Development Management Ezine

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The purpose of this e-zine is to serve as a reminder that the deadline with regard to the Scottish Government’s Development Management consultation is drawing closer – 2 April 2008.  This consultation paper is likely to have the greatest practical impact for those engaging in the planning system as it sets out significant proposed changes to the practical arrangements for applying for and obtaining planning permission.  Planned far-reaching changes are set out in draft regulations entitled the Town & Country Planning (Development Management Procedure) (Scotland) Regulations (“DMR”) which will eventually replace the Town & Country Planning (General Development Procedure) Order 1992.

Enhanced scrutiny
A significant element of the new development management procedures relates to new inclusion measures.  This follows concerns which led local communities and others to seek a right of appeal where planning permission is granted for proposals to which they object.  The previous administration set out in its White Paper a range of enhanced scrutiny measures including:

Pre-application consultation with local communities 
It is proposed in the DMR that the classes of development to which pre-application consultation requirements apply to all national and major developments; all development requiring environmental impact assessment;  and developments listed in column 1 of Schedule 1 of the DMR which meet the criteria or exceed the threshold in column 2. These include certain types of development which may raise particular problems or which relate to certain types of land, for example development to be carried out on land identified in the Development Plan as greenbelt or land that is not allocated for housing in the Development Plan or if the residential development is for five houses or more.

The DMR provides details of the pre-application consultation process which involves a pre-application consultation screening procedure which will be open to a prospective applicant.  There is no right of appeal against the view taken of the planning authority.  The screen process allows for a formal view to be given  from the planning authority.  Developers therefore should be encouraged to use the screening process to mitigate against the possibility of the planning authority declining to determine the application as invalid.  The pre-application consultation will involve significant engagement with local communities.  At least 12 weeks prior to the submission of an application, prospective applicants must provide the planning authority with a proposal of an application notice which includes factual information; an account of what consultation the applicant proposes to undertake; when such consultation is to take place; with whom and what form it will take.  This notice must also be served on the relevant community council and owners and occupiers of neighbouring land. 

Whilst the need for enhanced consultation has been identified previously in PAN81: Community Engagement, there is now a detailed statutory procedure which will apply to all planning applications.  The most relevant of which is that the prospective applicant needs to convene at least one public meeting to allow representations to be made and also to give newspaper advertisement of the proposed application.  The planning authority may also notify the prospective applicant of anyone they consider must also receive a copy of the notice and of any other consultation that must be undertaken.  Therefore some further consultation will be required in certain circumstances.   The Scottish Government intends to produce guidance on what further consultations should be carried out relevant to the nature, scale and location of the development involved.  It is the intention that the guidance could be used by prospective applicants as a basis for developing an approach to pre-application consultation or by the planning authority as a basis for requesting further consultation where there are gaps.  Thus the details in Regulations are very much the minimum required. 

The prospective applicant must thereafter prepare a pre-application consultation report as to what has been done during the pre-application phase to comply with the requirements of the legislation.  The report will then accompany the planning application when submitted and the authority will be required to include it in their planning register along with the application, plans and drawings.  If pre-application consultation is required and has not been carried out;  or there is no report of the process carried out; or the planning authority is of the view that the applicant has not complied with the requirements for consultation then the planning authority “must decline to determine the application”.  The Scottish Government intends to provide guidance on best practice on the form and content of these reports. 

Pre-determination hearings
Pre-determination hearings are to be held by allowing the views of objectors and interested parties to be held by a committee of the planning authority before a decision is taken.  Developments which are significantly contrary to Development Plan and cases requiring EIA will be subject to a mandatory pre-determination hearing.  The planning authority has the discretion to allow  other parties to attend the pre-determination hearing in addition to those who have submitted representation on the applications.  The Scottish Government intends to produce further guidance which may include a model code of conduct for hearings which would address issues such as when the hearings should take place and how and by whom they should be conducted.  DMR however allows the planning authority to specify the procedures around arranging and conducting hearings.  Where a pre-determination hearing is required a decision by the planning committee on an application must be referred to the Council as a whole.

