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GETTING INVOLVED IN PLANNING: ANALYSIS OF CONSULTATION RESPONSES

Question 25a: We think more information should be made available on planning agreements and entered in the planning register. Do you agree?

Question 25b: What level of information should be recorded?

Planning permission may be granted subject to a number of conditions. Authorities may also enter legal agreements, the most common being planning agreements made under section 75 of the current Planning Act. There has been criticism that the making of planning agreements is not open or transparent. While there will be some concern that commercial confidentiality should not be breached in concluding an agreement, we consider that there is a strong case for more information to be publicly available and details included in the planning register.

5.154 Table 5.25 shows the breakdown of responses to Question 25 for each of the main stakeholder groupings. There was again a very high level of support for this proposal with 93% of respondents expressing approval and 2% indicating clear opposition. A total of 5% gave a "mixed" response, which was largely of a non-committal nature. Support for the proposal was consequently, very strong across all stakeholder groups, ranging from 89%-100%, with a relatively small group of queries and concerns coming from businesses.

Table 5.25 Views on the availability of more information on planning agreements

Note: The overall response rate for this question was 80%

5.155 Concern about this issue was confirmed by a substantial body of non-professional responses and was summed up by a comment from a national voluntary body that,

"Many individuals and community groups are deeply suspicious of planning agreements. Some kind of register is necessary."

The need for openness, transparency and accountability was again widely supported and there was almost universal agreement that more information should be made publicly available.

5.156 Several respondents pointed out that information on agreements was presently publicly available from the Register of Sasines, but it was accepted that this was not readily accessible. No local authority felt that there would be a problem in placing information in the planning register, the issue was how much information and whether there needed to be any confidentiality restrictions. A group of community council, voluntary body and individual respondees felt that too much tended to be made of confidentiality. They pointed out that there are agreements other than Section 75 namely; Section 48 and Section 69 agreements which are non-planning agreements. One planning authority drew attention to the fact that not all planning gain was subject to formal agreement. There was a view that the publication of information might encourage authorities to look at other solutions to resolving development impact.

5.157 There were a number of comments about the agreements themselves. One professional body thought that Section 75 agreements were, used excessively, often inappropriately and were administratively cumbersome. Several community respondents thought that the agreements should be subject to normal consultation procedures before they were concluded, and that they should be more strictly monitored. Others felt that they should be banned or replaced by a standard, transparent system of impact fees.

5.158 In terms of the level of information to be recorded in the register - this prompted a significant volume of written responses. Four options were mentioned, and the breakdown of support for these by respondents directly answering the question, was as follows:

Those suggesting some form of summary thought it should be sufficient to permit both a full understanding of the key elements and effective monitoring. The use of concise, jargon free language was again stressed.

5.159 There was a cluster of responses which identified specific elements that should be set out in the register. The factors mentioned were:

• Names of the parties
• Date of conclusion and registration
• Financial arrangements/contributions
• List of any works to be undertaken
• Implementation timescale and any phasing.

RESOLVING OBJECTIONS

5.160 Earlier sections have considered the availability of information on development, and facilitating the making of comments/representations. The final element concerns the process of considering and resolving objections through different mechanisms. Questions 26 and 27 examine the appeal and inquiry process and associated with this is the issue of Third Party Rights of Appeal, on which there were many submissions. Question 29 considers the potential for mediation for resolving planning objections.

Question 26: We think that 6 months for making appeals is too long and suggest that it be reduced to two months. Do you agree?

After planning permission has been refused or granted subject to conditions, appeals may be lodged with Scottish Ministers. At present there is a period of up to 6 months during which such a decision can be made. This can cause uncertainty for third parties who have objected and may have a blighting effect. We think that this period is too long and should be reduced to 2 months, equivalent to the time given for decisions or deemed refusals on applications.

5.161 Table 5.26 shows the breakdown of responses to Question 26 for each of the main stakeholder groupings. Compared with other questions in the consultation document this question had a relatively modest level of support, with 72% of respondents expressing approval. There was clear opposition from 14% of respondents, while 15% gave a "mixed" response. Many of those in the latter category supported an appeal period of between 2 and 6 months. Support for the proposal was concentrated in 4 of the 6 stakeholder groups where approval ranged from 71%-100%. There was, however, significant opposition from businesses and professional bodies, where between 64- 68 % of respondents had concerns.

