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9: OTHER RECOMMENDATIONS

This section considers the scope for amending the Articles in Part 1 of the GPDO and improvements to the overall format, presentation and communication of the GPDO.

9.1 INTERPRETATION AND DEFINITIONS (ARTICLE 2)

Background

Article 2 of the GPDO provides a list and interpretation of terms used in the GPDO. This list is not comprehensive in itself, and relies for completeness on further interpretations of terms used in paragraphs at the conclusion of each Part of the GPDO, as appropriate. It is another indicator of how the GPDO has accumulated terms and definitions in a piecemeal fashion as it has been incrementally updated since 1992.

Issues

The GPDO questionnaire survey invited respondents to identify terms and definitions which they considered to be problematic in interpreting the meaning and intent of the Order, and thus in establishing whether development was permitted. Few responses were received to this aspect of the questionnaire. Table 5 lists those terms which were raised by at least one respondent who considered it problematic. No terminology attracted more than four responses. This indicates that there appear to be relatively few terms and definitions which are a cause of confusion, misinterpretation or other difficulty. Perhaps the difficulty of language and interpretation in the GPDO is a function of its length, format, complexity and inconsistency, rather than the actual interpretation of the terms themselves. In addition, confusion and mistakes can arise simply because there is not a single, consolidated and definitive list of all such terms.

It should be noted that some of the concerns about terminology are addressed in our major or minor recommendations, for example, confusion over the meaning of "private way" arises because of potential confusion between different Classes, and private ways for different purposes. This issue we have sought to resolve as part of our recommendation for a single Class of private ways.

Recommendation

• All definitions and interpretation of terms should be included at one location in the GPDO, cross-referenced to flagged words and phrases in the text (ie where a word or term within the GPDO Classes has a definition or interpretation for reference, this should be highlighted within the body of the text).

Table 5 Problems with interpretation of terms in Article 2 of the GPDO

9.2 DIRECTIONS RESTRICTING PERMITTED DEVELOPMENT (ARTICLE 4)

Background

As reported in the 1998 "Research on the General Permitted Development Order and Related Mechanisms", PDR conferred by the GPDO may be removed for any particular development or class of development within a specified geographical area, such as a conservation area, by a direction under article 4 of the GPDO. The result is that an application must be submitted to, and planning permission obtained from, the planning authority for such development to proceed.

An Article 4 Direction may be made by the planning authority (or by Scottish Ministers), if it is satisfied that it is expedient to restrict PDR in this way. The direction must be submitted to Scottish Ministers for approval, unless it relates to either a Listed Building and/or development within a curtilage of a Listed Building, and does not affect the carrying out of certain forms of development by a statutory undertaker. Scottish Ministers have the power to approve the Direction with modifications.

An Article 4 Direction is competent for all permitted development other than classes 54 (certain mineral exploration) and 66 (removal of material from a mineral working deposit other than a stockpile). Article 7 provides an alternative power to remove these PDR. There is also a restriction on the removal of PDR in relation to Part 11 (Development under local or private acts or orders). It is also provided that an Article 4 Direction can only apply to developments under Part 20 (Development by telecommunications code system operators) and certain forms of development by a statutory undertaker, if the Direction specifically so provides.

The procedure for making an Article 4 Direction is specified in article 5. Notice of the Direction made or approved by Scottish Ministers is published by the planning authority in the Edinburgh Gazette and at least one local newspaper. In the case of a Direction specifying any particular development, notice must be served on the owner and occupier of the land affected. The Direction comes into force on the date of publication of the first notice or date of service on the occupier, or, if there is no occupier, on the owner.

An Article 4 Direction can create liability to pay compensation. Where the Direction removes PDR, and a subsequent application for planning permission for that work within 12 months of the Direction is refused, or granted subject to conditions other than those previously imposed by the GPDO, and any person interested in the land has incurred expenditure in carrying out work which is rendered abortive, or has otherwise sustained loss or damage which is directly attributable to the Direction, the planning authority is liable to pay compensation to that person for that expenditure, loss or damage (1997 Act sections 76 and 77).

