Scotland Planning Law - Case Study Example

Scotland Planning Law: The Right of Third-Party Appeal, Environmental Justice Introduction Thisdiscussion will focus on how the introduction of Third Party Appeal (TPA) integrates the planning process and environmental concerns. It will expose the opposing points of view regarding TPA with supporting arguments of relevance. It will also examine the effects of this new public inclusion into the governmental process in Ireland. TPA was initially envisioned by public interest regarding sustainable development as well as on environmental justice in the planning procedures; therefore, both will be discussed. As a foundation one must begin with legislative directives concerning planning and TPA. The UN Access to Justice in Environmental Matters Act was adopted on 25 June 1998 and then by the European Parliament Council in 2003 and finally ratified by the EC at the Århus Convention on 17 February 2005. These directives concerned access to environmental information and public participation in environmental decision-making (Arhus 2006). The Town and Country Planning (Scotland) Act 1997 (White, 2003, p. 5) intended to address what is seen as inherent unfairness in the current legislation which allowed applicants in planning applications the right of appeal when an application is refused but allows no such right to objectors by parties other than the developer or local planning board when an application is approved. The reality of community involvement in planning came to Scotland as a statutory duty under the Local Government in Scotland Act (April) 2003 (Local Government 2003). In December of 2005, the Planning Bill was introduced to the Scottish Parliament (Begg 2006) to the disappointment of the Green Party and the Royal Society for the Preservation of Birds (RSPB). These organizations believe the Third Party Planning Rights of Appeal Bill would provide an important voice in decisions made in planning applications. A further dissertation of these groups’ concerns as well as the laws mentioned are included in the discussion. The Arguments for Third Party Rights of Appeal There is a broad public opinion that developers having a right of appeal whereas third parties do not are unfair. “Legal challenge to planning decisions is available through Section 237 of the 1997 Scottish Planning Act or by judicial review but neither can deal with the merits of a case and the process is expensive, time consuming and inaccessible to many” (U’ren 2003, p. 2). People whose lives or property could possibly be adversely affected by a planning decision should be allowed the opportunity for appeal against a decision. Third party rights of appeal (TPRA) may be considered within the spirit of human rights and environmental justice legislation as defined by the European Convention on Human Rights and the Aarhus Convention and as indicated in the practice of other countries. “Planning authorities are not always consistent in their decision-making and in the interpretation of material considerations where the development plan is out of date or unclear and accountability in such situations should be equally important for approvals as well as for refusals” (U’ren 2003 p. 2). The introduction of TPRA need not automatically lead to a large number of appeals if enacted. It is only a last resort in cases where third parties feel that a decision has not been taken correctly. Potential delays could also be minimised by introducing a limited TPRA along with other reforms to the planning system. “Other mechanisms such as shorter time limits for appeals (first and third party), would help speed up the process – for example, the appeal period for all parties could be reduced to 28 days rather than the current time limit of 6 months or the proposed time limit of 3 months. Most appeals could also be dealt with by written representations, as in Ireland where 98% of appeals are by written submission, rather than oral hearings” (Pepper & McCall n.d.) TPRA would assist in rebuilding public confidence and trust in the planning system thus making it possible to speed up the majority of planning applications. “Developers claim that TPRA ‘would clog up the whole system’, yet the source of many current delays are those developers who submit repeat, twin-tracked or poor quality applications. Over 60% of all first party appeals are rejected, showing that developers are launching unreasonable appeals and adding to the workload of reporters” (Pepper & McCall n.d.). Costs that are incurred in the first few weeks of evaluating a development arising from a TPRA would be a public benefit for many years. “Many claimed costs could be significantly offset by other changes in the system such as those outlined above such as the use of written representations. If the system is designed well it will result in higher quality applications and greater levels of public participation at an earlier stage, with TPRA only used as a last resort” (Pepper & McCall n.d.). A TPRA would increase the transparency of the planning authorities. “The existing right of appeal for developers