MODERNISING PUBLIC LOCAL INQUIRIES: DIGEST OF RESPONSES TO CONSULTATION PAPER
Question 22 We would welcome views on other options not covered by this paper that could help to make public local inquiries less adversarial but allow them to remain just as robust as the means of taking decisions on major planning proposals.
Local authorities
Aberdeen City Council:
General: We generally support the aims of the paper and in this regard it is considered comprehensive in introducing some potentially useful and beneficial changes to current procedures.
Aberdeenshire Council:
1. General: For the most part for the determining of planning appeals, the planning inquiry system works well in that it is seen to be fair and transparent, the main criticism being the inherent delay. This consultation exercise has examined the problems in the system and will provide the basis for further modifications and improvements which will meet the Executive's aims of ensuring planning inquiries are inclusive yet delivering important decision[s] quickly and efficiently.
2. Role of reporter - local plan inquiries: However, there remains the opportunity to consider different styles of assessment of local plan objections by a reporter auditing the Council's reasoned justification in responding to objections, thereby focusing on the issue of conformity of a local plan to an approved structure plan or any replacement planning guidance.
3. Need for Reporters' Unit to become independent of Executive: Finally, to be seen to be independent of the Scottish Executive and of any other party, further consideration should be given to the transfer of the Reporters Unit to become a branch of the Judiciary.
Argyll & Bute Council:
Adversarial nature of PLIs: It is difficult to suggest options for appeals to become "less adversarial" as they are investigating the merits of a case and cross-examination is a vital part of that process.
City of Edinburgh Council:
Enhanced use of information technology: CEC believes that there is wider opportunity in the use of electronic communication (see also Qu 7 above) to share information such as statements of case and background papers to assist understanding of the relevant planning issues. For example, each inquiry could have its own web page on the SEIRU's website, with precognitions, core documents and other information. Improved information and transparency can lead to greater understanding and less confrontation in the process.
Clackmannanshire Council:
Local Plan Inquiries: The planning authority should be required to demonstrate that all reasonable steps have been taken to reach a compromise with objectors prior to objections entering into the hearing or inquiry procedure.
Dumfries & Galloway Council:
1. Local Plan Inquiries: The local authority pays the Reporter expenses for Local Plan inquiries and would expect to have a more direct input in respect of the rules and guidance for their organisation than is with the case with other types of planning inquiry.
2. General: In general this local authority supports the Executive's wish to reduce the time and resources taken by Development Plan planning inquiries. However, it must be recognised that this process is itself to some extent reduced by the also desirable objective of making inquiries more accessible, inclusive and transparent.
East Renfrewshire Council:
General: If we are to have a proper, plan-led planning system then the streamlining and modernisation of the process is essential: not just the PLI process but all the procedures associated with the preparation, approval and adoption of plans to bring them more in line with other public sector planning cycles. The challenge is to do this in a way that encourages public involvement and retains the rights of developers and applicants to have their role. It is essential, however, that the important decisions which face local planning authorities about the future development of their area are not unduly delayed by extensive, formal Public Inquiries, legal challenges and unnecessary legal and procedural delays.
Falkirk Council:
1. Enhanced use of information technology: It is considered that there is an opportunity to share information and to deposit documents electronically by for example having a web page for each inquiry.
2. Guidance on style and format of evidence and statements of case: It is also considered it would be beneficial for the Scottish Executive to issue guidance as to the style and format of evidence and statement of cases that it finds helpful and to identify practices which should be avoided.
Fife Council:
1. Decision letters: Decision letters following inquiries into planning appeals could helpfully include site plans in addition to the written description of the site and its locational context. This would be more legible for most members of the public and interested parties than a long written description.
2. Clarification of issues and procedures at start of PLI: The PLI should always seek to clarify issues and procedures at the start. This could help avoid duplication, save time and avoid discussion of topics not of direct or fundamental importance. In addition this approach make it easier for third parties to participate and encourage them to do so.
Glasgow City Council: 1. Role of reporters: Reporters should be required to concentrate on the evidence presented by participants and their recommendations should be based on one or other of the participants viewpoints/proposals or a third way agreeable to both the Council and the appellant.
