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What's happening on the review

18 April 16

Planning briefing: a note on progress at the Independent Review of the Planning System; and key points from two separate draft advice documents published by the Scottish Government

by Alastair McKie

Independent Review: an update

The Independent Review of the Planning System has understandably attracted a good deal of interest from those involved in development across all sectors. The review is particularly but not exclusively focused on housing delivery and how the planning system can be improved. There was some surprise at the ministerial announcement of the review, particularly when major ongoing regulatory and policy reform have occurred in planning since 2006.

Efficient delivery of housing, both through development plans (local and strategic) and the granting of planning permission for developments, is considered to be central to the Scottish Government’s overarching policy of achieving sustainable economic growth.

Conducting the review is a panel chaired by Crawford Beveridge, which also includes Petra Biberbach and John Hamilton. The panel is stated to be open to “game-changing” views and ideas about how planning could be improved; that is understood to include new legislation and policy.

The review has consisted of stakeholders participating by way of written submissions and also the opportunity, for invited stakeholders, to give evidence before the panel. Over 390 written submissions were made. In addition to making a detailed submission, the Law Society of Scotland gave oral evidence on 23 February. The Society welcomes the review, and focused its oral evidence on improving developer contributions and the delivery mechanisms for these through s 75 agreements (planning obligations). The use of s 75 agreements is often cited as a reason for delaying planning permission being granted. The Society was quick to point out that developer contributions (particularly educational infrastructure) often lacked clarity and transparency, leading to inevitable delays. It indicated that there was a strong case for these matters to be set out in the required detail by the local authority before it requests a s 75 agreement. It also considered that there was a strong case for a common style for s 75 agreements and other planning agreements that all local authorities could use.

The panel is due to produce its report in spring 2016, but it is understood that it will not be published until after the Scottish parliamentary election on 5 May. Thereafter Scottish ministers will respond to its recommendations with a programme to improve the planning system.

More on delivering housing

Draft Planning Delivery Advice: Housing and Infrastructure was published by the Scottish Government in February 2016, seeking responses from stakeholders by 31 March. It is somewhat premature that this consultation has taken place when the focus of this draft advice is also being considered in the independent review.

The draft advice makes the important link between housing and infrastructure, and their interdependence. Of particular relevance to solicitors is the advice in regard to establishing an effective housing land supply and the role of developer contributions in overcoming infrastructural deficiencies that prevent housing being delivered.

Evaluating economic benefit

Draft Advice on Net Economic Benefit and Planning was published by the Scottish Government in March 2016, seeking responses from stakeholders by 20 May. This draft is helpful in explaining the role of economic benefit in planning decisions. Planning applications are decided on their individual merits in accordance with the development plan and material considerations. Net economic benefit can be an important material consideration. The draft advice stresses that it is not always necessary for a proposal to demonstrate net economic benefit, particularly where it is in line with the development plan.

Importantly, net economic development is defined as the difference between the economic position if a proposal proceeds and that where it does not. In adjusting from “gross” to net economic impact, it is necessary to take account of “deadweight” and “displacement” effects. The former are where the outcomes would have occurred without the proposal, perhaps because a similar development could have been accommodated on a site the local authority has identified. The latter measures the extent to which the benefits are offset because the proposal also leads to reduced outputs or a reduction in employment at another site.

The onus is on the developer to provide supporting information in regard to economic benefit, and it will be for the local authority to evaluate this.

The importance of net economic benefit is illustrated in Scottish Planning Policy 2014, which introduced the presumption in favour of sustainable development, including “giving due weight to net economic development”. It is likely to be an increasing feature of the arguments used by developers in favour of development, and thus a focus for debate, particularly in major developments.

Alastair McKie, partner, Anderson Strathern LLP 

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