Planning

Petitioners demand that Parliament listens on Planning
Executive bulldozes community rights in planning tug-of-war

Scottish Environment LINK media release, 18 January 2006

A COALITION of 36 Scottish environmental organisations and 1,150 Scottish community councils will today hand a petition to Parliament demanding a rethink on the draft Planning Bill.

The action has been prompted by the fear that the new National Planning Framework (NPF), included in the draft Bill, could allow Scotland to become a dumping ground for large-scale and potentially damaging developments in the UK.

While we have consistently supported the idea of a NPF, the idea of agreeing the principle of such controversial "infrastructure developments" - which could include facilities like nuclear waste storage facilities, wind farms and power plants - in a document to which no individual, community or local authority could object is extremely worrying and a cause for real concern.

The requirements for the NPF do not include any statutory provision for public consultation, nor do they provide any form of examination in public for such development proposals. Instead, there is a requirement for the document to be scrutinised by Parliament for a period of 40 days. Astonishingly, this gives MSPs less time to consider a document that will deliver the principle of consent to nationally important developments than most local authorities allow for individual planning applications for buildings such as a conservatory or garage.

Furthermore, despite widespread support for a limited Third Party Right of Appeal (TPRA), which, we believe, would help ensure genuine participation and not just consultation, the Bill rejects this. A limited TPRA cannot address all the shortcomings of the planning system, but it could help ensure that the package of measures proposed by the Executive are more likely to work.

More than 5,000 people have signed the petition - more than the total number of consultation responses submitted to the Executive in response to all their consultation exercises on planning since 2001.

We ask the Parliament to take action to rigorously scrutinise the Bill, and take action to ensure that these voices are listened to and not ignored.

Contact: Anne McCall, LINK Planning Task Force Convenor - 0131 311 6500 or 07734 717 019 anne.mccall@rspb.org.uk or Stuart Hay on 0131 554 9977 or (pager) 07654200937

Notes for Editors

1. Scottish Environment Link will be staging a Tug-of-War photo opportunity outside the Scottish Parliament on Wednesday January 18th at 1300 hrs to publicise the submission of the petition. A number of MSPs will be present.

2. Scottish Environment Link comprises 36 member bodies representing over 500,000 members in Scotland. Further information about LINK is available from www.scotlink.org. The LINK Planning Task Force published a Planning Manifesto in April 2005 setting out the core issues the new planning bill should address.

3. Concerns over the absence of a limited Third Party Right of Appeal and the proposals for the National Planning Framework resulted in Scottish Environment LINK and the Association of Scottish Community Councils jointly lodging an e-petition with the Scottish Parliament. This petition attracted more than 5,000 signatures and will be presented to the petitions committee today (18 January) when LINK, the ASCC and the Portobello Campaign Against the Superstore present background evidence on the concerns which gave rise to the petition in the first place. Further details available from www.everyonecan.org

4. The Association of Scottish Community Councils has approximately 650 Community Councils as full members and is in regular contact with all 1,150 Community Councils from across Scotland on a regular basis. Further details are available on the ASCC website http://www.ascc.org.uk/index.html

5. The text of the petition reads as follows:
We, the undersigned, call upon the Scottish Parliament to seek to secure real rights for all in the planning system by ensuring that the forthcoming Planning Bill will:
" Establish real and effective rights for people to have their views taken into account on planning decisions and conditions, through the introduction of a limited third party right of appeal in the planning system, rather than just more opportunities to express opinions; and
" Ensure that all strategic planning decisions taken by Government at the national level, including the National Planning Framework, will be open to challenge and public inquiry.

6. The white paper "Modernising the Planning System" was published on the 29 June, analysis of the responses received was published yesterday (Monday) with 62% of people indicating they supported Third Party Rights of Appeal despite the fact that the White Paper did not seek views on the subject. During the original consultation which was specifically on widening the rights of appeal in the planning process 86% of respondents supported a limited third party right of appeal.

Planning Bill is no Christmas present for communities
LINK Planning Task Force press release 20 December 2005

Local communities have been profoundly let down by the proposals in the new planning bill. Despite repeated consultations and overwhelming public support for the issue of limited Third Party Rights of Appeal (TPRA), the Executive has failed to deliver real rights for communities. At the same time, the Executive has made it easier to push through national developments without the risk of public challenge.

The failure to address the issue of TPRA is particularly disappointing given that the Scottish Executive has previously undertaken two consultation exercises, both of which showed a significant public majority in favour of TPRA. In 2004, a consultation showed 86 per cent of those responding in favour of TPRA. In 2005, following the publication of the Planning White Paper, 62 per cent of people responded supported TPRA despite the fact that the paper chose not to address the issue.

Furthermore, the proposals for scrutinising the National Planning Framework deny local communities an opportunity to challenge significant developments that could affect their environment and quality of life.

These two issues have been the source of such significant concern that Scottish Environment LINK and the Association of Scottish Community Councils have joined together to lodge a petition with the Parliament, which has already attracted thousands of signatures.

LINK does welcome the contribution to sustainable development contained in the Bill, although we would wish to see this extended to all aspects of the planning process.

Fred Edwards, the President of Scottish Environment LINK, said: “Despite the modest commitment to a sustainable development purpose for development plans, this bill is generally very disappointing. The Executive claims that they want to give local people better opportunities to influence the decisions that affect them. However, local communities will not be given the same rights as developers nor will they be able to influence decisions on some of the largest and most controversial proposals in Scotland. Despite repeated consultations on these issues, the Executive has chosen not to listen. This is not a good basis for restoring public trust and confidence in the planning system."

Contact: Anne McCall, LINK Planning Task Force Convenor – 0131 311 6500 or 07734 717 019 anne.mccall@rspb.org.uk or Stuart Hay on 0131 554 9977 or (pager) 07654200937

Notes for Editors

Scottish Environment Link comprises 36 member bodies representing over 500,000 members in Scotland. Further information about LINK is available from www.scotlink.org. The LINK Planning Task Force published a Planning Manifesto in April 2005 setting out the core issues the new planning bill should address.

Concerns over the absence of a limited Third Party Right of Appeal and the proposals for the National Planning Framework resulted in Scottish Environment LINK and the Association of Scottish Community Councils jointly lodging an e-petition with the Scottish Parliament. This petition has already attracted thousands of signatures and will be presented to the Petitions Committee in January 2006. Further details available from www.everyonecan.org

The Association of Scottish Community councils represents approximately 650 Community Councils across Scotland. Further details are available on the ASCC website http://www.ascc.org.uk/index.html

4. The text of the petition reads as follows:

We, the undersigned, call upon the Scottish Parliament to seek to secure real rights for all in the planning system by ensuring that the forthcoming Planning Bill will:

Establish real and effective rights for people to have their views taken into account on planning decisions and conditions, through the introduction of a limited third party right of appeal in the planning system, rather than just more opportunities to express opinions; and
Ensure that all strategic planning decisions taken by Government at the national level, including the National Planning Framework, will be open to challenge and public inquiry.

5. The white paper “Modernising the Planning System” was published on the 29 June, analysis of the responses received was published yesterday (Monday) with 62% of people indicating they supported Third Party Rights of Appeal despite the fact that the White Paper did not seek views on the subject. During the original consultation which was specifically on widening the rights of appeal in the planning process 86% of respondents supported a limited third party right of appeal.

Pitfalls in Planning Bill Proposals

Scottish Environment LINK Planning Task Force press release, 6 September 2005

Following today's legislative programme announcements by the First Minister, Scottish Environment LINK has responded by urging the Parliament to listen to the voice of voters and reconsider the decision in the Planning White Paper not to introduce a limited third party right of appeal into the planning system.

Despite a public consultation which saw 86% of respondents support the introduction of a limited third party right of appeal this did not form part of the Planning White Paper put before parliament by Malcolm Chisholm in June. As a result, Scottish Environment LINK has joined forces with the Association of Scottish Community Councils to highlight this omission.

The petition also insists that all planning decisions, especially those related to the proposed National Planning Framework, must be open to challenge and public inquiry.

