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Modernising Public Local Inquiries: A Consultation Paper

Building on the strengths of what we do now

3. Our overall aims are:

• to ensure that the strengths of the present system are maintained whilst enabling planning decisions to be made quickly so that the Scottish economy is not disadvantaged in a time of rapid change;
• to allow those interested in a development proposal to make their views known and have them taken into account, without being intimidated by the process.

4. The challenge in improving the existing system is to secure the second aim, without prejudicing the first. Both are critical to the achievement of Ministers' objectives for social justice in the planning system.

5. Our discussions with stakeholders suggest that all parties wish to see a system for handling planning appeals and called-in applications that is characterised by certainty over the process and that remains manifestly impartial, fair, and transparent. The Scottish Ministers are committed to safeguarding the rights enshrined in the European Convention for Human Rights. This modernisation recognises the fact that the planning system, by its very nature, seeks to respect the rights of the individual whilst also acting in the interests of the wider community. It is these principles that will remain central to the process of decision making by public local inquiry.

6. This consultation represents the starting point in another of the key elements in modernising planning. It sets out to address weaknesses that are perceived in the present system and to suggest improvements that the Scottish Ministers wish to secure as part of the process of continuous modernisation and review. We wish to reduce the time that it takes to reach decisions and to control the costs. We want to make it easier for the public to be involved and to reduce the intimidating effect that the involvement of lawyers and other professional advisers may have, although greater informality must not be allowed to result in either a lack of clarity of thought or a reduction in certainty. These are the qualities that are central to the resolution of difficult and complex planning issues. Thus, and perhaps most importantly, we want to reduce the level of uncertainty about the process, which may well have started before the appeal was lodged and can continue after the decision is made. All users of the system can suffer in this way whether as businesses, communities, individual members of the public, planning authorities, or other organisations. The proposals that follow are intended to deliver improvements in respect of each of these important considerations. Some may require changes in either primary or secondary legislation whilst others could be secured through changes in policy or practice.

Wider application of these proposals

7. This paper is directed at the public local inquiry process that is used to consider planning appeals and called-in planning applications. It is also relevant to the inquiries procedure used in considering objections to compulsory purchase and other orders. Many of the proposals have a wider application to the process of considering objections made to local plans as part of the development plan prepared by the planning authority, which is mentioned later in this paper, and an association with cases being considered by an exchange of written submissions. Further consideration will be given to the modernisation of these arrangements. The principles contained in this consultation will also be applied, by agreement, to the public local inquiries held in the small number of non-planning cases such as applications for consents under the Electricity Act 1989. Although the proposals have wider application, for the sake of brevity this paper usually refers only to planning appeal cases.

8. Each of the improvements considered in this paper would apply both to those appeals and called-in applications determined by the Scottish Ministers and to those determined by reporters acting under delegated powers. In the paper the expression "the Scottish Ministers" is used, even though the actions might be taken by the reporter to whom the case has been delegated or by the Minister in cases where jurisdiction has been recalled. Around 1,200 appeal and other cases are handled in the course of a year. Typically in recent years up to 9% have been the subject of a public local inquiry and up to 5% have been determined after a hearing.

Our objectives

9. We want to improve the experience of the public when involved in the consideration of a planning proposal at a public local inquiry whether as an appellant, supporter, or objector. This will require change in the culture of the inquiry itself; the actions of reporters; and the rights and obligations of the parties involved. Inevitably, it requires parties to inquiries to be prepared to engage co-operatively in reaching the best planning solution. This consultation is an important step towards encouraging external participation and engagement in re-designing and modernising the delivery of this important service. We consider that the propositions that follow have the potential to reduce inquiry costs and provide better control over expenditure. A Regulatory Impact Assessment has not therefore been prepared because there should be no adverse impact as the consequence of these suggested improvements for business, charities, the voluntary sector or the public.

Keeping the best and improving the rest

10. Because there is much that remains effective within the present system we consider that it is essential that this review introduces change only where it is needed and where there is a clear advantage for the public interest. The core principles of openness, fairness, and impartiality established by the Franks Committee in its 1957 Report "Administrative Tribunals and Inquiries" remain central to public local inquiries and continue to guide reporters in the conduct of cases. In this modernisation we are seeking to:

• strive for greater certainty about timescales, procedures and parties' responsibilities at every stage of the process;
• achieve better consistency of approach across parties' legal entitlements;
• create a system focused on the public interest and that is less susceptible to abuse;
• process cases more quickly;
• seek more focused evidence and submissions from all parties; and
• produce shorter, more focused, decisions and reports to the Scottish Ministers.

