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Appeals based on original material
Local Authorities
City of Edinburgh Council: In general this is welcomed but there is a potentially negative effect in that improved schemes will not be considered and that an appeal could be sustained on an earlier and poorer proposal when the planning authority has been able to negotiate an improved scheme. Nevertheless, the early sieving of appeals would suggest the early dismissal of appeals against a refusal based on the applicant failing to submit information judged necessary by the planning authority. The Council highlights the potential negative effect on achieving an improved scheme and requests that further consideration be given to procedural guidance that addresses situations where improved schemes that meet previously expressed community concerns can be considered at appeal.
East Lothian Council: The welcome proposal that the appeal be restricted to a review of the material available to the planning authority when it made the decision is, however, inconsistent with the proposal that developers be allowed to lodge unilateral undertakings to overcome objections, for example regarding lack of infrastructure; clearly the content of this obligation would not have formed part of the material considered by the authority, nor would it have been available for public comment.
Glasgow City Council: This could reduce the amount of work which Council officials may require to undertake on appeals against the refusal of planning applications.
Moray Council: This means an applicant will no longer be able to submit additional information to justify the proposal, or submit revised details to reduce or improve the impact of the development. This introduces both certainty about what will be built and simplifies to the process to no more than a review of the local authority's decision. This is as opposed to the current position where a Reporter has to consider the proposal as if it were made to him/her in the first place a position not always understood by local people attending an appeal. If changes are not allowed the only alternative will be the submission of a new planning application. If limited changes were to be accommodated resulting in an improvement and avoid another application, is there really a problem?
North Lanarkshire Council: Determination of appeals based only on original application submission and representations is also welcome. However, if Planning Authorities' appeal submissions are to be limited to the original report only, this may require longer committee reports and, consequently, more officer time.
South Lanarkshire Council: These proposals are broadly supported, however it should be noted that this could lead to extensive supporting material being submitted by applicants which in turn could have resource and timescale implications in processing and assessing the material. Further, the nature of the supporting material could be specialist in nature thereby making it less accessible to the community. Therefore, they may be a need to provide guidance to developers to supply 'non-technical' reports as is the case under Environmental Assessment regulations.
Non Departmental Public Bodies
Scottish Water: The proposed detail that no further information can be brought into an appeal would mean that planning applications, in theory, would have to provide all information that could potentially be later required as evidence to an appeal. This would clearly not be practical for all applications and would therefore be contrary to the white paper's objective to make the system more efficient. Additionally there would be no opportunity for the applicant to address reasons for refusal that were not reasonably part of the supporting information. The opportunity to submit further material only in respect of the reasons for refusal might provide more flexibility in practice to enable the Reporter to have all the information necessary to determine the appeal.
Development Industry
Glasgow Harbour Ltd ( GHL): We consider that this proposal could result in a large number of planning appeal decisions being out of date if up to date evidence is to be kept out of the planning appeal process. It should be noted that it is often a number of months from the submission of an appeal before the Scottish Executive Inquiry Reporters Unit allocate a Reporter to the appeal and then there are often significant delays before the appeals are progressed either by written submissions and / or inquiry.
James Barr Ltd (on behalf of various development industry businesses): This would prevent planning authorities or appellants from undertaking additional work to support their view on the planning application and will, in most cases, place an additional burden upon developers to submit a full range of supporting material (details of landscaping, drainage, highway matters etc) at the planning application stage that they may wish to rely upon should any scheme be the subject of an appeal. It is unclear whether this is the intention of the proposed alteration and further clarification is sought on this point before any amendment is taken forward as part of a future Planning Bill. In any case, our clients consider that rather than restrict the scope of an appeal to the application as originally submitted, there should be a greater degree of flexibility in the consideration of appeals to allow the Reporter perhaps the scope to consider whether a modified or smaller scale proposal would be an acceptable alternative, as is the case at present, but also be empowered to grant planning permission for that proposal. Such a move would have both significant time and costs savings for all involved in the assessment process.
Scottish Retail Property Ltd: The requirement that appeals should only be determined on the basis of the material supplied to the planning authority seems to us to be highly idealistic. Not only would it prevent changes being made to the proposals to make them more acceptable but it would also prevent genuine new information being put forward, such as new Scottish Executive guidance, changes to the development plan or more up-to-date census data. It should be remembered that it usually takes several months before an appeal is eventually heard and in planning, a lot of things can change in this time. Whilst the submission of new material at the appeal stage may be frustrating for the planning authority and perhaps the Reporter, we do not believe it causes any real delay in the processing or determination of an appeal which is the main issue in this matter. We are therefore opposed to this proposal.
