Development Management - Practical Changes
Thursday, January 17, 2008
by
Murray Shaw
A number of consultation papers have now emerged in relation to the changes consequent upon the new planning legislation the Planning Etc (Scotland) Act 2006. However at the turn of the year, the consultation paper which is likely to have the greatest practical impact appeared. This deals with “development management”. The paper sets out significant proposed changes to the practical arrangements for applying for and obtaining planning permission. Ultimately the draft statutory instrument which it contains entitled “The Town & Country Planning (Development Management Procedure) (Scotland) Regulations” will replace the procedures which most people involved in planning are familiar with currently contained in the General Development Procedure Order. That has been with us (subject to certain changes) since 1992.
The changes made however are far reaching and go well beyond the tinkering which has occurred over the past 15 years or so. As the consultation document makes clear the changes are concerned with “making the processes around planning applications fit for purpose and responsive to different types of development proposals, improving efficiency in determining planning applications and improving public involvement in the consideration of proposals requiring planning permission”.
Enhanced scrutiny
The first topic dealt with are the requirements for enhanced scrutiny which were presaged in White Paper. The consultation paper in relation to the categorisation of development made clear that major developments would be subject to enhanced scrutiny. This consultation makes clear that enhanced scrutiny will apply not only to major developments (and national developments) but all developments requiring environmental impact assessment and other developments listed in the draft regulations if and to the extent certain thresholds are met. These include certain types of development which may raise particular problems or which relate to certain types of land. For example waste facilities are included as are developments in the green belt and developments which would result in the loss in whole or in part of a playing field for that purpose.
The enhanced scrutiny will involve pre-application consultations with local communities, pre-determination hearings, decision by the full Council rather than a Committee (or at least ratification by full Council) and notification to the Scottish Ministers for potential call in.
Of these probably the pre-application consultation with local communities is the most significant change. While the need for enhanced consultation has been identified previously (see PAN81) we now have detailed procedures which will apply. A developer can ask a Council to confirm whether pre-application consultation is necessary. If it is, notice of the intention to apply will require to be given 12 weeks prior to the submission of an application including specific information about the application. As well as giving notice to the local authority notice must be served on the relevant Community Council and owners and occupiers of neighbouring land. Specifically the prospective applicant needs to convene at least one public meeting to allow representations to be made and to give newspaper advertisement of the proposed application. When lodging the application with the local authority if pre-application consultation is required but not carried or there is no report of the process carried out or the planning authority is of the view that the applicant has not complied with the requirements for consultation the planning authority “must decline to determine the application”.
The guidance indicates that further consultation will be carried out over and above that provided for in the draft regulations depending upon the nature, scale and location of the development. In other words what is in the regulations will be seen very much as the minimum required.
In addition there are to be pre-determination hearings on a mandatory basis. The guidance makes clear that these are aimed at making the system more inclusive. Pre-application hearings will not be necessary for all applications where there is enhanced scrutiny but rather where the development is significantly contrary to the development plan or requires an environmental impact assessment. Guidance is to be given on the nature of pre-determination hearings.
Processing agreements
The intention is that major developments should be subject to a processing agreement which will equally apply to national developments. In effect these allow the applicant and the planning authority to agree an approach and a timetable for determination. A draft processing agreement accompanies the guidance.
The scope of the processing agreement and indeed its content is to be agreed between the planning authority and the applicant. These will be entered into on a voluntary basis but there is a default provision in the event that an agreement is not entered into providing for the period for determination of an application which is either a national application or a major application (4 months). The existence of a processing agreement obviously does not mean an application will be approved.
The consultation paper makes reference to pre-application discussions between the applicant and the planning authority but does not seek to put these on any statutory basis. However it is envisaged that any processing agreement will be dealt with as part of the pre-application consultation.
The key objective is apparently to set out a realistic timetable for the processing of an application taking into account the information which needs to be provided with a clear list of milestones for determination. The guidance suggests that critical components of the processing agreement will include:-
(a) Roles and responsibilities.
