Its nearly all over

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The Planning Bill will be debated on Tuesday 18th June to Thurs 20th June 2-4pm. After that it will become law.

As you can see in our blog below we have been working hard up to the wire.

The Bill is likely to receive enough support to ensure it is passed as a piece of legislation (The Lib Dems didn’t support it at stage 2, but it still passed through to stage 3). The debate will mark the end of a process that started way back in October 2015. How little did we realise then what we were in for! It has taken huge amounts of our resources, energy and considerable effort from ourselves and those in our network to keep track of and engage in. Right to the end it has kept us full on busy, as the interest in and complexity of the Bill is unusual. Even at stage 3 there have been a larger number of amendments (223) than is normal for a bill at this stage. It is requiring 3 days of parliamentary debate compared to the more normal one.

We have been successful in bringing forward key issues into the debate and thank the MSPs who are bringing forward amendments on the issues we have argued for.

At this stage some things are beyond changing, for example, whether or not the development plan becomes a 10 year plan rather than a 5 year plan is no longer up for discussion, as it was universally agreed at stage 2. Therefore, we have had to focus on what we can change, which is tinkering with a bill that brings about very little of what we really want, but we have felt duty bound to get what we can and to continue to represent the community voice to the bitter end.

A significant amount of what was gained and seemed possible at stage 2 has likely been lost. We know that politicians have been lobbied hard and frankly it is hard for small voluntary organisations like ourselves to compete with what appears to be on offer from developers. It has been a frustrating and difficult process, which many of you will no doubt sympathise with, having taken part in your own long drawn out planning processes.

Some amendments introduced at stage 2, such as land value capture have not been developed further which is an opportunity missed. Other aspects we know our supporters will be disappointed with, such as the loss of the requirement that developers should utilise brownfield before green belt sites. There is much that we have been unable to prevent, largely due to the ways the politics have been working.

However, on the plus side new opportunities are presenting themselves, for example in the form of climate change amendments, and we hope that the Scottish Government having recently declared a climate emergency will support these (we have listed them at the end of the blog).

Below is a summary of the issues we have been focussing on and what will we be looking out for in the next few days.

Details on amendments can be found here in the daily lists at the bottom of the page under stage 3.

1) A Statement of Purpose that Encompasses All of the Planning System

What we have argued for.

From the start of the review in 2015 we argued that the Scottish Government’s commitment to planning for ‘sustainable economic growth’ has resulted in a narrow focus on ensuring an efficient process for granting planning consents. We stated in 2015 that “The Scottish Planning system has a legal duty to promote sustainable development. The current emphasis on sustainable economic growth has a distorting effect on the scope for broader democratic engagement and ultimately on the capacity of the planning system to deliver sustainable development”.

What happened at stage 2

We welcomed the introduction of a Statement of Purpose for Planning at stage 2 which included reference to sustainable development, which we had argued strongly for. We also welcomed amendments from Andy Wightman (Green party) that stated the purpose should reflect the UN sustainable development goals (SDGs).

What is happening at stage 3?

New amendments from the Government and Conservatives have watered down the purpose in two ways, 1) they restrict the purpose to certain sections of the Bill and 2) they have removed the UN SDG’s from the description.

On balance we decided that a shorter less descriptive purpose that states “The purpose of planning system is to manage the development and use of land in the best long-term public interest” that covered the whole Bill was preferable to the Conservative amendment 114 which states that ‘The purpose of planning is to manage the development and use of land in the long term public interest, which (a) contributes to sustainable development, or (b) achieves the national outcomes, which although a better statement of purpose doesn’t cover the Bill as a whole, and crucially doesn’t cover sections on Development Management.

What we have asked MSPs to do

Therefore, we have asked MSPs not to support the Graham Simpson’s (Conservative) amendment 113[i] that removes an overarching purpose from the Bill.

2) Enhancing Engagement in Local Development Plans

What we asked for

Providing greater opportunities for the public to influence development plans has always been a key aim for Planning Democracy.

In 2015 we stated that “The review may consider strengthening the plan-led system by introducing mechanisms to increase certainty that plans will be followed.

We believe there is considerable unrealised potential to develop a more deliberative approach to plan-making, particularly in deciding controversial issues such as housing allocations and energy policy. This could lead to a more empowering model of engagement that involves rather than consults, using techniques such as citizens’ juries that have been widely used in other areas of public policy but not as yet in land-use planning.

What happened at stage 2?

We were hugely disappointed by the Bill which did nothing to improve public involvement in  local development plan preparation. We argued for and welcomed the introduction of a consultation requirement on the evidence report at stage 2. However, this was minimal compared to what we were asking for and still there is little that enhances existing community engagement in the Local Development Plan (LDP) process.

Despite numerous attempts to get amendments in that introduced more progressive means of involving communities, such as requirements for community panels at the gatecheck stage of the process, our ideas never gained traction amongst MSPs.

