Proposed changes to pre-application consultation requirements: consultation

Annex C - Proposed Changes To Pre-Application Consultation Requirements In Planning – Equality And Child Rights And Wellbeing Impact Assessment (Partial)

Partial Equality and Child Rights and Wellbeing Impact Assessment

Background

The public sector equality duty requires the Scottish Government to assess the impact of applying a proposed new or revised policy or practice. Equality legislation covers the characteristics of: age, disability, gender reassignment, sex including pregnancy and maternity, race, religion and belief, and sexual orientation.

An equality impact assessment (EQIA) aims to consider how a policy (a policy can cover: activities, functions, strategies, programmes, and services or processes) may impact, either positively or negatively, on different sectors of the population in different ways.

In addition, the Scottish Government has undertaken an initial impact assessment considering issues relating to Child Rights and Wellbeing. The Child Rights and Wellbeing Impact Assessment (CRWIA) is used to identify, research, analyse and record the impact of a proposed law or policy on children's human rights and wellbeing. It should be used on all new legislation and policy which impacts children, not just children's services.

Pre-application Consultation (PAC) Proposals

These proposed legislative changes are part of a wider programme of improving community engagement in planning, deriving largely from provisions contained within the Planning (Scotland) Act 2019^[29]. They include the National Planning Framework, amended development planning procedures, the introduction of Local Place Plans plus guidance on both effective community engagement in local development plans and mediation.

The aim of this particular strand is to improve the statutory requirements for pre-application consultation (PAC) with local communities. This is in light of the findings of the independent Review Panel charged to review the planning system, in their report 'Empowering Planning to Deliver Great Places' and subsequent public consultations in 2017^[30].

Further details are available in the consultation paper to which this assessment is attached.

Who will it affect?

We envisage that these changes will affect all those potentially involved at the PAC stage of the Scottish planning system, including the prospective applicant and their agents and those who seek to become engaged with the development proposals.

We recognise that whilst new requirements on the format of information, for an additional public event and on the content of PAC reports should improve engagement and hopefully local communities' experience of PAC, the impacts may fall differently on different groups in society. Our initial evidence would suggest that people with disabilities, children, women and ethnic minority groups for example, experience a variety of challenges in engaging with planning, such as in relation to physical mobility and access, the impact of additional caring responsibilities or language and communication issues.

In mitigation, guidance is intended to help address the different needs and abilities or modes of engagement across various groups in society. For example, regarding issues around physical access to venues, timing of events, use of online approaches to engagement that can complement the required steps, and engagement tools that reflect the communities with whom prospective applicants are engaging.

This consultation also seeks views on online forms of engagement, which might address some concern about engagement during PAC. Whilst during the COVID-19 emergency, such engagement has been used in relation to PAC, we have yet to assess how well that may have worked, with a view to adding specific legislative requirements at this time, beyond simply making information available electronically. It seems unlikely that a move to online engagement will in itself be a panacea for issues around engagement in planning.

Whilst the cases to which PAC exemptions apply are likely to be few in number and will apply to cases where the same basic proposal has been through PAC and finalised for a previous application, there may nevertheless be concerns about disempowerment that in some groups in society exacerbate pre-existing concerns in this regard.

What might prevent the desired outcomes being achieved?

We have not identified any factors which might prevent the desired outcomes.

Framing

Results of EQIA framing exercise

It is clear from the engagement during and since the Independent Panel's review that there is a need to improve public engagement measures, such as PAC. It also clear from that work that different groups in society have different levels of engagement with the planning system.

From the evidence gathered so far, these amendments are likely to enhance the opportunities for engagement in shaping the places that people work and stay. However, whilst we believe they will generally have a positive effect, we see value in gathering further evidence.

Extent/Level of EQIA required

The potential impact on each of the protected groups of the changes to land use planning legislation has been considered using information in the Scottish Government's Evidence Finder^[31] plus additional information below.

Further information is required on the impact of the changes on each of the protected characteristics. It is proposed to carry out consultation on the proposed legislative changes required to implement the policy intention and this will inform further development of the policy, including associated guidance.

