Positive Action Group - Possan Jantys Jarrooagh

Open, accountable government, rigorous control of public finances, and a fairer society for all.

  • Increase font size
  • Default font size
  • Decrease font size
Home The News Latest News The Hoary Issue of Planning!

The Hoary Issue of Planning!

E-mail Print PDF
User Rating: / 22
PoorBest 

planning-mistakes"The hoary issue of Planning" - that's how the Chairman introduced the topic to David Cretney when the DOI Minister recently appeared before the Environment & Infrastructure Policy Review Committee.

 

The Minister, and members of Tynwald, had been bombarded with correspondence from Peel resident Trevor Cowin, questioning the appointment of the Planning Committee, whether it was lawfully constituted, and whether the Committee was conducting itself in accordance with Standing Orders.

There was a classic deflection of further questioning by stating that the issue was to be the subject of Questions in Keys, so no information ought to be prematurely divulged to the Committee. The Department was taking the allegations seriously and had consulted the Acting Attorney General.

In October the PAG website published (Planning Pandemonium) the first letter that Mr Cowin had sent to the IOM Examiner in order to draw public attention to what he regarded as a serious breach of Planning regulation.

Here, in the Comment section, we publish, in chronological order later letters and correspondence for you the public to assess - starts at #1, ends at #5.

 

Comments   

 
0 #5 Cowin e-mail response to Howard Quayle 10.11.13wilfred tomlinson 2013-12-02 13:12
Dear Mr Quayle

I’m well aware of the difference.

I assume that you are referring to the wording in the eighth paragraph of David Cretney’s letter to Members of Tynwald concerning the discretionary powers of the Planning Committee, a copy of which is attached, in which he emphasises the word “may”. If this is the case then you “may” care to read my response to that letter that I prepared for Mr Juan Turner, MLC, which was –

“Juan
 
These are my thoughts/opinio ns on the opinions expressed in David Cretney’s letter addressed to all Tynwald Members which remains attached, having deleted the superfluous untitled attachments that accompanied it.
 
For simplicity I have extracted David’s comments/opinio ns from his letter, pasted, them into this e-mail and inserted my responses in red bold black for ease of identification.
 
"Mr Cowin is wrong in his assertion that the Chairman and Membership of the Planning Committee have not been correctly appointed.  Mr Cowin has previously been provided with details of the appointment process, plus copies of the appropriate legislation and delegations."
 
Am I wrong? Let’s remind ourselves first, of what David said during the debate in Tynwald –
 
“There will continue to be a Planning Committee appointed by the Council of Ministers”.
 
Now, let’s turn to the details of the appointment process. In the absence of replies to e-mails to Michael Gallagher that have been outstanding for several weeks I have to rely on the information provided to me by Mr Gallagher in his e-mail to me and in particular his e-mail to me which for some reason was missing from the thread that I sent to you. Although it makes this reply rather long the simplest way for me now to bring this into the arena is to copy it here-

 
 
Dear Mr Cowin                                                                                                                                                                                                                   Mon 23/09/2013 09:48
 
Thank you for your most recent email received at 9:49 on Sunday 22nd September 2013.
 
I have now received information from a number of colleagues across Government and I would like to respond to the points you raise in this email along with those outstanding issues from your previous 8 emails sent since the 5th September 2013.
 
Which Order Applies?
The transitional provisions contained in Article 15 of the 2013 (No. 2) Order have been applied so that any application which falls for substantive determination under the 2005 Order as a consequence of Article 15 has been considered as if also subject to the intervening procedural requirements of the 2005 Order e.g. with regard to the Notice of Application required to be provided.  
 
The main differences between the two Orders with regard to Notice of Application are the slightly more onerous requirements set out respectively in
         Art 5 (2)(c) with regard to a person seeking to establish ‘interested party’ status; and
         Art 5 (3)(a)(ii) with regard to display of the yellow site notice.
 
In the event that there is a particular application for planning approval which is of concern to you from a procedural point of view, please feel free to advise the Department. Likewise, my officers would happy to advise you of the respective cut-off point for application of the 2005 Order in relation to each Parish/Town or to advise which process is being applied to a particular application of concern to you.
 
