Major changes contained in the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008 come into force this year; partly on 6 April, and partly on 3 August. “Major” is the appropriate word because these Regulations coincide with the introduction of the new planning hierarchy, which will create the distinction between Major and Local Developments (see our previous e-update on the Hierarchy of Developments).
If you are thinking of making a planning application, should you do so now, under the familiar regime, or wait until after 6 April? Will it be advantageous to avoid being categorised as a Major or Local Development, or will your place in the hierarchy favour your proposals? The principle differences in how post-6 April applications will be treated are set out below, to help you make that decision. Pre-application consultation (in force 6 April)
Pre-application consultation with the local community must be carried out for a minimum period of 12 weeks before the application can be lodged. The planning authority must be given prior notice of the intention to lodge an application, setting out the intended consultation arrangements. The consultation must involve every community council in whose area any part of the application site is situated, and must include at least one public event. Not only is this a process which adds time to a planning application, it also requires an applicant to do a lot more work up front than it currently has to. At the time of the application, a pre-application consultation report will have to be included in the application pack.
There is no formal requirement to carry out formal preapplication consultation with the community, although developers of schemes likely to attract the attention of the local community would be well advised to consider the advice in PAN81 “Community Engagement”.
Design and access statements (in force 3 August)
A design statement will contain details of design principles and concepts that have been applied to the development, including how any policies relating to design in the development plan have been taken into account, and what steps have been taken to ensure that design takes account of context. A design and access statement will include, in addition, details of how disability access has been catered for, both in terms of policy and in the context of the development. A design and access statement will be required for all Major and National Developments, subject to very limited exceptions.
A design statement (but not an access statement) will also be required for local developments affecting: a World Heritage Site; a conservation area; a historic garden or designed landscape; a National Scenic Area; the site of a scheduled monument; or the curtilage of a category A listed building.
Pre-determination Hearings (in force 3 August)
Only Major or National Developments which are significantly contrary to the Local Development Plan will be subject to the requirement for a hearing before the application is determined and any decision then ratified by full Council. This could create delays, depending on the relevant authority’s committee cycles.
Planning Appeals (in force 3 August)
Key points to note are that an appeal against failure to issue a decision may only be made after four months, and that the time period for making planning appeals is reduced from six months to three.
Local Developments which are delegated under Schemes of Delegation Regulations 2008 will no longer be capable of being appealed. Instead an applicant can apply to the Local Review Board for a “review” of the officer's decision. A Local Review Board will be comprised of not less than three local councillors. Such a review must be carried out within three months of the decision, or, in the case of failure to issue a decision, three months of the expiry of eight weeks from the date of the application. If an applicant is unhappy with that decision, the only appeal left to him is on grounds of law by way of judicial review.
DELEGATION OF DECISIONS
Most Councils operate schemes of delegation which allow some applications to be decided by planning officers alone. Schemes of delegation made under the Local Government (Scotland) Act 1973 will continue to operate. Applications delegated under these schemes will continue to be subject to normal planning appeal rights whether or not they have been considered at planning committee.
In terms of the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2008 a planning authority shall prepare and publish a scheme of delegation, in which they are to describe the classes of Local Development which are to be determined by an appointed officer. In the event of a refusal or inappropriate condition, there is no right of appeal other than to a Local Review Body, discussed below. Where Local Development applications are not delegated under this scheme or where they have been delegated under a different scheme, applicants may still appeal in the usual way.
If you are on the brink of submitting an application for a Major Development, you may wish to consider whether you want to avoid the minimum three month delay which the preapplication consultation requirement will create. Equally, if you are concerned that your development may be classed as Local, expediting your application will mean that you avoid your application being delegated to a planning officer to decide, with consequent loss of normal planning appeal rights.
After 6 April, you need to understand what type of development you are dealing with in order adequately to provide in your contracts for appropriate timescales for obligations to submit applications, and to make provision for the types of appeal/review available.