Heads I Win, Tails You Lose?
Wednesday, January 09, 2008
by
Murray Shaw
The process of implementing the changes to the planning system in Scotland is now fully under way. That is not to say the process is not without some problems with the timetable for the National Planning Framework slipping slightly so that the next step in the process (the publication of the Draft National Planning Framework 2) has been delayed until early 2008 rather than late 2007.
One of the most contentious areas in the Planning Act was the proposal to categorise developments as either national, major or local. The consequence of this is that different types of development will be treated in different ways and will be subject to different procedures. This contrasts to the system which has operated for 60 years which has meant that all applications were subject to the same procedures, save only those which require an EIA where the period to determine the application is extended from 2 months to 4 months.
Most parties accept that treating all applications in the same way is not sensible and that resources should be targeted appropriately. There has been considerable concern that planning authorities often dealt with the more simple (but more voluminous in number) applications at the expense of more complicated applications, not least that by so doing they hit the targets which are set by the Executive requiring a specific percentage of all applications to be dealt with within the statutory target period of 2 months. The practical effect of this is that resources are in effect used on these simple applications at the expense of others.
Developers are also concerned that some authorities are unwilling to “negotiate” over proposals which do not accord with the Development Plan and refuse them rather than devoting resources to reviewing them. Planning Authorities are equally concerned that many proposals are submitted without all the necessary information being available which is then “dripped” in, a process which uses up resources. Allowing more flexibility and adopting different procedures may help address these issues.
The consultation paper which emerged at the end of November identified how it is proposed that developments will be categorised. The whole purpose of categorisation, as paragraph 1.5 of the paper makes clear, is to focus “engagement and scrutiny on the more complex development management proposals, while at the same time seeking to streamline and speed up those processes, where possible”. The discussion paper is explicit that planning authorities should be able to prioritise resources more effectively with a view, ultimately, to processing applications more efficiently. Specifically the discussion paper notes that “major proposals which are likely to have the most significant economic, social or environmental benefits should receive appropriate priority by planning authorities”.
This approach appears to be entirely consistent with an apparent change of emphasis on the part of the Scottish Government. It appears that the new Government is more concerned about planning as tool in relation to economic matters than social matters; if so that it is certainly a chance of emphasis in comparison to the previous administration. That emphasis appears to be clear in the speech made by John Swinney on 13 September 2007 where he outlined the categories of developments which he anticipated would be identified as national developments in the National Planning Framework.
The categorisation of a development as a “major development” will however have benefits alongside burdens or obligations. On the plus side it is intended that more resources should be devoted to such developments, though the determination period is likely to be greater. Again potentially on the plus side there is the possibility of entering into a handling agreement with the planning authority which will set out a timetable for parties to adhere to. If these operate as intended they should address many of the concerns on both sides of the planning process. They should confirm dates for information to be provided and when the decision will be made. Separately, the right of appeal against a refusal or non-determination will remain to the Scottish Government, (albeit the nature of the appeal process is likely to change significantly). Many will consider this an advantage.
On the other side of the “balance sheet” however major developments will be subject to extensive public consultation which may be time consuming and expensive and will certainly require a “front loading” of effort (probably no bad thing in itself). The topic of community engagement was the subject of a planning advice note published in March 2007 (PAN81 – Community Engagement – Planning with People). Equally the corollary of increased importance is increased scrutiny, particularly if the application is contrary to the Development Plan. According to the consultation paper dealing with the hierarchy the extent and nature of enhanced scrutiny will be the subject of further consultation in a discussion paper specifically dealing with “development management”.
Critical of course to the whole approach is where the boundaries are drawn and the consultation paper makes this clear. As anticipated national developments will be those identified in the National Planning Framework either by reference to a specific development or class of development. Local developments are those which are neither national or major. To be a major development the proposal has to meet one of the following criteria:-
1. It needs to be subject to a mandatory EIA (i.e. it is Schedule 1 development).
2. It needs to relate to 100 or more housing units or the site for housing needs to exceed 2 hectares.
3. If a business generating storage or distribution proposal the footprint of the development requires to be in excess of 20,000 square metres or the site needs to exceed 4 hectares.
4. In a renewable energy field the output requires to be in excessive of 20 megawatts.
5. In relation to waste management the facility requires to have the capacity in excess of 25,000 tonnes per annum while in relation to sludge treatment the capacity needs to treatment of more than 50 tonnes wet weight per day.
6. In the field of transport the length of the road, railway or tramway, waterway, aqueduct or pipeline exceeds 8 kilometres. All motorway service areas will automatically be major developments.
7. Any other development where the floor space is in excessive of 10,000 square metres or the area of the site exceeds 2 hectares.
(Note: while all Schedule 2 EIA developments are not to be treated as major developments per se these criteria means in effect they are likely to be so treated).
It is not immediately clear how these classes will operate if and to the extent the end result is not entirely clear – for example the number of units have not been finalised. Equally it is not clear what happens if as a result of discussions with the local authority the size of the development drops below the relevant threshold (as might be the case for example if a local authority requires a significant area of open space and that has the effect of reducing the capacity of the site). Presumably the planning authority and the developer will have to resolve these issues with recourse to the courts in the unlikely event that matters cannot be agreed.
The discussion paper specifically makes clear that it is not proposed to vary the hierarchy for different parts of the country. While this can be understood that is likely to raise issues or concerns. For example a 90 house development in a rural area may be major (both in terms of its relative size and impact) though not major in the large conurbations. These criteria mean it will not be a major development wherever it is situated. Remaining with the example of households it is likely that smaller developers in particular will be concerned about the application of the hierarchy, not least because local developments are likely to be subject to enhanced schemes of delegation with the appeal route being from the planning officer to a local review committee (with no appeal to the Scottish Government).
The intention is that major developments should be subject to handling agreements. However it is proposed that in the default of an agreement the period for the determination of a “major” application should be 4 months (a period equal to that currently applying to developments which have been subject to an EIA). Whatever ought to be the position major developments may require more that 4 months for consideration, even where they have been subject to considerable pre-application consultation.
The approach of seeking to distinguish between different types of development and prioritised resources must be the correct one. The issue is likely to be where the thresholds have been fixed.
Where proposals sit around the threshold which would take a development from the local category into the major category a developer will have to give careful consideration as to the pros and cons of how that proposal might be categorised and apply accordingly. Different developers are likely to come to different conclusions. It is entirely possible that some developers will try and enhance the size of their developments to have them treated as major while in others developers may take the exact opposite approach.
There is clearly an important topic in terms of the ongoing updating of the planning system. The consultation closes on 21 March. It will interesting to see how different parties approach the issues.
The information contained in this article is given for general information only and does not constitute legal advice on any specific matter.