Processing agreements
As discussed in our previous e-zine dated 24 March, the new hierarchy for planning aims to direct resources to where they can add most value and particularly give applications for national and major developments appropriate priority.  Currently the statutory period for determining planning applications is two months,  although where EIA development is involved, four months.  It is recognised that  these timescales are not often met.  The White Paper introduced a concept of processing agreements and this is being taken forward through the DMRs.  These would be used for national and major developments and would allow the applicant and planning authority to agree an approach and a timetable for determination of the planning application.  Both parties would take into account the views of statutory consultees and set this out in a processing agreement.  The scope and content of each agreement will be individually decided but the consultation is accompanied by a draft processing agreement. 

Whilst the agreements are to be entered into on a voluntary basis there is a default provision in the event that an agreement is not entered into providing for the period of determination of an application which is either a national application, or a major application to be four months. The existence of an agreement obviously does not mean that the outcome of the planning application, will be approval.  Whilst the DMR does not seek to put pre-application discussions on a statutory basis, it is envisaged that any processing agreement will be dealt with as part of the pre-application consultation. 

The key objective is to set out a realistic timescale and that processing agreements should cover all stages required to take an application from pre-application consultation  through to submission, processing and determination and, where applicable, the discharge of any conditions, the signing of a Section 75 Agreement and potential for notification of the application to Scottish Ministers.  A key objective is also to establish a realistic timescale for processing which takes account of the amount of information which needs to be considered to determine the application and sets clear milestones.   Suggested components include;

  • Rules and responsibilities
  • Information requirements.
  • Decision making framework.
  • Key milestones. Timescales.
     

The processing agreement will be placed on the planning register.  Planning authorities are to be assessed in relation to their performance in following processing agreements – as set out in the White Paper.  Non-compliance with the terms of a processing agreement may result in the return of application fees.  However, this is to be considered in the context of a further consultation on the fees regulations.  Careful thought will have to be given to a processing agreement in which an application will be subject to a programme which will take it through to the point of implementation.  The fact that the processing agreement might be extended to the signing of the Section 75 Agreement is likely to be welcomed by developers, especially given that the finalisation of a Section 75 Agreement is often an impediment to issuing the planning permission.  Planning authorities may of course be defensive either in relation to the timescales they agree to or in arguing whose fault it is that the timescales have not been adhered to. 

Planning permission in principle
Once commenced the new Section 59 of 1997 Act will replace the provisions on outline planning permission for provisions of planning permission in principle (“PPP”).  The importance of this change relates to the removal of reserved matters and that any further approvals required in the context of  PPP will be dealt with in the same manner.  Currently there is often a degree of confusion about whether or not further approvals mean that the issue is a “reserved matter” or not -  whether or not an issue is a reserved matter determines the procedures which apply to it.  In future planning authorities will simply specify conditions on PPPs which require matters specified in the conditions to be subject to further approval by the planning authority.   These do not relate solely to matters not specified in the application nor are they limited to reserve matters such as issues of siting, design, access or landscaping.  Thus the DMR sets how any further approvals will be obtained and the information which will require to be provided in relation to any application made.  PPP will last for three years and time limits for further approvals are set out in new Section 59 of the Act but as under the present system the local authority will be able to vary the period.  However, in future this will be done by direction and not by a condition attached to the permission.

Content of applications and validation
Currently there is no standard planning application form and whilst there has been considerable work done on e-planning it is unlikely that there will be a standard form until this reaches some form of finality.  The DMR however sets out the information which will be required to make a planning application valid.  Whilst the legislation does allow the Scottish Government to specify such a form, it is considered that producing a statutory procedure which has to effectively provide for the content of every possible planning application is overly complex.  The intention therefore is that the DMR remains fairly wide and that guidance will provide examples on the sorts of plans and drawings which could be required for various types of developments.  The basic information in order to validate an application is necessary is contained in the DMR and more onerous requirements than apply currently in respect of applications for planning permission in principle are also proposed.  The proposed DMR provides certainty with regard to a validation date in that an application is taken to have been made on the date when the last item of information required in accordance with the regulations is received by the planning authority. 

