The Scottish Government

Circular 1/1995

THE SCOTTISH OFFICE Environment Department

THE TOWN AND COUNTRY PLANNING (GENERAL DEVELOPMENT PROCEDURE) (SCOTLAND) AMENDMENT (NO.2) ORDER 1994: NOTICES TO OWNERS ETC UNDER SECTION 24 AND MISCELLANEOUS AMENDMENTS

The Chief Executive
Regional and Islands Councils

The Chief Executive
District Councils
(except in Highlands, Borders and Dumfries and Galloway Regions)

Our Ref: PGD/1/24

11 January 1995

planning series:

National Planning Policy Guidelines (NPPGs) provide statements of Government policy on nationally important land use and other planning matters, supported where appropriate by a locational framework.

Circulars, which also provide statements of Government policy, contain guidance on policy implementation through legislative or procedural change.

Planning Advice Notes (PANs) provide advice on good practice and other relevant information.

Statements of Government policy contained in NPPGs and Circulars may, so far as relevant, be material considerations to be taken into account in development plan preparation and development control.

Introduction

1. This Circular explains the provisions of the Town and Country Planning (General Development Procedure) (Scotland) Amendment (No.2) Order 1994 (SI 1994 No.3293) which comes into force on 3 February 1995. This Order amends the 1992 General Development Procedure Order (GDPO) by transferring the detailed provisions on notification of owners and agricultural tenants from Section 24 of the Town and Country Planning (Scotland) Act 1972 (the 1972 Act) to the GDPO. The change is made in conjunction with the Planning and Compensation Act 1991 (Commencement No 17) (Scotland) Order 1994 (S1 1994 No.3292), which brings Section 46 of the 1991 Act into force on 3 February 1995. The Amendment Order also inserts a time limit for planning authorities to deal with a prior approval under conditions attached to permitted development (eg Classes 18(4)(a) and 22(3)(a)) and extends and updates the provisions for statutory consultation on planning applications. A variety of other minor and technical amendments are included. Copies of the Amendment Order and Commencement Order are enclosed for Chief Executives only.

Amendments to the General Development Procedure Order 1992

2. The amendments to the GDPO are explained in detail below:

2.1 Interpretation - a number of new definitions are added into Article 2(1). The majority are consequential to the new provisions for notification of owners etc (see paragraph 2.2) and the new requirement to consult the roads authority about accesses to toll roads (see paragraph 2.4.3). A definition of "licensed premises", which is the same as in Article 2(1) of the General Permitted Development Order 1992 (the GPDO), is added. This was an accidental omission from the original Order;

2.2 Notices to owners and agricultural tenants - Article 3 of the Amendment Order inserts a new Article 8 which has been extended to include the detailed provisions relating to notification of owners and agricultural tenants which were previously set out in Section 24 of the Town and Country Planning (Scotland) Act 1972.

The style and wording of the new Article 8 differs considerably from the old Section 24 but no changes of substance have been made to the procedures. The forms in Schedule 1, to certify that owner notification procedures have been complied with, have been revised. A Table showing which form to use in different situations is attached as an Annex to this Circular. Authorities may find it helpful to make this Table available to applicants. Article 6 of the Amendment Order makes consequential amendments, mainly to update statutory references, to the forms in Schedules 3 and 10 and to other articles of the GDPO. A revised version of Section 24, omitting the detailed provisions which have now been added into Article 8 was inserted into the 1972 Act by Section 46 of the Planning and Compensation Act 1991. Section 46 is brought into force on 3 February 1995 by the Planning and Compensation Act 1991 (Commencement No 17) (Scotland) Order 1994;

2.3 Time periods for decision - Article 14 is amended as follows:

2.3.1 as a consequence of the new Article 8 (notices to owners etc), a new paragraph (1 A) is added to provide that a planning application must not be determined until expiry of a period of 21 days from the later of the last date of service of notice on owners, the date of advertisement in a local newspaper or the date of posting of a public notice. A "public notice" is a notice posted firmly to an object in the district of the planning authority, where it is easily visible to and legible by members of the public. A new paragraph (1 B) is also added which provides that, where an authority has directed an applicant to post further public notices of a minerals planning application, the application shall not be determined until 21 days after the applicant certifies that he has complied with the direction and that every notice has been in place for the required period. These paragraphs replace the old Section 24(4) of the 1972 Act;

2.3.2 paragraph (2) is extended to require a planning authority to give their decision on a prior approval, required under a condition attached to permitted development under the GPDO (eg Class 18(4)(a) or 22(3)(a)), within 2 months of their receipt of the prior notification. The prior notification is the developer's application for a determination as to whether the authority's prior approval of certain aspects of the proposal is required. Applications for any other consent, agreement or approval required under a condition of a planning permission are also brought within the scope of paragraph (2). This amendment has the effect of ensuring that prior approvals and applications for other consents, etc, are subject to the same time limit as planning applications.

