Examination

Section 75 of the 2019 Act contains provisions in relation to examinations of WPL proposals, which applies when a local authority proposes to make, amend or revoke a WPL scheme.

Regulations 6 to 20 set out the procedures necessary for an examination to be conducted in a consistent manner.

What is an examination?

An examination allows one or more elements of a WPL proposal to be independently reviewed where either the Scottish Ministers or a local authority feel it would be appropriate.

In practice, it is anticipated that any examination would be initiated during the 8-week ‘standstill’ period referred to under the section “Consultation report and 8-week standstill period.” Following that 8-week period, local authorities will be free to proceed with making, amending, or revoking the scheme (as set out in their proposal). An examination can only be triggered on proposals, not schemes once they are made.

If an examination has been initiated, a local authority may not proceed with making, amending, or revoking the scheme until the examination has been completed.

Reasons why an examination may be initiated (either by the local authority or by Scottish Ministers) are not stated in the 2019 Act or the regulations and therefore either the local authority or Scottish Ministers may initiate an examination for any reason. Whilst not being an exhaustive list, the below examples may be considered potential reasons to initiate an examination:

Failure to comply with the requirements and provisions set out in the 2019 Act or in regulations – this could include lack of evidence on how the WPL proposal supports the objectives set out in the LTS
Failure to adequately consult on proposals
Lack of clarity on an element of the proposal

Scope of examinations

The scope of an examination should be established by the party who initiates the examination. This can be either the local authority or the Scottish Ministers. The scope of an examination should focus specifically on the elements which have been raised as areas of concern by the Scottish Ministers or a local authority making a WPL proposal.

The scope will include any issues raised by the initiating party in their initiating notice requesting the appointment of a reporter to examine the proposal, as well as any further issues agreed by the local authority and Scottish Ministers after notice has been sent but before the reporter has begun the examination. However, wherever possible, we would encourage the initiating party to agree the scope with the other party prior to sending the initiating notice. This approach will remove the need to make a further request for responses to the additional matters within scope (as set out below under ‘Establishing an Examination’).

If there were further issues that one party wishes to include in the scope (that are not set out in the initiating statement) and the two parties could not agree on whether to include them in the scope, those issues would not be included in the scope of the examination. For those issue(s) to be examined, another examination would need to be initiated and the issue(s) set out in the statement by the initiating party. In practice, we consider it likely that both parties will have an interest in a single examination and early discussion of the scope will help to avoid disagreement on the scope of the examination.

The reporter will only consider matters which are within the scope of the examination. Any matters raised which are considered outwith the scope will be disregarded.

Establishing an examination

Only Scottish Ministers or a local authority making the WPL scheme can initiate an examination (known as the ‘initiating party’).

The initiating party must give written notice of its intention to appoint a reporter to carry out an examination to the following parties Scottish Ministers, if the initiating party is the local authority proposing to make the scheme, or the local authority, (if the initiating party is the Scottish Ministers).

Notice must also be provided to any person who responded to the consultation carried out under section 73(1)(b) of the 2019 Act. If the initiating party is Scottish Ministers, then the local authority must send this notice as soon as reasonably practicable after a request to do so by Scottish Ministers. This provision is due to the local authority rather than Scottish Ministers holding the information on respondents to the consultation.

The notice of intention to appoint a reporter to carry out an examination must be accompanied by:

a) a statement setting out full details of the matters which the initiating party considers are required to be taken into account by the reporter in examining the proposal to make the scheme (i.e. what the initiating party considers the scope of the examination)

b) a statement on which procedure the initiating party considers is most appropriate in the circumstances, in tandem with a list of any persons (and their qualifications) whom the initiating party wishes to provide a written statement for the purposes of the hearing or a list of any witnesses (and their qualifications) whom the initiating party wishes to give evidence at an inquiry

c) all documents, materials and evidence upon which the initiating party intends to rely in the examination

d) copies of the following documents: the proposal, a statement about the objectives of the proposal, and an assessment of the impacts of the proposal (These three documents are required under Section 73(1)(a) of the 2019 Act and further discussed under ‘Developing the Proposal’), and the consultation report