2. More consideration needs to be given to post-inquiry stage: The overall aims of, and proposals from, this review, which seek to reduce timescale and cost, while laudable, could be negated if further consideration is not given to the post-inquiry stage.
3. Challenges to local plans: The present system is unnecessarily time consuming and often open to abuse by objectors unhappy with the outcome of the process. Challenging the process by which a plan has been delivered should not be allowed to be used by objectors as a mechanism to continue their objections to the content of the plan. There is a need for clearer procedures on this matter and for some form of early arbitration to determine the validity or otherwise of a challenge.
4. Procedural changes should be simple to understand: Again, it is important that any changes to inquiry procedure are simple to understand and operate. It would be important to ensure that new procedures do not become onerous on the planning authority.
North Ayrshire Council:
1. Post-inquiry delays: A particular area of concern is the length of time which it takes for Scottish Ministers to determine applications after a Reporter's decision is made. Often (and in our experience usually) the time for the Scottish Ministers to reconsider the Reporter's decision is considerably longer than that taken by the Reporter to complete his decision. As few decisions of the Scottish Ministers vary dramatically from those of Reporters this is surprising. It is understood that there is a fairly complex procedure within the Executive's Planning Division for dissecting Reporter's decisions and preparing further reports to Ministers. It is recommended that this procedure is examined with a view to shortening timescales.
2. Third party rights of appeal: Secondly it is possible that the introduction of third party appeals will. create new issues for the Inquiry process. These issues have not been expressly considered in the consultation paper. We feel that they should be.
3. Claims for costs in PLIs: Thirdly, the issue of costs has not been considered. In our experience, developers make a claim for costs at the end of almost every Inquiry. Often considerable Inquiry time is spent in trying to engineer a claim for costs and in evidence bearing on that claim. This can be a complete waste of Inquiry time, particularly where such claims are rarely ever successful. Moreover the test for costs does not appear to be a level playing field. Much higher standards are expected from local authorities than from appellants, even if those appellants are professionally represented. The spectre of costs can also discourage involvement of members of the public in the Inquiry process. For all these reasons, the availability of costs must be further limited. It should also be made clear that waste of Inquiry time on costs claims which have little if any chance of success, may itself justify a claim for costs.
4. General: In conclusion, while we feel that the proposed reforms will probably produce time and cost savings, they will do little to increase public participation and have the potential to reduce the quality of decisions. If necessary, it would be better to supplement reporters' powers.
Perth and Kinross Council: Decisions: No issue to raise on the particular matter of less adversarial but robust inquiries, but it is recommended that the reporters issue a "stamped set of plans" when sustaining appeals.
Shetland Islands Council:
Role of reporters: Reporters should play a much more pro-active role and be encouraged to ask probing questions of all parties to establish the salient facts. Reporters should lead the discussion/debate and their decision should be final.
South Ayrshire Council:
Enhanced use of hearings and inquisitorial role for reporters: There should be a fundamental change to the inquiry procedure. Inquiries should not be adversarial but should be in the nature of a hearing where parties state their case before a reporter or reporters in more complex cases. Legal or procedural issues should be dealt with in advance by written submission.
South Lanarkshire Council: General: There are a variety of ways inquiries could and should be improved -less legal involvement, better rules and regulations, Reporters who can keep on the subject and prevent legal reps from taking over the inquiry, adhering to timescales for depositing documents and clear outlines of cases, timescales and witness lists before the inquiry begins.
West Dunbartonshire Council:
Enhanced use of hearings and inquisitorial role for reporters: Greater use of hearings and greater inquisitorial powers for reporters seem to offer the best means of reducing the adversarial nature of public local inquiries. Finding a means to limit the extent to which one objector can cross-examine another to dismiss that site in favour of their own would also help to improve the efficiency of public local inquiries.
