Scottish Government

National Consultative Group on Planning -
Report of first meeting: February 2004, Glasgow

Scottish Civic Forum report to the Scottish Executive on the first National Consultative Group on Planning, held on 23 February 2004, at St Francis Centre, Glasgow

Note - the following is a synopsis of comments made during the meeting. Comments recorded here do not necessarily reflect the views of the Scottish Executive nor of the Scottish Civic Forum.

This document is also available in pdf format (200k)

CONTENTS

INTRODUCTION
WORKSHOP SESSIONS - POINTS ARISING
E-PLANNING
MEDIATION AND PLANNING
PLANNING ENFORCEMENT
LOCAL PLANNING FORUMS
REPORTING BACK
ANNEX 1: LIST OF ATTENDEES
ANNEX 2: AGENDA

INTRODUCTION

1. National Consultative Group on Planning - this group was developed by the Scottish Executive Planning Division, and it is intended to have three initial meetings across Scotland. The built environment is of interest to most people in Scotland. It is one of the things that impacts directly on where we live and work. However, the Scottish Executive's experience suggests that it has proved difficult to engage people in communities in discussions about strategic issues related to planning. The main point of engagement tends to be confrontational (for example, when objections are being made to a specific planning application) and at a point where it may be too late in the process. The Executive is keen to find ways of involving a wider range of people in discussion of the more strategic planning issues. "Your Place, Your Plan", the Executive's White Paper on public involvement in planning was published in March 2003. It contained a commitment to establish a National Consultative Group on Planning covering a wide range of interests, as a means for people to put forward their views on planning.

2. The Scottish Civic Forum - the Forum is a network organisation which was set up to get people more involved in the decisions that affect them. This is done through a variety of means, including the preparation of monthly newsletters on participating in the work of the Scottish Executive and the Scottish Parliament. The Forum also regularly prepares briefing papers on Executive consultation exercises and hosts events across Scotland on topical issues. The role of the Forum in this event was to provide a neutral convenor;

basic organisation of the event, venue and catering; and to encourage civic organisations to attend.

Summary of meeting

3. The meeting opened with a short introduction from Donald Reid, Director of the Scottish Civic Forum and convenor of the meeting. This was followed by presentations from Margaret Curran MSP, Minister for Communities, and Jim Mackinnon, the Chief Planner with the Scottish Executive.

4. These presentations placed the event in context and explained current developments in planning. One of the commitments in the coalition Partnership Agreement is to improve community engagement with planning issues. Planning is also key to the delivery of key objectives in social inclusion.

5. After a short plenary session the meeting broke into 2 rounds of workshops, with a total of 4 workshops being held. These included a presentation and discussion on e-planning, as well as workshops on Mediation, Enforcement and Local Planning Forums.

WORKSHOP SESSIONS - POINTS ARISING

E-PLANNING

Ben Train, Senior Planner with the Scottish Executive, provided an overview of the Executive's thinking on e-planning. Ritchie Somerville from the City of Edinburgh Council provided a presentation on his council's planning and building control portal ( http://citydev-portal.edinburgh.gov.uk/portal/portal.jsp), which allows citizens to view planning applications online.

Issues arising in discussion during the presentation and response of the presenters are recorded below.

