UK: Significant Changes In Scottish Planning Policy

Last Updated: 25 November 2009
Article by Murray Shaw

As part of the ongoing changes in the planning system in Scotland Scottish Ministers decided to consolidate previous policy (contained in either Scottish Planning Policy (SPP) or National Planning Policy Guidance (NPPG)) into one document intended to be clearer and easier to use. The draft document appeared in April 2009 and made clear that it was essentially a consolidation with few changes in the thrust of the policy. Such changes as were made were identified and of limited impact.

Scottish Ministers have now produced a draft document identifying further proposed policy changes. These are far more material and potentially will have significant impact both in relation to Development Plans and specific development proposals. The consultation period in relation to these runs until late autumn 2009. It seems likely that Scottish Ministers will consider the responses to this paper alongside the comments on the draft consolidated SPP with a view to a "final" document comprising the consolidated SPP with the appropriate changes being published in 2010. In the consultation document on the proposed policy changes Scottish Ministers make clear that they are not looking for further comments upon the draft consolidated SPP.

The proposed policy changes in part results from legislation passed by the Scottish Parliament (notable the Flood Risk Management (Scotland) Act 2009 and the Climate Change (Scotland) Act 2009) but also from comments made upon the draft consolidated SPP. The proposed policy changes are dealt with under of the following heads:

Climate Change

The proposed changes follow on from the Climate Change (Scotland) Act which seeks a reduction of 42% in emissions by 2020 and 80% by 2050. As the policy paper notes achieving these targets "will require co-ordinated action and a significant commitment to adapting the built environment to reduce resource and energy requirements, reduce the need to travel and encourage active travel by public transport". As a consequence of all of that a number of additions to the consolidated SPP are proposed including: -

(a)A requirement that the need to mitigate the causes of climate change "should be taken into account in all decisions throughout the planning system";

(b)Development Plans "should" promote a pattern of development which reduces the need to travel and encourages travel by public transport;

(c) All new developments "should be designed" to mitigate the causes of climate change by minimising emissions;

(d) When designating lands for new residential, commercial and industrial development planning authorities "should consider the energy and heat requirements of those new developments".

Clearly the language is mandatory in its terms and what will be interesting to see is how these requirements (assuming they are enacted in this format) are reflected in Development Plan policies and considered by planning authorities (and indeed Reporters) when considering applications for and appeals in relation to site-specific proposals. While many Councils have policies already in relation to these issues they probably do not have the priority or precedence that the language used in the draft paper suggests appropriate. It appears inevitable that developers will have to address these requirements in a positive manner which is likely to have cost implications.

The consultation papers also makes reference in particular to Section 72 of the Climate Change (Scotland) Act which requires all new buildings to be designed to avoid greenhouse gas emissions. The consultation paper proposes that Development Plans need to specify a target for the proportion of emissions to be avoided with this target increasing over time reflecting the requirements of Section 72.

Sustainable Development

The consultation paper also touches upon sustainable development responding it appears to a number of the responses to the consolidated SPP. It is understood that a number of commentators were unhappy with the definition of sustainable development contained in the draft consolidation of the SPP. Scottish Ministers therefore intend to include a reworked section and the principles of this are set out in the draft paper. Sustainable economic growth is identified as "building a dynamic and growing economy that will provide prosperity and opportunities for all, while respecting the limits of our environment in order to ensure that future generations can enjoy a better quality of life too". The draft makes clear that the Scottish Government supports the principles of sustainable development namely living within environmental limits, ensuring a strong, healthy and just society, achieving a sustainable economy, promoting good governance and using established science responsibly.

The draft paper suggests that the fundamental principle of sustainable development is to ensure that economic, social and environmental objectives are integrated. Development Plans are intended to address sustainable development at the local level and it is suggested that planning decisions should favour the most sustainable option.

Significantly it is proposed that the decision making process within the planning system requires to address a number of criteria set out in the consultation paper many of which reflect the changes referred to above arising out of the climate change legislation.

In effect this appears to be a check list that can be used by decision makers (whoever they might be) to measure the sustainability of a proposed development. While some of the principles are intended to apply at the Development Plan level many are, and appear intended to be used, on a site-specific basis. Certainly they will be relevant in a "beauty parade" scenario – in other words a situation where there are conflicting and competing developments and not all are likely to proceed. In that scenario it seems inevitable that the decision maker will use these principles (assuming they are enacted in their current form) as one tool to evaluate these conflicting developments.

Flooding

As noted above the Scottish Parliament passed the Flood Risk Management Act which entails the preparation of assessments on the likely impact of flooding and catchment plans to address the impact. Specifically Section 42 requires applications for planning permission to be accompanied by an assessment of flood risk where the development is likely to result in a material increase in the number of buildings at risk.

Given the terms of existing guidance the policy adjustments required are relatively modest. Specifically however it is noted that "impermeable surfaces" should be kept to a minimum in all new developments – this may have an impact on issues such as car parking for example.

Coastal Planning

Previously coastal planning policy classified the coast as either developed, undeveloped or isolated. The responses to the draft consolidated SPP suggest that this categorisation is not workable unless Development Plans follow through on this categorisation. It is therefore proposed that Development Plans need to identify coastal areas which are likely to be suitable for development as well as identifying areas which are subject to constraint and coastal areas which are simply unsuited for development. Where a location on the coast is identified as the draft policy changes suggests, that this can only be done based upon a clear understanding of the physical, environmental, economic and social characteristics of the area together with the likely effects of climate change. In identifying areas for development it is proposed that this should be done (logically enough) taking into account the locational requirements of the different types of development which may occur on the coast.

On-shore Oil and Gas Operations

The policy document in relation to this aspect of planning policy dates from 1986 and is probably based upon a view of the energy industry, which is considerably out of date. It is therefore proposed that a new policy will be put in place requiring planning authorities and licensed operators to work together. Specifically it is proposed that Development Plans in areas covered by the relevant licences should identify areas within which extraction may be acceptable and the factors which should be taken into account in relation to this. This is clearly a highly specific and focused change which is likely only to be relevant to a limited number of parties and local authorities.

High Amenity Business Locations

In the past a number of high amenity, single user sites have been safeguarded for business purposes. These were identified for the sort of inward investment that Scotland hoped to attract in the 1990's and did so with mixed success (e.g. the Hyundai site near Dunfermline). Understandably given the economic context and the success in promoting these sites over the last 15 years Scottish Ministers have decided it is no longer necessary to identify and safeguard these. The draft document however highlights that given the characteristics of these sites (their location, quality and marketability) they need to be considered by planning authorities when identifying and safeguarding strategic high amenity sites to meet their objectives rather than national objectives. The draft document suggests there should be a specific requirement upon local authorities to do that and to identify the type of developments which may be appropriate. In effect these sites have come down a tier in a hierarchy so they are no longer being identified on a national need basis but on a much more specific, local or regional need basis albeit to address strategic needs rather than merely as part of an integral part of the industrial land supply. This change appears to be one that recognises the reality of the economic position in Scotland and the prospects for significant inward investment.

Conclusion

Obviously it remains to be seen whether the draft document will be enacted in this form. However given the terms of the legislation referred to it seems unlikely there will be significant watering down of the proposal. The emphasis upon climate change and reducing emissions is notable and this guidance will be of significance (considerable significance) for all those involved in the development process. Developers in particular are going to have to demonstrate that they have taken these considerations into the planning of their 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.

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