Planning and Environmental Appeals Stakeholder Forum Minutes: May 2023

Attendees and apologies

• Scott Ferrie, DPEA
• David Henderson, DPEA
• David Liddell, DPEA
• Allison Coard, DPEA
• Esme Clelland, RSPB & Scottish Environment Link
• Rachel Connor, Scotland Against Spin 
• Joe Dagen, Royal Incorporation of Architects in Scotland
• John Esslemont, Association for the Protection of Rural Scotland
• Alan Farquhar, SEPA
• Robbie Forbes, Law Society of Scotland
• Aileen Jackson, Scotland Against Spin 
• David Law, NatureScot
• Richard Lewington, Homes for Scotland
• Mary MacLeod, HES
• Alasdair McKenzie, HES
• Alastair McKie, Law Society of Scotland
• Jenny Divine, RTPI
• David Melhuish, British Porperty Federation (attending first 30 minutes)
• David Middleton, Sustainable Communities Scotland
• Maurice O'Carroll, SPGELBG
• Mark Richardson, Scottish Renewables
• James Sloan, CBI
• Marcus Trinick, Scottish Renewables 
• Bruce Walker, Homes for Scotland
• Bernard White, HoPs Planning & Dev Sub-group

Apologies

• Sue Hamilton, Planning Democracy 

Items and actions

Introduction and welcome

Scott Ferrie welcomed everyone to the meeting

Previous meeting – matters arising

Wind farm map.

Aileen Jackson confirmed that SAS had been made aware of the existence of a nationwide wind farm map, available at a cost of £50 and suggested DPEA added it to the core document library.

Scott Ferrie replied confirming that the map would quickly become out of date and DPEA had no resources available to maintain it.  It would therefore be of no benefit to reporters who only used documents relevant to the case they were working on.

Mary MacLeod provided a link to an interactive wind farm map produced by the Scottish Parliament.

https://spice-spotlight.scot/2023/05/18/renewable-energy-map-of-scotland/

End year statistics

David Henderson gave an overview of the end year performance and trends. He confirmed that the number of cases received by DPEA is heading back to pre-pandemic levels.

There has been a significant increase in Wayleave applications. Since 1 January 2019 of 193 cases that had come in 169 had reached agreement and were subsequently withdrawn. This was causing significant resource problems both financially but also in respect of the availability of reporters.

With regard to ongoing development plan examinations David confirmed that they were over target due to the complexity of the examination and the introduction of NPF4 had raised several issues and resulted in more work.

Scott Ferrie added that DPEA performance against targets was good compared to other UK administrations, but we would continue to look for more efficiencies.

Bruce Walker asked if DPEA can provide stats on cases where Ministers had overruled a reporter’s recommendation. David confirmed that he would provide the figure for the group.

DPEA Update

Staffing & Resourcing

Scott Ferrie confirmed that the non-staffing costs within the DPEA budget had reduced in real terms over the last 5 years and this position is likely to continue.

With regard to reporter resources and upcoming priorities DPEA is working both internally and with HoPS to deliver the new gatecheck reviews as proportionately and efficiently as possible. We also continue to mentor new reporters with more experienced reporters on wind farm enquiries to further develop their skills and to increase the pool of reporters dealing with these case types.

DPEA is also working on report templates to try and reduce the amount of time reporters spend writing up reports, reducing to a minimum the reporter’s summary of the parties’ cases.

Esme Clelland asked if there were any moves to deal with more cases by written submissions rather than inquiry, which can be daunting for the un-represented?

Scott Ferrie responded saying that in appeals, where the reporter is responsible for how the appeal is considered, reporters will choose the most efficient and proportionate option and inquiries are rarely necessary. In cases where an inquiry is a statutory requirement reporters will still engage with parties involved to try and ensure inquiry sessions are only utilised where appropriate.

Guidance on choosing in-person/hybrid/virtual meetings and inquiries

Scott Ferrie presented a draft DPEA Guidance Note (Number 25) dealing with selecting in-person, virtual or hybrid procedure for pre-examination meetings, hearings and inquiries which was sent to stakeholders last week. He hoped that it reflected feedback from stakeholders and is helpful to those not familiar with the process.

He asked for feedback from the Group within two weeks.

Marcus Trinick replied saying that, in his recent experience, inquiry sessions are not always at the instigation of the applicant and are often at the reporter’s behest. He added that broadband connection is a real issue for many participants.  And also that An in-person inquiry provides a complete experience and is often a more satisfactory experience for all participants.

Scott Ferrie agreed that broadband connection can be an issue in rural areas and although there is still a place for in-person inquiries we also need to ensure the most suitable option to the case is used. He confirmed that the online viewing of inquiries can attract hundreds of viewers whereas numbers attending in-person are low. There are advantages to both.

Rachel Connor added that webcasting may attract greater numbers because participants can find in-person frightening. She reflected on her own experience where cross examination at an inquiry had been very intimidating and to a level where, she felt, the reporter should have intervened. She added that there is a difference between giving evidence as an opinion or as a fact. Facts need to be cross examined but opinions do not.

Scott Ferrie confirmed that reporters should be able to prevent this and will raise the issue with them.  [The DPEA Guide to the Appeals Process has subsequently been revised to specifically address this issue.]

Alasdair Mckie asked when parties should request the type of procedure they prefer?

Scott Ferrie responded confirming that parties are expected to state at the PEM if they prefer oral or written submissions. There is also an option on the appeal form and the PARF for parties to confirm their preference.

Community participation in public inquiries and other aspects of DPEA's work Correspondence from CPPP Committee

David Henderson confirmed that in response to the Ministers letter DPEA have confirmed that we will continue to work with stakeholders how to extend the help we provide. However, he confirmed that DPEA has no budget to fund research or to provide funding to allow third parties to take part in inquiries.

