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2. ENHANCED SCRUTINY
The need for enhanced scrutiny
2.1 To ensure additional scrutiny over certain types of development, the White Paper set out a range of enhanced scrutiny measures consisting of:
(a) pre-application consultations with local communities;
(b) pre-determination hearings;
(c) decisions by the full Councilrather than committee; and
(d) notification to the Scottish Ministers for their consideration as to whether an application should be called-in for their determination.
2.2 The consultation paper covers the details of each of these measures in turn.
Pre-application consultation with local communities
Context
2.3 The new statutory requirements on prospective applicants to carry out pre-application consultation with local communities should not be confused with "pre-application discussions" between applicants and planning authorities. The latter will remain on a non-statutory footing, although their relevance may increase with the introduction of processing agreements (see Part 3 below). Pre-application discussion remains a useful forum in which the applicant and planning authority can discuss a range of issues concerning the proposed development and how it will be dealt with. In future this should include pre-application consultation requirements, bearing in mind the need to comply with the statutory requirements, including timescales, described below.
2.4 Regulation 4 and Schedule 1 of the DMR specify the classes of development to which we propose that pre-application consultation requirements should apply. These are:
- all national developments;
- all major developments;
- all development requiring environmental impact assessment ( EIA); and
- developments listed in column 1 of Schedule 1 of the DMR which meet the criteria or exceed the threshold in column 2.
2.5 In addition to this list, the White Paper referred to two other situations where pre-application consultation might be required. The first was larger scale bad neighbour developments for which there was no specific provision in the development plan. Having now produced draft regulations on the hierarchy, we believe that such development will be either a major development or an EIA development and that a separate category is not required to apply pre-application consultation to such development.
2.6 The second situation was local developments which were significantly contrary to the development plan. Planning authorities are already required in certain circumstances to judge whether a proposal represents a significant departure from a development plan. However, that judgement is usually required after an application has been submitted and there has been consultation on and consideration of the proposal and it is not something that is necessarily clear at the point that the application is submitted. Given the need to identify projects requiring pre-application consultation before a planning application is even made, we conclude that it may be difficult to judge quickly and accurately at the outset whether a proposal is a significant departure from the development plan. Schedule 1 of the DMR therefore seeks to identify clear cut instances where proposals are likely to be significant departures from the development plan and as such should be subject to pre-application consultation.
2.7 Some of the thresholds in Schedule 1 refer to the lack of a "proposal" for a specific development appearing in a development plan. This is to provide certainty for all parties at the outset about the need for pre-application consultation. An approach focused on criteria-based policies would be less likely to provide that.
Q1: Do you agree with the proposed categories of development to which the requirements for pre-application consultation apply?
Q2: Do you have any comments on the thresholds in Schedule 1 of the DMR on pre-application consultation?
Pre-application consultation - the process
2.8 New section 35A-C of the 1997 Act along with regulations 4-9 of the draft DMR set out the main elements of the pre-application consultation process which will apply to the developments referred to in the previous section. These elements are discussed in more detail below.
Screening for pre-application consultation
2.9 It will be open to a prospective applicant to serve a notice on the planning authority, requesting a view on whether pre-application consultation is needed. Under new section 35A(5) and regulation 5, the notice requiring a view on the need for pre-application consultation must contain:
a) a description in general terms of the development to be carried out;
b) if the site at which the development is to be carried out has a postal address, that address;
c) a plan showing the outline of the site at which the development is to be carried out and sufficient to identify the site;
d) detail as to how the prospective applicant may be contacted and corresponded with;
e) a statement as to whether a screening opinion or screening direction has previously been issued on the need for EIA in respect of the development; and
f) where major or local development is involved, a statement as to whether in the prospective applicant's view the development is one which the development plan proposes should be carried out at this site.
