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Planning to deliver

20 February 17

The Scottish Government is now consulting on its promised “root and branch review” of the planning system, with a particular focus on delivering new housing

by Alastair McKie

On 10 January 2017, Scottish ministers published their long-awaited consultation on the future of the planning system. The outcome will be used to inform a new Planning Bill and related secondary legislation, programmed for the end of this year.

The paper follows the independent review commissioned in 2015, and consults on a range of regulatory and policy measures to improve the planning system. The then Planning Minister Alex Neil MSP promised a “root and branch review”, and I do not think that those who work in or are affected by the planning system will be disappointed by the mantle that has been picked up by his successor Kevin Stewart MSP.

Although not exclusively concerning housing delivery, this is a key component of the reforms.

While the paper is well focused across four central themes under the headings below, there will be criticisms that its 20 proposals are somewhat lacking in detail, particularly around some of the more radical ideas that will require legislation. Consultees have until 5 April 2017 to respond.

The planning system decides what is built and where. It involves taking decisions, often with a political flavour and balancing the respective interests of parties. Rarely if ever is everyone satisfied with the outcome, and there are perceived to be winners and losers. Speeding up the process in the interest of economic efficiency runs the risk of reducing public participation and the quality of decision-making. This is a difficult balance to strike.

Making plans for the future

Proposal 1, the alignment of community planning with development plans, is to be welcomed and will ensure that the interests of statutory consultees (police, fire, health and social care) are fully taken into account through a statutory link between development plans and community planning. I anticipate a duty on planning authorities to consult and have regard to the response.

Under proposal 2, controversially, strategic development plans (SDPs) are to be abolished. I think this is in part due to issues of synchronisation between SDPs and local development plans (LDPs) complicating matters and leading to delays in development plans being progressed and adopted. SDPs fulfil an important strategic role, particularly regarding cross-local authority boundary planning issues. This role will be filled by “regional partnerships” to support collaboration and improvements to strategic development and infrastructure priorities. It remains to be seen how the entire gap created by this abolition will be properly filled.

Proposal 3 concerns improving national spatial planning and policy. Scotland’s National Planning Framework 3 (NPF) is already on a statutory footing, but has been criticised for not being sufficiently focused and meaningful. Going forward, it is intended to be a more inclusive document, incorporating transport priorities and the climate change agenda. It will identify regional priorities, which is important if SDPs are abolished. It is also contemplated giving the NPF and Scottish Planning Policy stronger status. This could allow development plans to avoid repetition of planning policies that are common across Scotland.

Proposal 4 would bring about “stronger” LDPs, although that would appear to mean much reduced scrutiny by ministers, consisting of a “gate check” and perhaps a light touch examination to consider unresolved issues. The main issues stage would be removed. Some will disagree that this allows enough independent scrutiny of the LDP, and the proposal to have plans in a 10-year as opposed to five-year cycle appears not to have addressed the potential need for earlier review should, for example, the housing supply require to be increased.

At proposal 5 the consultation suggests ways of making plans deliver, including allocation of a site being equivalent to planning permission in principle, although that is fraught with difficulties. A much stronger assessment of the suitability of sites is proposed.

People make the system work

Under proposal 6 the community would have a right to prepare its own “local place plan”. There will be concerns over circumstances where this plan and the LDP may conflict, with a requirement to set out how differences can be resolved, and if they cannot, which would take precedence. A new duty is proposed to consult community councils in preparing LDPs.

Commendably, proposal 7 would include children and young people in plan-making by way of a statutory duty on authorities to consult more widely, including by methods likely to involve them.

Proposal 8 concerns improving public trust. It is proposed to increase pre-application consultation for national and major developments, and enhance consultation for developments not allocated in the development plan. Fees for retrospective applications would be increased, as would fines for offences related to enforcement action, with provision for recovery of costs where the authority requires to enter land and undertake direct action.

Proposal 9 considers but excludes a third-party right of appeal to objectors, on grounds that this would be a disincentive to development. Controversially, there is a proposal to extend the function of local review bodies (made up of at least three councillors) to planning decisions in respect of major development. Currently they are restricted to local development (e.g. of less than 50 dwellings) where a planning officer under delegated powers has taken the decisions. There has been a range of criticisms of their role on grounds of transparency, right to participate fully, and adequacy of their reasons particularly when compared to those of reporters appointed by ministers, who currently undertake this role.

