Rights of Appeal in Planning
VIEWS PREVIOUSLY EXPRESSED TO THE SCOTTISH EXECUTIVE FOR AND AGAINST A THIRD PARTY RIGHT OF APPEAL
3.1 The debate over whether or not to widen the right of appeal in the planning system to third parties is not a new one, although this is the first time we have carried out a public consultation on the issue in Scotland. In the past, people and organisations have made their views on the issue known to the Executive, and this section of the paper highlights some of those arguments both for and against. The following paragraphs are not intended to be an exhaustive or detailed list of all the arguments, but instead to give a representative flavour of contrasting views. No comments made in this section of the paper should be taken to imply the opinion of the Scottish Executive.
3.2 Although the debate about third party right of appeal is often portrayed as a conflict between large scale developers and communities or individuals, most planning applications relate to fairly modest development proposals. Indeed over 40% of planning applications are received from householders, proposing minor development in or around their homes.
Views of those who support a third party right of appeal
3.3.1 Such a right would give those who consider themselves to be affected by development the same appeal right as the applicant. This is often described by supporters as providing a "level playing field".
3.3.2 It would make planning authorities accountable for all decisions on planning applications, not just refusals, leading to more careful scrutiny of development proposals. It is sometimes argued that councils are prepared to grant planning permission for a development rather than refuse consent and face a (possibly) lengthy and expensive appeal by the applicants. If there is a possibility that a proposal could be subject to appeal irrespective of the decision that they reach, it has been argued that councils would consider applications more carefully to ensure that they reach what they believe to be the right, and defensible, decision.
3.3.3 It would encourage applicants to prepare their development proposals more carefully and engage with communities at an early stage. Taking the views of local people on board when drawing up plans could limit the risk of a permission being challenged by third parties.
3.3.4 Calls for a third party right of appeal often arise from concern about planning permission being granted for developments which are out of accord with the development plan, or about the quality of decisions made by planning authorities.
3.3.5 While interest groups (such as environmental organisations or local amenity groups) might support third party right of appeal as a point of principle, most demands from the public follow a particular decision with which they disagree. This could range in scale from a major development with a wide ranging impact to a proposal with an impact of a very local nature, which can nevertheless be of significant concern to local people.
3.3.6 Some people who support a third party right of appeal are not opposed to the principle of particular developments, but rather are opposed to the cumulative effect of development decisions, which they believe are adversely affecting the amenity of their area and deterring investment because the area has become unattractive. Others apply the principles of environmental justice, expressing concern that poor areas get more than their fair share of unwanted developments and lack a formal voice to stop this happening.
3.3.7 Some people consider that a third party right of appeal is required to secure compliance with the European Convention on Human Rights and the Aarhus Convention 1. While some others believe that these Conventions do not specifically require a third party right of appeal, they do believe that such a right would be within the spirit of ECHR and Aarhus.
( 1 UN Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.)
Views of those who oppose a third party right of appeal
3.4.1 Introducing a further procedure would add delay and uncertainty to a system which is already criticised as slow and unresponsive. Significant concerns have been expressed in the past that it takes too long to obtain planning permission.
3.4.2 A third party right of appeal would add to business concerns about the planning system at a time when the Partnership Agreement wants planning to support quicker investment decisions.
3.4.3 Other administrations in the UK, with responsibility for the land use planning system in England and Wales, have made clear their opposition to introducing a third party right of appeal. It has been suggested that such a right in Scotland would deter inward investment by making Scotland a harder place to do business than other parts of the UK, with the risk that existing jobs could migrate.
3.4.4 'Development' is often regarded in a negative light, even though it serves the public interest by providing jobs and supporting the economy, as well as providing homes and facilities and infrastructure to support a wide range of policy objectives, for example flood prevention, waste recycling. Some people have expressed concern that a third party right of appeal would be abused through unjustified opposition to development proposals intended to serve the wider public interest.
3.4.5 Many developments which could be subject to a third party right of appeal are in support of public services, eg health, education, infrastructure. Therefore it is not just the business sector which would be subjected to delays, but also some important public sector developments.
3.4.6 Objectors might not be representative of the wider community. There will be situations where the majority of people in a community support a development, perhaps due to the generation of jobs or the provision of much-needed services or facilities, but a single objector could cause significant delay by lodging an appeal.
3.4.7 Third party right of appeal would undermine local democracy. Councillors are elected to make decisions on behalf of the community and the value of that role would be minimised if all of their decisions could be challenged.
