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CHAPTER FOUR: BUILDING ON THE STRENGTHS OF WHAT IS DONE NOW

Question 1: In order to improve the operation of the public local inquiry process should we be focussing on the time taken to process the appeal or called-in application; the cost, level of certainty about process; and the need to make it easier for the public to be involved, or are there other important matters to be addressed?

4.1 Those who answered 'yes' to this question are those who unambiguously considered that all the issues mentioned by the Executive in the question (time, cost, certainty, need to make it easier for the public to be involved) taken together were important. Only 15% of respondents fell into that category although interestingly there was at least one such response in each stakeholder group. Those who answered 'no' to this question were those who considered no change was required to the current system. Only a tiny proportion, 3%, fell into this category. Both responses involved came from the professional and academic stakeholder group. The vast majority of responses (68%) fell into the mixed category. These were responses which considered that one or more of the issues mentioned by the Executive were important or should have priority over the others. Such responses formed at least 50% of responses from each stakeholder group. The Executive also asked whether there were other important matters to be addressed and a separate category was created for these responses. 15% of respondents overall took the view that the issues mentioned by the Executive were not the key issues but that other issues were more significant. The most commonly mentioned issue was the quality of the decision.

Table 4.1

Note: the overall response rate for this question was 88%.

4.2 Reasons for an unqualified affirmative response were mainly given by local authority respondents. One emphasised that priority could not be given to one of the factors over another:

"The factors identified are all relevant and it would seem illogical to attempt to set priorities by giving more emphasis to one factor over another."

Another local authority emphasised the inter-connectedness of the matters raised by the Executive:

"In looking at the current process, and relevant importance of time taken, cost and level of certainty, the need for public involvement, a combination of all of these or any other matters, it is our view that all three elements are interconnected, and the system would fall short of expectations and obligations if one was focused on, to the detriment of the others."

It was also recognised that striking the balance between these factors was not an easy task. One public body suggested that the balance might already be struck in the right place in the sense that enhancing public opportunities further might only come at the expense of the streamlining of the process. The limited number of 'no' answers here indicated that no change was required as the current system and the balance it struck were appropriate.

4.3 A number of mixed responses indicated that there was a tension between certain of the aims; indeed one local authority responses indicated that it considered some of the aims mutually exclusive:

"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."

4.4 Another local authority argued that the conflict between speed and accessibility could be resolved by using inquiries (ie full public involvement) sparingly in the most complex or controversial cases. In suggesting this it drew upon its own practice in holding oral hearings into applications - a procedure only available in the case of complex or controversial applications. One development industry respondent feared that full public involvement would severely expand the time taken to process the appeal.

4.5 Otherwise mixed responses either indicated (1) that one or more of the factors mentioned by the Executive was more important than others or (2) that while these factors were significant there were also other factors which needed to be considered.

4.6 In the first of these categories of mixed response 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.

4.7 There was considerable commonality in responses falling within the second category of mixed responses mentioned above and those responses falling into the 'other' category. In the former case respondents indicated that there were factors additional to those mentioned by the Executive; in the latter respondents indicated that the additional issues were the priority rather than those mentioned by the Executive. Because of the common ground between these responses they are considered together below.

4.8 In particular the quality of the decision was identified by a range of parties across all the stakeholder groups as being highly significant in addition to or instead of the factors mentioned by the Executive. A local authority made the point this way:

"The prime one is to maintain and, where possible, improve the quality of decisions. This has been entirely omitted from this consultation paper, and should not be sacrificed in order to achieve the other two aims of speed (with its underlying sub-text of cost), and increased public involvement in the planning process. … A 'dumbing down' of procedures will not necessarily improve the quality of decisions."

4.9 Amongst other significant factors mentioned, those mentioned most often were:

• the overall quality and rigour of the decision-making process;
• the need for clear and unambiguous justifications for decisions reached by reporter;
• the role of the reporter which was seen by voluntary organisations as having the potential to make up for lack of professional representation;
• the need for up to date local plans, preparation of which involved much greater delays than inquiries;
• the need for penalties for those abusing the inquiry system (eg by time wasting) or indeed summary dismissal for appeals which were not properly prepared;
• the use of alternative mechanisms including mediation or informal pre-inquiry round table discussions to resolve matters either instead of or as a part of the inquiry process;
• the need for education of or assistance for members of the public so that they could participate more effectively and in a more relevant way;
• the use of new electronic technologies to speed up the inquiry process; and
• the need to address post-inquiry delays on called in applications or non-delegated appeals.