5.162 There was substantial agreement that a 2-month period was to be preferred in order to reduce uncertainty and speed up the overall process. Six months was seen as generally excessive and 2 months as a reasonable time in which to make a decision. A group of respondents felt that this might be reduced further to perhaps 21 or 28 days, or that a distinction could be made between householder and more complex cases, with the latter allowed up to 6 months in some instances. An alternative position was advocated by some professional respondents who thought that there would be merit in a two tier system - with the broad grounds of appeal notified within 2 months and the full case thereafter. This would require a change in current procedures. The hope was expressed that the time between lodging an appeal and the hearing would also be reduced

Table 5.26 Views on reducing the period for making appeals to 2 months

Note: The overall response rate for this question was 84%

5.163 Opposition to change was largely concentrated amongst businesses and professional organisations. This was for a number of reasons, but a recurrent theme was, as expressed by one business respondent that,

"Reducing the time will increase the number of appeals not reduce it. This is because developers will be forced into quick, unconsidered decisions, and would be likely to err on the side of caution, by appealing decisions to keep their options open. There will also be insufficient time to enter into a constructive debate with the authority, which might resolve the issues without recourse to appeal."

There were also suggestions that more time was needed to get legal and technical advice, or that the present arrangements were generally working satisfactorily.

5.164 A substantial group, representing most of the stakeholder types, took what they considered to be a middle way - suggesting that 6 months was too long but 2 months was too short. Most of this group thought that 3 months would be preferable but some proposed 4 months. Some respondents raised the issue of third party rights of appeal and this is dealt with generally in a later section. In the context of this question, some felt that if it were to be implemented, a period of 6 months would be required to enable the community/individual to establish their case. There were also some views that the whole cost of appeals should be borne by applicant/developers.

Question 27: How can we make appeal inquiries more accessible and less intimidating?

Most appeals are dealt with by written representations and participants are generally satisfied with the arrangements. However, people find the legal and bureaucratic formalities of appeal inquiries a particular concern. They often take place during the day when people are at work, submissions can be lengthy and giving evidence can be intimidating. SEIRU is alert to these problems, and tries to seek solutions where possible.

5.165 This was an open question to which there were, like Question 5, a large number of written responses (258), with stakeholder representations broadly in proportion to their share of overall responses. The need for the topic to have specific in-depth research and a comprehensive review in its own right, and not just as part of the present exercise, were repeated. One respondent felt that SEIRU should not be responsible for this as they were too close to the issue.

5.166 There was near universal agreement that there were problems with the present inquiry system and support for changes to make it more user-friendly. As one national voluntary organisation considered,

"the main obstacles are the unwieldiness of inquiries, bureaucratic procedures, the nature of legal representation and witness intimidation, cost and time, all of which frequently deter individuals and small organisations from taking part. All of these matters require to be addressed."

While it was recognised that there had been recent changes to procedures to make the process easier for third parties, many felt that much more needed to be done.

5.167 It was pointed out that there was considerable overlap between this question and Question 5 which was concerned with Local Plan Inquiries and many of the comments were the same or similar. There was again, a wide range of constructive suggestions for improvement (not always mutually consistent), and rather than repeat earlier comments the in detail the responses have been summarised under a number of key headings in Table 5.27.

Table 5.27: Suggested improvements to inquiry procedures and practices.

5.168 There were some concerns about inquiries becoming too "user friendly", mainly from planning consultants and the occasional business respondent. It was felt that there was a fine balance between ensuring natural justice, the examination of evidence and making the proceedings more accessible. Other respondents considered that there was a need to be able to rigorously test local authorities' decisions, and for this it was necessary to present a full and detailed case, often with reference to a great many documents.

Third Party Rights of Appeal

The planning system in Scotland allows a right of appeal against planning decisions for the applicant, and there are calls to extend this right to third parties. At the moment third parties have a range of opportunities to comment on planning applications and development plans. These need to be made more effective but the introduction of third party rights of appeal give rise to concerns that: (a) there would be greater delay in the planning process; (b) third parties may not be representative of the community as a whole; and (c) there would be significant resource implications. We think these remain compelling reasons for not introducing a third party right of appeal. However, we will monitor developments in case law.

5.169 There was not a specific question in the consultation document on this question although the Executive set out its position on the issue in paragraphs 26-29. (summarised above). The matter nonetheless attracted a good deal of comment from respondents. There were 80 specific representations on this matter, mostly from the voluntary sector and individuals, and all bar 4 (5%) were in support of third party rights of appeal.

