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The Planning Bill: a case for further development

16 July 18

Planning briefing: with the Planning (Scotland) Bill having passed stage 1, this article highlights the calls made for amendments at stage 2 and the Scottish Government’s response

by Alastair McKie

The Planning (Scotland) Bill was laid before the Scottish Parliament on 4 December 2017, and is currently working its way through the legislative process. The bill contains a wide range of measures intended to strengthen the planning system’s contribution to inclusive growth and empowering communities. The way the bill seeks to reshape the system is of particular importance to all engaged with property development.

The bill sets out proposed high-level changes to the overall framework under which planning operates, with the detail to be contained within secondary legislation and policy guidance. The bill has been examined by the Local Government & Communities Committee, which published its stage report 1 on 17 May 2018 and which, overall, recommended that the Scottish Parliament agrees to the “general principles” of the bill. 

This article identifies and comments on some of the possible amendments to the bill that may come forward.

The purpose of planning

The committee recommended that the purpose of planning is included within the bill. Scottish Government (SG) has responded on the basis that there is no consensus on what such purpose should be, and that the approach to date has to been to enshrine that purpose in policy. SG will consider further the best way to articulate the purpose of planning in the bill and will bring forward appropriate amendments at stage 2. 

National Planning Framework

There was also a welcome for the proposal to incorporate Scottish Planning Policy and the National Planning Framework (NPF) and put them on a statutory footing. The committee recognised concerns arising from the NPF becoming part of the development plan, but recommended that enhanced parliamentary scrutiny is needed.

Removal of strategic development plans

This is one of the more controversial proposals. There are concerns as to how the “gap” following their removal will be filled. The committee was not convinced of the benefits of removal and recommended that the current statutory framework for regional planning should not be repealed unless a robust substitute mechanism is provided. SG will, however, look to introduce at stage 2 a clear duty for local authorities to work together in strategic planning, while retaining flexibility.

Local development plans

The committee was content with the proposal to move local development plans (LDPs) to a 10-year cycle to align with the NPF, but remained to be convinced that removing supplementary guidance would simplify LDPs. Such removal may result in greater use of local guidance without statutory weight, which may not be a desirable outcome. The committee agreed to the removal of the main issues report for LDPs, and that the new evidence report and gate check mechanism provide a mechanism to address concerns. In particular, the gate check mechanism should provide for greater involvement of stakeholders with hearings.

Local place plans

Local place plans (LPPs) are plans that communities may bring forward to reflect their aspirations for the future places they live in. The committee was concerned with the relationship between LPPs and LDPs. It was content that SG would amend the bill to ensure that authorities must “take these into account”, but was concerned that if minded an authority could choose to ignore them.

Third party/equal right of appeal

There has been a longrunning debate on this issue, and the committee identified a wide range of individuals and organisations who hold passionate views either for or against. Supporters argue that it will lead to a more robust plan-led system; opponents that it will lead to delays and uncertainty. The committee identified an imbalance in the system whereby the applicant can appeal decisions that have been taken in clear accordance with the development plan. It believed that in a plan-led system appeals should only be allowed in certain circumstances. 

SG’s response was that stronger community engagement at an early stage was more constructive than adversarial appeals. Adding further procedures for conflict onto the end of the planning process would be a disincentive to early positive engagement. In strongly opposing third-party appeals, SG confirmed that it understands and respects the views of those who seek to invest in needed development. Introducing third-party rights of appeal would put Scotland at a competitive disadvantage and put additional obstacles in the way of investment and inclusive growth. 

Agent of change

This relates to a recognition of the important contribution music venues make to cultural life and the economy, and that it is unreasonable for those moving into a new development to lodge complaints about pre-existing noise levels that can ultimately result in closure of such businesses. SG’s commitment to include this principle into the next NPF is welcomed, with the chief planner having provided guidance in the interim in regard to live music venues. The committee considered that this principle should be extended to theatres. SG is not seeking to have the agent of change principle included within the bill. 

Simplified development zones

Whilst seeing some merit in simplified development zones (SDZs), the committee noted that their predecessors, simplified planning zones, had not met with much success, and remained to be convinced that they would lead to a sea change in proactive development. 

Development management 

Part 3 of 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 such 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 be 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).

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. 

The committee was broadly in agreement with the above changes but would seek an increase on the powers of authorities to decline to determine applications. SG has no plans to extend this power and considers that authorities should continue to have the discretion to decide whether to decline to determine an application. It is considering the possibility of charging for appeals as part of its fee review.

Fees

The committee welcomed the provisions of the bill regarding fees, subject to further regulations that may in time permit authorities to move to full recovery for development management. A timetable is sought on SG’s proposals for bringing forward its final fees structure. SG has indicated that an amendment will be brought forward to set an upper limit to any surcharge for retrospective application as a percentage of the original fee. It will consult on the new fee regime but at this stage in unable to provide a defined timeline.

Performance of planning authorities

Section 26 of the bill requires authorities to prepare a report on the performance of their planning functions and also authorises ministers to appoint a national performance co-ordinator. The committee saw no requirement or justification for the bill’s proposals for performance and recommended that s 26 of the bill be removed. SG does not agree; it does not consider that the Planning Performance Framework goes far enough and there remain unaddressed concerns about performance. SG also sees an important link between a move to full costs recovery and performance being put on a statutory footing. 

Enforcement

The committee was content with the strengthening of enforcement, which includes an increase in fines and the introduction of charging orders enabling authorities to recoup their costs when they take direct action to remedy planning beaches. SG states that effective enforcement is important to support trust in the system.

Training for taking planning decisions

Whilst the committee agreed that councillors should attend training, it did not agree that it should be mandatory as set out in s 24 of the bill and considered that training should be regarded as part of the CPD programme for councillors. If these amendments were not made, the committee considered that all planning decision-makers (including councillors and ministers) should be subject to the same training requirements. SG does not intend to amend these provisions of the bill, as they have been widely supported by stakeholders and there is a need to increase trust in the system and ensure that those taking decisions are trained in a consistent way.

Infrastructure levy

Part 5 of the bill (infrastructure levy), arguably its most controversial aspect, was considered in the previous briefing at Journal, April 2018, 28. The intention is to provide a transparent mechanism in order to raise funds for infrastructure provision necessary for land to be developed. The committee in supporting the principle referred to SG’s response that this would not be a “game changer” but that it would be more effective in some circumstances than other arrangements. SG has indicated that this is a complex area, and intends to prepare draft regulations in 2021 or 2022 with implementation from 2023 onwards. It is not SG’s intention to collect and redistribute levy funds from one area to another, and it will propose an amendment to remove para 14 of sched 1 relating to aggregating levy income. In terms of regulation-making powers, SG has confirmed that it will provide a sunset clause to mandate that if powers for a levy are not enacted within 10 years of the bill coming into force, then it will lapse.

Balance between national and local decision-taking

The committee welcomed SG’s commitment to amend the bill at stage 2 to ensure that all ministerial directions as a consequence of the bill and the Planning Act 1997 are published. SG is content with this approach.

Alastair McKie is convener of the Law Society of Scotland’s Planning Law Subcommittee 

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