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CHAPTER EIGHT: ISSUES RAISED BY THE CONSULTATION PAPER WHICH WERE NOT THE SUBJECT OF A SPECIFIC QUESTION
8.1 A number of respondents commented on proposals in the paper which were not the subject of a specific question. The proposals which attracted more than one response are considered below.
The right to appeal
In paragraph 14 of the paper the Executive indicated that given it was their intention to increase certainty in the appeal system there should not be scope for altering proposals during their consideration by the Scottish Ministers. The Executive therefore indicated it wished to reinforce the principle that only the development considered by the planning authority could be reviewed on appeal. |
8.2 This proposal attracted comment from local authority, professional and individual respondents. There was strong support for the proposal from the local authority respondents one of which commented:
"To allow such modifications is anti-democratic and prejudices the right of individuals and groups to object."
A law firm also indicated support for this but on the basis that this reflected the current legal position in any event.
8.3 Other respondents had concerns with this proposal. They saw a need for flexibility, so that an applicant could present an improved application on appeal which met objections made by the planning authority or others, or indeed that an applicant could 'downsize' an application. This would ensure that an applicant would not have to start again which would not be good for anyone. Essentially a balance needed to be struck between the benefit of certainty and securing the best outcome.
The decision of the planning authority and grounds of appeal
In paragraph 22 the Executive indicated that there was merit in all of the material that the planning inquiry had to consider being presented in a more focused and structured fashion directly related to the development plan and relevant material considerations as envisaged by section 25 of the Town and Country Planning (Scotland) Act 1997. The Executive therefore indicated that it intended to require parties to structure their evidence and submissions in the context set by section 25. Paragraphs 23 and 25 proposed restrictions on the scope of both the planning authority and appellant's cases on appeal. The restriction on the planning authority's case was designed to ensure that new reasons for refusal were not introduced at the appeal stage. Accordingly the Executive proposed restricting the planning authority's case to (1) their reasons for refusing planning permission, taking account of the up-to-date development plan position and; (2) their view on those material considerations disclosed by other parties such as statutory consultees, supporters and objectors which had a bearing on their reasons for refusing the proposal. The Executive proposed that the appellant's case should be restricted to (1) their reasons for disagreeing with the refusal of planning permission, or grant of permission subject to unacceptable conditions, taking account of the up-to-date development plan position and; (2) their view on those material considerations disclosed by other parties such as statutory consultees, supporters and objectors which had a bearing on their reasons for wishing to set aside the council's decision. |
8.4 These proposals attracted adverse comment from a limited number of local authorities, business, professional and individual respondents. One local authority respondent agreed that the paragraph 22 proposal was a helpful way to focus all parties onto the key issues to be considered by Reporters. However, it also pointed out that "the difficulties inherent in unrepresented members of the public grasping these concepts should be not underestimated."
8.5 The local authority respondents indicated that their concern was that Reporters were also required to consider decisions on the basis of Section 25, and to consider applications afresh. Accordingly, all relevant Development Plan policies and material considerations had to be put to Reporters, regardless of whether they formed part of the reasons for refusal. In addition, the one authority believed that the problem of Planning Authorities adding reasons for refusal was an extremely limited one. One of the local authority respondents saw the restriction relating to the "up-to-date development plan" as being unrealistic as in many cases there was no "up-to-date" plan.
8.6 Commenting on the restriction on the appellant's ground of appeal a business respondent indicated that the proposal was "deeply unhelpful" as it appeared to precluded the opportunity to advance evidence relating to other material considerations which the planning authority might not have considered and which support the appeal such as regeneration and other qualitative factors.
8.7 A professional legal body indicated that the proposal on restricting the planning authority's case would present significant difficulties for local authorities since the reasons given by elected members were often brief albeit based on a report and would require much prescience and greater resources as authorities would be required to anticipate months in advance all the arguments they would wish at an inquiry at a time when they did not even yet know whether there would be an appeal. New matters would be contained in the statement of case and therefore should not disadvantage appellants.
8.8 A lawyer responding in an individual capacity indicated that from a legal perspective this proposal represented a considerable shift from the present position under which an appeal opened up all or any issues for consideration, not simply the grounds for refusal and arguments advanced by the appellant. In law the application was presently treated as if it had been made to the Executive in the first instance and not simply as a review of the planning authority's decision. This respondent urged that there should be a proper understanding of the nature of this proposed change.
Delay due to unavailability of key individuals
The Executive noted that the expectation was that a public local inquiry should continue day by day until it was concluded. On occasion the main parties agreed to a date and did not disclose that key personnel were unavailable and requests were made for adjustments and adjournments to accommodate their needs. The Executive noted that this was particularly unhelpful for members of the public and proposed to reinforce the policy that an inquiry would continue as programmed without interruption and that there would normally be no scope to inconvenience others by accommodating the diary commitments of other parties. |
8.9 This proposal attracted comment from a number of local authority, business, professional and individual respondents. There was limited outright support for the proposal from a local authority, a law firm and an individual. The former commented that
"Tighter programming will make dates clearer and these must be held to or again, credibility of the planning process is brought into doubt."
8.10 The individual drew parallels with the Hutton Inquiry which should that very senior people with huge demands on their time could appear: the key was the certainty of the timetable.
8.11 However, other respondents including a business respondent indicated that flexibility was necessary to deal with the unexpected such as major surgery. It was also noted that for some professionals there was a hierarchy of calls on their time. For example, this was the case with advocates who had to give precedence to appearances in the Court of Session.
8.12 A lawyer responding in an individual capacity questioned whether there really was a problem since in his experience he had never come across a situation where the public had been inconvenienced. Indeed one business respondent indicated that the problem was often with members of the public or interest groups who were unable to appear on particular days which caused inconvenience to the main parties and concluded that
"Reporters must be allowed to use discretion to all parties if unforeseen events make attendance by a witness on a particular day impossible."
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