Implementation of the Planning (etc) Scotland Act 2006 - Land Law & Agriculture

'Modernising Planning' So far, So, good

During late Autumn 2007, and Spring 2008, the Scottish Executive has been firing out consultation papers on the major changes to the Scottish planning system made in the Planning etc (Scotland) Act 2006 extensively amending the Town and Country Planning (Scotland) Act 1997. We now have an opportunity to look under the bonnet of the "Modernising Planning" Agenda - virtually for the first time - because while the Planning etc (Scotland) Act 2006 gave us the enabling provisions, the content of the subordinate regulations was the place to see the substance of the intended reforms. The regulations summarised below are still in draft, so it is not yet absolutely certain what will be enacted, but we can now see more clearly how government envisages full implementation of the reforms.

All documents can be found on the Scottish Government "Modernising Planning" website (www.scotland.gov.uk/Topics/Built-Environment/planning/modernising/progress). Here are some of the edited highlights from the consultation papers so far.

The New Development Plans

Section 25 of the 1997 Act is going to be amended to add in the new National Planning Framework (now being consulted on) but beyond that there are also a number of reforms to the making of development plans which will impact both on developers' engagement with the system, and local authorities resource planning. The driver here was to achieve quicker, more regular, and therefore fresher development plan coverage, at the same time achieving greater community involvement. There is already a widely recognised imperative for developers to engage in the plan making process and that remains the same. Points to note from the draft Regulations include:-

Planning Authorities will have to prepare and publish Development Plan Schemes giving details of their intentions and timetables. This will assist development interests in planning to engage with the plan making process (and there will be less excuses for not doing so). These schemes will also lay out how the community is to be involved.

Strategic Development Plans (SDPs) will replace Structure Plans. There is renewed emphasis on leading and monitoring change, but otherwise authorities are to have substantial discretion about what is included. However, there must be a Proposals Map proposing a spatial strategy. SDP's are still not site specific but must be clear about the extent of any areas referred to. Understandably SDPs have to have regard to the National Planning Framework, regional transport strategies, river basin management plans, the national waste management plan and any hazardous substances consents. Once a proposed SDP is published there will be an examination process, but the draft regulations for how this will be done are awaited.

Local Development Plans (LDPs). First, a monitoring statement must be prepared to take stock of the success or otherwise of existing plans and policies. In going on to prepare the plan, regard must be had to the SDP but the draft Regulations also oblige the LPA to take into account resources available for preparing the plan, other LDPs, and neighbouring English plans; regional and local transport strategies; river basin management plans; the local housing strategy; the national waste management plan; and any dangerous substances consent issues. The next step is a "Main Issues Report" which should be widely consulted on and also be closely informed by the strategic environmental assessment process which kicks in here. The MIR is seen as the key opportunity for public engagement and participation. After the publication and consultation on the outcomes of this the LPA can then publish their proposed LDP plan document. Where areas are proposed for development, the LPA must notify owners/occupiers and occupiers of neighbouring land. This version of the plan is the one which formal objections (now called representations) are to be invited. The LPA then decides whether or not to modify the plan, and if any modifications are major, it must be subjected to further notification and publicity. It is then submitted to Scottish Ministers. There will then be a public examination process and we await the draft regulations for these to understand the new cast of what used to be the Local Plan Public Local Inquiry. The outcome will to all intents and purposes be binding on LPAs.

After the Development Plan is made, approved and adopted, the LPAs must make action plans for both SDPs and LDPs. It is understood that SDPs and LDPs will be required to be made more regularly than previously.

New provisions are being made for supplementary planning guidance whereby LPs issue non statutory development policies which are not part of the development plan. SG is now to be placed on a more formal basis with statutory procedures under Section 22 of the Act. With this new procedure, supplementary guidance may have more weight as a material consideration.

A Hierarchy for Development Applications

The pivotal strategy for the "Modernising Planning" agenda was a new approach to prioritising important development proposals, through the introduction of different categories of development applications, with different mechanisms being set up for each stream designed to get them through the system with increased efficiency and certainty. A new Section 26A for the Town and Country Planning (Scotland) Act 1997 provided for three categories; "national developments", "major developments" and "local developments", and the draft regulations propose definitions of these. The overall approach is to make "routine" proposals as straightforward as possible and to concentrate development management resources on complex or significant proposals albeit on a planned basis. What category a development falls into has immediate implications for development management procedures, appeal rights and development.

