Memorandum by Birmingham City Council
(PI 42)
INTRODUCTION
It is important to stress at the outset the
high regard that the City Council has for the Planning Inspectorate
and in particular the professionalism and independence that pervade
all of its activities. Our perception is that these qualities
are widely shared by all those who have involvement in the development
process, not least the general public.
We see the following as the key attributes/requirements
of the public inquiry system:
— A means of settling disputes on the
basis of sound judgement and consideration of all the relevant
issues.
— Speedy completion of the process
is in the interests of all parties.
— Must be transparent and comply with
the principles of natural justice.
— The process should be efficient and
not wasteful of resources.
Our observations on the issues to be examined
do not raise many issues about the Inspectorate itself but centre
on questions such as:
— Does current practice deploy resources
to best effect?
— Are public inquiries always necessary?
— Could the process be altered to make
it quicker and cheaper without real detriment to the quality of
decision-making?
The Sub-committee's terms of reference set out
a number of issues that will be examined as part of the inquiry.
The City Council's observations in respect of each of these are
set out in the following sections.
DETAILED OBSERVATIONS
1. THE RELATIONSHIP
BETWEEN THE
INSPECTORATE'S
INTERNAL TARGETS
AND THE
QUALITY OF
THE DECISIONS
MADE
No comments.
2. THE CONSISTENCY
OF DECISIONS
MADE
In the West Midlands Region there have been
concerns raised over the consistency in the approach of Inspectors
Reports into development planning issues such as the approach
towards the accommodation of long-term development needs in Green
Belt and provision of affordable housing. Insofar that these have
been challenged the Inspectorate or Government Office have suggested
that the differences can be explained by particular local circumstances.
We are not entirely convinced and would suggest that a lack of
clarity in government policy and apparent lack of briefing to
Inspectors may also be contributory reasons. If our assertions
are correct then we would suggest that some changes to the operation
of the development plan inquiry process might be in order (see
observations under 3 below).
One possible course of action might be to establish
a well-publicised complaints procedure.
3. THE RELATIONSHIP
BETWEEN THE
INSPECTORATE AND
GOVERNMENT OFFICES
In respect of development plan inquiries we
consider that there may be some benefit in the preparation and
publication of briefs to Inspectors prior to the commencement
of public inquiries. This could have two principle benefits:
— Significant amounts of inquiry time
could be saved. For example, if the Government Office prepared
a brief which stated that the development plan should conform
to the overall level of new housing provision set out in Regional
Planning Guidance then long and tedious inquiry sessions questioning
the Secretary of State's Regional Guidance could be avoided. That
would not stifle a debate taking place at all but displace it
to the next review of the RPG. If a situation arose where the
local planning authority proposed a level of housing at odds with
both the RPG and Government Office brief then at the very least
the parameters of the debate would have been more tightly focussed.
— The brief to the Inspector could
also clarify government policy within a regional context. It could,
for example, define the extent to which long-term development
needs could be taken into account thus ensuring consistency of
approach within each region.
If such a proposal were adopted it would be
very important that any brief should be published well in advance
of the public inquiry. Strong reservations to its content could
be raised publicly at the pre-inquiry meeting.
A second major issue in relation to development
planning concerns the entire "scrutiny" process operated
by government offices. This often leads to a situation where the
Government Office submits objections to a development plan. Our
experience suggests that this activity is not only time consuming
(and arguably duplicating the role of the local planning authority)
but it also leads to a type of objection that appears to be given
a greater degree of status in the inquiry process. We consider
that this issue could be very easily addressed by requiring that
the Government Office should present its objections orally at
the public inquiry and thereby place itself open to cross-examination.
We consider the effect would be to reduce the level of Government
Office involvement, lead to greater subsidiarity and above all
help remove a degree of haziness that surrounds government intervention
in the development planning process.
Following the recent Warwickshire Structure
Plan Examination-in-Public the Government Office for the West
Midlands intervened in a most unusual way. The Warwickshire Panel
Report recommended that the County Council should revise its affordable
housing policy. GO-WM did not agree with the revised policy and
suggested to the County Council that the Panel's conclusions did
not accord with national policy and that the Panel had misunderstood
the issue. The Warwickshire Panel Chairman subsequently refuted
these claims! While we accept there are circumstances where the
Secretary of State might wish to take issue with the outcome of
an inquiry we consider that this should not be a matter that is
within the domain of the Government Office. It was fortunate that
in the Warwickshire case the papers were in the public domain
and that representations were able to follow. We wonder if there
might be other circumstances where papers or correspondence that
relate to inquiry proceedings and thereby planning decisions have/are
not made publicly available. It is clearly very important for
the integrity of the whole public inquiry system that all papers
are within the public domain.
