Introduction
The Modernising Planning Appeals consultation paper sets out detailed proposals for change to the planning appeals system, including three sets of draft regulations on schemes of delegation, local review and appeals procedures. Also included were a series of 15 consultation questions relating to these regulations and other elements of the consultation paper. These formed the basis of the consultation exercise conducted between February and May 2008, to which a total of 106 responses were received. Craigforth were commissioned to conduct a detailed analysis of all responses received; findings are summarised below.
Main Findings
- In addition to specific points raised in relation to each of the three sets of regulations, a number of overarching themes have emerged.
- The independence and impartiality of decisions was the most significant theme for a number of respondents. This was primarily raised in relation to local review regulations, specifically the extent to which a local review body can be independent of initial delegated decisions.
- Consistency of approach to delegation, local review and appeal was also a key issue for many. There was some difference of opinion on the extent to which regulations should allow local flexibility in approach, but for the majority of respondents consistency in the application and interpretation of regulations was a significant consideration. This is reflected in requests for Government guidance on many aspects of regulations.
- Transparency and fairness were the other key themes emerging. It was suggested that maximising transparency in the system could help to demonstrate independence of the system, and to maintain confidence in the system. There was also a perceived need for clear delegation criteria and reasons for key decisions in the appeal process.
- Specific views expressed in relation to schemes of delegation were broadly positive. The majority agreed with the broad scope as proposed in the paper although some concerns, most significantly around the definition of key terms, links to the Planning Hierarchy and delegated refusal where contrary to the Development Plan. There was general agreement with the proposed approach to adopting schemes, although again some specific issues were raised and views were divided on the requirement for local consultation.
- In terms of local review regulations set out in the consultation paper, views were divided on the invitation of third party comment. There was broad support for the proposed local review body size and review timescales, although some felt regulations should permit greater flexibility. However, it was the independence and expertise of local review bodies that was the primary concern in relation to this set of regulations.
- Views were also divided in relation to additional third party comment at the appeal stage. Most expressed broad support for determination of the appeal method by Ministers, and there was general agreement that the overall approach to appeals was more proportionate.
Background
The Scottish planning system is undergoing significant modernisation to create a system which is efficient, fit for purpose, inclusive and which fosters sustainable development. This represents the planning system's most considerable overhaul in more than 60 years.
The aim of modernisation is to promote a system that is positive and dynamic and which facilitates the Government's overall purpose of increasing sustainable economic growth. An important aspect of modernising the planning system is improving efficiency and ensuring that the system responds proportionately to proposals that come before it.
The White Paper Modernising the Planning System published in 2005 led this agenda by setting out a wide package of measures to realise the aim of modernising planning in Scotland.
The Planning etc. (Scotland) Act 2006 introduced the necessary changes to primary legislation, on which a succession of proposals for implementing secondary legislation and associated guidance have been brought forward.
The Modernising Planning Appeals consultation forms part of this wider work, and is one of a series of recent and current consultation exercises being undertaken to develop required secondary legislation.
The Consultation
The Modernising Planning Appeals consultation paper sets out detailed proposals for change to the planning appeals system.
Core to the changes proposed through the consultation paper are three sets of draft regulations on schemes of delegation, local review and appeals procedures. A series of 15 specific consultation questions were included, relating specifically to these regulations and other elements of the consultation paper.
Scheme of delegation regulations require planning authorities to draw up a new scheme, with elected members focussing on the most complex and controversial cases. The intention is that greater use is made of delegation, and that officers take the full range of decisions on applications for local development unless there are clear reasons why they should not. These reasons include where applications are significantly contrary to the development plan, involve EIA development, have attracted a significant level of objection or where the planning authority has a financial interest.
Local Review regulations propose that where an applicant is dissatisfied with a delegated decision, or the failure to take one, they will be entitled to require the planning authority to review the case. This is a significant change that must not reduce the quality of examination. Local review processes should adhere to high standards, members should be fully trained, clear timescales should be adhered to and clear reasons given for decisions. Crucially, the local review body must demonstrate independence from the original decision taker.
A 3 months timescale for requesting review is proposed. Third parties would not be invited to make additional comments. Each review body should comprise 3 to 5 elected members, with a wider pool of trained elected members to be available when conflicts of interest arise and timescales for coming to a decision have been altered.
Appeals regulations propose a reduction in the timescale for requesting appeal to 3 months. The method of examination for an appeal would be decided by Ministers. The introduction of new material would be restricted to frontload the system and ensure information at appeal stage is largely that considered at the time of original determination. While precognitions will be retained they will be restricted to a length of no more than 2,000 words.
The consultation period ran from February to May 2008, and a total of 106 responses received.