Our concern is that existing opportunities are, in fact, diminished by this bill. We have consistently argued that the removal of the Main Issues Report (a key stage of development plan preparation) has taken away requirements to ensure that what is “proposed can readily be understood by those persons who may be expected to desire an opportunity of making representations” and to provide alternative options.

 What we have asked for at Stage 3.

We have asked MSPs not to support the Government’s amendment 91 which removes the need to prepare an easily understood evidence report to enable representations to be made. Nor do we support their amendment 86 which removes the requirement to produce a statement saying how views have been taken into account in preparing the evidence report.

The right to be heard

We also have argued that the public right have a right to be heard at the examination stage of the Local Development Plan. This is one of the last stages of Local development plan process, during which a Government Reporter scrutinises the evidence provided by different parties including the public. Until 2006 this had always involved a public local inquiry (PLI) after which the reporter proposed his recommendations to the Local Authority. However, after the 2006 planning reforms the public right to be heard was diminished and these PLI’s no longer regularly occurred. Instead it was decided that it should be left to the discretion of the Reporter to decide the format of the public examination process. The choices were either written submissions, hearings or a Public Local Inquiry, the latter providing an opportunity for the public to have their objections more rigorously examined. However, the result of leaving it to the discretion of the Reporter was that written submissions and hearings became the preferred format. The excuse given was that the public struggle with long tedious public inquiries and that they hold up the LDP process. However, our argument is that considering plans now cover a longer period of 10 years as opposed to 5 more time and effort should be given to developing plans and the public should have the right to present their case at a public inquiry where evidence can be more rigorously presented and tested.

What we hope for at stage 3?

We welcome the opportunity to restore democratic deficits in Development Plan production through Andy Wightman’s (Green) amendment 194 which provides an opportunity for the public right to be heard in proposed plan examinations.

3) Promoting a Plan-led System

What we asked for

Throughout the review we have strongly argued for mechanisms to strengthen a plan led planning system. We were very pleased of the success at stage 2 of Andy Wightman’s (Green) amendment to require local authorities to determine whether applications are in accordance with development plans or not. Somewhat unbelievably there is no requirement to record this since 2006 (when previously Ministers had to be notified of applications contrary to the development plan). As such no central records are kept of how many applications contrary to the development plan are given approval since 2006 (as Graham Simpson found out when he made inquiries). We feel this lack of record keeping makes a mockery of the commitment to a plan led system and needs rectified.

What we are hoping for at stage 3

We therefore support Alex Rowley’s (Labour) amendment 204 which require local authorities to determine whether applications are in accordance with the Development Plan or not. Removal of this requirement by the Government amendment 138 undermines commitment to a plan-led system.

4) Introducing a Limited Right of Appeal for Communities

Of course, we continue to argue for an Equal Right of Appeal. This is fundamental to the commitment to natural justice and equality.

We have pointed out that the Land Reform Act affords both landowners and communities a right to appeal decisions with Community Right to Buy. We have asked why the planning system offers no such equality of appeal and is out of alignment with other Community Empowerment initiatives.

Most of you will, no doubt, be familiar with our argument that providing appeal rights in limited circumstances will lead to a more plan-led system that encourages early engagement. Without providing the community with a right to ask for a review of a decision on applications which are contrary to the Development Plan, claims made that the Bill seeks to strengthen a plan-led system cannot be taken seriously. Communities with a validated Local Place Plan accepted as part of a Development Plan should have the right to appeal an approval that runs contrary to those agreed plans. Otherwise, what incentive is there for communities to spend time and effort on developing their own local place plans?

What we hope for at stage 3

We know that the Conservatives hold the key to whether or not we gain appeal rights. There are a few in the party who support our position, but equally there are those who do not. We know it is a long shot, but we still hope that there may be some who decide to vote for appeal rights. However, we know that they have been lobbied very hard by developers and those in the planning profession including PAS and the People and Places Alliance who have campaigned against an Equal Right of Appeal.

Alex Rowley’s (Labour) Amendment 205 introduces a strictly limited right of appeal purely for applications that are contrary to the LDP. By restricting appeals to decisions that are departures from a Development Plan, only a very limited number of applications will be subject to appeal. It is right that such departures are subject to extra scrutiny to incentivise the submission of applications that are in accordance with the Development Plan. The impacts of unwise or unsuitable development can affect people and places for decades. A few weeks of additional scrutiny is a small price to pay for greater trust in the system.

Andy Wightman (Green) Amendment 161 introduces a wider right of appeal to include developments where there is a conflict of interest and for developments requiring an EIA.

This is a broader amendment than Alex Rowley’s and of course we welcome both.

Andy Wightman’s (Green) amendments 160 limits the rights of developers to appeal applications that are not in line with development plans.

We support this amendment.

5) Supporting Local Place Plans

What we have said about LPP’s

We have tentatively supported the inclusion of Local Place Plans (LPPs) into the Bill. However, they need to be properly resourced, supported and given adequate status within the Development Plan.

What is happening at stage 3?