The persons who have been given written notice of the intention to carry out an examination may respond in writing within the scope of the examination. Responses must include:

a) representations setting out full details of the matters which the respondent considers require to be taken into account by the reporter in examining the proposal

b) a statement as to which of the procedures the respondent considers is most appropriate for the examination in the circumstances. If the respondent indicates that a hearing is most appropriate, responses must include a list of any persons (and their qualifications) whom the initiating party wishes to provide a written statement for the purposes of the hearing; or if the respondent indicates an inquiry is appropriate, then a list of any witnesses (and their qualifications) whom the initiating party wishes to give evidence at an inquiry

c) copies of all documents, materials and evidence which the respondent intends to rely on in the examination, if they intend to provide additional documents to those provided with the notice of intent to initiate an examination

d) a list of the documentation which the respondent intends to rely on in the examination, if they only intend to rely on the documents provided with the notice of intent to initiate an examination

All matters which a respondent intends to raise in the examination must be set out in this response or in the documents which accompany the response.

Appointment of Reporter

A reporter is in charge of the examination process. Either the local authority making the WPL proposal, or the Scottish Ministers can appoint a reporter to carry out an examination of, and prepare a report on, the proposal or any aspect of it.

The reporter must be a member of the staff of the Scottish Ministers, or selected from a panel provided by the Scottish Ministers. In practice, we expect that a reporter would be sourced from the Scottish Government’s Planning and Environmental Appeals Division (DPEA), as their officials already undertake a range of casework around ‘inquiries’ for the Scottish Government and is consistent with arrangements for the examination of LEZ proposals.

DPEA will lead on the administration and delivery of a WPL examination in conjunction with support (as required) from Transport Scotland and local authorities, but acting as a credible and independent lead for a WPL examination. The reporter will manage the whole process and consider what action is needed to gather enough information to make a decision.

The reporter has the following powers:

To establish the procedure for the examination e.g. written representations only, by hearing, or by holding an inquiry.
To send out notice of the time and place of the hearing or inquiry to those entitled to appear at the hearing or inquiry.

When appointing the reporter, the initiating party must send to the reporter a copy of the notice of intention to initiate and examination (including all accompanying documentation) that was sent to either the Scottish Ministers or the local authority proposing the scheme.

The reporter will organise the administration (including booking the venue(s)) for all elements of the examination and will administer the engagement with stakeholders (e.g. providing contact details for written submissions to be received, setting up virtual meetings etc.)

Procedure and timetable for examinations

Once a reporter has been appointed, the reporter must, in writing, invite the local authority proposing to make the scheme, and the Scottish Ministers to agree and finalise the scope of the examination. The reporter must also include a deadline for which this is to be agreed and sent to the reporter.

The reporter is responsible for establishing the procedure and timetable for the examination. This will be based on the scope of the examination, and also any evidence which has been received from the parties which have responded to the notice of intention to appoint a reporter. Section 75(3) of the 2019 Act outlines the different procedures for conducting an examination:

Invite written representations only, where this approach is the quickest, simplest and normally cheapest method of deciding an examination
Hold a hearing(s) where a person who has made representations in respect of the proposal may be given an opportunity to appear and be heard in front of the reporter
Hold an inquiry, which is a more formal event, where witnesses give their evidence in front of the reporter and can be cross-examined by other parties (normally by their legal representatives)

The reporter must establish the procedure and timetable for the examination, and provide notice to Scottish Ministers, the local authority, and respondents to the consultation. The notice must include:

the scope of the examination
the fact that that responses to the notice must be within scope of the examination, and comply with the same requirements as responses to the examination being initiated as set out previously, and that responses must be sent to the reporter and all other persons
how responses may be sent
the fact that persons given notice under this paragraph may send comments on any matters raised in the responses to the reporter and to all other persons given notice under this paragraph, and
the period within which any such comments are to be sent

