Memorandum by the Council for the Protection
of Rural England (PI 16)
INTRODUCTION AND
SUMMARY
1. CPRE welcomes the opportunity to submit
evidence to the Sub-committee's inquiry into the Planning Inspectorate
and Public Inquiries. A major part of our work on land use planning
concerns planning procedures of which public inquiries and planning
appeals are a critical component. Moreover, our network of County
Branches and District Groups brings us into direct contact with
the Planning Inspectorate on a daily basis.
2. As a leading representative of third
party interests in the planning system, CPRE's concerns about
planning procedures relate as much to questions of transparency
and natural justice as to outcomes in terms of development patterns
and environmental impact. We have made detailed and influential
contributions to the evolution of planning processes over recent
years, including in connection with the review of PPG 12 Development
Plans and the Government's proposals for improving planning
appeal procedures and streamlining decisions on major projects.
We also submitted evidence to the Nolan Committee's inquiry into
Standards of Conduct in Local Government. The report of
that inquiry stressed the sensitive and potentially controversial
nature of local authority planning functions, and proposed reforms
to increase transparency and accountability in order to enhance
public confidence in the system. The Sub-committee's present inquiry
enables the role of the Inspectorate to be explored in this context.
3. In general, CPRE is a strong supporter
of the Planning Inspectorate and of the manner in which it carries
out its functions. While our representatives may not always be
satisfied with an Inspector's decision, a consistent message that
we receive from many of our Branches and local volunteers is that
the Inspectorate invariably performs its task with courtesy, efficiency
and probity. On the whole, the Inspectorate is held in high regard.
Concerns have been expressed, however, about the time taken for
reports to be completed and the extent to which they embrace the
latest policy developments. We also have concerns about the rules
governing inquiries procedures and, inevitably, the policy context
within which the Inspectorate operates. The Sub-committee's inquiry
provides a valuable opportunity to review and assess the work
of the Inspectorate against contemporary expectations, and to
explore the wider role of public inquiries and related processes
in the planning system.
4. In this context, CPRE has three sets
of issues that we would like to draw to the Sub-committee's attention.
The first, and most wide ranging, relates to the wider role of
public inquiries in planning. It raises questions about: the need
for a restricted third party right of appeal; the case for curtailing
the applicant's right of appeal; the effect of the awards of costs
system; call-in policy and procedure; the relatively high success
rate of appeals; decisions on major infrastructure projects; the
role of mediation; and inquiry procedures. The second set of issues
concerns the need for improvements in the way the Inspectorate
and independent Panels perform their role in carrying out examinations
of emerging Structure Plans and draft Regional Planning Guidance
and in Local Plan Inquiries and planning appeals. We identify
a number of anxieties about the exercise of these functions, particularly
in a period of considerable policy flux; growing pressure on its
limited resources; and rising public expectations concerning access
to, and transparency of decision-making. Many of these issues
are addressed in CPRE's current Planning for People campaign
(details enclosed) which has attracted cross-party political support.
A third area of concern relates to questions of the transparency
and accountability of the Inspectorate and Panels, and the limited
nature of the mechanisms for external review and quality assurance
for their work.
