Planning and Environmental Appeals Stakeholder Forum minutes: June 2022

Attendees and apologies

• Scott Ferrie, DPEA
• Allison Coard, DPEA
• David Henderson, DPEA
• David Liddell, DPEA
• Euan Murray, DPEA
• Alison Baisden, HES
• Robbie Calvert, RTPI
• Katherine Chorley, HoPS
• Esme Clelland, RSPB
• Rachel Connor, Scotland Against Spin
• Hugh Crawford, RIAS
• Joe Dagen, RIAS
• John Esselmont, Association for the Protection of Rural Scotland
• Murray Horn, Scottish Property Federation    
• Aileen Jackson, Scotland Against Spin
• David Law, NatureScot
• Richard Lewington, Homes for Scotland
• Alastair McKie, Law Society of Scotland
• David Middleton, Sustainable Communities Scotland
• Maurice O’Carroll, Scottish Planning, Local Government and Environmental Law Bar Group
• Mark Richardson, Scottish Renewables
• Marcus Trinick, Scottish Renewables

Apologies

• Mandy Catterall
• Alan Farquhar
• David Wood

Items and actions

Introduction and welcome

Scott Ferrie welcomed everyone to the meeting

Previous meeting – matters arising

High number of no remit cases

David Henderson – DPEA received a high number of no remit cases, 76 in the last year, the majority from non-represented members of the public. Following an exercise to contact appellants/agents who has submitted an appeal to DPEA rather than the Local Review Body there appeared to be three main reasons for this:

• terminology is confusing resulting in appellants requesting an appeal instead of a review
• guidance is unclear. DPEA will review the guidance and clarify the process
• eplanning portal terminology confusing. DPEA has no power to make changes to eplanning but a large project is currently underway to review and develop a new system and DPEA will feed in these results

Alastair McKie - Planning authority refusal notices failed to provide adequate, wording. There is a clear role for them at the point of notification to explain which path the appellant must follow. More expressive wording was needed to prevent people losing their right to a review

David Henderson – Local authorities use standard templates which can create confusion with information. DPEA will flag this issue up with the authorities when the refusal notice is unclear.

David Middleton – no remit cases were frustrating for appellants

Scott Ferrie – DPEA would do their best to help solve the problem.

Local authorities and website variation

Aileen Jackson – at the previous stakeholder meeting in November there had been discussion around the variation in appeal documents published on local authority planning websites. As advised at the November meeting she had contacted HoPs and would forward their response to David Henderson. David Henderson confirmed that this was a matter for authorities.. 

End year stats

David Henderson - overall DPEA was content with performance results with most planning appeals being completed on target. Appeal numbers had increased especially enforcement notice appeals and housing development numbers remained very steady.

DPEA update

Scott Ferrie - DPEA’s ability to allocate work remains on a knife edge. Cases are allocated twice a month but it is not always possible to allocate every case. 

Staffing is currently back up to full complement in both the admin and reporter teams. However, one admin team member will be leaving a critical post which covers both IT and webcasting and this will impact on the DPEA ability to cover the webcasting of some events. There is also a government wide recruitment freeze in place at the moment which makes recruitment difficult but not impossible.

The Chief Reporter post is now open for recruitment and an outcome is expected late summer or early autumn.

Staff are returning to the building with caseworkers working in the office one to two days per week. Hybrid working will continue.

The DPEA non-staff costs had suffered a 9% budget cut plus a 3% overall cut over the next few years. This coupled with the recruitment freeze will have an impact and DPEA will have to assess what work can be reasonably covered. 

Charging for appeals is under consideration. Planning Architecture and Regeneration Division (PARD) have carried out a stage one consultation and DPEA had discussed a stage two consultation with them. It would also be necessary for the planning Minister to become involved.

Customer survey

David Henderson – A link to the DPEA customer survey had been added to decision letters and to the DPEA website. The response had been poor with only 20 received and better advertising was required to produce a better response. It was hoped that the stakeholder group would be willing to help by forwarding a link to the survey to the various members of their groups. Any other ideas on encouraging take up would be welcomed.

Aileen Jackson, Marcus Trinick, Rachel Connor, Robbie Calvert and Mark Richardson agreed to advertise the survey where possible to members.

Hybrid working

David Henderson – asked for comments on the responses received from the group on hybrid working in relation to PEM’s, hearings and inquiries.

Marcus Trinick – there was a reasonable consensus that procedural meetings such as PEMs would work virtually but substantive meetings should be in person.

Scott Ferrie – DPEA would consider the responses and draft a guidance note. The initial view was that a flexible approach was sensible and he agreed PEMs would work virtually but hybrid should be used where it made sense to do it.

Euan Murray – DPEA has been looking closely at practicalities and the best way forward. Although there is capacity for hybrid meetings it is not always possible and, from an IT persepective, should be decided on a case by case basis. Scheduling a combination of virtual and in-person days at an inquiry may be beneficial.

Marcus Trinick– Inquiries are not just about reporters getting information it is important for people to feel that they are taking part. The focus should not be on what is practical but what is right.

Scott Ferrie – agreed all points would need consideration and the group would be given the opportunity to comment on the draft guidance.

Energy consent casework

Allison Coard – at the last meeting the group discussed Guidance Note 23. The aim of this guidance note was to make the inquiry system more efficient and able to deal with increasing demands. To develop a more seamless transition from Energy Consents and introduce a project managed approach, indicative timeframe, succinct summaries and evidence.

