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RIGHTS OF APPEAL IN PLANNING: ANALYSIS OF CONSULTATION RESPONSES
EXECUTIVE SUMMARY
Background
The Rights of Appeal in Planning consultation paper was published by the Scottish Executive on 1 April 2004. It explored the issues around the introduction of what is commonly known as a 'third party right of appeal' (TPRA) and invited responses to 16 specific questions. Over 2500 copies of the consultation paper and 650 e-mail alerts were issued to a wide range of organisations and individuals representing a wide cross section of interests. It was also published on the internet.
A total of 1620 responses to the consultation were received, 75% of which came from individuals. The majority of these responses (over 4 in 5) were linked to 2 campaigns promoted by Scottish Environment LINK (the every one campaign) and by Friends of the Earth Scotland. 25% of responses came from organisations, some of whom allied themselves to responses from national bodies representing their interests. 31 of Scotland's 34 planning and national park authorities responded.
The closing date for responses to the consultation was 30 July 2004. However responses received up until 25 October 2004 were analysed and inform this overview of consultation responses. Responses have also been summarised in a detailed digest. An extract from this will be made available on the Scottish Executive's planning web site covering those responses where the respondent has agreed to make their views public.
For the purposes of analysis responses were categorised into 8 groups representing different interests or characteristics. These groups were:
- Individuals
- Environment/heritage groups
- Community Councils
- Political representatives or parties
- National/regional agencies and interest groups
- Planning and related professionals
- Planning authorities
- Business/developers.
The number of questions answered by respondents varied considerably by group. For example individuals answered an average of only 2 questions while planning authorities answered an average of 15.
Arguments for and against TPRA (Q1)
It was agreed by the majority of respondents to this question that the arguments set out in the consultation paper accurately reflected both the case for and the case against the introduction of TPRA, although some questioned the emphasis or basis of points made depending on their own viewpoint.
Some felt that there could have been more context given including more information on current plans to modernise the planning system and the potential that proposed reforms might have on altering the arguments both for and against TPRA. It was thought that the paper would have benefited from more hard evidence of the impact that TPRA has had in countries where it already exists as well as more information on the likely impact in this country.
What supporters of TPRA are seeking (Q2)
The majority of those making specific comment agreed that the explanation of what supporters of TPRA were seeking was explained well in the consultation paper.
Some supporters did not agree with the suggestion that the case for TPRA was simply about the principle of having the same appeal rights as applicants but about wider concerns regarding public confidence in the system, including transparency and accountability in planning decision making. They also resented the implication that their primary interest was in seeking to prevent development by overturning decisions that they did not approve of, arguing that it was the quality and impact of development they sought to influence, rather than its prevention.
Business/developers and the majority of those planning authorities who commented did not accept that this was the case. They suggest that the majority of potential third party appellants will be those driven by self-interest who seek to curtail development near their own properties based on arguments that do not necessarily constitute 'substantive planning grounds'.
Extent of Support for TPRA in principle (Q6)
Almost all respondents expressed a view as to whether they supported or opposed the introduction of TPRA in principle. Almost 9 in every 10 respondents (86%) expressed their support while over 1 in 10 (13%) did not. Statistically the overall high level of support is largely a result of the large number of individuals responding to the consultation (including through campaigns) in support of TPRA.
However views were highly polarised by group. As well as most individuals, the majority of environment/heritage groups, Community Councils and those political representatives and parties who took part support the introduction of TPRA. On the other hand the majority of business/ developers, planning authorities, planning and related professionals and national/ regional agencies and interest groups oppose its introduction.
Individuals express their support largely in terms of equality, fairness, natural justice and human rights on the basis that applicants have the right to appeal and others do not. The support of environment/heritage groups is couched in similar terms but with more emphasis on the pursuit of environmental justice, sustainable development and social inclusion.
Community Councils feel that their current role as statutory consultees and the efforts they make to comment on planning applications are undervalued and not given sufficient recognition by planning authorities. Some are interested in the concept of a 'community right of appeal' which would be available to them or other local community organisations who could act in the wider community interest. Those political representatives and parties who responded came from a similar perspective as individuals and environment/heritage groups.
