Memorandum by The Royal Town Planning
Institute (PI 48)
INTRODUCTION
1. The Environment Sub-committee of the
House of Commons Environment, Transport and Regional Affairs Committee
has resolved to undertake an inquiry into the Planning Inspectorate.
The Committee has indicated that it will wish to examine the following:
— the relationship between the Inspectorate's
internal targets and quality of the decisions made;
— the consistency of decisions made;
— the relationship between the Inspectorate
and Government Offices;
— the ability of the Inspectorate to
adjust to changing workloads, including the use of new technology
and the volume of Local Plan Inquiries;
— the treatment of complaints to the
Inspectorate;
— the impact of human rights legislation;
— recruitment, training and equal opportunities;
— publicising public inquiries;
— assistance for parties to inquiries;
— compliance with timetables; and
— the availability of assessors for
specialist inquiries.
2. The Committee's inquiry is the first
comprehensive review of the issues since the Prior Options study
of the Planning Inspectorate in 1995. That review was conducted
internally by the (then) Department of the Environment but the
users of the Inspectorate were invited to offer submissions. A
copy of the Institute's submission is to the Prior Options Study
is enclosed for reference.[83]
The Institute commends the deliberations of the Study to the Committee
and welcomes the opportunity for more independent scrutiny provided
by the current inquiry. Since that Study, there has been the development
of the Government's "Modernising Planning" agenda and
the inquiry also provides an opportunity to review the impact
of those changes on the Planning Inspectorate and the appeals
and public inquiry processes.
3. Members of the Institute are the major
professional component of the Planning Inspectorate. They are
also the planning officers of local authorities and the Department,
consultants acting for developers and third parties, and legal
members in the Bar and solicitors' practices. The Institute is
therefore uniquely placed to offer views to this inquiry reflecting
both its members first hand experience of the workings of the
Inspectorate but also the breadth of their involvement on behalf
of all possible parties.
4. The following brief views are offered
on the various issues identified by the Committee. The Institute
would be pleased to amplify any of these points in further evidence.
THE RELATIONSHIP
BETWEEN THE
INSPECTORATE'S
INTERNAL TARGETS
AND QUALITY
OF THE
DECISIONS MADE
5. Performance targets for the Planning
Inspectorate are set by Ministers and published in the Inspectorate's
Business and Corporate Plan with actual performance against the
targets published in the Agency's Annual Report. There are separate
targets for England and Wales but for the purposes of the Committee's
inquiry, this submission generally only refers to England. The
most recent summary of performance against targets is summarised
on page 23 of the Annual Report for 1998/99 (HC 740). These particularly
show tighter targets and a quicker outturn of planning appeals
and the longer term trends are shown on page 4 of the report.
6. Speedier performance on planning appeals
in recent years has resulted from:
— the reduction in local plan work,
freeing Inspectors for planning appeals;
— the recruitment and training of additional
Inspectors with some additional 80 Inspectors over the last four
years;
— heavy investment in information technology;
— and amendments to the Procedure Rules
so that the casework with the representations from the parties
can be put before an Inspector at an earlier date.
7. There has been no significant change
in the time during which the casework is with the Inspector for
decision and so far as the Institute is aware no increase in the
volume of cases subject to judicial review. This suggests that
the faster handling has not been at the expense of the quality
of decisions.
8. The Annual Report indicates there have
been real improvements in the Inspectorate's ability to offer
early inquiry dates. However, many parties have been unable to
keep pace with that improvement, and there has been a significant
rise in the rate at which the first offered date has been refused
or the parties request that a postponement.
9. The Institute supports these measures
to produce earlier hearings and determination. It would observe
however that there is a relationship between the time that it
is expected to take to determine an appeal and the propensity
to appeal. It would therefore caution that measures to further
speed-up the appeals process might increase the volume of appeals.
It is essential to consider the planning appeals process as but
one facet of a sound planning system from national planning policy
through development plans to the handling of applications by individual
local planning authorities (LPAs).
10. There is widespread concern that the
current Ministerial targets and priorities for the Planning Inspectorate
do not include enforcement appeals. The result is that the Inspectorate
has to find time for enforcement appeals at the margins. The delay
in securing enforcement appeals is doubly unsatisfactory. This
does nothing to produce swift resolution for an unfortunate business
or householder facing unreasonable enforcement action by the LPA.
Equally, those who suffer from unauthorised development wonder
why the planning system does not pay regard to their concerns.
