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DEVELOPMENT PLAN EXAMINATIONS

Principles for examinations

5. The scale of objection to local plans and the nature of the local plan inquiry process have been identified as significant causes of delay in the adoption of local plans. In 1996, PAN 49 envisaged a one week inquiry and the report being prepared in six weeks, but the length of most inquiries has greatly exceeded this with the entire process, including writing-up, taking in some cases up to two years. This situation is clearly not conducive to the efficient delivery of relevant up-to-date development plans. Many people, particularly those not used to legalistic or planning procedures, found the arrangements off-putting and not helpful to them in stating their concerns about proposals. While these defects have largely been addressed by improvements in practice, the unwieldiness and delay caused by the scale of objections has not. A major aim of any revised procedures must therefore be to reduce the time taken for examinations while still ensuring that significant planning issues and community concerns are properly examined.

6. A key change in adopting the new terminology of 'examination' is to move away from the presumption that there will be an inquiry, to the carrying out of an examination, comprising a range of methods, including written submissions, hearings and inquiry sessions. In many cases, written submissions will be the most appropriate route to consider the issues raised and no further oral sessions will be required. Sections 12(3) and 19(5) of the Act stipulate that the form the examination is to take is at the discretion of the appointed person, and paragraph 25 describes how this may be determined.

7. In drafting these regulations, we have therefore identified the following principles. Examinations should:

• take significantly less time than the current process;
• be focussed on the appointed person seeking out the information he feels he needs to reach conclusions on the matters at hand;
• be into the issues raised in representations rather than responding to each and every individual representation;
• be succinct and proportionate;
• ensure it is as easy as possible for people to get involved; and
• be as similar procedurally for SDPs and LDPs as possible.

Q1 Do you agree that these principles should underpin the regulations and guidance for development plan examinations?

Examination methods and procedures

8. For both SDPs and LDPs, the 2006 Act allows examinations to comprise a combination of written submissions process, hearings and inquiry sessions. The way in which these elements will be combined will vary for different plans, depending on the nature and scale of the issues. For example, the range of main issues raised in representations is likely to be more restricted at strategic level, and therefore the manner in which an appointed person carries out the examination will differ, possibly involving hearings in the form of round table sessions on a topic basis for those issues where an exchange of views is required. Such a process was used very successfully for the recent examination in public of the Bishopton element of the proposed Alteration to the Glasgow and Clyde Valley Structure Plan.

9. We also consider that the precise procedures for each of these elements should be able to adapt to different circumstances. For example, it might be appropriate for different timescales to be set for submitting evidence depending on the number and origin of representations on the plan and the issues raised. In this context, while the Act and regulations will set the overall framework, we do not propose to include detailed procedures for each of the elements in the regulations. This recognises that not all aspects of detailed procedures for examinations are suitable for regulation. In not seeking to prescribe detailed procedures, we are mindful that procedures for local plan inquiries and examinations in public have not hitherto been subject to regulation, and we are reluctant to regulate unless there is a clear need. Finally, the less formal nature of development plan examinations in comparison to appeals (in that the appointed person is not making the final decision, but making recommendations) may justify a less prescriptive approach.

10. Key to this approach would therefore be the guidance that supports the new regulations. We expect to issue further guidance in the form of a code of practice for development plan examinations, in the course of 2008. In the meantime, the existing Circulars 6/1985, 1/1996 and 32/1996 will remain relevant for local plan inquiries and examinations in public into structure plans prepared under the outgoing system until the new system is commenced in late 2008.

11. However the powers do exist to make more detailed regulations in this area, and some may argue that prescribing the procedures to be followed would deliver more certainty and transparency to the examination process. If the regulations were to include detailed procedures for written representations, hearings or inquiry sessions, these would be likely to be similar to those for appeals. We would welcome views on whether these regulations should be more prescriptive in this area.

Q2 Do you support the use of a new code of practice to set out the detailed procedures for examinations, rather than prescribing this detail in regulations?

