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ANNEX D
DEVELOPMENT MANAGEMENT CONSULTATION: PARTIAL REGULATORY IMPACT ASSESSMENT

1. Title of Proposal

1.1 The Town and Country Planning (Development Management Procedure) (Scotland) Regulations.

2. Introduction

Objectives

2.1 The new procedures for development management stem from provisions in the Planning etc. (Scotland) Act 2006 (the 2006 Act) primarily amending the Town and Country Planning (Scotland) Act 1997 (the 1997 Act as amended). The 2006 Act sets the framework for achieving the Scottish Government's aim to modernise the planning system.

2.2 The aims of the modernisation programme are to deliver a planning system that is:

Efficient: We want up to date development plans to be at the heart of an efficient system that provides certainty for users and local people.

Inclusive: We want local people to be more involved in the decisions that shape the development of their communities.

Fit for purpose: We want the planning system to have a clearer sense of priorities, and to address different issues in different ways. In doing so it will be able to deliver the sustainable growth we need.

Sustainable: We want development to contribute to economic growth that is sustainable. Planning will deliver sustainable development ensuring development in the right place and of the right quality.

2.3 The changes to development management are concerned specifically with: making the processes around applying for planning permission fit for purpose and responsive to different types of development proposal; improving efficiency in determining planning applications; and improving public involvement in the consideration of proposals requiring planning permission.

2.4 In setting a framework, the 2006 Act specifies a number of the requirements in relation to each aspect of development management discussed in this Regulatory Impact Assessment ( RIA). The 2006 Act anticipates some of the detailed features of the new procedures and in so doing limits some of the options for detailed prescription in the regulations. The sections below will identify where significant elements of the detailed procedures have been pre-determined by the 2006 Act.

2.5 Due to the number of individual, though linked, policy areas covered by the regulations, this RIA is structured slightly differently to other RIAs. Information on the purpose and intended effect, consultation plus options and their costs and benefits (normally found in sections 2 - 5 of the RIA) are set out under headings for each policy area. Other areas covered by the RIA (normally found in sections 6-11) are considered for the complete set of regulations. The order of the topics in this RIA does follow the order that they occur in the main part of the consultation paper.

3. Enhanced Scrutiny

3.1 Following a general introduction on the purpose and intended effect of and the consultation on the enhanced scrutiny proposals, this section details the options, costs and benefits of each of the following areas:

a) Pre-application screening;
b) Pre-application consultation;
c) Pre-determination hearings;
d) Decisions by the full Council; and
e) Notification to Scottish Ministers.

Purpose and intended effect of the enhanced scrutiny proposals

3.2 Potential applicants will be able to require planning authorities to state whether, in their view, a proposed development falls within a class of development that will require pre-application consultation with community councils and other consultees to be identified by authorities as appropriate. Certain types of development will be subject to enhanced scrutiny measures, improving the planning system in particular to strengthen the involvement of communities and better reflect local views.

3.3 An applicant considering a large, complex or high impact development should, with the assistance of planning authority, consult appropriately with all those communities of interest and geography that will be affected by the proposed development. Early, appropriate engagement should lead to more refined, better quality applications. The White Paper Modernising the Planning System (2005) proposed that larger-scale bad neighbour ( LSBN) development where no provision is made in the development plan would be subject to enhanced scrutiny, but we now consider that these would fall under the expanded and refined definition of major development and/or would require EIA so we propose to streamline the classes of development attracting enhanced scrutiny - omitting LSBNs. Community consultation is already required in respect of EIA developments. The standing policy commitment was to extend enhanced scrutiny to those developments contrary to development plans and that is given effect in these proposals.

Consultation

3.4 The commitment to introduce statutory pre-application consultation was contained in the White Paper which was subject to consultation in 2005. During the phase in advance of formal public consultation, proposals were subject to informal discussion with key stakeholders including representatives from the Association of Scottish Community Councils, Communities Scotland, Planning Aid Scotland, Homes for Scotland and the Scottish Society for the Directors of Planning.

a) Pre-application screening

Options

3.5 Section 35A of the 1997 Act sets out the provisions governing the proposals set out in the regulations. The minimum contents of the notice are set out in section 35B(4).

Option 1 Do nothing beyond the requirements set out in section 35B(4).

Option 2 Proposals as drafted.

3.6 In Option 1 the content of the pre-application screening notice would contain: a site description, a postal address (if one exists), an outline plan and contact details for the prospective applicant. Option 2 proposes that prospective applicants state additionally whether a specific proposal analogous to that being considered by them (and in respect of which they are submitting the notice to the authority) is denoted in the development plan. This provision is to assist planning authorities in responding swiftly to straightforward requests. There would be no return of application to the applicant if the planning authority's statement as to class has been sought, and the authority determines pre-application consultation is not required, only to consider subsequently that it should have been carried out.

Costs and benefits

Sectors and groups affected

3.7 The screening process will primarily be a matter for developers of large scale or potentially controversial proposals in that they will be required to provide information over and above what is currently required. There will also be additional requirements on planning authorities to process the notice.

Costs

Option 1 Costs for planning authorities in responding to proposal of application notices to be identified through fees research.

Option 2 Minimal additional costs falling to applicants to include a note identifying whether the proposal is included in the relevant development plan.

3.8 There will be resource implications for applicants in preparing the notices, and for planning authorities in responding to them. However, we have endeavoured to keep the form of the notice as simple as possible. We are seeking evidence from authorities as to the extent of the likely impact of handling, processing and responding to screening notices. It will be considered as part of the research into the restructuring of the fees regime.

Benefits

Option 1

3.9 For developers, this will provide some certainty as to whether the proposal under consideration will require statutory pre-application consultation. They will be able to plan projects and resources accordingly. Similarly, planning authorities will receive early notice of complex or high-impact proposals that may require significant resources to handle and process.

Option 2

3.10 For developers and authorities, this option will also promote an efficient and swift response to those pre-application screening notices which self-evidently accord with the local development plan.

3.11 These reforms will assist potential applicants in preparing for pre-application consultation if necessary and, if not, in preparing for scaling back the required documentation associated with any subsequent application. In addition, they will enable planning authorities to plan and prepare for the receipt and handling of major or complex applications.

b) Pre-application consultation

Options

Option 1 Restrict to major, national and other specified developments.

Option 2 Extend to all developments.

3.12 In coming to a view on possible options, it was not considered that a "do nothing" approach was appropriate in light of the policy commitment in Modernising the Planning System and during the passage of the 2006 Act . Further detail is required in order to make the 2006 legislative provisions meaningful. Option 1 looks to implement the commitment contained in the White paper whilst Option 2 extends the requirement for pre-application to all developments.