The Committee is urged to encourage the Department to include
enforcement in the target times that it sets for the Planning
Inspectorate.
THE CONSISTENCY
OF DECISIONS
MADE
11. It is important that Inspectors have
a consistent understanding of Government policy nationally and
of plan policy within each authority. There will, however, be
differences between the weight to be placed on different factors
in different appeal cases in different places. Thus it should
not be expected that all appeal decisions should be consistent
with each other.
12. It could be argued that if Government
policy was clearer, rather than being so criteria based, that
there might be more consistency in decisions and indeed fewer
cases going to appeal. However, producing a system that was more
absolute with less discretion might not necessarily be an improvement.
THE RELATIONSHIP
BETWEEN THE
INSPECTORATE AND
THE GOVERNMENT
OFFICES
13. There is only a role for a Government
Office in appeals if it is a recovered appeal or call-in case.
The Office passes over the paperwork to the Inspectorate, who
will then handle it in the ordinary way, prior to an Inspector's
report going through to the Secretary of State for decision. There
is real concern that there are no indicative timetables for such
decisions. The Institute particularly recognises that the call-in
power can be used to give early signals of changes of government
policy or emphasis. It has been seeking to persuade the Department
to the list of applications subject to call-in on the excellent
new Departmental Planning website.
14. Unless the call-in letter clearly states
why the application has been called in, there is no overt Government
indication of the key issues until the decision letter. It has
been suggested that the GRO or Department should appear at the
inquiry to outline the issues for particular consideration, as
there is often no dynamic in a call-in case as the LPA is not
opposed to the application. A possible alternative approach is
for someone from or appointed by the Department who takes the
part played by Inquiry Counsel at some other forms of hearing
or to give the Inspector the ability to commission witnesses to
ensure that a case is put.
THE ABILITY
OF THE
INSPECTORATE TO
ADJUST TO
CHANGING WORKLOADS,
INCLUDING THE
USE OF
NEW TECHNOLOGY
AND THE
VOLUME OF
LOCAL PLAN
INQUIRIES
15. The workload goes up and down according
to pressures beyond the control of the Inspectorate, including
the state of the economy. It is hard to for the Inspectorate to
make radical shifts in the short term. But in setting ministerial
priorities for Section 78 work and, local plans, they do try to
think ahead of the likely workload.
16. There has been a broadly stable number
of appeals since 1993-94. It would be interesting to determine
whether this reflects growing local plan coverage which has kept
the number of appeals down when it might otherwise have been expected
to rise with the upturn in the economy and the volume of planning
applications.
17. The Planning Inspectorate only accepts
appeals and information by post. It is understood that to provide
for electronic means would involve legislative change. It should
also be recognised that material such as plans and bulky documents
presented by the parties is easily suitable for such transmission,
Additionally, it should be recognised that total reliance on IT
can place difficulties for third parties who do not have Internet
access.
18. Nevertheless, the Institute wants to
see greater use of the Internet as a means of accessing the planning
appeals and inquiry process. The "Planning Direct" service
developed by Haymarket Publishing has already shown how the Internet
can be used to provide on-line access to appeal decisions. There
is particular scope for using the Internet for longer inquiries
and similar which involve multiple parties. The Institute would
commend the recent Public Examination of the Northern Ireland
draft regional framework where all documents and submissions were
available on the web.
THE TREATMENT
OF COMPLAINTS
TO THE
INSPECTORATE
19. The Institute holds an annual liaison
meeting with the Inspectorate. In preparation for this, through
the columns of "Planning" it invites its membership
to raise particular issues and experiences, which are discussed
with the Inspectorate. In responding individually to these, it
is made clear that where a party is dissatisfied with its performance,
the Planning Inspectorate expects a complaint. The Inspectorate
relies upon its customers telling them when they get it wrong
and see that as an essential component of their quality assurance
procedures. There is also very rigorous mentoring of new and promoted
Inspectors.
20. Any complaint to the Inspectorate where
its service is less than satisfactory in any way would not prejudice
the right of appeal to the Courts on a point of law. There is
an important distinction between those complaints warranting judicial
review to overturn a decision and the monitoring of Inspectorate
performance.
THE IMPACT
OF HUMAN
RIGHTS LEGISLATION
21. The Institute has been aware for some
years of the issues potentially posed for the planning process
by the European Convention on Human Rights (ECHR). The earliest
interest related to whether the ECHR might limit the ability to
refuse planning permission on land owned by private individuals.