Delegations
 
As the Delegations relate purely to operation matter regarding the internal mechanisms and allocations of functions, it is not usual practice to publish them on the website. There is no onus under Access to Information principles, for Government (or the Division for that matter) to place all information on the website. Whilst previously some delegations may have been available via the website as part of the revamped Government website it was decided that delegations would no longer be available to download.
 
However, copies of delegations will be provided upon request, as has been the case with your recent request  and my response of 4th September 2013.
 
Planning Committee Appointments
 
As you will be aware the appointment of members of the Planning Committee is undertaken by the Council of Ministers and their powers to determine Planning applications et al, is made under powers delegated from the Department.
 
Mr Skelly MHK was appointed chair on 2nd May 2013 and this decision was released as a full news release as part of the shuffle of appointments announced on 7 May 2013.
 
As for the lay persons, here is a table with the dates they were appointed
 
Name
Date Appointed
Ian Cottier
18/11/10
David Evans
18/11/10
Peter Young
18/11/10
Walter Gilbey
30/08/12
Adrian Kermode
30/08/12
 
With regard to the three November 2010 appointments, the Chief Secretary’s Office have advised me that the relevant extract from the minute of the Council of Ministers meeting on 18th November 2010 reads –
 
 
‘Council considered a paper tabled by the Chief Secretary and confirmed the appointment of:-
 
Alexander Lawrence Ian Cottier
David Evans
John Edward Skinner
Peter Young
 
as Members of the Planning Committee’
 
With regard to the two August 2012 appointments, the Chief Secretary’s Office have advised me that the Summary of Proceedings of Council of Ministers contains the following published confirmation –
 
August 2012
 
20. APPOINTMENT OF MEMBERS OF THE PLANNING COMMITTEE
Council considered a paper submitted by the Chief Secretary and agreed the appointment of Mr Adrian Kermode and Mr Walter Gilbey to the Planning Committee.
 
 
In conclusion, I believe that I have now addressed all the issues you have raised in your nine emails in the last 2 weeks.
 
Michael Gallagher
Director of Planning & Building Control
Department of Infrastructure
Murray House
Mount Havelock
Douglas
Isle of Man
IM1 2SF
 
Tel:  (01624) 685903
Fax: (01624) 686443
e-mail 

 
You will note that Mr Gallagher has confirmed that the Chairman of the Planning Committee was appointed in May 2013 and the other members in 2010 and 2012.
 
With this in mind, let’s now look at the powers of the Minister under section 3(2) of the Government Departments Act 1987 a copy of which I sent to you and see how those powers sit with the details of the appointment process that Mr Gallagher sent to me, namely DOI Delegation No. 54/13, which wasn’t made by the Minister until 19 days after the No 2 Order 2013 came into effect, which, for ease of reference I’ve attached also..
 
In my view the delegation is defective because section 3(2) of the Act does not give the Minister the power to form a Planning Committee which he appears to have done; he only has the power to authorise a Member of his Department or an officer of his Department or a “person” to exercise any functions of the Department in his place, either alone or jointly with him or with any such person or persons. “Person” is defined in the Interpretation Act 1976 as including a body of persons corporate or unincorporate (should have been unincorporated) , so although the Minister does have the power to delegate his Department’s functions to a Planning Committee, a Planning Committee would have to have already been formed to enable him to do so. And, for it to be formed there would have to be a vires under which it could be formed. You are also aware that the words “to be” in the delegation are future tense, which means that the “at least two other persons to be appointed by the Council of Ministers” had to be appointed by Council after David Cretney signed the delegation on the 20th August 2013. But, Michael Gallagher has explained that the Members of the Planning Committee were appointed in 2010 and 2012 with the Chairman being appointed in May 2013. Unless they have been appointed by the Council of Ministers for the purposes of carrying out the Department’s functions under the No 2 Order 2013 since the 20th August 2013, and I’m not aware on the basis of Michael Gallagher’s advice that they have been so appointed, then , even if it could be argued that the delegation is for some reason not legally defective, the Planning Committee isn’t a Committee at all as only a Chairman has been appointed. And, how does this delegation sit with David Cretney’s statement in Tynwald that there will “continue to be a Planning Committee appointed by the Council of Ministers” when he has apparently appointed the Chairman himself? Did the Minister mislead Tynwald on this issue?
 
