PlanningBlog – Brodies LLP

Hats off to Fife Council for having produced a report on their LRB’s operation throughout its first year. Refreshing to note that the review involved consultation with stakeholders (always dicey) and equally refreshing to note that the report includes comments as well as responses to pre – set questions. All very open and accountable – top marks for that too.

Brodies undertook extensive training for elected members and for officers on LRBs - their roles, responsibilities and applicable rules.  One of the issues that repeatedly came up is that where an officer has failed to determine an application within two months and the applicant applies for a review, the review must be conducted within 2 months by the LRB.  In its LRB report Fife Council comments  that “in reality, given the consultation periods built into the regulations, it is in fact very difficult to comply with the timescale”.  No surprises there!  The challenge of complying with the timescales was clear from the outset. 

The Council indicates that its LRB has had cause to deal with only the one non -determination case so far and that it managed it within the timescales.  However, the Council make the point that the legislation is unclear  as to what should happen if a review is not concluded within the 2 months timescale.  We are not convinced that everyone agrees with that. 

 This particular scenario  is covered by section 43A(17) of the Act. Said legislation states that  “where a requirement to review is made by virtue of paragraph (c) of subsection (8) and the planning authority have not conducted the review within such period as may be prescribed by regulations or a development order, the authority are to be deemed to have decided to refuse the application and section 47(1) is to apply accordingly.”

One interpretation of the this is that the effect of non determination is that the application is treated as having been refused which might give rise to the prospect of a competitor or an objector raising court proceedings with a view to having a consent issued after the elapse of  2 months consent reduced. This would of course be very unfortunate in a situation where an approval was otherwise sound.

The report indicates that stakeholders have some concerns about the independence of the LRB’s advisors. This is an issue that dominated much of the debate about the introduction of LRBs.  It may be (as the Fife report says) that these concerns will diminish as the LRB develops and the role of advisers decreases. However, another factor that will contribute to the perceived independence of LRBs is how they are seen to conduct their business. Well prepared members and strong conveners who are guided ,rather than led, by advisors will do much to enhance the reputation of  LRBs. Planning authorities have paid particular attention to training LRB members and some of the training has focussed on the soft skills that are required to run effective meetings and hearings. So there can be no doubting their good intentions.

I have yet to attend  an LRB meeting. I have, however, heard reports some good, others not so good about how they have been conducted. I am conscious that the views of some will have been coloured by the outcome of the LRB’s deliberations, but that there might be room for improvement in some quarters should come as no surprise. It’s early days,  and  experience may breed greater levels of confidence and better decision-making.

In the case of Fife Council’s LRB some of the stakeholder comments indicate satisfaction; one suggests a good enough job was done, and that what wasn’t perfect was “just due to the fact it was all new”. There were some dissatisfied with the process. But in the main, dissatisfaction seems to have arisen from misunderstandings about how the system operates. I fear plannning authorities will face a bit of an uphill struggle in terms of ensuring perfect clarity, and local variations may lead to unhelpful and confusing comparisons.  However, a number of planning authorities have produced excellent guidance which is readily available on their websites and that has to be a step in the right direction. They might also benefit from conducting the sort of exercise that Fife Council have undertaken and invite comments from stakeholders which can be used to shape and improve future decision making and service delivery.

Congratulations to my tree-hugging former colleagues at Fife Council who have their tails up after winning this appeal against refusal of planning permission for the extension of Angle Park Quarry. Some people might say the decision is nuts, but the beady-eyed reporter spotted there was insufficient evidence that the proposed mitigation measures following the removal of forrest inhabited by red squirrels would prevent an adverse impact on the squirrel population. And as he almost said in his decision: “Quarrying in Fife? That’ll be the drey!”

The Councillor’s Code of Conduct first came into effect on 1st May 2003. It plays an important role in setting out the standards of conduct which must be adhered to by councillors including when they are engaged in taking decisions on individual applications such as planning applications. Councillors believed to be in breach of the code may be referred to the Standards Commission for Scotland which has the authority to impose sanctions including suspension and disqualification.

