Biggart Baillie Solicitors

Local Authority Development & Notification of Planning Applications

Tuesday, January 12, 2010

by Murray Shaw

During 2009 the Scottish Government brought the majority of changes in relation to the planning regime fully into effect.  The only significant part of the 2006 Act yet to be made effective is that in relation to planning agreements.

An area that has caused concern in the past are developments in which the local authority has an interest either because they are promoting the development, because they own the land or because there will be a significant financial benefit to them.  While this has always been an area of concern, these concerns have been increased as a result of PFI/PPP Schemes particularly in the education sector.  These schemes often result in schools being developed in areas where other development would not have been permitted or consented with the “redundant” site being released for housing development by the PFI company or the Council.  Questions are often raised about the “transparency” of the decisions in relation to the planning consent.

Part of the new system – a key part – revolves round the “hierarchy” of developments with the intention that local developments should normally be dealt with by a planning officer under a Scheme of Delegation made specifically for the purposes of the 2006 Act.  However, the legislation makes clear (correctly) that a planning officer should not decide inter alia a local application if it is made by the planning authority or relates to land in the ownership of the planning authority or land in which the authority has a financial interest.

The Scottish Executive have also published specific guidance in PAN82 in relation to developments in which the local authority have an interest. 

PAN 82 identifies that local authorities have different roles and duties and that there can be conflicts of interest or perception of conflicts of interest.  Against that background the Executive make clear that while it is not unreasonable that land owned by the local authority may be proposed for development “it is essential that any choices they (the local authority) make in selecting sites for future development through the Development Plan process must be based on the best interests of the planning of the area”.  The PAN advises on the need for effective consultation and more particularly for ensuring that the planning consideration of any local authority development is distanced from the “corporate view”.  This is welcome advice. 

There is also a Circular (3/2009) detailing when applications will have to be notified to Scottish Ministers.  While this deals with a range of situations (not just developments where a local authority has an interest) the Circular makes clear that Scottish Ministers must be notified if the proposed development in which the local authority has an interest would be a significant departure from the Development Plan.  It should be noted that unlike the previous situation the reference to Development Plans means that notification may be necessary if the development is significantly contrary to the Local Plan not just the Structure Plan (providing the local authority have the necessary interest).

The PAN amplifies the Circular though does make clear at the end of the day the decision whether or not to notify is to a degree subjective.  What constitutes a signficant departure in particular can be the subject of considerable debate.

The Circular confirms the information to be given to the Scottish Government when notification takes place.  If there is a requirement to notify, the application cannot be determined for a period of 28 days following notification, thought that period can be extended.

Notification may be necessary in other circumstances – notably if there is an unresolved objection by certain government agencies or the proposal relates to open-cast operations providing certain criteria are met.  There is no longer any need to notify simply because the proposal is significantly contrary to the Development Plan, a major retail development or involves an EIA.

In terms of the changes enacted to the planning regime it will be necessary in the future for Local Plans to include a Schedule of Land Ownership thereby allowing interested parties to identify which sites are owned by local authorities.  That change taken with the terms of the Circular and the PAN should certainly make the planning position in relation to sites in which local authorities have an interest more transparent and that should only help increase confidence in the system.