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.

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