Scottish Government

GETTING INVOLVED IN PLANNING: ANALYSIS OF CONSULTATION RESPONSES

Enforcement and Advertisements

Question 12a: Do you agree there should be neighbour notification where an enforcement notice is served, and for certain types of advertisement proposal?

Present procedures allow some development to take place without involving neighbours. Applications for advertisements and development granted under enforcement appeals fall into this category. We see strong grounds to require neighbour notification in enforcement cases, when an enforcement notice is served, with costs recovered from the applicant, although this may not be possible in all cases. We do not think neighbour notification is necessary for all adverts but those, which by their scale, lighting or movement affect people living by, should be notified. Again costs should be borne by the applicant.

Table 5.9 Views on extending notification to enforcement and some advertisements

Note: The overall response rate for this question was 77% and for Question 28a it was 79%

5.55 Table 5.9 shows the breakdown of responses to Question 12a for each of the main stakeholder groupings. As this is very similar to Question 28a, and the distribution of responses between groups was almost identical to Question 12a, the 2 questions have been dealt with together and the summary totals added to Table 5.9. There was strong support again for the Executive's proposal with 84% of respondents expressing approval and only 7% indicating clear opposition. The 10% classified as giving a "mixed" response to this question consisted of some "don't knows" and "no comments", together with a group of responses which only supported part of the recommendation, particularly amongst local authorities and businesses. There was a very high level of approval for the proposal (ranging from 88% - 94%) amongst public bodies, the voluntary sector and individual respondents. Professional groups had some reservations with a 67% approval rating while, local authorities (36%) and businesses (40%) were, on balance, opposed in whole or part to the Executive's proposal.

5.56 There are two parts to this question, one concerned with advertisements and the other with enforcement action. On the proposals for neighbour notification of advertisement applications, the majority of those making comments (64%) agreed that notification would be appropriate. Various reasons were cited in support of this approach - the fact that they could be intrusive and cause environmental nuisance as well as the need for consistency in the way all types of applications were dealt with. Some thought that notification ought to extend beyond neighbours to the wider area that might be affected. There was no consensus regarding the type of advertisements which should be notified and this matter is dealt with in more detail in the analysis of responses to Question 12b.

5.57 Most of the opposition to neighbour notification of advertisements came from local authorities. Many of these indicated that current procedures were, "not problematical" or that problems were, "virtually unknown". A few respondents thought that identifying neighbours would be onerous and have resource implications and one pointed out that since advertisement applications are usually dealt with speedily, notification could affect performance figures. There was a view that the issue needs more thought and that a two tier approach to advertisement notification would be likely to cause confusion. Leaving the matter to the discretion of the planning authority had the support of a small group of respondents.

5.58 The issue of enforcement notification attracted more comment than advertisements, and as the response to Question 28a shows, there was overwhelming support for action in this area. The balance of opinion amongst those actually making comments on this issue was much closer. Once again, a number of reasons were put forward in support of the proposal. To increase public awareness of action being taken and hence counter community disillusionment with the process was mentioned by several respondents. As one council put it,

"Neighbour notification of enforcement notices would serve to make people more aware of an authority's attempts to prevent unauthorised development and also the consequences of such development."

There were also views that notification might provide a source of useful information on alleged contraventions and that greater publicity might act as a deterrent.

5.59 Virtually all of the local authorities and professional bodies supporting notification qualified their approval on the timing of the service of any notice. Their general views are summed up in the following observations from one council,

"The council sees no purpose in notifying neighbours when an enforcement notice is being issued since the public is not being asked for comments or representations. However, neighbours should be notified if and when an enforcement notice is appealed, because at that stage they can play an effective role."

5.60 Some supportive comments nonetheless raised concerns about the workload implications of the proposal and a number considered that the responsibility should be the responsibility of the recipient/appellant. Others thought that this would be inappropriate and the matter is considered further in relation to the responses to Question 12c. There were also some views that in addition to neighbour notification there should be newspaper advertisements and site notices (see also Question 28b).

5.61 Those opposed to the Executive's proposal did so for a wide range of reasons. Councils who were opposed to the transfer of general neighbour notification responsibilities (Question 7a) again tended to express their disapproval. Other objections were more pragmatic. One council reflected a recurrent theme amongst the group in stating that,

"It is not clear if any useful purpose would be served by notification. If the enforcement notice requires complete cessation of the unauthorised development there is no need to notify neighbours."

