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Planning/environment briefing: 2014 – a retrospective

19 January 15

A reminder of some key developments in planning and environmental law in the past 12 months

by Alastair McKie

The purpose of this article is to summarise and update readers on a number of important regulatory and policy reforms in the last year, some of which have already featured in articles that appeared in the Journal last year.

Historic Environment Scotland Act

This measure was introduced into the Scottish Parliament on 3 March 2014. Its purpose is to establish a new lead non-departmental public body, Historic Environment Scotland (HES), for managing Scotland’s historic environment. The bill received Royal Assent on 6 December 2014. It is an enabling bill that both creates HES and provides its functions and duties.

Of particular interest to practitioners is s 22 of the Act, which contains an innovative new power that all entries for listed buildings can specify that an “object” or “structure” is not to be treated as part of the building (part of the listing), and also that any part of the building is not of special architectural or historic interest. This allows a degree of flexibility not previously available for new listings where a part of a building (such as a modern extension) is not of listable quality. There is to be a new right of appeal to Scottish ministers against the decision of HES to list the building or amend an entry in a list relating to a building.

Scottish Planning Policy and National Planning Framework

On 23 June 2014, the Scottish Government launched the Scottish Planning Policy (SPP) and the National Planning Framework 3 (NPF3). It is stated in SPP that the central purpose of the planning system is increasing and facilitating sustainable economic growth. It is outcome focused and introduces a presumption in favour of development that contributes to sustainable development. Where the development plan is out of date or does not contain policies relevant to the proposal in question, the policy presumption in favour of sustainable development will apply and it will carry significant weight.

In tandem with SPP, the Government has published NPF3, which sets out its development priorities over the next 20-30 years and identifies national development which supports the development strategy. Again it has a strong focus on supporting sustainable economic growth and the intended transition to a low-carbon economy.

Community Empowerment (Scotland) Bill

This bill was introduced in the Scottish Parliament on 11 June 2014. Of most interest to the profession is likely to be the extension of the community right to buy to urban land, and the new quasi-compulsory purchase powers that will be given for communities to acquire abandoned or neglected land.

The Smith Commission

The report of the Smith Commission on further devolution of powers to the Scottish Parliament was published on 27 November 2014, and has already been subject of much debate. While the power to legislate on planning and environmental matters is already devolved to the Scottish Parliament, there are a number of interesting proposals in the report that may impact on planning and environmental law.

These include the licensing of onshore oil and gas extraction underlying Scotland, which will be devolved. The licensing of offshore oil and gas extraction will remain reserved. Under the current arrangements, such extraction requires a petroleum exploitation and development licence under the Petroleum Act 1998, which is currently obtained from the Department of Energy & Climate Change. Shale gas is included within that jurisdiction, and therefore licences for the process commonly known as “fracking” are likely to be devolved to the Scottish Parliament, together with mineral access rights.

In terms of the energy market, regulation and renewables, there is also to be a formal consultative role for the Scottish Government and Parliament in designing renewables incentives and the strategic priorities set out in the Energy Strategy and Policy Statement to which OFGEM must have due regard. This is of importance and significance due to the weight which the Scottish Government is placing on the development of the renewables sector in Scotland.

Alastair McKie, partner, Anderson Strathern LLP 

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