Costs and benefits

Sectors and groups affected

3.13 The proposals would potentially affect communities, developers, community councils and planning authorities.

Costs

3.14 For both options, there will be some costs to planning authorities in checking that the appropriate documentation has been received prior to validation and that the pre-application consultation was satisfactory and commensurate. Based on developing good practice in this area in England, authority officers would need to take some part in the consultation to ensure that applicant was representing their proposals in balanced and fair way. This would be an additional burden for planning authorities.

3.15 For communities and community groups, there will be marginal costs in preparing for, travelling to and contributing to pre-application consultation events. Developers should consider defraying some of those expenses. Developers will incur costs in notifying community councils, convening and supporting public meetings, arranging local advertising and liaising with planning authorities. Planning authorities will incur costs in responding to proposal of application notices. They may be able to recover some of that via reforms to the planning fees regime.

3.16 Option 2 would extend the requirement to all developments. This is not considered proportionate because many applications are small in scale and non-controversial and therefore would not warrant the additional burden on applicants.

Benefits

3.17 Communities will have the opportunity to interact with prospective developers, to assist them in understanding views and objections, to refine proposals and to mitigate negative impacts. Developers will benefit from constructive, better informed communities engaging positively with proposals. Where the consultation discloses significant community resistance, then developers will at least will be aware of the issues that concern those affected communities. Applications submitted to authorities would been further evolved, taking into account community views, thereby leader to faster decisions and better outcomes.

c) Pre-determination hearings

Options

Option 1: Do nothing.

Option 2: Proposals as drafted. The requirement for developments that are significantly contrary to the development plan and those screened as EIA to be referred to statutory pre-determination hearings was trailed in the 2005 White Paper. Beyond that, mechanisms and procedures for pre-determination hearings are to be determined by planning authorities themselves.

3.18 In coming to a view on possible options, it was not considered that a "do nothing" approach was appropriate in light of the policy commitment in the White Paper . Option 2 looks to implement the commitment contained in the White paper. Regulations are required to specify the classes of development that section 38A(1) of the amended 1997 Act states are to attract mandatory pre-determination hearings.

Costs and benefits

Sectors and groups affected

3.19 Communities (objectors and supporters), community councils, applicants and representatives and planning authorities/planning committees.

Costs

3.20 Marginal costs may fall on individuals, communities and applicants in preparing to appear before the hearing and in travelling to them. Planning Reforms: An Impact Assessment (Arup, 2005) considered that the costs on authorities would be potentially low, as hearings were assumed to be infrequent. Costs were estimated to be approximately three additional officer days per hearing, with an average of two hearings per authority per year. In 'ready reckoner' terms this equates to one hour per week of Senior Case Officer time, equivalent to £95,821. Views from planning authorities are welcomed on whether these figures are still realistic in relation to the current proposals.

Benefits

3.21 The hearings would address applicant concerns that they are not always able to have sufficient access to planning officers and members before the decision is taken. Also communities and others making representations would be able to make their views clearly known in advance of the decision.

d) Decisions by the full Council

3.22 No further regulation or options are being proposed at this stage. Greater rigour would be introduced to the system if full councils were able to ratify or reconsider positive decisions made by pre-determination hearings on proposals previously deemed by the authority to be significantly contrary to the local development plan. However, we are seeking planning authorities' views in the DMR consultation on the impact of referring pre-determination hearing decisions to full council.

e) Notification to Scottish Ministers

Costs and benefits

Sectors and groups affected

3.23 Notification to Scottish Ministers will affect businesses and applicants, the Scottish Government (Planning Directorate and the Directorate of Planning and Environmental Appeals) and planning authorities. Communities, individuals and other interested parties may also be affected where proposals are called-in by Scottish Ministers and subsequently involve an inquiry or hearing session. The Financial Memorandum to the Planning etc. (Scotland) Bill discussed the potential costs and benefits of this proposal in more detail.

Costs

3.24 The changes to the notification direction are likely to lead to a major increase in the number of applications notified to Scottish Ministers. However, the nature of the increase is difficult to estimate, not least because applications are not currently classified in the same way as they will be once the Act is enacted. Nevertheless, it is estimated that, of the approximately 52,000 planning applications received each year:

• Less than 0.1% will be for national developments. It is estimated that 100% of these - i.e. 10 - will be notified;
• 1% will be for major developments. It is estimated that 100% of these - i.e. 520 - will be notified;
• 60% will be for local developments. It is estimated that 1% - i.e. 310 - of these will be notified; and
• 39% will be for minor developments. These would not be notified to Ministers as they will be removed from planning control.

3.25 These estimates would lead to a 180% increase in the numbers of applications notified to Scottish Ministers: from 300 a year at present, to 840.

3.26 It is also necessary to consider the likely amount of cases that, once notified, Ministers will actually call in for their own determination. Based on Ministerial involvement in previous cases, and assuming that, except for national developments, only about 10% of called in applications are determined by Ministers (in line with the figures from recent years) we estimate the following:

• 20% of the 10 applications for national developments (i.e. 2) will be called in;
• 10% of the 520 applications for major developments (i.e. 52) will be called in; and
• 10% of the 310 applications for local developments (i.e. 31) will be called in.

3.27 This would represent a 183% increase in the numbers of applications currently called in for Ministers' own determination, from 30 per annum to 85. Under normal circumstances, Ministers have 28 days to decide whether to call-in a notified application for their own determination. In light of the figures above, there would be a short delay for a small number applications. In most cases, the categories of development to which notification applies would also be major developments that had a processing agreement attached. The processing agreement could therefore flag up the potential for notification to Scottish Ministers at the outset, thereby providing certainty and allowing the applicant to build in any notification to the overall timescale.

3.28 There will however be a significant impact on the Government's Planning Directorate and on the Directorate of Planning and Environmental Appeals in dealing with the increase in notified cases, which has already required additional staff. There may be very minor additional costs for planning authorities in sending additional documentation to Scottish Ministers.

Benefits

3.29 Applicants will have the certainty that Scottish Ministers receive all pertinent documentation on the planning authority's handling of the case from the pre-application stage onwards. Planning authorities will also benefit from the knowledge that Ministers will be able to consider all relevant evidence. As discussed above, including the potential notification in a processing agreement would provide certainty for major developments. Communities, individuals and other stakeholders who may be concerned about the impact of certain developments, may have increased trust and confidence in the system through additional scrutiny of such proposals.

4. Processing agreements

Purpose and intended effect

4.1 Modernising the Planning System (2005) introduced the concept of processing agreements. These agreements are intended to provide a framework for processing national and major developments. The intention is that for such developments, the applicant and the planning authority would agree the approach for handling the application including the anticipated timescale and set this out in a processing agreement.

4.2 Planning performance statistics clearly show that major developments take longer to determine than more minor or household developments. Delays in the system can lead to lack of certainty for applicants, investors and communities; cause difficulties; and bring the planning system into disrepute. Processing agreements can provide more certainty about the means of handling national and major applications and about the likely timescale for determination.