Issues

Figure 5 shows the frequency of use of Article 4 Directions by Class of permitted development, and Figure 6 shows the frequency of use of Article 4 Directions by Scottish planning authority. This analysis is based on statistical returns provided by planning authorities to the Scottish Executive. This shows that:

There is a wide spectrum on the use of Article 4 Directions by Scottish planning authorities (Figure 6), with five Councils deploying 35 or more, ten deploying 10-25, and seventeen deploying les than 10 (including ten deploying less than 5).

The restrictions on permitted developments apply mainly to certain clusters of permitted development Classes (Figure 5), in particular:

• Developments within the curtilage of a dwellinghouse and associated sundry minor operations (Parts 1 and 2);
• Maintenance or improvement of services by public authorities or statutory undertakers;
• Development at amusement parks.

It was acknowledged in the 1998 Research that the strengths of Article 4 Directions were:

• They enabled "finer grain" control in areas of special character, particularly in conservation areas, and in "sensitive locations".
• They enabled control of "minor developments" which, if left uncontrolled could, on their own, have a disproportionate effect or if continued could incrementally affect the character of an area which could be difficult to redress in the long term.
• They assisted in preventing the loss of amenity where an original development does not have the capacity for further uncontrolled development;
• They enabled local authorities to have some control over statutory undertakers;
• They provided a "high profile" means of making the public aware of the "special quality of their neighbourhoods" which in turn can provide benefits to the planning authority in securing public support in dealing with proposals.

On the other hand, weaknesses of Article 4 Directions included:

• Encouraging planning control of minor or trivial matters;
• changes in legislation can render them superfluous even though they remain in force (illustrated by the large number of Article 4 Directions covering Class 32, which has been repealed);
• resulting in increased workload of planning authorities but not attracting a fee;
• inflating the number of planning applications that planning authorities have to process annually;
• applying in perpetuity and not reviewed in relation to changing circumstances for planning control.

Article 4 Directions are an important means of safeguarding particularly sensitive environments, principally conservation areas. However, evidence shows that, once approved, Article 4 Directions are rarely reviewed in the light of changing planning policies or legislation. They represent a form of creeping planning control over minor development, often in reaction to specific development issues and independent of the policy framework.

Given the emphasis, in the "Modernising the Planning System" and the Planning etc (Scotland) Bill, on the key role of the new development plan framework in promoting sustainable development, and of the importance of community engagement in the development planning process, we support the recommendations of the 1998 Research in respect of the use of Article 4 Directions, namely:

Recommendations

• Article 4 directions should be plan-led, that is, they should be promoted, monitored, reviewed and updated (and occasionally withdrawn) through the preparation, adoption and review of the Local Development Plan.

This would enable community involvement in decisions about restricting PDR within a local authority area, and delegation of their confirmation from Scottish Ministers to planning authorities where such Directions were in conformity with an adopted development plan, thus enabling a degree of disengagement by Scottish Ministers from this aspect of the planning system. Public advertisement requirements for Article 4 Directions could be deleted where they are dealt with under this process.

• Where a planning authority wished to promote an Article 4 Direction independent of the development plan, they should, as at present, seek Scottish Ministers' approval, and follow current public advertisement requirements. However, in so doing, there should be a requirement for Article 4 Directions to conform to the development plan, and be kept under review.
• In order to ensure that Article 4 Directions are kept under review and up to date, such Directions should be time-limited, and we suggest this should be for a maximum of ten years.

Figure 5: Frequency of GPDO Classes included in Article 4 Directions in force 2006

Source: compiled from Scottish Executive data

Figure 6: Number of Article 4 Directions in force 2006 by planning authorities (source: compiled from Scottish Executive data)

9.3 PRIOR APPROVAL/NOTIFICATION

Background

Table 2 in Section 4.0 listed those Classes of permitted development which were conditional upon the prior notification of the planning authority. This table is reproduced here for ease of reference.

Table 2: PD Classes in which prior notification is required

Since the introduction of prior notification for farm and forestry buildings, similar requirements have been added for certain types of development under local Acts or Orders (Class 29), buildings to protect electricity generation (Class 40), and development at an airport of an operational building (Class 44). The principal reason for prior notification is to provide the planning authority with an opportunity to screen permitted developments which might raise issues of siting, design or external appearance.

