Right of Appeal to a Review Body
Local Authorities
City of Edinburgh Council: This could be an additional burden on the time of elected members unless the scheme of delegation can be revised to reduce current the number of applications currently considered by the weekly Sub-committee. The planning case officer would be party to the appeal and could not therefore advise the review body. This would require an independent source in the manner that is used when Committee takes a decision contrary to officer recommendation and then faces an appeal situation. The review body of elected members would provide an independent review of decisions rather than consider the case afresh. While the proposals address previous concerns of Committee that an appointed reporter's decision is less democratic and locally accountable, there may be a perception by applicants that an appeal to local elected members would be easier and the proportion of decisions appealed may increase. In supporting the principle of this proposal the Council identifies that detailed advice on procedures is required and that it is necessary to investigate in detail the resource implications for the Council in the transfer of duties from the Scottish Executive Inquiry Reporters Unit to a Council unit.
Comhairle Nan Eilean Siar: It would be helpful to be given a model of how a local appeals process could work in a manner that would show that the appeal body is sufficiently distinct from the original decision making body and so maintain public confidence in the system, ensure propriety and protect human rights. The implications of a local appeal decision representing a potential departure from the Development Plan should also be considered and appropriate measures clarified.
Dundee City Council: The Council supports strongly the principle that as many planning decisions should be determined locally and therefore welcomes the principle of this change. However it is disappointing to note that the local review body's decision can itself be the subject of appeal. The Council doubts the necessity for this but recognised the need for the opportunity for judicial review or an appeal to the Sheriff Court on matters of law. No indication is available in the White Paper as to how the local review body of elected members is to be constituted and advised in its independent review of the officer's determination. In the circumstances, it would not be appropriate for the body to be advised by its own planning officers.
East Dunbartonshire Council: This raises a number of serious issues for Planning Authorities. In Legal terms it is questionable whether a fair trial can be expected from Councillors on the review panel who may have been involved in agreeing to delegate the decision. Although it is the decision rather than the merits of the application being reviewed it will be extremely challenging to separate the two. Applicants will be invited to submit representations and it is unclear what counter arguments would be put by the case officer. They may have to rest on the delegated decision report and would not therefore be able to counter any criticism of the aspects of the report or bodies of new information submitted by the applicant. It is also unclear from the document what form of guidance would be made available to the review panel although discussions with Scottish Executive suggest this may be provided by the Councils legal advisors. It is considered that this provision has little obvious justification, is poorly thought through and is likely to result in a significant number of requests for review and an overall slowing of the planning process
East Lothian Council: Where the local review body has considered a refusal of permission for a local development there should be no further right of appeal other than judicial review; the White Paper refers to a further statutory right of appeal, this appears to offer the opportunity for two appeals against a refusal of permission.
East Renfrewshire Council: Strongly supported in principle. The requirement for delegation schemes represents progress, although it merely reflects what some Councils, East Renfrewshire in particular, have been practicing for some time. However, a minimum scheme of delegation should be introduced, allowing discretion as to the extent of delegation to officers. Agreed that it should be the decision that is reviewed and not the proposal afresh. Further to above, there are concerns over who would advise the review body to ensure that the interests of the Planning system are met. Obviously the Planning Department would have difficulty participating since it is their decision that is being reviewed.
Falkirk Council: The proposal that local members may be required to hear appeals against refusals of local developments made by their own officers raises ~ number of very fundamental concerns. Clearly from an officer perspective, the case officers will not be able to provide advice on the applicant's appeal. If the appeal was simply a review of the decision, as appears to be proposed, then this may not necessarily be an issue. Legal officers should be able to provide this advice. Of even greater concern is the public's perception that if the Members decided the appeal, all of the decisions would be internal to the Council. The Council may therefore be seen as being 'judge and jury'. This may be further compounded if those members who are on the Regulatory Committee are also on the Panel. It is unclear whether appeals against conditions in a delegated approval would be put to the members appeal board. Clearly there are substantial resource consequences for the Council at both officer and member levels in undertaking this new role and responsibilities.
Fife Council: This proposal seems clear and gives Members the opportunity to review certain delegated decisions. This will need careful defining to avoid over-excessive or frivolous appeals. It is for Members to decide how to constitute the review body. Officers will continue to work to Council policies but Members will retain the ability to participate in any appeal to an outside body.
Glasgow City Council: Although the White Paper states that the review board decision could be the subject of judicial review, no details are provided as to the circumstances in which this would be possible. Review Boards will place an additional load on Members time and Review Board members will be taking on a semi-judicial role. Where the Local Review Board consider an appeal against an officer's decision, no further work is required from the officer. This would save time preparing for an inquiry. However, should an applicant still be unsatisfied with the Review Board's decision, the right to judicial review is retained and officer's may still require, under these circumstances, to prepare evidence. There would be no change to appeals against decisions taken by Committee. Officers would still require to prepare evidence in these circumstances. A clear protocol of Committee/Board/Officer responsibilities would be required to be drawn up by the Council if the SE's proposals are introduced; and training may be required for Review Board members.
Midlothian Council: It is accepted that this proposal has been introduced in response to earlier views expressed by Councils who would prefer these appeal decisions taken locally rather than by SEIRU: This could help speed up the process. The question arises as to who is to advise the local review body? Presumably, planners would not give advice, having already set out their position. There would also seem to be no logic as to why applications that are significantly contrary to the development plan cannot be determined (refused) under a scheme of delegation.
