Note: Many of the previous procedures were re-instated by West Berkshire Council in October 2020 including, crucially, the ability of interested parties to be questioned by committee members.
For the article about the planning application in Elton, please click here.
Covid-19 is re-writing many priorities, A number of changes, ranging from dress sense at Zoom meetings to the protocol for avoiding strangers on footpaths, have started to take effect. Another less visible but very important one is how planning committee meetings are conducted by West Berkshire Council (WBC).
Why planning matters
Planning is emotive, expensive, technical and in most cases irrevocable. In each case, developers, residents, local businesses, contractors, councillors and planning officers are involved on a number of levels, often for years. To an outsider, it can appear a boring combination of opportunism and procedural wrangle. To someone involved or affected, however, it can be vastly more serious. A planning decision will probably outlive the impact of the virus and still be felt generations hence. There is therefore no such thing as a trivial or unimportant application.
How WBC’s planning process works
WBC’s planning system is probably pretty good, though it’s often described as a bit slow. In general terms, it works like this:
About 95% of applications are determined by the officers, expert employees of the council. They consider each application and test it against national and local policy and, no doubt, a dollop of common sense, and make this judgement. Most are for very minor matters such as garage conversations which have little impact on anyone else.
In about 5% of cases, however, the decisions are ‘called-in’ to be discussed at a planning committee (WBC has Western and Eastern Area Planning Committees, and a District Planning Committee which in general looks at plans with a district-wide impact or where a regional committee made a decision that was in breach of policy). The call-in happens for one of three reasons: there are more than 10 objections; a Ward Councillor can request it; or (which happens very rarely) a planning officer can request it.
Until now, the system allowed officers, applicants, parish councillors, objectors and supporters to make time-limited (usually five-minute) statements after which they’d be questioned by the Councillors (who had usually undertaken a prior site visit). The resulting Q&A sessions, which could be quite lengthy, would tease out aspects of the matter (though not introduce new points) which the statements on their own might not have done.
WBC’s changes to the committee part of the planning process
Covid-19 has obviously made site visits difficult or impossible. Zoom and similar services have, however, made large-scale participation in meetings feasible (if at times sartorially awkward). Given the lack of the former, it would seem that the continuation of the latter would be all the more important.
WBC has decided otherwise. In an Executive meeting in late April, it was decided on legal advice that all Planning Committee meetings would henceforth only permit discussion between officers and councillors on Zoom; other interested parties could only submit 500-word statements without the opportunity to answers questions arising from them (which has happened up until now). Lib Dem members, after voicing opposition to these plans, for long-term tactical reasons voted in favour. The three Green members abstained. All Conservative members voted for it, bar two who abstained.
The situation is governed by the Local Authorities…Flexibility of Meetings…Regulations 2020. This provides, inter alia, that (clauses 2 and 3) a member is present at if a virtual meeting if they can hear and be heard (and ‘where practicable’ see and be seen) by other members and by members of the public (but doesn’t specify how long any loss of sound need last before the member is no longer in attendance). It then goes on (clause 6) to say that each council is free to make its own arrangements for voting, member and public access to documents and the remote access of the public and press ‘to enable them to attend or participate’ in the meeting.
As is common with new regulations, particularly ones prepared in a hurry, there’s much that’s not specified and so open to interpretation. They also have to take into account variable internet connections and levels of user competence. It’s expected that these will be modified in the light of experience and, perhaps, legal judgements. There doesn’t, however, seem to be any intention to constrain any level of public participation that previously existed. Moreover, councils are afforded discretion to adapt the measures according to their own preferences and existing systems.
What does the Local Government Association say?
The LGA is the national membership body for local authorities and it works on behalf of its member councils to support, promote and improve local government. On 24 April 2020, the LGA issued A Guide to Revising Protocols and Procedures for Virtual Planning Committees. (This is guidance, not formal legal advice). The document makes no reference to the need for interested parties who had previously participated in meetings to be excluded. Two other aspects are worth highlighting.
