Planning: Development at pace

This briefing covers the latest developments in the extensive programme of Scottish Government (“SG”) reforms to the planning system, including the ongoing rollout of the Planning (Scotland) Act 2019 and related policy changes. SG work also includes legislation to maintain a functioning planning system during the COVID-19 pandemic and support economic recovery. These will be of immediate relevance to all solicitors involved in property development.

National Planning Framework 4

SG is continuing with the rollout of NPF4 which, when approved by MSPs, will have an enhanced role in planning decision-making and for the first time will form part of the development plan, containing a suite of SG’s national planning policies. SG has been undertaking extensive consultation and engagement. One key change to be included in NPF 4 is targets for the use of land for housing as part of a strategy for Scotland’s spatial development.

Planning (Scotland) Act 2019

Local place plans (“LPPs”)

The 2019 Act introduces LPPs, which may be prepared by a community body. An LPP is a proposal as to the development and use of land; it may also identify land and buildings the body considers to be of particular significance to the local area. A planning authority, before preparing a local development plan, must publish an invitation to local communities to prepare LPPs, with information on assistance available. An authority preparing its local development plan must take account of any registered LPP within its district. SG is undertaking consultation on LPPs which closes on 25 June 2021. While not forming part of the development plan, it is considered that LPPs where relevant will be a material consideration in planning determinations.

Mediation

Mediation has long been considered as having a limited but positive role in planning disputes. The Act defines mediation as including any means involving an impartial person of exploring, resolving or reducing disagreement, and provides that ministers may prepare guidance on the promotion and use of mediation in relation to:

• preparation of local development plans and related evidence reports;
• pre-application consultation;
• assisting in determining an application for planning permission;
• any other matter related to planning that ministers consider appropriate.

Guidance may include provision about the form of mediation to be used in a particular circumstance, and the procedure to be followed. SG has recently concluded a consultation on mediation.

Pre-application consultation

The Town and Country Planning (Pre-Application Consultation) (Scotland) Amendment Regulations 2021, due to come into force on 1 October 2021, introduce a number of important changes to consultation before an application for identified categories of development (including “major” or “national”) can be submitted to a planning authority. A minimum of two public events (currently one) will be required, and the prospective applicant must at the final event provide feedback in respect of comments received regarding the proposed development. The Act requires that an application for planning permission is submitted within 18 months of the date of submission of the proposal of application notice.

Short-term let regulation

The Town and Country Planning (Short-term Let Control Areas) (Scotland) Regulations 2021 came into force on 1 April. Made under s 17 of the 2019 Act, they enable a planning authority to designate all or part of its area as a short-term let control area. A change of use of a dwellinghouse to use for providing short-term lets is then deemed to be a material change of use requiring planning permission. The regulations do not apply to short-term letting outwith a control area, and there is continuing uncertainty as to when a material change of use has occurred with a particular property used for short-term letting. SG is providing guidance that may assist. These regulations were intended to operate along with the licensing of short-term lets under the Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2021; this order was withdrawn following concerns expressed by MSPs but it is understood that it will be re-laid later in the year.

Permitted development rights

The Town and Country Planning (General Permitted Development and Use Classes) (Scotland) Amendment Order 2020 came into force on 1 April 2021. This includes new classes 18B and 22A, which permit the change of use of an existing agricultural or forestry building to use as a dwelling, or to use for a flexible commercial use, in each case together with certain building operations reasonably necessary for such conversion. Flexible commercial uses are uses within classes 1, 2, 3, 4, 6 or 10 of the Town and Country Planning (Use Classes) (Scotland) Order 1997.

Emergency temporary legislation

A number of temporary measures have been continued by regulations under the Coronavirus (Scotland) Acts of 2020. The Scottish Parliament has agreed to regulations that extend the Acts until 30 September 2021; no further extensions are available. The effect of this extension is that where any planning permission, listed building consent or conservation area consent is due to expire by 30 September 2021, that date will be extended until 31 March 2022.

Publication of planning documents online rather than at physical locations will be allowed until 30 September 2021, and committee meetings (including meetings of a local review body) can take place without public attendance until then. The current suspension of physical pre-application consultation public events, and their temporary replacement by virtual events, is also extended to that date.

Scottish Planning Policy (SPP)

Following a consultation last year SG published a revised SPP 2020 and a new PAN 1/2020, effective 18 December 2020. These are significant policy changes and relate to SG’s response to Gladman v Scottish Ministers [2020] CSIH 28. In that case a shortfall in the five-year effective housing land supply meant that the presumption (in favour of sustainable development in terms of SPP) should apply to create a “tilted balance” in favour of residential development. SG has now reworded the presumption in favour of development that contributes to sustainable development, so it can be applied in a more straightforward way. SG has removed references to development plans as “out of date”, and the direct link with calculating the land supply to the presumption, replacing them with a more straightforward policy. SG will undertake further work to inform an updated approach to housing land audits within the new system. SG also supports the use of the “average method” to determine whether or not there is a five-year land supply, as a reasonable benchmark to be taken into account in assessing applications. These revisions to SPP and PAN 1/2020 are understood to be subject to a judicial review in the Court of Session.