enables them to lodge appeals which scrutinise the decisions make by local authorities, why would extending this right to third parties undermine local authority decision-making any more than the current system?” (Pepper & McCall n.d.). In Ireland, only a small percentage of permissions has been appealed and most appellants seek to revise the conditions of development, not to stop it. As evidenced, authorities have been able to deal with any increase in workload. “Despite these hurdles, studies have found that 100% of local authority officers and 88% of all appellants in Ireland were firmly in support of third party appeals” (Pepper & McCall n.d.). Community representatives in Ireland, not individuals, are those more likely to file a third party appeal. These groups are surely more representative of communities than developers who already have a right of appeal. “Interestingly, recent research from Australia and Spain has underlined the vital role of so-called nimbys in protecting the public interest against developers. There are very clear arguments for the importance of TPRA in upholding the community / public interest in development” (Pepper & McCall n.d.). A TPRA would not attend to all the deficiencies of the planning system but it could offer third parties a means of challenging those decisions which they believe to be wrong. “By introducing a limited TPRA we are likely to see increased efforts on the part of local authorities to involve the public in development plan preparation and additional resources allocated to keep these plans up to date” (Pepper & McCall n.d.). The end effect of TPRA is to guarantee a less harmful execution of the planning policy. “Therefore, if such social developments were supported by planning policy, they should not be unduly affected by TPRA. As well as commercial developers, development is undertaken by community based housing associations, cooperatives or voluntary organisations seeking to provide services for disadvantaged people, such as affordable rented housing, sheltered accommodation, etc” (Pepper & McCall n.d.). TPRA would deliver better developments being built, since it would ensure that commercial house builders deliver on promises to include affordable housing in new market-based developments and many PFI projects would benefit from the greater scrutiny that TPRA would bring. “We advocate the use of mediation services, which have worked well in other countries where TPRA already exists. The issue therefore is how TPRA is designed, not whether we need it or not” (Pepper & McCall n.d.). Green party perspective Currently, developers have the right to appeal planning decisions but local residents or neighborhood organisations do not have the same right. Greens argue that this makes the system inherently unfair and biased, and compromises public capacity for involvement in local planning. To ensure a fair and effective, workable planning system, the right of appeal should be limited to cases where the local authority has an interest to ensure the planning system is more open and transparent, where the application is contrary to the local plan, more up-to-date plan, when planning officers have recommended rejection and where an Environmental Impact Assessment is needed. Third party input is vital for the planning system to support sustainable, environment friendly development. The Greens three main reasons for a TPRA are: “The need to oppose environmentally unsound developments. The injustice of having a developer right of appeal, but no similar right for objectors and the need to stimulate more engagement between developers and communities before developments are promoted” (Planning Bill 2005). They believe that a TPRA would: “Create a fairer and more effective planning system for all, a more inclusive and accountable planning system, a more reliable and predictable plan-led system, which could also improve the quality of planning applications and a better perception of the planning system and thus increase people’s trust that they have a system which will deliver quality outcomes for all parties concerned” (Planning Bill 2005). RSPB Reaction to Planning Bill and Third Party Rights RSPB Scotland inspects up to 400 planning applications each year and is enormously concerned about the implications of the December 2005 Planning Bill. “Whilst the Executive claims that the Bill will give local people better opportunities to influence decisions that affect them, RSPB Scotland asserts that this is absolutely not the case, and actually risks reducing the rights they already have” (RSPB Public Relations Department 2005). The Bill raises concerns that the most counter-productive developments can no longer be challenged by local communities. “RSPB Scotland is worried that this could potentially create a disparity across Britain, as in the rest of the UK high level development plans are subject to an examination in public. In the absence of this scrutiny, Scotland could become a dumping ground for the most controversial developments in Britain” (RSPB Public Relations Department 2005). Despite broad public