On the subject of technology failures (see the WBC comments below), the LGA takes the pragmatic view that this might happen and makes several common-sense suggestions (points 19-22) as to how they might be overcome. Any council following such policies would have a powerful defence against any claim that a drop-out had rendered the meeting inquorate.
On the subject of public participation, point 66 offers ‘further advice required for people who have been granted the right to speak to the virtual committee,’ which would clearly include the interested parties. It therefore follows that the LGA believes that there need be no obstacle to this happening providing a sensible protocol is followed.
What have other planning authorities done about planning-committee meetings?
This is not easy to answer as it involves visiting numerous websites, all of which are differently structured, and finding either a policy or evidence in the form of agendas or minutes as to whether people other than members and officers have been or will be involved in planning committees. In addition, different planning authorities had different policies in normal times so further research is then needed to see if any new arrangements represent a change of policy or not.
On 11 May, I visited the web sites of about 25 councils. Of these, seven will be holding meetings with full participation from interested parties. Another two (as well all six Berkshire authorities, including WBC) had decided on the more restrictive participation described above. Two had delegated all such powers to the CEO. For the rest, I could find no evidence one way or another: some said that planning-committee meetings we’re cancelled or postponed until further notice but this may have been because they had not yet debated the matter or not updated their documentation.
I concede that, as there are 390 planning authorities in England and Wales, this is barely representative. However, it strongly suggests there is no unanimity on how the Regulations have been interpreted and therefore no compelling legal argument one way or the other. Any position adopted might be proved to be wrong and thus an equal risk attaches to each. It also suggests that several councils, perhaps as many as 30%, have decided to continue with the maximum level of participation and allow external participation by Zoom. Some, such as South Cambridgeshire’s, make frank reference (clauses 6.8 to 6.10) to the connectivity problems that might result and make some common-sense suggestions as to how these might be overcome. I’m sure its policy was also framed as as a result of legal advice. Why did that offered to WBC lead to a more restrictive conclusion?
The possible results of this decision
The possible consequences are worrying. If a planning application has been called in, it’s obviously problematic. The committee exists to investigate the issues, some of which may only become clear as a result of questioning. The lack of site visits makes this even more dangerous.
One reason that has been offered for avoiding virtual public participation is that it could later be claimed that a single participant not hearing part of an exchange could lead to a challenge that could invalidate the meeting’s results. This seems absurd. Any number of ways could be found to highlight this at the time or to demand that all participants confirm at the end that they have fully participated. Indeed, this is being trialled for the licensing committee discussions, for which public participation is legally required.
Councillors and officers have already had ample opportunity to learn each other’s views – it’s those of the people who are directly affected by the decision, whether as developers or residents, that need to be heard and examined. Not to do so negates the point of having a planning committee at all. The technology exists to accommodate this: why not use it?
WBC’s position also doesn’t seem to address the problem of a councillor failing to hear a portion of the debate due to a connection loss. This could be construed as their having left the room at a physical meeting and so being ineligible to vote on the matter being discussed. I’m aware that WBC claims to have systems to detect such a drop-out but if we’re going to assume that one part of an online system can fail it’s as well to assume that they all might. Also, how long does such a drop out need to be before the councillor is deemed to have ‘left the meeting’? Five seconds? Five minutes?
It’s been suggested that the policy WBC has adopted will avoid the risk of a legal challenge but the new measures seem just as risky. The 500-word submissions will re read, probably by an officer. Many phrases can be given a different construction according to emphasis or even pauses. A word could be mispronounced or a line omitted in error. If more than 500 words are received in total from more than one objector or supporter, will only one be read or will the combined points be summarised? If so, by whom? Any of these would seem to present solid grounds for a very serious challenge.
There’s also the possible permanence: virtual meetings have many advantages so these new ‘temporary’ measures could soon become the norm. The longer any system continues, the harder it is to change it, even to change it back to what had existed for many years previously.
