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Options For Change

3.0 PLANNING POLICY

3.1 National Planning Framework

Proposal: To publish at regular intervals a national planning framework for Scotland.

Source of proposal: Review of Strategic Planning, 2001, paras.20-21; Review of Strategic Planning Conclusions and Next Steps, 2002; White Paper, Your place, your plan, 2003, paras.20-22.

Current position: There is no such framework in Scotland. The SPPs and NPPGs go some way towards providing a compendium of guidance on planning issues of national significance but they lack coherence.

Nature of proposal: The preparation of a document by the Executive at regular intervals that looks at how Scotland functions as a place, the key drivers of change and the implications for planning. This will be a new policy document.

Implementing the proposal: The Scottish Executive have suggested that the mechanism for implementation would be non-statutory (White Paper, para.20). Information would be issued to planning authorities about purpose, content, timing and process. Among those interviewed, both developers and planners thought there was a case for putting the National Planning Framework on a statutory footing (like the Spatial Plan for Wales). This would give it greater status and could incorporate a consultation requirement with appropriate stakeholders. It would also allow for a requirement to be inserted into the Act that planning authorities, or possibly all bodies carrying on public functions, should have regard to, or should conform to, the Framework.

Discussion: During the interviews it was suggested that the National Planning Framework could have a useful role to play in integrating the seemingly ever-increasing family of plans: development plans, community plans, waste plans, local housing strategies, river basin management plans.

3.2 Strategic Development Plan/City Region Plan

Proposal: To replace structure plans for the 4 largest city regions with strategic development plans

Source of proposal: Review of Strategic Planning, 2001, paras.23-36; Review of Strategic Planning Conclusions and Next Steps, 2002.

Current position: Sections 6-10 of the 1997 Act make provision for the preparation by planning authorities of structure plans. Structure plans comprise the top tier of the two-tier development plan system. They are written statements formulating the planning authority's policy and general proposals in respect of the development and other use of land in that district. A plan is prepared for a 'structure plan area'. The district of every planning authority is to be included in a structure plan area (s.5(2)). Structure plan areas were designated by the Designation of Structure Plan Areas (Scotland) Order 1995 (SI 1995 No 3002). The form and content of structure plans and the procedure for the approval, rejection or alteration of structure plans are prescribed in the Town and Country Planning (Structure and Local Plans) (Scotland) Regulations 1983 (SI 1983 No 1590). Advice on structure plans is contained in PANs 37 and 38 (revised). Structure plans are subject to approval by the Scottish Ministers who may convene an examination in public of elements of the plan before doing so (the examination has fallen into disuse).

The proposal in more detail: The proposal is to remove the top tier of the development plan for all but the 4 largest cities and their hinterlands. The Consultation Paper indicated that there would, however, be provision for the addition of other areas if a case could be made. This is not repeated in the Conclusions and Next Steps. The following matters will need to be provided for (partly in legislation and partly in advice) with regard to the preparation of a strategic development plan ( Conclusions and Next Steps refers to 'city region plans'):

• the establishment of a joint committee from the constituent planning authorities to oversee the preparation of the plan;
• a focus on employment, housing and transport but against a background of environmental factors and all in a spatial context. Other matters may be included only if they have clear strategic spatial implications;
• the plan should be locationally specific for strategic land releases;
• it should take a long term perspective - SPP 3 mentions 12-20 years (para.60);
• it must have annexed to it an action plan to be rolled forward every 2 years. The action plan will not require ministerial approval so, presumably, will not technically be a part of the strategic development plan;
• the present emphasis in structure plan preparation on the consultative draft stage should be reduced;
• where objections are lodged, the plan will be subject to an examination in public to be arranged by the joint committee. This will be inquisitorial rather than adversarial. Consideration is still being given to the extent to which the report of the examination will bind the joint committee and the constituent authorities;
• following the examination, the joint committee would draw up a list of modifications to the plan. The plan will then be submitted to Scottish Ministers for approval.
• the joint committee will decide every 5 years whether the plan should be formally reviewed.

