UK: D-Day And The "Death" Of An Old Friend

Last Updated: 20 August 2009
Article by Murray Shaw

After months (years) of anticipation, the most significant changes in relation to the planning system in Scotland for a considerable length of time finally took effect on 3 August 2009. While there are still certain provisions in the new Planning etc. (Scotland) Act 2006 to be implemented and others that had been implemented prior to this date, with effect from 3 August the development management changes came into effect (including the new regime for appeals to the Directorate for Planning & Environmental Appeals).

Local Review Bodies

The system of local review bodies also took effect on 3 August 2009. The use of local review bodies is possibly the most controversial change resulting in the review of certain applications being undertaken by a Committee of Councillors rather than being the subject of formal appeal to the Directorate for Planning & Environmental Appeals.

The original policy memorandum which accompanied the Act suggested that these bodies would deal with "many small scale developments that are not controversial and are in accordance with the Development Plan". Whether that will be the position remains to be seen. The hierarchy of developments means that some potentially quite significant applications would be dealt with under delegated powers and therefore potentially subject to review by the review bodies. These include developments for 49 or less houses and business developments for up to 10,000m2. That is a considerable footprint of development. The extent to which developments of this scale go to local review bodies will depend upon the terms of the schemes of delegation adopted by planning authorities in Scotland (while there is no "pro forma" scheme, they will all have to be submitted to the Scottish Government for comment and approval) and in relation to each scheme the particular circumstances which result in jurisdiction being "reclaimed". Typically schemes will provide that if there is a significant number of objections (5 or more) then the application will need to be referred to the Planning Committee rather than being dealt with by an officer under delegated powers. It will be interesting to see in practice to what extent provisions such as these result in jurisdiction being reclaimed.

Local authorities have been working to have their schemes of delegation in effect and establish their local review bodies. Many have arranged training for Councillors. The draft regulations which came out some time ago made clear that the change to review bodies was a significant change and that while there were efficiencies to be made these efficiencies should not be made at the expense of the quality of the examination process. Specifically it made clear that the process required to be underpinned by high standards, that those involved must be fully trained and that there must be confidence on the part of those involved that a review was a meaningful exercise. It will be a challenge for local authorities and members of review bodies to achieve these high aims and objectives.

There has been considerable speculation that there would be a rush of appeals and applications made with a view to ensuring that these were dealt with under the old regime rather than the new. It is too early to see whether there has been a "spike" in the number of applications and/or appeals made. Even if an application or appeal was lodged prior to 3 August it seems likely that the new thinking will influence how matters are dealt with particularly in the appeal context.

Alongside the legislative change the way in which the Scottish Government provide planning advice has changed with a new SPP available and in effect in part. The draft of the remaining guidance to form part of that SPP is out for consideration. We also have advice coming forward on a regular basis in terms of new Circulars.

Circular 9/2009 – Guidance on Listed Buildings and Conservation Areas

Two more of these Circulars have appeared. Circular 8/2009 deals with housing in multiple occupation and may be of limited significance. The other Circular which appeared in July, Circular 9/2009, is potentially of more significance because in effect it withdraws the "Memorandum of Guidance on Listed Buildings and Conservation Areas".

This was a much referred to document produced by Historic Scotland back in 1998 that runs to some 220 pages or so with the extensive advice both in relation to policy and technical issues. It was unusual for a planning document. When consulting it in relation to one issue it was not uncommon for another (often an unrelated and irrelevant issue) to catch the eye and provide information of interest (while not of immediate relevance to the problem in question!). The style of the document was somewhat old fashioned which in itself made it stand out and pleasurable to consult when compared to the style of later guidance.

As Circular 9/2009 makes clear the provisions of the Memorandum have been replaced by a number of different documents including technical guidance provided by Historic Scotland and policy guidance presently contained in SPP23 but which will shortly be subsumed into the new Scottish Planning Policy referred to above and presently under consideration.

While the Memorandum has been replaced and should not be referred to in an appeal or similar context, given the quality and breadth of information maintained it seems likely to remain a reference point for some time particularly for the uninitiated who will find the glossary of technical terms to be of assistance and we may indeed find parts of the Memorandum (even if superseded) helpful guidance in understanding the issues and to be read before more up to date guidance is consulted.

It is interesting to note that Circular 9/2009 suggest that the guidance to be provided by Historic Scotland in their guidance note series entitled "Managing Change in the Historic Environment" will not only replace the guidance in the Memorandum but extend to areas that the Memorandum did not deal with. Given the quality and depth of advice contained in the Memorandum that is a significant undertaking in itself.

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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