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2. PRE-APPLICATION PHASE
BACKGROUND
2.1 The Government is seeking to encourage improved trust and more open, positive working relationships from the earliest stages in the planning process and to provide, where possible, an early opportunity for community views to be reflected. New statutory requirements have been introduced to ensure that communities are made aware of, and have an opportunity to comment on, certain types of development proposals before a planning application has been made. The regulations, described below, require that the planning applications in such cases must include a report of that pre-application consultation between applicants and communities.
2.2 Both pre-application consultation with the community and pre-application discussions with the planning authority are intended to add value at the start of the development management process by improving the quality of the proposal and allowing applicants the opportunity to amend their emerging proposals to accommodate community opinion. This will ensure that all parties are clear on the process that leads to the decision.
PRE-APPLICATION DISCUSSIONS AND PROCESSING AGREEMENTS
2.3 The Government wants to encourage the use of processing agreements with planning applications for national and major developments as set out in the hierarchy (see interpretation section above) to provide greater clarity about the timescales and processes that will take place before a determination is made on these proposals. A processing agreement (see Chapter 6 for more information) is essentially a framework for project managing a complex planning application. The pre-application stage will be the most appropriate point to conclude the terms of a processing agreement. Supporting that should be constructive pre-application discussions between planning authorities, developers, agencies and other bodies who will have to be consulted on any subsequent planning application. Such discussions are a separate activity from statutory pre-application consultation with communities, although they can inform the planning and scope of the statutory consultation activity. Such consultation may also support the preparation of the statutory design and access statement.
PRE-APPLICATION CONSULTATION ( PAC) BETWEEN PROSPECTIVE APPLICANTS AND COMMUNITIES
( Sections 35A, 35B, 35C and 39 and regulations 4 - 7)
2.4 The objective is for communities to be better informed about major and national development proposals and to have an opportunity to contribute their views before a formal planning application is submitted to the planning authority. The purposes of PAC are to improve the quality of planning applications, mitigate negative impacts where possible, address misunderstandings, and air and deal with any community issues that can be tackled. The proposals, if adjusted, should benefit from that engagement and assist the efficient consideration of applications once submitted.
2.5 PAC is an additional measure and does not take away the right of individuals and communities to express formal views during the planning application process itself. Nor does it remove the need for people who wish their views to be considered by the planning authority to make formal representations on applications. This should be emphasised by the prospective applicant during PAC. The prospective applicant is under no obligation to take onboard community views, or directly reflect them in any subsequent application. It is important for communities and others to follow their interest in a proposal through to the planning application stage, which provides the statutory opportunity for individuals to make representations on proposals before the planning authority.
Classes of development and screening
( Section 35A and regulations 4 and 5)
2.6 All applications for planning permission or for planning permission in principle under regulations 9 to 11 for national and for major developments require PAC between developers and communities. Applications for such developments will need to demonstrate compliance with the legislative requirements for PAC. The NPF and the Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009 ( SSI 2009/51) provide clarity about the range of development to be treated as national or major respectively.
2.7 A screening process is available whereby prospective applicants can seek the planning authority's view whether their proposal is a national development or a major development and therefore requires PAC. Further information on the screening process can be found in Annex B.
Proposal of Application Notice
( Section 35B and regulation 6)
2.8 Where PAC is required, the prospective applicant must provide to the planning authority a 'proposal of application notice' at least 12 weeks prior to the submission of an application for planning permission. That notice must include the following information:
i) a description in general terms of the development to be carried out;
ii) if the site at which the development is to be carried out has a postal address, that address;
iii) a plan showing the outline of the site at which the development is to be carried out and sufficient to identify the site;
iv) detail as to how the prospective applicant may be contacted and corresponded with; and
v) an account of what consultation the prospective applicant proposes to undertake (including steps in addition to the statutory minimum), when such consultation is to take place, with whom and what form it will take.
2.9 Element v) will assist the planning authority in responding to the proposal of application notice with any additional notification and consultation requirements (see paragraphs 2.12 to 2.18).
2.10 The 'description in general terms' should relate to the purpose of a proposal of application notice - an outline of the proposal's characteristics, and the identification of its category (e.g. major development). While there is scope for proposals to alter between PAC and an application being submitted, any subsequent application needs to be recognisably linked to what was described in the proposal of application notice; both prospective applicants and planning authorities need to be aware of potentially creating a situation where a very detailed or narrow descriptive content in the proposal of application notice mean that relatively minor changes could trigger the need to repeat PAC.
