1. Armagh City and District Council 279

2. Ballymena Borough Council 281

3. Belfast City Council 283

4. Castlereagh Borough Council 289

5. Coleraine Borough Council 291

6. Construction Employers Federation 295

7. Construction Employers Federation Response A 297

8. Craigavon Council 305

9. Down District Council 307

10. Hearth Revolving Fund 317

11. Historic Building Council 319

12. Housing Executive NI 321

13. Lisburn Council 323

14. Northern Ireland Environment Link 327

15. Planning Appeals Commission 329

16. The Royal Institute of Chartered Surveyors (RICS) 331

17. The Royal Society for the Protection of Birds (RSPB) 333

18. The Woodland Trust 337

19. Ulster Architectural Heritage Society 341

4 July 2002

I refer to your letter dated 13 June 2002 in connection with the above and would advise that this was considered at a recent meeting of the Council's Public Services Liaison Committee at which the following comment was made in respect of Clause 12 - Listed buildings:

I trust this comment is helpful.

W J Briggs
Strategic Director

28 June 2002

Further to our letter of 18 June 2002 I would advise that Council, at its Public Sector Liaison Committee in April 1999 discussed the proposed amendment to the planning legislation in Northern Ireland and welcomed the changes in the Bill to confirm the enforcement procedures in the planning processes.

Council also endorsed the following comments of the Association of Local Authorities on the Consultation document "Modernising the Planning Process".

The sentence,

is obtuse to say the least. The Association had the feeling that it knew what was meant but would like to see it expressed more logically.

The Department should be urged to ensure that transporting huge and ugly advertising panels on vehicles specifically adapted for such use are brought within the definition of advertisements.

Council was of the opinion that the new processes would require the Planning Department to be adequately restructured to implement them. Council would hope that these resources would be available given the priority on finances for other matters in the Programme of Government.

27 June, 2002

I refer to your letter dated 13th June concerning the Planning (Amendment) Bill and your request for comments from the Council on the Bill.

I note that you have requested a response (or interim response) to the document by 28th June. This short time scale does not allow me to submit your request to the Council's Town Planning Committee, which is responsible for such matters.

As you may be aware, the Council made a formal response in May, 1999 to the initial consultation document setting out proposals for amendments to planning legislation in Northern Ireland. I enclose for your information a copy of the minute of the Town Planning Committee of 15th April which was forwarded to the Department of the Environment at that time and sets out the Council's response to that document. I trust that the comments submitted at that time were given due consideration in the formulation of the Planning (Amendment) Bill.

I note that your letter requests a response (or interim response) providing comments on the Planning (Amendment) Bill by 28th June. As a formal response is not possible within this time scale, I should be grateful if you would confirm whether there will be any further opportunity for the Council to make comments following the Committee of the Environment's consideration of the matter on 4th July. As the Council is in recess during the month of July, any formal response from the Council would have to be agreed at Committee during August and ratified by the Council at its meeting on 2nd September.

Thursday, 15th April, 1999

The Committee was reminded that, at its meeting on 18th March, it had agreed that, in accordance with the Council's Scheme of Delegation, the Chief Executive engage Consultants to assist the Committee in formulating a response to the Consultation Paper which had been circulated by the Department of the Environment for Northern Ireland, Planning Division, outlining proposals for Amendments to Planning Legislation in Northern Ireland.

The Committee was informed that the Chief Executive had, in accordance with the Council's Scheme of Delegation, engaged Mr. George Worthington of Pragma Planning to prepare a report on the Consultation Paper which would assist the Committee in formulating a response to the Government's proposals. Copies of the report, together with copies of the Government's Consultation Paper, had previously been circulated to the Members.

The Members were advised that Mr. Worthington of Pragma Planning was in attendance to present the report and he was welcomed to the meeting by the Chairman (Councillor H. Smyth).

Mr. Worthington presented for the Committee's consideration the undernoted report which identified the principal areas which it was proposed would be amended within planning legislation in Northern Ireland and which provided the basis of a draft response to the Consultation Paper identifying issues on which the Committee might wish to comment:

Members of this Committee attended the Northern Ireland Affairs Committee's hearings and made representations about the planning system in the Province on behalf of the Council. that Committee's report recommended that planning legislation here should be brought in to line with that operating in England and Wales. This Consultative Paper sets out the Department's proposals for new legislation. These can be summarised as follows:-

• (i) changes to the enforcement regime;
• (ii) technical changes to the control of development;
• (iii) the primacy of development plans in determining planning applications;
• (iv) widening the powers in respect of Listed Buildings and trees; and
• (v) altering the structure and composition of the Planning Appeals Commission.

A new system of Contravention Notices, Breach of Condition Notices and the use of Injunctions should speed up and strengthen enforcement. These improvements could be welcomed by the Committee with the proviso that there should be consultation with the Council or some other role for public representatives especially as the Contravention Notice will allow offenders to make representations to the Department about the notice.

As part of this package the Department proposes to increase fines for non-compliance with enforcement notices. The new legislation will not only set more severe penalties including conviction on indictment but also allows the Courts to take into account any profits made as a result of the breach of planning control. This is to be welcomed and should deter offenders who disregard enforcement notices for financial gain.

These changes will establish a more flexible enforcement system e.g. the ability to vary notices and should enable the Planning Service to quickly initiate action e.g. Stop Notices can take immediate effect. Whilst the Department's action in making these improvements are to be applauded, the system will only work efficiently and effectively if it is prepared to make the necessary resources available to implement them. In addition, consultation with Councils can give added democratic legitimacy to the process of enforcement.

Most of the changes proposed in this section of the Department's paper are of a technical nature.

The need for planning permission for the demolition of buildings has been widely debated by Town Planners. The change proposed will clarify the position and may help to prevent the creation of unsightly vacant spaces within the City's fabric.

The ability to decline repeat applications and to dismiss time wasting appeals will remove such cases from the system thus allowing officials to concentrate on more productive work.

Both of these changes could be welcomed by the Committee.

The Planning Order currently requires the Department to give equal weight to the development plan and other material considerations. The proposed change will require it to give consideration, firstly, to the content of the development plan, and then to other material considerations. This does not mean that development will always be approved or refused solely on the basis of what the plan indicates. New plans will, however, require to be more comprehensive and specific in their approach to land uses.

Where a Tree Preservation Order is in place any tree damaged or destroyed will automatically have to be replaced. There is a right of appeal against enforcement notices served for this purpose. The Department should be asked to confirm that the Council will be consulted by the Planning Appeals Commission in such cases.

It is proposed to introduce a new ground of appeal against refusal of listed building consent or a listed building enforcement notice, namely, that the building is not of architectural or historic interest. Currently there is no appeal against the listing of a building and it would appear to be more logical to allow for an appeal at that stage rather than when a proposal to demolish or alter it is being considered. I suggest that the Council's response to the Consultative paper make this point.

Temporary listing (a building Preservation Notice) is proposed where an unlisted building is in danger of demolition or alteration. The listing will expire after six months unless the notice is confirmed or withdrawn and provision will be made for the payment of compensation for loss or damage resulting from the temporary listing. The six month period presents potential developers with an excessive delay. It should be possible for the Department to make a decision about listing within a much shorter time scale, say three months.

The Planning Appeals and Water Commissions will become one body. Decisions are to be made collectively by a small group of Commissioners freeing other Commissioners for casework. Commissioners will be able to report directly to the Department on the outcome of public inquiries.

The Chief Commissioner will be able to appoint a 'panel' of temporary Commissioners either with special expertise or to assist the Commission at times when its caseload is heavy. These changes should help to speed up appeals and to reduce the backlog of casework."

Mr. Worthington outlined the principal aspects of the report and answered a number of questions which were put to him by the Members.

During the ensuing discussion, the Committee welcomed the proposed amendments to planning legislation as outlined in the Consultation Paper as being a positive step towards achieving better control over development issues generally. It was recognised that an important role for the Council continued to be the encouragement of positive development within the City and concern was expressed that the introduction of the proposed amendments might result in a more rigid and potentially bureaucratic planning administration which could prove detrimental to that role.

In reply to a question from a Member concerning the likely time scale which would be involved before the proposed changes to planning legislation were introduced, Mr. Worthington stated that the Government had indicated that, once the consultation period had been completed on 30th April, it would intend to introduce the appropriate legislation at the earliest opportunity. He pointed out that it would be difficult to estimate how long such a process might take, particularly given the fact that the introduction of amendments to planning legislation in Northern Ireland could become the responsibility of the new Northern Ireland Assembly.

After further discussion the Committee adopted the recommendations, suggestions and comments contained in the report submitted by Pragma Planning as representing the Council's response to the Government's proposals for Amendments to Planning Legislation in Northern Ireland.

The Chairman (Councillor H. Smyth), on behalf of the Members, thanked Mr. Worthington for producing the report within the limited time scale which had been made available.

24 June 2002

I refer to the above document, which was reported to the Council's Planning Committee on 20/06/02.

Members in discussing the item concluded that the proposed legislative amendments of the Planning (Amendment) Bill represent good housekeeping by way of strengthening and enhancing existing planning powers and procedures, and in introducing new ones. Members recognised that these changes are introduced primarily to update the legislation in response to changing circumstances and practices, and to address inadequacies and omissions that have emerged from the practical application of current legislation.

Members concluded that the proposed legislative amendments represent necessary and pro-active changes to ensure a more effective and efficient delivery of planning control, which will strengthen and improve the planning system in Northern Ireland. Accordingly, the Council welcome and support the Planning (Amendment) Bill, and request its introduction, as the Planning (Amendment) Act (Northern Ireland) 2002, as soon as possible.

Should you require and further information, or which to discuss the above, please do not hesitate to contact me.

ANDREW HAY
Planning Officer

1.1 This Interim Response to the Planning (Amendment) Bill is submitted by Coleraine Borough Council for the attention of the Committee for the Environment.

1.2 The Council welcomes the opportunity, provided by the Committee for the Environment to comment on the Bill and notes the role of the Committee in relation to the formal scrutiny of the Bill and the provision of a report on the Bill to the Assembly.

1.3 Section 2.0 of this Interim Response sets out the response of the Council to the specific clauses of the Bill, as requested in the letter of 13 June 2002 to the Chief Executive, Coleraine Borough Council, from the Clerk to the Committee of the Environment.

1.4 In submitting this Interim Response the Council welcomes the following statements by the Environment Ministers:

(24 June 2002 News Release, DoE Information Office).

(February 2002, Foreword to the Modernising Planning Processes Consultation Paper).

1.5 The Council is fully aware of its distinct role, as an elected Authority, in the planning process and the responsibility it shares with the Planning Service to ensure an effective, efficient and fair process. The Response comments to the Planning (Amendment) Bill are made within this context.

2.1 The Council considers that the level of fines should be higher to act as an effective deterrent against non-compliance.

2.2 Comment as Clause 1.

2.3 The Council welcomes this Clause.

2.4 The Council notes this Clause and is concerned to note that all breaches of planning control that occurred between 26 August 1974 and the date ten years prior to the Act becoming law will automatically have immunity from enforcement action. The Council would request that this Clause be amended to exclude immunity for significant and major breaches of planning control.

2.5 The Council welcomes this clause.

2.6 The Council notes this Clause and would request that this Clause is strengthened to ensure that it is not used to by-pass the normal planning procedure where planning permission might be expected to be granted. In relation to this, the Council would suggest a 'penalty' planning application fee and not the normal planning application fee.

2.7 The Council welcomes this Clause but regards the maximum level of fine, on summary conviction, to be too low and an inadequate deterrent.

2.8 Comment as Clause 7.

2.9 Comment as Clause 9.

2.10 The Council notes this Clause and would request that consideration be given to recognising the role of third parties including objectors.

2.11 The Council welcomes this Clause but regards the level of fine, on summary conviction, for wilful obstruction to be an inadequate deterrent.

2.12 The Council welcomes this Clause but regards the level of fine, on summary conviction, to be an inadequate deterrent.

2.13 Comment as Clause 12.

2.14 The Council welcomes this Clause but is concerned to note that the grounds for appeal against an Article 82 notice under 82A(i) (d) and (e) are open to a wide variety of interpretations and could readily be 'misused'.

2.15 The Council welcomes this Clause and notes the desire to avoid the possibility of a large number of planning applications, for the demolition of relatively minor structures, clogging up the planning process. However, the Council would express concern over the number of significant cases of demolition that will lie outside the meaning of development for planning purposes. The Council would request that the new Article 11 (2) (f) should include a definition of structures which are not 'relatively minor'. The Council would also request that Clause 15 should have regard to areas that have been identified at Draft Development Stage as possible Areas of Townscape Character and Conservation Areas.