(b) Information requirements.
(c) Decision making framework.
(d) Key milestones.
(e) Timescales.
The processing agreement is to be made available publicly. One of the issues which is addressed is the extent to which the processing agreement might provide for other consents (e.g. listed building consent) or detailed planning permission following planning permission in principle (the replacement for outline planning permission). Interestingly enough the guidance indicates that the preference of the Government is that a processing agreement should cover all stages “required to take an application from pre-application consultation through to submission, processing and determination and, where applicable, the discharge of any conditions, the signing of a Section 75 Agreement and potential for notification of the application to Scottish Ministers”. If that happens in effect an application will be subject to a programme which will take it right through to the point of implementation. Careful thought will need to be given whether that is appropriate in all instances. The fact however that the processing agreement might extend to the signing of a Section 75 Agreement is likely to be welcomed by developers, particularly as the finalisation of a Section 75 Agreement is often an impediment to issuing the planning permission.
Planning authorities are to be assessed in relation to their performance in fulfilling processing agreements. The guidance makes clear that non-compliance with the terms of a processing agreement may result in the return of application fees. This is to be considered in the context of a further consultation on the Fees Regulations. That approach may of course make planning authorities defensive either in relation to the timescales they agree to or in arguing whose fault it is that the timescales have not been adhered to.
Planning permission in principle
Outline planning permission is to be replaced with planning permission in principle. One consequence of this is that any further approvals required in the context of the planning permission in principle will be dealt with in the same manner. Presently a planning permission may require the developer to obtain further approvals which may be “reserved matters” or simply issues where further confirmation from the planning authority is required. There is often a degree of confusion about whether or not the further approval necessary means that the issue is a “reserved matter” or not. Whether or not an issue is a “reserved matter” determines the procedures which apply to it. Accordingly the draft regulations set out how any further approvals will be obtained and the information which will require to be provided in relation to any application made.
A planning permission in principle will last for 3 years. As under the present system the local authority can vary the period, though the way in which this will be done is slightly different.
Planning applications and validation
Under the present system there is no standard planning application forms though the legislation does entitle the Scottish Government to specify such a form. Considerable work has been done on e-planning. Until this reaches some form of finality it seems unlikely there will be a standard form. However the new regulations set out the information which will be required to make a valid planning application.
The consultation paper makes clear that there was consideration given to various options including the possibility of stopping the timetable for determining applications until all the necessary information had been received. None of the options considered were considered satisfactory. However in order to make a valid application the following will be necessary:-
1. A plan sufficient to identify the land.
2. Other plans and drawings as are necessary to describe the development.
3. The appropriate notices and certificates of intimation.
4. Where appropriate a pre-application consultation report.
5. Where appropriate a design and access statement (see below).
6. The fee.
There are one or two additional issues to be dealt with for specific types of application.
Where the application is only for planning permission in principle (the equivalent of outline planning permission) different requirements are set out though these are more onerous than apply currently to an application for outline planning permission. An application for planning permission in principle will require the following:-
1. A plan sufficient to identify the land to which it relates.
2. A description of the development sufficient to describe the development in outline.
3. The relevant schedules and certificates.
4. If a layout is not complete a statement of the appropriate location of buildings, routes and open spaces included.
5. If scale is not otherwise given a statement of the upper and lower limit for the height, width and length of each building.
6. Where access is not given in detail a statement of the area or areas where access points will be situated.
7. As appropriate a pre-application consultation report.
8. As appropriate a design and access statement (see below).
9. The fee.
One issue which frequently causes debate between a planning authority and an applicant is the validation of an application. Many developers think that planning authorities sometimes deliberately delay the date of validation to give the authority more time to consider the application. At the moment a developer may chose simply to take a deemed refusal 2 months after lodging the application (or 2 months after the date upon which they take the view it should have been validated) but then run the risk at Inquiry the Reporter might find for whatever reason the application was not valid. The proposed new regulations provide that an application is to be taken to have been made on the date when the last item of information required in accordance with the regulations is received by the planning authority.