By setting a time limit for dealing with prior approvals etc, this new Article 14(2) also has the effect of enabling an applicant to appeal under Section 34 and Article 23(1)(c) if a planning authority fails to give a decision within the statutory 2 month period. Planning authorities will wish to note that Section 33 of the 1972 Act already allows an applicant to appeal to the Secretary of State against a planning authority's decision on a prior approval. Article 23(1)(a) is being amended to clarify this point (see paragraph 2.5.4);

2.4 Consultations before grant of planning permission - Article 15 is amended as follows:

2.4.1 new paragraphs (1)(d) and (1)(j)(vii) - introduce a new requirement for the Secretary of State and Scottish Natural Heritage to be consulted about planning applications for development consisting of the commercial extraction of peat. This amendment, which was announced in the Department's letter of 13 April 1994 accompanying the National Planning Policy Guideline (NPPG 4) on Land for Mineral Working, gives statutory effect to the advice in paragraphs 81 and 83 of NPPG 4. Paragraph (1)(d) also combines the previous paragraphs (1)(d) and (g) and updates them to refer to Scottish Natural Heritage instead of the Countryside Commission for Scotland and the Nature Conservancy Council for Scotland;

2.4.2 paragraph (1)(f) - the wording has been clarified but no changes of substance have been made;

2.4.3 paragraph (1)(i) - is extended to require the roads authority to be consulted on any planning application for the construction or alteration of any means of access to land which gives access to a toll road;

2.4.4 sub-paragraphs (1)(j)(v) and (vi) - are extended to require the Secretary of State to be consulted about any planning application for development which may affect the "setting" of a scheduled monument or a category A listed building;

2.5 Miscellaneous and Consequential Amendments -Article 6 of the Amendment Order makes a variety of amendments many of which are consequential to the new Article 8 on notification of owners etc (see paragraph 2.2). The other amendments of substance are as follows:

2.5.1 Article 3(c)(iv) - the reference to sub-paragraph (4) has been changed to (5). This corrects a printing error;

2.5.2 Article 5(1) - has been amended to make it clear that an applicant submitting a further application must still notify other owners under Article 8 of the GDPO and pay the appropriate fee, although the other provisions of Articles 3 and 4 do not have to be complied with;

2.5.3 Article 16(a) - enables the Secretary of State to direct that a particular proposed development covered by Schedule 1 or 2 of the Environmental Assessment (Scotland) Regulations 1988 is exempt development to which those Regulations do not apply. It has been amended to include a specific reference to Article 2(3) of EC Directive 85/337/EEC on Environmental Assessment. This is a purely technical amendment necessary to meet fully the requirements of the EC Directive and will have no practical effect for planning authorities. An equivalent amendment was recently made to regulation 5(a) of the 1988 Regulations by paragraph 2 of the Schedule to the Environmental Assessment (Scotland) Amendment Regulations 1994 (SI 1994/2012);

2.5.4 Article 23(1)(a) - is amended to make it clear that an applicant can appeal against a planning authority's decision on a prior approval required under a condition attached to a permitted development under the GPDO;

2.5.5 Schedule 2 - a new version of the "Certificate under Article 9(5)(a)(i)" is inserted. This includes provision for the applicant's name, address and signature which was inadvertently omitted from the original version.

Appeals - Change Made by the General Development Procedure Order 1992 not covered in SOEnD Circular No 6/1992

3. A change was made to appeal procedures by the 1992 GDPO which was inadvertently not referred to in SOEnD Circular No 6/1992. Article 23(2)(a) of the GDPO requires an appeal against refusal of, or conditions attached to, planning permission to be made within 6 months of the date of the notice of decision. This is made clear in paragraph 1 of the "Notice to Accompany Refusal etc" at Schedule 9. The powers of discretion under the 1981 General Development Order, which permitted the Secretary of State to consider appeals made outwith the required timescale, no longer apply. Appeals must therefore be received by the Secretary of State within the 6 month period, on the requisite form provided by him. Any outstanding supporting documents required under Article 23(5) must be received by the Secretary of State within 2 weeks after the end of the 6 month period. Planning authorities should note this change, and bring it to the attention of applicants. Service of notice of appeal by Fax is acceptable, provided that the documentation is complete and legible, and is followed up immediately by postal delivery of the corresponding documents.

Financial and Manpower Implications

4. The revised Article 8 (notices to owners and agricultural tenants) transfers detailed provisions from the 1972 Act to the GDPO without making substantial changes to the procedures and so will have no significant cost implications. There are some additions to the statutory consultation arrangements under Article 15 of the GDPO but these will apply to few additional cases and so should have minimal effect on costs. The remaining amendments are minor and technical changes; many of these clarify existing provisions and could result in some minor cost savings. Thus, the financial implications of the amendments, taken as a package, are not expected to be significant.

Further Copies and Enquiries

5. Enquiries about the content of this Circular should be addressed to Mrs E Hislop (031-244 4275). Further copies and a list of current planning circulars may be obtained from Room 6/84, New St Andrew's House, Edinburgh, EH1 3TG (031-244 4082).

ANNEX

TABLE SHOWING WHICH OWNER ETC NOTIFICATION CERTIFICATE TO USE