A Need for More Robust Decision Making – A Focus on Committee Decisions

IPS recently reported on success at appeal for our clients Abbey Developments Ltd for a s.73 application to vary the point of connection for a foul sewerage network. The application was refused by the South Cambridgeshire District Council’s (SCDC) Planning Committee, against the recommendation of the Joint Director for Planning and Economic Development, and notwithstanding the lack of any technical objection from consultee. This decision was heavily influenced by the Parish Council who have consistently objected to the proposals on the site and all applications submitted at the outline, reserved matters and discharging of conditions stages. During the appeal process and at the subsequent hearing, the Authority made no attempt to seek the advice of either its own or from and independent drainage engineer in order to substantiate with technical evidence, justification for denying the alternative points of foul sewer connection as proposed and thus demonstrating why this would be unacceptable. SCDC in effect relied entirely upon local opposition channelled through the Parish Council at the appeal. The Appellant submitted an application for a full award of costs. The Inspector agreed that the SCDC has failed to produce adequate evidence to substantiate its reason for refusal that the sewer system lacks capacity to accommodate the wastewater flows from the proposed development and thus unreasonable behaviour had occurred.

This is the third appeal which IPS have successfully argued for our clients, and been awarded a full claim for costs. In March 2020, IPS secured success at appeal against the attempted imposition of a Deed of Easement by condition in Milton Keynes. This comprised two appeals both of which were both awarded costs. Despite the legal opinions accompanying both applications the proposals and those sought by Milton Keynes Council, these were rejected by the Council’s Planning Committee.

IPS also represented our clients, Abbey, in a non-determination appeal against Tandridge District Council (TDC) for the development of an access road to served permitted residential development within the neighbouring Mid Sussex District, at Copthorne Road, Felbridge. This appeal formed a conjoined inquiry with a similar site in the locality. Following the submission of the application the Council had failed to make a decision on the access proposals after a period of more than 1 year. The application attracted local concern regarding the increased highways impact on the surrounding area, however, throughout the application process there was no objection to the proposed development by Surrey County Council or neighbouring West Sussex County Council in their capacities as Local Highways Authorities. Following the registration of the non-determination appeal, the application was called to the Planning Committee for consideration to establish the Authority’s position in relation to the appeal.. The committee resolved that the application would have been refused. This was despite the lack of technical evidence to support their case, the positive recommendation from the Case Officer, and the lack of objection from the relevant highways authorities.

Prior to the Inquiry, TDC failed to submit appeal case evidence to the Inspector and did not undertake the careful balancing exercise required to consider the proposals in context. Two days before the cases were due to be heard at the Inquiry, TDC withdrew its case and did not put forward any witnesses to explain its position. An appearance was made at the Inquiry however by the Chair of the Planning Committee though he initially failed to identify himself as such to the Inspector. The TDC position was explained by a barrister however the Inquiry proceeded without any evidence from TDC, and without any cross examination of the appellants’ cases. Both appellant teams submitted applications for a full award of costs against TDC. The Inspector considered that it was unreasonable for TDC to pursue such a fundamentally flawed case that had no realistic prospect of success. The Inspector concluded in his costs decision letter:

‘In essence, in the face of clear officer advice, the Council pursued two appeals that had no realistic prospects of success. The Council delayed development which should clearly have been permitted, misapplied policy, failed to carry out a planning balance, failed to keep the cases under review until the last minute and failed to present any evidence to substantiate the reasons for refusal at the inquiry. The appellants therefore had no option but to pursue their appeals to an unnecessary inquiry, incurring wasted expense in doing so.’

Impacts and Improvements

In both these three cases in which IPS have been recently involved, this amounts to a substantial delay in the delivery of housing in these three locations, and in addition to wasted expense and costs to the Local Authorities concerned and the public budget. The problem is wide spread with ‘Planning Resource’ reporting in January this year that Wealden District Council has had to pay out £440,000 to developers in the financial year so far due to “unreasonable behaviour” in refusing two large housing schemes that were then overturned at appeal and has spent a further £235,000 in legal and consultant fees. Again, these appeals were based on Planning Committee Decisions.

It is clear that steps need to be taken to ensure that unsound decision making is addressed and unfair delays for both Applicants and developers are avoided. There is growing concern regarding the number of applications which are determined by committee members, against officer recommendation, and unable to be backed by Officers at appeal with technical justification and evidence. This rise in unsound decision making and unfair delays has resulted in proposals to review the number of committee decisions subsequently allowed at appeal which arose from the Increasing planning fees and performance: technical consultation in February 2023 and the need to improve the quality of the local authority planning service by monitoring more performance measures. Responses to the consultation considered the need for more metrics and data for appeals such as the proportion that have been successfully defended or lost and cases where behaviour has been considered unreasonable, leading to the award of costs.

Long gone is the ability of an aggrieved rate payer to surcharge those members of a committee which made the decision later found unreasonable by an Inspector leading to an award of costs against the authority. There is however a clear need for committee members to further analyse the decisions made and the important lessons to be learnt. In the absence of any national or authority guidance on how this might be brought about, or statutory requirement for analysis and member training, this lacuna within the planning system represents a serious failing of local government practice.

Elected member training, now needs to be an essential requirement of all local planning authorities. Presently there is no nationally applied training for councillors. Some authorities do undertake training, however for most it appears a very patchy, low key and an often poorly attended “exercise”. So long as this critically important point in the whole application process remains so poor and vulnerable to nothing short of abuse, the planning system will not improve, no matter how many revisions are made to the National Planning Policy Framework.

Furthermore, the relationship between members and officers needs to be improved. Officers should be able to guide committee members in meetings, steering and through intervention during discussions with factual matters pertinent to the case. Some are clearly invited to assist in matters of clarification, others however are under instruction not to intervene. Once the officer has reported the application and made the recommendation, further assistance is not welcomed and most do not publicly refer to the prospects for success in defending against applications for awards of costs, should refused applications end up at appeal. This is a clear area which needs to be addressed, with the technical and expert guidance of Planning Officers afforded the esteem and weight that it should hold.

Making robust planning decisions that can be defended to the public and at appeal is challenging. Committee members should be regularly trained in the key elements of defensible decision making and both officers and councillors should reflect and learn from some of its past decisions. With proposals for a robust performance regime on the horizon, we hope that this can result towards progress working effectively to make robust decisions.