Furthermore, for the Council of Ministers to appoint the “at least two other persons” it would have to have a vires to do so. It had a vires, although in my opinion a very weak one, under article 3 of the 2005 Development Procedure Order, but it doesn’t have any vires under the No 2 Order 2013 and the 2005 Order has been revoked. In my opinion COMIN cannot appoint members of a Planning Committee “administrative ly” i.e. without any vires, as argued by Mr Gallagher.
 
And, in my opinion, the functions delegated by the Minister can only be exercised by people, or persons; they cannot be exercised by an office, or position or post and it is necessary, therefore, for the person who has been delegated by the Minister to carry out the functions of the Department to be named personally in the delegation. In this case Laurence Skelly should have been named as the person carrying out the Department’s functions. And, if my opinion is correct on this issue, how could the Minister possibly name the “at least two other persons” who were to carry out the Department’s functions, when he obviously didn’t know who they were. Surely, the Minister isn’t suggesting that he has the power to delegate his Department’s functions to unnamed persons. Such a suggestion would be nonsense.
 
Hopefully, it will not have gone unnoticed that the delegation is split into sub-paragraphs and sub-paragraph (1) has a further sub-paragraph (a); but no a (b). Why is that?
 
I hope you will also have noticed that in sub-paragraph 1(1) the Minster has delegated the functions of his Department in determining “applications” under the Town & Country Planning Act 1999. It should not have been left for the Planning Committee to decide what he meant by “applications” or to decide which section of the T&CP Act the applications that he referred to were contained.
 
You will note also that the delegation doesn’t contain any reference at all to the No 2 Order 2013, which I assume that it was intended to underpin. I will be happy to point you in the direction of the section and sub-section of the T&CP Act that should have been referred to in the delegation and the articles of the No 2 Order 2013 that should also have been referred to in the delegation if you would care to call me on this – ‘phone 360433.
 
I hope you will have noticed also that sub-paragraph (2) of the delegation states that the Planning Committee “may determine an application for planning approval (which at least gives us a clue as to what the Minister was referring to in sub paragraph (1)) only in the circumstances set out in the Schedule to this authorisation”. The Schedule is, therefore, part of the delegation of functions, but is in fact a set of Standing Orders made under section 3(4) of the Government Departments Act and should, therefore, have been made separately as Standing Orders in their own right and not simply lumped in as a schedule to a delegation made under section 3(2) of the Act. And, I hope it will not have gone unnoticed that the Standing Orders are entirely different than the Standing Orders currently published on the Planning Committee page of the Government website. It would appear, therefore, that the Planning Committee, if it has been legally formed, has two sets of Standing Orders and as the delegation has not been made public, the set of Standing Orders isn’t available to the Public even though they form part of the law of the Isle of Man.
 
And, finally on this issue, I hope you will have noticed that the final sentence of the delegation states that the “authorisations ” contained in Statutory Document 251/05, which is the Town & Country Planning (Development Procedure) Order 2005 and DOI Delegation 05/13 are revoked. The Minister must have forgotten, however, when he signed the delegation on the 20th August 2013, that SD 251/05 had already been revoked on the coming into operation of the No 2 Order 2013 on the 1st August 2013; so it’s been revoked twice! You might care to ask the Minister, however, what the “authorisations ” were in SD 251/05 that he intended to revoke as I can’t find any authorisations in that SD. I do not have a copy of DOI Delegation 05/13 that is referred to so I cannot comment on it.
 
For the reasons explained, I remain convinced that the Planning Committee has not been appointed legally.

 
"In addition he questioned the legality of actions undertaken by officers of the Department.  Officers have received their delegations under sections 3(2) and 3(3) of the Government Departments Act 1987, and have the necessary authority to undertake their duties on behalf of the Department."
 
