Introduction
The new planning regime was provided for in the 2006 Planning Act and slowly implemented in stages primarily in 2008 and 2009, though some parts are still to be implemented.
When the subordinate legislation was being prepared a commitment was given that an early review would be carried out after the first 12 months of the new regime. For all effective purposes that 12 months expired in August/September 2010 and that review is ongoing. Representatives of the Scottish Government have been having meetings with a wide range of stakeholders with a view to obtaining comment and observations on the operation of the new system.
Given the current economic climate and the downturn in planning applications, it is likely that this review will conclude that it is premature to make any significant changes because large parts of the system have not really been tested in a "more normal" planning climate.
Notwithstanding this there are certain issues which have been identified as worthy of early change and a consultation paper came out on these in October, the consultation period running until the end of January.
Pre-Application Consultations
Probably the most significant area highlighted for change relates to pre-application consultation. Pre-application consultation applies to major applications (basically those for 50 houses or more, 10,000 square metres of office or distribution space or 5,000 square metres of commercial space). The requirement for pre-application consultation was in effect the price of third party rights of appeal not being imposed.
The pre-application consultation process is not particularly onerous in terms of what is required but most developers think it is a costly add-on. It also creates delay – no planning application can be made until 12 weeks have elapsed from the date the prospective developer gives notice of their intention to lodge an application and goes into "consultation mode". At the moment that 12 week period cannot be shortened, even although all the consultation required may have taken place early on in that period.
Particular difficulties arise in relation to Section 42 applications – namely applications intended to allow the developer to carry out their development without complying with one or more planning conditions. In reality what the developer is normally seeking to achieve is a substituted condition rather than the removal of a condition. If such an application relates to a major development however pre-application consultation is necessary. The logic appears to be that in effect a "new permission" may be issued (especially if the condition which is particularly at issue is one which limits the duration of the planning permission) hence the need for consultation.
It is generally considered that pre-application consultation in respect of most Section 42 applications (possibly even all) is unnecessary, causes confusion and potentially raises expectations that are not justified – such as the principle of development may be up for review (it is not). There is also a concern that pre-application consultation in respect of such applications may cause "consultation fatigue". In reality the purpose of the consultation in respect of such an application is limited – the principle of development has been established. If interested parties become involved in a consultation process then see that little can in fact be achieved they may become disenchanted with the consultation process. It is difficult enough to get the public engaged in consultation on many planning matters as it is. Involving them in a process which may be of limited scope may therefore dis-encourage them from becoming involved when it is more important.
The discussion paper therefore raises a number of options including removing entirely the requirement for pre-application consultation for Section 42 applications, reducing the 12 week minimum period for pre-application consultation generally, reducing the minimum period for pre-application consultation for Section 42 applications only or creating a power to specify types of applications to which pre-application consultation need not apply. One of the difficulties in changing this aspect of the system is that a change to primary legislation may be required. The Scottish Government are however inviting representations on which of the options (if any) is appropriate.
Neighbour notifications & advertisement of applications
The next area where changes are proposed relates to neighbour notification and advertisement of applications. These to some extent are "technical" issues but unnecessary notification is certainly taking place and it appears equally that advertisement of applications may be taking place where it is not strictly necessary (given concerns about the effectiveness of the notification process). There are also difficulties in relation to the cost of advertising which varies significantly from area to area and may also vary according to whether or not more than one application is being advertised in any particular week by the planning authority. The consultation paper raises the possibility of a fixed charge were advertising is necessary (irrespective of the cost) or making the cost of advertisement part of the planning fee. In effect this would mean that all applications would meet part of the cost of advertisement (whether or not they had to be advertised).
In relation to specific advertisement rules there is a proposal that significant Development Plan departures should no longer be advertised – it may not be clear until fairly far on in the consideration of an application that it is contrary to the Development Plan. Consequent advertising at that stage may cause delay. The discussion paper does however raise the possibility that what should be advertised are developments likely to be of significant interest to the community – primarily major developments.
Other Changes to Development Management Regulations
- Issues have arisen in relation to some types of application where they may be of interest to particular parties such as Network Rail and the Crofting Commission. It is therefore intended to address these issues.
- Design Statements were an innovation in terms of the new legislation. Due to a mistake in the drafting of the relevant Regulations, Design Statements are customarily required for marine fish farming when in most instances they are entirely inappropriate. It is intended to change this.
- There are to be modest changes to the requirements in respect of decision notices and equally changes to ensure that in an enforcement notice situation the full particulars of the appeal are given when the appeal is intimated.
Changes in respect of demolitions
The consultation paper makes reference to the position in respect of demolition and suggests an intention to rationalise the obligation to give notice in respect of certain application concerning demolition. Demolition is one of the most confusing areas in the planning system being governed by the Act, the Permitted Developments Rights Order and in terms of a Circular which identifies demolition which is not demolition! It is probably an area worthy of rationalisation generally.
Updating Development Planning Regulations
Finally, the consultation papers indicates an intention to update the Regulations relating to development planning simply to ensure that strategic planning authorities and local planning authorities should have regard to the relevant documents. In effect these changes are simply to take account of changes in other regimes (such as flood risk management and marine planning) and are a consequence of such changes.
Summary
Generally speaking the changes proposed are relatively modest apart from possibly those in respect of Section 42 applications. What will be more interesting will be to see the outcome of the one year review and whether any more significant steps are proposed as a result of this.
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.
