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Guidance on Propriety Issues in the Handling of Planning Casework in the National Assembly for Wales

Code of Conduct for Assembly Members

1. This note provides advice on the propriety issues that arise when carrying out of the Assembly’s functions under the Town and Country Planning Acts. Similar considerations apply where the Assembly exercises other, similar quasi-judicial functions. It provides advice and guidance for Assembly Members, including members of the Assembly Cabinet, who, while not responsible for making the decision, may have an interest in a particular planning case or associated matters.2. The objective is to ensure that every decision is properly taken and to avoid the risk of a successful legal challenge. Our aim is to ensure that the parties involved in planning cases are dealt with fairly, justly and openly; that all the evidence is fully considered and that decisions are based only on material planning considerations to which all the parties have had access. The law protects these principles and the Assembly’s decisions can be challenged in the Courts if they are not followed.3. Planning decisions must therefore be taken in line with the principles of natural justice. This means that all the parties to a planning case which is to be determined by the Assembly have the right to present their case to it, and to see and comment on those of the other parties. The decision must not be based on any other evidence (including private representations), except published policies of the Assembly, which can be taken as being known to the parties. Every care should be taken to avoid giving any cause for suspicion that private representations have been made and taken into account. If, during the process of reaching a decision, new evidence is produced which would affect the way the decision might be taken, it must be shared with the parties for them to comment on if they wish. Any departure from these principles will leave the decision open to legal challenge.

The decision-taker’s role

4. The Assembly’s quasi-judicial functions under planning legislation mainly involve the determination of 'recovered’ planning appeals and planning applications that have been 'called in’ for the Assembly, rather than the local planning authority, to decide. (Most appeals are determined by Planning Inspectors acting on the Assembly’s behalf but important cases are recovered to be decided by the Assembly). 5. Decisions taken by the Assembly under the Planning and other Acts are legally the responsibility of the Assembly as a whole. In a particular case the function of taking the decision may be delegated by the Assembly to a Planning Decision Committee, or to the First Secretary or, by him, to an Assembly Secretary, or an official of the Assembly. Where decisions are delegated to a Planning Decision Committee, each of its members has agreed to be bound by these principles. In every case the 'decision-taker’, whether a member of a Planning Decision Committee, of the Assembly Cabinet or an official, should:
  • act, and be seen to act, fairly and even handedly, by bringing an unbiased, properly directed and independent mind to his or her consideration of the matter, and;
  •  in order to demonstrate even-handedness, and in the interests of natural justice, see that all evidence which is material to a decision and which is taken into account, must have been made available to all parties with an interest in the decision.
6. It follows that:
  • A decision-taker should not take part in a planning decision in which he or she has, or might be perceived as having, a private or constituency interest. That includes decisions in respect of matters with which he or she has previously been associated - as an Assembly Member, an MP or member of a local authority, or in a private capacity. Nor should he or she do anything to influence the decision, other than make representations on behalf of his or her constituents (see below and paragraphs 11 and 12).
  • Because of this requirement, a decision-taker may not take decisions on planning cases within his or her constituency or electoral region or those directly affecting his or her constituency or electoral region.
  • A decision-taker should not discuss a case with any interested party. They should therefore decline requests for meetings with other Assembly Members, MPs, delegations of local people, parties to the appeal or application, pressure groups or any other party who wish to make representations about the case. The same principle applies to other forms of contact with interested parties, including telephone calls.
7. Similar considerations apply to the exercise of the Assembly’s discretionary powers under the Planning Acts. These include decisions on whether to issue directions to local planning authorities, such as directions to modify a development plan (for example to bring it in line with Assembly policy), or to call-in all or part of a development plan or a planning application for the Assembly’s decision. Given the need to act, and to be seen to act, fairly and even-handedly, the decision-taker should avoid discussing matters relevant to these decisions with any interested party.The Assembly Cabinet8. Because of their policy responsibilities, Assembly Cabinet members may have an interest in a development project (for constituency interests see paragraphs 11). When visiting projects or discussing the application of Assembly policy to a project, they will need to take care to explain that they will have no role in any planning decision, and that they are unable to discuss the planning aspects of the proposal with colleagues. They should not give the impression that the consideration of planning issues by the Assembly will be a foregone conclusion. Constituency Interests9. Members of the Assembly may want to express their views, or those of their constituents, to a local planning authority, or to a Planning Inspector or to a decision-taker in the Assembly. 10. Assembly Secretaries are subject to the Code of Conduct for Assembly Secretaries; paragraph 4.9 explicitly refers to planning cases.11. Assembly Members are free to make representations about a planning application to the local planning authority that is considering it. They may make representations to the Planning Inspectorate where an appeal will be decided by a Planning Inspector. Representations may also be made to the Inspectorate in cases where an application has been called in, or an appeal recovered, for the Assembly to determine; but before the inquiry conducted by the Planning Inspector has closed. All such representations must be made openly and on the basis that they will be made available to all interested parties. In dealing with local planning authorities on planning matters in their constituencies, members of the Assembly should take care not to give any impression of wielding special influence. It must also be made clear that they will be taking no part in the decision.12. Where the inquiry has closed, further representations will only be considered in exceptional cases. If a member believes that such representations ought to be allowed they must only be made in writing to the Head of Planning Division. Assembly members should not otherwise attempt to influence the decision making process once the inquiry has closed. If the Head of Planning Division considers that a post-inquiry representation raises new evidence that would affect the decision he or she will seek the views of the parties and, if necessary, will arrange for the inquiry to be re-opened.Special Advisers14. Special advisers may be approached (for example by letter or telephone) by a party to a planning case. Any such approach should be referred to the Head of Planning Division. The adviser should not give any impression that any particular advice (from him or her or from other officials) will determine the decision. Where a special adviser has a private interest in the case they must play no part in its consideration.

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