• Comment from the floor that, despite being advised that planning material was available on the Edinburgh Council website, it proved inaccessible. There were also problems cited over allowing access to plans because of copyright issues.
• Ritchie Somerville - Planning documents submitted in support of a planning application are public documents to allow the proper consideration by the public and the government of the planning application, and can be used consistent with this purpose.
• Suggested that there were instances where Councils would not provide copies of plans in support of planning applications.
• Ritchie Somerville - This whole area is mired in various interpretations of the Data Protection Act. It is up to each Local Authority to take its own legal advice. Within Edinburgh Council the interpretation has been that as long as the materials are used for the purpose for which they were submitted, their publication on the internet does not cause a problem.
• Ben Train - Agree with the approach taken by Edinburgh Council, and concerned at the diversity of approaches adopted by Councils. This may be an issue for the Scottish Executive to provide guidance on.
• Ritchie Somerville - there remain cases, for example Ministry of Defence and Prisons, where there are legal reasons why they cannot make plans available.
• An issue of view versus copy - it was always possible to allow people to view plans, but it was not possible to allow a copy to be taken without permission from the person that had submitted the application.
• Ritchie Somerville - the infringement would come when someone attempted to present the plan as their own work.
• What is the difference between this and the copyright on Ordnance Survey maps?
• Ritchie Somerville - The relationship with the Ordnance Survey is a commercial licensing relationship. Edinburgh Council will continue to make the information available until someone says that they cannot. If there is going to be a court case over this issue, it is likely that it would be in Edinburgh.
• Could a person taking copies of plans for planning applications be taken to court? Or would it be permissible to take copies as long as they were for information purposes?
• Ritchie Somerville - It is OK to take copies as long as they are for public information purposes.
• Are there legal difficulties around showing people copies of the plans? Most people are apathetic, but become engaged when they actually see copies of the plans.
• Ben Train - Want to encourage access to plans.
• Ritchie Somerville - It is necessary to apply common sense, for example putting a copy of a plan in a newsletter could lead to a breach of copyright.
• People are not receiving copies of neighbour notifications. Copies of plans should be made available in local libraries. Suggested that some Councils may be "persistently failing" in letting the public access material on planning.
• Would welcome advice on what it is appropriate - on planning grounds - for people to comment on, and what would be deemed irrelevant. It is discouraging for people to have their comments ignored because they are inadmissible.
• Ritchie Somerville - The Edinburgh Council website currently includes general advice, but may include more detailed advice in future.

Points arising in the discussion session following the presentation:

• Comment that most Councils find development control very important, but they find it difficult to analyse the data on development control from a policy point of view.
• Ritchie Somerville - Edinburgh Council will look at how policy staff can use the data. Previously there was a lot of information which was not available on the database, but could be of use to policy planners in future.
• Participant said that, having seen the demonstration of the Edinburgh Council e-planning system, "it is exactly what I am looking for". Some Local Authorities "obstruct the public". Previous complaints about the Edinburgh e-planning system were probably the result of a temporary glitch, and having seen the system, would want to see it introduced by my Local Authority.
• Would like to see letters of objection and planning history added to the Edinburgh e-planning system.
• Ritchie Somerville - Edinburgh intends to put letters of objection onto the e-planning system. The issue of planning history is one of back-record conversion and has very significant cost implications, but the council is considering options on how to do this. It is possible to make an appointment to see the old files.
• Our Council currently has the Local Plans online, so it is possible to look at the maps and text. The development control material could include the case officer reports when a planning application goes to committee for consideration. If details were made available of how comments and objections had been taken on board, it would help to explain the process for people.
• Ritchie Somerville - There is no technical barrier to providing access to information. In fact it solves the problem under the Freedom of Information Act about providing public access to this material.
• This material should be accessible at local libraries.
• Ritchie Somerville - Edinburgh Council has provided training to librarians, and they have found it very useful.
• There may be issues around the on-screen legibility of very large plans.
• Ritchie Somerville - Edinburgh Council has developed recommendations for submissions. Submission guidelines require A3 or A4 drawing for submission to and consideration by the relevant committees. It remains possible for the public to access plans through the traditional means. It is possible for very large documents to be split up. Recently most planning applications have been coming in on CD-roms. Plans are made available electronically in PDF format, which means that anyone can access them.
• In order to consider planning applications properly, it is necessary to have a copy at home.
• Proper access for screen readers needs to be ensured.

MEDIATION AND PLANNING

The object of the workshop was to consider what role mediation could play in the planning process. It was lead by Max Cowan, independent consultant, with David Ferguson, policy team leader, Scottish Executive, also present. Participants were asked to consider what positive role mediation could play in planning, how the mediator/s could remain impartial and fully independent, and to what extent should the Executive be involved - or should this be left to local councils. The discussion also covered more general issues on how to consult properly.

