"National Developments" and consenting regimes
Scotland's second National Planning Framework ("NPF2") (Click here to view) was published on 25 June 2009. NPF2's purpose is to guide Scotland's spatial development to 2030, and sets out strategic development priorities for that period. It has a statutory basis under the Planning etc (Scotland) Act 2006.
Fourteen projects are designated as "national developments" by NPF2, namely: -
- Replacement Forth Crossing;
- West of Scotland strategic rail enhancements;
- High Speed Rail Link to London;
- Strategic Airport Enhancements;
- Grangemouth Freight Hub;
- Additional Freight Capacity on the Forth;
- Port Developments on Loch Ryan;
- Scapa Flow Container Transhipment Facility;
- New Power Station and Transhipment Hub at Hunterston;
- New Non-Nuclear Baseload Capacity at Other Existing Power Stations;
- Electricity Grid Reinforcements;
- Central Scotland Green Network;
- Metropolitan Glasgow Strategic Drainage Scheme; and
- 2014 Commonwealth Games Facilities and Infrastructure.
NPF2 states that designation "is the mechanism for establishing the need for these developments in Scotland's national interest".
The nature and scale of many of those projects is such that in any event they would come within the ambit of other enabling regimes.
Such regimes include:
- the Transport & Works (Scotland) Act 2007 for new railways which start and end in Scotland;
- the Harbours Act 1964 for port developments;
- the Civil Aviation Act 1982 for airports;
- the Electricity Act 1989 for generation capacity and grid connections; and
- the Sewerage (Scotland) Act 1968 for waste water.
If Scottish Ministers make such Orders/consents, what is the point of the NPF2 designation? Just what is the inter-relationship of the planning regime and the specific consenting regimes? Taken together, where does it leave the local planning authority?
The scope of NPF2 designation
Section 3A(2) of the Town and Country Planning (Scotland) Act 1997 states that "the NPF is to set out in broad terms how the Scottish Ministers consider that the development and use of land could and should occur" (emphasis added).
By their very nature, NPF2 designations refer to development in a location which is broadly indicated rather than for a specific project for a specific site.
Before rushing to dismiss NPF2, however, it is worth remembering that Section 3A(4) provides that where a class of development is designated, the designation applies to each development within that class.
Permitted development rights
Private or hybrid Bills can remove the need for planning permission to be obtained, but the other statutory regimes referred to above do not of themselves grant planning permission.
The Town and Country Planning (General Permitted Development) (Scotland) Order 1992 as amended ("GDPO"), however, sets out various classes of "permitted development" for which planning permission is not required – in so far as the development in question comes within that class and the terms of the GDPO are met.
GDPO Class 29 provides for permitted development rights for development authorised by (inter alia) any private Act or Order approved by the Scottish Parliament or made under the Harbours Act 1964.
Class 29 only extends to developments specifically authorised (rather than reliant on general powers) and retains a planning authority role in certain circumstances.
Recent Scottish infrastructure Private Bills (e.g. for Edinburgh Trams and GARL) restricted the application of Class 29. The Transport & Works (Scotland) Act 2007 ("TAWS") procedure does allow for a Planning Direction to be granted by the Scottish Ministers with conditions and/or subject to further matters reserved to the planning authority.
No "one-stop shop"
Other authorisation procedures do not fully exclude a role in infrastructure development consenting for the planning authority, nor do they provide a consents "one-stop shop".
Power stations will still require a PPC Permit from SEPA to operate. Deposits at sea of dredgings arising from ports developments require a licence under the Food & Environment Protection Act 1985 (soon to become a Marine Licence under the Marine (Scotland) Act 2010 once the relevant provisions come into force).
The environmental effects of the proposed national developments were considered in the NPF2 process. Nonetheless, that is recorded in NPF2 as "strategic level assessments" that "do not remove the requirement for further, more detailed environmental impact assessment at plan or project levels".
Objections to principle restricted?
The Annex to NPF2 clearly states that national developments will still require to secure relevant consents, "but Ministers may intervene at any stage of the process to ensure that decisions are made expeditiously. Designation...is the mechanism for establishing the need for these developments and statements of need will be material considerations in the determination of planning applications."
The intention therefore is clear: that any subsequent examination will be concerned with detailed matters such as siting, design and the mitigation of environmental impacts, not the principle of the development.
What is not clear is the extent to which the Scottish Ministers will take a similar line when considering applications outwith the planning regime.
It is tempting to say that logic would dictate that they must do so – but then, when did logic ever apply in law or politics?
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.