Independent Review of Planning October 2015

During the SPSO’s annual performance review earlier this year, it was finally acknowledged by Jim Martin [The Ombudsman] that Scotland’s planning legislation is contradictory and he is left to make what he claims are balanced decisions. As local residents know to their cost these contradictions lead to long and needlessly stressful disputes between those who suffer unauthorised additional loss of amenity, hardship and injustice, and the local authorities involved.

Many of the failings we have encountered are blamed on the planning system. The information we have obtained from those we regard as reliable sources, (please see below) confirms that the planning system in Edinburgh is presently unfit for purpose as it fails to provide an accurate and professional service for the people of Edinburgh, their councillors and potentially leaves developers at risk of legal action. It also leaves our elected representatives at risk of triggering complaints to the Standards Commission for failing to comply with their moral obligations to serve the people of Edinburgh and their legal obligations to comply with their respective Codes of Conduct. It is clear from organizations such as Integrity4Scotland, Accountability Scotland and Planning Democracy that we are not alone in having fallen foul of the following contradictions and failings that are part of the planning system.

Edinburgh’s planning system in particular doesn’t comply with the recommended Planning Charters. Those responsible for implementing or enforcing it, disagree over what it actually is and decisions are made based on inaccurate and contradictory notions rather than factual evidence. Our first recommendation therefore is that these contradictions should be addressed in an effort to reduce the number of time consuming conflicts and the planning system should be simplified to enable everyone to understand it.

With the exception of removing the long-standing practice of including landscaping conditions in some applications, (which thanks to our tenacity the SPSO finally acknowledged CEC had no legal authority to include in the first place) no one will take ownership of these issues far less take steps to ensure they are satisfactorily resolved. It doesn’t seem unreasonable to suggest that our public servants in both these departments should be serving us, not condoning mistakes by turning a blind eye to them or worse still, try to cover them up by providing what we have politely called ‘nonsense’, (please see examples below).

We feel it is unfair for staff to be placed in the embarrassing position where members of the public have a better understanding of plans and what has been approved than they do. It certainly isn’t fair to those members of the public who suffer additional loss of amenity, hardship and injustice because decisions that adversely affect them are made based on this nonsense. Our second recommendation is therefore that failings in the planning system should be addressed honestly and by suitably qualified staff.

It took 18 months for the then Convenor of the Planning Committee to acknowledge that our interpretation of what had been approved had been correct and poor practice and failure to provide a service had indeed taken place. Seven years later, a member of the Planning Committee has recently confirmed that mistakes were made in the handling of one case, something CEC resolutely refuse to acknowledge. The SPSO refuse to revise their decisions despite overwhelming evidence obtained from our more reliable sources. We are still waiting for an explanation as to why these mistakes were allowed to take place at all let alone condoned, as we advised of potential problems in advance. We would therefore suggest that the review recommends that genuine concerns raised by members of the public should be acted upon quickly, not ignored and breaches of planning control allowed to take place.

In our experience the SPSO is an unsuitable body for dealing with planning disputes. They failed to provide the fair, honest and unbiased service their publicity and the SPSO Act 2002 led us to believe they would. Staff didn’t have the basic skills to understand the issues raised and showed clear bias by making decisions based on information which had already been discredited and was later confirmed as inaccurate during a Q&A session with the then Convenor of the Planning Committee.
As part of our justice system it doesn’t seem unreasonable to suggest that the SPSO should be making decisions based on facts. A development cannot be both closer to neighbouring houses than approved as they confirmed, (a breach of planning control as defined by the Scottish Parliament and within the Planning Charters) and further away at the same time. It is totally illogical, technically inaccurate and physically impossible. Mr Martin was asked which of the three contradictory interpretations given by Planning Dept staff, (none of which agreed with the developer’s claim) was the SPSO’s offical position. He failed to reply.

CEC claimed that during an investigations in 2007, it was established at that time that a development had been built slightly further away from our houses than approved. The builders didn’t start work until 2008. This misinformation was passed to three different elected representatives, and despite the mistake being pointed out, no apology has been issued.

Nor could developers install new gas mains in our gardens without us noticing the work being done, as claimed by an SPSO ‘Advisor’ in a second case. It was later acknowledged by the Planning Dept that they didn’t know if gas mains had been installed or not.