Opt-in procedure

In addition to the ability to set the procedure and timetable for examinations, and to invite responses, the reporter has a discretion to invite the persons to whom the notice of the scope, procedure and timetable of the examination has been sent to ‘opt-in’ to further participation in the examination. The reporter is to give at least 14 days for a reply to this opt-in invitation. If such persons wish to participate in any further procedure conducted in relation to the examination they must send a notice (‘an opt-in notice’) to the reporter, and if they do not do so, they lose the opportunity to participate in any further procedure.

Further submission and information

Before holding an examination, the reporter may wish to seek further written submissions within the scope of the examination. If so, they would need to give written notice to the parties via a ‘procedure notice’ outlining the matters on which additional representations or information is requested and by which date.

The party who receives a procedure notice must, by the date specified in that notice, provide the additional representations or information requested to the reporter and provide a copy of that response to the other involved parties. Within 14 days of receipt of copy of the response, parties may send comments in writing to the reporter in reply to that response and must, when doing so, send a copy of such comments to the other parties.

Pre-examination meetings

The reporter may hold a “pre-examination meeting” to consider the manner in which the examination is to be conducted with a view to ensuring that the examination is conducted expeditiously.

Determination without further procedure

If the reporter is content that they have the necessary information (and thus do not need to hold either a hearing or inquiry), they may carry out the examination and prepare a report on it without further procedure.

Conclusion on further procedure

Where the reporter determines that they require further information to undertake the examination, following any pre-examination meeting the reporter must determine whether to carry out the examination by either a hearing or inquiry, and then inform the parties in writing of that determination.

Hearings and inquiries procedure

Hearings

Schedule 2 of the regulations contain the procedure under which hearings will be held. Hearing sessions may be required where:

The reporter needs to enhance their understanding by asking questions, seeking explanations of evidence or opinions
There is some dispute but where cross examination of professional or other witnesses is not necessary
The evidence to be examined is largely a matter of opinion rather than settled fact, so the issue could benefit from being explored through discussion led by the reporter to enable the reporter to reach their own opinion

As a hearing would take the form of a discussion led by the reporter, cross examination will not be permitted (this would be more appropriate for an inquiry).

Where the reporter determines that a hearing is to be held, the reporter must give notice of the hearing to the parties and any other person from whom the reporter wishes to hear at the hearing.

Anyone who has received notice of the hearing and who intends to appear at a hearing must inform the reporter of that intention in writing within 14 days of the date of receiving a notice. If a person does not reply to the reporter, they will not be entitled to appear at the hearing.

The notice must also provide all parties with a website address where copies of everything submitted to the reporter can be inspected.

Only parties which have received a hearing notice, and have informed the reporter of their intention to appear at the hearing are entitled to appear at the hearing.

The reporter will set the date and time for holding the hearing, and the manner in which the hearing will be conducted including its location (if not being held virtually). The reporter must ensure that all those entitled to appear at the hearing are aware of these details by written notice.

The reporter may also request a written statement from the list of witnesses provided by the initiating party or any other relevant parties. A written statement must not be longer than 2000 words (unless prior agreement with the reporter has been reached).

The local authority proposing to make the scheme is to allow inspection, and allow copies to be taken of any documents relevant to the hearing.

The procedure at the hearing is determined by the reporter, which will be communicated at the start of the hearing.

Any person entitled to appear at the hearing may do so on their own behalf, or be represented by another person.

The reporter may from time to time adjourn the hearing. When this happens, the reporter must provide all parties entitled to appear at the hearing of the new time, date and location of the adjourned hearing. This can either be done at the hearing, or by written notice to all entitled parties.