PUBLIC INQUIRIES
5. CPRE has a number of major issues under
this heading which it urges the Sub-committee to consider as part
of this inquiry:
third party right of appeal—CPRE
believes there should be a limited right of challenge for third
parties against the approval of applications which are contrary
to the development plan. This would remove the anomaly whereby
an appeal is possible against any refusal of permission, but not
for any third party to contest the granting of permission even
where this is clearly contrary to the provisions of the development
plan - a document to which sections of the community may have
devoted considerable time, effort and expertise, and which should
embody the public interest. A restricted and carefully defined
right such as this would not cause significant delays, would only
affect a tiny majority of proposals, and is essential to an effective
plan-led system. We estimate that since fewer than 0.5% of planning
applications would potentially be subject to such a restricted
third party right of appeal, claims that this would clog up the
system are greatly exaggerated. In terms of boosting public confidence,
the benefits would be considerable. In opposition, the Labour
Party argued in its policy document In Trust for Tomorrow
that there "is merit in giving bona fide objectors an
automatic right of appeal to the Environment Secretary in cases
where there has been a departure from the local plan." This
is an issue in which the Sub-committee's predecessor has a long
record of interest. There is a growing view that the incorporation
of the European Convention on Human Rights into UK law makes the
introduction of such a right inevitable, and we urge the Committee
to examine this proposition carefully;
restrict applicants right of appeal—CPRE
believes the right of applicants to appeal against the refusal
of permission for applications contrary to an up-to-date development
plan should be curtailed. This would be a logical extension of
the plan-led system and would help prevent vexatious appeals,
saving public time and money. There is also a strong case for
reducing the period for applicant to appeal against refusal from
six months to eight weeks (in line with advertisement control)
in order to reduce delay and uncertainty in the planning system;
the costs awards system—evidence
suggests that the threat of costs awards being made against local
planning authorities following a successful appeal acts as a significant
deterrent to the legitimate exercise of planning powers. We believe
the reasons for this lie in the unscrupulous, bullying tactics
used by some developers who threaten both planning committees
and objectors with this consequence. The problem is exacerbated
by undesirable practices such as "twin-tracking" (the
submission of duplicate applications) and the ambiguous wording
of DoE Circular 8/93. The interpretation of this by local authority
legal staff tends to be restrictive and, in some cases, even threatening
with councillors wrongly intimidated by threat of surcharge;
call-in policy and procedure—CPRE
is concerned about the lack of transparency and consistency in
the calling-in of planning applications for consideration at a
public inquiry. The difference in the application of national
planning guidance and policy to similar cases in different areas
can be stark. Some Government Regional Offices treat relatively
small-scale developments as significant enough to merit being
called in for public inquiry, while others may decline to intervene
in cases of regional or national significance. Despite widespread
disquiet among the public and third parties, there is no requirement
placed on Government Regional Offices to explain their reasons
for reaching a decision not to call-in a planning application.
This cloaks the application of national planning policy in mystery,
and adds to its apparent unpredictability. To address this issue,
CPRE believes that there should be nationally defined and publicly
available criteria for determining call-in decisions. Greater
consistency of approach between different regions would boost
public confidence and unjustified decisions would be fewer. There
should also be a requirement on Government Regional Offices to
explain the reasons for reaching decisions on call-in cases. This
would be a logical development of the recently imposed requirement
for planning authorities to cite reasons and relevant plan policies
when approving applications with conditions;
high success rate of appeals—CPRE
is concerned that the success rate of appeals has remained relatively
high, at around one third of all appeals, over recent years. This
encourages applicants who have had permission refused to appeal
and places an unnecessary burden on the Inspectorate. It also
increases uncertainty in the planning process and, on the face
of it, undermines the role of planning authorities and the plan-led
system. We urge the Sub-committee to explore this question with
a view to making recommendations aimed at reducing the success
rate of planning appeals in order to reduce the burden on the
Inspectorate, increase certainty and enhance public confidence
in the system;
third party funding—third
party participants in inquiries which deal with matters of national
policy are often unable to afford to make an effective contribution
to the process due to financial constraints. This engenders a
feeling of exclusion, and prevents the inquiry from benefiting
from wider public input when matters of national importance are
being debated and national policy is being developed. To address
this CPRE believes there should be guaranteed funding for public
interest groups at nationally significant inquiries. The Sub-committee's
predecessor has a long record of supporting this proposal. Where
issues of policy at inquiries are of national significance (e.g.
major infrastructure projects), funding for major voluntary sector
participants would enable a fairer examination of the policy issues,
and inform the process with wider public expertise and input.
major infrastructure projects—while
CPRE recognises that delay and uncertainty are important problems
affecting the processing of major projects through the planning
system which need to be addressed, we have serious concerns about
the Government's proposals to make greater use of Parliamentary
processes for this purpose. We strongly support the preparation
of more explicit statements of national policy to streamline this
process, provided these are developed as an integral part of the
PPG series and with full consultation on draft statements and
issues to be covered. We would not support the appointment of
an independent body to oversee the processing of major projects,
unless this was linked with the development of some form of Planning
Inquiry Commission which could examine issues of general policy
and site specific issues in a two-stage inquiry process. Care
would need to be taken to ensure that such a Commission would
benefit from and avoid duplicating the work of the Planning Inspectorate;
mediation—CPRE has
observed with interest the pilot project set up by DETR and the
Inspectorate to explore how mediations could be used to resolve
planning disputes as an alternative to traditional appeals. It
should be recognised that mediation skills are already used by
local authorities in dealing with applicants prior to the submission
of a planning applications, and this is to be welcomed. We also
welcome any initiative which seeks to tackle delays in the planning
process and at the same time achieve better outcomes. We are concerned,
however, about the confidential nature of the mediation process
which usually involves only the appellant and the local authority.