Results of CRWIA framing exercise

The Articles of the United Nations Convention on the Rights of the Child (UNCRC) and the child wellbeing indicators under the Children and Young People (Scotland) Act 2014 apply to all children and young people up to the age of 18, including non-citizen and undocumented children and young people.

Our work on this to date indicates that a CRWIA is required to support the development of this policy. We note that guidance suggests that a CRWIA should be undertaken where the policy will be subject to extensive consultation, including with the Scottish Parliament.

The Articles of the UNCRC and the child wellbeing indicators under the Children and Young People (Scotland) Act 2014 apply to all children and young people up to the age of 18, including non-citizen and undocumented children and young people.

The policy will specifically support Article 12 of the UNCRC. This relates to every child having a right to express their views and have them given due weight in accordance with their age and maturity. Children should be provided with the opportunity to be heard, either directly or through a representative or appropriate body. This links to the Respected and Responsible welfare indicators.

Other Articles of the UNCRC may indirectly be relevant such as: Article 3 - Every decision and action taken relating to a child must be in their best interests; Article 15 – a right to gather and use public space, providing no laws are broken; and Article 31 – a right to play, rest, leisure and access cultural life appropriate to their age.

We envisage that the policy will potentially impact upon the opportunity of all children and young people to become more actively engaged in the planning system. However, there is the potential for intersectional issues to effect the perception of certain groups of children and young people of engagement. Research relating to out of school groups and activities suggests this may particularly be an issue for both disabled children and older children.

We would want to gather evidence on the potential impacts on how the policy affects or could affect children and young people in practice.

