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ANNEX D

PARTIAL REGULATORY IMPACT ASSESSMENT

1. TITLE OF PROPOSAL

1.1 The proposed measures to which this partial RIA relates are:-

• The Town and Country Planning (Schemes of Delegation) (Scotland) Regulations 2008
• The Town and Country Planning (Scotland) (Local Review Procedure) (Scotland) Regulations 2008
• The Town and Country Planning (Scotland) Appeals Examination Regulations 2008

A holistic approach to assessing the impact of the three regulations has been adopted given their interrelated nature.

2. PURPOSE AND INTENDED EFFECT

Objectives

2.1 The Regulations are required to implement sections 17 and 19 of Part 3 of the Planning etc. (Scotland) Act 2006, regarding schemes of delegation, local reviews and appeals. The regulations are expected to be brought into force towards the end of 2008.

2.2 The proposals are intended to make the process for challenging planning decisions more efficient without losing the high quality of service provided under present arrangements. The Government's intention is for the planning system to be fit for purpose and for its response to applications or appeals to be proportionate. Accordingly we need to ensure that the appeal process avoids unnecessary complexity or lengthy procedures that do not add value to the quality of decision.

Background

2.3 The White Paper Modernising the Planning System signalled the intention to modernise the planning system and the Planning Etc (Scotland) Act 2006 now provides the primary legislative framework for change.

2.4 The White Paper underlined the need for planning decisions to be made quickly so that the Scottish economy is not disadvantaged. It also highlighted the importance of allowing those wishing to make their views known without being intimidated by the process. It proposed that the right to examination by formal inquiry process should be restricted to those issues where the subject matter could not be addressed through less formal procedures such as by a hearing or by written submissions.

2.5 The White Paper also set out the need to curb the tendency for proposals to change during the planning and appeal process and for justification for them to alter without reference to the local community. This is consistent with the principle of front-loading the planning system.

2.6 The Government Economic Strategy (November 2007) identifies five Strategic Priorities required to deliver increasing sustainable economic growth. The Strategic priority relating to Infrastructure Development and Place sets a number of key strategic approaches which the Scottish Government will pursue including " A planning and development regime which is joined up, and combines greater certainty and speed of decision making within a framework geared towards achieving good quality sustainable places and sustainable economic growth". Effective schemes of delegation and appeals and review procedures support the overall objective of promoting sustainable economic growth.

Rationale for Government intervention

2.7 The regulations are required by the Planning etc. (Scotland) Act 2006. Sections 17(1), 17(4) , 17 (10) and 19(5) of Part 3 of the 2006 Act give Scottish Ministers powers to make regulations covering schemes of delegation, local reviews and appeals. The expectation among stakeholders is that these powers will be used, and the regulations are required to make it clear how the system should operate in practice.

3. CONSULTATION

Within Government

3.1 The draft regulations have been subject of discussion and internal consultation with the Directorate for Planning and Environmental Appeals, Historic Scotland and Transport Scotland. Various individual points have been discussed with other relevant parts of the Scottish Government including Civil Justice, Law Reform and International Division and the Public Service Reform Directorate.

Public Consultation

3.2 The proposals subject of this consultation have been discussed with a number of organisations and bodies, including:

• Scottish Committee of the Council on Tribunals/ Administrative Justice and Tribunals Council ( AJTC)
• The Standards Commission for Scotland
• Scottish Society of Directors of Planning ( SSDP)
• Society of Local Authority Lawyers and Administrators in Scotland ( SOLAR)
• COSLA
• Local authorities
• Homes for Scotland
• Scottish Property Federation
• The Law Society

4. SCHEMES OF DELEGATION

Background

4.1 The intention is that greater use should be made of delegation to officials, particularly for applications classed as local under the planning hierarchy ² allowing elected members to focus attention on the more complex or controversial applications.

4.2 Planning authorities already have delegation schemes in place under powers from the Local Government (Scotland) Act 1973 and generally about 83 -85% of all applications each year are delegated to officers. This equates to 44,000-47,000 applications each year across Scotland. The rate for householder applications is slightly higher and increasing (over 90%) as shown in the table below.

