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DEVELOPMENT MANAGEMENT
Enhanced Scrutiny
Q19. Concerned that opportunities for additional scrutiny will be seized on by certain enthusiastic communities. This may greatly increase the workload of local authorities in dealing with interest from a wider range of parties, and raises concerns about resourcing.
A19. The planning modernisation agenda seeks to promote the effective, purposeful inclusion of communities in discussing planning issues that affect them. It will be for individual planning authorities to determine how best to support that aim and meet their statutory responsibilities in the context of particular proposals and applications. The responsibility for conducting the actual direct engagement with communities and other consultees will be with developers.
The Government will assist via further guidance, and we look to support the provision of advice and assistance to affected communities through enhanced support for Planning Aid Scotland. We will also look to clarify and manage expectations among communities, authorities and developers as to the extent of proportionate pre-application engagement, as well as its purpose.
Q20. How will the qualitative aspects of pre-application consultation be assessed? Can the local authority challenge what has been recorded as having been carried out, and can inadequacies be used as a reason for refusal?
A20. The planning authority will decide whether an applicant has "complied" with statutory pre-application consultation requirements - as provided by section 39 (1A) of the Act. It is submitted that the proposed components of a validly completed pre-application consultation report will disclose whether a meaningful engagement has taken place - see draft regulation 9 for the proposed elements of that report. However, we would welcome comments or suggestions on this aspect of the regulations.
It is in applicants' interests to describe accurately what has taken place during the pre-application consultation. If the report does not prima facie meet the compliance requirements, then the application will be returned as invalid. The report will be published as part of the overall planning application, so communities and consultees will be able to see any inaccuracies or distortions for themselves.
Q21. Schedule 1 identifies certain triggers attracting pre-application consultation requirements for certain applications. The level suggested for residential development is very low, which raises concerns as to the scale of impact. There is a wide divergence in scale between a 2,500 sq.m. retail floorspace threshold and 5 housing units.
A21. We are consulting on the suitability of the "triggers" for pre-application consultation. They were developed as analogues for those proposals in the local class of developments marking "significant departure" from a given development plan, included in the 2005 White Paper as a class which would attract the pre-application consultation requirements.
We welcome comments on potential impact on processing efficiency, and would be particularly grateful for views on proportionality and suggestions as to alternative means for giving effect to the commitment to include "significant departures".
Q22. Will local authority planning staff be available to brief applicants on aspects of pre-application consultation?
A22. Planning authorities are responsible for responding to proposal of application notices from prospective applicants. Their responses determine the scope of pre-application consultations. It is reasonable to expect that those responsibilities will be supported by appropriate pre-application discussions between authorities and applicants. Further involvement in individual applications ( e.g. by attending consultation events, providing advice to communities or elected members) should be driven by planning authorities' view as to what is appropriate for a particular proposal.
We are scoping the feasibility of developing a community profiling toolkit for these purposes to promote clarity, consistency and proportionality. In terms of individual planning applications, it is accepted best practice to carry out pre-application discussions with the relevant planning authority.
Q23. What is the added value in referring a legitimate decision taken by planning committee to a full council for ratification?
A23. The rationale for including this additional layer of enhanced scrutiny in the 2006 Act was to introduce another element of democratic scrutiny to decisions on complex, significant or high-impact proposals. We have invited comments from authorities on the potential impact of this provision, and will endeavour to ensure that its delivery is practicable.
Q24. What are pre-determination hearings going to deliver? How many will there be?
A24. The requirement for pre-determination hearings is aimed at making the planning system more inclusive, allowing the views of objectors and interested parties to be heard before a planning decision is taken. At current application rates, we anticipate that there would be around 2200 annually across Scotland. We hope that the number of applications referred to hearing on the "significant departure from development plan" ground should start to see a marked fall.
For those types of developments significantly contrary to the development plan, and those requiring EIA, the planning authority is to hold mandatory pre-determination hearings so that those who have previously submitted views on the planning application will be able to make their views known to the Planning Committee before the decision is made. They are provided for by section 38A of the Planning etc (S) Act 2006 and draft regulation 37 of the draft Development Management Regulations 2008.
The procedures of pre-determination hearings are part of authorities' consideration of planning applications - so it would not be appropriate to prescribe. We intend to develop, with partners, a model "code of conduct" for the new hearings, drawing on existing good practice and acknowledging relevant requirements of accessibility etc.
Q25. How does referral to Full Council work in relation to schemes of delegation?
A25. The nature of the development will determine whether the initial consideration can be delegated to an individual planning officer. 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. Certain applications should not be determined under the new schemes of delegation and these include those that are subject to the s38A requirements on enhanced scrutiny, including a pre-determination hearing by the planning authority.