Anne McCall, Convener of Scottish Environment LINK's planning task force said - "We are delighted that the Executive are introducing a planning bill, the planning system is out of date and in many cases out of touch with those who use it. In only one month over 1,000 people have chosen to sign the www.everyonecan.org petition calling for the introduction of a limited third party right of appeal. The Executive simply cannot continue to ignore this grassroots support."

Editors Notes

Contacts:
Anne McCall, Convener of the LINK Planning Task Force on 07734 717 019 or Friends of the Earth Scotland on 0131 554 9977

1. Scottish Environment Link comprises 36 member bodies representing over 500,000 members in Scotland. Further information about LINK is available from www.scotlink.org and further information about the campaign is available from www.everyonecan.org

2. The Association of Scottish Community councils represents approximately 650 Community Councils across Scotland. Further details are available on the ASCC website http://www.ascc.org.uk/index.html

3. The white paper "Modernising the Planning System" was published on the 29 June. During the original consultation on widening the rights of appeal in the planning process, 86% of respondents supported a limited third party right of appeal.

4. Paper forms of the petition are available from: Scottish Environment LINK 2 Grosvenor House Shore Road Perth PH2 8BD Tel: (01738) 630804 Fax (01738) 643290, email: enquiries@scotlink.org and an electronic version can be signed at http://epetitions.scottish.parliament.uk/viewtopic.asp?TopicID=66

5. The text of the petition reads as follows:
We, the undersigned, call upon the Scottish Parliament to seek to secure real rights for all in the planning system by ensuring that the forthcoming Planning Bill will:
" establish real and effective rights for people to have their views taken into account on planning decisions and conditions, through the introduction of a limited third party right of appeal in the planning system, rather than just more opportunities to express opinions; and
" ensure that all strategic planning decisions taken by Government at the national level, including the National Planning Framework, will be open to challenge and public inquiry.

Jim MacKinnon
Planning Modernisation Team
Planning Division
Area 2-H (Bridge)
Victoria Quay
EDINBURGH
EH6 6QQ

Dear Jim

Response to Planning White Paper from Scottish Environment LINK Planning Task Force, August 2005

Introduction
Scottish Environment LINK is the forum for Scotland's voluntary environment organisations comprised of 36 member bodies representing a broad spectrum of environmental interests with the common goal of contributing to a more environmentally sustainable society.

The Planning System plays a key role in protecting and enhancing urban and rural environments. However, experience of working with the existing planning system leads us to believe that unless specific changes are made to it, it will increasingly fail to deliver for the Scottish people and their environment. We are looking for Scotland to have an efficient, fair and just planning system that enables sustainable development in line with the needs of Scotland's people. The system should be fair in how it treats different applicants and in how it balances the interests of those benefiting from development and those impacted adversely. The system should promote quality development through open, fair, participatory and accountable decision-making processes.

Key Issues:
The Scottish Executive's commitment to reforming the planning system is welcome, as are some of the specific measures within the Planning White Paper (such as the statutory provision to require development plans to be reviewed every 5 years, and the requirement for local authorities to give reasons for all of their planning decisions). We believe the White Paper seeks to re-focus the planning system on development planning, which should increase certainty and efficiency for all of those involved with, or affected by, the planning system.

However, we are particularly concerned that the White Paper provides neither a limited Third Party Right of Appeal nor a mechanism for the public to challenge the contents of the National Planning Framework (NPF), for example via a public inquiry or an examination in public.
Omissions
We are concerned that there are a number of important omissions from the white paper, in addition to those identified above. These were detailed in our Planning Manifesto and include:

• A statutory purpose for planning based on sustainable development
• A limited Third Party Right of Appeal
• Clarification of the criteria for Ministerial call in
• The retention of strategic planning for rural areas outwith the four city regions
• A duty of care for the historic environment to be placed on all public bodies
• A duty to designate and maintain a list of locally designated wildlife sites and an up to date sites and monument record; and
• Statutory provision for protection of National Scenic Areas.

Content of the White Paper

National Planning Framework - From the white paper it appears that the second NPF will be published in 2008 and that it will provide a 'stronger context for development plans and planning decisions'. It will used to identify developments of national strategic importance, to be known as 'national developments' for which specific provisions will be made in the bill. The NPF will be subject to extensive consultation, including SEA; a draft will be issued for public consultation. Ministers will bring forward proposals for ensuring the Parliament has the opportunity to contribute to the development of the framework. The NPF will be closely linked to the Infrastructure Investment Plan and the investment programmes of public agencies and infrastructure providers. It will also address the Executive's commitments on environmental policy, sustainability and the Executive's evolving position on marine spatial planning.

Comment
As a tool, the NPF is welcome and offers significant opportunities to address important issues such as waste and energy. The inclusion of national developments appears to mean that Scottish Ministers will decide the need for these developments at a national level. Details of location and design will still be subject to some level of local decision-making.

While there will be some level of consultation before the document is put to parliament we cannot identify any formal opportunity to object to or challenge the decisions it contains. The parliamentary scrutiny process has yet to be decided but the options before the parliament are limited and are unlikely to be able to include close scrutiny and robust testing of specific proposals. MSPs simply do not have the time or the technical knowledge to do so. The city region and local plans for which this will set the context are both subject to either inquiry or mandatory examination in public which is welcome. The purpose of these inquiries is to ensure that the policies and proposals being put forward are robust and necessary. Without the ability to subject nationally important decisions to public challenge, professional scrutiny and keen examination we are concerned that whoever holds the balance of power will be a handed a blank cheque to pursue damaging developments.

Solution
We believe the NPF should be subject to an 'Examination in Public' chaired by an independent professional who can hear and consider evidence and make recommendations. This has been done for other spatial strategies in the UK, for example the Spatial Development Strategy for London and the Regional Development Strategy for Northern Ireland and need be neither costly nor lengthy. The parliamentary debate after the White paper was announced indicated that a group would be set up to advise parliament of an appropriate process for scrutiny we would be keen to engage with this discussion.

Enhanced Scrutiny
We note the proposals to introduce 'enhanced scrutiny' for 3 types of planning application: applications for major and local developments which are significantly contrary to the development plan; those that require an EIA; and applications for developments defined in secondary legislation as larger-scale 'Bad-neighbours', for which specific provision has not been made in the development plan. We understand these applications would:

• Be subject to pre-application consultations;
• Be subject to mandatory public hearings at which objectors or supporters would be able to present their views
• Have any decision taken by a planning committee to grant planning permission referred to the Council as a whole; and
• Subsequently be notified to Minister, to consider whether to clear the application back to the Council or call in for determination.

Comment
The 'enhanced scrutiny' proposals would appear to be seeking to address the criticisms levelled at the system by those seeking a limited Third Party Right of Appeal. However, as they stand the package of measures amount to very little by way of new rights and may in fact cause additional problems. Pre-application consultation by good developers is already undertaken and we welcome this. However, in our experience developers can use these discussions to mislead local communities who believe that the concerns expressed during this process are taken to be a formal objection. A limited Third Party Right of Appeal serves to ensure that these discussions are aimed at resolving problems rather than a box-ticking exercise.

A number of Councils already hold hearings and experience has been generally poor with the proposal simply offering an opportunity for people to vocalise what they already put in writing - there is no obligation on the Council to take these views into account. The final two proposals frequently happen already and without clear call-in criteria for Ministers the latter is too opaque to be useful.

While the idea of a hierarchy of development types does not appear to present a problem for environmental NGOs some of the processes associated with their determination certainly serve to reduce some public rights and offer very little in the way of new powers - simply a few more opportunities to be heard.

Local Appeals
For applications that fall within the terms of the scheme of delegation, appeals will now be determined by review bodies of elected members.

Comment
Following these appeals developers will only have the option of a statutory appeal or judicial review. We are aware that this may raise issues in terms of the Aarhus Convention or Human Rights unless the review panel has some level of independence; we would welcome further information on this issue.