Moray Council: The appeal arrangements are confusing: an opportunity to review an officer's recommendation already exists i.e. through the delegation scheme by referring the proposal to the Planning Committee. Furthermore if the Council Committee has already delegated authority to officers to determine proposals that accord with the plan, why is a review necessary? The proposals now introduce a double appeal process that can only lengthen, not shorten the determination period, thus making for a less efficient process. Some developers may prefer the 'independent' consideration afforded by the SEIRU based on the planning merits of the case.
North Lanarkshire Council: While further local responsibility is welcome, different schemes of delegation will mean there would be different arrangements for appeals across Scotland for similar types of development. Planning Authorities will need to consider how the local review bodies are made up and how they would receive planning and legal advice. There will be resource implications for training and servicing these bodies. If a review body's decision is subject to statutory appeal this would mean a less streamlined system where refusals are upheld.
Perth & Kinross Council: This is liable to create confusion for the public within a Council's area ( e.g. regards the existence of a Committee to determine applications and a review body to consider appeals against delegated refusals) and between Councils (where there may be different means of appeal against the same types of development, based upon different schemes of delegation).
Shetland Islands Council's (interim response): The proposals in respect of appeals against decisions taken by local authority planning officers are ambiguous in the matter of appeals. The White Paper states that 'the review body's decision could be the subject of a statutory appeal or judicial review'. Does the term 'statutory appeal' refer to the normal process involving an appeal to the Scottish Ministers and SEIRU, currently covered by S47 of the 1997 Act? Or does it mean the narrower sort of appeal to the Court of Session, currently available under S239? Subsequent comments in section 7 of the White Paper in relation to financial savings arising from the referral of fewer local development appeals to SEIRU leads us to suspect that the narrower form of opportunity is intended and we think that that is unfortunate.
South Ayrshire Council: First, ensuring that the review body is impartial and able to carry out an independent review has implications for the ability of members to be involved where they have been involved with a previous decision relating to a proposal either on the same site or by the same applicant. In addition, it may be suggested that members of the Planning Committee, are not in a position to undertaken an independent review of a decision on a planning application that is based on an assessment against planning policies that they have also approved. Second, there are implications for the means by which the review body could seek independent professional advice on planning matters if necessary, and also who would prepare the report of the body's decision. In order for the decision to be transparent, it is presumed that there will need to be a report prepared, similar to a Reporter's decision letter, which documents the reasons for the decision and explains what weight has been attached to each piece of evidence. It is difficult to envisage how Council planning officers could undertake this role, given their prior involvement in the assessment of an application.
South Lanarkshire Council: The appeal mechanism to 'review' officers decisions is not clear in terms of the make up of the review panel, the role of the review panel in relation the Planning Committee, how the review is conducted ( e.g. hearing or, written submissions) and what type of notice is issued from the review body. Therefore, further guidance on these matters requires to be set out.
West Dunbartonshire Council: The new local right of appeal is welcomed in that is ensures that decisions on local developments will be taken locally rather than by an independent, but not locally accountable, Reporter. This Council already has extensive delegated powers to officers on planning matters, including some refusals. The Council has a well developed system for hearings in front of the Planning Committee. Many aspects of this proposal need to be worked out in detail including independence of the review body members, who will act as advisors to these members and officer member protocol.
West Lothian Council: While the principle of both local people making local decisions and achieving speedier decisions is to be supported, some aspects of such a mechanism require to be clarified. For example, would the review body be the planning committee or would it be made up of other members who will require to be trained in planning policies and procedures? Would there be a 'watchdog' to review the consistency of decisions in respect of the development plan and natural justice? What is meant by further statutory appeal? If the review body was to discuss an appeal it is very likely that an appellant may take the opportunity of this further appeal. This would of course, duplicate the process with inevitable resource implications .
Non Departmental Public Bodies
Defence Estates: Defence Estates have strong concerns relating to the proposal that a decision under delegated powers would be subject to the right of appeal to a local review body of councillors. We are concerned that there would be no right of appeal to a body other than the Council in such circumstances. We consider a right of appeal to an independent body that is removed from political aspirations is an essential right that should remain. This is particularly relevant to an organisation like the Ministry of Defence with the associated Security issues that may pertain to proposed Ministry of Defence proposals.
Historic Environment Council for Scotland: In the absence of TPRA within the system HEACS has even more serious concerns over the proposal for appeals to be conducted by locally elected members, and that they would be qualified to undertake this task. It has not always been the case that applications for development that has an impact on the historic environment have been considered adequately by local authorities against competing pressures of renewal and inward investment, with the attendant lure of instant social and economic benefits for local communities. At the very least, clear guidance on the conduct of local review bodies, and on training for those involved in them, should be a prerequisite before this proposal is adopted.
Scottish Committee of the Council on Tribunals: Members are particularly interested in the proposed establishment of local review bodies. Whilst this is in keeping with local democracy, members have expressed concern at how these will operate, especially if each planning authority will be allowed to set up its own processes without any central control. It will not be satisfactory for these to be governed only by a weak Code of Practice; this will lead inevitably to appellants receiving different treatment in different areas of the country. My Committee has extensive knowledge of the working of other authority-based appeal systems where there is no central control, appointment of panel members or training and significant problems arise. Members consider it will be essential for the framework for local bodies to be carefully drawn up and adhered to, especially regarding the selection of panel members which should be on a national basis.
Scottish Water: We have experience of, most likely considered "local development" level, appeals being determined on seemingly subjective political criteria. When this affects the rationalisation of assets the local approach can fail to fully address the wider consequences for Scottish Water. This has resulted in significant detrimental cost impacts for Scottish Water.
The Development Industry
Bett Homes: Bett Homes have a number of concerns regarding the proposal to remove the statutory right of appeal to Scottish Ministers and replace it with a right of appeal to a locally elected committee. Our primary concerns relate the committee's impartiality, potential lack of formal training, expertise and potential conflict of interest. Furthermore, we would be concerned about the potential lack of ability to challenge any decisions made on judicial review grounds.