2.10 Although this should be sufficient to make a decision, the planning authority has powers under new section 35A(6) to request further information where necessary to provide a view and we intend to produce guidance in this connection. Unless the planning authority requires more information, they will have 21 days in which to give their view (new section 35A(7)). There is no appeal against that view, unless the sole trigger for pre-application consultation is the need for EIA, in which case the developer could ask the Scottish Ministers, under the EIA Regulations, to direct on the need for EIA.
2.11 A particular benefit of obtaining a formal view from the planning authority is that if it concludes that no pre-application consultation is required and the proposal does not alter significantly prior to submission of a planning application within 12 months of the notice, then any subsequent change of view - for example, that EIA was required, or that the proposal does actually meet one of the specific triggers for pre-application consultation - could not override that initial view that pre-application consultation was not required (new section 35A(9)). In the absence of such a formal view, it would be possible that such a change of view would require the planning authority to decline to determine the application as invalid, by virtue of new section 39.
2.12 It should also be noted that the screening process for EIA and for pre-application consultation are separate statutory procedures. For example, a pre-application screening opinion under the EIA Regulations that EIA was not required would not in itself function as a view on the need for pre-application consultation. Potential applicants are strongly advised to request both.
Q3: Is the information required in a pre-application screening notice sufficient?
Q4: Is 21 days a reasonable period for authorities to respond to a pre-application screening notice in all circumstances?
What pre-application consultation will involve
2.13 Where pre-application consultation with local communities is required, the applicant must, under new section 35B(1) and (2), provide to the planning authority a "proposal of application notice" at least 12 weeks prior to the submission of an application. That notice should include the information in paragraph 2.9 a) to d) above and, under regulation 6, an account of what consultation the applicant proposes to undertake, when such consultation is to take place, with whom and what form it will take. This may go beyond the statutory requirements and will assist the planning authority in deciding whether they need to require the prospective applicant to undertake any further consultation (see paragraph 2.16 below).
2.14 Under regulation 7 the notice must be served on the relevant community council and owners and occupiers of "neighbouring land" (as defined in regulation 2). The notice must also be placed by the planning authority on the list of applications required under regulation 24.
2.15 Regulation 8 specifies the statutory consultation and publicity required to be undertaken by the prospective applicant, which include the holding of at least one public meeting and associated publicity.
2.16 In addition to the specific statutory requirements, under new section 35B(7) the planning authority may, within 21 days after receiving the proposal of application notice, notify the prospective applicant of anyone they consider must also receive a copy of the notice and of any other consultation that must be undertaken. In considering any additional requirements, the planning authority is required to have regard to the nature, extent and location of the proposed development and the likely effects, at and in the vicinity of that location, of its being carried out.
2.17 This discretion for planning authorities to request further notification and consultation is to provide flexibility to respond to local circumstances. While a statutory minimum is proposed, we expect there will instances where proposals will require some additional consultation.
2.18 We intend to produce guidance on what further consultation should be carried out relevant to the nature, scale and location of the development involved. That guidance could then be used by prospective applicants as a basis for developing an approach to pre-application consultation and/ or by the planning authority as a basis for requesting further consultation where there are gaps. We would also expect planning authorities to develop lists of local bodies and interests with whom applicants should consult in particular cases and that these be available to prospective applicants.
Q5: Do you agree with the proposed content of the proposal of application notice?
Q6: Are the requirements to notify community councils and neighbours of the proposal of application notice sufficient or should others be notified at this stage as a statutory minimum?
Q7: Do you agree with the minimum statutory requirements for pre-application consultation in regulation 8?
Pre-application consultation reports
2.19 The prospective applicant must (under new section 35C) prepare a pre-application consultation report as to what has been done during the pre-application phase to comply with requirements of the legislation and any requirements set out in the planning authority's response to the proposal of application notice. Regulation 9 sets out the requirements of the report. The report must accompany the planning application when submitted and the authority will be required to include it on the planning register along with the application, plans and drawings.
