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Executive summary
CONTEXT
Modernising Public Inquiries: A Consultation Paper was issued in June 2003 by the Scottish Executive Development Department (SEDD). Responses were invited from stakeholders to 22 specific questions by 28 November 2003.
Copies of the consultation document and easy read booklets were issued in July 2003 to a wide variety of organisations and individuals. The two formats were also accessed by respondents through the SEDD website. The consultation document contained 22 numbered questions and a total of 85 responses had been received by the end of November 2003. The distribution of responses was weighted towards the local authority and other public body groups which accounted for 41% of all returns. Although the responses certainly represent a cross section of interested opinion, the relatively small number of respondents suggests that the extent to which this cross section is more broadly representative must be qualified.
PROJECT OBJECTIVES AND METHODS
The main purpose of the research project was to provide an analysis of comments received to the consultation paper in order to provide feedback, which could inform decisions as to the best way forward in relation to public local inquiries.
Responses were inserted into a consultation database containing text and numerical fields relating to the 6 main respondent categories which had been identified (local authorities; public bodies; businesses and trade organisations; professional and academic bodies; voluntary sector and public and politicians) and to each of the 22 questions. Additional fields were created to cover other points which respondents commented on but which were not raised in the consultation paper. This enabled statistical tables to be created and responses rates calculated, as well as facilitating in-depth qualitative analysis of the responses to each question.
GENERAL COMMENTS (INCLUDING COMMENTS ON THE CONSULTATION EXERCISE)
Most respondents welcomed the opportunity to comment on the issues raised by the Executive and most considered them significant. There was broad support amongst the general comments 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, 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. Moreover, there was some concern at the fact that inquiries were being considered in isolation from the remainder of the planning system and respondents did identify a number of other priorities which they considered merited attention such as the need to speed up the making of local plans and the need to deal with delays at other points in the planning system such as the local authority determination stage and the post-inquiry stage.
Building on the strengths of what IS DoNE now
Question One. In relation to the focus of proposed 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). 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. A small number of respondents took the view that the issues mentioned by the Executive were not the key issues but that other issues such as the quality of the resulting decision were the most significant.
Question Two. There was strong support for the renaming of public local inquiries as planning inquiries although some concerns were expressed particularly about the removal of the word "public" and some also questioned whether the change would really make any difference.
Question Three. There was broad support for the further qualification of the right to a planning inquiry across all stakeholder groups with a clear overall majority in favour of such qualification. However, there was significant concern expressed about possible effects on the right to cross examine which was seen as vital for testing evidence particularly amongst the business and professional and academic stakeholder groups. Some also considered 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.
Improvements that could be made before the appeal inquiry starts
Question Four. There was little unqualified support for the proposal 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 with no unqualified support at all from local authority respondents. What little outright opposition there was to the proposal 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.
Question Five. There was considerable overall support for the proposal that incomplete appeals with the exception of householder appeals be rejected and returned to the appellant with all stakeholder groups except business and professional and academic registering majority support for it. 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.
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 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. Of these the greatest number indicated that a six week period would be more feasible.
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.
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 which included support from all the stakeholder groups with a very small amount of outright opposition. There were a substantial number of mixed responses. 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.
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 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, 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.
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. Some of the limited 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. Qualified answers were generally supportive subject to the reservation that it should not preclude evidence on issues not identified in advance from being led.
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. There were a substantial number of mixed responses particularly from the business and professional and academic stakeholder groups. In particular the possible time taken to reach agreement was cited by respondents providing mixed responses.
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. However, this support principally came from third party groups with limited support from other groups. 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. A substantial minority gave mixed responses which were generally supportive but focused on the period of 6 months being too short or the need for flexibility in particularly complex cases.
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. 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
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. Outright opposition to the proposal was limited and confined to the professional and academic, business and local authority groups. Just under half of respondents overall gave mixed answers which 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 since a variety of issues could arise very late on.
Question Fifteen. There was limited unequivocal support for 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. Most gave mixed responses which 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.
Question Sixteen. Although just over one third of respondents overall supported the Executives proposal to set a more inquisitorial role for reporters outright 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. A fifth of respondents overall were opposed to the proposal with all groups containing at least one negative response. There were concerns about the reporter's neutrality, the need for cross examination by the parties and the likely burden on the reporter. Nearly half of the responses fell within the mixed category. Concerns expressed included 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.
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 with the highest levels of support coming from the public bodies and public and politicians stakeholder groups and the lowest from the professional and academic and business groups. The few negative responses were registered only amongst the business, professional and academic and voluntary stakeholder groups. Concerns essentially focused on whether the process would be sufficiently robust. 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 with other respondents considering that guidance would be sufficient.
Improvements in procedure after the planning inquiry has closed and planning inquiries and development plans
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 under a third of respondents clearly in favour of the proposal and only a fifth 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.
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 with the local authority, other public body, voluntary organisation and public and politicians stakeholder groups all registering significant unqualified support. The very small numbers opposed to the proposal (largely in the business group) 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.
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 with a majority of the other public body, voluntary and public and politicians stakeholder groups in favour. Least outright support came from local authorities. 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 and local authority stakeholder groups. Again there were a substantial number of mixed responses and a tiny number of negative 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.
Question Twenty-One. 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. The limited 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.
OTHER ISSUES RAISED BY RESPONDENTS
Respondents raised a number of issues which were touched upon in the consultation paper but which were not the subject of a specific question. These included the need for flexibility to modify an application at appeal stage; the restrictive nature of the proposals for limiting the grounds of appeal and the scope of the local authority's case 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; and mixed views were expressed about whether or not there should be an inflexible requirement on key personnel to attend inquiries with most favouring the retention of some flexibility to deal with exceptional circumstances.
Question Twenty-Two. Respondents also raised a number of issues which were not touched upon in the consultation paper. Thus, concern was expressed about the Local Plan making system specifically 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. 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
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 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 to 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.
CONCLUSIONS
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. A key concern particularly but not exclusively by the business and professional stakeholder groups was 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, particularly but not exclusively 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 local authority response rate. Although the responses from other stakeholder groups may provide a reasonable cross section of opinion, the low levels of response strongly suggests that the views of those groups cannot be stated with any degree of certainty and the findings of this report are therefore significantly qualified.
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