UK: Hierarchy Of Developments - Heads I Win, Tails You Lose?

Last Updated: 4 March 2009
Article by Murray Shaw

Introduction

The process of implementing the changes to the planning system in Scotland is now fully underway. While the timetable has slipped (it is some 5 years or so since the White Paper came out and over 2 years since the "new" Planning Act was passed), we now have the National Planning Framework in its final form before the Scottish Parliament and a published timetable which shows the critical provisions in the legislation being implemented by Summer 2009.

One of the most significant proposals in the overhaul of the system was the proposal to categorise developments as either national, major or local. The consequence of this is that different types of development will be treated in different ways and subject to different procedures. This contrasts with the existing system which has operated for some 60 years or so and which meant that all applications were subject to the same procedures, if not necessarily having the same resources applied to them.

  • Why Have a Hierarchy?
  • National, Major and Local Development
  • Major Developments
  • Comment

Why Have a Hierarchy?

Most involved in the planning process accept that treating all applications in the same way is not sensible and that resources should be targeted appropriately. This is clearly the view of the current Government which has made very clear its desire, through the planning system, to promote sustainable economic development which they perceive to be in the good of Scotland as a whole. In the past there has been concern that planning authorities tended to deal with more simple (but more voluminous in number) applications at the expense of the more complicated applications, not least because by doing so they hit the numerical targets which were set by the Scottish Government. These require a specific percentage of all applications to be dealt with within an identified period (2 months being the period under the current system within which applications should be dealt with).

Part of the reasoning behind being able to target resources is to take a number of householder applications out of the system altogether. The discussion paper in relation to that has been published. Implementation of the New Planning System – Householder Development

Apart from the legislative changes, however, there needs to be a difference of approach in relation to how applications are dealt with both on the part of planning authorities and developers. The announcements made at the Planning Summit in October 2008 are intended to address this. Planning Reform – Some Practical Changes.

National, Major and Local Development

The principal change however is in relation to the categorisation of developments as either major or local. National developments identified in the National Planning Framework are of a scale which affects Scotland as a whole. The principle of these developments will in effect be determined before the Parliament. For most developers the categorisation of whether a proposal is either "major" or "local" will be of much greater significance. The original discussion paper which dealt with this area made clear that the intention was to focus "engagement and scrutiny on the more complex development management proposals, while at the same time seeking to streamline and speed up those processes, where possible". That paper identified that "major proposals which are likely to have the most significant economic, social or environmental benefits should receive appropriate priority by planning authorities".

Major Developments

It is fair to say that categorisation as a major development, while potentially having benefits (increased resources devoted to it), will have burdens or obligations. A handling agreement may be entered into which will set out a timetable for both parties to adhere to. The applicant (the developer) will have obligations to provide information. The right of appeal against refusal and non-determination will remain to the Scottish Government (albeit the nature of the appeal process is likely to change significantly). Given the concerns there are about local review bodies many may consider this an advantage despite the costs involved. Major developments however will be subject to more extensive public consultation which may be time consuming and expensive and will require "front loading" of effort. While the topic of community engagement was the subject of a planning advice note published in May 2007 (PAN81 – Community Engagement – Planning with People) the development management proposals set out specific requirements in relation to consultation for major developments.

The final hierarchy is now available. A major development is one within any of the following criteria:-

(a) it is subject to a mandatory EIA (i.e. is a Schedule 1 development);

(b) it relates to 50 or more housing units or the site for housing exceeds 2 hectares;

(c) if a business storage or distribution proposal the footprint of the development is 10,000m2 (or above) or the site exceeds 2 hectares;

(d) in relation to electricity generation the capacity is in excess of 20 megawatts;

(e) if a waste management facility the capacity is in excess of 25,000 tonnes per annum or in relation to SUDS treatment the capacity is in excess of 50 tonnes wet weight per day;

(f) if a minerals development the site exceeds 2 hectares;

(g) for transport and infrastructure projects the length of the relevant road, railway, tramway, waterway, aqueduct or pipeline exceeds 8kms.

(h) where fish farming is involved the area (surface area) covered is in excess of 2 hectares;

(i) for any other development which may include those which are a combination of the previous classes, the gross floor space is in for 5,000m2 (or more) or the site exceeds 2 hectares.

Comment

These criteria are very similar to those which appeared in the draft statutory instrument which came out towards the end of 2007. The significant changes relate to housing where the figure was previously 100 houses and in relation to commercial developments where the relevant figures were previously 20,000m2 or 4 hectares.

It is still not entirely clear how these criteria will operate if at the time of application the format of the development is not finalised (e.g. where planning permission in principle is sought). Presumably then the relevant criterion will be the site area. Equally it is not clear what happens if the development drops below or more significantly moves above the relevant threshold in the course of the application being considered. It seems likely the relevant criteria should be applied as at the time the application is made. If there is any doubt about this it may be that the courts will have to resolve the position.

The Scottish Government has been firm on its intention to ensure that the hierarchy operates throughout Scotland on a consistent basis. This is not an easy issue to address. 51 houses in rural Aberdeenshire would have a very different impact from 51 houses in Glasgow or Edinburgh. If however the relevant threshold is operated differently in different areas of Scotland there was a possibility that developments very close together could be treated differently. The Scottish Government are aware of the issues but have decided that a consistent approach is one which is to be preferred.

If a proposal is close to a threshold (particularly housing developments), developers will need to give careful consideration as to whether they would prefer to have their development treated as a major or local development. There will be pros and cons in relation to that decision which may vary across the country (e.g. depending upon how schemes of delegation are framed and local review bodies operate). It is possible that some developers will try to ensure that all the developments are dealt with as major developments while other developers may take a different view. It is clearly the case that "one size does not fit all" across the country.

Having waited for the changes for some time the challenge now is to prepare for their practical impact.

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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