Scottish Government

ANNEX D - PARTIAL BUSINESS AND REGULATORY IMPACT ASSESSMENT

1. Title of Proposal

Amending the principal householder permitted development Classes of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992.

2. Purpose and intended effect

2.1 Objectives

• Enable householders to carry out more development to their home without having to apply for planning permission;
• Reduce the number of applications for planning permission for minor householder development; and
• Enable planning authorities to devote more of their resources to more significant issues such as development planning and processing applications for major developments.

2.2 Background

The planning system has come under increasing criticism that it is too slow in processing applications and is in many instances regarded as a barrier to development and hence to economic growth.

The Town and Country Planning (General Permitted Development) (Scotland) Order 1992, as amended, (the GPDO) currently grants Scotland-wide planning permission for a range of specified developments, set out in a series of development "Classes", subject to certain limitations set out in those Classes. As a result, this removes the need to apply for planning permission from the planning authority where proposals can comply with the requirements of the GPDO. The developments covered by the GPDO range from minor householder developments to development at industrial sites and airports. This nationwide planning permission for certain developments is often referred to as Permitted Development Rights ( PDR).

The proposed Order is considerably simpler with regard to domestic development and has fewer limitations. We have road tested the Order with a few local authorities and estimate that it will remove 20-25% of householder planning applications as well as reduce the number of enquires received by planning authorities. The main changes in the Order can be summarised as:-

• Recreating the Classes of development for which planning applications are not needed. This will mean it is easier to apply development proposals to the appropriate Class and for the limitations set out in each Class to be more relevant. In particular, creating a Class for a single storey extension should mean many "rear" single storey extensions would become permitted development;
• Using the concept of the principal elevation to define the front and rear of a house, in order to relax restrictions on development in rear gardens;
• Allowing alterations and improvements to houses (other than extensions) if within a 1 metre "bubble" of the walls or roof of a house. This removes the current complex provisions for satellite dishes and some domestic microgeneration equipment (such as solar panels);
• Introducing a new site coverage criterion to replace the current floorspace limits and 30% ground coverage criterion with a limitation meaning that there must be at least the same area of garden remaining undeveloped as developed. This would, in most cases, allow a visual assessment rather than having to calculate precise areas in every case;
• New definition for calculating the height of a building and external dimensions. This would allow greater protection from the impact of development for neighbours on sloping ground and the more practical use of external dimensions; and
• Stricter controls for development within conservation areas and within the curtilage of listed buildings.

2.3 Rationale for Government intervention

A properly functioning planning system is essential to achieving the Scottish Government's central purpose of increasing sustainable economic growth. These amendments aim to change the operation of the system to enable planning authorities to focus resources towards that purpose and to support the Scottish Government's strategic objectives.

Householder developments comprise approximately 50% of the 40,000 planning applications determined each year in Scotland. Around 97% of householder planning applications are approved, and whilst a proportion are subject to negotiation and amendments, the majority are approved as submitted.

The current provisions are often viewed as being based on, somewhat, arbitrary allowances and do not cover some common developments, eg decking, which results in misunderstandings. In addition, the current difficulty in interpreting the rules takes up householders' and planning officers' time, as well as giving rise to avoidable enforcement action to remedy householder developments which have been carried out but do not comply with the legislation.

The proposed revisions would deliver a more permissive regime than currently exists and remove the need to submit a planning application for many householders. It will reduce the considerable amount of time and resource required by applicants and planning authorities in submitting and determining applications and will also allow development work to commence at an earlier date. This will reduce the costs in dealing with householder developments and ensure planning officers can focus on more strategic planning tasks with a wider public benefit.

3. Consultation

3.1 Within Government

In light of the 2009 consultation ¹³, the Scottish Government has worked with Heads of Planning Scotland (the umbrella body of local authority planning managers) and planning authorities to develop a revised set of rules. A three week pilot was carried out, in January 2010, on a test Order with City of Edinburgh Council, Stirling Council, Fife Council and the Dingwall office of Highland Council. In developing the test Order we worked with colleagues in Climate Change, Environmental Quality Division regarding the potential flooding impacts as well as colleagues in Building Standards.

The results from the pilot were not conclusive. An independently facilitated workshop was held in May with representatives from planning authorities and Building Standards to develop a further draft.