The Commission’s Annual report for 2009/10 indicates that of the total number of complaints submitted in that tome period (200), 34% related to misconduct on individual applications which in the main relates to planning. The overall number of planning related complaints was 84 or 41% of the total number of complaints lodged. This is not an insignificant number; however, the vast majority of complaints (140) result in no further action after investigation. Having said that, the numbers of complaints raised in connection with planning matters might reasonably be taken as an indication that from time to time the role of the elected member in the planning system continues to give rise to controversy. But the outcomes suggest that some of the controversy may be without much in the way of foundation.

Surprising perhaps, that the consultation paper on proposed amendments to the Code that was issued by the Scottish Government at the end of 2009 attracted very little in the way of interest. Out of a total of 39 responses, 24 were submitted by local authorities. Other than from ASDA, there was no developer or planning consultancy interest (although there were two unpublished responses so there might well be a consultancy hiding under a cloak of anonymity) and there was no more in the way of interest from planning lawyers.

Depending on the Parliamentary timetable the revised code will be adopted later in the year. Doubtless planning authorities will be providing refresher training for elected members. The rest of us would do well to read the Code, particularly if we are to be involved with controversial applications. Thinking we know what it says is not the same as really knowing what it says and being able to advise clients from the perspective of one who is properly informed.

Some of the changes reflect the introduction of LRBs and other attributes of the reformed planning system. In particular the draft amended guidance recognises that some planning decisions will be taken by full council as opposed to the planning committee. As currently drafted the guidance suggests that councillors will be entitled to take part in decisions to be made by full council notwithstanding they may have expressed an opinion on the application at a pre-determination hearing or at the planning committee. This contrasts with the guidance given in respect of other applications that are to be decided by committee in which case councillors continue to be advised not to indicate or imply their support or opposition for a proposal or declare a voting intention before the meeting.

Paragraph 7.8 of the draft amended guidance suggests that councillors may be asked to comment on a request for a provisional view as to whether the authority might be minded in principle to consider granting planning permission. From my reading of the guidance it would appear to refer only to major developments, although it’s not clear whether it is intended to apply to all major developments or just those that require to be decided by full council. A number of respondents have expressed concerns about a lack of clarity as to whether the guidance is intended to refer to all development. Interesting to see, also, that some council respondees welcome the addition of the guidance at Paragraph 7.8 whilst others stop only a little short of demanding that it is immediately excised, as it is, in their view, the role of officers, not councillors, to offer a preliminary view on planning applications.

The Scottish Government is working its way through the responses and will hopefully make sense of it all in due course. I know from personal experience, however, that some elected members do not talk to anyone other than officers about pending planning applications (“no’ even ma mammie” – to quote a favourite) and I doubt that any changes to the guidance that are intended to clarify acceptable practice will make the slightest dent in their approach, particularly when you factor in to their thinking the number of complaints that are made to the Standards Commission with regard to planning matters.

On Wednesday the Board of The Loch Lomond and The Trossachs National Park Authority voted 12-10 to refuse planning permission for a gold mine at Cononish near Tyndrum.

Inevitably the media have polarised it into in a conflict between conservationists who don’t want development in the National Park, and those who want the economic benefits it will bring to the area.

The planning issues are inevitably more complicated than that, and the report to the Board is well worth a read.

According to the media the gold mine company have said that an appeal is likely to be submitted.

Penny Uprichard, a resident of St Andrews, is becoming a frequent litigant in planning cases. Her recent legal challenge to the Fife Structure Plan is her third.

It only took Lord Uist just 5 paragraphs to dismiss her case (here), but those paragraphs are significant for future legal challenges by objectors.

Uprichard’s objection to the structure plan proposed modifications was rejected by the Scottish Ministers. She claimed the reason given was inadequate. That reason consisted of one sentence.