2.20 Where pre-application consultation is required but not carried out, or there is no report or the planning authority judges that the applicant has not complied with the requirements on pre-application consultation, the planning authority must decline to determine the application (section 39, as amended). Before deciding whether to do so, the planning authority may request further information from the applicant. In declining to determine an application for failure to comply with these particular requirements, the planning authority must give its reasons.
2.21 The pre-application consultation report should be concise, facilitating a straightforward assessment of the quality, breadth and depth of the consultation activities that have taken place during the pre-application consultation exercise. Applicants should also include evidence of consultation, e.g. proof of postage, copies of adverts for public meetings. We intend to provide guidance on best practice on the form and content of these reports.
2.22 It is important that pre-application consultation is seen as an additional measure and not something that takes away the right of, or need for, individuals and communities to make formal views during the application process. This should be emphasised by planning authorities and by the prospective applicants during pre-application consultation.
Q8: Do you agree with the requirements on the content of pre-application reports?
Pre-determination hearings
2.23 As part of the new measures on enhanced scrutiny for certain types of planning application, the 2006 Act makes provision in section 38A for a mandatory hearing prior to an application being determined. The requirement for pre-determination hearings is aimed at making the planning system more inclusive by allowing the views of objectors and interested parties to be heard by a committee of the planning authority before a decision is taken.
2.24 Regulation 37 prescribes the classes of development that will be subject to a mandatory pre-determination hearing and the people who may appear before and be heard by the relevant committee.
2.25 The cases in question are:
- developments significantly contrary to the development plan; and
- cases requiring EIA.
2.26 The persons to be given an opportunity of appearing before and being heard by the committee of the authority are those who have submitted representations on the application. Under new section 38A(3), the planning authority has the discretion to allow other parties to attend the pre-determination hearing. It should be noted that no-one can be forced to attend such a hearing.
2.27 New section 38A(2) allows the planning authority to specify the procedures around arranging and conducting hearings. This includes ensuring the relevance of matters discussed at a hearing and the avoidance of repetition.
2.28 While there is currently no statutory requirement to hold hearings, the practice is already becoming more widespread among Scottish local authorities. We therefore intend to provide further guidance to capture, disseminate and build on existing good practice. This may include a Model Code of Conduct for Hearings which would address issues such as when the hearing should take place and how and by whom it should be conducted.
Q9: Do you support the classes of development which will be subject to pre-determination hearings?
Q10: Should the opportunity to be heard at a pre-determination hearing be extended to other parties beyond those who made representations?
Decisions by the full Council
2.29 As part of the suite of enhanced scrutiny measures, in those cases where a pre-determination hearing is required under new section 38A(1) of the 1997 Act (see above) a decision by the planning committee on an application must be referred to the Council as a whole for ratification or refusal.
2.30 Section 14(2) of the 2006 Act amends section 56 of the Local Government (Scotland) Act 1973 (c. 65) (arrangements for discharge of functions by local authorities), to insert a new sub paragraph (6A), which states, "A local authority's function of determining an application for planning permission for a development of a class mentioned in section 38A(1) of the Town and Country Planning (Scotland) Act 1997 c.8 shall be discharged only by the authority".
Q11: What arrangements would need to be made to convene full Councils to make these decisions?
Notification to the Scottish Ministers
2.31 The final strand of enhanced scrutiny is delivered through notification of additional categories of planning application to the Scottish Ministers. The Town and Country Planning (Notification of Applications) (Scotland) Direction 2007 has now brought in new requirements to notify planning applications for EIA developments and for proposals which are significant departures from the development plan to the Scottish Ministers. This means that where a planning authority is minded to grant planning permission for a proposal covered by the direction they cannot grant planning permission until Ministers have had an opportunity to consider whether or not they should intervene to call-in the application for their determination.
2.32 Further information on the notification of applications is contained in the Scottish Planning Circular 5/2007: Notification of Planning Applications.
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