Moving from development plan to planning control
issues we have further concerns about the role of the Government
Office. In our view there have been instances in the recent past
when GO-WM has acted to call-in planning applications unnecessarily
leading to excessive delays, higher costs and Government intervention
in matters that should rightly have been dealt with locally. Three
examples spring to mind. Top of the list is the proposed Arena
Central development in the City Centre.
This major mixed use City Centre project is
very much in line with national, regional and local policy principles
of urban concentration and regeneration and has a close fit with
Birmingham's nationally acclaimed City Centre Design Strategy.
It was submitted mainly in outline, and although a large proposal
(including a tall tower) it is widely accepted as appropriate
and non-controversial in Birmingham—not just by the City
Council. There is also strong support from resident and business
representative groups. The call-in focused to a considerable extent
on design issues. It was never clear what national policy issues
were at stake. The City Council saw Arena Central as a potentially
positive regeneration project and the scheme was put through extensive
and open public and expert consultation, technical analysis and
negotiated amendments—a process which took five months—before
being "minded to approve". In contrast the call-in process
has taken almost two years thereafter. Both the developer and
local authority remain unclear as to what issues are being addressed
and frustrated by a "distant" process that is essentially
dealing with matters of detail that should be decided locally.
The second case relates to a proposed Tesco
foodstore in an out-of-centre site upon which the City Council
was minded to grant consent. In this case all the evidence suggested
that there were no alternative sites available either within or
adjacent to existing centres and that the retail impact assessment
showed no over-riding adverse impact on existing centres. While
there were local objections to the proposal these had been taken
into full account by the City Council's Planning Committee in
arriving at its "minded to approve" decision. It appears
to the City Council that the call-in decision related to the out-of-centre
retail proposal. What seemed to have been forgotten is that a
consequence of the sequential test is that in certain circumstances
out-of-centre retailing is permissible. If this is not the case
then the action that should be taken by Government is clear—Planning
Policy Guidance Note 6 should be revised to insist that all retail
development takes place in-centre.
The third example is, perhaps, the strangest
of the three. This concerned a proposal to develop a retail warehouse
park adjacent to the Ring Road in Birmingham—in accordance
with the policy set out in the Birmingham Unitary Development
Plan and Supplementary Planning Guidance. This proposal was called-in
even though no objections had been submitted, apparently on the
grounds that the Government Office considered the proposal to
be in conflict with Government policy.
In cases where applications are referred to
the Government Office, either under the Shopping Direction, or
for other reasons, we have noted an increasing tendency for interested
parties to submit representations either in favour of, or opposing
call-in. At present there are no procedures governing this process.
It seems to us that in the interests of fairness and openness
some protocols should be put in place, for example that matters
of factual accuracy are dealt with appropriately and that any
submissions be made known to all interested parties. However,
it is also important that this stage does not become an inquiry
process in its own right and so our view is that interested parties
should be discouraged from making lengthy submissions, which inevitably
encourage further submissions from the other parties. The principle
should be that the Secretary of State will reach his view on the
basis of the same material submitted to the local planning authority
when it considered the application.
The City Council would conclude that a review
of the role of Government Offices in both the planning control
and development plan areas is called for. We would strongly argue
that intervention should be used far more sparingly and that the
principles of subsidiarity should be vigorously applied.
4. THE ABILITY
OF THE
INSPECTORATE TO
ADJUST TO
CHANGING WORKLOADS,
INCLUDING THE
USE OF
NEW TECHNOLOGY
AND THE
VOLUME OF
LOCAL PLAN
INQUIRIES
The volume of paperwork in local plan inquiries
can be frightening and it makes sense that every effort should
be made to apply the benefits of new technology.
The Draft Alterations to the Birmingham Unitary
Development Plan will shortly be published for public consultation
and we are working to maximise the use of computer technology,
for example by scanning consultation responses directly into a
database and publication of material via the internet. We expect
the initial time and investment in developing these systems will
pay dividends later in the process.
Nevertheless, we feel that the overall management
of plan preparation, consultation and the inquiry process is very
important and that poor decisions at the outset could lead to
potentially crippling delays later on. For example, a badly prepared
plan—perhaps one that contains too much detail—could
prompt an avalanche of objections and paperwork. On the other
hand, however, we would be equally concerned if the desire to
limit the number of objections and length of the inquiry process
led to the preparation of a plan which failed to address the real
and difficult issues.
On a more detailed note we recall that our dealings
with the Inspectorate were complicated during the preparation
of the original plan through their use of effectively non-standard
and out-of-date computer equipment. Even now requests for electronic
documents from DETR are not in the most common and widely used
formats!
