A Guide to Modernising Public Local Inquiries in Scotland
A guide to the consultation paper
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Involving people is an essential part of the Scottish planning system. At the Scottish Executive we have consulted recently on the opportunities for Getting Involved in Planning and the Scottish Ministers have published their conclusions in the White Paper Your place, your plan. The White Paper recognises that there are some calls for the introduction to the planning system of a right of third party appeal and Ministers have indicated that it is their intention to carry out a full consultation during 2003 to examine the issues and options thoroughly.
We wish now to give further consideration to the arrangements for those who want to be involved in the public local inquiries, that are used to determine planning appeals and other land use and development proposals. The paper looks at the scope for modernising the planning inquiry process and at opportunities for better practice. You can get full copies of the consultation paper from us at the Scottish Executive, or you can read it on our planning web pages www.scotland.gov.uk/planning or at www.scotland.gov.uk/planning_appeals/seiru, the Inquiry Reporters Unit web pages. This short guide is available in the same way.
The present planning inquiry process has operated well, allowing decisions on a wide range of proposals to be made fairly and transparently and giving a right to be heard to all with an interest, usually at a venue within the community. We modernised the process in 1997 and 1998 and we think that we can still make further improvements.
We want to make sure that concerned citizens feel able to put their views forward without being intimidated by the process. We must also ensure that decisions continue to be made quickly and efficiently; that suitable opportunities for economic development are secured; and that living conditions for citizens are improved. The planning system must be able to deliver the major building, environment and transport projects on which we all depend and also protect our surroundings from inappropriate development. We want the way in which the process operates to be clear and certain. And, above all, decisions must continue to be reached in a way that is fair, impartial, open, and inclusive.
Because so much of the inquiry process remains effective we intend to build on the strengths of what we do now, seeking out the best ways through a combination of common-sense, well tried approaches and new suggestions. We say where we think there is scope to improve on current arrangements and we would like your comments on our proposals.
We are consulting widely, including a random sample of those who have been involved recently in planning inquiries. Comments can be made before 28 November 2003:
In writing to
Richard West
Modernising Public Local Inquiries
Scottish Executive
Development Department
Area 2-H33
Victoria Quay
Leith
Edinburgh
EH6 6QQ
By e-mail to modernising.plis@scotland.gsi.gov.uk
We will make copies of responses available to inform the debate about these important issues unless you ask that your response be kept confidential.
Why change now?
We want an open, just and inclusive Scotland with mutual respect and understanding where everyone can live, work and play their role in society. We want to have a planning system that reinforces social justice and the suggestions put forward in the consultation paper are intended to make the planning inquiry a more accessible and less intimidating process for individuals and communities.
Planning decisions involve difficult choices, with complex arguments concerning not only the development and its implications, but also the application of the law. That is why procedure before and during an inquiry is governed by statutory procedure rules. These set out the rights that people wishing to take part in a planning inquiry have, and also the obligations that come with those rights.
Over the last 2 years we have been taking steps to modernise our Scottish planning system by reviewing the arrangements for strategic planning, for public involvement in planning and looking again at the issue of design quality. This consultation is another stage in this process of modernisation.
Our objectives
We want to improve the experience of everyone involved in a planning appeal, whether as appellant, supporter or objector. We know that this will mean a change in the way that inquiries are managed and some adjustment of the rights and obligations of all involved. We are convinced that it requires all parties to co-operate in reaching the best planning solution. While the planning system cannot guarantee everyone the decision they seek, we want to make sure that all involved feel they have been given a fair opportunity to influence the outcome.
We want to encourage the widest participation in modernising the delivery of this important public service.
Keeping the best and improving the rest
We are only suggesting change where we think that it may be needed and where the public interest would benefit. The core values of openness, impartiality, and fairness must remain unchanged, but we want to:
- create more certainty about the procedure, about timescales, and about responsibilities at every stage;
- seek more focused evidence;
- reinforce the public interest and reduce the scope for abuse;
- process cases more quickly; and
- safeguard the human rights conferred by the European Convention.
Where do we suggest change?
The main areas are outlined in the sections that follow. Some of the suggestions can be brought into operation quickly and without changing the law. Others will need legislation by the Scottish Parliament. Small-scale changes can help too. People need to be able to get easy access to accurate information and the Inquiry Reporters Unit web pages are designed with exactly that in mind.
Documents prepared for planning inquiries should be in a form that will be readily understood by all of those who wish to take part. It is important that planning authorities and others look at how their arrangements work and that they get feedback from people using the services that they provide.
In each of the sections that follow you will see the questions that are posed in the consultation paper. These retain the numbering from the main paper, but in this guide are grouped differently, so you will find a few that are not in sequence.
Scope for change?
Because we want to keep the best of the existing planning inquiry system, we only want to make changes where we need to.