Issues

In responses both to the current research, and the 1998 research, planning officers expressed concern with what they saw as the unsatisfactory half way house of prior notification: they could require an application, but only equivalent to reserved matters, for the principle has approval by virtue of the Order. Consequently, their influence was limited to issues of aesthetics and detailed siting, but not to the appropriateness of the development in principle.

The 1998 research recommended some extension of the prior notification regime, and the 2002 research for Scottish Natural Heritage came to similar conclusions, as a pragmatic means of increasing the grain of control short of removing PDR altogether.

In summary, the advantages of prior notification include:

• allows some LA influence
• screens for PD which may have adverse impact
• alerts specific parties to possible impact on their operation
• exerts some control without removing fundamental right to develop

The disadvantages of prior notification include:

• Unsatisfactory half way house
• Time consuming
• Limited intervention
• Unrealized expectations of objectors
• Financial costs
• Raises a problem for which there is no procedure
• Confusing
• Cannot refuse principle because it cannot meet requirements on siting/design

Figure 7 shows the extent of activity in relation to prior notification of farm and forestry buildings. This shows that there are less than 1000 such notifications annually to planning authorities. Whilst the overall burden across planning authorities is therefore very small in relation to the total number of planning applications received annually, the vast majority of these notifications fall on the large rural authorities. So there is an opportunity here to reduce, to a modest degree, the application workload of these authorities by removing an unsatisfactory consultation process at relatively low risk to the environment.

Recommendation

• Overall, we conclude that, whilst prior notification remains relevant for very specific instances, such as aerodrome safeguarding and hazardous substance consultation, where its purpose relates to siting, design and external appearance, it should be abolished. This would relate to the following Classes of permitted development:

Class 18 (4)(a)(i) farm buildings
Class 22 (3)(a)(i) forestry buildings
Class 29 (2) development under local or private Acts or Orders
Class 39 (3)(c)(i) A building to protect gas transport plant
Class 40(3)(d)(i) A building to protect electricity generation, transmission or supply plant
Class 44(1)(3) Development at an airport of an operational building
Class 71(3)(a) Toll road facility

• Alternative to the requirement for prior notification, planning authorities should :

• establish protocols for consultation with statutory undertakers and other agencies with PDR to address issues of design and siting through more positive means
• prepare and adopt local design guidance, specifying in advance design criteria for minor developments

Conformity with adopted local design guidance would be a general condition of permitted development. This would replace the condition attached to many Classes of permitted development, granting permission subject to no "material affect" on external appearance. As such, this change would reduce uncertainty as to what would comprise a "material affect", promote quality in the design of minor development, and provide a clearer basis for any enforcement action by planning authorities.

Planning authorities would continue to have power to use Article 4 of the GPDO in appropriate circumstances (in accordance with the recommendations in Section 9.2).

Figure 7: Farm and Forestry Notifications 1998-2005

Source: Compiled from Scottish Executive statistical returns by planning authorities.

9.4 BAD NEIGHBOUR DEVELOPMENT

Whilst the Research Specification specifically excluded from fundamental review the list of bad neighbour developments in Schedule 2 of the GPDO (because of its relevance to the Town and Country Planning (General Development Procedure) (Scotland) Order 1992), the GPDO questionnaire sought views of respondents on the need for updating of the list "bad neighbour" developments included in Schedule 2 of the Order. The research was not concerned with reviewing the procedures for addressing such development.

The purpose of Schedule 2 is to prescribe those developments which are specifically excluded from the PDR available to Local Authorities under Class 33(c)(i), i.e. development under any enactment, the estimated cost of which does not exceed £100,000. Table 6 summarises the responses.

Table 6 suggestions for reform of Schedule 2: bad neighbour development

This aspect of the questionnaire elicited limited response. Largest number of responses were directed at reforming dancehall, music hall, Turkish bath and knacker's yard. Similarly, there were limited levels of response to a request for suggested other uses to be included in Schedule 2, as listed in Table 7 below.