Other Businesses
ASDA: It is a long established principle of planning law that planning decisions are determined with reference to all material considerations at the time the application is determined. This proposal would require a significant departure from that legal principle. It could just lead to time being taken up in arguments about whether the introduction of new material is justified. It could also hamper rather than harm community representatives' ability to oppose or support an appeal proposal at an inquiry.
Association of Electricity Producers: The Association considers that developers should be able to revise significant sections of an application prior to an appeal. Appeals which are solely a review of the material available at determination prevent developers from improving applications prior to appeal. By allowing appeals to consider a revised application, the appeal is more likely to be successful. This would prevent developers form having to start a new application with a slightly revised application following an appeal. This would increase the effectiveness of the planning system and reduce costs for applicants.
British Energy: The proposal for appeals to consider only the material, which was before the planning authority for determination, has some merit. However as at present there is some discretion allowed for limited changes to be made to proposals we think this should continue. We are not suggesting that significant changes should be accommodated but minor modifications, which inevitably arise over the course of a project, should, within reason, be permissible.
Crown Castle UKLTD: We acknowledge the aim of curbing the tendency for development proposals which have been appealed to alter and the justification for them to grow at appeal through additional representation. However we feel that the appeal process should not seek to withhold the opportunity for the appellant to provide additional information which may seek to clarify any points of refusal or explain certain technical aspects which may not have been drawn out at application stage.
Mobile Operators Association ( MOA): The proposal to revert to appeals being a review of the decision by the LPA based on the information supplied to the LPA could lead to some problems and an increased workload for all those involved. For example, alternative site information is a recognised material consideration in assessing a telecommunications application. Whilst most applications provide information in this regard, the availability of alternative sites differs dramatically from location to location. Often applications are refused for an "inadequate assessment" of alternative sites. In order to address this the operators often follow up any refusal by looking at further options in order to avoid the longer and more expensive route of lodging an appeal. However, should no site be found, the operator will need to revert to the refused site by means of appeal. We feel that any further information gathered in this respect should then be visible for the decision maker to satisfy themselves (or not as the case may be) that all alternatives have been explored. Otherwise the operator may find itself back at the refused site lodging an identical application. Bearing in mind the powers proposed to avoid repeat applications we can foresee problems with this approach.
Scottish Environmental Services Association ( SESA): We note that the Executive proposes that all planning appeals will revert to being a review of the decision made by the planning authority based on the material supplied to the planning authority. If the Executive persists with this proposal we agree that it should apply equally to the applicant and to residents.
Scottish Power: We do not support the proposal to 'freeze' data at the decision time in advance of a Public Inquiry. The very essence of EIA is to encourage the Developer to seek solutions to environmental issues throughout the development process. A data 'freeze' would prevent such solutions from being developed. Very often solutions may be developed to address SC or community concerns in the interim period between decision and Inquiry and it is in everyone's interests that this flexibility is retained. The opportunity to put an appeal 'on hold' must remain.
Tarmac Ltd: This seems fair in principle if applied to all parties involved. It could perhaps encourage a useful final round up between applicant and authority prior to decision. The allowance of last minute objections, pleas at hearing and ultimate reasons for refusal can however remain surprising thereby necessitating further work prior to appeal of submission.
There must however be latitude to allow some new submission to cater for material changes in circumstances in the period from the planning application being considered to the appeal being determined. There must also be scope for the applicant to address matters that only cropped up during the committee stage but that ultimately had a significant bearing on the decision.
Universities Superannuation Scheme Ltd ( USS): We consider that this proposal could result in a large number of planning appeal decisions being out of date if up to date evidence is to be kept out of the planning appeal process. It should be noted that it is often a number of months from the submission of an appeal before the Scottish Executive Inquiry Reporters Unit allocate a Reporter to the appeal and then there are often significant delays before the appeals are progressed either by written submissions and / or inquiry.
