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Scottish Planning Series Circular 4 2009: Development Management Procedures

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4. PROCESSING PLANNING APPLICATIONS

SCHEMES OF DELEGATION

( Section 43A)

4.1 New requirements are introduced under section 43A of the 1997 Act to have schemes delegating to an "appointed officer" the determination of applications for planning permission for local developments or any application for consent, agreement or approval imposed on a grant of planning permission for a local development. Powers to delegate decision making to committees or officers under the 1973 Act remain, though delegation to an officer of decision making on applications relating to local developments can only be done in accordance with a scheme of delegations made under section 43A of the 1997 Act. New statutory requirements for pre-determination hearings and referral to full council will in future limit delegation to officials in certain cases (see para 4.72).

4.2 These new schemes of delegation under section 43A link the decision on an application to a review by the planning authority rather than an appeal to Scottish Ministers. In future, where a decision has been or is to be taken by an "appointed officer" instead of by the planning authority under a new section 43A scheme of delegation or in cases where the applicant wishes to challenge the failure to determine an application which falls within the scope of the planning authority's adopted section 43A scheme of delegation, the route to challenge is to the local review body.

4.3 The procedures for adopting new schemes of delegation and for carrying out local reviews are set out in the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2008 ( SSI 2008/433) and its accompanying circular (7/2009).

VALIDATION AND ACKNOWLEDGEMENT OF APPLICATIONS

( Regulations 9 - 12, 14 and 17)

4.4 It is for the planning authority to check whether the application meets the requirements of regulations 9, 10, 11 or 12 as appropriate. The administrative checking of applications in this regard should be carried out as soon as possible but certainly within 5 working days of receiving the application. Since neighbour notification will follow the validation process, it is important that there is the minimum possible delay to completion of the administrative processes supporting registration of planning applications.

4.5 With reference to the PAC report and the design statement or design and access statement which will be required to accompany some applications, the crux for the purposes of validation is whether they meet the statutory requirements on form and content.

4.6 With design statements and design and access statements, the quality of the information submitted in order to meet the statutory requirements is to be addressed when considering the application rather than as part of the validation process.

4.7 With PAC reports, the process of validation is not about whether the applicant might have done more to respond to any comments made. Similarly, qualitative judgements on how a public event was run are not issues for validation unless the planning authority concludes that events were so ineffectual that the applicant has failed to carry out the required step or steps (see Annex E on declining to determine applications).

4.8 The validation date from which the time period for determination runs is the date when the final piece of information required by Regulation 9,10, 11 or 12 as appropriate has been received.

4.9 The planning authority is required to acknowledge receipt of the application once the final piece of information is received. That acknowledgement must:

  • include an explanation of the timescales within which the planning authority is to give notice to the applicant of its decision on the application; and
  • inform the applicant of their rights to appeal to the Scottish Ministers or to require a local review of the planning authority's decision or failure to make a decision.

(see the section on Time Periods for Determination paragraphs 4.81 - 4.85 below)

4.10 This acknowledgement should also include the date of receipt of the last item of information specified. This is required so the applicant is clear about when decisions should be issued or when appeals can be made or local reviews sought on the grounds of non-determination.

4.11 Where an initial application does not contain sufficient information to meet validation requirements the planning authority is required to notify the applicant of the information that is necessary to validate the application. Once that information is received, then an acknowledgement must be sent.

4.12 In acknowledging receipt of applications or requesting missing information it is also open to authorities at the same time to request any information beyond the statutory minimum which is required to determine the application. However, it should be clearly stated what information is required to comply with validation requirements and what is additional information required to determine the application.

4.13 Planning authorities are not obliged to process applications where there is a failure on the part of the applicant to comply with the requirements on content in regulations 9 to 12 and in such circumstances the time period for determining the application will not start.

DECLINING TO DETERMINE APPLICATIONS

( Section 39)

4.14 Section 39 sets out the circumstances in which planning authorities may and, in some cases, must decline to determine an application, even where the information required by regulations 9 to 12 has been submitted. There is no specific time limit as to when these powers can be exercised. However, the expectation would be that their use would be considered upon receipt of an application. See Annex E for further details.

NEIGHBOUR NOTIFICATION AND PUBLICITY

( Regulation 18)

4.15 Planning authorities are required to notify those with an interest in "neighbouring land" of a planning application. Neighbour notification requirements only apply to applications for planning permission, planning permission in principle and applications for approval of matters specified in conditions attached to planning permission in principle. The term "neighbouring land" is defined in regulation 2 4 as:

"an area or plot of land which, or part of which, is conterminous with or within 20 metres of the boundary of the land for which the development is proposed."