Question 1 | Should we focus on: - the time taken to process the appeal or called-in application;
- the cost, level of certainty about process; and
- the need to make it easier for the public to be involved, or are there other important matters to be addressed?
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The planning inquiry
The purpose of a public local inquiry held to consider a planning appeal, or a planning application that has been called-in for a decision by the Scottish Ministers, is to gather the information that is necessary to decide whether planning permission should be granted. Inquiries are held in public, but decisions are not simply reached on the basis of who, or how many, spoke at the inquiry. Planning decisions are required by law to accord with the development plan prepared by the planning authority unless material considerations indicate otherwise. This misunderstanding over the purpose of the process might be cleared up by re-naming public local inquiries as planning inquiries.
Question 2 | Should public local inquiries into planning proposals be re-named "planning inquiries"? |
Planning inquiry, hearing or written submissions?
Most planning appeals are determined fairly, effectively and quickly by an exchange of written submissions and there is no need for any oral public examination. We want to ensure that, when an inquiry is requested, the process used is best matched with the complexity and importance of the subject matter. That is why we suggest 3 options that could be used where the planning authority or appellant have exercised their legal right and requested a planning inquiry.
- Option 1 would allow the Scottish Ministers to set criteria and then decide whether an appeal would be considered by an inquiry; hearing; or an exchange of written submissions.
- Option 2 would give the Scottish Ministers the right to decide on whether a planning inquiry is necessary and which issues should be considered at it; the balance of the material would be assessed by an exchange of written submissions.
- Option 3 would allow the appellant and planning authority to make representations in support of their request for a planning inquiry. If Scottish Ministers did not agree, the case would be decided following either a hearing or an exchange of written submissions.
Question 3 | Should the right of an appellant or planning authority to a planning appeal inquiry or hearing be further qualified? If so, do you have a preference for Option 1, Option 2, or Option 3? Alternatively, do you have other suggestions that might be effective in achieving this objective? |
Reducing the time that it takes before a planning inquiry starts
Planning appeal decisions are based on information that is publicly available. We intend to strengthen the principle that each person or organisation involved in the appeal must disclose their case in advance in a structured and consistent way, so that there are no surprises. We also want to increase certainty about the way in which the process operates and ensure that appeals are dealt with as quickly as possible while still allowing time for preparation. We are considering whether planning authorities that have failed to take a decision on a planning application should be required to indicate their assessment of the proposal soon after an appeal has been lodged.
Question 4 | Where an appeal is lodged against non-determination, should the planning authority be required to indicate whether they would have granted or refused the application within, say, 2 weeks of the appeal being lodged? |
Sometimes appeals are lodged, but relevant documents have not been included, and have still not been submitted after several months. This puts the appeal on hold and leads to uncertainty and unease within communities. For all but householder developments (such as domestic alterations) we ask:
Question 5 | Should incomplete appeals be rejected and returned to the appellant? |
Some appellants submit an appeal and then ask for processing to be suspended, or 'sisted'. There is no means by which these appeals can be turned away. As a result, a period of uncertainty may be caused for neighbouring households and businesses. We question whether this should remain the case.
Question 12 | Should the Scottish Ministers set a time limit on sisted appeals, so that these expire if the case is not brought to planning inquiry within 6 months of the date on which processing first stopped? |
The time limits for producing the statement of the planning authority or appellant's position before an inquiry are set by the law. A new shorter period would be required if appeals are to be handled more quickly. This would reduce the period of uncertainty for those affected by a development.
Question 6 | Should the present maximum period for production of the full statement of case be reduced from 8 weeks to 4 weeks from the issue of relevant notice? |
Question 7 | Are there other ways of shortening the essential pre-inquiry stages that could be as, or more, effective? |
Question 9 | Do you take the view that the pre-inquiry process set by the Inquiries Procedure Rules does not allow sufficient time for proper preparation? If so, why? |
We think that these measures should increase certainty and also streamline and improve the process. This would benefit all users and would build on the Scottish Ministers' desire to reduce concerns about intimidation at a planning inquiry and increase the confidence of participants, because better information should be available earlier.
Making it easier for citizens to be involved
Communities may feel that they are disadvantaged because they are unsure about what will happen at a planning inquiry and about the matters that are important, or that will be taken into account by the Reporter. Questions 10 and 11 suggest ways of guiding those who wish to take part so as to improve understanding of the process.
