The Scottish Government has recently published five consultation documents on proposed amendments to the planning system. These consultations are open for comment until 22 June.

The amended Scottish planning system has been in operation since 2009 and the consultations contain a mixture of further amendments and options for more detailed reform. For those involved in bringing forward development, the entire suite of consultation documents will be of interest.

Fees

The headline change being put forward in the consultations is to significantly increase the fees which planning authorities are allowed to charge for processing applications for planning permission. Fees in Scotland have remained at relatively low levels when compared to those in England and Wales but this is now set to change, with the justification being that the service provided will improve commensurately.

The maximum fee chargeable is to increase more than sixfold from a previous high of £15,750 to £100,000 (£50,000 for planning permission in principle). The intention is to link the increased fee to performance although no firm proposals are put forward to achieve this aim. Instead, views are sought on the best way to link the two. Reference is made to the Planning Performance Framework published alongside the consultations which sets out the parameters against which performance will be judged. Views are also sought on whether larger fees should be spread across key development stages, linked to a processing agreement.

The fee changes will apply to applications for planning permission, advertisement consents and Certificates of Lawful Use or Development and the resulting fees are intended to cover the full application process including pre-application discussions, the preparation of any planning agreement and the costs of neighbour notification and advertisement.

The calculation of the eventual fee is based on the fact that the first unit (or first 100m2) of any development is the most costly given the need to determine site suitability, with subsequent units (or floorspace) being less labour intensive and therefore cheaper. New fee categories of retail / leisure and electricity generation appear for the first time.

Selected fees as follows:

* £200 for no new floorspace/ up to 50m2

** does not cover Electricity Act applications (ie over 50MW)

Applications for renewal of permission and subsequent applications made within 12 months are to be charged at 50% of the fee otherwise chargeable. Likewise the fee for Section 42 applications to amend a condition will be limited (£50 for householder applications, £250 for local and £500 for major applications).

The intention is that the responses to the consultation will be used to "refine" the draft Statutory Instrument, with the eventual Regulations being laid in Parliament in the autumn. A coming into force date has not been set.

Development Delivery

This consultation is very brief and contains no firm proposals, rather it seeks respondents' views on the present system and options for change. There is a recognition that the ongoing economic climate has greatly impacted on the delivery of development and that some of this is down to infrastructure need.

Respondents are asked for their views on how effectively the system is working, particularly whether it currently supports or hinders development and whether there are additional measures which could be taken. The consultation goes on to question the efficacy of the present system of section 75 planning obligations, focussing on the delays which can be inherent in the negotiated approach. It then asks whether there is any scope to consider an alternative system of development charging - ie similar to the English Community Infrastructure Levy.

Clearly there is a long way to go before any changes would be able to filter through into the system, but the consultation represents a real chance to seek to influence the eventual policy position.

Development Plan Examinations

The present system of Development Plan Examinations is acknowledged to still be "bedding-in" and this consultation seeks preliminary views on options for change. Some planning authorities have made it clear they are unhappy at the compulsory nature of Reporters' changes to plans - resulting, as they see it, in a plan which is no longer theirs. Criticisms have also been levelled against the length of time which some development plans are taking to progress through the examination process. The consultation asks whether there are better options for securing the primacy of the plan-led system. These range from making minor administrative changes to streamline the process, to reinstating planning authority discretion to accept recommendations, and, most radically, to removing independent examinations altogether and giving back full control for development planning to local authorities. Respondents are asked to comment on the potential options and give reasons for their preferred approach.

Part of the thrust of the reformed planning system has been to cut down on the contentious element of procedures, including development plan-making. The right of parties to be heard at an Inquiry has already been removed, with the present set-up allowing Reporters discretion as to the method of examination. The result has been, so far, a much reduced public forum element for development plans with only limited topics being considered for any kind of oral process. The fear is that removal of independent examination by the DPEA altogether could lead to a lack of any developer input in plan-making and result in the rubber-stamping of plans with no real opportunity for comment, dialogue or meaningful interaction.