Making the Planning System More Efficient
There are a large number of proposals relating to efficiency in the White Paper which we welcome including:

• Cultural Change amongst all stakeholders, especially local authority managers, towards the key role of development plans;
• Development Plan Reviews - a statutory provision to require development plans to be replaced within five years of adoption;
• Strategic Development Plans - we welcome the fact that these will be subject to mandatory public examination but remain concerned about strategic planning for rural areas;
• Development Plan Scheme - an annual published programme for producing and reviewing development plans by local authorities;
• Statutory Consultees - public agencies such as SNH, SEPA, LECS and Scottish Water will be designated statutory consultees for development planning.
• Form and Content - greater prescription of the form and content of the plans and enhanced status for supplementary guidance. Model development plan policies will be developed;
• Consultation Statements - a report on public engagement will be required for each development plan, however, we are unclear how this differs from existing obligations;
• Public Examination and Adoption - development plan examinations to be carried out by SEIRU appointed reporters. Reporters' decisions to be binding subject to criteria for local authorities to seek agreement of Scottish Ministers to depart from them;
• Action Programmes - two yearly action programmes to be prepared;
• Further development of e-Planning;
• Planning Agreements - a review of their scope and transparency;
• Standard Application Forms;
• Appeal Period - to be reduced from 6 months to 3 months, this is welcome but we are aware that this has already happened in England and Wales with the result that developers are lodging automatic appeals in order to meet tighter deadlines.
• Power to Decline - to determine repeat applications within 2 years;
• Statutory Duration of planning consents to be reduced to 3 years;
• Advertising of Weekly Lists to be mandatory;
• Historic Environment - Historic Scotland to consider whether combined consent procedures workable;
• Tree Preservation Orders - enhance procedures;

We are concerned about the introduction of 'approval in principle' in development plans as we believe this would add additional pressure to develop environmentally important sites for which an Environmental Impact Assessment has yet to be completed.

Making the Planning System More Inclusive
There are a number of proposals relating to improving the inclusive nature of the planning system which we welcome, these include:

• Information Campaign - to publicise existing and future rights in planning over the next 12 months;
• Appeals Screening - early refusal process for appeals which do not address the reasons for refusal or do not comply with an up to date development plan;
• Neighbour Notification - to transfer to planning authorities and to apply to enforcement decisions;
• Development Plan Neighbour Notification - to apply to certain local development plan proposals;
• Public Local Inquiries - streamlining proposals;
• New Planning Advice Note - is proposed on community engagement;
• Community Engagement - is a material consideration in development plans and planning appeal inquiries, we welcome this but much will depend on what requirements are established for 'community engagement'.
• Reasons for Decisions - reasons for all decisions to be given.
  " Schedule of Land Ownership - local authority interest to be shown in development plans;
• Local Authority Interests - 'notice of intention to develop' procedure to be discontinued, all local authority interest cases to be the subject of planning applications;
• Planning Agreements - to be recorded in a public register;
• Good Neighbour Agreements - to be a material consideration;
• Inclusive Design - a Planning Advice Note is proposed;
• Planning Aid Scotland - continued support;
• Awarding Good Practice - a Community Involvement category to be added to the Scottish Awards for Quality in Planning;
• Enforcement - the wide range of proposals are welcome but much will depend on local authorities being willing to use these powers.

We are concerned that the proposal to allow appeals to be dealt with only on the basis of the material originally supplied to the planning authority would appear to create an artificial situation for all parties. In particular, we are concerned that in the event of a delay the decision could only be taken on the basis of evidence presented at the time not contextual changes arising since.

Conclusion
This White Paper contains a number of helpful proposals which we believe will serve to improve some aspects of the Scottish planning system. However, the White Paper fails to address the fundamental concerns raised by those supporting the introduction of a limited third party right of appeal. It also introduces a more robust National Planning Framework which worryingly will not be subject to an Examination in Public or an Inquiry. Together with the omissions listed above, we hope that the Executive is willing to tackle these issues during the drafting of the Bill.

Yours sincerely

Anne McCall
On Behalf of the Scottish Environment LINK Planning Task Force

New Coalition asks Parliament to get real on planning.

Scottish Environment LINK and the Association of Scottish Community Councils media release 3 August 2005

Scottish Environment Link has joined forces with the Association of Scottish Community Councils to fire a broadside against the Executive's planning white paper.

Together, they have launched a petition to the Parliament calling for the introduction of a limited third party right of appeal within the planning system - rather than the feeble promise of more opportunities to express an opinion offered by the Executive.

The petition also insists that all planning decisions, especially those related to the proposed National Planning Framework, must be open to challenge and public inquiry. The two groups will be working throughout the summer to gather as many signatories as possible before the issue goes back to Parliament in the autumn.

On launching the petition, Anne McCall, Convener of Scottish Environment LINK's planning task force said - "The white paper is a mess. The new system would allow people to express their view of a planning proposal - but give no real weight to their opinion. It would still be the case that the developer had rights of appeal, where objectors would be left almost powerless. The opportunity to put some fairness and balance into planning is being thrown away."

Douglas Murray of the Association of Scottish Community Councils said - "'The ASCC position is simple. Community Councils want stronger powers for their communities and accountability from both local and national government. The White Paper does not deliver on either nor does it allow communities sufficient safeguards on decisions made against their wishes or even where the Local Authority makes an error. The Scottish Parliament has the power to make these changes, and this petition gives notice of our intentions.'


Editors Notes

Contacts:
Anne McCall, Convener of the LINK Planning Task Force on 0131 311 6500 or email: anne.mccall@rspb.org.uk; or

ASCC Main office: 0131 225 4033; or
ASCC Secretary: 01356 623330

1. Scottish Environment Link comprises 36 member bodies representing over 500,000 members in Scotland. Further information about LINK is available from www.scotlink.org and further information about the campaign is available from www.everyonecan.org

2. The Association of Scottish Community councils represents approximately 650 Community Councils across Scotland. Further details are available on the ASCC website http://www.ascc.org.uk/index.html

3. The white paper "Modernising the Planning System" was published on the 29 June. During the original consultation on widening the rights of appeal in the planning process 86% of respondents supported a limited third party right of appeal.

4. Paper forms of the petition are available from: Scottish Environment LINK 2 Grosvenor House Shore Road Perth PH2 8BD Tel: (01738) 630804 Fax (01738) 643290, email: enquiries@scotlink.org and an electronic version can be signed at http://epetitions.scottish.parliament.uk/viewtopic.asp?TopicID=66

5. The text of the petition reads as follows:
We, the undersigned, call upon the Scottish Parliament to seek to secure real rights for all in the planning system by ensuring that the forthcoming Planning Bill will:
" establish real and effective rights for people to have their views taken into account on planning decisions and conditions, through the introduction of a limited third party right of appeal in the planning system, rather than just more opportunities to express opinions; and
" ensure that all strategic planning decisions taken by Government at the national level, including the National Planning Framework, will be open to challenge and public inquiry.

Press release from the LINK Planning Task Force, 29 June 2005

Planning White Paper: Executive fail to deliver ‘real rights’ in the planning system

“Disappointing and discouraging” is the response to the much anticipated White Paper on Planning (published today) from the Planning Task Force in Scottish Environment LINK - the liaison body for voluntary sector environmental organisations in Scotland. Anne McCall, Convener of the LINK Planning Task Force, responded by saying:

‘This paper is a missed opportunity for Scotland’s people and our environment. The Executive have produced a package of measures which amount to ‘good housekeeping’ but significantly fail to provide any real rights for communities seeking to engage with the Scottish planning system.  Ruling out Third Party Rights of Appeal sends a bleak message to all those who care about their local surroundings - you can engage with the process but not on an equal footing with developers.

‘Furthermore, despite 86% of respondents supporting a Scottish Executive consultation calling for increased rights in the planning system for Third Parties, there could actually be a reduction in opportunities for the public to challenge large-scale proposals. The White paper suggests the introduction of a new category of developments called ‘national strategic developments’ which would be agreed in principle in the National Planning Framework.  While we welcome the fact that this document will now be statutory and subject to regular review we are very concerned that there will be no opportunity for public scrutiny via a public inquiry or examination in public.

