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14.0 DEVELOPMENT CONTROL PROCEDURES
14.1 Advertisement in the Edinburgh Gazette
Proposal: The requirement to advertise in the Edinburgh Gazettes should end because of its limited readership. The White Paper notes that this proposal is being reconsidered.
Source: Advertising Planning Proposals in Scotland, James Barr Consultants, SECRU, 2000; Getting Involved in Planning, Consultation Paper, SEDD, 2001, paras.73 and 74; also Analysis of Consultation Response; White Paper, Your place, your plan, 2003, paras.87-88 .
Present position: In a limited number of cases, regulations still require public notice of certain planning matters to be given in the Edinburgh Gazette. For example, the Town and Country Planning (Listed Buildings and Buildings in Conservation Areas) (Scotland) Regulations 1987 (SI 1987 No 1529) require applications for listed building consent and for conservation area consent to be advertised in the Gazette; and the Environmental Impact Assessment (Scotland) Regulations 1999 (SSI 1999 No 1) require notice to be given in the Edinburgh Gazette that an environmental statement may be inspected and representations made.
Implementation: The appropriate regulations would require amendment.
14.2 Neighbour notification
Proposal: (1) Planning authorities should take responsibility for neighbour notification; (2) neighbour notification should be carried out over a wider area for major developments.
Source: Review of Neighbour Notification, Edinburgh College of Art/ Heriot-Watt University and Peter C Allan (Chartered Town Planning Consultants) Ltd, SOCRU, 1995; Review of Neighbour Notification, SODD, 1997; Getting Involved in Planning, SEDD, 2001, paras.58-59; also Analysis of Consultation Responses; White Paper, Your place, your plan, 2003, paras.47, 71-74.
Present position: Article 9 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 imposes an obligation to notify neighbours on the applicant for planning permission. The definition of 'neighbour' is the same for all developments.
Implementation: Article 9 would require amendment.
Discussion:
- research has shown that the present system, whereby applicants notify neighbours, provides scope for error and abuse, lacks any requirement to provide proof of notice, can result in inadequacies in the information and can give rise to inconsistency of practice.
- developers are unhappy about the proposals which they regard as likely to lead to further delays to the decision-making process. Planning authorities confirm that it probably would cause delay; at present, applicants undertake neighbour notification prior to, or at the same time as, submitting an application; planning authorities would undertaken neighbour notification only after receipt of the application.
- developers also raised the question of compensation where a planning authority make a mistake with neighbour notification and an application is held up while the authority go through the process again. At present, if applicants make a mistake, at least it is their own error which causes delay, and, as they want to get on with their development, they have an interest in getting the notification right.
- the Analysis of Consultation Responses showed considerable support for this proposal amongst other stakeholder groups but local authorities were concerned on logistical and resource grounds. The intention is that these concerns should be met through an increase in the application fee and there is some indication that this would satisfy their concerns.
14.3 Notice to lessees
Proposal: The requirement to notify the lessees of commercial property and the tenant of agricultural property of planning applications should be removed. It is enough that owners and occupiers are notified.
Source: Getting Involved in Planning, SEDD, 2001, para.62; also Analysis of Consultation Responses; White Paper, Your place, your plan, 2003, para.77.
Present position: Article 8 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 requires the applicant to give notice of a planning application to anyone who is an owner or an agricultural tenant of any of the land to which the application relates. The 1997 Act, s.277 defines 'owner' as including a lessee under a lease with more than 3 years to run.
Implementation: Section 35 of the 1997 Act would require amendment; so, too, would Article 8 of the GDPO.
Discussion: The Analysis of Consultation Responses shows a large majority opposed to this proposal on the ground that those likely to be affected by a proposed development should be informed. In many cases, however, the lessee or tenant will be the occupier and will therefore receive notification. The problem would arise in those cases where the lessee or tenant is not in occupation. The White Paper states that removal of the duty to notify non-domestic lessees is not to be progressed by the Executive.
14.4 Environmental impact assessment
Proposal: Further clarification is required of the circumstances in which an application development qualifies as an EIA application under Schedule 2 of the Environmental Impact Assessment (Scotland) Regulations 1999. It seems there is considerable inconsistency in the way in which planning authorities interprete Schedule 2. This can be important because the additional burden of cost attaching to an EIA application is considerable.
Source: Developers.
Present position: Schedule 2 sets out thresholds which trigger the regulations. These are further explained in Circular 15/1999.