Do they? Let’s take a look at the delegations to the Director of Planning & Building Control and to the Development Control Manager, copies of which are attached.
 
You will note that the delegations have not been made under sections 3(2) and 3(3) of the Government Departments Act as stated by the Minister. They have been made under section 3(2) of the Act.
 
With regard to the DOI Delegation 32/13 you will note that the Minister has delegated the Department’s functions to “the Director of Planning and Building Control”. In this regard my arguments above about the delegation to the Departmental member for planning that –
 
“the functions delegated by the Minister can only be exercised by people of persons; they cannot be exercised by a an office, or position or post and it is necessary, therefore,  for the person who has been delegated by the Minister to carry out the functions of the Department to be named personally in the delegation”
 
hold good and Michael Gallagher should, therefore, have been named personally in the delegation.
 
You will, I hope, have noticed also that the paragraph which commences “Nothing in the Schedule shall be taken……” is not something which is provided for in section 3(2) of the Government Departments Act. Any restriction imposed by the Minister “regulating the exercise by any person of any functions of the Department which he is authorised to exercise under subsection (2) or (3)” which that paragraph does should be by way of Standing Orders made under section 3(3) of the Act and should not simply be lumped in as a Schedule to a delegation made under section 3(2).
 
You will, I hope have noticed also that in the final paragraph of the delegation the Minister has revoked “The authorisation” contained in the delegations that he has referred to including one made in July 2013. It would appear, therefore, that mistakes must have been made in that delegation for it to have been revoked so soon. I’ve asked for copies of all of the delegations, but these have so far not been forthcoming.
 
For the reasons that I have explained I am convinced that the delegation to Director of Planning & Building Control isn’t lawful.
 
With regard to Delegation 54/13, which is to the Development Control Manager, my arguments above that this should be in Ms Chance’s personal name hold good also.
 
You will note also that the same paragraph that was included in the delegation to the Director of Planning & Building Control “Nothing in the Schedule shall be taken to impinge on the authority of the Chief Executive (which Chief Executive is that then?) to manage the staff of the Department, nor to execute his responsibilitie s as Departmental Accounting Officer” has been included in this
Delegation even though the Development Control Manager has not been authorised to carry out any of those functions. Who drafted such nonsense?
 
I am convinced, therefore, that the delegation to the Development Control Manager isn’t lawful.
 
Importantly, however, you will note that the delegation relates only to the functions of the Department specified in the Schedule, which does not include the determination of planning applications. In this regard you will no doubt be interested in seeing the attached copies of two Decisions made by Ms Chance in accordance with the authority delegated to her. Hopefully, you will agree with me that the decisions made by Ms Chance are unlawful. If you do, what action do you propose to take about it especially as a number of other decisions are likely to have been made by Ms Chance using her powers under this delegation?
 
Given that the decisions in respect of the planning applications referred to are said to have been undertaken by Ms Chance, albeit illegally, it seems clear to me also, that the Department of Infrastructure has not, as stated in the decisions, determined to approve the planning applications referred to; Ms Chance has. The point, as I see it, of the Minister delegating the Department’s functions to someone else is, as stated in section 3 (2) of the Government Departments Act 1987, that the persons concerned shall exercise such functions “in his place”. They cannot exercise such functions in his place if he, in his position as the Department, continues to exercise the functions himself. If you agree, then for this reason also the determinations are unlawful and as it appears to be the case that all decisions are made in the name of the Department, then all decisions framed in this way have been unlawful. I leave it to you to decide what action you wish to take about this.

 
"The issue on which clarification was sought at the Planning Committee meeting of the 28th October 2013 to which Mr Cowin referred you, concerned the date of the introduction of the Town and Country Planning (Development) Procedure (No 2) Order 2013 which came into force for determining planning applications submitted on or after 1st August 2013."
 
