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Three months in planning

18 January 16

Planning briefing: a roundup of the significant developments of the past quarter in the world of planning law

by Alastair McKie

This article provides an update on planning matters in the last three months.

Historic Environment Scotland

Historic Environment Scotland (HES) took up its full statutory role on 1 October 2015, and has now taken over the functions and duties of Historic Scotland and the Royal Commission on Ancient & Historical Monuments of Scotland. Of particular importance is HES’s role in maintaining the statutory list of buildings of architectural or historic interest and the statutory schedule of monuments of national importance, the Inventory of Gardens & Designed Landscapes, and the Inventory of Historic Battlefields & Marine Protected Areas. HES is also involved as a statutory consultee in listed building applications and planning applications concerning built heritage.

HES now operates an online planning portal which displays all decisions taken, and being taken, by HES in relation to scheduling monuments, listing buildings, and handling scheduled monument consent. The use of the portal is similar to the planning portals for other planning applications, and will promote greater transparency in the decision-making process. 

In contrast to the previous arrangements, there are now rights of appeal to Scottish ministers against decisions by HES regarding:

  • the listing of buildings;
  • the scheduling of monuments;
  • scheduled monument consent.

These are broadly similar to appeals under existing planning legislation, and the deadline for an appeal is three months from the date of the decision.

New circulars

On 24 November the Scottish Government published two important circulars, Planning Circular 2/2015: Consolidated Circular on Non-domestic Permitted Development Rights, and Planning Circular 3/2015: Planning Controls for Hazardous Substances.

Circular 2/2015 consolidates, updates and replaces previous guidance on non-domestic permitted development rights (PDRs) having regard to the legislative framework. PDRs allow some types of development to be carried out without the need to submit an application for planning permission. They can be particularly valuable to developers and remove the need to apply for and obtain planning permission. The circular explains the circumstances in which PDRs are available, and importantly the circumstances when they are excluded and an application for planning permission must be made. The circular in a number of annexes explains the application of PDRs to statutory undertakers, sewerage undertakings, CCTV, agriculture and forestry, and Electronic Communications Code operators.

Circular 3/2015 advises on the requirements of the “Seveso III Directive” on the control of major accident hazards involving dangerous substances. These are brought into effect through the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 2015. The regulations repeal those of 1993 and provide for the consenting regime for the presence of hazardous substances at or above controlled quantities; procedures on making applications for such consent and appeals; enforcement; national planning policy; and public participation requirements on applications.

Planning system review

Lastly, on 1 December 2015 the Scottish Government’s independent review panel received over 350 responses to their request for opinions on how the planning system could be improved. The Law Society of Scotland participated in this process. Due to the high level of interest, the panel has agreed to open an online discussion forum to allow stakeholders further opportunity to feed into the review process. It is understood that this will go live in January 2016 for three weeks.

The panel is also inviting oral evidence from a number of stakeholders. The Society has been invited to give evidence and has accepted that invitation. The panel is due to report to ministers in May 2016.  

Alastair McKie, partner, Anderson Strathern LLP

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