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ROLES AND RESPONSIBILITIES

11. The roles of those charged with creating better opportunities for community engagement in the planning system are set out below. This includes the ways in which individuals and community groups can expect to be involved in the planning issues that affect them.

THE ROLE OF SCOTTISH MINISTERS

12. Scottish Ministers develop legislation, national policy and advice on land use planning for Scotland. In the modernised planning system, Ministers will have a role in setting a strategic framework for national developments through the National Planning Framework ( NPF), in approving strategic development plans for the four main cities and their regions and making decisions on certain types of planning applications and appeals. Involving the public is an important feature of the Executive's work. The main ways that people can get involved in national planning issues are set out below.

Community Engagement at National Level

13. Scottish Ministers want to engage people in the preparation of the National Planning Framework ( NPF). The NPF identifies long-term priorities and will in future identify opportunities for national developments (these are of national strategic importance, for example major transport systems and water, drainage and waste management infrastructure projects) in different parts of the country.

14. Stakeholders, the public and Members of the Scottish Parliament will have the opportunity to participate in the debate on the NPF at several stages. Scottish Ministers will have to publish a Participation Statement setting out how and when people can get involved in the preparation of the NPF. However, the process is expected to be:

• an initial consultation on the scope and content of the NPF;
• the publication of a draft for public consultation, including regional and thematic seminars, and the publication of a Strategic Environmental Assessment (showing the likely effect the NPF's proposals might have on the environment);
• revision of the NPF in light of comments to the draft; and
• consideration of a final draft NPF by the Scottish Parliament.

15. Individuals and communities can also participate in consultations conducted by the Scottish Executive as part of the process of preparing new planning legislation, such as Regulations, or Scottish Planning Policy ( SPP).

16. The Scottish Executive's planning website gives details of all planning legislation, publications, policy and advice ( www.scotland.gov.uk/planning). Help about planning in Scotland is also available by contacting the Scottish Executive's Planning Helpline on 08457 741741.

THE ROLE OF THE PLANNING AUTHORITY

17. The operation of the planning system is the responsibility of the planning authorities. In most cases this will be the local council planning authority (of which there are 32), but may also be one of the 4 strategic development planning authorities in the main city regions, or one of the 2 national park authorities. Planning authorities should seek to enhance the quality of community engagement in the delivery of their three key roles which are:

• Preparing development plans;
• Deciding on applications for planning permission; and
• Taking action against breaches of planning requirements - enforcement.

Community Engagement in the preparation of Development Plans

18. Development plans are key documents in the planning process. They contain policies designed to promote the economic, social, physical and environmental health of an area, and allocate sites for specific land uses such as housing, retailing, business and industry, or developments such as schools, health centres and, more controversially, waste management facilities. These allocations establish the principle that a site may be used for a particular purpose. The law then requires that any application for development be resolved in accordance with the development plan, unless there are material considerations that indicate that a different decision should be taken. It is therefore essential that people are given adequate opportunities to participate in the preparation of the development plan. It is too late for people to object to the principle of an allocated use at the stage when it becomes subject to a planning application. It is the role of the planning authority and elected Councillors to promote a wider sense of public awareness of development plans by engaging actively with the people that they represent.

Planning authority checklist for community engagement in the development planning process:

Please note that the arrangements for community engagement in development planning may be subject to some amendments as the Planning Bill progresses through the Parliament. Further regulations and guidance on development planning will be prepared and this will be subject to public consultation. However, we anticipate that the new planning system will involve the following steps:

• Prepare and publicise Development Plan Scheme including Participation Statement setting out how and when the community and others can get involved in the preparation process.
• Prepare and publish Main Issues Report for early targeted consultation, identifying suitable participatory approaches. (Minimum 6 week participation period.) Copies to be made widely available.
• Following review of the representations made, prepare and publish Proposed Plan and Action Programme. (Minimum 6 week participation period.) Copies to be made widely available.
• Notify owners and neighbours of new site specific proposals in the local development plan, along with others who have made previous representations.
• Consider responses and seek to strengthen support for the plan and resolve as many objections as possible through negotiation or mediation.
• Publish amendments and produce a report confirming what engagement has been carried out. This report will be assessed by a reporter (or in the absence of an examination, the Scottish Ministers) to check that it has met, or gone beyond, what was set out in the participation statement.
• Prepare for and participate fully in any independent examination by the Scottish Executive Inquiry Reporters Unit ( SEIRU) where objections are not withdrawn.
• Consider the reporters findings and modify the plan where necessary.
• Where the reporter finds in favour of an objector, the planning authority will only be able to depart from the reporter's recommendations in an identified range of circumstances.
• Publicise and adopt the plan in its final form, bearing in mind that there is a six week period for court challenge.