Implementation: Primary legislation will be required to repeal the provisions relating to structure plans and to replace them with the provisions for strategic development plans. Much of the detail regarding the content and procedure of strategic development plans could be dealt with in secondary legislation, replacing the 1983 Regulations. The planning authorities to be involved in the preparation of a strategic development plan will also have to be identified by secondary legislation (but not the boundaries of the plan area). The procedure to be followed for examinations in public will need to be set out either in secondary legislation or in a code of practice. The current arrangements governing the examination in public of structure plans are set out in a code of practice (1985). Advice on the content and preparation of strategic development plans could be set out in a PAN.

The transitional arrangements will need thinking through. The components of the current development plan would presumably be replaced by the components of the new development plan as they emerge. Given the importance of the development plan in the planning process, it will be important that everyone is clear what the development plan is at any given moment.

Discussion:

• some of those interviewed wanted to see a statutory requirement on the constituent authorities to set up a joint committee, possibly with an independent chair. A lot will turn on the ability of the constituent authorities to work together.
• given the widespread delays that have been experienced with development plans in the past, it would be helpful to set a deadline for the submission of the first round of strategic development plans, including a deadline for approval by Scottish Ministers. The experience with the first round of regional reports, which were produced within a year, shows what can be achieved with regard to preparation and submission, although they were not subject to any consultation requirement. To ensure that resources follow the duty to prepare the plan, it would be helpful to give the deadline legislative force (see s.6(3) of the 1997 Act), perhaps through a formal direction. At present development planning is regarded by some as the 'poor relation' of the planning system. There was also quite a strong feeling amongst many of those interviewed that guidance encouraging speed of preparation would not be enough; it has been tried over the years and has not worked. Some sanction is required for failure to meet the deadline. The difficulty is deciding what sanction should apply in the event of default, apart from naming and shaming. The following were discussed during the interviews:
• • Planning authorities should not be allowed to charge fees for planning applications once the deadline had passed. The effectiveness of this would depend on whether the failure was a failure of management or a lack of resources. If the latter was the case, the sanction would simply compound the problem.
  • That Ministers should be willing to exercise default powers (see, for example, s.22 of the 1997 Act). There are precedents in other fields of public service, particularly education.

• planning authorities have struggled to keep structure plans up-to-date. Yet, given the importance of the development plan in the planning process, it is vitally important that they should be kept up-to-date. Any review of the strategic development plan after 5 years must be carried through quickly. Again, legislative deadlines could help. So too could one or more of the following sanctions:

