Examination of witnesses (Questions 80
- 99)
TUESDAY 28 MARCH 2000
CLLR NIGEL
ROSE, MR
BOB BENNETT,
MR SAM
RICHARDS and MR
PHIL JOYCE
80. We do not want to wind up all the planning
authorities so that there is even more delay due to their objections
before being able thoughtfully to consider the pros and cons?
(Mr Richards) Certainly. Neither do we want to wind
up the local authorities. We want to offer them some reassurance.
We can try to do that and we appreciate it if the DETR could help
us to do that.
81. So perhaps you can send us what you have
before the end of our inquiry?
(Mr Richards) Yes.
Mr Brake
82. Are you aware of any letters of apology
that the Planning Inspectorate has issued in the past year in
relation to any developments?
(Mr Bennett) There are two sorts of complaints that
one might make. One is in relation to the process being followed
in terms of, say, a public inquiry or a local hearing, and the
second sort of complaint is about the decision itself. Drawing
a parallel with the local authority, if someone complains to it
about a planning decision, there is a complaints procedure to
go through. Although it is a professional, technical judgment
we have to explain that decision and there are usually three stages
of complaint. There is the response by the individual case officer
and by myself and the chief executive. If one complains to the
Inspectorate there is, again, the black box effect; there is no
direct response from the inspector who made the decision. I think
I can understand why that is, perhaps, the case, because there
is always the risk of High Court challenges against the inspector,
and I think if they actually start to go into the reasons why
they did something they open themselves up to challenge. I think
it is sometimes helpful to third parties, applicants and local
authorities to understand the Inspectorate's reasoning and thinking
in a particular case because that might help both in terms of
presenting evidence next time and, also, in terms of actually
looking at one's policies.
83. Are you actually indicating that you are
not aware of any letters of apology that have been issued by the
Inspectorate?
(Mr Bennett) I am not sure I have ever seen any.
84. So only on very rare occasions. Can you
think of any way in which the system could be changed so that
the Inspectorate can explain its decisions and if, perhaps, necessary
make an apology without running the risk of a High Court challenge?
(Mr Bennett) I know they have a complaints unit that
receives complaints, and I think we need to set up a system in
the same way that local authorities do to simply deal with complaints.
(Mr Joyce) From my experience in Leeds, we had a problem
with a particular formal hearing in the process issue, and the
problem there was that the complaint was investigated by the Inspectorate
and there was, therefore, no independent scrutiny. So I think
our feelings are that if there was some independence here, such
as a panel, where representations could be made by the authority
and, possibly, by third parties—appellants—and the
Inspectorate could also make observations, then that would give
it some better authority in terms of process. We see that as a
possible way forward in dealing with the issue where you have
a complaint against, in this particular instance, the formal hearing.
85. Who would you see being on this panel?
(Mr Joyce) I think it may well need to be somebody
who has no involvement with the planning system but who may have
experience from other areas to apply. We have not thought it through
in detail, but there would be a need for some independence from
the Inspectorate to investigate complaints of this nature.
86. Certainly not someone from the Inspectorate,
though?
(Mr Joyce) No, I think in the same way as Mr Bennett
has just explained, it needs to have that independence. Clearly
there should be the opportunity for the inspector to make its
views known but, equally, there should be an opportunity for those
who complain to make their views known.
Mr Blunt
87. How do you feel that consistency in the
Inspectorate might be improved?
