Scottish Government

Inquiry Reporters Unit: Review of the Year 2001/02

The Scottish Executive Inquiry Reporters Unit

The Unit is part of the Scottish Executive Development Department. It is located at Greenside Lane, Edinburgh, separate from the remainder of the Development Department, as well as from the rest of the Scottish Executive. The Unit's responsibilities include:

• all planning and similar appeals lodged with the Scottish Ministers
• consideration of parties' submissions on planning applications called-in by the Scottish Ministers for their decision
• non-planning cases such as objections to compulsory purchase orders; objections to traffic regulation orders; harbours, fisheries and pollution cases
• arranging for these cases to be determined by public local inquiry, hearing or by an exchange of written submissions
• supplying reporters to planning authorities to hold a local plan inquiry to consider and report on objections to local plans

Decisions and reports

A reporter is appointed by the Scottish Ministers to deal with each case. In nearly all instances the decision is delegated to the reporter who writes a letter explaining his or her decision and the reasons for it.

The Scottish Ministers recall a small number of planning appeal cases each year for their own decision and a small number of planning applications are also called-in for their own decision. For both recalled appeals and call-ins the reporter prepares a report that sets out the issues that have to be determined, reaches conclusions, and makes a recommendation. The report is then considered by the Scottish Ministers who subsequently issue their decision.

Written submissions, hearings and inquiries

Over 90% of the Unit's casework is dealt with by the exchange of written submissions ¹. Under this procedure a structured and timetabled series of written exchanges takes place involving the appellant, the planning authority and any persons who have indicated their interest. These are considered by the reporter, who inspects the site, generally in the presence of the parties, and then issues his or her decision or a report and recommendation.

In any appeal either the appellant or the planning authority can request to be heard by a person appointed by the Scottish Ministers. In such circumstances either a formal public local inquiry or a more informal hearing is held.

The conduct of public local inquiries is governed by statutory procedure rules ². The inquiry offers the opportunity for the presentation of evidence by the appellant, the planning authority, any other parties involved in the case (such as consultees like SEPA or SNH), and by members of the public. Public local inquiries offer the opportunity for those giving oral evidence to be cross-examined. A reporter holds the inquiry, and either writes a decision letter determining the appeal or (in non-delegated cases) writes a report to the Scottish Ministers making a recommendation for their consideration and decision.

The procedure for hearings is subject to a Code of Practice ³. In such cases the discussion is led by the reporter, restricted to an agenda circulated in advance, following the exchange of statements prepared by all of the participants. There is no opportunity for formal cross-examination. Matters that do not need to be discussed at the hearing are considered on the basis of the parties' written submissions.

Staff resources

Inquiry reporters provide the professional input to the Unit's work, the core of whom are full-time established civil servants. A further group of fee paid consultant part-time reporters is used to accommodate peaks in the appeals caseload, and to hold local plan inquiries. Both groups of reporters work from home.

The Unit's administrative staff organise all of the casework from our offices in central Edinburgh. These staff form casework teams, with individual case officers taking responsibility for specific planning authorities throughout Scotland. During the business year the Unit's resources were stretched by a delay in filling 3 vacancies and by serious illnesses. In total this amounted to a loss of about 16 person months.

Volume of cases 2001/2002

Table 1 shows that there were 484 cases in hand at the beginning of the business year and a further 1,249 cases were received during the year. A total of 1,016 cases was determined: 927 by reporters acting under delegated powers and 89 by the Scottish Ministers or other clients.

Table 1: Volume of cases handled by SEIRU 2001/2002

* Including appeal and non-appeal cases

The number of appeals in hand at the beginning of the year had reduced on previous years as a result of a rise in the number of decisions made in the two previous years. This year about the same number of appeals were submitted, but fewer were decided, and fewer withdrawn, with the result that appeals in hand at the end of the year had risen to 589, close to the level experienced in earlier years. This meant that the Unit started the present business year, 2002/2003, with a proportionately greater workload and even more exacting performance targets.