EDI Group Ltd: Local members deciding controversial applications involving Local Developments is not supported. This function should continue to reside with the Inquiry Reporters Unit. Some authorities already allow officers to take decisions on applications. However if members were also allowed to hear appeals the system would be too open to inevitable parochial pressures.
Elphinstone Land: We note that the procedure for local appeals will involve appeal to a panel of elected members. In the interests of equity we suggest that this should be instead to an independent panel of experts - otherwise the appeal process would lose credibility.
Glasgow Harbour Ltd ( GHL): We have particular concerns relating to the proposal that a decision under delegated powers would be subject to the right of appeal to a local review body of Councillors. We are concerned that there would be no right of appeal to a body other than the locally elected Members in such circumstances. We consider that the right of appeal to an independent body that is removed from political aspirations is an essential right which should remain.
Homes for Scotland: We note the intention that there will be increased scope for appeals to be heard locally. It is, however, not clear who will service the review body on appeals against decisions delegated to local authority planners. Homes for Scotland's view is that a panel of experts rather than a panel of elected members should consider them. If the review body is to be made up of local councillors will they be responsible for writing up their findings and recommendations? Additionally, in order to avoid conflicts of interests, we assume that such councillors would not be members of the Planning Committee. Whichever composition is agreed, it is essential that they have some training in planning as recommended by the Executive. Without adequate safeguards, there could, in our opinion, be an increase in legal challenges to such appeal decisions.
James Barr Ltd (on behalf of various development industry businesses): Given the current debate and concerns about the level of training afforded to members of planning committees, this proposed move is an unsatisfactory solution and likely to prove problematic. How much confidence, for example, would appellants have in getting a fair hearing by a group of local politicians who are not professionally trained planners when one also considers that they are being asked to reconsider a decision taken by their own officers? Any such move would also need to be accompanied by a training initiative aimed at developing the planning skills and knowledge of locally elected review bodies.
Mactaggart and Mickel Ltd: Where delegated case appeals would be dealt with by the proposed local body, it would clearly be a requirement to ensure that this was ECHR compliant.
Manor Kingdom Group: Manor Kingdom acknowledges that there will be increased scope for appeals to be heard locally. It is, however, not clear who will service the review body on appeals against decisions delegated to local authority planners. Manor Kingdom agrees with Homes for Scotland's view that a panel of experts rather than a panel of elected members should consider them. If the review body is to be made up of local councillors will they be responsible for writing up their findings and recommendations? Additionally, in order to avoid conflicts of interests, we assume that such councillors would not be members of the Planning Committee. Whichever composition is agreed, it is essential that all personnel are provided with training in planning as recommended by the Executive. Without adequate safeguards, there could, in our opinion, be an increase in legal challenges to such appeal decisions.
Persimmon Homes: This is not considered an adequate replacement for appeals to Scottish Ministers. It will neither speed up decisions nor provide an independent review of the LA policy position. The proposal will shift delay from SEIRU to LAs who are already overburdened and understaffed with little ability to meet this additional requirement.
Scottish Retail Property Limited: We strongly support the proposed introduction of "schemes of delegation" to allow planning officers to take more decisions on certain types of application. However, in our view, the proposal requiring review bodies of locally elected members to deal with appeals on planning applications that fall within the scheme of delegation is seriously flawed. In our experience, locally elected members generally do not possess either the skills or knowledge necessary to conduct or determine appeals. They can also never be as entirely unbiased and independent as Reporters, especially when one considers that when a planning officer makes a delegated decision, he/she is doing so on behalf of the whole authority including its elected members. In effect, the local members will be acting as both "judge and jury" in these matters. For these reasons, it is expected that applicants will attempt to avoid the scheme of delegation by some means. Also, it is unclear who will provide the planning advice to the review body if the Council's planning officer has refused the application that is the subject of the appeal. We are therefore opposed to the proposal for review bodies of locally elected members to determine appeals on smaller scale local developments. As an alternative, it is suggested that consideration should be given to the possibility of independent solicitors or advocates with planning experience being appointed to carry out the task, as they were many years ago.
Stewart Milne Homes: We have major concerns regarding panels made up of local members determining planning appeals. All appeals should be referred to SEIRU otherwise the independence in the determination of appeals will be lost. In any event, we question the legality of such a proposal in terms of Human Rights Legislation.
The Buchanan Partnership: Proposals to involve local review boards are not supported -an independent right of appeal remains paramount. Although there can also be no restriction on the grounds of appeal, the Partnership would welcome a greater degree of certainty in the processing of appeals, primarily in relation to the timescales for submission of necessary information and material.
Walker Group (Scotland) Ltd: We are concerned about the proposal to allow appeals to a new review body made up of local members. A locally elected review body is less likely to be perceived as impartial and independent. A decision making process, where the right of appeal is restricted to an appeal to the same elected members who may have been party to that original decision, is not independent and must be manifestly unfair. Article 6 of the European Convention on Human Rights requires that where a person's civil rights and obligations are determined, that person must have access to a fair and public hearing before an independent and impartial tribunal. How can elected members of the same planning authority be independent of impartial?
Other Businesses
Aggregate Industries UK Ltd: We are concerned about the proposal to allow appeals to a new review body made up of local members. This raises issues of the involvement of the members in any previous planning decisions which might in some way prejudice their ability to subsequently sit on review panels. This process may well be open to the argument that the review body includes the same personnel who have approved the policies, supplemental guidance and other matters. Therefore, at this level, there will be no independent review of the conduct of the Planning Authority, other than through the Courts -a route which would be costly and time consuming. We would submit that a locally elected review body is less likely to be perceived as impartial and independent - something which is essential from a public perception point of view, especially at this level of development.