West Lothian Council:
1. Enforcement notice appeal PLIs: No specific consideration has been given to inquiries into appeals against enforcement notices. It is critical that attention be focused on the procedures and timescales for the determination of such appeals as in many cases it is suspected that the public inquiry procedure may be used as a delaying tactic to allow the operator of unauthorised development or use to continue that use until all procedures are exhausted. In many instances it is felt that hearings set on a shorter timetable may be of greater benefit to the community than public inquiries. West Lothian Council's experience is that the delays frustrations and an ongoing loss in the quality of life by local residents is one of the major criticisms of the planning process.
2. General: It is agreed that there is certainly scope to make a number of modernising improvements to the procedure and practice of the public local inquiry process. West Lothian Council has and will continue to adopt a disciplined and constructive approach to inquiry procedures and is certainly prepared to renew its commitment so that the planning inquiry system continues to deliver in the interests of Scotland and all of its people.
Western Isles Council:
1. Difficulties of dealing with large projects: Our experience of the appeals and inquiries process has generally been favourable, with one notable and dominating exception: the inquiry into Redland's application for a coastal superquarry at Lingerbay. This experience, and the thought of potential inquiries into large renewable energy projects in the future, raise serious concerns over the ability of the present system to deal efficiently and effectively with very large projects. It is recognised that the Scottish Executive has already responded to the difficulties that surrounded having only one Reporter preside over the Lingerbay planning inquiry. Introduction of more than one Reporter to preside over big cases has already proved positive. The Lingerbay Minerals Review Inquiry in 2001 was presided over by two Reporters and was determined quickly.
2. Post-inquiry delays: However, even after the Reporter's recommendation is submitted to the Scottish Ministers in respect to big proposals, there may follow a considerable period of deliberation by Scottish Executive officials before the Ministers issue a decision. In this regard the Scottish Executive says "Our objective is to ensure that recent improvements in case processing times by reporters are matched by the process of Ministerial consideration and decision". There is undoubtedly a case for a radical change in the process for very large cases to overcome the kind of unreasonable period of uncertainty, blight and distress that has been experienced at Lingerbay.
3. Role for Parliamentary Committee of Inquiry: A possible way to achieve this would be to bring such cases before a Parliamentary Committee of Inquiry. All parties could submit their cases in writing before such an Inquiry. Reporter(s) and such legal advisor(s) as deemed necessary could advise the Parliamentary Committee. Each party could be asked to attend the Inquiry to answer any questions that the Committee wished to ask. Scottish Executive officials could also be asked to attend to answer questions. As part of its deliberations the Committee would visit the site and hold a local session to ask questions of any locals who had made written representations but could not, reasonably, attend a Committee Inquiry in Edinburgh. This whole process could probably be concluded in an equivalent number of weeks as the months taken for the Lingerbay Inquiry. There should then also be a relatively short period for the Committee to digest its findings and reach a decision.
Public Bodies
Royal Fine Art Commission for Scotland: General Changes in the conduct of PLIs must be seen in the context of a move towards less formal appeals, which may reduce the number of cases subject to formal appeal through the range of processes covered in the consultation paper.
Scottish Consumer Council:
1. Third Party Right of Appeal - Enhanced Neighbour Notification: As previously mentioned the SCC takes a wide view of the "consumer" as relating to the planning service. We are therefore in favour of a statutory procedure which would allow third parties the right of appeal as we feel this would help create a more level playing field for all consumers. All persons affected by a planning decision should have the right to appeal against it. It is therefore vital that the extension of third party right of appeal is accompanied by the extension of neighbour notification. Without the provision of appropriate information regarding planning applications consumers will not be able to make informed decisions on how proposals may affect them. The Scottish Executive currently proposes to pass the responsibility of neighbour notification to local authorities. The SCC feels that this would be a timely opportunity to review how members of the public, beyond the immediate neighbours, can be notified of planning applications.
