Memorandum by Marks and Spencer plc (PI
01)
1. INTRODUCTION
1.1 This Memorandum of evidence is being
submitted by Marks and Spencer plc. The Company has over 260 stores
in town and city centres, 21 edge-of-town stores and is represented
in over 650 locations worldwide.
1.2 The Company also has an active expansion
programme for stores in England, in the form of both extensions
to existing stores and the development of new stores. As such,
the Company takes an active interest in the formulation of planning
legislation and policy guidance, particularly insofar as both
affect the ability of the Company to plan and implement future
investment.
1.3 Marks and Spencer support the consideration
currently being given by the Government to revising procedures
for planning appeals and inquiries. We would expect the review,
under the "Modernising Planning" initiative, to clarify,
strengthen and improve such procedures. We will be commenting,
as in the past, on any relevant consultation exercise undertaken
by the Department of the Environment, Transport and Regional Affairs
(DETR).
1.4 The Company has considerable experience
of the appeal and inquiry processes in England. In our view many
of the parts of the current system work well particularly up to
and including the inquiry itself. However, we believe there are
areas where improvement is needed, in particular those of consistency,
speed and transparency. We consider these to be critical in this
element of the planning system, if it is to achieve objectives
of facilitating development where no harm will arise, ensuring
consistent implementation of Government guidance and development
plan policy, and maintaining the confidence of users of the system
in both private and public sectors.
1.5 In the light of these views and with
reference to the House of Commons Sub-committee Inquiry, there
are two principal issues of relevance to the Company, which are
to be examined—
— the consistency of decisions made;
and
— compliance with timetables.
1.6 We are also concerned that the process
of decision-making and the relationship between the Inspectorate,
Government Offices and the Secretary of State should be set out
clearly and the process should be open and transparent. These
issues are therefore discussed below, with our suggestions on
improvements to the current system being shown in bold typeface.
In formulating these suggestions, our planning advisors (Nathaniel
Lichfield & Partners Ltd) who have wide ranging experience
of the Inquiry system have spoken to a variety of sources, seeking
to establish the details of stages involved in the appeal and
Inquiry process.
2. THE CONSISTENCY
OF DECISIONS
MADE
2.1 We have stated above that consistency
is critical in the appeals element of the planning system. Currently
we believe there are problems with inconsistent decisions on applications
and appeals. Our concerns relate both to decisions taken by Inspectors
and those taken by the Secretary of State after call-in inquiries
and appeals. There are also timetable implications for such decisions,
as outlined below.
2.2 While every case is unique, if the appeals
system is to generate confidence in its users then consistent
decisions should be made on the basis of the evidence given, irrespective
of the identity of the Inspector or whether an appeal or application
is recovered or called-in by the Secretary of State. Currently,
this does not appear to be the case but we believe it must be
the aim for the Inspectorate and Government. As an example, two
inquiry decisions on proposed store extensions at Bursleden and
Hedge End in Hampshire issued in 1997 against the same national,
structure and local plan policy context resulted in very different
interpretations of policy by two differing Inspectors. In the
Hedge End case the decision was finally made by the Secretary
of State. We do not repeat the details here but following a high
court challenge to the Hedge End decision the Secretary of State
submitted to judgement and that decision was quashed in recognition
that some of the policy interpretation of the Inspector and Secretary
of State was flawed.
2.3 In the case of decisions made by Inspectors,
it is perhaps inevitable that there will be some differences,
for example in the interpretation of Government policy, or the
weight given to different aspects of such policy. However, we
can see no reason for such differences in policy interpretation
when the Secretary of State is the final arbiter.
2.4 At the outset, the most effective way
of minimising the prospects of different approaches taken by Inspectors
would be by ensuring that policy documents which form the basis
for the approach to appeal determination are clear and unambiguous.
More clearly set out and explained criteria-based policies and
guidance may help both Inspectors and users of the development
control system. Further improvement may be possible through training
and a clear policy of developing Inspectors' specialist experience
in subjects which require particular technical expertise. While
this may already happen to some extent, we believe greater emphasis
should be given to this process with the nature of training and
specialisms of Inspectors being made public.
2.5 Consideration should also be given to
amending the appeal form, to allow the appellant to confirm whether
the proposal raises specific technical issues, requiring an Inspector
experienced in a specific area of planning or associated field.
2.6 The lack of transparency in the processing
and determination of applications and appeals by the Secretary
of State makes it difficult to comment on the reasons for the
inconsistent approaches taken. We believe this part of the process
should also be made more transparent, with the relationship between
the Government Office and the DETR/Secretary of State clearly
explained and the system being seen to deliver decisions based
purely on land use planning grounds, with no political interference.
Initially, the publication of a guidance note itemising the steps
taken in the regional Government Office and the DETR, and by the
Minister would be of very considerable assistance to appellants
and all inquiry participants alike. Such a guidance note should
deal with the processes undergone both in considering whether
an application should be called-in and in the determination of
a recovered appeal, or called-in application by the Secretary
of State.
3. COMPLIANCE
WITH TIMETABLES
3.1 Any proposed changes to the appeals
system must contribute positively to the aim of speeding the issuing
of appeal decisions. There must however not be any undermining
of the principle of the right to be heard, nor the quality of
decisions themselves. While timetables for the submission and
exchange of evidence provide useful guidelines for appellants,
local planning authorities (LPAs) and third parties, there are
no effective sanctions in place for dealing with late documents.