• • Planning authorities should not be allowed to charge fees once the deadline has passed;
  • Ministers should be willing to exercise default powers;
  • Policies and proposals in the plan should have a defined life and should lapse at the end of that life;
  • The primacy of this level of the development plan (s.25) should no longer apply. In other words, once the deadline has passed, the plan should be uncoupled from s.25 and will simply rate as a 'material consideration'.
  • This could one of the defined circumstances triggering third party appeals.
• the advent of strategic environmental assessment could frustrate attempts to speed up the process.
• developers felt that there should be a statutory duty to consider whether or not to review the plan and that there should be a right of appeal to Scottish Ministers against a decision not to conduct a review.
• as always, it is difficult to find the right balance between participation and speed. Planning authorities felt that this was not a circle that could readily be squared. It was felt there were benefits in continuing to produce a consultation draft for strategies. Although the reintroduction of the examination in public will be helpful, people might regard this as too late for effective participation - the planning authority will have made up their mind by then and will be defending proposals.
• the examination in public of the structure plan, as a merit testing procedure, was the subject of considerable criticism. While it avoided the adversarial approach of the public inquiry, it lacked its rigour. It was difficult to deal with issues such as housing land supply in the depth they warranted. It could also be difficult for a reporter to conduct this sort of process while at the same time keeping a careful record of what is being said by the participants. Both points might be met by the use of an 'inquisitor' to assist the reporter or by a less formal arrangement involving the use of a second or 'assistant' reporter. It is understood that a consultation paper is to be issued shortly.
• there is no mention of any provision for enabling people to object to modifications made following an examination in public. Yet people, who did not participate earlier in the plan because they were content with what was proposed, may find themselves seriously disadvantaged by a modification. There has to be some procedure for taking into account representations about modifications. The publication of pre EIP draft modifications would help; but some arrangement, such as exists at present with structure plans, will be required to deal with modifications first proposed following an EIP.
• the use of a map base for strategic land releases could cause some confusion with the local development plan. Will the strategic development plan releases be indicative only; if not, what is the role of the local plan in this respect?
• there remains concern about the lack of a statutory basis for authority wide policies in large rural authorities with multiple unitary development plans.
• the Consultation Paper (and the Conclusions and Next Steps) states that the national park plan will be the vehicle for dealing with strategic planning issues for national parks (para.25). This could be an uncomfortable mix for a plan which is to be concerned essentially with management. It is for consideration whether the strategic component might be more easily accommodated in the local plan to be prepared for the national parks (what will presumably become the 'development plan' for the park and which could incorporate a strategic element (see 'Development Plan' below)). If the national park plan is to contain a strategic planning element, it may be necessary to ensure that the approval procedure matches that for other forms of strategic planning, including some form of examination in public.

3.3 Local Development Plan

Proposal: To replace local plans with local development plans.

Source of proposal: Review of Strategic Planning, 2001, paras.37-41; Getting Involved in Planning, 2001.

Current position: Currently, the second tier of the development plan system is provided by the local plan. The provisions are set out in ss.11-19 of the 1997 Act and additional provisions regarding content and procedure are set out in the Town and Country Planning (Structure and Local Plans) (Scotland) Regulations 1983. Advice on local plans is to be found in PAN 49. Local plans must be prepared by a planning authority for all parts of their district (s.11(1)). The plan is a written statement setting out the authority's proposals for the development and other use of land in their district. Unlike the structure plan, it is map based. Objectors to a local plan are entitled to be heard at a local plan inquiry convened by the planning authority. The planning authority decide whether to adopt the plan having regard to the findings of the reporter at the local plan inquiry.

The proposal in more detail: The two-tier system of development planning will remain for the 4 largest cities and their hinterlands and, perhaps, for such other areas as the Ministers may from time to time determine. The second tier in such areas will comprise a local development plan. The intention is that, as with structure and local plans, matters already dealt with in the strategic development plan/ city region plan should not be re-opened in the local development plan. The local development plan will also have to conform to the city region plan. This is similar to the current position with local plans. Section 11(5) of the 1997 Act provides that the planning authority must secure that the local plan conforms generally to the structure plan as it stands for the time being, whether or not it has been approved by the Scottish Ministers. Section 17 goes on to provide that a planning authority cannot adopt any plan which does not conform to an approved structure plan. It would follow that a plan could only be taken to adoption if it conforms to an approved city region plan even if that plan is known to be out-of-date in some respects - for example, housing allocations.

Outwith the 4 city regions, the intention is to replace the two-tier development plan system with a single tier local development plan. It will be similar to the local plan but it is acknowledged that the plan may have to take a strategic view of some issues. While it should strive to be as comprehensive as necessary, it should not try and cover every eventuality. Increasing use of non-statutory supplementary guidance by planning authorities is anticipated. There may be one or more local development plans covering a planning authority's area.

The following matters will need to be provided for (in legislation or advice) with regard to the preparation and adoption of local development plans in two-tier or single tier areas:

• Planning authorities are to prepare and to submit to Ministers (but for information, not for approval) a scheme for development planning for their area;
• There is to be a strong emphasis on community involvement;
• Local development plans are to include a section on the action that will follow approval and this should be rolled forward every 2 years;
• Provisions will be made for public examination of the plan;
• The plan will not require the approval of Ministers but the planning authority will have to secure a certificate of conformity with national policy;
• The plan is to be reviewed as necessary.

