Mr McFarland (Deputy Chairperson)
Mr Byrne
Mr Bradley
Mr Ervine
Mr R Hutchinson
Mr Hay
Mr Hussey
Mr McNamee
Mr M Robinson
Mr Savage

Mr J Warke ) Planning Appeals Commission

The Deputy Chairperson: Good morning. I welcome Mr John Warke of the Planning Appeals Commission to the Committee. We are keen to hear the views which you provided in your written submission, and we also welcome the opportunity for Committee members to discuss them with you.

Mr Warke: I shall set the commission’s role in context, for that will also put our comments into context. The Planning Appeals Commission is an independent appellant body with no role in making policy or promoting legislation. When the commission is invited to comment on proposed legislation or policy, that is the context within which we comment.

Generally, we comment in four areas: general legal issues which may concern us; any impact on the status of the commission; procedural issues relating to our work if we are involved; and any impact on resources.

At the outset, it is important to clarify that the comments which Mrs Campbell made in her letter came under the heading of procedural issues relating to the work of the Planning Appeals Commission, not under any of the other headings. The commission is not suggesting that anything unlawful is being proposed in the Strategic Planning Bill. However, it has some concerns about procedural aspects of it. Those concerns relate to statements of general conformity, which clause 2 of the Bill covers, and are to be issued in two stages. The first stage is before or at the draft plan stage, and the second stage is before adoption of the plan. The second stage concerns the commission because the draft Bill makes it clear that if the Department for Regional Development issues a statement that the plan does not conform to the regional strategy, that immediately becomes an objection to the plan, and, on the assumption that the plan leads to a sufficient number of rejections giving rise to a public inquiry, that becomes an objection before the commission.

In essence, the Department for Regional Development would appear as an objector to the plan prepared by the Department of the Environment unless it persuaded the Department of the Environment to adjust the plan. That is one area in which the Department would appear before the commission in such a role.

Secondly, even if the Department for Regional Development issued a statement saying that the draft plan conformed, the strong likelihood is that someone would object, and we should have to examine the objection. In such a situation, the Department would take part in the inquiry, explaining why it had said that the plan conformed to the regional strategy.

The difficulty we see emerging is in the procedures. After the inquiry, when the commission made its report and recommendation on the issue — as it would have to do with an objection before it — the Department for Regional Development, as party to the proceedings, or possibly as an objector, would have a second bite of the cherry. That would be a departure from established procedure and practice, more generally in relation to plans in England.

The broad approach in relation to statements of general conformity has been taken from equivalent provisions in the Town and Country Planning Act 1990, which deal with the relationship — not of a development plan to a regional strategy but rather of a local plan to a structural plan. However, the same principle of conformity applies. There is only one statement of conformity, and that is at the initial stage, not after the public inquiry.

If the commission judged that a proposal or issue raised conformed to the plan, and the opposite view had been taken by the Department of the Environment and the Department for Regional Development, the two Departments might not agree with the findings. Other parties would have been involved in the public inquiry and would have had their say. In England, when local planning authorities do not accept the recommendations of the independent inspector’s report, they publish the recommendations and allow 28 days for further representations to be made. If those representations raise any significant issues, the local authorities ask the public inquiry to be opened. That provision is included in the regulations in England.

The other interesting development in thinking across the water — on which the Office of the First Minister and the Deputy First Minister has recently issued a consultation document — is the proposal requiring local planning authorities to accept the recommendations of the independent panel. The thinking is that when you have had a public inquiry in which everyone has put forward their views, it undermines the credibility of the system if the subsequent recommendations are not accepted.

The proposal is to allow the Secretary of State to issue a direction in extreme cases where the local planning authority could disagree with an inspector, but that would be the exception rather than the rule. That is the context of our remarks on the procedural issue, the issue of fairness and practice elsewhere. I hope it has been clear.

The Deputy Chairperson: The Department’s involvement in this matter results from the regional development strategy. The reason this wording is in the strategy document is that there was a concern that, although we had spent two or three years producing a regional strategy, there was technically nothing to stop other Departments thumbing their noses at it, which is why the phrase started off as "in conformity with". There was then a problem because some of the planning decisions already taken would not have been "in conformity with", and so the wording was changed to provide a degree of flexibility so that Department of the Environment plans already under way, particularly the area plans, would not be embarrassed by not being in keeping with the strategy.

I am not clear about the Planning Appeals Commission’s role in that matter. It has a planning role, which is dictated by the Planning Service’s decisions and fights. However, the issue has nothing to do with planning decisions. It is to do with whether the Department for Regional Development believes that the plan is in keeping with the regional development strategy. What does that have to do with the Planning Appeals Commission, whose role is to adjudicate between the Planning Service and other parties as to whether a detailed plan is correct?

Mr Warke: In the event of the Department for Regional Development issuing a statement that the draft plan — or some part of it — does not conform to its strategy that automatically becomes an objection to the plan, and it will be referred to the Planning Appeals Commission in the context of any public inquiry.

The second way in which the Planning Appeals Commission will be drawn into the matter is that — irrespective of the stance which the Department for Regional Development or the Department of the Environment might take — another party might object to the plan on the basis that it, or aspects of it, does not conform to the strategy. That issue would have to be dealt with by the Planning Appeals Commission at the stage of the public inquiry. It would have to give its recommendation on the objection. In all those scenarios, the Department for Regional Development would be involved, either as an objector to the Department of the Environment’s plan or to put forward views in opposition to those who were raising objections.

The difficulty is that the legislation appears to be unfair, since it draws in the final statement without any opportunity for other parties to respond and have a second bite of the cherry. The commission is not taking issue with the principle that it makes good sense that the plan be in general conformity with the regional strategy. It endorses that view entirely, and its recommendations acknowledge it too.

