Biggart Baillie Solicitors

Planning and Major Projects

Wednesday, March 04, 2009

by Murray Shaw

Introduction
While we are in the course of significant changes to the planning system in Scotland, we should not lose sight of the fact that there are also significant changes taking place in England and Wales. 

While the planning systems in Scotland and in England and Wales follow similar principles, there are differences which have been emphasised as a consequence of the recent changes.  For example:

• England will shortly have a community infrastructure levy which is intended to help fund (as the name suggests) necessary infrastructure in relation to development.  The Scottish Government have signalled an intention not to follow a similar approach in Scotland given the current economic climate. 
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  In Scotland we will soon have local review bodies to deal with “appeals” in relation to smaller applications.  In England such an approach was specifically disavowed on the basis that such bodies would not be human rights compliant.  While a number of parties have made clear to the Scottish Government that they have a similar view, these bodies will be operational in Scotland in the latter part of this year.

Major Developments
There is one particular area where both jurisdictions have been looking at the relevant issues for similar reasons – major projects.  There is criticism both north and south of the border about how long it takes to secure consents for major projects, an area of growing concern both to the development industry and to Government.

The position appears to have been particularly difficult in England possibly because of the size of the projects.  The time taken to obtain permissions for major projects such as power stations and infrastructure projects (such as new airport terminals) has become simply unacceptable.  In addition to issues of time there are very significant costs.  Similar issues are likely to arise in respect of the new generation of nuclear power stations if these proceed.

The solution in England has been to establish the Infrastructure Planning Commission (“IPC”) in terms of the recently passed Planning Act 2008.  This will be an independent body operating on a national basis and will make planning decisions on nationally significant projects such as transport, energy, water and waste infrastructure applications.  Decisions in relation to such projects will be based upon National Policy Statements which, while subject to public consultation, will be determined at a Parliamentary level.  In effect the principle of such developments will be determined at that level with the IPC dealing with the detailed issues which then arise. 

The IPC is due to be operational from the early part of the 2010.  It is fair to say that the IPC is not universally popular and the Conservative Party indicated in the middle part of February that if elected into Government they would abolish the IPC.  Such an approach is unlikely to be popular with business which has generally supported the IPC as a means of avoiding lengthy, expensive inquiries.  The inquiry in relation to Terminal 5 at Heathrow took some 8 years or so. 

In Scotland a similar approach has been adopted in relation to “national” developments which will be specifically the subject of the National Planning Framework. NPF2 is currently being debated before the Scottish Parliament.  The projects identified in NPF2 (the principle of which will be established at the level of the Scottish Parliament) are truly national, including projects such as the new Forth Bridge Crossing and the possible Rosyth Container Port. 

There will still be substantial projects in Scotland which will have to go through the “normal” planning process where the principle of the project may well be at issue as well as the detail.  Such projects will be “major” projects in the context of the new hierarchy. Transport projects will normally be subject to a separate regime in terms of the Transport & Works (Scotland) Act 2007.

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Practicalities of National and Major Developments in Scotland
There remains concerns in relation to how both national and major applications will be dealt with from a practical point of view and the Scottish Government have recently produced a research paper entitled “Processing Planning Applications for National and Major Developments”.  This research paper is based upon work undertaken by the well known consultancy, Tribal Consulting.  While it relates to issues in respect of both national and major developments, for most the issue is more relevant in relation to major developments. 

This paper looks at a number of issues including the means of engaging with statutory consultees, the way in which local elected members should be involved in advising on an application, the use of processing agreements, whether there are other alternative approaches that might be adopted to speed up decision making and the establishment of an advisory service. 

The means of engaging with statutory consultees in relation to all applications is an issue of concern and one which the Scottish Government has already tackled and dealt with at the Planning Summit in October 2008.  Historically statutory consultees have been slow to provide information which, in part, may be because they have been given insufficient information themselves.  In fact, statutory consultees have indicated the clear willingness to be more proactive in the planning process and there are provisions in the 2006 Planning Act which in certain circumstances places obligations upon them to engage more.

