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Adoption - restricted ability to depart from Reporter's Recommendations
Local Authorities
Aberdeen City Council: The limitation of the scope to depart from the Reporter's recommendation will have an impact on the preparation and adoption process of future plans. Already authorities must give sound planning reasons for departing from a recommendation and these can be challenged in the Court of Session. Limitations to the extent proposed may weaken Members support for development plan policy with consequences, including, significantly, when policy is applied in development control decisions. There is a need to confirm that this will not be applied to the post Inquiry procedure relating to the current local plan.
Angus Council: We agree that the appointment of reporters by Scottish Ministers would further reduce any potential criticism that the Council in any way influenced a full and fair hearing of objections. There is also a strong case for the costs of reporters being met by the Scottish Executive. It is also agreed that the discretion to depart from a reporter's recommendation should be limited and require to be fully justified.
City of Edinburgh Council: It would be more democratic to allow the planning authority to accept or reject any recommendation except where the Reporter has found that the development plan is:
- not supported by the Strategic Environmental Assessment;
- not in accordance with the NPF/national policy or strategic development plan;
- based on flawed reasoning, which could include failure to take proper account of community opinion.
However, the Scottish Executive has not accepted the Council's view that democratically elected planning authorities should have the final say on development plans for their areas. The Council previously considered that the existing power of Scottish Ministers to call in local plans to check compliance with national policy would be sufficient in the future system if applied to local development plans. Consequently, the Council maintains its objection to the principle of restricting the ability of a planning authority to depart from a reporter's recommendations. Furthermore, the White Paper does not adequately address the problem of lengthy statutory procedures between the public local inquiry, or future "examination", and the adoption of the plan. Indeed the requirement to seek Scottish Ministers' approval for a departure from a reporter's recommendations will add to the time taken to adopt as plan following examination. The Council restates its request for the Scottish Executive to propose a much shorter statutory procedure for the adoption of local development plans.
Comhairle Nan Eilean Siar: After examination of plans a degree of local discretion must be allowed, for instance where a major development or change occurs immediately after the Examination; this is not catered for in the White Paper. The requirement for planning authorities to seek Scottish Ministers consent to depart from a reporters recommendation does however allow for a case to be presented to Ministers.
East Dunbartonshire Council: This represents a severe limitation on the ability of a democratically elected Council to determine land use in its own area and could begin to undermine local accountability.
East Renfrewshire Council: It is not clear if the ability to depart from Reporters recommendations is intended to mean that the Scottish Ministers would require to be notified and would have the power to call-in the adoption of the Plan. In any event this should be challenged on the grounds that this is a local matter and should continue to be decided by the local democratic body.
Falkirk Council: Ministers will have the right to intervene in the adoption of the plan, as they have at present. Therefore the only change regarding departures from the reporters' recommendations is the requirement to seek approval from the Scottish Ministers.
Fife Council: More use made of informal hearings, discussions etc Strong support for this proposal as inquiries create barriers to engagement as a result of the intimidating, semi-judicial, nature of proceedings and time involved. Appointment by Scottish Ministers of reporters to local development plan examinations is supported as it introduces transparency and accountability to the process
Glasgow City Council: The White Paper proposes that the scope for Councils to depart from a Reporter's recommendations following a Local Plan Inquiry be limited to specific circumstances. The Council is concerned that this could lead to a loss of local accountability. Judgement reserved on this proposal until further details on the proposal are known. Reducing the local authority's control over the final content of the Plan would be likely to weaken local democracy and accountability. This proposal, when linked to other proposals, for example, scoping matters to go before inquiries and selection of Reporters by the Executive, raises the question of whether or not local authorities should continue to meet the costs of such inquiries. Any perceived collusion between the Reporters and local authorities would be reduced if the SE met the costs of holding inquiries. The fact that there is still some scope to depart from the Reporter's recommendations is welcomed. Careful consideration will be given to all Reporters' recommendations. Any that fall within the scope of the exceptions, as defined by the Executive, are likely to form part of a request by the Council seeking approval that they do not form part of the modified plan. This could result in additional plan production time.
Highland Council: The proposal that the scope for a Local Authority to depart from a Reporter's recommendation should require the agreement of Scottish Ministers appears to be excessive. Already an Authority must give sound planning reasons to depart from the recommendation and these can be challenged in the Court of Session. To go as far as is now proposed could seriously weaken Members buying in to development plan policy.