Table 7: Other potential bad neighbour development suggested for inclusion in Schedule 2

These responses indicate the need for limited modernisation of the uses included in Schedule 2 to bring it more into line with contemporary circumstances. In particular, with regard to Class 33(c)(i), those developments listed above that relate to a local authority's responsibilities for waste disposal and leisure provision could be included in a revised Schedule 2.

Recommendation

• Schedule 2 of the GPDO should be reviewed to bring it up to date, and include the following:

9.5 HAZARDOUS SUBSTANCE CONSULTATION

Background

HSE is a statutory consultee for all applications for hazardous substance consent. If granted, the planning authority notifies HSE, which in turn designates a consultation zone around the hazardous substance site. HSE then becomes a statutory consultee for most planning applications that are proposed within the consultation zone.

Recommendation

• All permitted development within a hazardous substance consultation zone, as defined by the Health and Safety Executive, is subject to the prior approval of the planning authority.
• The Scottish Executive, in consultation with the Health and Safety Executive and planning authorities, should determine the most effective means of notifying owners and occupiers of land and property affected of their prior notification obligations.

Justification

HSE advises that, as a consequence of the Seveso Directive ⁶¹, the GPDO is compromised where consultation has failed to take place in the vicinity of major hazard sites. If all permitted development within the consultation zone required prior notification of the planning authority, and thus consultation with HSE, the aim of the Directive would be met. There remains the problem of how best to advise potential developers of this limitation, to ensure that PDR are not taken up unwittingly.

9.6 FORMAT AND PRESENTATION OF THE GPDO

The GPDO questionnaire invited suggestions for general improvements to the format and presentation of the Order. The suggestions were:

• Electronic/loose leaf format, easily updated.
• Clear use of diagrams, sections and layouts
• More user friendly
• Too many classes, not easily integrated
• Need for simplification and consolidation
• Need for a communications plan, so that all interests understand the GPDO
• An expert panel to annually review GPDO so that it maintains its currency

From these, the interviews, workshops and wider literature review, there is a clear need to assist the achievement of government policy objectives by recognizing the importance of the GPDO as a means of implementation, and therefore the consequent need to ensure clarity in its presentation and expression so that its requirements are more easily understood and the scope for misinterpretation and unintended unauthorized development is minimized. In particular, we note the recommendations from the 1998 Research on the General Permitted Development Order etc, and from the GPDO reviews for England and Northern Ireland, of suggestions for a web-based version.

Whilst acknowledging the inherent tension in the GPDO between the need for legal rigour on the one hand, and user-friendliness on the other, we consider that one means of resolving this tension would be to produce user-friendly versions, in electronic and hard copy formats, and then to derive the legally robust form of the GPDO from these, rather than vice-versa. There may be scope to model a web-based version on how the Building Standards Agency, through its website, has sought to articulate in lay terms the requirements of the Building Standards regime.

Given the complexity of the Order, and the inter-relatedness of many of its parts with other legislation restricting the take-up of PDR, the redrafted GPDO could have flagged sections where the reader would be referred to another Part/Class (but should otherwise be kept to the minimum), or related legislation (such as the Habitats Directive, or the Environmental Impact Assessment Regulations).

In terms of how the reformed GPDO classes might be presented, we have sought, in describing the permitted developments in chapters 7 and 8, to apply a simpler and clearer wording that could be the template for a revised wording of the Order.

Recommendations

• There should be an "easy read" user-friendly summary version of the Order, both to accompany the full definitive version and for wider distribution. (1998 Research).

Because the GPDO is a statutory document, it is generally regarded as being difficult to put into layman's terms for ease of understanding. This would assist consistency, save work, minimise errors of interpretation and understanding, and at the same time avoiding planning being branded with a public image of restrictiveness and legalism.

• The Scottish Executive should issue comprehensive advice in regard to the relationship between the various statutes, advice and Circulars covering permitted development.

There is also a general need for guidance to support understanding and disseminate best practice, especially in promoting a more proactive approach to permitted development by planning authorities.

