In this eNewsletter:
 Planning Contacts  Alastair McKie Direct Dial: Email:   Sarah Baillie Direct Dial: Email:
Caroline MairDirect Dial: Email: |
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Consultation on the implementation of the In recent months there has been a flourish of consultations emerging from the Scottish Government on the implementation of the Planning etc. (Scotland) Act 2006 (2006 Act). This is the second e-zine in which our Planning team considers some of the proposed changes for development planning and management, which the planning and development industry should consider responding to. Consultation on the Planning HierarchyCurrently all planning applications are determined using the same process regardless of scale or complexity. One of the fundamental elements of the proposed reforms to the planning system is the proposed hierarchy of developments. Part 3 of the 2006 Act inserts into the Town and Country Planning (Scotland) Act 1997 a new section 26A which provides a new statutory basis for development management. Measures to restore a logical order and streamline structure to the planning system are introduced through a hierarchical system of categorising development types for planning applications. These are based on the scale and complexity of the development resulting in three different classes - national, major and local developments. Each level will have different procedures for the submission, processing and determination of applications. The 2006 Act does not define the criteria for the three development classes, which is now being taken forward by Scottish Ministers through consultation on the discussion draft of the second National Planning Framework (“draft NPF2”) and the Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2007 (“Draft Hierarchy Regulations”). National Planning Framework 2As advised in our November e-zine, John Swinney announced the criteria for national developments, the details of which have now been published in draft NPF2. Public consultation of draft NPF2 began on 8 January. During the consultation period the Scottish Government will be hosting national discussion conferences, the details of which can be obtained from The Planning Directorate. Draft NPF2 outlines Scotland’s spatial development to 2030. It principally builds on the Government's economic strategy by setting clear priorities for investments in infrastructure to support sustainable economic growth. As well as providing details of a development strategy and spatial perspectives; commitments and strategies regarding infrastructure such as transport, energy, waste and flooding, the draft NPF2 identifies nine specific projects to be proposed as national developments:
The 2006 Act will put the finalised version of NPF2 on a statutory footing and designation of a project as a national development will establish the need for it in planning terms, with only its detail left to be considered at a public inquiry. The consultation on draft NPF2 provides an opportunity for all stakeholders to engage in the discussion as to how Scotland should develop and grow spatially. The consultation period runs until 15 April. Thereafter it will be considered by the Scottish Parliament.
Draft Hierarchy RegulationsMajor developments The intention behind creating a major development class is principally to prevent delaying development. To do this, thresholds have been set for major developments that reflect the scale and complexity of the development. The schedule to the draft hierarchy regulations lists seven proposed classes, together with the thresholds to qualify as a major development in that category. This includes any development that requires an environmental impact assessment; where housing development comprises 100 or more units; or the area of the site is, or exceeds, 2 hectares; and for business & general industry, storage and distribution – where the gross floor space of the development exceeds 20,000 square metres or the area of the site is or exceeds 4 hectares. The statutory period for determining a planning application under the existing regime is two months irrespective of the size and complexity of the development. It is the intention of the draft hierarchy regulations to extend the statutory period to four months for major developments. A further proposal has been put forward that in cases of major development the applicant and the planning authority could agree a realistic timescale which would be agreed in a ‘processing agreement’. In the event that there is no processing agreement in place, then the statutory determination period of four months would apply. The 2006 Act makes provision that pre-application consultation can be mandatory for certain classes of development. It is the intention that major developments will require mandatory 12 week pre-application consultation with the community and, in some cases, further enhanced scrutiny. The draft regulations regarding timescales and consultation are considered in the Development Management Consultation Paper on development management procedures. Local developments The draft hierarchy regulations state that if the development does not qualify as a national development nor meet the threshold criteria for any of the classes of major development, it will be considered a local development. However, Scottish Ministers have the power to require a local development to be reviewed as a major development. In addition, local authorities will be entitled to put in place detailed schemes of delegation allowing officers or elected members to review development proposals. The effect of a case being delegated is that where an applicant appeals the decision, this will be to a local review body rather than the Scottish Ministers which the current system allows for. The appeal procedure has not been published as yet.