19. Members of the public and communities can expect to be informed of the timetable for plan preparation through the publication of the planning authority's Participation Statement which will set out how people can get involved. The availability of the Participation Statement should be advertised in local newspapers and on the planning authority's website.

20. Individuals and communities can expect to be engaged early in the process following the publication of a Main Issues Report which will identify the key areas of change that need to be addressed. Representations received during the 6 week participation period will provide the planning authority with important views from the public and other stakeholders and will assist in the preparation of the proposed development plan. Planning authorities are encouraged to be innovative in their approach to ascertaining people's views using appropriate methods of engagement.

21. Following analysis of the comments received, the proposed plan should be prepared and published. It should promote a draft development plan that has the broad support of the community. The proposed plan should be concise, clear and easy to understand. There will be another 6 week opportunity for people to make further comments. Owners and neighbours of new site specific proposals in the proposed plan will be notified directly by the planning authority to ensure they are aware of the proposals at an early stage. The planning authority should actively seek to resolve objections and build support for the proposed plan through negotiation. Where communication has broken down, the use of mediation may be productive.

22. An important feature of the new arrangements for inclusion is that the extent to which the planning authority has met or exceeded its intentions to involve people, communities and business in the development plan process, as set out in its participation statement, will be assessed. This will be undertaken either by a reporter from the Scottish Executive Inquiry Reporters Unit ( SEIRU) or Scottish Ministers. If the consultation exercise is judged to be inadequate, the reporter or Scottish Ministers will have the power to ask for further work to be carried out before the plan proceeds to the next stage. This might occur, for example, where community councils should have been consulted on the plan but were not. The planning authority might then be required to carry out a further period of public consultation to ensure that all parties had a chance to view and comment on the plan. This measure is intended to enhance the public's confidence in the planning system and to ensure that planning authorities take proper regard of people's views and opinions at the right stage in the plan preparation process.

23. The community can also expect to be engaged by the planning authority in the preparation of other planning issues, for example development briefs for individual sites and in the preparation of supplementary guidance.

24. The following scenario illustrates how people and communities might engage in plan preparation.

Scenario A: Development Plan Process

• A member of a residents' association reads in the local paper that the planning authority has published its Development Plan Scheme including a Participation Statement. This sets out the planning authority's intentions for preparing the development plan for their area, including timetables for plan stages and ways in which the public and other stakeholders can get involved.
• The planning authority carries out early participation with people on the key issues that face the area and issues where there may be a need to identify changes to the new local development plan. Evening meetings are held.
• The planning authority publishes the proposed development plan with a minimum of 6 weeks for public participation and comment. A policy in the plan allocates a brownfield site next to the local community centre for 250 houses since more housing is required in the area and the site is the best location to link to public transport. The plan indicates that there will be a requirement for the developer to enter into a Planning Agreement to upgrade the community centre and construct 2 additional classrooms at the local primary school. It also indicates that a development brief will be prepared for the detailed development of the site. In accordance with the new statutory requirement, the planning authority sends a neighbour notification to all neighbours of the plans for housing on the site.
• The residents' association organises a joint response and sends an email to the planning authority to set out its representations. It objects to the principle of the housing allocation because of the expected traffic increases that it will cause. Some individual members of the residents' association also write to the planning authority expressing their concerns.
• The planning authority contacts the Chair of the residents' association with a view to negotiating acceptable amendments to the housing provision. On the basis of an analysis of local traffic, the residents' association is told that the planning authority agrees to amend the plan to restrict the total number of units that can be constructed on the site to 200.
• The Scottish Executive Inquiry Reporters Unit ( SEIRU) carries out an examination of the local development plan and the objections made. The reporter decides that there will be only 3 formal inquiry sessions, focused on the most complex and technical aspects of the plan. The reporter also has an informal discussion at the site and considers the other written submissions, which have the same weight as oral representations.
• The reporter makes recommendations to the planning authority on how the plan and the objections should be dealt with. The reporter agrees with the planning authority's reason for allocating the housing site next to the community centre. The reporter's report is made available on the SEIRU website.
• The planning authority has limited scope to depart from the reporter's recommendations and will consider whether there are any circumstances in which it would wish to do this. However, in this case, the planning authority accepts the reporter's recommendations and moves quickly to adopt the plan. All who made representations to the plan are notified of the decision.
• Members of the residents' association are upset that the proposals for the site next to the community centre have been approved but they can understand the wider context in which the decision has been made, and welcome that the house numbers will be limited to 200.

