What is Equal Right of Appeal?
ERA gives communities the opportunity to appeal planning approvals. Currently, only applicants have the ability to appeal refusals of planning permission. ERA balances out who can make appeals to include the people most affected by a decision to approve.
Why do we need it?
ERA is named ‘equal rights’ because it provides the opportunity for those most affected by the planning approval the right to appeal that decision. We believe this is just as important as allowing applicants the opportunity to appeal/test the refusal of an application. We are sure MSPs can think of examples where planning permission has been granted, but the reasons for doing so are tenuous or weak. ERA would enable such weak approvals to be changed (i.e. have their conditions amended) or dismissed entirely if it is exceptionally weak, without the Local Authority risking the expense of a court battle. Most importantly, ERA would encourage developers to engage communities and propose developments that meet local needs.
Who is in favour of ERA?
It is difficult to generalise, but Planning Democracy has heard from communities all over Scotland who want the right to seek further scrutiny of planning decisions in their local area. These people include individual residents, local business owners, community councils, as well as larger campaign groups. A wide range of organisations have in the past supported ERA, including the 32 organisations that form Scottish Environment LINK. The last time this issue was debated in 2005 86% of public consultees supported introducing what was then called ‘third party right of appeal’.
Who is against ERA?
Planning Democracy’s 2014 petition to the Scottish Parliament (PE01534) received objections from organisations such as Homes for Scotland and other volume house builders. Interestingly, other planning organisations such as Planning Aid Scotland and the RTPI Scotland were also against ERA. The last time it was debated, in 2005, 14% objected to the proposal. Objectors were chiefly practitioners in the planning and development professions.
Their concerns are addressed below.
Currently this is the key argument being used to deny people their rights
They say: We remain committed to frontloading (ie getting people involved at the development plan stage of the process) rather than focussing on the planning application end.
We say: During the 2006 planning reforms the Government rejected ERA (or TPRA as it was then) in favour of “front-loading”. This means encouraging people’s participation at an earlier stage in the planning process and is a sound objective. If done well, this approach can lead to higher quality development, with concerns having been ironed out prior to application stage. However, there is, as yet, no systematic evidence to demonstrate that this has been delivered. Even the Government’s own review came to the conclusion that front loading consultation has not worked, yet it recommends more of the same and continues to refuse the public a right of appeal.
Planning Democracy welcomes any concerted effort to include people in designing development plans. However, we must recognise that the planning application stage will always remain a key focus for people as that is where the details and implications of plans come to light. The Government have a duty to engage with the valid concerns that are raised at this stage and not to fob people off with the less tangible development plan consultations.
Want to know a bit more about this frontloading business?
Frontloading means that instead of people and community councils objecting to individual planning applications (which is apparently too aggressive) we should encourage people to get involved in the development plan. The development plan is the document that guides planning decisions. Planning applications are supposed to fit in with what is planned for in these development plans. The argument for ‘frontloading’ suggests that by engaging people in the drawing up of these development plans means that they have no need of rights to challenge decisions made later, optimistically assuming that all the issues will have already been ironed out. However, this unacceptably simple view does not reflect the reality of the process. It assumes firstly that communities are aware enough and motivated to engage in development planning, the reality being that most people have no knowledge of what a development plan is or how to get involved in the process.
Secondly it assumes that community aspirations will be reflected in development plans when, we know that the reality is that there is no guarantee that this will be the case.
Thirdly, it assumes that development plans are prescriptive and detailed enough to determine exactly what gets built, something that has never been the case in Scotland where we have ‘discretionary decision-making’ on a site-by-site basis. It also disregards speculative development, where developers do not necessarily take any notice of what is in the plan and put in applications that do not conform with the plan. PD say it is unacceptable that communities are unable to challenge decisions even when they are contrary to an agreed development plan.
The Government say: instead of ERA we want to give people the right to develop their own Local Place Plan, there will be no need for people to appeal planning decisions if they have their own plan
We say: Even if a local community is able to develop their own LPP (assuming they have the capacity and resources to undertake this huge task) the LPP may not have any status at all. If it is incorporated into the Local Development Plan (which it may not be) there is nothing to stop a developer coming forward with a speculative development and obtaining planning permission for a proposal that is not in the local development plan or LPP. The developer may still get permission for a development that may be contrary to the development plan or the community Local Place Plan and still the community will not be able to appeal that decision.
Which begs the question why should a community bother spending time writing a LPP if the community have no right to appeal a decision that is made that doesn’t reflect what is in that plan?
