Removal of Legal Impediments to E-Planning consultation
Overview of consultation responses
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1. The consultation paper Removal of Legal Impediments to E-Planning was issued on 21 August 2003. It included a draft Order, made under the Electronic Communications Act 2000, intended to remove barriers in existing legislation to the use of electronic communications in certain areas of the planning system.
2. Approximately 600 copies of the consultation paper were distributed to all local authorities in Scotland, non departmental public bodies, professional bodies, industry and business interests, voluntary and community groups and members of the public. The document was also available on the planning page of the Scottish Executive website. The consultation period ended on 31 October 2003.
Overview of consultation
3. The Executive received 33 responses to the consultation paper. The list of respondents is set out in the Annex. The bulk of responses were from Local Authorities (18 of 33) with the remainder a mix of 2 to 3 each of professional organisations, non departmental public bodies, individuals, community councils and business interests. The number of responses can be categorised as follows:
Business and industry
Non departmental public bodies
4. The Executive has analysed all the responses received and, where appropriate, made amendments to the draft Order in the light of the comments made. Copies of the responses are available for public inspection the Scottish Executive Library, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD (contact Mr Alan Gold, telephone 0131 244 4552 for an appointment).
5. This Overview summarises the responses to the consultation paper. It by no means represents a comprehensive report of comments made on the paper and the draft Order but is intended to cover the main points raised.
6. A partial Regulatory Impact Assessment was prepared during the course of drawing up the Order. This indicated that while there may be resource implications for local authorities, the impact on business, charities and voluntary organisations will be negligible. Therefore, the Executive has decided not to carry out a full regulatory impact assessment.
GENERAL COMMENTS ON THE CONSULTATION PAPER
7. The proposals to remove legal impediments were generally welcomed by all respondents. Some parties felt they could go further and some had reservations based around the following: the running of dual systems i.e. paper and electronic; access for certain groups, particularly that that some groups might be unwilling to use electronic systems; and costs and resources.
8. Local authorities felt it would support their current work to improve the delivery of their planning services. One response suggested the proposals were just a first step in delivering a full electronic planning system, another that they would enable planning to move into the 21 st century. The potential for transparency and efficiency was seen by one as a good reason for overcoming the possible constraints of time and resources.
9. The benefits to the customer were stressed by one local authority, with the view of business and development interests being that it showed a movement towards greater efficiency, particularly by focusing on the most important aspects of planning including applications and appeals. Statutory consultees were supportive of the move, with the proviso that the implications for them should be considered.
Executive response: We are encouraged by the level of support for the general principles, although we recognise that commentators raised a range of issues on the detail of the draft. The comments have informed the final version of the Order.
RESPONSES TO SPECIFIC QUESTIONS
10. The responses are now dealt with in terms of the specific questions posed in the consultation paper. Where responses were not structured around the questions we have groups the points under these headings to aid understanding.
Q1: What are the implications of allowing electronic methods of communication for each of the particular processes set out in the draft Order and outlined above?
11. The majority of the 29 responses to this question tended to cover the general impact of e-planning rather than look in-depth at particular processes. The implications were seen as covering a number of areas, with the major concern over resources and the potential impact, at least in the short term, on efficiency; this came from most submissions, not just those from local authorities.
12. The perceived resource implications included concerns over IT hardware and software capabilities and compatibilities; the introduction of new systems and procedures for storage as well as processing; staff training, and additional staff if e-access encourages greater involvement or mass email objections; and printing costs for storage of paper copies and where consultees and the public need paper copies, especially where large and complex proposals needed the printing of plans and drawings.
13. Resources were seen to be needed to meet customer expectations, make service improvements, and ensure consistency of performance across local authorities. One response noted that while in the longer run there were potential gains to be made in some parts of the system, these might not be significant as there would be no real gains in the decision making process itself. There remained some feeling that the result might be a mixture of burden and gain.
