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CHAPTER NINE: OTHER ISSUES RAISED BY RESPONDENTS
Question 22: We would welcome views on other options not covered by this paper that could help to make public local inquiries less adversarial but allow them to remain just as robust as the means of taking decisions on major planning proposals.
9.1 A number of respondents simply reiterated points they had made in response to other questions. Thus, for example, 2 local authorities stressed the potential for enhanced use of information technology for ensuring easier access to core inquiry documentation, a point both had made in response to question 7. A number of respondents who had also previously made the point that the Reporter's recommendations in Local Plan Inquiries should be binding in their answers to question 20 reiterated that point in their answers to this question. Other comments have been grouped under theme headings.
General
9.2 Many respondents welcomed the overall direction of the Executive's proposed reforms. However, some sounded notes of caution. Thus some local authority and voluntary organisation respondents indicated that while the proposals would probably reduce the length of inquiries and save costs they would do little to enhance public participation and might negatively impact on the quality of decisions. One local authority also commented that if inquiries did become more inclusive that would counteract any time and cost reductions which the proposals would otherwise achieve. Any proposed changes should also be simple to understand and operate otherwise they might become onerous requirements on planning authorities. A law firm expressed some concern that the proposals did not really address the key problems which lay elsewhere in the planning system and that while encouraging more public involvement was laudable, that must be balanced against "the need to encourage continued economic development". This view was echoed by a developer which indicated that an impression was emerging
"that planning authorities seek to control and regulate development rather than seeking to stimulate and target investment. The private sector looks to the inquiry system to drive out decisions that are rigorous, transparent and determined by an independent assessment of the cases presented. A public inquiry system that engenders a view that its primary objective is to defend planning authority policy positions will weaken public confidence. Whatever changes are driven into the system, they must reinforce a sense of independence and rigor on the part of the Reporter".
9.3 One national voluntary organisation indicated that the key issue was "to ensure an adequate balance of representation of interests in the process". Its view was that while local authorities had historically been responsible for protecting the public good they had increasingly abrogated that responsibility in favour of promoting development interests and not least their own. This meant that new procedures, mechanisms and resources needed to be identified to enhance public interests in the planning process as a whole. Public involvement was currently unfocused and personalised but efforts should be made to;
- "support and promote proactively public involvement that is relevant, focussed and properly informed
- identify and support credible promoters of the public interest that can frame such interest with appropriate expertise and demonstrable financial independence, notably NGOs with established credentials …;
- promote parity between objectors and applicants in all aspects of the planning system, including enhancing the capacity of prospective objectors through the promotion of resources
- establish equality on rights of appeal
- establish a right to call witnesses to ensure appropriate scrutiny of issues."
9.4 A variety of general suggestions were made including (i) less legal representation although it was not explained how this would be achieved and (ii) reporters taking a tougher line on the need to adhere to deadlines. A developer believed that there was a need for proactive advice on inquiries for communities and participants generally although without specifying how this might be achieved. The same respondent also stressed that developers were eager to engage with communities at a very early stage to seek to address concerns and resolve objections.
Local Plans and Local Plan Inquiries
9.5 Aside from renewed calls for the Reporter's recommendations in such inquiries to be made binding, which was seen as the key to enhancing confidence in the inquiries, a number of other suggestions were made. The most significant of these was simply the need to speed up plan making so that plans were kept more up-to-date. In that context one local authority stressed the need for looking at the whole Local Plan making process as a whole and not simply considering Local Plan Inquiries.
9.6 More specific suggestions included (i) planning authorities should have more input into Local Plan Inquiry rules and guidance since they paid for the inquiries; (ii) the planning authority should be required to demonstrate that all reasonable steps had been taken to reach a compromise with objectors prior to objections entering into the hearing or inquiry procedure; and (iii) there was an opportunity for a different style of assessment of objections to be adopted with the reporter auditing Council's reasoned justification in responding to objections, thereby focusing on the conformity of the local plan to an approved structure plan.