No it wasn’t. The clarification that was sought was confirmed to me by a person who attended the meeting referred to. This is an extract from an e-mail that the person concerned sent to me in which he confirmed what was said –
 
“During a comfort break of the Planning Committee Meeting this a.m. I asked this question to the Chair Laurence Skelly
"Under which Standing Orders is this Planning Committee being conducted - those of 2005 or the new ones August 2013?"
He deferred to Jennifer Chance who told me both!
Applications after 1st August 2013 have a figure 9 immediately after the first forward slash in the planning application number
e.g. PA13/91000/B are considered under the new SOs.
Earlier applications e.g.PA13/00873/ B are considered under the 2005 SOs.
(These applications were on today's Agenda)”

 
This was the basis of the arguments put forward by me in my letter to the Examiner which I stand by.
 
"Importantly, there was no discussion at that meeting about Standing Orders or the introduction of public speaking during that meeting."
 
I didn’t suggest in my letter that there was any discussion about Standing Orders during the meeting of the Committee.
 
"In this context, the No 2 Order prescribes the procedure for applications for planning approval while the Standing Order sets down the procedure by which the Planning Committee conducts its business.  Furthermore, and for the avoidance of doubt, the No 2 Order includes specific transitional provisions which provide for applications for planning approval which were made under the previous 2005 Development Procedure Order to be determined in accordance with that Order as if the No 2 Order had not been made.  The procedures are both legally correct and procedurally fair, as applications are progressed in accordance with legislative provisions that are valid on the date of application submission."
 
I agree. But, the Standing Orders and the No 2 Order are two separate and distinct items of legislation, although obviously linked to each other. The No 2 Order does contain in Article 15 the transitional provisions that Mr Cretney refers to which provide –
 
15 Transitional provision
Any application for planning approval made but not finally determined under the Town and Country Planning (Development Procedure) Order 20052 before this Order comes into operation is to be determined in accordance with that Order as if this Order had not been made.

 
I now have no argument with that, although I did at first question it, but whilst the provisions of the Order referred to can continue to be used to determine planning applications submitted before the 1st August 2005, the 2005 Standing Orders of the Planning Committee which supported determinations made under that Order were revoked with effect from the 1st August 2013 and cannot, therefore be used to determine the applications referred to, which have to be determined by the Committee using the new 2013 Standing Orders.
 
The use by the Planning Committee of the 2005 Standing Orders to conduct its hearings to determine planning applications under the 2005 Order are not, therefore, in my opinion, “both legally correct and procedurally fair”.

 
"With regard to the matter of Standing Orders, the Planning Committee changed from using the 2005 Standing Orders to the 2013 Standing Orders with effect from 1st August 2013.  The 2005 Orders were revoked on the introduction of the 2013 Standing Orders.  The Planning Committee has used the 2013 Standing Orders for all business transactions since 1st August 2013." 
 
Did it? And has it? This is not supported by what Laurence Skelly said to the member of the public who spoke with him during a comfort break in proceedings. The e-mail confirmation of what was said by Laurence Skelly is included above. I feel sure that if asked, the person who spoke with Mr Skelly will be happy to confirm what was said. If you require me to ask him for provide you with such confirmation I will be happy to do so.
 
It may well be the case that David Cretney is trying to distance himself from what Laurence Skelly said, or he may not have spoken with Laurence Skelly about this matter; which seems unlikely given the contents of my letter to the Examiner.
 
I stand by what I have said in my letter to the Examiner which is based on the information provided to me by the person who questioned Laurence Skelly at the meeting referred to. I have no reason to doubt the truthfulness of the report of the person concerned.

 
"Discretionary provision for the introduction of public speaking at the Planning Committee has been included in the new 2013 Standing Orders by the Planning and Building Control Division of the Department.   This is reflected in the wording of the 2013 Standing Order which states "Members of the public (including local authority representatives , applicants and agents) attending a meeting of the Committee may (my emphasis) address the Committee, subject to the following....."."
 
