DEVELOPMENT PLAN EXAMINATIONS
68. Sections 12, 12A, 19 and 19A of the Act, and regulations 18 to 23 deal with examinations. Examinations are intended as the principal means of independently testing the issues arising from representations on proposed strategic development plans ( SDPs) and local development plans ( LDPs). They should:
- be succinct and proportionate, and so take significantly less time than the outgoing process. Scottish Ministers expect the process from appointment to reporting normally to take around 6 months, and rarely to exceed 9 months;
- be focussed on the appointed person seeking out the information they feel they need to reach conclusions on the matters at hand;
- examine the issues raised in representations rather than responding to each individual representation; and
- ensure the process is understandable and transparent to the public.
APPOINTMENT OF A PERSON TO EXAMINE THE PLAN
69. Scottish Ministers must serve notice of the appointment of the person to examine a SDP or LDP on the SDPA or planning authority respectively. The appointment of the person to examine the plan is to be advertised in a local newspaper, and those who made unresolved representations (i.e. those that have not been withdrawn or taken account of in modifications) are to be notified, by Scottish Ministers in the case of SDPs, and by the planning authority in the case of LDPs. The SDPA or planning authority are to advertise the appointment in local libraries. This advert and notice should also include information on where documentation connected to the examination, including the summary of unresolved issues, can be viewed.
70. A key principle of the revised examination procedure is that, as far as possible, the appointed person should be furnished with all the information required to reach conclusions and recommendations at the outset. If they have not already done so, regulation 20 therefore requires the planning authority/ SDPA to supply the following material to the appointed person within 14 days of being notified of their appointment:
- A summary of unresolved issues;
- copies of the unresolved representations;
- the environmental report;
- the proposed action programme;
- the monitoring statement; and
- the participation statement current when the proposed plan was published.
Any supporting productions should also be submitted at this stage, but these should be concise, proportionate and limited in number. It would be wise to engage with the Directorate for Planning and Environmental Appeals before formal submission of the summary of unresolved issues (e.g. by sending draft committee reports), to ensure that it is fit for purpose.
71. The summary of unresolved issues is to group the representations into a smaller number of issues. It is to:
- Number and list all the unresolved representations and name the people making the representations;
- Include a summary of the issues raised in the representations;
- Include the authority's reasons (generally expressed in less than 800 words per issue) for not modifying the plan in regard to each issue; and
- Be arranged, so far as practicable, so that the issues appear in the same order as they are set out in the plan.
A form for the summary is included as schedule 4 to the regulations.
72. There is no provision for those who have made representations or the planning authority/ SDPA to submit any further material to the examination beyond this unless required to do so by the appointed person. This important shift of emphasis reinforces the front-loading of the process, ensuring that the appointed person, the planning authority and other interested parties have the relevant information up-front to inform the examination of the plan. It will be important too in meeting the requirements for strategic environmental assessment that full information on sites and alternative options is submitted early and not held back until the later stages of plan preparation or even the examination.
EXAMINATION OF CONFORMITY WITH PARTICIPATION STATEMENT
73. Before considering the general issues raised in representations on the plan, sections 12(2) and 19(4) of the Act firstly require examination of whether the authority has consulted on the plan and involved the public in the way they said they would in their participation statement. In carrying out this assessment, Scottish Ministers envisage that the appointed person will only refer to existing published documents such as the participation statement itself, the authority's statement of conformity with this, and any representations relating to the authority's consultation and public involvement activities. They do not expect any additional evidence to be routinely invited on these matters because we are reluctant to create an opportunity for delay.
74. The procedure for when the appointed person finds that an authority has not acted in conformity with their participation statement is set out at paras 85 to 88 below.
SCOPE OF EXAMINATION
75. Regulation 21 limits the scope of matters to be assessed in an examination to issues raised in representations. These issues will be set out in the summary of unresolved issues prepared by the local authority/ SDPA. The appointed person would have the ultimate ability to add to or redefine the issues to be assessed, but at all times these must be limited to issues raised in the original representations.
76. Regulation 21 also allows examinations into SDPs to assess:
- alternative proposals submitted when the planning authorities constituting the SDPA have been unable to agree on its content; or
- any matters highlighted by the Scottish Ministers in appointing the person to examine the plan.
77. Scottish Ministers' intention is that if any individual policy or proposal in the plan is subject to representations, then this will generally be dealt with as a separate issue. But if multiple representations are made on one policy or proposal, the appointed person may choose to deal with these as a single issue. Regulation 21 is also intended to prevent the scope of the examination spreading to become a wider test of the soundness of the plan.
78. Scottish Ministers intend the appointed person to, within the bounds of the issues raised in representations, primarily examine the appropriateness and sufficiency of the content of the proposed plan. Only if this is insufficient or inappropriate should they consider other sites or approaches. They are not tasked with making the plan as good as it can be, but with modifying those parts that are clearly inappropriate or insufficient. The appointed person should generally not recommend modifications to parts of plans that have been examined in previous examinations or rolled forward from previous plans, unless circumstances have clearly changed.
EXAMINATION PROCEDURE AND FURTHER REPRESENTATIONS
79. In a limited number of cases, the appointed person may feel that they do not have all the information they need to make a proper assessment of an issue. Regulation 22 therefore allows them to, at any stage, request further representations or information from any person. Such requests are not therefore limited to the authority and people who made representations, but could be extended to e.g. key agencies.
80. There need be no link between the importance of an issue and whether the appointed person seeks further representations on it. There may be issues of great significance where the appointed person feels they have all the information they need to reach a conclusion without any further input. Conversely, they may feel unable to make a recommendation on a relatively minor issue without further information.
81. As well as determining on which aspects of which issues, and from which parties, further representations are to be received, the Act is clear that it is the appointed person who will determine the form the examination is to take. The examination may comprise a range of methods including written submissions, hearings and inquiry sessions. The majority of issues are expected to be dealt with without any need for further information to be submitted, but where further evidence is requested, this will normally be in written form. Where an oral session is required, this will normally follow the hearing format rather than formal inquiry sessions. Different aspects of individual issues may be dealt with using a number of formats.
POST-EXAMINATION PROCEDURES
82. On completing the examination, the appointed person will prepare a report setting out and giving reasons for their conclusions and recommendations. The report will also set out the appointed person's assessment of the authority's conformity with their participation statement. Scottish Ministers expect the report to include conclusions and recommendations for each of the issues identified at the start of the examination process, but not on each individual representation.
83. The appointed person will then:
- submit the report to the planning authority (in the case of LDPs) or Scottish Ministers (in the case of SDPs);
- publish it (including electronically);
- notify parties who made unresolved representations that the report has been published and submitted; and
- in the case of SDPs, send a copy of the report to the SDPA.
COSTS AND ADMINISTRATION
84. Unlike local plan inquiries under the outgoing system, Scottish Ministers will be responsible for the organisation and administration of the examination. Regulation 23 requires the general costs and overheads incurred by Scottish Ministers or the appointed person in connection with examinations into SDPs (including the appointed person's remuneration and of the venue) to be met equally by the SDPA and Scottish Ministers, and that these costs associated with examinations into LDPs to be met by the planning authority. The intention is that parties' individual costs incurred preparing and presenting evidence should be met by that party. The Directorate for Planning and Environmental Appeals will provide further information on costs and will invoice the authorities directly.