Fred Edwards, the President of Scottish Environment LINK said:

‘ I am extremely disappointed that the expectations generated by the executive in respect of Third Party Rights of Appeal have been dashed. For the widely expressed desire for the limited rights requested by people in meetings from Aberdeen to Dumfries to be so cruelly cast aside while preserving the rights of developers is not something I would have expected from a Labour/Lib Dem coalition government. The Executive went through a technical and poorly publicised consultation on rights of appeal in planning, but even then many hundreds of people leading busy lives around the country managed to respond to let them know that they want real rights in an accessible planning system. This Executive is not listening.

‘By ruling out even a limited Third Party Right of Appeal, and instead offering a package of measures which increase public consultation and slightly alter the process for appeals from developers - the white paper does not deliver environmental justice. This is not equity, this amounts to offering the public a 'speakers corner' where they can voice their concerns but neither developers nor councils will be obliged to listen.’

‘The measures to give people an opportunity to air their concerns may not be bad, but without an obligation to be taken into account, they amount to the epitome of gesture politics. If the package of measures included real rights for people like Third Party Right of Appeal, then there would be real value in undertaking effective pre-application consultation in order to minimise the likelihood of challenge later on.  As it stands, no amount of spin about more consultation will convince those who have genuine concerns that they will be taken seriously.

The alarming proposal to introduce national strategic projects, which simply need to be agreed in principle in the National Planning Framework has met with grave concern as this document is not subject to public challenge or public inquiry. For projects in it, which could include Scotland’s most controversial developments, like the Beauly Denny transmission line, the Harris superquarry, the M74 or any nationally important specialised waste facility, the opportunity to discuss the 'need' for the project would be removed from any subsequent public inquiry once an application was lodged.  This amounts to an attempt to make a significant reduction to existing third party rights.

While the Planning Task Force are shocked by the resistance to give people real rights in the system, there are some proposals where an attempt is being made to make the system slightly more effective and slightly more efficient, which we would support.

Contact :  Anne McCall, Convener of the LINK Planning Task Force on 0131 311 6500 or 07734-717019 or email: anne.mccall@rspb.org.uk or Jessica Pepper, LINK Parliamentary Officer on 0131 225 4345 or jessica@scotlink.org

An Executive Summary of the contents of the White Paper. (Word, 36KB)

Editors notes:

Scottish Environment LINK is the umbrella body for Scotland's voluntary environment organisations. Organisations in the network represent a broad spectrum of interests in natural and cultural heritage, they are supported by a collective membership of around 500,000 people.

Members of the LINK Planning Task Force include RSPB Scotland, Friends of the Earth Scotland, ruralScotland, the National Trust for Scotland and Scottish Wildlife Trust.

A LINK 'Planning Manifesto' is available (pdf. 51KB)

An overwhelming majority of responses, 86% respondents (1620 in total), to the consultation ‘Rights of Appeal in Planning’ last year were in favour of Third Party Rights of Appeal in principle.  The majority of respondents supported the case for the limited right of appeal outlined in the Partnership Agreement (as supported by LINK and the everyone campaign - see below).

Member organisations of Scottish Environment LINK are often contacted by individuals and communities who have concerns about planning issues in their local area. 

Last summer, Scottish Environment LINK organised a series of public meetings across the country to let people know about the consultation on Rights of Appeal in Planning. These included case studies from local areas and MSPs were involved on the panels. More at http://www.everyonecan.org.

Scottish Environment LINK members have called for a limited right of appeal in planning in the following cases:

1. Cases where the local authority has an interest. 
Where local authorities are required to be both applicant and decision-maker the need for transparency of process is paramount. A Third Party Right of Appeal would allow access to independent arbitration, reducing the risks when there may be a conflict of interest.

2. Cases where the application is contrary to the development plan -
In a plan-led system where all are actively encouraged to engage in the forward planning process, any decisions which depart from the agreed plan must be subject to an increased level of scrutiny.  Failure to make decisions in accordance with development plans alienates people and devalues the forward planning process. The introduction of a widened right of appeal would serve to encourage local authorities to produce up-to-date plans in order to avoid departing from the development plan.

3. Cases which go against planning officers recommendation.
LINK organisations work across Scotland and are acutely aware of the different approaches taken by different local authorities to planning matters. While some level of local variation is a welcome reflection of local democracy, an inconsistent application of national policy does not reflect well on the planning process.  Planning officers are employed as professionals, operating under a professional code of conduct, which requires them to provide impartial advice on planning matters. Should councillors then decide to depart from this advice this decision should be made subject to an additional level of scrutiny to ensure the departure was for sound planning reasons.

4. Cases where an Environmental Impact Assessment is needed
Despite the relatively small number of proposals accompanied by an EIA, this is a highly important category for inclusion in any widened right of appeal. The requirement for an EIA serves as an indication that the development may have significant environmental impacts (either positive or negative). As such, it highlights those proposals that are likely to give rise to significant environmental change that often extends beyond the immediate vicinity of the development.

3rd May 2005 media release

ENVIRONMENTAL ORGANISATIONS UNITE IN CONDEMNATION OF PLANNING BETRAYAL
Scotland's leading environmental groups have reacted with anger and disbelief to proposals which will effectively mean major developments getting the go ahead without substantive public consultation, or any independent assessment of need.
The Planning Task Force of Scottish Environment LINK, has warned that the proposals represent a betrayal of the policy agreed by the Lib/Lab Scottish Executive Partnership Agreement to improve the planning system by "strengthening the involvement of communities" and also undermines the government's commitment to sustainable development.
Commenting on the proposal Anne McCall, Convenor of the LINK Planning Task Force said:
"These proposals have come with little warning. Environmental groups, local councillors and communities risk having their views ignored as the biggest and most controversial planning decisions will be taken without due consultation, behind closed doors, by Scottish Executive Ministers."
"There are obvious problems with the current framework for approving proposals of national significance and the delays and costs of inquiries; however the solution is not an assault on the democratic rights of stakeholders in the process. These proposals replace the transparent and inclusive inquiry process, setting aside any proper checks and balances, and therefore risk bringing the whole system into disrepute."
"Similar proposals were brought forward in England and during the passage of the Planning and Compulsory Purchase Act and were rejected by both the Government and the public. Scotland's environmental organisations will be campaigning to ensure they are not resurrected here."
"Environmental groups have a proud record of supporting communities and defending environmental interests via the planning system; successfully challenging unsustainable developments including; the Lingerbay superquarry on Harris, the Shieldaig hydro scheme and the M80 Kelvin Valley Route."
"It is shocking that this policy change has even been considered; an immediate statement from the Executive providing assurances that this option will not be in the White Paper would be welcomed. Otherwise we must draw our own conclusions about the Executive's commitment to the democratic process and environmental justice."
For more information please contact Anne McCall, Convenor of the LINK Planning Task Force or Julia Harrison, Advocacy Officer on 0131-311-6500.
Notes
1. A leaked confidential paper from the Communities Minister appears to suggest that Scottish Ministers are seeking to use the National Planning Framework to prevent these projects being challenged on the basis of 'need'. Determining national need at a national level is, of course, logical. However, the National Planning Framework, unlike similar strategies in Wales and Northern Ireland is not a statutory document, nor is it subject to public consultation, so it cannot be challenged other than through judicial review. It is not subject to any form of inquiry, examination in public or formal adoption procedure. In short, it is an Executive policy paper which can be changed at the whim of Ministers and over which even the Parliament has no control
2. A similar proposal in the Planning and Compulsory Purchase Act 2004 (for England and Wales) was soundly rejected by both Government and the public.
3. Scottish Environment LINK launched its planning manifesto on the 29th of April. See http://www.scotlink.org/About_LINK/Work-areas/planning.php
4. Scottish Environment LINK is the forum for Scotland's voluntary environment organisations - 36 member bodies representing a broad spectrum of environmental interests with the common goal of contributing to a more environmentally sustainable society.
5. The Executive has indicated a planning white paper is due by summer 2005.

