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05: Our Proposals

5.1.1 A New Hierarchy for Planning

Founded on simple principles, the planning system has nevertheless become complex and poorly focused. A wide variety of demands are currently placed on the system, from delivering essential infrastructure and promoting investment, to allowing householder improvements. In addition, it has become a mechanism for solving local disputes which should not have a place in the planning system. The system has not evolved to respond in a proportionate way to these different demands. The overall purpose of planning has been obscured, and a sense of priorities has been lost.

We will address this by introducing a clearer hierarchy into the planning system. We want the system to deal with different types of development in different ways. This will enable public bodies to prioritise better the way in which they use resources; facilitate national political debates about infrastructure; devolve local decision-making and appeals to a local level; and free up the system by exempting very minor developments from the planning application process. At each level of the system, there will be clear mechanisms for plan-making, decision-making, involvement of local people, and ensuring development is sustainable. These proposals are not about centralisation; they are about making the system fit for purpose - and making that purpose clear.

Under the new hierarchy for planning, proposed developments will be processed and scrutinised depending upon whether they raise issues of national, major, local or minor importance.

National Developments - those developments that are considered to be of national, strategic importance will be proposed and debated in the context of the next National Planning Framework. Many of these developments have been identified in existing policy statements, for example, the Infrastructure Investment Plan or will emerge from future policy and project reviews, for example on transport. These might include substantial water treatment or waste management installations and strategically important transport links and facilities. The need for these developments will be decided at a national level, by Scottish Ministers and with the full involvement of Parliament.

Major Developments - large-scale developments which are not national in importance, but are significant in scale - will be clearly identified and prioritised by planning authorities. Examples include a shopping centre, a materials recycling facility, a business park or large-scale housing development. To help the expeditious processing of such applications, planning authorities and developers will be able to put a processing agreement in place, setting out timetables for processing the application, and application fees will be increased. The existing arrangements for appeals will apply, subject to the changes we propose below.

Local Developments - will, as now, be a matter for Scotland's planning authorities. These include smaller housing developments, commercial enterprises and some householder developments. Elected local members will continue to decide upon controversial applications or those with a significant impact on the area, with a right of appeal to the Scottish Ministers. All other local applications will be determined by officers but with a right of appeal, not to the Scottish Ministers as at present, but to a local review body comprised of locally elected members.

Hierarchy for Planning

Minor Developments - particularly small-scale changes to single houses - currently place a disproportionate burden on planning authorities. We will commission research to review how far we could extend the categories or number of developments which do not require planning permission.

Further details of our proposals are set out below.

5.1.2 National Developments

Scotland's first National Planning Framework ( NPF) was published in April 2004. Welcomed by environmental groups, local authorities, the business community and the planning profession, it also won recognition as an example of good practice in spatial planning throughout the United Kingdom and internationally. The strategic role of the NPF has been generally accepted and the development priorities it identifies are reflected in emerging structure plans.

As proposed by several business and environmental groups, we intend to build on this success by enhancing the role and status of the NPF to make it a more powerful instrument for securing delivery of national policies and programmes. The second NPF will be published in 2008, providing a strategy for the sustainable development of Scotland in the period to 2028.

It will set out the Executive's strategic development priorities more precisely. It will play a key role in ensuring the sustained co-ordination of policies with a spatial dimension, integrating and aligning strategic investment priorities and identifying where inter-regional choices can or need to be made. It will provide the national context for development plans, planning decisions and the ongoing programmes of the Executive, public agencies and local authorities.

The NPF will complement other top-level strategy documents such as the Framework for Economic Development in Scotland and Smart, Successful Scotland and reflect the Executive's priorities, actions and targets for sustainable development. It will address the key challenges of building a strong and competitive knowledge economy, strengthening and renewing infrastructure, promoting urban and rural regeneration and managing demographic change. It will focus strongly on priorities for the improvement of infrastructure to support Scotland's long-term development. For transport infrastructure, it will look beyond the current delivery programme, drawing upon the National Transport Strategy and the outcome of the Strategic Projects Review.

The NPF will support the role of our cities as drivers of the economy, addressing spatial planning issues of national importance which cut across city region boundaries. It will set out the land use planning requirements for strategic priorities such as investment in water and drainage capacity and waste management facilities, and consider the requirements of the next generation of high bandwidth communications technology. It will take account of the land use implications of national policy statements on matters such as the National Waste Plan. It will also address the Executive's commitments on environmental policy and sustainability, as well as the Executive's evolving position on marine spatial planning. The NPF will inform engagement with the European Union's competitiveness, cohesion and environmental agendas. It will provide the starting point for collaboration with other parts of the United Kingdom on strategic planning matters of common interest and for Scotland's participation in wider European spatial planning initiatives.

As a key aspect of our proposals for modernisation, we want the second NPF to place more emphasis on implementation than its predecessor. While not all national priorities can be delivered through the NPF, many do have an important spatial dimension. The NPF will identify responsibilities and outputs for locally-delivered services and facilities in key policy areas such as health, education, affordable housing and waste management. The NPF will be closely linked to the Infrastructure Investment Plan and the investment programmes of public agencies and infrastructure providers.

The next NPF will provide a stronger context for development plans and planning decisions. This will help establish and deliver a clear strategy for Scotland's spatial development in the long term. The Planning Bill will provide for Scottish Ministers to prepare statements of policy on planning matters of national importance, which will require to be identified at the local level by planning authorities in the preparation of their development plans. This provision will include the NPF, which will be used to identify developments of national strategic importance - to be known as national developments, for which specific provisions will be made in the Bill.

In addition, the legislation will provide for national developments to be called in by Scottish Ministers, where it is necessary to expedite decisions in the national interest. Major transport, water and drainage, energy and waste infrastructure projects, major areas of urban regeneration or expansion and large strategic business or industrial investments may fall within this category of development. The detailed processes are set out below. In some cases, development will be promoted through other consent regimes such as the Electricity Act 1989 or the Roads (Scotland) Act 1984 rather than planning legislation. These developments will be reflected in the NPF to ensure widespread publicity and co-ordination of priorities, but will be dealt with under the existing consent regimes.

The NPF will be subject to extensive consultation, including the processes required for its Strategic Environmental Assessment. Given the significance of the NPF, it will be essential for the Executive to ensure that all those with an interest are given real opportunities to express their views in its preparation. Regional and thematic seminars will be organised to seek views on its scope and content and a draft will be issued for public consultation.
Prior to the introduction of the Planning Bill, Ministers will bring forward proposals for ensuring that Parliament has the opportunity to contribute to the development of the Framework.

National Developments: Application Process

Planning authorities will need to reflect the vision and strategy of the NPF in their development plans. While the need for national developments will have been established in the NPF, their incorporation into development plans will ensure local engagement and debate around their impact as well as detailed location and design matters. To achieve this, the Planning Bill will make provision for development plans to facilitate the national developments contained within the NPF.

Where applications for national developments fall within the scope of the Town and Country Planning (Scotland) Act 1997, we envisage a new process for their determination, which will give Scottish Ministers the opportunity to intervene where necessary to expedite decisions. This is set out in Appendix 3.