The first category are "national developments" i.e. those proposals of national significance chosen by government, which have been included by Ministers in the new draft "National Planning Framework" known as NPF2. This has now been published for "discussion" but when approved will have similar status to the approved SDP and LDP. There are nine projects proposed for this category; the Forth crossing; Edinburgh Airport Enhancement; Glasgow Airport Enhancement; Grangemouth Freight Hub; Container Terminals at Rosyth and Scapa Flow; Grid reinforcements to support renewable energy; Glasgow Strategic Drainage scheme; and the 2014 Commonwealth Games Facilities. The idea behind NPF2 is that the national developments it contains will be regarded as approved in principle by the Scottish Parliament. While the detail of any particular proposal will still require to be considered through an application process, the whole question of whether a national development is needed will be regarded as settled by Parliament.

The next category is "major developments" which are to be application proposals of more than local significance. These are currently suggested as:-

All applications requiring Environmental Impact Assessment

Any housing application for 100 or more units, or for a site area of more than 2 hectares

Business/industry/storage and distribution proposals of more than 20,000m2 or of a site area of more than 4 hectares

Renewable energy proposals of more than 20MW generating capacity

Waste management facilities with a capacity of over 25,000 tonnes of waste per annum or 50 tonnes weight of sewage sludge

Transport infrastructure – all roads, lines, waterways of more than 8 kilometres and all motorway service areas

A catch all – all developments of 10,000m2 or where the area exceeds 2 hectares.

There will be more time allowed for planning authorities to determine major applications from the present two to four months.

Next, "local developments" which are basically all other applications. There will be no automatic right of appeal to the Scottish Ministers for local developments. If they are refused, or if there are issues about proposed conditions, they are supposed to be referred to local review bodies, which are to be set up by Councils (see below).

Another key action point to secure the objectives of efficiency through the reforms is to be increased permitted development rights, in order to reduce the number of applications submitted to Councils in the first place. Councils are also to increase the number of applications which are determined by officers using delegated powers, and these are to be subject to the local appeal mechanisms.

Planning Applications

There will be complete restructuring for most planning application procedures.

Remembering there are three underlying principles to the reforms from the "Modernising Planning" agenda, namely:-

Adapt development management procedures to better fit the more complex application

Increase efficiency of whole system

Improve public involvement, the familiar GDPO 1992 will be replaced by the Town and Country Planning Development Management Procedure (Scotland) Regulations (to be called "the DMR").

New Sections 35A to C for the Town and Country Planning (Scotland) Act 1997 provide for a "pre application consultation". These are different from pre application discussions between the developer, the LPA and statutory authorities, which are to remain non statutory. The new Section 35 provisions are intended for consultation with the community.

These community consultations must be carried out, under current proposals, for all national developments; all major developments; all developments requiring environmental impact assessment, and a further category of substantial developments defined in Schedule 1 to the draft Regulations. These, for example, include retail buildings of more than 2,500m2 where there is no proposal on the Development Plan; developments which would result in the loss of open space or playing fields; green belt development; waste developments.

If it is not clear whether an application needs a Section 35 consultation, the applicant can apply to the local authority for a "screening opinion".

Pre application consultations involve preparing "a proposal of application notice" 12 weeks prior to the submission of an application proper. This notice includes certain specified information, and must provide details of the consultation the applicant proposes to undertake. The local authority will have powers to require the applicant to undertake further consultation. Further guidance is to be issued about what consultation is actually to involve. After consulting, the prospective applicant must prepare a report on the consultation process and this must be submitted with the Planning Application.

Applications which require a hearing. A new Section 38A of the TCPSA 1997 makes it mandatory for local authorities to hold a hearing for certain types of application. These are further measures aimed at making the planning system better at including the community. These are proposed to be developments significantly contrary to the Development Plans; and cases requiring environmental assessment. A model code of conduct for hearings is to be issued. In most cases where a predetermination hearing is required, the Planning Committee's decision must be referred to the full Council.