Inverclyde Council: This is on the whole the right way to proceed, but scope has to remain for LAs to reject a Reporter's recommendations, and the list of likely circumstances given in the White Paper seems to be fair.
North Lanarkshire Council: It is accepted that due weight should be given to Reporters findings but also appropriate that there be circumstances in which the Local Authority might take a different view in respect of certain proposals. In these cases, it is reasonable that the issue be referred to the Scottish Ministers.
Perth & Kinross Council: At present Ministers have the power in exceptional circumstances to prevent a Planning Authority adopting a Local Plan. It is suggested that despite Members concerns, the proposals put forward will enhance the public's perception of the Development Planning system, whilst still retaining a degree of flexibility for the Council.
Renfrewshire Council: Reservation expressed. This differs from the current system where planning authorities can depart from a reporter's recommendation if it feels it is justified. Restricting the ability of a planning authority to depart from the recommendations of reporter to certain specific circumstances and requiring Scottish Executive approval to do so, is a reduction in the power of the local authority. It is contended that the local Planning Authority is better placed than a Reporter to make a decision on a local matter and therefore the final decision should be left with the Authority for such issues. It is however accepted that the Authority should not be able to overturn the Reporter's recommendation on issues of national or strategic importance unless the reasoning of the Reporter in making his recommendation is flawed.
Scottish Borders Council: Reporters' decisions may place additional financial burdens on local authorities.
West Lothian Council: It is recognised that departing from the reporter's recommendation could be viewed as undermining independent scrutiny of the plan and, against this background; West Lothian Council does not oppose the proposal. However, the proposal will add an additional stage to the development plan adoption process which could impact on efficiencies gained elsewhere in the process. There will also be the need for an appeal process where the Scottish Ministers make a direction which is not supported by, for example, the investment priorities of public bodies such as Scottish Water.
Non Departmental Public Bodies
Scottish Environment Protection Agency: Considers that the limited scope to depart from the Reporter's recommendations proposed in the White Paper represents a pragmatic approach that improves consistency and accountability but retains some flexibility.
Sportscotland: In relation to the planning authorities departing from a Reporter's Local Plan Inquiry recommendations, we have no evidence that the current system is deficient. As always there is a difficult balance to be sought between local democracy and proper scrutiny by central government.
The Development Industry
Elphinstone Land: If Reporter's decisions on Local Plan Inquiries are to be made binding, then it would be essential that more than one Reporter should be involved in the inquiry, in order that "maverick" decisions are avoided. This would be necessary to maintain confidence in the system.
Homes for Scotland: The proposals in the White Paper are generally supported, although exceptionally Homes for Scotland members have experienced "maverick" Reporters imposing their own views. There must in such exceptional circumstances be scope to depart from the Reporter's recommendations where there are sound planning or legal reasons. Alternatively, to avoid such problems occurring, consideration should be given to the appointment of a panel of Reporters covering a range of interests and experience including housing and economic development rather than a single Reporter as currently occurs.
James Barr Ltd (on behalf of various development industry businesses): The proposals to make the reporter's recommendations binding upon a Council (unless in a number of specified instances) is a welcome proposal, as there are too many instances at present where Councils deviate from recommendations without justifiable reasoning, leaving no opportunity for further recourse, unless via a legal challenge.
Mactaggart and Mickel Ltd: Rather than attempting to define in what circumstances Reporters' recommendations following examinations will not be binding on the Plans' originators, it would instill much more confidence in the system if there was a clear requirement to accept all Reporters' recommendations, unless on appeal Scottish Ministers decided otherwise when Plans are notified to them prior to adoption. In such cases, parties' views would be sought and taken into account.
Muir Group: The question of whether Reporters findings should be binding could in certain circumstances presents problems and to avoid this occurring some consideration should be given to the appointment of a panel of reporters to cover interests such as housing and economic development rather than relying upon a single Reporters view.
Persimmon Homes: This proposal is welcomed. The position should be further amended to mirror the position in England where the LPAs can not overturn the Inspector's recommendations. The current situation has caused the value of the PLI process to be questioned where LAs have chosen to ignore Reporter's recommendations with little or no justification.
Stewart Milne Homes: We agree that the reporter's findings to Local Development Plan Inquiries should not be made binding. However, it needs to be made clear that authorities should only deviate from these findings where there are sound planning or legal reasons for doing so.
Walker Group (Scotland) Ltd: With regards Reporters Recommendations we are of the view that only in exceptional circumstances should there be scope to depart from the Reporter's recommendations i.e. where there are sound planning or legal reasons.