2. Adversarial Nature of PLIs: The SCC has concerns about the adversarial nature of PLls, particularly in relation to the experiences of third parties, and feels that it is vital that planning inquiries are seen to be independent and impartial. There can be seen to exist an imbalance of experience between planning professionals and third parties. For a third party an inquiry may be a one-off experience, while for planning professionals it will be a regular aspect of their job. The lack of experience of third parties can serve to weaken their case. Third party groups may also be intimidated by the adversarial nature of planning inquiries. They are often disadvantaged in terms of their lack of experience, and this is particularly detrimental where they are being cross- examined by developers' legal representatives. This raises issues of equality of arms under the European Charter for Human Rights, which states that:
[Each party must be afforded a reasonable opportunity to present his case - including his evidence -under conditions that do not place him under a substantial disadvantage vis-a-vis his opponent.2
3. Mediation: The SCC suggests that greater use of mediation could play a potentially important role in reducing the number of planning cases reaching the inquiry stage. The SCC believes that mediation can offer consumers an accessible, affordable means of resolving their disputes in appropriate cases.3
Scottish Natural Heritage:
Enhance informality at PLIs by requiring parties to remain seated: A simple way to slightly reduce the adversarial and intimidating nature of PLIs is for all parties to be seated while evidence is being given -by those giving evidence as well as those examining it or cross-examining it. The freedom of the questioner to stand up and move about establishes an inequality when the individual being questioned must remain seated. That inequality can be abused and become intimidating.
The Development Industry
Bett Homes:
Need for fair, accountable decision-making process: Bett homes would not resist the move away from adversarial inquiries, however we would not wish this process to be any less rigorous / detailed, especially as the outcome of the process has significant impacts on the future land holdings and output of development companies. Removing opportunities to challenge evidence / test policies and decisions would lead in our view to a system that was unreasonable, unfair and with no transparency. This is surely the complete opposite to the current situation of a fair and accountable decision making process, which seeks to encourage investment in communities and stimulate investment. Some may argue this is already changing, with a general presumption against development instead of a presumption in favour of development.
Homes for Scotland:
1. Adversarial nature of PLIs: Homes for Scotland would not resist a presumption in favour of making Inquiries less adversarial. However there are circumstances when the matters before the Inquiry will have a major impact on investment decisions that require to be taken by commercial organisations and indeed there are circumstances where competing commercial interests have to be evaluated against strategic policy objectives. Under those circumstances it is believed that the Reporters can be positively assisted by the testing of evidence using an adversarial approach.
2. Need for fair, accountable decision-making process: An attempt to remove the opportunity to thoroughly test the refusal of planning permission or test the policies of Local Plans, could lay the entire process open to charges that it is unreasonable, unfair and lacking in transparency. The latter charge is often made against the development plan preparation process and the Inquiry can be the seen as the opportunity to redress a wrong. Ultimately what is important is the strength of the case each party present. Although cross-examination can be long winded and repetitive testing of the evidence is fundamental to the process.
Stewart Milne Holdings:
Speed up Local Plan making: The questions asked are only tinkering with the process and by and large ignore the critical issue of Local Plan Inquiries; we need Local Plans to get to Inquiry a lot quicker {within 2 years of work commencing on a Local Plan); there should be no post-inquiry modifications with Local Plan moving straight to adoption once Council accepts Reporters' recommendation. We also need the Reporters Unit to make sufficient Reporters available to planning authorities for Local Plan Inquiries.
Taylor Woodrow:
1. Need for proactive advice on PLIs for communities and participants: It is considered that PLIs are perceived as more intimidating, than is actually the case. A great deal more work could be undertaken on advising communities and participants on the opportunities for comment and timescales, procedures, etc.
2. Need for early developer engagement with community: It is further considered, that members of the public who object to proposals, in order to substantiate their claims, should seek to resolve their objections with the appellant in the manner which is supported between the applicant and the local planning authority. The public perceive developers as unwilling to listen or engage with the community, this is certainly not the case in TW's case, where we are keen to address local concerns prior to objections being made.
Walker Group (Scotland) Ltd:
Need for fair, accountable decision-making process: Any attempt to remove the opportunity to thoroughly test the refusal of planning permission or test the policies of a Local Plan, which is often prepared in a less than transparent manner, would not be fair. Ultimately what is important is the strength of the case each party presents. Although cross-examination can be long winded and repetitive testing of the evidence is fundamental to the Inquiry process.
Other Businesses/Business Groups
Federation of Small Businesses in Scotland: General: Our response to this consultation aims, to reflect the Federation's wish to streamline the planning process, by reducing the timescales and bureaucratic and financial burdens which can be associated with the process. In addition we support measures which improve the accessibility and clarity of the system.