[Statistics from returns collated by the Scottish Government from local authorities]

4.3 Use of delegation frees up Committee time and can enable decisions to be issued on straightforward cases more quickly. Currently many schemes of delegation limit decisions to approvals. The intention is that the full range of decisions should be available to officials dealing with applications within the category of local developments, including refusals of permission. The draft regulations set out which applications should be referred to elected members for decision.

4.4 The new schemes of delegation under the 2006 Act have direct links to local review procedures. Where applicants are dissatisfied with a decision delegated to an officer, they will be entitled to seek a review of the decision by the planning authority (a local review body) rather than by appealing to Scottish Ministers. The regulations set out circumstances of cases which officers will be prohibited from determining under a section 43A scheme of delegation. These applications will continue to be subject of appeals to Scottish Ministers.

Consultation

4.5 There was strong support following the White Paper for this proposal which was seen as extending practices that most stakeholders were already familiar with. Respondents highlighted the need for clarity to manage the delegation process in an open and transparent way.

4.6 Respondents raised concerns about the scope for different definitions of, terms such as "significant or substantial bodies of objection" and "significantly contrary to the development plan". Some considered that there should be national guidelines and criteria, others argued for more flexibility. There were suggestions that there could be a national minimum scheme but councils could choose to do more than this, alternatively, that there could be local discretion, but that such schemes would need ministerial approval. The draft regulations include provisions to assist in the understanding of the term substantial body of objection.

4.6 There were some concerns, from the voluntary and community sectors, that officers were less likely to take community views into account than their members, and that the process was open to abuse by developers. There were also alternative views that some developers would prefer member decisions. A professional body felt that decisions should only be delegated to professionally qualified planners and drew attention to the need to amend the National Parks (Scotland) Act to enable the full range of powers for delegation to be available in National Parks. ³

Options

4.7 In relation to Schemes of Delegation the key areas where choices were to be made relate to the following issues:

• Scope of Schemes - ensuring an appropriate balance between complex and controversial cases going to committee and more simple cases being determined by officers. Consideration was given to whether new schemes of delegation should be able to include refusals of applications where, had it been intended to recommend approval/ approve the application, notification to Scottish Ministers would otherwise have been required. This is because any review of the decision would be conducted by a Local Review Body who need not have recourse to Scottish Ministers before issuing their decision.
• Adopting Schemes - the draft regulations include provisions for adopting a scheme of delegation. It is proposed that local authorities will have to submit their draft schemes to Scottish Ministers, who would in turn provide comments on the scheme, the authority would then be obliged to demonstrate if they had taken on board these comments and if not provide reasons why, Scottish Ministers would have the power to prevent the authority from adopting the scheme.
• Level of prescription in the regulations - the extent to which there should be local flexibility as opposed to a level of consistency across Scotland. The issue about consistency is important given the potential implications for appeals/ review procedures, for example if in one part of the country a certain type of case where delegated under a s43A Scheme of Delegation and the appeal route would be to a local review body, and elsewhere a similar case would have gone to Committee and the appeal route would be to Scottish Ministers. We wish to ensure that applications would receive similar levels of service across the country.

Benefits

4.8 The intention is that local developments which are neither complex nor controversial should be delegated for decision by officials to promote efficiency. The draft regulations contain safeguards to prohibit certain cases being delegated under this type of scheme.

4.9 While the majority of authorities already operate effective delegation systems, an increase in the level of delegation is thought to assist authorities in meeting time targets for the determination of applications. This is primarily by avoiding difficulties in timing and scheduling of applications within the normal committee cycle and the Officer input in applications at Committee.

