Memorandum by the Local Government Association
(PI 49)
1. INTRODUCTION
1.1 The LGA welcomes the opportunity of
submitting evidence to the Committee on the Planning Inspectorate.
This response is based on comments collected by the Association
from local planning authorities specifically for the Committee's
inquiry, and from work the LGA has carried out itself, for example
on the impact of the Human Rights Act. The principle representations
the LGA would like to make to the Committee are under the following
headings: general points; inconsistency of decisions; timing and
delays; the Human Rights Act, and other issues.
2. GENERAL POINTS
2.1 The efforts made by the Planning Inspectorate
to improve their performance—particularly in relation to
the programming of S78 (planning application) inquiries is recognised
and welcomed by the LGA. It should be noted that a number of planning
authorities have written to the LGA to put on record that they
are satisfied with the service provided by the Inspectorate in
terms of speed and quality. Other authorities have, however, raised
problems and it is these problems which this submission to the
Environment Sub-committee the LGA will be focusing on.
3. INCONSISTENCY
IN DECISIONS
3.1 Draft government guidance
Following the publication of draft PPG 3 in
March 1999 local authorities have been keen to begin implementing
the change in emphasis in government policy away from the development
on housing on greenfield sites and towards brownfield development.
However authorities do not feel that the Inspectorate gives sufficient
weight to draft government guidance and this can be a particular
problem when, as in this case, there is a general consensus that
policy needs to change, and when there is a significant time lag
between draft guidance and the Government's final version. In
the case of PPG3 the period between draft and final version was
a year, during which important and irreversible planning decisions
have been taken. There is a pressing need for the inspectorate
to take up draft advice as soon as it is issued and, possibly,
a need for Government to issue guidelines which add to the weight
Inspectors give to draft guidance.
3.2 Supplementary Planning Guidance
We are in a period of major policy change in
the planning system when both local and central government are
seeking to switch development from greenfield sites to more sustainable
brownfield locations, both to encourage the urban renaissance
and to provide for the projected household growth. To be successful
significant shifts in policy are needed at the national and local
level. The planning system has been criticised in the past for
being inflexible—the LGA would like this criticism to be
addressed by Inspectors, who need to take on board the implications
of new government guidance as quickly as possible, and by local
authorities, who need to keep their development plans up to date.
In the latter case the LGA is advocating the use by local authorities
of Supplementary Planning Guidance (SPG) which can be drawn up
and consulted upon quickly and can keep pace with fast-moving
regeneration schemes. Local authorities often complain that the
Inspectorate does not give sufficient weight to SPG and the LGA
would like the Government to issue stronger guidelines to tackle
this issue.
3.3 Specific policy areas
There are a number of specific areas of planning
policy where authorities have identified inconsistencies in decisions
by Inspectors. These highlight the need for clearer Government
policies and for clearer guidelines for Inspectors. Examples which
have been brought to the LGA's attention are: A3 uses in shopping
centres—there are very different interpretations between
Inspectors about what constitutes an A3 use; mineral working in
the Green Belt—what level of working compromises the "openness"
of the Green Belt; extensions to dwellings in the green belt—again
Inspectors' definitions of how "openness" was defined
appear inconsistent, as does the significance placed by Inspectors
on the size of the original dwelling.
4. TIMING AND
DELAYS
4.1 S78 Inquiries
As stated as a general point, the speeding-up
of S78 (planning application) inquiries in recent years is welcomed.
However there is a danger of the pendulum swinging too far and
timetables becoming more important than the wishes of the appellant
and/or the local authority. The Inspectorate need to give both
parties sufficient time to submit Rule 6 statements covering areas
of agreement, and for the authority to arrange a venue.
4.2 A further point on S78 inquiries is
that authorities have noted an inconsistency in the acceptance
of late appeals by the Inspectorate. There are examples of appeals
being rejected on the day of expiry, and examples of appeals being
accepted three weeks after the deadline. If appeals are to be
accepted after the expiry date, the Inspectorate should be given
clear reasons why this is the case.
4.3 Local Plan Inquiries
The LGA places a high priority on speeding up
the development plan process and recognises that the Local Plan
Inquiry (LPI) plays a major role in this. Very recently the LGA
has made strong public statements about the need for planning
authorities to keep their development plan up to date and to devote
sufficient resources to the process. In response to the Committee's
call for evidence, the Association has received representations
from local planning authorities on how the inspectorate could
improve its performance.