2.16 The Council notes Clause 16.

2.17 The Council welcomes this Clause.

2.18 The Council notes this Clause.

2.19 The Council welcomes this Clause.

2.20 The Council welcomes this Clause.

2.21 The Council welcomes this Clause.

2.22 The Council welcomes this Clause.

2.23 The Council welcomes this Clause but regards the level of fine on summary conviction under paragraph 65B (3) (a) to be an inadequate deterrent.

2.24 The Council welcomes this clause but is concerned to note that certain Area Plans may be outdated, in the course of preparation and lack a proper policy context.

2.25 The Council welcomes this Clause.

2.26 The Council notes this Clause.

2.27 The Council welcomes this Clause and would suggest that it should include some examples of bodies to which the Clause would apply.

2.28 The Council notes these Clauses.

3.1 The Council welcomes the proposals in the Bill to enhance the Department's enforcement powers and to enable speedy and effective enforcement action.

3.2 The Council would highlight the contribution made by effective enforcement action to the credibility of the planning process and the planning system as a whole.

3.3 The Council would request that the Clauses of the Bill be reviewed to take account of the important consultative role of the District Council in the planning process. The 1991 Planning (Northern Ireland) Order already outlines the areas where the District Council is entitled to be consulted.

3.4 The Council would also request that the Clauses of the Bill are renewed to ensure that a District Council is informed regarding Planning Contravention Notices, Breach of Condition Notices, Enforcement Notices, Building Preservation Notices and Certificates of lawful use or development.

3.5 The Council notes the comment on para 8 of the Explanatory and Financial Memorandum that the Bill does not introduce measures for third party rights of appeal.

3.6 The Council notes the anomaly of the availability of an independent appeal on planning refusals but no redress on planning permissions. The Council considers that the third party appeal procedure can play a key role in an efficient and fair planning system to ensure the best possible decision. The Council notes that, at present, some 48% of appeals against refusals are upheld but that there is no opportunity for redress on planning permission.

3.7 Consequently, the Council would request that the introduction of a third party appeal system should be seriously considered. The Council believes that the practice in the Republic of Ireland can be assessed to ensure an effective and efficient system and that the Planning Appeals Commission has the necessary skills to hear third party appeals. The Council would recognise the need to learn from best practice, in relation to this subject area, and avoid unnecessary delay in the planning process through the submission of vexatious or frivolous appeals.

3.8 The Council has also submitted these comments to the DoE Planning Service in its Response to the Modernising Planning Processes Paper and has queried the compatibility, under the Human Rights Act 1998, of the absence of a third party appeal system.

3.9 The Council would highlight the important role of Planning Aid, which was launched in Northern Ireland during 2000 to help people, who lack resources, to participate in the planning process. The Modernising Planning Processes Paper notes that the Department supports the aims of Planning Aid but does not presently provide funding.

3.10 The Council would suggest that Clause 27 could be extended to include the possibility of the Department grant aiding Planning Aid so that individuals and community groups, who lack the resources to fund independent and impartial advice, can be helped.

3.11 The Council notes that Applicants pay fees for planning applications. The Council would suggest that there is potential to generate additional fee income from unauthorised development. The Council considers that the principle of a 'penalty fee' should apply in the interest of fairness and could act as a deterrent to unauthorised development.

3.12 The Council strongly supports the proposal to strengthen DoE's enforcement powers and, in this regard, would stress the importance of ensuring that dedicated and experienced enforcement teams are active in all Divisional Offices.

28 June 2002

The Construction Employers Federation has submitted a separate response to the consultation on the Planning (Amendment) Bill. We understand however that the Committee may now be of a view that the Bill should be amended to provide for 'Third Party Appeals'.

We firmly believe that in the interests of fairness, transparency and openness, full consultation with all social partners is essential before any such amendment to legislation is introduced. Such consultation should be based on independent research taking account of experience elsewhere.

Our position on this issue was clearly laid out in the Construction Industry Group's response to the Department for the Environment's 'Modernising Planning Processes' consultation. I quote from sections 3.48 and 3.49.

(Full details of the CIG membership is attached in Appendix 1).

To ensure the levels of economic growth for Northern Ireland that the Assembly has anticipated, we believe that there is a need to streamline and reduce the administrative burden on the planning system.

The Planning Service has had extra resources to help reduce the considerable delays in processing planning applications.

The introduction of 'Third Party Appeals' at this time, without consultation, will diminish the Planning Service's ability to reduce its backlog and cause even further delays. (Please see attached extracts of the results of independent research on planning delays conducted by Deloitte & Touche. Appendix 2).

We would also submit that the introduction of 'Third Party Appeals' be considered in the Review of Public Administration as it would be more appropriate in this wider context.

The Federation would welcome an opportunity to make representation on this issue before the Committee.

We look forward to hearing from you.

W A Doran
Managing Director

Royal Society of Ulster Architects
Royal Institution of Chartered Surveyors
Association of Project Managers
Association of Civil Engineers
Chartered Institute of Building Services Engineers
Association of Planning Supervisors
Institute of Structural Engineers
The Concrete Society
The Landscape Institute
Chartered Institute of Builders
British Institute of Architectural Technologists
Institution of Civil Engineers
Association of Building Engineers

Electrical Contractors Association
Heating and Ventilating Contractors Association
Scottish and Northern Ireland Plumbing Employers Federation
British Constructional Steel Association

Construction Employers Federation

28 June 2002

This Federation is the representative Trade Association for the construction industry in Northern Ireland. We welcome the opportunity to make comment to the Assembly's Environment Committee on the proposed Planning (Amendment) Bill however, we would appreciate the opportunity to make comment on such changes to the planning system prior to any future Bill reaching this stage.

As requested in your letter, to assist the Environment Committee's consideration of the need for any amendments to the Bill, our response is structured to the specific clauses of the Bill.

In general, the Federation supports the proposed changes to the planning system which are suggested through the Planning (Amendment) Bill subject to our detailed comments below.

The Bill seeks to introduce new enforcement powers to the Department, including the introducing of Planning Contravention Notices, Breach of Condition Notices, injunctions, powers relating to tree preservation orders, listed buildings and conservation areas. In all respect, the enhanced powers should enable the Department to seek more information earlier relating to alleged breaches of planning control and should enable breaches to be remedied more quickly or for more severe penalties to be applied to those not complying with the enforcement notices through the Courts.

There are a number of clauses within the proposed Bill which require amendment, as follows:

The proposed amendment to Article 67(B) of the Planning Order relates to the time limits after which enforcement action may not be taken. Draft Article 67(B)(1) states that

It is considered that the term "substantially completed" is relatively wide in its definition and could be open to challenge. Amendment is required to this wording, for the avoidance of doubt.

This Clause suggests amendment to Article 68 of the Planning Order relating to the service of an enforcement notice and Article 68(1)(b) is proposed to read "that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations".

It is considered that this is the correct means of assessing whether an enforcement notice should be served as, in many respects, if planning permission were to be granted, then it would not be appropriate to serve an enforcement notice. However, the wording as suggested for Clause68 (b) would require different consideration than that to be given to normal applications for planning permission, if the primacy of the development plan is brought into effect (which is referred to later in this report). It is considered that there must be consistency in relation to the consideration of development proposals. The issue also refers to Clause 6 of the Planning (Amendment) Bill - Appeal Against Enforcement Notice which proposes to insert Article 71(4) that the PAC "shall have regard to the development plan, so far as material to the subject matter of the enforcement notice, and to any other material considerations".

The Bill also proposes the introduction into Article 68(A) of the Planning Order sub Clause(6) which allows an enforcement notice to be issued in respect of a breach of planning control consisting of the demolition of a building and allows the notice to require the construction of a replacement building which is "as similar as possible to the demolished building". It is again considered that this requirement is relatively vague and open to interpretation. Evidence of the demolished building must be provided to remove any doubt as to what the replacement building should look like.

The CEF notes with some concern the Department's intention to bring demolition into the definition of development. The issue did not form part of the consultation process of the recent 'Modernising' document.

Whilst it is not the intention of the draft Bill to introduce the proposed amendments immediately, the CEF would wish to express serious concern in relation to the potential for further delay arising from this proposed amendment. In addition, paragraph 15(1)(d) is vague and entirely open to wide-ranging interpretation.

The Planning (Amendment) Bill, at Clause17 recommends the introduction of Article 25(A) to the Planning Order giving power to the Department to decline to determine applications on any land (or substantially the same land) whereby in the preceding two years the Department had refused a similar application under Article 31 or the PAC dismissed an appeal against the refusal of a similar application and, in the opinion of the Department, there has been no significant change since the last refusal or dismissal. This issue relating to "repeat applications" has been raised in the Modernising Planning Processes consultation paper.

The public consultation exercise for that paper expired on 14 June despite the fact that this Planning (Amendment) Bill was introduced to the Environment Committee on 10 June. It is considered unfortunate that public comment in relation to this issue has not been taken into consideration. On this basis this Clause of the Planning (Amendment) Bill should be deleted pending full consideration of the issues raised by the public in response to consultation paper on 'Modernising Planning Processes'.

For the purposes of completeness, we would reiterate the CEF's resistance to the removal of an applicant's right to submit a repeat application. Neither the 'Modernising' paper nor the draft Bill provide convincing reasons for doing so, and in the absence of clear evidence that the practice is harming the Department's performance, it should remain available as an option for applicants.

Clause 19 seeks to amend Article 32 to the principal order relating to appeals and seeks to provide power to the Planning Appeals Commission to dismiss an appeal where the appellant is responsible for undue delay in the progress of the appeal. It is considered that it is only in the appellant's interest to delay appeals relating to an enforcement notice whereas it may be in the Department's or third parties interests to delay appeals against the refusal of planning permission or non determination of an application. The Planning (Amendment) Bill does not seek to introduce the power that permission should be granted in circumstances where either of these latter parties is responsible for undue delay in the progress of any appeal. It is considered that such an unfair system could result in further delays which, for the benefit of the economy, should be avoided.

It is therefore considered that this Clause of the Bill should either be deleted or should be amended to include a sub-Clause which refers to the granting of planning permission where the Department or third party is responsible for undue delay in the progress of the appeal.

The CEF notes, however, that there is no proposal within the draft Bill to extend powers to the PAC to award costs against any party at appeal which it deems to have acted unreasonably. We consider that such powers should be introduced as a matter of urgency and we request the Environment Committee to amend the draft Bill accordingly.

The CEF further considers that such powers are not greater in their effect than the power to dismiss appeals for delay, as is currently drafted in Clause 19 of the Bill, and, therefore, such a change could be accommodated within this Bill - i.e. it is not a fundamental change to planning processes nor a radical departure from existing planning law to prevent it being introduced at this time.

It is proposed to introduce a new article to the Planning Order allowing for the temporary listing of buildings where there is a danger of demolition or alteration. It is considered that this Clause should be supported.

This Clause seeks to provide greater control to the retention of or replacement of trees which are the subject of a Tree Preservation Order or within a conservation area and should be supported provided that there is an opportunity for builders and developers to be consulted on the proposed use of Tree Preservation Orders.

Despite reference being made within the 'Modernising Planning Processes' consultation paper, as referred to above, the Planning (Amendment) Bill seeks to bring into effect the primacy of the development plan by proposing to amend the Planning Order to state (2A) "where, in making a determination under this order, regard is to be had to the development plan, the determination shall be made in general conformity with the plan unless material considerations indicate otherwise".

We propose that this Clause should be deleted until full consideration has been given to any responses made to the Modernising consultation paper, particularly in light of the apparent difficulty in providing complete plan coverage. Without complete up to date development plan coverage, it is considered that the primacy of the development plans is unworkable.

The CEF supports the widening of the content of Planning Registers.

Finally the Federation appreciates the opportunity of making the above comments and, if it is considered helpful, we would be happy to discuss these matters further.

We look forward to hearing from you.

W A DORAN
Managing Director

2 July 2002

Your letter of 13th June, enclosing a copy of the Planning (Amendment) Bill was considered by Council at its meeting on 24th June.

The Council welcomed the Bill and registered support for its approval by the Northern Ireland Assembly.

T E REANEY
Chief Executive

27 June 2002

Council originally commented on consultation document issued in March 1999, broadly welcoming the proposals for amendments to planning legislation in Northern Ireland.

The Planning (Amendment) Bill is broadly in line with the original proposals.

Council acknowledge the need to simplify planning legislation in Northern Ireland. Council acknowledge the need to strengthen existing enforcement powers exercised by the Department and to supplement these with additional regulatory powers. Council in particular welcome the specific provision which will extend enforcement powers to Listed Buildings and buildings in Conservation Areas.

Council commented on the recent consultative document on modernising planning processes and suggested for some significant changes. Copy of this response paper is attached.

Council would wish to make the following comments on the specific clauses:-

Council welcome the additional powers granted to the Department. This should encourage greater co-operation with the Department in respect of persons thought to be in breach of planning control. Council also support the increases in standard scale levels for failure to co-operate appropriately but believe these should be higher for most breaches.

