New Scottish Horizons Engaging With The Community
Monday, March 19, 2007
by
Murray Shaw
Scotland is in the midst of major reforms to the planning system. Legislation has been passed and the Scottish Executive are actively consulting on implementation over the next 12 months or so. There is wide recognition that the change must go beyond processes to consider prevailing attitudes and culture surrounding the planning system.
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 Draft guidance was issued in July 2006 entitled “Community Engagement - Planning with People”.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) has now been issued.
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 which comments 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. While the specific proposals will have to reflect the outcome of the new legislation, it is envisaged that appropriate measures should be introduced to ensure engagement at a national and local level as well as in relation to specific development proposals and enforcement. It is probably in relation to specific development proposals that the changes are most significant.
At the national level reference is made to the existing National Planning Framework (NPF). The importance and significance of this document will grow in the context of the revised planning system. The guidance suggests that Scottish Ministers will have to produce a Participation Statement which sets out how and when people can be involved in the preparation of the NPF. As a start of that process the Executive have run a number of seminars on what should be in the NPF as revised – an interesting issue in itself.
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 and proposes the preparation of a Development Plan Scheme. This will set out a local authority’s programme for preparing and reviewing their plans and a Participation Statement (which will be part of that) setting out the way in which local people and groups can be involved in the preparation of the Development Plan.
The guidance also allows for engagement in the development management process and proposes that in relation to certain types of development there will be a statutory requirement for a pre-application consultation and possibly pre-determination hearings.
It is suggested that pre-application consultations will be a requirement in relation to developments which are contrary to the Development Plan, all major developments (yet to be defined by way of secondary legislation following up the passing of the Planning Act), developments requiring an environmental assessment and bad neighbour developments. Specifically where pre-application consultation is necessary it is proposed that the applicant should contact groups who have a particular interest in the development (to be identified in regulations) as well as other parties which the planning authority indicate as being appropriate to be consulted and that the applicant should use “tailored and appropriate approaches to engage the public”. The applicant will be required to submit a pre-application consultation report setting out who has been consulted, notes of the discussions which have taken place and details of any changes made as a consequence of those discussions. In the event that pre-application consultation has not been adequate it appears that the planning authority may refuse to register an application. The guidance also highlights the possibility of good neighbour agreements as the basis for communication, albeit it is understood that these are to be voluntary and not to be imposed on a mandatory basis.
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).
In order for 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.
This guidance in conjunction with the specific subordinate legislation which we still await, is going to make significant changes to the way in which larger planning applications are dealt with and considered. There is certainly going to have to be a change of attitude on the part of everyone involved.
What is recognised, 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 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) it seems surprising that the Executive is not clearly giving greater thought to alternative means of resolving disputes and differences – a process which is clearly underway in the court system generally.