‘Can you make a balanced decision?’

‘Twin Tracking’ an appeal and an application is unfortunately, an all too common practice and perhaps whilst slightly ‘underhand’, there is a loophole which allows this to occur so technically, no official rules have been broken.

It’s incredibly hard for a planning committee to act impartially when they know that they have a costs application looming over their heads.  Technically, this should not affect the planning committee decision. The Committee are supposed to look at all the evidence in front of them and make a decision based on the merits or negatives of the case regardless of appeals (including costs) and therefore act reasonably (by the definitions of the Wednesbury Principle)

The Wednesbury Principle

In 1947 Lord Green, Master of the Rolls expounded the following classic public law principle

‘a person trusted with discretion must, so to speak, direct himself properly in law.  He must call his own attention to matters which he is bound to consider.  He must exclude from his consideration matters which are irrelevant to what he has to consider’    And, if ‘he does not obey those rules he may truly be said, and often is said, to be acting unreasonably’.

However, we’re all human and the threat of costs must loom over, concern and influence  any one in public office.  It is unreasonable to expect the Planning Committee to ignore the threat of costs to their authority.  Why?  Because Councillors are those who are accountable to the local resident and will be accused of wasting funds.

The applicant’s agent has written the following:

‘In the event that the resubmitted planning application is approved, the appellant commits to promptly withdraw both their appeal and costs claim. Appealing against the Council’s decision of last year is undertaken with regret by the applicant and they have no desire to continue with the appeal process, if this becomes superfluous.’

It could be argued that the applicant has placed pressure on the Council and Planning Committee to approve this decision and removed the ability of the Councillors to act reasonably and make a balanced decision

Regardless of the merits or negatives of the application at Hellifield, the simple, most reasonable course of action would have been to delay the submission to the planning committee for consideration because, quite simply, Councillors cannot reasonably be expected to ignore the applicant’s agent statement “In the event that the resubmitted planning application is approved the appellant commits to promptly withdraw both their appeals and costs claim’’.  

Emotions run high in controversial applications with strong local objection.  Planning is not about emotion, it is about considered examination of the facts.  No one can or should expect any member of the planning committee to reasonably and objectively consider this application because of the threat of costs.  The threat of costs is not a material planning consideration.   If councillors ignore the threat of costs they are not acting reasonably towards the electorate to whom they are accountable, the threat of costs is material to tax payers.

The Planning Committee are damned if they do and damned if they don’t

The Planning Committee have to make a reasonable decision when they have been placed in an unreasonable situation.  

Put simply - It’s not fair on the Councillors.  The application should be deferred until Councillors are allowed to consider the application reasonably.  This would be the reasonable  solution for both the Planning Committee, local people and the local Authority.

Planning decisions can only be made on valid planning grounds or material considerations

The most relevant being

• national planning policy and advice
• local planning policies
• draft policy
• the environmental, social and economic impacts of the proposal
• access and provision of infrastructure for the site
• the design of the proposal
• the planning history of the site
• the views of organisations and individuals in relation to relevant planning matters