« Previous | Contents | Next »
Listen
CHAPTER 11: CONCLUSIONS
GENERAL
11.1 Most respondents welcomed the opportunity to comment. There was broad support amongst the general comments made by respondents from all stakeholder groups for an inquiry system that was inclusive, transparent, fair and certain. More respondents commented on the need for a more inclusive and participatory and less intimidating system than in relation to any other objective. The adversarial nature of the system attracted considerable comment with equal numbers indicating that the system should be less adversarial and that the fact it was adversarial was a strength and not something to be worried about. There was considerable concern expressed principally by business and professional respondents about possible limitations on the right to an inquiry and in particular the right to test evidence through cross examination. Considerable comment was also made in relation to delays although it was pointed out that many of the serious delays in the system were at either local authority determination stage or post-inquiry. A few respondents indicated concern that the issue of planning inquiries was being looked at in isolation from the rest of the planning system.
BUILDING ON THE STRENGHTS OF WHAT IS DONE NOW (QUESTIONS 1-3)
11.2 Question one. In relation to the focus of improvements there was little outright support for all the issues mentioned by the Executive (time, cost, certainty, need to make it easier for the public to be involved). However, only a tiny proportion opposed the proposal. The vast majority of respondents in each stakeholder group took the view that one or more of the issues mentioned by the Executive were important or should have priority over the others. There was no absolutely clear-cut preference across the stakeholder groups. Some individuals, business organisations, public bodies, local authorities and one professional organisation prioritised time and certainty whereas some voluntary organisations, local authorities and a professional respondent prioritised accessibility over time and certainty. 15% of respondents overall took the view that the issues mentioned by the Executive were not the key issues but that other issues were the most significant. The most commonly mentioned issue was the quality of the decision.
11.3 Question two. There was strong support for the renaming of public local inquiries as planning inquiries. Most considered it better reflected the nature of the inquiries. There were some concerns particularly about the removal of the word "public" and some also questioned whether it would really make any difference.
11.4 Question three. There was broad support for the further qualification of the right to a planning inquiry across all stakeholder groups with 60% overall clearly in favour of such qualification. Only 25% of respondents rejected the proposal outright. The professional and academic and business groups were the most hostile to the overall objective albeit the actual numbers in both cases were small. Reasons given for opposition were that the right to cross examine was vital for testing evidence, that the appellant was best placed to decide on the most appropriate appeal route and that there was little evidence that the current system was being abused to justify qualification of the right. In terms of the options put forward by the Executive there was strongest support (albeit by no means universal) for a mixed option involving options 1 and 3 with the parties having an opportunity to make representations. Some concerns were expressed about the exclusion of third parties from the process of deciding whether an inquiry or alternative form of appeal procedure was appropriate.
IMPROVEMENTS THAT COULD BE MADE BEFORE THE PLANNING INQUIRY STARTS (QUESTIONS 4-13)
11.5 Question four. In the case of non-determined applications the Executive proposed that the planning authority be required within a 2 week period of the appeal being lodged to indicate whether they would have granted or refused permission together with their reasons for doing so had the appeal not been lodged. This proposal attracted little unqualified support (22%) with no unqualified support at all from local authority respondents. Equally there was very little outright opposition to the proposal (11%) and what there was came exclusively from local authority and voluntary respondents. Nonetheless, there was considerable qualified support from all groups. Principally the qualification was in relation to the timescale or the possible complexity of a particular application.
11.6 Questions five. There was considerable minority overall support for the proposal that incomplete appeals with the exception of householder appeals be rejected and returned to the appellant (49%) with all stakeholder groups except business and professional and academic registering over 65% support for it. There was substantial qualified support (48%). Key qualifications included the opposition to the exclusion of householder development and problems with the assessment of whether or not an appeal was complete or not.
11.7 Question six. There was little outright support overall for the proposal to reduce the present maximum period for production of the full statement of case from 8 weeks to 4 weeks (14%) with only the voluntary and public and politicians stakeholder groups registering significant support and even then on the basis of very small overall numbers. Around one third of respondents opposed the proposal outright. However, the majority gave mixed responses (58%). Of these the greatest number indicated that while a reduced timescale might be feasible 4 weeks was too short. Six weeks was most commonly suggested as an alternative.
11.8 Question seven. Other suggestions made by respondents for shortening the pre-inquiry stages included the enhanced use of information technology for distributing and making documents more readily accessible; consideration as to whether statements of case were needed at all; and greater certainty in the timing of pre-inquiry meetings.
