Planning (Scotland) Act 1

On 25 July 2019 the Planning (Scotland) Bill received Royal Assent and became an Act. It’s been a marathon. The Independent Panel was appointed in September 2015, almost four years ago.

The Act is just the beginning. Reviews of the Permitted Development and Use Classes �Order�are�likely.�Secondary�legislation�will�be�required�to�implement�the�Act�and�fill�in�the details. Preparation of the new National Planning Framework will start.

GENERAL OBSERVATIONS

The 2006 Act made wide-ranging changes to process. The 2019 Act is less radical. The plan-led system remains intact,�but�with�some�significant�changes to development planning.

The key provisions are mentioned here along with the implications for planning authorities, developers and communities.

KEY PROVISIONS

This is our ‘at a glance’ guide (not exhaustive) to the Act:

PLAN MAKING

• Development plans – LDPs and NPF to be reviewed every 10 years, rather�than�five�years

• Purpose for planning – linked to the exercise of development plan functions, with references to sustainable development and achieving national outcomes

• NPF – housing targets to be included; and new outcomes, including improving health and well-being of people, increasing rural population, improving equality and eliminating discrimination, meeting greenhouse gas reduction targets, and securing positive effects for biodiversity

• LDP – participation of children and young people, evidence report and gatecheck examination by reporter

• Supplementary guidance – no longer has ‘development plan’ status

• Local place plans – prepared by community bodies

• Open space strategy, and forest and woodland strategy – to be published by planning authorities

• Strategic development plans abolished – and replaced by Regional Spatial Strategies.

MASTERPLAN CONSENT AREAS

• Masterplan consent area scheme – acts as grant of authorisation for development, so planning application not required

• Authorisation – can include consent for roads, works to listed buildings, and to buildings in conservation areas

• Self-build housing – can be authorised

• Exclusions – include land within a National Scenic Area.

PLANNING (SCOTLAND) ACT

THE ACT IS JUST THE BEGINNING.

Planning (Scotland) Act 2

IMPLICATIONS FOR LOCAL AUTHORITIES

Period of change / uncertainty – as new powers and duties are rolled out, local authorities will have to put them into practice, and deal with any uncertainties as best they can.

Powers�–�there�are�no�significant�additional�planning powers for local authorities. Overall, the Act neither makes the rules more enabling, nor more restrictive.

Responsibilities – authorities will have the power to control short term holiday lets; other amendments to bring more activity within planning control, eg. private tracks, were defeated. We wait to see the proposed changes to permitted development rights and the Use Classes Order, which are likely to restrict the control exercised by authorities, by introducing new rights to development without requiring submission of a planning application.

Loss of influence – the next National Planning Framework will be part of the ‘development plan’, increasing�the�influence�of�central�government,�especially since the next NPF will incorporate the Scottish Planning Policy. This is particularly important, as the NPF is to include housing targets.

Less plan-making – requiring local development plans to be replaced every 10 years rather than five�years�will�reduce�the�amount�of�plan-making.�Although strategic developments plans are abolished, those are replaced by regional spatial strategies.

Replacement every 10 years will make it more difficult�to�keep�plans�up�to�date.�The�10�year�period�means that preparation of the next round of local development plans is unlikely to commence until the next NPF is published. Interim reviews will be possible, subject to resources being available.

The right for communities to prepare a Local Place Plan will however increase plan-making. Although local authorities do not have a formal role in the preparation, communities preparing an LPP are likely to look to their local authority for information, if not assistance with the plan preparation. Authorities might also need to monitor preparation of the LPP to avoid future problems.

Resources – it remains to be seen whether adequate funds will be available for the changes to be implemented fully, and to ensure the planning system delivers the required outcomes.

DEVELOPMENT MANAGEMENT

• Short-term let control area – planning authorities can opt-in to requirement for planning permission for short term holiday lets

• Health effects – of national or major developments to be considered

• Repeat applications – the two year lockout�period�is�increased�to�five�years

• Notice of major developments – to be given to each local councillor, MSP and MP

• Agent of change – noise-sensitive developments to include consideration of measures to mitigate the effect of noise from existing cultural venues or facilities

• Toilet facilities – planning permission for certain large developments can include a condition that the development include at least one accessible public toilet facility

• Section 43A schemes of delegation – scope extended to include approvals required under development orders (eg. agricultural development), certificates�of�lawfulness,�and�advertisement consent.

• Duration of planning permission – time limit to be imposed by deemed or express condition, not by direction (reinstating the pre-2006 Act position).

