Under what authority would a PC spend money on a planning consultant to oppose a planning application?

Question

Would such an action be authorised under s111 LGA 72?

Answer 1

That’s what we are using currently but if you have GPC you don’t really need another power.

Comments

The subject PC does not have GPC so I didn’t want to go down that subject - but, since you raise it - does GPC allow a PC to engage a planning consultant?

My limited knowledge of the GPC is that it allows a PC to conduct a business activity, like a shop for example but that it is not a silver bullet to allow a PC to do anything.
Would GPC allow a PC to engage a planning consultant? It’s not a business activity as defined by HMRC (with the intention of generating a profit.)

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GPC gives councils the power to do anything an individual can do provided it is not prohibited by other legislation.

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But there are specific restrictions as defined in para 1.3.
Para 2.1 also provides an interesting perspective on the applicability of s111:

https://researchbriefings.files.parliament.uk/documents/SN05687/SN05687.pdf

And there we are, off down the rabbit hole.....  );o)

Answer 2

It's debatable whether Section 111 is sufficiently vague to be applied in this instance, but it's the nearest you'll get, assuming there is no General Power. It depends whether you believe that being a statutory consultee on planning applications is a purely passive role or extends to a function to actively contest applications.

The planning authority's position should be considered before such decisions are made. If the planning application complies with national and local policy, it should be granted, so it is unlikely that any consultant will be able to overturn it. If it goes to appeal, the Inspectorate looks only at policies and precedents, not opinions. Unless there is a significant chance of success, local councils should be wary of throwing big money at the issue for purely political reasons.

Comments

Agreed debatable / vague...  Read it through several times just to be clear in my own mind.  I would be comfortable to justify that it does but certainly agree - its as close an 'authority' as one might find - there's nothing else that even comes close.

Its an interesting point about relying upon LPA competence, consistency and application of proper process especially where (as is claimed) staff are so over stretched and under resourced and that the statutory 8 week planning app decision timeline is an aspiration of the long distant past.

Poor decisions are sometimes made, we have a local situation where a JR recently over-ruled a patiently illogical planning decision by committee and it was only pure weight of public opinion and crowd sourced funding which made that seemingly impossible mountain one which could be climbed and conquered.

So, whilst I accept we 'should' be able to rely upon the correct decision making of the LPA - and committee where applicable - as was recently proven and may well be the case with the application in mind, certain 'interested parties' in a rural county with strong representation at Cllr level from the agricultural sector (and suspected 'other' influence) can - and does - result in wholly illogical, indefensible and contrary planning decisions which fly in the face of over-riding public opinion AND existing planning law.

Under these circumstances - and on the basis that this particular application has a greater number of pubic comments than any other in recent memory - I feel it could be appropriate to ensure the combined public comments are consolidated into a single, focussed and targeted statement.

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Sometime ago a poster mentioned a PC East Bxxxt who had lost a JR and I E mailed  their Clerk and  asked what power they had used.  The guy was a qualified solicitor and said before my time  but commented  "I would say that s111 was adequate unless I could point to a more specific power which sometimes exists under subject specific legislation such as recreation or public health. If the law says we have to do something or have the power to do something and we haven’t got the skills in house we have to commission someone who has and that is conducive or incidental to the discharge of our functions".  I have however found two cases where Councils have been challenged about using s111 and have lost.   So I think this needs some legal clarification i.e. what does conducive or incidental to  actually mean .  It one of those commonly used legal terms on which different people have different views !!

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If only there were an effective system of internal or external audit that could rule on such things, or, heaven forbid, a "national association" );o)

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Is the issue less about conducive and incidental and more about whether the function of local councils in respect of planning applications is to express an opinion on behalf of the electorate or whether it extends to actively contesting applications? As local councils have no powers in relation to planning applications, can they have a function to oppose them that extends beyond the expression of objection?

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Here’s something for you legal beagles to opine on (from the Bideford case).   S111 is regarded as a subsidiary power .  As such
"Section 111 is therefore an incidental rather than a primary power i.e. it facilitates, conduces or is an incident of a substantive local authority function.  So, given that the measure is not self-standing and cannot either attach to another exercise of incidental power (no ‘incidental to the incidental’) there must be an identified primary power to which section 111 can attach"
So question what in this case is the primary power as it relates to employing consultants (S222)? .
PS I am about to argue in an upcoming review of EMR about a £100k fund we hold “to object to inappropriate planning applications”.

Answer 3

Let's go back to basics. What is the council there for? Arguably for the benefit of the community that elected them. Whilst the PC is a consultee on an application it has limited powers to influence the planners deliberations and decisions. If an application is contentious enough to warrant the PC spending money ( sometimes large amounts) in objections or challenges then surely under their requirement of fiscal prudence with tax payers money they would be required to seek overwhelming verification from the community as a whole their support for such use of their tax payers pounds.

Comments

Good point!

