TUNBRIDGE WELLS BOROUGH COUNCIL DEVELOPMENT CONTROL WORKING PARTY
10 JANUARY 2002
DEVELOPMENT CONTROL PRACTICE AND PROCEDURES

Again it looks like the initiative was taken out of Councillors' hands and according to one Councillor "Even this party is lead by officers".


Executive Summary

The report (DCWP/01/01/01) provides an initial response, for discussion, to the various 'Key Issues' raised in the Director's report on the Telephone House Application, and the Motion to Council on 4th December 2001. It summarises the significant changes taking place to the environment in which development control operates, and highlights the opportunities for the improvement of practice, procedures and performance.

FOR INFORMATION AND DISCUSSION

Introduction

  1. The Working Party's Terms of Reference were set at the Council Meeting of the 4 December 2001. The purpose of the Working Party is to consider the recommended 'Ways Forward contained in the Director of Operational Services' Report on the Telephone House Planning Application, and the issues raised in the Motion by a Member as Item 11 on the Council Agenda of the 4 December. The report on the Telephone House Planning Application is reproduced as Appendix 1. The Motion is reproduced as Appendix 2. The Working Party has been asked 1 "report back to the February Council meeting with their recommendations". There are therefor 14 KEY ISSUES which the Working Party need to consider and, ultimately, make recommendation on. These 'Key Issues' are reproduced as Appendix 3 and each is given either a letter or number code which will be used throughout this report.

    Appendix: Key Issues

  2. In view of the timescale that has been set, and the complexity of the development control process the Working Party undoubtedly has a challenging task. A further meeting is likely to be arrange later in January which will enable a report to be taken to the Operational Services Board on February 2002 and then on to Council. Members will be aware that Development control involve a process of decision taking and it may therefore also be a little difficult to consider issues i isolation because clearly decisions on one part of the process may have implications for another part. (E.g. increased consultation and community engagement v. speed of decision making.)

  3. The development control process itself is considered in greater detail later in this report.

  4. It is however also important for the Working Party to consider the Key Issues in the light of the changing environment in which we work and the significant focus that is being placed on planning practice, procedures and performance, both nationally and locally.

    Government Green Paper "Planning : Delivering a Fundamental Change"

  5. The Government is promoting in a Green Paper, published in December 2001, fundaments changes to the planning system. The Government recognises interalia that planning is "complex) hard to understand and difficult to access" and that, despite being highly 'consultative', it too often "fails to engage communities". Recommendations in the Green Paper will have significant impacts on the way development control is operated at Tunbridge Wells Borough Council. The document is not summarised here but comments on it, and on an associated discussion paper published by DTLR on planning agreements, are invited by March. A separate report will b taken to the Operational Services Board. Government Best Value Targets for Planning

  6. In parallel with the Green Paper, the Government has set new handling targets for all Local Planning Authorities, for the determination of planning applications. In view of previous poor performance, the Government proposes to set Tunbridge Wells Borough Council specific performance standards that the authority must meet in the year 2002/03 for each category < application. Failure to meet a performance standard will normally be judged as a failure to achieve best value for that particular Service. Because of timing and resource implications in responding to the Key Issues, the Working Party should be aware of our current performance against these targets.

  7. The new Government targets, likely imposed standards, and recent performance levels are set out in the table below:-

    Category of Applications National Target Standard for TWBC 2002/03 TWBC Performance
    1999/2000 2000/01
    Major 60% in 13 weeks 45% 39% 16%
    Minor 65% in 8 weeks 50% 38% 39%
    Other 80% in 8 weeks 65% 56% 58%

  8. It is clear that significant and sustained improvements in the speed of handling all categories c planning applications are needed. This however this is being severely handicapped by a very high staff turnover (some 20% of professional and technical staff over the last 24 months difficulties in recruiting replacements, and a continued upturn in the number of planning applications submitted. This is illustrated in Appendix 4 which shows the current backlog c applications and the somewhat 'unseasonal' increase in planning applications compared with the same time in previous years.

