Circular 5/2007 published by the Scottish Executive contains a new Notification Direction. Notification Directions have been a feature of the planning system for a considerable length of time. The basic premise is that certain types of development are potentially so significant that the Scottish Ministers should have the final say on whether the Local Planning Authority is entitled to grant planning permission or whether the application should be referred to them for them to determine, usually following a public inquiry.
Notification of Planning Applications
The new Notification Direction is significant in a number of respects. One of the most important changes is the type of developments which have been added to the list of notifiable applications. With effect from 1 July 2007 any planning application which is the subject of an environmental impact assessment must be referred to the Scottish Ministers if the Planning Authority intends to grant permission. This requirement is potentially very significant since EIA applications are the largest and most complex which local authorities deal with.
In the case of development in which Planning Authorities have an interest there have been some further significant changes. These cases cover planning applications by Local Authorities, applications relating to land owned by Local Authorities or where there is some existing or potentially future relationship with the applicant. If such an application is contrary to the development plan or has been the subject of a significant body of objections then the Planning Authority cannot grant permission for the development without going through a couple of further procedural steps. Firstly if, having considered the objections, it intends to grant permission it must inform all of the objectors and give them an opportunity to make further comments. The Planning Authority must give at least fourteen days for comments to be received and then take account of them in deciding whether it remains minded to grant planning permission. On the assumption that it still intends to grant permission having taken account of those further comments, it must then notify the Scottish Ministers.
Scottish Ministers Powers
The Scottish Ministers and their predecessors have for a long time been able to call in planning applications. They now also have the ability to recommend the inclusion of a condition in the proposed planning permission.
The new Circular continues to emphasise that call ins should be the exception rather than the rule, although there is now a larger list of circumstances were Scottish Ministers may intervene. Circumstances listed include where the proposals raise issues of national importance, where permission is proposed to be granted contrary to the advice of national advisers, eg SNH or SEPA, where Ministers are not convinced of the Planning Authority's justification for doing so, where there is a significant conflict with national policy, and where a decision has not been properly justified as a reason for departing from the development plan, where insufficient attention appears to have been paid to legitimate planning concerns and where the Planning Authority's decision might be seen to have been influenced by a potential conflict of interest.
The notification requirements have been bolstered by the new Direction which sets out the information which must be submitted with any application referred to the Ministers. Many of the items listed (eg copy of the planning application and all relevant supporting documents) were required under the old regime but there are now more stringent requirements in relation to explaining how objections and observations have been taken into account and the reasons for proposing to grant the planning permission. This is particularly the case in situations where the Planning Authority has an interest in the development where an explanation is required as to why, if appropriate, it was not possible or practical to include the development in the relevant development plan and also details of any alternatives that the Authority considered other than pursuing the development proposed in the planning application.
The changes to the Notification Direction in particular are significant because of the inclusion of EIA developments. There are further enhanced scrutiny requirements relating to developments in which local authorities have an interest and the new procedures for dealing with these types of application impose further hurdles which will result in delays to determining such applications. Scottish Ministers have, through the various changes made, put in place a system which will result in opportunities for more robust scrutiny and public involvement but may have a negative effect in terms of the length of time it takes to determine applications.