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Modernising Public Local Inquiries: A Consultation Paper

Improvements in procedure after the planning inquiry has closed

New evidence after the inquiry

48. The Inquiries Procedure Rules and the Scottish Ministers' policy establish the principle, which we consider should remain a cornerstone of the system, that parties should disclose their cases in full and in advance. This means that all must aim to complete the presentation of their evidence at the inquiry without the addition of new material. This allows everyone to prepare certain in the knowledge of the case that other parties are putting forward. The practical effect is that reporters are able to rule out evidence that appears at the inquiry without prior notice being given. The Courts have supported such a decision¹³. However, some parties have attempted to use the provisions in the Inquiries Procedure Rules after the public local inquiry has closed to introduce evidence concerning new material considerations of which no prior notice has been given. This has the effect of delaying the determination and runs counter to the objective of increasing certainty in the operation of the system, particularly as the present statutory arrangements can require the inquiry to be re-opened to consider the material despite the failure to disclose in advance.

49. We propose that, once a planning inquiry has closed and before the appeal or application is determined, only a change in the provisions of the statutory development plan should lead to the reporter being required to seek the written views of parties on the implications of the new development plan provisions for their case. It would be for the discretion of the Scottish Ministers and the reporter to determine, after considering those written views, whether there is a need for the planning inquiry to be re-opened. This improvement would be consistent with the incorporation of the plan-led system into Scottish planning law.

Proposals for major infrastructure projects in Scotland

50. Unlike England and Wales there have been relatively few public local inquiries held in Scotland in recent years concerning proposals that might be classed as major infrastructure projects. Here most schemes of this type have concerned either national roads or energy developments. In contrast to England there are no Inquiries Procedure Rules (except where a compulsory purchase order is involved) for an energy or other such project involving the development of major items of infrastructure. Instead the rules relating to planning inquiries are normally applied by agreement and analogy. Experience has shown that since the major improvements in practice and procedure consequent on the introduction of the current procedure rules in 1997 and 1998, no such case has involved an inquiry lasting longer than 4 weeks. In all but one instance, the report of the inquiry was submitted to the Scottish Ministers within 1-3 months of the inquiry closing.

51. Certain major transport infrastructure projects have to be progressed outwith the scope of the town and country planning system. Light railways must, under the Light Railways Acts 1896 and 1912, be progressed by means of a Parliamentary Order. Heavy railways must, under the Railway Acts, be progressed by means of private legislation. This would cover the railway, including the footprint of any stations, though the station buildings themselves would be subject to the normal planning process. New trunk road schemes also do not fall under the control of the planning process, but depend on the promotion of statutory orders under the Roads (Scotland) Act 1984. Measures proposed under the Transport (Scotland) Act 2001 might also be subject to a formal inquiry in order to consider and report on representations, whilst objections to Traffic Regulation Orders are considered by the hearing process.

52. We believe that, in the absence of dedicated procedure rules, there is good reason to continue to apply the rules relating to planning inquiries to these other sorts of cases by analogy and with the agreement of the parties. On that basis a number of the policy measures contained in this consultation paper would have potential benefits if applied, for example, to an inquiry concerned with a component of major transport infrastructure or an electricity generator. We consider that the principles underlying the issues raised in questions 8; 10; 11; 13; 14; 15; 16; 17 and 18 should have this wider application. In this context the objective of the Scottish Ministers would be to ensure that:

• the inquiry process remains a robust means of gathering the necessary information;
• there is greater certainty for those involved and more reassurance about the role expected of them;
• that decisions are taken more quickly, but just as transparently; and
• that the inquiry is as accessible as possible to the communities affected.

Consideration by the Scottish Executive after the inquiry

53. The public local inquiry is a part of a larger decision-making process. Accordingly, in order to realise the objective of a faster overall process, attention will also be given to decision processes within the Executive once the report of an inquiry into a planning, energy or other such case is received. Our objective is to ensure that recent improvements in case processing times by reporters are matched by the process of Ministerial consideration and decision.

The public examination of objections to strategic development plans

54. In announcing their conclusions on the Review of Strategic Planning, Ministers have indicated that a public examination of the objections to structure plans is to be mandatory. They have also suggested that this process should be less formal and intimidatory than a public local inquiry is sometimes perceived to be, and could take the form of an exchange of views presided over by a reporter.

