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SCHEMES OF DELEGATION

The scope of new schemes of delegation

13. The 2006 Act contains provisions requiring each planning authority to prepare a scheme of delegation whenever required to do so by Scottish Ministers. Section 17 introduces new section 43A into the Town and Country Planning (Scotland) Act 1997 which allows Ministers to prescribe the form and content of such schemes. The scheme of delegation will enable certain applications within the category of local developments to be determined by an officer of the Council rather than by elected members. The draft regulations propose that subsequent schemes of delegation should be reviewed at intervals of no more than five years. It is proposed that officials will be able to take the full range of decisions on applications under these provisions: approval; approval with conditions: and refusals.

14. The provisions at new section 43A of the Town and Country Planning (Scotland) Act 1997 on schemes of delegation are concerned with applications for planning permission and associated agreements or approvals required by condition only. As indicated earlier in this paper, the intention is to link decisions on these applications to a local review process rather than by appeal to Scottish Ministers. That is the principal change being introduced in relation to schemes of delegation. Planning authorities currently adopt schemes of delegation under the provisions of the Local Government (Scotland) Act 1973. These delegate authority from members to enable officials to take decisions on a wide range of other planning matters such as determining applications for listed building consent and conservation area consent as well as decisions on a range of other administrative processes which may include enforcement action, negotiating planning agreements and providing advice to stakeholders in the planning system. These existing powers for delegation of decisions in relation to other applications remain unaffected by the modernising proposals. Only delegated decisions made under the scheme of delegation introduced by new section 43A of the 1997 Act will be subject to a review by the planning authority instead of Scottish Ministers. These are restricted by section 43A (1)(a) of the 1997 Act to certain delegated decisions within the category of local developments. The regulations set out the types of local developments that should continue to be determined by elected members and these are described in paragraph 15 below. We expect that planning authorities should take the opportunity afforded by planning modernisation to look afresh at their approach to delegation generally to ensure that it promotes the increased efficiencies the Scottish Government requires.

15. The intention is that local developments which are neither complex nor controversial should be delegated for decision by officials to promote efficiency. There will remain a range of applications which should continue to be dealt with by elected members. Accordingly draft regulation 3 requires that the following types of application should not be determined under the new schemes of delegation:

• applications subject to an unresolved objection from a statutory consultee;
• applications made by the planning authority or a member of the planning authority;
• applications relating to land in the ownership of the planning authority or to land in which the planning authority have a financial interest;
• applications requiring Environmental Impact Assessment;
• applications relating to development that is significantly contrary to the terms of the development plan;
• applications subject to a substantial body of objections; and,
• applications of a class mentioned in s38A of the 2006 Act (these being applications subject to enhanced scrutiny, including a pre-determination hearing by the planning authority).

16. All other planning applications for local development are intended to be within the scope of delegation by officers.

Procedure for adopting schemes of delegation

17. In addition to powers on the form and content of schemes of delegation, new section 43A (4)(a) of the 1997 Act provides powers for regulations to set out the form and content of a scheme of delegation and the procedures for preparing and adopting a scheme. The overall intention is that the arrangements for decision taking within planning authorities should promote efficiency whilst ensuring that complex or controversial proposals continue to be dealt with by elected members as envisaged in the White Paper. While it is entirely appropriate that authorities should have the scope to put in place administrative arrangements that suit local circumstances this should not prevent applications for local developments consistent with the development plan being processed through the system quickly. Draft regulation 4 requires that planning authorities proposing to adopt a scheme of delegation should send a copy of the scheme to Scottish Ministers and that the authority cannot adopt the scheme less than 28 days following submission. Scottish Ministers may extend the 28 day period for consideration of the scheme and may also require the authority to consider modifying the scheme in accordance with their recommendations. The planning authority will be expected to provide reasons why any recommendations for modification have not been accepted and draft regulation 4(5) enables Scottish Ministers to notify the planning authority that a scheme should not be adopted until it has been approved by Scottish Ministers. The draft regulations do not require planning authorities to consult on schemes of delegation.

18. Once the planning authority has agreed the proposed scheme of delegation draft regulation 6 provide that copies of the scheme should be made available in public libraries and on the authority's website. The requirement to advertise the planning authority's list of applications (as proposed in the draft development management regulations currently out for consultation) will involve the inclusion of a reference to where the scheme of delegation may be inspected.

19. Once a scheme of delegation has been adopted, the new section 43A (6) of the 1997 Act still enables an application which is within the scheme of delegation to be determined by members rather than by an official under delegated powers. This is intended to provide a degree of flexibility that can be used on a case by case basis. Where a decision is taken to refer an application to elected members in this way, the Act requires a statement of reasons to be provided to the applicant. It is important to inform applicants as soon as possible of a change in the way in which their application is to be dealt with. The draft development management regulations include provisions requiring the decision notice to state clearly which route, either a review to a local review body or an appeal to Scottish Ministers is available where an applicant is dissatisfied with the terms of a decision.

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