14. Some suggestions were made that the savings to applicants of submitting one electronic rather than multiple paper copies would necessarily lead to a review of the fees charged for applications, along with the view that the extra work in the change-over process would need an increase in fees to pay for the costs involved. Several comments were also made on the need to develop and introduce electronic methods of payment for any fees charged.
Executive response: Research into resources for planning is taking place during 2004/5. This will help inform future levels for planning application fees. It will also consider the implications of key elements of the modernisation of planning, including ePlanning. We support the introduction of electronic methods of payment for planning applications fees which would help to provide an end to end electronic planning service. In addition, the Executive is currently examining the development of an online fees calculator linked to the latest level of planning fees, which would help applicants and local authorities to calculate the correct level of fee before submitting their application.
15. Concerns were also expressed about the operation of a twin-track system, possibly with two streams of work requiring links to be made between electronic and paper streams. This twin-track system was seen to relate to access preference and IT availability for the public as well as a mix of paper and electronic documents being submitted. The point was also made that while written applications would likely be used less frequently, there may be a greater preference to submit drawings and plans on paper. There was some concern that a twin-track system should not become a two-tier system, with the ease of electronic communication sidelining paper applications and proposals. Consistency between paper and electronic documents would be needed.
Executive response: The electronic elements of the system will supplement rather than replace the paper-based system. The existing paper-based system will continue to operate for as long as those engaging in the system wish to use it.
16. Some felt that advertising planning applications on council websites should supplant that in newspapers, which was seen as not cost-effective. This extended to suggestions that advertising certain applications in the Edinburgh Gazette was no longer necessary on the basis that much wider access would be available on planning authority websites.
|Executive response: Advertising on the Internet is intended to supplement advertising in newspapers to ensure wide coverage of the issues and prevent those without access to the Internet from being disadvantaged. The White Paper Your Place Your Plan notes that the Edinburgh Gazette is now freely available on the Internet. We therefore intend to retain the requirement to advertise in the Edinburgh Gazette, since it has a useful role as a national, central resource for the publication of planning information.|
17. There was some concern with issues such as potential loss of data, confirmations of receipt of submissions, and responsibility if electronic data is lost between the sender and the receiver. The need to specify systems to allow proper display of submissions, as well as ensuring software compatibility, was seen as a technical issue as well as a resource issue.
Executive response: We acknowledge the concerns regarding loss of information, although this can similarly be an issue with paper data. The use of electronic validation and acknowledgement systems should ensure that information has been received and/or registered. The 'look and feel' of Internet software is continuing to develop to improve the experience for the user. Through the ePlanning Group and the ePAN we will support further developments in the form and content of central and local government planning homepages.
18. The anonymity, use of multiple addresses and frequent change of email addresses was seen as leading to a requirement for 'letter standard' information, (possibly through submission of a form on the council website), in order to give a means of verification, and the ability to weigh the validity of any proforma or mass email representations. A link to a proforma might be used to allow both positive and negative comments, with one suggestion that such a means be available via an electronic link from any planning application for any pro or anti comment to be submitted. Guidance on the nature and relevance of such comments might reduce the risk, perceived by another response, of a flood of non-material objections. The confidentiality of any electronic comments was raised by one consultee who felt that objections to particular applications should not be in the public domain. Another noted that the use of protective 'firewalls' in systems could mean that some objections would be rejected if they contained foul or abusive language, even if they were making a relevant point.
Executive response: The Executive would support the use of standard forms for objections, accessed through local authority planning homepages and will examine ways to take this forward. The confidentiality of representations is covered by the Data Protection Act 1998. Unless marked confidential, comments could be made public over the Internet. Councils have developed different practices on how and when this information might be made available. Greater consistency will be sought through advice in the ePAN. Automatic acknowledgement systems would ensure that representations are received by the local authority. The final Order is intended to require the inclusion of a postal address in electronic communications.