Comments arising in discussion:

• Mediation should be independently run, separate from local authorities and funded by the Executive.
• Planning committees should not just be made up of elected members - community councils and independent businesses could be included.
• Sometimes feel that there is a "conflict of interests" between local authorities and the Scottish Executive.
• Companies are familiar with mediation and might well view it favourably.
• Community members can feel they don't have the same rights as local authorities and mediation might help with this.
• Mediation should be at the local plan stage.
• Encourage major developers to consult early on - something they could fund, as it might well be in their interest to do so.
• Notification of planning permission etc. should be through public libraries as well as newspapers.
• It is important to focus on consultation/mediation early on.
• Pressures on local authorities time-wise.
• The conflict between environmental and economic priorities - developers "can put on a lot of pressure". Is this a role for mediation?
• Local communities are suspicious of the "hidden agendas" of other bodies. They want clear information, and to be kept well-informed and early-on.
• Keep things out in the open for the benefit of local people.
• Mediation felt to have a useful role where "the community" is hostile to an application.
• People are entrenched in their own positions - mediation can help.
• Who employs the mediator? Who can all parties trust? They cannot be employed by the city council.
• Mediation is a skill.

PLANNING ENFORCEMENT

The meeting opened with a presentation from George Lyall, Senior Planner, Scottish Executive. This was followed by open discussion.