Call Ins. There are further provisions for notification to Scottish Ministers; EIA Applications have to be notified, and significant departures from the Development Plan. This will require further change to Circular 5/2007; Notification of Planning Applications.

Processing agreements. A major new mechanism to try and speed things up is the provision for applicants and local authorities to sit down together and plan for the processing of an important application. These discussions are to be committed to a "processing agreement". While ideally, the processing agreements should result from pre application discussions and be in place before the application is submitted – and, presumably, before the application clock is running - it is acknowledged that may not always happen, and there is provision for default arrangements. Processing agreements will involve councils in settling in advance of an application who is to deal with it, and who the nominated officers are in any consultation bodies, and also allows everybody to clarify and define who will be dealing with the roles and responsibilities on the developers side. A suggested template has been presented. Processing agreements are to be recorded on the public register for planning. There has been a discussion about how enforceable processing agreements should be; at the moment, the suggestion has been made that if the planning authority defaults, some or part of the planning application fees may be returnable. This is to be consulted upon.

Death of outline planning permission (exaggerated). Outline planning permission is now to be replaced by "planning permission in principle". Outline planning permission was nearly abolished in the original Planning etc Bill, but was retained because its usefulness to land owners and the development industry was acknowledged. However, various other reforms within the system will necessitate that all planning applications are "front loaded" with specification and information there may be less and less scope for minimalist planning applications, particularly those of any significance. For example, there will be severe restrictions on additional information being brought into applications during a subsequent appeal process. This trend may result in the withering away of outline planning permission.

Electronic application forms. Application forms are to be modernised and there will be increased use of electronic applications, and knock on implications for the plans required for a planning application.

Conditions. The use of conditions for any aspects of an application to be submitted later will be provided for in more detail.

Design and Access Statements. For some applications there will be a requirement for "design" and "access" statements which respectively provide for an explanation of the design principles and concepts that underlie the development proposals, and also how issues relating to access for disabled people have been dealt with.

Neighbourhood notification. There will be major changes to neighbourhood notification. Instead of being carried out by the applicants, responsibility for notifying neighbours has transferred to the planning authority. To assist this, the time for receiving objections is extended, and the definitions of neighbouring land have been simplified. There will be new requirements for newspaper and site notices. It is acknowledged that this will result in higher fees.

Statutory Consultations. Statutory consultees will be specified by Regulation 30 of the new DMR and there may be further consultation on the participation of statutory consultees. It was widely recognised in the discussions on the reforms that a prompt response from consultees is crucial and is not always achieved.

Time periods for decisions are to remain at two months from the date of submission of a valid application or an additional time period of four months for national and major developments. There are exceptions where the case is called in for determination by a national park authority, or whether there have been delays in advertising, or where there has been an agreement about an extension. There are new provisions for notification of the outcome of planning applications, which are to be more widely distributed and publicised.

Bad neighbour developments are proposed to be redefined, now to include nightclubs, public houses, community halls, concert halls, places of worship, skateboard parks, waste transfer sites, and recycling points, or slaughterhouses. Quaintly, it is proposed to delete from the bad neighbour procedures, music halls, dance halls, and the construction of buildings for the use of land for the purpose of slaughter house or knackers yards and the killing or plucking of poultry.

Changes to applications after submission. There will be important new restrictions on the extent to which there can be a variation of an application after submission. Where the variation is substantial, the planning authority cannot agree to the change, and a fresh planning application will require to be submitted. This is another example where the reforms will lead to front loading of applications.

Retail mezzanines – removal of permitted development rights. Following the changes in England there are to be removal of permitted development rights for increased floor space for retail developments designed to tackle the issues arising from the installation of mezzanine floors in existing buildings. There are to be new powers to remove permitted development rights for such mezzanine floors in retail buildings, but again following England, if work has been commenced, then that will be permitted to be completed, notwithstanding the removal of permitted development rights. Retailers contemplating installing mezzanines have a closing window of opportunity.