The latter point was put by an individual thus:

"the time taken, post-Inquiry, to deal with called -in applications is notorious. One might save an hour by some change to the Inquiry process, one could easily save a month or much more on called-in applications."

4.10 Other significant matters were mentioned by single respondents. Thus a business respondent explained: "The maintaining of public trust is also important, as much as certainty." A development industry respondent indicated that the balance in the system between public involvement, certainty and delay was already the correct one and that shifting the balance would be unfair to appellants. What was needed rather was actually to encourage public involvement:

"The task is to encourage that involvement as opposed shifting the balance in terms of fairness."

A law firm considered that the real source of concerns about speed, cost, quality of decisions was the performance of planning authorities which in turn was largely a resource issue which needed to be addressed separately from the issue of inquiries. A professional body respondent also raised the issue of resources but at the inquiry stage. Its argument was that given the importance of the planning system for the economic prosperity of the country, the key reform needed was for the system to be properly resourced with administrative support and the use of more than one reporter at inquiries.

4.11 A professional respondent also indicated that shortening the inquiry would not have a significant effect on the time taken but might curtail public involvement which might give rise to a legal challenge and that furthermore, proposals to reduce the scope of public inquiries in England and Wales had been firmly rebuffed.

4.12 Another law firm argued that deformalising the inquiry process was inappropriate because:

"whilst we fully endorse the objective of the Scottish Executive to make the appeal system more accessible we believe that it must properly balance public interest considerations with the need to maintain the integrity of, and confidence in, the planning system, to provide a forum for a full and properly balanced discussion of the relevant issues and thereby to encourage the economic development which is essential to the future of Scotland".

An authority also indicated that the Executive's priority ought to be to cut the number of appeals going to inquiry and the scope and length of the appeals that do go to inquiry although it recognised that this might be difficult with the emphasis in the White Paper, Your Place, Your Plan on increasing public involvement.

Question 2: Should public local inquiries into planning proposals be re-named "planning inquiries"?

4.13 There was broad support for this proposal amongst all stakeholder groups with 53% of respondents supporting it and only 3% expressing clear opposition. Of the 45% "mixed" responses most favoured the proposal but subject to some qualifications notably retaining the word "public" in the name. Most unqualified support for the proposal came from public bodies, business and the public and politicians stakeholder groups.

Table 4.2

Note: the overall response rate for this question was 87%.

4.14 Reasons for explicit support for the change included enhancing clarity and reducing misunderstanding. As one voluntary organisation put it

"Renaming PLIs as Planning Inquiries brings the reason for the Inquiry into

focus and more accurately describes the purpose of the inquiry."

In addition it would be recognition that in practice PLIs are called planning inquiries in any event. As one local authority put it:

"Public Local Inquiries for appeals against refusal of planning permission have been known colloquially as 'planning inquiries' [usually misspelled as 'enquiries'] for many years. It would seem sensible to acknowledge this by formally changing the name."

Furthermore, as noted by one individual respondent, there would be less chance of confusion with other types of inquiries:

"Yes - definitely. Whenever there is a disaster or other issue of public major concern there is currently a demand for a "fully independent public local inquiry". Planning inquiries should never be confused with judicial or semi-judicial processes such as, for example, Piper Alpha."

4.15 However, there were a range of qualifications expressed. Some simply considered that the current name accurately described the process. One straightforward qualification expressed by a number of respondents in several stakeholder groups was that the name should reflect the different types of planning inquiries. As one professional organisation put it:

"... Further clarification of the title could be achieved by focusing on the subject of the inquiry in brackets. For example, a planning inquiry on a local plan would be Planning Inquiry (Local Plan). A development proposal inquiry would be Planning Inquiry (Development Proposal) ."

4.16 Some concern was expressed that new confusion might result. Thus, one local authority indicated:

"No objection in principle. In agreeing to this there is an important qualification and that is to emphasise that the term 'planning' is used in many other situations. Community Planning is one example and with its emergence there has been continuing confusion between that and Land Use Planning."