Scottish Coal Co Ltd: Need for fair, decision-making process: We acknowledge the aim to make Public Inquiries less adversarial and for there to be more hearings in order to engage the public and to avoid intimidating them or dissuading them entirely from participation in the process. We would not disagree with this. However, as with many things, there needs to be a balance. Be they businesses or householders, all appellants should have the right for their appeal to be given careful consideration and for the issues raised to be properly discussed and analysed. Whilst supportive of most of the proposed changes and the reasons for those changes, reduction in costs and time for Inquiries must not be made at the expense of the full and proper consideration of appeals.
Scottish Council for Development and Industry:
Provide additional reporter(s)/clerk for complex PLIs: Dependent on the complexity of the inquiry the use of a clerk or more than one reporter could assist with the speed of the inquiry. This could be from an administrative point of view or, where two reporters were used, one could deal with the major items of policy and the other with less contentious objections. Clearly this would have a resourcing implication and we would refer again to our comments on this under Question 20.
Scottish Landowners Federation:
Need for fair decision-making process: SLF agrees with the general thrust that public local enquiries should be made less adversarial, as long as they remain just as robust. By this SLF means that whatever is done, due process, impartial arbitration, transparency and overall fairness must take absolute precedence over every other consideration.
Tesco:
Role of the reporter: We believe Public Local Inquiries will always be adversarial and as one party seeks to challenge the view of another. The Reporter has a key role to play in making the whole situation seem less adversarial simply by being involved in the overall process conversing and liaising with non-professional third parties to assist them in their role. In particular, to give them a clear guide as to what form their evidence should take, when they are to appear and who should cross examine them. We have not seen situations where third parties do not appear because they do not understand the situation nor do they feel pressured. The environment is such that even a more informal atmosphere were this achievable, would still intimidate any experienced third parties. The Reporter can play a key role in reducing these fears by explaining the process, the parties involved and the role of that third party.
Professional organisations
Law Society of Scotland:
1. Inquisitorial role for reporters: The Sub-committee, is of the view that modification of the reporters roles would be required to make public local inquiries less adversarial. The reporter should become more pro-active in decision making. This has implications for resources and training but with adequate support it can be achieved.
2. Speed up local plan making: The Sub committee, on the basis of wider consultation, would support more regular local plan making by planning authorities.
Scottish Planning Consultants Forum:
1. Provision for amendment period for submitted precognitions: A period should be introduced into the procedures that allow amendments to be made to submitted precognitions on matters of fact. This could be just before the precognition is presented. This would contribute to improved speed and clarity.
2. Reporters' decisions at local plan inquiries should be binding: Reporter's decisions at local plan inquiries should be binding on local authorities. This will promote more confidence in the system, provide certainty and reinforce the independence of the Reporters' Unit.
Scottish Planning Law and Environmental Law Bar Group:
1. Adversarial nature of PLIs: Our views relating to the use of the word "adversarial" as if it were a pejorative term are noted above. Certain other reforms in terms of the structure and practice of planning inquiries and representation at them have already been suggested.
2. Change role of statutory consultees: We would add that it would be desirable to change the role of statutory consultees such as SNH and HSE to avoid the appearance of bias which still exists at present even after the Alconbury decision.
3. Need for Reporters' Unit to become independent of Executive: We also consider that the SEIRU be hived off and made completely independent rather than be part of the Executive in order to ensure the appearance of impartiality. As noted in an earlier answer, the State is in effect sitting in judgment of the planning process which it brought about. The arbiter of planning merits ought to have no ties with the Executive. Consideration might be given to introducing a separate and specialist Environmental Tribunal to consider planning appeals and called in applications.
Planning consultants, architects and lawyers
Maclay Murray Spens: General: General we welcome the proposals set out in the Consultation Paper to make the Scottish planning system more accessible but we are of the view that some of the concerns raised (in relation to the present system) are misplaced and attention instead should be focussed on the more pressing issues to which we have previously referred. Further, while we fully endorse the Scottish Executive objective of streamlining the administrative side of the inquiry process and encouraging greater public involvement we believe that it is imperative that a balanced consideration is given to public involvement and the need to encourage continued economic development.