Types of cases received 2001/2002

Most of the cases dealt with during the year involved planning permission appeals (amounting to 54% of the overall caseload) and appeals related to advertisements (21%). Appeals involving listed buildings and conservation areas and also all types of enforcement amounted, in both instances to 8% of the total. In general terms both the numbers and proportions are very similar to those in 2000/2001. There was a small, but not significant, decline in the number of cases requiring reports to the Scottish Ministers concerning called-in planning applications and compulsory purchase and other planning orders. The number of requests for a local plan inquiry rose from 6 in the previous year (when only 3 inquiries took place) to 15 this year, of which 12 took place, against planning authorities' projections of a total of 22. The trend of increasing numbers of local plan inquiries, and slippage in the programmes proposed by planning authorities, continues.

Table 2: Types of cases received 2001-2002

* Rounded figures

** Includes marine fish and shellfish farms; electricity proposals; flood prevention schemes; nature conservation orders etc

The developments that were considered

The overall number of cases showed little change over the previous year (674 this year compared to 678), but this conceals a number of changes within the categories of development. Domestic householder appeals increased from 101 to 111. Proposals involving the erection of new single houses declined from 170 to 154. The proportion of developments involving 2-9 houses remained unchanged, though the number in a green belt location increased slightly from 2 to 4. The number of appeals involving developments of 10 houses and over declined from 81 to 59. The decline in appeals involving major business and industrial developments (24 to 16) was balanced to some degree by increases in smaller scale proposals of this nature (up from 30 to 53). Similarly, major retailing proposals declined from 11 to 4, but smaller scale retailing proposals, including extensions, increased from 74 to 80. There was a decline in the number of appeals involving hot food shops from 13 to 8. There was an increase in appeals involving other small-scale developments from 83 to 106, relating in part to a rise in appeals involving telecommunications proposals. In overall terms there was a dramatic decline from 25 to 11 in the number of appeals lodged for development within green belts defined in the development plan.

Table 3: Planning permission appeals received 2001/2002

Reporters spent a total of 328 days hearing evidence at public local inquiries or hearings concerning planning appeals, call-ins and orders during the course of the year. Besides many small-scale but individually important cases, major or controversial inquiries were held during the year into:

• residential developments in Dunbar, Glasgow, Rosewell, Menstrie, Penicuik, Kilmacolm, Hamilton, Uddingston, Cambuslang, Gorebridge, Loans, Edinburgh, Troon, Auchterarder, and Dumfries;
• retail developments in Aberdeen, Helensburgh and Motherwell;
• leisure or hotel developments in Dollar, Ingliston, Lamlash, and Aberdeen;
• a waste water treatment works in Rothesay;
• medical facilities in Westhill and Bonnyrigg;
• scheduled monument consent in Moidart;
• transport developments on Islay and in respect of the A92 Dundee-Arbroath, A78 Ardrossan, Saltcoats and Stevenston roads; and
• minerals developments in Elphinstone, and South Harris.

Method of determination and success rates

Table 4 shows the method of determination of cases and the success rates for different categories of case. Success in these tables is generally defined as a favourable outcome for the appellant or applicant, through an appeal allowed, an application permitted, or an order confirmed. As recorded above, the overall number of appeal cases fell during the year. The overall percentage of delegated cases proceeding by public local inquiry or hearing was the same as last year at 8% (70 cases out of a total of 927), but the proportion of successful cases rose from 39% to 47% (33 successful cases out of 70, compared to 33 out of 85 last year). The success rate in delegated written submissions cases also rose from 28% to 32%, giving an overall success rate for delegated appeals of 34%, a rise from 29% last year. As in previous years, the success rate of advertisement appeals (19%) is notably lower than for other cases.

Table 4: Success rates by method of determination and type of case

* Includes marine fish and shellfish farms; electricity proposals; flood prevention schemes; nature conservation orders etc

Each year there is a small number of planning appeals that are recalled for decision by the Scottish Ministers because of their importance. Eight such appeals were determined this year following submission of reports with recommendations, of which 4 of the appeals were allowed.