12. The consultation on the Draft Regulations on Development Planning published in October 2007 covers the transitional arrangements in moving from the one legal framework for development plans to the next. In relation to examinations, it proposes that plans started under the current system that have reached the early stage of consultation but have not issued a notice of an examination in public or a local inquiry at the time of commencement of the new system, shall follow the new examination procedures under the Planning etc. (Scotland) Act 2006. For further details, please see Annex C of that consultation at: http://www.scotland.gov.uk/Publications/2007/10/31093026/0.

Appointment of a person to examine the plan

13. The Act requires Scottish Ministers to appoint a person to hold an examination where there are unresolved representations or, in the case of SDPs, the constituent authorities of the SDPA submit alternative proposals, or Scottish Ministers otherwise consider it appropriate to hold an examination. In the case of LDPs, the Act requires the planning authority to request such an appointment when they submit the plan.

14. The appointment is to be advertised in a local newspaper and in local libraries and the people who made the unresolved representations are to be notified. Draft regulation 4(3) also proposes that this advert and notice should also include information on where documentation connected to the examination can be viewed. In the case of SDPs, this is the responsibility of Scottish Ministers: in the case of LDPs, it is the responsibility of the planning authority.

15. Section 12(4)(b) of the Act requires Scottish Ministers to serve notice of the appointment of the person to examine a SDP on the SDPA. Draft regulation 4 also requires Scottish Ministers to send a similar notification to planning authorities in the case of examinations into LDPs.

16. A key principle of the revised examination procedure is that, as far as possible, the appointed person should be furnished with all the information required to reach conclusions and recommendations at the outset. Regulation 4(2) therefore sets out a list of material that the planning authority/ SDPA should supply. This includes copies of the relevant representations, the authority's statement of reasons for not taking representations into account, and the authority's summary of the issues raised in representations. People who have made representations and the planning authority/ SDPA have no right, and should not expect, to submit any further material to the examination beyond this unless required to do so by the appointed person. This important shift of emphasis reinforces the front-loading of the process, ensuring that the appointed person, the planning authority and other interested parties have the relevant information up front to inform the examination of the plan. It will be important too in meeting the requirements for Strategic Environmental Assessment that full information on sites and alternative options is submitted early and not held back until the later stages of plan preparation or even the examination.

Examination of Conformity with Participation Statement

17. Before considering the general issues raised in representations on the plan, sections 12(2) and 19(4) of the Act firstly require examination of whether the authority has consulted on the plan and involved the public in the way they said they would in their participation statement. In carrying out this assessment, we envisage that the appointed person will only refer to existing published documents such as the participation statement itself, the authority's statement of conformity with this, and any representations relating to the authority's consultation and public involvement activities. We do not expect any additional evidence to be invited on these matters because we are reluctant to create an opportunity for delay. However we recognise that this approach would limit the information available to the appointed person, and could bar parties claiming not to have been made aware of the plan from stating a case that the authority did not meet its commitments regarding participation. Therefore the draft regulations do not actively restrict the matters to which the reporter may refer, and allow him to request further information in exceptional circumstances.

Q3 In order to ensure an efficient process, should the draft regulations restrict the matters to which the appointed person may refer in assessing the authority's conformity with its participation statement?

18. Where the appointed person finds that an authority has not acted in conformity with their participation statement, sections 12A(1) and 19A(1) of the Act require him to prepare a report setting out the reasons for his dissatisfaction and recommending the further steps the authority should take. The Act allows the authority to challenge this and for Ministers to make a direction. But in any event, in these circumstances the remainder of the examination will be delayed until this has been resolved.