Consultation

4.3 Within Government - Processing agreements have been discussed within Government between Planning Directorate and the Directorate for Planning and Environmental Appeals, Transport Scotland and Historic Scotland. We have also discussed with all statutory consultees.

4.4 Public consultation - The responses to Modernising the Planning System indicated a clear majority of respondents favoured this proposal, although local authorities were the most ambivalent about the potential advantages. While the concept was generally held to be useful, the ability to achieve its purpose in practice was considered to be more problematic and the need for more guidance was stressed. In advance of formal public consultation, discussions have taken place with local authorities on processing agreements, and with representatives from the development industry who have been involved in pilot processing agreements.

Options

Option 1 Do Nothing

Option 2 Make all major and national developments eligible for processing agreements

4.5 Option 1 would lead to all major development proposals continuing to be managed through the normal development management process. There are not specific provisions governing processing agreements in the 2006 Act. Under Option 2 planning authorities should facilitate processing agreements for applications for major and national development wherever it is practical to do so.

Costs and benefits

Sectors and groups affected

4.6 Applicants and developers would have the potential to enter into processing agreements with the planning authority. This could provide a more project managed approach; greater certainty on the handling of the application; the required information and the responsibility for tasks. Planning authorities would be expected to facilitate arrangements for processing agreements for national and major developments. Statutory consultees would be expected to take part in discussions about processing agreements early on in the process. This may require them taking part in discussions and considering what information they would require to assess the proposal prior to any application being submitted.

Benefits

Option 1

4.7 There are no additional benefits for planning authorities or applicants in maintaining the status quo.

Option 2

4.8 Processing agreements can offer a number of benefits, including setting out clearly the process which will be followed, creating greater certainty amongst all parties and a shared understanding about timescales.

4.9 There is the opportunity for early identification and discussion of key issues through engaging in processing agreements at the outset of the project, including with statutory consultees. Having identified the key issues, any further studies can be carried out or information gathered to respond to and resolve any issues. The processing agreement provides a means for clarity and agreement about what additional information is required to determine the application(s). It should therefore reduce the scope for incremental requests for information throughout the process on an unplanned basis, and create efficiency savings within the process.

4.10 The processing agreement can promote a more collaborative approach to handling the proposal and can be used as a means to bring different parts of the local authority who may have involvement in a particular development together to agree and adopt a joined-up corporate approach. The agreement could be used to assist in managing workloads and resources.

Costs

Option 1

4.11 There are no new costs in maintaining the current position. However, there are existing costs associated with this approach as, when major developments take longer than the statutory period to determine, there may continue to be uncertainty about the procedures and likely timescales after the statutory period has expired. Lack of certainty in the process, and the ad-hoc extension of timescales may mean that costs to business increase.

Option 2

4.12 The responses to the White Paper indicated a general agreement that the proposal to have processing agreements would generate significant extra work for local authorities and there were calls for additional resources.

4.13 Costs of preparing processing agreements are likely to vary depending on the circumstances of the particular proposal, and the ease with which agreement can be reached. Processing agreements may require differing levels of input from the different statutory consultees depending on the nature of the proposal.

4.14 An agreement may require the applicant to provide fuller information when submitting the application. The level of take up of, and interest in, processing agreements by applicants will influence the number of processing agreements in the system and the volume of work required by local authorities and statutory consultees. In areas of greatest development pressures for major development there may be more demand for processing agreements, whilst in other areas there may be few processing agreements entered into each year. As processing agreements allow the statutory period for determining applications to be extended, there is the potential that local authorities may enter a significant number of processing agreements, and that the work required to prepare the different processing agreements could impact on the anticipated efficiencies.

4.15 It is not intended to charge applicants for processing agreements. But research is currently being carried out on fees and there will be revised Fees Regulations in due course. Our intention is that planning authorities should be able to recover the full costs of putting in place processing applications and that fees for major developments should be increased to reflect this.

5. Planning permission in principle

Purpose and intended effect

5.1 The section on Planning Permission in Principle ( PPP) covers:

• the replacement of "reserved matters";
• additional information as part of an application for PPP; and
• new provisions in relation to applications for approval required by conditions attached to a PPP requiring neighbour notification and notification of those who made representations on the related application for PPP.

5.2 In view of apparent confusion over the role and procedures around "reserved matters" in relation to outline planning permission ( OPP), new section 59 of the 1997 Act replaces the previous provisions on OPP with provisions on planning permission in principle ( PPP). While both PPP and OPP relate to recognising that a proposal is acceptable in principle, without all the detailed elements of a proposals being considered, the main change is the withdrawal of "reserved matters" as a concept.

5.3 "Reserved matters" were matters specified in conditions attached to OPP relating to the detail of the siting and design of buildings, access to such buildings and landscaping not specified in the application for OPP. Applications for approval of "reserved matters" were subject to a statutory application process. There was some confusion over the role and approval of "reserved matters" as distinct from other conditions attached to OPP which required the approval, agreement or consent of the planning authority regarding issues not classified as "reserved matters". A range of approaches to the content of reserved matters conditions and to the manner in which approval was sought and granted evolved, with a mixture of formal and informal processes at work.

5.4 In future planning authorities will simply attach conditions to PPP which require matters specified in the conditions to be subject to further approval by the planning authority. These do not relate solely to matters not specified in the application for planning permission in principle, nor are they limited to issues of siting, design or external appearance of any buildings, access to such buildings or landscaping of the proposal site.

5.5 The removal of this distinction means that where conditions attached to a PPP specify matters which require the further approval of the planning authority, approvals will require a formal application.

5.6 As far as these regulations are concerned, the replacement of provisions on applications for OPP and for reserved matters with applications for PPP and applications for approval of matters specified in conditions, introduce a number of changes. These are apart from the changes covered elsewhere in the RIA which will apply to applications for planning permission in principle - e.g. design and access statements, pre-application consultation, changes to neighbour notification.

5.7 Applications for planning permission in principle will require additional information to be submitted relating to the issues of detail not covered in the application for PPP. This is to provide greater clarity for developers, planning authorities and communities as to the nature of the proposal under consideration. It will also help to frontload the system, ensuring a reasonable amount of information is provided at the outset in the processing of an application. These changes, together with the new requirements around design and access statements should also help to improve the quality of development.

5.8 Applications for approval of matters specified in conditions will have additional requirements for neighbour notification and notification of parties who made representations and objections on the initial application for PPP. This is to improve community involvement and the transparency of the process.

Consultation

5.9 The White Paper proposed the removal of outline planning permission and its replacement with 'Approval in principle' in development plans. This would mean that where proposals were allocated in development plans, the principle of development for those uses on that site would have been accepted. In response to a number of concerns, principally from applicants and businesses about the need for an outline consent to provide certainty in the development process, these proposals were dropped. The PPP proposals therefore seek to build on and improve the current procedures for outline planning permission.

