Planning and Environmental Appeals Division stakeholders’ meeting 19 December 2016
Paul CacketteChief Reporter
David HendersonHead of Performance and Administration
Pauline HendrySection Manager
Jane RobertsonSpecialised Case Officer
Stephanie ClarkScottish Renewables
Hugh CrawfordRoyal Incorporation of Architects in Scotland
Ian DrydenHeads of Planning Scotland
Alan FarquharScottish Environment Protection Agency
Darren HemsleyScottish Natural Heritage
Richard HendersonSouth West Edinburgh Communities Forum
Kate HoughtonRoyal Town Planning Institute Scotland
Graham LangScotland Against Spin
Suzanne McIntoshRoyal Incorporation of Architects in Scotland
Alastair McKieThe Law Society For Scotland
David MiddletonSustainable Communities Scotland
Euan PearsonRoyal Institute Of Chartered Surveyors
Aedan SmithRSPB & Scottish Environment Link
David WoodPlanning Aid Scotland
Apologies
Tammy AdamsHomes for Scotland
Scott FerrieDPEA
Karen HeywoodDPEA
Alasdair SutherlandScottish Planning, local Government and Environmental Law Bar Group
Penny UprichardThe Royal Burgh of St Andrew’s Community Council
1. Welcome and introductions
Paul Cackette welcomed everyone to the meeting and noted apologies as above.
He confirmed that Penny Uprichard had asked if David Middleton would take forward issues she had raised in her absence.
Round the table introductions.
Paul noted the wide and diverse range of views around the table. He considered that it was good timing with the independent review on planning and subsequent consultation commencing in the new year.
2. Matters arising from last meeting
Minutes of last meeting
Euan Pearson requested development plan be used instead of development flow. It was agreed to amend the minute.
3. DPEA update
Paul confirmed his background as a solicitor advising reporters in the late 90s/2000. His early impression of DPEA was of a high functioning decision making unit. He noted that there was a high collective output balanced against a high quality of decision making.
He confirmed that DPEA continues to face challenges in respect of the amount of work and the speed of decisions which has resulted in DPEA falling behind slightly in respect of targets for issuing decisions.
He set out that it was a key aspirations of his to increase the speed and maintain quality with regards to decision making.
He informed the group that new self-employed reporters have been appointed and that DPEA will also be recruiting 2 new salaried reporters and that adverts for these posts are live at the moment.
However, he set out that numbers are not always the answer and there was a need to develop experience in both new recruits and the existing cohort. DPEA would also be bringing in a second tranche of self-employed reporters hopefully at the same time as new salaried reporters are starting. Paul noted though that he is conscious that these are middle to long term solutions as there is a need to develop new reporters and ensure they have the correct skills and experience to deal with all aspects of our casework.
Paul stated that he has met the Minister with responsibility for planning who confirmed the aspiration of speed of decision making as a key priority along with greater efficiency, but not at the cost of quality of decision making.
He expressed surprise at the resource required to carry out local and strategic development plan examinations. Around 40% of reporter time is spent on Local Development Plan (LDP) examinations and the 5 year cycle dictates the timings and how resources are allocated in terms of reporters, normally 4 reporters in larger examinations.
He concluded that the resources required for these examinations does restrict and restrain resources available to allocate to other casework.
Performance
Paul gave a summary of the performance figures in the first 6 months of the year. He highlighted Table 5 which showed a dip in performance. He considered that this position would get worse before it gets better. However, he hoped that this position would improve as increased resources were brought into play.
Paul asked for views from the group on either performance or the wider position.
Aedan Smith commented that he was reassured that the focus on quality of outcomes remained paramount. He had a slight concern regarding the Ministers aim for increased economic growth in allowing Scotland to flourish. He asked how did DPEA look at the National Planning Framework (flourish rather than growth).
Paul confirmed that in respect of the determination of priorities for Scottish Ministers it was not just not just economic growth but a broader range of priorities.
David Middleton expressed a view that as local development plan examinations got larger the number of problems increased compared with smaller more local plans.
Paul confirmed that the role of strategic planning up for debate in the White Paper which will be released in the New Year.
Euan requested information on the number of Court of session challenges. Paul agreed that this information would be provided to the stakeholder group at the next meeting when the end year performance figures would be available.. He confirmed that regarding current court challenges, the result of Taylor Wimpey awaited along with one enforcement notice case and one Supreme Court case which was due to be held at the end of January 2017.
