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Select Committee on Environment, Transport and Regional Affairs Memoranda


Memorandum by W H Deakin (PI 09)

  This memorandum is submitted in regard to the inquiry to be held by the House of Comons Environment Transport and Regional Affairs, Environment Sub-committee into the Planning Inspectorate and Public Inquiries.

  The views expressed are my own and do not purport to represent those of any of the organisations I advise.

  Most of my recent experience has been with Inquiries into Development Plans and major projects, and mostly but not solely in South East England.

1.  PERSONAL INTRODUCTION

  I have had some 50 years experience as a chartered town planner, in County local government until my retirement in 1987. I was for 14 years County Planning Officer of Kent and my experience covered preparation of Structure and local Plans, urban and rural planning issues, major projects such as Channel Tunnel and the associated railway, regional planning in the UK and near areas of Europe. I have been involved in many planning inquiries, and in Royal Commission and Parliamentary Select Comittee hearings.

  Since retirement I have advised a range of organisations on planning issues, including CBI, DTI, aggregates and development companies, Eton College, and Port and Airport operators. These activities have brought me in touch with a range of planning inquiries.

2.  INCREASING IMPORTANCE OF THE PLANNING INSPECTORATE'S WORK

2.1  Changes in planning system

  The Planning Inspectorate is more important today than at any time since the present series of Planning Acts started in 1947, and its importance is still increasing. This is because:

    (i)  Section 54A of the Town and Country Planning Act 1990 radically altered the way that planning decisions on applications are reached. Prior to that there was a presumption in favour of development, except in the Green belt, unless good public planning reasons dictated otherwise. S54A makes the Development Plan the determinant of decisions unless "material considerations" indicate otherwise. This is the "plan-led system", which reversed the onus of proof for applicants for planning permission.

    (ii)  The advent of S54A coincided with general politicisation of local planning authorities, and with widespread anti-development sentiment among the public. At the very time therefore that Development Plans assumed the key role in deciding what development would be allowed, local authorities were influenced to seek populist planning policies. This was accompanied often by measures to muzzle planning officers and make it difficult for persons affected by planning policies to uncover the planning basis for them—despite freedom of information measures.

    (iii)  At the same time there developed the commitment by Government to the pursuit of sustainable development. Although expressed in Government strategy and advice as a range of policy objectives balanced as between economic, social, and environmental matters, in practice at local planning authority level sustainable development is often used to obscure and complicate planning, and to conceal policies and decisions that lack a good planning basis.

2.2  Effect of the changes for the Planning Inspectorate—Inquiries into Development Plans

  These changes have made the role of the Planning Inspectorate more difficult and more important. Many development plans are over long and complex, contain large numbers of policies not all of which are mutually consistent, and in effect comprise a compendium of possible reasons for refusing permission to any development which the local authority thinks likely to be unpopular. An Inspector conducting an inquiry into objections to such a Plan faces severe difficulties. He is not employed to improve a Plan he may conclude is seriously faulty; his role is to consider objections. No objection may be received to policies that are hard to decipher and disentangle, and which would in any case require much time and money to contest. So the real flaws in a Plan may well not fall to him to consider.

  2.3  The Inspector although independent reports to the authority which prepared the Plan. The authority is not bound by the Inspector's advice. The Inspector does not have endless time or resources; even so it is common for local plan Inquiries to last many months, and for preparation of the report to take most of a year after close of the Inquriy. These features impose considerable mental and physical burdens on Inspectors. In the result many long, complex, confused and confusing Local Plans emerge from the Inquiry process not greatly improved. It has been known for them to be made worse.

2.4  Effects for the planning appeal system

  As many Development Plans become more opaque and complicated, and more biased towards preventing development, the need for persons to be able to test the system effectively becomes more acute. Apart from the legal challenge route (not dealt with here) the only remaining means is by lodging an application and, if refused, pursuing an appeal, Whereas prior to S54A appeals could be decided on the merits of the case, taking due account of the development plan's policies, now an appeal decision must accord with the Development plan unless there are compelling material considerations to permit a different decision. An appellant will have the odds stacked against success unless he can demonstrate that such considerations exist and/or that the planning authority has applied the Development Plan mistakenly. As a result many would be appellants are put off, and those that persist are obliged to put forward a case that re-examines many aspects of the Development Plan, and relevant Government planning advice, and countervailing material considerations, if there is to be a chance of success. The Inspector is faced with the substantial task of absorbing, considering, and weighing all of that material, and of demonstrating that he has done in reaching a decision if the risk of legal challenge by a disappointed party is to be avoided.

2.5  Effects of increasingly complex Government planning guidance

  The task of an Inspector in giving due account to Government planning policy advice, in the shape of PPG's, MPGs , and major strategy documents such as the Strategy for Sustainable Development is made more difficult by the fact that the volume of such advice has increased by several orders of magnitude in the last twenty years. The advice is generally sound, and necessary, but it is not integrated into one body of sound practice, it is frequently revised and revision dates vary from one document and subject area to another, and it is sometimes, not surprisingly inconsistent.

2.6  Conclusion on increasing importance of Planning Inspectorate

  So there is now a planning system in which the Development Plan rules, but the Plans on which it relies are too long, too complex, opaque, and often anti-development; where Inspectors at Plan Inquiries have an immensely difficult task and little real chance of correcting a bad Plan; and where the final remedy for the public whose interests are not served by a Plan, the resort to appeal, is high risk and expensive. An appeal Inspector faces a task (at an Inquiry usually lasting weeks or days) that is often hardly less daunting than that which faced the Plan Inquiry Inspector (at an Inquiry often occupying months).

