"Planning system delays damaging economy". A headline not uncommon 4 or 5 years ago. Will the reforms in the Planning etc (Scotland) Act 2006 consign it firmly to the past? The evidence suggests not. No one underestimated the challenge of reform. It was always going to be a very difficult balancing act. There was always a tension inherent in streamlining planning procedures to make them more responsive while increasing public participation.
In the last few months consultative draft regulations on various matters including development plan preparation and examination; development management (processing planning applications); the planning hierarchy and appeals have all been issued. While improved public participation has undoubtedly been secured, the cost may well be a slower, more cumbersome, less transparent planning system which actually deters the very investment it seeks.
The housebuilding sector effectively illustrates the mismatch between the aspirations of reform and the reality of the new regulations. The system of delivery of housing land has historically struggled to maintain sufficient land supply during periods of peak market demand. How will it deliver the 35,000 new homes that the Scottish Government now aspires to provide each year?
In examining the draft regulations on development planning one might expect to see evidence of a streamlined process, which creates the correct conditions for increasing land supply. Not so. The process of local plan inquiries where house builders pursued sites they were seeking to develop before a reporter; and had them tested in public is, to become a thing of the past. Such inquiries will almost certainly become the exception. Instead house builders will require to lodge extensive written material justifying the identification of a housing site for consideration by a reporter, with no expectation that they will have the opportunity to submit further representations or respond to competing or contradictory material. Is the planning system really any better or more responsive for eliminating this important element of transparency? For developers to have confidence to invest in promoting sites, complex issues must be properly scrutinised and all sides assured that they their case has been properly understood. Are national house builders really going to devote considerable resources in Scotland to pursuing sites, the merits of which will be decided behind closed doors? Why produce a system in which promoting a housing site for 300 houses does not enjoy the right to be heard, yet a planning application for 101 houses calls for a mandatory pre-determination hearing? If the government really wanted to improve the preparation of local development plans and the delivery of housing land, the proposed measures are difficult to understand.
The proposed planning hierarchy and appeal reforms highlight another concern. The draft regulations suggest that a housing application of 99 houses will be a local development i.e. determined by a planning officer under delegated powers and with a right of appeal to the local review body comprised of local councillors. It is impossible for a developer to break out of the local decision-making and local appeal cycle. There is no right of appeal to Scottish Ministers where investors can have confidence that decisions will be taken outwith the local political context.
Pre-application consultation is another area which could inhibit development. The draft regulations demand a minimum of 12 weeks of pre-application consultation before a major application is lodged. This is to front load the system and enhance public participation. Yet, the new regulations provide no obligation on consultees to provide a response during the pre-application period. Resources will continue to dictate response times. However, if the application then changes once submitted, or if the consultation is found wanting, the process will have to be re-commenced. Another 3-month delay.
Anecdotal evidence also suggests that not only is morale in Scottish planning authorities close to rock bottom but there is a real difficulty in attracting and retaining staff. The new Planning Act imposes additional responsibilities on planning authorities including responsibility for carrying out neighbour notification, entering into processing agreements and updating local development plans every 5 years. The intention may have been to reinvigorate the profession within planning authorities. But without additional resources ring-fenced for planning departments to install and improve systems and attract and retain staff, the proposed reforms are not going to succeed. If there is a loss of confidence in the planning system from the development industry, the reforms could well act as a disincentive to investment in the Scottish property market. Investors will quite simply take their business to places where permissions are easier and quicker to obtain.
There is still an opportunity for responses to be made to the consultations and robust submissions should be submitted if we are to have a planning system which is genuinely more efficient and inclusive.
Moray Thomson is an associate specialising in planning and environmental law at UK law firm Shepherd and Wedderburn.