http://www.scottish.parliament.uk/GettingInvolved/Petitions/petitionPDF/PE01560.pdf

PUBLIC PETITION NO. PE01560
Name of petitioner
John Buston
Petition title
Local authority planning appeals procedure
Petition summary
Calling on the Scottish Parliament to urge the Scottish Government to eliminate or
amend the Notice of Review period of 3 months in order that the Council Complaint
Procedure can be concluded prior to a request for a Local Body Review.
Action taken to resolve issues of concern before submitting the petition
The petitioner has had personal experience of appealing a decision to refuse a
planning application. The experience made the petitioner aware of problems arising
from the interfaces between the complaint and review systems.
As such, the petitioner contacted his Ward Councillors and MSP making them aware of
the issues. The MSP wrote to the Minister of Planning and Local Government whose
response failed to eliminate petitioner concerns.
Petition background information
INTRODUCTION
When an application is made for planning permission a designated planning officer is
appointed to carry out an assessment. The officer has an option to hold a design review
meeting with the applicant prior to producing a committee report termed the ‘Report of
Handling’ (ROH), with a recommendation for approval or otherwise of the application.
The ROH is then forwarded to Ward Councillors who use it as a basis for decision in
determining if they endorse the planning officer recommendation. If this is the case,
then the ‘decision’ is notified to the applicant. The ROH is not sent to the applicant but
is made available on the Authority website some weeks later.
In circumstances where an application is refused, there are review and complaint
options available. The applicant can lodge a complaint via the Local Authority’s
complaint procedure to address incorrect or misleading information contained in the
ROH. The applicant can also request a review by the Local Review Body of Councillors
(LRB) on the opinions which have led to the planning officer recommendation.
THE COMPLAINT PROCEDURE
The complaint procedure detailed is that followed by Aberdeenshire Council (there may
be variations elsewhere in Scotland). This procedure excludes planning related issues
where a right of appeal is available through Scottish Ministers (but not a right to a
review by the LRB).
Initially there is an attempt at front line resolution, followed by an investigative second
stage. The objective is to provide a response within 20 working days with the procedure
calling for revised time limits to be agreed, if this is unachievable. The internal council
complaint process concludes with the Head of Planning and Building Control
confirming the correct procedures have been followed, and stating the next course of
action will be for the complainant to ask the Scottish Public Services Ombudsman
(SPSO) to look into the case.
The SPSO publishes an advice leaflet dealing with complaints on planning issues. This
states a main area that may be looked at is where incorrect or misleading information is
contained in a planning committee report.
From experience, the period from the decision date to obtaining the internal council
second stage response can be in excess of three months. The period elapsing from first
raising the issue with the council and obtaining the SPSO response can be in excess of
six months.
THE REVIEW PROCEDURE
The applicant has three months from the decision to apply for a hearing by the LRB,
whose membership consists of Councillors. It is expected that all submissions made by
an applicant should accompany an application and not be forwarded at a later date.
The LRB meet monthly with additional site visits occurring as required. They receive
specialist assistance from the planning authority by the secondment of a planning
officer as advisor, and also by providing the ROH as a basis for LRB decision.
The LRB, unlike the SPSO, can review the opinions and weightings of planning factors
contained within the ROH and have the ability to change the decision for refusal.
The assumption of LRB Councillors must be that the ROH, prepared by a
professionally qualified planning engineer employed by the planning authority, is both
fair and accurate. In unusual circumstances where this is not the case, then
independent advice would not be expected from the planning authority in Committee to
highlight error or a need for investigation.
The Councillors are a lay group and, whilst the LRB have the facility to employ
consultants, they are unlikely to commission such investigations, unless alerted to a
requirement to do so. For this reason, the identification and correction of ROH error is
not a function that the LRB can be expected to undertake. This is illustrated with
example provided below.
INTERFACE BETWEEN PROCEDURES
There are difficulties encountered in concurrently operating both procedures, each of
which could make a contribution to the planning process. The expectation is that the
SPSO examine report integrity, whilst the LRB overview the opinions expressed within
the report (assuming a sound informational basis is available for these).