Discretionary powers for the introductio n of public speaking is not reflected in the wording of the new 2013 Standing Orders. For the avoidance of any doubt I repeat here what the Standing Orders actually provide for –
 
(8) Members of the public (including local authority representatives , applicants and agents) attending a meeting of the Committee may address the Committee, subject to the following:
 
(a)   Only those who have registered a request before the meeting will be permitted to speak, subject to Standing Order 4 (8) (b to i) below.
(b)   The applicant or their representative.
(c)    Only those objectors and supporters who have previously made written comments on an application will be allowed to register to speak.
(d)   A representative of the Local Authority within which the site is located will al so be allowed to address the Committee.
(e)   If there are multiple requests on the same matter, individuals will be asked to co-ordinate with the others to appoint a speaker who will represent all their views.  Preference should be given to those persons who could qualify for interested person status.  If no one meets these criteria, the speaker who registered first will be the one allowed to address the Committee.
(f)    The Local Authority will be allocated one three-minute time slot.  In addition there will be one three-minute time slot for people speaking in opposition to the application, and one three-minute time slot for those in support of the application, for which preference will be given to the applicant and/or agent.
 
The only discretion available to the Planning Committee is that it can refuse a request to be permitted to speak, but it cannot refuse a request from a Local Authority which “will be allowed to speak; or to address the Committee. Importantly, however, the discretion does not extend to not introducing the provisions of the Standing Orders referred to.
 
It is clear from what the Minister says, however, and from what Laurence Skelly confirmed at the meeting referred to above, that the Planning Committee has not introduced the Standing Orders referred to which are part of the law of the Isle of Man. I am convinced by my arguments, therefore, that the Planning Committee has been conducting its business unlawfully since the 1st August 2013 and in my opinion decisions made it at such meetings have also been unlawful. I stand by those arguments.

 
"It is unfortunate that Mr Cowin has chosen to raise the matter via the newspaper without any direct contact with the Department beforehand when matters could have been explained to him."
 
Given my extensive correspondence by e-mail with Michael Gallagher that I have provided you copies of, it would appear that Mr Cretney must have been kept in the dark by Mr Gallagher with regard to the many issues that I raised in such correspondence. Hopefully, Mr Cretney will obtain copies of my e-mail correspondence with Mr Gallagher and reflect on his criticism of me.
 
I hope that what I have revealed in this e-mail demonstrates the pandemonium that exists in planning administration in the Island.
 
I wish to point out that I have nothing to gain personally from the effort that I have put in drawing these issues out. I have spent many hours of my precious time in e-mail correspondence with Michael Gallagher, in writing letters to the Examiner, in responding to the concerns of Members of Tynwald that have contacted and in preparing this response for you. I hope that you and fellow Members of Tynwald have found my comments, arguments and opinions both constructive and helpful. It is now time for me to leave the scene, however, and I leave it to all of you to either accept or reject the arguments that I have advanced and to take whatever action you consider to be appropriate. If you reject my arguments, then so be it.
 
I may need to revisit the scene, however, when Michael Gallagher provides me with the information and documentation that I have requested from him, which you are aware about from the copies of the e-mails with him that I sent to you.
 
I have taken the liberty of copying this e-mail to the other Members of Tynwald who have been in contact with me, some of whom you are aware about. Please feel free to circulate this e-mail and the associated copies of e-mails with Michael Gallagher to the other Members of Tynwald in whatever form you consider to be appropriate and to anyone else that you care to.
 
With best wishes
 
Trevor Cowin”

My response to the word “may” appears under the extracted paragraph commencing “Discretionary provision for the introduction of public speaking”.

If my assumption is correct concerning the paragraph that I’ve referred you, then I suggest that you read carefully, if you haven’t already done so, the wording of the Standing Orders referred to taking account of my response and, hopefully, you will find that my interpretation of the planning law is correct, in which case you may care to reflect on your suggestion that I “check the difference between "may" and "shall".

You might care to discuss this matter with Mr Turner as I have briefed him on a number of other issues concerning planning administration that you might find enlightening.

Yours sincerely

Trevor Cowin
Quote
 
 
0 #4 e-mail response from Howard Quayle MHK 10.11.13wilfred tomlinson 2013-12-02 11:55
Subject: Re: Unlawful planning decisions

Dear Mr Cowin

May I respectfully ask you to check the difference between "may" and "shall"
When reading the planning legislation that promotes the right to speak. You may find that your interpretation of planning law  is incorrect. 