• There should be a Website for the GPDO, enabling easy access to an updated and consolidated Permitted Development Order, and with hypertext links to relevant parts of Scottish Office guidance and advice.

This would increase user-friendliness and ensure proper account is taken of subsequent amendments to the Order.

• The electronic version of the GPDO should be accompanied by decision trees assisting users to establish whether their proposal is permitted development.

Such user-friendly versions, both in electronic and paper formats, would help reduce the number of enquiries to Councils, seeking officer advice about permitted development. In addition, clarifying the requirements for permitted development would help reduce the risks of unauthorized development arising as a consequence of, misinterpretation.

The whole thrust of the re-formatting of the GPDO and simplifying its language would be to enable a level of disengagement of Council professional planning services from minor development, thus assisting the modernisation agenda for the planning service as a whole.

The need for an easy read GPDO does not preclude the need for additional guidance to householders, farmers etc. The GPDO deals with what does not require formal planning consent, but it does not deal with some of the issues relating to design, siting and technical considerations which should be the subject of accompanying guidance. It is in the interests of all that the GPDO itself is easy to understand, thus assisting potential developers to decide for themselves whether formal planning consent is required, and should thereby reduce the level of enquiries to planning authorities.

Additional guidance should anticipate some of the worst case scenarios which people worry about, and thereby assist implementation of local policy objectives without the need for micro regulation.

9.7 MAINTAINING THE CURRENCY OF THE GPDO

Issues

A key difficulty with understanding and interpreting PDR is that the GPDO becomes easily out of date as amendments are made, either directly to it, or through a circular, or through other legislation. This builds in risk of decisions being made by developers and planning authorities based on out of date understanding of the GPDO. Currently there is no authorized consolidated version, though the GPDO has been subject to much incremental amendment since 1992. This led us to consider the presentation of the GPDO from first principles.

Key questions

What's the problem with the GPDO as configured ?

It is clear from the responses to the GPDO questionnaire survey, individual letters of response, and discussions in follow-up interviews and workshops, that a wide range of users of the GPDO consider that, in its pursuit of comprehensiveness the GPDO is:

• too long
• complex
• inconsistent
• confusing, if not incomprehensible to many, and full of misapprehensions (even by planning authorities, who are charged with policing it)
• exploitable (eg developers utilising PDR in one Class if forestalled in another (private ways being one example)
• lacking a customer focus (it is not user friendly because it is not written with the user in mind).

All of these weaknesses undermine the potential contribution of the GPDO to the achievement of government policies, and risk unintended unauthorised development and extra work for planning authorities.

The GPDO seeks to deregulate, but then to claw back control through detailed specifications that are extensive in places, complex and often ambiguous, seeking to "second guess" development circumstances and adopt a precautionary approach that discourages deregulation.

Planning authorities worry about sacrificing local amenity in favour of development deregulation. One solution would be to have simple, clear and unambiguous specifications for minor development, supported by local design guidance. This would enable deregulation at the same time as securing best value by tying permitted development to design requirements, set by the planning authority to meet local circumstances.

What's needed ?

In line with the key principles identified in chapter 6, this review of the GPDO reveals a need for a GPDO which is:

• simpler (in its language and presentation)
• slimmer (in its content and reach)
• consistent (in terms of the development rights granted between Parts)
• easier to understand (for all users)
• positively focused
• flexible (in terms of being easily updateable)

In line with "Modernising the Planning System", the reframing of the GPDO should be an opportunity to reinforce culture change in planning. Culture change is needed at all levels of the development management hierarchy, and is a pre-requisite for securing best value through effective deregulation of minor development.

This led us to identify two key dimensions to GPDO reform to address these parameters:

1. The GPDO should become a vehicle for securing national standards in deregulated minor development

This could be achieved by:

a) re-specification of national development standards for minor development;
allied to
b) locally determined design standards for minor development.

Local authorities should be encouraged to specify what good small-scale design is in their Council area, rather than reacting to minor developments through prior notification or enforcement action. Specifying appropriate design parameters in illustrative guidance would also minimise, if not remove altogether, the need for the current level of discretion and associated vague language in the GPDO, and reduce the associated uncertainties and risks for developers. Rather than prior notification, and perhaps Article 4 Directions, both of which are reactive and precautionary. National standards plus local design guidance would be proactive, reflecting local development conditions.