2.11 The submission of the proposal of application notice starts the PAC processing clock. After a minimum of 12 weeks, having carried out the statutory requirements, and any additional requirements specified by the planning authority, an applicant can submit the application along with the required written PAC report. Information in relation to the proposal of application notice must be placed on the list of applications (see paragraphs 4.36 - 4.51). There is no specified statutory maximum period between carrying out PAC and submitting the related planning application.
Additional consultation activity
(Section 35B and regulation 6)
2.12 The prospective applicant is required to indicate in the proposal of application notice what consultation, if any, they will undertake in addition to the statutory minimum. The planning authority must respond within 21 days specifying any additional notification and consultation they wish to see undertaken (including that indicated by the prospective applicant) beyond the statutory minimum, in order to make it binding on the prospective applicant. If there is no response to the proposal of application notice by the planning authority within 21 days, only the statutory minimum activities will be required.
2.13 The planning authority may, within 21 days of receiving the proposal of application notice, notify the prospective applicant of any other persons it considers must also receive a copy of the proposal of application notice and of any other consultation that must be undertaken, including the form of that consultation. In doing so, planning authorities are to have regard to the nature, extent and location of the proposed development and to the likely effects, both at and in the vicinity of that location, of its being carried out.
2.14 Additional consultation requirements should be proportionate, specific and reasonable in the circumstances. Further advice on planning community engagement activity can be found in the Planning Advice Note 81: Community Engagement - Planning With People.
2.15 Scottish Ministers expect planning authorities to develop and maintain up to date lists of bodies and interests with whom prospective applicants should consult in particular types of case. These lists should be available to prospective applicants, who can draft proposal of application notices in light of that information. They should draw from those resources as appropriate to the particular proposal and its potential impacts in setting additional requirements, and not simply send the same list of consultees in response to each and every proposal of application notice.
2.16 Prospective applicants should have a meaningful, proportionate engagement with those who can represent affected communities' views, guided by PAN 81 on community engagement, the National Standards for Community Engagement or other locally agreed or adapted framework or set of principles.
2.17 A number of tools (including those mentioned in paragraph 2.16 above) are available which provide a sound basis for prospective applicants and planning authorities to assess and respond to the need for any additional consultation requirements, as appropriate.
2.18 In responding to a proposal of application notice, and given their powers to require additional consultation, planning authorities should be as clear as they can as to their expectations of matters to be included in the PAC report. In this way, the prospective applicant will more readily be able to show that the required steps have been undertaken.
Minimum consultation activity
( Regulation 7)
Consultation with community councils
2.19 The prospective applicant must consult every community council any part of whose area is within or adjoins the land where the proposed development is situated. This includes community councils in a neighbouring planning authority. The prospective applicant must also serve on the relevant community councils the proposal of application notice.
2.20 Each local authority has at least one Community Council Liaison Officer who should be able to provide contact details for Chairs and Secretaries of community councils. Neighbouring authorities should be able to assist when adjoining community councils are beyond the boundary of the planning authority in whose area the proposal is located.
The public event
2.21 The prospective applicant is also required to hold at least one public event for members of the public where they can make comments to the prospective applicant on the proposals. This 'public event' must be advertised at least 7 days in advance in a newspaper circulating in the locality of the proposed development to enable members of community councils, representative groups and other members of the public to arrange to attend the event.
2.22 The notice for the public event must include:
- a description of, and the location of, the proposed development;
- details as to where further information may be obtained concerning the proposed development;
- the date and place of the public event;
- a statement explaining how, and by when, persons wishing to make comments to the prospective applicant relating to the proposal may do so; and
- a statement that comments made to the prospective applicant are not representations to the planning authority. If the prospective applicant submits an application there will be an opportunity to make representations on that application to the planning authority.
2.23 Prospective applicants will gain less from poorly attended or unrepresentative PAC events. For this reason, applicants should ensure that processes are put in place that will allow members of the community to participate meaningfully in any public event. It is not the intention that planning authorities will routinely have a direct role in PAC activities beyond their statutory roles in screening, responding to proposal of application notices and considering PAC reports when validating applications.