Options

5.10 The removal of the concept of reserved matters flows from the changes to the 1997 Act. No other options were considered with regard to additional requirements on information accompanying applications for PPP and for additional publicity for applications for approval of matters specified in conditions. These changes are a necessary part of increasing efficiency, the increased role of design and improvements in community involvement.

Costs and benefits

Sectors and groups affected

5.11 The additional information required in relation to applications for PPP relates to:

• where layout is not shown in the application, a statement of the approximate location of buildings, routes and open spaces included in the development proposed;
• where scale is not defined in the application, a statement of the upper and lower limit for the height, width and length of each building included in the development proposed;
• where access is not shown in the application, a statement of the area or areas where access points to the development proposed will be situated;

5.12 Where the detail of these issues is included in the application for PPP there will be no need to provide this approximate and outline information. This will mean developers may have to progress their proposals further than at present before seeking PPP. Planning authorities are less likely to have to go back to applicants seeking basic information before making a decision and so delaying that decision.

5.13 The additional requirements around publicity for applications for approval of matters specified in conditions should ensure interested parties have an opportunity to comment on important matters of detail. Applications for which PPP is sought are likely to be of significant scale and where PPP is granted it is important that local communities have an opportunity to comment on the detail which may be of concern to them.

5.14 Also, while applications for PPP are subject to requirements on pre-application consultation with local communities, applications for approval of matters specified in conditions are not. It is important therefore that communities who may have engaged rigorously in pre-application consultation on the application for PPP are made aware of the applications on detailed matters. Not to do so would undermine the policy intention of ensuring that communities have meaningful opportunities to make their views known on developments which affect them.

5.15 These new requirements on publicity will mean costs for the planning authority in notifying neighbours and those who commented upon the applications for PPP. However, the information on who should be contacted should be readily available from the information on the application on PPP (see further consideration in section on Neighbour Notification).

6. Content of applications and validation

Purpose and intended effect

6.1 Anecdotal evidence suggests that there can be wide variations among planning authorities in terms of what they regard as a valid application, when it should be entered on the register and the time period within which a decision should be made commenced. In order to clarify and standardise the approach to validation, we have considered the legislation on content of applications, the process of validation and entry on registers.

Consultation

6.2 The proposed approach is similar to the existing provisions on valid applications and has not therefore been subject to specific consultation.

Options

6.3 Section 32 of the 1997 Act as amended allows the Scottish Government to specify in subordinate legislation the content of a planning application, and how that application should be processed. Three options have been identified in preparing the new development management regulations:

Option 1 Retain the current statutory provisions and use guidance to try to encourage a more consistent approach.

Option 2 Seek to prescribe more detailed plans and drawings that would make up a valid application.

Option 3 Detail all the types of plans and drawings required to accompany a planning application, the level of textual detail and all the various assessments that might be required to accompany different types of applications in various circumstances.

Option 4 Allow the processing clock to be stopped while the authority asks for and waits to receive additional information to make an application valid.

Costs and benefits

Sectors and groups affected

6.4 This will impact primarily on how planning authorities validate planning applications. There will also be implications for applicants and businesses in the way that their applications are handled and the range of information required by the planning authority to validate the application.

Benefits

Option 1

6.5 Current procedures are well known within individual authorities. Option 1 would allow these procedures to remain in place.

Option 2

6.6 There should be greater certainty around what constitutes a valid application and when processing of the application should start. This includes publicity arrangements, so that the public is invited to get involved only once the basic information has been provided and can be made available to them for inspection.

Option 3

6.7 It will be set out in statute what information is required to form a valid planning application. This should provide clarity and certainty to planning authorities and developers alike.

Option 4

6.8 The authority is not penalised in terms of overall determination time for situations where more information is required in order to make a decision on the application.

Costs

Option 1

6.9 This does not allow for clarification and standardisation of the approach to validation thus leading to potential inefficiencies in the planning system.

Option 2

6.10 Additional plans and drawings would be required for all planning applications which could result in additional information being provided where it was not always necessary. This could increase costs for applicants.

Option 3

6.11 This would generate overly complex, multiple layers of information, which in turn would be likely to generate disagreement over which requirements apply in a particular case and subsequently create delays in getting applications validated and processed.

Option 4

6.12 This would give authorities much discretion to seek further information and applicants would have little certainty at the outset over what was required in the application and how quickly it would be processed. By stopping the clock indefinitely, it could undermine the applicant's right to appeal against non-determination after the statutory determination period has elapsed, thereby potentially adding to delays in applicants getting a decision on their proposals.

7. Design and access statements

Purpose and intended effect

7.1 As a part of the Government's design agenda, Ministers have recognised the need to deliver inclusive environments that can be used by everyone, regardless of age, gender or disability. Prior to the 2006 Act, there was no statutory requirement for either a design or access statement to accompany a planning application which would explain the design principles and concepts that have been applied to the development; and how issues relating to access for disabled people to the development have been dealt with.

Consultation

7.2 The decision to introduce statutory access statements into the planning system for prescribed applications formed one of the proposals in the White Paper. The requirement to extend this to design elements was introduced following Stage 2 consideration of the Planning etc. (Scotland) Bill (2006).

Options

7.3 We have considered three options to address the objectives set out above in relation to design and access.

Option 1 Require design and access for a wide range of planning applications.

Option 2 Require a design and access statement for major applications and a design statement where development impacts on a sensitive area.

Option 3 Do not make design and access statements a statutory requirement and rely on existing guidance.

7.4 Option 1 would introduce a statutory requirement to ensure that certain applications are accompanied by a design and access statement. Many householder, change of use and engineering and mining operations applications would not be covered by this requirement. Option 2 would also introduce a statutory requirement but for a narrower range of planning applications, namely major applications and those where there would be a potential impact on areas designated as being sensitive. Option 3 would retain the non-statutory status of statements on design and access issues.

Costs and benefits

Sectors and groups affected

7.5 Both Options 1 and 2 will impact on how planning authorities consider and assess planning applications though the potential impact will be different, depending on the outcome of the consultation. For developers promoting major developments, the impact of these options may not be substantial. In terms of access, the requirements would essentially formalise existing guidance and best practice. The major effect will be on developers of local developments or development with a sensitive area as these developments would not currently be expected to set out the rationale on design and access. For developers of sites in sensitive areas, the requirement to produce a design statement, while new, also reflects current guidance.

Benefits

Option 1

7.6 There will be a statutory requirement for a statement setting out how design and access issues have been considered when bringing forward the development proposal hopefully leading to better designed and accessible development. Information will be readily available for communities explaining design and access issues for most planning applications.

Option 2

7.7 Although design statements are encouraged through advice, they are not a statutory requirement under current Scottish planning legislation. This option would put into statute what is already advised as being good practice - leading to better designed and accessible developments. The focus for both developer and planning authority resources will be on developments with have a potentially major impact either on design or access issues.