Design guidance could comprise supplementary planning guidance to the local development plan, and thus open to community engagement, thus enabling community input to specification of local design standards (where required) and tying development deregulation to the social inclusion agenda. The emphasis would be on specifying local development standards through guidance, with permitted development being conditional upon compliance with such guidance (which itself should be up to date).

2. The GPDO should not seek to cover all categories of minor development in one comprehensive specification. Instead, there should be an integrated "suite" of PDOs, akin to the national planning series, with each dedicated to one aspect of minor development.

There is a need to overcome the complexity and unwieldiness of the GPDO as conceived to date (in a set of universal standards for all categories of minor development specified, but hidebound by complex and tortuous limitations and exclusions).

It is evident that the GPDO, as long established, is an unwieldy blunt instrument for deregulation of minor development. Its inherent characteristics make it problematic to simplify and streamline as a single document. It is not a self-contained document, because it is reliant on knowledge of related superior subsequent legislation, such as EC Directives and associated UK regulations, thus designing in the possibility of unintended unauthorised development, and erroneous development advice by local authorities, founded on misinterpretation.

As well as reframing the GPDO as a set of national development standards for minor development, conforming to local design standards, the GPDO should be "disassembled" and re-launched as a suite of PDOs, each specifying national standards for different categories of minor development eg:

• Householder PDO
• Industrial development PDO
• Statutory undertakers PDO
• Private ways PDO

This would mirror the national planning series; because each development specific Order is separate and self-contained, it can be updated independently of other categories of minor development as required; thus no need to amend the GPDO as a whole.

This would enable each dedicated PDO to be updated as needed, separate from the other PDOs, and allow for additional PDOs in the future to address new categories of minor development.

Since each category of minor development would be specified (and thus regulated) by separate independent regulation, there would be no scope for inconsistency, and thus confusion, between PDR specified under different categories of development, and thereby no opportunity for developers to try to exploit development rights under different Parts of the Order. For example, the PDO for statutory undertakers would make clear that their PDR are limited to the specific PDO (so no risk of confusions as to whether Class 7 only applies to householder development, or land drainage only applies to agricultural development). The problem of confusion and complexity is resolved by clear separation and specification of PDR in each separate PDO.

Each self-contained PDO would also have a "front end" covering the Articles, thus enabling the planning authority to claw back control through Art 4 if necessary (eg in sensitive areas).

Each GPDO would have its own interpretation and glossary, limiting the essential terms to those relevant to the specific minor development(s).

Recommendations

• The Scottish Executive should give consideration to replacing the current GPDO with separate PDOs for specified categories of minor development, each having the status of a General Development Order;
• Alternatively, the Scottish Executive should give consideration to the scope for the GPDO to be issued in a loose-leaf format or series of folders, with the up-to-date definitive version in electronic format on the Scottish Executive website;
• The Scottish Executive should issue a Planning Advice Note on best practice in design guidance for minor development;
• All planning authorities should have up-to-date good quality local design guidance for minor developments.

Compliance with adopted local design guidance should be a general condition of permitted development, supported by general design guidance by the Executive.

The overall purpose is to make the system clearer for all concerned, and that means writing it down and spelling it out, rather than falling back on the tradition of taking things into account when reaching a decision, with all the associated uncertainties.

9.8 WHAT THE RECONFIGURED GPDO WOULD LOOK LIKE

Our recommendations for reform of Schedule 1 of the GPDO would, in its structure, streamline and place in a more logical order the permitted development classes as shown in Table 8. This groups permitted development according to either:

• Land use (1-13)
• Development authority (14-16)
• Other (17-20)

Alternatively, this could be the basis of identifying independent PDOs for the different categories of minor development shown in the left hand column, in accordance with our recommendations in section 9.7.

Table 8 Proposed Streamlined GPDO

Our recommendation for modernisation of the format and language of the GPDO is illustrated by how we have presented the current scope of permitted development at the start of each part of Sections 7.0 and 8.0.

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