ANNEX B
PARTIAL REGULATORY IMPACT ASSESSMENT
1. Title of Proposal
1.1 The proposed measure is the Town and Country Planning (Development Plan Examination Procedure) (Scotland) Regulations.
2. Purpose and intended effect
Objectives
2.1 The regulations are required to implement Sections 12 and 19 of Part 2 of the Planning etc. (Scotland) Act 2006 regarding development plan examinations. They seek to ensure that development plan examinations are carried out fairly and efficiently. The regulations are intended to be in place before the first examinations are held under the new development plan system. This is expected to be commenced in late 2008.
Background
2.2 The independent testing of development plans under the outgoing planning system is by means of public local inquiries for local plans, and by Scottish Ministers for structure plans. Examinations in public have occasionally been held into certain structure plan proposals, but this procedure is not mandatory and is rarely used. The procedures for holding public local inquiries and examinations in public are currently set out in guidance rather than secondary legislation (Circular 6/1985 - Code of Practice for the Examination in Public of Structure Plans; Circular 1/1996 - Local Plan Inquiries: Local Plan Service Standards; and Circular 32/1996 - Code of Practice for Local Plan Inquiries (supplemented in March 2006 by further interim guidance)).
2.3 With regard to local plans, the time taken to go through the public local inquiry process has been identified as a major reason for delays in local plans being adopted. Over the past nine years, an average of eight public local inquiries into local plans have been held every year. The length of each inquiry varies greatly, from over 400 days of reporter time (for the Aberdeen Local Plan Inquiry) to under 10, though they typically take significantly more than 100 days of reporter time. Current inquiry procedures are therefore thought to contribute to the wider problem of local plans being out-of-date and often failing to effectively lead or manage change. A key aim of planning modernisation is to bolster the role of the development plan at the heart of the planning system by making them more relevant and up-to-date. This will require quicker preparation times and thus a much more efficient examination process.
2.4 Along with efficiency, planning modernisation aims to improve wider inclusion in the planning system. On the local plan side, public local inquiries gave, on the face of it, a great deal of opportunity for individuals and small businesses to have their say before an independent reporter. But in practice many found the lengthy, bureaucratic and legalistic processes involved off-putting. Structure plans were rarely examined in public, and so the new Act's requirement that examinations must be held into strategic development plans where there are outstanding representations will enhance inclusion at this level.
Rationale for government intervention
2.5 Sections 12(3) and 19(5) of the 2006 Planning Act give Scottish Ministers powers to make regulations covering examinations. The expectation among stakeholders was and is that these powers will be used. While examinations and inquiries into development plans have not previously been the subject of regulations, the Scottish Government considers that legislation in this area is necessary to deliver more certainty to stakeholders as to how examinations will operate and to ensure that Ministers' priorities for them are achieved. In particular, we believe that the principles that evidence should generally be provided as early as possible in the process, and that the appointed person should have discretion as to whether and how any further representations are provided, should be enshrined in secondary legislation. These principles need to be universally applied to ensure that examinations are operated consistently over time and across the country, and meet the Scottish Government's intentions that the process is as efficient and fair as possible. If these matters were set out only in guidance, there is a danger that appointed persons could come under pressure from parties to the examination to make exceptions from these principles.
3. Consultation
3.1 Within government - The draft regulations have been the subject of discussion and internal consultation with the Directorate of Planning and Environmental Appeals, Historic Scotland and Transport Scotland. Various individual points have been discussed with other relevant parts of the Scottish Government.
3.2 Wider consultation - Prior to the passage of the new Planning Bill, the Scottish Executive ran a number of consultation exercises relevant to the content of these draft regulations.
- The 'Review of Strategic Planning' in June 2001 first proposed the introduction of strategic development plans and that these should be subject to mandatory examination and signalled the move away from an adversarial process.
- A consultation on 'Modernising Public Local Inquiries' in 2003 focussed mainly on development management, but included discussion of development planning, and many of the issues raised with regard to development management are also of relevance to development planning.
- 'Making Development Plans Deliver' in April 2004 again consulted on the proposal that appointed persons should have discretion over the style of examination and which issues should be heard orally.
- The 'Modernising the Planning System' White Paper in 2005 included discussion on how to make the examination of development plans more efficient, transparent and accessible.
4. Options
4.1 Some principles for examinations have been set by the 2006 Act, for instance the mandatory nature of examinations where there are outstanding representations on the plan, and the discretion for the appointed person to decide on the form of the examination, and therefore what will be heard orally. The scope to consider options is therefore necessarily limited. The key areas where choices were to be made relate to:
- Scope of Examination - The draft regulations limit the matters to be assessed to matters raised in representations on the plan. This contrasts with the approach in England where reporters are asked to undertake a wider 'test of soundness' of the plan, i.e. to test the plan against various criteria even where no representations were made on that topic. We also considered listing some specific matters that the appointed person should assess, e.g. compliance with the National Planning Framework, but rejected these approaches as acting against the goal of moving through the examination stage quickly. Our approach places more responsibility on the Scottish Government itself, the key agencies and other stakeholders to raise any issues of concern in duly-made representations.