5.1.3 Major Developments

A limited number of applications are submitted to planning authorities each year for developments which would not be considered to be of national strategic importance but nonetheless are of a size and scale to be considered of major importance. Examples might be a shopping centre, a materials recycling facility, a business park or a large-scale housing development. These proposals should be identified in the development plan. The Executive's monitoring of local authority planning performance has highlighted concerns that major developments in particular are subject to excessive delay. Measures are required to ensure applicants for these important developments do receive an efficient service and greater certainty in the likely timescale for achieving a decision. Processing these applications efficiently and achieving a high quality solution should be a top priority for both planning authorities and developers.

We propose to specify in secondary legislation the categories of major development that require to be approached in a new way.

The success of this proposal also depends on transparency and clarity from the development industry before presenting applications to the community and the planning authority. Full details and supporting material should be provided at the submission stage to ensure that local people and stakeholders can engage on the basis of realistic and fully worked up plans.

Processing agreements

In order to deal with these applications expeditiously, they need to be prioritised by planning authorities. Issues and constraints relating to the site and the proposed use need to be identified as early as possible in the process. We propose that the applicant and planning authority will agree on a realistic timetable for the planning application to be determined, informed by the views of statutory consultees. This will be set out in terms of an agreement between the parties.

We recognise that negotiating processing agreements will place additional requirements on planning authorities' time and resources. We therefore propose to increase fees for major applications. As at present, fees will be calculated according to the type and size of development. The intention is to link the fee paid closely to the real cost of processing the application.

Applications for major development will be determined at the local level by planning authorities, although Scottish Ministers will retain the right, as now, to call in applications for their decision. Rights to statutory appeal and judicial review would still apply.

Further detail on processing agreements is set out in Appendix 4.

Hearings

We consider that the scale and significance of these major developments merits a further step to ensure more transparent decision making. For major developments that are significantly contrary to the development plan and have attracted significant objections, we propose a statutory requirement for the planning authority to hold a hearing into the planning application. This would allow the applicant, consultees, objectors and supporters of the development to make their case to the planning committee before the Council or authority takes its decision. The process for these hearings, which we propose to extend to a wide range of types of development, forms part of the enhanced scrutiny procedures, and is set out in the section on Widening Inclusion.

5.1.4 Local Developments

The vast majority of the 50,000 plus planning applications decided annually are for small-scale changes to commercial or industrial buildings and work by householders to alter their properties. These developments are local in nature, and do not have an impact on the wider area. Decisions on these planning applications should, therefore, be taken at the local level.

These applications for small-scale developments currently take up a large proportion of each planning authority's time. We intend to introduce a clear, expedited process for many of these applications, to ensure a more proportionate approach, based on the type and scale of development under consideration.

Under the modernised planning system, we need development plans, drawn up with regard to statutory requirements for publicity, engagement and adoption, to provide an up-to-date and robust framework against which planning applications can be judged. Many local developments will be consistent with the terms of the development plan, and can be processed quickly by planning officers. In this way, elected members are able to focus their attention on the more controversial or complex applications, including those which are not in accordance with the development plan and those that are the subject of strong local opinion.

We therefore propose to require that planning authorities introduce schemes of delegation that allow officers to take decisions quickly for applications that accord with adopted development plans. Planning applications for local developments which do not fall within the terms of the delegation scheme would be put to the Planning Committee for its decision.

Delegation to officers already operates successfully in most Councils and is an efficient way to deal with the many planning applications that are received each year. It does not affect the requirements for publicity and engagement on planning applications or the ability of individuals, organisations and local people to make their views known.

Schemes of delegation

Some delegation schemes allow officials only to take decisions to approve applications, usually where there are no objections or other representations. This has resulted in small-scale applications having to be referred to the committee for decision.

We therefore propose that planning authorities be required to put in place new delegation schemes for decisions on planning applications, to allow officers to determine a wider range of applications, and to be able to make the full range of possible decisions:

• approve applications without condition;
• approve subject to conditions; and
• refuse applications.

The details of each delegation scheme will be for the planning authority to determine. Although such schemes may allow officers to determine applications that are the subject of objections or other representations (such applications are currently not delegated), authorities should ensure that applications subject to significant or substantial bodies of objection should be referred to elected members for determination. Given the varying circumstances in which objections may be substantial or significant, it will be for each planning authority to establish the criteria appropriate for its own area.

All applications that fall outside the categories of major development will be treated as local development and will be eligible for delegation subject to the following exemptions:

• development significantly contrary to the development plan;
• development defined in the General Development Procedure Order as larger-scale 'Bad Neighbours' ( e.g. waste disposal installations, sewage works, casinos, or crematoria);

• development that requires Environmental Impact Assessment.

Elected members of the planning committee will take decisions on these applications.

Appeals against decisions taken by the planning committee

Appeals against decisions taken by the planning committee will continue to be made to Scottish Ministers and as at present, dealt with on their behalf by reporters from the Scottish Executive Inquiry Reporters' Unit.

Appeals against decisions taken by local authority planning officers

For applications that fall within the terms of the scheme of delegation, however, we propose that appeals should now be determined locally. Applicants will have the right to appeal to a local review body against decisions taken by planning authority officers. The review body will be made up of locally elected members. The applicant will submit grounds of appeal, which will be supplied to the review body accompanied by the case file, a copy of the officer's decision and his or her response to the grounds for appeal. The review body will then carry out an independent review of the officer's decision, rather than considering the proposal afresh. The review body's decision could be the subject of a statutory appeal or judicial review.

These measures, taken together, would result in a significant improvement to the planning process at the local level. A key benefit would be that the vast majority of all appeals would henceforth be decided quickly and decided locally, recognising that local authorities are best placed to take decisions on local matters.

5.1.5 Minor Developments

Many current planning applications are for householder developments. While the processing of such applications is, for the most part, straightforward, the sheer number of them requires considerable time and resources in terms of administration and professional planning officers' involvement. As part of the modernisation agenda, we have looked at ways to improve efficiency in dealing with applications and to direct resources to appropriate priorities. We are therefore considering the extent to which such householder applications could be taken out of the planning application process by achieving a better match between permitted development rights, and the aspirations, and obligations of householders. Permitted development rights grant a general planning permission for certain developments across Scotland and remove the need for a planning application.

There is clearly a balance to be struck. We do not foresee all householder developments being covered by permitted development but a large number of the more minor developments should not require planning permission. Unnecessary controls on individuals with regard to improvements to their dwelling houses and garden ground need to be removed; however, we must also ensure that adequate controls remain to deal with developments which might unduly affect the environment or amenity of the area. There will need to be appropriate limits and conditions associated with any extension of permitted development rights to ensure that environmental quality is maintained.

The Executive is therefore undertaking a general review of the permitted development rights set out in the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 ( GPDO), as amended. This review will consider the appropriateness of the current permitted development rights and areas for possible updating, amendment, extension or reduction of permitted development rights. It will also look at the scope for improvements in some of the related mechanisms such as 'Article 4 Directions', which can be used to remove permitted development rights within an area specified in the direction. A central aim of this work is to simplify the legislation on permitted development rights to aid its understanding and use.

