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A bill not as planned

21 January 19

Planning briefing: amendments at stage 2 of the Planning (Scotland) Bill have changed its character compared with the Government's original intention, and stage 3 needs to be approached with care

by Alastair McKie

The Local Government & Communities Committee concluded its consideration of stage 2 of the Planning (Scotland) Bill on 14 November 2018 and has helpfully published an amended version of the bill (access it at www.parliament.scot/parliamentarybusiness/Bills/106768.aspx), from which the sheer volume and significance of the amendments will be readily apparent. 

The bill sets out proposed high-level changes to the overall framework under which planning operates. There are more than 230 approved amendments, with a very significant number of new duties and responsibilities being placed on planning authorities and the Scottish ministers. Early supporters of the bill must be concerned that the central improvements of the system intended by the bill appear to have been lost.

Centrepiece of the Scottish Government’s review of the planning system, the bill is intended to strengthen and simplify the system, and to ensure planning better serves Scotland’s communities and economy. In a series of seven meetings of the committee, opposition MSPs forced through changes against the wishes of the SNP minority, radically altering the bill. This article builds on my article at Journal, October 2018, 30 and focuses on some of the key amendments made since then.

Ringing the changes

Amendments to introduce an “agent of change” principle have been accepted. In effect this protects existing cultural venues (live music) and the night time economy from new development that might ultimately result in their closure due to noise impacts. New development must be responsible for any soundproofing required. 

Amendments to regulate short-term lets by declaring them a material change of use have also been passed. These are focused on the use of an entire flat or house for short-term lets and seek to address the rise in short-term letting across our cities and particularly in Edinburgh. The wording of this amendment is not particularly helpful, as it does not define what a short-term let is. If we cannot define when it has occurred with any precision, how can it be regulated?

Controversially, an amendment includes “land value capture” in relation to “masterplan consent areas”. Although not well worded, the intention appears to be to enable a local authority to compulsorily acquire land at a value based on its current use rather than a value inflated by what it might be used for in future. This is a fundamental departure from the existing compensation code for valuing land acquired compulsorily, which although disregarding the scheme planned, takes account of current use, alternative use and hope value. 

Local authorities must now consider the provision of public toilets and water refill stations as part of their local development plans, as well as the adequacy of play opportunities for young people. 

Amendments have been passed to include a 10-year sunset clause for the proposed infrastructure levy if regulations are not made to bring it into effect.

The big ticket amendment that failed to find approval at stage 2 was the introduction of a third party or community right of appeal. The Scottish Government’s position on this issue is to oppose these fundamental changes to the appeal system on the basis that stronger community engagement which the bill will deliver at an earlier stage is more constructive than adversarial third party appeals. The Scottish Government’s arguments against also include the additional time that these appeals would take, the added complexity, the centralisation of decision making and the deterrent to investment. While convincing, it is likely that further pressure will be placed by MSPs to include third party rights of appeal at stage 3.

Work needed

The bill now moves into stage 3 for consideration by all MSPs. Stage 3 is the final opportunity for MSPs to propose amendments to a bill in order to tidy up the wording and debate important issues relating to the bill. The difficulty with the bill is that given the sheer scale of the amendments approved thus far, it is not a case of simply “tidying up”. The Scottish Government will need to consider carefully amendments to restore the bill as much as it can to its original form, and MSPs will need to work collaboratively to enact a bill which strengthens and simplifies the system. 

Alastair McKie, partner, Anderson Strathern LLP

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