4.17 A substantial number of respondents across each stakeholder group either expressed concern (in one case to the point of clear opposition to the proposal) about removing the word "public" or suggested its addition to "planning inquiries". As one business respondent put it:

"It is important to ensure that the public involvement element in the inquiry process is not lost. Renaming them "Public Planning Inquiries" may be a suitable option."

Others considered that it was the word "inquiry" that was the problem. Thus, a professional organisation indicated

"… We would also suggest, however, that the word "inquiries" might be reconsidered. If the expression "public local" implies an unrestrained opportunity to influence the outcome, the word "inquiry" implies a higher degree of formality. We would suggest that the term "planning hearings" should be used, generically reflecting firstly the terms of Article 6 of the European Convention on Human Rights. More significantly, it emphasises the preference for the form of hearings established in the Code of Practice as an alternative to public local Inquiries. In the event that a full Inquiry is required, we would suggest the term "formal planning hearing" should be used. The same terminology can be used in relation to (formal) energy hearings, strategic development plan and local development plan hearings."

An individual respondent suggested "audit" or "review".

4.18 More fundamentally some respondents raised the issue of whether a change in title would actually get over a more serious problem of public perception about the nature of inquiries. As one law firm explained:

"It is probably right that some of those involved in inquiries see them as the heart of the decision-making process and if they 'win' the inquiry, they expect to win the decision. It would be helpful to make clear to all those involved that the inquiry is there to provide people with an opportunity to have [their] say and to provide the decision-maker with information. But the decision remains with the decision- maker and the decision may not reflect the weight of opinion at the inquiry. Such a clarification would be helpful but it will not resolve the problem altogether. It used to be said that most people would accept an adverse decision provided the procedure leading up to the decision was seen to be fair. It must be doubtful if that remains true today. If a procedure does not deliver the 'right' decision, then the procedure is likely to be dismissed as a charade. We support the use of the term 'planning inquiry', although we do not think it will do much to clarify the role of the inquiry."

A community council expressed a similar concern in a slightly different way calling for more thorough justification of decisions by reporters:

"Calling an inquiry a Public Inquiry is not a problem but does not address the worries expressed in paras 11 and 12 over public understanding of the system. 'Legitimate public concern' is a material consideration which is not always given weight by reporters and this leads the public to question whether their case has been properly assessed. Only by fully presenting an argued case in a report can the public be satisfied that the decision is justified and acceptable even when it is not as they would have wished."

4.19 A number of responses across the stakeholder groups expressed the view that the proposed change was either unimportant compared with other issues or would have no real effect. One law firm put it thus:

"We have no firm views on this proposal although we do think it is unlikely to have any substantial impact (given that inquiries tend to be called "planning inquiries" in practice anyway) and believe that there are more important concerns about the present system which should be addressed … ."

4.20 To ensure there was a positive effect some local authority respondents suggested that further information on the purpose of the inquiry could be provided. As one explained:

"The Scottish Executive should also issue general guidance aimed at ensuring participants have a better understanding of the nature and duration of an inquiry and the options for dealing with possible objections. This guidance would need to explain the difference between the different forms of inquiry and should be made available on the internet and provided at pre-inquiry meetings. "

Question 3: Should the right of an appellant or planning authority to a planning appeal inquiry or hearing be further qualified? If so, do you have a preference for Option 1, Option 2, or Option 3? Alternatively, do you have other suggestions that might be effective in achieving this objective?

Option 1: Irrespective of whether the planning authority or appellant request to be heard concerning an appeal, the Scottish Ministers could decide, based on indicative criteria, whether a planning inquiry would be held, or whether the appeal would be decided following a hearing, or by an exchange of written submissions; or

Option 2: Where a planning inquiry is requested by the appellant or planning authority, the Scottish Ministers could decide, based on the circumstances of the particular case, whether a planning inquiry is necessary and, if so, determine the issues to be considered by means of oral evidence, with the balance of the matters in dispute being considered by a hearing or an exchange of written submissions; or Option 3: The appellants and planning authority could be required to make representations in support of a request for a planning inquiry. If not accepted, the case would be considered either by an exchange of written submissions or a hearing.

