DEVELOPMENT PLAN EXAMINATIONS
105. Sections 12, 12A, 19 and 19A of the Act, and regulations 18 to 23, deal with Examinations. Examinations are intended as the principal means of independently examining any unresolved issues arising from representations on proposed strategic development plans and local development plans. They should:
- ensure the process is understandable and transparent to the public;
- examine any unresolved issues raised in representations rather than responding to each individual representation;
- be succinct and proportionate. Scottish Ministers expect the process from appointment to reporting normally to take around 6 months, and rarely to exceed 9 months;
- be focussed on the reporter seeking out the information they feel they need to reach conclusions on the matters at hand. As the onus is on the planning authority and interested parties providing information in advance, further procedure will rarely be required and will be at the discretion of the reporter; and
- identify any deficiencies in the plan, arising from the Examination of the unresolved issues, and recommend modifications to rectify these or, where this is not possible within the constraints of the Examination, identify post-adoption actions to rectify the deficiency.
Summary of Unresolved Issues - Schedule 4s
106. The planning authority must prepare a summary of unresolved issues. This summary is to group the representations into a smaller number of issues. It is to:
- number and list all the unresolved representations and name the people making the representations;
- include a summary* of the issues raised in the representations;
- include the authority's reasons (generally expressed in less than 800 words per issue) for not modifying the plan in regard to each issue; and
- be arranged, so far as practicable, so that the issues appear in the same order as they are set out in the plan.
* A form for the summary is included as Schedule 4 to the regulations. A separate Schedule 4 form should be used for each group of unresolved issues identified by the authority from the representations submitted.
107. The intention of Scottish Ministers is that if any individual policy or proposal in the plan is subject to representations, then this will generally be dealt with as a separate issue. But if multiple representations are made on one policy or proposal, these may be grouped into a single issue. Representations relating to a number of closely related sites, for instance around a particular town, may also be grouped into a single issue, particularly where infrastructure and other matters would clearly benefit from being considered in the round. It would be wise for the planning authority to engage with the Directorate for Planning and Environmental Appeals before formal submission of the summary of unresolved issues ( e.g. by sending draft committee reports), to ensure that it is fit for purpose.
Appointment of a Person to Examine the Plan
108. Scottish Ministers must serve notice of the appointment of the person to examine a SDP or LDP to the SDPA or planning authority respectively. For certain plans, more than one person might be appointed and small teams of reporters will examine the plan. The appointment of the person to examine the plan is to be advertised in a local newspaper, and those who made unresolved representations ( i.e. those representations that have not been withdrawn) are to be notified of the appointment, by Scottish Ministers in the case of SDPs, and by the planning authority in the case of LDPs. The SDPA or planning authority are also to advertise the appointment in local libraries. This advert and notice should also include information on where documentation connected to the Examination, including the summary of unresolved issues, can be viewed.
109. A key principle of the Examination procedure is that, as far as possible, the reporter should at the outset be furnished with all the information required to reach conclusions and recommendations. If they have not already done so, regulation 20 therefore requires the planning authority/ SDPA to supply the following material to the appointed person within 14 days of being notified of their appointment:
- a summary of unresolved issues;
- copies of the unresolved representations;
- the Environmental Report;
- the proposed Action Programme;
- the Monitoring Statement; and
- the Participation Statement current when the Proposed Plan was published.
Any supporting productions should also be submitted at this stage, but these should be concise, proportionate and limited in number.
Examination of Conformity with Participation Statement
110. Before considering the general issues raised in representations on the plan, the reporter is firstly to consider the authority's conformity with the Participation Statement. Sections 12(2) and 19(4) of the Act require examination of whether the authority has consulted on the Proposed Plan and involved the public in the way they said they would in their current Participation Statement. The Act restricts the Examination to the actions of the authority concerning consultation and public engagement in respect of the Proposed Plan, rather that the extended plan preparation process. In carrying out this assessment, Scottish Ministers envisage that the reporter will only refer to existing published documents such as the Participation Statement itself, the authority's statement of conformity with this, and any representations relating to the authority's consultation and public involvement activities. Ministers do not expect any additional evidence to be routinely invited on these matters, given the potential delay that could ensue.
111. The procedure for when the reporter finds that an authority has not acted in conformity with their Participation Statement is set out at paragraphs 126-129 below.
Examination Procedure and Further Representations
112. Ministers do not want to see lengthy Examinations: their priority is to ensure development plans are up-to-date, deliverable and support place making. In a limited number of cases, the reporter may feel that they do not have all the information they need to make a proper assessment of an issue. Regulation 22 therefore allows them, at any stage, to request further representations or information from any person. Such requests are not therefore limited to the authority and people who made representations, but could be extended e.g. to key agencies.