Professional Bodies
The Faculty of Advocates: The Faculty appreciates that this is a controversial area with arguments on both sides. The Faculty is however, on balance, against a restriction of the right of appeal. One of the likely problems to emerge is that the developer will have to err on the side of caution and front load his preparation of the application i.e. by instructing consultants etc. He will have to ensure that some apparently minor point is not overlooked otherwise, should the application be refused for lack of information, he will not be allowed to lead new evidence and so the recourse to appeal will be lost. The thinking behind the proposal is presumably that the processing agreement should already have focused what is required from the developer. We feel this is optimistic as there is always the potential in planning for further issues to arise on detailed reflection of the case. Also there are cases where the development is controversial and the council is quite likely to refuse the application at first instance. We are all too familiar with the practice of certain councils to insert "add on reasons" for refusal. Thus in order to guard against such practice, it is quite likely there will be unnecessary expense for the applicant. Obviously there is a risk of injustice should the council act this way since an unwary applicant will have lost his right of appeal. There is also a risk of injustice where new information comes to light. This is a recognised phenomenon in a dynamic process such as planning. For example, the existing inquiry rules already acknowledge the inevitability of post inquiry information and make provision for it. Assuming the appeal is limited to the matters considered by the local planning authority, it is very possible that all 'material considerations' will not, therefore, be considered by the reporter. Accordingly section 37 will require amendment, which is a fundamental change. The reporter will not be able to take an "overall view" of the merits of the proposal. Thus there is a risk his professional standards may be compromised. Paradoxically, the appeal may become more 'judicial' since the reporter will require to take decisions on relevancy of material on a 'no record' basis. The argument for this reform is that planning proposals may alter and grow after consultation with the community. The community is then, as it were, 'excluded' from participating in an amended proposal. We think that introducing such rigidity into the procedure could have most unfortunate consequences. In practice, proposals tend to be modified during scrutiny rather than actually being expanded. This is only natural. It seems an ineffective use of resources for the system to be able to determine what would be an acceptable scale of development, after due process, only to refuse the application on the technical ground of amendment. The reform is also somewhat inconsistent with the present use of wide conditions which themselves can affect the scale of development, but which are of course invoked by the planning authority and not the third parties. We suspect parties could get round new legislation (and there would have to be legislation) simply by invoking wide suspensive conditions.
The Law Society of Scotland: The Society has concerns about the proposal that applicants should not be able to revise development proposals during an appeal with a view to making them more acceptable. If the outcome is a more sustainable, high quality proposal, where is the problem? Particularly in non-determination appeals this may not be realistic in practice.
Planning Consultants, Architects and Lawyers
Collar, Neil: I do not agree with the proposal for planning appeals to be a review of the decision made by the planning authority based on the material supplied to the authority by the applicant. That would prevent the applicant from submitting material in response to reasons for refusal from the authority involving issues not previously raised with the applicant. That is particularly important for decisions made contrary to officer recommendation. The alternative is for the applicant to submit the fresh material with a fresh application, often knowing that the application is very likely to be refused, merely to ensure that the fresh material can be considered as part of an appeal. It is much more efficient for all concerned to allow the fresh material to be included as part of the appeal against the first decision. In cases where significant information, such as a transportation assessment, was only provided after the appeal had been lodged, the answer might be to restrict the right of appeal against a deemed refusal to ensure that the applicant/ appellant provides all the necessary information to the local authority prior to the appeal. Another approach would be to amend the expenses rules to enable reporters to penalise applicants/ appellants who act unreasonably by submitting information which could have been submitted prior to the appeal.
Drivers Jonas: We consider that this proposal could result in a large number of planning appeal decisions being out of date if up to date evidence is to be kept out of the planning appeal process. It should be noted that it is often a number of months from the submission of an appeal before the Scottish Executive Inquiry Reporters Unit allocate a Reporter to the appeal and then there are often significant delays before the appeals are progressed either by written submissions and / or inquiry.
Drysdale, Robert: I do not think it is reasonable to expect all applications to consist of absolutely all supporting information at the outset and to insist that an appeal should only look at that initially-submitted information. In many cases the planning authority will, at some point during the processing of an application, suggest amendments or require additional investigations to be carried out. As planning authorities will be in control of neighbour notification, the authority can ensure that interested parties are informed as soon as any supplementary information is submitted or amendments are made. It is part of a sensible flexible planning process that proposals will evolve as they are processed, and there should be no objection to that, provided interested parties are kept informed.
Hargest & Wallace Planning: The principle of only considering evidence submitted for the planning application is supported provisionally. However there are two important caveats. The first is for the reporter to make an informed decision that key additional evidence is required to be provided by either or both sides. The second caveat is that a reporter's decision at appeal can only be made on the evidence submitted at the appeal. Unfortunately it is our experience that, in some cases, decisions are made on the basis of the reporter's own judgement/experience which is at odds to the main parties at the appeal and for which no evidence has been considered and responded to be the appeal parties. This will, of course, assist in simplifying decision letters and contribute to speeding up the process.