5.170 Many respondents expressed great disappointment that there was not a direct question on this matter in the document. There were feelings that the present system was, "unfair", "unbalanced" and "inequitable" as well as being weighted in favour of the developer. These perceived inequalities of rights were considered by some to be a significant barrier to better public engagement in the planning process. There were views that change would raise confidence and encourage higher standards of decision-making. A group of respondents queried whether the planning system could be said to be Human Rights Act compliant without such a change, and that monitoring case law was not a satisfactory way to proceed on a matter of such importance.

5.171 There were concerns that there were no effective remedies for third parties to seek redress in the face of bad planning decisions. Judicial review could not be concerned with the merits of the case, while the Ombudsman could only deal with maladministration. However, one respondent suggested that the role of the Ombudsman could be extended to cover "bad decisions". A number of the objections to third party appeal rights set out in the consultation document were also queried, in particular, the need for third parties to be representative. Others thought that the Executive stance did not fit well with policies on social justice and the First Minister's recent statement about environmental justice. Some respondents also pointed out that, in their view, third party rights of appeal work well in other countries.

5.172 While many respondents appeared to support an unqualified right of appeal, there was also a significant cluster, which considered that this could not be "unfettered" and were prepared to accept some limitations on its scope. Restrictions were suggested both in respect of the parties who might appeal and the type of issue. On the first matter, there was a recurrent view that the rights might only be conferred on community councils, indeed that the right itself should be known as the, " Community Right of Appeal". On the second point, that it should only be exercisable where the approval was contrary to the development plan or where an objection had a " substantial basis".

5.173 There were calls for more research and further consideration to be given to the matter. Alternatively, several respondents suggested that the current rights of appeal could be removed from applicants, in order to create a level playing field and replaced by mandatory mediation. A variant of this was to remove the appeal rights in the specific circumstances of substantial community objection.

5.174 Comments explicitly supporting the Executive's stance came from local authorities, the development industry and planning consultants. Reasons cited for this stance largely followed those in the consultation document - the probability of delay, expense and uncertainty. Some thought that to bring in such a right would lead to many more appeals, others that existing opportunities to make representations were sufficient, especially as it was proposed to strengthen these by measures in the consultation document.

Question 29a: Do you have views on the use of mediation in planning?

Question 29b: When could it be recommended

Question 29c: How could it be funded and arranged?

It has been suggested that mediation, commonly used in business, family and neighbour disputes, might have a useful role to play in planning. For example, at pre-application stage after a planning application refusal, or when there are objections to a finalised local plan. Recent research suggests that the main benefits of mediation might be in householder cases, but there were issues about who would pay for the service. We can see that there are difficulties when one party is a public body with statutory duties. While we think it is too early to suggest any formal role for mediation in planning, we would welcome views.

5.176 Table 5.28 shows the breakdown of responses to Question 29a for each of the main stakeholder groupings. The table does not indicate support or opposition to mediation in planning but whether or not respondents had a view on the subject. Some of those answering "yes" made no further comment, others indicated that they were opposed to mediation. In all 159 written comments expressing a view on the merits of mediation were received, with a broadly similar stakeholder breakdown to Table 5.28, although there was a higher proportion of local authorities (17%) and a lower proportion of public respondents (29%). Half of those in this group supported mediation, nearly a third (32%) did not and 18% had mixed views.

Table 5.28 Views on the use of mediation in planning

Note: The overall response rate for this question was 77%

5.176 The majority view amongst those in favour was that mediation was worth trying as an additional option in dispute resolution and could be extremely useful, although probably in relatively limited sets of circumstances. There were views that it could save time and expense, if appeals and objections were avoided, and it might help third parties better to understand the issues where there were planning disputes. It was considered by some that the process should be discretionary, but consistent across Scotland and that useful lessons could be learned from mediation and dispute resolution in other policy areas.

5.177 Many of those opposed to mediation felt that while this approach was inherent in much of current planning practice there were serious doubts that a more formal approach would bring any added value. Other concerns and comments included:

• Adverse resource implications (most frequently mentioned)
• May compromise statutory duties
• Adverse effect upon performance indicators
• Would add to the complexities of the system/create duplication
• Planning staff do not have the necessary skills
• Not a core planning issue
• Based on wrong assumption that public and private rights are equal
• Many issues simply cannot be resolved

There was also a view that better education on issues, together with neighbour notification and support from Planning Aid Scotland, would be a more preferable approach.

