UK: Development Plans - A New Era

Introduction

The Development Plan has always been a critical part of the planning system. That importance however was enhanced when provisions, which are now found in Section 25 of the Town and Country Planning (Scotland) Act 1997, were enacted back in 1991.

The importance of the Development Plan (now to comprise the Local Development Plan (previously the Local Plan)) and, where appropriate, Strategic Development Plan (previously the Structure Plan) was reiterated (in policy terms) in Scottish Planning Policy which appeared in October 2008. That guidance, as well as dealing with the preparation of Development Plans, made clear that "where a proposal is in accordance with the Development Plan, the principle of development should be taken as established and the process of assessment should not be used by the planning authority or key agency to revisit that".

• Updating Development Plans

• New Planning Regulations

• Strategic Plans and Local Plans

• Supplementary Guidance

• Key Agencies

• Applicability of Old and New Regulations

• Declining a Reporter's Recommendation

Updating Development Plans

The major problem in the planning system has been the fact that Development Plans are often out of date. One of the key changes in the new planning system brought about by the Planning Act passed in 2006 is a requirement to keep Development Plans up to date. Problems have arisen particularly in relation to both the preparation of Local Plans as well as their consideration at Inquiries. The difficulties have not all been caused by planning authorities. Given the importance of the Development Plan developers have often insisted upon a right to a formal inquiry and sought to lead significant evidence in relation to a proposal with a view to having it established in the Development Plan.

As with most things in life there is a balance, the issue is where the balance should be struck. Where should the balance lie between the importance of the Development Plan (with a consequent right to fully participate in its preparation) and the need to have processes and procedures which allow the Development Plan to be kept up to date? In an ideal world there would be no conflict or tension. Recent experience in Scotland suggests however that there is a tension.

New Planning Regulations

The Scottish Government have now published regulations in relation to development planning which are intended to implement significant parts of the Planning Act. These regulations all come into force on 28 February 2009 and will probably become effective on the same day.

Probably the most significant of these three sets of regulations is that entitled "Town & Country Planning (Development Planning) (Scotland) Regulations" (the "Regulations") which deal with a number of issues including the content of both Strategic Development Plans and Local Development Plans, the information which has to be taken into account in preparing both Strategic and Local Development Plans and the consultation process. Additionally, however, the Regulations deal with the examination process, Development Plan schemes, supplementary guidance and the identification of key agencies.

The Regulations are considerably simpler than the drafts which originally appeared with a view to giving planning authorities greater flexibility and to reducing the involvement of the Scottish Government. This approach is consistent with the fact that the primary responsibility for the operation of the planning system lies with local authorities (as identified in paragraph 8 of Scottish Planning Policy). Greater freedom for local authorities however may mean less consistency and it will be interesting to see whether or not at some stage in the future the Scottish Government will need proactively to intervene to seek to achieve some of the objectives set out in the White Paper.

Strategic Plans and Local Plans

In preparing a Strategic Development Plan the Strategic Development Planning Authority are to have regard to a number of criteria including the resources available or likely to be available for carrying out the policies and proposals set out by them. A number of documents are to be taken into account specifically not all of which (e.g. local housing strategies) will be prepared by the Strategic Development Plan Authority.

In relation to Local Development Plans, the Regulations set out a similar (but not identical) list of considerations which are to be taken into account including resources.

The Regulations also make changes to the examination process both for Strategic Developments Plans and Local Development Plans albeit the detailed rules are set out in a separate set of regulations. Any examination process is only to deal with issues raised in unresolved representations. There is an obligation upon the planning authority (whether strategic authority or local authority) to send to the relevant person (the Reporter) a summary of unresolved issues.

It appears to be intended that the extent to which further information is required in relation to representations should be at the discretion of the person appointed to conduct the inquiry (the appointed person or Reporter).

Supplementary Guidance

There has been some concern in relation to supplementary planning guidance made in accordance with Section 22 of the new Act and the extent to which this provision might be used to deal with issues which ought to have been dealt with in terms of the Development Plan. Planning guidance made in this way is to have greater weight. Possibly in response to those concerns these Regulations limit when supplementary planning guidance formally made in accordance with Section 22 is appropriate by providing that guidance "may only deal with the provision of further information or detail in respect of the policies or proposals set out in that Plan and then only provided that those are matters which are expressly identified in a statement contained in the Plan as matters which are to be dealt with in supplementary guidance".

This provision is likely to be of considerable significance. While planning authorities may be able to bring out supplementary guidance as they wish, any guidance which they intend to have the status afforded by Section 22 will have to be brought out within the parameters set out above. Clearly this provision will impact upon the drafting of Local Development Plans.

Key Agencies

The Regulations also deal with the identification of key agencies. The list is largely the same as that in the draft regulations, albeit health boards have been added. Probably the real concern here is whether or not these key agencies will proactively involve themselves in the Development Plan process. The document produced at the Planning Summit in October 2008 will be critical in that context – Planning Reform – Some Practical Changes

Applicability of Old and New Regulations

The Regulations contain transitional provisions which are amplified in a separate set of regulations which also come into effect on 28 February 2009. The key provisions in this context are found in the separate order entitled "The Planning Etc (Scotland) Act 2006 (Development Planning) (Saving Transitional & Consequential Provisions) Order 2008". In relation to Structure Plans, in effect if the Structure Plan has been submitted to the Scottish Ministers before the relevant date (being the date upon which Section 2 of the 2006 Act comes into force for all purposes), the old regulations will continue to apply. In relation to Local Plans, if notice of a local inquiry has been given before the relevant date then likewise the old regulations continue to apply. In relation to Structure Plans (and alterations) not submitted to Scottish Ministers there are consequential provisions which are applicable if the publicity and consultation process has started. Likewise there are similar consequential provisions in relation to Local Plans where publicity and consultation has started. In effect we will have for some time two separate systems running in tandem.

A separate order is to be made to confirm the relevant date but it appears likely this will be 28 February 2009.

Declining a Reporter's Recommendation

The last set of the three regulations deals with circumstances when planning authorities can decline to follow recommendations made by Reporters. While the Scottish Government declined to make Reporters' recommendations binding they clearly signalled their intent to limit the circumstances which would entitle local planning authorities to ignore them. These regulations given effect to that intention.

The circumstances which entitle a local planning authority to refuse to accept a recommendation (by in effect declining to follow proposed modifications) are as follows:-

(a) if the modification would have the effect that the Local Development Plan would not be consistent with the National Planning Framework or the Strategic Development Plan or a Plan adopted by a National Park in terms of the relevant regulations;

(b) that the adoption would not be compatible with the Habitats Directive;

(c) that the recommendation is based on conclusions that the appointed person (i.e. the Reporter) could not reasonably have reached based upon the evidence considered in the course of any examination.

These proposals are simpler than those which appeared in the draft regulations. The draft specifically included circumstances where a recommendation/modification was proposed without having regard to information and considerations identified. This is not now included. To that extent therefore the finalised regulations do indeed reduce the ability of a planning authority to decline to accept the recommendation made. Having said that the last ground (that the conclusion reached could not reasonably have been reached upon the basis of the evidence considered) probably leaves considerable scope for debate.

Given the importance of the Development Plan clearly anyone involved in the Development Plan process will need to be familiar with these regulations. The provisions in relation to the examination process need to be read alongside the specific set of regulations dealing with the inquiry process. What is clear is that all the regulations dealing with development planning are intended to streamline the process and procedure. Developers who interfaced with the Development Plan process will have to radically review their practice and procedures if they are to engage successfully with this part of the planning process.

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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