The number of non-appeal cases dealt with in 2001/2002 remained relatively static at 81, compared to 87 in the previous year. Increased success rates in both written submissions and inquiry or hearing cases resulted in an overall success rate for these cases of 67%, a significant increase from last year's figure of 47%.

Taken together, the Unit handled a lower number of cases (1,016, down from 1,149) but the overall success rate increased to 36% compared to 30% in 2000/2001. No immediate explanation is apparent for these year to year differences and caution is required, particularly when samples are small. It might be speculated that the increased strength of the plan-led system may be discouraging appeals and proposals that are clearly contrary to development plan policies. It remains to be seen whether this represents the start of a trend, or merely a short-term fluctuation.

Local plans

Planning authorities forecast that 22 local plan inquiries would be opened in 2001/2002. In fact 15 local plan inquiries were requested, but only 12 authorities actually committed to an inquiry into objections during the course of the year. The balance of 10 inquiries has therefore slipped; some have yet to take place. There are now very few planning appeal or call-in inquiries that last more than 4-5 weeks whereas inquiries of this length or longer are now common in considering objections to development plans. The forecast indicates that planning authorities anticipate that a very large proportion of the Unit's resources will be available for commitment to local plan inquiries in each of the next 3 years. Reducing the length of development plan inquiries will thus be critical in future years if these expectations are to be met. This must be achieved without compromising either the effectiveness with which objections are considered or the quality of the recommendation.

Table 5: Local Plans 1997/2005

* Includes East Lothian Local Plan, which continued in 1999

** Excludes extensive work by several reporters on the Rural West Edinburgh Local Plan Inquiry, which did not proceed

*** A proportion of the work continues in the subsequent business year but is shown against the year in which it was generated.

Performance in determining delegated appeals: Decisions in 2001/2002

The Unit's efficiency in handling delegated appeals is measured by 5 performance targets related to the most numerous types of cases, and whether the case is dealt with by public local inquiry or by the written submissions procedure. In 2001/2002 the target for planning appeals proceeding by written submissions (the most numerous category) was significantly exceeded, with 85% of cases being determined within the target then applying of 21 weeks. Enforcement notice appeals determined by written submissions also exceeded the target (87% within 25 weeks) in common with 220 advertisement appeals determined by written submissions (86% within 18 weeks). Only 2 enforcement appeals were dealt with by public local inquiry, and both were decided within target (100%). However, of the 49 planning appeal cases that were the subject of a public local inquiry, only 71% were decided within the target. This failure was the result of delay in making inquiry arrangements acceptable to the parties, delayed submissions, legal challenge once the inquiry had concluded but before the decision was issued and, in several instances, the range and complexity of the issues involved.

Table 6: Performance in determining delegated appeals: decisions in 2001/2002

Changes in performance targets and achievements 1996/2002

The targets against which the Unit's work is measured have become progressively more stringent. In this year the target for written submissions planning appeals was reduced by 2 weeks; that for planning appeals by public inquiry by 4 weeks; for written submissions enforcement appeals by 3 weeks; for enforcement appeals by public local inquiry by 4 weeks, and advertisement cases by one week. The failure of the Unit to achieve the target for planning appeals determined by public local inquiry may indicate that the ability to improve overall handling times for this type of appeal is approaching its limit within current administrative arrangements. A consultation on the modernisation of the inquiry system is being launched, which may produce some improvements in handling times, though this is not the only purpose of the modernisation proposals, which are aimed at both enabling planning decisions to be made quickly so that the Scottish economy is not disadvantaged in a time of rapid change and allowing those interested in a development proposal to make their views known and have these views taken into account without being intimidated by the whole inquiry process.

Table 7: Performance targets and performance achievements 1996/2002

Claims for award of expenses

A total of 153 claims for award of expenses was made during this year, only a slight fall from the high total of the previous year (160). However, the overall figure disguises a significant change in the pattern of claims from the previous year where (in 2000/2001) there was an increase of nearly 50% in the number of claims, with a near tripling of the number of claims by planning authorities. By contrast in this business year the number of claims by planning authorities has more than halved from 66 to 31.

