UK: Planning - Nine Months In

Last Updated: 7 June 2010
Article by Murray Shaw

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.