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13. MISCELLANEOUS ISSUES
Powers of direction
13.1 The GDPO currently contains powers allowing the Scottish Ministers to direct:
a) that a development which is listed in Schedule 2 to the EIA Regulations requires EIA - i.e. regardless of whether it meets the criteria or exceeds the thresholds which would normally be the trigger to screen for EIA. Such a direction can refer to a particular development or class of such development (regulation 31);
b) that planning permission may not be granted by a planning authority either indefinitely or during such period as may be specified with regard to a development or class of development specified in the direction. For example, this is the power which forms the basis of directions requiring notification of applications to Ministers (regulation 32(2));
c) that in relation to a development or class of development specified in the direction the planning authority must consider, when minded to grant permission, imposing a condition specified in the direction of a nature indicated in the direction and, unless the direction is withdrawn, not to grant permission unless they satisfy Ministers that such consideration has been given and that such a condition will either be imposed or need not be imposed (regulation 33);
d) that the planning authority pass to persons prescribed in the direction information, also specified in the direction, on applications for planning permission made to that authority, including information as to the manner in which the application had been was dealt (regulation 32(1)).
13.2 These powers to make directions are retained in the DMR, as indicated. These powers to give a direction also include powers to vary or cancel the direction with a subsequent direction. All directions in force under the GDPO and its predecessors prior to the coming into force of the new DMR will remain in force.
Variation of applications
13.3 New section 32A of the 1997 Act specifies that planning applications may, with the agreement of the planning authority, be varied after submission. Where the planning authority consider such a variation to be substantial, they must not agree to it and a new application would be needed for the altered proposal. The planning authority may give such notice of the variation as they consider appropriate.
13.4. This new provision puts current practice based on case law on a statutory footing. Where an application is called-in for determination by the Scottish Ministers, new section 32B makes similar provision for variations albeit that agreement to the variations is matter for the Scottish Ministers. New section 32A specifies that an application is not to be varied after there is an appeal made to the Scottish Ministers.
13.5 Although new sections 32A and 32B specify powers for making further provisions in subordinate legislation with regard to variations, we do not intend to make any further statutory provision in this regard.
Crown immunity provisions
13.6 With the removal of Crown immunity from planning control in 2006, provisions were put in place to allow applicants to withhold information that may be sensitive on national security grounds. Similar provisions will be applied to the new requirements in the development management regulations, including, for example, information requirements in relation to pre-application consultation.
13.7 Certain provisions of the current GDPO are also applied to planning applications made by the Crown directly to the Scottish Ministers on the grounds that the development is of national importance and is required urgently. Again the like provisions in the DMR will be applied to urgent Crown applications. It should be noted that the potential nature of these urgent Crown developments, such as national security or defence installations, means it would be inappropriate to apply enhanced scrutiny measures to them, adding to the processing time. However, applications for Crown development outwith the special urgency procedures will be subject to enhanced scrutiny where the relevant criteria are met.
CLUD provisions
13.8 The GDPO, as amended, currently contains provisions on the making of applications for and revocation of certificates of lawful use or development ( CLUDs). Equivalent provisions are contained in regulations 42 to 45 of the draft DMR. These have been updated but make no significant changes to the procedures for CLUDs.
Marine fish farming provisions
13.9 Marine fish farm related development was brought within planning control this year and amendments were made to the provisions of the GDPO as a result. These relate to amendments to take account of these developments being at sea and include removing requirements for neighbour notification and requiring all applications in this regard to be advertised. Similar provisions will apply in relation to the new development management regulations. Regulation 1(3) makes it clear that the DMR will not apply to applications under section 31A of the 1997 Act in relation to marine fish farming equipment in place prior to such works being brought within planning control.
E-enablement of development management
13.10 Following the introduction of the Town and Country Planning (Electronic Communications) (Scotland) Order 2004, the current GDPO allows most of the statutory procedures to be carried out electronically and the intention is that the new development management regulations should be similarly e-enabled.
Powers to require further information
13.11 Planning authorities will still have powers (draft regulation 28) to require additional information in order to determine planning applications. As at present, the use of these powers does not however affect the information which is required to make an application valid.
13.12 In relation to planning permission in principle, planning authorities will retain a power (regulation 15(1)) to require within a month from submission of a valid application that additional detail on certain aspects of the development proposal will need to be submitted before processing can continue.
Other forms and certificates
13.13 With the change in responsibilities for neighbour notification from applicants to planning authorities, the various certificates regarding the carrying out of neighbour notification have been withdrawn. The notices and forms associated with the making of an appeal will be contained in the new appeals procedure regulations which are discussed in a separate consultation paper.
13.14 Schedule 2 contains the forms associated with certifying who are the owners and agricultural tenants associated with a proposal site and the extent to which the applicant has been able to identify and notify these parties. They do not specify the time period for objections and representations and nor do the form of notices. Once a valid application is received, these parties will be notified by the planning authority of where information on the application can be viewed and the period for making representations and to whom they should be made.
13.15 Schedules 5 and 6 contain the format for acknowledging receipt of an application, depending on whether the content of the application complies with the statutory requirements and whether the development is subject to local review procedures as opposed to appeal to the Scottish Ministers.
13.16 There is a single form of notice (Schedule 8) for a local newspaper where the planning authority is require to undertake advertising of planning applications once a valid application has been received.
13.17 The notice regarding appeals, to accompany refusals of planning permission, has been updated to address the introduction of local reviews and is set out at Schedule 9.
13.18 The forms for certificates of lawful use or development ( CLUDs) have not been changed significantly but have been updated and appear in Schedule 10.
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