The public local inquiry as a process

11. The Planning Acts¹ and existing ministerial policy² envisage that public local inquiries will be used to determine the planning merits of planning appeals and called-in planning applications. Section 25 of the Act³ requires the decision in all such cases to be made in accordance with the development plan unless material considerations indicate otherwise. The existing inquiry process is intended to be a transparent examination of the planning merits - against that statutory requirement - of the development proposed in the application for planning permission that has been called-in or is the subject of the appeal.

12. Recent experience suggests some misunderstanding about the purpose of a public local inquiry and a belief, perhaps based on the title, that it is the opportunity for any one interested party or group to determine the outcome simply by virtue of their public involvement, irrespective of the provisions of the development plan or the weight of the evidence for and against the proposal. A public local inquiry is the means by which a reporter appointed by the Scottish Ministers obtains, through oral and written evidence, the information that is necessary to enable a decision on whether planning permission should be granted or refused. This misunderstanding over the purpose of the process might be addressed by re-branding the public local inquiry as a planning inquiry and reinforcing the statutory and policy background against which planning determinations must be made. In the same way an inquiry held under the Electricity Act could be referred to in future as an energy inquiry and this principle could apply to inquiries dealing with ancient monuments and other proposals.

The right to appeal

13. The planning system in this country is intended to operate in the public interest in order to guide change and development to the most appropriate location whilst ensuring that environmental standards for all are maintained and enhanced. The right of applicants to appeal against decisions taken by planning authorities, whether to refuse planning permission, or to grant that permission subject to conditions that are not accepted, is an important provision; as is the right to appeal where the planning authority fails to take a decision within a reasonable time. We propose no alteration in these fundamental and basic rights.

14. Planning is inextricably linked with change. Many development proposals evolve during their consideration by planning authorities, perhaps as the result of constructive debate, even though planning permission is ultimately refused. Given that it is our intention to increase the certainty with which the appeal system operates we do not consider that there should be scope for altering proposals during their consideration by the Scottish Ministers. For that reason, it is the proposal that was considered by the planning authority and for which permission was refused, or granted subject to conditions, that must be considered in the appeal. Only matters that would not require both re-notification and fresh consultation might be subject to alteration while the appeal is being considered. This does not amount to a change in either rights or obligations, but in some recent cases the decision making process has been complicated by parties' insistence that they wish a different proposal to be considered. We therefore intend to reinforce the principle that only the development considered by the planning authority may be reviewed on appeal.

The right to a planning inquiry in an appeal

15. The present statutory arrangements allow either the planning authority or the appellants to request an opportunity to be heard concerning the appeal⁴. There is no statutory requirement that there need be any special circumstances for this request to be met. This process is used both for very small scale developments where some may see no objective need for an oral means of taking evidence and also for major development proposals that are critically important for the environment, the economy, or both. In such cases the decision could not realistically be made without a public hearing of the merits and demerits of the proposal.

16. We consider that there is good reason for the right to a planning inquiry to be qualified so that this process is reserved for those cases where the subject matter requires oral evidence. This objective might be achieved in one of several ways including:

• Option 1: Irrespective of whether the planning authority or appellant request to be heard concerning an appeal, the Scottish Ministers could decide, based on indicative criteria, whether a planning inquiry would be held, or whether the appeal would be decided following a hearing, or by an exchange of written submissions; or
• Option 2: Where a planning inquiry is requested by the appellant or planning authority, the Scottish Ministers could decide, based on the circumstances of the particular case, whether a planning inquiry is necessary and, if so, determine the issues to be considered by means of oral evidence, with the balance of the matters in dispute being considered by a hearing or an exchange of written submissions; or
• Option 3: The appellants and planning authority could be required to make representations in support of a request for a planning inquiry. If not accepted, the case would be considered either by an exchange of written submissions or a hearing.

17. Consultees may recall that we raised the first option a number of years ago and subsequently decided against implementing it. In view of the passage of time, we consider that there is merit in inviting views again on this proposition, as well as on the other options.

18. These options are a development of the existing policy⁵ that allows the Scottish Ministers to determine whether parties' right to be heard should be met by a local inquiry or a hearing. The objective is to reserve the planning inquiry process for those cases where oral examination is required to resolve complex and important arguments. The criteria used to determine whether a planning inquiry should be held would relate not only to the complexity of those arguments but could also involve considerations such as whether the development plan is up-to-date, the scale of the project, the number and the nature of the issues raised in public objections and whether or not the local authority had a financial or other interest in the development.

19. In the case of a called-in planning application, both the applicant and the planning authority have the same right to be heard. Normally, only those applications that raise issues of national importance would be called-in for determination by the Scottish Ministers. We do not propose to alter the existing policy, which provides parties with the opportunity to present their case on a called-in application at an inquiry or hearing.

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