11.9 Question eight. The Executive proposed that all parties to a planning inquiry who intended to lead oral evidence be required to register their intention to do so by a specified date; and also to disclose their case in advance on the same structured and consistent basis. There was an overall majority in favour of this proposal (53%) which included support from all the stakeholder groups with most from public bodies, business, local authorities and voluntary and least from the public and politicians stakeholder group. There was a very small amount of outright opposition. There were a substantial number of mixed responses (45%). Many of these indicated that there should be some discretion given to enable members of the public and community groups to speak without the need for advance registration since the latter requirement might be onerous for them.
11.10 Question nine. Only a single respondent explicitly concurred with the view that the pre-inquiry process set by the Inquiries Procedure Rules did not allow sufficient time for proper preparation. A considerable majority overall (60%) answered in the negative and formed a majority of all stakeholder groups with the exception of the voluntary group. Mixed responses focused on the fact the timescale was presently at the margins of acceptability and that further restrictions would cause problems (a view expressed by many local authorities) and that while the current timescale was generally acceptable nonetheless flexibility needed to be retained in order to ensure that allowance could be made for complex appeals or those involving many parties.
11.11 Question ten. There was substantial minority overall support for the proposal that after statements of case had been lodged the Scottish Ministers should give more explicit guidance, even if no pre-inquiry meeting were held, on the essential issues that they wished addressed in evidence to the inquiry (45%). Only 9% of respondents were opposed to the proposal although some of this opposition was based on principle that it appeared to be a move towards the Executive prejudging the issues whereas many important issues actually emerged from the course of the inquiry. 46% of respondents provided qualified answers. The largest category of these indicated broad support for the proposal subject to the reservation that it should not preclude evidence on issues that were not identified in advance from being led.
11.12 Question eleven. A small overall majority indicated support for the proposal that the Executive should indicate the material that must be considered by the appellant or applicant and the planning authority in order to identify areas of agreement and disagreement and be lodged as inquiry documents in order for the planning inquiry to start as programmed (51%). There were a substantial number of mixed responses particularly from the business (67%) and professional and academic (60%) stakeholder groups. In particular the possible time taken to reach agreement was cited by respondents providing mixed responses.
11.13 Question twelve. There was substantial minority support overall for the proposal that a time limit be set on sisted appeals, so that they expired if the case were not brought to planning inquiry within 6 months of the date on which processing first stopped (45%). However, this support principally came from third party groups. There was limited support from the business (8%) and professional and academic (22%) stakeholder groups. Nonetheless only 12% of respondents opposed the proposal overall with business (23%) and professional and academic (22%) representing the principal sources of opposition albeit based on very low numbers of respondents. The principal reason given by those who responded in the negative to this proposal was that there could be legitimate and necessary reasons for sisting, notably the desirability of awaiting the outcome of a Local Plan Inquiry. 44% of respondents gave mixed responses. Mixed responses were generally supportive but focused on the period of 6 months being too short or the need for flexibility in particularly complex cases.
11.14 Question thirteen. Around one third of respondents overall indicated unqualified support for the proposal that the Scottish Ministers should exercise their powers to recover their own costs and the costs of others where an appeal party failed to proceed, or an appeal was withdrawn, once the planning inquiry arrangements had been made. This support principally came from the voluntary, public and politicians and local authority stakeholder groups. Nonetheless in every stakeholder group bar the public and politicians group there were those opposed to the proposal (17% overall). Some indicated that appeals might simply not be withdrawn and also that the Ministers already had the power to recover costs. Nearly half of respondents gave mixed responses which were generally supportive but qualified in relation to the need to define the criteria such as unreasonable behaviour which might justify the use of such powers and the need for recognition that withdrawal might be for good reasons.
IMPROVEMENTS THAT COULD BE MADE ONCE THE PLANNING INQUIRY HAS STARTED (QUESTIONS 14-17)
11.15 Question fourteen. Just over one third of respondents overall supported the proposal that preliminary argument be ruled out at the opening of a planning inquiry with the public and politicians and voluntary stakeholder groups registering strongest support followed by a substantial number of local authorities. Outright opposition to the proposal amounted to only 13% of responses with the opposition being found only amongst the professional and academic (30%), business (15%) and local authority (15%) groups. Just under half of respondents overall gave mixed answers. Mixed responses were mainly supportive but subject to the qualification that the exclusion should not be absolute and that preliminary argument should be permitted in exceptional circumstances or that while preliminary argument should normally be dealt with at the pre-inquiry meeting nonetheless there would still be a need to permit it at the opening of the inquiry if necessary as such issues could arise very late on.