Here are some other common arguments against ERA that the development industry and professionals try to argue
They say it will slow down the process of deciding applications and clog up the system
We say: Efficiency in decision-making is needed, but must be balanced with other vital characteristics such as an inclusive system which fosters trust from communities. ERA is a mechanism to provide additional scrutiny only where sufficient grounds of appeal exist. We feel a few weeks of additional scrutiny to ensure the appropriateness of a contested proposed development to be acceptable considering effects that may impact a place and community for fifty years or more. The discussions on applications often begin months or years before an application goes in, adding in a short period for ERA adds only a proportionally small period of time to the whole process. It should be noted that ERA would be much less likely to occur where good participation is practiced and the development followed (see more below).
They say it will negatively affect the local economy and investment
We say: There is no evidence whatsoever to support this argument. Looking at the evidence from Ireland (and several Australian states) which have forms of ERA demonstrate clearly that this is not the case. Economic activity in Ireland and Australia has not been affected by the presence of ERA. Moreover, ERA would pose no barrier to development that clearly serves the public interest.
They say there might be hundreds of vexatious appeals
We say: ERA can be designed in ways to prevent such instances. ERA can set certain parameters of what can be appealed, or even be applied to certain types of application. We feel it is not appropriate to completely dismiss ERA without recognising that there are myriad configurations that it can take. Furthermore, evidence from the Republic of Ireland suggests that such concerns are considerably overstated.
They say: ERA will cost money and local authorities will need more resources
We say: While concerns of extra costs are valid, the evidence from other countries such as Australia and Ireland suggest that these are overstated. The number of appeals raised by third parties in Ireland has been consistently 9-10% of all applications. It is therefore considered that extra administrative costs or public spending is minimal. Again, if ERA process is designed well (maybe a tribunal system or by using hearings) it could be designed to be cost effective.
They say: It undermines local decision-making
We say: Accountability and scrutiny are key mechanisms and values in modern democracy and administration. ERA is simply a mechanism that provides the opportunity to provide further scrutiny on weak planning approvals. It is not a means to undermine those that have been involved in making the approval. It provides equality and assurance to concerned residents and organisations that planning developments that are approved are the best they can be. If ERA has arisen, it is because the impacts of the approved development are of concern to the local community – especially those that will be negatively affected by a development for years.
They say: It could centralise decision making
We say: Again, this depends on how you design the system. We would like to look at a local form of ERA something akin to Local Review Bodies where decisions are re-assessed at the local level, perhaps having regionally appointed Reporters rather than having the existing method of appeals decided upon by a Reporter from the DPEA.
And what’s more the benefits of ERA could be groundbreaking
The positive gains that might be made by providing communities with even a limited right to appeal decisions do not seem to have been considered at all by the Government.
- It would address a glaring inequality in planning that should not exist.
- by providing a right to challenge decisions that are contrary to the development plan ERA could, for example, incentivize developers to ensure that proposals are in accordance with the development plan, promoting frontloaded engagement in plan production and the much vaunted goal of a plan-led system.
- ERA strengthens decision-making by correcting weak or poor approvals. In Ireland, the research shows that the added scrutiny results in many applications being improved or conditions attached. It provides an opportunity for really poor decisions to be re-examined and potentially overturned, resulting in much better development.
- ERA has the capacity to substantially improve public trust in planning, enabling heightened scrutiny of controversial proposals, for example, where the decision-maker has an interest in the land, or when a decision is made against an officer’s recommendation.
- The righting of an injustice would go a long way to increasing confidence in our political leadership, giving communities the faith that politicians are not favouring any corporate elites.
Summary: the benefits
- Fix a structural injustice by providing the same rights for communities as developers;
- Encourage development which fits the local development plan (i.e. strengthens the plan-led system);
- Encourage development which meets local needs;
- Enhance public trust in the planning system;
- Improve decisions by ensuring that complex and often highly contentious decisions to grant permission are subject to the same level of scrutiny as decisions to refuse permission.
Perhaps a better question to ask would be ‘what are the risks associated with not engaging the public?’
Public disaffection at being ignored is increasing, people are getting really fed up with being dismissed. So far, the Government have refused steadfastly to listen to communities asking for ERA. They have stamped down any debate on the topic right from the start, literally forbidding us to bring up the topic. However, the strength of community feeling about ERA is clear from the review consultations, the workshops the Government held and when the Government commissioned research into the Barriers to Engagement. ERA has been raised at every single point of the review by communities, and not just a few people either, the responses have been unusually high.
PD regularly hear from people suffering from depression and feelings of despair because they feel they cannot influence what happens around them. In some cases, this leads to health problems.
Some people become so disaffected they disengage and become cynical about any forms of civic engagement. Others become activists.
Watch our presentation about how the Government have stamped out people’s right to even discuss ERA (you will need to have Powerpoint on your computer for this). [LINK to come]
Closing down debate on a topic that is clearly of huge importance to communities is not what we expect from a Government purporting to value community empowerment. It stinks of injustice and corporate collusion.
Help us to dispel the myths around ERA and get justice for the people.