5.3.3(vii): Greater use of Hearings
Local Authorities
Comhairle Nan Eilean Siar: The Comhairle has operated a Hearings process for planning applications in the past with mixed reactions from participants. There is serious concern that if Hearings are to be required for complex cases that may involve a wide range of consultees, their administration could prove extremely challenging in an island authority with a number of island groupings. If the requirement is to be pursued by the Scottish Executive, it is recommended that it should allow the exercise of local discretion over which types of application would be suited to the Hearing process.
Dundee City Council: The Council already incorporates a procedure for allowing deputations to be heard as part of the Development Quality Committee's decision making procedures. The Council therefore welcomes this proposal and will undertake a review of its current procedures in due course to make them fully compliant with the likely requirements of the emerging legislation.
East Ayrshire Council: This is already current practice in East Ayrshire
East Renfrewshire Council: Accepted in principle. However, more detail is required, including clear guidelines. Minimum requirements should be introduced, allowing a degree of local discretion.
Glasgow City Council: It is assumed that decisions on locations for hearings will continue to be agreed between the local authority and reporter. Clarification required on this matter and the Council's view on this proposal is reserved until fuller details of the proposal are known. Proposal is likely to place a greater burden on members' and officers' time. Once further details are known, discussions will be held with members regarding the potential implications.
Inverclyde Council: While this may create greater public confidence, I remain to be convinced. Indeed, it may serve to slow the process.
Moray Council: In Moray, the Council already operates a hearing process albeit for departure proposals only. More hearings would have to be convened if additional development types have to be considered, thus having administrative and resource impacts which may lengthen, not shorten the determination period.
North Lanarkshire Council: Hearings are currently used extensively in North Lanarkshire - they are normally granted in response to requests by either applicants or objectors. It is noted that the Executive intends to define when a hearing is appropriate and how it should be conducted. It is not clear from the paper whether the Executive's intention is only to define cases where Hearings are mandatory and whether Planning Authorities will retain discretion to hold hearings in other cases. This council will be pleased to be involved in any discussions or consultations on the appropriate circumstances for or conduct of hearings.
South Lanarkshire Council: This Council already offers the opportunity for hearings in appropriate circumstances and as such placing hearings on a statutory footing would be supported.
Non Departmental Public Bodies
Scottish Enterprise Edinburgh and Lothian: This proposal is welcomed on the basis that the Hearings are structured to ensure that this is not another layer of bureaucracy and that there is a significant improvement to the efficient operation of the system.
Scottish Environment Protection Agency: Our recent experience of hearings has largely been positive and we welcome the commitment to their greater use. Further guidance on hearings procedure would, we feel, be useful.
Scottish Water: The cost of hearings and consultation are a facet of a project's costs. However, with the inherent challenges we foresee in land use planning noted under 5.1.2 and the "bad neighbour" tag, we are concerned at the potential for the proliferation of planning hearings in relation to Scottish Water applications and the delay and significant cost impact of these. We require more specific detail surrounding these issues and their relationship to the development hierarchy balanced with this desire for a greater use of hearings.
Other Businesses
Crown Castle UKLTD: We recognise the need for greater inclusion and transparency. However, we would be concerned if other vexatious council's required hearings as a pre-requisite for specific development proposals such as electronic communications.
Federation of Small Businesses: The FSB has previously commented on improving public local inquiries and supports greater use of hearings. In determining how hearings should take place we believe that it is important to consider the views of the local business community (where they have made representations) as they could add a different (and useful) dimension to hearings.
Orange PCS Ltd: We appreciate the need for this proposal but assume that mobile base stations would not fit into the categories suggested for hearings and would seek confirmation of this. Hearings into health and scientific concerns should be dealt with at national rather than local level.
The Scottish Coal Company Limited ( SCCL): It is Scottish Coal's experience that hearings provide an appropriate opportunity for third parties and applicants to present their case for or against a particular proposal and for the proposal to be discussed and questions posed in a fair and transparent manner. We would therefore support the use of hearings.