This poses serious risks that this might pose to the transparency
of the process and the ability of third parties to play a constructive
role. We would like to see these issues effectively addressed
before any decision is made to promote mediation on a wider basis;
inquiry procedures—CPRE
is concerned that planning inquiry procedures are geared more
to professional participants than the public and volunteers. Current
arrangements put unnecessary and unreasonable obstacles in the
way of the public contributing fully, particularly in relation
to tight deadlines, very limited use of weekend and evening sessions,
and a lack of opportunity to examine and respond to other parties'
evidence. These can be exacerbated by the high costs of obtaining
and/or copying documents. We believe there should be more recognition
of the needs of voluntary participants in the inquiry and hearing
procedure rules which are currently being drafted. We have welcomed
Government policy to set reasonable timetables for planning inquiries.
More attention needs to be paid, however, to the needs of public
interest groups in inquiries to avoid them being disadvantaged
by rigorous deadlines set with well-resourced, professional participants
in mind. This would improve the quality of inquiry outcomes by
allowing the process to benefit from considered public contributions.
THE PLANNING
INSPECTORATE AND
EXAMINATION PANELS
6. CPRE identifies a number of areas where
improvements are needed in the way the Inspectorate and independent
Panels perform their functions.
PUBLIC EXAMINATIONS
AND EXAMINATIONS
IN PUBLIC
7. The role of less adversarial forms of
inquiry, including Examinations in Public (EiPs) of County Structure
Plans and Public Examinations (PEs) of draft Regional Planning
Guidance (RPG) have come under scrutiny by CPRE over recent months.
We have identified a number of inconsistencies, contradictions
and procedural weaknesses which casts doubt over the fairness
of strategic planning policies. As the EiP and PE processes provide
the only independent scrutiny of emerging policies, it is crucial
for securing public legitimacy for planning.
8. Our report Fair Examination? (enclosed)
published last year exposed serious shortcomings in the independent
public scrutiny given to strategic planning policies for new housing.
These include: a striking variation in approach taken by different
EiP Panels to even the most basic issues, such as the importance
of the household projections; the sidelining of public concerns
over the local and environmental impact of new housing development;
poor understanding of environmental interests; a lower standard
of reasoning and justification than with appeal decisions; and
significant errors and misunderstandings in Panel reports. It
is also difficult to discern the separate role played by Inspectors
on the Panels.
9. Among our recommendations for reform
of EiPs we propose:
— clearer Government guidance on the
issues to be addressed;
— greater focus on policy objectives
than statistical trends;
— improved training for Panel members;
and
— a regular external audit of county
level examination procedures.
10. Our report (enclosed) on last year's
PEs into draft RPG in East Anglia and the South East identified
similar problems, as well as a number of issues which need to
be resolved if public confidence in the process is to be secured.
LOCAL PLAN
INQUIRIES AND
APPEAL DECISIONS
11. A number of appeal decisions have been
drawn to our attention over recent months where it appears the
views of Inspector's are out of step with the latest developments
in Government policy. We are led to conclude that there is a disturbing
degree of inertia in the way in which the Inspectorate translates
policy developments through to decisions on the ground. This may
well provide part of the explanation for the increased proportion
of Inspector's conclusions overridden by the Secretary of State
revealed recently in a written response by the junior Planning
Minister, Beverley Hughes MP, to a Parliamentary Question by John
Trickett MP. This shows that in 1996, 4% of Inspector's recommendations
relating to decisions taken by the Secretary of State had been
overturned, compared with around 10% in 1999.