It would appear that the only way we have of showing that this is incompetent nonsense is by Judicial Review which will cost in the region of £50,000. In our opinion this makes a mockery of Scotland’s justice system and would suggest that this should be addressed during the review as well.

Yet this is the standard of inaccurate information upon which so-called balanced decisions and decision letters are based. We understand they issue reports to the Scottish Parliamant on each case. These reports can have little credibility and give quite a false impression of both the SPSO’s performance and that of the local authorities they investigate if based on this level of information. We would suggest that this issue should be addressed during your review if MSPs are to have a more accurate understanding of the level of service provided by both departments.

Widespread maladministration, as defined by The Scottish Government, has led to the following at this site:
Two planning disasters, including structural damage to some of our houses.
Four avoidable breaches of planning control. Potential problems were brought to the attention of the Head of Planning and local Councillors both in advance and shortly after building work began in 2008, as recommended in the Planning Charters. We were ignored.
Six formal complaints.

As far as we are aware SPSO staff have taken no action on any of the examples of maladministration we brought to their attention so we asked what they were if not in fact maladministration. They were unable to provided an alternative definition. We would suggest that if there is a difference of opinion between what CEC staff and Mr Martin and his team regard as maladministration it is up to them to lobby the Scottish Government with a view to having this amended. The SPSO Act 2002 does not give them authority to condone it. Hopefully this review will address these differences of opinion with a view to removing at least some of the needless stress surrounding planning disputes and any subsequent complaints.

One of these complaints was raised by CEC Planning Dept themselves in 2012 rather than answer questions arising from the Planning Services Engagement. We already knew that as part of Edinburgh’s planning system, Planning Dept staff do not check plans for accuracy or that application reports accurately reflect accompanying plans before recommending them for approval. This is despite it contradicting the Planning Charters.

During the Planning Services Engagement initiative it was revealed that they are not checked even when members of the public like ourselves point out obvious anomalies in advance. This was acknowledged as a recognized failing in the system at the time. Despite the present Convenor of the Planning Committee assuring us that this complaint was dealt with properly, to date no one has been able or prepared to clarify what was covered in the complaint. They cannot tell us what conclusion the investigation came to. Most important of all, no one has explained what possible justification there is for the practice of Planning Dept staff knowingly misleading members of the public and Planning Committee by providing them with inaccurate or contradictory information during the handling of planning applications.

We have made it clear that we feel this is a fundamentally dishonest practice and to date no one has disagreed with us. In our opinion Planning Dept staff should be providing the Planning Committee with accurate information so they can make the good planning decisions they have both a moral and legal obligation to do. Planning Dept staff are not employed to ‘sell’ or ‘jazz-up’ applications on behalf of developers to make them appear more acceptable than their professional training should enable them to understand the end result will be.

Mr Martin confirmed during his last performance review that corruption and deliberate malpractice, (which this practice is) was a criminal offence, yet when we raised this issue with him he took no action. Deliberate malpractice is a disciplinary matter in business or industry and in our opinion there is no reason why Planning Dept staff should be treated any differently. We feel that removing this practice from the present planning system is the most important suggestion we have to make if Edinburgh’s planning system is to regain any credibility or respect from the public.

SPSO staff refused to advise whether they had a legal obligation to the people of Scotland to investigate maladministration when it is brought to their attention. Members of the SPCB were asked what the purpose of the SPSO was if not to address maladministration but they have failed to answer. Kenny MacAskill acknowledged some years ago that the SPSO was ‘something of a toothless ombudsman’. Yet, local authorities use the SPSO as an excuse for maintaining the status quo rather than provide the level of service their customers have every right to expect from them.

The LGRC are aware of the SPSO’s history of failure to perform yet they repeatedly refuse to challenge Mr Martin over this. The clerk of the LGRC by his own admission claimed he did not have the experience to understand some of the issues we raised in questions we were asked to provide for the SPSO’s annual review, (despite having been in the position for several years) yet he took it upon himself to alter some questions to the extent that they were pretty much meaningless. We would suggest that our MSPs’ refusal to hold the SPSO to account for their failings brings the Scottish Government into disrepute and should be addressed during this review as well.