4.21 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. Greatest support came from local authorities (85%) and least from the professional and academic group (27%). The business group also recorded only 43% support for the overall objective. The latter figure included more than half of the development industry respondents. However, only 25% of respondents clearly rejected the proposal outright. The professional and academic (64%) and business (50%) groups were the most hostile to the overall objective albeit the actual numbers in both cases were small. There were only a limited number of mixed responses which varied between "no strong preference" to a acceptance of the proposal but only in relation to smaller scale development proposals such as householder proposals. It should be noted that responses were considered to fall within the 'yes' category to this part of the question if they simply indicated a preference for one of the suggested options in the second half of the question.

Table 4.3

Note: the overall response rate for this question was 88%.

4.22 The response rate for the three options was much lower partly because those who were opposed to the objective overall did not generally then express a preference for one of the options. There was greatest support for Option 3 (26%) in terms of support for a single option although the numbers involved were small. Overall a preference emerged for a mix of options (51%) in all groups bar public bodies although even there 40% of the respondents favoured a mix of options. Although there was no significant majority, a combination of Options 1 and 3 was mentioned by a number of (mainly local authority) respondents.

Table 4.4

Note: the overall response rate for this question was 60%.

4.23 Reasons for supporting the Executive's principal proposal were mainly given by local authorities. Where reasons were given for answers of 'yes' there was agreement with the Executive's view that inquiries should be reserved for "cases where oral examination is required to resolve complex and important arguments." Speeding up decision making and saving of resources were the key reasons mentioned in support of qualifying the right to an inquiry. Several local authority respondents indicated that many appeals which went to inquiries thus using up more time and resources could equally well have been conducted by written submissions. One indicated that

"There is a general misconception by appellants that additional weight is given by reporters to an appeal conducted at a public local inquiry than to an appeal conducted through the written submission procedures. Consequently, there are undoubtedly large numbers of appeals being conducted by means of inquiry which could equally well be conducted by written submissions, at great savings to both the appellant and the Council in terms of cost and time. Clarification as to the equal weight given by the Scottish Ministers to appeals conducted by both methods and the relative benefits of using written submissions procedures for more straightforward cases could do much to reduce the number of appeals being conducted at inquiry."

4.24 Another indicated that "requests for inquiries from appellants will often be driven by confidence in a successful outcome and the benefit of greater scrutiny of evidence which will support a case" which was not a proper or objective justification. In the view of another authority, qualifying the right to an inquiry might also reduce the amount of representation employed and hence reduce the adversarial nature of appeals further with consequent savings of time and money.

4.25 Despite the high overall levels of support for qualifying the right to an inquiry there was also strong opposition to the proposal particularly in the business and professional stakeholder groups with further 'no' answers in the local authority and public and politicians groups. Specifically over half of the development industry respondents opposed the proposal. Clearly the business and professional groups represent appellants and their professional representatives who would be most affected by any change. The reasons for opposing the proposal most often mentioned are discussed below.

4.26 Firstly, the right of cross examination was seen as crucial. This was mentioned by respondents from the development industry, other business, professional and public and politicians stakeholder groups. A planning consultancy firm explained:

"In particular denial of the right to a public inquiry means that the appellant is denied the opportunity to cross-examine witnesses for the planning authority. There are often circumstances in which the opportunity to cross-examine council witnesses is absolutely crucial to the presentation of the appellant's case."

This was expanded on by a planning lawyer responding in individual capacity:

"For instance on quite a number of occasions it has been suggested to me that the evidence of Officer X who is the main witness and who says on paper that his case is based on such and such material can only really be exposed by careful oral examination. For a variety of reasons that kind of argument would be best not aired in exchanges of correspondence."

Neither hearings nor the use of written submissions were seen as providing an adequate substitute for rigorous cross examination in an inquiry.

4.27 Secondly, respondents from the business and professional stakeholder groups indicated that professionally informed appellants (and planning authorities) were best placed to decide how an appeal should be determined both because they would have the best understanding of the issues of all parties and they would also have a full understanding of the merits and demerits of the different processes. A respondent in the development industry group made a similar point that it was the appellant's right to choose the method of appeal. A law firm also indicated that the question dealt with a fundamental right, not a matter of administrative convenience and that a business might legitimately wish to test an authority's decision in public forum by cross examination: "They do not wish in our experience to be denied that right by a decision of a civil servant, no matter how well intentioned."