(Cllr Rose) I think there is a need for more feedback
in terms of making sure that decisions are considered in that
light. I think, perhaps, we need to think of a system where the
local authority questioning a decision does not have to go into
the High Court process. It is either "do that or do nothing",
and this does lead to frustration amongst residents because they
feel that they have argued their case through the democratic process
locally, it then goes to somebody who is parachuted in from somewhere,
who they do not know, and who makes a decision which they may
find completely bizarre, just because they do not understand the
decision. The authority itself may feel it is bizarre but, really,
more often than not, will just sit on its hands because, to be
honest, to go to the High Court is a very risky financial exercise;
unless you are absolutely 110 per cent sure you are going to win,
no local authority would lightly take that step. One of the problems
is that there is a stop at that point, and you shrug your shoulders
and say "Some decisions are bizarre, we have just got to
get on with it", and that is not very helpful to residents
and other businesses in understanding the logic. It is more likely
that the appellant could go to the High Court because, in a sense,
if it is worth it to them financially they could well take it
on board, but local residents are not going to have the wherewithal
and local authorities have not got the wherewithal to take that
approach. Going back to the point you were making initially, we
do need to have much more of a review process which is constructive
and enables local authorities to understand some of the background
and, also, to share experience, which I think does not always
show itself.
88. Are you suggesting that an inspector should
make a draft judgment on which he then has to consult the planning
authority?
(Cllr Rose) It would be very helpful if that could
be done because at least if there were any errors of fact which
emerged these could be dealt with. We had a case in my own authority
where the inspector ruled that there were sufficient parking spaces
at a residential home for the elderly and if there were not it
did not matter because people could park on the adjoining streets.
That decision was viewed as completely bizarre because the adjoining
streets are actually clogged up with cars. To my way of thinking
that was an error of fact. It might be of opinion as well but,
nevertheless, it was an error of fact. We were just stuck with
the decision at that point and it was either the High Court—and,
to be honest, arguing about car parking spaces at the High Court
would have been a complete waste of time—or we just had
to sit on our hands. However, residents, as this building is being
put up are saying "We wait for the disaster to happen".
So I think there is a bit of justice in having, within the Inspectorate,
lay people, perhaps, just looking at cases and reviewing them
in that sort of way.
89. In your experience is there any difference
in approach between inspectors depending on how old they are and
what their cultural background is?
(Mr Joyce) I am not sure whether there is any age
difference in that when you are 39 you see things one way and
when you are 40—
90. Is there a tendency, perhaps, for older
inspectors to be more pro-development than younger inspectors?
(Mr Joyce) I do not detect any change in attitudes
amongst inspectors. Clearly, they have come from various backgrounds
in the same way as planning officers and other professions have.
I think, from our particular point of view, we had a specific
case in Leeds where we had very similar proposals in the same
street submitted by the same applicant and dealt with by the same
case officer, dealt with by the same panel but, then, on going
into the Inspectorate, given to different inspectors who then
came to visit the site, considered the same evidence, effectively,
presented by the local planning authority but came to two different
views.
91. Can you give us a bit more detail?
(Mr Joyce) Basically, the submission of the appeals
were within one day of each other, they went to the same case
officer and—
Chairman
92. Can you tell us what it was about?
(Mr Joyce) It was about change of use of a shop to
an estate agents and a single storey extension. I have copies
of the decision letters with me, if you wish to see them, Chairman.
The appeals were lodged within a day of each other, both by the
same applicant and agent, we then submitted our evidence with
the written representation on appeals, the inspectors came to
visit the sites within about two weeks of each other and we received
the decisions within about two weeks of each other. One was allowed
and one was dismissed, and the analysis of the area was different
by the inspectors and the analysis of whether there was a precedent
caused by allowing the appeal or dismissing it was different in
terms of the inspectors. So our feelings with regard to this particular
case is that if the cases had been allocated to one inspector
we would have felt happier because as an authority we had allocated
both cases to one officer and we had gone to the same meeting
of the panel, so we had dealt with them as cases of a similar
nature to be dealt with. Once they got into the Inspectorate they
got split up and put into the "sausage machine" and
gone to different inspectors and there was no ability, as far
as I could see, to actually be able to pick up where you have
got similar cases running at the same time. There was no difference
in terms of the period of time, and there was no real difference
between these planning proposals, but clearly the inspectors saw
them very differently in terms of coming to the site and reaching
their conclusions.