In order to avoid the planning system falling into disrepute it is essential that appropriate enforcement action is taken against breach of conditions attached to a planning permission.

Council welcome the express power to be granted to Department in the event of a threatened breach of planning control.

This appears to be a sensible tidying up of the rules relating to time limits.

Council welcomes the greater flexibility to be given to the Department.

This appears to be a sensible approach to dealing with appeals against Enforcement Notices.

Council welcomes the clarification of existing provisions concerning offences for non-compliance with an Enforcement Notice and is in favour of the maximum level of fine on somebody convicted to be increased from £5,000 to at least £20,000. Some clarification however should be added with regard to a continuing offence.

Council believe that level 3 fine for obstruction should be increased where someone wilfully obstructs anyone authorised to carry out works in compliance with an enforcement notice.

Council welcome the increased penalties for contravention of the enforcement notice provided under this Clause.

It would be useful to state the level of statutory maximum fine available on conviction or indictment when a person makes a false or misleading statement in respect of procuring a certificate of lawful use for development.

This provision is welcomed.

Council welcome the added protection now afforded to Listed Buildings. Council would however wish to see additional powers for reinstatement or equivalent construction where unauthorised demolition has occurred.

Council welcomes the increased level of fine attached to offence relating to hazardous substances.

Council welcomes the provisions relating to tree preservation orders.

Council welcome the clarification on demolition coming within the meaning of development. Council would however wish to see the direction under Article 11 (2) (F) as soon as possible.

Council welcome the introduction of this provision which is a technical adjustment.

Council supports this provision which should deter repeat applications.

Council welcome these provisions which are in line with EC Directive 85/337/EEC.

The Council support the provisions as outlined.

Council welcome the proposals relating to planning agreements.

Council is aware of the difficulty relating to definition of advertisements.

Council believes however that the Department should be directive be able to widen the definitions of advertisements in light of new methods of advertising beyond those stated within the Clause.

Council welcomes the new power to spot list particularly where buildings are in danger.

The Building Preservation Notice however should come into force as soon as it has been served on wither the owner or occupier of the building to which it relates as it is often difficult to ascertain ownership at short notice. This would also prevent mischievous attempts to avoid responsibility to preserve a building. Thresholds by which such notices are served should be as wide as possible.

Council welcome the new Enforcement and Protection powers provided by this Clause.

Council welcomes the provision that a Development Plan has primacy in considering a planning decision, except where material consideration indicates otherwise.

This is a procedural change and is welcome.

Council welcomes these proposals.

Again this is welcome.

These proposals are welcome.

This is a technical adjustment and is welcomed.

Council welcomed the Assembly's proposals for amendment to Planning Law n Northern Ireland. The provisions should strengthen the enforcement regime in Northern Ireland. Also welcome are the increased levels of fine for failure to comply with planning law. The primacy of development plans which will determine the planning applications is also a welcome change to planning regime in Northern Ireland.

Council is aware of the Department of the Environment's commitment to review planning processes. Council is disappointed however that the Minister is not taking the opportunity to completely review the planning process in line with the current 'Green Paper' on planning issued in England. Despite this decision, Council believes that the document represents a significant step forward in the administration of the planning system.

The consultation is a substantial document and covers a wide variety of issues, some of which are strategic in nature, others relate to detail. Council does not propose to comment in detail on matters and it can be assumed that where there is no comment, that Council is in broad agreement with the proposals.

There is broad agreement on both the importance of good planning to a region like Northern Ireland and the characteristics of good planning. As the Minister states in the foreword, planning is fundamental to deliver what people in Northern Ireland want, jobs, homes, better transport, lively communities and sensitive care for the environment - good planning will promote appropriate development, not stifle it. It will also provide a boost for productivity and competitiveness.

The proposals fall into 3 broad categories:-

1. The development control process

2. The process for preparing planning policy for Northern Ireland

3. The process of preparing development plans for local areas within Northern Ireland.

Council believes, however that an opportunity has been lost by not pursuing more ambitious plans ahead of any review of public administration which could take 3 to 4 years.

Section 3 of the Consultation Document deals with the need for change. Council would agree that there is a significant need for change not only in planning processes but also in how the planning system works as a whole. While acknowledging that the planning system in England sits within a different administrative framework, nevertheless there is scope for significant change in the planning system. Council believes that a partial solution prior to reorganistation of Local Government would only put further pressure on all participants in the planning systems and that a more radical evaluation is needed.

Given that the Planning Service will shortly be sponsoring a Planning (Amendment) Bill for introduction to the Northern Ireland Assembly before the summer recess in 2002, there is opportunity to make more fundamental changes to the system overall.

Changing the processes associated with a complex and often inaccessible planning system will not in itself address the fundamental flaws in the planning regime in Northern Ireland.

Work carried out on the Regional Development Strategy highlighted the importance of planning to a region such as Northern Ireland. This showed the importance of inclusiveness in discussing the way forward. The 'Green Paper' on planning in England provides many useful pointers to the way ahead in both organisation of planning system and appropriate processes to be followed.

In particular the following should be emphasised within the proposals outlined.

• The planning system must promote economic development by making appropriate land available in the right place.
• It should consolidate viable settlement patterns, thereby promoting the Government's commitment to sustainable development.
• The planning process itself must be predictable and efficient and reflect the views of all sections of the community, individuals, private, statutory and voluntary sectors.
• Timeliness of decisions is particularly important for more significant developments.

Council acknowledges that given the limited nature of the consultation, it has focused on 5 principal issues.

• The need for more speedy decision making, particularly on major planning applications in order to facilitate economic development, job creation and social progress.
• The need for greater consensus on the selection and prioritisation of planning policies.
• The need for greater clarity in planning policy to act as guidance to the public and developers.
• The need for faster progress on the achievement of full and up to date coverage of development plans and;
• The need for effective participation by the public including community groups in the planning process.

The paper presents the Planning Service proposals under 3 broad work headings:-

Council shares the concern of many regarding the operation of the development control process.

There is a suggestion that the pressure for greater participation, transparency and accountability necessarily conflicts with the pressure for faster decision making.

Council believes however, that if there was a greater consistency in the speed of decision making, whether the time is set at 8 weeks or 12 weeks, members of the public and business would be satisfied with this as a performance standard. It would therefore be the responsibility of applications to ensure that they apply in good time for planning permissions.

Many applicants however, feel that there is lack of predictability in the planning process. Members of the general public, developers and planning consultants need to be certain that if they comply with particular requirements that planning permission will be granted or alternatively will be subject to a determination at Planning Headquarters.

Council would support the proposals for improved management of the development control process. Council believes that a 13-week target for 95% of all applications including Article 31 cases is appropriate. Except in the case of reconsiderations when 17 weeks should apply. It also appears sensible to ask for sufficient information at outline planning stage, particularly for major developments or those with a likely high environmental impact.

Council would support changes to the scope of permitted development and extension of the Use Classes Order. Such changes should reflect the greater flexibility required by business and those in the changing rural environment to allow small-scale conversion of existing farm buildings to accommodate small units that would assist with sustainable development of the countryside.

Business Planning Zones as proposed could also be associated with smaller settlements in the countryside and would provide focus for modest economic regeneration in rural communities.

Council is aware that due to the complexity of the planning system and lack of clarity, a high level of invalid applications can arise. Council would support Planning Service proposals to provide greater assistance by way of pre-application advice and simplified documentation. Greater publicity should be given to this service.

Instead of returning all paperwork and fees to applicants where applications are clearly invalid, the Department should contact the applicant by telephone in order to expedite the application.

Council would support the proposal to effectively outlaw twin tracking of similar applications for the same site.

Council believes that if there is greater clarity in the planning process, then developers will be dissuaded from making repeat applications for substantially similar developments.

Council would support Planning Service proposal that all reserve matters, and re-submissions would be advertised.

Council would not be in support of the proposal to replace the present neighbour notification scheme with site notices. Site notices however should be required in addition to present notification schemes to ensure transparency and involvement of all relevant parties.

The proposal to refuse rather than to negotiate, where planning application does not meet current planning policy, is at first examination a sensible approach. This should only occur however when a policy is clearly established and is not merely guidance associated with policy.

When a new planning policy is adopted this should be widely publicised.

Down District Council is happy to discuss service level agreements with Planning Service to ensure timely responses. Council's Building Control Department would be keen to liaise more closely with Planning Service on the detection of unauthorised development.

Council believes that its role as statutory consultee is essential to ensure that the interests of local ratepayers are safeguarded. The need for deferral system and in some aces an additional deferral meeting is backed up by the 42% of planning applications that are won on appeal. Throughout this entire process, the equality and human rights of the individual must be safeguarded, particularly as they impact on the economic and social wellbeing of individual and commercial interests within a locality.

Council believes that a statutory consultation role has been given to them to exercise in a responsible manner. Council would therefore disagree with the Planning Service proposal to allow only one deferral for a site or office meeting with a Planning Officer where Council disagrees with the initial recommendation and wish to retain the option for a second deferral meeting.

The adoption of the proposal on delegation and decision making for minor applications would significantly reduce the number of applications likely to come before Council for consideration and should be explored further.

As suggested above, Council would be happy to consider proposals to extend the delegated arrangements for specified categories of minor applications.

The provision of additional information to Council would be welcome as would the provision of a comprehensive list of planning policies that underpin general planning recommendations.

These referrals to "Headquarters" should only be used in exceptional circumstances. Greater guidance however, should be given to Councils on how they should operate and Council would therefore welcome revised criteria for the selection of such cases.

The handling of Article 31 cases for major applications has provided a significant cause for concern by Council. Council would accept the following criteria to define major applications as follows:

• large developments involving industrial mixed retail use, retail food and residential proposals;
• proposals having a significant environmental affect or;
• proposals of regional significance.

An application should still be referred to Headquarters where two-thirds of Council Members present at a Council Meeting are in favour.

Council would agree with the proposal that Planning Service should publish the criteria upon which it will base decisions as to whether to proceed by notice of opinion or by pubic inquiry.

Council would accept the performance targets outlined.

Council would also endorse the proposal that the Department should given written reasons for its final planning decision following a public inquiry.

Council welcomes the additional emphasis on the quality initiative, however open space recreation areas should be more clearly defined and best practice design guides made available to perspective developers.

Council would welcome the proposal to amend the current legal provisions relating to the use of planning agreements.

Council would accept the need for removing Crown Immunity from Planning Control, acknowledging the need to retain this for national interests such as security and defence.

The Council would accept the proposal to reduce the timescale for initiating a planning appeal from the present 6 months to a 3-month period.

Council is disappointed that despite assurances that enforcement was a high priority little progress has been made since additional resources were allocated to Planning Service.

Confidence in Planning Service can be undermined by the failure to enforce quite blatant breaches of planning regulations. Council would therefore like to see published targets for detection and enforcement within each division. Council therefore support the proposed Planning (Amendment) Bill which will streamline and strengthen the department's enforcement powers.

Council would welcome a Service Level Agreement between Planning Service and Council's Building Control Department to improve enforcement.

Council welcomes the acknowledgement by the Department of the need to provide greater openness and transparency in the overall process.

Council would disagree with the Department and feel that third party appeals should be introduced on statutory basis. Appellants however should be required to specify grounds upon which they are appealing against the decision.

The time limits for lodging third party appeals should be limited to 2 weeks and Planning Service should ensure that mischievous appeals be deterred.

Council supports the move to an "E-Planning System". The deadline of 2005 by which the Planning Service intends to make it possible to submit a planning application on line however appears to be excessive for what should be a relatively simple process.

Council believes that Planning Service should continue to assist Community Technical Aid in efforts to support community groups wishing to participate fully in the planning process.

Council acknowledges that a quality service requires appropriate funding and look forward to the broader consultation on planning fees. Penalties awarded by Courts for breach of planning regulations should go directly to the Planning Service to assist in further enforcement actions.

Council believes that work should be accelerated on developing the broad framework of plans and policies. This we believe would help with greater clarity for the individual statutory authorities and business when accessing the planning system.

The absence of a full suite of planning policy statements adds to the uncertainty over planning applications and given rise to considerable frustration and uncertainty among applicants. Council feels that a time limit of one year should be set for having all appropriate policy planning statements in place.

Greater community involvement is essential for ensuring that planning policy reflects the needs, wishes and desires of interested bodies and groups.

The Department however should consider setting up a standing focus group that could be supplemented by other specific interest groups where a new Policy Statement was in preparation. They may speed up the time taken to introduce a new or amended Policy Statement.

The Council supports the move to a plan-led system.

In Down District in particular the timescale for preparation of the area plan has given rise to an unacceptable delay between expiry of previous plan and the introduction of the new plan. Council would therefore welcome an accelerated development plan programme as outlined. Particularly welcome is the concept of encouraging Council to develop their own ideas and how they see their Council areas developing.

Council feels the number of area plans is not significant provided that the correct analysis has been carried out prior to the publication.