As well as householder developments, this research will be reviewing all the permitted development rights which currently apply to a range of developments in different sectors, from electronic communication and mobile phone developments, to mineral developments, industrial development and development at airports. As indicated above, this aspect of the research is about updating, simplifying and, where appropriate, extending or reducing existing permitted development rights. The improvements to planning enforcement outlined below will be a necessary counterweight to any increase in permitted development rights.

To support any changes to the legislation, we also intend to produce a handbook for householder developments. This will illustrate how the revised permitted development rights in relation to householder development can be exercised. This is to assist householders in interpreting what is permitted development, and to assist in the enforcement of planning control where breaches occur.

A similar review of the Town and Country Planning (Use Classes) (Scotland) Order 1997 (the UCO) is not proposed at present. The related permitted development rights on changes between use classes will be addressed in a subsequent review of the UCO. Such a review is likely to follow implementation of changes to the GPDO.

5.2.1 Modernising Development Plans

The central aim of our modernisation proposals is to reinforce the primacy of development plans. This is the key to delivering a fairer, more balanced system. Plans are critical instruments for providing clear visions of how our cities, towns and countryside areas should evolve. They must take a long-term view, identify sufficient land to meet the key needs of economic growth and housing development, protect important natural resources, and form the core documents against which planning applications are measured for determination.

Our reforms will ensure that, in the future, the way in which these plans will be prepared and implemented will mean: they are more relevant and up-to-date; local people will be more involved in their preparation; and that there is a structured consideration of the plan's environmental implications. In addition, we want plans that are shorter, targeted on key spatial issues and, crucially, focused on delivery and outcomes.

We believe that these objectives command widespread support. The consultation exercises for the Review of Strategic Planning (June 2002), and Making Development Plans Deliver, (April 2004), revealed that there was a clear consensus on the need for improved development plans in order to direct and manage change in an efficient and transparent way. The incorporation of Strategic Environmental Assessment into development planning also introduces a more rigorous and transparent approach.

However, our aspirations for effective development plans will only be achieved if accompanied by cultural change that recognises the key role that plans have in bringing better outcomes for the land and people of Scotland. Planners will require the support of local authority senior managers, elected members and stakeholders, including statutory consultees and members of the public. Senior managers who empower and motivate their staff and stakeholders, from plan preparation to adoption and implementation, will ensure delivery of effective plans. We must move to a quicker and more predictable process overall, managed effectively with clear targets and milestones.

While substantial changes will be made to legislation, a number of the reforms can be carried out within the law as it stands including more regular updating of plans, preparation of action programmes and more focused management of the process. As we move towards a Planning Bill, those involved in plan preparation should, as far as possible, anticipate the new procedures and tools required to implement the reformed system, and prepare the ground for implementation. A summary of our proposals to reform development planning is set out below, with the detailed arrangements for strategic development plans in Appendix 5.

Statutory requirement to update development plans every 5 years

Plans must provide an up-to-date and relevant framework to guide development and co-ordinate land use change. It is crucial that local authorities see this as a key duty. A plan is generally considered to be up-to-date if it is less than 5 years old. Currently the average age of local plans is approximately 10 years. This is unacceptable in a plan-led system as it undermines the efficiency and effectiveness of the planning system, and reduces the opportunities for full consultation with local people. We therefore intend to place a statutory duty for strategic development plans and local development plans to be replaced within 5 years of the date of adoption. We also propose that Scottish Ministers will, when necessary, use their powers to direct that certain development plans be updated or commenced, to accommodate key areas of growth or issues of national importance.

Regular review on a 5 yearly basis will avoid the need for alterations to part of a plan and ensure that the status of policies which are relevant beyond the lifetime of the plan is confirmed. Even within this period, situations may sometimes arise where there are applications which depart from the plan. We have formulated proposals (set out in the section below on Widening Inclusion) to ensure that these applications are subject to enhanced scrutiny.

Strategic Development Plans/Local Development Plans

In a major move to simplify development planning, we have already announced through the Review of Strategic Planning that local development plans will cover all of Scotland. Within the four largest city regions, in addition to local development plans, there are to be strategic development plans that will deal with key land and infrastructure issues which cross the planning authority boundaries. In these areas the local development plan will be required to comply with the strategic development plan. These new procedures put in place a more proportionate approach to development planning, focusing attention on the key areas of change and reducing duplication of effort in areas where only a single tier of development plan is necessary.

Development plan scheme

Major improvements in development plan performance require a raised profile for development planning, and effective management of the process. We shall therefore require a development plan scheme to be prepared as a means of setting the programme for producing and reviewing local development plans and strategic development plans. This will be updated annually and publicised widely, as well as submitted to Scottish Ministers for information and comment, particularly in relation to the national issues that Ministers expect to see addressed in the plans. It will provide greater certainty and predictability for local people and businesses about the timescales for plan revision.

Quicker drafting of plans

We want the process of preparing plans to be clear and accessible. We therefore want the preparation of strategic development plans and local development plans to focus around two stages: early engagement around a report on the key issues, followed by the preparation of a single 'proposed plan.' It is in response to the proposed plan that formal objections or expressions of support can be made. In the section on Widening Inclusion, we set out our intentions for ensuring that local people have as much opportunity to comment as possible. It is our intention to prepare a Planning Advice Note to collate best practice on community engagement.

Engagement of statutory consultees

To ensure the effective delivery of policies and proposals, we intend to designate statutory consultees for development planning and require them to engage in the process. These will include Scottish Natural Heritage, Scottish Environment Protection Agency, Local Enterprise Companies and Scottish Water. It may be appropriate to add other bodies to this list, such as the forthcoming Regional Transport Partnerships. The intention is that these bodies provide, at an early stage, information critical to the delivery of the proposals within the development plan and ensure better co-ordination of spending and policy decisions. This will provide, among other things, the opportunity for issues concerning the environment to be addressed by the responsible public bodies.

Form and content of plans

To improve quality and consistency and to ensure that plans are accessible to local people, we propose greater prescription of the form and content of development plans. The form and content of the development plan should be fit for purpose. Policies should be limited to those required to deliver the plan's aims and support decision making. We intend to enhance the status of supplementary guidance, where statutory requirements for consultation and approval have been met, to provide a vehicle for more detailed planning policy. As well as producing paper versions, local authorities are encouraged to place all development plans and related documentation on their websites to ensure greater accessibility and transparency.

Model development plan policies

We are piloting model policies for inclusion in development plans in order to increase consistency and reduce plan preparation times. Model policies will cover a range of core topics, where practice is similar across Scotland. Policies currently being piloted cover the built and natural environment.

The consultation statement - listening to local people

We know from previous research that many local people are unclear about the importance of the development plan and tend not to get involved in planning until a planning application is submitted that affects them directly. We will reinforce the importance of the development plan process, as that is where issues of principle are decided. This means that all interests must be sufficiently well informed to participate in this stage of the decision-making process. For each development plan, it is proposed that the planning authority will be required to include in the development plan scheme, a 'consultation statement' explaining how they will engage local people and stakeholders in the process, outlining when this will take place and what can be expected. The extent to which an authority has fulfilled its commitments in the consultation statement will be tested at the examination stage.