The Deputy Chairperson: You will be aware that an accusation levelled at the current system is that developers already have a second bite of the cherry. That is one of the great complaints. Apparently, when there is a inquiry under section 30, developers are allowed to respond, but other parties are not.

If large developers have that facility already, why should there be any objection to the Department joining them and having an extra chance?

Mr Warke: You are talking about the Department’s development control function in relation to planning applications. An applicant — whether developer or individual householder — who is refused permission can appeal to the commission for an independent adjudication, whereas, if the application is granted permission, someone who had objected to it cannot appeal. That is the case. However, that is different from the development plan issue. It is one issue that —

The Deputy Chairperson: It does not transfer to the commission’s adjudication?

Mr Warke: No, it does not. Irrespective of the plan coming out, someone can make a planning application which may not be consistent with the plan or the strategy, and there may be an appeal for the commission to examine it again.

Mr McNamee: Given Mr Warke’s concern about the Department for Regional Development’s opportunity to submit a statement on two occasions after the commission’s consideration of the initial statement or objection from another party, how would he amend the Bill?

Mr Warke: One could follow the model which I mentioned in relation to English regulations, whereby all the Department of the Environment need do at the second stage is take account of the Department for Regional Development’s statement. It does not say that it must be accepted. If it accepts it in the context of an inquiry where the issue had been debated, and it is contrary to the commission’s recommendation, it is suggested that it be published and that a further 28 days be allowed for further representation from those parties to air their views. There could be discretion on whether the matter was referred back to the public inquiry or whether Departments went ahead with a decision. The initial point is that other parties can have a say.

It is a procedural point about fairness and the credibility of the system. In any event, the problem is lacking in the development plan system. My point is of more general significance, but it is all the more potent because some might see it as an advantage to a Government Department which an ordinary objector might not have.

Mr Bradley: It has been the norm that an applicant refused has the right to appeal. An objector to an approval has no right of appeal. Is that currently under review?

Mr Warke: This moves into cross-functions. I understand that a Planning (Amendment) Bill is currently under consideration. There is no provision for what are called "third-party appeals", and the matter falls into that area. I suspect that various parties made representations on that point to the Committee for the Environment.

Mr Byrne: Perhaps Mr Warke could enlighten us. During the finalisation of the regional development strategy there was an issue concerning the term "consistent with". That was superseded by "in general conformity with". Is that likely to make it more difficult for the Planning Appeals Commission to adjudicate on the local development plans?

Mr Warke: It is a matter of policy; however my position will not be compromised by giving my views. The change from "consistent with" to "general conformity with" is welcome. It offers a degree of flexibility, although in the real world, where circumstances change, it is important that development plans and planning applications be decided in the context of a regional strategy, for unforeseen events can take place. No one wants to be left in a straitjacket. The definition of "consistent with" is very tight, and the change is welcome. In general, it will probably be easier for the commission and for all Departments to approach their work.

Mr Savage: When an appeal leaves the council, how long should it take to arrive with the Planning Appeals Commission?

The Deputy Chairperson: It was decided at the beginning that the Committee was meeting with regard to a legality and to go through the Strategic Planning Bill. It was agreed that discussion would be confined to the Bill, rather than include other aspects of the Planning Appeals Commission.

Mr Warke: If the member wishes to ring me after the meeting, I shall willingly answer that question.

Mr Savage: Someone might have good grounds for planning permission on one or two sites in one location, but he might have difficulty in being granted it. A developer could put a different angle on it and be granted permission for three or four sites.

The Deputy Chairperson: This is a legal discussion on the Strategic Planning Bill, and Hansard is recording it.

Mr Savage: As far as I am concerned, this is also a legal implication.

Mr Warke: I am available at any time to discuss the general work of the Planning Appeals Commission outside this context. If members wish to contact me, I shall be happy to speak to them. For obvious reasons, I cannot discuss specific cases currently before the commission.

Mr Ervine: You indicated that one way around the problem might be to have a 28-day period in which everyone could be heard. Whom must we convince during that period?

Mr Warke: The people who appeared and said that they had convinced the Planning Appeals Commission. We want to hear details of why the Department for Regional Development and the Department of the Environment take a different view so that we can respond to it.

Mr Ervine: What might happen if, at the end of those 28 days, you had not changed the minds of people in the Department for Regional Development?

Mr Warke: Without those 28 days, nothing would happen. The system lacks credibility because people ask why there was a public inquiry.

Mr Ervine: Let us assume that we adopted a theory which might make that a little better, but what would happen if, at the end of those 28 days, people in the Department for Regional Development had still not changed their minds?

Mr Warke: The plan would be adopted. However, the principle is that people would have had an opportunity to put forward their views. Alternatively, the Department of the Environment could refer the matter back to the Planning Appeals Commission if new issues arose. That is always a possibility, and it happens quite often in England.

Mr Ervine: If I understand what I am reading, there is less capacity for independent assessment or an independent decision-making process if we adopt what has been offered.

Mr Warke: The Department of the Environment and the Department for Regional Development must make the independent final decision. That is their role, and I have no problem with that. However, the process which leads to that decision should be open, transparent and fair. It would add an important layer of openness, transparency and credibility to the final decision, whichever way it goes.

The Deputy Chairperson: What was the Department for Regional Development’s reply during your discussions? I presume that it is aware of the letter and has given you its view.

Mr Warke: In a brief telephone call to the Department, I was told that it had taken legal advice and that there was no legal requirement. That is not the commission’s argument. I am talking about procedural issues, openness and transparency. I do not suggest that it would be legally flawed. However, I believe that the change would be a good measure. That was the only discussion which I had with the Department.

The Deputy Chairperson: Next week the Committee will get another opportunity to tease the issues out. Thank you for you attendance. It has been useful.