The Planning etc. (Scotland) Act 2006 ("the Act") received Royal Assent on 20 December 2006. It will be brought into force by regulations, which are anticipated to be introduced by the Scottish Ministers over the next eighteen months.

This article describes the principal changes which the Act will have on development management and the process of planning applications. It highlights issues which both developers and local planning authorities may wish to address during consultation periods relating to the enabling regulations.

  • The Act distinguishes three categories of development – national, major and local developments.
  • The Scottish Ministers have power to pass regulations to assign classes of developments into major or local categories. Pre-application consultation will be mandatory for certain classes of development.
  • Regulations may be introduced to permit applicants for certain categories of development to be heard before a Committee of the determining authority at a pre-determination hearing.
  • The period for initiation of planning permission will reduce from five to three years.
  • Outline planning permission will be replaced by 'planning permission in principle' with different procedural requirements.
  • Developers must give notice of the initiation and completion of works permitted under a planning permission to the relevant planning authority.

New Hierarchy of Development
The Act distinguishes three categories of development, with proposed developments being designated as national, major or local developments. The Act provides the Scottish Ministers with authority to draft regulations setting out the different procedures for submission, processing and determination of applications falling within each category.

National developments are those which are considered by the Scottish Ministers to be of strategic national importance and will be identified in the National Planning Framework (see the first edition of the Planning and Environment e-bulletin for more detail on the NPF).

It is anticipated that major developments will comprise only the largest planning applications which, while not of national importance, will have been identified in the relevant development plans.

Local developments are likely to comprise those which have been excluded from the former categories and are not regarded as minor developments, such as householder applications or small commercial developments. It is not clear how extensive this category will be.

Persons appointed by planning authorities under a formal scheme of delegation will decide on whether to grant planning permission for local developments. Crucially, the right of appeal for such applications is restricted to review of a decision by the planning authority who appointed the decision maker in the first place – the substantive decision of the planning authority is final, subject to legal challenge of certain procedural matters in the decision making process.

The type of development to fall within each tier of the new hierarchy, the procedural requirements for applications falling within each class and the extent of appeal permitted within each category will be determined by the Scottish Ministers by way of regulations which must ultimately be passed by the Scottish Parliament. It is anticipated that draft regulations will be published with the next eighteen months, although no timetable has yet been confirmed by the Scottish Ministers. This may lead to significant changes in the way in which developers prepare their planning applications, with the potential requirement to undergo pre-application consultation and preparation of a pre-application consultation report, with consequent impact on the timescale and cost of promoting a new development. Any party with an interest in development management should be aware of opportunities to participate in consultation exercises linked to preparation of these regulations to influence the way the system will work in practice.

It is anticipated that the new development hierarchy, coupled with a review of existing permitted development rights and restructured schemes of delegation, will allow planning authorities to more efficiently manage planning applications and focus resources on larger or more controversial proposals.

Development Management
Development management replaces 'development control' as the term of art used to describe the submission and determination of applications for new development. This change of name, together with a number of procedural changes to the planning application process, is hoped to improve the often negative perception of the Scottish planning system as inhibiting rather than enabling development.

Changes include the introduction of pre-application consultation with both the planning authority and other stakeholders to be identified by future regulations. The key stages of such consultation (depending on the type of application) include submission of a proposed application notice to the determining authority twelve weeks prior to submission of an application. In the period between submission of the proposed application notice and the principal application, there will be a programme of consultation, culminating in a pre-application consultation report. The degree of detail required in the proposed application notice and the extent of consultation will also be determined by regulations.

The nature and volume of information required in the pre-application phase of development may depart significantly from the type of information which developers currently submit with applications for outline or full planning permission. Local authorities and developers alike should participate in consultation exercises linked to secondary legislation regulating these issues to ensure that the detailed regime, when it comes into force, is manageable, effective and cost and time efficient.

Both developers and local planning authorities should participate in future consultation programmes by the Scottish Executive, to influence the type of developments which are to be categorised as national, major or local developments.

Any party with an interest in local development should respond to future consultation requests to influence the nature of developments for which pre-application consultation will be mandatory and the nature and detail of information which must be made available at the pre-application stage.