also been submitted to the Council bearing the words “John Edwards Richards petition Morrison’s doc” on each page. Subsequently at the relevant committee, Councillor Richards spoke in favour of the proposal, and had “reminded” the officers who recommended refusal that they were there “to serve the public”. The vote in favour of the store had then gone through without debate, 8:1.
Although it was not open to the court to make a finding of actual bias in light of the evidence examined, the court decided that the appearance of bias by a member of the committee was not enough to vitiate the decision.
In Scotland, section 7 of the Councillors Code of Conduct makes it clear that a member of the planning committee must not make statements about a pending decision which might be seen to prejudge the matter. Similarly, if participating in decision making, members should not organise support for/opposition to a particular proposal, lobby other members or act as an advocate for the proposal. If making representations on an application, a member must declare his interest and then retire from the decision making.
There are no equivalent provisions in the Newport Code. Even worse, in England there are now the controversial provisions on “predetermination” within the Localism Act, which still seem like a bad joke gone wrong. So perhaps we should be grateful for small mercies?
Politics and planning do, of course, go hand in hand. But when the politics overrides due process, then we need our courts to step in.
On May 4, 2012