Alastair McKie looks at the details of major planning legislation wending its way through Holyrood.

The Planning (Scotland) Bill was laid before the Scottish Parliament on 4th December 2017, and is currently working its way through the legislative process. The bill contains a wide range measures intended to strengthen the planning system’s contribution to inclusive growth and empowering communities. The bill and the way it seeks to reshape the system is of particular importance to all engaged with property development.

The bill sets out proposed high level changes to the overall framework under which planning operates with the detail to be contained within secondary legislation and policy guidance. The bill has been examined by the Local Government and Communities committee (committee) which published its Consideration Stage Report 1 on 17 May 2018 which, overall, recommended that the Scottish Parliament agrees to the general principles of the bill. The Scottish government (SG) responded in detail to that Report on 24 May 2018 and on 29 May 2018 the Scottish Parliament, following a debate, agreed to the general principles of the bill with an overwhelming majority in support but leaving the opportunity for amendments in the following parliamentary stages. This e-zine identifies and comments on some of the possible amendments to the bill that may come forward.

The purpose of planning

The committee has recommended that the purpose of planning is included within the bill, reflecting the ambition to create high quality places, protect and enhance the environment and meet human rights to health and livelihood and to create economic prosperity. SG has responded on the basis that there is no consensus on what such purpose should be and that the approach to date has to been to enshrine that purpose in policy. SG cautioned against too narrow a purpose restricting the role of planning, would have operational implications and could be used to challenge decisions. SG will consider further the best way to articulate the purpose of planning in the bill and will bring forward appropriate amendments at Stage 2.

National Planning Framework

The committee welcomed the proposal to incorporate Scottish Planning Policy and the National Planning Framework (NPF) and put them on a statutory footing but recognises concerns arising from the NPF becoming part of the development plan. In welcoming a move to a 10 year cycle for reviews and acknowledging the need for interim reviews the committee has recommended that enhanced parliamentary scrutiny is needed. The SG have responded by stating that the bill extends the period of parliamentary scrutiny for the NPF from 60 to 90 days but stressing the importance of statutory timescales in order to avoid “open ended” parliamentary scrutiny.

Removal of Strategic Development Plans

This is one of the more controversial proposals with concerns as to how the “gap” following their removal will be filled. The committee are not convinced of the benefits in their removal and have recommended that the current statutory framework for regional planning should not be repealed unless a robust substitute mechanism is provided to that proposed in the bill. The committee has suggested that a statutory mechanism could enable local authorities to work together for strategic planning purposes. SG have responded that whilst the need for strategic planning remains, strategic development plans should not be used, a view endorsed by the Independent Panel. Strategic planning can be set out collectively in the NPF and SG consider that this could provide opportunities for innovation, improved alignment, fuller collaboration and streamlining. SG will however look to introduce at Stage 2 a clear duty for local authorities to work together in strategic planning while retaining flexibility. SG oppose moving strategic planning into local development plans.

Local Development Plans

The committee are content for the proposal to move local development plans (LDPs) to a 10 year cycle to align with the NPF but remain to be convinced that removing supplementary guidance will simplify LDPs. Removal of SG may result in greater use of local guidance without statutory weight which may not be a desirable outcome. The committee agree to the removal of the Main Issues Report for LDPs and that the new evidence report and gate check mechanism provides a mechanism to address concerns. In particular, the gate check mechanism should provide for greater involvement of stakeholders with hearings. SG have responded in relation to the removal of SG that this is needed in the interest of reducing complexity, improving consistency; avoiding repetition; better resourcing and in the interest of transparency and scrutiny. Significant policy matters that have previously been embedded in SG will need to be incorporated in LDPs.

Matters of less significance can be included in local guidance. A marginally longer LDP would be more accessible and user friendly than a shorter plan with voluminous SG. Further amendments will be brought forward in relation to opportunities for community and stakeholder engagement in development planning.