Q26. Will statutory pre-determination hearings be required to give reasons for the referral to the full council - is there not a prospect of prejudicing the application?
A26. All decisions made by statutory pre-determination hearings need to be referred to the full council for ratification or reversal. The procedures for arranging and conducting the hearing are to be decided by the relevant authority, but the Scottish Government intends to develop guidance in partnership with planning authorities and other interests on these issues.
Processing Agreements
Q27. Is there a model for processing agreements?
A27. A proposed template for a processing agreement was included in the consultation paper Development Management which issued in January 2008.
Q28. What will the Scottish Government be doing to encourage third party bodies and statutory consultees to get involved in the processing agreements?
A28. The Scottish Government will continue to work with all parties to promote the benefits of early engagement in the planning process, including contributing to discussions supporting processing agreements.
Q29. Experience of pre-application agreements has been that it is rare (if not exceptional) for the applicant to submit what was required, in the timescale agreed. There were also issues around the quality of the submission. How would you propose to avoid this situation?
A29. The success of processing agreements will depend, in part, upon the parties to the agreement respecting the terms of the agreement and delivering in accordance with the roles and responsibilities included in the agreement. This includes providing information to the timescale and quality agreed.
Planning Permission in Principle
Q30. Crofters rely on outline planning permission in order to access funding from the crofters commission. How will this work under the new Planning Permission in Principle?
A30. As a concept PPP is no different from outline planning permission. However, the draft regulations indicate that additional indicative information about a proposal will be required as part of an application for PPP where the relevant detailed information does not form part of the application. Obviously, new procedures on neighbour notification, advertising and consultation would apply as they do to other planning applications.
Applications for PPP may also require to be subject to the new enhanced scrutiny procedures and may, depending on their scale, qualify as major developments and be subject to a processing agreement. However the thresholds for pre-application consultation or classifying a development as major would be unlikely to apply to proposals specifically to do with crofting.
Q31. Greater information requirements need to be thought through. The Scottish Government should consider the impact on proposals being sent to consultees such as the Crofters' Commission?
A31. The draft development management regulations indicate that an application would consist of an application form, description of the development, the plans necessary to describe the proposal and, where appropriate, a design and access statement and a pre-application consultation report. We are also looking at using IT to facilitate consultation to ease the handling of documents. The Crofters' Commission is not a statutory consultee on planning applications.
Q32. How does PPP work in relation to sites that extract minerals? Can PPP be refused on the basis of a lack of information?
A32. There is no statutory bar to applying for Planning Permission in Principle for minerals applications. However, given the nature of such development, the likely need for EIA and for a planning authority to satisfy itself that any effects on amenity or the environment are acceptable before granting planning permission, it seems likely that a planning authority would need to use its powers to require more information than the statutory minimum for applications for planning permission in principle.
Refusal of planning permission on the grounds of lack of information certainly happens in practice. Applicants do have a right of appeal and will, in future, have a right to require a local review, to test such a decision. Where the planning authority does not have sufficient information it would be imprudent to grant planning permission and other than refusing permission, if information requested is not forthcoming the case would simply sit on their books unless the applicant appealed on the grounds of non-determination
Content of Applications and Validation
Q33. Concerns that under new procedures, planning authorities will not be able to require much of the information that they currently ask for, (such as flood risk assessments), and will have to validate the application as received?
A33. The new regulations as drafted clarify that a valid application is one that complies with statutory requirements. It will still be open, as at present, for planning authorities to require any further information they need to determine an application. In relation to major developments, planning authorities should agree with applicants the provision of additional information, the timescales for so doing and the overall time period for determining the application.
Design and Access Statements
Q34. What can a Planning Authority do if it considers a design statement to be inadequate?
A34. The answer to this depends on the aspect in which the statement is deemed inadequate. If it does not meet the statutory requirements for content as set out in the DMR, then it would be for the planning authority to consider whether the planning application was valid. If a qualitative analysis of the contents of the statement discloses concerns, then the impact of an inadequate statement will be that the developer will have lost the opportunity to suitably explain the design principles and elements relating to access to the planning authority and those interested in the development.
Neighbour Notification and Publicity for Applications
Q35. Can a planning authority encourage developers to identify neighbours in support of the PA's new responsibility to neighbour notify? For some authorities, the centralisation and automation of services holds the risk of a dilution of local knowledge?
A35. The duty to notify must rest with the planning authority and they would need to satisfy themselves that they have carried out the requirements of the regulations in full.
Q36. Is hand delivery of neighbour notification by the planning authority an option?
A36. We have already indicated in the consultation that we consider the use of first or second class post to be sufficient for these purposes. We will give consideration as to whether we need to clarify further in guidance the other alternative methods of delivery that might also be appropriate.