The issue of involving elected members prior to the actual decision being made is a difficult one with many elected members being concerned to ensure that their actions do not cause prejudice to the decision making process.  This tension is recognised in the paper.  It appears to be a concern both north and south of the border.  The difficulty appears to have been exacerbated by multi member wards and there are clear issues of confidentiality (particularly given Freedom of Information legislation).  The discussion paper does not come up with an easy solution to the difficulties.  It does highlight (correctly) that there is need for much more up to date guidance on what is the appropriate role for members in this context.  Interestingly enough one of the issues raised at the Planning Summit by John Swinney was whether it was appropriate to have some mechanism whereby developers could get “an early view” in relation to proposals which were coming forward but which did not conform with the Development Plan.  While that whole question is fraught with difficulties, one particular difficulty would be whether that view should be given by officials (and therefore be non-binding) or elected members (and still be non-binding but possibly more authoritative).  It is not yet clear whether the Scottish Government will actually take that issue any further.

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Processing Agreements
The discussion paper comes out in support of processing agreements.  The timing of the paper is interesting because the mandatory use of processing agreements in respect of major applications was dropped from the final version of the Development Management Regulations which will become fully effective on 3 August 2009 as part of the process of implementing the 2006 Planning Act.  Interestingly enough the paper indicates that of the 8 Scottish Planning Authorities consulted, 5 had no experience of using processing agreements, 1 had tried to use a processing agreement but abandoned it when it was not successful, 1 other had attempted to use a processing agreement but was similarly not successful and according to the paper the other local authority had attempted to use them once.  While the paper does not make clear whether or not that attempt was successful, it is probably fair to surmise that if it had been successful the paper would have said so.  The position in England did not seem to be significantly better.

Against this background it is perhaps not surprising that the Scottish Government chose to drop the mandatory use of these agreements from the Regulations referred to above.  Nonetheless this paper supports their use and appears to be supported in those views by a broad range of consultees.  It may well be that processing agreements will therefore come back on the agenda.  There is of course no reason why processing agreements cannot be entered into on a voluntary basis – it seems unlikely however that that will happen in the absence of any statutory intervention.

Amongst other areas explored are protocols which some Councils have in place to deal with major applications, the possibility of having some form of “project management” and a formalised pre-application consultation process which might involve charging for that.  In England local authorities can legitimately charge for this, though not all do.  There is no legal basis at the moment for such charges being levied in Scotland.  While we currently await a revised fee order, it seems unlikely that this will make provision for charges for this part of the application process.

Scottish Advisory Service
Perhaps the most interesting recommendation in the paper is the proposal that an advisory service should be set up in Scotland similar to that in England known as ATLAS (English Advisory Team for Large Applications).  This operates in England as an independent advisory service to local authorities and covers most (but not all) of England.  This apparently has approximately 20 full-time equivalent staff working from 3 offices which a variety of qualifications and indeed backgrounds.

The role of ATLAS is to offer direct support to local authorities in delivering key Government objectives.  It will consult with other parties and will engage at any time.  To some extent it appears it may even act as a “mediator” in relation to difficult issues.  A critical part of its role is to establish and disseminate good practice.  It apparently encourages the use of processing agreements.  Those consulted appear to be positive in relation to the role of ATLAS. 

The paper from Tribal does not advocate that an identical body should be established in Scotland given the fact that Scotland has fewer projects of the size and type that ATLAS tends to deal with.  It does however recommend that there is scope for a smaller body which provides and supports best practice in dealing with major planning applications.  Potentially it is considered that this body could provide or organise training in project management and other areas. 

Such an approach seems sensible.  Scottish local authorities are of disparate sizes with disparate resources.  Some will be much more familiar with, for example, Environmental Impact Assessments than others.  Equally some will be much more familiar with major projects (such as utility projects and pipelines) than others.  Disseminating good practice through a body of the sort recommended in the paper would seem to be sensible and achievable at a fairly modest cost.  The paper suggests that the costs should not exceed £500,000 a year and that not more than 3 or 4 full time equivalent employees would be required.  Certainly that sort of investment is a modest one in the context of the cost of major infrastructure projects. 

It remains to be seen whether the Scottish Government accept this advice but it would certainly be a very practical way of trying to resolve some of the issues which do cause difficulties in Scotland.  Perhaps of more interest will be whether the Scottish Government revisits the issue of processing agreements notwithstanding the clear recent decision not to pursue them.  Having said that, the relevant guidance circular which has come out advocates their use, albeit on a voluntary basis.

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For more information, please contact Murray Shaw on 0141 228 8000 or email mshaw@biggartbaillie.co.uk