Planning and Environmental Appeals Stakeholder Forum minutes: November 2022

Attendees and apologies

• Scott Ferrie, DPEA

• David Henderson, DPEA

• David Liddell, DPEA

• Allison Coard, DPEA

• Lorna Dunn, DPEA

• Jayne Anderson, DPEA

• Robbie Calvert, RTPI

• Katherine Chorley, Heads of Planning Scotland

• Esmé Clelland, RSPB and Scottish Environment Link Planning Group

• Hugh Crawford, RIAS

• Joe Dagen, RIAS

• Alan Farquhar, SEPA

• James Findlay KC,Scottish Planning, Local Government and Environmental Law Bar Group

• Aileen Jackson, Scotland Against Spin

• David Law, NatureScot

• Richard Lewington, Homes for Scotland

• Alastair McKie, Law Society of Scotland

• McIntosh Suzanne, RIAS

• David Melhuish, Scottish Property Federation

• David Middleton, Sustainable Communities Scotland

• Adel Shaw, Historic Environment Scotland

• Bernard Whittle, Heads of Planning Scotland

Apologies

• Rachel Connor

• John Esselmont

• Alasdair McKenzie

• Iona Murray

• Euan Pearson

• Mark Richardson

• Marcus Trinick

• David Wood

Items and actions

Introduction and welcome

Scott Ferrie welcomed everyone to the meeting

Previous meeting – matters arising

There were no matters arising from the previous meeting.

Mid-year statistics

David Henderson - Summarised the statistical data provided in the meeting paper.

Scott Ferrie - A short-term internal working group has been set up to look at the increase in the number of cases where further written submissions were being requested, especially those with 3 or 4 requests in quick submission. He confirmed that in these circumstances it might be that that a hearing would be a more efficient option. However, deciding on the most appropriate course is not always straight forward. Written submissions are more cost effective, but a hybrid hearing session may provide a more practical option. Results produced by the working group would be forwarded to Stakeholders for input, and they should expect a refreshed guidance note.

Esme Clelland - Raised concerns that written submissions were not given adequate weight. David Liddell assured her that reporters considered them of equal importance.

David Melhuish - Asked if DPEA had noticed any increase in the number of cases submitted for conversion of  retail units into residential accommodation.

David Henderson - This was not something that DPEA would regularly report on but would find out if this information could be pulled from the DPEA case management system. Thoughts were that it was likely this would be something that local authorities would be granting approval for.

David Middleton - Requested an update on the charging of fees.

David Henderson - Consultation responses on the charging of fees had been forwarded to colleagues in Planning and Architecture Division (PARD) and would be discussed at the next DPEA/PARD meeting in early December. There would be a second consultation before details were put to Ministers.

Alastair McKie - There had been a tripling of short stay letting cases which was expected to continue. Edinburgh had implemented a designated area and other cities were expected to follow suit.

Bernard Whittle - Heads of Planning had noted the increase in Section 36 inquiries. This had huge implications for local authorities in terms of labour, cost, and the current economic circumstances. They had raised their concerns with Fiona Simpson

Scott Ferrie - Suggested HoPS approach Ruth Findlay of the Energy Consents Unit ECU regarding this. Section 36 cases do not follow appeals regulations and parties decide the best route to follow. DPEA was aware of the increasing numbers and were focusing on finding more efficient ways of working.

Update from chief reporter

Staffing

Reporter numbers are up to quota. There has been much more change in the casework team which is currently carrying three vacancies, and this has had, on occasion, an adverse impact on the ability to webcast.

The budget within the SG is under unprecedented pressure with real term cuts, even before inflation and pay awards impact. DPEA will have to operate under much reduced costs. Enhanced recruitment controls are in place, fortunately DPEA has been able to continue to recruit where other Divisions have not. It is highly unlikely that DPEA will be able to add to its staffing complement at any point in the near future and maintaining existing numbers is a high priority.

The case management system (CMS)

All casework is stored on the CMS and the information feeds through from there to the DPEA website. The SG are currently looking at options for moving it away from its current server in Edinburgh. The timescale for this is short with completion expected by December 2023.  The implication of this is that DPEA may have to devote considerable time and budget to both this but also potentially a new case management system

Hybrid working

DPEA are currently looking at how this may be affected by the work on the CMS. A draft guidance note will be issued to stakeholders prior to our next meeting.

