Biggart Baillie Solicitors

Planning & Sustainability in Scotland

Tuesday, November 09, 2010

by Murray Shaw

Sustainability is a word which has become “omnipresent” in 21st century Britain.  Everything (it feels) has to be sustainable. 

Definition of Sustainability

What do we mean by sustainability in the context of development?  An early definition was provided by the Brundtland Report in 1987.  That suggested that “sustainable development” was “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.  While that report resulted from a Commission set up under of auspices of the UN, other reports have come out proposing similar if not identical definitions. 

The Scottish Government have embraced the concept of sustainability with enthusiasm and have attached to it a wide reaching definition.  In the National Planning Framework 2 (a key planning document) while defining sustainable development in a way very similar to that in the Brundtland Report the Scottish Government makes the point that it is has social, economic and environmental dimensions with the consequence that its commitment to sustainable development is and will be reflected in its policies on issues as diverse as climate change, transport, renewable energy, energy efficiency, waste management, biodiversity and public health as well as its overall economic objectives. 

Scottish Government commitment to Sustainable Development

While NPF2 is a fairly recent document the Scottish Government commitment to sustainable development in its widest sense has been on the public record for some time.  In Scottish Planning Policy (SPP) 1 (now superseded) paragraph 6 stated:-

“The Scottish Executive is committed to integrating the principles of sustainable development in its policy agenda”. 

That document gave planning a key role in relation to that policy agenda.  The Scottish Government saw planning as a tool to be used to support, inform and achieve its policy agenda.  Paragraph 7 stated:-

“Enabling sustainable development requires co-ordinated action, combining economic competitiveness and social justice with environmental quality and justice.  Policies and actions of the public, private and voluntary sectors should support and encourage sustainable development.  The planning system is important as a means of integrating policies and decision making”. 

In other words, not only do the Scottish Government sees the concept of sustainable development as a wide one embracing areas other than the environment, it equally sees planning as a key tool in achieving its policy agenda with the consequence that the significance of planning goes far beyond promoting and controlling the use of land.  Paragraph 12 of SPP1 for example said:-

Guidance on Sustainability

“The planning system should feature as part of an integrated approach to social justice” – a concept which probably would have been startling to those involved in planning a decade before.

There has been a substantial amount of guidance from the Scottish Government on sustainability but it is not necessarily to refer to all to identify the key themes that emerge.  However reference to “Choosing our Future – Scotland’s Sustainable Development Strategy” from 2005 is appropriate because the foreword of that highlights how critical the Scottish Government (then a Labour/Liberal Democrat coalition) considered sustainability.  The foreword stated “Few words are required to state our commitment.  As the First Minister and Deputy First Minister of Scotland, we are determined to lead a Government which is an exemplar of sustainability”. 

That commitment to sustainability has been restated on a number of occasions with the Scottish Government going as far as saying that they want Scotland to be a world leader in relation to sustainable development – the introduction of legislation requiring environmental assessment of plans and policies (as opposed to specific applications) being a good example of that. 

Statutory requirements

While this commitment to sustainability emerged in a number of policy documents, it was put on a statutory footing as a result of the Planning Etc (Scotland) Act 2006 (“the 2006 Act”) which inserted a new section into the Town & Country Planning (Scotland) Act 1997 – Section 3E.  Sub-section 2 specifically provides:-

“The planning authority must exercise the function [its planning function] with the objective of contributing to sustainable development”.

A similar provision had appeared in 2003 in terms of the Building (Scotland) Act which governs building regulations - a provision of probably lesser impact.

Section 3E goes on to provide that the Government could give guidance on this and that guidance emerged in Scottish Planning Policy (SPP) from February 2010 – which in effect replaced SPP1.  While the language is possibly less direct the importance of sustainability and the role of planning remain the same.  Specifically paragraph 4 states:- 

“The way in which the planning system is structured and operated should be directed towards that purpose [increasing sustainable economic growth] and to supporting the Scottish Government’s five strategic objectives and fifteen national outcomes”. 

Specifically paragraphs 34 to 40 gives guidance for the purposes of Section 3E of the 2006 Act and does so by introducing specific targets in a number of areas including those relating to the reduction to greenhouse gas emissions. 

This was not the first time that targets had been set specifically in Government policy documents.  SPP6 on renewable energy in 2007, which SPP superseded, set out a requirement that Development Plans (Structure Plans and Local Plans) should include policies as to the provision of on-site low carbon and renewable sources of energy, the expectation being that developments of 500 square metres or more should incorporate on-site equipment contributing at least an extra 15% reduction in CO2 emissions beyond the 2007 Building Regulations. 

In 2009 the Climate Change (Scotland) Act was passed.  This again introduced a new section into the Town & Country Planning (Scotland) Act 1997, this time Section 3F.  This is a critical section providing:- 

“A planning authority, in any local development plan prepared by them, must include policies requiring all developments in the local development plan area to be designed so as to ensure that all new buildings avoid a specified and rising proportion of the projected greenhouse gas emissions from their use, calculated on the basis of the approved design and plans for the specific development, through the installation and operation of low and zero carbon generating technologies”. 

This statutory commitment has had a number of consequences.  A new set of Building Regulations has been brought into force intending to help achieve this objective.  Equally as new style Local Development Plans emerge they will have to include policies intended to satisfy this requirement which the development industry will require to address.  Failure to do so may result in refusal of planning permission.

In effect therefore what we now see is the concept of sustainability, important to the Scottish Government for a considerable length of time, taking on, in some areas, clearly directly enforceable obligations and requirements. 

Example from Aberdeen and Aberdeenshire

The evidence of that can already been seen.  In the Aberdeen & Aberdeenshire Structure Plan approved by Scottish Ministers in 2009 a specific objective was:-

“To be a city region which takes the lead in reducing the amount of carbon dioxide leaked into the air, adapts to the effects of climate change and limits the amount of non-renewable resources it uses”. 

This objective was supported by specific targets which included all new buildings to be carbon neutral by 2016, for the City’s electricity needs to be met from renewable sources by 2020, for all new developments to use water saving technology, and to cap the amount of biodegradable municipal waste sent to land fill sites also by 2020.

Coming along behind the Structure Plan is the Aberdeenshire Local Plan one of the first of new style Local Development Plans to be brought forward in Scotland.  Policy 8 states:- 

“All new developments are required to produce ever-lower proportions of greenhouse gases as a result of their use.  We will assess this on the basis of the installation and operation of zero-carbon generating and other low carbon technologies in the approved design for the specific development”. 

That policy in turn is supported by Supplementary Guidance which sets out specific requirements namely that new development for human occupation will be approved subject to meeting other policies in the Plan if it provides for at least 30% reduction beyond the 2007 Building Regulations in respect of carbon dioxide emissions. 

Summary

The Scottish Government has given considerable guidance on the importance of sustainability to their policies and made clear that the concept of sustainability permeates all that they do and is not just limited (as some might think) to the environment but encompasses economic policies and policies in relation to social justice.  Over the last 10 years we have seen that guidance become more and more specific and move from policy documents to specific requirements underpinned by a statutory regime.  There are of course areas where there will continue to be significant carbon emissions which may not be capable of resolution – the cost of adapting existing buildings is prohibitive.  However the development industry going forward will have to embrace the need (albeit with a cost) to meet these specific standards if planning permission is to be granted.