The Planning etc. (Scotland) Bill was introduced to the Scottish Parliament this month, outlining proposed key changes to the current planning system.  The Bill's primary objective is to modernise the current system, promoting greater efficiency and providing local people with better opportunities to influence planning decisions which affect them. The modernisation has four elements:

  1. the promotion of development in the most sustainable locations;
  2. the creation of an inclusive system where locals have the ability to be more involved in decisions affecting them and their communities;
  3. the establishment of new requirements for the production of development plans, ensuring greater efficiency by providing certainty for users and ensuring the plans are kept up to date; and
  4. the introduction of a clearer sense of priority, allowing different sorts of application to be dealt with in different ways – a fit for purpose planning system.

In this first of two articles reviewing the proposed changes under the Bill, we look at the new development management proposals.

Development Management

One of the proposed changes will be to the current development control system.  For a start, development control will be renamed "development management", the new term which describes the planning application and decision-making process which can be depicted as follows:-

Flow chart showing Development Management

Three Tier System

A three tier "hierarchy of development" is to be introduced, each with different procedures for submission, processing and determination:-

  • National Developments – considered by Scottish Ministers to be of national strategic importance.
  • Major Developments – large scale developments identified in development plans, although not of national importance.
  • Local Developments – the largest group comprising developments between those minor developments that have been excluded from the planning application process and those larger developments that fall within the "national" and "major" categories.  Straightforward applications will be determined by planning officers under a "scheme of delegation".  More controversial or larger applications will be decided by elected members.

Delegated Decisions on Local Developments

The Bill introduces a formal "scheme of delegation" which each planning authority would have to establish.  This would provide how the authority decides which applications are dealt with by planning officers and which are dealt with by elected members.  Although the detail of such schemes would be set out in secondary legislation, it is intended that planning officers would deal with non-controversial, small developments that adhere to the development plan.

A developer will be able to require the planning authority to review a planning officer's refusal to grant permission, or conditions attaching to the permission, and the appeal would be heard by elected members of the planning authority rather than the Scottish Executive's Inquiry Reporters Unit.

Review of Permitted Development Rights

To allow planning authorities to concentrate their resources on more significant or controversial applications, there is to be a review of "permitted development" rights (where there is no need to obtain planning permission for certain minor developments in particular minor household developments, subject to suitable controls for sensitive areas).

Proposals for review of permitted development rights were outlined in the planning White Paper Modernising the Planning System published last June. Permitted development rights, where certain developments are deemed to have received planning permission, are currently found in secondary legislation.

Duration of Planning Permission Reduced

The normal duration of a planning permission is currently five years, unless other provision is made in a particular planning permission.  The Bill reduces this period from five to three years.

"Outline" Replaced with "In Principle"

The current system of "outline planning permission" will be replaced by "planning permission in principle".  The current procedure would be modernised by the Bill – key issues of detail, determined after the grant of planning permission in principle, would be subject to the same amount of scrutiny and transparency as if they had formed part of a detailed planning application.

"Planning Obligations" to Replace Section 75 Agreements

Planning agreements, also known as Section 75 Agreements or planning gain, would be replaced by a new system of "planning obligations".  The Bill goes into greater detail than the current Section 75 (of the Town and Country Planning (Scotland) Act 1997) about what sort of planning obligation can be placed on a developer, for example, cash payments to the planning authority.

The Bill also proposes a new system of "unilateral obligations" where a developer can register its proposed obligation(s) without the need for agreement with the planning authority.  Such unilateral obligations could be a useful bargaining tool for developers in their attempts to secure a planning permission, or at any appeal.

A new system would also be introduced whereby a planning obligation can be amended or discharged by agreement between the planning authority and the person bound by the obligation.  Where the planning authority refuses a request for such an amendment or discharge, there is a right of appeal to the Scottish Ministers.

Neighbour Notification

The current neighbour notification system requires the developer to notify their proposals to the properties surrounding the development site.  The Bill would replace this, placing the duty for neighbour notification on the planning authority itself.

Introduction of Pre-determination Hearings

Pre-determination hearings are to be introduced for applications involving certain types of development.  Those classes of development that would be subject to such a hearing would be defined in regulations, or a development order, which the Bill allows the Scottish Ministers to make.  It would, however, be up to the planning authority to decide the procedures to be adopted at any hearing and who should be in attendance.  The sorts of applications which may require hearings would be:-

  • applications for major and local developments contrary to the development plan;
  • developments requiring an Environmental Impact Assessment; and
  • large-scale "Bad-Neighbour" developments.

"Good Neighbour Agreements"

A new system of "good neighbour agreements" is proposed under the Bill.  These would work in a similar way to planning obligations although the agreement would be with a "community body", rather than the planning authority and would be enforceable, not by the planning authority, but by the community body. Such a good neighbour agreement could be registered in the land register and would be enforceable against the developer's successors in title.

The Bill would allow modifications or discharges of good neighbour agreements to be agreed between the community body and the person bound by the agreement, again with a right of appeal to the planning authority where the parties could not reach agreement.  A further right of appeal to the Scottish Ministers would be available where the planning authority failed to make a decision.

The full text of the Planning etc. (Scotland) Bill is available from the website of the Scottish Parliament at http://www.scottish.parliament.uk/business/bills/51-planning/b51s2-introd.pdf.  February's Open Door will look into the Bill's proposals on the planning enforcement system and its proposed amendments to the current system of Tree Preservation Orders.

The planning White Paper can be accessed from the Scottish Executive's website at http://www.scotland.gov.uk/Resource/Doc/54357/0014194.pdf.

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