Friday, 10 January 2014

Publishing 'pre-application' advice... making planning application information public... or not

At last month's full Council, a question was asked with considerable ramifications:

Jessica Bailey asked for confirmation on the publishing of pre-application advice. 

In response, the Chief Executive advised that the Council had been waiting for a decision on this issue from the Information Commission. The decision notice had endorsed the Council’s approach and pre-application advice could now be published after an application had been submitted. 

Pre-application advice - confidentiality (Overview and Scrutiny Committee minute 30) 

In response to a question, the Chief Executive advised that the Committee had resolved to await the outcome of the Information Commission’s investigation before revisiting the issue of pre-application advice. The Council had now received that advice which upheld the Council’s stance - the appropriate time to publish pre-application advice was when a planning application had been submitted. The Committee Chairman, Tim Wood, confirmed that pre-application advice would be published at the appropriate time.

And later at the same Council meeting, a motion was carried:

Motion 2 – Probity in Planning report 

The following motion (in the names of Councillors Claire Wright, Roger Giles, 
Trevor Cope, Ben Ingham and Susie Bond), was proposed by Councillor Claire 
Wirght and Seconded by Councillor Roger Giles: 

"This Council acknowledges the importance and supports the principle of complete openness and transparency in local government. The Council therefore agrees to accept in full with immediate effect all the recommendations within the Probity in Planning report jointly produced by the Local Government Association and the Planning Advisory Service in April 2013. 
In particular the Council will implement the guidance that pre-application advice issued should be publicly available." 

The Leader proposed an amendment to reflect when pre application advice should be made public. This amendment was seconded by Councillor Andrew Moulding and accepted by Councillor Claire Wright. 

RESOLVED that the motion be agreed as printed subject to the second paragraph now reading: ‘in particular the Council will implement the guidance that pre-application advice issued should be publicly available once an application is lodged.’ 

This follows on from discussions about 'probity' at local government:
Futures Forum: Concerns about transparency continue in East Devon...
Futures Forum: Probity, accountability and transparency

And the immediate concerns about how trees were damaged at a Westhill development:
Futures Forum: Protecting trees in East Devon: District Council to debate
Futures Forum: District Council moves to set up forum to protect trees in East Devon... next year

However, in today's Express & Echo, it seems that the District Council wishes to 'review' how it issues pre-application advice:

Advice given to developers by East Devon District Council officials could be made public

By Exeter Express and Echo  |  Posted: January 10, 2014
By Fran McElhone
 Comments (0)
East Devon District Council is conducting a review into whether advice issued to developers before they submit an application should be made public. Council chief executive, Mark Williams made the announcement at the full council meeting last month.
It followed advice from the Information Commissioner on the issue who affirmed that once an application has been submitted, the advice given to the applicant could be published alongside it for the public to view.
The advice came after new Ottery St Mary town councillor, Jessica Bailey submitted a complaint to the Information Commissioner after the council rejected her Freedom of Information (FOI) request asking to see the pre-application advice given to a resident seeking to build houses in the village of West Hill.
In May, Westcountry Milk director David Crocker submitted a planning application for the demolition and replacement of an existing bungalow with three houses at Elsdon Lane, adjacent to his home. Prior to submitting the application, a senior planning officer had told him that his proposed development would have an “unacceptable impact on the existing trees” and described this as a “major factor”. Four large oak trees were subsequently felled at the site.
His application was subsequently refused by the Development Management Committee in November.
Cllr Bailey claims that the advice given by the council to the prospective applicant could have led to the felling of the trees.
However Mr Crocker is adamant that his decision to fell four out of eight oak trees on his land had nothing to do with the planning advice issued but was because they were obstructing the light onto the site, effecting te existing homes.
The council’s planning department ruled that Mr Crocker had not acted unlawfully in felling the trees, which did not have Tree Protection Orders on them and were not in a conservation area.
After Cllr Bailey’s FOI request to see the pre-application advice was refused by the council, she submitted a complaint to the Information Commissioner. Although the commissioner ruled that the council had acted entirely properly, on the back of his advice the publishing of the pre-application advice relating to the application was subsequently permitted.
And as a result of the advice, and consideration of the Probity in Planning report produced by the Planning Advisory Service, the council is set to review its procedures regarding if, how and when, pre-application advice could be published in future.
“It has long been the source of frustration and concern on the part of East Devon residents that discussions which take place behind the scenes between developers and planners at the pre-planning stage have not been revealed when that developer has subsequently submitted a planning application,” said Cllr Bailey.
In September councillors on the Overview and Scrutiny Committee considered a report which recommended that the council’s current arrangement to keep pre-application advice confidential, for numerous reasons, be maintained unless the Information Commissioner recommended otherwise.
“It took me eight months to obtain the advice from the council,” continued Cllr Bailey. “But it was worth the battle. The disclosure of pre-application advice should make decision making more transparent and re-assure the public what goes on between planners and developers before a planning application is submitted.”
The main reason pre-application advice has not been published in the past is because it is generally deemed “commercially sensitive” from a developer’s point of view.
A district council spokesperson, added: “After investigating the way the council handled the FOI request by Cllr Bailey, the Information Commissioner concluded that it had correctly applied the exception in the regulations concerning disclosure of pre-application advice. He said that the public interest was better served by non-disclosure. He also noted that there is no evidence that the removal of the trees was unlawful and said that residents had still had an opportunity to object to the proposal and to voice their disapproval of the trees being cut down. The review will establish a process to detail how and when pre-application advice will be published in future.
“Until this happens they will continue to be treated on a case-by-case basis having regard to the Information Commissioner’s decision and the principle of releasing pre-application advice once an application has been received.”

Advice given to developers by East Devon District Council officials could be made public | Exeter Express and Echo

This intention to 'review' the advice seems to contradict the decision made at Council:

EDDC appears to backtrack after planning advice decision

I was a bit surprised when I read this story, webbed today on the Express & Echo website.
EDDC states that it is conducting a review into how and when pre-application advice is published.
But a decision was made at full council in December to publish pre-application advice once a planning application was submitted!
See this link and the resolution at minute 53 - http://www.eastdevon.gov.uk/council_mins_041213.pdf - 
which states:  
“That the motion be agreed as printed subject to the second paragraph now reading: ‘in particular the Council will implement the guidance that pre-application advice issued should be publically available once an application is lodged.’
Where do the minutes say anything about a review, as per EDDC’s statement in this article? 
Full council made a clear decision, which is set out in the minutes… so what is going on?  I have written to EDDC’s chief executive asking for clarity.

Claire Wright - Your Independent East Devon District Councillor for Ottery Rural

It is clear that there would be ramifications in making pre-application advice from planning officers publicly available once an application has been made:
EDDC and democracy: crunch time – developer secret cats out of the bag | Sidmouth Independent News

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