3.2 Public Consultation

The principle of increasing permitted development rights for minor development was floated as part of a hierarchy of development in the White Paper "Modernising the Planning System" in June 2005. A review of the 1992 Order was then carried out in 2006 for the Scottish Executive. Review of the General Permitted Development Order 1992: Householder Development¹⁴ detailed the findings from this research, which included consultation with practitioners of the planning system. The research concluded that it would be possible to amend the legislation to reduce the number of householder planning applications. Similar conclusions have been reached in comparable research in England and Northern Ireland.

The results of this research formed the basis of the public consultation ¹⁵ between December 2008 and March 2009. It received a mixed response, subsequently the Scottish Government has been working with stakeholders to address the concerns raised and this public consultation is part of that work.

3.3 Business

During the January 2010 pilot, invitations were sent to a range of architects and planning consultants in the Edinburgh area to attend an afternoon workshop to discuss the pilot order. Delegates from ARJ Architects Architects, Barton Willmore Partnership Planning Consultants, Charles Tibbles Planning, Duco Architects, EMA Architecture & Design Architectural Services, Format Building Design, Graham Angus, Kenneth Reid Architects and Les McCaskey Architectural Design Services attended.

Attendees highlighted the complexity of the test Order, and indicated that as a result of that they would seek Certificates of Lawful Use of Development to provide comfort to their clients.

4. Options

4.1 Option 1: Do nothing

Do not change the current provisions for householder development, therefore the current rules governing householder development would continue to apply.

4.2 Option 2: Simplify and extend householder permitted development

A fundamental revision of the current rules for householder development to replace current permitted development. The proposed rules attempt to strike a balance between simplicity, amenity and efficiency. The new rules will increase the amount of work that can be done without having to apply for planning permission. The new rules will not allow everything to proceed; and there would be clear limits and conditions as to what is permitted development. This will not prevent people from submitting a planning application if their proposed development is outwith the scope of the permitted developments within this Order.

4.3 Sectors and groups affected

The sectors most likely to be affected by the proposals are:

• Householders, who ultimately pay for, and benefit, from improvements and alterations to their own homes and who may be affected by works to properties in their neighbourhood;
• Planning authorities that have to advise householders and businesses on permitted development rights, determine applications for planning permission and lawful development certificates and consider enforcement action where development is in breach of a planning permission;
• Businesses (in the main architects, planning consultants, builders etc) that carry out the building work and often act as agents for the householder when seeking planning permission.

4.4 Benefits

It is difficult to accurately predict the impact on application numbers, as the total number of applications varies from year to year. It is also difficult to predict how frequently designers would modify proposals to avoid the need for planning permission, and testing has relied on small samples. Informal testing with planning authorities has indicated that the proposed rule changes could remove approximately 20% of householder planning applications. This equates to approximately 4,000 applications if it is assumed an annual total of 20,000 householder applications across Scotland.

The potential benefits to householders, planning authorities and business through removing the need for planning applications in some cases are:

• Householders who would, under the proposed Order, no longer require to apply for planning permission would save £160. The total saving would equate to £640,000 a year based on the above assumption;
• Although much harder to quantify, the main saving to householders is that they no longer would have to wait, up to 6-8 weeks for a formal planning decision. The removal of the uncertainty surrounding the outcome of a planning application would greatly ease the programming of minor household development projects;
• The simpler rules and guidance will allow householders and businesses to be more informed about planning rules and how they would apply to individual projects, needing to rely less on advice and guidance from either planning authority staff or their own advisors;
• The reduction in the number of times householder developments need planning permission would reduce a current regulatory burden for householders and businesses involved in householder developments; and
• It is considered that there will be staff time savings and other savings, albeit modest and variable between planning authorities. Any time saving would be beneficial to planning authorities and would allow more scope for reviewing ways of working. This would help enable planning authorities to concentrate staff time on tasks and development proposals that are more important, and so improve performance of the planning service.

In practice, there may be even slightly more benefits than indicated if, as seems likely, people would be willing to tailor their proposals to fall within the permitted development right limits. However, accurate estimates of the savings will only be possible when we have actual figures from planning authorities in future years.