Government amendments 104 and 85 remove planning authority assistance for LPPs which leaves opens the question of where support for communities in LPP preparation will be found. The potential lack of support increases the inequality gap by failing to provide for less well-resourced communities to bring forward their own plans. Graham Simpson’s Amendment 122 might possibly be helpful allowing significant land to be identified by communities.

What else we asked for at stage 3

We have argued for a review of Local Place Plans to be timetabled in. This may perhaps provide another opportunity to revisit appeal rights with regard to local place plans as well as to see if they really deliver community empowerment.

We therefore support Alex Rowley’s amendments 195 and 196 which require a review of LPPs in 7 years which will offer an opportunity to examine the success of LPPs. The latter amendment 196 providing an opportunity to revisit appeal rights.

6) Mediation in planning

What we have said in the review

New amendments have been put forward on mediation in planning by the Conservatives at stage 3.

In our 2017 consultation response we stated very clearly our position on mediation in planning. We said the following

Site allocations should be determined by democratically determined plans for the sustainable development of settlements. At present too much of the site allocation process is determined by whether or not owners are willing to sell or develop land. This means that sites are allocated not on the basis of good strategy but on the basis of a next best fit and/ or of lobbying from development interests who stand to gain huge windfalls from the increase in land value that allocation and subsequent permission bring. What is really required therefore is a more effective means of ensuring that agreed plans can be proactively delivered (e.g. land assembly powers, betterment taxation to remove windfalls).

In this regard mediation is of secondary value and should not be considered a substitute for proper democratic debate to explore disagreements about spatial strategy and site allocations.

Mediation should also not be seen as a way of reconciling people to options they oppose in order to ensure a pre-defined answer to a question. At the moment any disagreement with a default ‘yes’ to development is construed negatively in Scotland. ‘Agreement’ and ‘consensus’ are, however, not always possible or desirable and should not be the goal of planning processes – sometimes planning should be about enabling constructive disagreement.

Mediation also works under a fairly limited set of circumstances where all parties to a dispute have both something to gain from an agreement and a series of alternative positions that can be explored. This is not always the case in relation to site allocations which can more closely resemble a zero-sum game.

Further key principles for mediation are that the process is without prejudice and that mediators are impartial and independent. If the mediators are also planners a further principle of mediation could be construed as being undermined, where planners are now often seen by communities as having a bias towards resolving conflict in favour of development.

Provided these conditions can be met, mediation can and should be used. However, it should not be seen as a panacea and should be used with caution to ensure that the technique retains credibility in situations where it can really make a difference.”

What do we want at stage 3?

Graham Simpson’s Amendment 146 introduces the potential for guidance around the use of mediation in relation to Development Planning and Management such as Pre Application Consultation. Such guidance already exists so it is not clear how this amendment would further current mediation opportunities. We acknowledge a place for mediation in planning in certain appropriate circumstances, however mediation has been put forward as the latest sweetener for communities to coat the bitter pill that is a planning bill that has nothing to offer in terms of citizen empowerment. Had this amendment been put forward as part of a wider suite of amendments that acknowledged community rights in planning we would be supportive. However, it is being put forward as part of a system of planning that affords communities no rights and no status, therefore in the circumstances we remain sceptical that it will be used appropriately.

For supporters concerned with biodiversity and climate change here are a list of positive amendments we hope are successful. Planning Democracy are part of Scottish Environment LINK and as such have been working as part of their planning group to help achieve greater protection for the environment in planning.

  1. Amendment 173 which make securing positive effects for biodiversity an outcome of the NPF
  2. Amendment 181 which requires that net positive effects on biodiversity are to be considered in environmental assessment.
  3. Amendment 201 that includes consideration of green infrastructure and community open space requirements in the granting of planning permission
  4. Amendment 202 introducing cycling facilities.
  5. Amendments 213 and 214 which include green and blue infrastructure in the definition of types which could be funded via the proposed infrastructure levy in Part 5 Section 29 of the Bill.
  6. Amendment 207 requiring Forestry and Woodland Strategies.
  7. Amendments 14 -18 requiring full planning control for the construction of vehicle tracks in upland areas
  8. Amendments 186 and 200 strengthens commitment to existing strategies and targets on climate change with regard to assessment of environmental effects of national developments.
  9. Amendment 209 which requires the automatic suspension of peatland extraction in certain circumstances and amendments 210 and 211 relating to the phasing out of commercial peat extraction.
  10. Amendment 174 replaces amendment 35 and includes the preservation of peatland into the list of strategies to have regard for whilst drawing up the NPF which we welcome.
  11. Amendment 174A strengthens the language to ensure the NPF is compatible with climate change and land use strategies.

Amendments not contributing to climate change protection in planning

Amendment 36 removes a key section requiring advice to be sought before publishing a revised National Planning Framework

 

[i] Leave out section A1 (which states “The purpose of the planning system is to manage the development and use of land in the best long term public interest”

 


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Clare Symonds

Clare Symonds is the Chair of Planning Democracy.

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