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CHAPTER SEVEN: IMPROVEMENTS IN PROCEDURE AFTER THE PLANNING INQUIRY HAS CLOSED & INQUIRIES AND DEVELOPMENT PLANNING

Question 18: Should the existing Inquiries Procedure Rules be amended to make it clear that the scope to request that a reporter takes account of new material after the planning inquiry has closed is strictly limited to a change in the provisions of the development plan?

7.1 Overall views on this were fairly mixed with only 27% of respondents clearly in favour of the proposal and 20% against. 53% 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.

Table 7.1

Note: the overall response rate for this question was 82%.

7.2 Although most respondents who agreed with this proposal gave no reasons, the reasons cited by those who did were principally the delay that the introduction of such late evidence can cause. Only local authority respondents provided reasons for their views. As one local authority explained:

" Emphatically yes, the introduction of new evidence late in the inquiry process causes undue delay. It is also noteworthy that such late evidence tabled by appellants is often information that was sought by the Planning Authority early in the life of the application to which the appeal relates."

Another indicated that the introduction of late evidence was a tactic used by objectors and the proposal would stop the practice:

"Yes - this would make for shorter timescales after the inquiry - there is a tendency under the present system for issues to be raised and re-raised and for objectors to try any tactic to confuse and complicate proceedings."

7.3 Those opposed to the proposal put forward a number of justifications for their opposition. Principally there could be other material which was relevant including new government policy or significant changes in circumstances which would need to be taken into account. This was a point made by local authority, development industry, business, professional organisation, voluntary organisation and individual respondents. As one business respondent put it

"…there can be other (but only) significant changes to circumstances of which the Reporter would need to be aware, and the opportunity given to parties to submit further evidence."

A local authority expressed a concern that an unduly restrictive approach would give rise to an increase in judicial reviews.

7.4 A strong theme in a number of negative responses across several stakeholder groups was that this would affect the quality of the final decision. An individual respondent put it thus:

"No, this, if introduced, could lead to accusations of defective decision making. After all a public inquiry is supposed to represent to the people a considered verdict and if evidence can be given it should be, even if late. The reporter should advise all parties to the inquiry that he will not accept late evidence, unless he is notified ahead of the inquiry or at least before the inquiry is supposed to close."

7.5 A number of respondents indicated that the current practice was adequate. As one local authority explained: "the current practice where it is left to the discretion of the reporter is considered adequate".

7.6 Qualified responses focused on the same concerns as those which opposed the proposal. While supporting a generally more restrictive approach to the consideration of material after the close of an inquiry, most qualified responses considered that the proposal was overly restrictive. In particular the need to consider new national policy guidance was highlighted. One business respondent explained:

"In most situations the above approach would be acceptable. However, where there is for instance new guidance or policy or indeed legislation from Government that would have a material bearing on the scope of the inquiry, then the reporter should have the discretion to decide whether such new information would be admissible. Clearly in such a case this new information would not have been translated into the development plan but nonetheless could be important in the context of the inquiry. "

7.7 Other respondents provided indications of either the overall approach that should be taken to admitting post-close of inquiry material or provided specific examples of material that might need to be taken into account after the close of the inquiry. Falling into the first of these categories, an individual respondent drew a distinction between material that could have been presented at the inquiry but which was not which he argued should be excluded after the close of the inquiry and entirely new material such as a new policy which it would not be fair to exclude. As regards specific material a public body explained that where information was

"…relevant to the discharge of legal obligations (e.g. under the terms of the Wildlife & Countryside Act, the Nature Conservation Bill/Act, European Directives, etc.) and new or newly consented development with the potential for significant cumulative impacts..."

it should not fall within any post-close of inquiry restriction. A local authority also indicated that in an enforcement appeal information about whether or not the activities were continuing on the appeal site between the close of the inquiry and the reporter's decision might be very relevant to the reporter's decision.

7.8 A number of respondents also indicated that parties should also have the opportunity of commenting on such material with the reporter exercising discretion as to what was significant and whether there was a need to re-open the inquiry. An issue was also raised by a small number of respondents about whether the reference to a change in the provisions in the development plan referred to the adopted plan and, if not, suggested that clarification was needed.

