We will publish a post conference report up here soon. Meanwhile here is our 3min video of some people’s comments.

Don’ t forget to read our manifesto, comment on it and let us know if you support it.

Finally, thanks to our favourite conference delegate who wrote the following evaluation!

Click to download the full report or the summary.

We have been investigating the way the newly reformed planning system is working for the public, how easy it is for them to use and the problems they face.

This report is the result of that work and the stories people have shared with us.  It starts by explaining the approach that has underpinned our thinking and research. It then goes on to assess existing opportunities for democratic participation in planning decisions before describing some of the overarching issues our research has identified and detailing some of the specific problems that we feel currently  inhibit participation. Finally it lays out a range of possible solutions and reforms that would help to realise a more democratic planning system.

We want to hear your reactions to this ‘discussion draft’. Feel free to discuss by commenting below or get in touch directly. Your input will help shape the final draft due to be published in early-summer 2012.

• Work together with us for a fairer more inclusive planning system
• Learn from the DPEA’s Chief Reporter how to make the best of your case at planning appeals
• Share ideas for effective engagement and a fit for purpose planning system
• Get exactly the information you need with advice from the Scottish Information Commission
• Find out how cases at Scottish courts are getting cheaper and easier, and what’s next in the campaign for access to justice.
• Discover just who is the Scottish Public Services Ombudsman and what planning issues he can investigate

As well as these six workshops to choose from, three case study presentations and our ideas for creating a fair and inclusive planning system we have dedicated time for networking, meeting others and discussing whatever planning issues matter to you.

Book today www.planningdemocracy.org.uk/conference-2012

There’s more details on our workshops and who’s is running them below.

1. What can Planning Do for Us?
If you would like to learn more about effective engagement, share ideas about a fit for purpose planning system and think about how we can do things better come along and participate in our workshop.
Consultant planners and mediators Suzanne McIntosh and Karol Swanson

2. Planning Appeals and Inquiries: How to Make the Best of Your Case
This workshop will highlight the key elements of the recent reforms to the planning appeals system and the role of the reporter; explain what factors reporters take into account in deciding what procedure will be adopted; give some tips on drafting representations and attending hearings or inquiry sessions; describe the DPEA website and the online publication of appeals. It will also give an overview of specialist casework to which the formal PLI procedure still applies such as Electricity Act cases. Department for Planning and Environmental Appeals – Lindsey Nicol

3. All about Freedom of Information
This workshop if for you if you want to know how to make Freedom of Information requests, what organisations your can make requests to, see how other community organisations have used freedom of information, and learn some tips for getting exactly the information you want to see. Scottish Information Commission – Susan Hutchison

4. Access to Justice in Scotland
Learn more about the campaign to make it simpler, quicker and cheaper for people to take legal action in planning cases and to protect the environment. If you think a planning decision has been unfair, or is potentially damaging to your environment, there are currently a lot of barriers to challenging the decision in court. But there is a UN convention that requires that ordinary people have the opportunity to take environmental cases to court without too high a cost. This seminar explores the campaign for Access to Environmental Justice, calling for the implementation of the ‘Aarhus Convention’. Environmental Law Centre and Friends of the Earth Scotland – Frances McCartney and Davina Shiell

5. Campaigning for Planning Democracy
If you are interested in making things better for the future, this workshop looks at ways we might work together to lobby for a better planning system and introduces ideas to network and help other communities facing the same issues. Planning Democracy – Iain Thom and Andy Inch

6. An Introduction to the Scottish Public Services Ombudsman (SPSO)
An opportunity to learn more about the role of the SPSO: when and how they consider complaints; planning issues that they can and cannot consider and answers to your questions. SPSO – George Hunter and Carol Neill

The planning system has a large body of complex procedure to which Councils are bound, for example, they must consult on planning applications and take comments into account. Much of this procedure is in legislation and a large body of case law has helped to interpret this law (although new legislation continues to be published).

Where the proper procedure is not followed by public bodies there is a Right of Appeal. Under the planning system people can appeal to two bodies.

The Scottish Public Services Ombudsman can and does consider administrative defects of planning authorities, this is important however often not actually what people want to look at. The Ombudsman receives many ‘deflected’ appeals, in other words complaints about the way something was administered, which end up being phrased in a certain way because a person cannot appeal on the merits of the decision, and so the Ombudsman end up looking at shadow issues rather than substantive ones.

The second alternative route of Judicial Review is available, however this is costly, intimidating and, like the Ombudsman, Judicial Reviews look only at whether proper procedure was followed and not the merits of a case. In order to take a Judicial Review you require both the finance to pay for legal representation plus any potential damages should you loose the case, and for the Court to hear your case you must have ‘standing’ i.e. a real and legitimate interest in the case. ‘Standing’ has traditionally been interpreted as having a personal financial interest in the case but a recent action by Friends of the Earth Scotland has finally opened up this narrow interpretation allowing the potential for cases to be taken in the public interest in Scotland, in other words by NGOs and people with a non-financial interest in the outcome. This is a big step forward but the costs of taking a case to court remain a very large impediment to accessing the courts for real and legitimate reasons (see below for more).