support for a TPRA, the Executive decided to snub public opinion. Though pleased that the Bill includes a modest obligation to contribute to sustainable development, the RSPB questions why that the sustainable development commitment in the Planning Bill does not reflect the recent positive intentions of the Sustainable Development Strategy published by the Executive. “The National Planning Framework is an important document that could establish the principle of development for a range of projects including power stations, roads, transmission systems and landfill sites. This situation can easily be remedied by holding an examination in public, a procedure which is undertaken for similar development strategies across the UK, so why not in Scotland?” (RSPB Public Relations Department 2005). Arguments Against Third Party Rights of Appeal The ability of Scotland’s planning system to function properly is pertinent with the Executive’s own figures showing that “less than half of Scotland’s planning authorities are currently meeting the target of processing all major residential and business applications within four months. Many fear this new legislation will turn the most routine application into a bureaucratic nightmare” (Crucial Concerns 2004). England, Wales and Northern Ireland have excluded TPRA from planning law because of the problems this puts on the planning system and the corresponding economic damage. “Concern that Scotland’s competitiveness would be severely damaged cannot and should not be brushed aside as irrelevant or inconsequential. To do so would make a mockery of the First Minister’s pledge to make the economy ‘our top priority.’ Either it is, or it isn’t” (Crucial Concerns 2004). Even the restricted application of appeals is likely to significantly increase the workload of local authorities amongst many other problems such as: “On the experience of the Republic of Ireland, third parties may use the threat of appeal and the resultant delay to coerce developers into concessions” (U’ren 2003). Third parties don’t always represent the interests of a community as a whole in planning. “The role of the statutory planning authority as decision-maker in the regulatory process complements that of policy maker and should be supported rather than undermined. Planning takes away the rights of property owners but does not remove any existing rights of third parties” (U’ren 2003). TPRA in other countries The argument that a TPRA would create a meddlers character by the public to many planning decisions has not been the case in Ireland and is probably not going to be the case in Scotland. Fees and rules to deter frivolous and vexatious appeals could be easily put in place. “We are advocating a limited right of appeal, limited to those people who had originally objected to the application, and only certain categories of application would be subject to TPRA. Experience from Ireland suggests that repeated appeals by meddlers are unlikely to occur: 67% of all third party appellants in Ireland had never made an appeal before, and of the 15% who had made more than 5 appeals, these were all legitimate organisations such as local residents groups” (Pepper & McCall n.d.). TPRA would be a deterrent to investment in the economy The average GDP of Ireland, Sweden, Australia and New Zealand, all countries with TPRA, have, for the last five years, been greater than that of the UK. “Evidence from regimes where TPRA has been introduced show that it has served mainly to improve the conditions attached to consents (in Ireland almost 60% of appeals led to revised conditions in 1999 and 2000), thus enhancing their public benefit, and not to block them” (Pepper & McCall n.d.). The graph shows the Gross Domestic Product percentage of growth has increased in four of five countries that have employed TPA. Based on information obtained from the World Bank (Pepper & McCall n.d.) “In 2002 in the Republic of Ireland only around 7 % of all planning decisions were appealed and of those appeals 52 % were brought by a third party. In these cases, more third party appeals resulted in a revised decision (54 %) rather than an outright refusal of permission (45 %), giving evidence that third party appeals were successful in upholding the rights of the community, rights that are not available in Scotland” (Briefing 2004). Sustainability in long term development plans “Sustainable development and environmental justice is not one and the same thing, but in many respects they share common goals” (Review 2005). There are many issues packaged in the various viewpoints on sustainable development. “There are very different perspectives on the current balance between social, economic and environmental goals in planning policy and practice, with some suggesting that, in rural areas at least, environmental protection is greatly hindering necessary social and economic development. Others hold an entirely opposite view” (Royal Commission 2004). While most recognize the need to incorporate sustainable development more so into the planning processes, there are differing views as to whether that