7.9 Nonetheless a development industry respondent and a professional organisation respondent advocated even greater restrictions. As the development industry put it:

"Once the inquiry has closed no new evidence should be allowed as parties have not had the opportunity to test / question this evidence."

7.10 However, one local authority respondent questioned the lawfulness of restricting post-close of inquiry material at all:

"Does this not fly in the face of section 25 of the Town and Country Planning (Scotland) Act that states 'where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise'."

This was also echoed in the response of a professional organisation.

7.11 One law firm identified the major problem with delay after the close of the inquiry as not stemming from attempts to introduce new material but rather the performance of the Scottish Ministers in non-delegated cases:

"We are bound to observe however that it is important to reduce the time between the inquiry itself and the decision making process and we are disappointed that there is no specific question in regard to the performance of Scottish Ministers. Much focus on this Paper is given to reducing the time taken to reach an appeal decision. It is somewhat ironic that the best known examples of public disquiet at delay are caused largely if not exclusively in cases in which the decision is not delegated. In our submission in non delegated cases the Report from SEIRU should be distributed to parties immediately it is available. This would be a useful compulsiter in ensuring that Scottish Ministers do not then take months or longer within which to reach their own decision."

Question 19: Do you consider that the hearings format represents a suitable means of examining objections to strategic development plans? If not, what other model do you suggest?

7.12 There was considerable minority unqualified support for this proposal (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%) with 3 of the 5 responses indicating clear opposition from the business group. 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.

Table 7.2

Note: the overall response rate for this question was 81%.

7.13 Reasons were not given by many of the respondents who indicated support for this proposal. Fullest reasons were provided by local authority and professional planning body respondents. These focused on the need to avoid or at least reduce the adversarial approach which had become evident in Local Plan Inquiries. That would encourage engagement with the local community on strategic planning issues. A local authority identified that deformalising the process would have both efficiency and effectiveness gains:

"The efficiency improvements are very obvious and can be quantified in reduced time and expense. Effectiveness is perhaps more difficult to assess but the present 'first choice' adversarial arrangements in Local Plan inquiries is a very real disincentive to non-professional involvement and thus poorer because of it. Any change that promotes inclusion should therefore be encouraged."

7.14 The hearings procedure was also favoured over the old Examination in Public procedure as a professional planning body explained:

"Hearings would provide an opportunity for all objections to be considered, contrary to the highly selective approach of the Examination in Public model, while they would also avoid the inevitably interminable proceedings were cross-examination to be permitted."

The selective approach of the Examination in Public model was also criticised by an individual respondent who indicated that it left many feeling frustrated at the lack of opportunity to question or defend some issues. One local authority which gave cautious support to the proposal pointed to the enormous staff resources, costs and time used up in the Examination in Public system.

7.15 Some respondents indicated that the role of the reporter would be crucial in leading the discussion and setting parameters for the hearing. A professional planning body indicated that the hearing procedure would benefit from using a panel of reporters possibly with support from assessors. However, some concern was expressed at the thought of anything more inquisitorial than a hearing which might then delay the process.

7.16 There was support also indicated by a local authority for the use of informal round table format discussions which had been used in a Local Plan Inquiry:

"These were considered to be extremely time and cost efficient and, often in the absence of legal representatives, the Planning Authority and objectors were able to have an informed and non confrontational discussion with the Reporter. The merits of this approach are considerable particularly in making the debate clearer and more open to the wider community and it should be welcomed."

7.17 The limited outright opposition to the use of hearings came principally from the development industry. The key concern was that the hearings procedure did not permit a robust test of policies and the assumptions and issues underlying them. For that cross examination must be permitted. One professional legal body opposed to the proposal indicated:

"Where parties have long term strategic interests which they wish to safeguard or promote, they should be entitled to be heard and represented in the normal way."