Summaries of cases

Allison Coard - A key area to be looked at for efficiencies. As previously discussed, requests for fuller summaries were introduced to speed up reporting on inquiry cases, mainly section 36. Success was mixed, resulting in a more prescriptive approach and the introduction of a template. The pro-forma will be circulated at PEMs and completed at the same time as closing submissions. It will be inserted into the report.

Scott Ferrie - Report format is also being looked at. David Liddell is currently converting a previous report into a succinct format. We must bear in mind that a report must allow the Minister room to make a decision.

David Middleton - Had progress been made in ensuring appeals go to the right quarter?

David Henderson - The eDevelopment site lacked information which was one of the reasons for mis-directions, this had been raised with them. DPEA hoped their comments had been taken forward. DPEA has also improved its guidance and refusal notices are now checked.

NPF4

Allison Coard - Draft NPF4 has been laid before parliament. Parliament will approve and the framework will move to adoption by Ministers. The framework and all related documents are available on Transforming Scotland’s Planning website.

At the moment NPF4 is a material consideration for reporters. LDPs currently carry more weight, but this will change as NPF4 is adopted.

Esme Clelland - Their understanding is that there will be a 6-week period to scrutinise NPF4 in which there will be room to amend.

Scott Ferrie - NPF4 cannot be amended at this point, and it is expected that it will be adopted early next year. Questions should be directed to Planning and Architecture Division.

Alastair McKie - Appreciated the clarification of the process. The procedure for approval is not clear on the SG website

Allison Coard - There will be transitional changes on LDPs progressing under the current system. Transitional provisions will be made, we are currently waiting to find out what they will be.

James Findlay - Regarding the transition provisions, will there be guidance for those who are not legally represented?

Allison Coard - There will be guidance, but it will take time to digest how things play out in the decision-making process. Issues of consistency will need detailed attention and it will be difficult for third parties to understand how parts of the process will fit together.

Bernard Whittle - HOPs are collating a list of expected dates for when LA’s wish to submit evidence, reports, and proposed plans under the new system, and will share the results in due course.

Matters raised by stakeholders

Rachel Connor - Standard S36 conditions.

David Henderson - DPEA have fed back previous Stakeholder comments on conditions to ECU. ECU are currently looking at revising them. If anyone wishes input to this process, they should contact ECU.

Rachel Connor - Issue of personal identification and information linked to public representations on the DPEA website.

David Henderson - DPEA takes the issue of personal identification and information very seriously and will not publish anything if asked not to. The website is there to help parties and it is important that information is made available. Names can be removed if requested. Although DPEA may agree not to publish information, it can be requested under FOI. We currently redact personal, confidential, and financial information and anything that may cause offence as required by GDPR. The Information officer is content with our process and has supported it in cases where complaints have been made.

Aileen Jackson - People with hidden disabilities taking part in oral proceedings.

Aileen Jackson raised this in an email to DPEA (1st July 2022) as a matter of urgency. SAS members suggested that, for people taking part in inquiries or hearings, there ought to be a mechanism in place, whereby they were able to let the reporter know they had a hidden disability. The pressure they may feel if their disability is not considered may put them off taking part in the process.

David Henderson - A guidance note about reasonable adjustment is already in place. DPEA has looked at the information available on the website advising what to do if adjustments are required.

Aileen Jackson - Asked that the guidance be sent out with oral proceeding papers. People miss it even though it is on the website.

David Henderson - Agreed to consider further with the possibility of reporters raising at PEMs.

Aileen Jackson - National wind farm map.

NatureScot previously produced a national wind farm map. With so many wind farms going through the planning process, it would be beneficial to have this produced again, including all scoping, and individual turbines.

Scott Ferrie - DPEA does not have the resources, or the evidence base to produce a national wind farm map. David Law confirmed that NatureScot no longer had the resources to continue producing their map.

This may be something that universities, OS, Google, Protection of Rural Scotland, or the Saltire Society may be able to help with.

Esme Clelland - The possible implications of Tom Arthurs recent clarification on Energy Consents thresholds.

Summary: stating that these thresholds can be changed at a devolved level.

Scott Ferrie - Agreed the system had not kept pace with renewables. DPEA was not aware of any plans to move thresholds. The Act itself is not devolved and Scottish Ministers have no power to change it.

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