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Modernising Public Local Inquiries: A Consultation Paper

Improvements that could be made before a planning appeal inquiry starts

20. Paragraphs 21 to 37 and questions 4 to 13 apply specifically to improvements that could be made to the procedures before a planning inquiry starts.

The decision of the planning authority and grounds of appeal

21. It is essential that planning decisions are made within the framework set by the Planning Acts. The decision must also take account of the material considerations, both for and against, put forward by parties, including the planning authority, the developer and those who live in the community or who have an interest in the development. Ministers require the evidence to be tested properly so that they are able to take decisions with the confidence that these will prove to be robust, being informed by a sound assessment of relevant facts. That requirement should remain a cornerstone of the planning inquiry system.

22. At present, parties are required by the Inquiries Procedure Rules⁶ and the Scottish Ministers policy for the application of these rules⁷ to disclose their entire case in advance in a structured consistent way. There is no reason for this to change because these provisions increase certainty and, used properly, have the potential to narrow the range of matters in dispute and that need to be examined in public. However, we believe that there is merit in all of the material that the planning inquiry has to consider being presented in a more focused and structured fashion directly related to the development plan and relevant material considerations, as envisaged by section 25 of the Act⁸. This approach should encompass the planning authority's reasons, where planning permission has been refused; the appellant's grounds of appeal; other parties' evidence; and written submissions. We therefore intend to require all parties to structure their evidence and submissions in the context set by section 25 of the Act.

23. Most planning appeals arise from the decision of a planning authority to refuse planning permission. In these cases the present policy requires their reasons for refusing permission to be complete, clear and precise, thus indicating all of their objections to the proposal. In some instances planning authorities only introduce new and important additional reasons for opposing a development when an appeal is lodged. It is possible that these would have better informed the decision to proceed with the appeal had the prospective appellant known these earlier. This practice is also inconsistent with the requirement for full prior disclosure⁹. We therefore consider that there is good reason to require the planning authority's case at a planning inquiry to be restricted to:

• their reasons for refusing planning permission, taking account of the up-to-date development plan position and;
• their view on those material considerations disclosed by other parties, such as statutory consultees (e.g. the Scottish Environment Protection Agency), supporters and objectors, which have a bearing on their reasons for turning down the proposal.

24. Where the appeal concerns the failure of the planning authority to reach a decision there may be a dearth of information available to the appellant and local residents about the position that the council is likely to adopt. Clearly this would add to the uncertainty until the council's position is disclosed. In such cases we consider that the planning authority should be required to indicate whether they would have granted or refused planning permission had an appeal not been lodged. In such cases they could be required to indicate what the outcome would have been, together with their reasons, within say 2 weeks of the appeal being made. If no such assessment is provided, their role in the planning inquiry would be restricted to explaining the provisions of the development plan relevant to the development under appeal and no more.

25. Similarly, where planning permission has been refused or granted subject to conditions that the applicant considers to be unacceptable, the present policy requires that full grounds of appeal are lodged at the outset, including all of the relevant documents. Grounds of appeal are required to indicate all of the reasons for disagreeing with the planning authority's decision. It is already necessary for the case for the appellant to be comprehensive from the start. As this information is available to other participants before the inquiry, we consider that the appellant's case at a planning inquiry should be restricted to:

• their reasons for disagreeing with the refusal of planning permission, or the grant of a permission subject to unacceptable conditions, taking account of the up-to-date development plan position and;
• their view on those material considerations disclosed by other parties, such as consultees, supporters and objectors, that have a bearing on their reasons for wishing to set aside the council's decision.

This policy would not be applied in appeals against non-determination where augmentation of the grounds would have to await the procedure referred to in paragraph 24.

Incomplete appeals

26. The present system requires "relevant notice" of a public local inquiry to be given to all of those who have expressed an interest once the appeal, or called-in application, is properly documented. Attention has been drawn to the delays that occur between submission of the appeal and the issue of relevant notice. That delay has resulted from a number of reasons with the most common being that the appeal is not complete and thus cannot be processed. In major cases this delay adds to uncertainty for the community. Appellants currently have the statutory right to complete the documentation of an appeal within 6 months of the planning authority's decision, although the White Paper Your place, your plan indicates that this period is to be shortened to 3 months. Should incomplete appeals remain an issue, we propose that all incomplete appeals¹⁰ (except householder development) would be returned to the appellant within 2 weeks of receipt. No appeal can be considered to be valid until all of the necessary information has been submitted.

Reducing the time taken to process the appeal and the adversarial context

27. The measures referred to in paragraphs 21-26 have the potential to increase certainty and to streamline and improve the process with benefits for both the business community and the public. We consider that these also have the potential to build on the Scottish Ministers' objectives for social justice in the planning system by reducing the adversarial context of the planning inquiry. The measures should ensure that the matters under examination are focused, well known, have been disclosed as required in advance, and that parties have had the appropriate opportunity to consider them. These changes could also be used to allow the planning inquiry to be held sooner, because reinforcement of the requirement for comprehensive reasons from the planning authority and grounds from the appellant could allow a shorter maximum period to be substituted for the present 8 weeks allowed in the Inquiries Procedure Rules for the production of the full statement of case.

28. The maximum period currently allowed for the circulation of parties' statements of case is the longest single component of the existing pre-inquiry procedure. Other periods are correspondingly shorter and thus less susceptible to reduction, but there may still be scope to streamline the procedure with no loss of rigour.

