The Planning Act - Implementation Here We Come
Friday, November 23, 2007
by
Murray Shaw
The Scottish Executive published at the end of October the first significant draft statutory instruments intended to implement the new planning legislation which was passed at the end of 2006.
In effect what we now have are the draft regulations dealing with the Development Plan changes provided for in the Act. The consultation paper which accompanies these draft regulations notes that they are the minimum necessary to ensure that the priorities set out previously for development planning are achieved and the aim has been to have a light “regulatory” touch. Given the importance of the Development Plan to the planning system it has to be hoped that notwithstanding this “light” touch the significant change of emphasis proposed will be realised.
There are two sets of regulations which is apparently a consequence of the legislative procedures in Scottish Parliament as adopted for in terms of the Planning Etc (Scotland) Act 2006. Certain regulations require affirmative approval while others proceed on a negative approval basis. The consequence of this, unforeseen to the author before now, is that in trying to identify the relevant provisions regarding development planning at least four different legislative provisions will need to be looked at namely the 1997 Act, the 2006 Act and two sets of regulations. While no doubt, in the fullness of time, a wise and sensible publisher recognising an appropriate market will produce in one book all the relevant text (hopefully providing a non-statutory consolidation of the legislation), the fact that four documents have to be looked at does not help the fluency of the system. Many local people and objectors who take part in Development Plan process are confused by the system as it is. The fact that there is at least four separate items of legislation to consult is hardly going to help or encourage them to take part.
Be that as it may, the two sets of regulations (there is a third set containing transitional arrangements) really set out the procedures and processes to be gone through in dealing with the Strategic Development Plan and the Local Development Plan. Strategic Development Plans are the replacement for Structure Plans though only required for four city regions in Scotland, the boundaries of which will shortly be determined. In addition to dealing with the necessary procedures the regulations amplify what is to be contained in the Strategic Development Plan and Local Development Plan as well as the Development Plan Scheme which all planning authorities are now to publish.
Possibly the most interesting issue addressed in these regulations is the position following upon an Inquiry into a Local Development Plan. As the system currently operates, local authorities are not bound to accept the recommendations of Reporters. This is seen by many to be a weakness of the system. Third parties and local objectors often voice their concerns about this very point. Put simply, they question the benefit of being involved in a long and sometimes expensive process which does not bind the local planning authority. While it is fair to say that generally Reporters’ recommendations are accepted that is not always the case and there have been instances where very significant recommendations made by Reporters have been rejected (for example in East Renfrewshire following their last Local Plan inquiry).
It was clear in the consultation process which took place before the passing of the 2006 Act, that local authorities were to be left with a discretion about whether, or to what extent, they would be obliged to accept the recommendations of Reporters. That probably recognised that ultimately local authorities had to be accountable and needed the last say to be so accountable. The Executive made clear however that they intended to limit that discretion. That issue is dealt with in one of the draft sets of regulations entitled The Town & Country Planning (Development Plans) (Scotland) Regulations 2007. Paragraph 3 of this specifically sets out grounds upon which a planning authority may decline to make modifications to take account of recommendations made by Reporters. This paragraph probably needs to be read with paragraph 13 in the other set of regulations (The Town & Country Planning (Strategic Development Plan & Local Development Plan) (Scotland) Regulations) which sets out matters which a local authority acting as planning authority are to have regard to when preparing the Local Development Plan.
In effect, paragraph 3 sets out three circumstances in which the recommendation of a Reporter need not be followed.
The first of these identifies 3 separate issues. Namely, that the recommendation would result in an inconsistency with the National Planning Framework, the recommendation would result in an inconsistency with the relevant Strategic Development Plan and finally that the recommendation would result in potentially significant adverse effects on the environment contrary to the Environmental Assessment of the Local Development Plan. While inconsistencies are not always easy to identify these are probably understandable and relatively straight forward.
The second and third categories however, are likely to cause more scope for argument and debate. The first of these is the recommendation that has been made without regard to information and considerations specifically set out in paragraph 3 of the regulations. These to a large extent mirror the information referred to in the other set of regulations in paragraph 13 which the local planning authority are to have regard to in preparing the Local Development Plan. The possible difficulty with this “get out” is the wide range of information and considerations which have to be taken into account both in preparing the Local Development Plan and apparently by Reporters in framing their recommendations. Reporters may have to consider how they make clear that they have had regard to the relevant information and considerations in framing their recommendations (assuming of course they have). A general statement to that effect at the start of their report following on from the Local Plan Inquiry may not be sufficient. It may be necessary in relation to each recommendation they make for them to make clear how they have approached matters. Even if they do that what happens if a local authority is of the view that they have failed to have regard or have had insufficient regard? In those circumstances are the local authority acting as planning authority entitled to disregard the recommendation? Fine subjective issues may well arise and fine subjective judgements may well be made or be capable of being made.
The third “get out” relates to recommendations which are “manifestly not supported by the evidence considered in the course of the examination”. The use of the word “manifestly” seems to be trying to set a high hurdle for a local authority to get over if they wish to rely upon this ground of objection. However again this “get out” may cause difficulties for Reporters. Quite often Reporters in a Local Plan Inquiry have to consider a considerable number of objections and a large amount of evidence. Their reports often only briefly summarise the case made by the objector and the Council before making a recommendation. If that approach continues it may not be difficult for a local authority to suggest that the findings they have made are “manifestly” not supported on the basis that the brief summaries of the case may not make clear what evidence has been relied upon. Again the Reporters may have to think carefully about how they frame their reports following upon Local Plan Inquiries carried out in the context of these regulations.
Many felt the Act was a step in the right direction but equally many observed that the effectiveness of the Act would depend to a large measure on the detailed provisions which would be set out in the subordinate legislation. While the issues may be capable of being resolved, in practise it does not seem that these regulations necessarily restrict the ability of local authorities to disregard the recommendations of the Reporters as much as had been anticipated. Putting it another way, there appears to be scope for local authorities to keep the door open to do so should they so wish. If recommendations were not to be absolutely binding, sucessfully limiting the local authority’s discretion was always going to be difficult.
In practise it is fair to say that most recommendations made by Reporters are accepted by local authorities. Those that are not are usually ones of major contention where the local authority feels for financial and/or political reasons they are not able to accept the Reporters’ recommendations. It is these very areas which cause the greatest controversy. Whether or not that controversy will reduce as a result of these regulations has to be doubted.
The information contained in this article is given for general information only and does not constitute legal advice on any specific matter.