This was also essentially the view taken by the majority of those giving qualified responses. These views are well encapsulated by the following local authority response:

"The hearings format would be suitable for examining the majority of objections to strategic development plans. However, where the objections relate to major matters of policy on for example provision of housing or industrial land then the inquiry format would still be most appropriate to enable a proper testing and cross examination of evidence."

There were a number of variations on this view including the possibility of a similar hybrid approach as the Executive had advocated in relation to appeal inquiries or simply enabling cross-examination within the hearings format. 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. However, what emerged from these various responses was the importance of properly testing the policies, assumptions, principles and methodologies in this strategic document. This was seen as vital because of the high value interests and investments at stake. A developer indicated that

"A move away from the rigor of testing by cross-examination is likely to diminish the private sector's confidence in the Inquiry system as a basis for improving policy formulation".

A law firm made the point in a slightly different way:

"We would suggest that it is very important that the developers who choose to consider Scotland as a potential location for investment deserve a better deal than currently exists. Simply put, there is considerable frustration at the current Structure Plan process and the lack of the ability to properly test this strategic document. We suggest that it is fundamental to the system that there is proper and adequate examination of key issues associated with development plans."

The fact that the strategic development plan would frame the content of the local development plan and the continued primacy of the development plan in the planning system were also seen as being key reasons justifying a rigorous approach to consideration of the strategic development plan.

7.18 A number of respondents simply gave guarded support to the use of hearings, some on condition that statutory rules were adopted for them and one provisionally if it could be shown that they did result in shorter proceedings. There was some concern that a hearing could also lead to major delays and would need to be tightly defined.

7.19 There was further support in the qualified responses for the use of round-table discussions or a panel approach

"where the local authority is represented by a group of appropriate officials, where any one of them can respond at that point in time to a question without having recourse to source the relevant information or await later evidence by the appropriate witness".

A voluntary organisation also indicated that mediation should be used in conjunction with the hearings format.

7.20 However, two fundamental qualifications were raised by separate local authorities. One indicated that the question could not easily be answered in advance of a final decision on how the strategic dimension of the planning system would be structured in the future. The other questioned whether an "add on" at the end of the plan making process was the most appropriate way for grievances to be aired and whether it made any contribution to a participatory process.

Question 20: Do you agree that the process of development planning would be improved by requiring planning authorities to reduce the volume of objections through negotiation and mediation before calling a local plan inquiry; by adopting the hearing format as the norm for all local plan inquiries; and by applying other relevant improvements in practice contained in this consultation. Do you have any other suggestions for ways in which the process might be improved?

7.21 For ease of analysis this question has been broken down into its three constituent parts which are considered separately. At the end of the section further suggestions made by the respondents for improving the process are considered. Overall responses and overall agreement or disagreement with the proposed measures are illustrated in the table appearing immediately below. There was little unequivocal support (18%) for the full range of measures proposed by the Executive. However, there was virtually no outright opposition (1%) to the full range of measures. The vast majority of responses (81%) were qualified to some extent. These responses are explained more fully in Tables 7.4 - 7.6 and the accompanying analysis. Responses to the various specific parts of the question have only been recorded where the respondents clearly indicated that they were answering that or those parts of the question.

Table 7.3

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

Proposed requirement on planning authorities to reduce the volume of objections through negotiation and mediation before calling a local plan inquiry

7.22 There was considerable unqualified minority support for this proposal overall (43%) with a majority of the public bodies, 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 50% of respondents gave mixed responses. The principal category of 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.

Table 7.4

Note: the overall response rate for this part of the question was 74%.

7.23 The local authorities responding positively to this part of the question and which gave reasons indicated that they already sought to reduce the volume of objections to the local plan by negotiation and mediation. One indicated "This reduces both the costs and the duration of the inquiry." A business respondent agreed that those were the potential benefits but indicated that local authorities which engaged in negotiation were "the exception rather than the rule". The public bodies which answered 'yes' to this question welcomed a requirement being laid upon local authorities to negotiate and use mediation so that all authorities worked to the same rules and rather than leave the decision to the reporter. One indicated that many authorities do already negotiate and where that occurs many objections are resolved. A law firm which agreed noted that too many planning authorities were "trapped into defending their plan at all costs" although this to some extent followed from the style of objections raised and indicated that the performance of planning authorities might benefit from the advice of external consultants (although there would be resource implications).