Other Businesses
Association of Electricity Producers: Proposals to reduce the ability of planning authorities to depart from reporters' recommendations on a local development plan is also welcome as this will bring further certainty to the status of the plan and development management decisions based upon it.
British Energy: Proposals to reduce the ability of Planning Authorities to depart from Reporters' recommendations on a local development plan is also welcome as this will bring further certainty to the status of the plan and development management decisions based upon it.
Scottish Chambers of Commerce: The question of whether Reporters findings should be binding could in certain circumstances present problems and to avoid this occurring some consideration should be given to the appointment of a panel of experts to cover interests such as housing and economic development rather than relying upon a single Reporters view.
Scottish Rural Property & Business Association:SRPBA argued in its response to the consultation Making Development Plans Deliver that the scope to depart from the Reporter's recommendations on the development plan should be limited to only extreme circumstances. We advocated that where the local authority does not accept the recommendation of the Reporter, then the matter should be called in by the Scottish Ministers. We are therefore broadly in agreement with the proposals set out in the White Paper.
Tarmac Ltd: Note from the White Paper that local authorities will have some discretion in whether or not to adopt SEIRU recommendations. We are concerned that such discretion will still expose local plans to a fairly substantial risk of judicial review and delay. In such circumstances, delays in local plan adoption will not be overcome. The local authority discretion continues to be inconsistent with the role of SEIRU on both Structure Plans and (on planning appeal) planning applications, where, subject to judicial review the independent view of SEIRU is binding.
Professional Organisations
Scottish Association of University Directors of Estates: The limited ability of planning authorities to depart from reporters recommendations will only advantage organisations if the recommendation is in their favour. This could be of some disadvantage if the recommendation goes against their appeal, as there would be limited scope to challenge the findings.
Planning Consultants, Architects and Lawyers
Bruce and Partners: This proposal will, in a stroke, reduce the timescale for preparation of a Local Plan by a third.
Collar, Neil: I agree that it should be more difficult for local authorities to depart from the recommendations of a local plan inquiry reporter. The proposal to require the agreement of the Scottish Ministers is a sensible safeguard. The suggested criteria seem to add little, since they are very wide. Rather than unduly complicate the situation, why not just require the authority to seek the agreement of the Ministers? The White Paper states "Where there is substantial local opposition to, or support for, a development plan policy or proposal, and the reporter finds in favour of this view, particularly strong justification will be required from the planning authority". Presumably that statement is directed towards a situation where the reporter finds the opposition or support is based on planning considerations, in compliance with the guidance in SPP1 regarding the non materiality of public concern per se (see page 38 of the White Paper).
Colliers CRE: It is requested that a Local Plan Reporters recommendations are binding upon local authorities, giving all who participate greater confidence in entering and participating in the process that their view can be fully taken into account. This anomaly of the existing system and lack of certainty in the process perplexes many in the business community, that recommendations of an independent reporter can be overturned by the local authority, despite having taken part in the local plan process.
Drysdale, Robert: I believe that Local Plan Inquiry Reporter's recommendations following a local plan inquiry should have a greater level of compulsion than the White Paper envisages. I think it is reasonable to assume that a Reporter will not recommend a policy approach which is in breach of national or strategic policy, and consequently I do not think that local authorities should be allowed to use such an excuse to impose policies which have been rejected by a Reporter.
Keppie Planning Ltd: Whilst the proposed mandatory examination for Development Plans by the Scottish Executive Inquiry Reporters is welcomed, there needs to be clear guidance as to the circumstances wherein the Planning Authority can depart from the Reporter's recommendations.
Paull & Williamsons: We note the proposal to increase the use of written submissions and non-adversarial procedures to examine development plans. We understand the desire to promote more user-friendly procedures but there is an important issue of confidence here. Cross examination is an effective way of exposing weaknesses in plans and experience shows that quite often there are weaknesses to be exposed. It would be unfortunate if the result of a move away from an adversarial process was a more superficial testing of development plans; and our experience with written submission appeals is that that could well be the outcome. There is a further issue of confidence with the merit testing procedures for development plans and that is the relationship between the planning authority on the one hand and the Inquiry Reporters' Unit and the Scottish Executive Development Department on the other. Our view is that greater distance needs to be established with a planning authority whose development plan has been deposited for examination. Traditionally, reporters have worked closely with and have liaised extensively with planning authorities and 'behind the scenes' meetings and correspondence have sometimes taken place with SEDD officials. While we understand why this has happened, the perception among objectors is of some lack of even-handedness, a perception which is aggravated by the fact that so many reporters are appointed from the ranks of former local authority planning officers.
