The Changing Face of Planning - Not just another retrospect but are we going in the right direction?

Scotland
We hosted a conference on 25 August 2011 with the focus on ‘The Changing Face of Planning ' Not just another retrospect but are we going in the right direction?’

Ann Faulds, Partner and Head of the Planning Team at CMS, chaired the conference with the aim to look at the way the planning system has changed in Scotland after 4 years of statutory planning reform, and to discover; Are we seeing culture change? Better engagement?  Better outcomes?  Better value?  And ultimately is the planning system now enabling sustainable economic growth?

With an excellent line up of speakers from all sectors the conference was well placed to examine the impact of reform from all perspectives, from the Scottish Executive (Jim Mackinnon, Director for the Built Environment and Chief Planner), local government (Pamela Ewan, Manager, TAYplan Strategic Development Plan Authority and Alastair MacDonald, Head of Planning, Glasgow City Council), the business community (Graham Birse, Deputy Chief Executive Edinburgh Chamber of Commerce), planning and design consultants (Stephen Tucker, Director, Barton Wilmore), planners (Aileen Grant, Senior Planner, Dundas & Wilson) and from the appeal end of the planning system (Oonagh Gil, Deputy Chief Reporter, Directorate for Planning and Environmental Appeals) and mediation (John Sturrock QC, Chief Executive of Core Solutions).

Jim Mackinnon, Director for the Built Environment and Chief Planner, has led the most significant reforms of the planning system in Scotland in over 50 years and he described the transition from the old to the new system as having been relatively seamless.  The direction of traffic has now been set and unsurprisingly in these times, the economic strategy is at the forefront.  The Chief Planner is confident that planning reform is going in the right direction; development plans are in a healthier position than previously; development management is going in the right direction; e-planning and local review bodies have both been a fantastic success; and agencies have generally provided positive feedback.  While there are times that agencies have to object to development proposals, the key messages from the Chief Planner are proportionality and efficiency.  Jim Mackinnon acknowledged that there is still unacceptable delay in the system and he would like to see the preoccupation with inputs transferred to a focus on delivery.

The view from Graham Birse of the Edinburgh Chamber of Commerce was that planning has become more inclusive, efficient and less prolonged since the implementation of the 2006 Act.  That said, there is a need to introduce a sense of urgency to the process.  The Act is being implemented in a different context to that in which it was drafted; the economic context has deteriorated and public sector spending is under pressure.  There is a long period of austerity to come and with growth, recovery and employment dependant on the private sector, the contribution of planning is critical.  It is important planners understand that the economies of development have fundamentally shifted - previous assumptions of growth no longer apply.  A way to facilitate development in the current environment must be found or it will be to the detriment of development which could have created employment.  And while not all developers have had a positive experience, Edinburgh Chamber of Commerce does see that the culture that planners are the guardian and policeman of development is changing to that of enabler of development.

Pamela Ewan, Manager of TAYplan, described the challenge of the 5 year development plan cycle which the planning reform imposed. Change in legislation alone does not equate to better Development Plans but culture change involving all parties is necessary.  This message from Pamela Ewan in respect of one distinct aspect of planning reform was echoed throughout the day - culture change is the real driver of reform.  There are various challenges faced by the Development Plan teams.  Development Plans must be fit for purpose and genuinely lead change.  But there is also the balance of driving efficiency and inclusivity.  For example, 77% of recent responses to a TAYplan consultation were received online, saving 6 weeks of process.  And while there have been improvements and good progress has been made, there have also been slippages.  Local authorities need to work together to research the reason for those slippages and learn from one another. At the moment, a variety of Development Plan styles are emerging and again, this needs to be looked at to identify the best way forward.

With extensive experience of working with both private and public clients to deliver major projects, Stephen Tucker, Director of Barton Wilmore agreed that planning is going in the right direction. However, while he agreed there is a structure in place which could work to bring delivery, sustainability and growth, (National Planning Framework, Strategic Development Plans etc.) he did question whether strategic or local development plans can really get into the key areas affecting development and growth, namely ownership, marketability, funding and delivery.  He posed the question ‘what’s wrong with 50 year plans?’ and concluded planning must still continue to be more visionary and ambitious but there must also be a commercial and practicality to it.

