Well over 90% of all planning applications are determined by planning officers acting under delegated powers.
Certain types of development – large housing sites and industrial developments, applications submitted by council members, etc – are reserved for the planning committee, but all the rest are determined by planning officers in private.
Prior to 2002, when the cabinet model was introduced, there was also a provision that gave local members the right to have applications in their wards dealt with by the committee.
The advent of the cabinet system required the constitution to be rewritten and one of the changes brought in was the removal of this right.
This change went unnoticed until an application came up which the planning officer was minded to refuse, but which the local member thought ought to be granted permission.
Of course, as all applications are supposed to be determined in line with the policies in the local plan, you might wonder why it should make any difference who made the decision.
The explanation goes back a long way to the days when Roger Anderson, head of planning at the former Preseli District Council, coined the term “bungalow farmers” to describe those members who campaigned to allow residential development in the open countryside contrary to the local plan and the advice of planning officers.
Obviously wangling a valuable planning permission for one of your constituents was seen as a good way of ensuring their support at the next election and there was a tight knit group of members who could usually be relied upon to vote these “unlawful” applications through – a process Mr Anderson characterised as “you scratch my back and I’ll scratch yours”.
Once the old boys in the, then, IPG realised that this path to electoral glory had been blocked off in the new constitution there were mutterings of discontent and something called the Planning Delegation Sub-committee – later changed to Planning Delegation Panel (PDP) – was conjured out of thin air to head off any potential rebellion.
The sub-committee’s remit was to hear appeals from members who thought an application in their ward ought to be taken out of the scheme of delegation and go before the planning committee.
This process is usually, though not always, initiated when the local member has got wind of the fact that the officers are minded to refuse permission and the hope is that their chums on the planning committee will be more accommodating.
Interestingly, there is a case before the PDP this week in the name of Cllrs Mike James and John Davies involving a dwelling in the open countryside for which, I assume, the planning officer is about to give the thumbs down.
As they say in their submission:
“We have observed in the last few years an increased presumption by neighbouring local planning authorities to be far more flexible in their approach to rural regeneration and affordable homes in the context of economic benefit and rural enterprise.”
“Flexible” has a positive ring – much preferable to its opposites: rigid, stubborn, obstinate and unyielding.
However, when it comes to matters of law (including the determination of planning applications) it is a very dangerous concept because an important function of any law is to provide the citizen with certainty as to what is and is not allowed.
And, of course, in a democracy under the rule of law it is important that everyone is treated equally and that becomes problematic when an official, or a committee, have the power to decide when to be “flexible” and when not.
As the legal philosopher John Austin observed: once official discretion is allowed to override the strict application of the law you are on the high road to tyranny because men can’t always be relied upon to act from the best of motives.
Cllr John Davies’ role as one of the applicants to call-in this case to the planning committee gives me the opportunity to illustrate how this ‘flexibility’ business works in practice.
Older readers will recall that, back in 2005, Cllr Davies – the, then, leader of PCC – submitted an application for a herdsman’s cottage at Cwmbetws – his Eglwyswrw farm.
The rules at the time required that the applicant for an agricultural worker’s dwelling should demonstrate a present [my emphasis] need for an extra person to live on the site and that the application should pass a functional test (the building was of a size commensurate with the proposed use) and a financial test (the business could demonstrate that it had sufficient resources to support the extra worker and their accommodation).
The need for Cllr Davies’ extra worker was established in a report by an officer from the council’s property section who calculated the amount of labour required based on the stocking level on the farm.
As the report to the planning committee in May 2005 put it:
“Of the land area, 280 acres (113 ha) are given over to grassland supporting a dairy herd of 165 cattle, 162 other cattle and over 350 tack sheep.”
And:
“Based on the size of the holding and the farming regime [my emphasis] there is considered to be a functional need for an additional dwelling to accommodate a full-time worker in accordance with the requirements of the Local Plan Policy HS9 and government advice set out in TAN [Technical Advice Note] 6.
What was not mentioned in the report was that the dairy cattle, which accounted for more than half the labour required by the “farming regime”, had been sold off well before the planning committee meeting.
Also, five weeks before the planning committee met, the planning officer had written to Cllr Davies’ architects about the size of the proposed dwelling:
“I do not consider that the proposal which has a gross floor area (excluding the garage) of 315 sqare metres (3,400 square feet) [four times the size of a three-bed council house] is of a scale reflecting the functional requirements of the holding. I would suggest that a gross floorspace of 115 to 140 square metres (1250 to 1,500 sq ft) would be more appropriate to the functional needs of the holding.”
This functional test is designed to prevent rich farmers abusing the system by dressing up an executive dwelling for their own use as a farm worker’s cottage.
It seems the council leader put up some resistance to this attempt to downsize the building because when it came before the planning committee it was still 260 sq m (2,800 sq ft) – roughly double the 1,250-1,500 sq ft that the planning officer considered to be appropriate.
It is interesting to see how the report to committee dealt with this.
The report starts out by identifying the three main issues raised by the application one of which is: “The size of the proposed dwelling in relation to the functional need” but ducks the issue when it is discussed in the main text:
“Although the proposed dwelling is only a 3 bedroom unit it has a gross external floor space of 260 square metres (2,800 square feet) and consideration needs to be given to a financial test to establish the size of the dwelling that the agricultural unit can sustain. An assessment has been made of the farm accounts over the past three years and there is evidence of a healthy profit sufficient to to fund the size of dwelling proposed. As such the farming enterprise is considered to be economically viable and and capable of sustaining the size of dwelling proposed.”
Given the planning officer’s letter just five weeks earlier, which clearly explains the functional test as it applies to the size of the building, it is difficult to believe that this conflation of the financial and functional test in the report to the planning committee is accidental.
And this was not the only omission in the report because it is also the rule that no dwelling attached to the farm has been disposed of.
The guidelines recommend that in order to avoid “…possible abuse, it may be helpful to investigate the history of the holding to establish the recent pattern of use of land and buildings and whether, for example, any dwellings or buildings suitable for conversion to dwellings have recently been sold separately from the farmland concerned. Such a sale could constitute evidence of lack of agricultural need.”
The words “for example” indicate that this possible abuse is not limited to the sale of buildings, so it is interesting to note that in 2001 planning permission (00/0947/PA) was granted for the demolition of a two storey cottage at Cwmbetws Farm in order that an extension could be built onto the main farmhouse.
That being the case it is difficult to understand why the report to planning committee states: “There have been no relevant planning applications in the recent past”.
Clearly the planning committee should have been told why two houses were now required when a second was considered to be expendable just four years earlier.
And the Government’s Technical Advice Note (TAN 6) which the report to planning committee says has been given “significant weight” also states that these agricultural planning consents should only be granted when there is “a clearly established existing [WAG emphasis] functional need” and “the need relates to a full-time worker…”
So you have to wonder why, ten years after the permission was granted, this essential worker’s dwelling still hasn’t been built, though I understand the foundations have been constructed in order to protect the planning consent.
Then, I suppose, if you have flexible rules, you shouldn’t be surprised if people seek to bend them.
Interviewed on this morning’s Today Programme, Theresa May was asked what made her angry.
“Injustice”, she replied, “when we see the powerful abusing their position.”
Me, too, though not it seems the Tory grandees who rule the roost in the Kremlin on Cleddau.
PS. Cllr Jamie Adams was also granted an agricultural planning consent in oddly similar circumstances (see Cottage industry).