Harnessing power of the political system

Planning lawyers are now having to develop their skills to deal with rising political influences. Bryan Johnston reports.

The perception of planning lawyers switching their time between glamorous court and inquiry appearances and taking care of the paperwork is taking a battering. Politics is at the forefront of planning at national and local level, and lawyers are very much involved at the cutting edge.

For many development projects, the prospects of success rely on winning over the power brokers as well as fitting in with the policy framework.

Solicitors and barristers moving in planning circles are as likely to be lobbying for changes in national policy or persuading councillors of the merits of a client's scheme as they are to be putting the finishing touches to a section 106 agreement.

Clients are looking for much more than mere legal knowledge from their legal advisers. The job description compiled by Peter Gilman, the developer behind the Thorpe Park development in Leeds, in appointing his legal advisers is revealing: "A combination of political sensitivity, astute strategic advice and attention to detail."

David Walton, principal of newly-fledged Leeds practice Walton & Co, points to the record of lawyers in negotiating solutions. "Our approach is to go outside our role as lawyers to try and find out who the movers and shakers are. If we need to take the gloves off and go to appeal we will, but we don't go down that road unless we have to," says Walton.

Tim Hellier, a partner in Berwin Leighton Paisner's planning team, explains: "To succeed in a specialist area like planning you have to fuse a whole series of different skills - not just legal and drafting skills but a strong sense of what is likely to achieve success for clients. Wrapped up in that is a sense of political dynamics. If we can achieve that, clients won't baulk at paying our fees."

Iain Gilbey, a planning partner at solicitors Shoosmiths, agrees. "Politics will always be there. As planning lawyers we have to understand that and be able to control the process," he argues. "It has always been part of the lawyer's arsenal to understand the machinations of local and national government. The importance of knowing the person who will be taking the decisions should not be underestimated."

Pat Thomas, a partner at London law firm SJ Berwin, adds: "The planning lawyer is a political animal. Planning is very much at the whim of the democratic process. I see colleagues tearing their hair out. Nowadays there is a much greater political component in the way we approach planning work because it is becoming more complex."

Thomas detects a more overtly political line in central government decision-making. "The ODPM unit handling call-in cases is following a rigid line on issues such as housing density," she maintains. "The Planning Inspectorate is being told what the policy has to be. Inspectors are given a party line that they are expected to accede to. The problem is that this is drawing the inspectorate into the political arena."

But she also recognises that political imperatives can be harnessed to push schemes forward. "The government has political enthusiasms that need to show short-term results. In the growth areas, for example, civil servants have to produce a result. Once we know what they are looking for, we can approach the regional offices to make sure they will smooth the path."

Patrick Robinson, a partner at Bristol solicitors Burges Salmon, highlights renewable energy as an area where political influences have a major bearing.

"We are seeing the impact of a number of forces," he explains. "Reducing carbon dioxide emissions is at the top of the political agenda and the big power generators are keen to buy in. The planning system has responded with a series of targets.

"Companies are promoting larger schemes through section 36 of the Electricity Act because the DTI has responsibility. So we are moving away from the usual lobbying of district councils fending off proposals. Councils can force a public inquiry but there is a political will to get consents approved.

Because the decision is in the secretary of state's hands, we can expect to see greater use of judicial review to challenge consents."

Robinson, who is currently promoting a wind farm in Devon, notes that planning solicitors are increasingly being called on to draft section 36 applications. "Lawyers are able to guard against the likelihood of challenge on procedural points. The DTI is looking to applicants to make sure that the procedure is watertight, so we need to be involved," he insists.

Roger Curtis, a partner at ASB Law, observes: "The way that the government is getting involved in planning issues is becoming more political." He has been acting for the Society of Sussex Downsmen in pursuing objections to proposals for a stadium for Brighton and Hove Albion Football Club in the Sussex Downs area of outstanding natural beauty. Curtis has played a leading role in getting the scheme called in.

Despite recommendations against the project from a local plan inspector and a call-in inquiry inspector, deputy prime minister John Prescott has ordered the inquiry to be reopened. Curtis is in no doubt that political pressure from local Labour MPs and councillors is a factor. "Prescott is reopening the inquiry to see whether alternative sites are available.

But when two inspectors say something is totally inappropriate the availability of alternative sites becomes irrelevant," he contends.

Many planning decisions are being taken at a senior level in government, Hellier observes. "The deputy prime minister may align himself with particular projects where he wants to be seen as supportive. You need to get inside his head and understand where he is coming from. The best that we can do is to identify political demands such as affordable housing, higher density and public transport and ensure that schemes have all the credentials to strengthen their attractiveness."

Yet even pressing all the right buttons on development plan principles is no guarantee of success. "People sometimes suspect that big business has a lead into government. If it has, there are still plenty of examples where the wheels have come off," insists Robinson. "Developers spend huge amounts of money to promote schemes that get kicked into touch, if not right out of the stadium."

The Dibden Bay container port proposal on Southampton Water and the London International Freight Exchange multi-modal terminal in the Thames Valley are among a long list of projects that foundered despite strong policy arguments in their favour. "Associated British Ports spent years softening up the government on Dibden Bay but fell down on the special protection area for birds issue," Gilbey reflects.