Among environment/heritage groups and Community Councils the primary interest is to influence development that is of a 'developer' rather than 'householder' scale and those that have wider community impact and attract a body of objection.
Business/developers are 'implacably opposed' to the introduction of TPRA because the current planning system is already 'slow and unresponsive' and that its introduction would bring more bureaucracy and delay, threaten investment and local and national economic growth. They want to see any efforts to increase third party involvement focused on the preparation of development plans and pre-application stages of developments. They fear that TPRA, if introduced, will be 'hijacked' by professional objectors, NIMBYs, those with agendas and competitive business interests.
Most planning authorities do not see TPRA as being in the wider public interest and see it as a threat to the Executive's aims to speed up and streamline the planning process. There are considerable concerns about the resource implications of such a radical change which they think will change the whole 'ethos' of the planning system in a negative way. A minority of authorities support the very limited introduction of TPRA in some particular circumstances.
The majority of planning and related professionals including the Royal Town Planning Institute are opposed to TPRA in principle. They also want to see efforts to improve third party involvement focused on the development plan and pre-application stages of development and are concerned about TPRA undermining the primacy of the development plan. The significant minority who support TPRA do so for similar reasons as other groups.
The majority of national/regional agencies and interest groups also oppose TPRA, although a minority are in support. Views tend to split along interest grounds. For example economic and employment organisations are opposed, while some voluntary sector organisations are in support. Housing interest groups are concerned about the potential for TRPA to impact negatively on social housing developments including those for disadvantaged groups.
The potential restriction of TPRA to 4 categories of development identified in the Partnership Agreement (Q3)
The majority of respondents would support the application of TPRA being restricted to the 4 Partnership Agreement categories of where the local authority has an interest, where the application is contrary to the local plan, when planning officers have recommended rejection and where an Environmental Impact Assessment (EIA) is required. This level of support is influenced by the every one campaign that urged support for this.
However if TPRA was to be introduced, the majority of planning authorities would only support it in the case where there is 'significant departure from the development plan' and the majority of business/developers would not support its introduction in any of the categories. The categories of where planning officers have recommended rejection and where an EIA is required were the most controversial as proposed categories where TPRA could apply.
Moreover the primary interest among supporters is for TPRA to apply to decisions on 'developer scale' rather than 'householder scale' applications, irrespective of their technical planning status.
Types of Decision where TPRA should apply (Q4)
There was general agreement that if TPRA was introduced it should apply to the categories suggested in the consultation paper. Some did not agree with the proposed exclusions relating to enforcement, applications under the Electricity Act and control of advertisements and others thought that it should apply to approvals only (i.e. not refusals).
Which third parties should be able to appeal (Q5)
It was the commonly held view that the exercising of any TPRA should be awarded to objectors to the original planning application and that this should be paramount. Some wanted this widened to include those making any representations or comments to the original application.
How planning authorities and the Scottish Executive are placed to manage any increase in workload (Q7)
The majority of those responding specifically to this point felt that neither planning authorities nor the Executive were well placed in terms of resources to cope with any resultant increase in workload. Existing resources were already considered inadequate to run the current system. A shortage of planners and a lack of professional education and training opportunities in Scotland would be additional complicating factors which would make adapting to the introduction of TPRA difficult.
Implications for the attractiveness of planning as a career (Q8)
Views were split as to whether TPRA would increase or diminish the attractiveness of planning as a career although most planning authorities and planning/related professionals view it as a negative prospect. It is likely to mean a further increased focus on development control and detailed processes, which are less popular than development and strategic planning.
Supporters of TPRA think the profession will benefit from being part of a fairer system that has more public respect and will require different skills including how to best engage with communities.
The application of fees (Q9)
Most of those who commented support the introduction of a fee to make a third party appeal and this is considered important to deter 'frivolous and vexatious' appeals clogging up the system. Fees should be set at a modest level, although views on the appropriate level vary from ?25 to ?500. There are some concerns that if a nominal fee is set that collection becomes largely a further administrative burden on the system rather than a source of funding.
The minority who passed comment on whether an applicant should be charged a fee to lodge an appeal thought that this should not be the case.