25. Further regulations and guidance on the development planning process will be prepared over the next year and this will be subject to public consultation.

Community Engagement in Development Management

26. As noted above, the law requires planning decisions to be made in accordance with the development plan unless material considerations indicate otherwise. That is why it is so important for the community to be involved in development planning. The planning system also allows people to comment on individual planning applications. This not only means neighbours and those who are most directly affected by a proposal but also the wider community. This is an opportunity to influence the form of development that takes place once the principle of the use has been established through the development plan. Representations on planning applications and appeals are an essential part of the decision making process. The planning authority should 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 a range of detailed technical issues like the safety of the proposed access, or the design of the building. The opinion of members of the community is therefore a material consideration, although not necessarily an overriding one.

Planning Authority checklist for engaging people in the planning application process:

Please note that the arrangements for development management may be subject to some amendments as the Planning Bill progresses through the Parliament. Further regulations and guidance on development management will be prepared and this will be subject to public consultation. However, we anticipate that the new planning system will involve the following steps:

• Prepare and advertise weekly list of new planning applications received.
• Notify neighbours of planning applications allowing 21 days for the public to comment.
• Ensure that applicants have fulfilled pre-application consultation requirements with the community before the submission of certain planning applications.
• Arrange pre-determination hearings in a greater number of cases for the community to make its views known.
• Give reasons for all decisions: approvals as well as refusals.
• Notify Scottish Ministers of departures from the local development plan.
• Follow new procedures for development proposals where there is a local authority interest.
• Place more information on the Planning Register including Planning Agreements.

27. To increase public awareness, a list of applications received by the planning authority will be advertised each week in a local newspaper and where there is capability within the planning authority to do so, the weekly list will also be made available online. To increase public confidence, neighbours will be notified of all development proposals by the planning authority rather than by the applicant. This will ensure that the details of a planning application, including drawings and plans, are available to view as soon as the neighbour receives the notice. The time for responding to neighbour notification has been extended from 14 days to 21 days to allow individuals and community groups more time to prepare their responses. All comments received will be carefully considered by the planning authority along with all other evidence.

28. Before some types of planning applications are submitted, applicants will be required to discuss their proposals with the community and to seek views. These are developments that are significantly contrary to the development plan, all major developments, for example a large retail outlet, those requiring an Environmental Impact Assessment ( EIA) and large scale developments defined as bad neighbours, such as a crematorium. The planning authority will be responsible for checking whether the applicant has engaged effectively with the community in these cases. Where consultation is felt to be inadequate, the planning authority can refuse to register the planning application.

29. For these types of developments, people will also be able to make their views known at a pre-determination hearing arranged by the planning authority before the planning decision is made.

30. In the new system, everyone who has submitted comments on planning applications will be informed by the planning authority of the decision and the reasons for approval, or refusal, of planning permission. Further information on the consideration of applications and copies of decision notices, including any conditions, and planning agreements between the applicant and the planning authority will be kept on each planning authority's Planning Register to build greater transparency and trust in the decision making process.

31. The following scenario illustrates how people and communities can expect to engage in the planning application process.

