The Planning (Scotland) Act 2019: where are we now?

The implementation of the Planning (Scotland) Act 2019 rumbles on, and 1 October 2022 marked the latest milestone in its series of reforms.

Two new instruments are now in force:

• the Town and Country Planning (Pre-Application Consultation) (Scotland) Amendment Regulations 2021 (the “PAC Regulations”, originally intended to come into force on 1 October 2021 but postponed); and
• the Planning (Scotland) Act 2019 (Commencement No 9 and Saving and Transitional Provisions) Regulations 2022 (the “Commencement Regulations”).

So, what’s changed?

Pre-application consultation (“PAC”)

PAC is a statutory requirement which applies to applicants for “major” and “national” development. It involves holding at least one public event where members of the public may make comments on a prospective applicant’s development proposal.

From 1 October, the PAC regulations require:

• a minimum of two public events to be organised by the applicant;
• newspaper notices to be placed by the applicant in relation to each such statutory public event (and indicating where additional information can be obtained and how comments can be made to the prospective applicant);
• consultation with relevant community councils;
• feedback to be provided at the final public event;
• compliance with new statutory requirements on the content of the PAC report;
• new exemptions to PAC requirements in certain cases (i.e., where a proposal for essentially the same development has been through PAC before and an earlier application was then made within the previous 18 months), and
• a statutory limit of 18 months between a proposal of application notice (“POAN”) being submitted to the planning authority and the subsequent application.

This last change is particularly important. While previously a period of at least 12 weeks had to pass between submission of the POAN and submitting the application (and this is still the case), no maximum period was prescribed. The change means that failure to submit an application within 18 months of a POAN will result in having to repeat the PAC process, starting with a new POAN. For those POANs submitted prior to these changes coming into effect, the 18-month period will begin on 1 October 2022, meaning that prospective applicants will have until March 2024 to submit the related application.

Duration of planning permission and planning permission in principle 

Previously, s 58 of the Town and Country Planning (Scotland) Act 1997 provided a statutory limitation of three years for the duration of planning permission, with the option for planning authorities to direct that a different period applied (which could be longer or shorter than three years).

For planning permission in principle, s 59 of the 1997 Act provided a statutory limitation of three years for an approval of matters specified in conditions, and two years thereafter for implementing the permission.

From 1 October, the duration is to be specified in a condition attached to the permission.

For planning permission, the default period will be three years, unless the planning authority specifies a different duration. For planning permission in principle, the default period will be a single period of five years, unless otherwise specified.

Timescales for approval of matters specified in condition

Previously, the time periods for making applications for approval of matters specified in conditions were specified in the 1997 Act, s 59.

From 1 October, this statutory framework is removed, and it is for planning authorities to consider such periods and specify them in conditions.

Completion notices

Planning authorities may issue a notice under s 61 of the 1997 Act requiring completion of a development.

From 1 October, it is no longer a requirement for the Scottish Government to confirm every such notice, thus streamlining the process. Instead, those wishing to appeal a completion notice served on or after 1 October will now be able to lodge an appeal with the Scottish Government. An applicant must be given at least 28 days to lodge their appeal, and the time period should be specified on the completion notice.

Declining to determine a planning application

Under s 39 of the 1997 Act, planning authorities have discretion to refuse to determine “repeat” planning applications in certain circumstances.

From 1 October, the period for which that discretion applies is extended from two to five years.

New circular 

On 21 October, the Scottish Government published a new Development Management Procedure Circular which provides guidance on the recent changes.

What next and when?

These recent changes are important.

However, significant reform is yet to come.

Highly anticipated is Scotland’s fourth National Planning Framework (“NPF4”). The public consultation on the draft NPF4 closed on 31 March 2022. The Scottish Government intends to set out a revised draft for the Scottish Parliament’s consideration and approval in the autumn, and to progress its adoption by ministers thereafter.

Also yet to be brought into effect are key provisions relating to (among others):

• master plan consent areas;
• removal of the requirement to prepare strategic development plans;
• schemes of delegation;
• appeals, and
• local reviews.

The reform of Scotland’s planning system continues. In the meantime, the Transforming Planning website will continue to be a useful tool for following progress.