Biggart Baillie Solicitors

Planning Agreements and Householder Developments

Friday, January 07, 2011

by Murray Shaw

Introduction

It is four years since the 2006 Planning Act was passed.  Changes to the planning regime were a significant part of the manifesto of the previous Scottish Government (the Labour/Lib Dem coalition).  The current Government (the SNP minority Government) recognised the need however to carry through improvements to the planning system and they have been progressively, albeit slowly, bringing into force the changes brought about by the 2006 Act. 

Permitted Development Rights

As well as changes at the level of primary legislation, it was recognised that there needed to be changes in respect of the subordinate legislation and the way in which the planning system operates.  A critical area identified for change was permitted development rights.  The intention quite simply was that the classes of permitted development rights should be reviewed and in effect extended with a view to seeking to ensure that the time of planning officers was freed up to deal with more significant applications important to the Government’s overall objective of sustainable economic development.  That need has to some extent been undermined by the current economic position in the country.  One effect of that has been a significant decrease in the number or larger planning applications (the overall number of applications has not dropped as much as may have been expected but that masks the fact that the number of bigger applications has decreased significantly while the number of householder and minor applications has held up).  Indeed a number of Councils (partly as a response to the Government’s economic policies but equally as a response to a number of applications now made) have been contemplating reducing the size of their Planning Departments and even making planners redundant or “freezing” posts. 

Householder Developments

While the underlying rationale for practical reasons may not be quite as significant as it once was the Scottish Government are pressing ahead to review the subordinate legislation in relation to permitted development rights.  Significant work has already been done in relation to permitted development rights for micro generation.  The Scottish Government have now come out with a consultation paper in relation to dwellinghouses.  Changes to other classes will follow at a later date.

The proposals have been the subject of considerable discussion and to a degree of “road testing” with a Scottish Office Reporter visiting local authorities to discuss the proposed changes, their implications and effects. 

Underlying the changes is research carried out in 2006 and 2009.  The objectives that identified included seeking to reduce by approximately 25% the number of householder planning applications and to take from the ambit of control in particular single storey rear extensions.  There was also a desire to simplify the position so that many minor alterations fell outwith the ambit of planning permission. 

The consultation paper looks at Classes 1 to 6 in particular of the Permitted Development Order.  The approach taken is to increase the number of classes in some respects with a view to making it easier to identify whether or not permitted development rights exist and to apply appropriate restrictions on a more proportionate and targeted basis.  The restrictions that will apply to a class will also be far more specific to that class.  Significant other changes include seeking to define the front and rear of a dwellinghouse so that it is clear what works are permitted (there being greater flexibility in respect of changes to the rear) and proposing a creation of a 1m “bubble” round the walls and roofs of houses within which alterations and improvements will be permitted.  This is primarily intended to deal with issues such as satellite dishes.  Though interestingly enough the proposal is not subject to any numerical restrictions so it appears that a householder could make as many changes as they like within the “bubble”.  Another significant change is to look at the way in which the footprint of a building might be extended.  At present there is a permitted percentage increase (which is subject to an overall limitation) which requires an analysis of floor areas or site areas.  The intention now is that there should not be such a restriction but that the footprint of the building (as extended) should not extend to more than 50% of the site.  Changes are also proposed in relation to altering external details.

The proposals seem to be well thought through and practical.  The real issue is of course whether or not they achieve their aim which to some extent depends upon the ability of members of the public to understand what is permitted.

Planning Agreements

The one significant part of the primary 2006 legislation which has not yet been enacted is that in relation to Planning Agreements (colloquially referred to as “Section 75 Agreements”) and Good Neighbour Agreements.  Section 75 Agreements have been with us for a considerable length of time – in fact it is not uncommon to come across agreements in terms of Section 50 of the Town & Country Planning (Scotland) Act 1972 (the predecessor legislation to the 1997 Act which in turn is to be amended by the 2006 Act) which are still in effect.  In terms of the 2006 Act the Government took the opportunity however of revising a number of provisions and included a right of appeal in relation to a refusal by a local authority to discharge or in effect amend a planning agreement.  In England there was already such right of appeal but not in Scotland.  The 2006 Act makes provision for such an appeal and the Government has now provided the Regulations  which will come into effect on 1 February dealing with how such applications to modify or discharge planning agreements (or planning obligations) should be made and dealt with and how in the absence of an agreement between the applicant and the planning authority any appeal should be dealt with. 

The Regulations specify how an application for modification or discharge of a planning agreement (planning obligation) should be made including information required and the notification process.  So far as the appeal process is concerned the appeal regulations which apply to other planning appeals are applied subject to appropriate modifications.

Town and Country Planning (Modification and Discharge of Planning Obligations) (Scotland) Regulations 2010/432 

It appears to be intended that the Regulations should apply to “new style” Section 75 Agreements entered into under the new legislation as amended as well as agreements entered into under the 1997 Act as it was.  There is no reason why this should not be the position though some consider the legislation is not that explicit. 

Good Neighbour Agreements are new being a creation of the 2006 Act.  They were in fact not subject to any detailed consultation.  Good Neighbour Agreements should not deal with financial obligations but rather be entered into between a party (an applicant or a land owner) and a community group.  Likewise once entered into there needs to be provision to modify these and the Regulations  produced which come into effect on 1 February 2011 deal with this and any rights of appeal. 

Summary

The process of modernisation of the planning regime in Scotland will continue for some time yet though the implementation by the above mentioned Regulations of the provisions in respect of Section 75 is the last major piece of legislation to be implemented.  The changes to permitted development rights are all part of the process however and a critical part seeking to free up resources.

Town and Country Planning (Modification and Discharge of Good Neighbour Agreements) (Scotland) Regulations 2010/433