Planning & Environment

Hats off to Fife Council for having produced a report on their LRB’s operation throughout its first year. Refreshing to note that the review involved consultation with stakeholders (always dicey) and equally refreshing to note that the report includes comments as well as responses to pre – set questions. All very open and accountable – top marks for that too.

Brodies undertook extensive training for elected members and for officers on LRBs – their roles, responsibilities and applicable rules. One of the issues that repeatedly came up is that where an officer has failed to determine an application within two months and the applicant applies for a review, the review must be conducted within 2 months by the LRB. In its LRB report Fife Council comments that “in reality, given the consultation periods built into the regulations, it is in fact very difficult to comply with the timescale”. No surprises there! The challenge of complying with the timescales was clear from the outset.

The Council indicates that its LRB has had cause to deal with only the one non – determination case so far and that it managed it within the timescales. However, the Council make the point that the legislation is unclear as to what should happen if a review is not concluded within the 2 months timescale. We are not convinced that everyone agrees with that.

This particular scenario is covered by section 43A(17) of the Act. Said legislation states that “where a requirement to review is made by virtue of paragraph (c) of subsection (8) and the planning authority have not conducted the review within such period as may be prescribed by regulations or a development order, the authority are to be deemed to have decided to refuse the application and section 47(1) is to apply accordingly.”

One interpretation of the this is that the effect of non determination is that the application is treated as having been refused which might give rise to the prospect of a competitor or an objector raising court proceedings with a view to having a consent issued after the elapse of 2 months consent reduced. This would of course be very unfortunate in a situation where an approval was otherwise sound.

The report indicates that stakeholders have some concerns about the independence of the LRB’s advisors. This is an issue that dominated much of the debate about the introduction of LRBs. It may be (as the Fife report says) that these concerns will diminish as the LRB develops and the role of advisers decreases. However, another factor that will contribute to the perceived independence of LRBs is how they are seen to conduct their business. Well prepared members and strong conveners who are guided, rather than led, by advisors will do much to enhance the reputation of LRBs. Planning authorities have paid particular attention to training LRB members and some of the training has focussed on the soft skills that are required to run effective meetings and hearings. So there can be no doubting their good intentions.

I have yet to attend an LRB meeting. I have, however, heard reports some good, others not so good about how they have been conducted. I am conscious that the views of some will have been coloured by the outcome of the LRB’s deliberations, but that there might be room for improvement in some quarters should come as no surprise. It’s early days, and experience may breed greater levels of confidence and better decision-making.

In the case of Fife Council’s LRB some of the stakeholder comments indicate satisfaction; one suggests a good enough job was done, and that what wasn’t perfect was “just due to the fact it was all new”. There were some dissatisfied with the process. But in the main, dissatisfaction seems to have arisen from misunderstandings about how the system operates. I fear planning authorities will face a bit of an uphill struggle in terms of ensuring perfect clarity, and local variations may lead to unhelpful and confusing comparisons. However, a number of planning authorities have produced excellent guidance which is readily available on their websites and that has to be a step in the right direction. They might also benefit from conducting the sort of exercise that Fife Council have undertaken and invite comments from stakeholders which can be used to shape and improve future decision making and service delivery.

Jackie McGuire

Partner at Brodies LLP
Jackie is a partner at Brodies and a specialist in the field of local government law. She has direct experience in the public sector and in major project management, ensuring a practical and pragmatic approach to problem solving.
Jackie McGuire