Council acknowledges that the development of the Regional Strategy provides an overarching policy framework and therefore area plans should focus on locational issues and policies as well as land use allocations.

Statistics are often open to interpretation and therefore Council would wish to see specific details before accepting the proposal.

Council accepts in principle the idea that at the early stage of the planning process, consultation should be focused on the future development of an area around an Issues Paper, concentrating on broad planning issues rather than detailed proposals.

Council sees the merits in establishing a steering group for each area plan to achieve tighter project management, particularly to include representation at official level of relevant local Councils

Council accepts the statement that lengthening timescales result in uncertainty and delay in bringing on stream land needed for housing and economic growth in the interests of the broader community.

Council would therefore support publication of a reduced format draft plan with earlier publication of technical supplements where feasible.

It is sensible to resolve objections where possible at an earlier stage and Council would support this proposal.

Council would welcome the review of the existing programming process for public inquiries into area plans.

Council participated in public examination associated with the preparation of the Draft Regional Development Strategy. Council believes this is an appropriate format for consideration of more strategic issues in development plan enquiries.

In the interests of transparency, Council believes that report of the Planning Appeals Commission should be made publicly available as soon as possible after submission to the Department. This should be done with caveat that changes are possible before final adoption.

The Consultation Paper 'Modernising Planning Processes' provides for a wide variety of proposals which taken collectively and with some modification can assist in delivering a better overall planning system.

Council would like to see a more comprehensive review of planning legislation but acknowledge at this stage, it is unlikely to occur. Council believes however, that progress should be made as quickly as possible to implement the proposals in the interests of the entire region.

J DUMIGAN
Group Chief Building Control Officer

G McBRIDE
Policy & Co-ordination Officer

24 June 2002

Thank you for your letter of 13 June enclosing a copy of the above Bill for comment.

It is good to see this legislation progressing, but I do have some comments on it:

Under para (3B) it would appear that a stop notice normally takes three days to take effect. While it may be necessary for some delay in order to allow a developer to make safe uncompleted works, one would have expected the stop notice to have immediate effect except where health and safety was concerned. In the case of unlawful demolition, for example, a building can be razed to the ground within a single day, and speed in curtailing such action would be of the essence.

The increased level of fine from £5,000 to £20,000 is welcome, but still does not reflect the financial gains a developer can make from unlawful demolition. Para 1 does say that "the court shall have particular regard to any financial benefit..." but presumably it is unable to go beyond the upper limit of £20,000. I understand that higher fines may be imposed by the High Court, but most cases will not be taken that far, and a more stringent fine is therefore necessary.

On the same section, it is not clear whether this fine is "per incident" or "per property". In some cases this is the same thing, but the recent case of the demolition of a dozen houses in Ogle Street Armagh was dealt with as a single incident, and the fine would have been very much higher had each house been treated as a separate case. Again, it seems necessary to make the punishment fit the crime by taking into account the size of the property or the profit the developer may achieve.

Clarification of the anomaly in the existing legislation which ignores demolition as a development is very welcome. However the effect could be undermined by the exclusions under 11(2)(f) if control of demolition is only extended to ATCs, as suggested in the Explanatory Memorandum.

We believe it should also be applied to buildings recommended for listing but currently under consultation with the HBC and district council pending full statutory listing. This means effectively removing the permitted right to demolish or substantially alter the building once the owner has been informed that listing is under consideration. Since the owner may not give any indication of his intentions in advance, it is possible that the building may not be perceived to be under threat (hence requiring a BPN as in para.22) and yet it could be demolished the next day. It is therefore important that this protection is provided automatically as soon as listing is proposed for a building.

I understand that in recent English legislation demolition control was extended to semi-detached houses and terrace houses. While this ignores many individual buildings of interest and quality, it does reflect the distress that is caused to building owners (in particular home-owners) when their property is adversely affected by the demolition of a neighbouring building which is in effect a part of their own building, albeit in different ownership. Such a clause would have provided an extra safety net in the recent Seamus Heaney house case, which was one of a pair of good quality Victorian houses. Demolition can lead to a gap site being left for a considerable time, and in a residential area this has a direct effect on neighbouring property values. Such amendments would not greatly increase the number of planning applications, and would be generally welcomed.

This clause is presumably designed for use in emergencies when effectively an instant stop notice is required to prevent demolition or substantial alteration, and yet the full statutory listing process has not been commenced. However it requires the Department to decide that a building is "in danger" of such works and cannot presumably be invoked on a precautionary basis.

Finally, it is very disappointing that there is no mention of Third Party Appeals. Under natural justice, if the developer has a right to appeal a decision he disagrees with, it seems essential for other people (neighbours etc) affected by the decision to have a similar right of appeal. Surely this is required by Human Rights legislation? After all, a neighbour has to live every day with the result of a planning decision affecting the site, while the developer may never even see it.

I have also been asked to make comments on behalf of the Northern Ireland committee of the Association of Preservation Trusts, and would be grateful if these comments could be taken as having APT's support.

27 June 2002

I refer to your letter of 13 June 2002 regarding the Planning (Amendment) Bill.

The Historic Buildings Council believe that given the high incidence of breaches over recent times and for the penalties to have a reasonable deterrent effect, particularly for developers, the maximum fine for breaches of the following provisions should be increased from £20,000 to £1M. We also believe that in addition to the penalty fine, there should be a further provision that allows the Court to order the reinstatement of the building: -

(8) A person guilty of an offence under this Article shall be liable -

(7C) A person guilty of an offence under this Article shall be liable -

(6) A person guilty of an offence under paragraph (1) or (5) shall be liable -

However, whilst Council commends this Bill, without the additional staff and funding necessary to administer the new provisions within both the Planning Service and the Environment & Heritage Service, these changes will be fruitless.

Dr Phil Mowat
Chairman

18 June 2002

I refer to your letter dated 13 June 2002 and the accompanying document entitled Planning (Amendment) Bill.

The Housing Executive responded to the initial consultation document, and a copy of our letter dated 15 April 1999 is enclosed for information.

With regard to the Bill introduced to the Northern Ireland Assembly on 10 June 2002 and now circulated for comment we would offer the following using the numbering system of the Bill.

Overall we welcome the introduction of measures aimed at strengthening the development control process and clarifying the primary status of Development Plans.

We favour the strengthening of powers in respect of unauthorised development and enforcement of conditions attached to Planning Approvals.

We recently responded to the Planning Service consultation paper "Modernising Planning Processes" which includes a proposal not to accept "repeat" applications . We recorded our difficulty in supporting this in the context of mischief-making or tactical submissions.

The original consultation document dated March 1999 proposed that Planning Obligations would be introduced to replace Planning Agreements because powers attached to Planning Obligations

However the current document still refers to Planning Agreements.

The move towards Development Plan primacy is welcomed.

P MCINTYRE
Chief Executive

15 April 1999

Thank you for the opportunity of responding to the Document, "Proposals for Amendments to Planning Legislation in Northern Ireland". The Housing Executive would wish to confirm its general support for the introduction of legislation to strengthen enforcement powers, to give primacy to Development Plans and the other provisions to strengthen and improve the Planning System in Northern Ireland as contained in the Paper.

We would make the following observations:

1. The strengthening of enforcement powers is to be welcomed and will enable better use to be made of Planning Conditions attached to approvals. Access to High Court injunctions to prevent actual or threatened breaches of planning control should have a beneficial effect on public perceptions of the ability of Planners to preserve particular aspects of local environmental value.

2. The move towards a Plan-led system will benefit both developers and decision makers. However we feel that it may be better to rewrite paragraphs 3.1 and 3.2 because as written it appears that para 3.2 introduces such a major caveat as to seriously weaken the basic proposal.

3. We welcome your recent replacement of para 1.4(b). Para 2 in Annex A also needs rewritten accordingly.

4. Para 7 in Annex A needs to explain the difference between a Planning Obligation and a Planning Agreement. This is an important component from a Housing Association/Housing Executive point of view. We have been involved in site identification exercises before where Planning Agreements/Obligations arose. We need to be careful that (a) we do not enter into an Agreement which we cannot legally fulfill and (b) that whoever negotiates the Agreement realises that it will be registered as a charge on the land to be realised by the landowner in the event that we do not acquire the site.

5. In para 8 to Anex A, will demolition requiring Planning Approval be defined to include partial demolition and will demolition in redevelopment/renewal areas be subject to planning Approval?

6. Para 12 Appendix A refers to the primacy of Development Plans which is welcome, but we would suggest that the application of Environmental Appraisal of development plans at this stage would benefit both developers and the authorising bodies.

S CUDDY
Director of Corpo

rate Services/
Deputy Chief Executive

27 June 2002

Further to your letter of 13 June relating to the above the Council have agreed to submit this letter as its interim response to the Planning (Amendment) Bill. A further final response will be submitted in due course, which may amend details contained within this letter. This is necessary due to the short timescale permitted for the return of responses.

As requested in your letter, to assist the Environment Committee's consideration of the need for any amendments to the Bill, our response is structured to the specific clauses of the Bill and, where appropriate, suggested alternative or additional wording to the clauses, and indeed deletion of certain clauses, is suggested.

The Council welcomes, and would wish to express its gratitude to the Environment Committee for, the opportunity to respond to the proposed Planning (Amendment) Bill. The Council, however, would state that it would appreciate the opportunity to make comment on such changes to the planning system prior to any future Bill reaching this stage.

The Council, in general, supports the changes to the planning system which are suggested to be introduced through the Planning (Amendment) Bill subject to the issues detailed below.

The Bill seeks to introduce new enforcement powers to the Department, including the introducing of Planning Contravention Notices, Breach of Condition Notices, injunctions, powers relating to tree preservation orders, listed buildings and conservation areas.

In all respect, the enhanced powers should enable the Department to seek more information earlier relating to alleged breaches of planning control and should enable breaches to be remedied more quickly or for more severe penalties to be applied to those not complying with the enforcement notices through the courts.

The Council has requested stronger enforcement powers previously and these changes should be supported, in general.

There are, however, a number of clauses within the proposed Bill which require amendment, as follows.

The proposed amendment to Article 67(B) of the Planning Order relates to the time limits after which enforcement action may not be taken. Draft Article 67(B)(1) states that

It is considered that the term "substantially completed" is relatively wide in its definition and could be open to challenge. Amendment is required to this wording, for the avoidance of doubt.

This Clause suggests amendment to Article 68 of the Planning Order relating to the service of an enforcement notice and Article 68(1)(b) is proposed to read

It is considered that this is the correct means of assessing whether an enforcement notice should be served as, in many respects, if planning permission were to be granted, then it would not be appropriate to serve an enforcement notice. However, the wording as suggested for Clause68 (b) would require different consideration than that to be given to normal applications for planning permission, if the primacy of the development plan is brought into effect (which is referred to later in this report). It is considered that there must be consistency in relation to the consideration of development proposals. The issue also refers to Clause 6 of the Planning (Amendment) Bill - Appeal Against Enforcement Notice which proposes to insert Article 71(4) that the PAC

It is also suggested also introduce into Article 68(A) of the Planning Order subClause(6) which allows an enforcement notice to be issued in respect of a breach of planning control consisting of the demolition of a building and allows the notice to require the construction of a replacement building which is "as similar as possible to the demolished building". It is again considered that this requirement is relatively vague and open to interpretation. Evidence of the demolished building must be provided to remove any doubt as to what the replacement building should look like.

The Planning (Amendment) Bill does not refer to consultation with District Councils in the respect of the taking of enforcement action nor pursuing breaches of planning control through the courts.

To enable the Council to fully participate in all matters of planning control, as it may hold valuable information relating to sites and alleged breaches of planning control, and as the remedial steps may have impact on local amenity, it is considered that that Bill should be amended, where appropriate, to introduce the requirement that the relevant Council is consulted at all appropriate stages.

The Planning (Amendment) Bill, at Clause17 recommends the introduction of Article 25(A) to the Planning Order giving power to the Department to decline to determine applications on any land (or substantially the same land) whereby in the preceding two years the Department had refused a similar application under Article 31 or the PAC dismissed an appeal against the refusal of a similar application and, in the opinion of the Department, there has been no significant change since the last refusal or dismissal. This issue relating to "repeat applications" has been raised in the Modernising Planning Processes paper recently reported to the Council. As members are aware, the public consultation exercise for that paper expired on 14 June despite the fact that this Planning (Amendment) Bill was introduced to the Environment Committee on 10 June. It is considered unfortunate that public comment in relation to this issue has not been taken into consideration. On this basis this Clause of the Planning (Amendment) Bill should be deleted pending full consideration of the issues raised by the public in response to that consultation paper.

