Publication - FOI/EIR release

Local Authority Planning Appeals: EIR release

Published: 28 March 2018
Directorate: Legal Services (Solicitor to the Scottish Government)
Part of: Public sector

Information request and response under the Environmental Information (Scotland) Regulations 2004.

FOI reference: FOI/18/00518
Date received: 14 February 2018
Date responded: 13 March 2018

Information requested

1. Any correspondence since 2012 between the DPEA and Government Ministers or between the DPEA and the Planning and Architecture Division referring to the subject of 'effective five-year housing land requirement'.

2. The source of, and documented details of a standardised calculation methodology which must be used by local authorities and DPEA reporters when determining whether or not a local authority is compliant with their effective five-year housing land requirement.

3. A definition of what DPEA management consider could constitute a conflict of interest or work experience induced bias (selective perception), and how these definitions are used in the selection or non-selection of a reporter for any given appeal.

4. The documented rules used by any Government staff involved in recruitment of DPEA reporters, particularly in regard to any applicant's background experience or political allegiance that could possibly result in that applicant being more likely to favour appellants over planning authorities, or vice versa.

5. Case reference numbers and case status for all 'more than one house' appeals that have been lodged by or on behalf of developers or their agents, since September 2008.

6. Case reference numbers and case status for all appeals allocated to reporter Mr. Robert Seaton since his recruitment as a reporter for DPEA in 2015.

7. Case reference numbers and outcomes for all appeals in which Mr. Robert Seaton as an employee of the law firm Brodies represented, acted for, or provided supporting evidence for an appellant during the eight years prior to his recruitment as a reporter for DPEA.

8. Copies of all records, correspondence and/or other documentation relating to the DPEA Customer Satisfaction Survey 2010-11 that include mention of Mr. Robert Seaton, e.g. invitation to take part, record of proceedings or minutes of meetings he took part in. This should include pre-event, event and post-event records.

9. The number of interested parties previously involved or at that time involved in appeals, stating whether they were objectors to an appeal or supporters of an appeal, that were invited to participate in the above mentioned Customer Satisfaction Survey and the number who subsequently participated.

10. Details of all records, correspondence or other communications not involving specific appeals, between Mr. Robert Seaton and the DPEA prior to his appointment as a Reporter. Documents which have redacted personal and financial information are of course acceptable.

11. In the opinion of the DPEA management, how many valid reasons does a local authority need to refuse a planning application?

12. In the opinion of the DPEA management, what circumstances can a DPEA reporter allow an appeal when a local authority have one or more valid reasons for refusing a planning application?

In questions 11 & 12 above by the word 'valid' I mean reasons that are in accordance with Scottish planning laws.

Response

In the first instance I would confirm that as the information you have requested is 'environmental information' for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

I am taking the requests for information you make in the same order as in your correspondence.

1. An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to all of the information you have requested because it is internal communication between DPEA and Scottish Ministers and DPEA and Planning and Architecture Division about the subject of effective five-year housing land requirement

This exception is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. We recognise that there is some public interest in release as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on effective five year housing land requirement will be disclosed in the near future, when it may undermine or constrain the Government's view on that policy while it is still under discussion and development.

I would further confirm that DPEA issues briefings to Scottish Ministers in respect of all potentially controversial planning appeal decisions prior to the decision being issued. The briefing is simply a summary of the decision which is available through our website. Given we have provided reference numbers and details of all cases since 2008 you will be able to access the relevant decisions as appropriate . I trust this is sufficient but should you wish to see copies of such briefings in relation to specific cases please let me know.

2. There is no one standardised method of calculating whether a planning authority is compliant with their effective five year housing land requirement. Reporters are required to determine appeals in accordance with the development plan unless material considerations indicate otherwise. It would be reasonable to say that parties to an appeal will advocate different approaches to this calculation and the reporter has to ultimately decide based on the evidence before them

3. Whilst this request is not for information but rather a view of what could constitute a conflict of interest or work experience induced bias I have set out below the process by which reporters consider their allocation to a case and by which allocation decisions are made.

