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20.0 LOCAL AUTHORITY DEVELOPMENT
Proposal: (1) Local authorities should make a formal public declaration where they have a conflict of interest in relation to a planning matter which they are considering; (2) the decision whether to grant planning permission for development above a certain size promoted by a local authority or in which the local authority have a direct interest should be taken by Scottish Ministers.
Source: Royal Commission on Environmental Pollution, 23 rd Report, Environmental Planning, 2002, para.5.60.
Present position: Where a local authority promotes development, they must follow the procedures set out in the Town and Country Planning (Development by Planning Authorities) (Scotland) Regulations 1981, as amended. Authorities must follow the same publicity and consultation processes as would be followed by a normal applicant for planning permission. A notice of intention to develop must then be published locally and where there are objections, Scottish Ministers must be notified and have an opportunity to call-in the proposal for their decision.
Subject to what is said next, no special procedures are required to be followed where the local authority are not the promoter of a scheme but have a direct interest in it. However, the Town and Country Planning (Notification of Applications) (Scotland) Direction 1997 requires prior notification of Scottish Ministers where the authority are minded to grant planning permission in certain cases in which they have a direct interest. Ministers could then call-in the application, Apart from that, the only question is whether a local authority can properly exercise their discretion in cases where they have such a direct interest or whether they have in effect surrendered all independent judgement ( R v Sevenoaks District Council, ex parte Terry [1985] 3 All ER 226).
Implementation: Amendment would be required to s.263 of the 1997 Act and to the Development by Planning Authorities Regulations.
Discussion:
- the Development by Planning Authorities Regulations 1981, as amended, subject planning authority development proposals to a publicity and objection procedure. In the event of objections, notice must be given to the Scottish Executive. This might, but rarely does, lead to call-in. Developers and others have little confidence that local authorities, if left to themselves, will do other than approve their own development proposals. In the interests of greater transparency there is much to be said for the Commission's proposal that the decision should in all cases (above a defined threshold) be made by Scottish Ministers.
- the dissatisfaction in practice, manifest in a spate of recent case law in England, arises where the authority are not promoting the development but have a direct interest in it and are also making the decision. It is doubtful whether the requirement to notify Scottish Ministers provides sufficient reassurance to objectors, assuming they are aware of it at all. Taking the decision on such development, where there is objection, out of the hands of the local authority would promote much needed transparency.
- as against that, it would remove important local schemes from local control. It would probably also impose a delaying factor on schemes which might be regarded as having a considerable public interest dimension.
- it would be difficult to define the circumstances in which a local authority might be said to have 'significant interest' in an application. The prospect of additional jobs and council tax income could be regarded as a significant interest.
- it is not clear what benefit would arise from the proposed declaration of a conflict of interest unless this was to be the first step towards removing the decision from local authority control.
- given the primacy of the development plan, developers argue that there may be something to be said for requiring authorities to follow a special procedure when they allocate their own land, or land in which they have a financial interest, for a valuable zoning in a development plan. This argument would be largely removed by making the reporter's conclusions on a development plan binding, although in the interests of transparency planning authorities should be required to identify such land during the development plan process.
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