Option 3

7.8 Design statements are already promoted through advice to developers and planning authorities in PAN 68. This is supplemented by advice in PAN 78 which recognises the value of access statements. Leaving the current arrangements undisturbed ensures that planning authorities and developers remain familiar with development management processes and procedures. There would be no additional burden in the preparation and assessment of such statements.

7.9 However, planning authorities and developers would lose potential efficiency and time savings from negotiations around design and access issues not clearly set out with the planning application.

Costs

Option 1

7.10 The major additional cost to business is likely to be the need to prepare a statutory design and access statement where currently one is not suggested through advice. This is therefore likely to impact those developers who seek planning permissions for smaller scale applications. In the early period after implementation there are likely to be increased costs associated with delays whilst planning authorities and developer become acclimatised to the new validation arrangements

7.11 There may also be additional costs should the assessment lead to additional processing burdens on the planning authority which would be translated into higher planning application fees in the future.

Option 2

7.12 Some of the costs attributable under Option 1 are likely to accrue under this option. In addition, some planning applications where design and access issues may be important factors in the consideration of a proposal will not be accompanied by a statement which sets out how these issues have been considered.

Option 3

7.13 There will be no additional direct costs to businesses and planning authorities. However, there may be additional costs to the developer should a development be refused permission where the rationale around the design / access issues have not been appropriately set out.

8. Neighbour notification and publicity for applications

Purpose and intended effect

8.1 To implement section 34 of the 2006 Act requiring planning authorities to give notice of:

• applications for planning permission; and,
• applications for a consent, agreement or approval required by a condition imposed on a grant of planning permission.

8.2 The Scottish Government considers that the transfer of responsibility for neighbour notification of planning applications from applicants to local authorities will strengthen public confidence in the planning system and encourage more effective public participation in planning decisions.

Consultation

8.3 Changes to Neighbour Notification procedures were originally subject to public consultation in Getting Involved in Planning (2001), following which the White Paper Your Place Your Plan set out our overarching proposals for taking these changes forward Modernising the Planning System (2005) further clarified our intentions in this respect. A full public consultation on the policy to deliver option 2a is being initiated and this draft regulatory impact assessment forms part of it.

Options

Option 1 Do nothing

Option 2 Detailed provisions on the manner in which planning authorities neighbour notify.

Option 2a Make further changes additional to Option 2.

8.4 Option 1 would lead to the retention of neighbour notification by applicants. Option 2 introduces detailed provisions concerning the circumstances and manner in which planning authorities are required to give notice of certain applications and to whom such notices are required to be given. Option 2a would lead to additional changes including: simplifying the definition of 'neighbouring land'; removing the requirement to serve notices to neighbours to named individuals; and to provide that, where a planning authority is required to advertise an application which is contrary to the development plan in a local newspaper, that planning authority may recover the cost of the advertisement from the applicant.

Costs and benefits

Sectors and groups affected

8.5 In transferring the responsibility for neighbour notification from the applicant, the burden of the new requirements falls to planning authorities. There will be resulting savings to developers. This will be offset by the anticipated rise in application fees.

Benefits

Option 1

8.6 The current system is understood by planning authorities and by regular users. There would be no need for authorities to adopt new systems to implement new notification provisions or change for businesses.

Option 2

8.7 Proposed changes will address acknowledged weaknesses in the current system and aim to strengthen public confidence and participation.

Option 2a

8.8 The proposed changes aim to strike a balance between ensuring the public has confidence in the notification system and in streamlining aspects of the process to make it less complex.

Costs

Option 1

8.9 The costs of carrying out neighbour notification would continue to be met by the applicant, falling mainly to businesses and to individuals. There would be no change in this respect. This option would not lead to the transfer of responsibility for neighbour notification from the applicant to planning authorities with the loss of strengthened public confidence in the planning system and encourage more effective public participation.

Option 2

8.10 In transferring responsibility for neighbour notification from applicants to planning authorities the cost of implementing the proposed provisions will fall to those authorities. The Scottish Government has previously announced its intention that these costs should be recovered through increased planning fees. In its report of July 2006, the Neighbour Notification Working Group concluded that the actual costs of neighbour notification will vary according to the nature, scale and location of the proposed development, the number of neighbours to be notified and the forms of notification employed by the planning authority. Nevertheless, a consensus of costs per application emerging from local authorities' calculations suggested an average cost across Scotland of £75 per application. If this figure is multiplied by 54,597 (that is the total number of applications determined in 2006/07) this gives a figure in the region of £4m. That figure is reduced if taking into account proposals to extend permitted development rights to certain householder developments which would see the total number of applications for planning permission fall. However, this figure does not take into account applications for approval required by a condition imposed on a grant of planning permission in principle . There are no figures available on the likely number of such applications. Research is currently being carried out on fees and there will be new Fees Regulations. Our intention is that planning authorities should be able to recover the full costs of processing applications. That cost will however be offset by the savings made in removing the responsibility for neighbour notification from the applicant.

Option 2a

8.11 In implementing option 2 we also propose to streamline certain aspects of the process to limit the impact on planning authorities. We are proposing to remove the need to identify named individuals for the purposes of neighbour notification, and consider that the use of ordinary first or second class post is adequate for the delivery of such notices. In order to facilitate the use of IT systems by planning authorities in identifying neighbours who require to be notified of a planning application, we have also proposed a simplified definition of neighbouring land. Whilst this expands the statutory notification distance to a proposed 20m and will therefore catch a larger number of neighbouring properties, we consider that this is balanced by the potential efficiency savings of a simplified definition.

8.12 A further change proposes new provision to recover the cost of advertising fees where an authority is obliged to advertise an application contrary to the development plan. This cost will fall mainly to business and recent figures provided by an individual planning authority suggest that the cost per application required to be advertised is in the region approaching £200 (although the actual fee recovered by that authority - where applicable - is currently set at £100).

9. Lists of applications

Purpose and intended effect

9.1 Although weekly lists are already prepared by planning authorities to inform community councils of the planning applications received that week, Ministers are looking to improve the wider public's awareness of planning applications. The regulations require planning authorities to provide additional information in the weekly list and regularly advertise its availability locally.

Consultation

9.2 Changes to the requirements for weekly lists were originally subject to public consultation in Getting Involved in Planning (2001). Further refinement of the Scottish Government's proposals were brought forward in Modernising the Planning System (2005).

Options

Option 1 Do nothing - retain the current requirements for the preparation and publicity of weekly lists

Option 2 Extend the information contained in the list and its availability plus require the advertisement of its availability on a monthly basis.

9.3 The primary impact on business of the changes on weekly lists will arise from section 36(A)(4) of the 2006 Act which allows regulations to make provisions for the recovery of costs incurred as a result of preparing, publishing and advertising the availability of the list of applications. We considered two options as to how the provisions could be taken forward.

Costs and benefits

Sectors and groups affected

9.4 Planning authorities will be required to provide additional information on the weekly list which will be ostensibly derived from the information provided by the applicant. In the majority of cases, this is information which is already provided by applicants and so there will be no additional cost to business. The impact of these proposals will be upon all applications for planning permission.