4.16 The boundary of the land for which development is proposed falls to be determined in the circumstances of the case, but need not be the property boundary. For example, in the case of farms or estates where a building is being erected in one part of the farm or estate it is not the whole farm or estate that is being developed so it would not make sense to use the boundary of said farm or estate as the boundary of the land for which development is proposed. In the case of a specific site for the purposes of a supermarket, industrial or business premises, then the boundary of that specific site will normally be the boundary of the land for which development is proposed. With most private houses in urban areas for example it will probably be the property boundary. In practice this boundary will normally be the red line on the application location plans.

4.17 With regard to the actual neighbouring land, the premises on neighbouring land to which neighbour notification should be sent do not have to be within 20 metres of the boundary of the land for which development is proposed. Such premises can be elsewhere on the area or plot of land which, or part of which, is conterminous or within 20 metres of said boundary. In using the term "area or plot", the aim is to identify this as some discrete piece of land. Where such neighbouring land consists of open fields or open countryside or a forest with no obvious premises on it, then an advert would be necessary.

4.18 Planning authorities should carry out neighbour notification land as soon as possible after the application has been validated. This is to ensure that, given the minimum period of 21 days within which individuals can make representations, the planning authority can determine applications with the minimum of delay.

4.19 A single notice must be sent to the "Owner, Lessee or Occupier" at the address of the neighbouring land. Under regulation 18(2)(b), where there are no premises on the neighbouring land to which the notification can be sent, the planning authority must place a notice in a local newspaper (see paragraphs 4.23 - 4.29 below). Relevant planning authorities are also required to give notice of applications to the Cairngorm National Park Authority where the proposed development is in the area of the Park Authority.

4.20 The notices sent to neighbours must include the following information :

  • the date of the notice [Notices should be dated and sent on the same date where possible];
  • the name of the applicant and the name and address of any agent;
  • the planning authority reference number for the application;
  • description of the development;
  • the postal address of the site or, in the absence of such an address, a description of the location of the land;
  • how the application, plans, drawings and other related documents can be inspected;
  • where and by when (at least 21 days after the date the notice is sent) representations can be made;
  • location plan showing position of the proposed development in relation to neighbouring land;
  • statement of where more information can be obtained on planning application procedures;
  • in relation to applications which require PAC a statement that despite the fact that comments may have been made to the applicant prior to the application being made, persons wishing to make representations in respect of the application should do so to the planning authority in the manner indicated in the notice.

4.21 On the last point, the requirement in regulation 18(3)(j) is to make clear that comments made to developers in the pre-application stage are not representations to the planning authority.

Notification of minerals applications

4.22 See Annex C for issues relating to the notification of minerals applications.

Publication of an application by the planning authority

(Regulation 20 and schedule 4)

4.23 A notice must be published in a local newspaper in the form set out in schedule 4 where:

  • it is not possible for the authority to carry out neighbour notification on an application under regulations 9 to 12 because there are no premises to which the notification can be sent;
  • in relation to an application for planning permission or planning permission in principle (regulations 9 to 11), an applicant has certified under regulation 15 that it has not been possible to notify all owners and agricultural tenants of the proposed development;
  • the application is made under regulations 9 to 11 and relates to a class of development specified in Schedule 3; or
  • the application is made under regulations 9 to 11 and is for development which is contrary to the development plan.

4.24 Where a proposed development is found to relate to more than one of the categories listed above, the planning authority is not required to publish a further notice. Similarly where an application is advertised under sections 60(2)(a) and 65(2)(a) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (publicity for applications affecting conservation areas and listed buildings), there is no need to advertise under regulation 20 of the DMR.

4.25 As specified in Schedule 4, the published notice must provide a description of the location and nature of the proposed development and information on how representations may be made to the planning authority.

4.26 As with notices to neighbours, where applications have been subject to PAC requirements, advertisements must also explain clearly that, despite any comments made to prospective applicants during PAC, any formal representations on the application should be made directly to the planning authority within the prescribed time period.

4.27 Published notices must also include a date by which representations should be made to the planning authority. This date or period should be not less than 14 days from the date on which the notice was published.

4.28 In order to determine planning applications within the prescribed 2 or 4 months from the validation date, planning authorities should arrange for notices to be published as soon as possible, and certainly within 14 days of the validation date.