Important to clarify the specific detail I have in mind then.
The example of JR I quoted earlier was not PC lead (quite the opposite in fact since it was the chair of the PC who was the applicant - but that’s a WHOLE other story!). The funds for the JR in that instance were generated from an energetic and well motivated public group.
So yes, appeal process, JR process, lengthy legal dispute process - costly and questionable ‘business’ of a PC and tax payers money.
My specific current example is the potential to engage a planning consultant to consolidate a large number of public objections (and PC objection) into a single professional report.
I happen to know several planning consultants that I work frequently with and I expect such a service would be not more than a few hundred quid.
I’ve also seen objecting neighbours engage a professional to write and submit planning objections on their behalf - it is not at all uncommon.
So yes, big bucks, questionable whether PC should engage but seeking to represent such strong public opinion on a scenario which seems to really matter (more public comments than any other known application) would seem reasonable - to me at least ….

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...and of course, we must take into account the fact that for larger projects, the developers will have much deeper pockets than any local council.

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Part 1 of the Local Government Act 2000 introduced a power for local authorities in England and Wales to promote the economic, social and environmental well-being of their area although this was repealed in respect of England when the general power of competence was introduced.

On that basis, if a planning application is broadly represented, by the public to the PC, as being contrary to public well being, and the argument for such is credible, then it could be argued that the intent in the provision of the GPC as a replacement for the ability within LGA 2000 to act in the 'interest' of the community was to encompass the ability of a lower tier authority to act, incidentally (and the incident is the opportunity to present comments of support or objection to a planning application) in such a fashion....

I totally accept the argument that long and costly battles would be beyond the reasonable means and justifiable use of tax payers money - but my current example is a single application for an agricultural conversion which is currently pre-determination and where the consultee obligation may be best discharged by engaging a planning consultant to compile the PC comment.

I'm reasonably content that this would be simultaneously incidental (to the obligation to consult), good VfM and a appropriate representation of the well being of the community.

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The risk in making assumptions regarding the good of the community lies within the tendency to respond to a tiny vociferous minority. I have a controversial planning application going through the process now and fewer than 5% of the population have either attended a meeting or objected online. They assure us that the whole village is up in arms about it, but evidence suggests otherwise.

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Point taken...

Isn't that the danger though - the apathy of the majority means they get what they showed no interest in?

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I am sorry but I have been patiently reading the finer points of this debate but am I not correct in saying that the power to be used in this case falls under S222? Whether any such money spent is wisely spent is a different matter

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Section 222 relates to legal proceedings. It's debatable whether a planning matter falls within this definition.

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Whether action and money proposed to be spent must of course be ascertained as being in the interest of the community and fiscally prudent use of taxpayers money before the action is even commenced

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I have just had a situation in which my PC contributed to a legal fund other than in its own name & which the PC decided to authorise under S137.  I queried whether this was appropriate as they might not win and therefore there would be no benefit .  The clerk refused to seek a legal opinion from NALC and it went ahead.  Sure enough the case was lost .  Does that mean that the expenditure  was unlawful?

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From Section 137 para 1 - "but a local authority shall not, by virtue of this subsection, incur any expenditure unless the direct benefit accruing to their area or any part of it or to all or some of the inhabitants of their area will be commensurate with the expenditure to be incurred." It would appear that your council has failed to comply with this and that this sum should not be included in your designated account for S137 expenditure.

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>> Scottie, your s222 question might apply in your circumstance since it seems you are experiencing / describing a legal challenge to a planning decision (if I have understood correctly?)

The circumstance that I have - which gave rise to the question - is pre-determination ie still at public and consultee submission stage so nowhere near a 'legal' dispute at this point, and perhaps more importantly, I am not asking / proposing that a PC get involved after the decision stage - that would be a whole different ball park - your ball park.

I see where you're going with it but it's a different question.  Pre-determination (I think) can be s111.  Post determination / appeal / JR territory is not something I would seek to get the PC involved in - now that might be more akin to the question you are seeking to clarify?  Post determination / appeal / JR territory - not something for PC (other than perhaps PC talking at committee but that is still pre-determination)

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When I raised our fund with our EAs a few years ago , they replied.  Any comments?
Findings: We note that it is quite common for local councils to build earmarked reserves for spending in respect of future planning issues and that local councils have powers to do so under various legislation including the following: Local Government Act 1972 s111, 222, 250; Town and Country Planning Act 1990 s61F, Schedule 1 s8(4)(a). We would expect that the Council always ensures that it is acting within its powers when making expenditure from this earmarked reserve. We note that the Council clarified the future use of the reserve at a Finance and General Purposes Committee meeting in June this year as follows: ‘include engagement activity, publicity, professional advice, review of the NDP any other costs associated with defending the Green Belt, at various points in time and potentially covering numerous developments.’ The relative size of the reserve is a matter of Council policy and as such is outside our remit.