12. The length of time (often more than
1 year following the close of inquiry) taken by Inspectors to
produce reports on Local Plan inquiries is also of concern in
this respect. By the time a Report has been published major changes
in the national and regional policy framework might have taken
place, which make its analysis and conclusions seriously out of
date. A related problem concerns the unnecessary delay in publication
of the Inspector's report following submission to the local planning
authority. CPRE has warmly welcomed the Government's recent acceptance
of the principle of a deadline for publication of an Inspector's
Report. The proposed eight-week period between receipt and publication
by a local authority is too long, however, and will add unnecessary
delay to plan preparation. We believe the time allowed for publication
of Inspectors' Reports should be much shorter. This would make
the process more open and eliminate an unnecessary cause of delay
in the plan-making process.
13. To address these issues, CPRE recommends
that consideration is given to:
— clearer guidance from DETR in connection
with evolving policy areas on the treatment of relevant planning
casework;
— a stronger role for the Government
Regional Offices in promoting changes in policy among planning
authorities through their comments on development plans and planning
applications, to provide Inspector's with a benchmark;
— greater clarity, and strengthening
of the role of the Planning Inspectorate's Policy Unit, including
significant additional resources;
— provision for specific consideration
of current policy developments as part of Local Plan and UDP inquiries,
and planning appeals where relevant;
— more effective use of the Planning
Inspectorate Journal to explore policy developments and to outline
the approach to be adopted by Inspectors;
— a specific requirement that the Planning
Inspectorate's Advisory Panel on Standards examine the effectiveness
and speed with which policy changes are reflected in Inspector's
decisions; and
reducing from eight to two weeks the
time limit for publication of Inspectors' Reports into Local Plan
and UDP inquiries.
TRANSPARENCY AND
ACCOUNTABILITY
14. Finally, CPRE is concerned that there
is much that can be done to improve the transparency and accountability
of the Inspectorate. Despite some recent improvements, there is
a relative paucity of publicly available information by which
the Inspectorate's performance can be assessed. For example, it
is very difficult to obtain useful appeal statistics broken down
by policy and geographical area. Moreover, despite the existence
of a Quality Assurance Unit, the mechanisms for quality and external
review of the Inspectorate's work are relatively limited and opaque.
15. There is a particular need to develop
measures of quality which extend beyond speed and efficiency,
and number of High Court challenges, to embrace outcomes in terms
of quality of development and contribution to environmental objectives.
This could build on the way in which the Best Value framework
is being applied to local authority planning functions, but with
a stronger emphasis on outcomes in terms of sustainable development,
as reflected in CPRE's briefing Delivering Best Value in Planning
(enclosed). This will require more systematic use of assessors
with expertise in environmental and sustainable development matters
at inquiries and examinations. In the longer term, consideration
might be given to the creation of an Environmental Court, separate
from Government, to provide more consistent and comprehensive
decision-making and improve the body of environmental expertise.
16. There is also a need to improve the
learning culture within the Inspectorate to provide more opportunities
for sharing experience, pooling ideas and circulating decision
letters and inquiry reports. This would help to reduce isolation
in the way in which the Inspectorate operates and improve the
quality of results.
17. We are also particularly concerned about
the transparency and representativeness of the Inspectorate's
Advisory Panel and its relationship with the Inspectorate, and
the failure of the Council on Tribunals to play a more proactive
role in improving standards.
18. CPRE therefore urges the Sub-committee
to consider the need to:
— develop measures of quality for the
Inspectorate which embrace outcomes and environmental objectives,
possibly based on the Government's Sustainable Development Strategy,
as well as speed and efficiency;
— promote the more systematic use of
assessors at inquiries and examinations;
promote greater openness in the way
in which the Inspectorate, and its Policy Unit, deals with policy
change, including through regular briefings by DETR officials
and external bodies, and wider availability of appeal statistics;
— make publicly available the Handbook
which the Inspectorate maintains on procedures and approach, including
on the internet;
— broaden the representation of interests
on the Advisory Panel, to include third party interests, and make
its deliberations more transparent and accessible by publishing
agendas, minutes and papers; and
— encourage the Council on Tribunals
to play a more proactive role in promoting improvements in standards
in the Inspectorate and Panels.
CPRE
February 2000
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