UK: Development Management - Practical Changes

Last Updated: 6 March 2009
Article by Murray Shaw


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:

  1. A requirement that notice must be given of the intention to start on the development;
  2. Provisions in relation to applications for certificates of lawful use of development and the handling of these;
  3. 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.

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

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

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (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

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’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.


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.


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 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.


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.


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.


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.


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

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

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

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