Consultation on development plan examinationThe volume of objections and the nature of the current local plan inquiry process is often criticised as being the cause of significant delay in the adoption of a local plan. The 2006 Act introduces examinations as the means of testing the issues arsing from representations on strategic development plans (SDPs) and local development plans (LDPs). The 2006 Act also allows Scottish Ministers to make regulations, which includes the procedures to follow at examinations; what is to be assessed in examinations; and what matters may be referred to in the assessment. The consideration of these matters is taken forward in the current consultation on draft regulations regarding Development Plan Examinations (“draft DPE Regulations”) which follows on from the consultation regarding development planning (see November e-zine). The principal aim of the draft DPE regulations is to introduce new procedures that will reduce the time taken for examinations in order to deliver relevant up to date plans whilst at the same time ensuring planning issues are properly examined. Appointment of person to examine the plan The 2006 Act requires Scottish Ministers to appoint a person to hold an examination where there are outstanding representations to SDPs and LDPs; strategic development planning authorities (SDPA) have not agreed the content of the SDP and have submitted alternative proposals; or Scottish Ministers consider an examination to be appropriate. The appointment will be advertised and notice will be served, where appropriate, on the SDPA; local planning authorities; and people who have outstanding representations. The draft DPE Regulations also propose that the advert and notice should include a statement that the SDPA or planning authority has, or is to, provide the appointed person with a summary of the issues it considered should be assessed at the examination and information on where such summary or documentation connected to the examination can be viewed. Methods and procedures
It is expected that no further information or evidence would be submitted to the appointed person unless there are aspects he requires further information on. The draft DPE regulations also propose that the appointed person could also seek further information from other bodies (e.g. SNH) rather than be limited to representatives and planning authorities and their respective witnesses. The appointed person will determine the form the examination is to take. Where further evidence is required the appointed person will inform parties how this should be provided – in writing, by hearing or inquiry. Whilst the 2006 Act allows for the examination of both SDPs and LDPs to comprise (and include a combination of) the written submission process, hearing and inquiry sessions, the draft DPE regulations do not actually prescribe the detailed procedures for each of these elements. Instead it is the Scottish Government’s current intention that guidance, in the form of a code of practice, will set out these details. However, as there is scope for the draft DPE regulations to formalise the procedures, which could provide more certainty and transparency for stakeholders, the Scottish Government is seeking views as to whether the use of a new code of practice is supported or whether there is a preference to prescribe this detail in regulation. Scope of examination and assessment It is proposed to limit the scope of matters to be assessed in any examination to issues raised in representations, a summary of which will have been prepared by the local planning authority/SDPA. The appointed person could add to or re-define this list but this is still limited to the original issues raised in a representation. If multiple representations are made on one policy or proposal, the appointed person may choose to deal with these as a single issue and will produce conclusions and recommendations on each issue, rather than on each individual representation. The draft DPE regulations do not define the matters to which the appointed person could base his conclusions and recommendations on and views are sought as to whether this is the correct approach. However, along with other key documents, it is the expectation that the appointed person will rely only on the information contained in or referred to in initial representations. It will therefore be essential for parties to state the entirety of their case within the representation at the outset.
CommentA copy of all the current Scottish Government consultations can be viewed here. This is now the real opportunity for everyone engaging in the planning system to participate in the reform process and ensure that the new system delivers the change that is required. You should consider the potential impacts of each consultation on your sector and respond accordingly. The consultations will close on 21 March, 4 and 15 April. Further informationOur next ezine will be on draft Scottish Planning Policy 3: Planning for Housing (SPP3) which was published for consultation on 7 January and the Development Management Consultation Paper which was published for consultation on 11 January. For further information on this or any planning issue, please contact Alastair Mckie or Sarah Baillie or your usual contact within the Planning and Environment team. |
