Lobbying councillors on a planning application

Lobbying councillors on a planning application is legitimate, expected and protected by statute, and it can still go wrong in two ways: by putting a member in a position where they have to withdraw from the vote, or by giving the losing side a ground of legal challenge. Section 25 of the Localism Act 2011 is the provision that makes this manageable. It says a decision maker is not to be taken to have had a closed mind just because they previously did something that indicated a view on the matter, including campaigning on it.

So a councillor can tell you they are against a scheme, say so in a newsletter, and still vote on it. What they cannot do is approach the committee having already bound themselves to a decision regardless of the evidence.

What councillors may and may not say before a decision

A member of a planning committee may listen to residents, visit a site, express a view about a scheme, campaign on a local issue and say publicly where their sympathies lie. Members are elected representatives and the system expects them to represent.

What they may not do is state or imply that nothing will change their mind. The distinction is between holding a view and having abandoned the obligation to consider the officer report, the consultation responses and the policy tests before voting. A member who says "I will be voting against this whatever the report says" has crossed the line. One who says "I have real concerns about the access and I will listen to the debate" has not.

Local codes of conduct add detail. Most councils publish a planning code of good practice setting out how members should handle contact from applicants and objectors, when to refer correspondence to officers, and what to do at site visits. Those codes are not law, and breaching one is evidence a court or the monitoring officer will look at.

Predisposition against predetermination

The vocabulary matters because it is the vocabulary the monitoring officer will use.

Predisposition is having a view, which is lawful. Predetermination is having a closed mind, which is not. Bias is a related but distinct concept concerned with the appearance of partiality to a fair-minded observer, which can arise from a personal or financial connection rather than from an opinion.

The test applied is whether, objectively, the member approached the decision with a closed mind. Evidence of predetermination tends to come from the member's own words: a commitment to vote a particular way, a statement that the decision has already been made, or an assurance given to one side. Evidence of predisposition, by contrast, is just a view expressed in public, which section 25 expressly protects.

One practical consequence for a campaigner: asking a councillor to promise how they will vote is the single most damaging thing you can do for your own cause. If they give the promise and then vote your way, you have handed the other side a ground of challenge.

The statutory protection for prior views

Section 25 of the Localism Act 2011 was enacted because the previous case law had made members nervous about saying anything at all. It provides that a decision maker is not to be taken to have had a closed mind when making a decision just because they had previously done anything that directly or indirectly indicated what view they took or might take in relation to a matter, including a view expressed as part of a campaign.

Two limits are worth being clear about. Section 25 protects prior indications of view; it does not legalise an actually closed mind at the point of decision. And it says nothing about interests, so a member with a disclosable pecuniary interest is in a different situation regardless of what they have or have not said.

The practical effect is that members can engage with constituents about applications. Where a member has campaigned prominently, a sensible monitoring officer will advise them to state at committee that they have considered the report and come to the meeting prepared to decide on the merits, which is both accurate and useful if the decision is later challenged.

Declaring interests and withdrawing

Interests are the area where members do have to step back, and they are governed by the Localism Act 2011 regime and the council's own code.

A disclosable pecuniary interest, broadly a financial interest of the member or their partner, requires disclosure and withdrawal from the meeting for that item. Failure to disclose is a criminal offence. Other registrable or non-pecuniary interests, such as membership of a residents association that has objected, require disclosure under the local code and may or may not require withdrawal depending on how the code is drafted and how close the connection is.

Bias arises separately. A member who is the applicant's neighbour, business associate or relative is likely to have to withdraw even without a pecuniary interest, because a fair-minded observer would see a real possibility of partiality. Members usually take advice from the monitoring officer on this, and the safest approach for a lobbyist is to ask the member to take that advice rather than to reassure them it will be fine.

Illustrative example. A resident emails all ten members of a planning committee asking them to confirm in advance that they will refuse an application. Two reply saying they share the concerns and will raise them at committee, which is unproblematic. One replies promising to vote against whatever the officers recommend. That member is advised by the monitoring officer not to participate in the vote, and the objectors lose a sympathetic voice at the meeting.

Written contact and how it is recorded

Assume everything you write will be published. Correspondence with councillors about a planning application is generally disclosable, may be reported in the committee report, and can be requested under the Freedom of Information Act 2000 or the Environmental Information Regulations 2004.

Four practical rules follow. Write to the case officer with your substantive representations, because that is the correspondence that goes into the report and is taken into account as a matter of course. Copy the councillor rather than making the councillor your only channel. Keep the content to material planning considerations, since a letter about the applicant's character helps nobody. And never offer or imply any benefit, which moves the conversation from lobbying into something else entirely.

Many councils ask members to forward application correspondence to officers so it forms part of the record. Expect that and write accordingly. Material planning considerations are the currency here, and if you are unsure what counts, the shape of a decision notice and the reasons in it, covered in reading a decision notice as a neighbour, shows what the authority actually weighed.

Asking a member to call an application in

Most applications are decided by officers under delegated powers. A ward member can usually request that an application be referred to committee instead, within a stated period and with planning reasons, under the council's scheme of delegation.

Three things make a call-in request effective. Timing, because the window is short and often runs from the date of the publicity. Planning reasons, since a request citing local concern without a policy hook can be refused by the chair or the head of service. And proportionality: call-in works best where there is a genuine policy issue or significant public interest, rather than on every application a member dislikes. Where a scheme is amended after the call-in request, whether neighbours get a further say is a separate question, answered in are neighbours reconsulted on amended plans.

A call-in changes who decides, not what the policy says. It gives objectors the chance to speak, usually for three minutes, and it puts the decision in a public forum. It also adds weeks to the timetable, which can matter to a neighbour who wants the matter resolved. Where a developer has run a consultation exercise of its own, the Statement of Community Involvement submitted with the application shows what it told members it had done.

Where lobbying has tainted a decision

Decisions get quashed over member conduct occasionally, and the pattern is consistent. Successful challenges have turned on members who gave assurances to one party, members who failed to disclose a relevant interest, members who took part after indicating that nothing would change their mind, and committees given materially incomplete information.

The remedy is a quashing order sending the application back for a lawful decision. The committee can then reach the same conclusion properly, which is why this kind of challenge is more useful for correcting a flawed process than for stopping a development. Challenges must be brought in the High Court within six weeks.

For an objector, the sensible conclusion is to lobby in a way that strengthens rather than weakens your position: write to the officer with policy-based representations, keep members informed without asking for commitments, request a call-in with planning reasons inside the deadline, and register to speak at committee. If you want to understand what evidence the authority will be weighing, the report types by category show which technical documents a scheme of that kind should have supplied.

This is general guidance, not legal advice. Councils' codes of conduct and schemes of delegation differ, so check your authority's published code and constitution before relying on this.