While another, also echoing the views of several, felt that it would be unnecessary because,

"It is highly likely that the neighbours were the ones to have brought the matter to the Council's attention."

5.62 There was also a view that the enforcement process is already complex and the proposal would make it worse. It was felt that identification of the relevant "neighbours" could be problematical (e.g. for unauthorised fly tipping) and that, consequently, unnecessary administrative burdens would be added to authorities. There were also suggestions that notification could cause or exacerbate neighbour disputes.

5.63 Overall, there was support for more information to be made available to the public on these matters, although some respondents queried whether neighbour notification was the right way forward and suggested alternatives such as block newspaper adverts, site notices and information on websites. Others considered that there should be consistency across all types of applications and drew attention to the fact that listed building and conservation area consents had not been mentioned, while one respondent thought that there was a case for the neighbour notification of some permitted development operations. There was a view that human rights issues might be involved and that there could be merit in giving the matter further consideration.

Question 12b: What kind of advertisements should be included in the notification procedure?

5.64 There were a larger number of submissions in response to this question (72), which did not appear on the consultation questionnaire, although some did not directly answer the question. As indicated above, there was no consensus on the scope of any notification. Thirty one respondents (43%) from all stakeholder groups considered that all advertisements should be notified, because, as one local authority commented,

" It would be unduly complicated and confusing if only some types of advertisement consent applications were to require notification."

A community council made a different point, which also had widespread support, namely that notification should cover,

"Possibly all, since even modest local adverts can have a significant direct or indirect impact on a localised area."

5.65 The consultation document view that a more selective approach should be adopted, was supported by 35 respondents (49%). This group was equally split, between those who wanted to identify fairly limited specific categories such as illuminated signs and hoardings, and those referring to the scale and impact of the advertisement. If a selective approach to notification was adopted it was felt that clear guidance on the criteria for inclusion would need to be set out by the Executive. There was also a small cluster of responses which took the view that it was impossible to specify types of advertisement for which notification should apply and the matter should be left to the discretion of the local planning authority.

Question 12c: Should the planning authority serve the neighbour notification in both the case of the enforcement notice and the advertisement consent application?

5.66 This question was also not on the consultation questionnaire and, consequently, there were only 34 written responses, of which 14 (41%) were from local authorities, 8 (24%) from community councils and 7 (21%) from private individuals. Some 71% of these respondents supported the proposition, although in many cases this was qualified, 18% directly indicated that the answer depended upon general neighbour notification responsibilities (Question 7a), and 12% opposed it.

5.67 The main qualification expressed by local authorities responding "yes" to the question was encapsulated by one in the comment,

"If the onus for notification is to pass to local authorities, then clearly this should apply to all types of notification."

Other reasons included the need to avoid errors and for the sake of consistency. There were some views that no other party could undertake enforcement notification in any event and concerns that it would only be possible on the basis of full cost recovery.

5.68 Those opposed to local authorities undertaking both neighbour notifications suggested 3 alternatives. That it should be the responsibility of the applicant/appellant, that the Scottish Executive Inquiry Reporters Unit (SEIRU) should assume responsibility for the matter, or that responsibilities should be split with the local authority carrying out enforcement and applicants dealing with advertisements. There were, however, only responses in this group.

Question 28b: Should there be other changes in public information on enforcement, particularly to publicise any action being taken by the planning authority?

Proper enforcement is a vital part of the planning process. Clear enforcement policies should be set out in the development plan and be subject to public discussion. We think they should be covered in regular discussions with the proposed local planning policy forums. Clear enforcement procedures should also be set out in writing.

5.69 Table 5.10 shows the breakdown of responses to Question 28b for each of the main stakeholder groupings. There was a strong positive response to this question with 75% of all respondents expressing approval, although a comparatively high 19% indicated clear opposition. The 6% classified as giving a "mixed" response to this question consisted mainly of "don't knows" and "no comments", together with some responses which made other points.

Table 5.10 Views on publicising local authority enforcement action

Note: The overall response rate for this question was 59%

5.70 There was a only a relatively small number of responses to this question from public bodies (4), businesses (6) and professional consultees (6) which have had the effect of exaggerating the percentage share of different views within each of their groups. Subject to this caveat, there was strong support from public bodies, voluntary sector and public respondents. Businesses were split two-thirds in favour of more publicity and one-third against, while a majority of local authorities and professional bodies had reservations.

