Planning for the future – simplicity itself?

We are promised a new Planning Bill in the current session of the Scottish Parliament.  What will it do and what will it be intended to achieve? Could we see a fairer, simpler planning system?

Nearly everyone would agree the planning system is complicated. We have a legislative system of vast complexity. Planners, developers, lawyers and academics fail to agree on the purpose of the system. Originally simply a land use planning system, it is now also expected to promote sustainable development, biodiversity, social justice and improved architectural design, deliver public infrastructure and affordable housing, and protect the environment.

The draft report to the Scottish Executive currently contains suggestions on the content of the Bill rather than definite reform proposals. This is the Parliament’s first chance to substantially change the system and they have a range of policy objectives to achieve. But many “stakeholders” prefer “tinkering” with details to wholesale reform anyway. Major change is not always welcome and may have considerable resource implications. Most developers (big or small) simply want a quick, consistent decision on their planning application(s) after all. Perhaps, failing consensus on major change, we should simply make small but necessary changes to detail.    

If so, there are various possible amendments. Perhaps the most controversial would be to introduce third party appeal rights. A developer presently has a statutory right of appeal if he is refused Planning permission. Perfectly fair you might say; considerable sums may have been incurred through the application process, and the developer’s property rights (to develop the property) are at issue.  But third parties (e.g. neighbours), whose property rights may also be affected if permission is granted, currently have no statutory right of appeal.

As astute readers will guess, human rights law is central to the debate on third party appeal rights. Why does one party have appeal rights but another does not, when each has property rights which could be affected by the planning decision?  Legally the position is not so clear. The Scottish Ministers have indeed stated that they wish to consult on this difficult issue. Either way the big question is how to introduce such appeal rights without the system simply grinding to a halt under the weight of appeals whilst discouraging vexatious or frivolous appeals. The limits of any third party appeal rights will therefore be hotly debated.

Less controversial would be a right of review following a refusal to amend the terms of an existing Planning agreement. Section 75 of the Town and Country Planning (Scotland) Act 1997 allows Planning authorities to enter into agreements with parties with a legal interest in the land concerned. These have contractual effect but are also registrable in the Land Register. There is no statutory right to appeal against a refusal to amend such an agreement, nor do the Lands Tribunal have jurisdiction, yet it runs with the land until discharged. The problem is that, while planning agreements were originally used for relatively simple purposes, they are now increasingly used as the mechanism for delivering major development infrastructure, affordable housing and transport improvement schemes. Some agreements do have review provisions; many do not. It therefore seems reasonable that, where an agreement is silent on this, a right to review should be implied, arising perhaps two years from the date of the agreement.        

Finally, the Scottish Parliament could introduce a statutory time limit for common law judicial review. Until (and unless) there are third party appeal rights, such action is one of the few remedies for an aggrieved third party. Yet there is no time limit within which he must raise such an action. There is therefore considerable uncertainty as to when a planning permission is effectively immune from challenge. Questions of mora, acquiescence and taciturnity apply but do not provide definite answers to a developer who may face considerable expenditure during the “risk” period.  In England and Wales the limit is three months, so should we adopt that rule?

There has not been a major Planning Act for some time and this is the Scottish Parliament’s first chance to produce one. The current system is often overly complex and technical yet the country requires a system which does not unduly hinder economic development. However, the system is also now supposed to deliver a wide range of political, social and environmental objectives. Arguably it is currently struggling to do so. Either way, while the forthcoming Bill will no doubt deliver useful reforms, the last thing it will lead to is simplicity.