From experience, the SPSO will not consider issues of error after a review by the LRB
has been requested, even in circumstances where the LRB agree to postpone a
hearing until the SPSO investigation is finalised. The time scale of a complaint
assessment means that it will be unlikely to be concluded within a three-month period
from the decision date, which effectively rules out SPSO consideration.
It should be noted that the SPSO position, in referring consideration of report integrity
to the LRB, fails to recognise that an inaccurate ROH has already been used as a basis
for decision by Ward Councillors.
RECOMMENDATIONS
The petition seeks to create separation between the complaint and review procedures,
so that each can contribute to the planning decision making process. At present, the
complaint and review procedures are conflated due to the 3-month notice of review
period required in Scottish Statutory Instruments 2013 No.157, Local Review Body
Procedure PART 3, Section 9(2)).
Removing this barrier would allow the full complaint and review procedures to operate.
If the SPSO considered and upheld a complaint, they could recommend to the
Authority that the ROH be amended. The planning process could then restart with both
Ward Councillors and the LRB having an accurate document available as a basis for
consideration. There would be no subsequent involvement by the SPSO in the
planning decision making process.
This appears to be a clear and logical way to address the problem.
EXAMPLE
The petitioner encountered several instances within a ROH of error and misleading
statements. It is significant that the designated officer had not held a design review
meeting during the assessment. One issue is now described to illustrate a complaint
that was well researched, and therefore worthy of consideration and response:
As a key refusal point, the planning authority stated that an existing dwelling
overshadowed windows in a proposed new dwelling.
There is definitive guidance available in this area from the Buildings Research
Establishment who had developed a formula to calculate the degree of overshadowing
that occurs for a given geometric layout. Calculations based on this formula showed no
problems existed. Photographs taken from the proposed centre point locations of these
windows further illustrated the lack of overshadowing obstructions.
The responses received were as follows-
The Council did not respond to the issue in the internal complaint stages. However, as
independent SPSO adjudication was available, the lack of response, although
disappointing, is not one that requires action from this petition.
The SPSO did not consider the issue. Their planning advisor stated in his report: ‘There
should be no impediment to the normal processing of the case to the LRB, which has
the power to make a different decision on the application if it so chooses. The
complainant as applicant, has the opportunity to make submissions to the LRB to
challenge the facts as well as the opinions of the Report of Handling.’
The LRB did not consider the issue. A formal submission presented after receiving the
SPSO decision was not examined, neither was the applicant allowed to address the
LRB in a subsequent meeting that was held. The planning officer, advising the LRB,
made no reference to the issue in his summary of the application to Councillors.
After a request made by my MSP, the Minister of Local Government and Planning
examined the issue and did not acknowledge any administrative failure of the complaint
and review procedures in the response.
In a well-governed country, a planning applicant should have the right to have a
legitimate and well-researched complaint addressed. It is hoped this petition will help
future applicants in circumstances when Planning Authorities may have produced an
unfair and inaccurate report.
Unique web address
http://www.scottish.parliament.uk/GettingInvolved/Petitions/PE01560
Related information for petition
Do you wish your petition to be hosted on the Parliament's website to collect
signatures online?
YES
How many signatures have you collected so far?
1
Closing date for collecting signatures online
09 / 04 / 2015
Comments to stimulate online discussion
The petitioner is aware that there may be alternative options available to ensure a
complaint is addressed and would welcome any suggestions of change to the planning
system that achieves this.
Presently a Planning Authority may decide that a Design Review Meeting will not be
held during an assessment. However, these meetings are recommended in order to
help in eliminating ROH error at an early and pre decision stage. Should they be
mandatory?
Would adjustment to the operating parameters of the LRB and SPSO provide a
solution?
The Royal Institute of British Architects and other Engineering Institutions offer
adjudication services. Is there a place for these services to be used where the SPSO
are unable to provide an independent issue assessment?