4.10 Marginal savings to the planning service may arise either through a reduced case officer burden in preparing and presenting to committee and also from shorter/fewer committees. However, given additional changes proposed through removing minor applications from planning control it is not possible to accurately quantify overall savings. If, however, the reduced burden of Committee workload were to translate into an average time-saving of one hour per week for one FTE Manager of the Planning Service then this would equate to an estimated cost saving of £134,150. ⁴

Sectors and groups affected

General

4.11 Greater rates of delegation could lead to faster decisions for all groups of applicants.

Public Sector

4.12 Local authorities will be required to prepare schemes of delegation at intervals of no greater than every 5 years under the terms of the draft regulations and whenever required to do so by Scottish Ministers. Local authorities will also have to make copies of the scheme available for view at the planning office, local libraries and on the internet. The schemes will enable local authorities to deal with planning applications effectively and efficiently.

5. LOCAL REVIEW BODIES

Background

5.1 Where an applicant is dissatisfied with the decision taken under a new scheme of delegation they will be entitled to require the authority to review the case. This is a significant change to existing arrangements whereby such appeals are made to Scottish Ministers.

5.2 To carry out the reviews, each authority will need to establish a local review body ( LRB), which will comprise a small number of elected members supported by officials who were not involved in reaching the decision under review. The majority of reviews of local developments would be determined quickly and locally, recognising that local authorities are best placed to take decisions on such local issues.

5.3 We want to ensure that local review bodies operate to a high standard and that processes for reviewing decisions locally ensure the highest standards of fairness, independence, transparency and customer care. Elected members will continue to have regard to Councillor's Code of Conduct, and its key principles, when carrying out the function of a local review body.

Consultation

5.4 The responses to the White Paper raised some concerns about local review bodies and these have been reiterated in recent stakeholder discussions. Concerns include the independence of the review body, the need for training, resources and about the potential for further appeals.

5.5 The majority of respondents, across all respondent groups, raised concerns about the potential independence and likely competence of the proposed LRBs. Many observations queried how the LRB was to be constituted and indicated some concern over a panel composed entirely of local members. It was felt that this would make the allegation of bias, with the authority being judge and jury in its own cause, more difficult to resist and could undermine public confidence in the system.

5.6 Respondents suggested there was a need for training and development in planning matters and appeal procedures for members with no expertise in that area.

5.7 Some concerns were raised about the resource implications of the proposal with views expressed that there would be a substantial increase in member and officer workloads. There were queries regarding the availability of planning advice (with some specific concerns about architectural and ecological matters) to the LRB, since officers involved in the decision reviewed may not be involved in the review. Some considered that there would be a greater need for planning consultants, others that local authority lawyers could do much of the work. There was a strand of opinion which felt that the distinction between reviewing the decision and considering the proposal afresh may be difficult to maintain in practice. One council considered that there should be a detailed investigation of the resource implications of transferring SEIRU functions to local authorities. A developer sought reassurance that fees would not rise as a consequence of the new arrangements.

5.8 Several commentators felt that the arrangement may not be Article 6 compliant, in terms of the European Convention on Human Rights. A number of respondents sought clarification of what was intended to be available to applicants in terms of further appeal rights. The White Paper indicates that LRB decisions could be the subject of "statutory appeal or judicial review". There were concerns, particularly from local authorities, that if a "second appeal" were available this would duplicate the process with further timescale and resource implications. The alternative view, mainly from developers/businesses, was that existing statutory appeal rights should continue to be available to applicants following a refusal by the LRB.

5.9 Some respondents made a number of alternative suggestions to a local review but there was no consensus on what an alternative format might be. There was no consensus amongst respondents as to whether the proposed arrangements would speed up or slow down the process. Some considered that the proposals would merely move a burden of casework from SEIRU to the local authorities, who were already "overburdened and understaffed". The alternative view was that for the vast majority of straightforward applications it would provide a quicker and less problematical route to a decision.

