Introduction
The process of implementation of the 2006 Planning Act is firmly under way. Clearly someone within the Planning Directorate at the Scottish Government was keen to clear their desk prior to Christmas because a number of significant sets of regulations appeared on 22 December 2008.
Possibly the most significant set of these regulations is that dealing with development management – the handling of planning applications. In effect the new procedures, which will take effect in the course of this year, are set out in a set of regulations entitled The Town & Country Planning (Development Management Procedure) (Scotland) Regulations 2008 (the "Regulations").
The current General Development Procedure Order has been with us (subject to certain changes) since 1992. The changes which are now made are far reaching and go well beyond the tinkering which has taken place over the last 15 years or so. In effect the Regulations are intended to make the application process "fit for purpose" and respond to the differing types of development proposals and the categorisation of these that the system now provides for.
- Enhanced Scrunity
- Planning Applications
- Processing Agreements
- Time Periods for Decisions
Enhanced Scrutiny
The Scottish Government made clear that more detailed pre-application scrutiny of applications was an important part of the changes which they wished to bring forward. There is already guidance on this (see PAN81 entitled "Community Engagement") but now there are mandatory provisions regarding pre-application consultation.
The draft regulations were confusing in this respect and it is of benefit that the final Regulations simplify the position. Now pre-application consultation is to take place in respect of national and major developments. The previous draft made provision for some local developments equally to be subject to pre-application consultation. This requirement has been dropped.
In relation to developments which are subject to pre-application consultation a "proposal of application notice" must be given – in effect this is prior notice that an application is to be lodged. The Regulations require that notice to give an account of what consultation the applicant intends to undertake, when, with whom and what form it will take. Clearly there will require to be significantly more front loading of preparation. The applicant however does not have a free hand in relation to these matters as the Regulations set out specific obligations. In the first place the prospective applicant is to consult with every Community Council which has jurisdiction over the site or whose jurisdiction adjoins the site. In addition the applicant is to hold at least one public event at which members of the public may make comment on the proposed development and give newspaper notice of the location of the proposed development, where further information can be obtained in relation to the development, the date of that meeting, how comments can be made and a statement making clear that these comments are not formal representations on the planning application.
When the application is lodged the applicant must then lodge a pre-application consultation report setting out what consultation has taken place. The final form of Regulations are not prescriptive as the draft regulations regarding the format of this report. In particular it is not necessary for the applicant to identify the extent to which the proposal has been altered to take account of representations made – though there may be some benefit in doing so.
The original White Paper made clear that it was the intention of the Government to hold pre-determination hearings on a mandatory basis in relation to certain categories of development. These are to be held in relation to national development and major developments "which are significantly contrary to the Local Development Plan". It seems likely that further guidance will be given on the handling of these pre-determination hearings.
Planning Applications
The rules make various detailed provisions in relation to form and content of planning applications. Again the opportunity has been taken in the Regulations to simplify certain requirements. In particular, when applying for planning permission in principle (previously outline planning permission) information is to be given about access arrangements. However it is not now necessary to give as much information regarding the layout of the development and its scale as was envisaged in the draft regulations. This again is a welcome change. There was a real risk that given the amount of information the draft regulations required when applying for planning permission in principle there would be little real benefit in doing so.
One issue which has made it through to the final Regulations is a requirement for Design and Access Statements. These were not consulted upon in terms of the White Paper. These are to be mandatory for both national and major developments. In addition if a development is a local development but takes place in particular locations (including World Heritage sites, conservation areas or within the curtilege of a Category A listed building) then a Design Statement must also be lodged. The Design Statement is effectively a statement which explains the design principles which have been followed through and how those relate to the characteristic of the surrounding area.
The Regulations also contain provisions regarding validation of planning applications. This is an area which is sometimes controversial at the moment. The intention is that the test should be an objective one – in effect an application will be valid on the date when the last of the items of information required as part of the application is received by the planning authority.
The regulations also set out requirements to be followed through by the planning authority in handling applications including provision of information, publication of lists of applications and the specific requirements upon them to give notice to neighbours. Part of the changes now being brought into effect is that notification of planning applications will be given by the planning authority rather than the applicant. The rules also deal with the format of a decision notice.
Processing Agreements
The regulations in their final form are certainly simpler than the draft regulations which appeared in the latter part of 2007. In some ways this is welcome. For example, the Regulations in relation to pre-application consultation (see below) are clearer. Some changes however are not so welcome. The proposal to have "processing agreements" in relation to major applications has been dropped. In effect these agreements were intended to be "quasi contractual" arrangements in terms of which both the planning authority and the applicant would be under certain obligations in relation to the handling and determination of planning applications. Processing agreements were not universally welcome and indeed were criticised by both the public and private sectors. It appears the Scottish Government has accepted the criticisms made and abandoned them. While there was a degree of justification in those criticisms (particularly the fact there was no real sanction for a failure to comply with the agreement) at least processing agreements would have facilitated early and hopefully proactive discussions about how an application would be handled. Such an approach appears to be consistent with the desire to see "culture change" within the planning system and it is unfortunate that processing agreements have been dropped without at least being tried out. While it probably remains the position that an applicant and a planning authority could enter into the sort of arrangements contemplated by processing agreements (as set out in the draft regulations), it seems unlikely they will do so in the absence of any statutory framework (even one that provided for their use on a discretionary basis).
Time Periods for Decisions
As processing agreements have now been dropped, the Regulations require to deal with the timescale for a decision. In relation to national developments or major developments the relevant period is 4 months after the validation date while in relation to other applications the relevant period is 2 months after the validation date. Specific provision is made for the parties to extend the periods. The Regulations also provide that decisions cannot be issued prior to certain periods expiring.
These Regulations also deal with a number of other issues of lesser impact but still have significance. These include:
- A requirement that notice must be given of the intention to start on the development;
- Provisions in relation to applications for certificates of lawful use of development and the handling of these;
- Marine fish farming.
The Regulations contain a number of transitional provisions. In effect, these Regulations will apply to all applications made on or after 3 August 2009. The provisions in relation to pre-application consultation take effect on 6 April 2009 thereby allowing any party intending to make an application in relation to a national or local development to implement the consultation process in good time to make an application in accordance with the new regulations after 3 August 2009.
The Regulations make no mention of mezzanine floors, the Scottish Government having indicated that given the financial climate it was not their intention to legislate in relation to these at the present time.
These Regulations are of considerable practical significance. Anyone contemplating making a planning application will need to be familiar with them. Indeed it may be that a number of applications will be made before August with a view to avoiding some of the changes including those in relation to pre-application consultation (which of course only affects national or major developments).
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.