Euan raised an issue around the training that is available to new self-employed reporters
Paul confirmed that induction training lasts a week and covers all aspects of the work. New reporters accompany reporters at site inspections in this week and are then paired up with mentors for as long as required depending on how they get on. He added that monthly seminars are a well-established part of reporter training.
Paul also confirmed that since taking up post he was holding one to one meeting with allsalaried and self-employed reporters (salaried and self-employed). In addition to this monthly meetings were held with Principal reporters and the next seminar will involve a “back to basics” discussion.
Ian Dryden asked whether charging for appeals will be taken forward .
Paul replied saying that there will be a section in the White Paper on this and including also on fees charged by local authorities. He added that there were a range of questions to be addressed with regards to the scale of any potential fees
He confirmed that as a matter of principle he was not a fan of fees restricting access to justice
Paul further noted and recognised that Fees Circular 6/1990 was well out of date.
Suzanne McIntosh suggested that this was maybe a good time to reconsider the right to be heard. This could be tied in with any proposed change to fees.
Graham Lang suggested that it would be helpful if both Assistant Chief Reporters were present at the Stakeholder Group. Paul replied that whilst he was keen that they attend there were other reasons for them not being present today.
Graham added that a lack of resources for DPEA is a cause of delay which has a knock on impact and financial loss for the economy of Scotland. Paul confirmed that budgetary discussion do take place with the appropriate people in the Scottish Governmentbut in line given the current overall position in this regard has probably been to argue for limited reductions rather than for an increase. He added that whilst resources were a part of the answer, smarter and more effective working also were also a part of our considerations.
4. Planning review - the implications of the Empowering Planning Review for DPEA, including Examinations of Development Plans
Richard Henderson expressed concern over public confidence in the system with regard to out of date plans. He asked whether there is ever a point in which a “steady state” can be anticipated or whether we are now stuck in a position of uncertainty. Paul responded saying that it was difficult to get complete public confidence in the system and was unsure whether there would ever be complete stability.
Paul asked whether in the opinion of the group the recommendation to change to a 10 year LDP cycle was good or bad and whether this allowed longer term stability or on the other hand whether 10 years was too long?
Aedan felt that the issue of a 10 year LDPis quite attractive in some ways, particularly in climate change and energy. He noted that the next National Planning Framework will be looking towards 2050 and that the 5 year cycle does not allow longer term thinking in this regard. He thought that there was a need to start looking at how individual planning decisions filter through to this long term view.
Paul asked the group for views on the role of a reporter making decisions which can sometimes be contrary to local democratic views.
Aedan noted that sometimes there was a wider “society need”and that the system need needs that check and balance that reporters provide.
Darren Hemsleyfelt that a longer cycle may mean more appeals to DPEA.
David Middleton stated that one way of limiting appeals would be for the LDP to be used as a the yardstick for whether an appeal could be made to DPEA, this should also be a route of appeal to third parties
Darren confirmed thatproper engagement has implications on resources.
David Middleton stated that in his view larger plans do limit the engagement of individuals and community councils.
Richard expressed the view that there is a general malaise in terms of willingness to volunteer. This reluctance to get involved is also due in part to the complexity of the issues that are faced. There is a feeling that things are not worth doing and a side effect of an inefficient planning system is that people do not get involved.
Paul confirmed that the Minister has spoken about enhancing community involvement and involving young people.
David Middleton stated that the aim should be to involve all people not just particular segments of society. He added that disadvantaged communities have the least resource.
David Wood considered that as the vast majority of the population does not engage in planning,perhaps the aim of the review maybe to ensure a younger generation does engage with planning.
Suzanne confirmed that their body has surveyed members regarding the Local Review Body (LRB) system and data has been published. The outcome demonstrated suspicion and lack of confidence in the process. She expressed concern that a further push to LRB is not the right direction of travel.
Euan confirmed that in his view, the view of the LRB is shared by most of the stakeholder group.
David Middleton confirmed that a good assessment of the LRBprocess had recently been produced by John Watchman.
Euan felt a lack of satisfaction in the level of detail that should be contained in LDP which is appearing in Supplementary Guidance, which is not subject to examination.