PPCA Ltd: Adversarial nature of PLIs: There is a suggestion in this paper that the adversarial approach is somehow damaging, intimidating and results in more lengthy inquiries. However, the opposite is the case. Advocates, or solicitors acting as advocates, bring to the inquiry structure and clarity. Their training leads to the avoidance of unnecessary evidence. Many of the flaws in the inquiry process attributed to the adversarial approach are in fact flaws in the procedures or arise because of the conduct of the parties. The outcome of the East Renfrewshire Local Plan inquiry should serve to underline the injustice of the present system. Until that is clearly resolved, there should be no question of procedural changes which might further disadvantage objectors and appellants.
Robert Drysdale Planning Consultancy: Reconsider use of summary precognitions: As one who has appeared as a witness as well as an advocate at many planning inquiries, my greatest concern is the insistence that the witness should read from a summary precognition rather than a full precognition. The giving of evidence is a daunting and draining experience and all reasonable steps should be taken to assist the witness in presenting his or her case as effectively as possible. The requirement to abbreviate a complex case into 2,000 words is an onerous one and, in my view, inhibits the proper presentation of the case. The requirement should be reviewed.
Shepherd and Wedderburn: Adversarial nature of PLIs: We would suggest that the best way of making public local inquiries more accessible is the manner in which the public are dealt with in the process. The key personnel in that particular matter are the individual reporter appointed to hear the inquiry and the support given in terms of guidance and possibly from the reporters' unit. Our experience is that where individuals and local groups participate in the inquiry they wish to ask searching questions of the witnesses who appear. They want answers to the questions which they pose. We would suggest that if the ability to test local plan proposals through cross-examination are lost, that will be something which individuals and communities will be unhappy with. They often wish to have the opportunity to test council witnesses on the topics that are most relevant to them. We would suggest that if there is a significant body of public objection on a topic and that a considerable number of individuals wish to appear at a local plan inquiry then the Reporter should retain a discretion to allow those people to question the council witnesses. We would suggest that the questioning of council decisions in the local plan making process is fundamental and the public should potentially have aright to properly question the basis on which the decisions have been reached. This further supports the view that a discretion should be retained to allow cross-examination.
Community Councils
Craiglockhart Community Council: General: There is an obvious tension between the desire for public involvement and the need to remove some of the frustrations of the present system, including the production of documents which are not referred to by participants. Fairness and transparency are not easily achieved through speed and cost cutting. Every effort made to cross check any change for its effect on all those involved in the process is to be commended.
Voluntary Organisations
Architectural Heritage Society of Scotland: Need for new mechanisms to ensure public interest adequately represented:If the new system is to be robust the underlying consideration informing any proposed changes must be the need to ensure adequate balance of representation of interests in the process. Local Authorities historically have a responsibility to protect the public good. In recent years we have seen an increasing abrogation of that responsibility in favour of the promotion of development interests -not least their own. This means that new procedures, mechanisms and resources need to be identified to enhance public and civic interests in the planning process as a whole. Such public involvement must be of the highest standard, by being relevant, focussed and informed. Too often today it is random, personalised and, because of limited resources, sometimes ill-informed. To achieve an appropriate standard the public interest must have resources that allow it to stand on a par with other interests. Clearly this is not the case at present. As any significant changes must support the inclusion of informed public opinion, promoting public involvement with, and contribution to, the process of decision- making is essential. This requires positive consideration of the following over-arching issues:
- support and promote proactively public involvement that is relevant, focussed and properly informed
- identify and support credible promoters of the public interest that can frame such interest with appropriate expertise and demonstrable financial independence, notably NGOs with established credentials such as ourselves, The Architectural Heritage Society of Scotland
- promote parity between objectors and applicants in all aspects of the planning system, including enhancing the capacity of prospective objectors through the promotion of resources
- establish equality on rights of appeal
- establish a right to call witnesses to ensure appropriate scrutiny of issues .
