In contrast to the rapidly prepared green paper in 2001, which heralded the ODPM's agenda for a planning bill in England and Wales, the Scottish Executive has conducted a series of themed debates about planning over the past four years with a view to a Scottish planning bill, which is anticipated to emerge in 2005.
The advantage of such an approach is that many elements of the bill will be founded on worked-through proposals and established consensus. The downside is that this lengthy period of gestation has provided the opportunity for opposing forces to mass over the vexed question of third party rights of appeal, an issue brushed aside with little resistance by the ODPM.
Consultation on rights
Such was the clamour that the executive was obliged to consult specifically on rights of appeal in planning during the first half of this year, and by the closing date at the end of July had received 1,600 representations with environmental and community organisations in favour and developers, business representatives and most local authorities against the concept.
Anticipating that the argument which was developing was a fruitless one, but that it would excite the attention of the backbenchers of the Scottish parliament to the detriment of more fundamental issues about improving the planning system, the institute's Scottish planning bill task group thrashed out an alternative approach that is now accumulating support.
In contrast to all other systems in the world with third party appeals, where eligibility to appeal is either unrestricted or is restricted by the status of the appellant as an original objector, the debate has focused on the types of case that might be subject to appeal.
Those arguing for a third party right of appeal say that only such a procedure will coerce local authorities into maintaining up-to-date plans and improving the quality of decision-making. They suggest that there should be a level playing field with applicants' rights. Those against the right of appeal say that the unfettered right of any individual to take a case right through the appeal procedure only because they disagree with the first decision spells disaster for investment confidence and the consumption of staff resources.
In the institute's view, only the circumstances of departure from an approved development plan and of planning authority interests would justify additional scrutiny. In both cases there are existing ministerial call-in provisions through departure procedures, but these are clearly not addressing the concerns of the public. The situation is exacerbated by the lack of up-to-date development plans.
Public right of notification
The institute's response has therefore been to propose a public right of notification procedure (PRNP). This would provide third parties with a greater opportunity to seek a selective review of contentious planning applications by Scottish ministers before any formal decision by a planning authority.In this way, it builds on the existing call-in procedure and gives third parties a central role.
As with call-ins, ministers would consider the matter notified to them and screen it in the first instance against their own discretionary criteria prior to call-in for full consideration. However, to the existing criterion of national interest should be added others relative to the quality of the planning authority's procedures and the state of the development plan.
An appeal procedure would take us forever beyond the pale of positive planning, which is why the institute feels that PRNP is far more appropriate.
The institute's case can be viewed via www.rtpi.org.uk/resources/policy-statements/2004/aug/pol20040862.pdf.