This seeks to amend Article 32 to the principle order relating to appeals and seeks to provide power to the Planning Appeals Commission to dismiss an appeal where the appellant is responsible for undue delay in the progress of the appeal. It is considered that it is only in the appellant's interest to delay appeals relating to an enforcement notice whereas it may be in the Department's or third parties interests to delay appeals against the refusal of planning permission or non determination of an application. The Planning (Amendment) Bill does not seek to introduce the power that permission should be granted in circumstances where either of these latter parties is responsible for undue delay in the progress of any appeal. It is considered that such an unfair system could result in further delays to investment in the Borough which, for the benefit of the economy, should be avoided. It is therefore considered that this Clause of the Bill should either be deleted or should be amended to include a sub-Clause which refers to the granting of planning permission where the Department or third party is responsible for undue delay in the progress of the appeal.

The Council notes, however, that there is no proposal within the draft Bill to extend powers to the PAC to award costs against any party at appeal which it deems to have acted unreasonably. The Council considers that such powers should be introduced as a matter of urgency and requests the Environment Committee to amend the draft Bill accordingly. The Council further considers that such powers are not greater in their effect than the power to dismiss appeals for delay, as is currently drafted in Clause 19 of the Bill, and, therefore, such a change could be accommodated within this Bill - i.e. it is not a fundamental change to planning processes nor a radical departure from existing planning law to prevent it being introduced at this time which applies to issues such as third party appeals.

This seeks to change the existing requirements of Article 40 of the Planning Order principally to allow a procedure to modify/discharge a planning agreement and introduce the right of appeal against the refusal of an application to modify/discharge that agreement.

Whilst, in general terms, this should be supported, it is considered that there should be a requirement within proposed Article 40(A) that agreement to the modification or discharge of the planning agreement is carried out in consultation with District Councils. Draft Article 40(A)(9) refers to regulation being made at a future date with respect of the form and content of applications, the publication of notices and procedures for dealing with any representations but does not specifically refer to consultation with District Councils. It is considered that this requirement should be included.

The definition of advertisements is to be widened to ensure modern forms of outdoor advertising are subject to advertisement control. This Clause should be supported and worded in such a manner that advertisements on trailers would require planning consent in circumstances where they are being placed at the same location on a regular basis.

It is proposed to introduce a new article to the Planning Order allowing for the temporary listing of buildings where there is a danger of demolition or alteration. It is considered that this Clause should be supported.

This Clause seeks to provide greater control to the retention of or replacement of trees which are the subject of a Tree Preservation Order or within a conservation area and should be supported.

Despite reference being made within the Modernising Planning Processes consultation paper, as referred to above, the Planning (Amendment) Bill seeks to bring into effect the primacy of the development plan by proposing to amend the Planning Order to state (2A)

It is considered that this Clause should be deleted until full consideration has been given to any responses made to the Modernising consultation paper, particularly in light of the apparent difficulty in providing complete plan coverage. Without complete up to date development plan coverage, it is considered that the primacy of the development plans is unworkable.

The Council appreciates the opportunity of making the above comments and, if this would be helpful, would be happy to discuss these matters further.

We look forward to hearing from you.

COLIN McCLINTOCK
Director of Environmental Services

24 June 2002

Northern Ireland Environment Link (NIEL) is the networking and forum body for non-statutory organisations concerned with the environment of Northern Ireland. Its 45 Full Members represent over 80,000 individuals and more than 2000 groups. Members are involved in environmental issues of all types and at all levels from the local community to the global environment.

We heartily welcome the above Bill and urge its adoption. We do, however, have a few points we would like to have considered.

1. Stop Notices (9). These should take effect immediately, as any delay can result in irreversible damage of buildings.

2. Fines (12). We strongly welcome the increase in the top level of fine to £20,000, but feel that this is still not sufficient to discourage some developments where the scale of profit to be made from destruction of a listed building or building without consent makes this amount seem insignificant. While we accept that the additional possible jail penalty is also a good deterrent, a higher level of fine would be most useful.

3. Demolition of Buildings (15). We would urge that this should be extended outside ATCs to all buildings under consideration for listing.

4. Third Party Right of Appeal. We would strongly urge that consideration be given to allowing this as a major step to making the Planning process more equitable.

Thank you for your consideration of these points.

DR SUE CHRISTIE
Director

27 June 2002

I refer to your letter of 13 June 2002 and respond as follows.

The inclusion of these provisions in the Bill follows English legislation but it should be noted that there is no provision for an appeal against a breach of condition notice and the defence before the Court is very limited - see proposed Article 76A(11). It arguable that as these conditions could affect the civil rights and obligations of the recipients of such a notice and also involve a determination of facts, there should be a right of appeal to the PAC as there is in respect of an enforcement notice. It should be noted that the English legislation which includes provisions relating to enforcement of conditions was passed prior to the Human Rights Act 1998.

It is also perhaps significant to note that under Article 76A(2) it would seem that the Department has to be certain that the conditions are not complied with as the wording is "if any of the conditions is not complied with" the Department may serve a notice. This contrasts with provisions relating to the issue of an enforcement notice under Article 68 which is amended by Section 5 of the Amendment Bill and allows the Department to serve an enforcement notice "where it appears to it" that there has been a breach of planning control.

The proposed Article 83F(1) says that before determining an appeal, the Planning Appeals Commission shall afford the parties an opportunity of appearing before and being heard by "a person appointed by the Planning Appeals Commission for this purpose". It would appear that this may have been copied from English legislation but as the appeal is to the PAC, then only a Commissioner may be appointed to hear the matter. This is already covered by the provisions of the 1991 Planning Order under Article 111(1)(a).

The same argument applies to Section 20 (Planning Agreements) where the wording of the proposed Article 40B(5) is similar.

The Commission notes that this provision has been introduced again from English legislation and it would be concerned that it opens scope for argument over what constitutes undue delay. In any event this has not been a problem as far as the Commission's work is concerned and I would query the need for such a power, notwithstanding its existence in English legislation.

The Commission welcomes the proposed Article 111(5)(a) which provides the power to make rules to enable decisions to be taken by a panel of not fewer than 4 Commissioners rather than, as at present, the Commission as a whole. This makes sense in terms of the efficient use of resources. However, in commenting on the Consultation Paper on this legislation the Commission also indicated that it might be appropriate to consider making provision for the Chief Commissioner to delegate decision-making on appeals to individual Commissioners. The Commission recognises the benefits of panel decision-making in terms of consistency but this has resource implications which it has drawn to the attention of OFMDFM. Without the flexibility to delegate decisions on appeals to individual Commissioners, which already is the practice in England and Scotland where I understand over 90% of appeal cases are decided in this way, the Commission will need additional resources to deal with the heavy workload projected over the next few years. It will be noted that under the proposed Article 111(5B) there is provision in the case of inquiries/hearings for reporting by a single Commissioner. The Committee would need to be aware of the resource implications if there is no similar provision in relation to planning appeals.

This proposed minor and consequential amendment to Article 32(6) of the 1991 Order substitutes Article 28A for Article 28. This includes Articles 23 and 24, which refer to submission notices, and these have no relevance to the planning appeals referred to under Article 32(6). The Bill provides an opportunity to put this anomaly in existing legislation right and the Commission suggests that Article 32(6) should be amended to refer to "Articles 21, 22 and 25-28A".

Articles 23 and 24 of the 1991 Planning Order set out the provisions for these notices which are referred to as submission notices. These are broadly akin to enforcement notices but less onerous in their effect. Article 24 sets out the grounds of appeal to the PAC and these, unlike enforcement notices appeals, do not include the ground "that the matters alleged in the notice do not constitute a breach of planning control". This means that there is no explicit provision to enable an appellant to appeal specifically on the ground that there is no breach of planning control because planning permission has been granted either by a decision on a planning application or by virtue of permitted development rights under the Planning (General Development) Order (NI) 1993. While the Commission accepts such arguments on appeal, the Department has challenged this by judicial review.

If the Department's view were to prevail before the Court the only alternative for an appellant to argue that they have planning permission or permitted development rights would be to seek judicial review - a lengthy and expensive procedure which they would not have to engage in if served with the more onerous enforcement notice. Accordingly, whatever the outcome of the Court decision, the Amendment Bill provides an opportunity to tidy up this illogical anomaly by including a ground of appeal that there has been no breach of planning control.

The Commission notes that paragraph 8 of the Explanatory and Financial Memorandum accompanying the Planning (Amendment) Bill refers to concerns which the Committee has about the absence of any provision for third party rights of appeal. The Commission already has received a number of requests for third party appeals under the Human Rights Act 1998 and has received advice from Senior Counsel that it may be obliged to hold such hearings under that Act. The Commission is currently considering its legal advice and awaiting some outstanding court cases which may provide some guidance on the matter. In the event of there being a third party right of appeal directly under the Human Rights Act, the Commission would much prefer to see a properly codified system of third party appeal rights set out under planning legislation than having to operate on an ad hoc basis under the Human Rights Act. The Department of the Environment is aware of these views, although the Commission acknowledges that the introduction of third party appeal rights will have implications as far as delay in the planning process is concerned and also for resources.

I hope you find these comments useful and if you require any further clarification please do not hesitate to contact me.

JOHN WARKE
Chief Commissioner

27 June 2002

RICS Northern Ireland thanks you for sending a copy of the Bill and Explanatory an Financial Memorandum for comment.

RICS Northern Ireland welcomes the proposed changes to the planning legislation and does not wish to comment on the detail of any of the wording in the Bill. It is hoped that this will become law as soon as possible and will be implemented in full by the Planning Service.

Ian Murray
Director

June 2002

The RSPB is Europe's largest voluntary wildlife conservation organisation with over one million members. Of these over 10,000 live in Northern Ireland. In encouraging the conservation and protection of wild birds and their habitats, the RSPB takes an interest in a range of environmental and land-use issues, including planning, and employs specialist staff to advise on such matters.

The RSPB has recently produced a number of documents relating to planning issues including:

• Natural Conditions - a review of planning conditions and nature conservation
• The Nature of Regions - Regional Planning and nature conservation in the UK
• Wildlife Impact - the treatment of nature conservation in environmental assessment

In addition RSPB NI has provided detailed input to the to the following planning consultations:

• Shaping our Future -the NI Development Strategy
• Modernising Planning Processes
• Belfast Metropolitan Area Plan and the suite of other emerging Area Plans
• House of Commons NI Affairs Committee inquiry into Planning in NI

RSPB NI strongly welcomes the introduction of this legislation. Many of the issues addressed in the Bill were raised in RSPB's submission to the NI Affairs Committee inquiry, and we therefore support their introduction into NI legislation.

We particularly welcome the proposed improvement to existing enforcement powers. We are, however, concerned that when the Bill is finally introduced these powers will remain inferior to those available in England for example, where a further review is being progressed following the recent Planning Green Paper. It is essential that NI enforcement measures are at least equivalent to those in England and Wales.

RSPB NI believes that a number of issues currently not included could appropriately be dealt with through the Planning (Amendment) Bill. These include:

• the provision of a statutory purpose for planning
• the removal of Crown immunity
• the creation of a new offence for commencing development without planning permission

RSPB NI agrees that the introduction of a third party right of appeal would require further discussion and consultation, but considers that the above issues should be addressed through the current legislation.

RSPB believes that a clear purpose for planning should be enshrined in our planning legislation. We believe that a clear and robustly constructed statutory purpose could help the planning system to deliver more environmentally, socially and economically beneficial development in the future. Namely, development that advances all three 'legs' of the sustainable development 'stool' at the same time, rather than seeking to trade off or 'balance' these elements.

Our vision for a new purpose is one that ensures that planning process, policies and individual decisions give proper weight to protection, and increasingly enhancement, of the environment. It should act as a 'benchmark' for good planning. A new purpose must recognise that the environment is fundamental to economic prosperity and competitiveness, and to social well-being, as well as being important in its own right. .

The need for a clear statutory purpose for planning is also described in the recent report by the Royal Commission on Environmental Pollution on Environmental Planning. The report states that an appropriate purpose would be:

RSPB would strongly urge that such a purpose is introduced into NI planning legislation, preferably as part of the Planning (Amendment) Bill.

We welcome the commitment given by the Department in the Modernising Planning Processes consultation to remove Crown immunity from planning control. We would argue that legislation should be brought forward as soon as possible and suggest that this could be brought forward as part of the Planning (Amendment) Bill.

RSPB strongly supports the introduction of this new measure. While RSPB would be concerned at any undue delay in introducing the Planning (Amendment) Bill, we would urge that strong consideration is given to the inclusion of this measure in the Bill.

We have some reservations about the provision, at 67 C (4), that a person on whom a notice is served may make an

While there are penalties where a person reneges on such an offer, without adequate monitoring this could simply be used as a delaying tactic or even lead to inactivity by the planning authority. The Department will require much more robust monitoring procedures to ensure that any such offer is carried out.

Again it is important to monitor the compliance with conditions and to ensure that, where necessary, the new measures are backed up by procedures to allow a rapid response if any breach is detected. Speed of response is particularly important where irreparable damage to nature conservation interests could be caused by unauthorised development.