4.4 Costs

• A lighter approach to control over householder developments may impact the amenity of areas where development happens. However our assessment of research and stakeholder engagement is that currently around 97% of householder applications are approved and a majority are not altered following discussions during the processing of an application;
• There will be an impact on the income of businesses that charge for the preparation of planning applications. This may be replaced by applications for Certificates of Lawful Use or Development;
• Any increase in the number of application for Certificates of Lawful Use of Development would add to the workload of planning authorities, and so partially offset the time freed up by the reduction in planning applications. However, in most cases it would involve a simple judgement as to whether a development could rightly be carried out without the need for a planning application.

5. Scottish Firms Impact Test

Reform of householder permitted development rights removes regulatory burden from the many businesses, for example, architects and builders, who design and build domestic extensions and provide professional advice for householders. However, the simplification of the rules could lead to a reduction in those seeking specialist help in order to be able to deliver their work, for example, in preparing plans and drawings for a planning application. This may be compensated by an increase in householders carrying out developments to their properties as direct result of the regulation being simplified.

As part of the consultation process we will consult directly with a range of businesses to understand the direct impacts of this legislation on their business. We are proposing to identify a number of impacted organisations through this consultation as well as discussions with umbrella organisations. The relevant outcome of discussions will be feed into further development of the legislation.

5.1 Competition Assessment

The proposals are not expected to impact significantly more on some firms than others nor restrict new entrants to the market. Since, in essence, this is increasing the size and types of householder developments that can be built without planning permission. This will impact on all householders equally and provide a cost saving to householders. The need to produce detailed plans are not impacted by these changes.

The freedom of firms to choose the price, quality range or location of their products will be unaffected. This view is shared with the Office of Fair Trade.

5.2 Test run of business forms

No new forms will be introduced as a result of this legislation therefore no requirement for test run.

6. Legal Aid Impact Test

These proposals have no impact in relation to Legal Aid, as the policy does not introduce new procedure or right of appeal to a court or tribunal. Householders will still have the ability to apply for planning permission if their proposal is not permitted through these regulations. This view is shared by colleagues with policy responsibility for Legal Aid.

7. Enforcement, sanctions and monitoring

It is for prospective developers to ascertain whether an application for planning permission is required and to ensure that an application is submitted where necessary. Undertaking development without appropriate permission generally constitutes a breach of planning control and may result in enforcement action under planning legislation.

Circular 10/2009 Planning Enforcement, provides advice about the powers to enforce planning control given to planning authorities by sections 123 to 158 of the Town and Country Planning (Scotland) Act 1997 and the new sections introduced in the Planning etc. (Scotland) Act 2006.

Planning authorities have a wide choice of available options for taking enforcement action, whenever they consider it appropriate. Authorities assess, in each case, which powers (or mix of powers) is best suited to dealing with any particular suspected or actual breach to achieve a satisfactory, lasting and cost-effective remedy. These include a notice requiring an application for planning permission for development already carried out, stop notices, temporary stop notices and fixed penalty notices.

Planning authorities are required to maintain a register recording information regarding any: enforcement notices, breach of condition notices, stop notices, temporary stop notices, and notices under section 33A (notice requiring retrospective planning application), that they issue. The exact information to be recorded varies slightly according to the type of notice. Detailed information on the information required is set out in The Town and Country Planning (Enforcement of Control) (No.2) (Scotland) Regulations 1992, as amended by The Town and Country Planning (Miscellaneous Amendments) (Scotland) Regulations 2009. Every register kept by a planning authority is to be kept available for inspection by the public at all reasonable hours.

8. Implementation and delivery plan

It is anticipated that the amendments will be laid before the Scottish Parliament in early 2011 but the date that the Order comes into force will be dependent on feedback from this consultation process, which also seeks feedback on transitional arrangements.

8.1 Post-implementation review

The Government will monitor how the changes have impacted on the number of applications through monitoring of the development management statistics collected from planning authorities. Reaction to how the changes have worked in practice and any particular areas of concern or uncertainty are likely to become quickly apparent through representations made by planning authorities, householders and business.

The Government will liaise specifically with Heads of Planning Scotland to understand the effects of the changes.

9. Summary and recommendation

It is recommended that this Order is implemented as it helps to de-regulate some householder developments which will result in time and resource savings for the householder. Planning authorities will also see time and resource savings as they will not be required to process as many planning applications. The simplification of the regulations will make understanding, and interpreting, the Order simpler and allow business and householder to be better informed of their rights.

9.1 Summary costs and benefits table

Declaration and publication

I have read the Business and Regulatory Impact Assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. I am satisfied that business impact has been assessed with the support of businesses in Scotland.