29th April 2005 media release

ROBUST PLANNING LAWS CRUCIAL FOR SCOTLAND'S FUTURE
The planning system in Scotland is crucially important for our landscape and our communities. New planning legislation has been promised by the Scottish Executive in this session of Parliament. In the years to come this legislation will affect the location and size of housing estates, windfarms, opencast mines, landfill sites, quarries and large supermarkets. It may also determine whether a new generation of nuclear power stations are built. Scotland's environmental groups have made five demands of the new Bill.
Scottish Environment LINK, the umbrella group for Scotland's environmental organisations, welcomes the Scottish Executive's commitment to introduce new planning legislation. The Executive has indicated that it will introduce a White Paper before the summer, and will introduce the Bill in this parliamentary session. LINK has launched a Manifesto which details five demands.
In order to restore public confidence and create a planning system that reflects the needs of the 21st century, we recommend that the following five points be incorporated into the new law.

• Sustainable planning - include 'sustainable development' in the planning process.
• Planning for people - create a system that people can trust. This should include a limited Third Party Right of Appeal; clarification of when Ministers call-in applications; a requirement for Local Authorities to make public the reasons for their approval of planning applications; and the use of Good Neighbour Agreements.
• Planning with the right processes in the right places - firm up mechanisms for protecting the natural and built heritage, retain strategic planning for rural areas and regular reviews of planning guidelines
• Planning together - public bodies such as SEPA and SNH should contribute to the planning process at an earlier stage
• Revitalising planning - provide adequate funding for the planning system so there are appropriate numbers of skilled professionals and enhanced support for planning aid.

Lloyd Austin, Chair of Scottish Environment LINK, said:
"The Scottish Executive must grasp the opportunity of this new legislation to restore the public's trust in the planning system. This will not be achieved without greater rights for communities and the other improvements we suggest. The current system is fractured and failing to deliver for communities, developers and the environment."

The Manifesto is attached as a PDF file - please get in touch if you have trouble reading this file.

Contacts:
Julia Harrison, Advocacy Officer 07813-544380 or Anne McCall, LINK Planning Task Force Convenor - 0131 311 6500 anne.mccall@rspb.org.uk

Notes for Editors
1. The Executive has indicated a planning white paper is due by summer 2005. Recent press coverage of a leaked Cabinet memo suggests that the Communities Minister does not support the introduction of a limited Third Party Right of Appeal (TPRA) despite an Executive consultation exercise which showed that 86% or respondents supported the introduction of TPRA in principle.
2. Planning in the marine environment would be dealt with by a different set of legislation. The Scottish Executive has consulted on Marine Spatial Planning, and this might be introduced under any new Marine Bill.

Planning and Third Party Right of Appeal (TPRA)

Lynn Jamieson
Making Development Plans Deliver
Scottish Executive Development Department
Planning Division Area 2-H
Victoria Quay
Edinburgh
EH6 6QQ

Scottish Executive Consultation
Making Development Plans Deliver
Scottish Environmental Link Response
July 2004

Introduction

Scottish Environment LINK (LINK) is the umbrella body for Scotland's voluntary environment organisations. There are 35 bodies in the network representing a broad spectrum of interests working towards a more environmentally sustainable society.

Scottish Environment LINK (LINK)'s Planning Group (members listed below) welcomes the opportunity to comment on this consultation but we are concerned that the proposals in this document, taken together with other proposals for modernising the planning system, will act to the disadvantage of third parties unless a widened right of appeal is introduced.

The consultation paper makes a number of welcome proposals but we remain to be convinced that proposals contained in the consultation will in them selves deliver a better planning system.

We welcome the specific references to SEA in the consultation but query how this will sit with the removal of the consultative draft plan?

Our detailed comments are given below.

Q1: What are the most important factors in the successful management of development planning?

LINK Planning Group member bodies have worked with local authorities across Scotland and have found that, those authorities with the most successful approaches to development planning identify it as priority area and resourced accordingly. The most successful authorities have dedicated teams set up specifically to deal with development plan production and monitoring.

Q2: Should development plan schemes indicate timetables for plan preparation to provide some certainty for stakeholders?

Members of the public and stakeholders such as LINK Planning Group member bodies frequently find the timetable for preparation of plans unpredictable and difficult to understand. A clear forward plan for the consultation stages of the plan would therefore be highly desirable, but would only be of use if adhered to.

Q3: What are the most effective ways to ensure quick preparation and review of development plans?

Of the measures identified in the consultation, we believe that a statutory duty to update plans could be a useful incentive, but we are not clear how this differs from current arrangements. However, the power for Scottish Ministers to issue a direction requiring a plan be updated is already available and has rarely been used; we are unclear whether the proposal modifies this in any way.

We would strongly oppose any steps that reduce the primacy of the development plan as we feel this would create confusion rather than provide clarity. Section 25 of the Town and Country Planning (Scotland) Act requires that decisions be made in accordance with the plan unless material considerations indicate otherwise. To remove the primacy of the plan creates uncertainty concerning an important principle that underpins the planning process.

We are doubtful whether linking good performance with additional resources will do little more than bolster already effective authorities thereby widening the gap between good and bad. Conversely, removing the right to charge fees on planning applications after a set period following approval/adoption has some merit.

With reference to our response to the Executive's consultation on 'Rights of Appeal in Planning', LINK suggested that the introduction of limited third party rights of appeal once a development plan becomes out-of-date would act as a significant incentive on local authorities to ensure quick preparation and review.

It is a fact that we have to legislate most for those authorities that are performing less well than others. The proposal to audit authorities who fail to perform seems a fair response and the audit findings should be made binding on the authority concerned.

Up to date data and survey information also greatly enhances plan preparation. For example, the process of identifying suitable sites for development will be aided by a detailed knowledge of key wildlife sites which need protection. This should not just include statutory sites but also important local non-statutory sites which are important for wildlife and biodiversity.

Q4: Do you agree that early targeted consultation on the key issues should replace consultation on draft policies and proposals?

We appreciate that the consultation document is attempting to streamline the current system. However, we are concerned that by removing the consultative draft plan stage, key stakeholders will be excluded from the process. Secondly, a fragmented approach to interrelated social, economic and environmental issues is not a sound way of pursuing sustainable outcomes. The most recent example of this type of approach relates to the Wester Ross local plan and from that example we are not yet convinced there is sufficient evidence to justify the fundamental changes being proposed.

Even without a consultative draft plan, stakeholders will require to be consulted on something tangible, whether that is outline proposals, planning for real exercises or public meetings. It is difficult to see how this will significantly differ from producing a consultative draft plan, which local authorities currently have considerable scope to draft in as much or as little detail as they see fit.

We recommend the retention of the consultative draft plan but suggest that authorities could adopt a 'light touch' when it comes to production. It would be counter productive to speed up consultation by removing the draft stage; if this only leads to more objections later in the process.

We also believe that Strategic Environmental Assessment should be an integral part of the consultation process and is likely to relate best to the consultative draft stage. If carried out effectively this should assist participants by providing environmental information on a range of possible options. We would appreciate clarification on how the proposed reforms and the implementation of SEA requirements intermesh.

Q5: Should these and any other bodies have a duty to engage in development planning placed upon them?

Effectively engaging statutory agencies has been a long-standing problem for the development planning process so this reform is to be welcomed. In particular we recommend that the duty should be extended to the Forestry Commission given that ending universal structure plan coverage will, in a number of areas, remove the natural home of Indicative Forestry Strategies.

It is disappointing that Highland and Islands Enterprise and Scottish Enterprise are not included on this list and we strongly recommend that they are added, given that their remit extends into spatial and strategic aspects of economic development.

Similarly, Historic Scotland is not included on the list either, despite its role in the planning system. In the case of Executive agencies such as Historic Scotland there are obvious problems resulting from their regulatory responsibilities within the planning system, their relationship to the Scottish Executive and freedom to participate in development plan making. This issue must be resolved and not ignored.