Rights of Permitted Development

This consultation sets out simplified categories of permitted development rights for non-householder development and follows on from a consultation carried out last year. A draft Amendment Order is included which is intended to be laid before Parliament later this year.

The consultation sets out the proposed amendments which cover diverse categories such as farmers markets, limiting the right to create new agriculture and forestry access tracks, provision for electric vehicle charging points and allowing extensions of public buildings such as schools, hospitals and care homes.

Miscellaneous Amendments

Since the inception of the reformed planning system, certain procedural aspects have come in for criticism. Whilst the guiding principle behind the reforms was to streamline and simplify the system, some unintended consequences of drafting have in fact achieved the opposite effect. This consultation seeks to introduce amendments which rectify these issues, and in some cases, asks respondents to suggest their preferred approach.

Removal of Section 42 Applications
from Pre-Application Consultation
Chief amongst the areas of complaint has been the requirement to carry out the mandatory 12 week Pre-Application Consultation (PAC) process for applications that sought only to amend conditions to an existing planning permission (Section 42 applications). It is proposed that all Section 42 applications will now be exempt from the PAC requirement. This will cut down on what many have seen as an unnecessary bureaucratic burden, albeit the consultation document recognises that some section 42 applications may have more significant effects.

Changes to Neighbour Notification
The requirement to notify owners and occupiers of neighbouring premises has always been a part of making a planning application. The consultation proposes several amendments to the requirements, by deleting the need to notify when the neighbouring premises are a road or when there are no premises on the land.

The 2009 amendments made the planning authority, rather than the applicant, responsible for carrying out neighbour notification, but with the cost of this then being recovered from the applicant. What is now proposed is that the increased total application fee (as detailed above) will cover any advertisement and postal costs.

Delegation of Local Authority Interest Cases
The procedures brought into force in 2009 introduced set rules for the delegation of applications for decision by planning officers. One of the exceptions to the standard delegation of all local applications is in relation to applications in which the local authority themselves have an interest (whether financial or if made by a Member). This resulted in a number of applications, which would otherwise have been delegated due to their uncontroversial nature, having to be heard by Committee, with the attendant resource and timescale implications that brings. The consultation proposes that this restriction is lifted, allowing planning authorities to amend their schemes of delegation accordingly.

Amendments to Local Review Procedures
Amendments are proposed to bring the Local Review procedures in line with those that apply to applications that carry with them the right of appeal to Scottish Ministers. The disparity that presently exists is that the period for determination of appeal cases can be extended by agreement between the applicant and the planning authority with this then determining when an appeal on grounds of non-determination can be taken, as well as when the clock starts ticking on the appeal period. Local review cases have no such flexibility and it is proposed to give applicants and the planning authority more scope to agree extensions without then losing the right to a local review.

In addition, there is a proposal to extend the period within which the Local Review Body can issue their decision. This is to be increased from 2 to 3 months and it is hoped this will reduce the number of automatic deemed refusals which result.

Appeals - Minor Additional Information
A change is proposed to the Appeals Regulations to allow Reporters to seek minor additional information without triggering the need for full consultation. A Reporter will have discretion whether to require such requests be subject to the full procedural requirements or not.

AMSC - Application Requirements
Criticisms have been raised in relation to the procedural requirements which attach to an application for approval of matters specified in condition. Such applications are subject to the neighbour notification, advertisement and formal decision notice requirements, even though some may be very minor or technical. Respondents are asked whether it would be appropriate to scale this back to cover traditional "reserved matters" such as landscaping, access and design details only, with other condition approvals being possible by an exchange of letters.

Contact Us

For further information, please contact:

Gillian Simpson
Director of Planning
0131 228 7281
gillian.simpson@mms.co.uk

Fiona Gordon
Senior Solicitor
0131 228 7298
fiona.gordon@mms.co.uk

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