Lord Uist held that the reason should not be viewed in isolation. It must be considered in context and against the background of the statutory process for the making of the structure plan. The Council had already provided a reasoned justification in the plan. The Ministers’ reason therefore met the legal requirement to be adequate, proper and intelligible.

One can sympathise with the Scottish Ministers who had to give reasons to 187 objections. However, Lord Uist’s decision introduces an unfortunate element of uncertainty, since we can no longer rely on the reason given, but have to interpret it in context. Surely that undermines its intelligibility?

Unfortunately for objectors, Lord Uist didn’t stop there. Even if the reason was deficient, he did not consider Uprichard’s interests “to have been substantially prejudiced”.  In his view, the fact that she, in her capacity as a resident of St Andrews, was displeased with the reason given does not mean that she is prejudiced or that her property has been affected.

Reading between the lines, Uprichard’s prejudice case was thin. There is a real difficulty here. The strategic nature of structure plans, and their successors the strategic development plans, will make it difficult for objectors to show prejudice. And if they can’t challenge the strategy in the courts, there is a danger that the local plan process is “a done deal”, since the law requires the local plan to comply with the structure plan (and the local development plan to comply with the strategic development plan). Yes, the strategy is not site specific, but often it refers to a very specific area, so it is fairly clear which sites the strategy envisages being allocated for development.

And, finally, Lord Uist said that he wouldn’t have quashed the structure plan anyway because of the disruption to the development plan which would have ensued. There would be no up to date development plan for St Andrews for some time, which would be a disproportionate consequence of any prejudice suffered by the applicant. One suspects the judge felt that Uprichard’s planning case had been given a fair crack of the whip, and that it would be disproportionate to quash the plan just because the reasons for rejecting her objection were poorly expressed.

So – a firm thumbs down for Uprichard, and difficult hurdles for objectors to clear in the future when challenging a structure or strategic development plan in the courts.

The Herald reports the case of Swift Land Investments, who have been selling land on the highland croft of Achnabobane as an investment to small investors at what looks like a mark-up of up to 1500%, despite there being a section 75 agreement in place that seeks to prevent further development. Presumably the poor investors didn’t seek advice from a solicitor or planning consultant, so – an example worth mentioning if anyone ever questions the worth of getting professional advice before buying land!

Is this another set of unlucky numbers for Friday the 13th? The planning statistics for 2009-2010 are out (hard on the heals of the stats for the previous year which appeared in March this year). Recession is written all over the figures. Perhaps the gloomiest stat of all is that between 2008/09 and 2009/10, the number of major applications in Scotland fell from 1,778 to 959, i.e. a year-on-year fall of 46%.

Looking back to 2006/07, there were 54,597 planning applications in Scotland with only a small fall in 2007/08. In 2009/10 there were 40,368, a fall of 26% from the 2006/07 peak. Even the North East, which looked from last year’s stats like it was escaping the recession, saw a sudden dip in 2009/10. North Lanarkshire has some of the  grimmest figures again: from 2006/07 to 2009/10 applications fell by 40%. Over the same period, of the cities, Dundee did worst (a fall of 34%) and Glasgow did best (a fall of 25%). Rural areas tended to do better.  The only positive thing to say about  the market in 2009/10 is that the year is now over, and generally things feel healthier out there.

So, as planning offices have emptied of work, have processing times improved? In actual fact, there was a small improvement for processing of minor applications – 63.4% were decided within two months, up from 62.2% the previous year. However, the number of major applications determined within the new time limit of four months has actually fallen. If you drill further into the figures, you find that for the first four months of 2009/10 (i.e. before the new system came into effect) 520 major applications were made, and 45% of them were determined within four months. In the last eight months of the year, 439 major applications were made and 27% of them were determined within four months.