Aileen Grant, previously a Senior Planner at Dundas & Wilson advised clients on pre-application consultation. Greater community engagement was a key aim of planning reform, yet several years on Aileen Grant feels that the planning hierarchy and the need for pre-application still comes as a surprise to many. Among planning authorities, there is a lack of consistency in the requirements for Proposal of Application Notices and there is no quality guidance for Pre-Application Consultation Reports.  A Scottish Government Review in March 2011 concluded that pre-application consultation is “only as good and as useful an exercise as those involved want to make it.” However, while there is concern that the 12 week period for consultation over major applications is too long, and in particular the requirements excessive for Section 42 applications, there are examples of improved quality of applications and lower levels of opposition to development proposals.  That said, there is also evidence of a tick box approach to fulfilling consultation requirements so partnership must remain an aspiration to get a win-win solution for developers and the public.

The role that mediation can play in planning was discussed by John Sturrock QC who is regarded as one of the leading mediators in the UK and founded Core Solutions Group.  A powerful illustration of the potential of mediation came out of the mediation in planning pilot project 2010-2011 when a participant concluded “we overcame a range of problems in 8 hours which could have taken more than 2 years.” While mediation can be useful tool at any stage of planning, John Sturrock QC sees the potential of mediation to be greatest utilised in the early stages, pre-application.  There is still a long way to go until mediation is part of the culture in the planning system but that could change if developers appreciate the value of mediation rather than just an additional cost burden.

As Head of Planning and Building Control at Glasgow City Council, Alastair MacDonald recognised the implementation of the 2006 Act would be a mammoth task which needs commitment from all parties.  It has required a substantial local authority resource but despite receiving complaints from staff on the time required to deliver, he is certain that implementing reform has to continue and Glasgow City Council will see it through.  To give a flavour of the experience in Glasgow, Alastair MacDonald highlighted several areas; as a result of the changes to neighbour notification, one positive has been a reduction in complaints in relation to this due to the cautious approach adopted by the Council (although this has been at a cost of £70,000 to the Council); the reform to the process for Section 42 applications has been a big concern, with a lot of the process described as unnecessary rigmarole; it is also frustrating that a lot of small scale developments still end up being determined by committee; the local development plan process is resource intensive and not necessarily delivering the desired result; and while Jim Mackinnon described local review bodies as being a great success, in Glasgow City Council, Alastair MacDonald admits they are still not quite right. However, overall reform has been positive.  Several areas are now more complex than before (not something Jim Mackinnon would argue with), but it seems the recession has created a hiatus which means it is still early days for a full assessment of the changing face of planning.  Like Stephen Tucker, Alastair MacDonald feels we must not blunt creativity by process and in certain circumstances we do need to take risks with our historic and built environment.

Finally, what impact has planning reform had on the work load of the Directorate for Planning and Environmental Appeals?  Oonagh Gil, Deputy Chief Reporter explained that the local review bodies have had a major impact on reducing the number of appeals against the refusal of planning permission.  Of those cases that are still determined by DPEA, the Reporter now has to choose the most appropriate procedure in each case.  This can be vexed as parties still want a right to be heard and often do not understand why an alternative procedure has been chosen. Oonagh Gil is aware that concern has been expressed that there has been a reduction in the number of inquiries and hearings.  However, she said the numbers do not back up that concern and a similar percentage of cases continue to be determined by some form of oral process, albeit that the sessions are more focussed. In terms of the examination of development plans, of those recently concluded the average time taken was 26 weeks (compared to an average of 70 weeks for the outgoing system).  However, issues surrounding the examination of development plans under the new system are still coming to light and the Reporters need to be ever mindful of ensuring natural justice principles are still adhered to.

So it would seem that planning is going in the right direction but there is still more to be done.  Alun Lundmark of Homes For Scotland gave a practical example that housebuilders need to complete and submit 23 separate assessments for a planning application.  This is a huge up front spend which does not add value to the housebuilders and often decisions could have been taken without all those studies.  Surely that resource could be spent more effectively?  Alun Lundmark stated housebuilders would sign up for an increase in fees if it meant better service and could guarantee a predictable system which would allow developers to get decisions on time and on budget.  Ann Faulds concluded with a suggestion that few developers would disagree with – if we want to see positive changes in planning, particularly in these difficult times, economic growth has to be material consideration in planning decisions.