We should point out that earlier this year, both Dame Sue Bruce, (former Chief Executive of CEC) and Jim Martin, (SPSO) were given the opportunity to provide the SPCB with competent or verifiable evidence to either corroborate their claims that their respective departments had dealt with the issues we have raised properly, or to contradict information from more reliable sources. They failed to do so.

Our ‘reliable sources’ include:

  • The Scottish Government
  • Those local Councillors who were responsible for approving the original planning application in 2008, (particularly the Convenor of the Planning Committee at the time)
  • Independent planners from Planning Aid Scotland, (PAS)
  • Kenny MacAskill, our local MSP who was Cabinet Secretary for Justice at the time
  • The CEC planner who prepared the 2005 application
  • The SPSO investigation officer who dealt with our complaint in 2008

Those of us who live here and can confirm what has actually taken place.

We have used a number of the suggested questions to highlight more contradictions between these reliable sources and those who have either provided us with what we have politely called ‘nonsense’ or failed/refused to answer our questions.

  • Do we need development plans?
    • We would suggest that they are needed. Our locally elected representatives have obligations to serve local residents. It is not unreasonable to suggest that these should include ensuring there is ample housing, schooling, infrastructure etc. to fit local needs or anticipated expansion. It also enables local residents to make their own long-term plans.
  • Is the current system of development plans fit for purpose or do we need to simplify or redesign it?
    • It would appear that the present system is not fit for purpose as the recent Brunstane Farm development plan has shown. After it was approved, local Councillors and an MSP complained that the Planning Committee had not been made aware of all the facts, in particular, potential problems which might arise from old mining activity were not included. As mentioned above, the practice of presenting and recommending planning applications without checking them for accuracy was acknowledged as a failing in Edinburgh’s planning system.
  • Should we have a multi-tiered approach to development planning?
    • Hopefully locally elected representatives have a better understanding of what is required in their area. However, the history within Edinburgh’s planning services is not good. This goes some way to explaining a petition claiming no confidence in CEC Planning Dept beeing signed by more than 5000 people.
  • How can relationships between tiers of plans work better?
    • We appreciate that we only have experience of what happens in Edinburgh, but when members of staff in the Planning Dept, (particularly at senior level) cannot or will not clarify what developers are applying for, contradict themselves, each other, the developers and Planning Committee over what has been approved, the Scottish Government may not feel safe in devolving these important decisions to them. Despite the Planning Services initiative in Edinburgh, poor communications both within the department and with their customers is still a major issue.
  • Can development plans provide greater certainty for communities and investors?
    • Yes. As explained above.
  • Can we improve development plan examinations?
    • Obviously in Edinburgh it would be much better if Planning Dept staff were trained to the standard that enabled them to understand what they were recommending for approval to the Planning Committee or what had been approved by them. In our experience, enforcement officers made decisions based on their own inaccurate notions of what had been approved rather than check with source, namely the Planning Committee. This gave rise to them in effect overruling what had been approved rather than enforcing it, despite having no authority to do so. Hopefully this review will recommend that this practice be removed from the system.
  • How can we ensure development plans have a stronger focus on delivery and quality of place?
    • While we can appreciate the desire to make development plans easier and quicker to handle, in our opinion this should not be done by ignoring the rights of those already living in potential development areas. This is not a case of ‘not in my back yard’ or NIMBYism as it is referred to. If there are alternative sites available they should be looked at first. If not, then accurate information should be made available to both the public and their elected representatives so they know exactly what the adverse affect potential applications will have.
  • Whilst there have been overall improvements in performance,
    • Performance appears to be based on reports provided by local authorities and the SPSO. We have recently been advised that in Edinburgh, these reports are based on self-assessment and are presented to not only the Planning Committee but the Scottish Government as well. We have suggested that if these are to have any credibility they should include the failings as well as targets met. After all, there is little point in a self-assessment system claiming applications have been dealt with within given timescales if they have been dealt with in such an appalling manner that they lead to planning disasters. Clearly our concern is that if staff are responsible for investigating their own failings, they are unlikely to admit to them, especially if deliberate malpractice is involved. We would suggest that this part of the system be investigated as part of the planning system review, if the Scottish Parliament is have a more accurate reflection of performance.
  • Should there be a Housing Needs and Demands Assessment to inform the approach to planning for housing?
    • This would appear to be a sensible suggestion. However, there doesn’t appear to be any facility for local authorities to assess developers’ ability to finish the job before large-scale developments are undertaken. As we know to our cost, this leads to some developers going into administration and protracted upheaval for nearby residents.
  • Should housing numbers be defined centrally rather than locally?
    • As mentioned above, hopefully local Councils have a better idea of what is required. However, in Edinburgh there is a perception that just about anything will be approved, as those involved in decision making don’t actually understand what is being applied for or approved. The circumstances surrounding the three cases we have mentioned would seem to give extra weight to this suggestion.
  • Should there be a different process for housing applications?
    • Hopefully the information we have provided confirms that there should be. Planning Committee members are totally dependent on their respective Planning Depts providing them with accurate information. In Edinburgh, Planning Committee members run the risk of triggering complaints to Standards every time there is a new build application as they don’t know whether it is accurate or not.