4.29 Published notices should be clear, concise and fit for purpose.

General issues regarding publicity

4.30 To avoid confusion, it may be helpful to align the dates for representations to be made in response to published notices and those sent to identified neighbours. However, the aligned date should not be before the prescribed minimum periods of 14 days (advertisements) and 21 days (neighbour notification) for making representations.

4.31 In acknowledging representations, planning authorities should make people aware of their policy in relation to the publication of comments.

4.32 Where possible, notices to identified neighbours should be hand delivered or sent by first class post, since the use of second class mail could result in recipients having a significantly reduced period within which to make representations.

4.33 Planning authorities should keep a record of details of the neighbour notification, advertising and posting of site notices carried out in relation to applications. This is for the purposes of transparency and to assist in any further notification, e.g. where an environmental statement is subsequently submitted under the EIA Regulations or to assist the Local Review Body in identifying whether it had to undertake any of these requirements.

Recovering costs of publicising applications

4.34 The Town and Country Planning (Charges for Publication of Notices) (Scotland) Regulations 2009 provide for the recovery from the applicant of costs of publicising planning applications required by regulation 20. The regulations allow that the cost of publication of a notice can be divided among the applications to which the notice relates.

4.35 The planning authority must write (electronic communication is allowed where the applicant has agreed to such communication) to the applicant advising them of the costs and the regulations require the applicant to pay within 21 days. Under the 1997 Act, the planning authority cannot determine the application until these costs have been recovered from the applicant.

LISTS OF APPLICATIONS

( Section 36A and regulations 21 - 23)

4.36 The DMR retains the requirements for planning authorities to retain a Register and to prepare weekly lists. However, planning authorities will be additionally required to provide a list of extant applications which is to be accessible to the public.

List of extant applications

( Regulation 21 and 22)

4.37 Regulations set out that the list of applications to be kept by the planning authority is to be kept in two sections. The first section is for:

  • applications for planning permission and planning permission in principle;
  • applications for such permission made to the Scottish Ministers under section 242A (urgent Crown development) of the 1997 Act for development in the planning authority's area; and
  • applications for approval of matters specified in conditions attached to a planning permission in principle.

4.38 The information to be kept on this section of the list is:

(a) the reference number given to the application by the planning authority, or as the case may be, the Scottish Ministers;

(b) the site location;

(c) the name of the applicant and agent (if any);

(d) a description of the proposed development ; and

(e) the date of expiry of the period allowed for representations in any neighbour notification or publication of the application.

4.39 In addition to (a) to (e) above:

  • in relation to applications for approval of matters specified in conditions, a description of the matter in respect of which the application is made.
  • in relation to applications made to the Scottish Ministers for urgent Crown development, an identification of the application as one made to Scottish Ministers and a statement that representations may be made to the Scottish Ministers and where any such representations should be sent.

4.40 The second section relates to proposal of application notices received by the planning authority in relation to requirements for PAC. This section is to include the information specified in paragraphs (a), (b) and (d) above and-

  • details as to how the prospective applicant may be contacted and corresponded with;
  • the earliest date on which an application for planning permission in respect of the development may be submitted to the planning authority (minimum of 12 weeks from submission of the notice); and
  • where the planning authority give notice to the prospective applicant about additional pre-application consultation, a specification of any additional persons to whom a proposal of application notice is to be given and any additional consultation to be undertaken.

4.41 The Regulations only require the list to set out the authority's requirements which go beyond the statutory minimum. However, the planning authority may wish also to consider providing information on the statutorily required public event, should such information be available.

4.42 Where the Scottish Ministers have notified an application for urgent Crown development under section 242A to the planning authority, the date referred to at (e) in paragraph 4.38 will be provided by Ministers.

4.43 The list shall also contain a statement as to how further information in relation to an application may be obtained from the planning authority. The list is required to be updated on a weekly basis to remove determined applications and proposal of application notices that are no longer current, i.e. an application is submitted, the prospective applicant indicates no application will be made or 12 months has elapsed since notice was given.

4.44 Planning authorities are to make the list of applications available on the internet. However, in order to ensure that the list is made more widely available to the general public, it should be accessible at its principal office and public libraries within its district. How the list is made available at these offices is a matter for the planning authority (e.g. hard copy or electronic version).

4.45 The requirement to maintain the list only relates to applications and notices received by the planning authority on or after 3 August 2009 5.

Weekly lists

(Regulation 23)

4.46 The weekly list shall contain all applications made to the planning authority under regulations 9 to 12 and to Scottish Ministers within the previous week. In addition to the relevant information requirements, the weekly list shall contain a statement as to how further information relating to the application may be obtained from the authority.