The role of Ministers and the Scottish Executive Inquiry Reporters Unit (SEIRU) (Q10)
There is majority support for a continued role for Ministers in deciding certain planning applications of national and strategic importance and some view this a critical part of the democratic process. However it is widely recognised that there needs to be greater clarity and consistency as to when Ministers have a locus to become involved and the need for published guidelines/criteria is suggested.
Environment/heritage groups tend to disagree and want to see all appeals being decided by an arms-length or wholly independent SEIRU to ensure that decisions become non political.
Whether mandatory hearings would increase public confidence (Q11)
Most planning authorities agreed that the wider use of hearings might increase public confidence with particular support coming from those authorities already operating a voluntary hearings system. There was no interest in hearings becoming mandatory although many agreed that there was a need for more national consistency and the publication of guidance would be welcomed. The wider use of hearings was preferable to the introduction of TPRA but may be difficult to resource.
Environment/heritage groups and individuals did not generally favour their increased use as they did not give sufficient opportunity for third parties views to be taken on board and did not prevent an applicant choosing to go to appeal. Hearings were considered to be no substitute for TPRA.
The extension of notification to Ministers (Q12)
Among those who commented, the majority thought that the extension of Ministerial notification/call-in powers to include all development plan departures would not serve to address public concerns about decision making by planning authorities. It is questioned whether such an approach is justifiable or indeed practical as the majority of cases will be of a minor nature, of no legitimate Ministerial interest, and will only contribute to additional costs and delays in the system.
However across most groups there is some acceptance that there may be a case for clearer definitions and more consistent application of the 'significant departure' rule and when notification should apply. Again the case for published guidelines/criteria is made, as well as a case for closer monitoring in this area.
Screening and screening criteria (Q13)
There is widely based support for the need for a screening process to accompany any introduction of TPRA. It is expected that criteria would be applied to both the nature of appeal and type of appellant to ensure compliance with whatever system it is agreed will operate. The main purpose of screening is viewed as ensuring that 'vexatious or frivolous' appeals are eliminated and not allowed to clog up the system.
While many agreed that the screening criteria suggested in the consultation paper were appropriate e.g. the 4 Partnership Agreement categories, there are quite wide concerns that such an approach may be too complicated. There are perceived benefits in any screening system being simple, involving a minimum level of interpretation and subjectivity.
Among supporters of TPRA the primary interest is for TPRA to apply to larger scale applications with wider community impact, especially those that are controversial and attract a body of objection and that this should be recognised in the design of any screening system.
Withdrawal of appeal rights (Q14)
Business/developers are totally opposed to the withdrawal of applicant appeal rights in any circumstance. Some planning authorities suggest withdrawal of these rights might be appropriate where a decision is in accordance with an up-to-date local plan and where there are repeat applications/appeals for essentially similar developments on the same site. Environment/heritage groups suggest withdrawal in environmentally sensitive or protected areas.
If TPRA was to be introduced there is little enthusiasm for any withdrawal of appeal rights in the case of third parties, except for cases of national security and public safety and, with considerably less enthusiasm, developments of national or strategic economic importance.
Views on the 4 Models featured in the consultation paper (Q15a)
Of the Models presented in the consultation paper support is strongest for Model 1 (based on a new third party appeals system) and Model 2 (based on the continued modernisation of the existing planning system without TPRA) - the former by supporters of TPRA, the latter by opponents.
Alternatives (Q15b)
When asked to identify alternative changes that could bring about a fair and effective planning system many respondents suggested quite modest measures, some of which are already being addressed by current modernisation proposals, some which are not.
The Royal Town Planning Institute suggests that there may be scope for the introduction of a limited Public Right of Notification procedure which would essentially be an extension of the existing Ministerial notification/call-in system in limited circumstances. Community Councils suggest a special Community Right of Appeal.
Conclusions
Notwithstanding the majority support for the introduction of TPRA, the views of key stakeholder groups are highly polarised and split between those who are strongly in favour and those who are strongly opposed, with little common ground.
Among some opponents of TPRA, and in particular planning authorities, there is a degree of acceptance that the increased use of hearings and Ministerial notification and call-in procedures may have a part to play in increasing public confidence in the planning system. The case for published criteria, guidance and more consistency governing the circumstances in which they should be used would be welcomed by some and would be preferable to the introduction of TPRA.
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