Supreme Court Praises LLG’s Model Council Planning Code & Protocol for Providing “Sound Practical Advice”

Publish date: 14/01/2019

The Supreme Court Case of R (CPRE Kent) v Dover District Council (SC(E)) 2018 1 WLR has cited in judgement the LLG’s Model Council Planning Code, referencing the protocol at paragraphs 60-62 and calling it “useful advice” and “sound practical advice”.

The Model Code was first produced in 2003 and sought to replace a number of individual and sometimes haphazard approaches in individual councils. It was drafted by local government colleagues and tested with national bodies and others. It has proved to be one of the most successful and popular guidance documents produced by LLG.

Philip McCourt, who is Director of Governance and Assurance at Wirral Council and ACSeS (now LLG) past President, led the drafting of the Model Code and launched the current version at the LLG Weekend School in April 2014 said that

'This is an example of the impact that LLG can have when it seeks to adopt and promote a common publicised approach, pulling together and sharing the best practice knowledge of colleagues. The result is a better product, held in higher regard by local authority members and the profession.'

Suki Binjal, President of LLG said

'Producing best practice guidance of this kind relies on the input of colleagues, but better supports local government lawyers as a whole and collectively saves us time and effort.'

To view the Model Council Planning Code & Protocol please click here

Judgement Excerpt

60. Finally, with regard to Sales LJ's concerns about the burden on members, it is important to recognise that the debate is not about the necessity for a planning authority to make its decision on rational grounds, but about when it is required to disclose the reasons for those decisions, going beyond the documentation that already exists as part of the decision-making process. Members are of course entitled to depart from their officers' recommendation for good reasons, but their reasons for doing so need to be capable of articulation, and open to public scrutiny. There is nothing novel or unduly burdensome about this. The Lawyers in Local Government Model Council Planning Code and Protocol (2013 update) gives the following useful advice, under the heading "Decision-making": "Do make sure that if you are proposing, seconding or supporting a decision contrary to officer recommendations or the development plan that you clearly identify and understand the planning reasons leading to this conclusion / decision. These reasons must be given prior to the vote and be recorded. Be aware that you may have to justify the resulting decision by giving evidence in the event of any challenge." (their emphasis) The decision in this case

61. The members of the Dover planning committee on 13 June 2013 had an unenviable task. The meeting started at six in the evening, probably for most of them at the end of a hard-working day. They were faced with probably the most significant planning application for their area for many years. It was no doubt seen as the culmination of an extended process of formal and informal consultation, triggered by the submission of the application over a year before, and they may have felt under Page 24 some pressure to reach a conclusion. The officers' report, admirable though it was, had arrived on their desks only a few days before the meeting. Not only was it long and detailed in itself, but it introduced into the debate a new element of potentially critical significance (the proposed reduction in the number of houses), on which there was a sharp difference of view between the expert advisers.

62. The Model Council Planning Code and Protocol, already referred to (para 60 above) contains under the same heading the following advice: "Do come to your decision only after due consideration of all of the information reasonably required upon which to base a decision. If you feel there is insufficient time to digest new information or that there is simply insufficient information before you, request that further information. If necessary, defer or refuse." This passage not only offers sound practical advice. It also reflects the important legal principle that a decision-maker must not only ask himself the right question, but "take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly" (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B). That obligation, which applies to a planning committee as much as to the Secretary of State, includes the need to allow the time reasonably necessary, not only to obtain the relevant information, but also to understand and take it properly into account.