4. Development management
· What are the barriers to timely decision making within the development management service and how can they be overcome?
Arguments for and against alternative and sometimes more appropriate sites? Those already living in proposed sites should not be ignored, not least of all because elected representatives have obligations to serve them as well.

· Are there issues with planning enforcement that need to be addressed?
Undoubtedly. In each case we have been involved in, enforcement officers either, didn’t understand, (sometime by their own admission) and didn’t bother to clarify what had actually been approved or chose to over-rule them anyway. This is part of the present planning system in Edinburgh which we feel should be addressed in this review.

5. Leadership, Resourcing and Skills
This is a useful time to take stock on whether there is a lack of specific types of expertise, as well as the skills we will need in the future. The corporate profile of planning within local authorities is also a key consideration.
When Planning Dept staff claim to be able to tell where a development is before it has been built but don’t understand basic plans and contradict each other over what is being applied for or has been approved, there is definitely a training issue within the present system.

· Are planners equipped to provide strong and skilled leadership within planning authorities?
We would suggest that placing staff in jobs they do not have the necessary skill-set to complete with any degree of accuracy or professionalism is down to poor management and requires attention.

· Should we make provision for better resourcing of the pre-application stages, particularly for larger projects?
In our opinion in all three cases, had competent members of staff taken a few minutes to check that the application reports accurately reflected the plans, they would have saved days worth of man hours dealing with disputes instead. It was a false economy. What is particularly worrying is, the same architects submitted increasingly inaccurate plans for all three applications and our local Councillor’s request that the second application be dealt with with greater care was ignored.

· What skills and resources are currently lacking?
We have hopefully made these obvious above.

· What skills will be in most demand in the future?
If changes are not made to the present system, more staff who can deal with complaints from members of the public in an honest and accurate manner will be required. Refusing to do this and passing the buck to the SPSO is in our opinion an abdication of their responsibility.

· Is there a need for more training of elected members?
The history of failings in Edinburgh and how poorly they were dealt with suggests that this is the case. Failure to do so leaves them at risk of triggering complaints to Standards after all.

6. Community engagement
· Are the provisions for front loaded engagement in development plans working?
The fact that one of our local community council’s resigned en mass after the controversial Caltongate application was approved would suggest that front loaded engagement isn’t working.

· Do we need to change the system to ensure everyone has a fair hearing in plan and decision making?
As you would see above, our well-founded concerns were ignored.

· Does mediation have a role to play in resolving conflict in the system?
The main conflict in Edinburgh appears to be between the Planning Dept and the Planning Committee and the SPSO refusing to take steps to prevent conflicts in future by addressing maladministration. The SPSO appear to be answerable to no one.

· Should the statutory role of community councils be extended – for example to development planning?
In Edinburgh they are pretty much ignored.

· Is it possible to improve public perceptions of the planning system?
More than 5000 people have signed a 38 degrees petition to show they have no faith in CEC Planning Dept. Hopefully the short history of failings on their part while dealing with these applications has helped to explain why. Addressing the various issues we have raised can do nothing but improve the public’s perception of the planning system.