19. The security of systems and the need to safeguard the copyright of architectural and design drawings and maps are raised as connected issues. One suggestion made was that drawings and plans could be submitted with some form of tag or 'watermark', or as pdf (portable document format) files. Doubts were expressed over security arrangements, not just in regard to copyright, but also in terms of the access to potentially sensitive building plans by criminal elements.
Executive response: Copyright of electronic drawings and plans is protected under the Data Protection Act 1998, as with paper versions. Material that appears on the Internet may be freely available, but it is not necessarily free to copy. The need for clear copyright usage statements, watermarks and contact details for the copyright owner will be required to safeguard rights. The Order will not cut across the provisions of the Freedom of Information Act 2002, the implications of which are intended to be covered in the ePAN.
Q2: Are the exemptions appropriate?
20. Most of the 20 comments on the exemptions felt they were appropriate and logical in the light of legal requirements and the need for certainty of receipt. Some thought this should remain under review to add or remove exemptions where need or opportunity arose.
21. Some of the other respondents felt the exemptions were greater than needed. Several expressed surprise that advertisement consents, prior approval notices and development plans were excluded from the enabling draft, while one suggestion was made that it should enable all planning processes but allow for duplication through paper means where a legal or citizen need was relevant. Allowing all was felt to avoid any confusion as to the status or validity of any individual part of the planning process. It was also suggested that if responsibility for neighbour notification were to be transferred to planning authorities then the use of the council property database might allow some electronic notification.
22. Others thought the proposed exemptions should go further. One request was made that decision notices be exempted, or that electronic text be allowed with a need to issue hard copy stamped, approved plans. Another request made was for a reconsideration of allowing appeals through e-communication, and one that certificates for neighbour notification and land ownership be exempt on the basis that if lacking a physical signature they could potentially invalidate an application. Similarly, clarification was sought as to whether the reference to exemption of notification of interested parties referred to certification of the process as well as the process itself. It was suggested that where productions for appeals etc were available on-line they need not be part of the submission.
Executive response: We propose that it is not appropriate for the process of neighbour and land owner notification to be carried out electronically as email addresses for these parties would not always exist or be known. However, the certificates would not be exempt, where they form part of an electronic planning application which itself will include information to authenticate the applicant and agent. The issue of signatures is covered in the response to paragraph 26 below. Decision notices are included in the Order to allow for electronic notification where the applicant has submitted an electronic application. Where the process is being carried out by paper method, the decision notice will also be transmitted by paper.
Q3: Should legal barriers be removed in any additional processes at this time?
23. Of the 12 responses to this question, the majority felt that more or all such barriers should be removed, to facilitate additional and future developments in e-planning, though a number of these were cautious and felt the results of the process should be seen first before any further change, to judge its effectiveness and robustness.
24. The comments which looked for additional changes reflected some of those on the exemptions from the draft, covering advertising consents, prior approvals and development plans. One respondent observed that as advertising consents and certificates of lawful use and development were among the five most commonly used procedures dealt with by the planning department, then these should be included in the Order. Other suggestions for inclusion were hazardous substances, minerals, local authority applications, notification of intention to develop cases (NIDs) and any local authority/Scottish Executive intercommunication.
|Executive response: On balance we consider that the current exemptions are appropriate. They are intended to go as far as possible with the caveat that key communication stages in the process, such as notification of neighbours etc. and enforcement are carried out correctly. Subject to similar caveats, the final Order is shall include advertisement consents, prior approvals, development plans, the Environmental Impact Assessment regime, certificates of lawful use and development, notified and NID procedures and mineral consents. If necessary, the possibility of a Planning Bill in the near future could provide a further opportunity to e-enable other elements of the planning system.|
Q4: Are any aspects of the suggested amendments likely to cause interpretation difficulties and how could these be resolved?