New requirement for mandatory examination of all plans

To ensure that local people's voices are fairly heard, we propose a mandatory examination for strategic development plans and local development plans where objections have not been resolved. In the interests of independence and transparency, reporters for development plan examinations will be appointed by the Scottish Executive Inquiry Reporters Unit ( SEIRU) rather than the planning authority.

Over time, the requirements for better engagement between the planning authority, local people and the development industry, the use of mediation, as well as more regular updating of plans, will help to reduce the number of objections that need to be considered by public examination.

Adoption mechanisms - ensuring transparency and fairness

In moving to adopt the local development plan, the planning authority has a duty to consider all representations and will seek to negotiate with objectors making changes to the plan to accommodate comments, where possible. Where objections remain unresolved, a reporter appointed by the Scottish Ministers, will undertake a full assessment of the objections, weighing arguments from the local authority, local people, businesses, community groups and others, before reaching conclusions and recommendations. While reporters' recommendations are largely accepted by local authorities, there have been concerns that where, a planning authority does not accept the recommendations, participation in the inquiry process was worthless which leads to a wider sense of mistrust and disillusionment with the planning system.

We accept that local authorities are guardians of the wider public interest in their area and that there are circumstances where they might, quite properly, wish to disagree with the reporter's conclusions and recommendations. To promote greater confidence in the system and reassure those who have participated in the plan making process, we have consulted on the proposition that the scope to depart from a reporter's recommendation should be limited. There has been considerable support for this, particularly from the general public and the voluntary sector. There is, however, a recognition that clear criteria should be established to define the circumstances in which the planning authority might depart from the reporter's recommendation and that, to ensure fairness and transparency, the Scottish Ministers should have an oversight of that process.

Against that background, we propose that planning authorities will be able to depart from a reporter's recommendation where that recommendation is: not supported by the Strategic Environmental Assessment; not in accordance with the National Planning Framework/National Policy or strategic development plan; or based on flawed reasoning, which could include a failure to take proper account of the planning authority's position. Where there is substantial local opposition to, or support for, a development plan policy or proposal, and the reporter finds in favour of this view, particularly strong justification will be required from the planning authority to merit a departure from the reporter's recommendations. Planning authorities will be required to seek the agreement of the Scottish Ministers where they wish to depart from recommendations, and Ministers will retain the right to intervene in the adoption of the plan where they are not content.

Statutory requirement to prepare action programmes

To provide greater certainty that the provisions of the development plan will be followed through, we propose that an action programme is prepared alongside each plan. This document will set out actions required to implement each of the plan's policies and proposals. The action programme will state what is to be done, who is responsible and when it will be achieved. It will be monitored and updated to reflect completed work and revised timescales and published at least every 2 years. This will help to create a climate of certainty for the users of the system.

'Approval in principle' in development plans

As a further measure to strengthen the effect of development plans and ensure that their content is meaningful, we are also examining the proposal that the allocation of a site in a local development plan for a particular use, or mix of uses, will indicate that the principle of development for those uses has been accepted on that site. At the same time, we will remove the current provision allowing applications for outline planning permission. For example, where a site is allocated for residential use, there should be no need to apply for outline permission for development of housing on that land. Following adoption of the plan, the next step will be the preparation and submission of a planning application, for consideration by the planning authority, with appropriate engagement with statutory consultees and local people on the details of the development, for example, house layout, access and design. The ability to accept the principle of the use allocated in the development plan would not extend to developments that require Environmental Impact Assessment.

This proposal will help to focus attention on bringing forward development proposals identified in the development plan. It would also give greater certainty to applicants and local people on what uses are acceptable and what change is expected in the area in the near future. It follows that planning applications for developments on land not allocated for that use in an up-to-date development plan are unlikely to be approved. Significant justification would be required to support approval for development that departs from the development plan. This would provide new reassurance to local people and end unnecessary uncertainties.

Conclusion

We are confident that these proposals provide a framework that will both lead to greater confidence and speed in the shaping of planning policies and proposals, and encourage rational and consistent decision making, providing business with greater certainty while ensuring that the interests of those local people affected are fairly, fully and properly taken into account. The status and relevance of the development plan is critical to the success of the planning system as a whole, and creating a fairer, more balanced system.

5.2.2 Development Management Efficiency

We intend to modernise the planning application process. This will mean that it is simpler and more accessible for applicants and local people. Our reforms will improve the speed and efficiency of the process while maintaining and enhancing quality in decision-making and in the outcomes on the ground. A summary of our reforms follows, with details set out in Appendix 6.

E-Planning

New technology has huge potential to make the planning service more transparent, accessible and efficient. Planning authorities across Scotland have been improving service delivery by placing planning information online, allowing people to track the progress of individual applications or to find out about development plans. Some planning authorities have developed systems that allow planning applications to be submitted online. Where these e-planning services have been provided they have proved to be very popular with users. New technology is also being used to improve the planning appeal process and the information available through the Executive's Planning Homepage. The Executive will continue to work with planning authorities to increase their use of new technology to improve service delivery, public access and involvement.

Planning agreements and obligations

Planning agreements can accompany planning consents. They are drawn up by planning authorities and an applicant to set out what an applicant will deliver in relation to specific issues, either related to the nature of the development (for example, opencast mines or quarries) or to associated infrastructure costs (for example, roads, schools, community facilities and affordable housing) as set out in local development plan policies. We propose to improve the framework governing such agreements, re-stating their permitted scope and allowing applicants to submit unilateral obligations, which can make appeals processes in particular more efficient. We will also make the process more transparent, by putting requirements on authorities to place agreements on the public register, to monitor delivery of items in the agreement and place this information in the public domain.

Standard application forms

We intend to simplify the planning application process by introducing standard application forms, written in plain English and available in an appropriate range of formats to ensure accessibility. This will make the application process faster and more user-friendly. Standard application forms could also assist in the electronic delivery of the planning service, particularly the online submission of applications.

Reduce time period for appeals from 6 months to 3 months

In order to reduce uncertainty for objectors and planning authorities, the Executive has decided to reduce this time period to 3 months. This 3 month period still provides the applicant for planning permission sufficient time to consider whether to proceed with an appeal. This reduction will also apply to the period within which appeals on the basis of a deemed refusal of planning permission may be made to Ministers and to appeals to be decided by a local review body.

Power to decline to determine applications

We intend that planning authorities will be able to decline to determine applications where they have determined more than one similar application in the previous 2 years, and the issues surrounding the application have not changed significantly. This responds to concerns about the ability of applicants to apply repeatedly for similar developments on the same site. There is a need to strike the right balance between allowing repeat applications in order to make useful amendments to proposals, without allowing such repetition to be used to exhaust opposition.

Duration of planning permissions

We propose that planning authorities will be able to decide an appropriate period within which development must be begun. Where no period is specifically set, the statutory period will be reduced to 3 years, instead of the current 5 years. This will reduce uncertainty and retains a reasonable period within which to commence development.

Advertising of weekly lists

In order to improve the public's awareness of planning applications, we will, in future, require planning authorities to produce and publish a weekly list of planning applications. Parties who are interested in development proposals in an area should therefore be able to access information on relevant planning applications easily.