Adversarial nature of Public Local Inquiries
9.7 There was considerable comment made on the adversarial nature of inquiries. Some general concerns were expressed regarding intimidation and possible inequality of arms as between third parties and developers. While there were general comments by several developers and business respondents that they supported a reduction in the adversarial nature of inquiries, they also made clear that this should not be at the expense of rigorous examination of evidence where that was necessary. As one developer put it
"Removing opportunities to challenge evidence / test policies and decisions would lead in our view to a system that was unreasonable, unfair and with no transparency."
The ability to cross-examine was seen as a vital part of that process by some respondents. This was also vital for members of the public so that they had an opportunity to question witnesses.
9.8 A small number of professional respondents indicated that the consultation paper proceeded on the basis that an adversarial system was somehow "damaging, intimidating and results in more lengthy inquiries". However, a planning consultancy indicated that;
"… the opposite is the case. Advocates, or solicitors acting as advocates, bring to the inquiry structure and clarity. Their training leads to the avoidance of unnecessary evidence. Many of the flaws in the inquiry process attributed to the adversarial approach are in fact flaws in the procedures or arise because of the conduct of the parties."
Nonetheless an individual respondent pointed to some possible negative impacts of an adversarial approach: "An unfortunate consequence can be collateral damage to subsequent good relations between parties." Mediation was seen as a way of avoiding such difficulties.
9.9 There were some specific suggestions made as to how the adversarial nature of inquiries could be reduced. These included (i) ensuring all those giving evidence did so seated and that the cross-examiner remained seated; (ii) reminders for the reporter and the legal profession that most ordinary objectors had no legal experience; and (iii) dropping the use of adversarial-type language such as "witness" and "evidence" particularly given virtually everything that is said at an inquiry is argument involving forecasting, estimating and speculating.
Role of reporters
9.10 The role of the reporter also attracted considerable comment. The professionalism of reporters was praised by two respondents. Several respondents repeated calls made earlier in their responses for the reporter to have a more inquisitorial role. That was seen as the key to reducing the adversarial nature of inquiries combined with the adoption of the hearing format. It was recognised by some respondents that this would have resource and training implications. The use of more than one reporter or a clerk to the reporter was also suggested to assist this enhanced role.
9.11 The other key proposal made in relation to the role of reporters was that they had to become independent of the Scottish Executive in order to ensure independence and impartiality. One local authority respondent simply indicated that they should become a branch of the judiciary. A professional legal body indicated that the establishment of an Environmental Tribunal was desirable.
Specific proposals for improvement of inquiry system
9.12 A number of specific proposals were made to enhance the inquiry system. First, it was proposed that it would be beneficial for the Scottish Executive to issue guidance as to the style and format of evidence and statement of cases that it found helpful and to identify practices which should be avoided.
9.13 Second, a local authority proposed that there should always be clarification of issues and procedures at start of a PLI. This could help avoid duplication, save time and avoid discussion of topics not of direct or fundamental importance. In addition the proposal would make it easier for third parties to participate and encourage them to do so.
9.14 Thirdly, in relation to precognitions it was suggested that a period should be introduced into the procedures to allow amendments to be made to submitted precognitions on matters of fact. This could be just before the precognition was presented. This would contribute to improved speed and clarity. It was also suggested by a planning consultancy that the requirement to read from a summary precognition inhibited the proper presentation of the case and should be reviewed.
9.15 Finally a local interest group proposed a range of measures to simplify inquiry procedure and make it more accessible to members of the public: (i) the procedure for making objections and representations set out in the Code of Practice needed to be simplified; (ii) the weight accorded to representations from community groups and individuals needed to be clarified, particularly where joint objections were made by more than one individual; (iii) the range of documents and their titles could be simplified; and (iv) the profile of written submissions should be raised to give assurance to those who might not be able or willing to attend that their concerns would be properly taken into account.
