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System redesign

15 January 18

Planning briefing: a Government bill makes sweeping changes, some controversial, in an attempt to improve efficiency in the system, enable quality development and increase community involvement

by Alastair McKie

The much awaited Planning (Scotland) Bill was introduced into the Parliament by the Cabinet Secretary Angela Constance MSP on 4 December 2017. On 15 December the bill committee launched a call for written evidence to inform the committee’s stage 1 scrutiny of the bill. The closing date for submissions is 2 February 2018.

The bill is the culmination of a comprehensive review of the planning system which began with the appointment by ministers (on 1 September 2015) of an independent panel to review the system with a view to recommending key efficiency improvements. This review recognises the central importance to the economy of an efficiently operating planning system. 

Many of the panel’s recommendations have been carried into the bill. Following the review there has been significant stakeholder consultation, with the Scottish Government publishing its position statement on 6 October 2017.

The policy objectives of the bill are ambitious and far-reaching. They are stated to be to improve the planning system, give people a greater say in development and alter planning from being a regulator to that of an enabler of good quality development. The bill sets out to achieve these objectives over five parts, some of which are bold and controversial. 

Development plan changes

Part 1 seeks to strengthen the “development plan” as part of the “plan led system”. It does this by enhancing the status of the National Planning Framework (NPF) and making it part of the development plan. 

Planning decisions under the Town and Country Planning (Scotland) Act 1997 must be made in accordance with the development plan unless material considerations indicate otherwise. The NPF, which will have a 10-year cycle, must also contain the Scottish ministers’ planning policies. This means overall that the NPF will have greater influence in planning decisions. Where there is a conflict between the NPF and the local development plan (LDP), the most recent will prevail. 

The bill removes the requirement on planning authorities to produce strategic development plans, which are currently in place for the four city regions (Glasgow, Edinburgh, Dundee and Aberdeen). The reasoning behind this is that strategic development planning has become too complex and plan-writing may have become an end in itself, rather than focused on delivery of development. Concern has been expressed that the lacuna that will be created by this reform will not be adequately filled by local authorities working together in bespoke regional partnerships, where such partnerships will not have statutory functions and duties.  

LDPs are to be extended from a five to a 10 year duration, with the opportunity for a review should circumstances require that. LDPs must take account of the local outcome improvement plan for the area, thus aligning with community planning and the wider objectives of the Community Empowerment (Scotland) Act 2015. The process of producing LDPs will be simplified and front loaded, with a requirement on planning authorities to produce an “evidence report” which will then be examined (probably by a DPEA reporter) at a front end “gate check”. This check will be used to examine the evidence gathered to inform the subsequent preparation of the LDP. 

Examples of matters to be resolved at the gate check include agreement on the amount of housing land required from the LDP, which is frequently a topic of hot debate. It remains to be seen what the later examination of LDPs will consist of. Supplementary guidance, which hitherto has formed part of the development plan, will be removed for future LDPs. It is considered that this has become too complex and unwieldy. 

The bill introduces the right for communities to produce plans for their places (local place plans – “LPPs”), and scope for these to become part of the development plan, although the LPPs will not of themselves directly form part of the development plan. 

Part 2 provides new powers to introduce simplified development zones (SDZs), which will support development through the zoning of land. If operated this will grant planning permission by removing the need for specified types of development to apply for planning permission. It is indicated that SDZs could have the potential to unlock significant areas for housing development, including innovative delivery methods such as self-build. If established, SDZs will require to be supported by careful and early consideration of design, infrastructural requirements and environmental issues. 

Decisions and appeals

Part 3 (development management) concerns the process involving the decision on whether or not to grant permission. The bill will remove the requirement on authorities to charge a fee for publication of public notices. It will also remove the requirement for certain planning decisions to be made by full council after pre-determination hearings by committees. Interestingly the bill will widen the latitude of decision making in relation to applications for the modification or discharge of planning obligations (s 75 agreements). Authorities and the Scottish ministers on appeal will be entitled to grant applications in part or subject to amendments, bringing greater flexibility to decision making. 