11.16 Question fifteen. Only 21% of respondents unequivocally supported the proposal that time at the planning inquiry should be programmed more rigorously in advance by reporters, and parties held to that programme witness by witness. However, only 11% were unequivocally opposed. 67% of respondents gave mixed responses. This included all the responses from the business stakeholder group and no fewer than 73% of responses from the local authority group. These mixed responses were mainly supportive but subject to the qualification that such programmes should only be indicative and not prescriptive and that flexibility needed to be retained particularly in relation to cross-examination.
11.17 Question sixteen. Although just over one third of respondents overall (36%) registered outright support for the Executive's proposal to set a more inquisitorial role for reporters, there were widely varying rates of support amongst the various stakeholder groups with no unqualified support at all for the proposal in the professional and academic group. 20% of respondents overall were opposed to the proposal with all groups containing at least one response which was unreservedly negative about the proposal. There were concerns about the reporter's neutrality, the need for cross examination by the parties and the likely burden on the reporter. No fewer than 44% of responses fell within the mixed category. Those falling into the mixed category had a variety of concerns, which were similar to those expressed by respondents who opposed the proposal outright, including the impact on the reporter's neutrality, the resource implications for SEIRU, the impact on the length of proceedings, the need for adequate training and consistency of approach.
11.18 Question seventeen. In response to the proposal that hearings practice be imported to planning inquiries when it represented the most effective means of determining the matters in dispute, there was substantial minority support overall (42%). Greatest levels of support came from the public bodies (80%) and public and politicians (75%) stakeholder groups with very low levels of support from the professional and academic (10%) and business groups (23%). Outright opposition to the proposal was very limited overall (9%) with negative responses being registered only amongst the business, professional and academic and voluntary stakeholder groups. Concerns essentially focused on whether the process would be sufficiently robust to test evidence adequately. Those giving mixed responses were concerned about who would make the decision about the procedure to be followed and criteria that would be used as a basis for such a decision. Many mixed responses also indicated that use of hearings procedure should remain a matter for the parties to agree. Almost half of respondents who dealt with the issue in their responses indicated that statutory procedure rules would be required for hearings if they were to be given an enhanced role. Other respondents considered that guidance would be sufficient.
IMPROVEMENTS IN PROCEDURE AFTER THE INQUIRY HAS CLOSED & PLANNING INQUIRIES AND DEVELOPMENT PLANS (QUESTIONS 18-21)
11.19 Question eighteen. The proposal that the existing Inquiries Procedure Rules should be amended to make it clear that the scope to request that a reporter takes account of new material after the planning inquiry had closed was strictly limited to a change in the provisions of the development plan attracted fairly mixed views overall with only 27% of respondents clearly in favour of the proposal and 20% against. Just over half of the respondents gave mixed responses which were generally positive but indicated that other factors such as new national policy might also need to be taken into account after the close of the inquiry. There was much more support for the proposals amongst the local authority and voluntary stakeholder groups than amongst the business and professional groups. The public and politicians group was split.
11.20 Question nineteen. There was considerable unqualified minority support for the proposal that the hearings format should be employed as a means of examining objections to strategic development plans (41% overall) with 4 of the 6 stakeholder groups (local authorities, public bodies, voluntary sector and public and politicians) all registering unqualified support of over 40%. There was little unqualified opposition to the question (6%) which was mainly centred in the business group. These opposed to the proposal mainly focused on the perceived lack of robustness of the hearings format for testing evidence. Although most mixed responses were generally supportive at least in part many considered that the hearings format would not necessarily be suitable for all aspects of the examination in public and that an inquiry type format would probably be needed in places to test crucial evidence and issues particularly given the high value of interests that could be at stake.
11.21 Question twenty. The Executive also proposed that the process of development planning would be improved (i) by requiring planning authorities to reduce the volume of objections through negotiation and mediation before calling a local plan inquiry; (ii) by adopting the hearing format as the norm for all local plan inquiries; and (iii) by applying other relevant improvements in practice contained in this consultation. There was considerable unqualified minority support for the first part of this proposal overall (43%) with a majority of the other public body, voluntary and public and politicians stakeholder groups in favour. Least outright support came from local authorities which also were responsible for most of the negative responses albeit these were very few in number. Just under half of respondents gave mixed responses. Most negative and mixed responses indicated that there were limits to what could be achieved by negotiation and mediation and that resolving one objection might well lead to new objections. Slightly fewer respondents overall dealt with the second part of the question but more than half indicated unqualified support with very high levels of support from the public and politicians (80%) and local authority (78%) stakeholder groups. Only 4 respondents indicated outright opposition with half of those coming from the professional and academic stakeholder groups. Again there were a substantial number of mixed responses. Most negative and mixed responses indicated that blanket use of the hearings format was not seen as a suitably robust means of testing Local Plan policies and proposals. Few respondents commented on the third part of the proposal but most who did supported it.