All Reporters make independent decisions based on their planning judgement and are aware that they have to be seen to be independent, untainted by any influence that might be seen as a source of potential bias or prejudice that could affect the outcome of a case. Reporters should not be involved in clubs or pressure groups that might be seen as influencing judgement. Similarly, they should take care that personal relationships with people that they meet through their work do not create the perception that favours are expected and given. It is the reporters duty to ensure that they do not use their official position to further their own private interests or those of others. Reporters should not take part in any decision that could affect the value of private investments or those of their family or close friends. It is undesirable that any reporters or members or their immediate families, hold shares in any of the major retailers, housebuilders, and utility companies operating in Scotland. To do so would put a reporter at risk of challenge on grounds of potential bias, which would limit their ability to perform their responsibilities as a reporter. It is the reporter's responsibility to consider, on a case by case basis, whether there are any issues that may lead other parties to consider that the reporter may not be impartial. As a general principle reporters are not allocated cases involving a site within one mile of their home in an urban area and in rural areas the distance is five miles. In addition, we try to ensure that those with a background in a particular planning authority are not allocated cases that could be said to call into question their independence and impartiality. In cases where a reporter identifies a party or parties that they know on a personal basis in a case that they have been allocated it is normal practice for DPEA to alert parties to this and to ask whether they have any objection to the reporter dealing with the case – if an objection is received the case will normally be allocated to another reporter. Separately, if anyone objects to a reporter dealing with a case a reporter will notify the DPEA Management so that a decision can be taken as to whether a fresh reporter should be appointed.

4. Reporters are recruited via two different processes. The first is through internal recruitment within the Scottish Government – these opportunities are solely available to Scottish Government staff. The other option is external recruitment. I can confirm that no part of this process requires an applicant to confirm or otherwise their political allegiance. If it would help I can confirm that civil servants owe their loyalty to the Crown, whose authority is exercised through the government of the day and for the civil service to serve successive governments, cabinet secretaries, ministers and the public, they must feel confident that civil servants personal views don't affect their official duties. Recruitment to the Civil Service is governed by the Civil Service Commission recruitment principles a copy of which can be found at http://civilservicecommission.independent.gov.uk/civil-service-recruitment/

5. I attach a spread sheet detailing case reference numbers and case status for all more than one house appeals lodged on behalf of developers or their agents since September 2008. I have considered that all appellants are developers for the purpose of this request.

6. I attach a spread sheet detailing case reference numbers and case status for all appeals allocated to Mr Robert Seaton since his recruitment as a reporter.

7. I attach a spread sheet detailing all cases submitted by Brodies law firm during the eight years prior to Mr Seaton's appointment as a reporter. This may include cases where Mr Seaton was involved but was not the point of contact or indeed cases where Mr Seaton had no involvement.I trust this is helpful in relation to this specific request.

8. Mr Seaton is listed as a participant in the public local inquiry session focus group, a copy of which can be found at

http://www.gov.scot/Publications/2011/06/28111524/12

A copy of the customer satisfaction survey findings can be found at http://www.gov.scot/Resource/Doc/352685/0118649.pdf

9. The DPEA customer survey was restricted to appellant, their agents and planning authorities. As such no other parties participated in the survey.

10. I can confirm that we hold no information other than information relating to Mr Seaton's application to become a reporter. An exception under regulation 11(2) of the EIRs (personal information) applies to all of the information requested because it is personal data of a third party and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. This exception is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception.

11. Whilst this request is not for information but rather a view of how many valid reasons does a local authority need to refuse a planning application I have set out below the basis on which planning decisions are made.

Planning decisions are required to be made in accordance with the development plan unless material considerations indicate otherwise. This range of considerations include matters listed at para 5 of the attached document -

http://www.gov.scot/Publications/2009/07/03153034/11 In practical terms refusal of planning permission can be based on one or more grounds.

12. Whilst this request is not for information but rather a view of what circumstances can a DPEA reporter allow an appeal when a local authority have one or more valid reasons for refusing a planning application I have set out below the basis on which planning decisions are made.

http://www.gov.scot/Publications/2009/07/03153034/11

Reporters will make their decision on this basis having fully considered submissions made by all parties involved in the case.

About FOI

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