RSPB also believes that the maximum fine of £1000 will be insufficient to prevent some developers from deliberately breaching conditions. A £5000 maximum fine (level 5 on the standard scale) would be a more realistic deterrent.

We support the proposal for injunctions to be applied to prevent actual or threatened breaches of planning control.

We acknowledge the advantages in reducing the legal complexity relating to enforcement notices. However, the provisions to allow the Department flexibility to require only a partial remedy of a breach of planning control

(page 5 of Explanatory and Financial Memorandum) could also be used to under-enforce in cases where full enforcement action is justified. If this proposal is to be pursued, the Department should set clear criteria as to the circumstances where under-enforcement is deemed acceptable, and who makes the decision. This should also apply to the proposals for powers to vary or withdraw an enforcement notice when it has come into effect.

We welcome the proposed increase in fine to a maximum of £20,000 and that the courts should take "any financial benefit" into account in setting these fines. Unfortunately, in some cases the level of financial benefit from undertaking unauthorised activity may still exceed the maximum fine. We therefore welcome the provision for a person to be convicted on indictment for this offence.

We support this provision.

We support the proposed powers to allow stop notices to be served and take effect immediately where there are special reasons for doing so. Such reasons may relate to damage of protected wildlife sites, for example.

While RSPB supports these provisions (and those in Clause 23), we believe that the TPO process is still flawed due to the Department's apparent reluctance to impose TPOs on trees which are not apparently under an imminent threat. Thus it may be too late to prevent damage by the time a TPO is eventually served. In some cases replacement trees will never remedy the loss of biodiversity and amenity that can result. We would urge therefore that the provisions on TPOs should clarify that the Department will impose an Order where

RSPB welcomes the proposal that regulations may extend the classes of development for which environmental assessment is required.

We welcome the proposal to broaden the scope of planning agreements/obligations in principle, but would stress that these should be secured within a clear strategic planning framework, including development plans.

Planning obligations/agreements have an important role in delivering sustainable development, and can be very important for securing nature conservation safeguards or benefits. Planning Service should consider every opportunity to use agreements to provide nature conservation enhancement and benefits.

See comments on Clause 14 above.

We welcome the proposal to give primacy to development plans in determining planning applications. The new legislation also offers scope to ensure that policies for the management of habitats and nature conservation are included in development plans.

For example, the Planning and Compensation Act 1991 (Schedule 4) includes the requirement that policies in development plans shall include

The GB Conservation (Natural Habitats etc) Regulations 1994 state that these policies shall include

This approach has been diluted in both Regulation 32 of the Conservation (Natural Habitats etc) Regulations (NI) 1995 and Planning Policy Statement 2 (PPS2). The Regulations state that

(Regulation 32, emphasis added).

Similarly, PPS2 states that

(para 33, emphasis added).

In addition, no NI development plans yet contain policies which will protect UK or NI Biodiversity priority species and habitats within the plan area.

• contribute to Biodiversity Action Plan targets, and
• deliver sustainable development

5 July 2002

I refer to your letter dated 13 June 2002 seeking views and comments on the specific terms of the Planning (Amendment) Bill, which your colleague Jim Nulty kindly e-mailed to me on Wednesday 3 July 2002. As I mentioned in our recent telephone conversation, we did not receive this letter because (as Mr Nulty has since confirmed) it was sent to our previous address at 1 May Avenue.

I note that in your letter you were seeking a response (or interim response) from consultees by 28 June 2002 in advance of the Environment Committee's meeting on 4 July 2002. I trust, however, whilst we were unable to make our interim response by this date, it will still be of value to the Committee for the Woodland Trust to submit comments at this stage. I would like therefore, on behalf of the Woodland Trust, to submit the enclosed interim response to the Bill, which I hope will prove useful in the further drafting of the Bill. If you or any of your colleagues have any queries regarding our response or require further information, please do not hesitate to contact me.

Geoff Nuttall
Development Officer

The Woodland Trust very much welcomes the measures which the Planning (Amendment) Bill includes to improve protection for trees and woodland in Northern Ireland. We are acutely aware from the regular approaches we receive from people across Northern Ireland highlighting trees under threat, of the pressing need for this improved protection; especially given our current position as the European Union's least wooded region.

Whilst the Bill's proposals for improved tree protection are very welcome, we have a number of concerns regarding the current wording of these proposals. Our specific concerns are outlined below, together with a number of suggested amendments which we believe would ensure the Bill's effectiveness in delivering the improvements in protection which are so urgently needed.

The proposed Article 65B under Clause 23 of the Bill provides welcome additional protection for individual trees covered by a TPO, but in its current form, appears to give less protection to trees in woodlands covered by TPOs, potentially leaving these vulnerable.

Article 65B requires that if any tree protected by a TPO is removed uprooted or destroyed, a replacement tree 'of an appropriate size and species' must be planted 'at the same place.' Paragraphs 1 (b) and 3 (a&b), however, indicate that if the trees affected are part of a woodland, it will only be a requirement to plant -

This appears to mean that if an area of woodland protected by a TPO was cleared, there would be no absolute requirement to replant on the cleared area. If this area remained unplanted, it would then presumably be unprotected from development, since a TPO in its current form can only be made to protect the trees which make up a woodland, rather than the land or other plants which make up a woodland area. The incentive would thus remain for a developer to clear protected trees from a site and risk a fine, with the possibility remaining of building on the cleared land.

For the reasons outlined above, we would strongly suggest that all TPO-protected trees be afforded the same level of protection and the same replacement requirements (ie replanting at the same place), and that the exceptions for trees forming part of a woodland in paragraphs 1 (b) and 3 (a&b) be removed.

To further ensure that woodlands are not afforded less protection than individual trees under the TPO system, we would suggest that Article 65 of the principal Order be amended to include a statement that TPOs can be made to protect 'trees, groups of trees, or woodlands, including all ground flora within their boundaries.'

To reinforce this yet further, we believe the Bill needs to include wording to make clear that where groups of trees are to be protected, this will be by the making of a 'Woodland Category TPO' or 'Woodland Preservation Order' and to specify that 'a 'woodland' will include the trees and ground flora within its boundaries.'

The potential requirement by the Department of the Environment to pay large compensation payments to those refused planning consent due a TPO, remains a disincentive to protect trees and woodland by making a TPO.

We would be very keen to see that the amended Article 66B under Clause 23 of the Bill clearly specifies that no compensation would be payable for loss of development value to a developer refused planning consent on the grounds that a TPO would be breached by the development.

A frequently cited problem in relation to protecting trees and woodland in Northern Ireland is that of developers clearing trees and woodland from sites before applying for planning permission, in the knowledge that the development will be assessed for approval as if the trees had never existed.

The joint Department of Environment/Department of Regional Development policy guidance document 'Creating Places' produced in May 2000 states, under section 2.21, with regard to land being considered for development,

The above policy guidelines need to be reflected in the revised planning legislation to prevent the situation continuing where significant mature woodlands can be destroyed with impunity.

Under Clause 4 of the Bill, Article 67A at paragraph 1 defines 'carrying out development without the planning permission required' as a 'breach of planning control.' The Bill should further specify that, 'the clearance of trees or woodland to prepare a site for development, constitutes part of that development and requires approval as part of the planning permission for that development.'

Also, under Clause 1 of the Bill (regarding Planning Contravention notices), paragraph 2 (a) (regarding powers to request information on site activities as part of a planning contravention notice), should include specific reference to information on site clearance, as follows, '..any operations being carried out on the land, any clearance of trees or woodland from the land, any use of the land.

27 June 2002

Thank you for the opportunity to comment on this draft of amendments to planning legislation. We realise that speedy processing of these most welcome changes is crucial to allow implementation, but we would ask that the below suggestions be considered at this late stage.

PPA 9: The Enforcement of Planning Control states that

The proposed increase in the maximum fine from £5,000 to £20,000 would make very little difference to a developer set to make a large profit. The courts have not regarded the illegal demolition of listed buildings, or buildings within conservation areas with any seriousness to date, when even the £5,000 limit has rarely been fully imposed. For instance, the demolition of 85 Botanic Avenue incurred a fine of £250, and an entire terrace within the Armagh Conservation Area incurred a total fine of £4,500.

We are very concerned that penalties for the loss of historic buildings in conservation areas do not seem to be addressed separately in the bill. Is the proposed increase in fine intended to deal with both types of illegal demolitions?

The £20,000 fine coupled with the requirement to replicate the lost building and possible jail sentence is obviously an improvement, but we would wish to see a much more dramatic increase. It is worth nothing that the 1999 legislation in the Republic of Ireland allowed for a £10,000,000 limit and/or 2 year jail sentence. A level closer to this limit would send out a more convincing message to developers and magistrates that great importance genuinely is attached to listed buildings. Once lost, their historic fabric cannot be replaced.

The setting of listed buildings is often undermined by inappropriate development in the grounds. This could be prevented if the trees within their curtilage were granted automatic tree preservation orders, as is being proposed for conservation areas. We would therefore request the TPOs be offered to these critical sites, so that the important landscape setting can be assessed.

A key example is the Gocean Lodge in Killyleagh where a locally cherished mature woodland was felled in a pre-emptive strike before an application was submitted for housing in its wake.

We are pleased that demolition is to be regarded as development, but are disappointed that this will only extend to Areas of Townscape Character. We would suggest that terraced houses and semi-detached dwellings could also be incorporated within this provision. This structural condition of neighbouring properties is threatened by such demolitions and inclusion would allow assessment of this impact as well as the contribution such buildings often make to streetscape.

The Society strongly believes that third party appeals are crucial to the operation of an equitable planning system, and would wish to express concern at its absence from the Bill. The report by Green Balance, Leigh Day and Co Solicitors, John Popham and Professor Purdue on behalf of third parties in England argues the case well:

We trust that these comments and the attached recommendations from the report on third party rights of appeal will serve to assist the debate.

RITA HARKIN
Research Officer

CPRE exists to promote the beauty, tranquillity and diversity of rural England by encouraging the sustainable use of land and other natural resources in town and country.

CPRE, 25 Buckingham Palace Road, London SW1W 0PP
Tel: 020 7976 6433 Fax: 020 7976 6373 www.cpre.org.uk e-mail: info@cpre.org.uk

The Civic Trust aims to revive and foster civic pride and community co-operation through programmes and campaigns that substantially improve people's living environments in urban areas.

Civic Trust, 17 Carlton House Terrace, London SW1Y 5AW
Tel: 020 7930 0914 Fax: 020 7321 0180 www.civictrust.org.uk e-mail: pride@civictrust.org.uk

The Environmental Law Foundation is a national charity that helps secure environmental justice for communities and individuals through a network of legal and technical experts.

Environmental Law Foundation, Suite 309, 16 Balwins Gardens, London EC1N 7RJ
Tel: 020 7404 1030 Fax: 020 7404 1032 www.elflaw.org e-mail: info@elflaw.org

Friends of the Earth inspires solutions to environmental problems which make life better for people.

Friends of the Earth, 26-28 Underwood Street, London N1 7JQ
Tel: 020 7490 1555 Fax: 020 7490 0881 www.foe.co.uk e-mail: info@foe.co.uk

ROOM (the National Council for Housing and Planning) aims to improve the contribution of planning and housing to the social, economic and physical regeneration of local communities.

ROOM, 14 Old Street, London EC1V 9BH
Tel: 020 7251 2363 Fax: 020 7608 2830 www.room.org.uk e-mail: mail@room.org.uk

The RSPB works for a healthy environment rich in birds and wildlife. It has over 1 million members throughout the UK. It is involved in planning policy development and deals with over 400 cases a year.

RSPB, The Lodge, Sandy, Bedfordshire SG19 2DL
Tel: 01767 680551 Fax: 01767 692365 www.rspb.org.uk e-mail: mark.southgate@rspb.org.uk

The TCPA campaigns for the reform of the UK's planning system to make it more responsive to people's needs and aspirations and to promote sustainable development.

Town & Country Planning Association, 17 Carlton House Terrace, London SW1Y 5AS
Tel: 020 7930 8903 Fax: 020 7930 3280 www.tcpa.org.uk e-mail: tcpa@tcpa.org.uk

WWF works to: conserve endangered species; protect endangered spaces; address global threats to the planet by seeking sustainable solutions for the benefit of people and nature.

WWF-UK, Panda House, Weyside Park, Goldalming, Surrey GU7 1XR
Tel: 01483 426444 Fax: 01483 426409 www.wwf.org.uk e-mail: infor@wwf.org.uk

The 'first party' in development control in planning is the applicant for planning permission and the 'second party' is the local authority. 'Third parties' are anyone else with a view on a planning application, whether they have a direct interest (eg as owner of the land on which the application is submitted) or a personal interest (eg as a neighbour) or a wider interest (eg as a parish council or interest group).

Relevant cases have been incorporated in this text up until 1 September 2001.