will increase or decrease the influence of environmental protection balanced against economic and social goals (Royal Commission 2004). Another difficulty is the integration of National and European Union strategies for sustainable development into local level plans. “It has been suggested that local authorities should have a statutory duty to promote sustainable development. This also has a bearing on the issues of public participation and democratic control of the planning process” (Royal Commission 2004). EU/UN and Third Party Appeal “The UN Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted on 25 June 1998 in the Danish city of Aarhus (Århus)” (The Aarhus 2006). The Århus Convention established rights of the public with regard to the environment. Public authorities are to play a factor by permitting these rights to become effective. The Convention provides that citizens are entitled to obtain environmental information within one month of the request and without having to say why they require it. “In addition, public authorities are obliged, under the Convention, to actively disseminate environmental information in their possession and allow the public to participate from an early stage in environmental decision-making. “Since signing the Convention in 1998, the EU has taken important steps to update existing legal provisions in order to meet the requirements of the Århus Convention by means of legislation directed to the Member States, but also for its own institutions” (The Aarhus 2004). The EU directives intention is to ensure the possibility of the public to have a say in the planning processes and have access to justice regarding environmental matters (The Aarhus 2004). Conclusion Introducing a third party right of appeal where local authorities might have a personal interest would reduce speculations of improprieties. It is also practical when the planning application is in contradiction to the development plan or accompanied by an Environmental Impact Assessment or where local authorities grant consent contrary to the advice of their officers. “Safeguarding Scotland’s rich and diverse natural heritage and built environment including the wider historic and cultural landscape, improving areas through regeneration, safeguarding biodiversity, environmental improvement and restoration, encouraging efficient use of resources and enabling access to recreational opportunities and open spaces in urban and rural areas can all be supported by a proactive approach to planning” (Scottish Planning n.d.). Environmental justice requires the public and the government to realise the swelling impact of environmental mismanagement and ensures people do not have to live in sullied surroundings. It also means not making unrealistic burdens on the environment to absorb waste and pollution. “Protecting and enhancing the quality of the environment, in both urban and rural areas, is a key objective of the planning system. The condition of our surroundings has a direct impact on the quality of life. The conservation and enhancement of both the natural and built environment bring benefits to local communities and provide opportunities for economic and social progress” (Scottish Planning n.d.). References Begg, Susan. Planning and Building. 2 February 2006. Scottish Executive. 20 February 2006 “Briefing on the Introduction of a Third Party Right of Appeal in Scotland.” March 2004. Friends of the Earth Scotland. 20 February 2006 “Crucial Concerns on Planning.” 14 December 2004. The Scotsman. 20 February 2006 Pepper, Jessica & McCall, Anne. “Myths About Third Party Rights of Appeal in Planning.” n.d. Scottish Environment LINK. 20 February 2006 “Planning Bill: Vital for Scotland, but Ministers are Expected to Continue to Fail on Environmental Justice.” 19 December 2005. Scottish Green Party. 20 February 2006 “Review of Progress on Environmental Justice Paper 2005/37.” 14 December 2005. Scottish Executive Publications. 20 February 2006 “Royal Commission on Environmental Pollution Environmental Planning Study Themes Emerging From the First Phase Responses.” 12 January 2004. Royal Commission on Environmental Pollution. 20 February 2006 < http://www.rcep.org.uk/epissues.htm> RSPB Public Relations Department. “Planning Bill – A Huge Disappointment for People and the Environment.” 20 December 2005. Royal Society for the Protection of Birds. 20 February 2006 < http://www.rspb.org.uk/scotland/policy/planningbill.asp> “Scottish Planning Policy.” n.d. Scottish Executive. 20 February 2006 “The Arhus Convention.” European Commission. 6 January 2006. Europa. 20 February 2006 “The Local Government in Scotland Act 2003.” Community Planning Statutory Guidance. 2003. Scottish Executive. 20 February 2006 < http://www.scotland.gov.uk/library5/localgov/cpsg-00.asp#3> U’ren, Graham. “Widening the Right of Appeal in Planning in Scotland: An Interim Statement.” September 2003. Royal Town Planning Institute in Scotland. 20 February 2006 White, Sandra. “Proposed Third Party Planning Rights of Appeal (Scotland) Bill: A Consultation Paper.” 3 July 2003. Scottish Parliament. Read More