In anticipation of the new scheme of development management becoming effective on 3 August the Scottish Government have produced a Circular entitled "Development Management Procedures (Circular 4/2009)". This contains detailed guidance in relation to a number of issues concerning the handling of planning applications.
The final regulations appeared just prior to Christmas while the Circular has appeared in the midst of the summer holidays shortly prior to the new regulations becoming live. Given these timings it would appear that the Scottish Government does not wish to make it easy for all those involved in the planning process to get to grips with the new system! It is particularly surprising that this Circular has only come out now. While the new system goes live on 3 August those who anticipate lodging early applications concerning "major developments" will have been preparing those for some time and indeed will have been out to public consultation in relation to them. Some of the guidance contained in this Circular is relevant to that process and it probably would have been helpful therefore for the Circular to have been made available sooner. Having said that the Circular contains helpful guidance.
As well as dealing with development management procedures it would appear that the opportunity has been taken to restate guidance which has appeared elsewhere previously. For example Annex A contains information to define a "material consideration". Some of this information previously appeared in SPP1 (now superseded).
The Circular is fairly long but will be essential guidance to all of those who are involved in lodging planning applications. Certain points however can be usefully highlighted.
Paragraph 2.3 deals with pre-application discussions and processing agreements. Specifically it notes that "the Government wants to encourage the use of processing agreements with planning applications for national and major developments as set out in the hierarchy... to provide greater clarity about the timescales and processes that will take place before a determination is made on these proposals". Given that objective it is slightly surprising that processing agreements were dropped as a mandatory requirement from the regulations. Section 6 of the Circular contains detailed information about processing agreements, the benefit they offer and the format they should take. Specifically the Circular notes that they should be in place as early as possible, should be seen as a live document and to be "as concise, clear and simple as possible". It is envisaged that the time period for determining an application should be agreed if that needs to be different from the statutory period laid down. This guidance is sensible. The issue remains however whether processing agreements will be adopted particularly in relation to major applications in the absence of any statutory requirement that they should be.
The Circular also deals with pre-application consultation noting that the purpose is to "improve the quality of planning applications, mitigate negative impacts where possible, address misunderstandings, and air and deal with any community issues that can be tackled". The Circular notes that if adjusted the proposal should benefit from that engagement though at paragraph 2.5 it is noted "the prospective applicant is under no obligation to take on board community views or directly reflect them in any subsequent application". It appears however to be clear in practical terms that a failure to do so is unlikely to advance the cause of the developer. Later on in the Circular comment is made in relation to the pre-application consultation report that will be required in relation to major applications. Paragraph 2.7 sets out what the Scottish Government consider a pre-application consultation report should contain and specifically notes it should record "how the applicant has responded to the comments made, including whether and the extent to which the proposal changed as a result of pre-application consultation. The regulations in their draft format contained similar language. That language was dropped form the final regulations but it seems to be clear that developers will have to indicate what they have done to change the development to minimise issues with the planning authority in practice.
The Circular does not contain much information about how a consultation should be carried out though it does note that the local authority may require additional consultation to be carried out beyond that which the applicant proposes. In terms of what is to be done reference is made to PAN81. The Circular helpfully makes the point that in determining whether or not additional consultation is required the planning authority need to have regard to the nature, extent and location of the development and its likely effects.
One issue which has caused planning authorities concern is the extent to which they may be involved in pre-application consultation. At paragraph 2.23 the Circular specifically states that "it is not the intention that planning authorities will routinely have a direct role in pre-application consultation activities beyond their statutory role. It is likely that planning authorities will take considerable comfort from this!
One area however where additional guidance might be helpful is actually how meaningful pre-application consultation should be carried out. Correctly the Circular indicates that meaningful and proportionate engagement might improve an application. There is limited guidance available from the Scottish Government as to how they see that actually being done in practice and it is certainly an issue which concerns developers.
Section 3 of the Circular deals with how a planning application might be made and helpfully contains detailed information on which is required in relation to different types of application. One of the significant changes in the legislation is that the validation of an application is intended to happen "automatically" rather than validation depending upon some notice being given by the planning authority. Some developers have believed cynically that planning authorities have deliberately delayed validation to give themselves more time to deal with applications. The Circular notes in paragraph 4.4 that the administrative checking of applications (which should allow the planning authority to be satisfied that they have all the necessary information thereby resulting in validation) should take place within 5 days of receipt of the application.
Section 4 deals with the processing of planning applications in detail and highlights the effects that result from the new Schemes of Delegation though these are subject to a separate Circular in their own right (Number 7 of 2009). This part of the Circular in particular will be required reading for anyone lodging an application. The topic of pre-determination hearings is dealt with and it is made clear that it is for the planning authority to specify the appropriate processes and procedures which are to apply to arranging and conducting such hearings. The Circular makes clear that it is intended that whatever is discussed at a hearing should be relevant, they should be efficient and there should be no unnecessary repetition. Specifically it is made clear that any attendance beyond those who have the right to appear and be heard before the Committee is for the planning authority to determine. Cases involving a mandatory pre-determination hearing are to go to Full Council and that will have some impact upon practical arrangements made by Councils. There may be a need to co-ordinate the cycle of Full Council meetings with that of the Planning Committee (or its equivalent).
The detailed guidance on pre-determination hearings suggests Councils should consider legislating for the order of proceedings, the maximum number of individuals to speak on either side, time available to speak, whether witnesses are to be allowed to be present or to comment, whether there is to be a chance to respond to other parties and what scope there is to be for committee members to ask questions. It is noted that while there needs to be a pre-determination hearing in relation to some applications, that need not necessarily take place on the same day as the Full Council meeting.
The appendices as well as dealing with material considerations give additional information on screening processes, notices, plans and drawings, the ability to decline to determine repeat planning applications and pre-determination hearings and procedures.
While the Circular deals with a lot of "nuts and bolts" advice there are significant comments which relate to the format of applications. Anyone who has any interest in the development process should take the opportunity of studying this Circular in detail. For those who will be lodging applications, doing so is essential.
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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