Design and access statements
The 2006 Act introduces a requirement for prescribed planning applications to be accompanied by a statement explaining (1) the design principles and concepts that have been applied to the development; and (2) how issues relating to access for disabled people have been dealt with.  The purpose of these statements is to make clear that the design process has been thoroughly thought through and a sustainable approach to access.  The main aim of a statement will be to inform the planning decision making process both for full planning permission and for planning permission in principle.  They are to allow the applicant an opportunity to explain and justify their proposals and help those assessing the application to understand the design and access rationale that underpins them.  It is likely that the nature of the information contained in the statements on design or access will also be a material consideration.  The Scottish Government  is consulting on two options in the range of applications accompanied by a statement.  Option 1 is that a design and access statement should accompany all planning applications except for certain minor exemptions.  Option 2 is that it should only be required in relation to certain specific development principally major developments and some other developments on sensitive sites. 

With regard to design, the DMR states that the design element of any statement should contain information on (a) the policy or approach adopted as to design and how any policies relating to design in the Development Plan have been taken into account; and (b) demonstrate the steps taken to appraise the content of the development and how the design of the development takes the context into account in relation to its proposed use.  With regard to access, the DMR states that a statement should set out (a) the policy or approach adopted as to access and how policies relating to access in the Development Plan have been taken into account (b)  how any specific issues which might affect access to the development for persons with disabilities have been addressed and (c) how features which ensure access to the development for persons with disabilities will be maintained.

The statement is to identify the extent of consultation with stakeholders, including disabled people and the outcome of such discussions.  In certain cases, as in relation to major developments, the proposal will be subject to statutory consultation arrangements for communities.  SPP20 recognises that some developments may also be available for design review.  An initial assessment of the statement will be required at the validation stage.  The planning authority, in order to validate the application, needs to be assured that the statement is enclosed with the application where required and contains the information set out in the DMR.

Neighbour notification and publicity
The responsibility for neighbour notification will in future lie with the local authority. The DMR considers how they should be notified and the timescale for notification – five days from validation.  There are proposals for the definition of neighbouring land to be changed to include land which is conterminous with or within 20 metres of the boundary of land to which the development is proposed.  The minimum period for representations is also being extended from 14 to 21 days from the date the notice is served.  In addition to applications for approval of matters specified in conditions attached to a PPP, the DMR contains a requirement to notify those who made representations on the application for PPP.  In addition to neighbour notification, there are regulations in relation to newspaper advertisement for certain developments.  The DMR contains requirements on applicants to certify who owns the proposal site and whether there are any agricultural tenants on said land.  Once the application is validated, the planning authority will also be obliged to notify those parties the applicant had identified as owners and agricultural tenants, providing information on the proposal; where further information can be inspected; and the time period within which comments can be made.

Local authority procedures
The DMR also deals with processes and procedures relevant to the local authority including a list of applications and the format of a decision notice. The DMR sets out the statutory requirements for consultation on planning applications and the bodies which require to be consulted and the criteria for triggering consultation in particular cases and are the same as the current GDPO.  The DMR proposes a minor change to the process of consultation as future consultation will be required “before the determination of an application for planning permission“ rather than before granting planning permission as under the current GDPO.  The period for determination of an application remains the same except in relation to national or major developments where the period will be four months (or such other period as may be agreed). There are of course exceptions to these time periods including where the case is called in for determination by the Cairngorms National Park Authority.  The decision notice itself is to be more detailed, for example an indication whether there is a planning obligation under Section 75 associated with the planning permission has to be contained within any decision notice.  This is to include the reasoning behind such an agreement.  In practice, however, it is likely that the signing of the agreement is linked with the issuing of the decision notice and therefore it is the intention that the decision notice should simply indicate where such an agreement has been concluded.

Bad neighbour development
The Regulations also raise possible changes to bad neighbour developments. The DMR suggests that the phrase is inappropriate and suggests whether or not an alternative should be used.  The DMR also suggests a number of additions which include nightclub/public house; community hall; concert hall; places of worship; skateboard park; waste transfer sites; recycle points; and abattoirs.

Conclusion
The consultation on the DMR is of considerable practical significance.  Anyone engaging in the planning process should make themselves familiar with the content of the consultation paper if they have not already done so and respond immediately to it given the imminent end of the consultation period.

Further information
For further information on this or any planning issue, please contact Alastair McKie.


This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.