7.24 There were two detailed responses in support of mediation, one from a professional mediation group and the other from an individual who is a planning mediator. The latter provided an indication of the possible role of mediation and consensus building in the plan preparation process which is worth reproducing at length:

"The essence of mediation is the strict neutrality of the specially trained mediator, who will try to tease out agreement without influencing it or offering advice on the issue or its resolution. Mediation offers a possible model for overcoming reluctance to negotiate the content of the plan. … Suitable issues will probably be:

• Relatively self-contained, either geographically or in their relationship with other issues;
• Characterised by shades of grey, and not black-and-white; and
• Of interest to easily identified groups or individuals.

Consensus building (a similar technique to mediation) might also be applied where a number of objectors have similar views, but have not yet managed to consolidate their view into a single presentation. The outcome of these discussions would be a statement agreed between the parties, which would be fed into the plan preparation process or the inquiry. Crucially, it would not inhibit the right of anyone to take part in the normal process. It would merely suggest how issues might be resolved, for the local authority's or the reporter's consideration. A planning authority must take full responsibility for the contents of its plan. Yet the success of the plan will depend largely on the degree of consensus which has been reached, as a policy with little backing has little chance of committed implementation. … Better public involvement in plan preparation is likely to increase the number of disputes that will arise, so it's best to work towards consensus from the outset. … Consensus building through a neutral facilitator has much potential in such circumstances. Once the plan is on deposit and objections are received, mediation becomes viable, especially where a compromise might still be possible but negotiations have broken down. … There is a place for mediation in the pre-inquiry process. However, because it might increase some people's confidence in tackling the system, the number of objections may not reduce as is hoped. The real benefits should be felt in wider public acceptance of the plan and a consequent qualitative improvement in the application of its provisions."

7.25 The most common reason advanced for an answer of 'no' or a mixed response was essentially that planning authorities already do negotiate and that there were limits to what could be achieved by negotiation and mediation since some objectors would not wish to withdraw their objections. Although reluctance to withdraw an objection could be for any reason it was noted that many objections dealt, for example with "housing land release and are often fundamental issues of principle, not susceptible to negotiation". Another respondent indicated that some objectors were extremely suspicious of the planning authority's motives in seeking to negotiate away an objection. Furthermore virtually all of the respondents who made the point that there were limits to what could be achieved by negotiation also noted that resolution of one objection might lead to further objections. Although this point was principally made by local authorities it was also made by a few business respondents and also by a law firm.

7.26 Another concern expressed by a number of respondents, principally local authorities, was that this requirement would lengthen the pre-inquiry stage and hence conflict with the overall aims of the consultation paper. Related to this was the concern expressed by a few respondents from the local authority, business and professional and academic stakeholder groups that it would be onerous in resource terms without necessarily having a significant impact on the number of objections.

7.27 A small number of respondents from the local authority, business, professional and voluntary stakeholder groups indicated that the place for negotiation was early in the plan preparation process and not at the immediate pre-inquiry stage. The voluntary group making this point suggested alternative means of engagement between developers and the local community which are considered in paragraph 7.36 below.

7.28 Other concerns expressed included (1) local authorities were often reluctant to negotiate (a point made by a small number of developers); (2) caution regarding compulsory negotiation and mediation; (3) possible limits to the role of mediation since the primary concern of local authorities is the integrity and coherence of their plan; and (4) which parties would pay for mediation.

Proposed adoption of the hearing format as the norm for all local plan inquiries

7.29 Slightly fewer respondents overall answered this part of the question but the level of outright support for the proposal was no less than 53% 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. The principal reason for the mixed responses was that blanket use of the hearings format was not seen as a suitably robust means of testing Local Plan policies and proposals.

Table 7.5

Note: the overall response rate for this part of the question was 71%.