Q37. How is the planning authority expected to neighbour notify if there is no building on a given plot of land?
A37. Where it is not possible for a planning authority to carry out neighbour notification because there are no premises situated on the neighbouring land to which notification can be sent, the planning authority must publish a notice regarding the proposed development in a newspaper circulating in the locality in which the neighbouring land is situated. The form of the notice is set out in Schedule 8 of the draft regulations.
Draft Regulation 23(3) provides that where a planning authority is required to publish a notice in a newspaper in accordance with regulation 23(1), the applicant shall pay the costs to be incurred by the planning authority in arranging such advertisement at the time of submitting the planning application.
Q38. Has the Government considered that, in certain rural areas, there is the potential for planning authorities to be obliged to advertise in the newspaper more often than issuing individual letters?
A38. It is possible that planning authorities in rural areas may experience the suggested situation more often that urban based authorities. However, applicants will be required to meet all such advertisement costs and therefore planning authorities should not be financially disadvantaged by these proposed provisions.
Q39. How will the definition of "neighbouring land" work when the planning application is in relation to one flat in the middle of a tenement or high-rise? 20 metres in all directions?
A39. We will consider the need to clarify in guidance the various rural and urban situations in which planning authorities may be required to undertake neighbour notification. However, as discussed in the consultation paper, we will encourage planning authorities, in guidance, to issue notices to any other such land as they consider appropriate, taking account of local circumstances and the nature of any proposed development.
Q40. Repeated neighbour notification at Local Development Plan, pre-application and post-application stages may be too onerous. Please consider transport developments - there is the potential for thousands of notices to be sent on multiple occasions?
A40. The notification of neighbours of LDP proposals was clearly signalled in the Modernising the Planning System White Paper and during the passage of the Planning Bill as a key way of front-loading the process and countering arguments for a 3rd party right of appeal. There is very little prospect of the Scottish Government drawing back from these commitments at this stage. However the Scottish Government is considering being more explicit in the final regulations and accompanying circular and guidance as to the types of LDP proposal that will require to be neighbour notified.
With reference to development management procedures, we will consider this matter further.
Q41. Concerned about resource implications around the new neighbour notification proposals. A 20 m boundary may not always be adequate - consider residents at far side of a wide road?
A41. As regards development management, we have previously acknowledged the need to increase planning fees to cover the higher costs to planning authorities resulting from the transfer of responsibility for neighbour notification. As indicated in the consultation paper, it is our proposed intention that Planning Authorities are encouraged - through guidance - to issue notices to any other such land as they consider appropriate, taking account of local circumstances and the nature of the individual application concerned. However we are not convinced that occupiers of land on the other side of a road over 20 metres wide from a proposal need have a right to be notified in all cases.
Q42. Concern at "too much detail" prescribed in the draft regulations as to the contents of neighbour notification. Too onerous to respond to handling aspects?
A42. We have previously acknowledged the need to increase planning fees to cover the higher costs to planning authorities resulting from the transfer of responsibility for neighbour notification. As indicated in the consultation paper, it is our proposed intention that Planning Authorities are encouraged - through guidance - to issue notices to any other such land as they consider appropriate, taking account of local circumstances and the nature of the individual application concerned
Q43. The information to be sent to neighbours with notification includes information on processing and development plan policies that are relevant to the application. This may not be known at this early stage. Unless there is a very tight scheme of delegation, the processing information may not be available - what should the Planning Authority do?
A43. It may be clear at an early stage whether an application is of local, major or national significance, although the specific detail of the application process may not yet be determined. Draft Regulation 22(4)(j) states that an explanation of the manner in which the application for planning permission is to be handled and the procedures which are to be followed in relation to the application should be included in the notice sent by the planning authority to identified neighbours. Where the exact processing arrangements are not certain, the explanation should allow for the different possibilities.
We will consider whether additional guidance is required in relation to the implementation of draft Regulation 22(4)(i), which provides for planning authorities to include a statement describing any proposals contained in the local development plan relating to the occurrence of development on the land in respect of which the application is made.
Q44. Will further advice be given as to how to use IT systems to assist with neighbour notification?
A44. Neighbour notification will form part of the online application forms and there will be help text to assist with the process. However, once neighbour notification becomes the responsibility of the planning authority this will be removed from the forms.
Statutory Consultees
Q45. Why is there no statutory duty on statutory consultees to engage in development management matters?
A45. The view was that a statutory duty on statutory consultees to engage wholesale in development management matters then we would remove any discretion they might have in deciding to stand back from certain types of planning applications where there was no real requirement for their input. Also, it was felt that the suggested approach might divert resources unnecessarily from those applications where greater scrutiny from consultees might be required.
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