Thursday, March 30, 2017

The corruption of public speaking at committee

The personal experience of public speaking at a planning committee put me in both angry and analytic modes (ie I was ignored by the committee) and I think that all readers involved in the British planning system should take note.
Every decision must by law be ‘made in accordance with the development plan unless material considerations indicate otherwise.’ So in the material before committee there should be a clear analysis of the development plan, identification of the policies relevant to the decision and a recommendation as to the weight given to these policies.  The material considerations should then be identified and, again, a recommendation made as to the weight to be given to each one.  In almost every case this exercise is found in a report to committee prepared on behalf of the chief planning officer that would normally conclude with a recommendation of whether the applications should be,
-       - refused and if so for what reasons,
-       - deferred for further detail/modifications or consultation responses, or
-       - approved and if so subject to what conditions/legal obligations.

So far so good and checking to see that the right policies together with  all the material considerations are referred to (placed in that order) and no immaterial considerations have slipped into the equation is reasonably easy just as it is reading an appeal inspector’s decision letter.  The only other thing to consider is whether there is any sign of the author of either losing their senses, acting irrationally or perversely in apportioning weight and working out what the decision should be.  Most decisions are delegated to the Chief Officer so that would normally be that.

But both the larger scale and contentious applications often go to committee.  At this point there is normally the opportunity for the public, parish councils and applicants to speak for a few minutes.  The system of representative democracy defers to an aspect of direct democracy so that those not actually involved in making the decision have an opportunity to address those who are.

Stories are changed simply on the basis that there is no point in just repeating what had been submitted in writing.  Sometimes speakers are asked questions which gives the opportunity for speaking longer, bringing in new points or emphasizing old ones. Some people are more articulate or persuasive than others.  Yet the only point of this exercise must be for the contents to be taken into account as well as listened to.

And then we get the councillors playing to the public.  How many of these servants of the public would become councillors or sit on planning committee if they were strictly limited to the considerations in the officer report?  And then we also have planning and other officers answering questions (that but for the public spectacle could and should have been asked in the office before the committee) in ways which might be substantially or subtly different from from the written report.

Throughout this performance a wise council will have a legal officer listening intently and being prepared to intervene at every stage  to ensure that before any vote is taken the committee members are in no doubt of the relevant policies and material/non-material considerations.

My last experience (see earlier blog on public speaking) was that, on the night, the PC changed ‘reservations’ into support.  This time round the PC managed to change unanimous objections into divided opinion/reservations – that was again welcomed by the committee.  The officer assessment of ‘less than substantial harm’ which requires rigorous evaluation of the overriding benefits (NPPF132) was changed by anoyther officer on the night to ‘no harm’ that is invariably supported. How many times has a councillor supported an application 'in order to retain control' due to distrust of the appeal system.  The test which shows this to be immaterial is that it is impossible to apportion weight to distrust of the Secretary of State.  To see all this happening with a lawyer being paid to be present is not a little bit galling.

The bar for and the potential costs of judicial review and too high for normal members of the public to contemplate.  Ironically the local government ombudsman has had to keep its bar low or every council would found to be maladministering the whole time.  However, if the LGO gets enough complaints the message could and should get through to local authorities that they will have to smarten up their act or some will have to pay the consequences.  I am told that the public would not be prepared to give up their chance to speak to committee and change their written representations just so that the basis for the decision could be found in an unaltered officer report.

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