A New Ethical Framework for Local Government in Scotland

Annex A - The Government’s preliminary response to the recommendations on the planning system

Introduction

1 The main body of this consultation paper proposes a package of measures for ensuring the proper conduct of councillors and officers generally. These apply equally to those involved in the planning process. Planning is a sensitive area of local authority work because of the considerable sums of money which can hinge on individual planning decisions and the strong emotions often felt by those supporting or opposing development proposals. It is particularly important, therefore, that the planning process is conducted in a fair, open and even-handed way.

2 As well as the wider rules governing the conduct of councillors and officers, the planning system has its own framework of legislation and Government guidance. Some of this has particular relevance to the issue of propriety and it was appropriate therefore that planning should be the subject of a separate chapter in the Nolan Report. Views on this chapter were invited as part of the consultation process referred to in Chapter 1 of this paper. The recommendations received a generally positive response although concerns were expressed about certain details. We have taken these on board in formulating our own preliminary conclusions on the individual recommendations.

3 At the beginning of February this year, the Planning Minister, Calum MacDonald, spoke at a planning conference in Edinburgh outlining the Government’s planning agenda for Scotland. This includes a range of proposals for making the planning system more effective in delivering its objectives. A number of these proposals are directly relevant to the Nolan recommendations and are referred to in more detail below.

Training in the Planning System

R34 All members of an authority’s planning committee (or equivalent) should receive training in the planning system, either before serving on the committee, or as soon as possible after appointment to the committee.

4 There was general approval for this recommendation from respondents to the Report. Indeed, COSLA and others made the point that such training would be appropriate in other areas too, particularly licensing. We accept this recommendation. We believe, however, that the recommendation is directed in the first instance at local authorities and that it is a matter for them to take forward themselves. We have no plans at present to take a more pro-active role in this.

Best Practice in Planning

R35 Planning committees should consider whether their procedures are in accordance with best practice, and adapt their procedures if necessary, setting them out in a code accessible to councillors, staff, and members of the public.

5 This recommendation also received general support from respondents. We too are wholly supportive of councils’ procedures being in accord with best practice and being transparent, and would encourage councils to prepare codes and/or charter statements. The detailed content of such documents should be a matter for individual local authorities.

6 Nolan proposed that, ‘Members and officers should avoid indicating the likely decision on an application or otherwise committing the authority during contact with applicants and objectors.’ The Government agree that members should make clear when lobbied that a decision will only be taken at committee after all the relevant evidence and arguments have been considered. However, it is helpful to applicants if officers give an indication in pre-application discussions of the way a decision is likely to go, particularly in the light of the provisions of the development plan, albeit on a without prejudice basis.

7 The Report also recommended that ‘The reasons given by planning committees for refusing or granting an application should be fully minuted, especially where these are contrary to officer advice or the local plan.’ Requirements for authorities to give reasons for decisions are set out in article 22 of the General Development Procedure Order (Scotland) 1992. This states that if a permission or approval is granted subject to conditions or an application is refused, the notice must state clearly and precisely the reasons for the refusal or any condition imposed. Generally, no reason has to be given for the grant of permission (other than in certain cases involving environmental assessment).

8 The Government agree it is good practice for planning committee meetings to be properly minuted. However, our view remains that there should not be any general requirement for reasons to be given for granting planning permission since such decisions are not subject to any appeal process. We believe that a requirement to give reasons for granting permission would not only make planning committees’ work more difficult but would put permissions at increased risk of legal challenge on purely technical grounds.

9 Additionally, the Report recommended that ‘Councillors and planning officers should make oral declarations at planning committee of significant contact with applicants and objectors, in addition to the usual disclosure of pecuniary and non-pecuniary interests.’ We believe, however, that it is a proper function of councillors to maintain regular contacts with their constituents on a wide range of local issues and that a full register of such contacts would be impractical. It is important, therefore, that if local planning codes include this particular requirement, they provide a clear definition of what is meant by ‘significant contact’.

Planning Obligations and Appeals

R36 The Department of the Environment (and the Scottish and Welsh Offices) should consider whether present legislation on planning obligations is sufficiently tightly worded to prevent planning permissions from being bought and sold. The Departments should continue to reduce the time taken for planning appeals to be arranged and should set demanding targets to that end.

R37 Local authorities should adopt rules on openness that allow planning agreements to be subject to discussion by members of the authority and the public. They should not restrict access to supporting documents except where justified by the requirements of commercial confidentiality, which should be interpreted narrowly.

10 The Nolan Report asked the Government to consider whether the present legislation on planning obligations was sufficiently tightly worded, and recommended that local authorities should adopt rules on openness in relation to these agreements. The Government believe that the present legislation, coupled with policy guidance on planning agreements which is set out in SODD Circular 12/1996, provide clear and comprehensive advice on the proper use of planning agreements; in particular, that developer contributions should be proportionate and directly related to the development under consideration. But we constantly review all planning issues and, if the case for any change becomes evident, we would be prepared to pursue it.

11 On the issue of openness, the Government are minded to legislate at a suitable opportunity to require local authorities to enter planning agreements in the planning register. In saying this, we acknowledge that there are issues such as commercial confidentiality and timing of entry in the register that will need to be addressed.

12 Recommendation 36 also addressed the issue of the time taken to handle planning appeals. The Scottish Office Inquiry Reporters Unit have already taken steps to improve handling times, including taking on more Reporters and the introduction of new Inquiry Procedure Rules designed to speed up the process. Appeals targets are already challenging and they are kept under review.

Local Authority Planning Applications

R38 The Government should require authorities to notify the appropriate Secretary of State of all planning applications in which they have an interest, either in the development or in the land, either where the proposed development is contrary to the local plan, or has given rise to a level of objections regarded by the appropriate Secretary of State as substantial.

13 R38 recommends that, in the case of planning applications in which the local authority has an interest either in the land or the development, if the proposed development is either contrary to the local plan or has given rise to a substantial level of objections then the application should be notified to the Secretary of State. This is the current arrangement in Scotland, but in England notification is only required when the first criterion (departure from the development plan) applies. Having considered the “substantial level of objections” criterion more carefully the Government note that: there is clearly a problem relating to the definition of “substantial”; that this could lead to interest groups being able to exert a disproportionate influence over planning decisions; and that if an authority’s development proposals are in accord with the development plan, any valid objection to the plan policy will already have been heard prior to the adoption of the plan. Accordingly, it is the Government’s intention to drop “substantial level of objections” as a criterion for notification of such applications in Scotland, thereby creating a common GB notification procedure.

Calling in Planning Applications

R39 The Government should be more ready to use its powers to call in all major planning applications handled by an authority where, over a period of time, there is substantial public concern about that authority’s decision-making procedures.

14 Procedures currently in place in Scotland require planning authorities to notify the Secretary of State when they are minded to grant planning permission in respect of a wide range of major development proposals, for example: developments which are significantly out of accord with the development plan; those affecting sites designated for their environmental importance; wind generators; major retail developments etc. The Secretary of State considers each notified application carefully and will indeed take account of any public concern, substantial or otherwise, before deciding whether he should intervene. We believe that this procedure affords sufficient protection to objectors. To use the Secretary of State’s call-in powers purely because of the level of public objection, much of which could be of the “NIMBY” variety (“Not In My Back Yard”), would inevitably lead to delays in the planning process.

15 The Government believe that the call-in powers of the Secretaries of State are reserve powers, to be used sparingly and selectively. We do not, therefore, accept that more use should be made of these powers than hitherto.