11.22 Question twenty-one. Finally in this section, over half of respondents overall indicated unqualified support for the proposal that inquiries into planning appeals and called-in applications be dealt with separately from inquiries that are arranged to hear objections to local plans and from the public examination of objections to strategic and local development plans (57%). The lowest level of overall support (15%) and highest level of outright opposition (46%) was found in the business stakeholder group although the overall level of outright opposition just 15%. Opposition focused on the possibility of having to duplicate evidence for two inquiries. Mixed responses focused on matters such as the difficulties for parties of resourcing separate processes and the need to retain some flexibility which might permit conjoined appeals in certain circumstances.
ISSUES RAISED BY THE CONSULTATION PAPER WHICH WERE NOT THE SUBJECT OF A SPECIFIC QUESTION
11.23 Respondents here indicated that there should be flexibility to modify an application at appeal stage; and that the proposals for restricting the grounds of appeal and the scope of the local authority's case were too restrictive given the requirements of the presumption in favour of development in accordance with the development plan unless material considerations indicated otherwise contained in section 25 of the Town and Country Planning (Scotland) Act 1997 and the fact the law currently required Ministers to deal with applications afresh. Mixed views were also expressed about whether or not there should be an inflexible requirement on key personnel to attend inquiries. Most who commented on this latter point favoured retaining some flexibility to deal with exceptional circumstances.
OTHER ISSUES RAISED BY RESPONDENTS
11.24 Question twenty-two. Generally strong support was indicated for the overall direction of the Executive's proposals. Concern was expressed about the Local Plan making system. Specifically respondents commented on the need to speed up plan making to ensure that plans were kept up to date and a number of respondents made the point that the reporter's recommendations in a Local Plan Inquiry must be made binding. There was general support for a move to a less adversarial system of inquiries subject to the proviso that the less adversarial system should still allow evidence to be robustly tested. There was considerable support for a more inquisitorial role for reporters. A few respondents also supported making reporters independent of the Executive. There was concern expressed that enforcement notice appeal public local inquiries and third party rights of appeal had not been covered in the consultation paper.
RESOURCE IMPLICATIONS
11.25 Although most respondents accepted the Executive's assumption that its proposals would result in cost savings there were some concerns that the process might be lengthened by more participation which would impact on costs; that the proposed shortening of the period for producing full statements of case from 8 to 4 weeks had potentially serious resource implications given existing workloads particularly in local authorities; that pre-inquiry timescales were at the margins of acceptability in terms of local authority workloads; that proposed requirements to negotiate and mediate might also raise costs; and that there might be resource implications arising from the proposed separation of appeal inquiries from local plan inquiries and the possible need duplicate evidence. The impact of the proposed move to a more inquisitorial role for reporters involving enhanced use of the hearings system was also seen as having considerable resource implications for the Executive in terms of providing reporters with adequate support.
OVERVIEW
11.26 There was broad if qualified support for the majority of the Executive's proposals including a move to a less adversarial system which might facilitate greater public participation. Key concerns particularly but not exclusively from business and professional respondents were that the quality of the process and outcome should not suffer as a result of the proposed move to a less adversarial system. The proper testing of evidence was seen as crucial. In relation to pre-inquiry processes there was a significant concern expressed by local authorities that timescales were already at the margins of acceptability and that any further tightening might not be feasible. Concerns were also expressed about taking the system of inquiries in isolation, particularly in relation to development planning where the whole plan making process needed to be considered. Delays in other parts of the planning system, notably at the local authority determination stage and post-inquiry were also seen as being more pressing priorities by some than speeding up inquiries. Finally, it should be borne in mind that of the various stakeholder groups only the local authority responses were truly representative given the high level of local authority responses. The low levels of response from other stakeholder groups mean that the views of those groups cannot be stated with any degree of certainty and the findings of this report are therefore significantly qualified.
« Previous | Contents | Next »