Concerns over reduction in Scottish planning and environment appeal hearings justified, says expert

In an annual report published by the Scottish Government's Directorate for Planning and Environmental Appeals (DPEA) for 2012/13, (24-page / 747KB PDF) Scotland's Minister for Local Government and Planning Derek Mackay admitted that there had been concerns expressed "about the fact that fewer hearings or Inquiries are [now being] held".

Mackay said, though, that the need for speedier decision making in planning application appeal cases was behind reforms to appeal procedures which now see many decisions taken based on written submissions and a site inspection.

Craig Connal QC, a litigation expert at Pinsent Masons, the law firm behind Out-law.com, said, though, that the lack of oral debate can lead to poor decision making over whether to permit plans for development to proceed.

"With excellent use of a politician's skill in understatement, the Minister says that 'some people have concerns about the fact that fewer hearings or Inquiries are held'," Connal said. "That reflects a serious concern, expressed informally at all levels, about the risk that the level of scrutiny needed on points of controversy may not be given unless these points are subjected to some form of oral debate or argument. It is not necessarily all that difficult to make a weak point sound impressive by careful drafting."

The DPEA has developed a code of practice setting out the procedures for determining the outcome of inquiries held under the Electricity Act. Some stakeholders have insisted that they have a legal right to insist that "all issues raised in objections" are dealt with in oral proceedings, according to the report. The Code, described by the DPEA as having "mixed success", limits the cross-examination of participants in hearings.

According to the DPEA's report, a higher percentage of appeals conducted with an oral process were allowed than those considered on paper. Connal said that this "might suggest that the concerns over method of disposal have justification".

The DPEA's report revealed that there had been a 10% rise in the number of appeal cases received in 2012/13 compared to the previous year, whilst there was also a "recognition" that decision notices issued should be adjusted in length depending in "the nature of the issues argued", Connal added.

The expert said that the statistics on the success rate of appeals brought in cases concerning individual local authorities could prompt some councils to review the reasons why more of their decisions than not were successfully appealed against in 2012/13.

In East Lothian 64% of appeal cases were successful, compared to 67% in East Renfrewshire and 59% in West Lothian. Four out of the five appeals brought against Inverclyde's planning authority were successful. On average, appeals were successful in 38% of cases.