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7.0 BUSINESS PLANNING ZONES/ SIMPLIFIED PLANNING ZONES/ LOCAL DEVELOPMENT ORDERS
7.1 Business Planning Zones/ Simplified Planning Zones
Proposal: The original proposal in the Green Paper (subsequently dropped) was to allow local authorities in England and Wales, working in the context of a need identified in regional economic and planning strategies, to create business planning zones. No planning consent would be necessary for development in such a zone, if it was in accordance with tightly defined parameters. Such zones would be specific to types of business that had a low impact on the surrounding area. The usual example given was clusters of high technology industry. The terminology was dropped during the passage of the Planning and Compulsory Purchase Bill and the objective achieved through amendment of the regime for simplified planning zones. One commentator aptly described BPZs as 'simplified planning zones with attitude'. The Bill provides for the need for an SPZ to be identified through the new Regional Spatial Strategy for an area and for the SPZ scheme to conform to the Strategy.
Source of proposal: Planning Green Paper (England), Delivering a Fundamental Change, 2001; Planning and Compulsory Purchase Bill, Clause 44.
Current position: Sections 49-54 of the 1997 Act already provide for the establishment of SPZs in Scotland.
Implementing the proposal: Primary legislation would be required to introduce business planning zones, as a separate mechanism, into Scotland. Procedural details could be dealt with through secondary legislation. Legislation is already in place for SPZs but further amendment would require primary legislation.
Discussion:
- it must be doubtful whether there is any case for a new form of zoning mechanism in addition to the SPZ - even if planning is regarded as a drag on the economy (and that is a view with which the Transport, Local Government and Regions Select Committee took issue in its response to the Planning Green Paper). The focus should be on identifying a role for SPZs and finding a workable designation procedure.
- SPZs were intended to be a deregulatory mechanism. They were to operate as a sort of local general development order. The thinking was that they would attract developers by offering certainty of permission and prior knowledge of its terms. In fact, notwithstanding the imposition on local authorities of a duty to consider designation, provision for any person to request the making of an SPZ, and an attempt to simplify and speed up the designation process, SPZs have not proved popular. Only 4 have been designated in Scotland so far and 10 in England. Research undertaken for the former SODD concluded that SPZs should be abolished (see Research on the General Permitted Development Order and Related Mechanisms, SOCRU, 1998, para.8.20). If the SPZ is to remain as a tool in the armoury of planning authorities, further guidance, perhaps in the form of a PAN, would be helpful on the sort of role that an SPZ could play, including any role it may have as a business planning zone.
- one of the continuing problems is that the automatic permission cannot apply to development that requires to be the subject of an environmental assessment. It might be possible to address this difficulty by requiring the need for an SPZ to be identified in the development plan and subjecting the proposal in the plan (along with the rest of the plan) to strategic environmental assessment (see above).
- by tying the proposed designation to the development plan procedure with its publicity, public participation, merit testing and adoption, it might be possible to avoid a further publicity, objection and approval procedure and thus facilitate designation - although this is not the line taken in the Planning and Compulsory Purchase Bill.
- the downside of tying SPZs to the development plan is that the preparation and approval process has been woefully slow. Unless that can be improved, the link would undermine the potential for using an SPZ as a response to an emerging development need.
7.2 Local Development Orders
Proposal: To permit planning authorities to implement policies in their development plan by granting planning permission for a particular development or for a particular class of development by way of a local development order.
Source: Consultation Paper, Efficient Planning, SDD, 1989 (see too DoE 1989); Research on the General Permitted Development Order and Related Mechanisms, School of Planning & Housing, Edinburgh College of Art/ Heriot-Watt University with Brodies WS and Halliday Fraser Munro Planning, SOCRU, 1998, paras.8.22 and 8.23; the Planning Green Paper, 2001, paras.5.48-5.49; Planning and Compulsory Purchase Bill, Clause 39.
Present position: Scottish Ministers may grant a general planning permission for development or for classes of development which is applicable to all land. The current General Permitted Development Order 1992, as amended, grants a general planning permission for 72 classes of development. There is no provision for planning authorities to grant planning permission by way of local development orders. The converse position, whereby a planning authority can withdraw a general grant of planning permission because of local circumstances, is provided for in Art.4 of the General Permitted Development Order 1992.
The nearest equivalent to a local development order is a special development order, provision for which is made in s.30 of the 1997 Act. These have been used in Scotland to grant a general planning permission in a specified local area, namely 4 of the 5 former new towns. Special development orders have been used in England in exceptional cases to grant permission for a particular development proposal (eg Windscale; and the 'green giant' development by the Thames). They differ from local development orders in that they (special development orders) are made by Ministers, not by planning authorities.
The proposal in more detail: Local development orders would be explicitly linked to the implementation of policies in the development plan. The order could relate to all land in an authority's area, to some land in the area or to a specified site. It could make different provision for different descriptions of land. It could grant planning permission for specified development or for development of a specified class. The planning permission could be conditional. A 'call-in' arrangement could allow intervention by Scottish Ministers.
Implementation: Primary legislation would be required to introduce the concept of such orders. The procedure for making such an order could be prescribed in secondary legislation.
Discussion:
- Both developers and planning authorities felt that LDOs could be used to remove minor matters such as householder applications from day to day control outwith designated areas. They felt that development control should not operate as a neighbourhood protection service. This was an issue debated in the Review of the Management of Planning undertaken by the SDD as long ago as 1977. Removing such applications from day to day control would free up resources for more effective handling of development plans and the bigger development control cases. However, many members of the public see planning as a neighbourhood protection service and such an approach would sit uneasily with the objective of promoting greater community involvement in planning.
- A question which has to be addressed as regards such orders is whether they will serve a different purpose to an SPZ, particularly if SPZs are linked to the development plan. This depends in part on whether such orders, like much of the general permitted development order, are intended to be directed at minor categories of development which do not give rise to significant planning issues. An SPZ, on the other hand, could permit substantial development within its defined area.
- There is a second possible distinction. An SPZ is likely to be directed at a tightly defined area. So too could an LDO; it could be directed at a single development identified in the order. But an LDO could also be used to permit minor (or more substantial?) development throughout an authority's area - in much the same way (although the reverse position) as an art.4 direction might be used to withdraw certain permitted development rights in all conservation areas in the district of a local authority. The 1998 research considered that LDOs should replace SPZs.
- The 1998 research considered that an LDO could be used to reduce, as well as extend, permitted development rights where this would be in line with the local plan. It is not clear how a reduction would tie in with the power in Article 4 of the GPDO to restrict permitted development rights.
- If an LDO is to be tied to the development plan (as is proposed for England and Wales), it may be possible to limit the participation, objection, merit-testing and approval process if sufficient opportunity for this is provided in the development plan process. But if an LDO is being promoted contrary to a reporter's recommendation on a development plan, should the making of the LDO be open to some form of appeal? This point will not arise if the ability of planning authorities to depart from a reporter's recommendation is reduced.
- As with the General Permitted Development Order, development falling within Schedules 1 and 2 of the Environmental Impact Assessment (Scotland) Regulations 1999 (SSI 1999 No 1) could not be the subject of a planning permission granted in advance. But as an LDO would be tied to the development plan, it might be possible to cover this through the strategic environmental assessment of the plan.
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