Planning etc. (Scotland) Act 2006
Introduction
The Planning etc. (Scotland) Act 2006 (“Planning Act”) represents one of the most important reforms in the planning system in recent years and provides the legal framework in which the planning system will be administered by central and local government. The Planning Bill was passed by the Scottish Parliament on 16 November 2006 and received Royal Assent on 20 December 2006.
A timetable for the roll out of the Planning Act has been published by the Scottish Executive and it is expected that the provisions of the Planning Act and the provisions of the relevant statutory instruments will be fully operational in the course of 2008/9. The Planning Act does not repeal the Town and Country Planning (Scotland) Act 1997 and other existing planning legislation. Rather, it operates by way of replacing and substituting new sections into the current Acts.
This Ezine identifies those provisions which may be of value to professional advisers and other interested parties. Please note that this Ezine is not in any way to be taken as a comprehensive analysis of the Planning Act and should be considered as an outline briefing note and not as legal advice.
Purpose
The Explanatory Notes which accompany the Planning Act confirm that the Act will be a mechanism for the delivery of a modernised planning system and is to underpin the commitment to improve the planning system, to strengthen the involvement of communities, speed up decisions, reflect local views better and to allow quicker investment decisions. Clearly the challenge will be to create a planning system which properly balances these sometimes competing aims and objectives.
The Planning Act also imposes a duty on planning authorities to contribute to sustainable development.
The Planning System
The Planning Act provides a hierarchical system by categorising developments into three different types:-
National Developments
The National Planning Framework (“NPF”) sets out a strategy for Scotland’s long-term spatial development. The first NPF was published in April 2004 as a non-statutory planning policy document and outlined a long-term vision to 2025 for Scotland, including key infrastructure needs required to meet this vision. The Planning Act now puts the proposed second NPF (“NPF2”) on a statutory footing to help deliver developments of national importance.
The framework is to be used for the designation of national developments within areas such as strategic transport, water and drainage, waste management and energy-related infrastructure. The NPF is to be reviewed and revised every 5 years with a duty on the Scottish Ministers to prepare and publish a participation statement outlining the consultation process. NPF2 is currently in its consultation stage with a participation statement having been published on 1 February 2007. The draft for consultation is due to follow this in Autumn 2007.
Authorities must have regard to the terms of NPF2 when producing their local and strategic plans.
Major and Local Developments
Developments which do not fall within the definition of national development will be classified as either major or local. These classes are not yet determined and will be set by regulations. During the consultation on planning reform it was thought that major development would encompass schemes such as large-scale housing development and shopping centres and local development would cover all smaller scale proposals.
Each class of development will have its own procedural requirements, rather than the “one size fits all” approach for applications which exists currently. These new procedures will be set by secondary legislation due in 2008 and are intended to streamline the system, giving more scrutiny to developments which have the greatest impact on their locality and simplifying the procedure for those with the least.
Development Plans
The Planning Act retains the primacy of the development plan in all planning decision making but replaces structure plans and local plans with a single tier system of local development plans for most areas. For what we understand will be the four “City Regions” of Glasgow, Edinburgh, Dundee and Aberdeen, there will also be strategic development plans. The strong legal presumption in favour of development that conforms to the development plan will include not just local development plans and strategic development plans but also any supplementary guidance accompanying these plans. Additionally, national developments identified in NPF2 will have “development plan status” There is a statutory requirement that strategic and local development plans be reviewed and updated every five years. All interested parties will need to ensure that they regularly monitor and participate in the preparation of these plans, to ensure that their development aspirations are properly taken account of and their interests are protected from adverse development.
Time Limits
Planning permission under the current arrangements lasts for 5 years. Under the Planning Act, planning permission will lapse after 3 years unless the development is begun within that time.
It is anticipated that the time limit for lodging a planning appeal may be reduced from 6 to 3 months although this will be brought in by secondary legislation.
Appeals
Appeal procedures are to differ depending on the category of development. Major developments will still be determined and appealed as at present. That is, the application will be decided by the planning authority and any appeal dealt with by the Directorate for Planning and Environmental Appeals. Local applications, however, will primarily be decided by Planning Officers under a scheme of delegation and appeals (or reviews, as the Act terms them) will be to a body of elected members. The only appeal available from this review body will be on a point of law. These arrangements raise concerns as the planning authority are effectively judge in their own cause and it remains to be seen what the procedure for this category of the appeals will be.
Process Agreements
There remains the intention to allow the use of process agreements for major development proposals whereby the developer and the planning authority agree a realistic timetable for the planning application to be determined, including the involvement of statutory consultees. This is to be developed further in the coming 18 months and should help to minimise delay and provide a more robust timescale to the planning process. It should be noted, however, that the cost of reaching this agreement is to come out of the Developer’s pocket.