• As a development control manager, I receive lots of complaints about enforcement, it is perceived as being ineffective. The requirement for legal precision conflicts with effectiveness. There is an enormous burden of proof, which means that it is not easy to halt wrongdoings. Enforcement of planning regulations should be more akin to the treatment of parking infringements, with fixed fines and time penalties.
• A lack of credibility is the biggest threat, people carrying out work without permission. This should be capable of being addressed without going via the Sheriff and lawyers.
• Enforcement should have more teeth and better teeth.
• George Lyall - Scottish Executive - what about the powers of Direct Action?
• You need finance to use the powers of Direct Action, the expense should not fall on the Local Authority. It is too expensive to enforce.
• It is not a case of needing more options, it is a case of needing more finance, resources, time, need to get legal advice, check the Sasines, go via Sheriffs, etc. etc.
• There are currently automatic fines for dropping litter but not for fly-posting. Would welcome automatic penalties for planning offences.
• It is necessary to go to enormous lengths to establish the identity of miscreants.
• For offences involving a car, it is possible to identify the car owner, but you cannot do this with e.g. fly-tipping (not a planning issue). Acknowledged, however, that spot fines are available for dropping litter, and the difficulties of identification do apply there.
• In the case of where there are adverts all over an area, it is usually pretty clear who is responsible for them. More direct action is required, not the current, overly deliberative system.
• George Lyall - Direct Action measures are available.
• Companies disappear and you cannot get the money.
• Developers recognise these weaknesses and exploit them. Action needs to be more quick and direct.
• For the astute offender the system is an irrelevance.
• Why is this complicated legal system in place?
• Systems evolve, it has embedded the necessary checks and balances.
• It has taken three years to get someone to court for running an unauthorised car park. They have delayed the court case four times and in the end they were fined 250 and the car park is still running! There would even be legal difficulties about the Local Authority putting a fence around the site to prevent access.
• There is a lot of pressure from complainants, but where miscreants are persistent and know the law, it is very difficult to enforce it.
• Cannot currently enforce illegal HMOs (Houses in Multiple Occupancy) - in Glasgow there is no tie in between the HMO license and planning permission. Estimated that there are "between two and three thousand unauthorised HMOs in the West End of the city". However the process of establishing that there is multiple occupancy is enormously time consuming. Even if the case can be proved, the fine is very small and it is straightforward to close and re-open the HMO.
• "In all my experience in planning, fines have never solved a problem."
• "Nine out of ten cases are rejected by the Procurator Fiscal. Procurators Fiscal just don't pursue these cases."
• Credibility relies on effective enforcement. If people see the system being flouted, they lose respect for it.
• Planners need to aim for negotiated solutions, most cases are resolved that way. Most work in enforcement is reactive and not proactive.
• Trying to re-focus the enforcement effort into three strands
• reactive work
• proactive work
• following up planning permission applications
• Suggested that currently only two Local Authorities follow up planning permission applications, they have a very low priority within the system. Because of fixed targets, applications and appeals take up most of the available time.
• Suggested that Edinburgh Council believed to be considering employing three more people to do enforcement work, in addition to the seven already working there.
• Politicians do not treat enforcement work as a priority.
• Going to court never solves the problem. A recent case would have cost half a million pounds to pursue, so it was resolved by negotiated settlement.
• Planning officers don't want more rules, they can run the system more effectively without prescriptive rules.
• George Lyall - There are issues of human rights, a lot of innocent people might innocently break the planning rules.
• Many people are misled. They believed a salesman for double glazing or a conservatory and failed to check the position themselves. But when was ignorance of the law ever taken as an excuse?
• We are going soft on planning offenders, these things affect people's lives and the problems are ones that will persist for years.
• We need a change in the legislation - more substantial fines.
• It is not currently an offence if you have carried out work without planning permission. However "this should be an offence". Continuous failure to apply for planning permission should lead to steadily rising financial penalties. The system requires that planning applications are submitted in order to remain credible.
• These proposals should only apply in a situation where planning permission is required. Enforcement action is discretionary - if someone is required to submit an application for planning permission, but does not, then it is possible to agree not to take enforcement action. But how do you explain this to complainants.
• It is difficult to explain to complainants why the Local Authority is not taking action.
• You also have to consider what the ombudsman might say.
• If you refuse planning permission, and what they are seeking is not much more than the Permitted Development Rights then the Local Authority can get compensation awarded against them.
• The current powers are a paper tiger, if someone ignores them, there is not much you can do about it. Really want something that you can serve, that acts as a prohibition and fine, to get them to stop work and submit an application for planning permission.
• Would it be more helpful to serve the notice on the developer or the owner?
• The notice really needs to be served on the property owner.
• At the moment, the company will not check for planning permission, there is no incentive for them to do so. If you check the contracts for double glazing they quite clearly state that the burden of checking for planning permission rests with the owner and not the company.
• For a big development the developer is unlikely to stop.
• It would be great to be able to serve the notice by email!
• Local Authorities "have cut back" on solicitors, and planning departments now have to rely on general solicitors who don't know much about planning. Many Local Authority legal teams "have halved" in the past few years.
• Preparing and serving the notice can be done relatively straightforwardly using templates, the problems arise when they fail to comply.
• The proposed enforcement notice should be served straight away on the site, telling the developer to stop work immediately until planning permission is sorted out. If planning permission is not received an automatic fine should issue after a set period. The notice would apply where there was no application for planning permission, and the work exceeded the Permitted Development levels. If appropriate just issue straightforwardly, with no right of appeal, they should instead apply for planning permission.
• The planning authorities will still experience problems as soon as the case goes to court.
• It is difficult to respond to calls from neighbours asking why the planning department is not doing something about breaches.
• Jim Mackinnon - The Executive is looking for practical solutions, they want speed not just lots of legal procedures. The above proposals would short circuit a lot of the current problems. Breaches are not always malicious.
• Peter Reid - Should members of the public be more involved in the enforcement system ?
• I would not welcome more public involvement as there is a risk of intimidation. It is best not to mention the third parties involved in complaints, giving them a right to anonymity.
• George Lyall - You need to balance between the public's right to see what is happening and the risk that they get into the 'firing line'.
• Jim Mackinnon - Not all councils have enforcement officers.
• There are problems with recruitment and retention because of the pressures and the lack of respect. An ex-policeman, working as an enforcement officer, recently resigned from his post "because of the pressures".
• Enforcement has never been given the resources that it needs.
• Very little resources are left for following up on planning applications.
• George Lyall - Is there a possibility of joint working between planning and building control? For example alerting of problems.
• It is not easy to see how such a scheme would work. It could well lead to more problems.
• Jim Mackinnon - In Ayrshire there is an enforcement pool. Where would you recruit enforcement officers from if you were to have unlimited funds, they are not the easiest of staff to recruit.
• Struggling to attract planning graduates into enforcement posts and they would generally be unsuitable for the work.
• "Edinburgh Local Authority has gained three enforcement officers, they are all professionally qualified. Glasgow uses staff who are not professionally qualified, and this means that they need a lot of support at all the key points in the process. "
• Enforcement needs
• better management
• the right priority
• a boost to its profile
• Planning is constantly on the back foot. For the unscrupulous there is ample potential for delay, especially where there is not a lot of capital investment, for example the car parks and HMOs.
• It is exceedingly difficult to prove many cases.