Q6: Do you have any suggestions for improving the involvement of businesses in the development planning process?

The business community has consistently argued that public involvement with the planning system should occur at the initial rather than the later stages of the development process. It is therefore disappointing that evidence seems to suggest that involvement of commercial organisations in the development planning process is often 'neither been sustained nor consistent'. Our own experiences have lead us to conclude that, given the Executive cannot compel business to become involved in the development planning process, the only real incentive would be to introduce a limited third party right of appeal for development plan departures. We believe that this would provide a strong incentive for business to engage with the process of plan making from the outset.

Q7: Do you agree that the certified copy of the plan should remain a paper version?

Yes, not all members of the community have access to, or familiarity with, IT facilities and this is likely to be the case for a number of years. Key maps are also often better viewed in hard copy.

Q8: Do you agree that a Development Planning Forum should be formed to support better plan-making?

With the right membership Development Planning Forums could offer a valuable opportunity to share good practice, however, as always the efficiency of such a body will be dependant on the regularity and content of meetings and the status of non-governmental participants. Such bodies should have a clear remit to consider how to effectively plan and deliver adequate and meaningful consultation. We reemphasise that effectiveness will be dependant on strong community representation amongst a broad and balanced range of interests and suitably moderated.

Q9: Do you agree that action planning is a continual process with formal publication of an action plan every two years?

Yes.

Q10: Outside the city regions, do you support the provision for an area-wide local development plan to set the overall context in areas where there continues to be a mosaic of local development plans?

In the absence of a Structure Plan the provision of an area-wide local development plan is essential. In those areas which will not have a City Region Plan we are concerned that strategic issues will not be able to be addressed. For example, the cumulative impacts of wind farms in the Highland Council area cannot be addressed by individual local development plans.

We are also concerned that the production of these area-wide local development plans is discretionary and will therefore not be a priority in comparison to mandatory local development plans.

Cross boundary issues between authorities may not be able to be handled in an effective manner. There are circumstances where mineral deposits for instance occur on both sides of a local authority boundary and at the moment mineral policies can be different each side of the border. Authorities must come to some agreement on those issues in order that the single resource can be treated in a consistent manner. Similarly, any developments on or near the border of a local authority area should be sensitive to developments of the adjoining authority area.

It is vitally important that the plans still contain registers of local wildlife sites and other statutory and non-statutory designated sites. Such details should not be lost in broad-brush authority wide plans.

Q11: Do you agree that, where it can be demonstrated that there has been community and other stakeholder consultation, supplementary guidance should have statutory backing?

LINK Planning Group members remain unconvinced that this particular proposal has been fully considered. If supplementary planning guidance has been produced with community and stakeholder consultation and is therefore to be considered statutory, why should it not be included in the local development plan or City Region Plan? If this is not the case, then the proposal threatens to encourage less rigorous consultation on policy issues that are the subject of supplementary guidance.

If the purpose was to allow planning authorities greater flexibility to respond to emerging issues, then we would support the proposal with the proviso that the community and stakeholder consultation is no less than that which is required for the plan making process itself. Without this, authorities might be tempted to produce skeleton plans with almost all the detail provided in supplementary guidance, thereby avoiding the cost and potential delay of adequate consultation. A danger is that important topics such as renewable energy, village planning and minerals might be dealt with in this way.

Involving the public in specific consultations on technical matters appears fraught with difficulties, whilst the adequacy of the consultation arrangements will be difficult to measure. We would draw your attention to the recent Wester Ross Local Plan which relies heavily on non-statutory 'Development Plan Policy Guidance' and has not been subject to any level of public scrutiny. Given that effective consultation is both time consuming and costly this is unlikely to be an isolated example.

Q12: Do you support greater consistency in the style of plans, particularly proposals maps?

This is an excellent idea, which we strongly support.

We would also argue that there should be more uniformity in how local authorities designate and protect non-statutory sites. We note that SNH & COSLA are undertaking work in this area and hope that advice and guidance will be available to planning authorities on the use and management of such designations as part of the development planning process.

Q13: Under what circumstances should local authorities be allowed to depart from the Reporter's recommendations on the local development plan examination?

Limited scope to depart from the Reporter's recommendations must be provided to allow local authorities to modify recommendations if there has been a fundamental change in circumstances. However, someone has to be the final arbiter and if a full inquiry has taken place there is an expectation that the outcome will be adhered to by the LA. Inquiries should seek to identify, and then address legitimate community concerns and must not be viewed as some sort of toothless exercise.

It should be remembered that communities enter the planning process believing that the Reporter is an impartial arbiter who has the power to amend the local plan in light of the evidence presented during the inquiry. Therefore, the local authority should not be allowed to ignore the inquiry report unless it is able to present strong and compelling evidence justifying its stance. If Reporter's recommendations continue to be ignored, on the apparent whims of local authorities, then community involvement and support for development planning will further ebb away.

Q14: Do you agree with the proposed content for city region plans?

We believe the proposed content for City Region Plans is too restricted. We strongly recommend that the Executive clarify the definition of 'environment', we believe this should include derelict and contaminated land, waste and energy, biodiversity and cultural heritage. The absence of these issues will significantly reduce the value of the City Region Plans.

We are also concerned that the emphasis on a narrative approach will render the CRPs devoid of actual policies - is this the intention? If so, we are very concerned that the CRPs will cease to serve any real function at all. Firm well-defined policies are a prerequisite for effective forward planning, providing certainty for both developers and communities.

Q15a: Should there be equal representation of local authorities on the joint committees?

No comment.

Q15b: How should costs be divided among local authorities on the joint committees?

No comment.

Q16: Do you consider that the proposed approval process will be quick and transparent?

Yes, we welcome the proposals.

Q17: Are the proposed transitional arrangements appropriate?

The transitional arrangements appear adequate.

The LINK Planning Group includes: Scottish Wildlife Trust, Friends of the Earth Scotland, RSPB Scotland, Woodland Trust, Ruralscotland, the National Trust for Scotland, The Cairngorms Campaign and the Ramblers Association Scotland

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Dear Richard

Response by Scottish Environment LINK to the 'Rights of Appeal in Planning'

July 2004

Scottish Environment LINK is the forum for Scotland's voluntary environment organisations comprised of 36 member bodies representing a broad spectrum of environmental interests with the common goal of contributing to a more environmentally sustainable society. The organisations listed below have expressed support for this response.

We particularly welcome this consultation by the Scottish Executive as a significant step towards delivering an accessible, equitable and effective planning system in Scotland. Our detailed answers to the questions below clearly conclude that an extended right of appeal must form a key component of the Executive's wider programme of modernisation for the planning system.

LINK was pleased to be invited to sit on the Steering Group, which was asked to contribute to the production of the consultation document but we feel it would be inappropriate not to mention that the document as finally produced is not what we had hoped for. We recognise that this is a complex topic but feel that the consultation document heightens rather than clarifies the complexity. Nevertheless, we welcome the opportunity to comment and trust that the Executive will be willing to take decisive action to deliver a widened right of appeal in Scotland.

We are happy for this consultation response to be made public.

Q 1: Paragraphs 3.3.1 to 3.4.9 have identified arguments made to us previously both for and against a third party right of appeal. Do you think they accurately reflect the arguments? Are there other arguments not covered here which you wish to raise? & Q 2: Do paragraphs 3.5 to 3.14 accurately reflect what supporters of a third party right of appeal are seeking in a new appeal process?

In addition to those arguments identified in the consultation document, we would make the following points:

• The introduction of a third party right of appeal for situations where there is a departure from the development plan would provide a unique incentive to ensure that development plans are kept up-to-date. We share the Executive's desire to operate a plan-led planning system where decision makers, developers and third parties can place confidence in the development plan. We also appreciate that there are a number of proposals currently out for consultation that aim to improve the system. Unfortunately, the many demands on local government make it inevitable that resources will not be put into the development plan process unless there is a tangible dis-benefit associated with failing to do so.
• We believe the document underplays the potential legal obligations arising from the Aarhus Convention. We believe the implementation of these obligations will require the creation of a system that provides third parties, and particularly NGOs, access to a review procedure where they can challenge the substantive as well as the procedural legality of decisions. The implementation of a widened right of appeal would avoid the necessity of re-visiting this issue in 2005 by which time the UK must convert these obligations into domestic legislation.