Implementation: The simplest approach would be to try and provide the necessary clarification through a further circular.
14.5 A duty on consultees to respond
Proposal: Consultees should be obliged to give a substantive response to any consultation before the end of the prescribed period.
Source: Planning Green Paper, para.5.33; Planning and Compulsory Purchase Bill, Clause 48.
Present position: Article 15 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 imposes an obligation on planning authorities to consult with specified bodies in particular cases and no decision can be taken on the application until at least 14 days have passed. There is no obligation on the consultee to respond.
Implementation: An obligation to respond would probably have to be inserted into s.34 of the 1997 Act. The scope of the regulations which may be made under s.34 does not extend to imposing an obligation to respond.
Discussion:
- should the obligation be applied to internal consultees like the local authority roads department?
- it is difficult to see what sanction could be applied for a failure by a consultee to respond or to respond in time, other than determining the application in the absence of their input - and that is already the position.
14.6 Time limit for responses
Proposal: The time for making representations in response to publicity and consultation about a planning application should be 21 days in all cases, except for EIA cases which would remain 28 days.
Source: Getting Involved in Planning, Consultation Paper, SEDD, 2001, para.79; also Analysis of Consultation Responses; White Paper, Your place, your plan, 2003, paras.93-95 .
Present position: The time for responding varies from 14 days for bad neighbour developments (art.14(1) GPDO) and statutory consultees (art.15(3) GDPO) to 21 days for owners (art.8(9) GPDO) and for people responding to notice of listed building and conservation area applications (reg.5, Listed Buildings Regulations).
Implementation: The various regulations would need to be brought into line.
Discussion:
- the Analysis of Consultation Responses shows a high level of support for this proposal. The White Paper states that the consolidation of these timescales will be implemented, citing the likely benefits arising from a standardisation and simplification of procedures.
14.7 Deemed consent
Proposal: That on the expiry of the two month period for making a decision without a decision having been made, an application should be deemed to be approved.
Source: Developers
Present position: Under s.47(2) of the 1997 Act, an applicant may appeal to the Scottish Ministers against a deemed refusal of an application if notice of a decision has not been given within the prescribed period.
Implementation: That part of s.47(2) would have to be repealed and a new section added providing for a deemed consent.
Discussion:
- this proposal is likely to encourage planning authorities to refuse applications which are not ready for determination. Developers are willing to accept that risk on the ground that at least they would have grounds of refusal to work on.
- planning authorities argue that this is unnecessary and point out that some 90% of all applications are eventually approved.
- the proposal might be unpopular with local communities and could trigger third party appeals - if applicable to such cases.
14.8 Duration of planning permissions and other consents
Proposal: The life of an unimplemented planning permission, listed building consent or conservation area consent should be reduced from 5 to 3 years.
Source: Planning and Compulsory Purchase Bill, Clause 46.
Present position: Section 58 of the 1997 Act applies a statutory condition to all grants of planning permission limiting their duration, unless implemented, to 5 years from the date of the grant. A planning authority may stipulate a longer or shorter period. Special provisions are made for the duration of outline planning permissions in s.59. Furthermore, ss.61-62 provide for the service of completion notices where a development has been started but not completed. Similar provision is made for listed building consents and conservation area consents in s.16 of the Listed Buildings Act.
Implementation: An amendment would be required to ss.58 and 59 of the 1997 Act and to s.16 of the Listed Buildings Act. Planning authorities could still stipulate for a longer or shorter period. Consideration would need to be given also to the application of s.42 of the 1997 Act (application for planning permission for the development of land without complying with a condition imposed by a previous permission) and s.17 of the Listed Buildings Act.
Discussion:
- the period can already be reduced if thought appropriate (s.58(1)(b)). The CBI, in their response to the provision in the English Bill, commented that there are a number of significant reasons why time lags occur in commencing development. This is particularly so with brownfield and mixed-use developments which the Government is keen to encourage. These reasons include site assembly, decontamination issues, pre-letting, negotiating finance, delays in related infrastructure improvements and a downturn in the market.
- reducing the time limit could simply increase the work load on developers and planning authorities in having to go through the planning process all over again.
- should there be a similar provision setting a time limit for completion of a development or is it sufficient to rely on the completion notice provisions? There could be difficulties about requiring a developer to complete a development, where there is no condition requiring this and the developer only wishes to implement part.
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