This public consultation by the Scottish Executive ran until 30th July 2004. The full original consultation documents to which this is a response can be accessed from The Scottish Executive website.

Introduction

The Mountaineering Council of Scotland (MCofS) is the representative body for hillwalkers, climbers and off-piste skiers and receives core grant funding from sportscotland in recognition of this status. We are a membership organisation with over 2,000 individual members plus 139 affiliated clubs that contain over 7,000 members. Our committee structure is entirely voluntary and appointments are the result of a democratic process. The professional staff complement is made up of four posts at our Perth office.

The MCofS welcomes the opportunity to respond to this consultation, which is of great significance to the landscape of Scotland's mountains and therefore people's enjoyment of them. We offer our response to this consultation and request that we be kept informed and involved in the ongoing consultative process.

General Summary

• The MCofS has objected to a number of planning applications in the past and always been left with the feeling that the playing field is far from level. If a proposed scheme is turned down our victory might only be temporary because the developer is able to appeal, whereas if we lose then our defeat is final because we do not have the equivalent right of appeal.

• The MCofS therefore welcomes this consultation on a Third Party Right of Appeal (TPRA), because we believe in the principles of environmental justice, and sustainable development cannot be delivered without greater equality in the planning system.

• Consideration of procedural impacts such as delays should be secondary to the principle of giving local and national communities the same right of appeal as developers.

• Earlier public consultation should make the planning system less adversarial. We believe that TPRA would lead to better pre-application consultations, which would mean fewer appeals overall in the long term.

Responses to questions

Q1 Paragraphs 3.3.1 to 3.4.9 have identified arguments made to us previously both for and against a third party right of appeal. Do you think they accurately reflect the arguments? Are there other arguments not covered here which you wish to raise?
We believe these paragraphs accurately reflect the arguments. TPRA can act as a mechanism to enhance the status of the development plan and ensure that plans are up to date.

Q2 Do paragraphs 3.5 to 3.14 accurately reflect what supporters of a third party right of appeal are seeking in a new appeal process?
Yes, we believe the arguments are accurately reflected in these paragraphs.

Q3 If the right of appeal were to be extended to third parties, do you think it should be restricted to all or some of the four categories identified in the Partnership Agreement? Please give reasons to support your views.
The right of appeal should be limited, and restricted to these four categories. These categories ensure that only developments with major environmental impacts or implications of environmental injustice can be subject to a third party appeal in the public interest.

• Cases where the local authority has an interest: there is clearly a conflict of interest where the local authority is also the developer. This has been an issue in a number of high profile cases, particularly in road developments where there is scope for road improvements to have a considerable landscape impact.
• Cases where the application is contrary to the local plan: development plans form the context for all decisions made by a planning authority, and yet many authorities are operating with out-of-date plans. TPRA could help by providing an additional incentive to bring development plans up-to-date.
• Cases where planning officers have recommended rejection: in these cases it is likely that the officers decision is made on the basis of planning merits. Communities should have the right to ask for further scrutiny of the application by calling for an appeal.
• Cases where an EIA is needed: if the project is screened for an EIA it means that it will have potentially significant environmental impacts. The MCofS has serious concerns about developers gaining the support of local authority members and persuading them to ignore the importance of environmental designations and EIA recommendations.

Q4 Which planning decisions do you think should be capable of appeal to the Scottish Ministers?
The MCofS agree with the suggested categories listed in paragraph 4.10.

Q5 If the right of appeal were to be extended, which third parties should be able to appeal and in what circumstances? Please give reasons for your answer and also, where relevant, explain why you think any of the third parties identified above should not qualify for a right to appeal.

• The best option is those who objected to the original planning application, but it could be extended to those who responded to the original planning application. Original objectors or respondents may include statutory consultees, local residents, Community Councils, interest groups and NGOs, as well as other developers and small businesses.
• The MCofS does not support the option for persons with interest in the land as this would exclude, e.g., small retailers in town centres objecting to an out-of-town shopping centre development which may result in a loss of trade, or residents objecting to a new quarry operation which may be distant from their houses on the grounds of extra traffic generated in the area.
• The options for representatives or other interested parties are problematic in several ways, and working out eligibility to appeal would add to complications in the system.

Q6 Do you support, in principle, the introduction of a wider right of appeal in the planning system? Please give reasons to support your views.
Yes, the MCofS supports the introduction of a wider right of appeal in the planning system.

TPRA ultimately affects a very small proportion of proposed developments, but these rights have symbolic value that suggests the planning system is not entirely pro-development and as such they have a wider impact on how development is designed and how developers engage with the local community.

TPRA would improve the whole planning system, especially leading to better pre-application consultations, which would mean fewer appeals overall in the long term. The community can deal on a more equal basis with developers if they have a right to appeal the final decision.

