Planning for change

Monday 3 August was a planning reform milestone in Scotland '“ the day when most of the changes to the Scottish development management system (planning applications, appeals and reviews, and enforcement) took effect.

Overall the changes to the Scottish planning system are intended to promote efficient decision making '“ therefore cutting down on delays. A more proportionate approach has been introduced. The new hierarchy, dividing developments into national, major and local, requires different procedures depending on the scale or complexity of each individual project.

While the overall planning framework remains very similar, there are significant changes which firms with clients in Scotland, and those looking to expand, develop or invest in Scotland, ought to be aware of.

Every planning application still has to be submitted to the local authority. The authority must still determine the application in accordance with the provisions of the development plan unless material considerations indicate otherwise. The recently published National Planning Framework for Scotland 2 (NPF2) lists 14 national developments, largely consisting of transport, electricity and drainage infrastructure.

Inclusion on this list is a final decision on the need for the project. Although planning permission will still be required, the consent process will not revisit the issue of need and will focus on matters such as siting, design, and the mitigation of environmental impacts. It is hoped that this will reduce the delays previously associated with the process of consent for such projects.

Other significant changes to the system for processing applications include:

• Developers to undertake pre-application consultation for national and major developments.
• Processing agreements to be used for major or national developments.
• New delegated powers for local authority officers to determine planning applications for local developments.
• Pre-determination hearings to be held by planning authorities for applications for national developments and major developments that are significantly contrary to the development plan.
• Planning permission in principle to replace outline planning permission.
• Planning permissions granted after 3 August to expire after three years (two years for planning permissions in principle).
• Developers to notify initiation and completion of development.

Transfer of decision-making power

There are also fundamental changes to the appeals system. Instead of all appeals being decided by the Scottish Ministers, where an application is decided by a planning officer acting under the new schemes of delegation, that decision is now subject to review by the local review body (LRB), made up of councillors.

The LRB's decision is final (other than in very limited circumstances), subject to appeal on point of law to the courts, so this marks a significant (and, for some, controversial) transfer of decision-making power from central to local government.

Questions remain whether this arrangement complies with article 6 of the European Convention on Human Rights '“ can councillors be independent and impartial when they are reviewing the decision taken by an officer of their council? How will councils ensure that review bodies are independently advised?

Other changes to planning appeals include:

• Time limit for lodging appeal/review has been reduced from six months to three months.
• Full details of the case must be lodged with the notice of appeal/review '“ no new matters should be introduced from the application, and no amendments made after the appeal/review '“ so planning applications must be comprehensive.
• Reporters and local review bodies determine procedure. There is no right to oral hearing.

As a general rule, these changes will apply to applications made before 3 August (although planning permission already issued will not be affected). Where applications for national and major developments were submitted before 3 August, there is no need to go back and carry out 12-week pre-application consultation, and there will still be six months to appeal.

Appeals from 3 August will be determined under the new system, even if the application was determined before 3 August.

Most of the planning reforms have now been implemented. The exceptions are (with estimated dates for taking effect):

• Changes to permitted development rights (late 2009 for householder development and late 2010 for other development).
• Good neighbour agreements (December 2009).
• Tree preservation orders (TBC).
• Planning application fees (TBC).

As the Scottish government has emphasised, culture change is also required for the planning reforms to succeed. There are promising signs of new approaches by the public and private sector, but adequate resourcing remains a concern, especially where reforms such as the introduction of local review bodies result in new and potentially very significant demands on planning authorities.