Democracy and Informal Policy Making: Planning Appeals in Scotland

By Kaminer, Tahl | The Town Planning Review, January 1, 2019 | Go to article overview

Democracy and Informal Policy Making: Planning Appeals in Scotland


Kaminer, Tahl, The Town Planning Review


Policy making

Governmental policy making is expected to be a transparent, public endeavour led by local or central government (Dorey, 2005; Reed and Cropf, 2010).1 In contemporary democracies, processes of policy making include consultations with experts, with the public and with key stakeholders. The preparation of a key statuary document such as the local development plan (LDP, or local plan - LP) in British cities includes extensive consultations with professionals in the relevant fields, representative organisations and the public; in-depth scrutiny by elected local councillors; and other forms of oversight. Yet policy is also made through activities and processes that are not specifically designated to do so and are consequently less scrutinised and accountable (Brodkin, 1987-1988). Policy is also created via policy networks and communities, namely the negotiations and interactions with government by diverse stakeholders and interest groups, or shaped from the bottom up by 'street-level bureaucrats' in the actual implementation of policy (Dorey, 2005; Richardson andJordan, 1979). Some of these processes are relatively transparent while others are opaque; in some, non-political agents are central to steering, shaping or making policy. Within the planning system in Scotland, this paper will argue, an informal policy-making process exists in which singular, non-elected experts have the power to make policy in defiance of elected and accountable local government and with the tacit backing of central government. Informal, because of the manner in which policy is created inadvertently through a process designed for a completely different purpose - the formulation of quasi-judicial judgements based on policy interpretation.

Planning permissions in Scotland are handled by local authorities' planning departments and planning committees. The person or company seeking permission can appeal a rejection; third parties, such as local residents or competing interest groups, cannot. The appeal is handled either by a local review board (established 2009 for simple cases) or by the Planning and Environmental Appeals Division (DPEA) of the Scottish government, which, in effect, delegates the review of the appeal to a Reporter (sections 47-48 of the Town and Country Planning (Scotland) Act 1997).2 The Reporter's response to the appeal is usually the final verdict; Scottish government rarely recalls permissions after this point, and litigation through court is an expensive and lengthy process usually avoided. Local authorities' success rate in appeals demonstrates only the level of agreement or disagreement - it does not expose the degree to which local authorities adjust their decision-making processes in order to avoid rejection,3 i.e. the capacity of Reporters to shape policies and decision-making indirectly.

Discontent regarding the planning appeals process has been acknowledged in the media, in academic studies and in reports. 'The evidence shows that the planning system is not yet effective in engaging, let alone empowering, communities', a 2016 report stated (Beveridge et al., 2016, 36).4 While a lack of right of appeal for local residents benefits developers at the expense of locals, a third-party right of appeal would not only threaten and slow development, but allow competing interests (e.g. other developers) a say; it would further erode local authorities' control of the process as most contested decisions would be deferred to central planning.5 Nevertheless, a concern arises that the final verdict is currently handled by single, non-elected and only partially accountable Reporters.6 This paper studies two recent appeals regarding student housing in Edinburgh, in order to bring to light the process by which policy is created by Reporters, in effect, through the appeals process.

The aim of this paper is to demonstrate how the minuscule aspects of policies and processes determine and control urban development, and how democracy can be weakened by discreet power structures within state bureaucracy. …

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