Planning (Scotland) Bill (3) – Development Management

This update on the Planning (Scotland) Bill considers changes to development management, the process of determining individual planning applications. Of course the proposals are subject to amendment as the Bill passes through the Scottish Parliament.

The Bill proposes a number of changes:

1) Pre-application consultation (PAC)

PAC with local communities is required in respect of applications for major or national developments. Various amendments are proposed:

  • That the planning application must be submitted within 18 months of the date of the proposal of application notice to which it relates. At present there is no time limit.
  • Power to make Regulations to specify the content of PAC reports. This reflects concern over the variable quality of such reports.
  • Power to make Regulations specifying the circumstances in which PAC is not required. The Policy Memorandum cites a minor but material change to a proposed development requiring a new application and currently triggering a further round of PAC.
2) Expanded schemes of delegation / local reviews

The 2006 Planning Act introduced new section 43A schemes of delegation and local review bodies (a committee of local councillors) (LRB). The right of review by a LRB replaced the right of appeal to the Scottish Ministers (usually acting through a Reporter) in respect of applications for planning permission for a local development where the decision is taken by a planning officer under a section 43A scheme. The Bill proposes:

  • Expanding the range of decisions subject to a section 43A scheme to include applications for (i) certificates of lawful existing or proposed use or development (ii) display of advertisements and (iii) prior approvals under a development order (permitted development rights). This would means that such decisions would now be reviewed by a LRB and lose the current right of appeal to the Scottish Ministers.
  • Introducing the ability to extend the period for issue of a decision by a LRB by agreement between the applicant and the planning authority.
  • Power to make Regulations as to the form and content of a section 43A scheme and the procedures for adopting and amending a scheme. This will include the power to require a planning authority to modify its S43A scheme before adoption.
3) Duration of planning permission

The Bill will amend the statutory provisions on the duration of planning permissions by:

  • Requiring a duration condition to be attached to planning permissions and planning permissions in principle (PPP) (the period in which the development must be commenced otherwise the permission expires).
  • The default period will be 3 years for a detailed permission and 5 years for a PPP but longer or shorter period may be imposed by the planning authority. If a condition is not imposed it will be deemed that a condition imposing the default period has been imposed.
  • The current framework of time limits for applications for approvals of matters specified in conditions to a PPP will be removed. However, the Bill provides that conditions can still be used to prescribe periods within which a required application for a consent, agreement or approval is required.
  • Requiring that the duration is set by condition rather than, as currently, by direction. This will permit applications to extend the duration of a permission though a section 42 application to vary the specific duration condition (not possible when the duration is set by a direction). The Policy Memorandum notes that currently applicants may have to apply to vary some other condition simply to obtain a new permission with a later expiry date.
4) Modification and discharge of Planning Obligations

At present a planning authority may only grant or refuse the content of an application to modify or discharge a planning obligations (usually a section 75 agreement). This strict yes/no requirement can lead to a refusal or re-submission of the application when some amended modification would have been acceptable to both parties. The Bill will introduce flexibility into the planning authority’s determination. It will be possible to grant an application in part or grant a modification other than that requested in the application. A proposed alternative modification must be agreed by the applicant.

5) Enforcement

The Bill amends existing enforcement provisions by:

  • Significantly increasing the potential maximum fines available in the case of summary conviction for non-compliance with various enforcement notices and providing that in setting the amount of a fine regard is to be had to any financial benefit accrued from the planning breach.
  • Planning authorities can be reluctant to use existing powers to enter land and take direct action to remedy a planning breach for fear of being unable to recover their upfront costs from the owner or lessee. The Bill will introduce a power enabling planning authorities to register a charging order in the Land Register or Register of Sasines. Payment of the costs would be required before the order would be lifted from the relevant property.
6) Performance

The Bill includes various provisions to encourage improvement in planning performance:

  • Power to make Regulations to set out mandatory training requirements and/or completion of an examination by councillors before they can be involved in the making of planning decisions by their authority.
  • Statutory requirement on planning authorities to produce annual planning performance reports.
  • Appointment of a national planning performance co-ordinator.
  • Powers to conduct assessment of a planning authority’s performance and to pursue improvements.
Comment

This is a disparate group of targeted improvements to legislation or procedure, or enabling powers to do so. Many of the proposed changes are to be welcomed, although they do not amount to a significant reform to the overall development management system. The potential for certificate of lawfulness applications to be subject to LRB review rather than appeal is may not be welcomed by all. The accompanying Policy Memorandum describes a further delegation of applications of a minor or localised impact. However certificates of lawfulness can relate to substantial commercial interests and be subject to detailed legal arguments. One may question whether a LRB will be best able to deal with, for example, conflicting counsel’s opinions regarding the proper interpretation of a planning condition drafted by a Council planner and restricting (or not) the range of goods that may be sold from a retail park.

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