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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.