UK: Local Authority Development And Notification Of Planning Applications

Last Updated: 29 November 2007
Article by Murray Shaw

The Scottish Executive is pressing firmly ahead with the implementation of the new planning legislation. It is unlikely that the change of political control following upon the election will change this – though the SNP have suggested an early review of the legislation may be appropriate.

As has been highlighted elsewhere some of the changes are substantial. Underlying the legislative change however is the desire to change culture and increase confidence in the system. Some of the changes intended to tackle these issues are far more subtle.

An area that has caused concern in the past are developments in which the local authority has an interest either because they are promoting the development, because they own the land or because there will be a significant financial benefit to them. While this has always been an area of concern, these concerns have been increased as a result of PFI/PPP Schemes particularly in the education sector. These schemes often result in schools being developed in areas where other development would not have been permitted or consented with the "redundant" site being released for housing development by the PFI company or the Council. Questions are often raised about the "transparency" of the decisions in relation to the planning consent.

Until recently local authority developments went through a separate process or procedure (the Notice of Intention to Develop procedure). That was discontinued with effect from 1 April 2007.

The Scottish Executive have now published specific guidance in PAN82 on developments in which the local authority have an interest. This is a welcome step.

The PAN identifies that local authorities have different roles and duties and that there will be conflicts of interest or perception of conflicts of interest. Against that background the Executive make clear that while it is not unreasonable that land owned by the local authority may be proposed for development "it is essential that any choices they (the local authority) make in selecting sites for future development through the Development Plan process must be based on the best interests of the planning of the area". The PAN advises on the need for effective consultation and more particularly for ensuring that the planning consideration of any local authority development is distanced from the "corporate view". This is welcome advice.

At the same time as the PAN a new Circular has been produced detailing when applications will have to be notified to Scottish Ministers. While this deals with a range of situations (not just developments where a local authority has an interest) the Circular makes clear that Scottish Ministers must be notified if the proposed development in which the local authority has an interest would be contrary to the Development Plan or there has been a substantial number of objections to it. It should be noted that unlike the previous situation the reference to Development Plans means that notification may be necessary if the development is contrary to the Local Plan not just the Structure Plan.

The PAN amplifies the interpretation of the Circular though does make clear at the end of the day the decision whether or not to notify is to a degree subjective. It also makes clear that so far as public objections are concerned it is not the number in isolation which matters but the number of the representations made in the context of the proposal and the locality, the extent to which they come from organisations that represent the community and the relevance of these in planning terms.

The Circular itself sets out the information which must be provided by local authorities when they notify a development in which they have an interest to the Executive. The Circular helpfully introduces two new requirements. In the event the development is not provided for in the Development Plan the local authority must provide a statement explaining why that is the position. Secondly the local authority has to provide a statement identifying any alternatives which have been considered and presumably an explanation of why these have not been pursued.

As noted above the Circular makes various changes to what applications have to be notified to the Executive. In particular it should be noted that any development involving an EIA must be notified to them before a decision is made as must developments which are contrary to the Development Plan (i.e. the Local Plan as well as the Structure Plan).

In terms of the changes enacted to the planning regime but yet to be made effective it will be necessary in the future for Local Plans to include a Schedule of Land Ownership thereby allowing interested parties to identify which sites are owned by local authorities. That change taken with the terms of the Circular and the PAN should certainly make the planning position in relation to sites in which local authorities have an interest more transparent and that should only help increase confidence in the system. The terms of the PAN and the Circular are evidence of both the commitment and the thorough approach of the Executive to carrying through the changes which have been identified.

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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