4.28 Thirdly, a number of respondents from the professional stakeholder group questioned whether there was any evidence that the current system was being abused to any extent since only around 10% of appeals were dealt with in inquiries. A planning consultant put it this way: "In any case only 10% or so of cases are decided by inquiry, which does not seem to suggest an abuse of the right to opt for an inquiry."

4.29 Fourthly, a number of respondents from the local authority and professional groups were of the view that the qualification of the right to an inquiry might be incompatible with the European Convention on Human Rights and would give rise to legal challenges by appellants denied the appeal mechanism of choice. An individual respondent was also of the view that the creation of another layer of decision making would give rise to legal challenges.

4.30 Fifthly, a small number of business and professional respondents pointed to a loss of fairness, transparency and public confidence in the system if it was left up to the Scottish Ministers to decide. A professional planning body respondent from this group went further and 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."

4.31 Sixthly, a professional legal body and an advocate pointed to the significant curtailment of freedom involved in the proposals. The advocate put it thus:

"At its most basic, the planning system is a form of nationalisation of private property. The use of private property is controlled by the state under the planning system. Since the inception of the planning system in the United Kingdom, the constitutional safeguard has been the right to a public inquiry. This is the only way a planning authority is subject to real and serious scrutiny; only by this method is the planning authority required to defend its policies and decisions in public."

The view was also expressed that this proposal placed the balance of power too far in favour of the state over the individual and would not improve the quality of decisions. Furthermore the advocate argued that paradoxically the loss of the right by appellants and councils to a public inquiry would serve only to reduce third party participation at a time when there were proposals to increase third party rights.

4.32 Other significant points made by single respondents included: (1) there was an assumption that inquiries were long elaborate affairs but many actually only lasted a day or two; (2) there was no serious attempt to justify any qualification to the right to an inquiry and indeed the consultation paper omitted any discussion of recent improvements made to streamline the system; (3) there was also an assumption that small scale development was necessarily more straightforward to deal with and should not be the subject of an inquiry when such developments could be complex and important to the landowner in question; (4) given the process was expensive it was not one that appellants would enter into lightly; (5) the consultation paper should also have been candid as to whether there was a cost cutting exercise in the background and if there was, what assurance could the public have that the means of selection of those cases deemed "suitable" for public inquiry would also be driven by budgetary constraints; and (6) the success rate for appeals at inquiry remained significantly higher than those dealt with by other methods and therefore the inquiry system was better than others - at least to some extent - at ascertaining the correct position.

4.33 If there was a concern about abuse of the current system, two proposals were made by those who answered 'no' to this question. Firstly, a development industry respondent suggested that appropriate mechanisms for dealing with the appeal could be discussed with SEIRU which would make a recommendation as to which should be employed. Secondly, a planning lawyer responding as an individual indicated that expenses awards could be made against those who insisted on an inquiry when it was inappropriate to do so.

4.34 The mixed responses to the first part of the question largely indicated no preference on restricting the right of appeal or expressed concern about curtailment of the right to an inquiry but in less absolute terms than those who answered 'no'. However, amongst the voluntary sector and the public and politicians groups a clear theme in the mixed responses was that regardless of whether the right to an inquiry was curtailed third party rights to participate still needed to be taken account of. A voluntary organisation put it this way:

"Regardless of which option is preferred we are concerned that this proposal would not make the process more participative. It seems that only the developer and the Council would be asked their views. … This leaves the general public effectively unrepresented. If the planning process is to be inclusive and participative, then at some point in the process the objectors should be asked their views also."

4.35 Turning to the suggested options there was little overall support for Options 1 and 2 but Option 3 attracted more support and indeed a mixed model attracted most support. Many parties gave their views on all the options. Where support was expressed for option 1 it focused on the option producing a speedier and more efficient decision than options 2 and 3 which might lead to lengthier proceedings. If the option were to be employed then it was suggested that the indicative criteria remain indicative rather than becoming rigid and that the criteria ought to take account of the likely complexities of the issues and the extent to which value could be added to arguments by allowing oral presentations and cross examination. It was also made clear by an individual respondent that where the indicative criteria were not followed a full explanation should be published. Concerns expressed about Option 1 principally focused on the fact it would not allow the parties to make representations; that it could also lead to perception of 2 tier system which might involve discrimination in human rights terms; that there was a danger that it involved centralisation at the expense of local knowledge and circumstances; and that it would be difficult to produce indicative criteria because each development was unique and so much depended on particular circumstances.