Finally, there’s the public perception. Even people not directly involved in a decision may look askance at a something which affords interested parties outside WBC only a more passive involvement in the process.
On a positive note, the use of Zoom may well increase the number of people being able to ‘attend’ the meeting and will also, if it’s recorded, provide a record of it for future reference. This is, however, a separate point from the matter of is able to participate and how.
It obviously remains to be seen how the new system works in practice and WBC has said that the decision will be reviewed. In my view it ought to be reversed. All planning decisions are important. If something’s been called-in, it needs to be looked at properly – that’s what the committees are there for. They need to do their job. There’s nothing in these proposals that suggest they’ll be able to do so properly.
See our article about an excellent example of a current complex application, the effective consideration of which will not be improved by these new procedures.
What is West Berkshire Council’s position?
The following statement was received from District Councillor (and Western Area Planning Committee member) Howard Wollaston on 11 May 2020 and is reproduced here verbatim.
“You kindly offered to allow me to respond to your comments about the changes in the planning system at West Berkshire Council.
“Firstly let me say that West Berkshire Council (WBC) has had the gold standard of allowing public participation in Planning Committees and significantly beyond our legal obligations. The Council has always tried to be as transparent as possible in planning matters and encourages public involvement. It was with the greatest reluctance that members approved the limitations in order to meet our public health requirements over Covid-19 and we will be returning to the previous system as soon as prudently possible.
“We held an Emergency Council Meeting last week to ratify changes to the public’s involvement in all public meetings including the planning committees. On strong legal advice from the Council’s Legal Team, we agreed to limit public involvement in the process to written representations of 500 words (about the equivalent of a five minutes’ speech) from the applicant, all objectors, all supporters and the Parish Council. Committees will be held using Zoom technology and be streamed to Youtube for the public to see in real time. District councillors will still be able to have their five-minutes summary using Zoom .
“The reason behind this is slightly arcane and legalistic. Essentially, any laptop owned and using the WBC computer and network solutions is fully monitored and the IT team knows immediately if there are any issues affecting connectivity. The same is not true for someone from outside WBC using their own equipment. In these circumstances a refusal could allow the applicant to claim that the meeting was legally inquorate allowing an ability to appeal to the Planning Inspectorate or potentially a judicial review. This could be hugely expensive to WBC and ultimately the council-tax payer. All six unitary authorities in Berkshire came to the same conclusion that they could not justify the risk. There were five abstentions on the motion but all other Councillors voted for the change albeit some reluctantly as the alternative was to delegate decision making to the Chief Executive which we all felt was undemocratic.
“Most planning applications are dealt with by WBC officers under delegated powers. If there are more than ten written objections or the ward councillor calls it in then it goes to the relevant planning committee with an officers’ recommendation. I sit on the Western Area Planning Committee which stretches from Lambourn and Hungerford to the A34, effectively including all Newbury wards.
“For those not familiar with the process when an application is passed to the planning committees, it starts with a presentation by the allocated Planning Officer with input from other specialist officers such as Highways, Environment etc, including a synopsis of representations from outside bodies such as AONB, Ramblers Association and similar organisations. The applicant (or more usually their advisor), all supporters, all objectors, the Parish Councillor and the Ward Councillor each have five minutes to speak and have questions asked of them by the Committee. The Committee then has the opportunity to question Officers after which there is a debate and a vote. The options are approval (usually with conditions), refusal or occasionally deferment where more information is required.
“The only thing that is missing from the usual process therefore is the ability of Committee Members to ask questions of those submitting written representations rather than making five-minute speeches with the exception of the Ward Councillor who is using WBC equipment.
“I understand that a very limited number of Councils are allowing external access by Zoom but we reluctantly took the view that it was too great a risk for a minor reduction in democracy offset by the ability for people to watch proceedings from the comfort of their own home. I can only repeat that this was not a decision taken lightly and that I seriously hope we will be back to normal circumstances as soon as possible.”