5.178 Those taking the middle view generally considered that there could be potential in the process in certain circumstances, but many issues needed to be resolved. As well as the issues of cost and delay already mentioned, attention was drawn by respondents to a number of operational considerations:

• How would mediation sit in relation to the statutory process?
• Who could request mediation?
• Would there be a time limit on such requests?
• Who would be an acceptable mediator?
• Who would pay?

Consequently, there was very strong support from this group for further research and pilot exercises to develop workable procedures before proceeding further with the proposal. There were also a number of general comments about the desirability of community involvement in pre-application discussions prompted by this question.

5.179 There was also suggestions regarding the circumstances in which mediation might be appropriate. Most frequently mentioned were householder or other small scale/minor applications, followed by applications contrary to policy or where there were " significant differences" between the applicant and the community. Others suggested a case by case approach and where there appeared to be, as one individual put it, "room for manoeuvre" or some prospect of success. There was a cluster of responses urging the use of mediation as early in the process as possible, perhaps even at the pre-application stage. An alternative approach was to try it when other methods had failed or prior to inquiry proceedings. Other circumstances mentioned included:

• Objections to local plans
• Bad neighbour and other sensitive applications
• Before applications were discussed by planning committee
• When recommended by a Reporter

There was again a call by several respondents for further research to define the relevant criteria.

5.180 The final part of the question asked for suggestions regarding the organisation and funding of mediation. There were few ideas regarding organisation, but the most prevalent view was that it needed to be an independent service to gain credibility and trust. However, there were also some views that SEIRU/Scottish Executive or local authorities could provide the service. Other suggestions included the parties involved to arrange it themselves, or, alternatively, the Ombudsman. One respondent had a particular interest in this area and identified the need for a panel of accredited mediators to be established with skills both in planning and mediation this would require a significant training commitment. There would also be a need for a Code of Practice. Further research on these matters was recommended.

5.181 On the issue of funding, there was no consensus amongst respondents with a broad range of suggestions. The main options being:

There was also a view that there should be a scale of charges depending upon the scale of the development and that the issue could be examined as part of the review of fees suggested in question 7c.

OTHER DEVELOPMENT CONTROL MATTERS RAISED IN RESPONSES

Planning Application Procedures

5.182 A number of submissions raised concerns about different facets of planing application procedures. A local amenity society felt that applications were often registered even though all the correct information (drawings and other documentation) was not supplied. One individual considered that applicants should have the written agreement from essential services (water, electricity etc) that these are or can be made available to the application site prior to submitting plans. There was also a cluster of comments from community and individual respondents concerned about repeat applications, and there were views that these should not be permitted until a reasonable period had elapsed. Views on the duration of the period varied between 2 and 10 years.

Control Over Particular Types of Development

5.183 A concern was expressed regarding control over air operations where respondents indicated there appeared to be a gap between the responsibilities of planning authorities and the Civil Aviation Authority in respect of low flying helicopter operations causing noise and vibration. One community council felt that there should be a limit on the number of bad neighbour type developments, which could be approved in any particular area, while another felt that development by utilities should be brought within the scope of normal planning controls.

Decision-making Procedures

5.184 There were a number of representations about planning committee procedures and the need for a consistent approach to speaking rights for third parties and also some suggestions that they should be able to request site visits. An individual thought there was a case to review the composition of planning committees, with less than half of the representation comprising councillors and the balance being drawn from the public, businesses etc. A concern was also expressed by an individual consultee that consent for developments affecting Environmentally Sensitive Areas should not be granted until surveys, undertaken at the correct time of year, had been completed. A local amenity society considered that there should be no need for any reserved matters decisions and that all of the information necessary to determine the application should be available at the time of its consideration.

Duration and Completion of Planning Permissions

5.185 A community council drew attention to what they believed was the possibility of indefinitely extending the duration of a planning consent, where no work has commenced, by obtaining a Certificate of Lawful Use. Their view was that there should be a maximum time limit of 10 years to fully complete any development for which planning consent was granted. A separate, but related, problem raised by a local authority was the absence of any statutory recognition that the terms of a planning permission had been fully and satisfactorily implemented. It was their contention that a focus on satisfactory completion and compliance would send a strong signal that final outcomes are a key part of the whole process, and urged the Executive to initiate research on this as a matter of priority.

Improving Accessibility

5.186 A disability rights organisation recommended that the Executive look at the possibility of introducing a legal duty on planning authorities to require developers to demonstrate through an Access Statement, submitted with their application, how their plans will be accessible and inclusive. They also considered that there would be merit in harmonising development and building control procedures, particularly in respect of disabled access requirements.

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