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MacRoberts Planning e-update 02/03/07

PLANNING ETC (SCOTLAND) ACT

The new Planning Act received Royal Assent on 20 December 2006. All the main elements of the Bill which was introduced in December 2005 have survived Parliamentary scrutiny and there has been comparatively little by way of amendment. Proposed amendments to introduce a third party right of appeal were rejected. The Scottish Parliament is to have a longer period of time in which to scrutinise the National Planning Framework but there will not be an examination in public of it.

There have also been some significant additions to the legislation. In the realm of enforcement, the potential for fixed penalty notices has been introduced. A power has also been introduced for Scottish Ministers to designate National Scenic Areas and a duty imposed on planning authorities to pay special regard to the character of these areas when considering development proposals within them.
An important point to bear in mind is that the new Planning Act sets out the framework for a new planning regime. However, much of the detail of the system still fails to be set out in regulations.

The main provisions of the Act are as follows:

National Planning Framework

  • Scottish Ministers will be under a duty to prepare a National Planning Framework and keep it under review. Amendments were introduced to prescribe a timescale for review of the NPF. Although the explanatory notes for the Act say that there is an obligation to review the NPF every 5 years, the wording of the Act would only seem to require such a review wiithin 5 years of the publication of the first NPF, and again 5 years later. The 5 year review obligation does not continue beyond these initial 2 reviews.
  • The Scottish Parliament will be consulted on the draft NPF. The consultation period has been increased from 40 days to 60 days. However, calls for there to be an inquiry into objections to the NPF have been rejected.
  • An amendment was made to the Bill so that Scottish ministers are under an obligation to exercise their duties in respect of the NPF with the objective of contributing to sustainable development.
  • The NPF may designate developments as national development.
  • If the NPF designates a development as national development and says that it should occur then planning applications require to be determined in accordance with that aspect of the NPF unless material considerations indicate otherwise. This provision would therefore give the NPF the enhanced status that is currently only
    given to the development plan. Given the lack of an inquiry into the contents of the NPF this may well be a cause of concern.

Development Plan Procedures

  • The Act replaces the current system of structure and local plans with a single tier local development plan except in the largest city areas.
  • Key agencies such as Scottish Water will be under a duty to cooperate in the production of the development plan but it is still unclear whether any sanctions will apply in the event that they do not do so.
  • There will be mandatory public examination of objections to local development plans and strategic development plans.
  • Reporters appointed to hear objections will be appointed by Scottish Ministers as opposed to planning authorities and will have full discretion to decide how the public examination of objections will be heard. Objectors will therefore no longer have a right to insist on a public inquiry.
  • The discretion of planning authorities to depart from the recommendations of reporters will be limited but the limits to this discretion are to be set out in regulations. Suggestions that the grounds for departing from the recommendations of Reporters should be set out in the Act were rejected.
  • The Act adds additional required objection periods for local development plans. Following the initial objection period on a proposed plan, if the planning authority propose to make modifications to the plan of a kind prescribed in regulations then a further period of consultation is required. This exercise will require to be repeated in the event that prescribed modifications are again proposed. The extent to which this will be an issue will not be clear until the regulations are produced. However, the Explanatory Notes suggests an example may be where, in response to objections, one site proposed for development is dropped and another allocated in its place.

Supplementary Guidance

  • A statutory basis is introduced for the production of supplementary planning guidance. There are to be requirements for consulting on supplementary guidance. The guidance would also require to be submitted to Scottish Ministers before approval, who would have power to require the guidance to be modified.
  • Such supplementary guidance will form part of the development plan.
  • An amendment was made to the Bill to clarify that planning authorities may adopt guidance without following the consultation and approval process in respect of matters which are not prescribed by Scottish Ministers as being for supplementary guidance. This type of guidance would not form part of the development plan.

New Hierarchy of Development

  • The Act introduces a hierarchy of national developments, major developments and local developments.
  • Regulations will prescribe different procedures for each class of development including pre-determination hearings and pre-application consultation for more controversial developments.
  • The original Bill gave Scottish Ministers power to direct that a development which fell in one part of the hierarchy would instead be treated as following under another part of the hierarchy. This would have allowed Scottish Ministers, for example, to direct that a major development be treated as a local development. These powers have been watered down so that the Scottish Ministers now only have power to direct that a local development be treated as a major development.
  • Planning authorities are to prepare schemes of delegation for local developments under which applications would be delegated to officers to determine.