WBB Minerals: Who determines or what thresholds exist for "significant objection"? I object to the use of hearings if proposals are to be approved. This is introducing third party rights of appeal by the back door.
Professional Bodies
RTPI Scotland: Current experience suggests that comprehensive guidance for local hearings is urgently required. The section on page 38 uses the term "significant" in two places - "significant objections" and "significant contrary to the development". The definition of the term and the responsibility for doing so requires clarification
The Faculty of Advocates: This may be acceptable assuming all parties agree to such a course. However we simply cannot believe these can realistically settle factual disputes since evidence is not tested in any formal way. Para 44 of Circular 17/1998 states that reporters give more weight to evidence which has been cross-examined! So the Executive accept the need for formality in appropriate circumstances. We understand there have been a number of instances leading to concern and frustration when reporters have sought to adopt an "inquisitorial" approach in inquiries. The feeling is that a reporters' own questioning, having first "deterred" cross examination by others, may not always be sufficiently detailed or robust. If this is a good criticism, as we shall further explain, then it does not bode well for overuse of "hearings". On the other hand the Faculty has confidence in the present inquiry system. Reporters do get to the heart of the matter, and ask highly pertinent questions, but often after issues have been explored with witnesses by parties themselves.
In order to test expert or professional evidence in a professional manner; e.g. retail capacity and impact, land supply, environmental impact, traffic impact etc it is necessary for counsel to have access to a suitable expert, who is himself properly briefed. Counsel will usually have consulted with the expert and studied the latter's written comments. So how can a Reporter, sitting alone and without expert assistance be in a position to scrutinise the evidence for himself in anything like as robust a manner? For one person to take evidence, and then scrutinise it, would be too much of a task. Statutory inquiries in other fields which are of an inquisitorial nature have "Counsel to the Inquiry" to lead the evidence (which is then open to challenge by other parties). Thus the Chair is spared the burden of the task of both questioning and note taking and is able to concentrate on the evidence itself. Obviously this is not being proposed here. Nor is the greater use of assessors or several reporters. We believe it is generally accepted that the adversarial system, which has for long been at the heart of the British justice system, is the most robust form of decision making. The proposals to curtail public inquiries, if generally applied, will compromise the robustness of controversial planning decisions. We are also sceptical whether the proposal will improve the position of third parties. We have never seen a third party being "intimidated" at an inquiry by professional representatives (although the reverse is not unheard of). Whether third parties will actually benefit from the proposals will depend upon how proactive the reporter is in giving them a say as each issue arises. We understand, anecdotally, that reporters' practices differ on this.
The Law Society of Scotland: Regarding the proposed greater use of hearings in the appeal system, the Society suggests that there should be updated guidance regarding these issues as soon as possible.
Planning Consultants, Architects and Lawyers
Collar, Neil: Greater use of pre-determination hearings is welcome. It is important to ensure that measures are introduced to ensure that parties feel that they are given a worthwhile opportunity to participate, rather than all objectors sharing a small time slot.
Colliers CRE: Greater use of hearings is cautioned against, as it should be an appellants right to opt for a planning appeal route in which the evidence can be truly tested. In an age when the rights of the individual are increasingly espoused, to suggest that these are to be curbed by the Scottish Executive is a retrograde step. The view that 'all inquiries are adversarial in nature' is a myth. The only people who are subject to adversarial examination, in rare circumstances, are professional experts, who should be able to withstand such scrutiny. Members of the public or local community group are always welcomed to participate in Inquiries and often contribute valuable evidence. They are never subject to adversarial questioning by legal experts. It is not considered that hearings are the answer, as this involves a vast amount of preparation and questioning by Reporters, who have not been trained in these roles and who benefit from listening to the case presented by legal experts and their witnesses and coming to a professional planning opinion on the merits or otherwise of a particular case.
