Council respond to legal question on TBA/Invent planning decision

Following criticism of the length of time being taken to answer a question regarding the legality of the recent TBA/Invent site planning decision, Rochdale Council legal department has responded with an explanation setting out why they believe the procedure followed to be legal.

The response:

I refer to your query to the Borough Solicitor concerning the decision taken by the Rochdale Township Planning Sub-Committee on 23rd January in respect of planning application D47830 for residential development on the site of the former office building on Shawclough Road. Ms ****** has referred your query to me. I apologise for my delay in responding, but I was not present at the meeting and needed to find out what actually happened before I could form a view on the legal implications. There has also been the pressure of other work.

I am informed that the proceedings at Committee were as follows:

The application was recommended for approval, and the Committee heard from both the applicant's representative and from objectors. Councillor Bailey, the ward councillor, moved to refuse the application and a vote on that motion was taken. The vote was 3 to 2 in favour of refusal. The concerns of Committee during the discussion related to the highways implications of the development, not (I must stress given the nature of the current public comments) the possible contamination of the site. Following the vote, but before the decision was announced by the Chair, Committee was asked for its reasons, which were required to be recorded as the decision would have been contrary to recommendation. Councillor Brett advised the Committee that they would be likely to lose an appeal against refusal of planning permission, and that the Council would have costs awarded against it if it could not produce evidence to support its case. He did not threaten Members with 'surcharge', which is an entirely different thing to planning appeal costs, and in my view he was entirely correct to remind Committee of the potential consequences of taking planning decisions without evidence to support them. Following this, Committee reconsidered the matter and decided to grant permission.

The two issues now arising are whether the first vote constituted a decision of Committee and, if it did, whether Committee were able to revisit the matter and change their mind.

On the first issue, although other opinions differ, I feel that the better view is that the decision is taken when the vote is complete, and does not depend on the Chair's announcement. That being so, the first vote did constitute a decision of the Committee, albeit a decision that was not in accordance with the Council's adopted Code of Conduct for Members and Officers dealing with Planning Applications, as no reasons for it were given.

Members were then advised, entirely properly, about the implications of this decision and that there was no professional support for the concerns about the highways that had been raised in the discussion, and they then revisited their decision.  There is no authority on whether they were able to do so. Although the normal rule at Council meetings is that this can not be done, the situation at Committees is seen as being different. The standard text on the subject, 'Knowles on Local Authority Meetings' discusses the point and concludes as follows: "The wishes of committee members are paramount and, provided that the members present when the business was first dealt with are still present and no others have come into the room and no executive action has been taken on the resolution by a zealous officer, i.e. the circumstances are precisely as they were at the time when the original decision was taken, it would not seem unlawful for the chairman to permit the matter to be reopened." There is also the commonsense argument that Members should be able to revisit a decision taken in contravention of their own Code of Conduct.

There is a further aspect to this matter. The matter before Committee was an application for planning permission, and the Courts have ruled that a resolution to grant planning permission is not effective until the decision notice is issued to the applicant. In my view, this strengthens the case in favour of allowing Committee to revisit their decision at the same meeting and, especially where, as here, they had not even moved off the item.

I have copied this response to those others who have expressed an interest in this issue.

Yours sincerely

******* ******

Planning Solicitor

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Talking to Rochdale Online about the council response, Save Spodden Valley Co-ordinator Jason Addy, who was present at the meeting and who had submitted in writing to planning officers his concerns, said: "I am adamant that Councillor Brett referred to surcharging. The words "threat of surcharging" were certainly used. I am surprised that one of our Borough solicitor's account and opinion of Councillor Brett's words has been expressed in the way that it has.  

"I stand by the fact that Councillor Brett used the word 'Surcharging' - be that an incorrect use of the word by him to describe the legal consequences or not. The threat of surcharging is a stick that has been used to against past Rochdale planning committees. Such threats must have a negative impact on Councillors.   

"Councillor Brett's manner when speaking his words was construed by many in the public meeting to be aggressive - especially when given the nature and consequences of the decision being taken.

"In fairness to Councillor Brett, he was referring to specific points (countering the traffic and overdevelopment issues). However, when taken in context with the Planning Officer's dismissal of the contamination concerns by reading out the text of a drafted reply from the Contaminated land officer not present (and importantly, a reply that did NOT address or mention the Atkins Report recommendations at all) then the planning councillors may not have had all the information to hand in order to reach an informed decision.

"As regards asbestos contamination, I consider that the conduct of officers, prior to and in the meeting, may have made an already difficult issue for local Councillors to voice and consider a very much more awkward task. This was made more difficult after Councillor Brett's outburst and threats of surcharging.

"Also, immediately prior to the vote, the Planning Officer made what many considered an extraordinary statement (supposedly on behalf of local residents?) and perhaps a veiled threat, that if residential development doesn't go ahead then the area will remain an unsightly eyesore. This was mere supposition - perhaps not appropriate for an officer to express prior to a multi-million pound planning decision.     

"An open and thorough examination of these matters may unearth more than asbestos. Something seems to have been buried in this town for far too long."