New Development Control Procedures

  • The Act will introduce a duty on developers to notify planning authorities when they commence and complete development. At the discretion of the planning authority this duty could be expanded to require notification of the commencement of phases of development.
  • Regulations will transfer responsibility for neighbour notification on to planning authorities.
  • Scottish Ministers are given power to prescribe standard application forms so that there is consistency across Scotland.
  • Variations to planning applications are to be put on a statutory footing, including a requirement for neighbour notification.
  • Decision notices will require to give the reasons for the decision in addition to the reasons for conditions.
  • Outline planning permission is to be replaced by “planning permission in principle”. Scottish Ministers intend that regulations will prescribe that full neighbour notification and consultation requirements will apply to applications for approval of reserved matters.
  • The Act amends the powers of Scottish Ministers by giving them more discretion to make regulations for the charging of fees by planning authorities. It is understood that the level of fee will be linked to where a proposed development lies within the new hierarchy of development. An amendment was made to the Act so that Scottish Ministers may require the repayment of fees by a planning authority in the event that the planning authority has behaved unreasonably or there has been unreasonable delay.

Reductions in Time Limits

  • The time limit by which planning permission or listed building consent must begin to be implemented is to be reduced from 5 years from the grant of permission to 3 years from the grant of the permission, unless the planning authority specify otherwise. This will apply to permissions dated later than the coming into force of section 20 of the Act. The commencement date for section 20 is not yet known. Developers should therefore ensure that they keep up to date with the implementation dates for the Act.

Planning Obligations

  • Developers will be able to make unilateral undertakings as well as agreements with planning authorities. Provided the owner of the land is a party such an undertaking will be enforceable against successors in title.
  • The Act attempts to simplify the range of persons interested in land who require to be a party to a agreements by limiting such persons to owners and heritable creditors.
  • The Act includes a provision whereby a party subject to a section 75 agreement can apply to the planning authority to have a planning obligation varied or discharged. There would be an appeal to Scottish Ministers against a refusal or deemed refusal of the application.
  • Details of planning obligations entered into in terms of section 75 will need to be included in the planning register.
  • Scottish Ministers have rejected the English approach in the Planning and Compulsory Purchase Act 2004 of prescribing tariffs for planning gain on the basis that this is insufficiently flexible. There is the potential for conflict between the Scottish Ministers and the Westminster government in this regard. The Chancellor of the Exchequer has announced an intention to introduce a Planning Gain Supplement across the UK in 2008. To avoid the prospect of double-taxation, the introduction of this new tax would require an adjustment to how planning obligations are collected through the planning system. However, as planning is a devolved matter and Scottish Ministers are apparently against centrally imposed planning gain tariffs, it is unclear how this issue will be resolved.

Appeals

  • The Scottish Ministers intend that regulations will ensure that there is no scope to vary an application, as considered by the planning authority, after an appeal has been lodged. If discussions suggest that it is appropriate to vary an application then it will be necessary to do so before the application is determined.
  • Appeals are to be limited to considering only matters which were before the planning authority at the time the application was determined unless it can be shown that the matter could not have been raised at the time or there are exceptional circumstances. This provision will address a concern that substantial supporting material is sometimes produced for an appeal which was not available to the planning authority when it considered the application.
  • Scottish Ministers will be able to determine the most suitable means for determining appeals by means of written submissions, hearing or inquiry. The appellant and planning authority would lose their right to insist on a public inquiry.
  • It is still intended that regulations will when such regulations are made reduce the time period for lodging appeals from 6 months to 3 months
  • Scottish Ministers intend to introduce a process for early determination of appeals which clearly do not merit more extensive examination. It is not clear how such a process would operate.
  • Where a local development is delegated to officers then the applicant would have a right of appeal to the planning authority and not to Scottish Ministers as at present. The only further right of appeal would be to the Court of Session on a point of law.

Enforcement

  • The Act gives planning authorities power to serve a notice requiring the submission of a planning application for development already carried out. No sanction is provided for failure to comply with the notice although the White Paper had envisaged that failure to comply would be an offence. However, as this notice is to be classed as taking enforcement action, it has the effect of giving the planning authority a further 4 years from the issue of the notice in which further enforcement action could be taken.
  • A significant reform is that an appeal could no longer be lodged against an enforcement notice on the basis that planning permission ought to be granted for an unauthorised development. The other existing grounds of appeal would, however, remain.
  • The Act contains an additional new provision which would allow planning authorities to offer fixed penalty notices for contravening enforcement notices or breach of condition notices in lieu of prosecution.

National Scenic Areas

  • Although not included in the White Paper or draft Bill, the opportunity has been taken to include a statutory basis for National Scenic Areas which may be designated by Scottish Ministers. Planning authorities are required to pay special attention to the desirability of safeguarding or enhancing the character or appearance of such areas in exercising their planning powers.

Conclusion
Other than new provisions on fixed penalty notices and national scenic areas, there is little difference between the provisions of the Planning Act and the proposals which were set out in the White Paper in 2005. Much of the detail of the new planning system such as how the revised development control and appeal systems will operate remains to be prescribed in regulations. It will therefore be important for developers and their advisers to look at the draft regulations when they appear and consider whether to make representations on them. Further updates on this matter will follow in due course.

For further information please contact Jamie Grant on 0141 332 9988

© MacRoberts 2006