Gordon Steele: Scotland’s planning appeals process needs to speed up

No-one should underestimate the importance of the planning appeal process. Appeals consider and determine some of the most contentious and, indeed, some of the most important developments so far as the Scottish economy is concerned. Unfortunately, it is a system with flaws and we really need to have an open and frank debate about where improvements could and should be made.

Gordon Steele, QC, is a specialist in planning law.

Some appeals are determined by Reporters and some by Ministers. Curiously, there are no rules about periods for determining appeals. There is no long stop date. This contrasts with applications where there are strict rules about time periods. In one very high-profile case, the Lafarge Harris super quarry application, which ended up in court, a delay of seven years was branded “scandalous” by the judge. Alas, we can still find examples of that length of time between an application for planning consent and a final decision.

Official statistics for 2018-19 tell us that appeals determined by planning inquiries took an average 93.9 weeks to determine – that is nearly two years. There are many examples where it has, or is, taking years to determine appeals:

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• A residential proposal for 120 units in West Lothian took more than five years to be determined.

• In Glasgow, there is still no decision on an energy-from-waste proposal after three and a half years.

• In Edinburgh, a decision is still awaited more than three and a half years after call-in by ministers. This relates to a proposal for a major new housing development.

• Applications for wind farms regularly take many years to determine (Fallago Rig has taken more than four years so far).

• The INEOS application to extract gas (not by fracking) very near 
to Grangemouth was made in 2012. It is still not determined more than seven years later. Meantime, INEOS ship gas from the USA by tanker to the Grangemouth plant.

In the last year or two, I was involved in two cases in England. There, the inquiries ran over two weeks or so and were determined in one case in six months, and the other in eight months. If those timescales can be achieved in England, surely they cannot be beyond us in Scotland.

I wonder how many jobs and how much prosperity would be created by similar early decision taking in Scotland. I have some thoughts and suggestions, as to how we might bring about improvements.

Sheriffs play an extremely important role in the administration of justice. But I suggest that Reporters have a role of similar importance in so far as Scotland PLC is concerned. I cannot understand, therefore, why, in broad terms, Reporters should be paid about one half of the salary of a Sheriff. I suggest that Reporters should be properly rewarded for the difficult and important task they perform. So my first suggestion is to pay Reporters the same rate as Sheriffs.

Secondly, the general rule of thumb should be that three Reporters hear every appeal. Three heads are better than two or one. This should speed up decisions. It would also avoid delays if one Reporter is ill. I am mindful of the situation in the Lafarge Harris super quarry Inquiry where the single Reporter became ill largely as a result of the relentless pressure she was under. Delay of years was the result. The pressures of conducting a case alone in the far flung parts of Scotland should not be underestimated.

Thirdly, no Reporter should commence an Inquiry or hearing until he or she has concluded the previous case. Trying to deal with two or more cases or reports at once will inevitably lead to delays. I am aware that this has been happening to experienced and highly regarded Reporters. This is an impossible situation.

Fourthly, I submit that the recent secondment for about a year of the Chief Reporter to the ministerial legal office must never occur again – indeed, it should never have occurred in the first place. To my mind, perceptions of bias arose. But, also, it caused an unfair burden on other Reporters and inevitably to even more delay.

Finally, I noted a statement by the Minister that he wished to assist the turbine manufacturer at Campbeltown after it had announced plans to lay off many workers due to lack of orders. I suggest timeous or indeed even prompt determination of wind farm applications may well assist.

Gordon Steele, QC, is a specialist in planning law