On 28 March this year, the Scottish Government announced a raft of consultations in respect of the planning system.  The consultations are partly a response to various issues which have arisen as a result of the reforms contained in the Planning etc. (Scotland) Act 2006.  But these consultations are also a response to the difficult economic times in which we continue to find ourselves. Many of the proposed changes are intended to improve efficiency of decision making, or to remove certain development from the decision making process altogether, in order to drive economic growth.

Five consultations have been announced:

  • Fees for planning applications;
  • General Permitted Development Order;
  • Miscellaneous amendments to the planning system;
  • Development delivery; and
  • Development Plan examinations.

Fees for planning applications

It has long been the view of planning authorities in Scotland that fees for processing planning applications should be increased.  The recent Audit Scotland Report entitled “Modernising the Planning System” concluded that:

“The funding model for processing planning applications is becoming unsustainable as the gap between income from fees and expenditure increases, putting greater pressure on already constrained Council budgets.”

According to the Audit Scotland Report the gap between income from planning application fees and the expenditure required to process those planning applications had increased in real terms in the six years up to 2009/10 from £6/£7 million to £20 million.  As a response to this dramatic disparity between income and expenditure, the Scottish Government has proposed significantly increasing planning application fees.  Key proposals are that:

  1. The fee maximum will be set at £100,000 with general increases proposed for residential, retail and energy generating development;
  2. Fees for Section 42 applications should be proportionate to the size of the development (a Section 42 Application is an application to develop land without compliance with planning conditions previously attached, made under section 42 of the Town and Country Planning (Scotland) Act 1997); and
  3. A new 50% fee is to be introduced for the renewal of planning permissions which have not yet lapsed.

Of course, in the current economic climate, any proposal to increase planning application fees is likely to be met with opposition.  Consequently, the Scottish Government has attempted to grease the tracks somewhat by requiring planning authorities to improve the efficiency with which they process planning applications.  Payment of fees in instalments is also a possibility, especially where processing agreements have been entered into.  Where an increase in efficiency does not occur without valid reason, the planning application fees could be reduced as a penalty.

It is generally agreed that planning application fees in Scotland are too low, especially compared with fees in England and Wales.  The City of Edinburgh Council has been quite vocal in the successes that it has had using processing agreements.  Processing agreements offer the opportunity very early on for the parties to sit around a table to agree a timescale in which to process the application.  Both parties can then resource the matter appropriately and know exactly what is expected and by which date.  If adopted, the Scottish Government’s encouraging suggestion to incorporate staggered fee payments for major applications into processing agreements should give developers even more comfort in respect of applications for major developments.

Notwithstanding the positive comments made by the Scottish Government that increases in fees must be matched by better and more efficient decision making, exactly how this is to be judged remains one key area of concern for developers.  More information on how the Scottish Government plans to measure the performance of planning authorities would be welcome.

General Permitted Development Order

This consultation on the terms of the General Permitted Development Order is an attempt by the Scottish Government to reduce the amount of red tape for minor, uncontroversial types of development.  The Scottish Government considers that to require planning applications in matters where the planning system can add little or no value introduces unnecessary costs and delays to development.

Several proposals are outlined in this consultation covering many areas from local authority development to shops and financial/professional services.  Some key proposals are:

  • A new Class 7A is proposed, which would grant permitted development rights for the extension or alteration of a shop or a financial services establishment.  Development would not be permitted if the extension or alteration would exceed the gross floor space of the original building by either 25% or 100 square metres (whichever is the lesser).
  • Class 33, in respect of development by local authorities, currently permits local authorities to construct dwellinghouses.  It is proposed to amend this class to permit “residential development” so that flatted dwellings are included.

Miscellaneous Amendments to the Planning System

Although this particular consultation is somewhat humbly entitled “Miscellaneous Amendments to the Planning System”, the consultation contains proposals which are significant.

  • One result of the changes which were introduced by the 2006 Act is that, where a Section 42 application is made in respect of the “major” development, the applicant requires to go through pre-application consultation procedures lasting a minimum of 12 weeks.  This is required even where the changes sought are relatively minor, such as an extension of time in which to implement the planning permission.  The intention of the Scottish Government is to exclude Section 42 applications from the pre-application consultation procedures altogether.
  • Appeals to Local Review Bodies must be made within three months of the two month deadline to determine the planning application passing.  There is currently no mechanism for the planning authority and applicant to agree to extend the two month period in which to determine the application.  In some cases applicants are therefore having to appeal against “deemed refusals” within five months of lodging their application because there is no end in sight to the determination by the appointed officer and no scope to regularise the timeframe for a decision.  The Scottish Government has proposed changes to the planning regime such that local reviews on the grounds of non-determination can be sought after the prescribed two month period, or after any extended period as may be agreed in writing between the planning authority and the applicant.  

The changes proposed in respect of section 42 applications will be particularly well received.  The Section 42 application procedure, much like an application for planning permission, will still require publicity and opportunities for public comment, which is more proportionate to the sorts of modifications often sought by this mechanism.

Delivering development

This consultation does not propose any changes to the planning regime.  The consultation invites views on the efficacy of the current processes in delivery of development and infrastructure.

One key theme of this consultation is to consider more innovative methods of development and infrastructure funding, such as “Development Charges”.  As the Scottish Government notes, Development Charges can operate in a number of different ways and may be referred to as an “infrastructure levy” or perhaps a “roof tax” (a “roof tax” may be, for example, a sum to be contributed for each house constructed under a planning permission).  There are a few variations on the theme but broadly speaking this method may involve front funding by developers calculated by reference to an independent examination of the infrastructure needs of the local authority area.  Such front funding may be on a “roof tax” basis, although other forms of funding are also possible.

Development Plan examinations

The consultation invites views on the new Development Plan process and how it may be improved.  The Scottish Government invites views on four options:

  1. Simply to improve current practice by promotion of good practice and improved project management.
  2. Greater discretion for the planning authority to set aside recommendations of Reporters where the planning authority can provide clear reasons which demonstrate why the recommendations were not in the interests of the local area.
  3. To restrict the scope of an examination of the Development Plan, for example to enable the planning authority to define the matters to be considered through the examination process.
  4. To remove independent examination of the Development Plan altogether.

There are already concerns around removing independent examination in accordance with the fourth proposal.  For example, the recent independent examinations of the North Lanarkshire Local Development Plan and the Glasgow and Clyde Valley Strategic Development Plan have demonstrated the potential for significant changes to be made which must increase confidence in the transparency of the Development Planning process.

The Scottish Government invites responses to these consultations by 22 June 2012.  All of the above consultations can be accessed here.