  9. Planning and Building Control joint registration is currently being centralised to help improve the speed with which applications are being registered [delays at the beginning of the process reduce the time planning officers have to deal with cases]. We are examining other ways of speeding u the decision taking process which will allow us to improve our performance up to and beyond the required standards.

    Review of Development Control Charter

  10. Members of the Working Group should also be aware that for the last 12 months, as highlighted in the Director's original report, officers, with the assistance of a Members Working Group, have been reviewing all aspects of Service delivery with a view to developing a revised Development Control Charter. This has also involved Parish and Town Council meetings, questionnaires of applicants, agents and consultees, and several meetings of a recently established 'Agent Group'. Work on the Charter is well advanced but has been suspended temporarily in view of the priority placed on the brief for this Working Group.

  11. It is intended that the Charter Work will lead to a series of Service improvements aimed at meeting customer, stakeholder and Member aspirations.

    Best Value Review of Development Control

  12. The Development Control Service is also due to be reviewed under the Best Value process ii 2002. As Members are aware Best Value imposes on Local Authorities a duty of continuous improvement in service delivery and requires regular and fundamental review of existing deliver practices. Arising from this review will be a detailed action plan leading to a better customer focus in the Service we provided. The review is due to start within the next few months.

    Local Government Re-organisation

  13. The Working Party will also need to consider carefully the implications of any proposed change in practice or procedure that are necessary arising from the new constitutions and protocols being developed to support the new Local Authority Structure from May 2002. The 'Standard Committee' has been given the task of looking at issues of probity, and developing relevant protocols.

    The Development Control Process

  14. The Development Control decision making process is outlined in Appendix 5. Eleven of the Key Issues referred to this Working Party relate to stages in the Development Control process an have been annotated in summary form on the model.

  15. In order to assist discussion at the Working Party a commentary is provided below on each Key Issue in turn:-


    Commentary on Key Issues Raised


    Issues from the Motion to Council

    Issue A
    -Ward Members. Residents and Interest Groups to be constructively engaged in Discussions.

  16. Pre-application discussions are encouraged by the Audit Commission and the National Planning Forum. They have been part of our established practice for many years. The Green Paper encourages pre-application discussions between applicants and Local Authorities as they ca frequently help to guide applicants through the process, clarify what is required and help them formulate acceptable proposals, particularly for larger schemes. It says that this can be of particular help to small business and individuals who may find the planning process difficult to understand.

  17. On the subject of consultation on Planning Applications the Green Paper acknowledges that consultation by a Local Authority on an application can account for a significant proportion of the time taken to determine it. The Government's belief is that, as far as possible, consultation should take place and issues should be resolved before an application is submitted. It feels that advanced consultation not only potentially speeds up the decision process but helps to build consensus and reduce suspicion about the proposed development. However, the Green Paper says that shifting the duty of undertaking effective consultation solely to an applicant would impose too much of the burden on individuals and small business who may find it difficult to can out a consultation unassisted. It suggests nonetheless that, with larger and more complex proposals, developers ought to be engaging with local communities to the greatest extent possible in advance of submitting a planning application.

  18. Whilst in principle the engagement of Ward Members and the general public is supported, the difficulty is that it is not practical nor reasonable to make our involvement in pre-application discussions contingent upon the agreement of developers to consult others. For example, if developer wishes to discuss matters with the Local Planning Authority pre-application on confidential basis it seems reasonable that we should continue to offer this service. Members should note that both the Telephone House site developer and the ABC Cinema site developer were asked to consider involving the wider public before they submitted applications but both chose not to.

