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SCHEMES OF DELEGATION
CONTENT
8. Planning authorities currently operate schemes of delegation under provisions in the Local Government (Scotland) Act 1973. These powers enable local authorities to delegate a wide range of decisions to officers and are unchanged by the terms of the 2006 Act. The 2006 Act introduced a new, additional, scheme of delegation which is intended to support an efficient planning process for applications for planning permission within the category of "local developments". The new section 43A schemes of delegation apply to applications for planning permission, or any application for consent, agreement or approval required by condition imposed on a grant of consent for a "local development". The section 43A scheme of delegation is intended to be the sole means of delegating applications for local developments. Only delegated decisions from the category of local developments will attract the new review procedures.
9. Section 43A(1) of the Act requires the planning authority to prepare a scheme of delegation as soon as practicable by which any planning applications for local developments can be determined by a person appointed by the authority instead of by the authority. The scheme's main role is to set out the classes of "local developments" which rather than having to be determined by members would be suitable for delegation to an appointed person - the scheme itself does not have to appoint persons to determine applications but is to set the framework by which applications are determined by appointed persons.
10. Section 43A(4) provides that Regulations may set out the form, content and procedures for preparing and adopting a scheme of delegation. These details are set out in the Town and Country Planning (Schemes of Delegation and Local Review Procedure)(Scotland) Regulations 2008 ( SSI 2008/433).
11. Regulation 3 provides details of the content of the new schemes of delegation. It will largely be for planning authorities to determine the circumstances in which the determination of an application is to be delegated to an appointed person; the Regulations provide extensive scope for them to do so. Regulation 3(1) requires the scheme to describe the classes of development to which the scheme will apply and to explain with respect to every class which applications may be determined by an appointed officer. These are classes within the category of local development which authorities can develop to tailor the scheme to their own circumstances.
12. Where an application may only be determined by an appointed officer in particular circumstances the scheme should set these out. Local authorities can tailor their scheme of delegation to suit their local circumstances and administrative procedures. This could include specifying in the scheme where delegation is restricted because of levels of public representation, objections from statutory consultees, where member(s) advise a particular application should be dealt with at committee rather than by the appointed officer, or any other circumstances the authority wish to prescribe.
13. Regulation 3(4) requires that a scheme of delegation should include provision preventing an appointed officer from determining an application for planning permission where the application is made by the planning authority or a member of the planning authority or where the planning authority have an ownership or financial interest in the land.
14. Apart from the circumstances set out in regulation 3(4) it will be for planning authorities to decide what other, if any, restrictions to apply to the scheme of delegation. This is consistent with the Government's view that there should be flexibility to enable planning authorities to develop clear schemes of delegation appropriate to local circumstances.
15. Notwithstanding the terms of the scheme of delegation and any restrictions it places on delegation, section 43A(6) states that the planning authority may if it thinks fit, decide themselves to determine an applications which would otherwise fall to be determined by an appointed person. Any such decision must include a statement of the reasons for which it has been taken, and a copy of the decision is to be served on the applicant.
DELEGATION UNDER POWERS FROM THE LOCAL GOVERNMENT (SCOTLAND) ACT 1973
16. Section 43A only applies to delegation of the determination of applications relating to local developments. As set out above at paragraph 8, local authorities' powers to delegate under the Local Government (Scotland) Act 1973 are in relation to other applications unchanged by the terms of the 2006 Act. Planning authorities can use these wider powers to delegate applications which are not eligible for inclusion in the section 43A scheme of delegation such as other types of applications eg for listed building consent, conservation area consent, consent to display adverts, or hazardous substances consent. These other applications for consent, retain the existing right of appeal to Scottish Ministers, regardless of whether they have been determined by officers under delegated powers or by members of the planning authority. Local authorities could also delegate decisions on major developments which are not significantly contrary to the development plan using the scheme of delegation under their Local Government (Scotland) Act powers, although the general expectation would be that elected members may have an interest in determining major developments. This scheme could also be used to set out any other planning functions the authority may wish to delegate eg enforcement duties. Schemes of delegation under Local Government (Scotland) Act powers do not require ministerial approval.
PROCEDURES FOR ADOPTION OF THE SCHEME
17. Regulation 4 provides that where the planning authority proposes to adopt a scheme of delegation under powers from the Act, it should send a copy of the scheme to the Scottish Ministers. The planning authority is not to adopt the scheme until such time as it has been approved by the Scottish Ministers. Schemes cannot be approved subject to modifications, where changes are to be made the planning authority must send a revised copy of the scheme it proposes to adopt to Scottish Ministers for approval.
PUBLICATION OF THE SCHEME
18. Once the scheme has been approved by Ministers and adopted by the planning authority, regulation 5 requires that the planning authority makes a copy of the scheme available for inspection at an office of the planning authority and in every public library in the authority's area. The scheme must also be published on the internet. The provisions for adoption and publication contained within the regulations are intended to offer a straightforward process for putting the new schemes of delegation in place. Planning authorities remain free to take additional steps to publicise the schemes should they consider that to be appropriate.
USE OF THE SECTION 43A SCHEME OF DELEGATION
19. Decisions made by an appointed person under the new scheme of delegation have the same status as other decisions taken by the planning authority other than the arrangements for reviewing the decision. Sections 43A(8) to (16) give an applicant a right to require the planning authority to review these decisions instead of a right of appeal to Scottish Ministers.
20. In cases where the planning authority receives an application for planning permission for a local development and the proposal would also require another type of consent e.g. listed building consent, there is the potential for there to be two separate routes for challenging the respective decisions, one on appeal the other to review. However, it will remain for the planning authority to consider which is the most effective route to determine related applications.
21. Section 43A(6) enables a planning authority to determine themselves an application which would otherwise fall to be determined under delegated powers. Where it is decided that members of the authority would take a decision on the planning application, section 43A(7) requires the authority to provide the applicant with a statement giving their reasons for deciding to determine the planning application themselves.
SUBSEQUENT SCHEMES OF DELEGATION
22. Regulation 6 requires that the planning authority should prepare a scheme of delegation at intervals of no greater than every five years. Section 43A(1)(a)(ii) also prescribes that planning authorities must prepare a scheme of delegation whenever required by the Scottish Ministers. The procedure for doing so will mirror that of preparing the original scheme.
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