LOCAL PLANNING FORUMS

The Scottish Executive is considering plans for Councils to set up local planning forums (LPFs). These would provide opportunities for effective, ongoing public involvement in planning, and provide channels for feedback. They could encourage dialogue and build up local interest and expertise in planning policy issues. Participants at the workshop were asked to share any personal experience they had of local planning forums, also how 'local' they should be, who should run them and how often should they be held. The workshop was led by Rosie Grant (Scottish Executive) and Mary Clarke (seconded to the Executive).

The following points were made:

• The purpose of the planning forums should be to create visions for the development of that area.
• Planning service issues did not need further debate since increased guidance on processes and service improvements were leading to greater consistency in the service provided.
• They should be about genuine local input into policy in planning.
• The local forums should have the right to appeal planning permissions.
• They should include traditionally marginalized groups - disabled groups, ethnic minorities.
• Local planning forums should contribute to consultations more generally.
• Community groups, particularly community councils, should be in the lead in LPFs.
• Resourcing issues? Local forums will require volunteers' time and need to be properly funded and this will be expensive. They will need to be well-resourced.
• We would need a participation fund for local forums, consultations etc. for volunteers.
• Problem with Community Councils - they are not well funded. Consequently, they do not have real power.
• This discussion raises issues of just who is the local community. Some Community Councils can jealously guard their roles.
• People on the Community Council are expected to speak to the local people. However the Local Authority "can obstruct access to planning materials", and as people don't understand the process initially, they can be discouraged from engaging with the Planning system.
• Setting up an LPF could help to highlight where processes were not working, thereby improving access to information and key people. When Planning Audits are carried out, they include seminars with stakeholders, and issues of access are often raised. It is possible to carry out workshops and seminars to improve understanding of the system. Perhaps developers should have a legal obligation to have discussions with the local community before seeking planning permission.
• Local Community Councils do not have the funding to go out to communities effectively. This can create frustration and anger.
• Some areas don't have a Community Council, but do have a Community Forum, other areas have both.
• The landscape of community organisations is growing in complexity. However, it is possible to question the legitimacy of some of these groups. Planners need to think of more effective ways of getting people involved in the Development Plan stage.
• Will the Council see LPFs as an incursion into their role?
• It would be impossible for LPFs to cover all aspects of planning. Should focus on: greenbelt issues, major road developments, traffic, changes of use of land.
• It should be about national strategic issues as well as local issues.
• Ongoing dialogue is very important.
• People need to be educated first in order to know the consequences of planning decisions: Planning Aid has a key role to play here.
• Who would choose who would be included in the local forums? Don't exclude people.
• How would we persuade people to get involved?
• Training needs - people would need to be well-informed.
• How would we keep voluntary groups going? You would need people with lots of enthusiasm and commitment.
• It helps to make training and information leaflets free.
• You need a package that puts local authorities in the right relationship with community representatives.
• We do not want to create a new layer of 'experts' in the community. We just want to make sure people are informed and aware.
• We need people who care about the community to run the local forums.
• Community Councils do not necessarily have the skills and the energy to deal with planning issues.
• LPFs could work as sub-committees of Community Councils, bringing in local experts temporarily.
• LPFs should have the power of veto.
• There should be a forum for each local plan.
• This all relates to active citizenship, that should be taught in schools so that people do feel they can and should have a say in their local community.
• We need a more responsive system than we have at present.
• In terms of the appropriate model, a one size fits all approach was not seen as desirable: in some cases existing groups could develop into local planning forums, in others, new groupings would be formed. There was a need to prevent duplication between the local planning forums and existing consultation mechanisms, for example, for community planning.