Council for the Protection of Rural England
Royal Society for the Protection of Birds
WWF-UK
Civic Trust
Friends of the Earth
Town and Country Planning Association
Environmental Law Foundation
ROOM

by

Green Balance
Leigh Day & Co Solicitors
John Popham
Professor Michael Purdue

January 2002

As communities are exhorted to take an active role in informing the land use planning decisions which shape their surroundings, the odds are still stacked against them. The system remains focussed on a dialogue between developers and local authorities, and community groups and concerned individuals cannot compete using the time and resources available to them.

Nevertheless, many individuals and community groups rise to the challenge of overcoming this inequality of resource through sheer effort and commitment. At lest, they believe, they have the same opportunity as everyone else in our democratic society to put their case.

If they succeed in convincing their planning authority of the merits of their case to refuse permission for a damaging development proposal, communities soon discover that the applicant has the option to appeal to the Secretary of State seeking to challenge the decision and gain permission. The arguments must be put and considered again. But all parties have the same opportunity to put their case, and it seems only fair that the aggrieved party can have the evidence reviewed.

However, if the planning authority decides in favour of the developer, this is not the case. Many people find this fact incredible: while a developer may appeal against the refusal of planning permission, no-one can appeal against the grant of permission - no matter how good the case for refusal may be. Worse still, planning authorities may be swayed by a simple desire to avoid having to defend an appeal: and thus the mere existence of this one-sided option could tip a decision in favour of the applicant.

Particularly bad decisions can, of course, be subjected to legal challenge. However, in practice, this means going to court, and few people feel sufficiently wealthy and confident to take this route. Furthermore, the courts rarely examine the merits of the planning arguments. Judicial review is usually confined to examining the process by which the decision was made.

In summer 2000, representatives of a number of voluntary organisations were exploring the issue of a public right of appeal in the planning system. Some doubted its wisdom, some were curious about what impact it might have, others favoured the idea. In preference to acting on individual assumptions, they resolved to commission research into the subject. The research report which follows was undertaken by an independent team of respected academics, consultants and legal experts in the filed of planning. They have made their own, independent assessment and drawn their own conclusions. The result is an authoritative, thorough and balanced exploration of the issues.

This document is not intended to be definitive but it is meant to stimulate and inform debate. The organisations which commissioned this work do not necessarily share all the views of the research team. Some feel the proposals are too limited in their scope, some feel that the limits should be defined differently, others oppose the imposition of fees or question the proposed level of fees.

But they all agree on one issue and that is this: a reform of the long-standing imbalance - which allows one party in the planning system to appeal against a decision but denies a similar opportunity to other parties - needs urgently to be addressed. The report makes a compelling case for this. There are no practical reasons why this cannot be done and the Government's current proposals to reform the planning system offer a rare opportunity to do so. We urge the Government to act on this report.

We consider that the current arrangements for challenging planning approvals are inadequate in a democratic society. Strengthening the rights of thirds parties at this stage could be expected to raise public confidence in the planning system and introduce higher standards for deciding planning applications. Increased transparency at an early stage and a right of redress at a later stage would go a long way to addressing public concerns about the way planning decisions are taken at present.

In our view there is a strong case for limited third party rights of appeal in planning, focusing on those types of case which give greatest grounds for concern about quality, transparency, probity and accountability in the developing control process. Whilst this will have impacts on the speed of planning decisions, and in some cases adverse effects on developers, we consider that these will be outweighed by the benefits. Further detailed arguments to support this case are presented within chapter 3, which also tackles the main arguments for not proceeding with third party appeals.

Most of the alternative remedies which might be considered for challenging planning decisions which third parties consider weak, outlined in chapter 6, are woefully inadequate. Only the greater use of call-in powers by the Secretary of State, combined with other changes to the regime, would come close to providing so effective a mechanism for reviewing cases, and this option will always suffer from the uncertainty and unreliability of the Secretary of State's discretionary exercise of the powers available to him. Our inclination is to favour a system in which the review of decisions puts power in the hands of those who are aggrieved by those decisions, and gives them access to an independent arbitrator of planning merits.

Who can appeal?

• Only those who have objected to the original planning application should be permitted to appeal, with any exception at the discretion of the Inspectorate.
• The Secretary of State should make it clear that he will legislate if necessary to prevent abuse of the right of appeal by third parties who seek simply to delay development, to gain commercial advantage, to secure benefits from a developer in return for the withdrawal of an appeal, or to gain publicity.

Which cases?

We strongly favour controlling the volume of appeals by the selection of categories. There should be a right of appeal against approval in the following cases:

when the planning application is contrary to the provisions of an adopted development plan;

when the planning application is one in which the local authority has an interest;

major applications (as defined by the Planning Inspectorate);

when the application is accompanied by an Environmental Impact Statement; and

when the planning officer has recommended refusal of planning permission to the members.

The phasing of the introduction of third party rights of appeal should recognise the time required to recruit and train additional Planning Inspectors.

Grounds of appeal

There should be no restriction to the grounds of appeal.

How appeals are decided

There should be parity of choice (written representations or oral hearing) between developers and third parties.

Time limit for lodging an appeal

The time limit for lodging an appeal should be 28 days from the granting of the full or outline planning permission.

Fees for lodging appeals

There should be a flat fee of £30 for lodging an appeal.

Awards of costs

There should be no costs awarded in written representation cases.

Costs should be awarded for unreasonable or vexatious behaviour in oral hearing cases, including against third parties.

Where local authorities consider that an appeal against one of their approvals is vexatious or hopeless, and it is proposed that the appeal should be decided following oral procedures, the local authority should be invited to indicate this to the appellant and the Planning Inspectorate within three weeks of the appeal being lodged; costs awards on merits would be awardable against third parties only if this had been done, thereby putting the appellant on notice without the need for a time-consuming process to filter out inappropriate appeals.

Delay caused by third party appeals

The Secretary of State should set demanding administrative targets for efficient handling of third party appeals.

The Planning Inspectorate should be encouraged to issue more instant decisions.

Summary

(i) There is a perceived unfairness in the procedures for participation in planning in that prospective developers may appeal against refusal whereas third parties cannot appeal against approval.

(ii) There should be an opportunity for those disadvantaged and aggrieved by planning approvals to seek redress from an independent body, for example:

• people directly affected by the development;
• nearby local authorities;
• interest groups/concerned persons;
• statutory agencies (if their statutory objectives would be impeded or their advice on planning applications would be overridden)^;
• Government departments (if their policies would be compromised).

(iii) Third party rights of appeal would raise standards in planning authorities and redress the present imbalance, by making them as accountable for their approvals as they are for their refusals.

(iv) Some other countries with advanced democratic planning systems have third party rights of appeal which are reported as having led to better decisions.

(i) There is insufficient evidence of a problem with the current discretionary system for deciding planning applications to require the significant change of depoliticising the planning system by greater use of independent arbitrators and less reliance on locally elected councillors.

(ii) Landowners need the ability to appeal because their expectations to develop their land are being taken away; third parties are not being denied a right and do not need it.

(iii) There are already ample opportunities for third parties to express views on planning applications and have them properly considered at the most appropriate time: that is, before the decision is made.

(iv) Any benefits would be outweighed by the disadvantages, not least the delay to development.

Summary of the Report

This project investigates the case for a right for third parties in the planning system to be able to appeal on merits to a higher authority against the decision of a local planning authority to grant planning permission.

The research evaluates:

(i) whether a third party right of appeal is necessary or desirable in principle, and if so how it might be made to work in the context of the British planning system, examining a range of options; and

(ii) whether British law needs to be changed to introduce a third party right of appeal to conform with the Human Rights Act 1998 and/or with the Aarhus convention, and if so what changes to planning law and practice are needed.

The research draws on our own analysis of the issues, as well as:

• a review of experience in selected democratic western nations and states, to see what lessons we might learn in England from them: the results of this original research are set out in full in Appendix 1;
• a seminar held at The Law Society on 1 May 2001 to explore the main issues raised by third party rights of appeal (a list of those attending is given in Appendix 2); the event provided expert input to the debate, which helped this research enormously.

The town and country planning legislation gives no legal rights for private individuals who have objected to a proposed development to pursue a challenge if the development is approved by the local planning authority. At present their sole right is to make their objections known to the local planning authority before the planning application is determined. The underlying assumption is that objectors can rely on the authority to take into account their views and interests in determining what is in the public interest.

The absence of third party rights of appeal in planning has for many years been a subject of concern to some commentators. The House of Commons Environment Committee recommended as long ago as June 1984 that

All three main political parties have in recent years supported the introduction of third party rights of appeal, although a recommendation by the House of Commons Environment, Transport and Regional Affairs Committee in 2000 for a limited right of appeal was rejected in the Government's response.

In reviewing the practicalities of implementing third party rights of appeal, our primary assumption is that any right of third party appeal should in some way be limited. There should not be an opportunity for anyone to appeal against the grant of any permission for any reason, but rather the right should be concentrated on the circumstances where the scope for perceived unfairness or inadequacy in the current arrangements is most obvious. Our reasons for making this assumption are:

• to ensure that the role of local planning authorities is not undermined by indiscriminately opening their decisions to further review without good cause;
• we do not wish to delay development, or increase the financial risk faced by investors, without good cause; and
• the Planning Inspectorate should not suddenly be burdened with a flood of case work.

The principal opportunity for third parties to engage in decisions on development proposals is by commenting at the planning application stage, so that the local planning authority has before it the opinions of those who have a view on the matter. This would be distorted, or the principle of participation at the application stage undermined, if potential objectors to planning applications were in a position to make their first representation after the local planning authority (LPA) decision by means of a third party right of appeal. We therefore propose that persons or organisations which lodged an objection to the original planning application - and whose objections were not satisfied by the terms of the approval - should normally be the only parties allowed to register an appeal.

A new third party right of appeal might create the circumstances which encouraged additional objectors to planning applications. Interested parties might identify the possibility of using or threatening third party appeals to:

delay development;

secure benefits from a developer in return for withdrawing an appeal; or

generate publicity for their own cause.

It is difficult to see how this could be prohibited by law, as it would depend on establishing that the motive for lodging a planning appeal was a commercial or non-planning motive. Furthermore, prohibitions on appeals might prevent some entirely legitimate objections from being heard. Initially at least, we consider that self-regulation will be more appropriate. We consider that the Government should make clear that some kind of restraint on delaying tactics would be introduced if required, such as a power for Inspectors summarily to dismiss appeals.

Limiting the occasions on which a third party right of appeal is available is the single most significant means of constraining the overall volume of appeals. Preferred categories of appeal would allow third party rights of appeal to focus on those cases which attract the most adverse attention and which most merit the right of appeal. We consider this would be superior to other arrangements such as requiring objectors to seek leave to appeal.

We consider there is a strong case for third parties to seek a further review of cases in which a development is approved contrary to the provisions of an adopted development plan. There are two schools of thought on how readily these 'departure applications' could be identified, but our own view is that the introduction of a third party right of appeal specifically against approvals of departure applications would bring closer attention to the definition of 'departures' and the thresholds for triggering a right to appeal. If the problem of defining a departure is as bad as some claim it to be, then a review is in any event overdue to implement existing requirements to notify departure applications to the Secretary of State.

Another contentious category of case is local authorities' deemed approvals of their own development or those in which they have an interest (eg as landowner or investor). There is a strong case for removing temptation by rescinding the power of local authorities to approve these cases. In the absence of such a change there is a strong case for third party rights of appeal here.

The right of third party appeals might be prioritised to developments that are distinctively 'major' in some way. For example, the Planning Inspectorate's 'major' cases accounted for just 5.5% of all appeals decided in 1999-2000. We are also impressed by the specific category of applications accompanied by Environmental Impact Assessments (EIAs). These are cases by definition likely to have significant effects on the environment and thus merit special attention, with the need for EIAs decided not only by the scale of proposed developments but also according to the sesitivity of the development's local context. We also consider that, the broader the scope of third party rights which the Government considers appropriate, the more categories of 'major' development proposal by size or location could be brought within the new system.

Few planning approvals granted against the recommendations of a council's officers are cases which might be decided either way on planning merits. This is therefore the kind of case which may well merit being revisited for further review. In principle, we consider that applications approved in these circumstances should be one of the priorities for third party appeal.

Once a decision has been taken on the kinds of development proposals on which third parties may lodge appeals against approvals, a further decision is required on the scope of the grounds for appeal. We consider that constraining the grounds of appeal would be impractical. Appellants would otherwise feel they were entering an appeal with one hand tied behind their back. At an appeal the original development proposal should be considered as a whole, with objections to it on some grounds being weighed against the arguments in support.