Regards
Howard Quayle
Quote
 
 
0 #3 Typed copy of DOI Minister's letter to every Tynwald Member 06.11.13wilfred tomlinson 2013-12-02 11:41
Dear Colleagues

Planning issues raised by Mr Trevor Cowin

There have been several letters circulated to you from Mr Trevor Cowin of Sea Peep, Poortown Road, Peel over the past two weeks. Mr Cowin has raised a number of issues which I feel it is important to respond to on behalf of my Department.

In Mr Cowin’s letter published in the Isle of Man Examiner of the 21st October 2013 there are a number of statements which, in the view of the Department, are incorrect.

Mr Cowin is wrong in his assertion that the Chairman and Membership of the Planning Committee have not been correctly appointed. Mr Cowin has previously been provided with details of the appointment process, plus copies of the appropriate legislation and delegations.

In addition he questioned the legality of actions undertaken by officers of the Department. Officers have received their delegations under section 3(2) and 3(3) of the Government Departments Act 1987, and have the necessary authority to undertake their duties on behalf of the Department.

A letter published in the Isle of Man Examiner of the 4th November 2013 and a further letter of 5th November 2013 both carry a number of factual inaccuracies, to which I would draw your attention, regarding the use of the legally correct procedures to determine planning applications.

The issue on which clarification was sought at the Planning Committee meeting of the 28th October 2013 to which Mr Cowin referred you, concerned the date of the introduction of the Town and Country Planning (Development) Procedure (No 2) Order 2013 which came into force for determining planning applications submitted on or after 1st August 2013. Importantly, there was no discussion at that meeting about Standing Orders or the introduction of public speaking during that meeting. In this context, the No 2 Order prescribes the procedures for applications for planning approval while the Standing Order sets down the procedure by which the Planning Committee conducts its business. Furthermore, and for the avoidance of doubt, the No 2 Order includes specific transitional provisions which provide for applications for planning approval which were made under the previous 2005 Development Procedure Order to be determined in accordance with that Order as if the No 2 Order had not been made. The procedures are both legally correct and procedurally fair, as applications are progressed in accordance with legislative provisions that are valid on the date of application submission.

With regard to the matter of Standing Orders, the Planning Committee changed from using the 2005 Standing Orders to the 2013 Standing Orders with effect from 1st August 2013. The 2005 Orders were revoked on the introduction of the 2013 Standing Orders. The Planning Committee has used the 2013 Standing Orders for all business transactions since 1st August 2013.

Discretionary provision for the introduction of public speaking at the Planning Committee has been included in the new 2013 Standing Orders by the Planning and Building Control Division of the Department. This is reflected in the wording of the 2013 Standing Order which states, “Members of the public (including local authority representatives , applicants and agents) attending a meeting of the Committee may (my emphasis) address the Committee, subject to the following…”.

The Department agreed in July 2013 that the implementation of public speaking, when introduced, should only take place after appropriate training for Members and officers has taken place. This training session has been arranged for Monday 11th November 2013 and public speaking will be introduced shortly thereafter.

This is a significant change for the Planning Committee’s procedures and one I warmly welcome as a former Chairman of the Planning Committee when a formal review process formed part of proceedings. The Department has taken the professional view that it is important to get things right before any public launch is made and so arranged the pilot session. It is unfortunate that Mr Cowin has chosen to raise the matter via the newspaper without any direct contact with the Department beforehand when matters could have been explained to him.

In response to Mr Cowin’s allegation that Planning Committee meetings have been “….conducted unlawfully…”, I can assure Members that decisions of the Planning Committee are both lawful and valid.

Yours sincerely
David
Hon D C Cretney MHK
Minister
Quote
 
 
0 #2 Cowin Letter to IOM Newspapers 05.11.13wilfred tomlinson 2013-12-01 18:42
Unlawful planning decisions

In my letter headed “To speak or not to speak?” published in last week’s Examiner, I revealed that, after deferring to Ms Jennifer Chance the DOI’s Development Control Manager, Mr Laurence Skelly, MHK, the Chairman of the Planning Committee, confirmed that new Standing Orders which govern how Planning Committee meetings are to be conducted were now in place, but the right to speak, which was included within the new Standing Orders, had not yet been introduced.