OTHER MATTERS

• Section 75 obligations – more flexibility�to�decide�section�75A�discharge�/��modification�applications

• Mediation – Ministers empowered to issue guidance on use of mediation in planning

• Enforcement – amendments in relation�to�fines�and�recovery�of������expenses for enforcement activity

• Training – to be compulsory for councillors

• Performance – annual report by planning authorities on performance; Ministers to have power to appoint a national planning improvement coordinator

• Chief planning officer – must be appointed by each planning authority.

NOT INCLUDED IN ACT

• Over-arching statutory purpose for all planning functions

• Culturally sensitive zones

• Equal right of appeal

• Green belt development – requirement for assessment of brownfield�alternatives��

• Land value capture

• Private tracks – removal of permitted development rights.

Planning (Scotland) Act 3

IMPLICATIONS FOR DEVELOPERS

Certainty (an acceptable level of consent risk) – The Act retains the plan-led system, which is frequently criticised by developers (and communities) for its lack of certainty. Only requiring the review of development plans after 10�years,�instead�of�five�years,�increases�the�risk�of�the plans being out-of-date, reducing certainty of outcome.

Certainty is also weakened by the multiplicity of plans. The lead plan – the ‘development plan’ – has changed from the strategic development plan / local development plan / supplementary guidance, to the national planning framework / local development plan, but regard will also have to be given to the regional spatial strategy and local place plan.

A main cause of uncertainty – planning decisions being made by councillors, with unpredictable outcomes – will not be changed.

Masterplan consent areas provide certainty, but frontload the work. Both developers and local authorities might be reluctant to move away from tried and tested procedures.

Speed (decisions within a reasonable timescale) – The Act does not contain any proposals which will speed up decision-making on planning applications. In particular, there will be no faster / abbreviated procedure for sites which are allocated in the LDP.

Proposals for an equal right of appeal were defeated, removing a potential new delay to development.

Infrastructure provision – All the Act contains is a broad enabling power for an infrastructure levy, with no details of its likely scope.

Properly resourced planning system – An objective of the reform was to free up resource within local authorities, moving the focus from plan-making to delivery. However, there are no provisions to ring-fence the freed up resource within planning.

IMPLICATIONS FOR HOUSEBUILDERS

Housebuilding is treated differently by the planning system. The supply of sites is carefully controlled, with a focus on allocation of sites in the local development plan.

Housing land targets will now be set by the Scottish Ministers in the National Planning Framework. It remains to be seen whether that de-politicises the process. Given the complexity of the topic, it is a concern that examination will be by the Scottish Parliament, rather than an independent reporter.

Housing sites will continue to be allocated in LDPs, but�only�every�10�years�rather�than�five�years.�That�will increase the competition between potential sites during the LDP preparation process, putting more pressure on local authorities.

The proposal for a gatecheck procedure offers independent scrutiny of the key principles of a draft LDP early enough in the preparation procedure for remedial action to be taken if flaws�are�uncovered.�If�the�reporter�is�satisfied�insufficient�housing�land�has�been�allocated,�a�notice can be issued requiring the authority to prepare another proposed LDP.

IMPLICATIONS FOR COMMUNITIES

Certainty – as already mentioned (implications for developers), the reforms do not give more certainty of outcomes.

The lockout period for repeat applications is increased�from�two�to�five�years,�which�provides�communities with some certainty over a longer period.

Power – the new power for a community body to prepare�a�local�place�plan�is�a�significant�one.�It�gives communities an opportunity to prepare their own plan. It is also relatively unrestricted, as there is no requirement for the LPP to comply with either the NPF or LDP.

The LPP will not be part of the ‘development plan’, and there is no requirement for the NPF or LDP to follow the provisions of the LPP. However, a well-thought�through�LPP�will�be�difficult�to�ignore.

The effectiveness of LPPs is to be reviewed by the Scottish Ministers after seven years, with a report to be published and laid before Parliament.

Issues – the reforms place greater emphasis on issues of importance to communities, including housing needs for older people and disabled people, improving health and wellbeing, improving equality and eliminating discrimination, the desirability of maintaining an appropriate number and range of cultural venues and facilities, sufficiency�of�play�opportunities,�and�self-build�housing.

Planning (Scotland) Act 4

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CONCLUSION

Although there is much disappointment that the reforms lost the intended focus on delivery, useful conversations have been started. The old adage still remains true – culture change can achieve much more than law reform.

Continuing the sporting analogy – the Bill Marathon was just the opening event.

There will be a busy few years implementing the changes. It’s a period of uncertainty, while we get to grips with the detail of the changes. Inevitably there will be unforeseen consequences.

Join the conversation at our

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