There is a special set of issues around the question of whether third party appeals should be allowed against conditions on a planning permission (on the grounds that the conditions imposed are insufficient). Where full permission is granted, we support the right of appeal against the conditions. The appeal would consider all material planning issues and not just the conditions (as is the case with developer appeals). However, in cases where outline permission only is granted, there is the potential for considerable delay in the system if appeals do not need to be lodged until conditions are decided some considerable time afterwards. A better arrangement than appealing against those conditions, we consider, would be to lodge an appeal against the outline approval, accepting that this appeal might be withdrawn if the third party's concerns are in fact remedied by conditions approved by the authority before the appeal is heard.

Developer appellants have the choice of having their appeals heard by exchanges of correspondence (written representations), informal oral hearing, or formal public inquiry. We have no hesitation in recommending that comparable choices on methods of appeal determination should be available to third party and developer appellants. This is the clearest example of the need to apply the principle that third party appeals are not second class appeals but just as serious as those submitted by developers against refusals.

There should clearly be a time limit on lodging third party appeals. We consider that third parties should lodge appeals within 28 days of the date of dispatch of the approval notice from the local planning authority to those who submitted comments on the application. This period is typical of the period allowed for third party appeals in other administrations in our study.

We consider that third parties should pay a modest fee to lodge an appeal of, say, £30. This would strike a balance between discouraging purely frivolous appeals and impeding legitimate democratic activity.

The tradition of costs awards in the British planning system is that each party normally pays its own costs at all stages of proceedings (except legal challenges to decisions), and does not contribute to other parties' costs. There is a fear in some quarters that the introduction of a third party right of appeal would open the door to a disproportionate volume of ill-considered or even vindictive appeals which had little or no basis in planning policy, and that the threat of an award of costs would go some way to bringing these prospective appellants to their senses.

We have no doubt that the threat of costs awards would indeed be an effective means of filtering out particularly weak cases from being taken to appeal. However, it would also filter out many reasonable, legitimate and even highly convincing cases from appeal, simply because prospective third party appellants might well be unable to afford to take the risk of the award if they were to lose or fail to substantiate part of their case. The overall effect would be very damaging to the concept of third party appeals: the semblance of democratic opportunity would have been presented, but those who would particularly benefit from it might well feel constrained from using it.

We wish to discourage the unreasonable use of appeal procedures. This is different from failure to offer a reasonable argument. Unreasonable behaviour is avoidable, so third party appellants should be exposed to awards of costs just as developer appellants and local authorities are now.

Vexatious appeals which seek to stifle development or to delay it for reasons unrelated to good planning would bring the planning system into disrepute. There is therefore a strong case either to penalise vexatious appeals if they arise or to prevent them from being heard. If all appeals had to pass through a filtering mechanism, this would add to the time taken reach a decision on each case. We would expect only a tiny fraction of cases to be stopped at this stage. We consider that effort could be put into dissuading vexatious (and 'hopeless') appellants from pursuing their cases, and then penalising them if they do. Forewarning of the risk of an award of costs is one way of doing this, although there are other options worthy of consideration (selective filtering or empowering Inspectors summarily to dismiss appeals). However, we consider that costs should never be awarded on merits in appeals determined by written representations.

There is often an assumption that introducing a third party right of appeal into the planning system will cause delay to the issuing of decisions, and we accept that this is generally likely to be the case. However, third party appeals could speed up planning decisions: in some cases which the Secretary of State would have called-in for his own decision, and in some cases where an aggrieved third party would have challenged the approval in the High Court. Some real delays to other developments are nevertheless inevitable, so to minimise these we consider that the Secretary of State should set demanding administrative targets for handling times for third party appeals, and Inspectors should make more use of 'instant decisions' in which the headline result of a case is announced as soon as possible after the evidence has been weighed, with the full written report following later.

Planning officers and elected members newly confronted with a third party right of appeal might be troubled that the decisions they produced were largely a waste of effort, at least in the cases which were more interesting because they were controversial, since whatever the outcome one or another party would take the matter to a higher authority for final decision. However, local authorities' views would still be very important during the appeal, and there are reasons to believe that authorities would apply more rather than less effort. Local authorities would no longer be tempted to grant permissions because they lack the resolve to defend refusals at inquiry (against developers' appeals): in future they could equally face cross-examination by aggrieved third parties. We are cautious about the argument that low standards in local authorities could become established, as there is no need for them to try any harder: there remain extensive powers to keep standards of planning control high enough, and it is implausible to believe that normal standards would be maintained on the bulk of applications whilst they fell badly on those few which were subject to a third party right of appeal.

The Nolan Committee took the view that

the Planning Inspectorate could not cope with the extra workload. The proportion of local authority planning approvals which would be appealed by third parties is conjectural. In those administrations for which we have been able to obtain information, at most half of all cases heard by the arbitrating body were third party appeals. Doubling the number of appeals would be a significant increase in the Inspectorate's workload, but we note that the number of planning appeals has historically been more than double the current annual rate: it peaked at 32,281 appeals received as recently as 1989/90. It is possible that overseas experience may not be indicative, and the number of appeals in the hothouse planning atmosphere of England could turn out to be greater if there were a general right of third party appeal. It is a matter of judgement about how 'bearable' any increase in workload would be. We suggest that the approach taken should be cautious and phased, beginning with a right of third party appeal limited to specific priority categories of case. Additional categories of planning decision should become open to third party appeal only when it is clear that the system can cope with them.

Article 6(1) of the European Convention provides that, in the determination of their civil rights and obligations, everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law. It is clear that prospective developers have their civil rights determined by local planning authorities, and have the protection of article 6. The jurisprudence of the European Court of Human Rights would suggest that in special circumstances the civil rights and obligations of those objecting to a planning application are determined by the grant of permission. For article 6 to apply there must be a genuine dispute over the existence, scope or manner of exercise of the civil rights or obligations recognised under domestic law. The matter has not been determined clearly, but there is some case law to suggest that immediate neighbours to a proposed development will have rights under article 6 if the development will have direct adverse effects on their property.

Where a grant of permission affects the enjoyment of property, a third party right of appeal could be seen as necessary to uphold article 1 of the First Protocol, the first paragraph of which provides that:

It would seem that third parties could also found rights under article 6 by reference to article 8. Article 8 gives a right to respect for private and family life, home and correspondence but this right is qualified as interference can be justified by what is

Objectors to applications for planning permission do have the legal right to make written representations and to attend the meetings of planning committees. However following the decision in the Alconbury case, that the Minister is not an impartial tribunal as he is both policy maker and decision-maker, it would seem very unlikely that the decisions of a planning officer or the deliberations of a planning committee would be seen as satisfying article 6. These shortcomings are compounded by the lack of a legal duty to give reasons for the grant of permission.

As the House of Lords decision in Alconbury shows, even if the grant of planning permission in itself is in breach of article 6, article 6 could be satisfied by the right to challenge the legality of the decision in a court that certainly satisfies the requirements of article 6. The House in substance held that the right to an adequate and impartial judicial review cured the Secretary of State's lack of impartiality. It did not matter that the courts could not review the decision on its merits. So it could equally be argued that the right to a judicial review of the grant of permission cures the lack of impartiality of the local planning authority. However there are substantial grounds for distinguishing Alconbury in which the decisions rested with the Secretary of State from planning applications decided by local planning authorities. In the case of a decision by the Secretary of State, the right to a hearing before a planning inspector precedes the decision. A public inquiry or hearing has many of the attributes required to satisfy article 6.

Nevertheless it is considered that in the case of grants by local planning authorities, the remedy of judicial review does not cure the complete absence of a fair and public hearing before an independent and impartial tribunal. However if Lord Hoffmann's approach in Alconbury is correct this would not help an objector who was simply basing his case on the court's inability to review the merits of the local planning authority's decision. This would mean that objectors would have to argue that the inadequacies of the procedures leading up to the grant of permission have meant that they have not been able to test crucial findings of fact on which the decision is based or that they have not been given reasons for the decision.

Lord Hoffmann's approach was applied by Richards J in the Kathro decision. The Judge rejected the argument that the grant of planning permission by a local planning authority in respect of its own development was inherently incompatible with article 6. He held that in the case of decision-making by local planning authorities, there was no equivalent of the fact-finding role of the Inspector and its attendant safeguards. Richards J therefore concluded that:

Article 2 enshrines a right to life. It is obviously difficult to mount a claim based on the right to life in the context of perceived fears over threats to health arising from a proposed development.

Article 14 of the European Convention provides that the rights and freedoms in the Convention shall be secure

It could be argued that by providing rights of appeal to applicants but not to objectors there was a breach of article 6 when read in conjunction with article 14. However for this argument to succeed the court would have to accept that to discriminate between applicants and objectors came within the purpose of article 14. It would also have to be shown that applicants and objectors were in an analogous situation and that the differential treatment could not be objectively justified as legitimate and proportionate. There must therefore be considerable uncertainty whether such an argument would succeed.

On the matter of who may obtain remedies from the Human Rights Act, insofar as the Act gives rights to third parties, those rights will be limited to objectors who can show that their civil rights have been directly and genuinely affected. It will not be available to individuals and pressure groups who are purely motivated by their desire to protect the environment in the public interest.

In conclusion, the absence of third party rights of appeal is not conclusively incompatible with the Convention rights protected by the Human Rights Act 1998. The courts are still in the process of working out the meaning of article 6 as applied to the granting of planning permissions. Until there is a decision of the House of Lords directly on the issue, the position will remain uncertain. It would however at present seem likely that article 6 protects only those objectors who are directly and seriously affected by the proposed development and when they are denied an independent and impartial forum to dispute crucial factual issues.

The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (known as the Aarhus Convention) was signed on 25 June 1998. The Convention itself does not directly require a right of third party appeal. The main provisions concern the right to environmental information, public participation in decision-making and the right to challenge environmental decision-making in the courts. Its main impact will therefore be to improve the alternatives to third party rights of appeal.

It includes general requirements for what is termed 'effective public participation'. These would seem to fall short of providing objectors with a right to a hearing before any decision is made. However where there is a public hearing, such as a planning committee meeting, it goes further than the present law in England and Wales in suggesting that it may be appropriate to allow the public to address the committee. It should therefore provide the basis for improving the rights of objectors in the decision-making of local planning authorities which do not already accommodate this.

Overall, the Aarhus Treaty does not directly further the cause of third party rights of appeal but it does help to focus on the needs for objectors to be involved in the decision-making process.

We have identified considerable concern - from our own experiences with the planning system, from comments made to us and from our seminar - that the planning system is too often failing to satisfy people's aspirations for greater engagement, transparency and competence in planning decisions. Whether or not these concerns are justified is not the point: the perception of a shortfall in practice against expectations is present and important.

The case for a third party right of appeal to an independent body capable of offering a fair hearing on the merits of arguments is attractive because of these perceived problems. However, the need for such a mechanism might be reduced if other arrangements were in place which helped people to feel that their concerns had been taken into account more thoroughly and clearly at an earlier stage in the planning process. The report suggests a series of improvements to the decision-making process which may be worth further research evaluation. In addition, we have briefly considered four alternatives for further review of proposed or actual planning decisions by local authorities.

First, local authority internal review provides an opportunity for more councillors to contribute to the discussion of controversial cases, but this is never going to be, or be seen as, independent or impartial. We therefore consider there will always need to be scope for external review of local authority decisions, either afterwards or by intervention to forestall decisions.

Second, the Secretary of State has the power to take planning decisions out of the hands of local planning authorities by 'calling in' planning applications, though this is exercised highly selectively. Third parties can ask the Secretary of State to call in applications, particularly if they are concerned that the local planning authority will grant permission, but the Secretary of State does not have to stick rigidly to his own criteria, and even if he does it is a matter of judgement as to whether the criteria are satisfied. Reform of the call-in procedure might temper the case for a third party right of appeal, but the lottery effect would to some extent remain. If power is to be put in the hands of those directly affected by actual or potential planning approvals, then a third party right of appeal would arguably be a better mechanism.

Third, judicial review allows planning decisions to be challenged in the High Court on points of law, not for the most part on merits. Judicial review as a means of resolving planning problems is clearly unreliable and difficult for the large majority of participants in planning procedures, and carries the significant disincentive of a risk of costs awards against the loser. The law governing judicial review in planning cases might be made more wide-ranging and there are clear signs that the courts are moving towards expanding the grounds of review and in particular to adopting 'proportionality' as a ground of review. This would necessarily involve a closer scrutiny of the rationality of decisions. However, judicial review would still fall far short of a right of appeal and the courts themselves would be very reluctant to take on that function.

Fourth, complaints may be made to the Local Government Ombudsman on the subject of whether local authorities have carried out their administrative duties correctly. The Ombudsman's concern is with procedure, particularly where shortcomings in procedural practices ('maladministration') have resulted in 'injustice' to individuals. The Ombudsman is only peripherally concerned with the merits of planning cases, however, and his involvement is well short of the detailed analysis of cases which a third party right of appeal would allow. We see no advantage in expanding the role of the Local Government Ombudsman in an attempt to deal with the problems which would be addressed by a third party right of appeal.