3.4.8 A third party right of appeal would not produce the "level playing field" advocated by supporters, as it would allow communities to challenge a decision already made on their behalf by the councillors they elected. To obtain planning permission, applicants already need to convince the planning authority, which represents the community, that the development is in the public interest and that consent should thus be granted.
3.4.9 The taxpayer would bear the cost of funding additional case work required by these wider rights. Applicants would incur additional costs in defending their proposals at appeal and might also suffer for loss of business during the process. There would also be unavoidable costs to public sector bodies for their respective parts in proceedings. Third parties would also have to bear the costs falling to them.
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?
What are people seeking in a third party right of appeal?
3.5 In considering whether to add a new process to our planning system, we must first establish the objectives which it would be intended to fulfil, to ensure that any change meets the aspirations of the users of the system. The comments summarised above suggest that those who seek to widen the right of appeal do so for 3 broad reasons:
- concern about aspects of the planning system; and
- a desire to overturn decisions.
3.6 Proponents of third party right of appeal argue that the availability of a right of appeal to an applicant and the absence of a parallel right of appeal for third parties is unbalanced and unfair. This point could be addressed either by introducing a third party right of appeal or by removing the applicant's right to appeal.
Concern about aspects of the planning system
3.7 Underlying the call for parallel appeal rights, there are clearly concerns about the outcomes of the existing process in some cases. Key issues in people's confidence in the planning system, whether they support or oppose third party right of appeal, are:
- the robustness and relevance of the development plan; and
- the quality and transparency of decision-making by planning authorities.
A third party right of appeal is considered by some to be a solution to shortcomings in these areas by adding a further opportunity for the merits of a development proposal to be considered.
3.8 The law requires planning decisions to be made in accordance with the provisions of the development plan unless material considerations indicate otherwise. The ability to depart from the terms of the development plan, if material considerations provide a compelling reason to do so, allows useful flexibility in our system. However, those affected by a grant of planning permission not in accord with the plan, particularly where that plan has only recently been adopted or approved, may be left wondering how such a decision could be reached, particularly if the decision is not properly explained.
3.9 Concerns expressed about the present decision-making system in planning include the following:
- Planning authorities do not take proper account of views expressed on plans or planning applications. This raises the question of how one judges whether adequate account has been taken. A person whose comments have not outweighed other considerations is likely to consider that adequate account has not been taken of them. While in some cases this may be so, it is also possible that those views have been thoroughly examined, but that other factors prevailed.
- Procedures are not fair and consistent. Some people regard public hearings, where these are held, as a token gesture and consider that the views of members of the public are not accurately recorded. Consistency, quality, fairness and atmosphere are cited as important factors in people's confidence that their views have been taken into account.
- There is a need for more transparent assessment criteria on which decisions are based, and for clearer explanations of why particular decisions were reached, no matter whether the decision is to grant or refuse planning permission or to impose conditions on a consent.
Addressing these concerns
3.10 The existing programme of modernising the planning system contains responses to some of these criticisms. The possible introduction of new rights of appeal must therefore be considered alongside ongoing work to modernise the planning system.
3.11 The Executive's aims in reviewing our system of development planning were set out in detail in the Review of Strategic Planning in 2001. These can be summarised as:
- Speeding up the preparation and approval process;
- Engaging individuals and agencies more effectively;
- Making plans shorter and more focused; and
- Focusing on delivery.
3.12 Your place, your plan proposed a number of improvements in handling comments on planning applications. It also proposed that a report recording the consultation responses, development plan and other material considerations and reasons for planning decisions should be made publicly available. The Executive intends to implement this proposal through appropriate amendments to the legislative framework and to prepare supporting guidance material.
3.13 It is not only the role of the planning authority that has been questioned. It is important that all parties play fair and do not create delays for their own ends. It has also been said that developers should be more accurate with the information they provide in support of their proposals. For example they should not offer jobs as part of the justification for a development and then fail to deliver those jobs. Once a development is in place, the planning system will have little, if any, ability effectively to challenge under-provision of employment.
Overturning planning decisions
3.14 It is evident that many seek a third party right of appeal because they consider that it would provide an opportunity to overturn planning decisions. However, experience from existing applicant appeals suggests that many planning authority decisions would be endorsed by an appeal. There could therefore be no assumption that new rights of appeal, even in defined circumstances, would lead to significant numbers of planning decisions being overturned. In 2002/03 around 35% of appeals by an applicant against refusal of planning permission or conditions imposed on consent were successful. The remainder were dismissed.
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?