5.71 The strong support for more information and publicity was reinforced by those making written comments. In particular, community and public consultees felt that there was little information about what was being done at the moment and there was a need to raise the profile of enforcement. It was considered that such an approach would increase public confidence and demonstrate something was being done. In addition, it was felt by all respondents that better information would raise awareness, avoid misunderstandings and rumour, especially, as one national voluntary organisation pointed out, the public are concerned about the discretionary element in enforcement. Consequently, there was a need to set out clearly the reasons why enforcement action was or was not being taken.

5.72 Suggestions were made on how information could be improved such as: advertisements in the weekly press; incorporating action on enforcement on weekly planning lists; and making reports available on the internet. A number of councils indicated that they already do this. There was also support for greater use of site notices and leaflets as well as for information in libraries and on local radio. Better publicity about the Enforcement Register and on the availability of councils' Enforcement Policy and Procedural Manuals was also encouraged. A number thought that local Planning Policy Forums may play a useful role in this context and a view that mediation could also be appropriate.

5.73 The main reason cited by those opposed to the availability of further information was that it was unnecessary given what was already being done or proposed. Enforcement Registers were publicly available, many councils published information on websites and if neighbour notification was also brought in, that would be sufficient. There was also a view that publicising information on enforcement might jeopardise negotiations.

5.74 Many comments from the voluntary sector and public respondents took this opportunity to express concern about the current performance of enforcement activities. One community council, reflecting the common view from that sector, indicated that,

"Enforcement is a huge concern of ours. It seems to be under - resourced and often wimpish in operation."

Other concerns were the need for more and appropriately skilled staff, more rigorous application and for the whole process to be speeded up. One individual respondent considered that there should be a maximum time prescribed for a council to delay enforcement action after non-compliance has been established. Another felt that authorities should keep a record of applicants with a poor compliance record and take this into account when considering new applications from them. A local authority thought that there was a case for setting up an Environmental Court given the low priority they believed enforcement matters were accorded under the present arrangements.

Question 13: What are your views on what should trigger re-notification of an application to neighbours?

A subject of concern in complaints to the Ombudsman is the varying practice in dealing with changes made before an application is determined. We think that certain changes should be re-notified to neighbours. Where applications are changed to a material extent a new application would be required in any event.

5.75 There was a general acceptance that this is a complex and "vexed" question giving rise to concern, criticism and confusion, and that some clarification would be helpful. As one respondent suggested, this question tries to identify relevant criteria to determine when changes to an application are significant enough to merit re-notification, but not so significant that a new application would be required. This depends upon the concept of "material change", for which there is no standard definition, the circumstances of each case having to be looked at on its merits. Several respondents, however, thought that it would be useful to have a definition of "material change" set out in a Planning Advice Note or other guidance.

5.76 There was considerable misunderstanding of these distinctions amongst all respondents

except for local authorities, as many submissions advocated that re-notification should be triggered by, "material", "major" or "significant" change to an application. In such circumstances a fresh application should be required, although there were suggestions that this did not always happen in practice. One respondent thought that re-notification should never arise as re-submission should always be the norm.

5.77 A large group of responses from community councils and private individuals advocated the re-notification of any change to an application, however minor it might be. There were concerns that,

"Even external detailing can make a difference to the view taken by potential objectors." (Community Council)

"…any change that occurs to the application should be re-notified to the complainants automatically." (Private Individual)

There was also a view that community councils as well as neighbours and other objectors should be re-notified.

5.78 Another group of respondents took the view that a selective approach would be more appropriate and they tended to fall into two groups. One felt that a, "pragmatic approach" which made a case by case judgement on the likely impact on neighbours would be the right way forward. As one council put it,

"It is very difficult to set criteria for this. Different amendments will affect neighbours in various ways and it is up to the planning officer to exercise discretion on whether the extent to which neighbours would be affected by the amendment would merit re-notification."

Others in this group tended to emphasise the need to assess the degree of change and to be very selective. One consultee thought that if the change fell within permitted development rights then it was not "material" and should be notified, while another took the entirely opposite view.

5.79 The second group generally supported an approach, which tried to define the relevant criteria which would trigger re-notification, although many also recognised that this could be complex and potentially open to challenge. The most frequently mentioned criteria were:

• Enlargement of the site
• Changes in the height or size of buildings
• Changes in levels
• Relocation of a building within a site, especially near boundary
• Changes in design or to external finishes/materials
• Changes to external openings (doors/windows)
• Increase/intensification of use

5.80 A small number of councils indicated that they had agreed policies or codes of practice in respect of re-notification, however, the overwhelming view from all groups of respondents was that clear national guidance on this matter should be issued. As one local authority observed,

"Circular 4/1998 gives some good advice on this but standard guidance is required from the Scottish Executive to ensure consistent interpretation."