At Planning Democracy we recently gave a presentation to the Scottish Committee of the Administrative Justice & Tribunals Council (who review the administrative justice system in Scotland) as part of their research into areas of law where the Right of Appeal is inaccessible or inappropriate. Our experience of supporting Marco McGinty in his judicial review of the National Planning Framework has given us insight into the financial, legal and social difficulties of taking a Judicial Review in Scotland.

We advocated for a cap on legal costs for cases taken in the public interest, for the rules on who can and can’t take a case to court to be widened when the case is in the public interest and asked the AJTC to look in more depth at the adequacy of the Right of Appeal in the Scottish planning system suggesting there is a need to consider alternatives to Judicial Review such as environmental/planning tribunals or environmental courts where planning cases could be heard.

We have also put these arguments forward to the Government as part of its consultation on Protective Expenses Orders and will be meeting with them later this month. Read our submission arguing that finance is not the only thing that stops people taking Judicial Review – social norms, complex relationships within a community, livelihoods and threats to sue all play their part too.

Disclaimer: we have discussed some legalities here that in no way should be taken as legal advice for your situation. We have used some imprecise language to help make this blog readable by humans. Our normal terms of use also apply.

This creates an interesting situation in the planning system. Hunterston is a national development – it is listed as one in the National Planning Framework 2 (NPF2). Under the recent planning reforms Scottish Government intended Councils to draft development plans ‘in accordance’ with the NPF, but the North Ayrshire’s vote makes it clear they intent to propose a plan at odds with the national framework.

The Council must now run a consultation on its second draft plan, this one without the Hunterston designation, which is likely to happen in May. After that, the plan gets submitted to the Government for approval.

We’ll have to wait and see what the Government will do. Will they directly over-rule the Council and impose the designation of Hunterston power station in the plan? Or will they allow the development plan to pass at odds with the NPF? If the second is the case, the planning act makes it clear that the most recent plan will prevail when an application is determined.

However, as always in the planning system, multiple things are happening once. There has already been an application for Hunterston which is going to public local inquiry (PLI) sometime this year after North Ayrshire Council objected to its energy consent. The Council’s final development plan may not be adopted before this PLI begins.

At PD we’re less interested in the outcome of this application and more in the process of decision-making and to what extent citizens are involved. In this line we’ve always criticised the way in which national developments were designated in the latest NPF, in particular Hunterston where its late inclusion meant there was almost no local input into the decision-making process.

National development status was designed by the Government to smooth large developments through the system by establishing the ‘need’ for the development at an early stage. However in our view, none of the national developments received nearly enough scrutiny from the public before being given this greenlight.

With the recent vote at North Ayrshire Council the Hunterston story could be good news for a better process. If the ‘need’ for specific national developments can be revisited at the development plan stage there is a better chance public scrutiny will come to bear on proposals, as has happened here. The healthy arguments over local and national interests, and social/environmental/economic considerations can be had more easily at this stage for large developments.

Naming Hunterston in the NPF seems, at this point in time, to be a good thing. It has allowed good public discussion to take place; but, if by naming Hunterston in the NPF makes all future arguments and discussions academic, it will not have helped create a discursive, participatory system where people can genuinely engage.

The Government should allow the ‘need’ for Hunterston, and all national developments, to come under public scrutiny again at the local development plan stage. It should not over-rule the local Council’s decision to knock Hunterston from its plan.

It seems the use of the term NIMBY is being increasingly used despite the many protestations we hear from our supporters about the term.

The government down south have been making contradictory noises for some time, promising both to promote a transfer of power to the people through its localism agenda, and to ensure, as in the quote above by Michael Gove, that reform will ensure that growth is prioritised, as represented by the idea that there should be an explicit ‘presumption in favour of development’ at the heart of planning policy in England.

A similar set of tensions have also long been apparent in Scotland, where the government has promised people more opportunity to participate in the process whilst also insisting that this participation is only welcome as long as it supports the idea that planning should be about promoting (sustainable) economic growth.

There is something very significant about the contradiction between growth and local democracy, and it is well represented by the idea of NIMBYism that Gove invoked to justify the government’s shift in emphasis towards growth. So let us consider what is happening here and how this perjorative term is used by advocates of development (including Governments on both sides of the border).

The idea of NIMBYism (from ‘not in my back yard’) has become a widely used label that effectively works to dismiss opposition to development as a selfish act that is intent on promoting private interests at the expense of the wider public good of development. For some time,  however, academics have debated whether the idea of NIMBYism is a useful concept at all. Whilst there may be occasions when opposition to development does take on a NIMBY character, it seems much more important to analyse who is using the label and what they are trying to achieve by invoking the N-word.