"Any amount of lobbying might not get past technical objections. I can point to any number of decisions that have been overtly political but dressed up on planning control grounds. We have seen a number of retail decisions where the facts are similar but decisions go opposite ways.

That bears witness to the fact that politics has a very important role to play."

Retail giants Tesco and IKEA are among the clients whom Gilbey has advised in their attempts to shape national and local planning policies. Yet he acknowledges that individual operators are usually less effective than generic industry groups. "If an entire industry is saying policy needs adjustment there is scope for the government to take greater notice. For high-level strategic lobbying to be effective the broader the interest group you can muster the better."

But planning politics is not just about twisting the arms of Prescott and planning minister Keith Hill. The need for influence is as pressing in the local arena. "Where we come in on the political angle is in setting out strategies for what messages clients need to get across to members on one-and-a-half pages. We try to distill the arguments in favour and make sure they are cogent and coherent," says Hellier.

Walton maintains that his team's local government experience helps it to understand which buttons to press and how to approach both officers and politicians. "We know the terminology," he asserts. "Ex-local government lawyers have that sensitivity. It certainly works on big projects where we are advocating to a council that a site should go forward."

Gordon Nardell, a barrister at 39 Essex Street, thinks that local planners are missing out on an opportunity to influence events in the way that they formulate policy. "The fault is that the real politics are not expressed in policy documents. Local development frameworks need to be more upfront in reflecting the authority's real political thinking," he argues.

"In the past planning policy has been hermetically sealed from other drivers of political thinking. This is not very good for tying planning into local aspirations. Plans can only evolve in tandem with the evolution of political thinking, so they have got to be reviewed more regularly.

If they can accommodate that, they will have much more influence."

In principle, the statements of community involvement ushered in by the Planning and Compulsory Purchase Act should help planners to make the link with community needs. But Curtis has his doubts about the mechanism.

"You can give it a new name and a new emphasis but community involvement has always been there. If it is a big issue people put pressure on anyway.

The ultimate pressure is that if the local authority makes too many decisions that upset local communities they don't get voted back in."

Planning lawyers have influence, but there are limits to their powers.

"At the local level we can identify the proposals that are non-starters," Hellier admits. Thomas adds: "We used to think we could handle the way politicians and planning committees were acting. Now on more elaborate projects we are sitting down with Whitehall and Westminster lobbyists.

They have access to people we have no influence over. PR people are becoming essential members of the team."

BRIDGING THE GAP BETWEEN MEMBERS AND OFFICERS

For planning lawyers, understanding the dynamics of the relationship between council members and officers is crucial. With changes to the status of local authority officers and council decision-making structures, the situation is often unpredictable.

Since the balance of power varies from council to council, experienced lawyers find it worthwhile to investigate the balance of power at the local level. "Some authorities have a strong set of officers who are able to steer members in a particular direction. In others, no matter what officers do in making robust recommendations, members will make their own minds up," says Tim Hellier of Berwin Leighton Paisner.

The emergence of cabinets and executive councillors means that chief officers' influence has become diffused, suggests Pat Thomas of SJ Berwin.

"People like Peter Rees at the Corporation of London have influence and carry their members with them. But they are few and far between. Officers often leave members to make decisions without guidance being forthcoming," says Thomas.

Hellier observes: "In some authorities the quality of members is very high and they won't be dictated to. Executive members and cabinets should in theory lead to better and quicker decision-making and I see some signs that this is starting to happen."

David Walton of Walton & Co accepts that politicians are taking a far more prominent role. "Some authorities have a greater level of political control where the balance gets skewed. If a council is wholly controlled by one party, members are in a stronger position," he notes.

Walton has extensive experience of setting up meetings between clients and politicians. "But we don't seek to go wheedling round the backs of planning officers," he insists. "We need to get officers on board. The role of members is an added political dimension. In many authorities officers still have a fair level of clout."

Iain Gilbey of Shoosmiths notes that powerful planning chiefs are liable to be held to account by government regional offices when their actions take authorities out of line with national policy priorities. "With the regional approach I would hope that the ability of individual chief officers to rule with a rod of iron would be reduced," he adds.

With standards in public life under scrutiny, lawyers are conscious of the need to avoid suspicion over meetings behind closed doors. Gordon Nardell of 39 Essex Street highlights the difficulty. "Planning is a political process to reach decisions in the public interest and political influence is an inherent part of the process. The problem is that political influence is not always transparent," he points out.

"In some authorities monitoring officers are trying to make planning an apolitical process, to the point where they are advising members not to attend meetings or express a view. It is unrealistic to think that it is feasible to take politics out of the process. The difficulty is that monitoring officers have a combination of roles - to advise members on how political they can be without overstepping the bounds of propriety and to make sure that council decisions are free from legal challenge."

The relationship between different sections and departments can be as important as that between members and officers, Thomas warns. "We need to understand the relationship between economic development officers, forward planners and development control people and how these feed through into the way that committees operate," she says.


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