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CHAPTER TEN: RESOURCE IMPLICATIONS
The Executive noted that its proposals had the potential to reduce inquiry costs and provide better control over expenditure. A Regulatory Impact Assessment was not therefore prepared because the Executive took the view that there should be no adverse impact as a consequence of the proposals for business, charities, the voluntary sector or the public. |
INTRODUCTION
10.1 In general respondents agreed with the Executive's assumption and for the sake of brevity such comments are not rehearsed here although many may be found in other chapters of the report. However, there was some underlying concern that the Executive's assumption was not justified and that there might actually be possible negative cost and other resource implications. These concerns are explored briefly in this chapter.
GENERAL COMMENTS
10.2 In its general comments on the consultation paper a law firm compared the inquiry process favourably with other civil court procedures. In particular the respondent pointed to the Commercial Court procedure in the Court of Session:
"Another court procedure which emphasises prior disclosure and management of the process is the Commercial Court Rules within the Court of Session. In some respects the inquiry process uses many of these procedures of prior disclosure and meetings to coordinate matters before an actual inquiry. However, in our experience, the commercial court requires far more appearances and is perhaps less streamlined than the inquiry process."
Although the respondent did not clearly make a point about the costs of commercial court procedure, the implication of more appearances might well be higher costs. Interestingly the law firm concluded that the inquiry procedure was "a relatively advanced method of dispute resolution which is efficient and also comparatively cost-effective"(emphasis added) .
10.3 Many respondents used their responses to Question Twenty-two as an opportunity to make or repeat general comments made earlier in their responses. Thus, one local authority commented that if inquiries did become more inclusive that would counteract any time and cost reductions which the proposals would otherwise achieve.
Several respondents also 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.
BUILDING ON THE STRENGTHS OF WHAT IS DONE NOW (QUESTIONS 1-3)
10.4 In their responses to Question 1 a few respondents indicated that the various aims were in conflict and might result in increased costs. For example, a local authority body put it this way:
"Some of these aims are mutually exclusive. Achieving one may impact upon others. Achieving certainty may significantly increase costs and making the process easier for the general public may reduce the robustness of the process."
A development industry respondent also hinted at this by indicating that full public participation might lead to an increase in timescales:
"We believe that attention should focus on the time taken to process the appeal, although the need to make the process more transparent allowing it to be easier for the public to be involved is also important. Each of these two issues in their own right are in conflict to each other, as speeding up the process and more people getting involved do not in our opinion go hand in hand. If full public involvement is given then there may be the danger that the process is severely expanded."
The implication here is that costs would also be increased with the expansion of timescales.
10.5 In discussing the proposed qualification to the right of appeal in Question 3 a professional body indicated that
"All the options outlined for qualification are open to interpretation (and political abuse). There will always be exceptions to any criteria established that will erode qualification. The cumulative affect will be to establish the right to appeal through case experience. This will add further complexity to the system and undermine objectives relating to certainty and clarity of process. The SPCF is concerned that qualification will increase time taken to make a decision as it introduces a new hurdle in the appeal process. This will increase costs."
IMPROVEMENTS THAT COULD BE MADE BEFORE THE PLANNING INQUIRY STARTS (QUESTIONS 4-13)
10.6 In response to Question 6 in which the Executive proposed reducing the period for producing full statement of case from 8 to 4 weeks a number of respondents, principally but not exclusively local authorities, indicated that the proposed timescale was unrealistic because of existing workload pressures. This was a typical response by a local authority opposed to the proposal:
"The preparation of a full statement of case for a planning inquiry is an exacting process which must be completed to a high standard in liaison with consultee services and subject to legal advice. Few Planning Authorities have the luxury of diverting staff from normal day-to-day duties during this process and meeting the present 8 week deadline is a significant challenge. Reducing this deadline by 50% would place an intolerable additional burden on Planning Authorities."
10.7 The Executive had asked consultees in Question 7 if they could suggested any other ways of shortening the pre-inquiry stages. Some concern was expressed by a local authority that reducing the pre-inquiry stage might actually increase costs:
"It is not considered that the suggestions presented in the consultation paper are acceptable as a means of reducing the pre-inquiry timescales -indeed in terms of the value of time spent, it would appear short sighted to reduce the preparation time pre-inquiry, when higher costs may be incurred in examining issues at the inquiry itself - or costs may be higher re: quality of decision if issues are not adequately addressed at all."