Options

5.10 In relation to Local Review Bodies the key areas where choices were to be made relate to:

• Composition of the Local Review Body - including the size of the LRB, it is intended (reflecting experience of other review bodies or panels) that the LRB should have between 3-5 members. There were also choices about whether the review body, should have; representatives from the Planning Committee, who would be familiar with planning policies or whether it should be more distant from the planning committee and; whether constituency interest should bar a member from sitting on a particular review case.
• Format of the review - including whether the LRB should be required to meet in public, whether there would be a right for people to be heard and the overall method of examination. It is proposed that there will not be an automatic right to be heard, in order to have a consistent approach with the appeals provisions, where for appeals the decision taker will determine the means of examination necessary in each case. It is considered that the body should, however meet in public.
• Level of prescription of the regulations - The regulations permit a degree of flexibility around how each planning authority will implement the review body provisions. It is intended to provide clarity in the regulations about key issues, such as the various time periods involved. This will be supplemented in due course with guidance on operation of the review bodies.

Benefits

5.11 Some efficiencies may be made in making the review of local developments the responsibility of local authorities. Even if delegation only resulted in modest time savings for senior staff, this could translate into a significant saving when considered across the system as a whole. In terms of Management input into the Committee process, if increased delegation resulted in an average time saving of one hour per week for one FTE Manager this would equate to an overall saving of around £134,000 ⁵. However, this is unlikely to result in an 'actual' cost saving ( i.e. budget/staff cuts) but would be felt through increased productivity and turnaround of applications. Cases being processed at local review will reduce the need for officials to contribute to appeals to Scottish Ministers including preparing for some hearing and inquiry sessions.

5.12 There are potential resource benefits for the Directorate for Planning and Environmental Appeals, of having minor appeals considered by a local review body. Currently the total number of planning permission appeal cases continues to increase as demonstrated in the graph below ⁶.

In particular the number of householder development appeals cases which DPEA (formerly SEIRU) received during the last five years has been increasing from 285 householder cases in 2002/03 to 364 in 2006/07, (a 28% increase over the 5 years). In 2006-07 householder cases accounted for 34% of the number of appeal cases DPEA received. Reducing the number of householder and other minor appeals cases which DPEA receive, would help to free up the reporters' time and could enable resources to be focussed on the more major appeal cases and on development plan examinations, making the system more efficient overall.

Costs

5.13 There are some cost implications on local authorities associated with establishing local review bodies. The resource cost of local review bodies is likely to depend on the membership level/composition of each body, the frequency/demand for meetings and the level of preparatory work required for each meeting. The review will focus on material already before the authority when the application was originally considered. While the body may occasionally consider cases where oral representations need to be managed it is anticipated that in the majority of cases consideration of the issues will not involve complex process or lengthy procedure.

5.14 Staff requirements are likely to vary on a case-by-case basis according to the need for planning or other specialist input but it appears that associated costs would not be greater than those associated with any other committee of the Council.

6. SECTORS AND GROUPS AFFECTED

General

6.1 Local review procedures may make the review procedure more accessible for members of the public, unhappy with the outcome of the decision on a minor planning matter, rather than having to appeal to Scottish Ministers.

Business

6.2 Some sectors of industry have expressed concerns about the credibility and impartiality of local review bodies and that they would be an inadequate replacement for appeals to Scottish Ministers which they consider to offer a more independent process.

Public Sector

6.3 Local authorities will be required to set up LRBs, which will require to be serviced by a clerk and supported by officials, particularly in preparing and issuing the decisions.

Voluntary

6.4 We are not aware of any impacts on the voluntary sector as a result of the proposed changes.

7. APPEALS

METHOD OF EXAMINATION / HYBRID APPROACH

Background

7.1 There are currently three methods by which planning appeals can be determined - written submissions, hearings or inquiry. The current appeal system allows the principal parties to select the appeal method, which means a party can insist on an inquiry or a hearing even for the least complex of appeal cases. It is intended to provide more powers for the appointed person to direct the manner in which to carry out the examination of the case and how best to arrive at a decision.