Roberts, GM: Local Plan preparation has become so drawn out, that interested parties had to be extremely committed to follow through the processes. The result has been that most PLI participants merely had financial, development interests in the eventual outcome: and consequently could afford time/money in participating in any PLI. A similar situation has sometimes occurred with Appeal Planning Inquiries, where local people with a community interest have wanted to get involved. From experience, many local people who have participated in either and who have been subjected to long inquiry sessions: -legal intimidation, time-wasting, unnecessary paper-work, worthless supporting documents, etc., have retired bruised and disillusioned, resolving never to become involved again in matters affecting their community, 'their place'. Round-the-table sessions have been shown to be less intimidating and more productive; and more are to be welcomed. Otherwise even planners, as well as local residents, will be ousted from the system by solicitors etc.
Turley Associates: We welcome the proposed greater use of local hearings, where applicants and objectors are provided with the opportunity to address planning committees. In our experience, aside from adding to the quality of decision, it introduces a transparency into the planning application determination process which is very important in terms of the credibility of the system. People have the opportunity to state their point of view with the sense that it is taken into account, even if not always accepted.
Community Councils
Balmerino, Kilmany and Logie Community Council: Proposals for better consultation welcomed: e.g. use of hearings to allow local people to present their views on planning applications before they are determined.
Currie Community Council: We agree with the principle of hearings when local objectors can express their views to the Planning Committee. Guidance may be required of planning authorities as to when hearings are appropriate.
Edrom, Allanton & Whitsome Community Council: We are supportive of requiring more frequent use of hearings, allowing local people to present their views on planning applications before they are determined.
Kennoway Community Council: Public Hearings sound good but who would arrange and chair these meetings?
Knightswood North Templar Community Council: On the proposed greater use of hearings, again the same problems exist as to what constitutes significant objections, significant departures from the development plan and what constitutes a larger-scale 'bad neighbour' development. Furthermore we do not believe that hearings should be proscribed only to developments which meet the above criteria, but should be available for all local development applications, at the discretion or request of elected members.
Voluntary Organisations
Brethren Gospel Trusts: The greater use of hearings to discuss views of developments should be limited to major applications as set out at page 23. Greater use of hearings to discuss views of developments for local and minor developments is to be deprecated and may result in reduced efficiency in decision making.
Quarry Traffic Monitoring Group: This assumes that the current system operates in an impartial and objective way. It does not. Our experiences in 1999 and 2003 have demonstrated that 'hearings' as they function at present, provide little more than a thin veneer of democracy to decisions reached prior to the 'hearing'. To suggest otherwise would be an insult to the collective intelligence of those who have had to endure such events.
Scottish Wildlife Trust: The value of hearings is unproven. Hearings may not be the best medium for conveying complex or technical matters. In the case of the most controversial development proposals, a fair system of hearings could prove unmanageable or unduly time consuming. It also the case that certain members of the public will not have the confidence to speak at such a forum, and therefore any views expressed may not be entirely representative. Hearings also fail to address the key concern for communities, which is not the lack of opportunities to express their views, but the belief their views will not be properly considered. TPRA creates a balance between the public, developers and politicians that hearings will not achieve. Therefore all that hearings will ultimately achieve is more delays in the system and work for planning officers and committees, without any of the benefits of TPRA. Hearings are little more than a diversion and a very poor substitute for real rights.
Private Individuals
Graham, Bob: During planning hearings the applicant has the right to challenge evidence given by objectors yet objectors do not have the right to challenge the applicant's rebuttal. This must change.
Turner, Barry: Hearings are fine so long as the councillors actually take notice of what people say. Hopefully the whole ethos of the new system might ensure that they will. I certainly would want to see the reasons for decisions explain exactly how they have addressed issues raised at these hearings. My concern is that if no satisfactory explanation is given, there is no avenue open to objectors to complain and there needs to be one (this is where TPRA would be so valuable). Decisions that seem take no heed of public opinion are a major cause of the loss of confidence in the system.