[Subsequent note: much of this post is now superseded by regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020]
Things are moving fast. My blog post last week was titled What To Do? This week focuses on the solutions that we are seeing already coming forward in the face of local planning authorities’ practical inability at present to hold “normal” planning committee meetings.
It’s not straightforward because obviously any solution isn’t just about the law at all, but about the individual authority’s organisational priorities, operational resilience and access to technology.
I referred in last week’s blog post to the letter dated 17 March 2020 to MHCLG from ADSO (Association of Democratic Services Officers) & LLG (Lawyers in Local Government):
“We have advised local authorities to hold only essential meetings and with the minimum number of people attending to satisfy a quorum. Where possible, Councils should be using urgency powers within their Constitutions to take decisions outside of public meetings. This will be possible in most instances but not in others. For example, Schedule 12 of the Local Government Act 1972 requires Councils to hold an Annual meeting during March, April or May depending on whether it is an election year or not. As you will be aware, important business is conducted at these meetings including the election of Mayor/Chairman of the Council and appointments to Committees etc to enable decision-making processes to function effectively.
Paragraph 39 of Schedule 12 to the Local Government Act 1972 states that any decision taken at a local authority meeting (including committees and sub committees) shall be decided by a majority of those present and voting. This means that it is impossible to have a meeting unless a quorum is present in the room. Whilst the law permits other members to join the meeting virtually, they cannot vote. This will become increasingly more difficult as further restrictions on peoples’ movements are imposed. For example, a high proportion of councillors are over 70 years of age and could be prevented from attending even essential meetings if currently publicised Government measures are imposed for that age group. We appreciate that this will require an amendment to the Local Government Act 1972, but we feel it essential to ensure continuity in local authority decision making and the provision of essential services. An alternative could be that local authority members could be counted as being present in a meeting if they are in a location where they can hear the conversation in the meeting room and persons present in the room can hear what they are saying.”
In order to enable “virtual” council meetings, an amendment was introduced to the Coronavirus Bill on 23 March 2020 before it was enacted as the Coronavirus Act 2020 on 25 March 2020. In consequence, section 78 of the Act includes a delegated power enabling the Secretary of State to make regulations relating to:
(a) requirements to hold local authority meetings;
(b) the times at or by which, periods within which, or frequency with which, local authority meetings are to be held;
(c) the places at which local authority meetings are to be held;
(d) the manner in which persons may attend, speak at, vote in, or otherwise participate in, local authority meetings;
(e) public admission and access to local authority meetings;
(f) the places at which, and manner in which, documents relating to local authority meetings are to be open to inspection by, or otherwise available to, members of the public.
In relation to (d) above, Section 78(2) of the Act enables provision to be made in the regulations for persons to attend, speak at, vote in, or otherwise participate in, local authority meetings without all of the persons, or without any of the persons, being together in the same place (i.e. remotely).
Section 78(3) of the Act provides that the special arrangements for Local Authority Meetings to be enacted in the regulations will only apply to meetings to be held before 7 May 2021.
Section 78(13) provides that the regulations to be made under this delegated power are to be subject to the ‘negative resolution procedure’. Under the negative procedure, the regulations become law on the day that the Secretary of State signs them and remain law unless a motion to reject it is agreed by either House of Parliament within 40 sitting days (highly unlikely in practice). Such regulations can also be laid when Parliament is not sitting (handy given that Parliament is currently prorogued until 21 April 2020).
So far so good but obviously (1) regulations are needed and (2) unless the regulations specifically provide (which I would not anticipate) they will not override each authority’s individual constitution which sets out the necessary procedures within that authority as to for instance the holding of meetings and the extent of officers’ delegated powers. Each constitution sets out the procedure to be followed for its amendment.
There are legal risks in any “short cuts” in decision making, where the procedure followed does not comply with legislative requirements, the authority’s own required processes as set out in its constitution or is in breach of wider administrative law requirements. There was an interesting discussion on this tension during today’s 50 Shades of Planning podcast episode Planning and Coronavirus (28 March 2020) featuring Anna Rose (Planning Advisory Service), Jonathan Easton (Kings Chambers) and Stefan Webb (FutureGov) – participants in the process may presently be “nice” in the face of the present Covid-19 crisis but what about in several months’ time when decisions are being crawled over, for instance by objectors?
Ahead of the implementation of the legislation, and after an initial wave of cancelled committee meetings, we are seeing authorities arrive at practical solutions. For instance:
Trio take over Manchester planning decisions (North West Place, 27 March 2020)
“The power to decide on major Manchester planning applications has now been delegated to council chief executive Joanne Roney, alongside chair of the planning committee Cllr Basil Curley and deputy chair Cllr Nasrin Ali.