4.47 The "weekly list" is to contain the same information as that on the list of extant applications.

4.48 It will be for planning authorities and individual community councils to consider the most appropriate way of disseminating this information, perhaps electronically.

4.49 Community councils may request formal consultation on particular applications. Further information on consultation arrangements is set out below.

4.50 The weekly list is to be made available for inspection at the principal office of the planning authority and at public libraries in their district. In addition, weekly lists of applications received are to be sent to public libraries and community councils.

4.51 Planning authorities may also wish to consider if there are other persons who should be provided with the weekly list (such as elected representatives). For example, PAN 77: Designing Safer Places notes that it is good practice to ensure that the Architecture Liaison Officer has access to the authority's weekly list of planning applications.

PLANNING REGISTERS

( Section 36, regulation 16 and schedule 2)

4.52 Schedule 2 to the DMR sets out the requirements for registering entries on applications for planning permission and planning permission in principle (paragraphs 1 to 4 of Schedule 2) and for certificates of lawful use or development (paragraph 5 of Schedule 2). Paragraphs 6 and 7 of Schedule 2 contain provisions applicable to registers generally. Paragraph 1 of Schedule 2 requires the register of applications for planning permission to be kept in two parts.

Part I of the Register

4.53 Information on Part I of the register is to relate to those applications which have not been finally disposed of. Part I is to contain the following information:

  • a description of the development to which the application relates;
  • the name and contact address of the applicant or, where an agent is acting on behalf of the applicant, the agent;
  • the postal address of the land to which the development relates, or if the land in question has no postal address a description of the location of such land;
  • copies of -
    plans and drawings;
    any design or design and access statement; and
    any pre-application consultation report, submitted in respect of the application; and
  • particulars of any direction given under the 1997 Act or the DMR in respect of the application.

4.54 Separate provisions arising from the EIA Regulations require that the register contains relevant additional information where the development is subject to EIA (see circular 8/2007 on EIA procedures for further information).

Part II of the Register

4.55 Part II of the register relates to applications which have been determined. This is to contain:

(a) in respect of all applications for planning permission (including planning permission in principle) and approval of matters specified in conditions attached to planning permission in principle determined by the planning authority (other than following a review of the case by the Local Review Body)-

(i) a copy of the decision notice;

(ii) copies of any plans considered by the planning authority in determining the application; and

(b) a copy of any environmental statement submitted with respect to the application; and

(c) in respect of all applications for planning permission (including planning permission in principle) determined by the planning authority (other than following a review of the case by the Local Review Body), a Report containing the information mentioned in paragraph 4 of Schedule 2; and

(d) a copy of the decision of the Scottish Ministers in respect of an application, on appeal or on called-in for Ministers' determination under section 46 of the 1997 Act;

(e) a copy of the decision notice of the planning authority as to the manner in which a local review of the case by a Local Review Body has been dealt with and copies of any plans considered by the planning authority in determining the review; and

(f) where an application is deemed to be refused under regulation 7(5) of the EIA Regulations, a statement to that effect including the date on which the application is deemed to be refused 6.

4.56 The amount and quality of planning information available online is being increased on planning authority websites making the planning process more transparent and accessible. ePlanning allows the progress of applications and appeals to be tracked, comments to be made and decisions better understood. For developers and communities this means greater confidence and certainty.

Reports of handling

(Schedule 2)

4.57 For those applications for planning permission or planning permission in principle determined by the planning authority other than on local review, the register should contain a copy of a report on the handling of the application. Planning authorities are to prepare such a report on each application which is to contain a range of information relevant to the processing of the application.

4.58 The requirements are:

(a) a statement of the number of representations made in respect of the application and a summary of the main issues raised by such representations;

(b) details of the authorities and persons consulted by the planning authority in respect of the application and a summary of the responses made by such authorities or persons;

(c) where in respect of the proposed development-

(i) an environmental statement was submitted;

(ii) an appropriate assessment under the Conservation (Natural Habitats &c.) Regulations 1994 was carried out;

(iii) a design statement or a design and access statement was submitted; or

(iv) any report on the impact or potential impact of the proposed development (for example the retail impact, transport impact, noise impact or risk of flooding) which was submitted in connection with the application,

a summary of the main issues raised by such statement, assessment or report.