2.24 The public event should be reasonably accessible to the public at large, including disabled people. It may be appropriate for "the" public event to take place over a number of dates, times and places. Prospective applicants should ensure that individuals and community groups can submit written comments in response to the newspaper advertisement.
2.25 There is a need to emphasise to communities that the plans presented to them for a proposed planning application may alter in some way before the final proposal is submitted as a planning application to the planning authority. Even after PAC, and once a planning application has been submitted to the planning authority, communities should ensure that any representations they wish to make on the proposal are submitted to that authority as part of the process of considering the planning application.
Pre-application consultation ( PAC) reports
(Sections 35C and 39 and regulation 3)
Content
2.26 The applicant must prepare a report as to what has been done during the pre-application phase to comply with the statutory requirements for PAC and any requirements set out in the planning authority's response to the proposal of application notice. The report is to be made in writing (which may include being in electronic format).
2.27 The legislation does not specify the content of the report beyond that it should set out what had been done to effect compliance with the aforementioned requirements. However, we would suggest as a minimum that the report should:
- specify who has been consulted;
- set out what steps were taken to comply with the statutory requirements and those of the planning authority;
- set out how the applicant has responded to the comments made, including whether and the extent to which the proposals have changed as a result of PAC;
- provide appropriate evidence that the various prescribed steps have been undertaken - e.g. copies of advertisements of the public events and reference to material made available at such events; and
- demonstrate that steps were taken to explain the nature of PAC i.e. that it does not replace the application process whereby representations can be made to the planning authority.
2.28 Planning authorities must decline to determine an application where PAC requirements apply and, in their view, compliance with these requirements has not been demonstrated. Before coming to such a view the planning authority may seek additional information from the applicant. Where in this case, planning authorities decline to determine the application they are to advise the applicant of their reasons. The requirement to decline to determine may not apply where a screening statement has been issued by the planning authority saying PAC is not required (see paragraph 2.7 and Annex B).
2.29 The report must accompany an application for planning permission, planning permission in principle or further application under regulations 9 to 11, and the authority will be required to include it on Part I of the planning register along with the application, plans and drawings.
Role of PAC Reports
2.30 The purpose of the PAC report is to confirm that PAC has taken place in line with statutory minimum requirements and any further requirements set by the authority in its response to the proposal of application notice.
2.31 In terms of considering any subsequent application, the report is not likely to have a significant role, unless it identifies issues or contains information which could be considered a material consideration in terms of the 1997 Act and to which the planning authority should give weight in determining the application. Further information on what may be a material consideration is set out in Annex A to this circular.
NOTICES TO OWNERS AND AGRICULTURAL TENANTS
( Section 35, regulation 15 and schedule 1)
2.32 Prior to applying for planning permission or planning permission in principle under regulations 9 to 11, applicants should notify all persons who (other than themselves), were the owners of any of the land to which the application relates, or were agricultural tenants at the beginning of the prescribed period (in effect 21 days ending with the date on which the application was submitted). See Annex C for applications involving the working and winning of underground minerals.
2.33 Notices to owners and agricultural tenants should be in the Form set out in schedule 1 and must include the name of the applicant, the address or location and a description of the proposed development and the name and address of the planning authority which will determine the application.
2.34 The applicant must also submit a certificate with the planning application certifying whether there are any other owners or agricultural tenants and if so which of these have been notified of the proposed development. The certificate must state:
a) whether or not the land or part of the land to which the application relates constitutes or forms part of agricultural land;
and either:
b) that at the beginning of the prescribed period no person (other than the applicant) was the owner of any of the land to which the application relates or an agricultural tenant;
c) that the applicant has given notice to every person (other than the applicant) who at the beginning of the prescribed period was the owner of any land to which the application relates or an agricultural tenant; or
d) that the applicant is unable to give notice to every such person (i.e. where there are other owners and/ or agricultural tenants, he is unable to notify any or all of these people) .
2.35 A certificate issued under c) or d) above must set out the name of every person to whom notice was given and the address at and date on which the notice was given. Where d) applies the applicant must certify that he has taken reasonable specified steps to ascertain the names and addresses of those to whom he has been unable to give notice. In this situation, the planning authority will be required to publish the notification in a local newspaper once an application has been received.
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