Q 3: If the right of appeal were to be extended to third parties, do you think it should be restricted to all or some of the four categories identified in the Partnership Agreement? Please give reasons to support your views.

We believe that the categories identified in the Partnership Agreement offer a sound basis for a limited right of appeal.

Cases where the local authority has an interest:
Where local authorities are required to be both applicant and decision-maker the need for transparency of process is paramount. However, the nature of local government operations frequently means that the financial, corporate or business links between local authorities and a particular development proposal may not be widely known. Inevitably, it can then appear that planning application decisions are influenced by this relationship, even if this is not the case.

Cases where the application is contrary to the development plan:
In a plan-led system where all parties are actively encouraged to engage in the forward planning process any decisions which depart from the agreed plan must be subject to an increased level of scrutiny. Failure to make decisions in accordance with development plans serves to alienate the public and devalue the forward planning process. In addition, the introduction of a widened right of appeal will serve to encourage local authorities to produce up-to-date plans in order to avoid the necessity of departing from the development plan

Cases when planning officers have recommended rejection:
LINK organisations work across Scotland and are acutely aware of the different approaches taken by different local authorities to planning matters. While some level of local variation is a welcome reflection of local democracy, an inconsistent application of national policy does not reflect well on the planning process. Planning officers are employed as professionals, operating under a professional code of conduct, which requires them to provide impartial advice on planning matters. Should councillors then decide to depart from this advice this decision should be made subject to an additional level of scrutiny in order to ensure the departure was for sound planning reasons.

Cases where an Environmental Impact Assessment is needed:
Despite the relatively small number of proposals accompanied by an EIA, we believe this to be highly important category for inclusion in any widened right of appeal. The requirement for an EIA serves as an indication that the development may have significant environmental impacts (either positive or negative). As such, it is an invaluable barometer of those proposals that are likely to give rise to significant environmental change, frequently extending beyond the immediate vicinity of the development.

Q 4: Which planning decisions do you think should be capable of appeal to the Scottish Ministers?

We agree with those categories identified in paragraph 4.10 and also recommend that those categories identified in 4.11 should also be subject to third party right of appeal.

Electricity Act applications: By excluding deemed planning permission under the Electricity Act 1989 the Executive will create a curious imbalance between larger schemes determined by Scottish Ministers and marginally smaller schemes determined by local authorities - we see no logical reason why this should be the case.

Enforcement: The failure of local authorities to undertake enforcement action is a criticism frequently voiced by LINK members and the introduction of third party rights of appeal may help to encourage local authorities to allocate appropriate resources to this 'Cinderella' of the planning system.

Advertisements: We can see no logical reason why this aspect of the planning system should be excluded from an extended right of appeal and recommend that it be included.

Q 5: If the right of appeal were to be extended, which third parties should be able to appeal and in what circumstances? Please give reasons for your answer and also, where relevant, explain why you think any of the third parties identified above should not qualify for a right of appeal.

We recognise that a universal third party right of appeal has the potential to generate a very large number of appeals. In order to facilitate a workable system we recommend that the right of appeal be limited to those who have objected or submitted comments to the original planning application. As the consultation paper indicates these parties have already indicated an interest in the proposal, however we would not restrict it simply to those who have lodged an objection. Many parties may write to seek additional information or provide useful comments and as such should be considered interested parties with a right to appeal.

We do not support any of the alternative suggestions and strongly recommend that the restriction of right of appeal to 'representatives' raises very serious concerns about who can legitimately be said to represent a community.

Q 6: Do you support, in principle, the introduction of a wider right of appeal in the planning system? Please give reasons to support your views.

Yes, we support a wider right of appeal in the planning system or the removal of the right of appeal for developers.

We believe that a wider right of appeal would:

• Create a more reliable and predictable plan led system
• Address the inequity which currently exists between developers and third parties in the planning system;
• Increase the transparency of decision making and thereby improve the quality and reliability of those decisions;
• Provide a clear mechanism to deliver and meet the Executive's commitments to social inclusion and environmental justice; and
• Result in a more effective and efficient planning system for all.

Q 7: How do you feel the planning service at both planning authorities and the Scottish Executive would be placed to manage the likely increase in workload?

We recognise that any significant change to the planning system has the potential to impact on workloads of all those engaged in the planning process. However, accurately predicting what that impact will be should be considered in the context of the following factors:

• As this consultation document clearly states this is part of a package of measures to modernise the planning system and as such, it is difficult to evaluate what the impact of a widened right of appeal would be in isolation. Other measures to involve the public and speed up the process will create new and different demands on all planners.
• A £350 million Planning Delivery Grant has supported the role out of planning reforms in England and we assume that a similar level of support will be available in Scotland.
• The ODPM has provided substantial funding for Planning Aid in England and again we assume the Scottish Executive is willing to do the same in Scotland.
• The comparisons with Ireland while interesting are obviously not able to give a true reflection of the potential level of appeals we might anticipate given that in Scotland third parties have a far greater opportunity to be involved in the preparation of the development plan, thereby reducing the potential for conflict later on in the process.

In conclusion we would emphasise that the introduction of a widened right of appeal together with the other proposals for reform being explored by the Executive will result in a better planning system which people trust to deliver quality outcomes. This may require slightly more resources allocated to different priorities. The status quo is quite clearly failing to deliver these outcomes and we believe a widened right of appeal is one important step towards addressing this failing.

Q 8: Do you think there would be any implications for the attractiveness of planning as a career if there were to be a significant increase in the appeal caseload? Please give reasons for your answer.

No. Local authority planners currently work with applications that could give rise to developer appeals, this proposal will simply extend the scope of that activity. In Ireland where third party rights of appeal are currently in use, we understand planning courses to be oversubscribed and heavily in demand. While we are aware that the recruitment of planning students and graduates can be difficult for some employers and universities we believe this may be more a reflection of the salary and status the profession attracts, particularly in local government. With increased resources and an improved professional status, (arising from a more robust planning system) we believe a widened right of appeal may result in planning becoming a more attractive rather than less attractive career choice.

Q 9: Should a fee be payable to object to a planning application and/or to lodge an appeal against a planning decision? If so, what do you think would be an appropriate level of fee?

We strongly reject any recommendation that there should be a fee to object to a proposal - this would seriously curtail access to environmental justice. However, we believe that a modest fee for those seeking to lodge an appeal would help to reduce the potential for frivolous or vexatious appeals.

Q 10: Should the Scottish Ministers retain their role in deciding particular planning appeals, or should SEIRU decide all appeals?

We believe there would be considerable advantage in SEIRU deciding all appeals. Currently Ministers frequently find themselves in the difficult position of both promoting and determining developments. The modification of SEIRU to become an 'arms length' body would remove potential criticisms of political interference in the decision-making process. We understand that there may be exceptional circumstances where issues should be determined by Ministers, these types of situation should be clearly identified using publicly available criteria.

The appeals could, alternatively, be heard by an Civil Environmental court, set up to consider this and other environmental appeals, in an informal manner akin to that adopted by the Land Court. The establishment of such a body should effectively manage any increase in workload.

Q 11: Would the introduction of mandatory public hearings in defined circumstances increase public confidence in planning authorities' decisions?

The experience of LINK bodies suggests that the current system of public hearings does very little to improve public confidence in the planning system. The different approaches adopted by local authorities creates confusion and some clarification or guidelines for the process may be appropriate, however, the benefits of undertaking public hearings are minimal. In general, hearings provide a very limited opportunity for objectors and developers to convey their key points to decision makers. In many local authority areas, developers and objectors are allocated one short slot to make their points - regardless of how many objectors there might be.