Implementation: Primary legislation will be required to replace the local plan provisions and to provide instead for the local development plan. Many of the provisions dealing with form, content and procedure could be dealt with by secondary legislation (replacing the 1983 Regulations). Further advice on these matters could be contained in a PAN.

As with the city region plan, it will be important to make clear at what stage the different components of the old development plan are replaced by the local development plan. Although this could be very straightforward in single tier areas, with the new local development plan replacing both the current structure and local plans at the same time, there may be some question, in the absence of a strategic level of planning, whether some of the strategies in structure plans should have a continuing life?

Discussion:

• The inter-relation between the two tiers of the current development plan system has been seriously problematic, with local plans being held in limbo because they must either be drafted so as to conform to an (out of date) approved structure plan or because they must wait, sometimes for years, for the approval of an up-to-date structure plan. The sequential process has not worked well in practice, although planning authorities get round the limbo problem by using advanced drafts of local plans to guide development control decisions. The only difficulty with this solution is that there can be argument about the weight to be attached to a draft plan. The same problem could arise with the relationship between the city region plan and the local development plan in two-tier areas and it would seem that planning authorities will have to rely on the same solution.
• As with city region plans, a clear legislative deadline, coupled with sanctions, for the preparation of the first round of local development plans would be helpful. More than 25 years after they were brought into effect, we have still not achieved complete coverage of Scotland with local plans and, where there is coverage, some plans are hopelessly out of date (see Review of Development Planning, SOCRU, 1998). Given the importance of the development plan to the planning system as a whole, a similar experience with the new local development plans would be unfortunate. A similar tight timetable for reviews would also be helpful. The advent of strategic environmental assessment could cause problems here.
• It is unclear how the strategic context for the single tier local development plan is to be provided.
• The purpose and content of the 'scheme for development planning' is unclear. Presumably it is intended to identify the extent to which strategic issues may need to be dealt with in a plan and to say whether, and if so why, the planning authority intend to opt for more than one development plan to cover their area. It could also set out a (hopefully) realistic timetable for achieving coverage.
• As with the city region plan, it will be difficult to strike the appropriate balance between participation and speed. The Review of Strategic Planning (para.39) places a strong emphasis on community involvement. Some authorities already side step the draft plan stage in preparing local plans and it was felt that, at this level, this need not be inconsistent with effective community involvement; but clarification in non-statutory advice about what is expected in terms of good practice with community involvement would be helpful.
• The nature of the 'examination' of the development plan is unclear. Current local plan inquiries are thorough but are also procedural, adversarial, costly and time consuming. A proposal to depart from current dispute resolution procedures in England (see the Planning Green Paper) did not find favour and was dropped. Does the use of the word 'examination' imply a move from an adversarial to an inquisitorial format? The response to Getting Involved in Planning (2001) shows considerable support for making local plan inquiries less legal and adversarial. A consultation paper on this is expected shortly.
• The White Paper, Your place, your plan, 2003, paras.60-62, proposes that the person(s) conducting the inquiry/ examination will be appointed independently by SEIRU.
• Should an award of expenses be available against a party acting unreasonably in the context of such an 'examination'?
• The position regarding post 'examination' modifications will require consideration.
• The extent to which planning authorities will be able to depart from the report of the inquiry or examination will need to be determined. Getting Involved in Planning proposed that the discretion to depart from the reporter's conclusions should be limited (Q4) and the response to this indicates that such limitation would help to build confidence in the system. The White Paper, Your place, your plan, 2003, indicates that this proposal is to be pursued (paras.64-65). This suggests that planning authorities should be unable to disturb a reporter's substantive decision on the wording of policies and on land allocations. During the interviews planning authorities indicated they would prefer to see an arrangement whereby departure from a reporter's conclusions is possible but subject to approval of Scottish Ministers. An inability to challenge a reporter's conclusions might, it was felt, lead to greater litigation. The proposal to limit the discretion to depart from the reporter's conclusions has been criticised as transferring power from elected members to professionals.