In our experience, people have a wide range of valid motivations and genuine concerns about the need for or viability of projects or proposals.  It is therefore somewhat ironic that, on the one hand, they are invited as good citizens to participate in the planning system to represent their views and help to shape decisions,  yet, on the other hand, if they are opposed to development they often find they are dismissed as NIMBYs whose views are not legitimate. The label is therefore used as a means of silencing opposition in a way that masks rather than illuminates the range of different motivations and emotions that development generates.

A planning system that is increasingly expected by the Scottish Government to “stimulate sustainable economic growth” or the new rules in the English planning reforms that  include a “presumption in favour of sustainable development” immediately therefore create a no win situation for anyone wishing to oppose development who are automatically deemed to be NIMBYs.  This reveals the reality that it is not actually possible for a government to promote both heightened citizen participation and control of the planning process alongside a policy that predetermines the outcome of that process!
As our case studies are clearly showing, development often ignites opposition, and raises a wide range of different emotions as people mobilise in response to a perceived threat to what they value in their local area. With the outcome skewed towards development, labels like NIMBY become an important means of managing the inevitable conflict that follows, minimising debate and stifling real scrutiny of development by refusing to recognise the validity of anti-development arguments.
So the use of the label NIMBY takes us to the heart of an important contradiction for anyone interested in a more democratic planning system, revealing the limits to government rhetoric about localism or participation, and the reality that these processes often become little more than a means of legitimating the predetermined answer to any application for planning permission regardless of its impacts on local people or the environment.

I’ve learnt lots about planning over the past few years but masterplans are one thing I’ve just never got my head around. They are clearly very influential – one local to me, the Caltongate masterplan in Edinburgh, has been recently revived after the last developer went bankrupt.

But what are they? What sort of rights do people have to be involved in deciding what goes into one (or even if we need one)? And what sort of standing do masterplans have in law and in determining future development? I decided to force myself to sit in the local library and find out.

What I discovered is that masterplan is basically jargon for ‘supplementary guidance’, which is a document adopted by the local authority that gives more detail to an issue identified in the local or strategic development plans (SDP/LDP).

This document can cover just about anything related to land and development – like detailed plans for development of small areas, guidance on the location of developments like wind farms or detailed policies on the design of new development.

What role does supplementary guidance play in determining applications?

Firstly, a reminder that planning applications are decided “in accordance with the development plan unless material considerations indicate otherwise” (Scottish Planning Policy). This means that developments that fit the development plan are very likely to be approved.

Before 2009, supplementary guidance was a material consideration; now however, supplementary guidance has been promoted to form part of the ‘development plan’.

In other words, supplementary guidance has the same standing as the SDP or LDP when it comes to the planning authority determining planning applications. It therefore plays a very key role.

There is a small complexity… supplementary guidance is part of the ‘development plan’ as long as the principle of the development is already established in the SDP/LDP and the subject of the guidance is specifically referred to there as “matters which are to be dealt with in supplementary guidance” (Regulation 27). Local Authorities can still produce supplementary guidance that is not specifically referenced in the LDP/SDP but its standing will be different – it will considered a material consideration (probably a very influential one if recently adopted) and is referred to as non-statutory guidance.

Old Masterplans

What about old supplementary guidance adopted before 2009? This will remain a material consideration. However if an old masterplan is specifically linked to from a newly published LDP/SDP its standing will likely be promoted to ‘development plan’ status. I expect this would follow a brief update and consultation.

What sort of rights do citizens have to influence supplementary guidance?

The Planning Act requires for planning authorities to ensure that there is “adequate publicity of the proposals” so that people “who may be expected to wish to make representations to the authority about the proposal are made aware that they are entitled to do so”, and that people are “given an adequate opportunity of making such representations”. The deadline for representations must be publicised too. (Circular 01/09)

These requirements for advertising supplementary guidance are significantly less prescriptive that of the SDP or LDP – there are no minimum time-scales, specific advertising requirements or other stipulations.

After publicity the authority are to “consider any such representations timeously made to them”. They then must send the Scottish Government a copy of the guidance they wish to adopt along with a statement setting out the publicity measures they have undertaken, the comments they received, and an explanation of how these comments were taken into account. After 28 days, the authority may then adopt the guidance unless the Scottish Government have directed otherwise. (Circular 01/09).

The regulations for adoption are less onerous again compared to those for adopting the SDP or LDP.

These lighter-touch regulations might give Local Authorities the scope to tailor their public engagement to the supplementary guidance being produced. It could however be a back door to bringing controversial details of a development into the development plan with less fuss.

