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RIGHTS OF APPEAL IN PLANNING: ANALYSIS OF CONSULTATION RESPONSES

INTRODUCTION

Background

1. The Scottish Executive published its consultation paper Rights of Appeal in Planning on 1 April 2004. This honoured a commitment in the White Paper Your Place, Your Plan published in March 2003 which considered issues around how to enhance public involvement in the planning system. The commitment to consult also featured in A Partnership for Scotland: Partnership Agreement published in May 2003.

2. The consultation paper explored the issues around the possible introduction of what is commonly known as a 'third party right of appeal' (TPRA). It discussed views previously expressed in support of, and against, TPRA, in what circumstances appeals could potentially be permitted, how an appeals system might work in practice as well as considering resource and other implications. The paper invited responses to 16 specific questions.

3. A draft Regulatory Impact Assessment (RIA) was published alongside the consultation paper. The RIA looked at potential costs and benefits, in financial terms, of the introduction of TPRA.

4. The consultation paper was issued to a wide range of organisations representing a cross section of business, professional, community, environmental, political and statutory interests as well as to all Community Councils, planning authorities and local enterprise companies (LECs). It was also issued to a large number of individuals on request including those who had expressed a prior interest to the Executive. The consultation paper was also made available on the planning page of the Executive's web site and responses were also invited through this route. In total around 2500 copies of the consultation paper were issued as well as an e-mail alert to 650 people on the Executive's planning e-mail alert list.

5. Consultation responses were invited by Friday 30 July 2004, but many responses (25% of the total) continued to be received well after this date. This was partly due to the consultation period taking place over the summer months when some organisations were not meeting regularly (e.g. local authorities, Community Councils etc) and were unable to respond within the timeframe. Many individual responses were also received after the cut off date. All responses received up until 25 October 2004 have been included in this analysis.

6. This report provides a summary overview of the main findings of the consultation responses. All responses have been summarised in a detailed digest that accompanies this report. Not all entries of the digest will, however, be publicly available because some respondents have not given consent to the publication of their response or have requested confidentiality.

Responses received

7. A total of 1620 responses were received to the consultation. This is the largest response to a planning consultation undertaken by the Executive to date.

8. The size of response is partly related to the level of interest and strength of feeling in relation to TPRA among respondents. Almost 2 in 3 (65%) of all responses originated from 2 main campaigns and took the form of standard text (through postcard, e mail or letter). The standard core text of each campaign is reproduced in Annex 1 of this report.

9. The 'every one' campaign, co-ordinated by Scottish Environment LINK, brings together the members of a broad spectrum of Scottish environment groups and focuses on the activities of a combined membership of around 500,000 Scots on issues of common interest. The campaign encouraged people to respond through its website either by letter or e-mail as well as issuing printed postcard responses to which names and addresses could be added in support and returned to the Executive. A total of 999 such campaign responses were received - 62% of all responses to the consultation.

10. Friends of the Earth Scotland promoted its own campaign while also supporting the 'every one' campaign. Through its own campaign people were encouraged to make their views known through the website by e-mail or letter. A total of 57 responses can be linked specifically to this campaign - 4% of all responses received.

11. In the case of both sets of campaign responses, only those that were substantially made up of the standard core text were counted as campaign responses. Where the text was amended or significantly added to, these were counted as non-campaign responses.

12. A small number of other responses using standard text were also received. These responses were forwarded to the Executive through an individual's relevant MP or MSP and have been counted as non-campaign responses.

13. Some respondents with a particular focus of interest allied themselves to, and/or expressed explicit support for, the responses of national agencies representing their interests, whether they were formally members of such organisations or not. Such responses referred to in this way included those of CBI Scotland (business), Homes for Scotland (house builders), Scottish Environment LINK (environment/heritage groups) and the Scottish Association of Community Councils (Community Councils). While some standard core text was recognisable in such responses, suggesting an element of campaign, they were substantially added to by respondents. As in the case of individuals where this occurred, these have been counted as non-campaign responses.

14. To assist the analysis of responses, respondents were classified into 8 distinct groups defined by either their type or focus of interest. The group classification used is set out and explained in Table 1 below.

Table 1: Classification of Respondents by Group

15. It should be noted that the majority of responses from 'individuals' came from an environment/conservation perspective. Many of the non-campaign responses from individuals were from people who had recent (largely negative) experience of planning applications or planning decisions of which they disagreed.

16. A small number of respondents classified as 'individuals', largely opponents of TPRA, may have been 'planning and related professionals' although there was a lack of explicit evidence to suggest that this was the case (e.g. qualifications or statement of experience).