This was progressing well. The first case met the 50-week target and in the remainder of the 7 section 36 cases there was improvement. Setting dates remained a problem with a great deal of time being spent on this despite putting dates on initial correspondence. The PEM should be held at week 12 and the inquiry at week 30. It was important to devise a way to achieve this. 

There was mixed success obtaining fit for purpose and reporters were still having to juggle time between lots of documents.

David Middleton - Charging fees will reduce amount of applications

Marcus Trinick – Not in favour of case summaries but admires the DPEA and what they are trying to achieve on a reduced budget and will work with them in an effort to streamline the process. Reporting time is the biggest factor causing delay. The process between public Inquiry and the decision being issued on average takes 2 years. If decisions on section 36 cases are not moved through quicker this will have implications and net zero targets will not be met. Also applicants invest a huge amount of money in these cases, it can cost as much as £500,000 by the time a case gets to inquiry. 

Maurice O’Carroll – agreed with Marcus Trinick. 

Summaries submitted with closing submissions would form part of the reporter’s report. The suggestion was that they were kept to two pages but it would be fairer to implement a word limit.

DPEA should look across other disciplines for processes and ways to streamline such as the Employment Tribunal.

The DPEA’s aim to reduce inquiry times should be applauded but Ministers take too long to make a decision. There is a need to address the delay where it occurs between the end of an inquiry and the Ministers decision. There ought to be a deadline for Ministers, it should not only be a case of chasing parties to move things along.

Scott Ferrie –could not comment on Ministers and the time they took to make a decision but DPEA would do what they could to drive down their own time.

Esme Clelland – there was a need to be mindful about the resources 3rd parties.

Scott Ferrie – Energy consents were currently looking at the consenting system which was old, clunky and inflexible. Previously large numbers of wind turbines were required but now reduced numbers of larger turbines are the norm.

Allison Coard – it was important for everyone to work together. Date setting is being pushed beyond a reasonable timetable and further work was required on summaries and on preparation guidance. It is possible a template format would be of benefit and participants input may be helpful in producing an end result for future work streams. 

David Law – asked for clarification on the use of standard conditions in section 36 inquiries and what weight should be given to them. Reporters recommend the use of them at PEMs but parties are not clear where they are. Sometimes they are completely disregarded and time is spent arguing for them to be used and, although the reporter will use them in the report, they are not always the same standard.

Allison Coard – standard conditions are the starting point and are increasingly being tailored and adapted. It is recognised that they should be updated and this is currently being looked at to make them fit for purpose.

Marcus Trinick – standard conditions are currently not commercially acceptable and should not just be about planning, they should also consider finance.

Rachel Connor – asked that standard conditions be included as an agenda item at the next meeting. They are really important to third parties and the public to protect residential amenity and the environment and yet there is no public consultation on 'standard conditions' or indeed for conditions in general for any individual application. It should not be the case that developers can set their own conditions, regardless of investment made.

Matters raised by stakeholders

David Middleton - Given the government's programme of legislation for this session of Parliament, is there an expectation that any aspect of this will impact on planning policy, and pending new legislation being enacted, does the current policy requirement that all development must contribute to sustainable development provide opportunities for innovative approaches to protect the environment and limit climate change?

Seldom does sustainability of development feature in planning applications. For example, the use of concrete, acceptance of bio fuels as being green, trees losing out to development. Is DPEA able to impose planning conditions for sustainability for example to keep trees?

Is climate change mitigation is to be part of planning? There is a need for new legislation.

David Liddell – response as a reporter is restricted, we do not make policy. We help colleagues but the policy role lies with them and we cannot be seen to be influencing. The reporter is led by conditions which can be suggested but the reporter can only attach them if they are relevant and reasonable.

Hugh Crawford - Mediation – how it can be applied in the planning system.

Hugh Crawford – Mediation is a good and useful process and brings people around the table. He had been asked to draft guidance on the use of mediation for Local Authorities and parties to help them to distil points and reduce them before a case gets to reporters. Comments, thought and perceptions on how to draft his guidance note would be welcome.

Allison Coard – The Planning Act makes provision for mediation but it is voluntary. There is guidance for mediation at pre-application point and recognises the importance at the beginning of the process. 

Marcus Trinick – mediation is used more in England particularly in airport developments but it raises questions. Who would appoint the mediator? Who would pay, mediators are expensive? What qualifications would they have? They would need to be skilled in the planning process

Hugh Crawford – The aim of mediation is to keep the costs of a project down so they try to keep a cap on mediator fees.

Alison McNab - Appeal decisions on Certificates of Lawful Use and Enforcement Notices do not in terms of their particular legislation involve the participation of third parties although the DPEA allows third party participation. Can the DPEA clarify what its policy is in allowing third parties to participate in these matters?

Alastair Mckie – These matters are between the principle parties; the public do not have the option to take part. There is no role for them in this type of case but they can take part in planning appeals.

Rachel Connor - Third parties should have the ability to contribute to enforcement appeals if they are affected by non-compliance with planning conditions for example if their water supplies are affected by a development.

It is often the public that raise the issue of perceived non-compliance with planning conditions. The local authority may then take these issues forward and issue enforcement notices. Why does there seem to be a move to exclude public participation in matters which impact on them or their environment in enforcement appeals? It is the public who are aware of adverse impacts.

David Middleton – In the appeal process is there any way to rectify an inaccurate comment in the final statement made by an applicant and is it down to the reporter to pick these inaccuracies out?

David Henderson – The reporter has the option to accept or decline the final statement and can request further written submissions but the reporter should be made aware of real factual inaccuracies.

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