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Sorted: the Planning Bill

15 July 19

Planning briefing: the Scottish Government has succeeded in deriving a workable Planning (Scotland) Bill at the final parliamentary stage, from the heavily amended version that emerged from stage 2

by Alastair McKie

Stage 3 of the Planning (Scotland) Bill was completed on 20 June and the bill will shortly become an Act. This marks a significant milestone in the Scottish Government’s (SG) reform of the planning system, although the Act leaves much of the detail to regulations. 

Given the sheer scale, complexity and confusion of the stage 2 amendments, SG is to be congratulated on unscrambling them and making the Act workable. The overarching changes to the system are apparent on the face of the bill, and I set these out as it is important that all property practitioners know of them.

Development plan

The development plan, which has primary status in deciding applications, will now consist of both the local development plan (LDP) prepared by planning authorities and the National Planning Framework (NPF) to be prepared by SG and approved of by the Parliament. Both will have a 10-year lifespan as opposed to the current five years. The NPF will incorporate a new set of national planning policies, given “development plan status”.

The LDP will have an accelerated process for completion, anticipated to take around two years. One of the principal consultation opportunities (main issues report) will be removed and the LDP will be underpinned by a reporter examining the planning authority’s “evidence report”. There are concerns in regard to the potentially limited opportunities at this stage to test the evidence, and that the opportunity to test important matters later, during the LDP examination, may also be diminished or lost. 

For the first time there will be a statutory purpose for planning, to “manage the use of land in the long-term public interest”. Interestingly, the NPF will have national housing targets, and preparation of LDPs will require consultation with children and young people. Strategic development plans (SDPs) will be abolished, as will supplementary guidance. Transitional arrangements will be made to ensure stability. 

Regional spatial strategy (RSS)

Every planning authority must prepare an RSS either itself or in combination. RSSs will not form part of the development plan, but in identifying locations for strategic development will have a significant influence on development. Again there are concerns regarding the opportunity to test the evidence on which RSSs are based.

Local place plan (LPP)

Prepared by community bodies (e.g. a community council), these will set out their particular vision for development in their area. Although they must have regard to the LDP and the NPF, they may not align with the former but will be a material consideration in any planning decision. The bill was amended to include a requirement on authorities, before preparing an LDP, to invite local communities to prepare an LPP.

Development management

Several points should be noted. Planning authorities may establish short-term let control areas. The use of a dwelling for providing short-term lets in such an area (including through Airbnb and similar platforms) is deemed to involve a material change in use for which planning permission is required, and if not obtained enforcement action may follow. 

The health effects of national and major developments must also be considered.

Masterplan consent areas will allow a planning authority to plan and cosset future development more proactively.

Applications for “major development” must be notified by the authority to each local councillor, MSP and MP.

The scope of delegated decisions is extended to include approvals under development orders, certificates of lawfulness and advertisement consent. This, in turn, means that appeals against these matters will be decided by the local review body and not a reporter appointed by ministers. It will be lawful to impose time limits by deemed or express condition, which restates the pre-2009 position and will allow s 42 applications in effect to extend the life of a permission by seeking to vary such a condition. 

There is a specific requirement for noise sensitive developments (e.g. residential) to include measures to mitigate noise impacts from an existing activity (noise source).

Further limitations are placed on the ability to make repeat applications following refusal.

Miscellaneous

The Act introduces an “infrastructure levy”, a charging scheme (local development tax) that can require a developer/owner to make contributions towards a range of infrastructure considered to be impacted by their development. This will apply in addition to contributions sought under s 75 agreements (planning obligations), though double charging is excluded. 

Greater flexibility is allowed in varying and discharging s 75 agreements.

There are a raft of provisions relating to planning performance, including a national planning “czar”, a requirement for annual reporting by each authority, and compulsory training for council members involved in planning decisions. 

Mediation is empowered in relation to the preparation of LDPs and in assisting the determination of planning applications.

The Act may be considered a triumph for common sense in terms of what is now included and what was left out following voting. Third party or community rights of appeal were excluded; to have included them would have put Scotland on a less favourable footing than the rest of the UK, contrary to our economic interest. They might have led to almost all planning decisions being appealed, which would undermine local decision making. The Act provides additional duties of consultation and engagement, and for the preparation of LPPs. The amendment requiring the establishment and protection of “culturally significant zones” was not passed; it might have undermined urban regeneration projects. Statutory protection of the green belt, by prohibiting development unless the authority is satisfied that it cannot take place on brownfield land, was not supported on the basis that it would be too inflexible; it is also a matter for the development plan. 

Will the Act fulfil its original objectives of strengthening and simplifying the system to ensure planning serves better the needs of Scotland’s communities and economy? Only time will tell. 

Alastair McKie, partner, Anderson Strathern LLP

 

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