  19. In addition to this general comment there are a number of practical points arising from the Key Issue proposal. For example, what is the definition of a 'formally constituted group'?. Often sue groups form as a response to a development proposal. We need also to be clear about what meant by 'discussions'. For example, do preliminary meetings, scoping environmental or technical studies, or identifying the planning policy context count as 'discussions?' Also, or must think carefully about those groups of stakeholders or individuals who are not included in the suggested list (e.g. land owners, individual businesses, interest non-residents etc). This is also an important staff resource issue. At present we are not even able to offer anv pre-application meetings in the Western/Central Teams other than on the very largest of projects. This because of the priority we need to place on processing applications and appeals, and the limited staff resources currently available to go round.

    Issue B - Amend Delegated Authority to Refuse Applications

  20. We are not entirely clear what purpose this proposed amendment serves. The general right of all Members to call in any applications to Committee (i.e. effectively to remove an application from the delegated decision process) would appear to cover all eventualities. It should also be note that the Green Paper proposes that in order to speed up decision making, authorities should delegate decisions to officers as far as practicable and that a new target for 2002/03 of 90% of decisions has been set. The current delegation rate at Tunbridge Wells is around 85%.

    Issue C - Statement of Common Ground to be agreed with Ward Members. Chairman of Committee and Third Parties.

  21. As an initial comment we are not sure why a distinction should be made between decisions take in Committee and other decisions taken under delegated authority. They are all decisions of the Local Planning Authority. The Council would open itself to criticism if a process was introduce that dealt with only one category of application (e.g. Committee decisions).

  22. There appears to be some misunderstanding of the purpose and content of the 'Statement of Common Ground'. The Statement of Common Ground is a written Statement prepared jointly t the Local Planning Authority (LPA) and the applicant (or appellant). Its purpose is to set out td agreed factual information about the proposal. The Statement merely formalises a process which has always been in the system whereby appellants and the LPA are encouraged to identify areas of agreement in order to save costly enquiry time. The Statement of Common Ground produced in parallel with the Proofs of Evidence and there is a strict mandatory timescale of submission to the Inspectorate. In essence, the 'Common Ground' is defined by what is not i the Council's Statement of Case, which in turn flows from the refusal reasons. The logic of this that the Statement of Common Ground 'belongs' to the LPA as a whole and not to any individual Member. We do not believe that any individual Member should therefore have, or be perceived to have, the opportunity to influence or amend what is in it. Because of the timescales which are now strictly enforced by the Inspectorate there is also a risk that involving others in the process may add to potential delays, to the further disbenefit of the LPA.

  23. The 'Common Ground' is between the LPA as a whole and the appellants. The 'third parties' referred to in this issue do not in fact have a stake in this process. They are not of course precluded from raising their own issues at the Inquiry itself where they have the right to make their own representations direct to the Inspector.

  24. From an operational point of view, if an officer is given the responsibility of appearing as a witness and preparing a Proof of Evidence, we believe that they must also be given the responsibility of preparing and agreeing the Statement of Common Ground (with the involvement of their Senior Managers and Counsel as appropriate), otherwise they are in a very difficult position. If particular issue was not in contention in the view of the Committee as a whole, this will become apparent at the Inquiry when a witness is cross examined. It follows that withholding that issue from the Statement of Common Ground, for example, would serve no purpose and would simple waste Inquiry time and run the risk of costs being awarded against the LPA for unreasonable behaviour.

    Issue D - If Members give evidence, case review to be held with officers/Counsel.

  25. We feel that it is unlikely that Members will be selected as witnesses for the LPA. It is more likely that they will appear independently, normally in support of the LPA's case. It is therefore not clear that the presentation of the case for the LPA would be assisted as a result of a Member meeting with Counsel. (For example what if he disagrees with the LPA's case?) We do believe how ever that it is very desirable for any Member that wishes to appear at an Inquiry to discuss the case with officers so that they may be advised how they may put their case directly to the Inspector This will assist the Member in participating more effectively in the appeal process and will help avoid inadvertent damage to the LPA's case.

    Issue E - In major Appeal Inquires Lead Officer to be Senior Officer of Council, supported by Leading Counsel.