Notified applications - method of determination

In order to enhance the efficiency of the system, we propose that when applications are notified to Scottish Ministers, they will, in common with the approach taken in processing planning appeals, be empowered to decide whether the case should be determined by written submissions, informal hearing or public inquiry using the approach best suited to the nature and complexity of the issues involved. Where Ministers decide that a case should be cleared back to the planning authority they may choose to specify conditions in order to ensure that an issue - for example, on the timing of infrastructure provision or the need to prepare a master plan - is addressed by the planning authority without requiring call in.

Mezzanine floors

We propose to bring the introduction of mezzanine floors within the planning system, to mitigate the potentially harmful impact on the amenity and environment of an area.

Managing change in the historic environment

We intend to update the provisions in planning legislation which deal with the effective protection of the historic environment. We also recognise that there may be scope for more radical improvements through combining elements of the various relevant consent mechanisms. Historic Scotland will lead an exercise to examine whether such an approach could be workable, and whether the potential benefits could justify changes to the legislation.

Tree Preservation Orders

We will take forward proposals through the Planning Bill to enhance the effectiveness of Tree Preservation Orders.

5.3.1. Background

In Scotland, great importance has always been attached to public involvement in the planning system. We believe that it is important to ensure that every person regardless of their background can have their say in the decisions which affect them. We are determined that we improve still further the levels and quality of public participation in planning. As a result, the aim of improving the levels and quality of public participation in planning has been one of the two major themes of the planning modernisation process since devolution.

This White Paper and the Planning Bill which will follow represent the culmination of a process dating back to the Consultation Paper 'Getting Involved in Planning' (November 2001), and the subsequent White Paper 'Your Place, Your Plan' (March 2003).

In the Scottish Executive's Partnership Agreement of 2003, we made a commitment to go further in enhancing public participation to 'strengthen the involvement of communities… (and) reflect local views better.' The proposals we are setting out in this White Paper are intended to secure a fairer, more balanced system.

5.3.2 The Current Planning System

There are already opportunities for people to get involved in the planning system.

At the national level, planning is devolved to the Scottish Administration. Planning policy is determined by Scottish Ministers and subject to scrutiny by the Scottish Parliament. People are able to write on planning matters to Scottish Ministers, make representations to their MSPs, and petition the Parliament on matters of planning policy. Scottish Ministers must approve the content of all structure plans (in future, strategic development plans) and can direct planning authorities to include certain provisions in local plans (in future, local development plans). Ministers can also 'call in' for their own determination any individual planning application. People can also participate in the drafting of national planning policies, and it is the intention that the Parliament will contribute to the development of the National Planning Framework.

At the planning authority level, people can participate in the preparation of development plans, which set out proposals for guiding the future development of their area. Individuals or groups are informed through newspaper adverts of the local authority's intention to prepare a plan and can see a draft version of it. Local people can participate in the plan's consultation stage, during the course of which they can submit comments or objections at public meetings or in writing.

In terms of planning applications, it is best practice for the applicant to carry out pre-application discussions with the authority and there is a statutory requirement to notify immediate neighbours with a basic description of the proposal and site plan. Anyone has the right to comment at this stage. Once the application is submitted to the planning authority, it is available to view at a public location and all comments are accepted within a statutory period. Officers will make a recommendation and then a decision will be made by the planning authority (in some cases preceded by a hearing, where individuals or groups, as well as applicants, will be able to make representations directly to elected Members).

In spite of these existing opportunities, many individuals and local people do not feel that their views are sufficiently taken into account, and are able to point to examples of planning decisions which they regard as unfair, or which have been taken in spite of local community objections.

In ' Your Place, Your Plan' the Executive noted that while there are high levels of general public interest in planning and a clear view that public participation is important, the actual levels of involvement achieved were lower.

The research underlying this suggested that barriers to involvement include:

• planning procedures are seen as complex, lengthy and difficult to understand;
• people are unclear about the importance of the local plan and tend not to get involved in planning until there is a concrete proposal on the table which directly affects them - by which time it is often too late to influence the principle of the proposal;

• the fact that planning decisions will not always please everybody. Controversial applications can attract as many supporters as objectors, and there are other factors to consider such as the long-term national interest, EU or other legal obligations, the need to promote economic growth and create jobs. It is not always easy to explain that a decision to grant planning permission has taken account of objectors' views, but has - on balance - overruled them.

5.3.3 Our Proposals

Our proposals aim to achieve a new balance in the system, with more equality, new rights for local people to be consulted and the requirement for their views to be recognised and taken properly into account. We want developers and planning authorities to involve local people in more meaningful engagement than has been the case in the past and for future developments only to take place once local people have had their say.

Our proposals are guided by a number of clear principles:

• there should be greater balance and equality in the planning system;
• that the provision of information at the right time and in the right way is essential - everyone has a right to be involved and all opportunities should be provided to enable them to contribute their views;
• people need to know that their views will be taken fully into account;

• decisions need to be taken openly and transparently and should be explained to the people they affect. They should be fair and be seen to be fair.

Planning decisions can involve difficult choices. The law requires decisions to be made in accordance with the development plan unless material considerations indicate otherwise. That is why it is so important for local communities to engage in development planning. But there are also opportunities to comment on individual planning applications. Representations expressing public concern or indeed support are an essential part of the decision making process. Decision makers are regularly faced with well argued representations reflecting different, in some cases conflicting, positions. These different perspectives can be equally valid. The task for whoever is making the decision is to ensure that representations are clearly identified, to consider their relevance to the case in hand, to assess the merits of all views expressed and balance these with other factors, in particular the policies and proposals in the development plan, as well as more technical issues like the suitability and safety of the proposed access, parking provision, density, layout, and design. Local opinion is therefore a material factor, although not necessarily an overriding one.

Decisions will sometimes be unpopular. The credibility of the system depends on the fairness and transparency of the process, and the quality of the decisions and their outcomes (the effect they have on the built and natural environment). Securing this credibility is the challenge that this White Paper seeks to address.

Planning has a clear link to supporting the Executive's priorities for environmental and social justice. We do not regard it as acceptable for certain communities to feel less empowered than others. A properly functioning planning system encourages all groups and individuals to make their views known. It will also seek to ensure that, for example, 'Bad Neighbour' developments are not disproportionately located next to the most disadvantaged communities.

To support our work to modernise the planning system and strengthen its accountability we will undertake a major information campaign within the next 12 months to publicise people's existing and future rights in planning and other legislation which impacts on planning, such as Freedom of Information and Environmental Information Regulations.

Equality

Appeals

We will reform the functioning of the appeal system to restore balance and fairness. It is not acceptable that applicants are sometimes seen as having unlimited rights to circumvent the local decision-making process by appealing to Scottish Ministers. This is particularly true where the original decision supported the development plan position.

We intend to address this in two ways.