It would be unfair to condemn the new planning procedures merely on the basis of eight months’ figures at the start of its operation: inevitably time must be allowed for people to get used to operating a new system (though this is often an impact of reform reformers ignore) and there is probably also there is an impact from planning departments either shedding staff or not filling posts. However, it hardly inspires confidence that at a time when there were far fewer applications to deal with, our new stratified system has operated far slower than apparently the system did previously. The 12-week pre-application consultation no doubt depressed the number of applications that could be made in the latter two thirds of the year, but it also seems that developers either sought to apply before the new system came into effect or have held back from applying.

There are initial figures on the first eight months of operation of Local Review Bodies. The figures are incomplete, with none available from Glasgow, North Lanarkshire or Stirling. However, those who thought that the LRB would simply be a creature of the planners can take heart: of the 101 cases counted, the LRB overturned the appointed officer’s decision 27 times – almost the rate at which reporters overturn Council decisions. There is a real variation between authorities though: Of Edinburgh’s 20 cases, the LRB only overturned the officer’s decision three times. Compare that with Inverclyde where all four LRB cases resulted in the officer’s decision being overturned. Although no figures are provided for Glasgow, anecdotally their LRB overturns half of the officer’s decisions. Can anything be drawn from this? Reporters have historically overturned decisions of some planning authorities more often than others.

Are LRB decisions any faster than an appeal to a reporter? It seems likely: 45% of decisions are made within 2 months and almost 80% within three. The average time for an appeal decision fell to 11 weeks in November 2009 (though the fall in appeal times was assisted by business passing to LRBs).

Quick LRB decisions may be a result of truncated procedure – 55 out of 101 LRB cases were decided without any further procedure – even a site visit. 6 went to a hearing though, which is actually a higher rate than reporters decided were necessary.

13 out of 34 planning authorities didn’t report any meetings of their LRB at all (though again this includes Glasgow, North Lanarkshire and Stirling). This seems to show a level of suspicion of LRBs that is surprising given the advantages for appellants: an opportunity to address a new audience whose concerns will not be exactly those of the professional planners, and no risk of expenses if the review fails. No doubt we’ll see the work of LRBs pick up as people become more familiar with the system.

Next year’s figures will give us a clearer idea of how the reforms have worked. And hopefully show a picture of an economy that’s picking up.

Wishing a happy and trouble free Friday the 13^th to all you blogsters!

The best way to avoid any mishaps is of course to keep a low profile and stay indoors with a black cat on your lap. And funnily enough statistics have shown that the occurrence of accidents on this special day is in fact lower due to exactly this sort of “avoidance” strategy. 

Hopefully none of our readers suffer from paraskevidekatriaphobia. This is the fear of Friday the 13^th, while triskaidekaphobia is a fear of the number 13. I haven’t been able to find the technical term for the “fear of planning” although I’m sure this must be a recognised syndrome – answers on postcard please…

A recent survey carried out by insurers AXA revealed the shock news that houses carrying the number 13 are not in fact the most unlucky! Instead their neighbours at number 33 were the most likely to suffer from flood, fire, burglary or plague (I made the last one up). Planners take note.

A Taiwanese transport authority was forced to take action in relation to the Zha-Hu metro line last year after the name of the line was proclaimed to be unlucky. Apparently the unfortunate moniker roughly translated to Scam-Bluff in the local tongue. Perhaps there is a lesson here for our friends at TIE?

And finally, keeping with the international theme, according to the customs of Bahawalpur in the Punjab, a committee consisting of 3 members is unlucky, while a council of 5 is thrice blessed. LRB aficionados may remember that the quorum for a local review body is 3!

Hmmm explains a lot….

Stopping up roads has been an issue for a number of our clients over the past few months. In each case this has been required to allow development to take place. The 1997 Act provides a mechanism for this to be done – generally where planning permission has already been granted, and it is clear that the stopping up is necessary to allow the development to proceed.