Policing and Environment

Amendments to Section 25 of the 2006 Act add Fixed Penalty Notices to the enforcement armoury. Where an enforcement notice or a breach of conditions notice have been served, and the planning authority believe a person to be in breach of these notices, they may serve a fixed penalty notice. This will be structured like a parking ticket. It gives somebody the option of paying the authority an amount of money which would then discharge any liability to conviction for the officers of non compliance under Section 136 or Section 145 respectively. There is a discount for early payment. The FP Notice has to be served within 6 months following the end of the period for compliance, and cannot be served if the person has been already charged with an offence. Once payment has been made, it becomes incompetent to "commence proceedings" in respect of that breach. The fines are to be set by Ministers and have been set at £100 for a first offence, rising by subsequent £50 increments for each succeeding penalty.

Stop Notices, usually only used when there is ongoing serious environmental damage or increasing prejudice to the proper planning position, are to be enhanced with "Temporary Stop Notices" (Section 26 and now Section 144A-D). If there is activity on land and the authority thinks it is expedient that it should cease immediately they may serve a Notice requiring that. The Notice takes effect as soon as it is displayed on the land, but ceases to have effect 28 days later. These cannot be used to stop use of a building as a dwelling house or certain activities which are yet to be prescribed by Ministers and there are special provisions for caravans. A TSN cannot be used if the activity has been engaged in for 4 years prior to service. Non compliance with a TSN is an offence, with a fine of up to £20,000 after a summary prosecution, unlimited for a prosecution on indictment. TSN can give rise to a claim for compensation, if the activity was in fact permitted, or immune from enforcement action (i.e. has a certificate of lawful use or development) or the notice is withdrawn.

New Notice requirements for developers. New Sections 27A, 27B, 27C for the Town and Country Planning (Scotland) Act impose new duties on developers. The Local Planning Authority has to be told when development is to be started and a site notice has to be displayed. There were concerns about whether this was simply additional paperwork. However, informative site notices about development are commonplace on the continent; and who knows, the additional publicity may contribute to better public awareness of the development industry and the planning system. Notices will also assist LPAs to act quickly on any enforcement or compliance issue. See draft Town and Country Planning (Notification and Display) (Scotland) Regulations 2007.

Planning Appeals

The modernising planning reforms were also heavily reliant on streamlining the planning appeal process. The objectives are to make the administration of appeals "proportionate"; and to "avoid unnecessary complexity or lengthy procedures that do not add value to the quality of decision". It is clear that there is a general aim to move firmly away from the formal public inquiry process. While the present appeal system is regarded as fair, transparent and independent, it is apparently regarded as difficult for ordinary people to engage with. There is also a perceived tendency, which is regarded as unfair, for proposals to change during the planning and appeal process and for the justification for them to alter without reference to the local community. Applicants are being asked to specify their proposals more fully at the outset, and their ability to change these, either through the application or by implication to the appeals process, will be restricted.

The streamlining of the appeals process is also to be supported by increasing delegation of applications to officers for determination. The idea is to allow elected members to focus their attention on complex or controversial applications and officers are to take more delegated planning decisions. Appeals against decisions taken by elected members will continue to be made to the Scottish Ministers, but for those falling within the terms of the new scheme of delegation, appeals are to be determined locally. The "review" function is to be conducted by a local review body made up of Councillors advised by officials who were not involved in reaching the decision under the review. While some of the larger Councils in Scotland will be able to accommodate these arrangements, for smaller Councils this may well have resource implications. There are also issues about independence, fairness and transparency. There are many concerns about whether this mechanism will achieve a "fair trial" under Human Rights principles. For those used to the planning process, it is fairly clear that the existence of local review bodies and schemes of delegation will change the relationship between officers and elected members in ways which are not yet clear.

Schemes of Delegation. New Section 43A of the Town and Country Planning (Scotland) Act 1997 allows Ministers to prescribe the form and content of schemes of delegation. This scheme is envisaged to run in parallel with the existing schemes of delegations which Councils have under the Local Government (Scotland) Act 1973. Some types of application should not be determined under the new schemes of delegation, and these are

Applications subject to an unresolved objection from a statutory consultee;

Applications made by the planning authority or a member of the planning authority;

Applications on land in the ownership of the planning authority, or on which it has an interest;

Applications requiring environmental impact assessment;

Applications relating to development which is significantly contrary to the terms of the development plan;

Applications subject to a substantial body of objection;

and a group of applications requiring enhanced scrutiny including a pre-determination hearing.

