Predetermination and interests at a planning committee

Predetermination at a planning committee means a member decided the application before hearing it, with a closed mind. That is unlawful. Having a view, campaigning on an issue, or telling a neighbour you dislike a scheme is predisposition, and that is lawful, expected and protected by statute. Objectors who complain about the first when what they have witnessed is the second rarely get anywhere, and the distinction is worth understanding before you write to the monitoring officer.

The rules sit in two places: section 25 of the Localism Act 2011, and the interest provisions of the same Act with the council's own code of conduct underneath them.

Predisposition, predetermination and the line between them

The common law test asks whether the decision-maker approached the decision with a closed mind, so that the arguments and evidence at the meeting could make no difference. A separate but related test asks whether a fair-minded and informed observer would conclude there was a real possibility of bias.

Councillors are elected. They stand on platforms, they say things in leaflets, and the courts have accepted for a long time that a councillor who expresses a view on a planning issue is doing the job rather than disqualifying themselves from it. In the Redcar and Cleveland case the Court of Appeal was clear that a democratically elected decision-maker is expected to have opinions, and that the question is whether the mind remained open at the point of decision.

What does cross the line, in practice:

• A member who states before the meeting that they will vote a particular way whatever the officers say.
• A member who has given an undertaking to a developer or to a campaign group about the outcome.
• A member who refuses to read the officer report or leaves during the presentation and then votes.
• A whipped vote. Applying a party whip to a planning decision has long been regarded as improper, because it substitutes group discipline for the member's own judgement on the evidence.

What section 25 changed

Section 25 of the Localism Act 2011 says that a decision-maker is not to be taken to have had a closed mind just because they had previously done anything that directly or indirectly indicated what view they took, or would or might take, on the matter.

That provision was passed to stop the cautious practice of members staying silent on local issues for fear of disqualifying themselves. It confirmed the position the courts had already reached rather than changing it. What it does not do is license actual predetermination. A member who has in fact closed their mind is still acting unlawfully, and section 25 provides no cover.

The practical effect for anyone watching a committee is that quoting a member's past statement against them is almost never enough on its own. You need evidence about the state of mind at the decision, which usually means what was said in the chamber.

Disclosable pecuniary interests

Interests work differently. They are rule-based rather than judgmental, and the sanctions are criminal.

Every council must adopt a code of conduct. Members must register and disclose disclosable pecuniary interests, which cover employment, sponsorship, contracts with the authority, land and licences in the authority's area, corporate tenancies and securities, and which extend to the interests of a spouse or civil partner or a person the member lives with as such.

Where a member has a disclosable pecuniary interest in a matter being considered at a meeting, they must disclose it and must not participate in the discussion or the vote. Many codes also require them to leave the room. A dispensation can be granted by the authority in defined circumstances, for example where so many members are affected that the committee could not otherwise function.

Participating with an undisclosed disclosable pecuniary interest, or failing to register one, is a criminal offence under section 34 of the 2011 Act. Conviction can carry a fine and disqualification from office. That is a different order of consequence from a code breach, and it is worth being precise about which one you are alleging.

Codes also deal with other registrable interests and with non-registrable interests, typically covering effects on a member's wellbeing or financial position, or that of a close associate, beyond those captured by the pecuniary definition. Those usually require disclosure and sometimes withdrawal, and the detail varies by authority. Read the code rather than assuming.

Lobbying a member before the vote

Lobbying is legitimate. Members are entitled to listen to objectors, applicants and parish councils, and most committee members would say it is part of representing a ward.

The constraints are on what the member does with it. A member can hear your case, ask officers questions, and say they will consider it. A member should not promise a vote, negotiate changes to a scheme directly with an applicant, or accept hospitality from someone with an interest in a live application. Members approached by applicants are generally advised to refer them to officers and to record the contact.

If you are objecting, the useful move is not a private conversation. Put the material planning considerations in a written representation that goes into the case file, because that is the document the officer has to address in the report. Our note on consultee responses and the officer's case file explains how that file is assembled and what you can see of it.

A member who has lobbied for an outcome and sits on the committee that decides it is in a weaker position than one who has simply listened. Where a member has acted as an advocate, the usual advice is to speak as a ward member and then withdraw from the vote.

When the council is the applicant

Authorities grant themselves permission under the general regulations for applications by interested planning authorities, and the perception problem is obvious. Expect the application to go to committee rather than being delegated, expect the report to be written by an officer outside the applicant service, and expect the council to be scrupulous about the paperwork.

Members who sit on both the committee and a cabinet or board that promoted the scheme are the usual difficulty. Many codes and the standard probity advice point towards withdrawal in that situation, even where no pecuniary interest arises, because the bias test is about appearance as much as reality.

Where a scheme has been through real community engagement, a Statement of Community Involvement that records what was said and how the scheme changed is one of the more effective answers to an accusation of a closed process.

What happens if the test is breached

A decision taken by a committee tainted by predetermination or apparent bias can be quashed by the High Court on judicial review. The claim has to be filed within six weeks of the grant of planning permission, which is a hard deadline and much shorter than the general judicial review period.

The remedy is normally that the application goes back for a fresh decision, properly taken. It is not a refusal, and that disappoints people who litigate expecting one. A second committee, correctly constituted and advised, can reach the same conclusion lawfully.

Where a single member's vote would not have changed the outcome, the court may decline relief. Where the whole process was infected, it will not.

What an objector can realistically do

In order of usefulness, and none of it requires a solicitor:

1. Raise the concern in writing to the monitoring officer before the meeting, naming the member, the interest or statement, and the date. Early is everything.
2. Ask, at the meeting or in advance, that the member's interest be recorded in the minutes.
3. Make sure your objection is framed in material planning considerations so it survives in the officer report whatever happens on probity.
4. After the decision, complain to the monitoring officer under the code. Be aware that sanctions available to councils since 2011 are limited, typically censure, training or removal from the committee.
5. Where a disclosable pecuniary interest was not declared, say so explicitly, because that is a criminal matter rather than a code matter.
6. Take advice on judicial review immediately if the decision looks procedurally unlawful, because the six week clock runs from the grant.

Objecting well is mostly about the planning merits. Probity complaints change how a decision is taken, not what it decides. You can browse the report types by category to see which evidence a committee will have in front of it.

This is general guidance, not legal advice. Check the position with the council's monitoring officer or a qualified solicitor before relying on it.