4.36 There was more support for Option 2, particularly amongst other public body respondents and to some extent amongst business. It was seen as providing a good balance between using inquiry time for the discussion of major issues with other issues being dealt with by a hearing of exchange of written submissions. Some flexibility might need to be retained if difficult issues were unearthed in the hearing or exchange of written documents. That would minimise costly inquiry time. A qualified Option 2, applicable only to smaller scale developments was also supported by some respondents in the business stakeholder group. Criticisms levelled at Option 2 were principally that it might be difficult to ascertain which parts of an appeal should be dealt with by each method and that it might lead to confusion and procedural complexity. That was seen as possibly being at odds with the aims of the consultation paper. More fundamentally, one individual noted that the risk of political influence and local opinion being suppressed was too great with this option. A law firm also made the point that it might be difficult for the decision-maker to decide "on issues relating to the merits of the application without necessarily knowing the full implications of them." Even where support for Option 2 was indicated one voluntary organisation indicated that there should be consultation with the parties, effectively suggesting a combination of options 2 and 3.

4.37 Option 3 was the most favoured of the options as it allowed the parties to justify why the use of written submissions or hearings was not sufficient. One local authority argued that it:

"allows this justification to be put to Scottish Ministers by either the appellant or the planning authority. This option could be easily extended to third parties if such a right of appeal were to be introduced."

There was acknowledgement that some criteria would need to be set. One individual also indicated that Option 3 enabled charges of putting "the administrative convenience of a centralised body before local interest and access to justice" to be avoided by "putting local views first". The principal criticism made of Option 3, for example by a business respondent, was that it would lengthen timescales.

4.38 Overall there was most support for a mix of the options. A clear majority of each of the business, professional, voluntary organisation and public and politicians stakeholder groups supported a mixed approach with considerable support in the local authority and other public body groups. In particular a mix of Options 1 and 3 received support amongst local authority respondents, the other public body, professional and public stakeholder groups. It was recognised by a professional planning body which supported that combination that:

"Ministers and Reporters must consider carefully whether they have
sufficient information concerning any case before deciding which process
to use for any issue."

Published indicative criteria were seen as essential to ensure consistency. However, it was seen as equally important that parties had an opportunity to make representations in favour of, or against an inquiry. There was some support for a mix of Options 2 and 3, as for example, was expressed by a planning consultancy, involving a hybrid approach to the appeal as long as parties could make representations in advance, perhaps even by means of expressing a preference on a form, on which appeal method they favoured. One local authority considered that a mix of options 1 and 2 was suitable for local plan inquiries but favoured option 3 for appeals because of the need for representations. There was some division amongst respondents who gave mixed responses as to whether it should be for the main parties or the Scottish Executive to determine which appeal method would be employed with business largely favouring the former and professional responses favouring the latter. One mixed response from a business organisation indicated that the current system was suitably robust and that options 1 and 2 would be unacceptable because they restricted the right of the appellant to choose the appropriate appeal route, that Option 3 was unacceptable because it would lengthen timescales but that Option 2 might be acceptable for smaller scale developments. As noted above amongst those who indicated that they had no preference about the qualification of the right to an inquiry a number indicated that third party rights of participation needed to retained in whichever model was adopted. Indeed, one voluntary organisation indicated that Options 1 and 2 were simply imposed, top-down solutions and that while Option 3 permitted representations to be made this would introduce another level of bureaucracy and there was no indication that third parties would be able to make representations. Overall that group favoured the establishment of an environmental court which would decide such matters.

4.39 The key cross cutting themes emerging from the responses on the various options were (1) it was important that the key parties had a right to make representations about the appeal method to be employed; (2) the options appeared to exclude third party input which was seen as problematic; (3) there were concerns that the Ministers would be placed in a position of deciding on the appropriate appeal method without having sufficient information; and (4) there were concerns that the Options might actually be at odds with the aims of the consultation paper because they actually added complexity (Option 2) or would lengthen proceedings (Option 3).

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