Stage 2: Data and evidence gathering, involvement and consultation

Characteristic[32]	Evidence gathered and Strength/quality of evidence	Source	Data gaps identified and action taken
Age	In 2018, just under one in five people (19%) in Scotland were aged 65 and over, compared with 16% in mid-2007. People aged under 16 made up 17% of the population in 2017 and 64% of people were aged 16 to 64. Older people were less likely to have travelled the previous day. Only 51 per cent of those aged 80 and over had travelled the previous day and 65 per cent of those aged 70 to 79. Almost nine in 10 adults (87 per cent) aged 75 and above said they felt a very strong or fairly strong sense of belonging to their community, compared to just over seven in ten (73 per cent) of those aged between 16 and 24 There is a clear relationship between age and use of internet, with lower rates of internet use among older adults. In 2018, 100 per cent of adults aged 16 to 24 reported using the internet compared to 38 per cent of those aged 75 and over. This gap is narrowing. The majority of young people feel they should be involved in planning in their local area and that their local councils should look at ways to support children and young people to do this. 2019 saw an increase in the proportion of 12-15's who use social media to support causes and organisations by sharing or commenting on posts (18% in 2019 vs. 12% in 2018) Around six in ten of young people surveyed (58 per cent) agreed that adults were good at taking their views into account when making decisions that affect them. This was an increase from 2017, when 53 per cent agreed. Boys were more positive on both questions. Older children were more negative. Respondents with a mental or physical health condition were less positive. Democracy Matters to Children (2020) noted that 'children's paths to meaningful involvement in decision-making are currently limited and many children have limited or no experience of participation in democratic processes'. A number of local issues were identified as ones which children wanted to have a say in – this included planning and the built environment.	Mid-2018 Population Estimates Scotland (2019)[33] Travel and Transport in Scotland 2018 (2019)[34] Scottish Household Survey: Annual Report 2018 (2019)[35] (as above) YoungScot survey (2017)[36] Children and parents: media use and attitudes report (2019)[37] Young people's participation in decision making: attitudes and perceptions (2020)[38] Democracy Matters to Children (2020)[39]	Evidence would suggest that people wish to engage in planning though they are not always able to do so. As part of the consultation on the Scottish Government's proposals, we will be proactive in engaging with societal groups on the practical elements of supporting engagement.
Disability	In 2011, the proportion of people in Scotland with a long-term activity-limiting health problem or disability was 20%, the same as reported in the 2001 Census. Contains a range of recommendations (primarily aimed at England) including: - preparation of guidance on how and when to engage disabled people; - dedicated section in policy on access and inclusive design - plans not to be considered as 'sound' without evidence address disabled access; - permission granted only where sufficient provision for accessibility and inclusion -remove any requirement to prove immediate need for accessible housing. 97% of disabled people or those with a long-term illness considered that people should be involved in making decisions about how local public services are planned. Access issues should be a compulsory module on all Scottish architecture courses The inclusion of local access panels as statutory consultees on planning applications. Twenty-seven per cent of adults who have some form of long-standing physical or mental health condition or illness reported not using the internet, compared with eight per cent of those who do not have any such condition. This divide in internet use is more marked among the older age groups, but is prevalent across all age bands to some extent with the exception of 16-24 year olds.	Scotland's 2011 Census (Release 2A, Table 8) Building for Equality: Disability and the Built Environment[40] Scottish Social Attitudes Survey 2015: Table A16[41] Inclusion Scotland: A Vision for an Inclusive Scotland (2014)[42] Scottish Household Survey: Annual Report 2018 (2019)	Evidence would suggest that people wish to engage in planning though they are not always able to do so. As part of the consultation on the Scottish Government's proposals, we will be proactive in engaging with societal groups on the practical elements of supporting engagement.
Sex	Scotland had a relatively even split between genders in 2018, with 51% females and 49% males, although this varied amongst age groups. Women are slightly more likely than men to become involved in the planning process. This was focussed on development management. Language barriers, lack of confidence and dominant characters can discriminate against some people during community engagement specifically women, minority ethnic groups, young and old people and people with disabilities. Overall there was no significant difference in use of internet between genders The majority of all adults said that they felt a very strong or fairly strong sense of belonging, with the gender of the respondent having no bearing on their strength of belonging. Do you feel able to influence planning decisions which affect your local area and how it is being developed? Findings on no influence / some influence were similar for male (61%, 35%) and female (59%, 36%) Four key facts, which link specifically with arrangements around the participation of women in engagement on the built environment: Women can find it more difficult to engage in planning processes since they are more likely to provide unpaid care and the timing and places of consultation may not recognise caring responsibilities. Women from some minority ethnic groups may not wish to attend mixed gender consultation meetings. Studies by the Women's Design Service show an under-representation of disabled women in consultation processes. Women are less likely than men to access ICT and an over-emphasis on the internet could exclude women. While this may have been true in 2007, more recent information (2016) from the Scottish Household Survey would suggest that there was no significant difference in internet use between genders.	Mid-2018 Population Estimates Scotland (2019) Planning and Community Involvement in Scotland (2004)[43] Hard to reach, easy to ignore (2017)[44] Scotland's People Annual Report: Results from 2015 Scottish Household Survey (2016) (section 8.2.2)[45] Scottish household survey 2018: annual report (2019) The National Trust for Scotland Heritage Observatory briefing note (2017)[46] Royal Town Planning Institute, Good Practice Note 7: Gender and Spatial Planning (2007)[47]	Evidence would suggest that people wish to engage in planning though they are not always able to do so. As part of the consultation on the Scottish Government's proposals, we will be proactive in engaging with societal groups on the practical elements of supporting engagement.
Pregnancy and Maternity	We have not been able to gather any information regarding this characteristic
Gender Reassignment	We have not been able to gather any information regarding this characteristic
Sexual Orientation	As a whole, this group had no special needs or requirements when it came to planning. Their views were representative of the general population.	Consultation on the Modernisation of the Planning System with 'seldom heard' Groups (2009)[48]
Race	Language barriers, lack of confidence and dominant characters can discriminate against some people during community engagement specifically women, minority ethnic groups, young and old people and people with disabilities. Some people from specific communities of interest and identity described finding it difficult to get involved in decisions, or having no experience of involvement at all. For example, some asylum seekers, EU citizens, foreign language groups, and some people from different ethnic minority groups described experiences of being detached from the wider community and formal decision-making organisations and forums. They did not know about local groups or understand whether and how they could get involved. Seventy-eight per cent of those whose ethnicity was recorded as White expressed a very or fairly strong feeling of belonging compared to 71 per cent of those whose ethnicity was recorded as minority ethnic. In 2011 Gypsy/Travellers in Scotland, compared to the population as a whole, were more likely to report a long-term health problem or disability and were more likely to report bad or very bad general health.	Hard to Reach, Easy to Ignore (2017) Local Governance Review: analysis of responses to Democracy Matters (2019)[49] Scottish Household Survey: Annual Report (2019) Gypsy/Travellers in Scotland - A Comprehensive Analysis of the 2011 Census[50] (2015)	Evidence would suggest that people wish to engage in planning though they are not always able to do so. As part of the consultation on the Scottish Government's proposals, we will be proactive in engaging with societal groups on the practical elements of supporting engagement.
Religion or Belief	Some people from specific communities of interest and identity described finding it difficult to get involved in decisions, or having no experience of involvement at all. For example, some asylum seekers, EU citizens, foreign language groups, and some people from different ethnic minority groups described experiences of being detached from the wider community and formal decision-making organisations and forums. They did not know about local groups or understand whether and how they could get involved	Local Governance Review: analysis of responses to Democracy Matters (2019	Evidence would suggest that people wish to engage in planning though they are not always able to do so. As part of the consultation on the Scottish Government's proposals, we will be proactive in engaging with societal groups on the practical elements of supporting engagement.
Marriage and Civil Partnership	Not applicable