Naturally developer clients are less interested in the legal requirements, and more interested in the timescales – how long will it take, and when can development start? The bad news is that developers are largely in the hands of the planning authority here as it is of course the Council that promotes the stopping up order (for the local road network in any event), but the good news is that the majority of orders, once promoted are not contested.

Assuming a co-operative Council, and if there are no objections to the order (or objections are withdrawn after negotiation), the developer can hope for a confirmed order within 3 -4 months following the grant of planning permission for the development. Unwelcome delay, but hopefully not a showstopper.

But where objections are made and not withdrawn, the implications are much more serious. The order must be referred to the Ministers for an inquiry to be held. For one of our clients, it has taken nearly 12 months from promotion of the order to confirmation by the Ministers, despite a fairly speedy turnaround by the reporter who was appointed to hear the case.

Despite the delay, the issues were fairly straighforward: was the stopping up necessary; would an acceptable route be available after stopping up, and was it a road? Strangely enough, in some cases this last question may be the most controversial.

Thankfully for developers, examination of the order is not an opportunity for objectors to have a further pop at the planning merits of the development, and there is caselaw to support this. As with all these things, the best strategy is early discussion with the planners. While the statutory process can’t be avoided, a good working relationship with the Council will do much to smooth the path.

Happy first birthday to the new planning system! It hardly seems to be a year ago that we sat with the planning team and friends in All Bar One, Brodies’ Edinburgh Office local, to christen the new-born system (or possibly drown our sorrows).

After one year’s operation, it appears the new system has dramatically cut the number of oral* proceedings, whether inquiries or hearings, for planning appeals. Of 481 planning permission appeals submitted during the year, 12 hearing sessions have been set down of which five have actually taken place so far. Inquiry sessions have been set down in four cases, of which one has actually happened. The anecdotal evidence is that two reporters have been appearing at hearings – presumably because they are now required only in the most complex cases. Of course, the statistics have to be seen in context – the recession will have meant many fewer of the complex cases suitable for hearing or inquiry.

The other encroachment on the traditional planning appeal has been the local review body. Although there are plenty of anecdotes of rough justice, on the slim information we have so far it doesn’t look like the LRBs are producing results far different from those of the appeal system - about one third of reviews upheld. The LRB system remains relatively untested however because of the unwillingness of professional developers to rely on them.

So are the lawyers starving yet? I think it’s fair to say, one year on, that there’s still plenty to do, and I’ve certainly not been idling recently.

- Developers still need advice, particularly given the interesting quirks thrown up by the new system. How many developers have run into difficulty because of the requirement for twelve-week pre-application consultation to extend permission for a major development? How many consents have been purported to be granted by local review bodies in a deemed refusal review later than two months after the application, despite the automatic refusal at two months?

- The new appeals system involves an exchange of written submissions where a lawyer’s understanding of evidence and procedure is still key to success, especially since there may be no further procedure and the initial exchange (even the initial note of appeal) may be a one-shot opportunity.

- The latest timetable says we will have the introduction of new-style planning obligations and good neighbour agreements to look forward to by the end of this year. Planning authorities will no doubt want any minded-to-grant decision subject to a chunky planning agreement finished off before the new provisions on modification or discharge of the new-style obligations come into effect.

The government is looking at how to tackle some of the teething problems, such as the requirement for pre-application consultation for relatively minor variations to major developments. However, only a patch can be expected. Apparently no new planning act is possible this side of a general election.

So, how’s it been for you? Let us know whether you’re now more positive (or negative) about planning’s Great Leap Forward one year on.

*irrelevant note: the DPEA in its guidance refers to “aural” proceedings rather than “oral” proceedings. My Latin friends tell me that “aural” comes from auris (genitive auris) an ear, while “oral” comes from os (genitive oris) a mouth. Since they’re both pronounced the same, I suppose the correct word depends on your point of view. But what does the DPEA’s use of “aural” say about how it views the reporter’s role?