Table 8: Expenses claims 2001/2002

Claims by appellants have risen from 92 to 109, while claims by third parties have increased from 2 to 13. There is no apparent explanation for these fluctuations, which appear to represent differences in the types of cases dealt with in the respective years rather than any clear and discernible trend.

Successful claims amounted to 21% of the total, which is also a significant reduction from last year's figure of 32%. Success rates for both appellants and planning authorities were down, in the case of appellants from 27% to 18%, and for local authorities from 39% to 29%. Last year neither of the 2 claims by third parties was successful, but this year 3 of the 13 claims (23%) resulted in awards of expenses. The objective tests for deciding whether the behaviour of any party has been unreasonable remain those set out in SODD Circular 6/1990.

Complaints

During the business year to 31 March 2002 the Unit received 11 written complaints. These covered matters such as: reporters' handling of site inspections and public local inquiries; the choice of inquiry venue; delay in issuing a decision and the quality or appropriateness of that decision; that a condition was open to interpretation; that reporters were not impartial; the lack of consideration given to an appellants' complaint about the council's handling of a planning application; late postponement of a site inspection; the absence of validated plans; and an allegation that 3 ^rd party representations were not given sufficient weight.

The circumstances of all these complaints were investigated and responses issued. Complaints from parties concerned at the delay in issuing a decision and the late postponement of a site inspection received apologies and an explanation of the situation that contributed to these shortcomings. A few complaints were found to have no basis: the council's administration of a planning application, for example, is not a material consideration in the determination of an appeal and there is no statutory requirement, although it is desirable, for the plans stamped as refused by the planning authority to be produced by an appellant. It is our standard practice to consider the measures that the Unit could put in place to avoid any recurrence and that approach was applied during the investigation of each of these complaints.

Court of Session challenges

The number of Court of Session challenges this year was greater than that in 2000/01 but was still within the range of normal variability. There was, however, a slightly higher than usual number of court appeals that were lodged but then withdrawn or abandoned by the appellants. Overall, the number of successful court challenges is still well below the Unit's target of no more than 1% of all delegated appeals determined by reporters.

Table 9: Court of Session Challenges 1996/2002

There were 2 petitions for Judicial Review during the year. The first concerned Blue Circle Industries plc (BCI) challenge of the Reporter's decision to proceed with the determination of their planning appeal relating to land at Deer Park, Dunbar ⁴. BCI had requested that their planning appeal be held in abeyance pending the outcome of the Court of Session challenge against East Lothian Council's adoption of the housing chapter of the East Lothian Local Plan. The Court subsequently refused the petition, finding that the Reporter's discretion had been exercised appropriately and that there was no procedural unfairness or impropriety. The second Judicial Review concerned the redetermination of a listed building enforcement notice appeal. That matter remains before the Court.

Staff training and development

The Unit has continued its programme of training and development for all staff, both administrators and reporters. Short training sessions on making the best use of IT were given to all administrative staff and a number of case officers and their managers also undertook personal developmental training during the year. Reporters attend regular seminars at Greenside Lane designed to contribute to continuing professional development, to disseminate best practice and promote consistency of decision making. These are generally led by reporters for developmental reasons, but we have encouraged external participation where we are able to ensure balance in the contributions, for example by inviting speakers from both sides of the development industry. Reporters also attend externally organised conferences and seminars, including the Town and Country Planning Summer School and the Planning Inspectorate's Annual Training Week, held this year at Warwick University. We continue to provide speakers for external conferences and seminars. We have also continued our commitment to training members of planning authorities, officials and others concerning best practice in planning appeal procedures.

Conclusion

The Unit has achieved a great deal during this management year whilst maintaining the quality standards of which we are justifiably proud. This would not have been possible without the commitment and resourcefulness shown by our administrative staff and reporters and the co-operation and assistance that we routinely receive from appellants, planning authorities and the public. We look forward to developing this constructive relationship in the years to come.

James McCulloch
Chief Reporter
Scottish Executive Inquiry Reporters Unit
Greenside Lane
Edinburgh

February 2003