UK: "Please Sir, I want some more" - Further Planning Changes

Last Updated: 23 April 2012
Article by Murray Shaw

The planning system in Scotland has seen significant changes over the last 5 to 6 years since the introduction of the new Planning Act in 2006. This has been slowly implemented with the most significant changes taking effect in August 2009. The changes which that Act introduced (all part of an agenda to modernise planning) started life under the Labour/Liberal Democrat coalition Government which was in power in Scotland before the SNP came to power in 2007.

The SNP Government were committed to seeing through the changes and have said on numerous occasions (and in a number of different ways) that they see planning as a significant tool in helping to achieve their prime objective of increasing sustainable economic growth.

The recently appointed Planning Minister announced in the Scottish Parliament towards the end of March how the Scottish Government intends to take forward the planning modernisation agenda, not just consolidating what has gone before but in some instances "intensifying" what has already happened. That statement to Parliament was followed up by a series of consultation documents which were summarised in "Planning Reform: Next Steps".

This document makes clear that it seeks to build upon the thinking set out in "Delivering Planning Reform" (2008) which emphasised a commitment to progressing modernisation through "culture change rather than legislation". While "Planning Reform: Next Steps" seeks to develop on that basis it equally identifies that in some areas there is a need for legislative change.

Planning Reform: Next Steps is accompanied by a range of specific consultation documents including:-

  1. Development Plan Examinations Consultation 2012;
  2. Consultation on Miscellaneous Amendments to the Planning System 2012;
  3. Consultation on the General Permitted Development Amendment Order 2012;
  4. Consultation on Fees for Planning Applications 2012;
  5. The Planning and Performance Framework.

All except the last of these set out issues upon which the Government is going to carry out a consultation process. The Planning Performance Framework however is different being a document produced by the Heads of Planning in Scotland after "an intense period of discussions and consultations" with the Scottish Government, RTPI, COSLA, Solace, the Improvement Service and key agencies. What it seeks to do is to set out a system by which the performance of planning authorities can be assessed on a balanced basis with a view to identifying successes and achievements (and presumably lack of success and lack of achievement).

As the document makes clear what it is seeking to do is give a means of balanced assessment which takes into account a range of factors. Interestingly the framework makes clear that the timescale for decisions while important in itself "only offers a very incomplete and narrow assessment of performance at any one time".

The new framework is based upon work that was done with 5 pilot authorities, Fife, East Lothian, Edinburgh, Aberdeen and Renfrewshire. Based upon that work a number of key issues were identified including:-

  1. Keeping the approach simple and clear;
  2. Ensuring that realistic and meaningful indicators and measures are used;
  3. Having a standardised approach;
  4. Utilising an approach which makes clear that planning performance must be seen in conjunction with other areas of relevant local authority activity.

The last part of the document sets out has the planning performance framework should be applied. The balanced scorecard looks at a range of measures including National Headline Indicators, measures in relation to a quality planning service, decision making timescales, the extent of the enforcement activity, the outcome of local reviews and appeals to the DPEA and in addition information considering both workforce and financial measures.

This is clearly a very new approach which has wide support. It will be interesting to see how the outcomes are interpreted and to what extent changes arise out of it.

Planning Reform: Next Steps

As noted above this document in effect summarises the various consultations being undertaken highlighting both the issues which planning authorities face but equally some of the areas in which there have been perceived failures. As with all the policies of the Scottish Government the underlying rationale is to support and secure sustainable economic growth. In particular the following paragraph appears:-

"The Scottish Government is determined to ensure that the planning system is not presented as an obstacle to sustainable economic growth. We wish to propose a problem solving approach to planning based on pace, pragmatism and proportionality. This applies equally to agencies and the development industry must also play its role. We must make partnership a reality across Scotland."

While the phrase "culture change" is not used in that paragraph (it is a phrase which many have criticised as not having a clear meaning), what this paragraph is driving at is a change or further change to the way in which the system operates as much as any change to processes and procedures.

Development Plan Examinations

The system of Development Plan examinations changed significantly with effect from August 2009 when significant parts of the Planning Etc (Scotland) Act 2006 become effective.

Now the examination process is intended to concentrate on the issues rather than each specific representation. The way in which the process is conducted (whether by way of a consideration of the representations and the Council's response, further written submissions, hearing or inquiry) is determined by the person carrying out the examination. Standard forms are used to speed up the process and to assist the Reporters in reaching and documenting their conclusions as expeditiously as possible.

The consultation document notes that previously Local Plan inquiries took an average of 70 weeks while some more recent ones have seen that figure reduced to 24 weeks. However it is equally clear that more complex plans (such as Aberdeenshire's Local Development Plan) have taken longer than that.

Issues have also arisen in relation to the binding nature of the recommendations made by Reporters. While there are grounds upon which planning authorities can "ignore" recommendations, these grounds are limited. A number of planning authorities feel that "ownership" of the Plan has been removed from them (possibly also a degree of responsibility). Particular issues have arisen where Reporters have come to the view that there was an insufficient allocation of housing land supply. Reporters have been left to identify new sites and go through processes and procedures in relation to these which the new legislation probably never contemplated should be undertaken by them with some serious difficulties as a result.

The consultation papers starts off by asking consultees whether they think the process is functioning and whether there should be any change at all. It then goes on to discuss the possible options for change which include:-

  1. Improving current practice;
  2. Greater discretion to depart from Reporters' recommendations;
  3. Further restricting the scope of the examination;
  4. Entirely removing the independent examination and leaving it to planning authorities to consider whether further changes are required in respect of representations made.