7.30 The responses to this part of the question largely mirrored the responses to questions 17 and 19. Although there was support in all stakeholder groups for adopting the hearing format as the norm it was local authorities which provided virtually the only reasoned responses. Those who supported this proposal and provided reasons indicated that the less formal, less adversarial format of hearings involving a more inquisitorial role for the reporter would be welcome. The transparency and fairness of the hearing system was also noted. One local authority indicated that it had striven to reduce formality and legal representation at Local Plan Inquiries but that parties were reluctant to embrace such an approach. It strongly supported hearings since

"A more inquisitorial approach would allow the presentation of information to the reporter, may encourage greater public involvement in a process they currently feel excluded from and would result in benefits to the local plan product."

A business group did indicate that they supported the hearings format "as a more 'user-friendly', informal process."

7.31 The principal reasons for opposition or qualified support for the use of the hearing format was that because there were important interests at stake there needed to be robust testing of the plan involving cross-examination. For example, a law firm put the point forcefully:

"As previously highlighted, Scotland does not benefit from the full range of developers that other parts of the United Kingdom have and it is very important that those who wish to invest in Scotland feel they have the opportunity to fully test local plan objections. The hearing format should not be universally adopted in the context of Local Plan Inquiries. We believe there must be an opportunity for strategic issues on e.g. housing land supply and green belt to be dealt with by way of an inquiry. Similarly there may be site specific issues which may be of importance and which would benefit from a full examination of evidence."

Most respondents who gave qualified responses indicated that rather than the blanket use of the hearing format, which would be inappropriate to deal with major issues of policy, a hybrid model would be appropriate. Some indicated that discretion should be left to the reporter to decide on the appropriate procedure.

7.32 The continued primacy of the development plan also meant that the plan had to be fully tested. A developer put it this way:

"As noted above we have reservations about the robustness of the hearing process where development plans are concerned. As long as we have a development plan led system backed up by the primacy of the development plan contained within s.25, Local Plan Inquiries will be put under the spotlight and their robustness thoroughly tested."

A law firm also made the point that confidence in the plan-led system would be undermined by the imposition of the hearing system as it "would seriously damage the credibility of Local Plan inquiries as the means of testing the Planning Authorities' proposals and policies".

7.33 It was also noted 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.

Proposed application of other relevant improvements in practice contained in this consultation

7.34 Far fewer respondents answered this part of the question but of those who did, no fewer than 73% supported this proposal. The responses from the voluntary and public and politicians stakeholder groups to the whole of this question were simply "yes" in the main so that has been taken as an indication that they agreed with all parts of the question. That explains why they represented a slightly higher proportion of the respondents in relation to this part of the question than was the case with other stakeholder groups. There was only a single outright answer of "no" and a number of mixed responses. These often simply referred to answers to other questions which were themselves mixed.

Table 7.6

Note: the overall response rate for this part of the question was 31%.

7.35 There was virtually no additional discussion by respondents in relation to this part of the question. If they made a comment at all respondents simply referred to their responses to other questions in the consultation paper.

Other suggestions for improving the process

7.36 However, respondents did make a variety of other suggestions. These ranged from general concerns about the Local Plan system to much more particular concerns about Local Plan Inquiries. At the general end of the scale was concern expressed by a local authority that it was wrong to consider Local Plan Inquiries in isolation from the remainder of the process of getting a plan prepared and adopted and speeding up that process so that such plans were up-to-date. The possible impact of the introduction of a third party right of appeal on the overall Local Plan system was also highlighted. A voluntary organisation also made a very full submission focusing on the need to deal with issues at a much earlier stage in the plan preparation process:

"One of the main reasons that issues go to public inquiry is that the consultation process is unsatisfactory and there is no established procedure for collective discussion between the various parties in the early stages and issues of concern to the community are not taken into account early enough nor are the real intentions of developers presented openly to the communities that will be affected."