Design and access statements
The 2006 Act makes provision for planning applications to be accompanied by a statement explaining the design principles which have been applied and how issues in relation to access for disabled people have been dealt with. There has been no prior consultation in relation to these matters and this consultation paper seeks comments specifically on two options. The purpose of these statements is to make clear that the design process is thought through fully and there is a sustainable approach to access. In many ways the emphasis on design is consistent with other guidance which has been issued by the Scottish Government including for example PAN68 on design statements and PAN78 on inclusive design.
The two options appear to be that design and access statements should accompany all application except certain minor exemptions or alternatively that they should only be required in relation to certain specific development principally major developments and some other developments on sensitive sites. The first option in effect is intended to encompass all developments where the public may be involved.
It appears likely that a design statement will require to explain the design principles and concepts that have been applied while the access statement will explain how issues relating to access for the disabled have been incorporated into the design. One possibility postulated is that not all developments will require both design and access statements.
Clearly if in particular access statements are required these need to be assessed and reference is made to voluntary access panels, albeit these do not exist throughout Scotland. The assessment of such statements however will clearly be a relevant matter concerning how applications are handled and the timescales for assessment are likely to an issue both for developers and local authorities.
Neighbour notification and publicity
The responsibility for neighbour notification will lie with the local authority and the consultation paper deals with the question of who should be notified and the timescale for notification (5 days from validation). The definition of neighbouring land is to be changed (at least this is the proposal) to include land which is coterminous with or within 20 metres of the boundary of land where the development is proposed. There are provisions in relation to newspaper advertisement albeit the cost of that is to fall upon the applicant.
Local authority procedures
The consultation paper deals with processes and procedures relevant to the local authority including a list of applications and the format of a decision notice. The consultation paper also makes clear that there may be changes to the list of statutory consultees.
The period for determination remains the same except in relation to national or major developments where the period will be 4 months (or such other period as may be agreed). In addition the 2 month period will be extended where a case is to be determined by the Cairngorm National Park, where the cost of advertising have not been paid to local authorities, where information has been requested and not been provided, where an advertisement of a development plan departure has taken place later on in the process or where the parties have agreed to extend the period for determination. The decision notice itself is to be more detailed. This is likely to be welcome to developers providing that the need to prepare the decision notice does not delay the actual issue of planning permission. The planning register is also to be a fuller source.
Bad neighbour development
The consultation paper raises possible changes to the list of “bad neighbour developments”. It also suggests that the phrase is inappropriate and raises the issue of whether or not an alternative name might be appropriate. The consultation paper also raises whether or not there should be any additions to the list and identifies the possibility of including nightclubs and public houses, community halls, concert halls, places of worship (many would find it difficult to equate the last of these with a bad neighbour development), skateboard parks, waste transfer sites and recycling points but suggest the deletion of music halls, dance halls and knackers yards. It does seem slightly surprising that a “music hall” or “knackers yard” will not be a bad neighbour in the future while a place of worship might!
Mezzanine floors
While the consultation paper deals with a range a minor matters the last significant issues dealt with is control in relation to mezzanine floors with the intention of bringing Scotland in line with England. Until now mezzanine floors have not normally been the subject of planning control as they are largely internal changes. Presently planning permission of some form might only be necessary if there was a condition limiting the floor space.
The consultation papers recognises that the incorporation of a mezzanine floor may raise issues and therefore intends to regulate mezzanine floors (and other increases on internal floor space which may have the same effect) if and to the extent the increased area is to be used for the retail sale of goods. In principle it is proposed that an increase in excess of 200 square metres gross will be subject to controls. The drafting includes provision where there is incremental increases over a period of time.
In conclusion these regulations are of considerable practical significance. While only in draft they make clear the sort of processes and procedures which will be required in the future. Anyone involved in the planning system cannot afford to be unfamiliar with the content of this consultation paper.
For more information email Murray Shaw or call 0141 228 8000.
The information contained in this article is given for general information only and does not constitute legal advice on any specific matter.