Question 10 | Once statements of case have been lodged should the Scottish Ministers give more explicit guidance, even if no pre-inquiry meeting is held, on the essential issues that they wish addressed in evidence to the inquiry including oral evidence? |
Question 11 | Should the Scottish Ministers indicate the material that must be considered by the appellant or applicant and the planning authority in order to identify areas of agreement and disagreement and be lodged as inquiry documents in order for the planning inquiry to start as programmed? |
Formality, but only where necessary
We want to make it easier for citizens to be involved in planning inquiries. To achieve this we would like to reduce the potentially intimidating effect that the formal setting and the involvement of lawyers and other professionals may appear to have. That is why we are considering introducing the more informal hearings practice into planning inquiries, but only when it is the best way of deciding the facts.
Question 17 | Should hearings practice be imported to planning inquiries when it represents the most effective means of determining the matters in dispute? Does this enhanced role for hearings suggest that statutory procedure rules are required? |
A fairer process
We want to see a planning appeal system that is both fair and clear for all parties. The law allows anyone to come to a planning inquiry and to ask to speak even though others do not know whether they support or object to the proposal. That adds to confusion, to costs and to the time taken when appellants and planning authorities try to cover every possible line of argument.
Question 8 | Should all parties to a planning inquiry who intend to speak at the inquiry be required to register their intention to do so by a specified date; and also to disclose their case in advance on the same structured and consistent basis? |
Everyone involved in a planning inquiry will thus be expected to set out their case before the inquiry starts. They are expected to complete their evidence at the inquiry, without introducing new and unexpected material. The existing law allows for new material to be sent to the reporter after a planning inquiry has closed with the request that it be taken into account. We suggest limiting the scope for that to happen.
Question 18 | Should the existing Inquiries Procedure Rules be amended to make it clear that the scope to request that a reporter takes account of new material after the planning inquiry has closed is strictly limited to a change in the provisions of the development plan? |
At the inquiry
The start of a planning inquiry is sometimes delayed by argument that could have been settled in advance, or by adjournments because a key person is unavailable. This inconveniences local residents and others. It leads us to ask whether preliminary arguments should be ruled out so that parties proceed straight to the presentation of their case and then continue without interruption.
Question 14 | Should preliminary argument be ruled out at the opening of a planning inquiry? |
Programming and timetabling of planning inquiries already takes place but we think that we should explore whether more rigorous programmes should be worked out and then applied fairly to all the parties.
Question 15 | Should time at the planning inquiry be programmed more rigorously in advance by reporters, and parties held to that programme witness by witness? |
Inquiry reporters are expected to ask searching questions to establish the facts so as to decide whether or not planning permission should be granted. If reporters were required to be even more probing there could be a reduction in unnecessary cross-examination with both time and cost savings for the parties.
Question 16 | Should Scottish Ministers explicitly set a more probing role for reporters? |
Recovery of costs
Normally everyone involved in a planning inquiry is responsible for their own costs. But in several cases each year an appellant will request a planning inquiry and then abandon it after all of the arrangements have been made. We ask whether the costs of that abortive work should be recovered.
Question 13 | Should the Scottish Ministers exercise their powers to recover their own costs and the costs of others where an appeal party fails to proceed, or an appeal is withdrawn, once the planning inquiry arrangements have been made? |
Development plan inquiries
The development plan allows the council to decide on the use of land and sets policies and proposals for future development that best meet the needs of the community. The suggestions contained in this consultation apply just as much to inquiries that are held to consider objections to development plans.
Question 19 | Would the hearings format be a suitable way to examine objections to strategic development plans? If not, what other model do you suggest? |
The policies and proposals in the development plan have a major influence on the community and on whether or not future planning applications will be approved. The development plan process, including the inquiry, must therefore be accessible to the community and attract them to become involved.
Question 20 | Would the process of development planning be improved by requiring planning authorities to reduce the volume of objections through negotiation and mediation before calling a local plan inquiry; by adopting the hearing format as the norm for all local plan inquiries; and by applying other relevant improvements in practice contained in this consultation. Are there other ways in which the process might be improved? |
Many development plan inquiries have been delayed and made less accessible to local residents and businesses when planning authorities have decided that they want them to be considered at the same time as planning appeals, often involving large housing developments.
Question 21 | Should inquiries into planning appeals and called-in applications be kept separate from inquiries that are arranged to hear objections to local plans and from the public examination of objections to strategic and local development plans? |
Do you have other suggestions?
Most of these suggestions are meant to make public local inquiries less intimidating, particularly where the subject of the inquiry justifies less formality. We want to know whether you have other suggestions:
Question 22 | We would welcome views on other options that could help to make public local inquiries less adversarial but just as robust as the means of taking major planning decisions |
We want a planning system that is fair to all, with improved access for communities to planning inquiries and a more inclusive process. This will mean that everyone involved will have to be prepared to strike a new balance recognising the rights and obligations of others so that each can make the case that they consider necessary whether in writing, or orally. In practical terms, parties will have to be prepared to renew their commitment to the process so that the planning inquiry system continues to deliver an efficient and effective service in the interests of Scotland and all of its people.