(d) a summary of the terms of any planning obligation entered into under section 75 of the 1997 Act in relation to the grant of planning permission for the proposed development;

(e) where a direction has been made, by the Scottish Ministers under regulation 30, 31 or 32, details of such direction; and

(f) details of the provisions of the development plan and any other material considerations (beyond those already included in the report under the above entries) to which the planning authority had regard in determining the application.

4.59 The format and structure of the report is a matter for the planning authority. In many cases the contents of the report should be similar to reports currently prepared for planning committees. Reports of handling should be proportionate to the nature, scale and complexity of the proposal.

Certificates of lawful use or development

4.60 Schedule 2 lists the information that shall be kept by the planning authority in respect of every application for a certificate under section 150 (certificate of lawfulness of existing use or development) or 151 (certificate of lawfulness of proposed use or development) of the 1997 Act. It also requires the planning authority to place information on the register where there has been an appeal to the Scottish Ministers in relation to such certificates.

Provisions applicable to registers generally

4.61 The register shall include an index which shall be in the form of a map. Planning authorities should keep the register at its principal office. However, the authority may also keep copies of elements of its register relating to land in a part of a district at a place in or convenient to that area of its district.

4.62 With regard to where the register is kept electronically, the authority may make it available for public inspection on a website maintained by the authority for that purpose.

4.63 Planning authorities are not obliged to keep the contents of the register on their website. When dealing with applications where there are potentially security sensitive issues raised by plans and drawings or other information, planning authorities should consider restricting web access to such material so that anyone wishing to view such material has to attend the planning office to view it and there is some opportunity to monitor access. Where information which raises issues of national security is involved, then in those circumstances information will be subject to more severe restrictions. A forthcoming circular on Crown Development will say more about procedures relating to such national security sensitive information.

Timeframe for placing material on the Register

4.64 Whilst no statutory timeframe is set out, the following timings are recommended:

  • The information on applications made but undetermined should be placed on Part I of the register on or before the earliest date on which notice is given in respect of the application under the requirements of the DMR on neighbour notification and the advertising of applications;
  • Any direction given under the 1997 Act or the DMR in relation to the application should be entered on Part I of the register within 7 days of receipt;
  • The information should be placed on Part II of the register within 7 days of a decision being issued by the planning authority or received from the Scottish Ministers.

REQUESTING FURTHER INFORMATION ON APPLICATIONS

( Regulation 24)

4.65 Planning authorities can require applicants to provide any additional information, beyond that required by regulations on the content of applications, in order to deal with the application. The time period for determining the application under regulation 26 will continue to run. Ideally, such information requirements should be discussed prior to an application being submitted so that as far as possible the application as submitted contains the information necessary to determine the application. Processing agreements provide a vehicle for this in relation to major or national developments.

VARIATION OF APPLICATIONS

( Section 32A)

4.66 Applications for planning permission (including planning permission in principle) can be varied after submission with the agreement of the planning authority. However, if the planning authority consider the variation would result in a substantial change in the description of the development, they are not to agree to it. Another application would be required to take forward such a variation. It is for the planning authority to decide what notice they give to other parties regarding any such variation.

4.67 The terms of an application cannot be varied after it has become the subject of an appeal to Scottish Ministers.

CONSULTATION ON APPLICATIONS

( Regulation 25 and 36 and schedule 5)

4.68 The DMR contains the provisions for consultation by the planning authority on applications for planning permission and planning permission in principle. They also provide that the Scottish Ministers can direct that planning authorities must consult with other authorities, bodies or persons on a particular case or class of case before planning permission can be granted. Statutory consultees may (except regarding consultation in relation to major hazards) write to a planning authority to indicate that consultation with them is not required on a particular case or class of case or on development in a particular area or areas and the planning authority will not be obliged to consult on such cases. Regulation 36 contains specific requirements for consulting the Cairngorms National Park Authority.

4.69 The planning authority must give consultees at least 14 days to respond before they determine the application. With national or major developments, suitable timescales should be agreed in a processing agreement although such timescales cannot be less than the statutory 14 days. Where a consultee fails to respond within the timescale the planning authority is not obliged to await a response. However, planning authorities will wish to consider the potential impact of proceeding without the views of a consultee.

4.70 As well as the provisions in the Regulations, requirements for consultation on planning applications are also set out in directions contained in Scottish Government circulars.

PRE-DETERMINATION HEARINGS

( Section 38A and regulation 27)

4.71 Pre-determination hearings are required in certain cases as part of the enhanced scrutiny measures. The changes are aimed at making the planning system more inclusive, allowing the views of applicants and those who have made representations to be heard before a planning decision is taken. The planning authority has discretion over how hearings will operate in its area.