Pre-application consultation (PAC) is required on applications for national and major development. PAC is to given a lifespan of 18 months: if an application is not submitted within 18 months of PAC being carried out, it must begin again. 

The bill also increases the scope for delegated decision-making by planning authority officers where development is of a minor nature or of localised impact. At the moment this is restricted to applications for “local development” (e.g. a housing development of fewer than 50 dwellings). In such instances the right of appeal is a right to apply for a review of that decision by a local review body (a committee of the planning authority). The additional types of application to be included for delegated officer decisions are those for (1) the display of advertisements; (2) certificates of lawful use; and (3) prior approval under a development order. 

Third-party rights of appeal, to enable persons other than the applicant for planning permission to make an appeal against the merits of a decision of a planning authority, have been considered but excluded from the bill. It is considered that their inclusion would create uncertainty and delays and could discourage investment. The policy memorandum suggests that the focus of the bill to encourage stronger early engagement, supplemented with LPPs, is the preferred alternative. 

The bill also seeks to clarify and simplify the duration of planning permissions, with the intention to provide clear expiry dates where development has not lawfully begun. Time limits are currently imposed by way of a direction, but that will now be undertaken by a planning condition which will allow such permissions to be extended more easily under the existing s 42 application procedure. The bill also introduces some streamlining of the processes around the service of completion notices where the development has commenced but has not been completed in a reasonable period.

Flexible fees

Part 4 deals with fees etc. The bill broadens the powers of Scottish ministers in relation to fee charging. It allows some discretionary charging for service provision under which authorities may also in some instances choose to reduce or waive fees. The changes allow for a higher fee to be set for retrospective applications, to act in part as a discouragement for breaches of planning control. 

The bill will allow increases in fines for offences in relation to non-compliance with an enforcement notice, and allow the court in setting the fine to have regard to any financial benefit that the convicted person accrued as a consequence of the breach. Additionally, it will allow planning authorities who have, as part of enforcement action, taken direct action, the ability to register a charging order on the land in order to recover their costs. 

The bill also sets out training requirements for council members who sit on planning committees or local review bodies. In terms of performance, planning authorities will have a statutory requirement to produce annual performance reports and a national planning performance coordinator will be appointed. 

Devising a new levy

Part 5 (infrastructure levy) is arguably the most controversial aspect of the bill. The intention behind it is to provide a transparent mechanism in order to raise funds for infrastructure provision necessary for land to be developed. It is proposed that the levy will capture a proportion of land value uplift. Whilst greater detail will follow in regulations (and it is stated that further work is ongoing to define an appropriate model), the bill indicates that the levy will be payable to the authority for developments within its area. 

Schedule 1 sets out what is intended to be within the core structure of the levy. Regulations will clarify how it is to be calculated; who is liable and opportunities for exemptions and discounts; ability to appeal a levy decision; and methods of collection. The bill defines “infrastructure” for the purposes of the levy, which includes (1) communications, transport, drainage, sewerage and flood-defence systems; (2) systems for the supply of water and energy; (3) educational and medical facilities; and (4) facilities and other places for recreation. It is stated that the introduction of the levy will be complemented by a review of the policy relating to planning obligations (s 75 agreements) and the relationship between the two, to ensure that excessive or double charging does not occur. 

It is understood that the decision of the Supreme Court in Aberdeen City & Shire Strategic Development Planning Authority v Elsick Development Co Ltd [2017] UKSC 66 (25 October 2017), which illustrates the difficulties in local authorities operating a charging scheme for strategic infrastructure, may have influenced ministers towards a decision to adopt a levy mechanism. A similar levy has been used in England & Wales and was introduced by the Planning Act 2008 as a tool for local authorities to help to deliver infrastructure to support the development of their area. The introduction of the levy in England & Wales has not been without its problems and may be overhauled. Clearly there are lessons to be learned from that experience south of the border for the rollout of the levy in Scotland.

Alastair McKie, partner, Anderson Strathern LLP

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