Turley Associates: Support the retention of the right of Council's to depart from Reporters' recommendations in the circumstances outlined in the White Paper.
Academic Bodies
Macaulay Land Use Research Institute: We would question the tendency to present the local authorities as 'guardians of the public interest' given the huge literature on local power struggles and the history of conflict within local government and governance partnerships. Neither local authorities nor the 'public' are homogenous entities with shared values or visions and to present them might be viewed as naïve.
Universities Scotland: The limited ability of planning authorities to depart from reporters recommendations will only advantage organisations if the recommendation is in their favour. This could be of some disadvantage if the recommendation goes against their appeal, as there would be limited scope to challenge the findings.
Community Councils
Broughty Ferry Community Council: The appointment of Reporters who are independent of the Local Planning Authority ( LPA) is welcomed. Limitation of the Planning Authority's scope to depart from the Reporters recommendations is welcomed. However, the LPA will still be able to approve planning applications which mimic the authority's own draft policies in an unadopted plan. In such circumstances a PLI can be worthless as far as third parties are concerned. In such situations the applications should be called in. This could be triggered by third parties on the basis that the Adopted Plan is contravened or that the LPA has an interest.
Currie Community Council: We agree that Local Authorities should generally be required to accept a reporter's recommendations. We agree that Local Authorities should be able to accept a review of the reporter's conclusions and that Scottish Ministers should have the final say.
Helensburgh Community Council: Curtailing departures from the LDP is welcome, but local community groups - especially community councils - will require additional resources to ensure that the LDP is well-founded in the first place. It will also be important that the proposal that the Scottish Executive Inquiry Reporters Unit ( SEIRU) would examine unresolved objections to the draft Local Development Plan ( LDP) is retained into legislation.
Voluntary Organisations
Brethren Gospel Trusts: It is submitted that the Reporters findings after the Local Development Plan Examination should be mandatory on planning authorities. This provision alone should significantly reduce the scope for examination delays in adoption of Local Development Plans.
Colinton Amenity Association: We support the requirement for a planning authority to have meaningful discussions with objectors and to seek to resolve objections where possible. But we are worried about the term 'negotiate' as this implies that some compromise deal will have to be done, whereas there will be situations where issues of principle are involved and negotiation will not be possible e.g. a proposed development on a green space highly valued by a community, where development of any kind would destroy its character and qualities. We presume that discussions on objections will precede a mandatory examination of plans. We consider it is important that SEIRU is seen to be independent at all times. We also appreciate the difficulty that reporters may have in reaching a balanced decision on cases, if primacy is given to the development plan, which contains an intrinsic bias to facilitate development. In such circumstances, we are not sure how balance, as perceived by communities, can be achieved? Hence, in the interests of 'transparency', we believe that the criteria used by reporters in reaching decisions should be in the public domain.
Gatehouse Development Initiative: I am glad to see the appointment of a Reporter will be by Scottish Ministers and not the regional bureaucracy. Hopefully your new Bill will make it easy for anyone to raise matters with the Reporter, untrammeled by local bureaucratic procedures.
Helensburgh Green Belt Group: The HGBG supports the intention to strengthen the degree of certainty of the Local Development Plan and the intention to restrict departures from it.
Helensburgh Study Group: We greatly favour this proposal. It goes a long way to resolving our concern that the SEIRU should be the safety net. We record here the general confidence which is held locally for the integrity and fairness of the Scottish Executive Inquiry Reporters Unit. The whole system depends crucially on those qualities and we urge not only the continuation of the Unit but its strengthening.
Private Individuals
McMichael, Alexander: Planning issues are some of the most important and, as far as the voters are concerned, transparent issues that councillors decide upon and yet time after time their decisions are seemingly overturned by an unknown, unelected "Reporter" from Edinburgh. Often these decisions are not only against the councillors' wishes but also against the majority of the public's wishes. The "Reporter" should only be able to overturn a planning decision if it is erroneous in law, can be seen to be "personality driven", corruption has taken place etc. They should not be able to overturn a decision because of a difference of opinion. If the councils continue to lose control over basic planning matters: even mundane things like the situation of betting shops, and the power of the "Reporter" is not curbed more and more of the electorate will decide there is little point in voting. The so called democratic deficit will therefore continue to grow. Any changes in the planning procedure should include a review of the "Reporters" powers.
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