4.72 The opportunity to attend pre-determination hearings must be provided in respect of applications for planning permission and planning permission in principle for major developments where they are significantly contrary to the development plan 7, and in respect of national developments.

4.73 The planning authority must give the applicant and people who submitted representations to them in respect of the application an opportunity of appearing before and being heard by a committee of the authority. The 1997 Act allows the planning authority to specify the procedures around arranging and conducting hearings. This includes ensuring the matters discussed at a hearing are relevant, efficient and avoid repetition. Attendance, beyond those who have a right to appear before and be heard by the committee, is to be such as the authority consider appropriate. Further guidance on pre-determination hearing procedures is contained in Annex F.

Major developments which are significant departures from the development plan

4.74 Planning authorities are best placed to balance the range of policies and proposals and decide whether a development does or does not accord with the development plan, and are obliged to do so as part of their assessment of planning applications.

4.75 With regard to pre-determination hearings required under section 38A, authorities need to consider whether any departure from the plan is "significant". While this judgement will lie with the planning authority, Scottish Ministers' general expectation is that this applies where approval would be contrary to the vision or wider spatial strategy of the plan.

REFERRAL OF APPLICATIONS TO FULL COUNCIL FOR DECISION

4.76 In order to add further transparency and accountability to the decision-making framework, section 14(2) of the Planning etc (Scotland) Act 2006 amends the Local Government (Scotland) Act 1973 to the effect that cases in which an opportunity to attend a pre-determination hearing must be provided under section 38A of the 1997 Act will also have to be decided by the full council.

4.77 Authorities' administrative arrangements will need to adapt to the requirement to convene full councils to make the decisions on these developments. This may include aligning full council meetings with relevant committee meetings. Members should receive the necessary training and advice to enable them to discharge their new functions.

NOTIFICATION TO MINISTERS

4.78 Directions contained in circulars mentioned in paragraph 4.70 and in Planning Circular 3/2009: Notification of Planning Applications set out the instances when planning authorities should notify Ministers of planning applications. Where an application is subject to requirements on pre-determination hearings and is of a category set out in one of the above Directions, then notification of applications that the planning authority are minded to grant, should be made following the decision of the full council.

4.79 Regulation 32 enables Scottish Ministers to direct planning authorities to consider attaching conditions when granting planning permission. We envisage this power being used where applications have been notified to Scottish Ministers and where call-in of an application would not be considered necessary by Ministers if a condition, which the planning authority had not previously proposed, were to be attached to the consent.

4.80 The effect would be that the planning authority could proceed to grant planning permission if, having considered the matter, the authority (i) informs Scottish Ministers that it has decided to impose such a condition, or (ii) convinces Ministers that the condition is not necessary. This could prevent unnecessary delays in the planning process, where any matter of concern to Ministers can be resolved without the need for an application to be called in.

TIME PERIODS FOR DETERMINATION

(Regulation 14 and 26)

4.81 The planning authority has 4 months to determine applications for planning permission for national developments or major developments and 2 months to determine applications for planning permission for local developments. Applications for approval of matters specified in conditions attached to planning permission in principle are subject to a 2 month time period. These time periods run from the date the last piece of information required by the regulations on content of applications is received, i.e. the validation date.

4.82 The 2 month time period for determining applications also applies where an applicant seeks the approval, consent or agreement of the planning authority as a result of a condition attached to a planning permission. While no formal application is required under the DMR, applicants still have a right to have a response within the specified time period and, as appropriate, a right to appeal or to seek a local review of the planning authority's decision or its failure to issue a decision.

4.83 There are also requirements on planning authorities not to determine applications before the end of periods allowed for representations to be made. These periods are those in relation to neighbour notification, site notices for underground minerals applications, advertisement in local newspapers and notices in relation to applications affecting conservation areas or listed buildings.

4.84 Where an application is subject to environmental impact assessment, the EIA Regulations amend the time periods to the effect that a 4 month period for determination applies. Also, that time period does not start until such time as an environmental statement, as defined in the EIA Regulations, has been submitted to the planning authority, assuming that is later than the validation date.

4.85 Where the provisions at regulation 26(3)(b) prevent the planning authority from granting permission, this does not alter the period for making an appeal or seeking a review on the grounds of non-determination of the application - see paragraphs below.

Local reviews

4.86 Once a decision is issued on an application for a local development where the application was delegated in accordance with a scheme of delegation the applicant can seek a local review of the decision. This must be done within 3 months from the date of the decision notice.