Local Place Plans

Local Place Plans (LPP) are plans that communities may bring forward to reflect their aspirations for the future places they live in. The committee are concerned with the relationship between LPPs and LDPs. The committee is content that SG will amend the bill to ensure that authorities must “take these into account” but are concerned that if minded an authority can choose to ignore them. The committee remain to be convinced that there are sufficient resources need to deliver these plans. SG has confirmed that it will bring forward amendments to require that authorities must take account of LPPs in all cases and with an expectation that authorities will explain how that duty has been observed.

Equalities and Planning

The committee has asked what specific evidence, broken down by protected characteristic led it to conclude that “the overall bill provisions will have a positive impact on equalities issues.” SG in response have set out their evidence base. SG will also consider whether to bring forward further amendments (complementing others relating to stronger engagement) that will strengthen the existing requirements relating to equalities set out in s 270B of the Planning Act 1997.

Third Party/Equal Right of Appeal

There has been a long running debate on this issue and the committee identifies a wide range of individuals and organisations who hold passionate views either for or against. Those who are for indicate that it will lead to a more robust plan led system and those against that they would lead to delays and uncertainty. The committee has identified that there is an imbalance in the system whereby the applicant can appeal decisions that have been taken in clear accordance with the development plan. The committee believes that in a plan led system appeals should only be allowed in certain circumstances. SG’s response is that stronger community engagement at an early stage is more constructive than adversarial appeals. SG consider that adding further procedures for conflict onto the end of the planning process would be a disincentive to early positive engagement. In strongly opposing third party appeals SG confirms that it understands and respects the views of those who would seek to invest in needed development. Introducing third party rights of appeal would put Scotland at a competitive disadvantage and put additional obstacles in the way of investment and inclusive growth.

The ability for an applicant to appeal a refusal remains a valid and necessary part of the system. SG cite a significant number of much needed homes, facilities and places of work that only exists because they have been approved through appeal. SG indicate that the Minister has already provided evidence to the committee setting out the difficulties and uncertainties involved in potentially limiting appeal rights to specific circumstances. Amongst these is the situation that it is not always clear cut where a proposed development is in accord with the development plan as often some aspects of the plan will support the development and others will not.

Agent of Change

The relates to a recognition of the important contribution music venues make to cultural life and the economy and that it is unreasonable for those moving into a new development to lodge complaints about pre-existing noise levels that can ultimately result in closure of such businesses. SG’s commitment to include this principle into the next NPF is welcomed with the Chief Planner having provided guidance in the interim in regard to live music venues. The committee consider that this principle should be extended to theatres. SG are not seeking to have the Agent of Change principle included within the bill. SG have indicated their support for the principle but indicate that primary legislation does not currently mention or give preference to any particular type of use and that it would not be appropriate to do so. SG may extend the principle beyond live music venues and may extend the scope of statutory consultees for developments affecting existing venues.

Simplified Development Zones

Whilst seeing some merit in Simplified Development Zones (SDZs) the committee note that their predecessors simplified planning zones have not met with much success and remain to be convinced that they will lead to a sea change in proactive development. The committee consider that these should be required to be included within the NPF of LDP to ensure that they ae fully consulted upon. In terms of success SG points to the significant success at Hillington Park SPZ which has attracted £25M of investment. SG intend to introduce an amendment to call rename them masterplanned consent areas but do not wish to restrict the ability to bring forward SDZs by requiring them to be embedded in the NPF or LDPs.

Development Management

Part 3 of the bill will remove the requirement on authorities to charge a fee for publication of public notices. It will also remove the requirement for certain planning decisions to be made by full council after pre-determination hearings by committees. Interestingly, the bill will widen the latitude of decision making in relation to applications for the modification or discharge of planning obligations (s 75 agreements). Authorities and the Scottish Ministers on appeal will be entitled to grant such applications in part or subject to amendments, bringing greater flexibility to decision making. Pre-application consultation (PAC) is required on applications for national and major development. PAC is to given a lifespan of 18 months: if an application is not submitted within 18 months of PAC being carried out, it must begin again.

The bill also increases the scope for delegated decision-making by planning authority officers where development is of a minor nature or of localised impact. At the moment this is restricted to applications for “local development” (e.g. a housing development of fewer than 50 dwellings). In such instances the right of appeal is a right to apply for a review of that decision by a local review body (a committee of the planning authority).