55. This new initiative gives the opportunity to consider afresh the best arrangements to allow a sensible dialogue about objections to strategic land use policy and proposals. We consider that the hearings format referred to in paragraphs 45-47 of this paper potentially represents a good model for the examination of the issues in a manner that could allow wide participation without the risk of becoming a litigious contest. However, we are open to suggestions on the procedure that others consider would be most appropriate, bearing in mind that we do not consider that the examination of the merits of planning appeals or called-in planning applications should normally be considered in parallel with the examination of objections to a strategic development plan.

Local plan inquiries

56. Under present arrangements those who object to the provisions of a local plan have a statutory right to request a local inquiry or hearing. There is no proposal for an alteration in that basic statutory right. However, local plan inquiries now routinely last for many months - during the last 2 years each of 7 local plan inquiries lasted for some 4-7 weeks and a further 4 lasted between 10 and 22 weeks. This is in distinct contrast to recent inquiries into planning appeals and called-in applications where the use of inquiry time has been successfully brought under control by improvements in both practice and procedure. Reasons for the length of local plan inquiries include the large number of objections that must be dealt with, and the increasingly frequent adoption of an adversarial inquiry format to hear them.

57. Many contemporary local plan inquiries are far removed from the intention of a relatively informal exchange between the interested parties concerning the future use and allocation of land that is in the best interests of a local community. The public finds it particularly difficult to engage in the process, even though reporters are sympathetic to their needs concerning timing and information. Moreover, the current expectations of planning authorities for a succession of local plan inquiries (which are likely to prove both long and costly) far exceed the capacity of the inquiry system to deliver. These also have the potential to lead to serious delay in the determination of other important appeal and call-in cases.

58. The need to accelerate plan making and approval was recognised in the outcome of the Review of Strategic Planning. The Executive is working with South Lanarkshire and Highland Councils on pilot projects to inform our thinking and intends to engage with other stakeholders to ensure that the process of development planning is streamlined and modernised. In addition, the consultation on Getting Involved in Planning and the subsequent White Paper Your place, your plan include a number of measures intended to improve public involvement in development planning and make local plan adoption faster and more user-friendly. We propose 3 changes related to the process of the local plan inquiry now.

• Firstly, we think that there is more that planning authorities could do to explain and negotiate with potential objectors before the inquiry is called, rather than leaving the resolution of problems to the reporter. Planning authorities must work harder to reduce the number of objections that reach inquiry, through mediation and negotiation leading to agreed changes to the plan before the inquiry is requested. The planning authority could be required to demonstrate the measures that have been taken to reduce objections at the opening of the local plan inquiry. Fewer objections would enable shorter inquiries and allow the oral process to be concentrated on issues that are critical to the delivery of the development strategy.
• Secondly, there should be a presumption that procedure at the inquiry would take the form of a hearing unless a specific case is made, and agreed with the reporter before the inquiry, that formal examination and cross-examination is necessary to deal with the subject matter of a particular objection.
• Thirdly, we propose to apply the principles of the improvements in practice contained in this consultation by agreement with parties in order to secure a better process as soon as possible. The scope for this would vary depending on the local plan and the subject matter of the objections. We consider that there is good reason to apply the underlying principles of the issues raised in questions 8; 10; 11; 13; 14; 15; 16; and 18 to improve the consideration of objections concerning the future use and allocation of land. This should allow decisions to be taken quickly and in a transparent way more readily accessible to local communities than at present.

59. The Code of Practice for Local Plan Inquiries¹⁴ sets out the procedure that parties are expected to follow and is consistent with the principles contained in the Inquiries Procedure Rules. In the short term, we propose to update that Code simply to reflect developments in practice that have taken place since it was issued. In the slightly longer term, the implementation of the conclusions of the Review of Strategic Planning will lead to the introduction of local development plans. These are to continue to be subject to a process involving an independent examination of objections.

Planning appeals, call-ins and local plan inquiries

60. A number of planning authorities and appellants have requested in recent years that appeals against the refusal of planning permission, or against their failure to determine planning applications, should be considered alongside related objections to a local plan. The level of information differs considerably between that required to assess the planning merits of a planning application as opposed to the appropriateness of land use allocations or policies. Experience shows that local plan inquiries that are expanded in this way have taken longer to process and have become extremely complex. This has discouraged and inhibited public participation and reduced certainty by diverting attention from the pattern of land use in the best interests of the community. For that reason we consider that development plan inquiries, whether involving a local plan under current legislation or the examination of objections to a strategic or local development plan following implementation of the Review of Strategic Planning, should not be linked to the consideration of the merits of planning appeals or called-in planning applications.

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