Notice of an intention to take part in a planning inquiry

29. The Inquiries Procedure Rules allow the possibility that a party may attend the inquiry, and seek to take part without giving any prior notice. The rules define the parties with a right to appear; other appearances are at the discretion of the reporter. Uncertainty is increased when evidence is allowed from those who have not given advance notice of their case and other parties may be disadvantaged. The arrangements for all public local inquiries are advertised in the local press not less than 4 weeks before the inquiry is due to start. We propose that this advertisement should be placed earlier, probably shortly after the circulation of statements of case. This would have the effect that the inquiry arrangements would have to be agreed earlier than happens now. Those wishing to take part in the planning inquiry by leading oral evidence would be required to indicate this within a fixed date of the advertisement appearing. In order to have that right, these parties would be subject to the same requirements for prior disclosure as all other inquiry parties, extending to the documents on which they propose to rely and their evidence. The right to take part in the inquiry and to ask questions would be restricted to those who had given prior notice.

30. The following paragraphs apply to inquiries of all types, including planning appeals and those held to consider called-in applications.

31. The Inquiry Reporters Unit faces difficulties in making arrangements for public inquiries that suit all of the parties, particularly regarding the date on which the planning inquiry is expected to start. Representations have been made that the present Inquiries Procedure Rules allow insufficient time for parties to prepare. Those representing the prospective developer routinely argue in major cases that a later date should be substituted to meet the requirements of their team. This introduces delay to the system and runs counter to Ministers' objective of speeding up the decision making process in planning and increasing certainty, particularly for those communities living close to the site of major development proposals. We need to establish whether that view is held widely and whether the reasons are sound.

Guidance to the parties to a planning inquiry

32. The Scottish Ministers and all reporters approach every case with an open mind, but in many instances the issues to be determined in an appeal or called-in application are clearly set by the development plan provisions that apply to the land and the physical relationship between the development site, the land uses on neighbouring land, the infrastructure of the wider area and its character. In an appeal the considerations to be reviewed against the decision taken by the council are therefore clear to the planning authority and to most appellants. Similarly, the reasons are given where an application for planning permission is called-in by the Scottish Ministers.

33. The reporter allocated to a case that is proceeding by planning inquiry often decides that a pre-inquiry meeting should be held in order to assist all of the parties. Discussion at such a meeting centres on the nature and range of the evidence to be led, participation, the programme for pre-inquiry exchanges and the planning inquiry itself. The meeting allows the opportunity to explain to un-represented members of the public the scope for their involvement and also for those with similar concerns to group together to assist with their participation. Where pre-inquiry meetings are held the reporter takes the opportunity to identify and discuss with the parties the potential scope for narrowing the range of issues that are in dispute, the matters that might be agreed, the subject areas where he or she requires evidence to be led and the matters that must be considered by the inquiry. Even where no pre-inquiry meeting is held, those who live in the community and who have had little or no previous involvement with the planning system might be assisted by a clear and early assessment of the issues that are bound to be considered when determining whether, or not, to grant planning permission against the framework set by the Act¹¹. The issue is whether that information should be made available for every case proceeding by planning inquiry.

34. The existing policy envisages that parties should take a constructive approach to the preparation of agreed statements covering uncontested facts such as the description of the site, the surroundings and the development; the relevant provisions of the development plan; and the responses of statutory consultees. Agreed statements should be produced as inquiry documents so that their benefit is available in drafting precognitions. If produced on a standard word processing template this material could be adopted by the reporter and edited as necessary to become part of the decision letter or report. This would have the effect of reducing the reporting time.

35. In complex cases reporters frequently indicate in advance of the inquiry the factual material that they need to know about such as the demand for housing land within the relevant market area and the supply that is effective; the planning history where this is particularly complex; or detailed information concerning flood risk and previous flood events. In order to reduce the range of the issues in dispute, reporters may ask for this material to be agreed wherever possible. That request is not made lightly because their intention is to concentrate the inquiry on the matters that need to be examined in public. However, when some of this material cannot be agreed the parties routinely abandon the exercise even though they could have pursued the alternative of an agreed statement that set out where they agreed, and their reasons for those areas where they could not agree. Considerable time can then be taken up at the planning inquiry agreeing facts. As requests to make voluntary arrangements have frequently not produced the desired result, a more formal approach may be needed to ensure that the advantage of wider agreement and prior disclosure is not lost. This could mean that the planning inquiry could not start if the planning authority and the appellant failed to produce and agree material requested by the reporter, or indicate their position if no agreement is possible.

Sisted appeals

36. The practice of lodging an appeal and using the prospect of a public local inquiry as a negotiating tactic in continuing discussions with the planning authority is a mis-use of the planning appeal system. It leads some parties to request that further processing of the case is suspended, or "sisted", in the hope that the planning authority may grant planning permission for an amended scheme and thus avoid the need for the appeal and the inquiry. This process can avoid abortive work, but only where no such tactic is involved and the delay occasioned by a "sist" is short with adequate notice given to other parties. However, some appellants have attempted to maintain appeals in sist for long periods, adding to the uncertainty faced by neighbouring households and businesses. There is presently no means of turning away an appeal that is not progressed. We propose that, once sisted, an appeal would expire after 6 months, and thus be treated as withdrawn, unless the planning inquiry commenced before the end of that period. There would be no scope for further extensions.

Recovery of abortive costs

37. In other cases, arrangements are made for a public local inquiry that has been requested by either of the main parties, only to be faced with withdrawal of the appeal at a very late stage - either because it is seen from the evidence to be led by others that there is no reasonable prospect of success, or because an amended proposal has been approved by the planning authority. No matter what the cause there is inconvenience and potentially significant cost to all of the parties involved whilst the Scottish Ministers incur very significant administrative costs and progress with other cases is delayed. The provisions at section 265(9) of the Act have only been used to make orders for the recovery of parties’ costs as the consequence of unreasonable behaviour by an inquiry party. These have not been used by Ministers to recover their own costs for abortive work, but the powers could be exercised whenever these circumstances occur.

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