I can now reveal that Mr Skelly confirmed also, when questioned at the meeting referred to in my letter, that planning applications submitted before the 1st August 2013 were still being considered under the old 2005 Standing Orders.

This is an astonishing admission given that the old 2005 Standing Orders were revoked on the coming into operation of the new 2013 Standing Orders on the 1st August 2013.

It would appear, therefore, that neither Mr Skelly nor Ms Chance were aware of this revocation with the result that Planning Committee meetings have been conducted unlawfully since the 1st August 2013 and in consequence determinations of planning applications made by the Planning Committee at such meetings have been unlawful also.

To summarise –

The Planning Committee has been conducting its business using Standing Orders that have been revoked.
The Committee has not introduced the right of members of the public to speak at its meetings, even though this is provided for in the Standing Orders that are currently provided for by the law.
In consequence of 1 and 2 the conduct of business at meetings of the Committee since the 1st August 2013 has been unlawful and the determinations of planning applications made by the Committee at such meetings have been unlawful also.

Those persons who may have been disenfranchised by unlawful determinations made by the Committee (most likely those persons whose planning applications were refused by the Committee), might wish to take advice on seeking redress for such unlawful determinations. Given that, as far as I’m aware, the only form of redress available to such persons would be via a Petition of Doleance to the High Court, they might wish to ask the DOI to fund the legal costs of any such actions.

Based on Mr Skelly’s advice that both the old and the new Standing Orders are both in place, your readers might ask how the Committee has managed to conduct its business operating to two sets of Standing Orders; albeit illegally. Hopefully, Mr Skelly will offer them an explanation.

I have copied this letter to all Members of Tynwald in the hope that they will understand the seriousness of the situation revealed by me in this letter and in the hope that they will take whatever action they consider to be appropriate. Your readers might wish to know, however, that only five Members of Tynwald were concerned enough by my previous revelations to contact me about them.
Quote
 
 
0 #1 Cowin Letter to IOM Newspapers 30.10.13wilfred tomlinson 2013-12-01 18:40
Those of your readers who have ever attended a public meeting of the Planning Committee will be aware that they do not have the right to speak at such meetings.

Your readers might be interested to know, however, that new Standing Orders which govern how meetings of the Planning Committee are to be conducted, have been made by the Minister for Infrastructure, Mr David Cretney, MHK, which, for the first time, allow applicants and their representatives , objectors and supporters and representatives of local authorities, the right to address the Committee. The Standing Orders came into operation on the 1st August 2013 and can be found in the downloadable documents on the Planning Committee page on the Government Website.

However, when asked at the Planning Committee meeting held on the 28th October 2013 if the new Standing Orders were being applied, the Chairman of the Planning Committee, Laurence Skelly, MHK, confirmed, after having to defer to Ms Jennifer Chance, the Development Control Manager, that the Standing Orders were now in place, but the right to speak has not yet been introduced. He went on to explain that they are due to introduce this, but only after further trials have been carried out.

Given that the Standing Orders form part of the law of the Isle of Man, how dare this man deny the people of the Isle of Man their democratic rights under the law. He must think that he is above the law.

However, as the late Deemster Kerruish once said to me “The law is the law and it must be obeyed”. And, it must be obeyed by Mr Skelly and his fellow members of the Committee.

Hopefully our lawmakers, the Honourable Members of Tynwald, to whom this letter has been copied, will do the honourable thing and take immediate steps to ensure that the law is obeyed and that the right to speak, which is now embodied in Manx law, is available to the persons referred to above.

Finally, your readers might question why this major change in procedures has not been announced publicly by the Minister. Hopefully, the Minister will offer an explanation.
Quote
 

Add comment

Please note that unregistered visitors are required to add their email and 'captcha code' in order to prevent spam and advertising. Your email address will NEVER be published. Registered members do not need to enter this - why not register today?


Security code
Refresh

Newsletter

Subscribe

Receive
Our occasional newsletter provides details of forthcoming events and features new website articles.

Main Menu