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21.0 CROWN IMMUNITY:
Proposal: To bring an end to the Crown exemption from planning law.
Source: SDD Consultation Paper, "Removal of Crown Exemption from Planning Law", 1992. The consultation paper reflected a commitment given to the European Commission that Crown immunity from planning control would be removed across the UK. See too the Green Paper, Protecting the Built Heritage, Cm. 3267, 1996, Part IIC.
Present position: The present position is that the Crown is not bound by an Act unless it is expressly or impliedly included. The Crown is not expressly or impliedly included in the 1997 Act, except to the extent provided for in Part XII. However, the exemption applies only in respect of Crown land (defined in s.242(1) of the 1997 Act) and not to development on behalf of the Crown on other land ( Lord Advocate v Strathclyde Regional Council 1988 SLT 546).
Part XII of the 1997 Act is complex and makes the following provisions in respect of Crown land:
- a development plan may include proposals relating to the use of Crown land ((s.245(1)(a)).
- the provisions of Part III relating to general planning control apply to Crown land to the extent of any interest therein which is for the time being held otherwise than by or on behalf of the Crown (s.245(1)(c)).
- provision is made for obtaining planning permission (s.248), listed building consent (provision is also made for the listing of buildings on Crown land) and consent to demolish an unlisted building in a conservation area in anticipation of the disposal of such land (s.248).
- provision is also made for the making of a tree preservation order in anticipation of the disposal of Crown land (s.249).
- an agreement may be entered into between a planning authority and the Crown where a material change of use is to be made on Crown land to the effect that the use will cease on the subsequent disposal of the land by the Crown (s.250).
- enforcement action may be taken against a privately held interest in Crown land (s.243).
- a planning authority and the Crown may enter into an agreement for the purpose of restricting or regulating the development or use of land and, if recorded, such an agreement may be enforced against persons deriving title to the land from the Crown (s.246).
Furthermore, SDD Circular 21/1984 "Crown Land and Crown Development" sets out a non-statutory procedure, modelled on the development control procedure, to be followed in considering the planning aspects of proposals for development by government departments and other bodies entitled to Crown immunity.
Proposal in more detail: The proposal is to bring the Crown within planning control so that all Crown bodies should be required to apply in the normal way for planning permission, listed building consent, conservation area consent and hazardous substances consent and be subject to the full range of controls. It is intended that there should be exemptions relating to national defence and security matters.
Implementation: Primary legislation will be required. It is not clear whether bringing the Crown within planning control would be a reserved matter. Schedule 5 Part 1, para.1 to the Scotland Act 1998 reserves certain aspects of the constitution including the Crown and the management of the Crown Estate. However, it could be argued that the proposal does not touch on the constitutional aspects of the Crown; it is simply a question whether it should be brought expressly within the terms of the planning and related legislation.
Discussion:
- in the interests of transparency, the proposal may require consideration to be given to the procedure to be followed where the Scottish Executive is appealing to itself against a planning authority decision to refuse its own (the Executive's) development proposal.
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