Act going to plan

Draft regulations seek to define the various levels of planning application in the hierarchy under the 2006 Act

The Journal, January 2008, page 39

It is over a year since the Planning etc (Scotland) Act 2006 was enacted. However, its much awaited implementation remains to the estimated timetable published in June last year http://www.scotland. gov.uk/Publications/2007/06/19143600/1 . The Scottish Government has now issued its first raft of draft regulations for consultation.

Currently all planning applications are determined using the same process, regardless of scale or complexity. One of the fundamental elements of the reforms is the proposed hierarchy of developments. Part 3 of the 2006 Act inserts into the Town and Country Planning (Scotland) Act 1997 a new s 26A, which provides a new statutory basis for development management. Measures to restore a logical order and streamlined structure to the planning system are introduced through a hierarchical system classifying development types for planning applications. These classes, based on the scale and complexity of the development, are national, major and local developments. Each level will have different procedures for the submission, processing and determination of applications. However, the 2006 Act does not define the criteria for the three classes; this is being taken forward by Scottish Ministers in the draft Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2007.

National developments

Whilst John Swinney has announced the criteria for national developments, these will be taken forward by ministers through the proposed second National Planning Framework (“NPF2”). The 2006 Act puts NPF2 on a statutory footing: designation of a project in NPF2 will establish the need for it in planning terms, with only its detail left to be considered at a public inquiry. The criteria for projects which may be identified as national developments are those which:

• make a significant contribution to Scotland’s sustainable economic development;
• strengthen Scotland’s links to the rest of the world;
• deliver strategic improvements in internal connectivity;
• make a significant contribution to the achievement of climate change, renewable energy or waste management targets;
• are essential elements of a programme of investment in national infrastructure; or
• raise strategic issues of more than regional importance.

In essence, national developments will be infrastructure projects. The proposed public consultation on NPF2 has  been recently issued.

Major developments

Major developments will require mandatory 12-week pre-application consultation with the community and, in some cases, further enhanced scrutiny. The intention behind creating this class is principally to prevent delay in development. To do this, thresholds have been set for major developments that reflect the scale and complexity of the development. The schedule to the draft regulations lists seven proposed classes, together with the thresholds to qualify as a major development in that category. This includes any development that requires an environmental impact assessment; where housing development comprises 100 or more units, or the area of the site is, or exceeds, two hectares; and for business and general industry, storage and distribution, where the gross floor space of the development exceeds 20,000 square metres or the area of the site is or exceeds four hectares.

The statutory period for determining a planning application under the existing regime is two months, irrespective of the size and complexity of the development. It is intended to extend the period to four months for major developments. A further proposal has been put forward that in cases of major development the applicant and the planning authority could agree a realistic timescale in a “processing agreement”. In the event that no processing agreement is in place, the statutory determination period of four months would apply. The draft regulations regarding timescales will be discussed further in the consultation paper on development management procedures.

Local development

The draft regulations state that if the development does not qualify as a national development nor meet the threshold criteria for any of the classes of major development, it will be considered a local development. However, ministers have the power to require a local development to be reviewed as a major development. In addition, local authorities will be entitled to put in place detailed schemes of delegation allowing officers or elected members to review development proposals. The effect of a case being delegated is that where an applicant appeals the decision, this will be to a local review body rather than the Scottish Ministers which the current system allows for. The appeal procedure has not yet been published.

Other consultations

Other current consultations in respect of the 2006 Act include draft regulations on development planning; development plan examinations; and enforcement. Despite regulations being legislative proposals, their examination should not be left to lawyers – especially planning lawyers! There may be some consultation apathy amongst clients, but this now is the real opportunity for all engaging in the planning system to participate in the reform process and ensure that the new system delivers the change that is required. Copies of all the current consultation papers are available from the Scottish Government’s website http://www.scotland.gov.uk/ Topics/Planning/Modernising .

Sarah Baillie, Associate, Planning & Environment, Anderson Strathern

NATIONAL FRAMEWORK: THE PROJECTS

On 8 January ministers proposed these infrastructure projects as “national developments”: those supporting the Commonwealth Games in 2014;

• grid reinforcements supporting renewable energy;
• a replacement Forth crossing;
  
• enhancements to Edinburgh and Glasgow airports and the access to the Grangemouth freight hub;
• the Rosyth container terminal;
  
• the Scapa Flow container transhipment facility;
  
• and the Glasgow Strategic Drainage Scheme.