Yesterday, the minutes of the meeting between the chief planner and the members of the Trump organisation were published. following a freedom of information request. I had thought they would be anodyne, because the chief planner would meet other developers to discuss the procedures in relation to appeals and in meeting Trump representatives was not acting in an unusual way. And lo and behold, anodyne they were.
Some notes on this meetings:
first, at para 1 of the minutes the Trump people privately indicated to the chief planner that they might appeal the refusal (as they would be entitled to). This is contrary to their publicly stated position where they indicated they would walk away if permission was refused. It was in their power to appeal, they were minded to appeal. This begs one big question, why did ministers call it in?
second, it is noted that matters may be called in using the statutory powers (these are found in s 46 of the Town and Country Planning (Scotland) Act 1997). The minute indicates that call in has to follow notification of the application to ministers. It was also noted at para 3 that “Ministers do have power to call in planning applications without formally being notified but this was not normal practice.” if there is no call in then the developer has 6 months to appeal – and, according to this minute normal practice would enable the developer to express a preference as to the manner of deciding the appeal. The decision to appeal is then clearly in the hands of the developer. The developer can determine how matters proceed and – it is indicated in para 4 of the minute while appeals would normally be delegated to a reporter Scottish ministers can recall an application to make their own decision in an appeal, if the matter is of “national importance or particular sensitivity”.
Underlying this minute is an indication that an appeal is the normal course of action, but a residual power to call in is available, although not normally when an application is not formally notified.
The minute begs two questions in relation to procedural handling: first, when is an application formally notified to ministers? second, when will ministers decide to call in?
The circular 5/2007 set outs both factors (although this has to be read against the background of s 46 of the 1997 ACt – which gives the legislation relevant to call in)
First, when is an application formally notified? It is formally notified where various documents are submitted to ministers including the application, plans, environmental assessments, consultation responses (and comments on them) , assessment in relation to conservation legislation, and reasons for the proposal to grant planning permission, including the relationship between the decision and the local development plan. Now this is the crucial part – the whole scheme is set up because the anticipation is that when an application is refused there is no need to call in, because the matter can be appealed to ministers anyway.
In the Trump case Aberdeenshire Council infrastructure committee, who had been legitimately delegated power by the whole Council, rejected the application. The developer could appeal, and privately was indicating to the chief planner that an appeal was seriously being considered. So why call in?
Additionally, it begs some other questions.
Was the application ever notified to Scottish ministers (not something I’ve considered previously, given the circular which requires applications involving development on Sites of Special Scientific Interest to be notified to ministers)? If it was not notified the decision to call in becomes out of the ordinary given the statement in para 3 of the minute. Good reasons would have to given for such an unusual exercise of discretion. Or if it was notified, when was it notified?
The next thing to consider is when ministers can call in. This is again set out in ciruclar 5/2007, referred to in this minute. The relevant paragraphs are 24 – 27.
Call in will only be exercised when ministers consider it necessary, whether or not an application had been notified to them. And in determining this the factors in paragraph 26 are considered (although this is merely an illustrative list). These factors include,
We can discount most factors. There is no intention to grant, and Scottish Natural Heritage are against the development. I am not sure about the third factor. Is there a national policy related to this application? Unfortunately, the note by ministers on the decision to call in is so cursory that we cannot tell if this is a factor or not. The decision does not run counter to the local plan, and there is no suggestion of a conflict of interest. This leaves the application being a matter of national importance.
In this respect there are questions to answer along with those asked in my earlier post:
Do the ministers believe that planning decisions generally should be made at a local level?
What planning applications should be decided by ministers?
Why was the Trump application called in?
When was it decided this was an application of national importance?
If that was decided in earlier in 2007 (after submission of the application in late 2006) why was the matter not called in then? Why let the local authority waste resources in dealing with the case?
Why call in after rejection, when an appeal is available that would bring the matter before ministers anyway?
And, given the involvement of ministers will this application be decided by written submissions or a public inquiry?
ETA John Swinney has during the writing of this post issued a news release on the call in. It’s only just been published and I’ve not had time to digest it but I’ll post on that later.