Section 75 Agreements
Section 75 agreements are increasingly used by planning authorities to secure developer contributions in money or in kind to offset the infrastructural impacts and requirements of developments and where necessary to provide bonds for reinstatement. The remit of Section 75 Agreements could soon change due to the proposed introduction of a new tax, the Planning Gain Supplement. This does not form part of the Planning Act but is being consulted upon by the UK Government and is expected to become law by 2009. See below for a fuller discussion.
Under the existing arrangements a Section 75 Agreement once entered into cannot be discharged unilaterally. Under the Planning Act an application may be made to the planning authority to modify or discharge planning obligations. Further, there is provision for a developer to offer planning obligations in a unilateral Section 75 Agreement, which would be used in circumstances (eg. most likely in an appeal situation) where the planning authority will not reach agreement with the developer/landowner. This will make the Scottish system similar to that of England and Wales. There is also an appeal procedure available whereby a Section 75 Agreement may be modified or discharged in certain circumstances. These circumstances are yet to be clarified.
Pre-Application Consultation
The Planning Act introduces a duty on a prospective applicant for planning permission for certain prescribed classes of development (classes to be confirmed by regulation) to comply with pre-application procedures. A “proposal of application notice” giving general details of the development and a plan of the site, together with the applicant’s contact information is submitted by the applicant and requires to be responded to by the planning authority within 21 days. There is a 12 week period between submission of the notice and the application itself. The planning authority can then specify further procedure and require the notice to be served on designated parties. If there is no response from the planning authority within 21 days it can be assumed that no further consultation is required. The idea is to encourage community engagement and ensure the impacts of the development upon the surrounding community are addressed. There are obvious implications in terms of commercial confidentiality for such pre-application consultations and the public process entailed therein.
A further spin-off from the greater inclusiveness of the new system is the introduction of Good Neighbour Agreements. These are to be entered into directly between the Developer and the community and can set out the standards for how the Developer will run the development. It is intended that these agreements will give the local community some say over how bad neighbour developments are operated but it remains to be seen just how widely they are used. The legislation does not specifically limit their application to bad neighbour developments meaning they can effectively be requested for any development.
Third Party Rights of Appeal
Third party rights of appeal were not created and the only opportunity for a third party challenge remains by way of a petition to the Court of Session in order to set aside a decision not on its merits but on a point of law.
Enforcement Action
The new Act substantially strengthens planning authorities powers in relation to enforcement. Developers will have to submit a notice of commencement and completion of development to the planning authority. This will act as a trigger for the authority to check that any necessary conditions have been complied with and flag up when work is taking place on site. Planning authorities will have the option to issue fixed penalty notices for breaches of planning control as an immediate deterrent. The Act also brings in the power to issue temporary stop notices which can be used prior to taking formal enforcement action. It remains to be seen just how keen authorities will be to use this power, as if their grounds are not proved, they could be faced with a developers claim for compensation.
In a change to the enforcement appeal procedure, there will no longer be a ground of appeal that permission would have been granted. Even if an appeal is successful, permission will have to be applied for retrospectively. Fees for retrospective permission will be raised to a punitive level to encourage applications to be made prior to development being carried out.
Planning Gain Supplement ("PGS")
PGS is proposed as a self-assessed tax based upon the increase in land value attributable to the granting of planning permission. The UK Government is currently consulting on its introduction and it would apply to the UK as a whole. The calculation would apply the PGS rate (suggested to be as high as 20%) to the difference between the value of the land in its current use and the value of the land with full planning permission. PGS is to apply to “residential and non-residential land” except home improvements. The principle behind the tax is to use a proportion of the revenue gained (currently estimated at 70%) to support local and national infrastructure for future development, administered through local authorities. It is expected that PGS, if it proceeds, will be introduced in 2009.
The Planning Act does not specifically make any reference to PGS but does not preclude it being introduced alongside the amended provisions for Section 75 agreements.
If the PGS is introduced as proposed, Section 75 Agreements are likely to play a reduced role in terms of being used as a mechanism for delivering major infrastructure. However, an issue remains in terms of the demarcation between what would be controlled under a Section 75 Agreement and that which would be covered under PGS. We anticipate that there will be consultation and guidance from the Scottish Executive although the Explanatory Notes to the Planning Act indicate that the new Section 75 empowers a planning authority to use Section 75 Agreements for the provision of infrastructure. This would appear to overlap with the proposals for the PGS.
Conclusions
The Planning Act will have a profound impact on all developments, specifying new categories of development and changing the way applications are handled and assessed against an entirely new format of development plan. It is vitally important for all interested parties to become conversant with these changes in procedure and decision-making as they come into force.
Anderson Strathern have one of the largest Planning and Environment teams in Scotland. For further guidance on the implications of reform of the planning system, or indeed any other planning issue please contact one of the team.
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