The majority of the substantial changes made by the 2006 Planning Act in Scotland became fully effective on 3 August last year. There are a limited number of provisions in the legislation still to be brought into force including the changes in relation to Section 75 Agreements (planning agreements as they are to be renamed) and also the introduction of Good Neighbour Agreements. Recently the Scottish Government has published a consultation paper in relation to these. Some nine months later it is probably a good time to have a look and see to what extent we can see the effect of the changes in the system.
Local Plans
A number of new Local Plans or amendments to existing Plans had been significantly advanced before 3 August last year. In effect the changes in the legislation mean that these new plans and alterations fall to be dealt with under the new system. As yet no significant hearings have taken place in relation to a new style Local Development Plan though many authorities are well on in their preparation of such documents.
East Ayrshire Council decided to proceed with an alternation to their Local Plan and the processes in relation to that fell to be dealt with under the new system. This gives us some insight therefore as to how the new system might be applied to new style Local Development Plans as they come forward.
In relation to the alteration to the East Ayrshire Local Plan (which is a substantial alteration re-writing significant elements of the Plan), four Reporters have been appointed by the Scottish Government to consider objections. Consistent with the new system objections are being looked at on a "topic" basis rather than each individual objection being looked at in isolation. The whole thrust of the new system is to encourage Reporters to consider objections made on the basis of the written submissions lodged by the objectors together with supporting documents and the Council's response to that. This process has largely been followed through in relation to the alteration to the East Ayrshire Local Plan despite the fact that the objections lodged to the alteration were lodged some time before the changes to the system became fully effective last August. As a consequence of this it appears likely that there will only be two public sessions in total in relation to objections to the alteration instead of ten or more days of hearings. These took place in April. One session related to developer contributions and the other related to affordable housing. Each session took the form of a hearing lasting no more than half a day.
Until such time as the Reporters' findings are made available it is difficult to comment in detail about how the new system will operate. In relation to affordable housing however there were major differences of opinion between the Council and objectors in relation to a number of issues including whether or not the Council's policy was based on a "robust" assessment of the position. Similar issues arose in relation to the affordable housing policy in South Ayrshire back in 2005 and 2006 and there was a formal inquiry which lasted four or five days on that topic alone with the Reporters making very significant criticisms of the approach of the Council. While the Reporters in relation to the East Ayrshire alteration are very experienced, the very nature of the hearing process meant that there could not be as much scrutiny or detailed scrutiny. It will be interesting therefore to see how the Reporters deal with the objections made.
The guidance in relation to Development Planning (see Planning Circular 1/09 ) deals in some detail with what the "review process" in relation to a Local Plan is to deal with. In particular in paragraph 78 it makes clear that Reporters are to consider the "appropriateness and sufficiency of the content of the proposed Plan". The Reporters applied this approach in relation to the alteration to the East Ayrshire Local Plan. This guidance seems to suggest that the review of an alteration to a Local Plan or Local Development Plan may not be as thorough in the future as it had been in the past and that certainly seemed to be the way that Reporters at the East Ayrshire Local Plan seemed to see their role. Again a final judgement needs to await their findings.
One significant change to the system is that recommendations from the Reporters will, except for certain exceptions (intended to be limited), be binding on the local authority. Comments made by the Reporters at the East Ayrshire hearing suggest that this may in fact limit the ability of the Reporters to amend the Plan. The Reporters seemed to be of the view that any changes they came up with would have to be precise and be capable of being incorporated into the Plan as opposed to the sort of recommendations that may have been made in the past such as that local authorities should review (as in South Ayrshire) their local housing policy. In effect therefore this change rather than being to the benefit of objectors may well work to their detriment.
Detailed comment however will again need to await the Reporters' findings.
Appeal System
Significant changes were also made to the appeal system in respect of specific applications. In particular "appeals" about smaller applications (those defined as "local" in the development hierarchy) now go to a local review body made up of Councillors if the decision has been made by a planning officer using delegated powers. This has been one of the most controversial changes in the planning system in Scotland, not least because a similar approach in England was rejected. Many were very sceptical as to how effective the local review body process would be, though guidance from the Scottish Government emphasised the need for the system to operate efficiently and for members of the public and developers to have confidence in the system.
Some early information has come out from the Scottish Government regarding the operation of the local review body system. There is no statutory period within which a local review needs to be concluded unless the local review results in a failure of the planning officer to make a decision in which case the local review needs to be completed within two months. The information from the Scottish Government however suggests that a majority of all local reviews are carried out within a two month period, though the information does not break down the cases as between those which have to be dealt with within that period and other cases. A local review body has a wide discretion about how to conduct its consideration of the "appeal". Again the information from the Scottish Executive suggests there have been few hearings with the majority of cases being dealt with on the basis of the original submissions. Where other procedures are used these appear to mainly involve a site visit, in a limited number of cases combined with other procedures.
While it is early days the majority of cases have resulted in the decision of the planning officer being upheld. However in a significant minority of cases (about 30% it would appear) the appeal has been allowed. Some sceptics thought that virtually no appeals would be allowed so this early information which suggests that is not in fact the position may well be welcome news to many and in fact give the system a greater degree of credibility.
Evidence of "Culture Change"
Another significant area which the Scottish Government highlighted as requiring change was the way in which the planning system operated. Reference was made by various Ministers to "culture change" without ever clearly defining what was meant by that. Anecdotal evidence to date would suggest there has been limited "culture change" on the part of local authorities or indeed developers.
A significant step has however been taken by Edinburgh Council acting in concert with the Chamber of Commerce. The Council and the Chamber have produced a joint document (a concordat ) stressing the importance of planning to the City identifying three key areas for action and setting out in an annex the respective responsibilities of the parties.
The three key areas for action involve resourcing, skills and processes. In relation to resources the document acknowledges on the part of the Council the importance of providing early advice and guidance, while the development industry undertakes to keep the Council and other stakeholders informed about changing market conditions and factors likely to affect the implementation of planning policies. In relation to skills the Council acknowledges that the planning requires co-ordination while the development industry undertakes to provide technical supporting information at the pre-application stage. In relation to process the Council undertakes to ensure that applicants for major applications have a full understanding of the process, the key points of conflict and the timescales for making decisions while the Chamber of Commerce on behalf of the development industry accepts that they need to be able to explain objectives and give early notice of proposals to allow engagement to take place as soon as possible.
The annex to the document sets out the steps to be taken by both parties – in some ways it is akin to a processing agreement.
This document is welcome though no doubt it will need to be refined in light of practice and experience. One difficulty for both the developer and the Council is of course that many other parties need to be involved in the planning process particularly in respect of major decisions and neither the development industry nor the Council has control over them (such as Scottish Water, SEPA and SNH).
Summary
It is probably too early to make any definite conclusions as to how the new system is operating and whether it will achieve the aims and objectives identified by the Scottish Government in the long "gestation period" of the legislation. There are certainly some signs that progress has been made and equally that some of the concerns expressed before the legislation came into effect may not be as well founded as seemed to be the position.
Possibly of most concern is the process in relation to Development Plans. It remains the position that in order to secure planning permission an application requires to accord with the Development Plan unless it is to be justified by other material considerations. It remains to be seen whether the limited processes for review will in fact result in the quality plans which the Scottish Government aspires to in a format acceptable in the main to the development industry. If not there remains a risk of "planning by appeal".
Once the Reporters' findings are made available in relation to the East Ayrshire Local Plan I will provide a further update about how the new system is operating.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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