  2.7  It is for these reasons that the role of the Planning Inspectorate today is more important, and more difficult. The response to that by the Inspectorate has not been wholly reassuring, for reasons which the rest of this submission examines. One consequence is that, although the Inspectorate is still seen as independent and incorruptible, rightly, there is less satisfaction with the outcome of planning inquiries into Development Plans and appeals among people who regularly use the planning system than used to be the case.

3.  CAUSES OF DIMINISHED CONFIDENCE IN THE PLANNING INSPECTORATE

3.1  The Inspectorate as a career

  The Inspectorate has never offered an attractive career option for most planners, except when jobs elsewhere have been scarce. It involves a lonely life, responsibility without the support of a team, stress, less than generous pay and allowances, much travelling and time away from home. As a generalisation the Inspectorate has not attracted talent—though like all generalisations, that takes no account of the exceptions, of whom there are shining examples. But they are a too small minority.

  3.2  Before 1973 the Inspectorate was in a better position to attract talent, because there were few jobs in planning that offered individual responsibility outside County Council and big city planning departments. There were few consultancies of any size. In 1973 the Heath-Walker local government reforms created hundreds of senior planning jobs at a stroke and transformed the prospects for career advancement. Since then, moreover, planning consultancy has flourished.What limited attraction a career in the Inspectorate offered before 1973 has largely disappeared since.

  3.3  At the same time the tasks facing planning inspectors have become more demanding, for the reasons outlined in section 2 of these notes, above.

3.4  Increased complexity of Development Plans

    It would be difficult to overstate the importance of the Inspector's role in Development Plan Inquiries, because of the "plan-led" system stemming from S54A. At Development Plan Inquiries the Inspector frequently is faced with a long and complex Plan, hundreds of objections, a complex and changing background of Government planning guidance to which attention must be paid, and pressure to complete the Inquiry process to a timescale. As an example, by no means an extreme one, a draft Local Plan I have before me is over 250 pages in length, has 159 policies, yet covers a period only to 2006. The task facing an Inspector in such a case is unrealistically complex. There is the need for Inspectors to reflect the Government's desire to see a full coverage of Development Plans in the near future, yet an Inspector may find himself with a Plan for which the best course would be to remit it to the planning authority for reconsideration. In a recent Minerals Local Plan case the Inspector's conclusions as to the Plan's inadequacies clearly pointed to that course, but instead a fudged and unsatisfactory set of recommendations resulted. Inspectors should be able to address the quality and effectiveness of Plans at Inquiry and not just objections that happen to be lodged.

3.5  Quality of Inspectorate; role and authority

  There is a growing impression that many Inspectors do not have the ability and experience for Inquiries that are other than straightforward. My own view is that many Inspectors appear to lack the authority and therefore the confidence to do more than apply local and central planning policies, without taking proper account of the evidence heard at the Inquiry. Some Inspectors' reports show either an inability or an unwillingness to listen to, weigh, and apply evidence. Some appear unwilling to countenance searching cross-examination of witnesses where severe and protracted questioning is necessary to elicit facts for the basis of decisions. It is difficult to blame Inspectors altogether for this, given the evident predeliction of DETR to reduce cross-examination, and to encourage "round table discussion" at some inquiries and examinations. But the importance of Development Plans in the plan-led system, and the faults in Plans outlined in section 2 above mean that a willingness to allow severe questioning, and an ability to understand its purpose, and to weigh and apply the resulting evidential findings, are crucial to an Inspector's role in the planning system.

4.  WHAT SHOULD BE DONE TO IMPROVE MATTERS?

  4.1  My knowledge of the internal workings and disciplines of the Inspectorate is nowhere near enough to enable me to propose a comprehensive or foolproof remedy. The following suggestions therefore are partial and for testing against other considerations.

4.2  A new class of Inspector

  There should be a distinct class of Inspector created to deal with big issues, complex or controversial schemes, and with Inquiries into Development Plans. Pay and conditions should be such as to attract, for example, barristers with suitable experience. The present rank of senior Inspector is not enough. The planning system imposes large but uncalculated costs on business and the public; adequate funding of a first class Inspectorate is a necessary concomitant of that. If it cannot be afforded we cannot afford such a restrictive planning system. Recruitment should not be confined to planners, in fact, it is likely that the majority of entrants would not be planners. The new class should not be seen as a semi-automatic route for promotion of existing Inspectors. Experience outside central or local government should be seen as an advantage.

4.3  Wider powers for Inspectors

  The new class of Inspectors should be given wide powers and encouragement to conduct Inquiries so as to promote efficient use of the planning system. When involved in Development Plan Inquiries, for example, they should be empowered to carry out an initial assessment of the Plan professionally, so that Plans that are clearly inadequate can be remitted to the local authority without expense of an Inquiry. In an Inquiry the Inspector should control events as to what it will be useful to hear. He should be able to direct attention to matters that are not the subject of objections. The Inspector should be familiar with the purposes of evidence and how to evaluate it, and not simply concerned with interpretation of local and central government policies.

4.4  Consolidation of Government guidance; prioritisation

  Government planning guidance should be integrated and made consistent so that it is easier for Inspectors to interpret and apply. Revisions of guidance should be comprehensive, not piece-meal. A clear interpretation of Government policy for sustainable development is very desirable, including its application to specialist areas, such as aggregates and minerals policy. Moreover Government planning guidance should contain specific advice how conflict between objectives should be approached. Much guidance now sets out worthy objectives topic by topic, with injunctions for reconciliation and integration between one objective and another. This ignores the fact that where reconciliation is possible there is no problem; the difficult issues for Inspectors arise when the conflict is real and irreconcileable, and priority has to be given to one objective over another. It is in those circumstances that an Inspector is left lonely and vulnerable and Guidance should not dodge those issues.

W H Deakin


 
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