More recently the interest has shifted to the planning appeal
and inquiry processes and particularly where a Minister rather
than an independent tribunal take decisions. The Human Rights
Act 1998 will take the ECHR directly into UK law and once enacted,
it will be possible to challenge in the UK courts that rights
under the ECHR have been infringed.
22. The most significant implications of
the Act for planning are on the way in which Government itself
operates, such as through Ministerial decisions on called-in planning
applications and recovered appeals. It is therefore disappointing
that the DETR has not so far offered particular advice on the
Act to LPAs and other users of the planning system. The Committee
is encouraged to pursue this with the Department.
23. This past month the Department has published
a commissioned report on the scope for introducing environmental
courts. The Institute is currently evaluating the report.
24. There has been considerable recent interest
in third party rights of appeal. The planning system currently
operates by taking away the right to develop property unless permission
is granted, either on specific application or by the operation
of permitted development rights. Thus it is applicants, not objectors,
whose rights are restricted and thus currently have the opportunity
to appeal. Introducing third party rights might be seen to challenge
both the role of the development plan (which is subject to statutory
rights of objection and scrutiny) and representative local democracy.
25. Introducing such a right might lead
to LPAs being reluctant to grant permission in controversial cases
and thus it would lead to a reduced rate of permissions being
granted without recourse to appeal. Thus the system would act
to constrict development possibilities and introduce a further
burden on applicants and lead to uncertainty. The outcome might
paradoxically be demands for more relaxed permitted development
rights or extensions of concepts such as Simplified Planning Zones.
26. The Institute however recognises the
genuine public concerns of "rogue" or inconsistent decisions
by LPAs. The plan led system should however have the impact of
making it more obvious when a clearly unreasonable decision has
been reached. Apart from the expensive and ill-suited use of judicial
review, the only current mechanism to prevent such a decision
being made is to hope for the elusive use of the Secretary of
State's power of call-in. The Institute has long called for the
circumstances in which this power is appropriate to be made more
explicit and certain.
27. In particular, major departures from
the development plan or applications which concern either the
LPA's own proposals or land in which it has an interest should
be transferred away from the LPA's power to determine. Such an
approach will place a higher emphasis on the development plan
and by use of the Inspectorate would better demonstrate to the
public that the decision has been fairly reached, which rightly
or wrongly is rarely the case when such proposals are determined
by the authority itself.
RECRUITMENT, TRAINING
AND EQUAL
OPPORTUNITIES
28. The Institute particularly welcomes
the Committee's interest in these matters. It has observed over
the years the increasing extent of professional qualification
amongst the Planning Inspectorate, so that almost all appointees
are now members of the Institute or hold an equivalent professional
qualification. Inspectors are held in high regard both within
and beyond the profession. This is a reflection of the rigorous
recruitment, training and assessment practices of the Inspectorate.
29. The Institute has been taking active
measures to encourage the recruitment of women and ethnic minorities
into the profession. There is still much to be done and there
is a particular onus on the profession if the pool of such candidates
for the Inspectorate is to be widened and deepened. There has
been liaison with the Planning Inspectorate on developing active
measures to raise such recruitment in the short and medium term.
30. There are the related issues of Inspectors'
awareness of equal opportunities issues and the particular needs
of minorities in participating in the appeals and inquiry process
and in securing equal access to justice in the decisions of the
planning system. This involves an understanding both of how policy
is written and also how it is implemented as well as the way the
parties are dealt with through the system.
31. Amongst the matters identified by the
Institute for consideration are:
— the particular types of application
where the planning system particularly impacts on ethnic minorities
and their needs, such as places of worship and community facilities.
Ethnic monitoring of planning appeals and applications is essential;
— the need to be aware of what to do
with racist representations on planning applications—this
is a matter on which the Institute with the assistance of the
CRE has produced a guidance note in 1996;
— the availability of the Department's
literature on the planning system in ethnic minority languages;
and
— training Inspectors in understanding
the cultural backgrounds of witnesses, there is a precedent in
training in dealing with physical disabilities.
PUBLICISING PUBLIC
INQUIRIES
32. There is no general statutory requirement
to publicise planning inquiries, as there is with planning applications.
However, the LPA does have to notify those third parties that
commented as part of the planning application process.
33. Consideration should be given to there
being a statutory requirement on the LPA to publicise appeals
in the same way as for planning applications, rather than merely
to notify the parties who had commented during the application
stage.
