UK: The Operation of the Planning System in Practice

Last Updated: 28 January 2011
Article by Murray Shaw

Introduction

The new planning system has been in operation in Scotland since August 2009. Many involved in the new system do not think it is has yet been fully tested given the relatively low number of significant applications which have been made, largely as a consequence of the current economic climate. Notwithstanding this the Scottish Government is already reviewing some aspects of the new system which it knows are not operating satisfactorily [Click here to view - The New Planning Regime - First Changes article].

Apart from the legislative changes brought about by the 2006 Act the Scottish Government made very clear that it was important for local authorities (acting as planning authorities) to engage meaningfully with the new system as part of the "culture change" which the Scottish Government saw as essential to make the new system operate more efficiently. Quite what "culture change" means in reality is difficult to define.

Edinburgh City Council Review

Be that as it may Edinburgh Council has started a process of reviewing aspects of their processes in light of their experience of applying the new Act for just over a year and potential changes were considered by the Planning Committee at the end of 2010. Before making a decision about implementing these changes it has been decided to consult with key stakeholders about the changes proposed, a process which is currently ongoing. Even if these changes are brought into effect however it appears to be intended that there should be ongoing review of how the proposed changes operate with a further report being submitted back to the Planning Committee approximately twelve months after the date the proposed changes come into effect (assuming they do). This commitment to ongoing review is welcome.

The report appears to have resulted from consideration by the Council of how the new system operates in relation to three specific criteria namely the principles for a fair hearing (where a hearing is appropriate), transparency of the decision making for all involved and efficiency in the decision making process. In regard to that last point the report notes good practice suggests that planning authorities ought to be able to delegate more than 90% of planning decisions. In fact the figure in Edinburgh appears to be 95%. Those which are not delegated are likely to be the more significant applications and those in relation to which there is most public interest.

The report from the Council identifies a number of areas where change is potentially necessary, some of these changes being "structural" and others being more substantive.

The first area dealt with is in effect structural and relates to the agenda for the Development Management Sub-Committee (in effect the Committee that deals with decisions on behalf of the Council). The changes proposed are intended to standardise how the agenda should appear but equally to ensure that as part of the meeting process the order of business is made clear and information is given to those who are present to understand what the meeting is dealing with and why. It is proposed that business should be conducted in the following order:-

  1. any cases where a hearing is to be dealt with (having regard to the number of people likely to be involved) – see below.
  2. pre-application reports – these are reports dealing with discussions which are taking place in respect of applications yet to be made. The purpose of these pre-application discussions is to try and identify significant issues to be addressed including those which will be the determining issues. In effect the intention is to "front load" the planning application process as a result of such discussions.
  3. returning applications – these are applications which had been considered previously but have been brought back because further information or clarification was necessary. The paper which was considered by the Planning Committee makes clear that the only discussion in relation to these cases should be in respect of the issues which required them to be brought back before the Development Management Sub-Committee.
  4. applications for discussion involving a formal presentation – It is proposed to revise the criteria which will result in applications being brought forward for presentation so that going forward (apart from cases where there is a statutory requirement for such a hearing) these are likely to involve cases which raise important land use, conservation design or amenity issues, where there is a degree of substantial public interest (this to be determined by the range and substance of the representations made not simply the volume) and cases involving development by the Council or where the Council has a significant financial or land ownership interest and either of the criteria referred to before are relevant.
  5. applications not for discussion – these are cases which cannot be dealt with under the Scheme of Delegation but in respect of which no formal presentation is required.

While it is understandable that the Council needs to deal with cases in different ways, it is perhaps not surprising that members of the public become confused about what the different means of presentation before the Committee mean and to what extent they are therefore entitled to be involved. The clarification in the report is therefore welcome particularly if it is backed up by additional information being made available to members of the public to assist them to understand the process. Even for those regularly involved in the planning system it is not always easy to understand nor follow!

As will be seen above some applications will formally be brought forward for discussion and the Committee report sets out the process which is to be applied in relation to these or indeed cases where there is mandatory requirement for a pre-determination hearing having regard to the changes brought about by the 2006 legislation. The Committee report specifically sets out an anticipated format for the presentations including who is to be entitled to speak and for how long. Clearly the intention is to ensure that there is fairness across all of those who wish to be involved. Specifically there is provision for Ward Councillors to attend and speak albeit for a limited period of time. Applicants are likely to welcome this process as they are given a specific right to present if the relevant criteria are met, a right that may not exist presently.

The Committee report also suggests changes to how planning officers' reports should be structured albeit these are fairly modest.

Finally the Committee report deals with site visits and how these should be arranged and the purposes of site visits. Specifically it makes the point that Councillors should take care if on a site visit not to engage in any discussion with any party other than seeking factual clarification of issues which ideally should be done through the planning officer in attendance. The report highlights that there may be concerns about the consequences of any debate taking place and at least a perception that this may result in unfairness or a lack of impartiality.

While the concerns are understood the ability in practice to draw any necessary distinction may be difficult. Members of the public and developers often struggle with the inability/prohibition on Councillors being actively involved in discussion with them during the application process. This is an issue which is dealt with in the Councillors' Code of Conduct. While the possible issues which may arise as a result of Councillors being involved in discussion are readily apparent, there is probably a frustration on the part of many about an inability to have a meaningful discussion with the a Councillor regarding a planning application if that Councillor is involved in the decision making process.

Summary

Edinburgh Council has actively engaged with the development industry entering into a concordat to provide mutual assistance [Click here to view - Planning 9 Months In article]. . This further refinement by the Council of its procedures is likely to be welcome by all including the development industry as will be the ongoing commitment to keeping their processes under review.

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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