25. The 14 responses to this question raised concerns over several areas. The definition of the working or business day, the time an electronic communication might be deemed to be received, and what constitutes a local, public or bank holiday, were all felt to need greater precision. One submission suggested that the matter of time of receipt be reworded to place the onus on the respondent to ensure receipt before a deadline, with several suggestions that this be midnight on the date rather than within 'business hours'. Given that electronic delivery would be subject to sender/internet service provider/receiver time and date stamps, greater definition of the point in the process that an email is deemed to be received was felt to be needed. The development of some form of automatic electronic acknowledgement system was one suggestion for overcoming this.
Executive response: The use of electronic validation and acknowledgement systems should ensure that information has been received and/or registered. The definition of 'working hours' will be amended to reflect concerns raised.
26. There was some lack of certainty over what constitutes an electronic signature, and on which documents it might be needed. Clarification as to which documents need a signature and whether this means a scanned copy signature on a document or an electronic digital signature or certificate embedded in the transmission was seen as necessary. A distinction between electronic address and postal address was also felt by one response to be essential.
Executive response: Where current planning application forms include a space for a signature, it is intended that electronic signatures will be valid. However, we consider that a typed name would be sufficient for authentication. Advice will be provided in the ePAN. We are currently working to develop standard planning application forms for use online. We are examining what form of authentication is appropriate for these forms. In terms of electronic representations, we support the use of standard pro-formas available through the local authority website. These forms would require the input of a name and postal address for authentication purposes. Where necessary, the final Order will distinguish between electronic address and postal address.
27. Some thought the definitions of 'where appropriate technology is in place' (paragraph 18 of the consultation paper), the compatibility of electronic formats and the legibility and durability of the communication needed clearer expression to avoid legal dispute. One suggestion was that the sender be defined as responsible for ensuring such compatibility exists. It was suggested that further guidance was required on what is meant by the phrase 'logically associated with' in Paragraph 8 of the Order. One further comment was that the order is difficult to read and a plain English guide would be appropriate.
Executive response: Legislation is required to follow certain rules in terms of structure and style. However, the forthcoming ePAN will provide practical advice on implementing the final Order.
Q5: Are the proposed powers in the draft Order adequate to enable authorities, applicants and other interested parties to operate by electronic means where they wish to do so?
28. In the 11 responses here, this was generally seen to be the case, though one suggestion was that the suitability of the powers would depend on local authorities adapting to the changes and possible volume of work. Another felt it was difficult to predict the outcomes. One view expressed was that there was nothing in the Order to inhibit the development of e-planning. One response suggested that a system where only some parts of the planning system, and none of the building control system, could be accessed would likely result in confusion. Therefore a request was made to similarly review the Building Warrant legislation.
Executive response: The purpose of the Order is to enable rather than require the use of electronic communications in planning. We expect authorities to develop their planning services through the use of new technology and in so doing to be able to assess the impact on existing practices and resources. The implications will be monitored through ongoing meetings of the ePlanning Group. Work is underway to e-enable the legislation relating to building warrants.
29. One response suggested that more might need to be done to fulfil data protection responsibilities. There was also a view that the Order was not explicit enough on the rights of individuals to continue to use non-electronic planning systems.
Executive response: We will take every opportunity to ensure that users of the system are aware of the continuing operation of the paper-based system. The requirements of the Data Protection Act 1998 and the Freedom of Information Act 2002 will be taken into account in finalising the Order and associated advice.
ANNEX: List of respondents
Aberdeen City Council
City of Edinburgh Council
Craiglockart Community Council
Currie Community Council
Dundee City Council
East Ayrshire Council
East Lothian Council
Ferryhill Heritage Society
Federation of Small Businesses
Homes for Scotland
Law Society of Scotland
North Lanarkshire Council
Perth and Kinross Council
Royal Incorporation of Architects in Scotland
South Ayrshire Council
Scottish Coal Company
Scottish Environment Protection Agency
South Lanarkshire Council
Scottish Natural Heritage
Western Isles Council
West Lothian Council