4.87 Where such an application is not determined within the 2 months (or 4 months on Schedule 2 EIA cases) for determining the application, the applicant has 3 months from the end of that period within which to seek a local review on the grounds of non-determination of the application. If the review body does not conduct a review within 2 months from the date on which the applicant seeks the review, there is a right of appeal to the Scottish Ministers.

4.88 In these local review cases, the right to seek a review on the grounds of non-determination will in effect lapse after 3 months running from the end of the 2 month period for determining the application. The applicant would, however, be able to seek a review of the decision on the application once it is issued.

4.89 These procedures for local reviews also apply to applications for approval of matters specified in conditions in relation to planning permission in principle (or other applications for approval, consent or agreement sought as a result of a condition on planning permission) which have been delegated under a section 43A scheme of delegation on the basis that they relate to local developments. Reference should also be made to the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2008 ( SSI 2008/433) and its accompanying circular (7/2009).

Appeals to Ministers

4.90 In any other case (e.g. a local development not delegated under section 43A, a national development or a major development), the applicant has a right of appeal to the Scottish Ministers against the decision of the planning authority on the application. Such an appeal must be made within 3 months of the date of the decision notice.

4.91 Where such an application is not determined within the appropriate 2 month or 4 month time period, the applicant may appeal to Ministers within 3 months from the end of the period or, alternatively, may await a decision by the planning authority - following which the applicant can still lodge an appeal against the terms of that decision.

4.92 The applicant and planning authority can agree in writing an extension to the 2 or 4 month period, during which the right of appeal on the grounds of non-determination would not apply. In the absence of a decision after the agreed extension, the applicant would have 3 months in which to appeal on the grounds of non-determination, or, again, could await the final decision.

DECISION NOTICES

( Regulation 28)

4.93 With regard to applications for planning permission or for approval of matters specified in conditions attached to planning permission in principle or any other consent, agreement or approval required by a condition attached to planning permission (i.e. including those that do not require a formal application under regulations 9 to 12, the planning authority, within the prescribed time periods for determining the application (see paragraph 4.81 - 4.85 above) must:

(a) Provide a decision notice to the applicant or their agent; and

(b) Notify every person who made written representations (and provided an address, including an e-mail address) on the application of their decision and where a copy of the decision notice is available for inspection.

4.94 Where 3 or more people have made representations in a single document, the planning authority is only obliged to notify the person who sent the document, where the planning authority can readily identify that person from the document. Where that is not possible, the planning authority would only be required to notify the first named person on the document for whom an address is provided. Again, reference to address can be read as including an e-mail address.

The contents of the decision notice

( Section 43(1A), regulation 28 and schedule 6)

4.95 Section 43(1A) of the 1997 Act requires the planning authority to include in each notice issued to an applicant:

  • the terms of the planning authority's decision,
  • any conditions to which that decision is subject, and
  • the reasons on which the authority based that decision.

4.96 Additionally, the decision notice to the applicant or agent on applications for planning permission or planning permission in principle must include:

  • General Information - a description of the proposed development (including a description of any variation to the original proposal agreed with the applicant under section 32A of the 1997 Act); a description of the location including a postal address (where applicable); and the reference number of the application. The notice must also include identification of the plans and drawings showing the proposed development irrespective of whether the application has been approved, approved subject to conditions or refused.
  • Duration of planning permission - see paragraphs 4.100 - 4.106. Where a planning authority has directed that different time periods to those in sections 58 and 59 should apply, then reference to the effect of such a direction must be included in the decision notice.
  • Section 75 agreement - where such an agreement is to be entered into, the decision notice must indicate where the terms or a summary of such terms can be inspected.

4.97 Decision notices on applications for approval of matters specified in conditions attached to planning permission in principle shall, in addition to the minimum set out in paragraph 4.95 above, include:

  • a description of the matter in respect of which approval, consent or agreement has been granted, or as the case may be refused;
  • the reference number of the application; and
  • the reference number of the application for planning permission in respect of which the condition in question was imposed.

4.98 Where a decision on any application is made to refuse or approve subject to conditions, the decision notice must be accompanied by one of the following Forms contained in schedule 6:

  • Form 1 - where any subsequent appeal would fall to be determined by the Scottish Ministers; or
  • Form 2 - where the decision has been undertaken by a person appointed under a scheme of delegation prepared under section 43A(1) and could therefore be subject to review by the planning authority.