- Treatment of representations - We envisage the appointed person drawing conclusions and making recommendations on the issues raised in representations rather than on each individual representation. This approach may make it more difficult for individual members of the public to access the appointed person's findings on their particular representation, but has been proposed in order to expedite the examination process.
- Limiting issues to be assessed - We considered further limiting the scope of the examination by allowing planning authorities (in the case of LDPs) or Scottish Ministers (for SDPs) to direct appointed persons only to assess certain of the issues raised in representations. While this could have accelerated the examination stage, we felt that it would have removed transparency and objectivity from the process. Members of the public have a reasonable expectation that the issues they raise in representations will be considered by an independent person.
5. Costs and benefits
Sectors and groups affected
5.1 The principal people to be affected by these draft regulations will be those who may potentially wish to make representations on a proposed development plan. Among the business and voluntary sectors, these are likely to be companies and organisations with a particular interest in the development and use of land, for instance housebuilders, housing associations and amenity organisations. Other groups who are currently extensively involved in local plan inquiries are professional consultants e.g. planning, transport or landscape consultants, and the legal profession.
Benefits
5.2 We anticipate that our proposals will bring significant savings to businesses and voluntary groups seeking to make representations on development plans. The greater reliance on the content of the original representation, greater use of written representations, and less use of formal inquiry sessions should bring about significant savings in terms of professional and legal fees. Overall, a quicker examination process will contribute to a national framework of more responsive and up-to-date development plans. These in turn should be a positive tool for efficiently delivering the development the country needs and the certainty that developers and the wider business community expect.
5.3 We expect broadly the same number of LDP examinations to take place per year as local plan inquiries take place currently (around eight). But given the requirement for all plans to be reviewed on a five-yearly cycle, we can expect these to have a wider geographic spread and for around a fifth of all businesses in Scotland to be located in the area of a plan undergoing examination in any one year. Businesses that wish to engage actively in every plan may therefore be involved in more examinations than at present. But this is unlikely to bring extra costs given the streamlined procedures that are proposed, and will also bring more opportunity to influence local planning policy.
5.4 The consultation on Modernising Public Local Inquiries elicited 14 responses from the business sector and 13 from the voluntary sector. The limited outright opposition to the use of hearings in SDP examinations came principally from the development industry. The key concern was that the hearings procedure did not permit a robust test of policies and the assumptions and issues underlying them. A number of other relevant suggestions were made. The most significant of these was simply the need to speed up plan making so that plans were kept more up-to-date. At the time, the Executive noted that its proposals had the potential to reduce inquiry costs and provide better control over expenditure. A Regulatory Impact Assessment was not therefore prepared at the time because the Executive took the view that there should be no adverse impact as a consequence of the proposals for business, charities, the voluntary sector or the public.
5.5 63% of the business respondents to the 'Making Development Plans Deliver' consultation agreed that the process for the approval of strategic development plans (including the examination process) would be quick and transparent.
Costs
5.6 No additional financial costs have been identified. The draft regulations aim to simplify current practice and reduce the number and scale of procedures to be gone through by parties seeking to make effective representations on development plans. Individual companies and voluntary organisations will, by virtue of the Act, lose their automatic right to be heard at examinations, but it is not considered that this will impact disproportionately on these sectors.
6. Small/ Micro Firms Impact Test
6.1 No specific information is available, or research undertaken, on the impact of these proposals specifically on small businesses. However, the existing inquiry system often demands a significant outlay of time and funds by objectors, so the use of simpler, faster and more transparent procedures should reduce costs for all businesses, and mean that small companies are not disadvantaged in comparison with better resourced firms.
7. Legal Aid Impact Test
7.1 The impact of these regulations on the legal aid system should be minimal. Civil legal aid will not be available for legal representation at planning examinations. It will remain available for appeals to the Court of Session on points of law but there is nothing to suggest that the regulations will increase the likelihood of that. Initial Advice and Assistance under Legal Aid will still be available to enable eligible individuals to receive advice from a solicitor concerning a planning matter. The new planning examination system is, however, intended to be less legalistic in its operation. Its introduction should not, therefore, increase the requirement for legal advice for individuals engaging with it.
8. "Test Run" of business forms
8.1 These draft regulations do not contain business forms.
9. Competition assessment
9.1 The draft regulations are not considered to have any competition impacts.
10. Enforcement, sanctions and monitoring
10.1 The regulations will have the strength of law and so the proper exercising of the proposed duties contained in them can ultimately be tested in the courts. The principal responsibility for the proper running of an examination will lie with the particular appointed person involved. He will be appointed from the Directorate of Planning and Environmental Appeals under the Minister for Transport, Infrastructure and Climate Change. The Scottish Government continually monitors development plan progress, and so if the expected reduction in the time taken to hold examinations does not materialise this should become apparent. The Planning Directorate also liaises closely with local authorities and representatives of the business community, and so the Government will be made aware of any dissatisfaction with the way the new examination system is operating.