7.2 When an appeal is made to Scottish Ministers it should be accompanied by full grounds of appeal and any documentation supporting the appeal. The planning authority will be required to provide such additional material as was before it and which was taken into account in reaching its decision. This principle is therefore reinforced that the appeal examines whether or not the planning authority reached a decision that was appropriate based on the material that was before it at the time. In acting in this way we are responding to the concern that the appeal process allows developers to alter their proposals, or the justification for them, and others to shift their position over time - so that uncertainty is reduced and those involved are not faced with a cycle of submission and rebuttal.

7.3 We propose that Scottish Ministers will take into account the principal parties' preferred method of determination. However, the decision on which route should be taken to determine the appeal whether written submission, hearing, inquiry session, or combination of these will be made by Scottish Ministers. In some instances this will mean that an appeal can be decided based on the material submitted and without further reference to parties. The existing right to be heard will therefore be removed, avoiding the need to hold hearings or inquiries where these are not necessary to fully examine the issues in the appeal.

7.4 The inquiry process will thus be reserved for those issues where cross-examination is needed. The scope of the Inquiry session will also be focussed on the key issues which require that more rigorous examination. Generally a combination of the methods outlined above will be applied. We propose that the appeal process should become more proportionate without reducing the quality of decision.

7.5 Currently over 90% ⁷ of the Directorate for Planning and Environmental Appeals' casework is dealt with by the exchange of written submissions. Under this procedure a structured and timetabled series of written exchanges takes place involving the appellant, the planning authority and any other persons who have indicated their interest. These are considered by the reporter, who inspects the site, generally in the presence of the parties, and then issues his or her decision or a report and recommendation.

Consultation

7.6 The (then) Scottish Executive carried out a consultation on Modernising Public Local Inquiries in 2003 in response to which there was significant support for changes being introduced to improve efficiency. More recently, in the responses to the White Paper, some concerns were expressed about how decisions on the method of examination might be reached

Benefits

7.7 It is proposed that the decision on the method of examination would be taken by Scottish Ministers. It is likely that fewer cases would go to examination at inquiry and that there would be time savings for all parties to an appeal as a result. The intention is that appeals become

• More efficient
• Faster decisions
• Less adversarial

Costs

7.8 It is anticipated that the proposal would be cost neutral or result in saving for local authorities.

7.9 Of all the different cases DPEA deal with the average cost to them of a case in 2006/07 was £1,648. The slight increase in the cost per case this year can be accounted for by year on year inflation; a slight reduction in the number of cases processed; but an increase in the complexity of the public local inquiries dealt with. Although the number of public local inquiries and hearings is lower than last year, the cases dealt with took up a greater proportion of reporters' time. The nature of the information held on the Directorate's current Case Handling System, limits the possibility to carry out more sophisticated statistical analysis of case costs, for example of the costs of individual inquiries, or by the method of examination. However it is expected that providing Scottish Ministers with the power to direct how the appeal will be dealt with has potential to reduce costs to DPEA and parties to the appeal.

APPEALS BASED ON ORIGINAL MATERIAL / REVIEW OF DECISION

Background

7.10 The principles of front-loading the system apply to appeals to Scottish Ministers as they do to the rest of the planning process. Section 47A of the Act restricts the ability of parties to introduce matters that were not before the planning authority at the time the proposal was considered by them. An appellant wishing to introduce new material into the appeal process will be required to demonstrate either that the material could not have been made available earlier in the process or that it is being produced in consequence of exceptional circumstances. Whilst the proposed changes do not reduce the responsibility on those making determinations under the Planning Acts to take account of all material considerations and to have regard to the provisions of the development plan, the appeal process should not be used as an opportunity to significantly change proposals or to produce supporting material that should properly have been made available to the planning authority and the community earlier in the process. Where an appellant wishes to alter proposals following a decision by the planning authority a revised planning application should be submitted to the planning authority.

Consultation

7.11 The core objection to this proposal cited by many respondents to the White Paper was the fact that it would potentially prevent the consideration of an improved scheme and that an appeal could therefore be sustained on an earlier, inferior development application. Some responses reflected that the proposal may encourage planning applications to attempt to provide all information that could potentially be later required as evidence to an appeal, this could increase planning officer workloads and was felt to be neither practical nor efficient.