Building more homes and delivering infrastructure

Proposal 10 has importance, as it relates to being clear about how much housing land is required, due to the debate that frequently ensues between planning authorities and developers, holding up and complicating development plan processes. It is considered that the NPF has a role to play in assisting clarity on regional and local aspirations for housing, to ensure that land requirements are considered and settled at an early stage.

Under proposal 11, which relates to closing the gap between planning consent and delivery of new homes, all major applications for housing would be accompanied by appropriate information on development viability. This will involve further expense, and scrutiny that might require disclosure of commercially confidential information. Planning authorities are to be encouraged to perform a greater role on delivery and unlocking obstacles to development. This might for example involve the use of compulsory acquisition powers.

Proposal 12 involves releasing more “development ready” land for housing. Support is given for extending the use and scope of simplified planning zones, rebranding them as “ready planned” or “consented development” zones. It is recognised that this would require developers to be willing to frontload their investment and contribute to scheme preparation, including masterplanning, with the incentive of an uplift in the value of the land and possibly an earlier return on investment.

Embedding an “infrastructure first approach” to development, proposal 13 recognises that it is often such constraints (e.g. transport, sewage and drainage or educational) that inhibit early housing development delivery. These items are usually at the developer’s cost, with authorities ever looking to impose related planning obligations. It is proposed to establish a national infrastructure and development delivery team, although not through legislation, with representatives from Scottish Government, local government, industry and other public agencies. This team would work in close liaison with regional partnerships. There are clearly concerns that in the absence of a statutory framework, such arrangements would be difficult to co-ordinate.

Proposal 14 seeks a fairer and more transparent approach to funding infrastructure. Existing arrangements for securing developer contributions (under planning agreements) are being revisited, with a possible new community infrastructure levy (CIL). Criticisms are made of the timescales for concluding agreements, and it is important to note that the Law Society of Scotland, in evidence to the independent panel, considered that some benefits would flow from a common style of planning agreement. There are inherent difficulties with collecting contributions towards strategic infrastructure, as highlighted in Elsick Development Co Ltd [2016] CSIH 28. CIL has been criticised in England and one should not underestimate the resources required to set up a charging scheme and keep it under review. There would still be a role for planning agreements in relation to site-specific contributions. CIL does not overcome the issue of front funding, but may provide greater confidence to local authorities to front fund necessary infrastructure and recover the costs. The consultation also proposes restricting the ability to modify or discharge terms of planning agreements.

Proposal 15 involves innovation in infrastructure planning. A group consisting of relevant parts of Scottish Government, heads of planning, directors of education and Scottish Futures Trust has been established to examine funding and delivery of new schools, which is particularly problematic in terms of front funding, recovery of contributions and forecasting. There is to be a closer link between land use and transport planning, and recognition of the role of green infrastructure to support quality of life and sustain the environment. Interestingly, the duty under s 72 of the Climate Change (Scotland) Act 2009, that development plan policies require new developments to install and operate low and zero carbon generating technologies, may be removed as it is not thought to add value where building standards are driving down emissions.

Stronger leadership and smarter resourcing

Proposal 16 recognises the importance of developing planning skills and delivering outcomes. Planning is important to society and needs to “improve its reputation as a visionary profession that creates great places for people”. Leadership is central to this, and education is stated to have a vital role to play, including opportunities for graduates.

Headed “Investing in a better service”, proposal 17 links to the tandem consultation to increase planning fees, against the backcloth that the maximum fee in Scotland is 10% of that in England & Wales. There is a move toward full recovery of planning authorities’ costs, including a higher maximum fee; higher fees for retrospective applications; charging for appeals and reviews; charging for statutory consultees; discretionary charging for pre-application consultation; and removing the “free go” for revised or repeat applications. The consultation is silent on charging for completion of planning agreements.

Proposal 18 relates to improving performance, and development industry concerns that applications are not processed quickly enough. Progress has been made under the Planning Performance Framework, but there is no proposal to introduce financial penalties for underperformance, despite the proposed increase in fees.

Under “Making better use of resources: efficient decision making”, proposal 19 embraces greater use of permitted development rights and possible changes to the Use Classes Order for digital communications, agriculture support, allotments and community growing schemes, along with possible alignment of consents procedures.

Proposal 20 involves better use of technology, using 3D visualisations as a tool in planning. A digital task force will be set up to examine opportunities and IT solutions. 

Alastair McKie is a partner with Anderson Strathern LLP

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