Benefits

Option 1

9.5 The procedures for the preparation and publicity of the weekly list are well understood. There would be no need for a change in procedures for planning authorities. There would also be no additional costs for business.

Option 2

9.6 The provisions will lead to additional information to all, including business interests, on development proposals. Ministers' policy is that the cost of considering an application should be recovered in the fee provided to the planning authority. The provisions will be beneficial in that they will help planning authorities recoup the costs of preparing the list which they do not do at present.

Costs

Option 1

9.7 The cost of preparing and publishing the list of applications falls to the planning authority which is not recovered as part of the application fee. There would be no direct additional costs to planning authorities or business. However, it would not fulfil Ministers' policy intention of making the planning system more inclusive and transparent by making information more widely available to the public.

Option 2

9.8 Research is currently being undertaken on the appropriately level of planning application fee. This additional information will help identify the possible direct cost of this proposal and will feed into the final RIA. However, the cost of the preparation and advertisement of the availability of the list on a monthly basis has been estimated to be in the region of £5 - 6 per application.

10. Statutory consultees

Purpose and intended effect

10.1 Regulation 29 of these regulations sets out the statutory requirements for consultation on planning applications. The bodies to be consulted and the criteria for triggering consultation in particular cases are the same as the current GDPO. It is proposed that consultation is required "before the determination of an application for planning permission" rather than "before granting planning permission", as under the current GDPO. This means that even if the planning authority is clear from the outset that it wishes to refuse planning permission, it must carry out the statutory consultation.

10.2 This change is required with the introduction of local reviews. It would be inappropriate for a local review body to potentially grant planning permission on a case refused permission by the officer who dealt with the application, where an application for the same proposal should be notified to Ministers prior to a grant of planning permission. Such cases will not be subject to the scheme of delegation which leads to local reviews. In order to identify such cases, planning authority officials will need to consult statutory consultees, even where they intend to refuse planning permission from the outset, in order to identify those cases where notification to Ministers would be required as a result of an outstanding objection from a statutory consultee.

Consultation

10.3 This is a consequential change which has not been subject to consultation in advance.

Options

Option 1 Do nothing.

Option 2 Amend procedures as drafted.

10.4 Option 1 would retain the status quo whilst Option 2 would require planning authorities to consult statutory consultees irrespective of the likely decision.

Costs and benefits

Sectors and groups affected

10.5 This will impact upon all applications for planning permission which require consultation with statutory consultees.

Benefits

Option 1

10.6 The relationships between planning authorities, developers and statutory consultees would not be disturbed.

Option 2

10.7 The change ensures that where there are appeals against refusal of planning permission, or indeed local reviews of such decisions, the views of statutory consultees are available to the authority considering the appeal or local review. Anecdotal evidence suggests that many authorities will consult statutory consultees on an application as a matter of course when the criteria are triggered, even if ultimately they decide to refuse planning permission. This implies that the provision puts into statute what is already seen as being good practice.

Costs

Option 1

10.8 There would no direct additional costs for parties.

Option 2

10.9 The costs that may arise relate to additional processing by the planning authority and statutory consultees. Also, there might be a delay in the applicant receiving notice of refusal in cases where the planning authority is clear from the start that it will refuse planning permission, although such cases are likely to be rare.

11. Time periods for decision

Purpose and intended effect

11.1 Previously, planning applications had to be determined within 2 months from the submission of a valid application (extended to 4 months where an environmental impact assessment was required under the Environmental Impact Assessment (Scotland) Regulations 1999 ( EIA Regulations) ). After that period had elapsed without a decision on the application being issued, the applicant had a right of appeal on the grounds of non-determination. Planning authority performance was measured primarily with reference to the 2 month period.

11.2 With the introduction of processing agreements for applications for major development, there is a recognition that planning authority performance in such cases should be measured with reference to the time period for a decision set out in the agreement. We also wish to recognise that, even in the absence of a processing agreement, the processing of applications for major development are likely to take longer than just 2 months. The new DMR therefore include a statutory 4 month period for applications for major development.

11.3 The rationale for choosing 4 months as the basic period is that this is already used in relation to cases requiring EIA in recognition of the additional complexity in such cases.

Consultation

11.4 The proposed change to 4 months is consequential on the proposals for processing agreements and therefore no advance consultation has take place on this issue.

Options

11.5 The options considered were:

Option 1 Retain the previous 2 month/4 month ( EIA) period except where a processing agreement had a negotiated extension.

Option 2 Option 1 plus a recognition that the extended processing necessary for major developments should be accommodated in cases where no processing agreement was reached.

Costs and benefits

Sectors and groups affected

11.6 The benefits of processing agreements are considered in the relevant section above. Option 2 has the additional benefit that even where there is no processing agreement, a reasonable amount of time is allowed for the determination of complex cases. This should benefit planning authorities to the extent that there performance would not be judged on time periods which are unrealistic in more complex cases. Applicants will benefit from greater certainty to the extent that a 2 month time period was entirely unrealistic for major developments and that a decision within 4 months is more likely to be achieved. It also reduces the risk of appeals on the grounds of non-determination in such cases being premature.

11.7 The risk is that planning authorities might end up being less efficient when processing major developments subjected to an extended statutory time period, which would mean delays for applicants. However, given the nature of the developments specified in the hierarchy as major developments, a 4 month period does not represent an excessive extension and it is questionable to what extent planning authorities would seek to meet the 2 month deadline in cases where it is entirely unfeasible.

11.8 Given the nature of the developments to which this extended time period applies, should any of the costs in terms of delay arise, they are unlikely to affect small/ micro firms.

12. Decision notices, reports of handling and registers

Purpose and intended effect

12.1 People are often unsure whether their comments on a proposal have been brought to the attention of the decision makers. The regulations require planning authorities to prepare a report on each application. Such a report, available on the public register, will ensure that planning authorities provide a full record of the relevant factors considered in determining each application for inclusion in the planning register.

Consultation

12.2 Following on from public consultation on Getting Involved in Planning (2001), Ministers published their response in Your place, your plan (2003). Modernising the Planning System (2005) proposed that planning authorities would be required to prepare a report on each application.

Options

12.3 The provision requiring the preparation of reports by the planning authority may have a minor impact on costs for business. Planning authorities are not currently required to prepare a report for the planning register but would prepare a report to the relevant decision making committee. It is not clear whether this cost is currently passed on to the developer through the planning application fee. We have considered two options

Option 1 Do nothing - retain the current requirements for information to be placed on the planning register.

Option 2 Introduce the requirement that a report detailing how the application has been considered by the planning authority is to be placed on the planning register.

Costs and benefits

Sectors and groups affected

12.4 Planning authorities will be required to prepare a report on the handling of the application. We envisage that this will be similar in content to the reports currently prepared for planning committees. There will be no additional information required from the applicant in order for the planning authority to complete the report. The impact of these proposals will be upon all applications for planning permission.

