Radical design

After a long wait (a new Planning Bill was promised “soon”, two years ago or more) the Scottish Executive has published its white paper, “Modernising the Planning System”, containing major proposals to modernise and streamline the system in Scotland. In the interests of delivering “a fairer, more balanced system” (as endorsed by the First Minister and Deputy First Minister), all parties are to be given a much greater level of participation in the planning process. Getting everyone “round the table” in the early stages of a planning application is to be encouraged within a more accessible planning system for all.

Central to the reforms are proposals which will be of key significance to planning authorities, developers and communities alike. Some of the key proposals are:

• establishing a National Planning Framework as an instrument for securing the delivery of national policies and programmes;
• defining a new planning hierarchy of development types;
• a statutory requirement to update development plans every five years;
• moving to a single tier of local development plans everywhere except the four largest city regions;
• introducing requirements for one proposed plan, replacing the current system of consultative and finalised drafts;
• (further) encouragement of e-planning;
• improving the way in which planning agreements are used;
• use of standard application forms;
• reduction in time limit within which an appeal can be submitted from six to three months;
• planning consents to lapse after three years;
• new statutory requirements for pre-application consultations for certain types of development;
• new procedures to encourage public participation in formulation of development plans;
• neighbour notification responsibility transferred to local authorities rather than the applicant;
• more frequent use of hearings allowing local people to present their views on planning applications before they are determined;
• applications which do not accord with the development plan to be subject to greater scrutiny;
• a requirement for planning authorities to give reasons for their decisions;
• introduction of early determination of appeals that are not “well-founded”; and
• a range of measures to ensure that new development is sustainable.

A new hierarchy for planning

To make planning more focused and responsive, a formal hierarchy is proposed to deal with different types of development in different ways, categorising developments as of national, major, local or minor importance and processing them accordingly. In a radical move it is proposed that the need for national developments such as power stations, major water schemes and transport projects would be decided by the Scottish Ministers in the context of a National Planning Framework. This seems designed to provide the Scottish Executive with greater opportunities to monitor and implement national policy.

Local authorities would be obliged to incorporate such developments into their development plans and their role would be limited to deciding the detail, as opposed to the principle, of development. The Scottish Ministers would be granted the opportunity to intervene where necessary to call in applications.

Major developments such as shopping centres or large scale housing developments would be clearly identified and prioritised by planning authorities. The method of appeal would be largely the same as at present, i.e. to the Scottish Ministers and thereafter to the courts on a point of law.

Local developments such as smaller housing developments and commercial enterprises would, as now, be a matter for local planning authorities. Controversial applications or those with a significant impact on the area would continue to be decided by elected members with a right of appeal to the Scottish Ministers. All other applications would be determined by planning officers under delegated powers, but with a new right of appeal to a local review body comprised of local councillors.

Permitted development rights would be extended, removing the need to obtain planning permission for minor developments such as small scale changes to single houses and for local authorities to determine high volumes of these generally straightforward applications. Time will tell how these development rights can be extended whilst balancing competing interests such as the local environment and amenity.

Agreements on processing

To assist expeditious processing of major development proposals, planning authorities would be able to enter into agreements with applicants setting out realistic timescales for processing applications. Application fees would be increased to reflect the real cost of processing applications. Of course, early commitments by either side might not be easy to give at this stage in the process. We suspect much more thought would have to be given at the pre-application and processing stages to the likely terms of any planning agreement than is often the case at present. However that might be no bad thing for either side.

Planning agreements

Guidance governing such agreements would be improved, their permitted scope restated and applicants allowed to submit unilateral obligations (as is already possible in England and Wales). Authorities would be required to register agreements, monitor the delivery of items in the agreement and place this information in the public domain. Parties should be mindful that their compliance with an agreement might be monitored by interested/hostile parties. However a right of appeal (asked for by many developers) against the terms of a planning agreement is not proposed. It may therefore remain difficult for a developer to negotiate meaningfully a planning agreement when the planning authority retains the ultimate power of granting or withholding consent.

Statutory consultation

Statutory consultees would become engaged in pre-application consultations for certain types of development. Greater public involvement would also be encouraged and applicants would have to state how they had involved the community in formulating proposals. This seems to mirror current best practice for windfarm developments, whose often controversial nature necessitates developers pursuing lengthy pre-application consultations with statutory consultees, private individuals and the public as a whole.

This would inevitably mean more pre-application work for developers, who would have to prepare a thorough strategy for promoting their scheme at an earlier stage than usual. However much would depend upon clear guidelines as to what would be deemed acceptable consultation, and developers will no doubt have concerns about commercial confidentiality here.

The life of consents

Planning authorities would be able to specify a period within which development must begin. Where no period were set, the statutory period would be reduced to three years (instead of the current five years). For a developer this might reduce the value of a planning permission if it potentially meant a choice between starting a development during unfavourable market conditions or re-applying. However some might say reducing their perceived ability to “extract” a new planning permission by threatening to resurrect an old one (where the old permission no longer represents the “best” solution for the site) would be a good thing. As with so many things in planning, the true answer is often complicated and subjective.

Less time to appeal

In order to reduce uncertainty for objectors and planning authorities, an unsuccessful applicant would have only three months to appeal (he/she currently has six months). There would also be a power to determine appeals early where they are “ill founded”.

Development plans

The new proposals are firmly based upon the existing concept of primacy of the development plan. Development plans would however be produced more quickly to ensure that they are relevant and up to date, with a statutory requirement to update them every five years. The intention is to move to a single tier of local development plans (with the exception of the four largest city regions which will also have strategic development plans). The current system of consultative and finalised drafts would be replaced with a single draft plan.

A single development plan may provide a clearer reference point for everyone, including the planning authority, for interpretation, application and enforcement. However it may also prove difficult, within local authority resource constraints, to combine local and structure plans into a coherent single plan addressing representations received before the plan is finalised.

Third party rights of appeal

It was considered that a third party right of appeal would have created more problems than it would have solved, hindering development and undermining local authority decision making. Such a right is not therefore proposed. Instead the emphasis is on a plan-led system with more effective public engagement from the early stages of the planning process onwards.

A difficult balance

The white paper contains good proposals which (if enacted) should create real improvements to the planning system. However creating a system which truly balances effective strategic planning by government and public authorities, certainty for developers and investors, effective public participation, and quick, transparent and democratic decision making is likely to be particularly difficult. For example, in some areas the proposals advocate less public participation rather than more, in the interests of better national strategic planning.

There will no doubt also be considerable resource implications for public authorities if the major proposals are adopted in due course. However, the willingness of the Scottish Ministers to overhaul the planning system properly is to be applauded. No system will satisfy everyone and the “right” system for oneself usually depends on the nature of the vested interest one has in it.

The white paper can currently be viewed at www.scotland.gov.uk planning (or copies requested by phoning 0131 244 7543) and comments are invited, to be submitted to the Scottish Executive by Friday 16 September 2005. (Write to: Planning Modernisation Team, Planning Division, 2-H Bridge, Scottish Executive, Victoria Quay, Edinburgh EH6 6QQ, or email PlanningModernisation@scotland.gsi.gov.uk). At present it is the intention to introduce the new Planning Bill before the end of the current Scottish Parliament session in May 2007.

Robin Priestley, Caroline Mair and Jason Mackay, Planning & Environment, Anderson Strathern