The Planning etc (Scotland) Act 2006 introduced some of the biggest changes to the Scottish planning system for over a decade. It may have felt to anyone involved with planning that the changes would never actually arrive. However, on 3 August the implementing regulations came into force making wholesale changes to the way that the planning system operates. A few of the more significant changes are highlighted here.

Planning Hierarchy

  • All developments now fall into one of three categories, either national, major or local. National developments are those listed within the National Planning Framework 2 and will be comparatively rare. Developments include a range of different types, including residential developments in excess of 50 units.
  • Anything which is neither national nor major is local.
  • The category of development determines how an application is processed and significantly, the type of appeal which will be available.

Development Management Regulations

Pre-Application Consultation

  • Pre-application consultation is now a requirement for all national and major developments. No application for such development can be lodged until at least 12 weeks have elapsed from the submission of a pre-application notice.
  • Pre-application consultation includes consultation with the local community and this must involve at least one public event which must be advertised in advance.
  • Although many large developers already engage in pre-application consultation as a matter of good practice, it has now been put on a statutory footing and the likelihood is that planning authorities will, in the first instance at least, seek to achieve the best possible pre-application consultation currently undertaken as a model to be rolled out.

Neighbour Notification

  • Neighbour notification is no longer the responsibility of an applicant. Responsibility has passed to the planning authority.
  • Those in receipt of notification now have 21 days in which to lodge representations.
  • In order to minimise the judicial review risk from an error or omission in notification, anecdotal evidence suggests that some developers are preparing notification documentation and passing it to the planning authority to deliver.

Processing Agreements

  • Processing Agreements are now available for national and major development. These are voluntary rather than mandatory and are intended as a project management tool. They will cover matters such as the nature of reports to be received, consultations to be put in hand and the date of determination.
  • There can be no appeal against the non determination of an application within the timescale agreed for determination.
  • In order to keep the right to appeal against non determination alive after the expiry of the period in the processing agreement, a written agreement should be entered into with the Planning Authority and must be within 6 months of the expiry of the 2 or 4 month period for determination. Should no written agreement be entered into within this timescale, the right to make such an appeal will fall away.

Determination Periods

  • Local developments will remain at 2 months while major and national developments will now be 4 months to more accurately reflect the timescale for determination.

Schemes of Delegation

  • Each planning authority now has an approved scheme of delegation. This dictates which applications can be dealt with under delegated powers without reference to a planning committee. Each scheme is different but, in general, each will set out the circumstances in which delegated applications have to be referred to the committee. This is generally linked to level of representations received.
  • Anecdotal evidence suggests that applicants may seek to encourage representations in order to trigger a committee decision and a right of appeal to the Scottish Ministers.

Types of Application

  • Outline planning permission has been replaced by planning permission in principle.
  • Reserved matters have now been swept away, instead there are matters to be approved. Each of the matters to be approved requires to be the subject of an application to the planning authority and must be accompanied by a planning fee.

Timescale for Commencement

  • The decision notice on all permissions will now include a period for a commencement of development of 3 years. In the case of detailed permission this is 2 years less than previously.
  • There remains an opportunity for planning authorities to extend or reduce the period as appropriate. In the case of windfarm development for example it may be that the lack of availability of a connection on to the grid will provide grounds for an extended period of 5 years as was previously the case.

Appeals

  • The period for lodging an appeal for developments has been reduced from 6 to 3 months for all applications determined after 3 August.
  • Local developments which have been refused under scheme of delegation will carry a right of appeal to a local review body only. The local review body will comprise 3 or more members of the Local Authority albeit these members will not have had sight of the application previously.
  • Major and national developments will continue to carry a right of appeal to the Scottish Ministers.
  • In terms of local reviews and planning appeals, there is an emphasis on front loading of the system and all information and supporting documents should be lodged with a Notice of Appeal. Only in exceptional circumstances will additional information be considered.
  • The right to be heard, which was a fundamental characteristic of the previous system, has now been removed. Now, an appellant or planning authority may suggest a particular form of disposal but the Reporter will have the final say.
  • It is prudent to consider a legal audit before submission of an appeal, to ensure that a full and robust submission has been made.
  • Precognitions at appeal inquiries are to be restricted to 2,000 words, therefore, there is likely to be a greater emphasis on supporting documentation in order to meet this threshold.