There were also some views that the guidance should clarify which parties should be notified, and one observation that the guidance would also be applicable to Section 65 Orders under the Planning Act. Opinion was divided as to whether the guidance needed to be incorporated in primary or secondary legislation or merely set out as best practice in a PAN.

5.81 Finally, some respondents from local authorities raised concerns about financial and staffing implications of any change. It was felt that there would be an increase in workload and that any additional costs should be borne by the applicant. The potential impact on performance targets was also highlighted in several submissions. There were suggestions that re-notification should rewind the "performance clock" to zero, that it should be stopped for the period of re-notification, or that consultation periods for re-notification should be shorter than normal. It was also pointed out in this context that concentration on performance targets would tend to encourage re-submission rather than re-notification.

Advertising

5.82 While neighbour notification informs people with an interest in adjacent land, it is clear from responses to earlier questions that many respondents consider that planning proposals can have an impact over a wider area. Advertising in a newspaper or displaying a site notice are ways of reaching the wider community. At present, a number of different types of proposed development must be advertised and the time allowed to make representations varies between 14 and 28 days. The consultation document summarised the strengths and weaknesses of the current arrangements and set out the results of recent research, from which a number of changes were suggested. These proposals are set out in detail in Questions 14 - 20 which follow.

Question 14: Do you agree that we should end the requirement to advertise planning proposals in the Edinburgh Gazette?

The Edinburgh Gazette is a long-established twice-weekly public information bulletin. Published by authority it is a clear national record of planning proposals, and the official medium for public dissemination of government and official notices. It is sold largely by subscription will shortly also be made available as a freely accessible internet website. Dissatisfaction stems mainly from the limited readership than high costs and equivalent planning information is available from weekly lists. To simplify the system we suggest that the requirement to advertise in the Edinburgh Gazette should be removed for all proposals covered by the Planning Acts. This would require a change in Primary legislation.

5.83 Table 5.11 shows the breakdown of responses to Question 14 for each of the main stakeholder groupings. There was strong support again for the Executive's proposal with 80% of respondents expressing approval and 13% indicating clear opposition. The 7% classified as giving a "mixed" response to this question consisted of some "don't knows" and "no comments", together with some who commented without taking a view. There was a very high level of approval for the proposal (ranging from 75% - 97%) amongst all stakeholder groups, but particularly high amongst local authorities. Professional groups and businesses were the groups with the most reservations.

Table 5.11 Views on ending the requirement to advertise in the Edinburgh Gazette

Note: The overall response rate for this question was 81%

5.84 The strong support for the Executive's proposal largely followed the reasoning set out in the consultation report. A substantial group of these responses cited the limited readership, specialist focus and low awareness of the document amongst the public as matters of concern. Comments included:

"…the Gazette appears to be only for the legal fraternity and not those who may be affected." (Community Council) and "The Edinburgh Gazette is not commonly available and advertisements should be made in the weekly press until the consultation period is over." (Private Individual)

Notwithstanding the view in the consultation document, many local authorities, and some others, thought that advertising in the Gazette was expensive. Consequently, there was a general view that it was not an effective medium for widely publicising proposals.

5.85 A number of alternatives were suggested as more effective means and these included: the weekly planning list, which many authorities now published on their websites; local newspaper advertisements; site notices; and the internet. With respect to the last option one local amenity group considered that,

"…councils should maintain a web-based database with open access, and a subscription service to e-mail notification of the weekly list. A paper mailing of the weekly list should be available to anyone who requests it, with a charge to cover postage."

A professional body suggested that issues of website access should be referred to the government's e-planning group.

5.86 Opposition to the proposal took 2 forms. There was support for the Gazette in its present form from a cluster of respondents which included a number of national amenity bodies. The key consideration was as one voluntary body put it,

"There is an absolute need for a national, central scheme for the publication of planning information, and this is a function currently well served by the Gazette."

The potential loss of information on cross boundary developments, lack of standardisation and the impracticality of dealing with many weekly lists were also cited as reasons against change.

5.87 An alternative view from a significant cross section of respondents was that if the Gazette became more freely available on the internet and was better publicised, many of the objections to it could be overcome. There were suggestions that the consistency and quality of presentation could be improved to make the format more user-friendly. Some respondents also supported the idea of a national planning website or internet based central planning register without specifically linking this to the Gazette.