Q7 How do you feel the planning service at both planning authorities and the Scottish Executive would be placed to manage the likely increase in workload?
A better, more equitable planning system will result from the changes leading from the introduction of a TPRA and this outweighs any obstacles that might ensue. Changes in other aspects of the system will greatly lessen any foreseen increase in workload, including:

• The use of written representations rather than oral hearings.
• The use of mediation services in the pre-application consultations, as long as communities have TPRA that will strengthen their voice in negotiations.
• Modernisation of the public local inquiry system. (See our response (7 November 2003) to the Scottish Executive consultation on Modernising Public Local Inquiries).

Q8 Do you think there would be any implications for the attractiveness of planning as a career if there were to be a significant increase in the appeal caseload? Please give reasons for your answer.
TPRA will bring positive gains to the planning system in terms of earlier consultation, more community involvement, more public interest and engagement with the process and we feel that this will bring greater job satisfaction to the work of planning officers.

Q9 Should a fee be payable to object to a planning application and/or to lodge an appeal against a planning decision? If so, what do you think would be an appropriate level of fee?

• There should be no fee payable to object to a planning application.
• There should be a fee for appeals in order to demonstrate serious intent, but this should be no more than £50.

Q10 Should the Scottish Ministers retain their role in deciding particular planning appeals, or should SEIRU decide all appeals?
There are advantages to the Scottish Ministers losing their role in deciding particular planning appeals, since it can lead to a conflict of interest where they are the promoter and final arbiter of a planning decision. It would be more appropriate for SEIRU, or an amended version of SEIRU, to be an arms-length body with greater independence that decides all appeals.

Q11 Would the introduction of mandatory public hearings in defined circumstances increase public confidence in planning authorities decisions?
The MCofS is opposed to this idea since we feel it would add an extra tier to the system with the subsequent delays this would bring, and would also add extra costs for few added benefits.

Q12 Would extending the circumstances in which the Scottish Ministers are notified, to include all development plan departures, sufficiently address concerns about decisions being made by planning authorities against the terms of development plans?
We do not have a definite view on the issues raised in this question.

Q13 Would it be appropriate to introduce a screening process for planning appeals? Please let us have your comments on relevant screening criteria.
The MCofS agrees with the criteria outlined. Any system of TPRA must include a screening process to ensure the appeal falls within one of the four criteria and that the appellant is entitled to appeal. However, if the Scottish Ministers are in control of the screening process, plus retaining the power of call-in and also being the final arbiter on a decision, this could represent a serious conflict of interest. We would prefer to see some other body, perhaps SEIRU, or an amended version of SEIRU taking on the screening role.

Q14 Are there circumstances in which any right to appeal against planning decisions should be withdrawn? Please give details.
No, the MCofS does not believe that there are any circumstances that would justify the withdrawal of the right of appeal.

Q15 (a) Please give us your views on each of the models outlined in section six.
(b) Can you think of any alternative package of changes to the planning system to ensure a system which is both fair and effective.
(c) How would each of these models (and any other package you suggest) impact on the resources and objectives of you or your organisation?
(a) The MCofS's views on the four proposed models.
While we recognise that there are resource implications if TPRA is introduced, we believe these are secondary to the crucial principle of levelling the playing field and bringing greater equity to the planning system. TPRA will ensure better pre-application consultation, better quality applications and greater transparency and accountability. We therefore favour the models that would deliver a TPRA.

• Model 1: We favour aspects of Model 1 and Model 4, but do not feel able to fully endorse one or other of the two models.
• Model 2: We welcome the proposals for modernising the planning system but reject model 2 since the underlying principle of making the system more equitable is not met.
• Model 3: Again, the principle of TPRA is not introduced in this option so it is not a fair or effective model. Also, there is no evidence that hearings are beneficial in general, and they will add an extra tier to the system with the potential for greater delays and costs. Ultimately, even after the hearing process, first parties will still retain the right of appeal that perpetuates the current inequitable system.
• Model 4: We support aspects of this option as well as aspects of Model 1. At this stage in the process we would like to see a commitment to TPRA and a thorough investigation of the mechanisms for delivering it.

(b) The MCofS's views on alternative packages of changes to the planning system to ensure a system that is both fair and effective. We responded on 7 November 2003 to the Scottish Executive consultation on “Modernising Public Inquiries”. The issues we raised in that response are related to the Rights of Appeal section of the planning system, and we would urge the Executive to consider the arguments we made in that previous consultation response.

(c) The MCofS's views on these models and their impact on our resources and objectives. As an organisation that occasionally objects to proposals that we consider would have a negative impact on the landscape value of Scotland's mountains we would welcome a planning system that provides a level playing field. TPRA would give us the same opportunity as the developer to challenge what we regard to be a bad decision. We believe that the strengthened position of third parties would encourage developers to come forward with better proposals in the first place, and seek wider and earlier consultation, thereby saving a lot of the time and effort that goes into objecting to damaging and poorly thought through proposals.

29 July 2004