5. THE TREATMENT
OF COMPLAINTS
TO THE
INSPECTORATE
Please see comments under 2 above.
6. THE IMPACT
OF HUMAN
RIGHTS LEGISLATION
The City Council is highly committed to extensive
and effective public consultation. Ethnic minorities make up in
excess of 20 per cent of the City's population and therefore production
of documentation in a variety of formats has been a feature of
public consultation for some time.
The summary material for the forthcoming UDP
consultation will include the preparation of audio tapes in five
ethnic minority languages. We will also make the provision for
face-to-face meetings with interpreters should this prove necessary.
In addition an English version will also be prepared for the visually
impaired. There are financial implications arising from these
commitments but these are matters that have to be addressed.
7. RECRUITMENT,
TRAINING AND
EQUAL OPPORTUNITIES
No comments.
8. PUBLICISING
PUBLIC INQUIRIES
It is a fact that attendance at most public
inquiries are high on day one but then quickly tail off. By definition
the hearings must be in public and there is a strong case to allow
some sessions to be held outside of normal working hours.
We have no strong concerns about this issue
because public awareness and involvement in the planning process
depends to a much greater degree on the quality of the public
consultation carried out during either plan preparation or prior
to the determination of a planning application.
9. ASSISTANCE
FOR PARTIES
TO INQUIRIES
The format of most public inquiries is of a
quasi-judicial hearing with legal representation and expert witnesses.
There is no doubt that such a format can add significantly to
the length and cost of the inquiries. Whether the quality of decision-making
is improved as a consequence is a moot point! A key effect of
the style of most public inquiries is that they become very adversarial,
very detailed and very difficult for the non-professional to become
involved.
Our experience is that more informal hearings—such
as a round-table session at a development plan inquiry—greatly
assist the decision-making process and generally lead to a better
quality of discussion. We consider there to be a strong case to
extend the use of this type of hearing and would, for example,
envisage using this approach for large sections of the public
inquiry into the UDP Alterations. At our first UDP inquiry the
adversarial format was used throughout.
A big issue for the City Council is the resources
that are tied up in public inquiries. There is no doubt that the
whole process is very time-consuming and the effect is to divert
attention from—arguably—much higher priority work.
In circumstances where the inquiry seems unnecessary—see
3 above—this is of particular concern.
Another matter we would wish to raise is in
relation to the length of some public inquiries and to query whether
this really leads to a better quality of decision. We wonder if
there were some sort of time limit placed on time available to
present a case might help focus minds and provide inspectors with
a far clearer basis for making a speedy decision. We doubt there
are many developments where the case in support, or against, could
not be effectively expressed in one inquiry day. There are many
instances where it takes far longer and we doubt that the decision-making
process is effectively improved. Cross-examination might also
require curtailing. One way might be for advocates to make a statement
on the scope of their intended questioning to the inspector and
if this cannot be achieved within the prescribed time—perhaps
as a result of an obstructive witness—then the issues could
be directly addressed by the inspector in his/her questions.
There may also be some scope for greater use
of pre-inquiry meetings to seek agreement over the key issues
in advance.
10. COMPLIANCE
WITH TIMETABLES
Failure to produce evidence to a pre-determined
timescale without doubt hinders the smooth running of the inquiry
process. In our experience, however, most parties make the effort
to comply. We support the usual practice that failure to comply
might either remove the right of appearance or lead to the loss
of a participant's place in the inquiry timetable.
We strongly consider that agreed timescales
should apply to other participants in the process and in this
respect our experience is that decision-making can be subject
to extraordinary delays with there apparently being a pretty good
correlation between length of delay with seniority of the decision-maker!
The worst example we are familiar with is the four years it took
for the Secretary of State to issue his decisions in relation
to the M42 Premium Industrial Site applications.
Our suggestions for trying to shorten the length
of inquiries are important as the longer the hearing the more
paper that is generated and the longer the report writing time.
It is interesting to note that there is no limit to the length
of evidence presented at public inquiries unlike the six A4 sides
requested by this Sub-Committee. Again we would make the point—would
the City Council's evidence be any more instructive if it were
two, three or four times the length? The opposite is likely to
be the case.
If it were possible to shorten and simplify
proceedings it might also be possible for inspectors to issue
their decision at the conclusion of many simpler proceedings,
effectively reintroducing the old-style system of red and green
forms. This could dramatically speed up the whole decision-making
process to the benefit of all participants.
11. THE AVAILABILITY
OF ASSESSORS
FOR SPECIALIST
INQUIRIES
It is clear that many inquiries deal with evidence
of a highly specialised nature. It makes good sense, therefore,
that independent specialist advice is available to assist inspectors
in appropriate circumstances.
February 2000
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