The organisation made some concrete proposals as to how this could be taken forward referring to the use of Village Design Statements from England and Wales and some recent Scottish examples:

"Village Design Statements were developed in England and Wales to provide a context for new development and are about how planning development should be carried out so that it is in harmony with its setting and makes a positive contribution to the local environment. … Whatever the outcome it is our opinion that design and development statements arrived at by open discussion between all parties leading to, say, a ten year strategy for a specific local area could be of immense value. What we are suggesting is a step that comes after the approval of the Structure Plan and is a preliminary step to the drafting of a local plan. We also acknowledge that some form of Local Design Brief is not necessarily essential in all circumstances."

7.37 The general concern mentioned most often specifically in relation to the Local Plan Inquiry system was that local authorities were not bound by the recommendations of the reporter hearing the inquiry. This was mentioned by local authority, professional and individual respondents. This concern was trenchantly expressed by one planning consultancy:

"Until Reporters' recommendations are binding, the local plan inquiry process remains deeply flawed in the context of s.25. There is no point in arguing that the inquiry or hearing process is to be transparent, etc., when the outcome is in the gift of the authority who sit as judge and jury. Until this matter is addressed, there will be deep suspicion of any changes which may be seen as denying objectors full rights to scrutinise the authority's plan and the reasoning behind it."

One individual who made this point indicated that the current system resulted in members of the public concluding that their participation had been a waste of time if the local authority ignored the Reporter's recommendations.

7.37 A number of specific suggestions related to enhancing guidance for Local Plan Inquiries. One indicated that there should be an overhaul of the statutory provisions and guidance governing Local Plan PLIs to ensure consolidation and rationalisation and to remove inconsistency and uncertainty. Clearer guidance was also advocated with regard to written submissions to demonstrate that they had equal status to any other means of giving evidence and an indication of how the various procedures were compatible with the right to a fair hearing in Article 6 of the ECHR. An individual also suggested that there should be enhanced guidance to restrict objectors from presenting evidence that is in effect rehearsing or repeating a planning appeal case promoting the benefits of their individual site.

7.38 Other specific improvements suggested included (1) the need to devise a method of scrutiny of the role of local authorities as landowners in the context of the plan since few saw the current process as fair; (2) the need for a rigorous filter to disqualify irrelevant, incompetent and frivolous objections at an early stage; (3) the use of more participatory language such as "interested parties" instead of "objectors" and "observations" or "contributions" for "objections" (4) taking all written precognitions as read by the reporter thus saving time on reading them out; (5) establish local environmental courts to take the burden off reporters; (6) full explanations for all decisions contained within the plan; (7) the use of roadshows to take draft local plans to affected communities; and (8) consideration of how advocacy could be more effectively provided for those who wish to participate in the system but cannot afford consultants or lawyers (through funding and development of Planning Aid services for example).

Question 21: Should 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?

7.39 There was very considerable unqualified support for this proposal (57%) overall. In only the business stakeholder group did the level of support drop below 40% to 15%. It was in that group that the greatest level of opposition to the proposals (46%) was to be found although the overall level of outright opposition was low at 15%. 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. There were also a small number of mixed responses which indicated no preference.

Table7.7

Note: the overall response rate for this question was 79%.

7.40 As noted in the quantitative analysis there was very considerable support for this proposal. Although many of those, particularly those in the voluntary organisation and public and politician stakeholder groups, supporting it did so without giving reasons, many supportive respondents did provide reasons. There was considerable agreement amongst all the stakeholder groups with the reasons put forward by the Executive to underpin their proposal. In particular the complexity and time consuming nature of conjoined appeals was highlighted by many respondents. As one local authority respondent put it:

"Conjoined inquiries are inevitably more time consuming and result in longer delays particularly to Local Plan preparation. If conjoined inquiries were permitted it would increase the number of lengthy and complex inquiries and may be used to undermine the development plan process."

7.41 There would also be confusion in the public mind about the nature of such a conjoined inquiry. As one individual respondent remarked: "Clarity of purpose is important, especially to lay participants in a local plan inquiry." That the purpose of the conjoined inquiries was quite different was highlighted by a local authority:

"Yes as the arguments are not the same. Objections to local plans relate to issues of principle whilst the issues involved in a planning application relate to the detail of a particular proposal judged against the development plan."