  26. It is our current practice to field the level of seniority necessary to defend most effectively the Council's position. Each case is looked at on its own merits and a decision taken on the right level of representation. Needless to say, officers are, at all times, totally committed to presenting the LPA's case as resolutely, robustly and effectively as possible.

  27. Whilst a professional officer will be totally committed to defending the LPA's position, great car must be taken to ensure that officers are not being asked to promote a professional view which they do not necessarily hold. This clearly would be against the Royal Town Planning Institute' Code of Professional Conduct.

  28. The level of Counsel engaged at an Inquiry should, as currently, depend upon the complexity of the case and the issues raised by it. This is the judgement that should continue to be made on case by case basis by senior officers of the Planning and Legal Departments.

    Issue F - Production of Borough-wide 'Design Guide' to supplement existing guidance.

  29. Clearly this is potentially a very significant undertaking. 'Kent Design' was published less than 3 years ago it is still a relatively youthful document and its use is becoming more widespread within the County.

  30. The Borough Council has also produced a number of guides on a site by site, or subject by subject, basis (various design briefs, supplementary planning guidance etc). Also within seven conservation areas, 'Conservation Area Statements' now exist.

  31. Whilst there is certainly value in considering the production of further guidance [either general or site specific] perhaps a way forward in the short-term is to develop a programme of training for officers and Members in design issues. This would be a useful supplement to Kent Design an would enhance understanding of development proposals.

    Issue G - Members... "right to represent all parties when considering planning applications".

  32. This was a general point made in the introduction to the Motion considered at Council in December.

  33. Members involved in determining planning applications are required to keep an open mind an not to align themselves with any particular individual or group. If a Member chooses to act as representative or advocate for a particular individual or group the likelihood is that he/she will b perceived as having made up his mind at an early stage. It maybe possible for the Member t limit himself/herself to reporting the views of the individual or group without necessarily aligning himself/herself with them. It is agreed that guidance in the form of a protocol and further training would assist in understanding this role. In most cases a Member acting as an advocate will disqualify himself/herself from being involved in determining planning applications. It follows the a Member should have clear understanding of the impact of statements and actions taken by him/her. This is because there is a boundary which, if crossed, disqualifies him/her from being further involved in the process of determining the application.

  34. For the benefit of the Working Party attached to this report as Appendix 6 is a copy of the LOCAL Government Association document on 'Probity in Planning - the Role of Councillors and Officers This deals in Section 4 with the issue of the general role and conduct of Councillors and officers It also contains useful information and advice on the development control process from a Members perspective.


    Issues from the Telephone House Report


    Issue 1 - Additional consultation in response to complexity/sensitivity/public interest in planning application.

  35. There are a number of improvements that could be made to enhance the engagement of the local community and other interested parties. Examples include, public exhibitions (e.g. in the Council offices or elsewhere), public meetings, press adverts, use of web-site, more extensive consultation etc. These are being examined as part of the review of the Development Control Charter and specific proposals are intended to be made as part of that exercise. Plans of the Cinemas site proposals are, for example, on display in the Foyer of the Planning Reception are in the Town Hall. Issue 2 - Encourage developers to engage community/stakeholders. TWBC to facilitate and/or participate.

  36. This is part of our current practice. However, as reported earlier, the developers involved in two recent schemes have chosen not to engage the wider public at the pre-application stage. Where developers are prepared to do this officers should be able to facilitate and/or participate in the events. However, as with all processes there will need to be a clear operating protocol to ensure the roles of the various participants are clear.

    Issue 3 - Briefing Sessions for Members where size, complexity, impact demands an comprehensive discussions with developers undertaken.

  37. This is already happening. A briefing session for Members was held on the Telephone House site. A briefing session was also held for Members on the Cinema Site, Royal Tunbridge Wells In addition to these, it is of course normal practice for Members to contact officers from time to time and to receive informal briefings on specific proposals.