Muir Smith Evans: We would accept the intention to make appeals a review of the decision, rather than a moving feast with new evidence being submitted. However we have two comments. Firstly, there should still be flexibility to allow additional presentational material to be submitted where this assists all the parties (including the reporter) in understanding the issues and information which are under review. Secondly, in cases where planning committees refuse applications against the advice of their officers, they should be required, at the public committee meeting at which the application is determined, to state there and then the full reasons for refusal. It is not acceptable that planning authorities should be allowed to delay the issuing of a decision notice for weeks (which is not unusual) whilst reasons for refusal are thought up, often in association with the same officers who recommended approval. If appellants cannot introduce new material after a committee decision, the same rules should apply to planning authorities.
Paull & Williamsons: We think this proposal runs counter to the objective of promoting sustainable high quality development. If changes during the appeal process (and they can only be changes which reduce rather than increase the planning impact of the development) would result in a better development, what is the problem? If they are made during the appeal process (for example, a reduction in the number of houses) there is an opportunity to notify the local community so that they can comment on the changes; there may also be an opportunity for the planning authority to obtain the view of their planning committee on the changes. That is more than can be said for such changes imposed by reporters by way of conditions on a grant of planning permission -and such changes could still be made by condition notwithstanding the proposals in the White Paper.
Community Councils
Currie Community Council: This should refer to the information submitted at the time of the original planning application on which people have had an opportunity to comment and on which the Local Authority planning committee has formed its decision. We have seen evidence produced at Public Inquiry that has not been seen either by the public or by the planning committee, being used to form the basis of a decision by an SEIRU reporter. To be publicly transparent, we agree that decisions need to be made only on information that has been available to the public.
Hillhead Community Council: We agree that any variation of the original application should be re-advertised.
Liberton Community Council: We commend the proposal in 5.3.3 (paragraph starting 'In addition') that developments should not be allowed to mutate without proper consideration of new material.
Voluntary Bodies
Brethren Gospel Trusts: We respectfully submit that this is a retrograde step and is likely to result in more detailed information being submitted in the first instance. Whilst we appreciate and concur with concerns regarding material amendments to development .proposals at the appeal stage, we believe that a more detailed presentation of the appeal proposals with additional clarification or explanation can often assist in the appeal process in contrast to a resubmission of an application refused for reasons of misunderstanding.
Pollokshields Heritage: We totally concur that an appeal should not be allowed to consider material submitted after the decision has been made. If the applicant wants new material to be considered then we suggest s/he should make a new application, with new fees, after the expiry of the time bar. What infuriates us, as a community group, is the introduction of new material after we have examined the file during the notice period, and after we have lodged representations. There is no obligation to re-notify affected parties. It is compounded when permission is granted subject to satisfying the planning officer on a matter such as building materials which has been a matter of specific objection and when the rules require an application to be submitted in detail.
Portobello Campaign against the Superstore: There should be no introduction of new evidence to an appeal and the review should be purely on the evidence put before a planning committee when they assessed the application. At a recent PLI we were involved in, the developers produced much new evidence at the start of the inquiry and indeed the inquiry was suspended half way through for the developers to prepare more evidence.
Scottish Civic Trust (and Civic Trust Network): It will ensure that planning information is submitted up front for all parties to consider. It will end the inequitable practice of submitting little information, then appealing at the first opportunity on the belief that it will be easier to get a consent from Scottish Ministers than the LPA.
Scottish Environment LINK: We are concerned that the proposal to allow appeals to be dealt with only on the basis of the material originally supplied to the planning authority would appear to create an artificial situation for all parties. In particular, we are concerned that in the event of a delay the decision could only be taken on the basis of evidence presented at the time not contextual changes arising since.
Scottish Renewables Forum: We would also underline that restricting the scope of appeals to being a review of the material available at determination unreasonably restricts the scope to make useful amendments to proposals following consultation and that too rigid an application of rules on the matter will inevitably lead to challenges by judicial review from aggrieved parties ( e.g. from an objector challenging the legality of an approval, where post-determination changes have been agreed between the LPA and the applicant). We would be grateful for clarification on whether the same approach will be adopted for appeals against non-determination. We would also underline the importance of being able to sist appeals
Scottish Wildlife Trust:SWT supports the policy intention but can foresee potential difficulties if there is any delay in commencing an enquiry. Certain circumstances could occur where reconsidering new information is a necessity and the reporter must be given some discretion to address these instances. This should only happen in a few specifically prescribed circumstances and revisions of the initial application should not be allowed. A two month time limited on appeals would be more appropriate given this policy.
Private Individuals
Anonymous: I would also welcome the proposal that appeals should be decided on the basis of the original application. In our experience a huge amount of additional environmental information was supplied by the developer to the parties at the PLI six weeks before the PLI was due to begin and fourteen months after the original application was put before the Local Authority. This practice reinforces the public perception that the whole process is weighted in favour of the developer.
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