There are proposals for tightening up procedures and timetables,
which were subject of consultation in late 1998, and we expressed
our general support for certain of the changes to the hearings'
and inquiries' procedures. These included the possible imposition
of costs for late submissions eg for hearings, or perhaps more
effective still, that such submissions should normally be disregarded.[8]
3.2 Our general view is also that the exchange
of "Statements of Case" and evidence is not necessarily
the most efficient way of achieving a fixed timetable for written
representations appeals or achieving an agreement of issues proceeding
an Inquiry. We support proposals to require that development plan
policies be specified on refusal notices and in relation to appeals
against non-determination, in providing greater clarity in the
appeals process. We often find that it is not clear from the grounds
of refusal what the justification for an LPA's concern is, and
this only emerges from their Statement of Case.
3.3 Particularly with the written representations
procedure, appellants should not have to state their full grounds
of appeal and make all their further submissions, without a full
understanding of the LPA's case. The absence of knowledge of the
full LPA case may well lead to the appellant addressing unnecessary
issues, or not addressing all those that are relevant. Neither
consequence is conducive to an efficient consideration of those
issues.
3.4 A written representations system where
the LPA sets out their full Statement of Case first, that then
allows the appellant to respond to additional points not covered
in their grounds of appeal, ensures that comments are focused
on the issues. We therefore consider that the LPA should present
their full case first. The appellant should then respond. The
LPA should have a chance to respond to any issues raised by the
appellant and the appellant should have a further right of response,
but only on new issues raised in the LPA final response. This
approach, although taking slightly longer, would lead to a far
more efficient examination of the issues, would prevent any tactical
delays in either side presenting their case and would therefore
make any timetable more likely to be adhered to.
3.5 Previous proposals for improving the
appeals system have also included the requirement for statements
of agreed facts and other matters, but their implementation would
require primary and secondary legislation. In our view, the current
system is working relatively effectively and changes should preferably
only be made if they do not require new legislation thus avoiding
likely delay and further uncertainty for the development industry.
The existing system should be built on, with changes to timetables
and advice on adherence clarified if at all possible only through
new good practice guidance.
3.6 Finally, on the issue of compliance
with timetables, we would welcome the Inspectorate introducing
the proposal that Inspectors give an estimate of the time it will
take to deliver a decision. This will help very considerably in
providing greater certainty in our and any other applicant's/appellants'
development programme.
3.7 The Government's Regional Office should
do likewise for a Secretary of State decision, where the greatest
uncertainty and delay in the appeals procedure lies. Once an Inspector's
Report and recommendations are passed to the Secretary of State
for decision, there is currently no information available on what
timetable is involved for the processing of individual cases,
or indeed what the precise process of decision-making is. There
are frequently long and seemingly unjustifiable delays between
inquiry and determination, even though we are aware that there
are guideline times for when a decision should be issued, a certain
number of weeks after receipt in the Government Office ie of the
Inspector's Report and recommendations.
3.8 We believe this lack of transparency
and speed undermines the credibility of the Inquiry system as
an efficient method of determining call-in applications, and appeals,
In a situation where all the issues have been thoroughly debated
and reported on by an Inspector, the decision should be made purely
on planning grounds and should be capable of being made within
a predetermined time period by the Secretary of State.
3.9 Legal and any other queries requiring
discussion with other Government offices/departments should not
be allowed to create delay, preventing achievement of target timetables.
It is unclear what benefits can be added by further civil servant
intervention. Duplication is a more likely outcome of the process.
3.10 In recommending any changes to the
operation of the Planning Inspectorate and Public Inquiries, the
Sub-Committee should accept that appeals, and particularly those
taken to Inquiry, can raise complex issues. Prior to and during
planning inquiries, all parties must be allowed to put their cases
fully, to question witnesses and to challenge evidence. Timetables
which are too rigid will frustrate these requirements and could
undermine the right to be heard. A very careful balance has to
be found, and the current system, up to and including the inquiry,
is not far from it, for testing and debating issues in full, and
in public.
4. CONCLUSIONS
4.1 The lack of consistency in decision-making
in the appeal and call-in processes is a concern. Clear and unambiguous
policy statements would assist in increasing consistency between
Inspectors, as would focussing specialist Inspectors on particular
land uses where technical issues are unique to that land use eg,
retailing. While this currently appears to happen to some extent,
and we are aware that more technical assessors are being recruited
and used, this approach may need to be applied more consistently.
4.2 We believe that much of the Inquiry
system and the Inspectorate's involvement in it works well. However,
the process can be slow, primarily when the Secretary of State
intervenes. There appears to be no justifiable reason for the
delays in the process caused by the Secretary of State's involvement.
The absence of any clear and public explanation of the process
which is being undertaken or commitment to a timetable is frustrating
and costly for applicants/appellants, while also creating uncertainties
for others involved in or affected by decisions.
4.3 Therefore the apparent lack of consistency
by the Secretary of State in decision making should be addressed
and the process of determination by the Government Office and
Secretary of State should in all cases be made more transparent.
This is necessary, if confidence in the inquiry system as an independent
process for determining planning applications and appeals is to
be achieved.
4.4 We believe transparency should be an
objective throughout the decision-making process, whether this
be in disclosing or disseminating information to Inspectors on
matters such as the interpretation of policy, or informing interested
parties of the relationships between the Government Office, the
Inspectorate and Secretary of State, the timetables they are working
to and the necessary steps in the process of issuing decision
letters.
8 Source: The Planning Inspectorate: Statistical Report
1998/99, tables 2-6 and 9-13. Back
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