Scenario B: Planning Application Process

• Mr MacDonald participated in the preparation of the local development plan and is aware that a large supermarket is to be developed on land behind his house. He made representations on the proposal at the time but understands that it will go ahead. The developer of the supermarket is required to carry out a pre-application consultation on the proposals with the local community. Mr MacDonald receives an invite to attend a special meeting in the town hall to discuss the detailed proposals.
• At the meeting, Mr MacDonald expresses concern about the lack of disabled parking spaces and the proximity of the store's service yard to his property.
• The developer amends the plans to incorporate more disabled parking spaces.
• The application is submitted to the planning authority and, rather than being the applicant's responsibility, the planning authority will notify neighbouring properties of the proposals, providing details of the development and a location plan. Mr MacDonald is able to view full details of the application, including copies of the plans, straightaway on his home computer as they have been posted on the planning authority's website.
• Under new requirements, Mr MacDonald will have 21 days to submit his comments. These focus on aspects of the detailed design of the supermarket proposal.
• The planning authority prepares a report on the proposal and decides to hold an informal pre-determination hearing before Councillors take the decision at Planning Committee. Mr MacDonald presents his representations orally to the Members at the pre-determination hearing. The planning authority concludes that the service yard can be modified to protect Mr MacDonald's interests. To move it, as Mr MacDonald suggested would have equally harmful effects for other people.
• The planning authority approves the proposals and imposes a condition that a 2 metre high close boarded fence is to be erected around the perimeter of the service yard and that deliveries are to be restricted to the hours of 7.30 am to 7.30 pm Monday to Saturday.
• Mr MacDonald is notified of the decision of the planning authority, which now includes a statement of the terms of the planning authority's decision, the conditions attached and the reasons why the planning authority reached that decision.
• Mr MacDonald recognises that his concerns have been considered and mitigation measures implemented.

Community Engagement in Enforcement

32. For many individuals, their first contact with the planning system is when they complain to the planning authority about apparent breaches of planning requirements. Frequently, breaches are relatively minor due to a failure to understand the need for planning permission and can be resolved fairly quickly with the removal of the unauthorised development, or submission and approval of a retrospective planning application. More serious breaches may still be resolved through negotiation and the submission of a retrospective application, but the person responsible for the breach may be unwilling to co-operate and may seek to delay compliance. This can be time consuming and unsatisfactory for the community and the planning authority. Planning modernisation aims to add to and strengthen the enforcement powers available to planning authorities so that people have more confidence that breaches of planning control can be dealt with quickly and that there will be penalties for unauthorised development. In the new system, planning authorities will be required to publish a Planning Enforcement Charter setting out in clear terms their policy in respect of planning enforcement so that people can understand how to raise concerns and the nature of action that they can expect to be taken.

Planning Enforcement Charter checklist:

• Explain the planning authority's policies on enforcement action;
• Explain how members of the public are to notify any apparent breaches of planning control to the authority;
• Explain how members of the public and developers can complain about enforcement action taken by the authority;
• Explain how complaints about enforcement action will be dealt with by the authority; and
• Review, update and republish the Charter at least every two years, or as directed by Scottish Ministers.

33. Breaches of planning control are often of concern to surrounding communities and fall into two broad categories; unauthorised development and breaches of planning conditions. For unauthorised development, the existing enforcement powers are comprehensive but still time-consuming to implement. The additional measures are intended to speed up the process and deter developers from breaching the rules by increasing fees for retrospective applications and making it an offence not to submit a planning application when required to do so. The Temporary Stop Notice is intended to stop unauthorised development immediately, for example, where open storage of scrap metal is unacceptable because of the height at which the scrap is piled.

34. The new pro-active enforcement measures aim to make it easier for planning authorities to monitor developments to ensure that conditions are fulfilled by developers, for example the provision of landscaping. The measures include a requirement on developers to submit Start Notices and Completion Notices and, for larger developments, Progress Notices that will allow the planning authority to monitor development more closely and help prevent conditions being breached.

35. Enhanced monitoring and the additional measures against unauthorised development aim to strengthen public confidence in that failure to comply with planning controls and regulations will be dealt with promptly and robustly.

