Biggart Baillie Solicitors

New Scottish Horizons Engaging with the Community

Tuesday, January 12, 2010

by Murray Shaw

Scotland in the last year has undergone major reforms to the planning system.  Apart from legislative change the Scottish Executive wants to see a change of “culture”.  What this means is harder to pin down.  In reality it seeks pro-active engagement from all of those involved in planning rather than what sometimes feels like trench warfare! 

One of the significant issues in relation to the legislative changes was the question of whether the Executive would provide for third party rights of appeal (i.e. to give a right to an objector to appeal against the grant of planning permission). 

The Act did not provide for these, but against a commitment to secure much wider public involvement in the whole planning process particularly at an earlier stage.  Draft guidance was issued in July 2006 entitled “Community Engagement - Planning with People”.  The finalised PAN (PAN81) was issued in March 2007.

The guidance emphasises the importance of planning – “Planning is important.  It really matters” (Paragraph 1).  The message could not be simpler or clearer.  The guidance goes onto highlight the significance of development and the importance of being engaged in the process.  It is worth remembering that SPP1 (now superseded) which commented upon the Scottish planning system generally highlights the breadth of issues which the Scottish Executive consider can be addressed as part of the planning process – a breadth that goes beyond area of “traditional land use planning”.  The PAN comments that the importance of planning is not generally understood.  Sensibly it is also recognised that engagement “cannot, however guarantee that everyone gets the decisions or outcomes they desire”.  Nonetheless the suggestion is that engagement will result in better planning decisions and build more trust and confidence in the planning system. 

The Executive is keen to ensure that engagement takes place at all levels within the planning system.  The new system (see below) seeks to achieve that.

At the national level reference is made to the existing National Planning Framework (NPF) (now NPF2).  The importance and significance of this document will grow in the context of the revised planning system.  The preparation of NPF2 as well as debate before the Scottish Parliament involved extensive consultation.

At the local level the most significant document is the Development Plan comprising the renamed Local Development Plan and in the four city regions the Strategic Development Plan.  Local authorities in Scotland with varying degrees of enthusiasm and success, have sought to involve local residents in the Development Plan process. 

This guidance however sees an increased emphasis on this highlighting the requirement for a Development Plan Scheme. This sets out a local authority’s programme for preparing and reviewing their plans and must include a Participation Statement setting out the way in which local people and groups can be involved in the preparation of the Development Plan. 

Further guidance is given in connection with Development Plan schemes in Circular 1/2009 published in February 2009.  As well as setting out a programme for preparing and reviewing (as appropriate) a Strategic Development Plan or Local Development Plan the scheme should indicate what is likely to be involved “at each stage”.  The Participation Statement is to give detail about how the public can become involved in the preparation process. 

There is no specific set of regulations dealing with “inquiries” into Strategic Development Plans or Local Development Plans, rather the statutory position is set out in a set of regulations which deals with development planning in general terms – the Town & Country Planning (Development Planning) (Scotland) Regulations 2008.  These deal with the statutory requirements for publicity.  The regulations also give guidance on examinations.  Circular 1/2009 also comments on the examination process in paragraph 68.  It makes clear that inter alia the examination process is to be “understandable and transparent to the public”.  Paragraph 73 makes specific reference to the statutory position as a consequence of the changes made in the 2006 Planning Act.  This amends the 1997 Act and in effect Sections 12(2) and 19(4) of the 1997 Act now require that the person appointed to consider the Strategic Development Plan or the Local Development Plan (as appropriate) must firstly consider whether the appropriate authority (as the Circular summarises it) “has consulted on the Plan and involved the public in the way they said they would in their Participation Statement”.  Paragraphs 85 to 88 set out what is to happen if the person charged with examining the relevant Plan considers that there are shortcomings in the consultation process.  In essence that person (normally a Reporter) needs to send a report to Scottish Ministers setting out their conclusion and the reasons for that conclusion with recommendations as to what should be done next.  As paragraph 88 notes “Scottish Ministers expect that these procedures will rarely, if ever, be brought into play”. 

It can therefore be seen that consultation on the Strategic Development Plan and the Local Development Plan is intended to be at the centre of the process.  There is of course a difference between facilitating consultation and pro-active consultation taking place.  Indeed one of the issues in the Scottish planning system for a number of years has been ensuring that members of the public are engaged with the planning system at the appropriate opportunities.  Often members of the public only become aware of the planning system when they wish to oppose a specific application.  If that application is one which is in accordance with the Development Plan then it may be too late to do much about it. 

The importance for consultation also exists in relation to specific proposals.  The new system involves a hierarchy.  In relation to major applications there is a statutory requirement for pre-application consultation.  The specifics of this are dealt with in the Town & Country Planning (Development Management Procedure) (Scotland) Regulations.  In essence the applicant must give a pre-application notice of their intention to apply for planning permission at least 12 weeks before they so apply and thereafter carry out consultations in a specified manner.  This involves holding at least one public event where members of the public may make comments upon the proposal, publishing in the local newspaper details of the proposal and details of that public event.  One issue which caused concern was whether local authorities would be required to attend any public event (which could be a meeting or exhibition).  There is no requirement and indeed the notice of the public event must make clear that any representations made are not representations to the planning authority and that there will be an opportunity to comment specifically on the planning application once it is made.

When the application is in fact made (if it is a major application) the applicant must submit a pre-application consultation report.  This is intended to summarise the steps that have been taken to consult.  To the extent that changes have been made to the proposal to take account of the pre-application consultation it would be sensible to set these clearly out in that pre-application report.

Developers are likely to be concerned about the additional burden and costs that will be involved in these requirements, particularly if these requirements will not reduce the extent of opposition to proposals, the time it takes for applications to be determined and the potential cost of development (in terms of additional planning gain type issues).  However, consultation is mandatory.  Those who engage positively are likely to see greater benefits than those who pay “lip service” to the process.

In order for any consultation to be worthwhile it requires to be effective and the real issue is not simply putting in place the mechanisms for consultation but seeking to ensure that those who have the right or who are given the opportunity to be consulted actively become involved in that process.  The change of attitude and culture sought probably, at least in part, depends upon effective consultation.  The Executive are aware of this and see engagement in land use planning as part of a process which should involve the community in having a greater involvement in delivery of public services. 

What is recognised in the PAN, but not adequately answered, is that there will be strongly held, genuine and conflicting views that are unlikely to be capable of being resolved as a consequence of consultation.  While reference is made to the inquiry process little reference is made in the PAN to alternative ways of dealing with these conflicts such as mediation and alternative dispute resolution.  If there is to be culture change (and significant change in the operation of the system) the Executive needs to give greater thought to alternative means of resolving disputes and differences.  The use of mediation appears to have stalled thought it is understood the Executive intends to push ahead with this in 2010.  While there may be issues about using a process which is essentially private to resolve disputes or differences which may have consequences for third parties (members of the public) who are not involved in the mediation process, in the context of changing the approach to planning, to do so must be correct.  Further guidance on effective consultation would be equally welcome.