9.16 Finally, a local authority raised the issue of claims for costs by developers. They indicated:
"In our experience, developers make a claim for costs at the end of almost every Inquiry. Often considerable Inquiry time is spent in trying to engineer a claim for costs and in evidence bearing on that claim. This can be a complete waste of Inquiry time, particularly where such claims are rarely ever successful. Moreover the test for costs does not appear to be a level playing field. Much higher standards are expected from local authorities than from appellants, even if those appellants are professionally represented. The spectre of costs can also discourage involvement of members of the public in the Inquiry process. For all these reasons, the availability of costs must be further limited. It should also be made clear that waste of Inquiry time on costs claims which have little if any chance of success, may itself justify a claim for costs."
Post inquiry stage
9.17 The key issue mentioned here was the delay either by the reporter or by the Scottish Ministers in issuing the decision letter. Although the need to give attention to such delays was noted by the Executive in paragraph 53 of the paper few respondents acknowledged that and indicated that this issue ought to have been considered by the paper. However one local authority which did note the Executive's views on this indicated
"In this regard the Scottish Executive says 'Our objective is to ensure that recent improvements in case processing times by reporters are matched by the process of Ministerial consideration and decision'. There is undoubtedly a case for a radical change in the process for very large cases to overcome the kind of unreasonable period of uncertainty, blight and distress that has been experienced at Lingerbay."
One respondent indicated that there might be a case for imposing a time limit on the issuing of decisions just as planning authorities were subject to a time limit.
Decision letters
9.18 There were a few comments made in relation to decision letters. One respondent indicated that it would be helpful if these were to be issued as a notice rather than a letter in the same way that planning authority decisions were in the form of notices. The importance of having definitive plans accompanying the decision letter was also raised by two respondents who suggested that a "stamped set of plans" be issued with the decision letter. Quite aside from enhancing certainty by having stamped plans it was seen as important for transparency to have site plans in addition to the written description of the site and its locational context.
Major development projects
9.19 A local authority with experience of a large development project indicated that its experience of that project and the thought of potential inquiries into large renewable energy projects in the future raised serious concerns over the ability of the present system to deal efficiently and effectively with such projects. Although the use of more than one reporter to deal with major projects was one way forward, an alternative approach would be to bring such cases before a Parliamentary Committee of Inquiry:
"All parties could submit their cases in writing before such an Inquiry. Reporter(s) and such legal advisor(s) as deemed necessary could advise the Parliamentary Committee. Each party could be asked to attend the Inquiry to answer any questions that the Committee wished to ask. Scottish Executive officials could also be asked to attend to answer questions. As part of its deliberations the Committee would visit the site and hold a local session to ask questions of any locals who had made written representations but could not, reasonably, attend a Committee Inquiry in Edinburgh. … There should then also be a relatively short period for the Committee to digest its findings and reach a decision."
Enforcement notice appeal PLIs
9.20 One local authority criticised the lack of consideration given in the paper to inquiries into appeals against enforcement notices. The authority indicated that it was
"critical that attention be focused on the procedures and timescales for the determination of such appeals as in many cases it is suspected that the public inquiry procedure may be used as a delaying tactic to allow the operator of unauthorised development or use to continue that use until all procedures are exhausted. In many instances it is felt that hearings set on a shorter timetable may be of greater benefit to the community than public inquiries."
Third party rights of appeal
9.21 Inevitably there was some further comment relating to third party rights of appeal. Some respondents - principally voluntary organisations - indicated disappointment that third party appeals were excluded from the scope of the paper. A number made clear their view that such appeals were necessary to ensure a level playing field between applicants and those affected by the application. One public body which advocated this also advocated enhanced neighbour notification to enable members of the public to participate more effectively. However, one individual did indicate that he considered that the Executive's proposals would reduce the feeling of disadvantage that third parties felt and hence reduce the pressure of demand for a third party right of appeal.
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