4.4 Generally it is considered that Inspectors
could take a more active role when the inquiry is underway. In
particular they could: define issues which they need the parties
to address, intervene more to rule out irrelevant or repetitive
evidence, and curtail the excessive time taken by some advocates.
The LGA is promoting the use of much more strategic and less detailed
development plans as a way of speeding up the plan process; this
approach would allow Inspectors to concentrate on the key issues
and would avoid dealing with minor issues in excessive detail.
Authorities are also frustrated by the amount of time it takes
Inspectors to produce their reports; this could also be tackled
by a more strategic approach to development plans and encouraging
Inspectors to rule out irrelevant evidence and concentrate on
key issues. These points indicate the need for both stronger guidelines
for the Inspectorate and a more fundamental review of the development
plan process.
4.5 A final point on local plan inquiries:
it is crucial that the Inspectorate keeps authorities fully informed
of the progress of the Inspectors report. For example authorities
need to be notified of the potential early production of a report
so that arrangement can be made for publication and to make appropriate
resources available.
4.6 Delays due to Government Regional Offices
A significant number of authorities referred
to the role played by government offices in slowing down the planning
process, both in terms of planning appeals and local plan inquiries.
Authorities have expressed frustration at the length of time Government
Offices hold onto Inspectors' reports before releasing them, and
the lack of any definite timetable identifying when decisions
will be taken. Examples were given in the south-east and the north-east
of what were seen as excessive delays due to Government Offices.
The excessive number of objections made to local plans by government
offices has also been cited, as has their reluctance to conditionally
withdraw objections.
5. THE HUMAN
RIGHTS ACT—IMPACT
ON THE
INSPECTORATE
5.1 The LGA has undertaken some work on
the implications of the human rights legislation for planning
authorities. However, the DETR have stated that they will not
be producing guidelines themselves and that disputes will need
to be resolved in the courts. The Association recognises that
some matters can only be resolved in the courts, but that the
absence of any guidance specific to planning from Government is
unhelpful. We feel that all those involved in the operation of
the planning system would benefit if DETR were to explicitly address
and communicate the Human Rights Act, and the European Convention
on Human Rights (ECHR) considerations that have informed legislation,
policy and guidance. Similarly, although we understand that the
Inspectorate is making preparations for the Act, it would be helpful
if the detailed advice to Inspectors is widely circulated.
5.2 Current case law indicates that the
planning process is compatible with the Human Rights Act because
the totality of the appeal process, including the right to appeal
to the High Court, is fair. Difficult issues may remain to be
resolved, for example in a case where the actual decision is taken
by the Secretary of State disagreeing with the Inspector on a
point of fact.
5.3 The whole area of third party rights
of appeal needs to be reviewed by the Government in the light
of the European Human Rights Act. At a conference held by the
LGA in January a leading planning lawyer expressed his view that
the Act meant that the eventual adoption of 3rd party right of
appeal by authorities was "inevitable". It has also
been suggested that in the shorter term, protecting the Article
6 rights of third parties is likely to lead to a greater use of
call-in powers by the Secretary of State. This would have a knock
on effect throughout the system, including increased workload
for the Planning Inspectorate. The Inspectorate would no doubt
need more resources to cope with this increased workload. In the
long term it would be reassuring to know that the Government and
Inspectorate are at least considering the implications of the
extension of the right to appeal to third parties; and for the
DETR to make known any revisions to the criteria they will apply
when considering call-in.
5.4 There is little doubt that the scope
of relevant Articles of the ECHR will be tested in planning matters.
The LGA hopes that procedures and decision-making will not become
bogged down by ill-founded claims; it will be important for the
Planning Inspectorate to deal robustly and efficiently with Convention
points, so that lessons may be taken on board at an early stage
by all concerned.
6. OTHER ISSUES
RAISED: COSTS
AND COMPLAINTS/FEEDBACK
6.1 Costs
Authorities sometimes have difficulty in seeing
the justification for the award of costs. The process can seem
arbitrary and when costs are awarded the local authority and appellant
can become involved in a protracted debate as to the appropriate
figure. There appears to be a case for clearer guidelines and
more detailed justification by Inspectors.
6.2 Complaints/feedback
There will always be individual decisions which
local authorities cannot see the Inspector's rationale or on which
they would welcome clarification. Although an authority can complain
to the Inspectorate about a specific decision, there is often
a feeling that the complaint has not been heard. It is unsatisfactory
that the only forum where a dialogue can be entered on a specific
decision is the High Court. An alternative process would be welcome.
7. The Association would be pleased to appear
before the Committee to go into the evidence in more detail and
to answer questions if necessary.
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