36. The following scenario illustrates what people and communities can expect from the new enforcement measures.

Scenario C: Planning Enforcement Process

• A developer has received planning consent for the development of 120 flats adjacent to an existing residential development.
• The developer notifies the planning authority of his intention to commence work and informs the authority that he has met with the tenants' association of the adjacent houses as part of the Good Neighbour Agreement. The developer and the tenants association have discussed and agreed how the site will be managed on
  a day to day basis, construction hours and how complaints will be handled. The planning authority writes back to the developer saying one of the conditions requires the submission of a Green Travel Plan before development starts and they cannot start until it is received. A week later the Travel Plan is submitted and the authority allows development to start. A week after the development starts the enforcement officer visits the site to ensure that the position of the foundations and layout of the roads accord with the approved plan.
• After the first phase of 60 flats is completed, the enforcement officer visits the site to check compliance with conditions. The enforcement officer advises the developer to make the footpath connections between the new and existing development before the second phase can commence.
• As the second phase nears completion, work continues to 9 pm on three consecutive days and neighbours have had to make a complaint to the enforcement officer. The enforcement officer reminds the developer about the condition restricting construction hours and informs the complainants of the action taken. There are no subsequent problems.
• The developer notifies the planning authority when the development is completed. The enforcement officer checks and notices that the landscaping has not been completed in accordance with the approved plan. The enforcement officer writes to the developer explaining that the Completion Certificate cannot be approved until this situation is remedied. If action is not taken, the authority will consider issuing a Breach of Condition Notice. This measure should ensure that such conditions and problems are dealt with before the developer leaves the site.

THE ROLE OF APPLICANTS AND THEIR AGENTS

37. Applicants and their agents must make community engagement a core part of the planning application process. In many cases, applicants for planning permission already consult with the community voluntarily in advance of making a planning application and this will need to become common practice across Scotland. For some types of development, (outlined below) this will become a legal requirement. Developers should view pre-application consultation as an opportunity to engage genuinely with communities to develop proposals which have minimal effect on communities closest to them. Applicants should have confidence that the planning authority will consider quickly and efficiently well-prepared, good quality applications in which the community has been fully engaged.

Community Engagement in Development Management

38. Under the new planning system, applicants will have a statutory obligation to consult local communities before an application is made on all major development proposals; those that are significantly contrary to the development plan, all proposals that require an Environmental Impact Assessment ( EIA); and proposals for development defined as larger scale bad neighbour developments. It will be important that pre-application consultation is carried out with as broad a range of community interests as possible. A report on how the developer has consulted the community will be required to be submitted alongside the planning application. Planning authorities will refuse to register applications where pre-application consultation has not been carried out, or is inadequate.

39. The checklist below sets out the main requirements which applicants and their agents should follow in pre-application consultations with communities:

Pre-Application Consultation with Communities: Checklist:

Please note that the arrangements for pre-application consultation may be subject to some amendments as the Planning Bill progresses through the Parliament and will need to be finalised later in the year. Further regulations and guidance on pre-application consultations will be prepared and this will be subject to public consultation. However, we anticipate that the new planning system will involve the following steps:

• Applicant approaches the planning authority to ascertain whether pre-application consultation with communities is required;
• Applicant notifies those persons specified in regulations e.g. community council(s) for the area in which the development is to be located and notifies additional parties which the planning authority may indicate require to be approached;
• Applicant should seek to use tailored and appropriate approaches to engage the public;
• The applicant is required to submit a Pre-Application Consultation Report alongside the planning application setting out: a list of all parties consulted; notes of discussions with pre-application consultees and details of any amendments made to the proposal as a consequence of the pre-application discussions.
• Where an application for a development (which falls under the legislative requirements for pre-application consultation) has been submitted without the
  pre-application consultation step undertaken, the planning authority may refuse to register the application until certain steps have been carried out, such as a public meeting held by the applicant to discuss the proposals with the community.

Good Neighbour Agreements

40. Applicants will also be encouraged to use Good Neighbour Agreements to provide a basis for communication, exchange of information and dispute resolution between the developer and community representatives. People will be able to enter into arrangements with the developer and/or site operator for significant developments, guaranteeing them a role in monitoring the way the development is carried out. The agreement may include procedures for the resolution of disputes, for example through negotiation or mediation. This is intended to encourage developers and site operators 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 of building works, or the frequency of vehicle movements. This will help ensure that the development is undertaken in accordance with conditions attached to the planning permission.

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