Alastair McKie felt that there appeared more pressure to remove steps. He confirmed that in his view the current system works and that DPEA’s role in the process is in fact minimal. He expressed concern at the “readiness” of some plans for examination when it reaches DPEA.
Paul confirmed that plans do arrive in different readiness for examination.
Alastair stated that the state of readiness could be improved by the introduction of a gatecheck.
Paul asked the group whether a 10 year plan meant losing continuity of LDP team experience.
Ian Dryden acknowledged this point and confirmed that a 10 years could be problematic in keeping it up to date and taken consideration of the electoral cycle.
David Middleton spoke to background of his paper concerning the review. He expressed serious concern over any move to remove of examination. He confirmed that in his view local plans were no longer local and that systems to make objections do not always make sense to all. He added that there is security provided by DPEA, in that the correct level of judgement is used to make final decisions. And that if anything should go it should certainly not be the examination by reporters at the end.
He felt that public confidence would be further eroded by proposed changes.
Paulconfirmed that in his view the process is supported by external validation (reporters). The question will be when this takes place. If not at an early stage she had concerns that elected members may ignore findings.
Kate Houghton felt that maybe move to a 2 stage process would be appropriate. She felt that there were issues that would arise from proposals surrounding planning permission in principle via the LDP examination.
Alan Farquhar said that the Chief Planner confirmed difficulties in planning permission in principle being tied to the LDP. He had confirmed massive difficulties in time taken and resourcing of development plans. He had a big concern if theexamination at the “end of the game” is to be removed.
David Wood stated that national policies set out at national level might simplify LDP process.
Alastair stated that with regard to one of the more radical propositions LDP allocation that giving Planning Permission in Principle through examinationmight energise community involvement in the examination process.
Darren thought thatthere might be some merit in a parallel process for communities. However this was all a bit unclear at the moment.
Paul shared some of the concerns re planning permission in principle through the LDP process. He asked if there was early engagement what should that look like; would two stage reporter involvement make the system more cumbersome; and confirmed that early engagement would have to deliver efficiencies at the end of the process
Richard expressed the view that early engagement should be to facilitate.
Paul asked whether good adjudication can be reconciled with being a facilitator.
Darren felt that early engagement and carrying out a final examination would need to involve separate reporters.
Richard considered thatthe same structure can deal with if different people involved.
Suzanne added that mediation works in other countries where it saves time and money. She confirmed that there is little mediation in planning at the moment. The strength of mediation is independent facilitation which is not something in her view a reporter should be doing. She added that people will embrace the process if they are part of the process.
Paul asked how likely that housing land supply for example could be addressed by mediation.
David Wood confirmed that PAS are organising a conference in mediation in the New Year.
Alastair asked whether core policies be adopted across LDPs to improve communality of approach across different areas.
Darren confirmed that this is one of the recommendations
David Middleton raised the on-going issue of what exactly is sustainable development.
Darren asked whether community engagement is at the development management stage. The group generally agreed with this albeit the aspiration should be to reverse this.
Graham stated that the issue is what happens with the consultation responses rather than consultation itself. Recent SG consultation on community engagement allowed only 12 days for responding, which was not long enough.
Euan added that in his view it was important to pro-actively seek views of the community via neighbourhood plans.
Richard confirmed that communities feltbesieged by applications. He asked how do you get across what the community wants to developers and ensure it is taken on board.
5. Role of precedent for reporters based on previous decisions esp. landscape
David Middleton stated that hopefully future reporters would take on board knowledge already contained within DPEA regarding specific sites or locations.
Alastair added that it was okay if precedent raised by parties but the possibility of legal challenge was high if reporters refer to precedent without recourse to parties.
Darren askedhow much is Ministerial precedent taken into account in decision making.
Richard raised the question of the role of reporter & DPEA sitting within the Scottish Government.
6. Applying time limits for appeal submissions
It was agreed to leave this agenda item to the next meeting.
7. Does community engagement exist?
Paul asked the group for their views. interested in views
Aedan considered that the views of the wider community were vital. He asked what is the community. He asked that when it comes to petition is a signatory expressing an interest a difference in effort to when a party submits a letter and does the latter constitute greater concern and carry more weight.
He added that it would be a concern if a petition is given less weight.
Alastair stated that there was likely to be frustration to the community if the reporter disagrees with the community and this is not recorded in decisions or recommendations.
Paul thought that it was possible to identify quick wins here with changes that can be made now.