Inquiries

Schedule 3 of the regulations contain the procedure under which inquiries will be held. An inquiry, or inquiry sessions may be appropriate where:

there is a dispute between the parties on complex or technical matters and the evidence needs to be thoroughly tested by cross-examination to enable the reporter to reach clear conclusions either on an important material consideration, or whether the proposal is in accord with a key provision of the development plan;
essential facts are in dispute and cross-examination is necessary to clarify matters;
there is a conflict of professional opinion or evidence and the reporter would find it helpful for that evidence to be tested by cross examination.

Where the reporter determines that an inquiry is to be held, the reporter must give notice of the inquiry to the parties and any other person from whom the reporter wishes to hear at the hearing.

Anyone who has received notice of the inquiry and who intends to appear at the inquiry must inform the reporter of that intention in writing within 14 days of the date of receiving a notice. If a person does not reply to the reporter, they will not be entitled to appear at the inquiry.

The notice must also provide all parties with a website address where copies of everything submitted to the reporter can be inspected.

Only parties which have received an inquiry notice, and have informed the reporter of their intention to appear at the inquiry are entitled to appear at the inquiry.

The reporter will set the date and time for holding the inquiry, and the manner in which the inquiry will be conducted including its location (if not being held virtually). The reporter must ensure that all those entitled to appear at the inquiry are aware of these details by written notice.

The reporter may require the initiating party or any other relevant party to send the reporter a ‘precognition’ in respect of any evidence to be given to the inquiry by a person included in the list of witnesses. Precognition is a written statement of the evidence proposed by a witness to be given to the inquiry. The precognition must not contain more than 2000 words, unless the reporter agrees otherwise.

The precognition must be made available to the initiating party and other such other persons entitled to appear at the hearing session.

A witness would be contacted and ‘called’ by the Reporter to provide evidence in whatever form the Reporter considered most appropriate (writing, informal hearing or inquiry)

The local authority proposing to make the scheme is to allow inspection, and allow copies to be taken of any documents relevant to the inquiry.

The procedure at the inquiry is determined by the reporter, which will be communicated at the start of the inquiry.

Any party entitled to appear at the inquiry is entitled to call evidence and to cross‑examine persons giving evidence and to make closing statements (this is a significant difference to the procedures for a hearing). However, the reporter can refuse to permit the giving of evidence or cross examination of persons giving evidence if they consider this approach to be irrelevant or repetitious.

The reporter may proceed with an inquiry session in the absence of any party entitled to appear at the inquiry.

Inspections

The reporter may make an unaccompanied inspection of the proposed WPL scheme area, and must inform parties of such an intention. The reporter may make an inspection of the area accompanied by a party to the examination, and they should inform the notified parties of the date and time that they intend to undertake an inspection. The reporter is not required to delay an inspection if the party intended to accompany them is not present at the time of the inspection.

Expenses

The reporter may make orders as to the expenses incurred by the parties contributing into the examination. Orders in favour of the Scottish Ministers may include expenses in relation to the examination’s administration costs.

Report

Once the reporter is content that they have the necessary information, the reporter will prepare a report with the outcome of the examination. The purpose of this report will be to provide recommendations for consideration, and to inform decision making with regards to a WPL scheme proposal.

It is important to note that the recommendations in the report are not binding on the local authority as it considers whether to proceed with making, amending, or revoking the scheme, and there is no role for Ministers to intervene beyond initiating the examination.

The reporter must provide all relevant parties (Scottish Ministers, the local authority, and any parties who have ‘opted in’ to the examination) with a copy of the report, and arrange for publication of the report on the Scottish Ministers’ website.

The report should summarise the method of the examination, the evidence and representations considered, and the outcomes of the examination.

Once the report is issued, the local authority may consider its findings and whether it is appropriate to proceed with the scheme as proposed. Post-examination, a local authority may proceed with their proposal to make, amend or revoke a WPL scheme.
[1] These three documents are required under Section 73(1)(a) of the 2019 Act and further discussed under ‘Developing the Proposal’

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