The trio will decide whether to consent or refuse proposals for schemes based on recommendations from the director of planning, Julie Roscoe.
The delegation of power was confirmed at the council’s full meeting on Wednesday.
A report to the meeting called for authority to be given to the chief executive to enable her to determine any planning application, listed building consent or tree preservation order which would otherwise have been decided by a planning committee.”
Team of just three Brighton councillors will make planning decisions (The Argus, 26 March 2020)
“Brighton and Hove City Council’s three party leaders agreed one councillor from each of the Labour, Green and Conservative groups will make urgent decisions rather than leave them to officers.
Three councillors sitting as the Planning Committee on Monday, 23 March, agreed to create the urgency sub-committee to decide on any major developments that need a decision during the Coronavirus (Covid19) pandemic emergency.”
For those concerned as to the implications of decisions being left within a small caucus of members, Luton Borough Council has an approach (recounted by David Gurtler on twitter) whereby four members are physically present, with officers presenting virtually and with other members able to log in and participate in the debate (although not vote).
These options seem pretty practical to me. Concerns have been expressed as to whether options such as these constrain the ability for the public to participate. In my view, this concern is overdone. Participation amounts to (1) having the papers in advance (2) being present in order to hear what is said and (3) (subject to what is provided for in the individual authority’s constitution) being allowed to speak. The papers will still be available in advance. If meetings are available on webcast, as many have been for some time, the second concern is addressed. The right to speak is already tightly constrained, invariably with requirements as to advance notification and strict time limits for a presentation and the relevant individual (whether applicant, supporter or objector) could easily join remotely by telephone or web link to say his or her piece in exactly the same way as if present. As for the presentation of schemes to committee and the ability for members to understand the implications of a proposal without the need for a site visit, the possibilities of technological solutions such as Vucity are almost boundless.
Of course, there is no reason why less controversial applications should not be determined by delegated powers as indeed most already are – see my 14 January 2017 blog post The Rest Of The Iceberg: Delegated Decisions.
Various authorities are looking to focus on the use of delegated powers, with additional oversight/ sign-off at chief executive and/or committee chair level. See this statement by Wychavon District Council, for instance:
“Planning Committee meetings have been cancelled for the foreseeable future. To make sure planning decisions can continue to be made at the current time, we will be using emergency decision making powers, as delegated within our constitution to the Managing Director, Deputy Managing Director, Planning Committee Chair or Vice-Chair.
These individuals will work with planning officers to make what would have been Planning Committee decisions. We are working to minimise the overall level of applications that are required to be considered by the Planning Committee in accordance with the Council’s constitution regarding delegated powers.
Officers will not be carrying out site visits at this time. Instead we will be requesting applicants provide photographic and/or video evidence as may be necessary. If insufficient evidence is made available to allow officers to adequately assess the applications, we will seek to agree extensions of time with applicants, to deal with their planning applications. Officers will not themselves be placing site notices at this time, but will ask applicants to display these and provide evidence to confirm this.”
All of this chimes with the advice in Steve Quartermain’s final chief planners letter (24 March 2020):
“It is important that authorities continue to provide the best service possible in these stretching times and prioritise decision-making to ensure the planning system continues to function, especially where this will support the local economy.
We ask you to take an innovative approach, using all options available to you to continue your service. We recognise that face-to-face events and meetings may have to be cancelled but we encourage you to explore every opportunity to use technology to ensure that discussions and consultations can go ahead. We also encourage you to consider delegating committee decisions where appropriate. The Government has confirmed that it will introduce legislation to allow council committee meetings to be held virtually for a temporary period, which we expect will allow planning committees to continue.
We encourage you to be pragmatic and continue, as much as possible, to work proactively with applicants and others, where necessary agreeing extended periods for making decisions.”
One side effect of this period has been to jolt many of us finally into more modern and efficient ways of working and communicating. As a result of new processes having to be used, it could well be that the planning committee process, and indeed local democratic process more generally, will also operate rather differently in the longer term and for the better – perhaps a wider cross-section of the community might even be prepared to play a role as elected councillors if fewer hours needed to be spent physically in the council chamber and committee rooms?
Simon Ricketts, 28 March 2020
Personal views, et cetera
With thanks to Michael Gallimore (who will spot that I cut and pasted passages from a client note that he prepared earlier in the week), Rebecca Craig and Safiyah Islam.