When I wrote my blog last Christmas about the Planners* I was very aware of the professionalism they showed and their need to follow their Code of Conduct**. I was also aware that there was a lack of appreciation by some members of the public of the work they do and the way in which they do it.
However, the recent articles and Comment in the Guernsey Press last week was not an attack on their work but an attack on the way in which the political members of the Development & Planning Authority (D&PA) undertake their responsibilities. It is this I wish to address. I should add that, whilst the process I describe is factual, where I express any views these are mine and not that of the D&PA as a whole.
Applications for development are the responsibility of the political members of the D&PA but, at the beginning of this term in 2016, we agreed that the majority of decisions should be delegated to the Planning Service with certain exceptions. However, if an application fits the publicised criteria, then it goes instead to an Open Planning Meeting (OPM). The criteria is as follows:
- A departure from the Authority’s established policies;
- The proposal appears to raise particularly contentious or sensitive issues;
- A Committee Member has requested formal consideration by the Authority;
- Where the application is by a Committee member or Senior Officer advising the Committee;
- An appeal to the Planning Tribunal, or other legal challenge, appears likely following determination of the application, service of the Notice or making of the Order.
It must be remembered that an OPM is not a means of appeal. The Planning Panel is the means of appeal; the D&PA is only the first line decision maker. When we decide to hold an OPM, we conduct it in accordance with guidance not regulations and these our President can and does vary from time to time.
The OPM is an even handed manner to give a chance to both applicants and respondents to give us their views on the application. It is the same for both representors and applicants – four minutes each, saying only what they had written in their representations and with no repetition of what another has said. Any party can engage architects and lawyers and, indeed, some respondents have done so.
It must also be remembered that the Planning Service is there to give impartial advice on the planning regime in accordance with their Code of Conduct. They will explain to anyone what the legislation says in any particular circumstance but cannot advise on whether a proposal for development will be successful or not.
If an application, when originally submitted, fits the criteria for an OPM but it is subsequently amended, re-publicised and receives fewer representations which raise concerns, we must consider if we feel an OPM is still appropriate.
So specifically with regard to the proposed development at the Rue De Cobo, we considered that the application, which had been revised and fully publicised, did not meet the OPM criteria. Not only that, far from abdicating our responsibility for the decision, we as a Committee reviewed the revised application and made a conscious decision to delegate authority to the professional planners to decide if the application complied with planning policies.
It seems to have also been forgotten that that process of calling for the views of neighbours, politicians and the parish Douzaine was successful in this case. Changes were made to the application and – OK it was not entirely to everyone’s satisfaction – but it went some way towards it. We had 26 people object to the original application but only 7 objected to the revised plans, none of whom were Deputies.
Should the lack of people objecting to the revised plans be interpreted as acceptance or fatigue? But why shouldn’t the D&PA take it as acceptance? Are we mind readers? And why, when it is so simple to make a further representation, should we take it as fatigue? If you consider that, in this instance, specific letters were sent to all the 26 respondents notifying them of the revised application and all they needed to do, if they wished to make a further objection, was to e-mail firstname.lastname@example.org providing their concerns*** and a request to speak at an OPM if one is to be held – how easy is that?
The D&PA must and does consider every application on its merits whether it is the first or the tenth iteration and any respondents should do so too. The D&PA cannot be expected to take silence as an indication of continued objections especially when we consider that those objections, which can be taken into account in the planning context, have been catered for in the changes to an application.
The Rue De Cobo revised plans fitted the requirements of the policies of household development. No Deputies objected. Only the Douzaine, who are fully aware of the way the planning regime works, and 6 other respondents raised objections to the new plans but it was felt that they did not raise any substantial objection in relation to the material considerations which might justify refusal of the application. Whilst the respondents did not have an opportunity to have their say in an open forum, they would not have been able to add anything further than what they said in their original letters. As there was nothing in their original letters which gave rise to a concern over the revised plans, the application just did not fit the OPM criteria.
Whilst some may say that ‘the proposal appears to raise particularly contentious or sensitive issues’, those issues must be planning related. The original proposal certainly did raise such issues but the second did not. The proposal was altered because of the views of those 26 respondents resulting in an application which was acceptable in planning terms and approved.
The reason this recent decision by the political members of the D&PA has become news worthy is not because the approved application was contentious but because those who objected to the previous planning application were not conversant with the planning process. All respondents, whether or not Deputies, could and should read the information on gov.gg and/or talk to the Planning Service and understand how planning applications are decided. The applicants do, some respondents do and so should Deputies who wish to object to plans. With all these opportunities, it should provide answers to all the questions on the planning process applicants and respondents need to know. If it does not then please just e-mail us and tell us what else we can do.
All that said, I have often voiced the concern that we are raising false expectations by holding OPMs; giving the impression that there is something to be gained by having a planning application being heard by politicians. It must be remembered that the OPMs are not a means by which the public can air grievances believing they will make a difference to the outcome. Those grievances should not make a difference if they are nothing to do with the planning regime. Even though elected individuals are responsible at OPMs for making quasi-judicial decisions, the myth that their emotions are engaged should be dispelled. Because, if our emotions were engaged overriding planning law, we are in the wrong and should not be making planning decisions especially as, if the decision we make deviates from the legislation, it can be appealed in exactly the same way as can a decision from the Planners.
So, when a decision is borderline, an OPM being held may be beneficial so that politicians can apply a subjective view but, if it is a clear cut case of being either in accordance with the planning policies or not, why take it to an OPM? If we did, it would raise a false expectation that we will make a decision that does not comply with those same policies.
These policies, which include the Island Development Plan, the Supplementary Guidance, the Development Frameworks and, together with pre-application advice, have resulted in fewer refusals and appeals. Indeed, it has also resulted in fewer cases which need to go before an OPM. We, the politicians on the D&PA, are responsible for the policies as well as providing the democratic accountability for the action of the professionals of the Planning Service and it is these policies which have already shown they are flexible and have saved money.
However, whilst I, personally, question whether politicians should be involved in even border line decisions at OPMs, I do believe that there is a need for appropriate training for any Deputy who has to make quasi-judicial decisions such as those at an OPM.
Last year, I attended a two day course offered to those members of the public who are on our Appeal Panels and Tribunals. It is not offered to Deputies as of right and I believe that it should. It is not cheap and, as usual, it cannot be made compulsory for Deputies to attend but it is a solid grounding to those making such difficult decisions affecting all of us.
So, whilst I prefer politicians to stick to what we were elected to do – making policy – if we are to continue to make quasi-judicial decisions then we should all have the appropriate training to go with it.
* Royal Town Planning Institute’s Code of Conduct ** https://www.gov.gg/opm ***Please also include your name and address