34. The Institute is an enthusiastic proponent
of the use of the Internet to put more information in the public
domain. This however cannot replace requirements to notify individually
or the use of other advertisement techniques. Nevertheless, the
Institute would wish to see the ability to track all planning
appeals available on the Internet. This is particularly important
for those cases subject to call-in by the Secretary of State and
those appeals recovered from Inspectors for his determination.
ASSISTANCE FOR
PARTIES TO
INQUIRIES
35. There is a need to ensure that the planning
process is as open and participative as possible. This raises
particular issues for small business and householder appellants
and individual third party objectors. General information literature
from the Department needs to be well directed at such parties'
needs, expressed in plain English and easily available. They should
expect the LPA's staff to be available to guide them on how the
system operates and their opportunities to participate. But there
will be limits to the time that the staff will be able to be available
and, of course, they can not offer independent advice as they
will have regard to the authority's own interests and policies
as well as those of other parties.
36. Where the parties' have significant
financial or other interests at stake they should also consider
the benefits of engaging their own advice, from a consultant chartered
town planner or other appropriate adviser. The Institute however
recognises that not all parties will have such financial resources,
particularly individual third party objectors. It has therefore
sought to develop a Planning Aid network across the country. This
network primarily operates by individual planners giving up their
out-of-hours time to assist members of the public on a voluntary
basis. The network has been assisted beyond the Institute's own
resources by smallscale funding from government and charity grants
for promotion and administrative support but this is on a minuscule
basis to what is required. The Institute would wish to see a commitment
from Government to adequate funding of the network so that it
could be adequately available in all parts of the country.
37. There is also the issue of the role
of third parties in the process, particularly where the issue
is one of wider significance affecting a whole community, not
just immediate neighbours. This particularly applies at lengthy
inquiries into major infrastructure projects. The "Big Inquiry"
is a matter not explicitly included in the terms of reference
for this inquiry and the Institute suggests that it would warrant
an inquiry of its own by the Committee. Nevertheless, it raises
issues pertinent to the current inquiry, on which the Institute
offers the following brief observations.
38. At, for example the Terminal 5 inquiry,
the costs of testing national policy fell on the parties, whether
the applicant, the local authorities and third parties. A "two
stage" approach perhaps using Parliament to test national
policy is worth consideration. The Institute recognises the considerable
handicap facing voluntary bodies in presenting their case but
equally for some groups, the publicity of opposing major planning
applications is their lifeblood for recruitment. The Institute
is doubtful about the case for providing public funding unilaterally
to all such parties. An alternative approach might be to enable
the Inspector to review initial submissions and then to commission
appropriate parties to prepare and present evidence on particular
issues at the inquiry.
COMPLIANCE WITH
TIMETABLES
39. The Institute has earlier referred to
the difficulties that the parties have had in meeting the earlier
timetables capable of being achieved by the Inspectorate, with
the help of revised Procedure Rules. This has clearly frustrated
speedier performance by the Inspectorate. Over time, changed practice
by the parties must be the way in which timetable compliance is
secured. The Institute has considerable reservations about the
use of financial penalties or enabling appeals to proceed without
a party's view. Such approaches would be particularly inappropriate
for third parties.
THE AVAILABILITY
OF ASSESSORS
FOR SPECIALIST
INQUIRIES
40. The Institute recognises the need for
using specialists to assist in determining cases requiring particular
technical skills. The Planning Inspectorate has been reducing
its engagement of outside assessors, rather relying on developing
the specialist skills of its Inspectors. This clearly has long
run benefits in raising the skills of the Inspectorate, whilst
assisting in securing consistency of assessment and reducing costs.
41. The key issue for the Institute is the
extent to which complex special technical issues require assessment
at inquiries. The current approach relies on the parties to commission,
present and cross-examine specialist technical evidence for consideration
by the Inspector (with or without a specialist assessor). This
approach is more costly to the principal parties, more time consuming
and potentially confusing to third parties.
42. The Institute has followed with interest
the Inspectorate's pilot use of mediation techniques, reflecting
the wider use of alternative dispute resolution techniques. Consideration
might be given to an approach that encouraged the principal parties
to jointly appoint a specialist assessor or to enable the Inspector
to commission such an assessor with the support of and at the
expense of the principal parties. The commissioned assessor would
prior to the inquiry review the technical evidence submitted by
the parties and then make a report to the inquiry, which would
be subject to cross-examination. Such an approach could potentially
enable the technical assessment at the inquiry to focus on the
areas of disagreement between the parties and to place that in
the context of the wider decision-making process.
March 2000
83 Ev. not printed. Back
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