Findings
Comments made by consultation respondents in relation to proposed regulations have varied considerably in content and force. Broad support is evident for most elements of the proposed regulations, notwithstanding some significant concerns raised.
Key Themes
Over and above the specific - often practical - points raised in relation to each of the three sets of regulations, a number of key themes have emerged.
- Independence and impartiality of decisions was the most significant theme for a number of respondents. This was raised primarily in relation to local review regulations, and specifically the extent to which a local review body can be independent of the delegated decision. Indeed for many this was the most significant concern raised, and some felt the issue could have a negative impact on confidence in the system.
- Consistency of approach to delegation, local review and appeal - was also a key issue for many. There was some difference of opinion on the extent to which regulations should allow local flexibility in approach. For example businesses/developers were more likely to prefer a highly standardised approach, while planning authorities and others often highlighted the need to tailor regulations to local circumstances. However for those either side of this argument, consistency in the application and interpretation of regulations was a significant consideration. This is reflected in requests for Government guidance on many aspects of regulations (eg delegation criteria, operation of local review bodies, etc).
- Transparency and fairness were also key emerging themes. This linked with concerns around the independence of local review; some felt maximising transparency could help to demonstrate the independence of the system and potentially maintain confidence in the system. The importance of transparency was also reflected more widely in suggestions that clear delegation criteria and reasons for key decisions in the appeal process are required.
Schemes of Delegation
Views expressed in relation to regulations on schemes of delegation were broadly positive. Most agreed with the broad scope as proposed in the consultation document, although specific suggested modifications to criteria for delegation were relatively common.
In terms of the practical implementation of schemes, respondents were divided on the extent to which local consultation should be required - planning authorities tended to be opposed to consultation on schemes of delegation.
Most broadly agreed with the proposed approach to adopting schemes, although again a number of specific issues and suggestions were raised.
Themes of consistency and transparency were highlighted in relation to the criteria for delegation proposed in regulations. Specifically, concerns were raised around the definition of key terms such as "significant body of objection" and "significantly contrary to the Development Plan". There was a perceived need for further guidance to aid interpretation, although some difference of opinion was evident around how such guidance could best resolve any lack of clarity around these terms.
Also relating to the scope of delegation, some raised concerns around linking delegation to the Planning Hierarchy. It was suggested that cases of up to 100 units were too significant for delegation, and that criteria should be based on the likely local impact of a development more than its place in the Hierarchy.
Many suggested that criteria for delegation should be refined to permit delegated refusal of applications which are contrary to Development Plan policies. It was noted that excluding such cases would result in less delegation for some planning authorities.
Although views were divided on the requirement for local consultation on schemes, there was a fairly common suggestion that this could at least be recommended as good practice.
Local Review
In relation to local review, respondents were somewhat divided on the extent to which third party comment should be invited. Most felt this should be permitted in controlled circumstances, specifically where appellants introduce new material or raise new issues.
There was a common view that additional third party comment should be permitted at review where appellants introduce new material - transparency and fairness were key themes here.
Respondents were broadly in favour of the proposed local review body size, although it was suggested that regulations should permit greater flexibility for planning authorities to set this. Review timescales were also broadly supported, although again some suggested some degree of modification.
The independence and expertise of local review bodies was the primary concern in relation to local review regulations. Some objected strongly to the principle of local review bodies, but others focused more on suggesting specific provisions to address these concerns - for example appropriate training and support to review bodies.
It was suggested that the timescale for requesting a review carried a significant risk of increasing the volume of reviews requested. Some felt that available resources would be insufficient to process any such increase, and the resultant backlog of cases could damage confidence in the system.
The timescale for completing a review was also felt by some to be insufficient, particularly in more complex cases. Again there were concerns that confidence in the system could be damaged if review bodies failed to meet timescales in a substantial number of cases.
Planning Appeals
Views were again divided on the invitation of third party comment at planning appeal, but most felt this was warranted in specific cases (eg where new material or new issues are raised).
Most felt that the overall approach to appeals was more proportionate. There was also general agreement with proposals for Ministers to determine the method of examination, although safeguards were suggested to demonstrate that appellant and planning authorities preferences are considered.
On third party comment there was a common view that additional comment should be permitted where appellants introduce new material. Again transparency and fairness were key themes.
Transparency and consistency were also key issues raised around Ministers determining the method of examination. Most agreed with proposals, but stressed the need to take full account of the view of all parties and for clear reasons to be given for the final decision. Nevertheless, a minority clearly felt that the "right to be heard" was significant to appellants and should not be removed.
Significant concerns were raised around the potential impact of front loading the appeal system, specifically that applicants will front load initial applications with potentially irrelevant detail. The likely resource implications for developers and planning officers was highlighted.
Comments in relation to reduced planning appeal timescales reflected concerns around local review, that a potentially significant increase in the volume of appeals was likely.