Aileen Jackson asked group members to consider the four cost effective solutions outlined in the SAS response to the Planning Minister detailed in the link sent out by DPEA in advance of the seminar.

She added that whilst the Faculty of Advocates provided free advice for planning cases, it would be of benefit to appoint a panel of contributing lawyers to ensure the screening of applications was appropriate. The service only allocated 3 days of advice per case, not long enough to prepare a community for an Inquiry, take part and then help with closing submissions.

Maurice O’Carroll confirmed that this is a useful resource for free advice and would be good to add to DPEA website to make public more aware. The guidance of the Faculty of Advocates website stipulates 3 days representation, but more days can be allocated in exceptional circumstances. He confirmed that he had no experience of people complaining of intimidation while under cross-examination. The reporter should have the right and ability to stop it occurring. He added that more training may help with this.

Scott Ferrie agreed to look at these matters in the reporters training programme and use webcasting footage to look at how reporters manage these situations.

Esme Clelland added that feelings of intimidation can often depend on the person involved. Lawyers used to the process may not see it as intimidating but to a layperson it could be. The planning system should be about the issues not a court experience. Agree with Maurice that more training /awareness raising would be useful for Reporters to make it easier for people taking part.

Rachel Connor confirmed that it can be very intimidating for those not experienced. It is a matter of perception and those in the legal profession are perhaps not the best to judge.

Aileen Jackson confirmed that DPEA agreed to contact participants to ask if they had hidden disabilities. Is it made clear this includes a hidden disability not just physical and that any disclosure would be in confidence?  Henderson responded saying that guidance was available for reporters, and shell letters had been amended to take hidden disabilities into consideration.

Rachel Connor responded to say a hearing is a better environment, if properly controlled, as it is less adversarial. However, a third party may only speak when invited and it is difficult for them to feel equal at the table.

Scott Ferrie confirmed that reporters will give equal weight to all information submitted including written submissions.

David Middleton added that there are times when communities ask for inquiries that they do not always receive a response to the request. He felt that there was likely that accurate information can be obtained via oral process rather than written submissions.

DPEA budget/Self-employed reporters fees

David Henderson confirmed that fees for self-employed reporters were to be increased, for the first time in 12 years.  He added that self- employed reporters are an integral part of DPEA, ensuring that peaks and troughs in casework are evened out and targets and expectations of stakeholders are met. The changes have also seen the introduction of fixed rate fees for some case types to drive efficiency.

Case Management System update

David Henderson confirmed that the Scottish Government are still considering options to move DPEA IT systems to the cloud. Depending on options, this may involve significant time and resources being needed to deliver a new case management system.

Planning modernisation: NPF4 and gatecheck reviews

 

Allison Coard confirmed that there had been significant changes since the last meeting. NPF4 is now in place and needs to be applied in decision making. She added that questions on its application have inevitably arisen in a variety of case types.

Esme Clelland referred to Policy 3 – biodiversity is broad and has no depth of detail. NatureScot issued guidance for local development, but it is general not prescriptive, there is no guidance on how enhancement should be delivered and therefore is not being applied consistently.

Allison Coard confirmed that background guidance is not always in place when a new policy is implemented. All the NPF4 policies form part of a development plan but weight needs to be attached to each of them.

Allison Coard confirmed that five development plans are still with DPEA for examination, and we are having to take a very time-consuming transitional approach. Examining reporters are working to make them compatible with NPF4 as far as they can. The Chief planner’s letter gives guidance on how to reconcile plans. As new plans come forward, they will go through the gatecheck process. Guidance on this is expected next week.

DPEA have been working internally on our systems so prepare for the gatecheck process, engaging with planning authorities, HoPs, and other key agencies. Various strands of work have been undertaken to ensure we are prepared.

Bruce Walker asked whether reporters were aware of intervention of the Scottish Government in Aberdeen City LDP.  Allison Coard responded to confirm yes.

Short life working group on further written submissions

 

David Liddell referred to the topic of multiple requests for further written submissions which had been raised at the last meeting. He confirmed that data showed that there had been a clear upward trend over the past few years, albeit this year it had reduced.

A working group was set up to look at the data and reporters were asked to provide the reasons behind their requests. There was nothing surprising or dominant in the results.

To bring down the numbers 4 action points were agreed.

Refreshing Guidance to stakeholders

Seminars/training with stakeholders.

Refreshing internal guidance for reporters and case officers

Future reporting

Esme Clelland added that she understood that the Scottish Government has committed to undertake work to explore the benefits and disadvantages of altering the 50MW threshold for cases to be dealt with under the Electricity Act and explore the scope for planning authorities to determine more applications for onshore wind farm developments.

Scott Ferrie responded saying that DPEA had no further information on this but may have to provide stats in due course.

Matters raised by stakeholders

Aileen Jackson - Number to call for assistance with accessing inquiries online

David Henderson - Confirming that a number is available on the website and is also on shell letters sent to those involved.

David Middleton - Assessment by reporters on whether particular proposol would meet criteria of maintaining or enhancing the character or appearance of a conservation area. 

Joe Dagen - offered to give guidance on architectural desing and happy to organise a session with reporters.

Scott Ferrie - agreed that would be usefull and add to the list of potential reporter's seminar topics. 

David Liddell - confirmed that it is role of reporter to decide the case on the information provided. 

David Middleton - Should reporters be given guidance on how they reach their decision to make it more objective. 

Alasdair McKie - issue must be left with reporters. Legislation says special regard should be paird to deriability and further guidance should be provided to make sure this provision is interrogated. 

Rachel Connor - Standard planning conditions

DPEA - seek an update from Energy Consents Unit and report back to the next meeting. 

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