A law firm also made the same point forcefully:

"… It is clear that the considerations applicable to local plan objections and appeals are different and, as a consequence, often evidence led in respect of the appeal is wholly irrelevant to the local plan reporters and some of the local plan evidence is wholly irrelevant to the appeal reporters. Against that background, we would suggest that planning appeals should not be conjoined in any manner whatsoever with local plan inquiries."

7.42 It was seen as inappropriate for higher level land issues and policies to be considered as part of an appeal and equally that a conjoined appeal often brought an inappropriate level of detail and single issue focus to a development plan inquiry. The potential for difficulties in the reporter's dual role in such inquiries was also highlighted as a reason for keeping them separate. One local authority put it thus:

"… The two types of inquiry generally consider separate but linked issues. A reporter could reach different conclusions to the same objection. The Council is not obliged to accept the reporter's recommendations on the local plan inquiry but if a conjoined appeal is upheld, then planning permission will have been granted."

A lawyer responding in an individual capacity also explained:

"… There are also significant legal arguments for separating the processes. The mental gymnastics required of a Reporter called upon, on the one hand to decide (or to report to the Executive on) a proposal which is opposed tooth and nail by the planning authority (in the course of which the conduct of that planning authority will inevitably come under scrutiny) and at the same time to report to that self-same planning authority on objections to its Plan, are quite beyond what ought to be regarded as acceptable. It is not prima facie a fair procedure.

7.43 Where there were appeals or called-in applications that were linked to the outcome of the Local Plan Inquiry, a number of respondents who favoured the Executive's proposal indicated that these should be considered after the conclusion of the local plan inquiry. As one voluntary group explained:

"Yes, although residual applications dependent upon the outcome of the inquiry should be dealt with without delay in the aftermath."

7.44 Some of those supporting the proposal anticipated potential difficulties. These included the possible argument about duplication of effort - an issue which did result in a number of opposed or qualified responses. Most of those opposed were business respondents who indicated that it was a waste of resources having to run the same or similar arguments twice. Moreover there were concerns about proceeding with an appeal ahead of a local plan inquiry which might result in the appeal being refused on the grounds it was premature. One business respondent encapsulated these views thus: "a developer should not have to present his case twice nor face a refusal solely on prematurity grounds." A local authority which answered 'no' to this question cited both the fact that the local plan under consideration at the inquiry was a material consideration in dealing with the conjoined appeal and also the practical issue that it enabled staff resources to be used more effectively.

7.45 The issue of duplication of effort was raised in many of the qualified responses and also the possibility of inconsistent decision making which might adversely affect public engagement. Some developer respondents indicated that they favoured a flexible approach or had no firm views on the matter. One voluntary organisation which indicated that it had no firm views on the issue nonetheless stressed that the procedures should be those which "best facilitate participation in the specific circumstances."

7.46 A few respondents indicated that they considered there already had been a move away from conjoined local plan inquiries and appeals although they noted that the same strategic issues were debated each time.

7.47 There was some support for conjoined appeals and local plan inquiries on the basis that they could facilitate public participation. Support was also based on the possible implications of the application for a development plan that might be going to a local plan inquiry.

7.48 A professional planning body indicated that although they supported the proposal in principle "for the sake of the clarity of the process and the streamlining of the development plan approval/adoption", adjustment of the proposed six month limit to the sisting of an appeal might be needed where the appeal was dependent on the outcome of a local plan inquiry since the appeal would undoubtedly expire prior to the result of the inquiry.

7.49 Two alternatives were canvassed by respondents. The first suggested by local authority respondents and a professional legal body was that there should be two reporters, with one dealing with the appeal and other with the plan but listening to same evidence. The second which was proposed by an individual respondent was that where an appeal was to follow a local plan inquiry;

"the same reporter might hear both and might allow some of the evidence led at the first inquiry to be taken into account at the second without the need for its repetition, provided that all parties to the second inquiry could be sufficiently safeguarded".

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