REPORTING BACK

Roger Kelly, Principal Planner, Scottish Executive, reported back on the workshops.

e-planning -

this was more of a presentation than a workshop, but some points came up.

• The new e-planning system used by Edinburgh City Council was demonstrated.
• Those attending would welcome the introduction of similar systems for every Local Authority.
• It offered 24/7 access, quick and easy via the web.
• It is necessary to analyse what consumers think, and make changes accordingly.
• Local plans are available online.
• People need to make the most of all this information.

Mediation and Planning

• Mediation should be carried out independently and at Local Plan level.
• The CBI are familiar with mediation.
• There are time pressures.
• It can be helpful where the communities are in dialogue at an earlier stage.
• Communities need the information early on.
• Skilful mediators are required.
• Mediation can experience problems where there are strongly entrenched attitudes.
• Planning Committees should include business and community representatives.
• The Scottish Executive should get more involved.
• For notifications libraries should be used, and not just newspapers.

Planning Enforcement

• The time and lengths that authorities need to go to was stressed.
• The onus needs to be put on the miscreant and not the authority.
• Fines have little effect.
• There are problems with enforcement and enforcement officers find it most productive to go for negotiated solutions.
• A suggestion was made for an automatic penalty and stop order for development when an application for planning permission has not been made. Further fines would accumulate until an application for planning permission was rendered.

Local Planning Forums

• There is a need for more continuous dialogue.
• Edinburgh has the Edinburgh Civic Forum and the Customer Focus Group.
• Helensburgh has developed a vision for the town document, which it would like the planning authorities to respond to.
• Communities are generally forced into a negative role and would prefer to be able to be more proactive.
• Community groups rely on volunteers and it is therefore difficult for them to engage.
• However you don't want too much continuity in community groups, some changes in personnel are beneficial.
• There are lots of local interest groups.
• Communities need to develop their awareness, the expertise can be tapped into if necessary.
• need to start educating on planning in the schools.
• need to create a pool of funding for community groups.

Plenary session

• Would have been useful to have had more business representation at the NCG. (It was pointed out that a number of business organisations had signed up but failed to attend.)
• A workshop session where "enlightened" developers came along to engage directly with community groups and others would be useful.

The next stages

Two more meetings of the National Consultative Group on Planning are planned this year, and these are likely to discuss similar issues. It was suggested that a future meeting could include an agenda item on good practice in terms of developers and communities working together.

The meeting closed at 16.05.

ANNEX 1: LIST OF ATTENDEES

In order to stress the independence of the process, invitations were issued by the Scottish Civic Forum. These were sent out widely, to the Forum's contact list of roughly 2,000, as well as interested civic organisations and individuals suggested by Forum council members and local co-ordinators. The Executive also supplied a list of invitees covering Local Authorities, Business Interests, and Professional/ Amenity/Environmental Interests.

It should however be noted that consistent with earlier events organised by the Forum and the Executive on this subject, ensuring a good attendance did prove difficult. However, those attending displayed great interest and enthusiasm.

ANNEX 2: AGENDA
FIRST MEETING OF THE NATIONAL CONSULTATIVE GROUP ON PLANNING ST FRANCIS CENTRE, GLASGOW 23 February 2004

AGENDA