113. There is no provision, for either those who have made representations or the planning authority/ SDPA, to submit any further material to the Examination unless invited and required to do so by the reporter. This reinforces the importance of front-loading the process, ensuring that the reporter, the planning authority and other interested parties have the relevant information from the start of the Examination.
114. There need be no link between the importance of an issue and whether the reporter seeks further representations on it. There may be issues of great significance where the reporter feels they have all the information they need to reach a conclusion without any further input. Conversely, they may feel unable to make a recommendation on a relatively minor issue without further information.
115. As well as determining on which aspects of which issues, and from which parties, further representations are to be received, the Act is clear that it is the appointed person who will determine the form the Examination is to take. The Examination may comprise a range of methods including written submissions, hearings and inquiry sessions. The majority of issues are expected to be dealt with without any need for further information to be submitted, but where further evidence is requested, this will normally be in written form. Where an oral session is required, this will normally follow the hearing format rather than formal inquiry sessions. Different aspects of individual issues may be dealt with using a number of formats.
Scope of Examination
116. Regulation 21 limits the scope of matters to be assessed in an Examination to issues raised in unresolved representations ( i.e. where the representations have not been withdrawn). These issues will be set out in the summary of unresolved issues prepared by the local authority/ SDPA, described in paragraphs 106-107 above. The reporter has the ultimate ability to add to or redefine the issues to be assessed, but at all times these must be limited to issues raised in the original representations. As set out in paragraph 113, there is no provision for parties to widen the scope of the examination by introducing new material to the Examination.
117. Regulation 21 is also intended to prevent the scope of the Examination spreading to become a wider test of the soundness of the plan. Scottish Ministers intend the reporter within the bounds of the issues raised in representations, primarily to examine the appropriateness and sufficiency of the content of the Proposed Plan. Only if the Proposed Plan is insufficient or inappropriate should they consider other sites or approaches. They are not tasked with making the plan as good as it can be, but with modifying those parts that are clearly inappropriate or insufficient.
118. Reporters require adequate environmental information to be provided to them, together with evidence arising from public engagement, without this they will be unable to recommend modifications to the plan on particular sites.
119. Regulation 21 also allows Examinations into SDPs to assess:
- alternative proposals submitted when the planning authorities constituting the SDPA have been unable to agree on its content; or
- any matters highlighted by the Scottish Ministers in appointing the person to examine the plan.
120. Scottish Ministers expect the reporter to provide conclusions and recommendations for each of the issues identified at the start of the Examination process, but not on every individual representation. The reporter will prepare an Examination Report setting out their conclusions and recommendations and providing reasons for these. The Report will also set out the reporter's assessment of the authority's conformity with their Participation Statement. Ministers do not expect reporters, within the scope of the Examination, to have to consider making wholesale changes to the plan.
121. In cases where reporters identify deficiencies in the plan, if they have enough information to enable a suitable modification to be drafted or if the necessary information can be obtained in time for the examination to be concluded within the six month timescale expected by Ministers, they will recommend appropriate modifications to resolve the deficiency.
122. In limited, exceptional circumstances, the reporter may identify a serious policy omission or deficiency in the plan, such as inconsistency with the National Planning Framework or Scottish Planning Policy. If this deficiency is not capable of being resolved through the Examination process due to a lack of sufficient information, or if the information required could not be provided within the normal timescale for an Examination the reporter will highlight the deficiency in the Examination Report.
123. In such circumstances the reporter
will provide recommendation(s) on actions that could be taken to
remedy the deficiency such as recommending that an early review of
the plan be carried out, or the preparation of statutory
Supplementary Guidance. Ministers have powers in section 20 to
prevent a plan being adopted (or in the case of an
SDP to reject
a plan under section 13) and in circumstances where a plan has a
serious deficiency may exercise those powers. Where such a serious
deficiency was identified, until such time as the deficiency had
been resolved, the level of certainty normally provided by a
development plan may be greatly reduced, leading to more planning
applications for development contrary to the plan and, perhaps,
more planning appeals.
124. On completion of the Examination Report, the reporter will then:
- submit the report to the planning authority (in the case of LDPs) or Scottish Ministers (in the case of SDPs);
- publish it (including electronically);
- notify parties who made unresolved representations that the report has been published and submitted; and
- in the case of SDPs, send a copy of the report to the SDPA.
Costs and Administration
125. Scottish Ministers are responsible for the organisation and administration of the Examination. The intention is that a party's individual costs incurred preparing and presenting evidence should be met by that party. Regulation 23 requires the general costs and overheads incurred by Scottish Ministers or the appointed person in connection with Examinations into SDPs (including the costs of the appointed person's remuneration and of the venue) to be met equally by the SDPA and Scottish Ministers, and that these costs associated with Examinations into LDPs to be met by the planning authority alone. The Directorate for Planning and Environmental Appeals will provide further information on costs and will invoice authorities directly.
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