The introduction of mandatory public hearings would not serve to create a more transparent nor a more equitable planning system. Consequently, it is unlikely to serve as a mechanism to improve public confidence in the planning system.

Q 12: Would extending the circumstances in which the Scottish Ministers are notified, to include all development plan departures, sufficiently address concerns about decisions being made by planning authorities against the terms of development plans?

No. The call-in process is not currently sufficiently transparent, nor does it afford any role for third parties. Simply extending the notification process could result in a larger workload for the Scottish Executive without delivering the range of benefits offered by a widened right of appeal.

Q 13: Would it be appropriate to introduce a screening process for planning appeals? Please let us have your comments on relevant screening criteria.

We strongly recommend the introduction of a widened right of appeal, however, as we have noted above we recognise that focusing that right to particular circumstances will offer the maximum benefit with minimum cost and disruption. To this end, some form of screening will be necessary. The criteria set down in the first and fourth bullet point appear to be useful and reasonable.

Bullet point 2, where the application is contrary to the local plan: we would be concerned that an out of date plan could be used as a justification for rejecting an appeal, would it be more effective to indicate that third party rights of appeal will be allowed whenever a local plan is out of date?

Bullet point 3, when planning officers have recommended rejection: we understand this criterion to be an attempt to make the criteria appropriate for applicants and objectors. If this is the case then we would support the suggestion in the consultation that it would be applied when councillors have reached a decision contrary to officers' recommendations. In many cases, third parties can have concerns addressed by appropriate conditions that are then removed or modified by councillors contrary to officers' recommendations.

Q 14: Are there circumstances in which any right to appeal against planning decisions should be withdrawn? Please give details.

No, we do not believe that the system would benefit from withdrawing or restricting appeal rights in particular situations. If the Executive is minded to consider this as an option, it must be applied to both applicants and third parties. The value of an appeal system is to allow public scrutiny of difficult decisions, avoiding such scrutiny does nothing to improve public confidence in the planning system.

Q 15 (a) Please give us your views on each of the models outlined in section six.

We do not believe that Models 2 or 3 offer any level of solution to the issues identified both in the consultation document and in our response.

From the consultation document it would appear that the key differences between Models 1 and 4 are that in Model 1 the screening process is less explicitly considered but would, we assume, have to be undertaken by SEIRU with whom the appeals will be lodged. Conversely, Model 4 creates a role for the SEDD in screening appeals and provides greater detail on the criteria that would be applied to both applicants and third parties. We would support an amalgamated version of these two models in which appeals were lodged with SEIRU who then applied the criteria detailed in Model 4.

(b) Can you think of any alternative package of changes to the planning system to ensure a system which is both fair and effective.

As we have indicated above, in the interests of equity, if a widened right of appeal is not introduced the Executive should remove the right of appeal from developers.

(c) How would each of these models (and any other package you suggest) impact on the resources and objectives of you or your organisation?

Scottish Environment LINK has 36 member bodies with a joint membership of over 500,000 individuals. Many of these member bodies play an active part in the current planning system and we anticipate that the introduction of a widened right of appeal would offer these bodies an additional mechanism to address those instances where we believe a poor decision has been made.

Yours sincerely

Anne McCall
LINK Planning Task Force Convenor

The following LINK member organisations support this statement:

Association for the Protection of Rural Scotland (ruralScotland)
Badenoch and Strathspey Conservation Group
Biological Recording in Scotland
Butterfly Conservation Scotland
Cairngorms Campaign
Council for Scottish Archaeology
Hebridean Whale and Dolphin Trust
John Muir Trust
Mountaineering Council of Scotland
National Trust for Scotland
North East Mountain Trust
Friends of the Earth Scotland
Ramblers Association Scotland
RSPB Scotland
Scottish Countryside Activities Council
Scottish Council for National Parks
Scottish Countryside Rangers Association
Scottish Wildlife Trust
Scottish Wild Land Group
SUSTRANS
Woodland Trust Scotland
WWF Scotland
Wildfowl and Wetland Trust

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Scottish Environment LINK Briefing

Widening Rights of Appeal in Planning

Introduction
Scottish Environment LINK is the umbrella body for Scotland's voluntary environment organisations. There are 36 bodies in the network representing a broad spectrum of interests working towards a more environmentally sustainable society. This is a briefing from the planning working group, the LINK Planning Task Force.

The Scottish Executive are consulting on whether they should widen the rights of appeal in the planning process and allow third parties, e.g. local people, community organisations, neighbours and NGOs to appeal certain planning decisions.

We believe introducing a Third Party Right of Appeal would be a significant first step towards delivering an accessible, equitable and effective planning system in Scotland. But there is a huge lobby against it. If it is even to reach Parliament for consideration, those who want more equality in the system must respond before July 30th 2004.

An extended right of appeal must be a key part of the wider programme of modernisation of the planning system.

Widening the Right of Appeal
The introduction of a widened right of appeal, together with reforms, will result in a better planning system which people can trust to deliver quality outcomes.

A wider right of appeal would:

• Ensure a more reliable and predictable plan led system; Remove the inequality which exists between developers and third parties in the planning system;
• Increase the transparency of decision making, improving the quality and reliability of those decisions;
• Help deliver and meet the Executive's commitments to social inclusion and environmental justice; and
• Result in a more effective and efficient planning system for all.

When should there be third party rights of appeal?
We believe that there should be a Third Party Right of Appeal in the following cases:

1. Cases where the local authority has an interest.

Where local authorities are required to be both applicant and decision-maker the need for transparency of process is paramount. A Third Party Right of Appeal would allow access to independent arbitration, reducing the risks when there may be a conflict of interest.

2. Cases where the application is contrary to the development plan

In a plan-led system where all are actively encouraged to engage in the forward planning process, any decisions which depart from the agreed plan must be subject to an increased level of scrutiny.

Failure to make decisions in accordance with development plans alienates people and devalues the forward planning process. The introduction of a widened right of appeal would serve to encourage local authorities to produce up-to-date plans in order to avoid departing from the development plan.

3. Cases which go against planning officers recommendation.
LINK organisations work across Scotland and are acutely aware of the different approaches taken by different local authorities to planning matters. While some level of local variation is a welcome reflection of local democracy, an inconsistent application of national policy does not reflect well on the planning process.

Planning officers are employed as professionals, operating under a professional code of conduct, which requires them to provide impartial advice on planning matters. Should councillors then decide to depart from this advice this decision should be made subject to an additional level of scrutiny to ensure the departure was for sound planning reasons.

4. Cases where an Environmental Impact Assessment is needed
Despite the relatively small number of proposals accompanied by an EIA, this is a highly important category for inclusion in any widened right of appeal. The requirement for an EIA serves as an indication that the development may have significant environmental impacts (either positive or negative). As such, it highlights those proposals that are likely to give rise to significant environmental change that often extends beyond the immediate vicinity of the development.

Scope of the New Rights
A universal third party right of appeal has the potential to generate a large number of appeals. In order to achieve a workable system the right of appeal should be limited to those who have objected or submitted comments to the original planning application. These parties have already indicated an interest in the proposal. However it should not be restricted simply to those who have lodged an objection as many parties may write to seek additional information or provide useful comments, and as such should be considered interested parties with a right to appeal.

Conclusion
Every year, individuals, communities and organisations across Scotland alert the Parliament to the lack of equality that exists within the Scottish planning system, yet there is little the Parliament can do about it.

For the first time, the Scottish Executive is consulting people on whether they should introduce rights for third parties to appeal planning decisions. This is the best opportunity to have your say and demand the right to be listened to in the future!

Now, during this current review of planning, it is time to seek to ensure equality and fairness is built into the system.

The Scottish Executive Consultation can be accessed at http://www.scotland.gov.uk/consultations/planning/roap-00.asp, by writing to Rights of appeal in planning,Scottish Executive Development Department, Area 2-H (Bridge), Victoria Quay, EDINBURGH, EH6 6QQ or calling 0131 244 7060.

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