Arqiva: In relation to the proposals for the right of appeal against decisions taken by local authority officers to be referred to a body comprised of locally elected members, Arqiva wish to raise concerns over the decisions which may be made. Due to the sometimes emotive issues surrounding telecommunication development, it is felt such a local body may wish to bring in other considerations rather than consider the case on its merits and whether it complies with National and Development plan policies.
Association of Electricity Producers: Concerned that local developments will lose their right of appeal. This could have an impact on the amount of small scale projects developed.
British Energy: The proposal to direct the right of appeal on applications not deemed to be controversial or with a significant impact on the area to a local review body comprised of locally elected members is a reasonable suggestion. Care will be needed to ensure that the local review body is perceived as impartial to avoid the risk of additional appeals being triggered.
Crown Castle UKLTD: We have reservations about the proposed limited right of appeal to a Local Review Body made up of members of the council, where the original decision was made under delegated authority. It is our opinion that in the majority of cases it is unlikely for Members to override the professional recommendation of a council officer to refuse planning permission and we consider this specifically so for more politically sensitive developments such as telecommunications. Without the right of appeal to SEIRU developments such as electronic communications could be stalled by a Local Review Body. The option of Judicial Review is an unrealistic alternative because such cases would only be able to address the lawfulness of a decision and not the planning merits.
Federation of Small Businesses: If appeals are to be decided at local level, it is important to ensure that some form of affordable safeguard applies in cases where the appeal is handled inappropriately.
Institute of Directors: The councillors panel review gives us cause for concern - another delay and questioning the officers again?
Mobile Operators Association ( MOA): Due to the minor nature of a lot of telecommunications development, we would expect that most development should fall within a planning authority's scheme of delegation. However we are not sure that a local review body would be an appropriate forum to dispassionately assess the merits of a refusal under this scheme. Telecommunications development can bring with it significant amounts of local opposition centered on health issues and property values i.e. issues the planning system is not designed to accommodate. Currently there is often a great deal of pressure on Councillors to refuse applications based on local campaigns and we feel that undue prominence will be given to health issues by these review bodies as they will be under similar pressures to planning committees. The Scottish Executive have made clear through NPPG19 that the planning system is not the correct forum for the discussion of these aspects of a development and yet they continue to form the main body of the discussion at many a planning committee. In this respect, we do not believe this will speed up the process in terms of telecommunications development, but it will result in many small scale applications having to be decided through judicial review. This will result in increased delays and cost to the local planning authority, the taxpayer, and to the telecommunications industry, which is clearly not in the spirit of NPPG 19 and does not recognise the benefits of an advanced telecommunications system to Scotland.
Scottish Power: We would recommend that elected member appeals should be given further consideration. We have concerns that if a 'Local' project was refused, the Members would consider an appeal and then the appeal 'could' (White Paper 5.1.4) progress using existing statutory appeal rights. We would argue that existing statutory appeal rights must be available to the Appellant following the Members consideration of a refused application. In order to support Member appeals it would be advantageous if the members were given defined 'appeal' duties, enhanced training and guidance.
Scottish Rural Property & Business Association: We agree that appeals to members should consist of a review of the officer's decision, rather than considering the proposal afresh. We agree that there should still be an appeal from decisions made by locally elected members to the Scottish Ministers/ SEIRU. We would have concerns about Councillors facing imminent re-election by the local community being charged with taking difficult or controversial decisions. Decisions which may be in the long term public interest but are unpopular in the short term. So there must be a mechanism to review these decisions at a higher level.
Tarmac Ltd: Note that local developments are to have an appeal route to a local review body and thence to the SEIRU. Whilst this extra tier of appeal is likely to reduce to workload of appeals going to the SEIRU, we are concerned that this extra tier may slow down the decision for those appeals that progress beyond the local review body.
Tesco Stores Ltd: We have a concern about the proposals for a review body made up of locally elected members, who would carry out an "independent" review of the officer's decision if an appeal against it is lodged. Although well intentioned this could risk introducing an additional layer in the decision making process. It would be beneficial if applicants were able to request that their application is determined by Committee, while retaining the right to appeal the Council's decision (either delegated or Committee) to the Scottish Executive.
Unison (Scotland): We welcome the new appeal arrangements including local review of local developments. We would however urge a more radical step to limit the right of appeal to un-elected Reporters of decisions taken by elected local authorities as set out in our submission to the original consultation.
Universities Superannuation Scheme Ltd ( USS): We have particular concerns relating to the proposal that a decision under delegated powers would be subject to the right of appeal to a local review body of Councillors. We are concerned that there would be no right of appeal to a body other than the locally elected Members in such circumstances. We consider that the right of appeal to an independent body that is removed from political aspirations is an essential right which should remain.