In relation to the current practice the document acknowledges the difficulties that have arisen in housing land supply in particular and suggests that one possibility would be for most of the Plan to be approved but with recommendations that local authorities should address specific issues (such as shortfall in land supply). The possibility that the examination process should be taken away altogether is likely to prove extremely controversial when we still have a "Plan led" system. The consultation document rightly acknowledges that such a step might reduce confidence in the Plan and increase the risk of a Plan being challenged. It is also likely to result in more planning by appeal.

Consultation on Miscellaneous Amendments to the Planning System

The bedding in of the new system has not been without difficulties some of which were unforeseen.

One particular area which has caused difficulty is the position in relation to Section 42 applications – applications to in effect allow a development to go ahead without complying with a particular condition (in reality a Section 42 application is often the means to vary a condition). Where the planning permission relates to a site which would otherwise be categorised as a "major site" (" Hierarchy of Development") any Section 42 application needs to go through all the processes relevant to an application for planning permission in respect of such as site including pre-application consultation. Everyone accepts that this is unnecessary and raises unrealistic expectations – quite often members of the public think that the principle of the planning permission may be up for review when it is not. The Scottish Government indicated previously that it intended to change the law and this consultation proceeds upon that basis albeit seeking views.

Other changes are more minor in scope relating to issues such as neighbour notification and advertising, specific consultation requirements and limits of delegation. So far as this last point is concerned many smaller applications are intended to be dealt with under a Scheme of Delegation which would allow planning officers to make the decision. One restriction relates to applications where a planning authority has an interest. This restriction catches many minor developments and the Scottish Government have raised the possibility therefore of amending the legislation so that such applications could still be dealt with in terms of the relevant Scheme of Delegation.

The consultation also looks at the local review process (where a decision is made by a Planning Officer under a Scheme of Delegation any "appeal" is to a Local Review Board – a Committee of the Council) (" Schemes of Delegation and Local Review Bodies"). There are provisions which allow an applicant for a review to "appeal" a failure by the Local Review Body to determine the review within the timescales permitted to the DPEA. There is no mechanism to extend the period for determination by agreement and the consultation paper suggests that this might be sensible where there is such an agreement. This seems to be a reasonably non-controversial matter.

The last issue of significance to be dealt with relates to approval of matters specified in conditions – the equivalent of reserved matters under the old system. The review suggests that there should be scope for some matters not to require formal application but to be dealt with by way of informal correspondence between the planning authority and the developer. Again this seems to be a sensible approach.

Consultation on the General Permitted Development Amendment Order 2012

The current Permitted Development Order dates from 1992 and has been revised on numerous occasions, most recently in respect of householder developments and micro generation.

The Scottish Government is proposing that there might be further changes made to a number of classes to simplify these including provisions for pavement cafes (a growing phenomenon in Scotland despite the weather!) and extended rights for the extension or alterations of buildings used as hospitals, universities, colleges, schools, nurseries and care homes.

There appears to be no suggestion that the time for a full scale review of the 1992 Order has come. The 1992 Order has been changed on numerous occasions and it is certainly not the easiest document to use nor is it particularly easy for a member of the public to find out what is the most up to date form of the document is. There are also inconsistencies and language (such as curtilage) which is somewhat outmoded.

The consultation paper also rejects any notion that there should be significant changes for airports or harbours. Historically facilities such as that were usually in public ownership. That position has changed significantly over the last 10 or 15 years yet the Government appears to be of the view that even though privately owned and run for commercial profit they should still be entitled to exemptions from the planning regime. That is a view that may be worthy of further debate.

The specific changes by and large seem to track the sort of arrangements that have applied previously and probably in themselves (ignoring any significant issue of principle) do not raise great difficulties.

Consultation on Fees for Planning Applications 2012

This is possibly the most controversial consultation paper.

The Scottish Government flagged up an intention last year to increase fees. Fees for planning applications in Scotland are significantly lower than in England. For example the maximum fee in England is £250,000 while in Scotland it is slightly in excess of £15,000.

The consultation paper proposes that the current structure and approach is largely maintained but the fees should more accurately the time and resources required to process an application.

The proposal therefore is that the maximum fee should be raised to £100,000 but there should be a link between fee and performance. It is also suggested there should be specific categories for retail, leisure and energy and regeneration projects.

The development industry has generally accepted that fees in Scotland are less than in other parts of the UK but have argued any increases must be related to performance. The real issue is probably not the principle of that but how that principle is applied in practice.

The consultation paper makes clear that the fee increases proposed are dependent upon sustained improvements in performance. However the real issue is how in a particular case that linkage can be made.

Again the Scottish Government highlight the importance of processing agreements (simply a process to manage a planning application from the perspective of the planning authority and the developer) though there is no suggestion these should be mandatory (at one stage prior to 2009 there was a suggestion they would be mandatory for major applications but that proposal was dropped). There was also a suggestion that fees might be spread across the whole life of a planning application presumably with a view to measuring whether there has been appropriate performance before the whole fee is paid.

The consultation paper does not make clear how in particular case the fee is to be linked to performance and raises that as a specific issue. That is likely to be quite a controversial issue and quite difficult to resolve in practice.

The Scottish Government are clearly consulting on a range of issues. While these may not appear to be as significant as the changes which were brought about under the 2006, nonetheless they are important and may have significant impacts and effects. The key issue remains however to ensure that there is a much better partnership approach between all those working in the planning industry – something that is not easily achieved as experience in the past 2 or 3 years tends to show.

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
Related Video
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.