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Planning laws being inconsistently applied, legal firm finds

14 January 2010

Wide variations in practice among Scotland's local authorities are emerging in the application of the delegated powers provisions in the new planning regime, according to legal firm Brodies.

The solicitors conducted an audit of the schemes of delegation in all 33 of Scotland's local authorities, over the extent to which delegated powers are handed to planning officers to deal with smaller developments.

The Planning (Scotland) Act 2006, which came into force last September, sets out a hierarchy of levels of development with the aim of allowing planning authorities to devote more resources to assessing and progressing major developments, while allowing lower level projects – which could include housing developments of up to 50 houses – to be dealt with by officials alone.

Brodies' research attempts to gauge the extent to which the new rules contribute to the Scottish Government's stated aim to "improve efficiency in developing and determining applications".

Within certain boundaries, the legislation enables local authorities to decide on the level of delegation, in the expectation that powers would increasingly be devolved to officials in order to speed up the process.

However based on an examination of council planning policies, Brodies report that the powers are being inconsistently applied across the country, with the likelihood of confusion among the construction industry which could find that certain types of project are routinely approved in one council area but not in the next.

Three local authorities have so far given maximum delegation powers to their officers. A further eight have imposed one or two additional restrictions to those found in the regulations, covering matters such as environmental concerns or the number of objections (which latter, the report comments, is open to criticism as focusing on quantity rather than quality of objections), and 22 authorities have imposed three or more restrictions.

Difficult balance

The report concludes that the results demonstrate the "difficulty local authorities face in balancing democratic accountability in planning decision making against the desire for efficiency". It continues: "The clear implication is that delegation is appropriate. The question is why it is appropriate for some authorities, but not others?"

Among the practical implications, it adds, are that "there is such a marked inconsistency in approach to delegation across Scotland that this will put pressure on applicants, who will have to check the individual schemes to identify whether delegation applies to their application. As well as affecting who decides the application, this also has significant implications for timing. For instance, the time limit for determining an application cannot be extended by agreement if the application is determined under delegted powers. Care
will now have to be taken to ensure that the time limit for submitting a deemed refusal does not expire."

Neil Collar, head of planning at Brodies, said the result was that the system had not become any simpler. "The various changes are quite complicated and we find we have a flurry of queries from local authority clients and developers about what it actually all means."

Some political spokespeople however defended the outcome as allowing for local flexibility, and a necessary consequence of allowing policies to be determined at local level.

Authorities have to draw up a scheme of delegation and have it approved by Scottish ministers. The scheme must be reviewed every five years.

Click here to access the Brodies report.

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