First, we will introduce a process to allow early determination of planning appeals where an appeal clearly does not merit more extensive consideration. This will result in early refusal of those appeals that, for example, do not properly address the reasons for refusal or which involve proposals that clearly depart from an up-to-date development plan. The process of early determination will be in line with criteria which we will publish. We estimate that a significant proportion of appeals will be determined in this way. This will: give new protection to the interests of local people; diminish the sense that applicants have an inherently privileged position in the planning system; and foster a greater level of certainty through provision of a faster system.

In addition we will curb the tendency for development proposals which have been appealed to alter, and the justification for them to grow, without proper reference to the local community. From now on, all planning appeals will revert to being a review of the decision made by the planning authority, based on the material that was supplied to the planning authority by the applicant and the representations made to them by the community. Only in exceptional circumstances, such as a change in national or development plan policy, will consideration extend beyond the matters contained in the planning application as considered by the planning authority and explained to the community.

Information/Accessibility

It is essential that members of the public are aware of the planning process, and have opportunities to influence it. We therefore propose the following measures:

Statutory requirement for pre-application consultations

Applicants for planning permission may already consult with local people voluntarily in advance of making a planning application. The Executive considers that there are cases in which a statutory requirement to engage with local people at this stage is appropriate.

The proposals in question fall into three categories:

• proposals for major developments (see Section 5.1.3) where they are a significant departure from the development plan;
• proposals subject to the Environmental Impact Assessment ( EIA) Regulations, except those screened to the effect that no EIA is required; and
• proposals for development defined as larger-scale 'Bad Neighbours' where they are a significant departure from the development plan.

These categories of development differ from those to which the other measures of enhanced scrutiny, for example, hearings, apply. This is to provide applicants with greater clarity on the trigger for pre-application consultation, since it may take place ahead of planning authority involvement.

In addition to the basic statutory requirements, we propose to set out in guidance the form of engagement with local people appropriate to the nature and scale of the proposal. Applicants will be required to provide a report of the pre-application consultation with their application. The planning authority will then assess whether appropriate consultation has been undertaken.

Pre-application consultation allows local people to influence proposals before an application is made. Where there are unresolved issues arising from pre-application consultations, these should be considered as part of the processing of the planning application by the planning authority. There may also be scope for mediation in the right circumstances.

Neighbour notification

This is the formal means through which local people with an interest in land or property are directly notified of a planning application relating to an adjacent site. ' Your Place, Your Plan' confirmed the Executive's decision to transfer responsibility for neighbour notification in respect of planning applications from applicants to local authorities. We believe that if local authorities are responsible for carrying out neighbour notification this will strengthen public confidence in the planning system and encourage more effective public participation in planning decisions. In ' Your Place, Your Plan' we also announced that more information about planning proposals and planning procedures would be provided to neighbours to help people respond more effectively to planning proposals. We have also decided to extend the time for responding to neighbour notification from 14 days to 21 days to allow individuals and community groups sufficient time to prepare their responses. We accept the need to increase application fees to reflect the higher costs that this transfer of responsibility will impose on local authorities.

In ' Your Place, Your Plan' we also indicated our intention to extend neighbour notification directly to notify owners, occupiers and neighbours of new site specific proposals in local development plans. In this way, individuals who may be directly affected by development proposals will be given the opportunity to make an informed representation at an early stage. The appropriate arrangements under which neighbour notification is proposed, have been established by a neighbour notification working group comprising local authority planning staff.

We also propose to extend the arrangements for neighbour notification of enforcement decisions. An enforcement notice served by a planning authority sets out the alleged breach of planning control and the steps required to remedy it. One of the current grounds of appeal available to a person on whom an enforcement notice has been served is that planning permission should be granted for the development which is alleged to have breached planning control. As Scottish Ministers, in considering such an appeal, may decide to grant planning permission, it would be appropriate for neighbours with a notifiable interest to be aware of the appeal and to have their views taken into account.

Freedom of Information: The Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 give members of the public new rights to access information held by Scottish public authorities. Refusal to provide information can only be justified under a limited set of exemptions. The Act and Regulations came into force on 1 January 2005. Both obligations provide members of the public with a framework for accessing the information and documentation that relates to development plans and planning applications - which is enforced by the Scottish Information Commissioner.

Subject to our intended review of the grounds of appeal against an enforcement notice (see section on Enforcement), we believe a change is needed here. We propose therefore that an appeal against an enforcement notice, which includes the grounds that planning permission ought to be granted for the development in question, should be subject to neighbour notification by the planning authority. This would be along the same lines as for a planning application made to the authority.

Modernising Public Local Inquiries

The Scottish Executive ran a consultation on how to make public local inquiries more accessible from 4 July 2003 to 28 November 2003. This assisted us in drawing up a set of proposals to ensure the strengths of the current system were kept, while making the process less intimidating. The details of our proposals are set out in Appendix 7.

Greater use of hearings

We intend to introduce measures to require greater and more consistent use of hearings to allow the views of objectors and other interested parties to be heard before a planning decision is taken. The Executive will define when a hearing is appropriate and how it should be conducted. We believe that it would be appropriate for there to be a statutory requirement for hearings to take place as part of the determination process for a range of planning applications, where they have attracted significant objections, including:

• applications for major and local developments which are significantly contrary to the development plan;
• applications for development that requires an Environmental Impact Assessment; and
• applications for development defined as larger-scale
  'Bad Neighbours'.

Creating Confidence that Views are Taken Fully into Account

As noted above, the reaction of local people to a proposed development is a material consideration insofar as it raises legitimate public concerns or supports relevant planning matters. However, the fact that decisions on the development plan and individual planning applications are taken by elected and accountable politicians is a reflection of the status of planning authorities, and the Scottish Executive, as the guardians of the wider public interest.

What often causes concern is the feeling that views expressed by local people are ignored or discounted in the drawing up of a development plan or in the determination of an individual application. We are determined to ensure that the views of local people are given greater and more consistent consideration in the future.

New Planning Advice Note

As a first step, we propose a new Planning Advice Note ( PAN) on community engagement and strengthening the involvement of local people. This will be drafted with stakeholders, to promote best practice on community involvement and effective consultation. The aim is to secure a greater consistency of approach across Scotland and a better understanding of which techniques are best suited to different scenarios and stakeholder groups. This will be the authoritative guide to community engagement on planning in Scotland.

Compliance with best practice

We want to ensure that developments will only take place where local people have been listened to. We therefore propose that compliance with defined criteria in relation to community engagement should be a material consideration in reporters' examinations both of development plans, and, where they have been called in by Ministers, individual applications. This means that, in future, planning authorities will be required to demonstrate how they have complied with statutory requirements and best practice in the drawing up of the development plan, before the plan can be approved. As regards individual applications, local people will be able to bring alleged failures by the developer to engage with them to the attention of Ministers, who will take such issues into account when deciding whether to call in an application.

This measure will go a long way to ensuring that local people's views are taken into account, in an appropriate and consistent fashion across Scotland. They will not guarantee that every development that faces objections will be refused: that would lead to paralysis and a loss of the investment that we need. They will help to ensure that the modernised planning system is more credible, and that the decisions it generates can be respected as fair and having taken local people's views fully into account and are in the wider public interest.