WBB Minerals: This intimates that appeals will also be dealt with by the local planning authority. This is a grave concern. Appeals need to be considered by an independent Reporter, who is above and outside of the political aspirations of certain local authority determinations. The appeals procedure must remain transparent and impartial
Professional Organisations
The Faculty of Advocates: We have concerns about the potential quality of the "appeal" decision in such cases. We are also concerned as to the achievement of due separation of powers. The scheme of delegation by any planning authority could mean that applications for quite large developments could be determined by the council, with no right of appeal beyond the council. It could include, for example, a medium scale housing development which is supported only in principle by the council in the development plan - and which is controversial. We do not think that it is unfair to point out that council members do not necessarily have the same level of expertise in planning law and practice as SEIRU reporters. We believe there could be a number of suspect decisions which are presently successfully appealed, but which under the proposals could not be. We also believe that the proposal would involve a change in relationship between planning officer and committee. At present the system is used to the committee 'overruling' the planning officer in appropriate circumstances. But generally the planning officer advises the committee on planning issues and presumably this will continue in many instances. However once a right of appeal is introduced from the planning officer to the committee itself, it seems that it would be wrong for the planning officer to also be seen as the adviser to the committee. Clearly for the committee to have any appellate function it would require to be seen to be independent of the official and vice versa. So we believe that true separation of functions, let alone a transparent separation of powers, would be difficult to achieve in practice. This also highlights a legal matter. At present a local authority is seen as a single corporate body in its dealings with the public. A delegated decision by a planning officer is as much a final decision of the local authority as is a decision by members on the relevant committee. For this to change, detailed and, we suspect, fairly novel legislation would be required. This has not been worked into the White Paper.
SSDP: The Society feels that there requires to be more thought given to the detail of the appeal mechanism, particularly at local level where planning authorities are to determine appeals. The Society has worries that the appeal mechanism at local level may drive a wedge between officers and members. It also feels that there may be greater inconsistency in decision making particularly where councils may be influenced by non-material planning considerations. Consequently, there requires to be a review body to ensure proper process and consistency. Lastly, it is felt that the Scottish Executive should give consideration to a fall back position should any form of third party appeal be introduced.
The Law Society of Scotland: The Society has concerns with regard to the proposal that appeals against delegated decisions for 'local developments' should be made to a panel of local authority members. This makes the planning authority judges in their own cause because the planning officers and the elected members are both part of the planning authority. This would not promote confidence in the system and may not be Article 6 compliant, depending on the arrangements made. There is also a difficulty with regard to the role of the planning officer who will make the initial decision on the application and then be adviser to the panel of members in determining any appeal. The Society is aware that the objective is to reinforce local decision making, but has real doubts about the soundness of the proposals outline. Some independence and impartiality must be clearly built into the system. The involvement of SEIRU, or an independent chairman in these local appeal panels should be further considered.
Planning Consultants, Architects and Lawyers
Collar, Neil: The proposal to restrict any right of appeal against a decision by an officer under delegated powers is unsound. Currently, every applicant has the right of appeal to the Scottish Ministers. This proposal would retain that right of appeal for decisions taken by councillors, but decisions by officers under delegated powers would only be appealable to a review body of councillors. That right of appeal raises practical problems, since most of those appeals would be instances in which councillors would be asked to reverse a decision taken by their planning officer, so members of the Planning Department would be unable to assist the councilors in their decision-making. More fundamentally, the councillor review body would not be independent from the person who made the decision being reviewed. It is questionable whether this arrangement would comply with Article 6 of the European Convention on Human Rights. Applicants would always have the right to seek judicial review from the Court of Session. However, it is debatable whether the House of Lords intended the Alconbury decision to necessarily indicate that all decision-making processes are article 6 compliant provided there is a right to seek judicial review. Also, the proposed arrangement is open to abuse, since a local authority could prevent their decisions being appealed to the Ministers by adopting a widespread scheme of delegation.
Drivers Jonas: We have particular concerns relating to the proposal that a decision under delegated powers would be subject to the right of appeal to a local review body of Councillors. We are concerned that there would be no right of appeal to a body other than the locally elected Members in such circumstances. We consider that the right of appeal to an independent body that is removed from political aspirations is an essential right which should remain.
Muir Smith Evans: We are not persuaded of the concept of local elected members reviewing appeals against decisions by their own officers. The link is too close. We do not consider how this could be seen as fair, even if it does comply with the provisions of the ECHR. We do understand the need to remove such appeals from the workload of SEIRU. We wonder if a panel of retired reporters could be made available to councils for this purpose.
Paull & Williamson: We are unhappy about the suggestion that appeals against delegated decisions ('local' developments) should be made to a panel of elected members. The planning officer and the appeals panel are both 'the planning authority'. This makes the planning authority judge in its own cause, a problem which has occurred with local plans and which the White Paper is proposing to move away from. It also places the planning officer in a difficult position; he/she will have made the decision and will presumably also be reporting to and advising the appeals panel.
Roberts, GM: Your proposals for panels of councillors to determine minor appeals, will add to their work-load: many of them may not be competent to provide an 'independent' review. The main concern is that, if such locally-heard appeals only involve refusals which have been delegated/issued by officers; then there will have to be national consistency and clear advice,- about which applications are to be determined by elected members; and which are to be delegated.
Turley Associates: The proposal that appeals against decisions on delegated planning applications should be to a panel of locally elected members is not supported. In some instances Councillors do not have sufficient expertise and impartiality to be given this responsibility, and the close relationship with their officials will not provide the necessary independence of scrutiny as compared to the Reporters Unit.
Professional Organisations
RICS Scotland: We note that no timescales are indicated for appeals against decisions taken by local authority planning officers, nor is the mechanism for such appeals set out. In order to ensure that this process is both quick and cost effective we suggest that controls and timescales should be set for this process.
RTPI Scotland: We feel that further consideration requires to be given to the proposals for local appeals. While we accept that a properly structured scheme, ensuring the independence of the appeals panel from any conflict of interest, is consistent with the principle of subsidiarity, we are not certain that there is any real advantage in saving cost to a central, technically expert appeal panel in favour of incurring cost locally where there must remain significant questions over technical competence. The delegated planning officer will be party to the appeal in his/her own right, so cannot advise the appeal panel. Any professional advice should not be expected from any officers managed by this officer but this should not be a reason for splitting up the integrated line management of the planning service. Undoubtedly, lawyers for the authority will be responsible for the procedure but if planning advice is required it should not be taken from lawyers and planning consultants should be engaged.