3.4 Direct notification of policy changes in development plans

Proposal: Direct notification of owners, tenants and neighbours should be undertaken where people are going to be directly affected by policy changes in a development plan.

Source: Getting Involved in Planning, Consultation Paper, SEDD, 2001, para.44; also Analysis of Consultation Responses; White Paper, Your place, your plan, 2003, paras.57-59 .

Present position: Although there are publicity requirements for draft development plans, there is no explicit requirement for direct notification of those with a legal interest in land (or neighbours) which is proposed as the subject of a policy change in the draft.

Implementation: Although there is no explicit provision, it could be argued that at the formative stage of plan-making there is an implicit requirement in s.12(1)(b) of the 1997 Act which requires "that persons who may be expected to wish to make representations to the authority about the proposals are made aware that they are entitled to do so". If this provision is continued under the new development plan arrangements (above), guidance on what is expected of planning authorities could be issued by the Scottish Executive. If the notification requirement is to bite at the final draft stage of a plan, rather than the formative stage, then amendment would be required to reg 30 of the Town and Country Planning (Structure and Local Plan) (Scotland) Regulations 1983 (SI 1983 No 1590) to cover the position. Consideration would also need to be given to notification of post inquiry modifications as well.

Discussion:

• Local authorities are concerned that the effect of direct notification will be to delay plan production. Presumably, the delay would result partly from the notification process itself and partly from the prospect of an increase in the number of objections.
• The application of a notification requirement to policies (as opposed to proposals) could be an enormous task. Policies can cover large areas of an authority.

3.5 Public agencies to have regard to the development plan

Proposal: Public agencies should be required to have regard to the development plan when exercising their functions.

Source: Review of Development Planning in Scotland, Hillier Parker, Dundas & Wilson, School of Planning & Housing, Edinburgh College of Art/ Heriot-Watt University, SOCRU, 1998, paras.5.31 and 5.32.

Present position: There is no requirement on public agencies to have regard to the development plan when exercising their functions. Section 25 requires planning authorities, where regard is to be had to the development plan when making a determination under the planning Acts, to make the determination in line with the plan unless material considerations indicate otherwise. In addition, s.37(2) provides that, when dealing with a planning application, the planning authority must have regard to the provisions of the development plan, so far as material, and to any other material consideration.

Implementation: The simplest way forward would be to insert a new section into the 1997 Act. It could be modelled on s.14 of the National Parks (Scotland) Act 2000 which provides that, in exercising functions so far as they affect a national park, Scottish Ministers, a national park authority, a local authority and any other public body or office-holder must have regard to the national park plan as adopted. A similar provision is to be found in the Water Environment and Water Services (Scotland) Act 2003 with regard to river basin management plans.

Discussion:

• A definition of 'public agency' will be required. Should it, for example, extend to the privatised utilities carrying on a public function.
• Some planners would prefer to see a stronger form of words such as "conform to".
• The opportunity could also be taken to require the involvement of public agencies in development planning. It is, however, difficult to see what sanction could be applied. Planners were particularly concerned about the failure of some public agencies to involve themselves at the development plan stage. These same agencies then come forward and raise objections to planning applications at the development control stage.
• There is a wider issue here about the need to promote more effective integration between different plans, many of which have some spatial implications: development plans, community plans, local housing strategies, local transportation strategies, waste plans, and river basin management plans. This could be met by requiring planning authorities to integrate the spatial implications of all the plans through their development plan; but there would need to be a reciprocal obligation on the relevant agencies to participate in development planning. The sequencing of the various plans would be a problem.

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