The Planning etc (Scotland) Act 2006 introduced a new system of development planning, with local plans being replaced by local development plans, and structure plans being replaced by strategic development plans for the Glasgow, Aberdeen, Dundee and Edinburgh city regions. While the new local and strategic development plans will serve largely the same function as their local plan and structure plan counterparts, the change is more than a simple change of name. There are significant reforms to the way in which plans are to be prepared and scrutinised before adoption. However, it would appear that enhanced efficiency may have come at the expense of transparency and effective decision making. It has never been more important for parties with an interest in development planning to participate in the development plan process at an early stage to ensure that their interests are reflected in the plan.

Guidance on development planning

The regulations implementing the changes set out in the 2006 Act are set to come into force on 6 April 2009. The Scottish Government has issued Circular 1:2009 on Development Planning, to guide us through the significant procedural changes which are now to be adopted.

The themes of efficiency and front-loading the system which underpin the whole package of 2006 Act reforms are reflected in the new guidance on development planning. Local and strategic development planning authorities will prepare a development plan scheme at least annually, setting out the programme for preparation and review of the development plan. This will include a participation statement, setting out proposals for consultation and public involvement in the plan preparation process. To increase the efficiency of the consultation process, there will be a move away from draft and finalised draft plans. Rather, authorities will issue a Main Issues Report (MIR) upon which comments will be invited.

Main Issues Reports

For local development plans, the MIR will set out the authority's general proposals for development in the area, proposals on where development should or should not occur and highlight how those proposals vary from the extant development plan. The new Circular tells us that the authority's approach to comments on the MIR should not be one of defending their proposals, but one of openness to different ideas. For example, the MIR should include genuine alternatives. The principal function of the MIR is to encourage engagement in the process. This is the stage at which stakeholders must now participate in the detail of the planning process to respond to proposals, before the draft local development plan is issued. The Scottish Ministers anticipate that parties will enter into the consultation process in good faith, since, beyond the MIR consultation, the opportunity to shape the plan may be less effective than under the current system.

Making representations

Following publication of a proposed plan, there is a period of six weeks in which representations may be made. The Scottish Ministers will view the proposed plan as representing the planning authority's settled view on what the content of the plan should be, the assumption being that all controversial elements of the plan will have been tested through consultation responses to the MIR. The Ministers' faith in the MIR consultation process is such that representations to the proposed plan may not exceed 2000 words. Representations may be accompanied by supporting information, but it is anticipated that that information will be limited. There is no automatic opportunity for parties to expand on their representation later in the process. It is essential that parties become involved in the development planning process at an early stage, to ensure that they are able to submit a thorough and robust representation in relation to their own or any competing site at this stage.

In effect, it is unlikely that there will be any opportunity to augment your case beyond the information lodged with your initial representation to the development planning authority. The regulations are clear that, even if new information becomes available or there is a material change in circumstances between the date on which your initial representation is made, and the date on which recommendations are made, there is no right to make that information available to the Reporter. It is for the Reporter to determine whether he fully understands the competing issues before him and whether additional information is required. The ability to challenge a decision by a Reporter who fails to take a material consideration into account at the time of making recommendations is a matter which will no doubt be tested through the courts in due course. However, it is now more important than ever before, that any party with an interest in development planning is geared up to submit full representations in relation to an allocation at an early stage in the process.

Reporter's findings

One further reform to the examination process is the manner in which a Reporter will report his findings. There is no longer a requirement for the Reporter to respond to each representation, but can now, if he chooses to, simply deal with issues which may be common to more than one party. Where a number of objections to a proposal raise complicated but different issues it is possible that a Reporter may not fully understand or address each representation. While representations may be similar, such a system of reporting could fail to reflect apparantly small, but potentially significant, nuances between parties' cases. The new system would make it difficult to identify such a problem because the Reporter would not be required to say what he thought about each individual representation.

Confidence in the system

If the Scottish Government's objective of maintaining the primacy of the development plan in the development management process is to be achieved, we must have confidence in the quality of the development plans themselves. It is difficult to see how any process, which dilutes the ability of parties to scrutinise effectively or make representations in relation to development plans, or which provides little transparency in relation to whether those representations have been addressed, will help to achieve that goal. It has never been more important for parties with an interest in development planning to participate in the development plan process at an early stage to ensure that their interests are reflected in the plan.

To view the Scottish Government's circular 1:2009 on development planning, click here