Benefits

Option 1

12.5 The procedures for the preparation of information are well understood. There would be no need for a change in procedures for planning authorities who already provide a report to councillors. There would also be no additional costs for business.

Option 2

12.6 The provisions will lead to additional information to all, including business interests, on how development proposals have been considered by the planning authority. This will hopefully improve confidence in the way that development proposals have been considered.

Costs

Option 1

12.7 The cost of preparing the report would remain the same and potentially be met through the planning application fee. However, it would not fulfil Ministers' policy intention of making the planning system more inclusive and transparent by making information more widely available to the public.

Option 2

12.8 Research is currently being undertaken on the appropriate levels of planning application fees. This additional information will help identify the possible direct cost of this proposal and will feed into the final RIA.

13. Bad neighbour development

Purpose and intended effect

13.1 Bad neighbour developments are those which are more likely to give rise to wider impacts on amenity by virtue of noise, increased pedestrian movements or traffic and so on. The effect of being classed as a bad neighbour development is simply that an advert is required to be placed in a local newspaper. This advert should indicate that a planning application has been made for the development in question and giving the location of the site to be developed and indicating that people can make their views known to the planning authority before they determine the application.

13.2 The changes proposed in the consultation paper by and large update the terminology used in the current legislation and add several suggestions to the list.

13.3 The section on neighbour notification above indicated the cost of an advert for an application to be in the region of £200. Where new development is involved in relation to most of the additions suggested in the consultation paper, this figure is unlikely to be a significant part of the costs associated with the development. In some of the smaller ones, or where an application is for a change of use of an existing building then this sum may be appear to be more onerous, but is unlikely to deter applicants for planning permission or increase the overall costs of pursuing an application.

13.4 Where advertising of the application is required because the proposal meets a number of criteria, for example, is a bad neighbour development, represents a departure from the development plan and where neighbour notification cannot be carried out, only one advert needs to be placed.

14. Miscellaneous Issues

14.1 There are a number of issues arising from new provisions included in the 2006 Act which are not covered in these regulations. In addition, issues around certain provisions in relation to the GDPO which are described in this section.

Standard application forms

14.2 Under the current GDPO an application for planning permission is made on a form issued by and obtainable from the planning authority. However, the 1997 Act as amended by the 2006 Act will allow us to specify a standard planning application form or forms for use across Scotland. Work on standard application forms is progressing with the work on e-forms for electronic submission of planning applications. Until that work reaches a conclusion, there will be no statutory requirement and applicants will be expected to use forms provided by the planning authorities, as at present, or e-forms available from the Scottish Government.

Powers of direction

14.3 The current GDPO provides Scottish Ministers with powers of direction so they can direct:

• that a development which is listed in Schedule 2 to the EIA Regulations and of a class described in the direction requires EIA.
• 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.
• that the planning authority must consider imposing a condition specified in the directions when minded to grant planning permission for a development or class of development specified in the direction, and unless the directions have been dropped, satisfy Scottish Ministers that consideration has been given and if the condition will be imposed.
• 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.

14.4 These powers to make directions or equivalent powers are contained in the new DMR. 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.

14.5 Powers of direction are already contained in the current GDPO so no new costs are being introduced. Current costs however include:

• when an EIA is required it is the applicant who must produce an Environmental Statement for the planning authority to consider and bear any costs associated with that and the EIA process in delaying their plans for development;
• under the directions restricting the grant of planning permission where it may not be granted by a planning authority either indefinitely or during such a period specified in the direction there is the potential cost to the planning authority through costs associated with the process of notification of applications to Ministers;
• under the directions requiring consideration of conditions for an application the planning authority may incur a cost through their consideration of imposing conditions when minded to grant planning permission and the case they will be required to put to Ministers to satisfy them that such consideration has been given;
• the costs to the planning authority of the notification process when they require to pass to persons specified 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 dealt with.

Variation of applications

14.6 The 2006 Act introduces two new provisions to the 1997 Act regarding the variation of applications. 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. The planning authority may give such notice of the variation as they consider appropriate.

14.7 Although new sections 32A and 32B specify powers for making further provisions in subordinate legislation with regard to variations, there are no such further provisions as part of this package.

14.8 Where the planning authority decides to give notice of the variation of an application under new section 32A they will incur the cost of paying for the notification. This is a voluntary cost as they are not required to do this under the 2006 Act.

Crown immunity provisions

14.9 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 these regulations. 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 will be applied to urgent Crown applications. No additional costs are expected to arise from these provisions.

CLUD provisions

14.10 The GDPO, as amended, currently contains provisions on the making of applications for certificates of lawful use or development ( CLUDs) and the revocation of same. Equivalent provisions are contained in these regulations. These have been updated but make no significant changes to the procedures for CLUDs and so are not expected to present any additional costs.

Marine fish farming provisions

14.11 Marine fish farm development was brought within planning control this year through 'The Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007 ( SSI 268/2007)' 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 changes included 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 subject to any consequential amendments. It is not expected that there will be any significant additional costs as a result of these amendments.

E-enablement of development management

14.12 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

14.13 Planning authorities will still have powers to require additional information in order to determine planning applications. The use of these powers does not affect the information which is required to make an application valid.

14.14 In relation to planning permission in principle, planning authorities will retain a power 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.

15. Transitional arrangements

15.1 The draft development management regulations do not go into the detail of transitional arrangements. There are a number of issues still under consideration in this regard, for example: how to treat applications in the system when new requirements take effect; how to commence aspects of the new system relating to the pre-application phase to avoid disadvantaging applicants; and how to deal with applications for reserved matters made after the new provisions on PPP come into effect. There is also the broader question of how we stage the introduction of the various elements of modernisation of development management processes.

15.2 We will consult with planning authorities and a sample of stakeholders on these issues prior to the legislation being laid before the Scottish Parliament. We will also ensure there is publicity for any transitional arrangements prior to the coming into force of the legislation. The finalised RIA will contain more detailed information on the transitional arrangements and the options considered.

16. Small/micro firms impact test

16.1 Most small and micro businesses will only occasionally deal with the planning system, and all small businesses should benefit from our proposals to improve efficiency in the planning system.

17. Legal Aid impact test

17.1 These Regulations do not create new rights or responsibilities that could give rise to increased use of legal processes. The regulations will not impact on an individual's right of access to justice through availability of legal aid.

18. "Test run" of business forms

18.1 The Scottish Government is proposing a template for processing agreements to highlight the intention the agreements should be kept as straightforward as possible. It will not compulsory to follow this layout, and as processing agreements are agreements between parties it is open to them to determine the form and content of the written part of the agreement. Therefore no 'test run' of business forms is considered necessary in relation to this proposal.