Community Councils
Ardross Community Council: We are not happy with Scottish Ministers surrendering their appeal powers to a local review body. We believe the involvement of Scottish Ministers divorced from local politics is a much fairer objective appeal process.
Balerno Community Council: Notes proposal that a local review body would carry out a review, if necessary, of local applications by persons such as ward councillors, and highlights that these are elected individuals. The Community Council has elected representatives with knowledge of the planning system and how it is operated by the relevant Council committee. They suggest that it would be embarrassing for their own, or any other, ward councillor, especially one that serves on the planning committee who may have already taken a stand on an application in committee, to be asked to determine that application again as a member of a review body. The Community Council suggests that further thought be given to this proposal.
Broughty Ferry Community Council: Where the Development Plan may be contravened by a planning approval, there needs to be a call-in mechanism (or preferably an appeal) which can be triggered by third parties. Otherwise there is no safeguard against planning mistakes as a result of decisions made by a committee of laymen.
Craiglockhart Community Council: The Community Council had no enthusiasm for hearings with elected members only, unless safeguards are put in place to prevent the hearings being one party panels and to ensure that any elected member on a panel has gone through enough training to understand "what constitutes a planning consideration and is able to read plans. (This is an aspect of fairness; it has to be remembered that many community groups have had the benefit of Planning Aid sessions and include a variety of professional participants.)
Culter Community Council: We have some questions and concerns are related to the appeal proposals: (a) will the objections made be part of the case file presented to the review
body of local councillors? (b) will review meetings be open to the general public? (c) will appellant and objectors be allowed to speak, even in some limited way? (d) we are concerned about public perception of this review body and suggest that there should be an 'independent chair' (from SEDD or SEIRU?) in the interests of transparency and public reassurance that the review and its
results will be fair and balanced.
Currie Community Council: Regarding the proposed local review bodies, there is nothing to indicate that in consulting local people their views will have any material effect on decisions made. Reference to the Local Authority being best placed to look after the interests of local people ignores the fact that Local Authorities are no longer "local" in size, but effectively enlarged to look after areas the size of regions. As a consequence, "local review bodies" will not include the local people who are to be affected by proposals, with voting powers, but will be the province of councillors elected to the Local Authority, very often on a party political ticket. This is clearly unjust and perpetuates the existing unsatisfactory arrangements. Planning committee members unfamiliar with the area may visit sites to inspect proposals, but local people who know the area and whose knowledge could be invaluable, are not allowed to point out pertinent features on their visits. This is plainly unsatisfactory; it is also more restrictive than the site inspections that SEIRU reporters carry out. We have not heard that SEIRU have experienced problems during their accompanied tours of inspection and see no reason why knowledgeable local people should not have the same rights when their planning committee and officials visit site. We urge a change in this regard. The "local review body" to which appeals would be sent could comprise councillors who had already rejected the application. This would therefore not be a wholly independent body and might even "rubber stamp" an unacceptable decision. This would be inequitable. There must be a system of checks where objectors can clearly and effectively express their views at review stage. We recommend that Community Councils or locally elected Representative Bodies should be involved in the review process and be provided with voting powers on local review bodies. Failure to do this is likely to encourage an increasing demand for a TPRA and fuel further disillusionment with a planning system that continues to favour the applicant.
Fortrose & Rosemarkie Community Council: proposals for appeals on Local Developments are acceptable but the composition of a review body is important. At planning hearings councillors sit in judgement on their own officials' planning appraisals. In the case of a review body it would be undesirable for local members to act as judge and jury on their own officials. The review body should be seen by both sides to be impartial. At hearings cross-questioning by both sides should be permitted and not restricted as at present
Foulden, Mordington & Lamberton Community Council: With regard to "appeals" where there will be a local review body made up of locally elected members this is to be commended and is long overdue.
Gatehouse of Fleet Community Council: Appeals against decisions made by officers is now to be heard locally which is a step in the right direction and enhances local democracy.
Hillhead Community Council: Hearings will play a large part in the system envisaged but are of great concern. A review body is needed to address concerns and keep the system under review. It should have powers to compel the Executive to take action if the review body deems if necessary. It should have powers to advise improvements to the legislation.
Kennoway Community Council: Appeals undertaken by the Scottish Executive Inquiry Reporters Unit ensure independent assessment and expert opinion. Appeals handled at a local level would not be viewed with the same public confidence as SEIRU decisions.
Knightswood North Templar Community Council: The current statutory appeal provisions provide for appeals to be adjudicated by independent arbiters trained, qualified and experienced in Planning Law and Development Control. Often appeal cases involve complex legal arguments which require qualified and experienced legal experts to adjudicate. Locally elected members of review bodies are not qualified and experienced legal experts. The end result will therefore be likely an increase in the number of applications going forward for statutory appeal or judicial review , with consequent increased delays in the processing of applications.
Largo Area Community Council: Are local authority elected members best placed to make an "independent" decision? Perceived independence is unlikely without full consultation with Community Councils both as representatives at a grass roots level and the recipients in the local community of the consequences such appeals will cover. It is also considered that there is a potential conflict of interest should elected members make a judgement on decisions made by planning officers.
Merchiston Community Council: Asks why a local review body should not include local lay people.
Morningside and Fairmilehead Community Councils: Concerned that, in Chapter 5 (page 18), appeals against the decision of a Local Authority Planning Department will be to a review body comprising Councillors. (By comparison, at one time, each Council had a Housing Benefit Review Board to decide on disputes between Housing Departments and tenants on benefit with regard to rents. This was contested as being not in the interests of justice, as councillors could be persuaded by either party to reach a biased decision).