7.12 It was felt by some that there was a risk of injustice where new relevant information came to light and was not taken into account, and that this was always possible in a dynamic process such as planning. There was also a view that, even on a restricted interpretation of new information, the introduction of additional presentational material, which would assist all the parties in understanding the issues at stake, should be permitted.

7.13 Alternatives to the White Paper proposals which were mentioned, included restricting the right of deemed refusal where significant information was only provided after the appeal had been lodged and amending the expenses rules to allow reporters to penalise applicants/appellants who submitted information which could have been made available prior to the appeal.

Benefits

7.14 Compared to current practices that involve significant document review and preparation, a greater focus on review of the material before the planning authority could present time/resource savings, particularly at Case Officer level, although it is not possible at this stage to quantify that.

Costs

7.15 It is still likely that at least the Case Officer, and possibly any specialist appeals staff or Management would want to attend any appeal hearing if that were the chosen form for resolution. In the case of written submissions, the time impact to the authority would be negligible on the basis that existing material would be used to determine the appeal.

7.16 The costs associated with this proposal are assumed to be minor to negligible depending on the form the appeal hearing takes, and the effect of other proposals on the overall level of appeals. Appeal work (also including Enforcement) is currently estimated to cost almost £6.4m across the planning system. A significant proportion of the appeal component of this cost could be reduced under these proposals.

REDUCED TIME PERIOD FOR APPEALS TO BE LODGED

Background

7.17 Applicants for planning permission currently have 6 months from the date of the decision within which to appeal to Ministers against refusal of planning permission or against the conditions subject to which permission is granted. In light of concerns about the length of this period of uncertainty it is proposed to reduce the time period allowed for appeals to 3 months.

Consultation

7.18 Overall, views were evenly balanced in terms of support for and opposition to this measure but different stakeholder groups tended to take different positions on the issue. Local authorities and the voluntary sector broadly supported the proposed arrangements whereas businesses and professional bodies were generally opposed. Those who object to this element of the proposals refer to a lack of time to fully consider objections and options, including submission of a revised planning application.

Benefits

7.19 This proposal would reduce the period of uncertainty among communities and local authorities as to whether an appeal would be lodged.

Costs

7.20 Some respondents indicated that a reduced period for submitting an appeal could result in an increase in planning appeals being lodged. This would need to be considered against other measures to restore balance and fairness in the appeal system and there is no indication that costs overall would increase.

8.0 SMALL / MICRO FIRMS IMPACT TEST

8.1 The existing appeal system often demands a significant outlay of time and funds, so the use of simpler, faster and more transparent procedures should reduce costs for all businesses, and mean that small companies are not disadvantaged in comparison with better resourced firms.

9.0 LEGAL AID IMPACT TEST

9.1 The impact of these regulations on the legal aid system should be minimal. Civil legal aid will not be available for legal representation at planning examinations. It will remain available for appeals to the Court of Session on points of law but there is nothing to suggest that the regulations will increase the likelihood of that. Initial Advice and Assistance under Legal Aid will still be available to enable eligible individuals to receive advice from a solicitor concerning a planning matter. The new planning examination system is, however, intended to be less legalistic and adversarial in operation. Proposed changes should not, therefore, increase the requirement for legal advice for individuals engaging with it.

10. "TEST RUN" OF BUSINESS FORMS

10.1 The draft regulations do not contain business forms.

11. ENFORCEMENT, SANCTIONS AND MONITORING

11.1 The regulations will have the strength of law and so the proper exercising of the proposed duties contained in them can ultimately be tested in the courts.

11.2 Under the terms of the 2006 Act, planning authorities are required to keep their Scheme of Delegation under review, and are to prepare a scheme whenever required to do so by the Scottish Ministers.

11.3 The Directorate of the Built Environment also liaises closely with local authorities and representatives of the business community, and so the Government will be made aware of any dissatisfaction with the way the new appeals and reviews procedures are operating.

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