Transparency/Fairness

Enhanced scrutiny procedures

In a plan-led system, it is essential that development plans are authoritative and up-to-date. Planning must be responsive, and, despite the importance of the development plan, there will still be proposals which depart from its provisions. For example, where a site is proposed for a new use not currently allocated in the plan. We believe that these should be subjected to an enhanced level of scrutiny compared to those that are in accordance.

We therefore propose the introduction of enhanced scrutiny for three types of planning application: applications for major and local developments which are significantly contrary to the development plan; those that require an Environmental Impact Assessment; and applications for developments defined in secondary legislation as larger-scale 'Bad Neighbours', for which specific provision has not been made in the development plan. These applications would:

• be subject to pre-application consultations (where the criteria in section 5.1.3 apply);
• be subject to mandatory public hearings at which objectors or supporters would be able to present their views (see section 5.3.3);
• have any decision taken by a planning committee to grant planning permission referred to the Council as a whole; and
• subsequently be notified to Ministers, to consider whether to clear the application back to the Council or call in for determination.

Planning authorities to give reasons for decisions and notify individuals

Concerns have been expressed about access to information on a planning authority's reasons for its decision on an application.

We propose that planning authorities will be required to prepare a report on each application. This will include a description of the proposal, reference to any relevant development plan policies, the issues raised by statutory consultees and in representations on the proposal, the planning authority's decision, any conditions and its reasons for the decision. The Executive proposes to specify in legislation that planning authorities must also prepare a decision notice for all applications setting out, as a minimum, the decision (to grant or refuse permission), the conditions to be attached to any permission and the reasons for the decision.

The decision notice and the report will be available to the public on the planning register. Copies of the decision notice are to be sent to those who submitted objections and representations on the application. Where appropriate these requirements will be able to be met using electronic means of communication.

Development proposals in which the local authority has an interest

Procedures currently exist to review cases where a potential conflict of interest arises for local authorities. There are two procedures. Where the local authority has an interest (financial or land ownership) in the proposed development, it cannot grant consent for a development without first notifying the application to Scottish Ministers, if that development is either contrary to the development plan or subject to a substantial body of objections. Where a local authority wishes to undertake development itself, it must follow Notice of Intention to Develop procedures. Where any objection is received, it must submit its proposals to Scottish Ministers for consideration.

Cases currently notified to Scottish Ministers can include a wide range of development proposals - from commercial and retail developments on local authority land, through housing, to local authority services such as schools and care homes. In both procedures, the reference to Ministers ensures an independent assessment of the proposal and any representations. It prevents the Council from acting as judge and jury in these matters.

We are, however, aware that there is a public perception that these applications could be handled with even greater transparency and rigour. Our proposed improvements to the development planning process will be central to providing the required transparency. We will require a schedule of land ownership to form part of each local development plan. This will identify proposals for development that include local authority-owned land. These sites will, of course, be subject to full independent scrutiny in the preparation of an adopted development plan, and there will be safeguards under the new framework we propose to limit an authority's scope to depart from reporter's recommendations.

There are also development management proposals that will help improve transparency and safeguard against inappropriate development. We will withdraw the 'Notice of Intention to Develop' procedure, requiring all local authority interest cases to be the subject of planning applications. This will serve to increase the level of scrutiny of proposals where the local authority proposes a new development.

As a result of this, all local authority applications will be subject to the reforms we propose. These include the requirement for pre-application consultation in certain cases, and enhanced scrutiny and hearings procedures. We will expect local authorities to follow the Planning Advice Note on best practice in public consultation procedures.

Where a local authority proposes development that is a departure from the plan, and/or the subject of a substantial body of objection, the application will be notified to Scottish Ministers. As part of the notification procedure, we will require the authority to provide a statement setting out the reasoning behind its decision to depart from the plan, and/or the reasons for taking the decision it has, in light of the objections received. Scottish Executive officials responsible for the initial review of these cases will focus particular attention on any where the local authority will gain a capital receipt as a result of the proposed development going ahead.

Planning agreements on the public register

As detailed earlier, we will set out a requirement in legislation that the details of all planning agreements be made available on public registers.

Good Neighbour Agreements

There is scope for businesses to engage with local communities, not just in terms of planning for new development but also in managing their sites and operations in accordance with predicted and required standards as development proceeds. To achieve that end we intend to ensure that there is legislative and/or administrative provision in place for Good Neighbour Agreements to be required and implemented in appropriate circumstances.

We recognise the value of local people being able to enter into arrangements with site operators for significant developments which would guarantee them a role in monitoring the way the development is carried out. Parties to such an agreement may include the developer of the site, the future operator and a body that is representative of the local community, for example a residents' group or community council. This is intended to encourage businesses to take the views of local representative groups into account in the way they operate a site or facility. Issues to be covered could include hours of operation, patterns and frequency of vehicle movements and the provision of more general information on environmental performance.

Where the planning authority considers that a Good Neighbour Agreement would be beneficial, for example for a development where an Environmental Impact Assessment has been carried out, it may be appropriate to place a condition on the planning consent, requiring the developer of the site to inform and consult with specified local representative bodies and/or to enter into an agreement. Alternatively, there may be scope for a form of agreement similar to a section 75 agreement.

We will work up proposals for a system allowing for Good Neighbour Agreements, in consultation with all relevant interests.

Other Measures

Promoting inclusive design

The Executive wishes to promote good design. As a part of this agenda the Executive recognises the need to deliver inclusive environments that can be used by everyone, regardless of age, gender or disability. We therefore propose to require, in appropriate circumstances, that applicants for planning permission show the access principles they have considered when putting forward a development proposal. In addition, the Scottish Executive is preparing, with the Scottish Building Standards Agency, a Planning Advice Note on Inclusive Design. The PAN, which we expect to publish late 2005/early 2006, will provide practical advice to local authority officers and developers on how to deliver more accessible buildings and environments.

Planning Aid for Scotland

Planning Aid for Scotland provides free advice to the public on how the planning system operates, and seeks to improve local and community involvement in planning. The Executive has recognised the need to build up existing mechanisms for public involvement in the planning system and has therefore provided funding to Planning Aid for Scotland of £115,000 over financial years 2003-4 and 2004-5. Following on from the 2004 Spending Review, the Executive has made funding of up to £100,000 available for each of the next two years.

Through the Sustainable Action Fund, the Executive has also granted funding of nearly £150,000 over three years to Friends of the Earth Scotland for its Citizen's Environmental Defence Advocacy ( CEDA) programme. The CEDA project aims to provide advice and advocacy support to community groups and individuals who want to get more involved in the planning process.

Rewarding good practice

Another category of Award has been added to this year's Scottish Awards for Quality in Planning. The 'Community Involvement' category is to recognise the positive role people play in planning. The aim of this is to bring forward outstanding examples of community empowerment, where groups have been active with or through the planning service. Entries may be nominated from various fields, for example: regeneration, conservation, information, environmental improvement or co-ordination of different initiatives. The examples should identify where local people have been most effective, either in partnership with local authorities, developers, other stakeholders, or on their own account in making places work better.

Enforcement

For many individuals, their first contact with the planning system, unless they are themselves making a planning application, is through the enforcement system. In many cases the system may seem to be lengthy and 'unfair' in that there appears to be no penalty for unauthorised development.