Government oversight

As mentioned above the Scottish Government have 28 days to scrutinise the guidance and the process. The Government intends that its scrutiny will focus making sure the supplementary guidance is properly connected to the SDP/LDP rather than on the detail of the policy itself. This scrutiny is undertaken in practical terms by civil servants in the Directorate for the Built Environment, most probably the planner who has responsibility for your area (territorial planner).

They will also assess whether there has been adequate public involvement. However there is no measure of what adequate means.

If you feel like there has not been adequate advertisement obviously the best way to fight for more would be to contact the planning department at the Council as early as possible. There might also be a way to argue to the Government during the scrutiny phase that there just was not enough awareness in the local area to justify the local authority adopting the guidance.

To argue this you could to speak to the planner with responsibility for your territory at the Government’s Directorate for the Built Environment (just phone up and ask). They would appreciate some clear arguments which you might feel are best written down, if so, ask for their email and put your thoughts in writing.

Your experience?

What is your experience of masterplans and supplementary guidance? We are keen to hear from you.

NOTES: relevant bits of legislation for supplementary guidance

Planning Circular 1/09: Development Planning. Paras 93-99 – www.scotland.gov.uk/Publications/2009/02/13153723/9

Town and Country Planning (Scotland) Act 1997 subsection 22 as amended by Planning etc. (Scotland) Act 2006, Part 2 – www.legislation.gov.uk/asp/2006/17/section/2

The Town and Country Planning (Development Planning) (Scotland) Regulations 2008. Regulation 27 – www.legislation.gov.uk/ssi/2008/426/regulation/27/made

While supplementary guidance can be about a wide range of things there are some issues that cannot be considered in supplementary guidance. These are detailed in Circular 01/09, para 97.

The community council are coordinating the local citizen’s under the Residents for Responsible Development banner and are keeping a daily blog on proceedings – read about it at www.clpc.org.uk/id11.html

They are raising their own funds for legal advice and attending the inqury every day at their own expense. It’s amazing dedication from people with reasonable demands and a level head who want to have a fair voice in deciding the future of their area.

You can read the background and donate at SOS Limekilns or read our case study on the background planning process and public involvement.

The bridge has been mooted since the 1970′s but in 2006 a Scottish Government Reporter recommended the development be removed from the local plan. Since then however the council have continued to support the bridge development to ease traffic congestion and provide access to the city centre for 7,000 new houses planned to the north of the city. In March 2010 the council granted permission for the crossing through Tillydrone, one of the poorest areas of Aberdeen.

What has been the role of local people?

The community councils and residents around the proposed bridge have been involved in consultations over many years and are campaigning to stop the bridge under the Donside Crossing Communities Alliance.

They argue from local experience that the bridge will not solve traffic congestion but just bring more cars into the city centre and move congestion inwards. They have proposed alternative plans to speed cars around the centre including a flyover for a congested major roundabout.

They also argue the bridge will increase traffic and pollution to an unacceptable level and sever the Tillydrone community in half; all for the benefit of wealthier areas to the north where the new housing is planned.

Resident’s feel like they have been sidelined. They felt they were “on our own” when campaigning and not supported by political representatives.

During Planing Democracy’s visit to Tillydrone people pointed out they were unpaid volunteers who were expected to participate in a system where other the stakeholders were paid professionals.

They said there was “no time to draw breath with structural plans, the local development plans and then application” in quick succession and that “Neighbourhood Community Action Plans, which then just disappeared, took the attention away from structure plans and local plans”. There was “so much information – we can’t cope”.

Residents participated in the structure, local and application consultations but feel like the major decisions had already been taken. Not least because the bridge was a flagship policy for the ruling political party. One resident said the process was “political manoeuvrings, not planning!”

They called for the Government to ‘call in’ the project and decide the application centrally. People felt that taking the decision “outside the castle walls”of the local authority was the only way to ensure local politics were kept out and planning considerations were given priority.

A ‘call in’ did not happen however and the bridge was given the green-light in March 2010 by Aberdeen Council. The development requires the ‘compulsory purchase’ of land that’s part of 60 people’s properties and sections of registered common good land.

Objections to these compulsory purchases from local residents have triggered external scrutiny via a public local inquiry that was heard on 29th November in Tillydrone. When the decision is made we will publish an update.

Politics in planning?

Is politics in planning a problem? Though they may involve a technical element, planning decisions are also always highly political, raising value-laden questions about the kind of places we want to live in now and in the future.

To make good decisions in this political sphere there needs to be debate on equal terms. Inequalities of access to various resources and power needs to be challenged to provide a level playing field between stakeholders. And at the start of this debate the outcome cannot already be decided, the participants have to be able and willing to change.

Clearly local authorities need to be able to support good infrastructure projects and plan the future of their area but the best plans are influenced from the bottom up as well as from top down. In Aberdeen and Tillydrone it seems inequality rules and bottom-up influence is being trumped again.