Interviews with senior Camden councillors has settled the Members Briefing Panel Controversy. Part 4 of a 4 part series, featured in the Planning in London magazine.
A stir has been caused by the so-called overruling of elected councillors by an unelected official in Camden.
Originally we had heard that the Members Briefing Panel had recommended an application be heard by the full planning committee, only to be overruled by the Director for Regeneration and Planning, David Joyce.
This was controversial as it meant a cross-party panel of elected councillors had been overruled by an unelected director.
In an interesting turn of events, we then heard from a senior Camden source that the Panel did not come to a ‘consensus’ and so the Panel had not been ‘overruled’. This raised the question of whether ‘fake news’ had been propagated in an effort to cause controversy.
We also heard from this source that Camden had written a letter to the Camden New Journal explaining their stance which had not been published. However when we asked for this letter it was not supplied, and the Camden New Journal refused to comment.
We can now confirm that whilst the Panel did not come to a ‘consensus’, the Panel did indeed originally recommend that the application be heard by full committee two to one, but that after the planning department brought in legal advice it became clear that the recommendation would not be followed.
New information has also been brought to light on how and why the Panel exists at all and how it functions.
What is the Members Briefing Panel?
All planning applications are determined (decided) through two different routes:
- Planning Committee (also referred to ‘full committee’ or ‘upstairs’)
- Delegated Powers
The Planning Committee is reserved for large, important, or controversial applications, whilst ‘delegated powers’ is reserved for unimportant and small applications. About 90% of applications are decided through delegated powers. When decided through delegated powers, councillors are not involved in decision-making but a planning officer makes a decision on behalf of the Council.
Upon receipt, every planning application is automatically assigned to ‘delegated powers’ or ‘full committee’. However some applications automatically assigned to delegated powers may require an ad-hoc ‘upgrade’ to full committee. The Members Briefing Panel primarily performs the function of examining applications to consider whether they should be upgraded to a full committee hearing. Applications can be upgraded after objections are made during consultation, or if there are further issues with an application that the Panel decides should be seen by the committee.
The Panel also performs a further function of suggesting minor alterations to applications through the Section 106 agreement.
The Panel is formed of three senior councillors each with expertise in planning matters. Each councillor is from a different party to ensure that the Panel is politically impartial.
Why Does it Exist?
We were told that the Panel was set up around 2005 to introduce greater scrutiny into decisions made by planning officers. It was felt that some officers of the time were taking too active a role in having their applications approved, so the panel was introduced as an important backstop to facilitate the intervention of councillors into the large proportion of applications determined through delegated powers. The panel therefore acts to counterbalance the power that planning officers have to decide applications in private without public scrutiny, reducing the power of a planning department whose power to decide applications internally was then felt to be too great.
We have been told that the Panel has unusual legal status and that it is unique as far as is known. Whilst the function of the Panel is written into Camden’s constitution, it officially only serves an advisory function to the planning department, although in practice it serves a supervisory role.
How Does it Work?
The Panel does not meet to consider applications, but each member comments on whether an application should be ‘sent upstairs’ to full committee in an informal manner. A formal recommendation is not made, but we are told that usually if two of the three members make a recommendation one way, then the third agrees. This is the case both for sending applications upstairs or keeping them in delegated powers. It was stressed that this process is an informal one where emails are sent between members in an effort to reach a consensus over several days.
Surprisingly, we have been told that officers will often try to persuade members to keep applications downstairs rather than send them to committee. This is unusual as it suggests that officers take a more active role in applications than previously thought, considering their role is actually strictly advisory to councillors. Whilst this appears to be suspect, we are told by a reliable source that this usually has more to do with convenience and ensuring that the planning committee agenda does not bloat to unmanageable sizes.
We were told that sometimes members will be open to officer suggestions but other times are not. Occasionally officers will make financial arguments to try and avoid having their applications upgraded to full committee. If an application is upgraded and rejected by the committee there may be legal fees to pay if the application subsequently goes to appeal and Camden lose their case, and also because the income secured through Section 106 agreements and the Community Infrastructure Levy may be significant.
We have been told that the Panel strongly resist such arguments.
Ultimately it is the planning officers who decide whether an application is upgraded or not, informed by the recommendation of the Members Briefing Panel. Whereas officers have no legal obligation to heed the advice of the Panel, we have heard that this is only the second time that advice has not been followed in recent times.
What Happened with the Swiss Cottage Application?
The Swiss Cottage application was an alteration to a CMP (Construction Management Plan). This is a legal document which sets out how construction will proceed and how enforcement will take place if the contractors do not adhere to the CMP. It contains various standard stipulations such as permitted work hours and noise levels, but also particular stipulations peculiar to the construction site and development. In this case, the alteration changed the way in which contractors could use the surrounding roads.
It is not usual for an alteration to a CMP to be heard by full committee, which was one of the department’s primary reasons for opposing a full hearing. It was felt by officers that the opposition shown to the application had more to do with the overall opposition to the development which itself is controversial, rather than the particular details of the CMP alteration.
We have heard that two Panel members recommended the application go upstairs, whilst one deliberated. We understand that the recommendation was due to the public opposition shown to the application. Planning officers expressed their wish to not have the application heard by the full committee.
During deliberation a QC (senior barrister) was brought in by the planning officers to support their case that the application should not be heard by the committee.
It then became clear that the original recommendation of the Panel would not be followed regardless of the final decision of the third member. At this point the Panel recognised that further debate of the recommendation would be pointless, and so no effort to reach a consensus was made.
The application was then kept in delegated powers against the provisional recommendation of the Panel, only the second time that this has happened in the Panel’s recent history.
Whilst planning officers have claimed that their decision was warranted because the Panel did not come to a ‘consensus’, and their professional opinion was that the application should not be sent upstairs anyway, members of the Panel have expressed that they were not happy with the decision and one member stated explicitly that the Panel’s recommendation had not been followed. It is clear that the only reason a consensus was not reached was because the planning officers made it clear that any consensus would be overruled.
What have we Learned?
It appears that this action is a deliberate effort by planning officers to claw back power which has been invested in the Panel, in an effort to remove public scrutiny into their decisions. However we have been informed that it is more likely that the whole affair was blown out of proportion by the ill-fated decision to seek external legal advice, which only came about through planning officers being unable to form their own judgement internally.
After making such an error of judgement it appears the department closed ranks to defend their decision, to the consternation of councillors and the public.
We understand that planning officers were under significant pressure from senior Camden officials, the developer, and TfL to have the CMP approved promptly, leading them to seek ways to avoid the lengthy process of hearing through committee. Whilst the blame for this has been almost unequivocally placed on David Joyce’s shoulders, David Joyce is two levels of seniority below the chief executive and it has been speculated that he almost certainly had pressure placed on him from those levels above him.
We have also learned that planning officers in Camden take a much more active role in applications than previously thought. Whilst planning officers are expected to serve only an advisory role to councillors using their expertise to advise whether an application could be approved or rejected, it is now clear that officers take a professional interest in applications and work to ensure that their recommendations are followed. Whilst this may seem suspect, we have been told that planning officers throughout the country are under pressure to have developments approved, thanks in part to national policy which places a presumption in favour of ‘sustainable development’. That being said, we have heard from different sources that the planning department at Camden is seen as particularly powerful and proactive compared to most, with the existence of the Members Briefing Panel a testimony to this. We have heard that many planning officers consider the role of councillors to be advisory to themselves.
Whilst the whole affair certainly seems to be a mountain made from a molehill, it goes to show that there is significant public interest in the planning department and the role of democracy in Camden.
This article was featured in the Planning in London magazine, the planning journal of the London Society.