UK: The Operation of the Planning System in Practice

Last Updated: 28 January 2011
Article by Murray Shaw


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.


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.

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

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

In association with
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (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

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’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.


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.


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 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.


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.


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.


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.


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

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

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

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