Clearly these issues encompass matters pertaining to the wider review of the planning system, but none-the-less they have a direct impact on the operations of the PLIs both as the exist today and as they might be modernised.
Ferryhill Heritage Society: General: People must stand up and be counted. It is essential that the reporter and the legal profession are reminded that most ordinary objectors have no legal experience. Although I can appreciate the idea of a "hearing style" I have yet to be convinced that this would be satisfactory.
Friends of Glasgow West:
Third party right of appeal: We suggest that a complete update should include 3rd party right of appeal.
Friends of Rural Kinross-shire: We fully support the view expressed in the consultative paper that the public inquiry procedure must be robust but there are areas where the procedure could be modified with overall benefit, particularly to the community.
(a) Making Objections and Representations
Whilst there is need for uniformity and clarity, the procedures presently laid down are often difficult for individuals to follow. It must again be emphasised that many members of the public are not particularly articulate and find that the procedure set out in paragraph 11 of the current Code of Practice (September 1996) is difficult to follow and indeed intimidating in itself. Furthermore the form given in the Appendix only makes matters worse. This is the first stage in the process that inhibits some people from presenting a valid matter of concern. It is fortunate that some local authorities accept objections that do not strictly conform to this procedure. i.e. objections can be submitted in the form of a letter. Nevertheless it is essential to look at ways of simplifying the format as it stands at present. The weight accorded to comments by community groups and by individuals needs to be clarified. In the case of neighbours making a joint objection it would seem appropriate for this to be given more weight than one individual. If not this must be clearly indicated in the procedure. We understand, maybe incorrectly, that where objections are made by official bodies (such as Community Councils) or organised groups (such as FORK) these are treated as single objections. However these should be considered as representative of a wider body of community opinion and that should be indicated clearly in the procedure. Clearly the rules should be explicit on this matter.
(b) Documentation
We consider it important that steps are taken to simplify the form of documentation used. The community at large do not understand the thinking behind the many formats used and referred to. 'Productions', 'Core Documents', 'Pre-cognitions', 'Statement of Evidence', 'Statement of Response' etc only serve to cause confusion and are intimidating in themselves. The purpose and value of all of these is not set out in the current procedure and certainly not generally understood and there is a very strong case for rationalising. We suggest that this could be greatly simplified with three documents a 'Statement of Objection', 'Evidence in Support of Objection' and a 'Statement of Response to Objection. - these would be clear and more self explanatory.
(c) Written Submissions Written submissions are often used by individuals to avoid appearing at the inquiry. Although written submissions are given full consideration by the reporter there needs to be a more positive indication given, to those who present objections and comments in this way, that they are not thrust into the background amid the clamour and debate on those matters that are brought to the inquiry for discussion. We believe that it is important to raise the profile of written submissions to give assurance to those who feel unable to attend and present their case to a public inquiry. We recommend that a review be undertaken to simplify inquiry documentation so as to encourage a more positive approach from the community. The Scottish Executive should then seek public comments on these revisions prior to them being adopted in a modernised procedure.
Third party right of appeal: In the introduction to the consultation paper, paragraph 1, mention is made of the possible introduction to the planning system of a right of third party appeal. Although it is does not constitute part of the present consultation process we wish to record our full endorsement of this matter. It is our view that conditions and guidelines must be set regarding, timescales and number of appeals. The introduction of the right of appeal for third parties can only be seen as an important step in correcting an anomaly in the planning system and present a more even playing field
Friends of the Earth: General: We have no other specific proposals to make at this time although we should like to endorse the aspirations for the inquiry system as set out in para 63 of the consultation document. If this consultation process results in a less intimidatory, less formal, as robust, more transparent, more accessible and a more inclusive inquiry system then the consultation will have achieved what it set out to do.
Historic Environment Advisory Council for Scotland: Changes in the conduct of public local inquiries must be seen in the context of a move towards less formal appeals within the legislation controlling the historic environment, which may reduce the number of cases subject to formal appeal through the range of processes covered in the consultation paper.
Planning Aid for Scotland: See suggestions in the general comments section.