19. Competition assessment

19.1 The regulations relate to all applications for planning permission. We do not believe these regulations will distort or restrict competition between firms or suppliers selling the same or similar products or services.

20. Enforcement, sanctions and monitoring

20.1 We will be monitoring the way planning authorities implement the changes resulting from the 2006 Act and the secondary legislation stemming from it. This will form part of our overall monitoring of authorities' performance which is already carried out by the Planning Directorate of the Scottish Government. Section 30 of the 2006 Act gives Scottish Ministers powers to conduct, or appoint a person to conduct on their behalf, an assessment of the planning authority's performance of functions under the planning Acts.

Draft regulatory impact assessment

The Town and Country Planning (Increase in Gross Floor Space) (Scotland) Order 2007

1. Title of proposal

1.1 The Town and Country Planning (Increase in Gross Floor Space) (Scotland) Order 2007.

2. Purpose and intended effect

2.1 The aim is to bring within the definition of "development" and therefore subject to planning control, the installation of additional floor space within a building above a specified level. The secondary legislation defines the circumstances in which an increase in floorspace would require planning permission.

2.2 Under the 1997 Act, alterations which only affected the interior of a building or which did not materially affect the external appearance of the building, were not considered to fall within the meaning of 'development' and therefore did not require planning permission. This would include internal increases in the gross floor space of the building, however in the wrong locations uncontrolled increases in retail floor space, can undermine policy objectives for sustainable land use, travel patterns and accessibility and may undermine the Government's key objective set out in Scottish Planning Policy 8: Town Centres and Retailing to promote the vitality and viability of town centres. To respond to the practice of operators of out-of-town stores or retail parks adding mezzanine floors, planning authorities now often attach conditions to planning consents which limit the amount of permitted floorspace. However, as many earlier permissions did not have such conditions - controls are considered necessary to help protect town centres.

3. Consultation

3.1 The White Paper Modernising the Planning System set the context for the 2006 Act. It trailed proposals to bring the installation of mezzanine floors within the planning system. The draft development order has been the subject of internal discussion within the Planning Directorate. There have been further discussions with key stakeholders such as the Scottish Society of Directors of Planning plus individual planning authorities in advance of the formal public consultation.

4. Options

Option 1 Do nothing and maintain the status quo.

Option 2 Introduce controls for operations where the proposed increase would result in an aggregate increase in the gross floor space of the building of 200 square metres or more, in specified circumstances.

Detailed choices within Option 2 were:

• Applying the controls to different types of use - The Act provides the powers for Scottish Ministers to specify any circumstances or description of circumstances in which subsection 26 (2) of the Act - exclusions from the definition of development - does not apply to operations mentioned in paragraph (a) of that subsection, which have the effect of increasing the gross floor space of the building. The Scottish Government intends to apply the development order to buildings used for the retail sale of goods. We are not aware of other types of use raising significant issues through use of internal floorspace increases.
• Using a set amount of floorspace in square metres or a fixed % - The Act allows the development order to describe the circumstances by such amount or percentage as is so specified. The draft order uses set amounts in square metres rather than a percentage. It was considered that use of a percentage figure would be a less precise tool, and would favour existing large-scale developments. The use of set amounts in square metres will also help ensure consistency in approach.
• Limiting the amount of additional floorspace which can be increased once a set level has already been previously added - The approach proposed by the Scottish Government would allow operators to increase the gross floor space of their building by 200 square metres without the need for consent. It would then restrict the ability for operators to incrementally increase the floorspace of their building in chunks of up to 200 square metres without applying for consent. Incremental uncontrolled increases of a significant size would undermine the provisions in the development order and have the potential to have more significant cumulative impacts. It is therefore proposed there should be a different level, of what is defined as development, after previous works to increase the gross floor space of the building by 200 square metres or more have taken place, and that this level would be 10 square metres.

4.1 Option 1 would retain the current position and leave it to planning authorities to use their powers to include conditions to planning permissions to control such developments. Option 2 would set out the extent of internal retail floorspace which was considered as being development and therefore subject to a formal application for planning permission.

5. Costs and benefits

Sectors and groups affected

5.1 The main impact of the Order will be on retail operators or property professionals looking to increase the floorspace of buildings in their portfolio used for the retail sale of goods. We expect this group to include medium to large businesses, particularly property developers and businesses carrying out major expansions in areas such as the retailing and service sectors, though small family building firms and self-employed architects and agents may also fall into this group. There will also be an impact on planning authorities as the changes may lead to a small increase in the number of planning applications.

Benefits

Option 1

5.2 This would not alter the current arrangements which are understood by planning authorities and developers.

Option 2

5.3 This provision will help support Scottish Government planning policy by reducing the likelihood of inappropriate uncontrolled development taking place in unsustainable locations to the detriment of town centres. It will allow for an appropriate consideration of the full effects of such development.

Costs

Option 1

5.4 There would be no additional costs to parties as the status quo would be retained. However, this option would not allow for implementation of the policy intention to regulate such matters as set out in provisions contained in the 2006 Act.

Option 2

5.5 In the circumstances set out in the Order, the requirement for full planning permission will lead to an additional cost to developers attributed to the cost of preparing a planning application and the fee for submitting it to the planning authority.

6. Small / micro firms impact test

6.1 The main impact will be on retail operators or property professionals looking to increase the floorspace of buildings in their portfolio used for the retail sale of goods. We expect this group to include medium to large businesses, particularly property developers and businesses carrying out major expansions in areas such as the retailing and service sectors, though small family building firms and self-employed architects and agents may also fall into this group.

6.2 The draft Order provides that operators can increase the gross floor space of their building used for the retail sale of goods by 200 square metres, without the need to apply for planning permission. The 200 square metre threshold is primarily to exempt small businesses and shops from the need to apply for permission when looking to increase the floorspace of their premises for ancillary uses such as storage or other facilities. The draft Order only applies to buildings used for the retail sale of goods.

7. Legal Aid impact test

7.1 The draft Order does not create new rights or responsibilities that could give rise to increased use of legal processes. The draft Order will not impact on an individual's right of access to justice through the availability of legal aid.

8. Competition assessment

8.1 The draft Order relates to buildings used for the retail sale of goods. It should not limit the ability of operators of different types of retail businesses to compete. The reference to a building used for retail sale of goods will include buildings used as a retail warehouse club, but does not include a building used only for the retail sale of hot food. We do not believe the draft Order will distort or restrict competition between firms or suppliers selling the same or similar products or services.

9. Enforcement, sanctions and monitoring

9.1 We will be monitoring the way planning authorities implement the changes resulting from the 2006 Act and the secondary legislation stemming from it including the Town and Country Planning (Increase in Gross Floor Space) (Scotland) Order 2007. This will form part of our overall monitoring of authorities' performance which is already carried out by the Planning Directorate of the Scottish Government. There will also be scope to alter the circumstances or amount for which increases in the gross floor space of the building count as development, in order to maintain the effective operation of the system.

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