Bribery act and planning applications

How does the Bribery Act impinge on the planning process?

In your article in the July/August edition you mention that an offence is commited if a developer’s agent offers a bribe in connection with a planning application. Is the position the same where the developer itself offers the bribe? Is the planner also committing an offence? And surely it is wrong to give hospitality or small gifts to planners?

Answer

Interesting questions! Lets start by making it absolutely clear that an arrangement by which a developer pays the local authority itself in return for the grant of a planning consent is not a bribe – its known as a section 106 agreement!

There are four separate offences under the Bribery Act: giving bribes, taking bribes, giving bribes to foreign public officials, and the corporate offence of failing to prevent bribery by associated persons. The third of these is only relevant in an international context: it will never apply in relation to a UK local authority planner.

The position of individuals and their employers must be looked at separately. It’s always an offence for an individual to give a bribe. In addition, that person’s superiors and the employing company itself may also be guilty where, for example, the bribe was authorised at high level. The same is true of the complementary offence of accepting a bribe.

The offence of failing to prevent bribery by associated persons is different: it cannot be committed by an individual, only by a company or a partnership.

So, whether given by the developer itself, by an employee of the developer or by an agent of the developer, such as a planning consultant or architect, the person or organisation actually giving the bribe will always be committing an offence. In addition, the developer will be guilty of the offence of failing to prevent bribery unless it can show that it has taken the appropriate measures to prevent bribery by its “associated persons”.

A planning officer or local councillor who takes a bribe will always be committing an offence. It is highly likely that any local authority that discovers that a planning permission has been illegally obtained by bribery will seek to revoke that consent under section 97 of the Town and Country Planning Act. There is also a general principle that a statutory consent secured by fraud should not stand, and it is likely that this would be applied to a consent obtained through bribery.

As regards extending hospitality and making small gifts to planners, there is a distinction between the Bribery Act and the internal rules in place in most public sector organisations. Under the Act, proportionate hospitality for the purpose of developing good business relations is permissible. It may well be that inviting a planner to a football match or giving him a leather diary will not amount to an offence under the Act. But this would still fall foul of most public sector staff rules, which often prohibit any acceptance of corporate hospitality or gifts, however small. Just because something is “wrong” and/or prohibited by staff rules, does not mean that it is a crime. On the other hand, giving a planner an expensive new lawnmower will almost certainly fall on the wrong side of both the law and the internal rules.

This article first appeared in the November/December 2011 edition of Professional Housebuilder.