Stage 3: Assessing the impacts and identifying opportunities to promote equality

Having considered the data and evidence you have gathered, this section requires you to consider the potential impacts – negative and positive – that your policy might have on each of the protected characteristics. It is important to remember the duty is also a positive one – that we must explore whether the policy offers the opportunity to promote equality and/or foster good relations.

Do you think that the policy impacts on people because of their age?

Age	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination, harassment and victimisation	X			The aim is to have increased engagement for all sectors of society during PAC, with consistent and transparent reporting of the PAC process (including the issues raised and what was done to address them or why they could not be addressed). There is scope for guidance will also cover approaches to compliance with the new requirements and related considerations.
Advancing equality of opportunity	X			As above. The additional public event will be a physical event, rather than online, acknowledging older people, amongst others, are slightly less likely to use online technologies. Guidance will cover complementary approaches to engagement which can involve online engagement, recognising that approach works better with younger people.
Promoting good relations among and between different age groups	X			The public event offers opportunity to hear views for across communities and PAC reporting requirements should ensure the issues raised and the response to them is publicly available.

Do you think that the policy impacts disabled people?

Disability	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination, harassment and victimisation	X			This is not the main thrust of the policy. The aim is to have increased engagement for all sectors of society during PAC, with consistent and transparent reporting of the PAC process (including the issues raised and what was done to address them or why they could not be addressed). Guidance will also cover approaches to compliance with the new requirements and related considerations.
Advancing equality of opportunity	X			As above
Promoting good relations among and between disabled and non-disabled people	X			The public event offers opportunity to hear views for across communities and PAC reporting requirements should ensure the issues raised and the response to them is publicly available.

Do you think that the policy impacts on men and women in different ways?

Sex	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination	X			Data indicates women can find engagement with Planning more challenging. The aim is to have increased engagement for all sectors of society during PAC, with consistent and transparent reporting of the PAC process (including the issues raised and what was done to address them or why they could not be addressed). Guidance will also cover approaches to compliance with the new requirements and related considerations.
Advancing equality of opportunity	X			As above.
Promoting good relations between men and women			X	No information available

Do you think that the policy impacts on women because of pregnancy and maternity?

Pregnancy and Maternity	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination			X	No information available
Advancing equality of opportunity	X			The aim is to have increased engagement for all sectors of society during PAC, with consistent and transparent reporting of the PAC process (including the issues raised and what was done to address them or why they could not be addressed). Guidance will also cover approaches to compliance with the new requirements and related considerations.
Promoting good relations			X	No information available

Do you think your policy impacts on transsexual people?