The Royal Burgh of Cupar & District Community Council: A local appeal tribunals may be under-resourced and could possibly be influenced by an individual's track record, compassionate grounds, etc., as sometimes happens within the present licensing courts. This would mean a very different planning system to the present.
Voluntary Organisations
Avondale Civic Society: Local Hearings for appeals into local delegated decisions must be subject to the same degree of expertise that applies to other appeals. They must be heard by competent professional inspector/reporters, and not some local elected or appointed body which can be subject to political pressure.
Brethren Gospel Trusts: We object to the proposed removal of the right of appeal to Scottish Executive Reporters Unit and consider that resort to the proposed local review hoard or the courts are unlikely to provide the currently respected independent and consistent national appeal process.
Colinton Amenity Association: We do not see how a review body of decisions taken by planning officials, which is comprised of locally elected members, can carry out an independent review. It is important for the review body to be seen to be impartial and we suggest that the members of review bodies are appointed by COSLA from elected members of different authorities to that in which an appeal has been lodged.
Garden History Society: We note the intention to introduce four tiers of applications and have concerns regarding the right of appeal, in the case of local development, not to the Ministers, but to a local review body of elected members. This begs the question of whether such a body would have the necessary expertise to review such applications.
Kilmacolm Civic Trust: We support the proposal that the appeal process for local applications could be handled locally. We agree that the body deciding the appeal should be differently constituted from those deciding the application but that offers the prospect of genuine involvement by members of the community and introduces a stronger element of accountability. Human Rights legislation will surely play an increasing part in planning issues but we should be clear that there is no recourse to "impartial and independent" judgement as matters stand outside of the law courts.
Peebles Civic Society: We strongly disagree with any proposal that appeals against refusal of Local Applications should be conducted by the LA. Appeals should be dealt with by a higher authority than the initial decision makers. Appellants would have no confidence in a 'hearing' by the LA, whereas they can have confidence in the professional objectivity of Scottish Executive Reporters.
Planning Aid Scotland: From our experience there may be a perception that these will not be fair and impartial in that the decisions taken under delegation by planning officers are reviewed by their employers rather than by an independent body. This will be of similar concern to applicants and to objectors. The objectives of increased local democratic decision-making will need to be emphasised in any supporting procedural guidance. However, we do believe that this proposal brings the beneficial opportunity for local elected members to consider and give more weight to local opinion in a final decision.
Pollokshields Heritage: We note it is proposed that appeals against a refusal by delegated decision will be taken by members, and we would expect community groups who have
lodged a valid objection [and thus support the Council's decision] to continue to have the opportunity to be heard.
Rural Scotland: It cannot be acceptable that Councillors have responsibility for determining the outcome of appeals where they have already made a decision upon an application. The Scottish Executive Inquiry Reporters Unit has considerable expertise to offer in such respects and is a highly valuable resource which should be maintained.
Scottish Civic Trust (and Civic Trust Network): The Trust would wish to object to the concept of local appeal system as proposed. A committee of local members will not have the necessary technical knowledge to be able to assess the technical or policy merits of a professional officer's decision. Indeed, this process is likely to increase the number of appeals (rather than decrease), as people will see there being a greater chance of lobbying a local member. As an alternative, we would suggest that a local appeals committee should be independent of the local authority (but administered by it), with appointments being made under Nolan rules. The concept of local Children's Panels offers an interesting parallel. This would ensure an independent and impartial hearing. The Trust believes there is a serious issue on compatibility with the Human Rights Act. Article 6.1 of the ECHR requires access to tribunals which are "impartial and independent". It could well be the case that such a new appeals committee in a LPA does not meet this test. It is not clear if the decision of this appeal committee would be subject of a statutory appeal to Scottish Ministers (if so it would increase the level of bureaucracy).
Scottish Consumer Council: We have concerns regarding the proposal that local review bodies will be made up solely of local councillors. Democratically elected members will likely bring to the table a commitment to constituents that does not necessarily accord with the consumer perspective. A commitment to the consumer interest requires an independence from other influences, such as a concern for businesses in a particular area, or for a particular political policy, which would not necessarily result in a clear articulation of consumer interests. In our view it is important that membership of the local review bodies includes people with a specific remit to represent the consumer interest. Under the present proposals we feel that public perception of local review bodies may be that they are not truly independent. That planning cases continue to be the largest single category of complaint received by the Scottish Public Services Ombudsman highlights our concerns that public confidence in the planning system must be properly addressed. SCC recommends that it is good practice for public appeals bodies, such as local review bodies to include lay members. It is also unclear under what circumstances a local review body's decision vould be subject to a statutory appeal or judicial review
Scottish Council for National Parks: The planning system throughout the UK generally has had a good reputation for the professionalism of the advice given to elected members. SCNP is therefore, concerned about the proposal to have appeals against decisions delegated to officers, being heard by a local review body of elected members. This is unlikely to produce better and more consistent decisions than that produced by the professional consideration by the Scottish Executive Inquiry Reporters Unit. Local elected members are put under enormous pressure by lobbyists and local vested interests to take decisions which bear little relationship to planning responsibilities and approved policy in the development plan. It would be a diminution in the quality of the system to have decisions which are currently taken by professional reporters taken by lay people subject to local pressure.