Mr Blunt
93. Does this case or other cases demonstrate
conclusively that the problem is, really, inconsistent decision-making
on the part of inspectors?
(Mr Joyce) I think this case shows, in very clear,
stark terms, the problems that can occur when you have got very
similar cases and two different inspectors coming along and taking
different views. It is very difficult to explain to members and
local residents who have objected to the proposals as to why that
should be.
Chairman
94. Do you think there should be a set of procedural
rules for planning inquiries?
(Mr Joyce) Yes, Chairman, certainly particularly for
informal hearings. They have always been run on a more informal
basis—
95. Is it not a contradiction to have procedural
rules and then to say that they are to be informal?
(Mr Joyce) I think if we dropped the word "informal"
and called them "hearing" that might be a way forward.
I think there is a need for rigour in that particular procedure
because we have had instances where there has been abuse. We had
a particular case where a barrister turned up at the informal
hearing, with no advance word of that, and the only reason he
was there was to make an application for costs at the end of the
hearing; he had no participation in any other way. What we would
like to see, in terms of change, is, first of all, procedures
to be made more formal but, also, we feel that it should be incumbent
upon the local planning authority and the appellant to put forward
who they will be fielding at the informal hearing at the time
when they submit their final submissions, so it is clear for both
sides whether they are having planning consultants, and if there
is, for example, any idea that somebody from the legal profession
is going to be at the informal hearing there should be some explanation
as to why that should be. I think the idea of a hearing is to
take away the adversarial set-piece of a public inquiry.
96. Can I move you on to the question of Government
draft policies? Are you happy with the way that proceeds, or do
you think that draft policies are a pitfall for the inspector
and for local authorities?
(Cllr Rose) Certainly I think it is important that
there is clarity about the validity of draft guidance. As I mentioned
earlier, we are in a rapidly moving environment and revised guidance
should be indicative of recognising that change. I think it is
important that there is appropriate and due weight given to that,
particularly if government policy significantly changed and requested
local authorities to take steps to move in a particular direction.
We are, for example, all aware at the current time of the pressure
to increase densities and to avoid greenfield development. Again,
in my own authority, we had an appeal where we were arguing that
density should be increased, the appellant was saying it should
not be, we argued draft PPG3 logic and the inspector said that
it was only draft so he would ignore it. So we have ended up with
an appeal being lost by the authority which will result in, probably,
50 houses less on the site than we actually wanted. That seemed
to be very perverse. We now assume that as PPG3 is finalised,
if that appeal had been heard tomorrow, it would have stuck. So
that year's delay has created a significant issue. I guess, in
a sense, it is a feel for the certainty that that guidance is
really helping out consultation, but if the broad framework is
going to go through then that ought to be taken on board.
97. Would you like to see a shorter consultation
period?
(Cllr Rose) I think, in that particular case, the
consultation period was long and that led to some of the uncertainty—publication
was put back and so on and so forth. I think something could be
done to make the system more responsive, which is really what
we are on about.
98. Do you think more inspectors should have
special expertise or concentrate on particular issues, like, perhaps,
ones relating to heritage or to wildlife, or that sort of thing?
(Mr Richards) We have not had many representations
from authorities complaining that inspectors are not specialist
enough. Where we have, that tends to relate to the type of area
a planning application is in and we have had some representations
about inspectors in urban areas not being in tune enough with
regeneration strategies of local authorities. So I think the inspector
needs to take on board—this relates to the PPG point as
well—government guidance and draft government policy more
quickly than they do—
Mrs Dunwoody
99. Supposing the effect of the Human Rights
Act was to, in effect, distance themselves, and so far from getting
greater flexibility and response to government policies you were
to get a build-up of environmental law which put the Inspectorate
out with the planning interests of the elected members?
(Mr Richards) I think we would see that as a problem.
We want the planning system to be more flexible—
|