NOTICE OF REQUIREMENTS FOR NOTICES

( Sections 27A, B and C and regulations 37 and 38)

4.99 Paragraphs 5.1 to 5.12 below describe requirements for developers to submit notices of initiation of development and of completion of development to the planning authority and, in certain cases, have a notice on-site during development. Planning Authorities are required under the 1997 Act, when granting planning permission, to give applicants notice of the requirement for a notice of initiation of development (it also makes sense to advise them of the requirements for notice of completion of development and, where appropriate, for on-site notices). The decision notice would be an appropriate mechanism for giving the applicant such notice.

DURATION OF PLANNING PERMISSION

4.100 The following paragraphs set out the statutory default time periods on duration of planning permission and the powers for planning authorities to set alternative time periods. Planning authorities should consider carefully the nature of the development and issues such as the prevailing economic climate and reach a view whether the statutory default time limits are appropriate in the circumstances of the case or whether they should specify a more suitable period.

Planning Permission

( Section 58)

4.101 Section 58(1) specifies that planning permission will expire after 3 years from the date on which it is granted unless the development to which it relates has been started.

4.102 The planning authority may direct that a longer or shorter period than 3 years may apply. Although these time periods are not a condition to the planning permission, it is open to the applicant to appeal to the Scottish Ministers against, or seek a local review by the planning authority of, the 3 year time period, or any different period directed by the planning authority, as if it were such a condition.

4.103 Whilst there is no form for such a direction, planning authorities may wish to consider writing to the applicant citing the relevant powers and specifying the time periods for the duration of permission.

Planning Permission In Principle

( Section 59)

4.104 Unless development is started within 2 years from the grant of the last approval of matters specified in conditions attached to the planning permission in principle, the planning permission expires.

4.105 Application for such approval must be made within 3 years from the grant of planning permission in principle, or, if later, within 6 months from when an earlier approval for the same matters was refused or dismissed on appeal. Only one application for approval of matters specified in conditions can be made after 3 years from the grant of planning permission in principle.

4.106 The planning authority can direct that different time periods apply in relation to the 3 year period for making an application for approval or the 3 year period after which only one more application for approval can be made. The authority can also direct that a different time period applies for the 2 year period after the final approval is given and within which development must be started. An applicant can, as appropriate, appeal to the Scottish Ministers against, or seek a local review from the planning authority of, the statutory time periods or those substituted by direction by the planning authority.

MARINE FISH FARMING

( Regulation 35)

4.107 This Regulation applies the DMR to applications for marine fish farming development subject to certain modifications.

4.108 Regulation 7 is modified so that advertising of public events for pre-application consultation is required in the district of the planning authority for the marine planning zone in which the marine fish farm development is proposed, rather than in the locality in which the proposed development is situated.

4.109 Regulation 9 on the content of planning applications is amended so that the requirement to give the postal address of the site or a description of the location of the land is modified to require a description of the location of the development. Similarly, the requirement to provide a plan sufficient to identify the land to which the application relates and neighbouring land is modified to a plan sufficient to identify the location of the development.

4.110 The requirements in regulation 9 for a design and access statement are also modified to the extent that a design statement only would be required for marine fish farming developments and then only those which are major developments or which are a local development in a World Heritage Site, National Scenic Area or within the site of a scheduled monument.

4.111 Regulations 10 (Applications for Planning Permission in Principle), 18 (Notification by the Planning Authority) and 38 (Display Notices) are omitted in relation to marine fish farming developments.

4.112 Regulation 20 (Publication of application by the planning authority) is modified to the effect that all marine fish farm development applications require to be advertised (given the lack of neighbour notification).

4.113 Schedule 5 on consultation is modified to refer to community councils whose area is adjacent to the marine planning zone in which the proposal is located, rather than community councils in whose area the proposal is located.

4.114 Regulation 35(7) makes clear that where an application relates in part to marine fish farm development and in part to other development, the modifications apply only for the purposes of that application to the extent to which it relates to marine fish farming.

CAIRNGORMS NATIONAL PARK

( Regulation 36)

4.115 Regulation 36(1) modifies the validation date under regulation 14 to the date on which an application is called in by the Cairngorms National Park Authority. Consequently the time periods for determination of the application under regulation 26 run from this later date.

4.116 The planning authority is to notify the National Park Authority within 5 days beginning with the validation date where an application for development in the area of the Park Authority is submitted.

4.117 The planning authority is required to consult the National Park Authority where it believes the development which is the subject of the application is likely to affect land in the area of the park.

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Page updated: Friday, July 3, 2009