17. A few identical or similar responses were submitted more than once on behalf of different groups/individuals e.g. a response prepared for a community council by an individual but also submitted separately as an individual response, a response prepared for one environment/heritage group but also submitted by another etc. In such cases the responses were counted the relevant number of times and in each relevant category.

18. A total of 4 responses were submitted with no identification of who the respondent was. These have been treated as anonymous although they are most likely to be 'individuals' and are included as such in the analysis of responses that follows.

19. The total number of responses received by classification group is shown in Table 2 below and the split between campaign and non-campaign responses by group is shown in Table 3 that follows.

Table 2: Responses by Group

* Includes 4 anonymous

Table 3: Campaign and Non Campaign Responses by Group

* includes 4 anonymous

20. Key points to note on the profile of respondents and type of responses received are as follows:

• Individuals were by far the largest group accounting for 3 in 4 (75%) of all respondents
• 99% of campaign responses came from individuals
• Individuals were also the largest group in non-campaign responses but accounted for less than 1 in 3 of such responses (31%)
• Business/developers and Community Councils were the next largest groups each accounting for around 7% of all responses and around 20% of non-campaign responses
• Environment and heritage groups accounted for 4% of all responses and 10% of non-campaign responses - similar in number to planning authorities and national/regional agencies and interest groups combined.

21. Although it has not been possible to calculate response rates for specific groups it should be noted that 31 of Scotland's 34 planning and national park authorities responded to the consultation as well as 109 of Scotland's estimated 1200 Community Councils.

Responses to questions

22. The 16 main questions forming the focus of the consultation are set out in full in Annex 2 of this report. One question (Q15) was split into 3 parts meaning that potentially respondents could answer up to 18 individual questions.

23. It should be noted that a substantial number of respondents did not structure their responses in line with the questions. In these unstructured cases, responses were analysed and attributed to the most relevant question where this was feasible. Even where responses were structured by question, respondents did not always answer the question directly (e.g. yes/no/don't know) - again in such cases responses were interpreted by way of implication where this was possible.

24. The level of overall response to each question varied considerably and this is illustrated in Figure 1 below. Key points to note are:

• Almost all respondents (97% of the total) answered Q6 which asked about support for the principle of TPRA
• Over 4 in 5 respondents (83%) answered Q3 which asked whether TPRA should apply to 4 specific circumstances identified by the Partnership Agreement
• 1 in 5 respondents (20%) answered Q15a which asked about 4 potential models of how best to improve public involvement in the planning system - 2 based around some form of TPRA, 2 that were not
• Most other questions were answered by between 1 in 6 and 1 in 8 of all respondents, falling to 1 in 10 for the last few questions.

25. This profile of overall responses to specific questions is heavily influenced by the volume of campaign responses from individuals. The campaigns focused on Q3, Q6 and to a lesser extent Q15a.

Figure 1: Overall Response by Question

Figure 2: Average Number of Questions Answered by Group

26. The level and pattern of responses to individual questions also varied markedly between groups; this is illustrated in Figure 2 above. Key points to note are:

• Planning authorities answered the widest range of questions - an average of 15 questions answered
• Individuals answered the least number of questions - an average of 2 - the profile again reflecting the content of the main campaigns
• Other groups answered an average of 8-10 questions, with the exception of political representatives who answered an average of just over 6.

General comments made by respondents

27. Prior to answering specific questions many respondents made some general comments. The most common themes were:

• Support or otherwise for TPRA and reasons (analysed under Q6)
• The specific role of the respondents and the interests they represent
• The planning experience of the respondent or their perceptions of the current planning system e.g. 'slow and unresponsive' (developers), 'stacked in favour of developers' (Community Councils) etc
• Reference to alliance with or membership of other respondent organisations and their responses (as discussed earlier in para. 13 above).

28. Furthermore many respondents made specific reference to welcoming the consultation (mostly those in support of TPRA) although a few made reference to 'unfortunate' summer media reports alleging that the Executive may have already decided its position on TPRA.

The remainder of this report

29. The rest of this report examines the responses to each of the individual questions in turn. In doing so, the order has been slightly amended from that of the consultation paper. For ease of understanding it is useful to look at support for the principle of TPRA (Q6) at an earlier stage than featured in the paper i.e. before examining responses to more specific questions addressing how TPRA might work in practice, and questions aimed at establishing views on other possible measures for improving public involvement and confidence in the planning system.

30. In considering the following analysis and commentary it should be borne in mind that respondents were more likely to make comment where they disagreed with what was being said, rather than where they were in support.

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