10.8 In Question 9 the Executive asked consultees if they subscribed to the view that pre-inquiry stages did not give sufficient time for preparation. Although there was virtually no outright agreement with this view, many mixed responses from local authorities and business respondents that any further tightening of pre-inquiry timescales would adversely affect preparation because of resource constraints.
IMPROVEMENTS THAT COULD BE MADE ONCE THE PLANNING INQUIRY HAS STARTED (QUESTIONS 14-17)
10.9 In Question 14 the Executive proposed that preliminary argument should be ruled out at the start of inquiries. However, a local authority warned that whilst this was desirable it was "likely to transfer inquiry time into more lengthy and costly judicial reviews if important procedural points were overlooked."
10.10 The resource implications of a number of the Executive's proposals for reporters were identified in responses to questions 16 and 17. Thus, in relation to the Executive's proposal in Question 16 that the reporter should be given a more inquisitorial role, amongst the key problems identified by a number of respondents in moving towards a more inquisitorial system were the burden on the reporter if s/he were to be undertaking questioning which might leave the parties dissatisfied that their case had not been properly brought out and which might also lengthen proceedings since the reporter would have considerably more work to prepare questions. To get round this problem one voluntary organisation proposed the adoption of the model of the Fraser Inquiry into the Scottish Parliament with the reporter being assisted by independent legal counsel to ensure the burden of an inquisitorial approach could be adequately handled. The same issue regarding the burden on the reporter arose in a number of responses to Question 17 in which the Executive proposed adopting the hearings format where appropriate within inquiries. Managing a hearing was seen as more difficult than chairing an inquiry. There was some support for the use of a panel of three reporters particularly if the issues were complex.
IMPROVEMENTS IN PROCEDURE AFTER THE INQUIRY HAS CLOSED & PLANNING INQUIRIES AND DEVELOPMENT PLANS (QUESTIONS 18-21)
10.12 In answers to Questions 19 and 20 which proposed the use of the hearings format for the public examination of strategic development plans and local plans, respondents again raised the issue of the burden on the reporter. In answer to Question 19, a professional respondent indicated that the reporter might need assistance and an individual respondent indicated that one possibility might be the use of a "lawyer to the Inquiry" who would conduct cross-examination on the reporter's behalf. It was also noted in relation to Question 20 that the hearings format would place a heavy burden on the reporter who would therefore require adequate support to manage proceedings and adequately probe the evidence.
10.13 Question 20 also proposed a requirement being placed on local authorities to use negotiation or mediation to reduce the number of objections to a local plan before the local plan inquiry. This proposal attracted a number of resource-related comments. First, there was some concern expressed by local authority respondents about who would pay for mediation. Secondly, a number of local authority, business and professional and academic respondents also made the point that negotiation could be resource intensive and could be a waste of resources since some objections could never be negotiated away. Another local authority respondent also pointed to a possible lengthening of pre-inquiry timescales:
"It must be recognized however, that introducing formal mediation and negotiation procedures and reporting stages into the Local Plan preparation timescale, is likely to lengthen pre-inquiry timetabling."
A number of respondents, principally local authorities, also made the point that not only would this requirement lengthen the pre-inquiry stage but it would also thus conflict with the overall aims of the consultation paper.
10.14 A number of local authority respondents and a very limited number of business respondents commented on possible duplication of effort which would be a consequence of the proposal in Question 21 to end conjoined local plan inquiries and appeals. For example, a local authority explained that it was
"…concerned that the prevention of this linked approach could have an adverse impact on resourcing for the planning authority, in that it may lead to duplication in the preparation and presentation of evidence."
A developer also noted that its experience with a situation where an LPI inquiry had been conducted separately from an appeal inquiry was not positive in resource terms:
"Having been through an exhaustive Local Plan Inquiry where a residential development site was debated at length, it seems incredulous that within an 18 month period we are repeating the same arguments that we presented at a Local Plan Inquiry. We feel that this represents a waste of resources and is associated with a poorly directed system that fails to deliver social justice to all."
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