Individuals
Connal: General: In taking an overview, however, bear in mind that it is rarely in the interests of the private sector to cause undue difficulty or delay because at the end of the day they are paying for the very expensive team who are involved in the process! Bear in mind also that the general approach of parties bringing out their own cases under the control of an independent party is essentially the process to be found in a very wide variety of decision-making processes, whether these are Courts, specialist tribunals or whatever. The combined experience of all of these systems cannot be entirely wrong!
Cramond: 1. Adversarial nature of PLIs: It would help make inquiries less adversarial if the word 'witness" were dropped. Planning inquiries are about the possible future, not the factual past. No one has seen, heard, or "witnessed" anything. Equally the word -'evidence" should not be used. Just about the only factual "evidence" at a planning inquiry is a description of the site and a statement of what is proposed to be done on it. Virtually everything else that is said at a planning inquiry is simply argument about what might or might not happen as a result of approval of the application. It is forecasting, estimating, speculating, contending and disputing. It is about claims and arguments of what might or might not happen in the future: it is not -'evidence" about what has actually happened in the past. Very little of this argument can properly be regarded as factual.
2. Keeping local plans up-to-date: While not strictly relevant to a consultation on procedures, I wish to suggest that one of the objectives -the desirability of avoiding inquiries wherever possible -could be achieved if planning authorities kept their plans up to date and made them as clear and easily understood as possible. This would give both developers and possible objectors better guidance and would reduce the number of inquiries and abortive applications by making clear the likelihood of the rejection of particular kinds of application for particular sites and the reasoning behind the plan and the zoning it contains. Given the availability of powerful computer software it should be much easier than formerly to keep plans updated, provided there is adequate survey data and analysis.
3. Third party right of appeal: The introduction to the consultation paper indicates that there is to be a separate consultation about the right of third party appeal. In my day in planning the view was taken that if every objector had a statutory right to appeal against the grant of planning permission, the development would be unable to proceed until that appeal had been determined. Since objectors would have nothing to lose by appealing, a sizeable proportion of development proposals would be delayed. Moreover objections by individuals or tiny minorities, possibly based on selfish or frivolous grounds, could delay the provision of facilities favoured by the elected local authority as being in the overall public benefit. In short one "nimby" could damage -at least by delay - the legitimate interests and needs of the public as a whole. Whatever the view now taken, I should simply make the point that I fully accept that many of those seeking a right of third party appeal are neither selfish nor frivolous, and I suspect many of them are motivated by a genuine belief that individual objectors and small organisations are disadvantaged by the present system of planning inquiries because they cannot afford to employ professional consultants. I believe however that if the suggestions made above - for full and timely submission of written argument and a greater role for Reporters in directing discussion, concentrating on what is important and relevant, and ensuring that points made by individuals who are not professionally represented are fully examined and clarified - the feeling of disadvantage would be reduced, objectors would feel that the playing field was more level and accordingly the pressure of demand for third party appeals would be less strong.
Smith (Robert): Professionalism of reporters: I have generally been impressed by the standard of Reporters. There are exceptions, of course, such as at Lingerbay where the Reporter seemed to require a great length of time to come to a decision.
Stark:
Adversarial approach and mediation: Adversarial techniques are characterised by avoiding disclosure of potentially damaging information (which the opposition tries hard to winkle out), and by a general unwillingness to negotiate. An unfortunate consequence can be collateral damage to subsequent good relations between parties. In contrast, mediation encourages negotiation and the safe disclosure of information -one of the principal reasons for the confidentiality of mediation sessions, and why a mediator cannot contribute directly to an inquiry.
Watt:
Reporters' decisions at local plan inquiries should be binding: No other suggestions on the main thrust of reducing the adversarial approach in public local inquiries. However, in relation to the post inquiry process in Local Plan adoption, I have always found it most anomalous that the Reporter's conclusions and recommendations can be ignored by the planning authority. Local objectors' confidence in the system is undermined and scepticism and disenchantment compounded when this is explained to them. There seems no good reason why the report on a local plan inquiry should not be binding on the authority in the same way as decisions on planning appeals are. I appreciate that this issue may not be directly relevant to this consultation, but it should be considered within the overall Review of Strategic Planning and perhaps it has been.