  38. The Working Party should however bear in mind that briefings are not decision-making forums and officers should not be expected to give an advanced indication of their likely recommendations. Similarly Members will not be expected to express a view on the merits or otherwise of the proposal. The main purposes of a briefing would be to inform Members, identify the key planning issues, enable Members to respond more effectively to constituents and allow Members to provide feedback to officers on key areas of concern. Again a clear operating protocol will need to be provided.

    Issue 4 - Improved clarity of decisions (reasons for refusal or conditions following approval particularly where decision is contrary to officer advice.

  39. The Local Government Association, in its document on 'Probity in Planning' emphasises that if a Planning Committee makes a decision contrary to the officer's recommendation (whether for approval or refusal), a detailed minute of the Committee's reasons should be made and a copy placed on the application file. The officers should also be given the opportunity to explain the implications of the contrary decision. The Courts have expressed the view that such reasons should be clear and convincing.

  40. This is broadly in line with our current practice but there is scope to tighten up this part of the process to ensure greater clarity and certainty. In certain, complex cases it may be advisable to adjourn the meeting briefly.

    Issue 5 - Senior management involvement in deciding response to Planning Inquiries, while informing/consulting appropriate Members.

  41. Senior management is involved in the appeal process, particularly in selecting an appropriate level of professional officer to represent the authority and in attending briefing meetings with case officers and Counsel as appropriate. In certain circumstances local Members or the relevant Chairman may wish to be kept advised of progress with the appeal or be briefed on matter arising from it. However we support the view that the final decision on the way forward should remain an officer level decision.

    Issue 6 - Members participating as witness at Inquiry to take officer advice and act in accordance with a protocol.

  42. Should Members be requested to attend a Public Inquiry as a witness on behalf of the LPA it would be expected that their attendance and participation should follow full consultation/agreement with officers. Should they wish to attend on their own behalf, they should take officer advice [see response to Key Issue D] and act in accordance with an agreed protocol

    Issue 7 - Increased/improved training opportunities for Members.

  43. Several training events have been organised for Members in recent years but there is scope to improve and extend the programme of training on offer. The Government has in its recent Green Paper confirmed its view that Elected Members also need to become more 'expert'. In its view' Councillors should undergo training before they sit on Planning Committees and take decision effecting development in their areas.

  44. Officers are currently working on a training programme to be put in place shortly after the elections in May 2002. Individual training opportunities will also be provided over the next 3 months.

  45. As well as formal training there is support for the concept of closer involvement between Members and officers (e.g. sharing visits or work activities). The Members' tour was a recent opportunity for officer/Member interaction and an opportunity to develop a better understanding of roles and responsibilities.


    Conclusions

  46. This report has provided background information and commentary in order to assist discussion at the Working Party. On the assumption that there is likely to be a further meeting of the Working Party, it has not attempted to make specific recommendations. These could perhaps be developed following discussion at the first meeting, and firmed up at the second meeting.

  47. There are clearly opportunities to work together to improve in the short-term the service we provide our customers and other stakeholders in development control. We are keen to hear the Working Party's views on all of the 'Key Issues' covered in this report.

  48. In considering their recommendations Members may find it helpful to consider the following area for priority for operational change:-
    • The development and implementation of clear operational protocols.
    • Extended and improved Member/officer training and development opportunities.
    • Active encouragement to developers to engage in pre-application community consultation, particularly on larger or more complex cases.
    • Greater clarity of decisions at Committee
    • Enhanced opportunities for Member briefings and for community engagement

  49. It is also hoped that the Working Party will support the work already under way on the Development Control Charter.


    RECOMMENDED:
    -Members' views are invited.

    Contact Officers:
    Nigel Eveleigh - Head of Planning & Building Control Services
    Martin Harris - Borough Secretary & Solicitor



    TWBC Internal Inquiry into the Telephone House Debacle

    The Telephone House Neighbours Association, Tunbridge Wells
    The aims are to heighten peoples' awareness and concern for the controversial high density development on
    Telephone House site, Church Road / York Road, Tunbridge Wells.