Appeals to Local Review Bodies. These are for applications determined by officers under the new schemes of delegation. We are some distance away from settling exactly how these arrangements will work in practice. The government clearly envisages that the review process will strive to achieve the same standard of review and assessment that applicants are used to in the existing appeal process, where appeals are considered by the Scottish Executive Inquiry Reporters. The current concept includes a review body of a small number of elected members – between 3 and 5 – with a larger pool of specially trained elected members available to ensure that if there is a conflict of interest, the appeal system will still operate. The new body will need administrative support which is envisaged to be provided by the authority's legal officer. The consultation paper does not address in detail how the review body is to obtain access to professional planning advice, when the officer promoting the original decision is part of the Council's Planning Service. It has been pointed out that it may be difficult for the local review body to demonstrate fairness if one of the advising officers is also part of the department promoting the particular case. The government expects the majority of these cases will be determined by written submissions. However, in some cases a hearing will be permissible. The discussions about how this will work are ongoing.

Appeals to Scottish Ministers. Despite all advice to the contrary, the timescale for making an appeal to Scottish Ministers is to be reduced from six months to three months. When this occurred in England, this resulted in a substantial overload to the planning system because a large number of "holding" appeals were made. The Scottish Government believes that other reforms ensuring delegated appeals sent to the local review bodies will prevent this problem happening in Scotland. Because of the perceived risk that applications will change through the appeal process, the trend towards "front loading" the system is reinforced through appeals, by limitations on when it will be possible to change the application. New material will only be allowed in if the applicant can explain why it was not possible to put these proposals before the authority originally. In most situations any new proposals will always result in a new application having to be made. This may cause difficulty where advice from a statutory consultee such as SNH or SEPA results in ongoing dialogue and late change, as is frequently the case at present.

Methods of examination of planning appeals. Appeals are currently dealt with either through written submissions, hearings, or public inquiries. This is because the existing provisions include that an applicant has a right to be heard. This essential right is to be abolished. Scottish Ministers will have the right to choose their preferred method of determination of appeals.

Choice of appeal mechanism. As the Appeal process is to be "front loaded"; the application for an Appeal will require a full and comprehensive statement of case. The Government wants to minimise the need for any subsequent documentation. Once an Appeal has been made, the planning authority should provide a response to Scottish Ministers within fourteen days. These initial comments will be used by the Scottish Ministers to identify what mode of hearing will be chosen. In many instances only the Appeal and the planning authorities response have been received, the Appeal will be decided without further reference to the parties. Where Scottish Ministers require additional information to arrive at a decision, they may ask for that information, but appellants and Councils should regard themselves as only having one chance to make their case. Where Scottish Ministers decide that a Hearing is to be held, they will specify the matters to be considered.

Planning Appeals are clearly intended to be very different in future.

Overview; the Reforms so far

As predicted, all participants in the planning system are now subject to a degree of consultation overload as they struggle to assimilate hundreds of pages of consultation documents and seek to check whether and to what extent the new system includes any glitches or unintended consequences. We are only about halfway through. Several elements of the modernising planning agenda have yet to be consulted upon. A clear message is coming out from the Scottish Government that the principles behind the modernisation reforms are simply not up for compromise. Most of the professional bodies responding to consultees will raise the point again with government that it would have been helpful to see the subordinate legislation and guidance at the same time as the principal legislation, and that if the lack of a co-ordinated approach gives rise to difficulty or loss of momentum that is to some extent of the government's own making.

No nook or cranny of the existing Scottish Land Use Planning system is going to remain untouched by this spring tide of reform. All professionals, whether they be in the local authority framework, statutory consulting bodies, developers, architects and other construction professionals, will all have to review their engagement with the planning system and adapt their existing procedures to ensure that expensive mistakes are not inadvertently made. It will be difficult to obtain information from under-resourced planning authorities, themselves struggling to implement the new reform obligations on them, on any particular course of action, and in all likelihood, everybody will have to pull together to make the new system fit for purpose without loss of momentum, or undue complexity in the development management process.

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.

UK: Implementation of the Planning (etc) Scotland Act 2006