Scottish Renewables Forum: The proposal to determine appeals locally for applications that fall within the terms of the scheme of delegation seems an unnecessary complication of procedures. The existing system of Planning Committee decision followed by appeal to the SEIRU should be retained. Some small-scale renewables projects may not require an EIA, yet, if an applicant is unhappy with a decision, the process to go through is potentially a much longer one. On these types of proposals it is unlikely that a local review body will decide contrary to a recommendation for refusal by officers and a further appeal to SEIRU is almost inevitable. Members of the Review Body need to be properly trained to take these decisions. We would ask that planning fees are not raised to pay for these additional costs. The suggested procedure may also be against the rules of natural justice in that applicants will only be able to submit grounds of appeal but will not be able to respond to officer comments on these. We do not understand what is meant by the review body carrying out "an independent review of the officer's decision, rather than considering the proposal afresh" and would appreciate clarification on this. How is the suggested alternative to an appeal following the Review Body decision, namely seeking judicial review on the local review body's decision, an improvement to the planning system? This would result in taking the decision-making outwith the system and decisions being taken not on the planning merits of the case.
Scottish Environment LINK: For applications that fall within the terms of the scheme of delegation, appeals will now be determined by review bodies of elected members. Following these appeals developers will only have the option of a statutory appeal or judicial review. We are aware that this may raise issues in terms of the Aarhus Convention or Human Rights unless the review panel has some level of independence; we would welcome further information on this issue.
Scottish Wildlife Trust: This is welcome, although it is important that the appeals panel can draw on sufficient technical expertise to consider issues such as ecological impact especially where this is key factor influencing decisions.
St Andrews Preservation Trust: We have some worries about the system of Appeals for delegated applications. At present Planning Appeals are dealt with by the Scottish Executive's Development Department Inquiry Reporters Unit. When the Reporter submits his Report a copy is given to all objectors. The Reporters thinking and comments on planning policies are very useful. We in the Preservation Trust refer to these reports when making comments on a similar application and at times can use them as an annex to planning policies. We would find it unacceptable to have an Appeal within a Conservation Area carried out by someone less qualified than a Reporter. Locally elected members do not have the experience or knowledge of the Inquiry Reporters yet could be asked to make a decision on an application which might have a significant effect on its environment. In what way would this Review Body of locally elected members differ from the Planning Committee of elected members?
The Grange Association: Local appeals are to be heard by local review bodies. If they are to inspire confidence, the effectiveness of such bodies will clearly depend on the competence and independence of their members.
Private Individuals
Anonymous: With reference to the introduction of a local appeal tribunal to hear appeals on a range of local developments rather than SEIRU, the respondent states they agree with the scrapping of SEIRU but that the replacement should be by 3 qualified persons along the lines of a Privy Council appeal.
Armstrong, Pam: If this change comes into effect, I trust that the "locally elected members" will have the necessary sensibility, independence and time to give to local concerns. There seems to be a tendency to rush through smaller scale applications. A recent local experience has suggested that SEDD can sometimes be better guardians of local interest than the LPA.
Baylis, Wendy: We approve of the idea. expressed on, page 17 that certain' local applications will be determined by officers with a right to appeal , not to Scottish Ministers, as at present, but to a local review body comprised of locally elected members. The more decisions taken locally by elected members, it seems to us, the better. We wish this could be extended to include larger more significant developments.
Greenlaw, Mrs Floris H.: The decisions of local review bodies dealing with appeals against delegated decisions made by officers must be closely monitored from day one. They could well bring planning further into disrepute.
Lauder, Alistair J: There is mention that a decision of a planning official can be appealed to the local body (I assume this will be the Local Authority councillors) and their decision could be subject to statutory/judicial review. I feel that their decision must be open to the same appeal process as currently exist for planning decisions.
Lee, David: The White Paper proposes that determination and appeal of 'Local' applications be carried out by local elected members. This remains open to accusations of collusion between planners and councillors and a general lack of transparency. This may be of particular public concern when the local authority stands to gain significantly from approval of an unpopular application due to the level of developer contributions it will receive through planning conditions. Where the public are invited to such determinations, they may be allowed to state their opinion but not allowed to ask questions of the sub-committee. Consequently there is no meaningful public debate at such meetings and the elected members may feel inclined to go along with whatever the planning authority recommends. Where applications require public determination, either because they are outside of agreed local plans or due to a high-level of public interest, the hearing should always be carried out by an independent body.
Mackenzie, Mary E: This appears to be sensible but there is always the potential for Planning Committees to "play politics", so community input is essential.
Piggins, J M Dr: I welcome the introduction of a local review body for appeals against decisions taken by local planning officers (page 24). However, I regret that there is apparently no proposal for analogous de-centralisation of the Scottish Executive Inquiry Reporters' Unit.
Smith, RL: A local development with its appeal to a Local Review Body (in all probability by the same body who made the original decision) is inequitable. The Local Review Body could possibly be required to have 2/3 independent people appointed to it who are knowledgeable of planning matters. The planning appeal to the courts would be a very expensive operation. The apparent disappearance of the Reporters Unit is very disappointing. It was always great value both to the general public and for good governance.
Turner, Barry: This proposal I find worrying. It appears to replace the applicant's ability to lodge an appeal to be considered by a Reporter who will be totally objective (though not apparently an appeal to the courts). Where the Councillors agree with the officer's decision, the applicant is thus without the normal redress. Where they do not and decide to grant permission against the officer's judgement it begs the question are they acting on non-planning grounds. Additionally it could be a cause of friction between councillors and officers, something to be avoided. I cannot see what it will achieve other than more bureaucracy. There is also an issue over whether the arrangement would be compatible with the Human Rights Act in that tribunals are supposed to be impartial and independent.
Politicians and Political Groups
Kennedy, Margaret Councillor: I would question whether such a body consisting of local elected members and Planning Officers would be impartial and transparent enough to deal with this process.