Scope of Examination

19. Draft regulation 5 proposes limiting the scope of matters to be assessed in an examination to issues raised in representations. We envisage that these issues will in the first instance be set out in the summary of issues prepared by the local authority/ SDPA. The appointed person would have the ultimate ability to add to or redefine the issues to be assessed, but at all times these must be limited to issues raised in the original representations. Our intention is that if any individual policy or proposal in the plan is subject to representations, then this will generally be dealt with as a separate issue. But if multiple representations are made on one policy or proposal, the appointed person may choose to deal with these as a single issue. The appointed person will therefore produce conclusions and recommendations on each issue, but not on each representation. The intention in regulation 5 is also to prevent the scope of the examination spreading to become a wider test of the soundness of the plan.

Q4 Are you satisfied that the proposed scope of the examination successfully balances the need for a speedy and efficient process with a rigorous assessment of appropriate issues?

Q5 Specifically, where should responsibility lie for identifying the issues to be assessed in the examination?

Matters to which the appointed person may refer in making the assessment

20. In making his assessment, the expectation is that in most cases the appointed person will rely on the information contained in (or published documents referred to in) parties' original representations and the planning authority's/ SDPA's response as submitted to him at the outset of the process. As stated above, it is therefore essential that parties state the entirety of their case in their initial representation or, in the case of the planning authority/ SDPA, their initial response. The scope for new evidence and documentation to be introduced into the examination at a late stage will be limited in order to increase certainty and minimise confusion.

21. The Act allows Scottish Ministers to produce regulations to define to which matters the appointed person may refer. Such a list could include the representations themselves, the authority's response and any further representations sought by the appointed person, but also other key documents such as the National Planning Framework. Such a list would provide clarity and transparency as to the matters on which the appointed person could base his conclusions and recommendations. But our current view is not to regulate in this area. Because we cannot predict the variety of circumstances or new considerations that may arise over the lifetime of the regulations, it would be difficult and unhelpful to restrict the matters to which the appointed person may refer. However, our intention is that the appointed person will generally only refer to matters contained or referred to in original representations, the authority's response, any further representations asked for by him and a limited number of other key published documents.

Q6 Should the regulations set out a defined list of matters to which the appointed person can refer in assessing the plan, and if so, which matters should be included in such a list?

Further representations

22. In a limited number of cases, the appointed person may feel that he does not have all the information he needs to make a proper assessment of an issue. In these circumstances, draft regulation 6 allows further information or representations to be requested from:

• People who made representations;
• The planning authority/ SDPA;
• A key agency (list proposed in the draft development planning regulations);
• A neighbouring planning authority or national park authority, or an authority in the same SDP area;
• The Health and Safety Executive; and
• Scottish Ministers.

23. The intention is therefore that the appointed person can seek out the information he feels he requires from a wider range of parties than under the outgoing system, in which evidence is largely limited to the objector and the planning authority and their witnesses/ consultants. For instance, regulation 6 would allow Scottish Natural Heritage to be asked to supply evidence on the landscape impact of a potential development site suggested in a representation and on which SNH had no published view.

Q7 Are there other bodies beyond those proposed in regulation 6(4) from whom it should be possible to seek further representations?

24. We wish to be clear that there need be no link between the importance of an issue and whether the appointed person seeks further representations on it. There may be issues of great significance where he feels he has all the information he needs to reach a conclusion without any further input. Conversely, he may feel unable to make a recommendation on a relatively minor issue without further information.

25. As well as determining on which aspects of which issues, and from which parties, further representations are to be received, the Act is clear that it is the appointed person who will determine the form the examination is to take. As discussed above, we anticipate that most examinations will be hybrid in form: we expect the majority of issues can be dealt with without any need for further information to be submitted; where further evidence is requested, this will normally be in written form; and where an oral session is required to elicit the required information, this will normally follow the hearing format rather than being formal inquiry sessions. Individual issues may also frequently be dealt with using a number of formats. For instance the appointed person might feel he had adequate information on the landscape impact of a proposal, seek further written evidence on transport impacts, and convene a hearing to discuss recreational provision. We are not proposing any formal stage in the process where parties can state a preference as to the form of examination they would prefer, but such a statement could be included in the original representation or the authority's response. Figure 1 illustrates diagrammatically the ways in which representations and issues may be handled.

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