Biggart Baillie Solicitors

Planning Changes - Reflections on some of the Issues

Monday, February 23, 2009

by Murray Shaw

Now we have all the regulations necessary to implement the 2006 planning legislation it is possible to give some consideration as to what the changes will in fact mean and where their impact might be felt.

Development Plans

Underlying the planning system we have “Development Plans”.  These are key documents which should inform all parties about not just the acceptability of developments but the way in which local authorities see their area developing. 

As well as changes to speed up the system of making Development Plans (see below), it is clear that Scottish Ministers expect local authorities to “up their game” in relation to the preparation of these.  Scottish Ministers want the documents to be concise, but visionary, while remaining realistic!  It appears that the approach within local authorities to the preparation of these documents will need to change.

Under the present system in Scotland, all areas have a two-tier system of plans - a Structure Plan and a Local Plan.  The Structure Plan is supposed to set out the broader parameters for development with a spatial dimension, while the Local Plan is intended to be more specific and in particular site specific.  Going forward there will only be Strategic Development Plans in the bigger “city region” areas of Scotland, namely Aberdeen and Aberdeenshire, Dundee, Perth and Fife, Edinburgh and the surrounding area and Glasgow and the surrounding area.  While these areas will in reality cover a significant part of Scotland’s population, geographically there will be significant areas of Scotland which will not have Strategic Development Plans.  It will be interesting to see whether Local Development Plans (the equivalent of Local Plans) in those areas take a different form and format to those in the city region areas. 

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Plan Preparation

So far as preparation is concerned, it is clear that Scottish Ministers expect preparation to be a more streamlined process with a view to both Strategic Development Plans and Local Development Plans being significantly more up to date than historically has been the position with their counterparts.  One issue that has caused complications in relation to the preparation of Local Plans is the need for conformity with the relevant Structure Plan.  Delays in the adoption of the Structure Plan have often led to delays in progress of the Local Plan (Fife is a good example of this).  In relation to the timescale for approval, Scottish Ministers may well need to “up their game”.  Be that as it may, given the timescales which Scottish Ministers expect all local authorities (planning authorities) to work to, it seems inevitable that there will have to be a higher degree of co-operation than may have previously been the position and certainly “twin tracking” in relation to the preparation of Local Development Plans alongside Strategic Development Plans.  This again is likely to require a change of approach on the part of local authorities with more effective engagement between them and the Strategic Plan (Structure Plan) teams that exist.  

Once a Strategic Development Plan and Local Development Plan have been adopted, the process of keeping them up to date is likely to be assisted by both the maintenance of a monitoring statement and an action plan.    Again if these are to be effective, local authorities will need to devote resources to them to make them meaningful.

In Scotland it is not been unusual for there to be significant changes between various drafts of, in particular, Local Plans.  That should be a thing of the past.  Local authorities are to produce an “issues report” which will be followed up by the proposed Plan.  It appears to be the expectation that the proposed Plan will in effect be the Council’s final position in relation to matters, subject only to changes brought about by reasoned comment and/or objection.  In other words the front loading of the planning process which is seen in relation to other areas (for example appeals), is equally to apply to the Development Plan process.  This, as well as saving time in the adoption process, should free up resource by avoiding “unnecessary work”.  If that is correct, it may assist local authorities to deal with other issues they need to address in the plan making process.

While the foregoing is all welcome and should lead to preparation of more up to date Plans, clearly local authorities will have to adapt to the new system and in particular the timetables inherent in the new system.  To avoid difficulties it appears inevitable that Councillors may have to be involved at an earlier stage and with greater engagement than historically been the position. 

Local Plans in particular have often faced difficulties as a result of limited information becoming available from public agencies and statutory bodies – it is not unknown in a Local Plan inquiry for it to become apparent fairly late on in the day that there is, for example, some sewerage constraint in relation to development.  Meaningful engagement by such public bodies and statutory authorities in the Development Plan process would obviously minimise such difficulties.  Specifically in terms of the regulations there is an obligation upon planning authorities in relation to the preparation of Plans to consult what are known as “key agencies”.  The 2006 Act requires these agencies to co-operate in parts of the plan making process.  More practically, following the Planning Summit which took place in October 2008 [see Planning Reforms – Some Practical Changes] these key agencies have undertaken to respond in a more proportionate and timely manner to the planning system.  That certainly is going to be critical if the timescales which the Scottish Government hope to implement are to be carried through effectively.

It is important that speed is not simply equated with quality.  It seems to be clear, however, that the examination of Development Plans will be a significantly streamlined process in comparison to the current system (particularly in relation to Local Plan inquiries).  The draft rules which appeared in December 2007 on Development Plan Examinations were not actually enacted, but elements of these were subsumed into other set of regulations.  There is now no specific set of regulations dealing with Development Plan Examinations.  The expectation of the Scottish Government appears to be that consideration of most representations (objections) will take place on a written basis without any form of inquiry or hearing and that there will be no right to the objector to amplify the grounds of objection.  That certainly means from an objector’s perspective they need to be very clear with their objection and not assume that further information can be submitted at a later stage.  If this approach is in fact followed through, it certainly should result in a quicker examination process – there is no reason why the person charged with examining the Plan should take as long to report back to local authorities.  The issue (which must not be lost sight of) is whether such an approach will “dilute” the quality of Plans – a critical issue bearing in mind Section 25 of the 1997 Act and the fact that Development Plans (certainly in development managing terms) have primacy.

In relation to preparing Plans local authorities have new obligations, not only in relation to what they are required to do and how they are required to do it, but in providing information in relation to what they are doing.  In particular local authorities need to notify occupiers and neighbours of sites which are the subject of certain proposals.  The obligation to notify depends upon the proposal having a significant effect on the site in terms of its use or amenity and notification needs to be given to owners and occupiers of the land affected and neighbours.  Local authorities also now have the obligation of giving out specific “neighbour notification” in terms of application for planning permission. 

These obligations and notifications are not insignificant burdens and local authorities are likely to be concerned about the potential consequences of any failure to fulfil these obligations effectively and as required by the legislation.  Hopefully most of the burden will be fulfilled using electronic systems.  It is however to be hoped that this burden does not require resources to be taken away from the important obligations in relation to preparation of Plans with a view to simply ensuring compliance with technical requirements.

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Development Management

Turning now to the development management process, the formal requirement for processing agreements has been dropped from the regulations.  The use of processing agreements was proposed by the draft regulations.  In effect the processing agreement was an agreement between the planning authority and the developer in relation to a major application setting out in effect what each party would do and when they would do it.  It is still possible for a local authority and developer to enter into a processing agreement on a voluntary basis though in the absence of any statutory provision in relation to these it seems unlikely this will happen on any form of regular basis.  Despite the fact that there is no statutory basis for processing agreements it seems clear that there remains potential for there to be advantages to both sides from the use of such agreements.  Clearly time will tell as to whether such advantages result in their use or whether notwithstanding the advantage seeking to enter into a further agreement is simply seen as an impediment to getting on with matters.

As we move into the practical implementation of the regulations clearly further issues are likely to arise.  The changes are complex and it is only when we work in practice with them that we are likely to see all the nuances and indeed their ultimate significance. 

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For more information email Murray Shaw or call 0141 228 8000.