Gender reassignment	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination			X	No information available
Advancing equality of opportunity	X			The aim is to have increased engagement for all sectors of society during PAC, with consistent and transparent reporting of the PAC process (including the issues raised and what was done to address them or why they could not be addressed). Guidance will also cover approaches to compliance with the new requirements and related considerations.
Promoting good relations			X	No information available

Do you think that the policy impacts on people because of their sexual orientation?

Sexual orientation	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination			X	No information available
Advancing equality of opportunity	X			The aim is to have increased engagement for all sectors of society during PAC, with consistent and transparent reporting of the PAC process (including the issues raised and what was done to address them or why they could not be addressed). Guidance will also cover approaches to compliance with the new requirements and related considerations.
Promoting good relations			X	No information available

Do you think the policy impacts on people on the grounds of their race?

Race	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination	X			The aim is to have increased engagement for all sectors of society during PAC, with consistent and transparent reporting of the PAC process (including the issues raised and what was done to address them or why they could not be addressed). Guidance will also cover approaches to compliance with the new requirements and related considerations.
Advancing equality of opportunity	X			As above.
Promoting good race relations	X			This is not the main thrust of the policy. As above.

Do you think the policy impacts on people because of their religion or belief?

Religion or belief	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination	X			The aim is to have increased engagement for all sectors of society during PAC, with consistent and transparent reporting of the PAC process (including the issues raised and what was done to address them or why they could not be addressed). Guidance will also cover approaches to compliance with the new requirements and related considerations.
Advancing equality of opportunity	X			As above.
Promoting good relations	X			As above.

Do you think the policy impacts on people because of their marriage or civil partnership?

Marriage and Civil Partnership[51]	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination				Not assessed

Stage 4: Decision making and monitoring

Identifying and establishing any required mitigating action

Have positive or negative impacts been identified for any of the equality groups?	This package generally adds to the public engagement requirements where PAC is applied. Whilst exemptions from PAC are proposed, these will be in relation to applications for planning permission where the basic proposal will have been through the PAC process previously. Having more public events and more consistent and transparent reporting of PAC may not address the challenges that face some sectors in society in engaging with this aspect of planning, guidance may be able to direct prospective applicants to a more considered and inclusive approach when meeting the procedural requirements.
Is the policy directly or indirectly discriminatory under the Equality Act 2010[52]?	Potentially indirectly discriminatory in terms of those groups who would find it easier or who would be more likely to engage online than at physical events, for example younger age groups. There is evidence that other groups use online tools less often than others, e.g. older age groups and disabled people.
If the policy is indirectly discriminatory, how is it justified under the relevant legislation?	There is scope for the policy implementation to be indirectly discriminatory should the method of engagement used provide a barrier to any person with a particular protected characteristic.
If not justified, what mitigating action will be undertaken?	We will ask in the consultation about views on using online tools and on including that in statutory requirements. Also guidance can at least include the issue of online engagement complementing public events.

Describing how Equality Impact analysis has shaped the policy making process

The EqIA/ CRWIA has helped highlight the potential issues which may disproportionately impact on those with particular protected characteristics. We have included requirements for the information to be made available to the public during PAC to be available in both hard copy and electronic formats, in light of the different ways in which, for example, different age groups engage on issues.

Whilst the intention is not to legislate the detailed requirements for holding public events, we will seek views in the forthcoming consultation process on the use of online engagement, with a view to considering whether in future that should part of statutory requirements and/or as complementary measures in guidance. We will also ask how guidance may assist in addressing the challenges people have in engaging in public events and with PAC requirements generally.

Monitoring and Review

Further work is required on the measures to monitor and review the wider community engagement package, of which this forms a part. Officials are in regular contact with developer and planning authority interests, and will obtain feedback from them as the new requirements are implemented.

We will also review the first 12 months of their operation, including a request for public views on their operation.

Planning and Architecture Division
Scottish Government
August 2020