The additional types of application to be included for delegated officer decisions are those for (1) the display of advertisements; (2) certificates of lawful use; and (3) prior approval under a development order.

The committee are broadly in agreement with the above changes but are seeking an increase on the powers of authorities to decline to determine applications. SG have no plans to extend this power and consider that authorities should continue to have the discretion to decide whether or not to decline to determine an application. SG are considering the possibility of charging for appeals as part of their fee review.

Fees

The committee welcome the provisions of the bill subject to further regulations that may in time permit authorities to move to full recovery for development management. A time table is sought on SG’s proposals for bringing forward their final fees structure. SG have indicated that an amendment will be brought forward to set an upper limit to any surcharge for retrospective application as a percentage of the original fee. SG will consult on the new fee regime but at this stage in unable to provide a defined timeline.

Performance of Planning Authorities

Section 26 of the bill requires authorities to prepare a report on the performance of their planning functions and also authorises the Ministers to appoint a national performance co-ordinator. The committee sees no requirement or justification for the bill’s proposals for performance and recommends that section 26 of the bill be removed. SG does not agree and does not consider that the Planning Performance Framework goes far enough and there remains unaddressed concerns about the performance. SG also see an important link between a move to full costs recovery and performance being put on a statutory footing.

Enforcement

The committee are content with the enhancing to enforcement which includes the increase in fines and the introduction of charging orders enabling authorities to recoup their costs when they take direct action to remedy planning beaches. SG state that effective enforcement is important to support trust in the system.

Training for taking Planning Decisions

Whilst the committee agree that councillors should attend training the committee do not agree that it should be mandatory as set out in Section 24 of the bill and consider that training should be considered as part of the CPD programme for Councillors. If the amendments are not made then the committee consider that the all planning decisions makers (including Councillors and Scottish Ministers) should be subject to the same training requirements. SG do not intend to amend these provisions of the bill as they have been widely supported by stakeholders and there is a need to increase trust in the system and ensuring that those taking the decisions are trained in a consistent way. SG indicate that Planning Minister does receive appropriate training in addition to detailed advice and that under section 52 of the Scotland Act 1998 functions are conferred collectively on the Scottish Ministers meaning it is not possible in legislation to identify the minister individually responsible for planning functions.

Tree Preservation Orders

The committee has sought SG’s view on a possible amendment to a procedure that is less onerous than the current one where an authority refuse consent for tree operations in a conservation area and they have to serve a Tree Preservation Order within the 6 week period. It is proposed that this approach be replaced with a full consenting regime for tree operations within conservation areas. SG indicate that this was not considered through the review and the impacts are thus untested. SG do not intend to bring forward amendments in this regard.

Infrastructure Levy

Part 5 of the bill (infrastructure levy) is arguably the most controversial aspect of the bill. The intention behind it is to provide a transparent mechanism in order to raise funds for infrastructure provision necessary for land to be developed. The committee in supporting the principle refers to SG’s response that this will not be a “game changer” but that it will be more effective in some circumstances than others. SG have indicated that this is a complex area and they intend to prepare draft regulations 2021/2022 with implementation from 2023 onwards. It is not the intention of SG to collect and redistribute levy funds from one area to another and they will bring forward an amendment to remove paragraph 14 of Schedule 1 relating to aggregating levy income. In terms of regulation making powers SG has confirmed that it will provide a sunset clause for part 5 of the bill to mandate that if powers for a levy are not enacted in within 10 years of the bill coming into force then it will lapse.

Land Value Capture

The committee has considered alternative approaches to an infrastructure levy involving land value capture. SG have indicated that whilst they are interested in a range of approaches to fund infrastructure they consider that such mechanisms could have significant impacts on markets for land and housing and knock-on effects for other parts of the economy. This matter is being examined by the Scottish Law Commission and their report will inform a subsequent SG decision.

The Balance between National and Local Decision Taking

The committee welcomes the SG’s commitment to amend the bill at Stage 2 to ensure that all ministerial Directions as a consequence of the bill and the Planning Act 1997 are published. SG are content with this approach.

Alastair McKie is a partner at Anderson Strathern