In general, the current legal framework for enforcement meets the Scottish Executive's objectives that planning enforcement should remedy the undesirable effects of unauthorised development, and bring unauthorised development under control. We believe that the basic principles of the current framework do not need to be changed.

But we believe that there is scope for radically improving the delivery of planning enforcement with the introduction of some new or extended powers. This will be a major contribution towards making the planning system fairer and more balanced.

We propose that the fees for retrospective planning permission be increased on a sliding scale in order to act as a deterrent to unlawful development and to encourage people to obtain planning consent at the appropriate time. In order to provide a further incentive for developers to regularise a breach of planning control, we propose that, where a retrospective planning application is not submitted when requested by the appropriate planning authority, this would be an offence under planning legislation.

As a precursor to further enforcement action, should a developer ignore a request for a retrospective planning application, a Planning Contravention Notice ( PCN) can be used to request details regarding the development and responsible person(s). We propose that the content and wording of such notices be clarified in consultation with the Crown Office, to ensure the provision of necessary information required in the event of a prosecution. We further propose that the penalties for failure to provide this information be reviewed.

Where an unauthorised development or activity may cause irreparable damage to buildings or the environment, the planning authority may seek to serve a Stop Notice (in conjunction with an Enforcement Notice) requiring the activity to cease. However, this can be an unwieldy process that takes time. We therefore propose that a new power to serve a Temporary Stop Notice ( TSN) be introduced. A TSN would provide an immediate power to order the cessation of a breach of planning control, and could be followed by the serving of an Enforcement Notice and Stop Notice. There is no right of appeal against a Stop Notice and, in line with this, we do not propose a right of appeal against a TSN.

Under the current legislation, a developer can appeal against an enforcement notice, and exercising this right is cited frequently by planning authorities as a major reason for delays in the process. We therefore propose to re-examine the provision in the Act for an appeal against an Enforcement Notice, to see if there is scope to bring it into line with other enforcement action (Stop Notice, Breach of Condition Notice, etc) where there is no right of appeal under planning legislation, although a developer can seek a judicial review.

Rather than remove the right of appeal completely, we acknowledge that there may be cases where there are legitimate grounds for appeal if the planning authority has been negligent in the serving of the notice. We therefore believe that there may be scope to impose a strict time limit for the lodging of appeals and to redefine the criteria for appeals to situations where there has been a clear error in the serving of the Enforcement Notice.

There is general public perception that planning enforcement measures can take a long time to produce any action. We are considering a range of measures to encourage pro-active enforcement as a means of dealing with breaches of planning control quickly and efficiently. To this end, we propose that developers will be required to submit a Start Notice to the planning authority notifying them of their intention to commence development and that they have met with any suspensive or pre-conditions. The developer will further be required to notify the planning authority when certain agreed stages of the development are completed, and to notify the authority when the entire development is complete. This requirement for self monitoring, similar to that required under Pollution Prevention & Control consents issued by SEPA, would enable the planning authority to monitor compliance with conditions throughout the development process and to identify and address any breaches of planning control at an early stage.

In conjunction with our proposals to increase pro-active enforcement, we propose that all planning authorities be required to publish a Planning Enforcement Charter setting out, in clear terms, their policy in respect of planning enforcement.

Although in practice it is very rare for compensation to be awarded against a planning authority in respect of enforcement action, this possibility is frequently cited as a reason for planning authorities to be cautious in their approach to enforcement action. We therefore propose that the grounds on which a claim for compensation can be made are reviewed and that compensation is only considered where there has been a clear, avoidable, major error on the part of the enforcing authority. We believe that this would encourage planning authorities to consider more frequent and timely interventions where they believe there to have been a breach of planning control.

We are considering revising the level of fines that a Court may impose in respect of breaches of planning control. In order to support the proposed additions to the enforcement powers, we propose to update PAN 54 Planning Enforcement and provide enhanced continuous professional development training, especially in the use and drafting of conditions.

5.3.4 Rights of Appeal in Planning

The frustration with the perceived inequalities in the planning system led some people to call for third parties to be given a right of appeal against planning decisions. In contrast to other parts of the United Kingdom, the Scottish Executive made a commitment in the 2003 Partnership Agreement to carry out a detailed examination of the issues involved through public consultation.

The consultation Rights of Appeal in Planning ran from 1 April to 31 July 2004. A stakeholder group, consisting of representatives of different interested bodies (including local authorities, Scottish Environment Link, CBI Scotland, Friends of the Earth Scotland and the Association of Scottish Community Councils) advised the Executive on the conduct of the consultation.

The Executive received more than 1620 responses to the consultation, and commissioned an independent consultancy - Craigforth - to analyse the responses. This analysis was published on 15 December 2004 and can be viewed on the Scottish Executive's website at: http://www.scotland.gov.uk/library5/planning/roapacr-00.asp . The consultation assisted the Scottish Executive in considering whether to introduce a third party right of appeal. Ministers have given careful attention to the arguments advanced by all sides and come to a decision in the context of the comprehensive reforms we have outlined earlier in this paper.

We are determined to act to restore confidence in the planning system, and ensure that decisions are taken in the wider public interest. We see a number of our reforms as essential to achieving that, especially ensuring effective public engagement in development plans, and then putting development plans at the heart of decision-making. In the future, these plans will involve local people more effectively, take environmental concerns on board, and, once in place, will determine how applications are decided.

We also believe we must ensure that there are opportunities for public involvement in the preparation of planning applications, where appropriate, and we have defined the categories where pre-application engagement will be required. The planning system will work much more smoothly if issues are tackled at the start.

The emphasis of our modernisation of the planning system is aimed at making better quality development plans and applications, and engaging local people and environmental interests at the outset and throughout the process. We are seeking to restore fairness and balance to the system, and reduce the need for appeals to be submitted at the end of the decision-making process. We are not satisfied that these objectives would be best achieved by introducing a third party right of appeal into the Scottish planning system.

We believe that the package of reforms set out in this White Paper will have a positive impact on the planning system by introducing greater fairness and a structured hierarchy of national, major, local and minor planning applications that will enable the system to respond better to the different demands placed upon it.

Having weighed the issues, the Cabinet is not proposing a third party right of appeal because:

• we want to strengthen the participation of local people at an earlier stage in the process, where they can influence the form and content of development plans, and then the detail of development proposals in planning applications;
• adding a new right of appeal against decisions to grant planning permission would inevitably build new delays and unpredictability into the system. This would add costs to development that may act as a deterrent to the investment that the economy, the environment and society needs. It would run counter to the certainty for all that these modernisation proposals intend to achieve;
• introducing a new right of appeal would risk undermining local authority decision making. In addition, our other reforms will enable local authorities better to play their role as guardians of the wider community interest, by the introduction of proportionality and greater fairness and equity in the development planning, development management and appeals systems.

The Cabinet recognises, however, that the option of introducing a third party right of appeal will continue to be the subject of debate as people come to a view on the effectiveness of the proposals set out in this White Paper. Ministers are committed to engaging in this debate as Parliament reaches conclusions on the provisions to be included in a Planning Bill.

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