The Scottish Government

The 2009 amendment regulations came into force on 3rd August 2009; they make certain consequential and transitional changes to the 1999 Regulations and serve to otherwise update the Regulations in light of the Planning etc. (Scotland) Act 2006, and associated secondary legislation.

Specific changes include:

• New provision transposing the requirements of the EIA Directive to new local review procedures introduced under section 43A(8) of the 1997 Act as amended.
• Replacing references to "outline planning permission" and applications for approval of "reserved matters" with references to "planning permission in principle" and applications for "approval, consent or agreement required by a condition imposed on the grant of planning permission in principle".
• Changes to regulation 13 to require the planning authority or the Scottish Ministers as the case may be to undertake neighbour notification on receipt of an environmental statement.
• Transitional arrangements such that applications for approval of reserved matters made after 3rd August 2009 in respect of outline planning permission granted before that date, will be treated as an application for approval, consent or agreement required by a condition imposed on the grant of planning permission in principle.

Paragraphs 1, 21, 54, 56, 82, 83, 105, 111, 114, 119, 127, 136 - 142, 143, and 148 - 164 of Circular 8/2007 are amended as follows:

At paragraph 1, footnote 1 delete " and 2007/268" and insert "2007/268 and 2009/221."

At paragraph 21, delete the first sentence and replace with; "Regulation 13 sets out the publicity procedures, including notification arrangements, which must be followed by planning authorities on receipt of a planning application with an ES." At the end of the second sentence, after 'planning authority' insert 'including a Local Review Body (references in the regulations to the planning authority include a Local Review Body where an application is being considered on review under section 43A(8) of the Act, as amended).

At paragraph 54, insert new sub-paragraph

"(g) a Local Review Body may determine that EIA is required for an application which is before them for review."

At paragraph 56 ( Procedures prior to submission of a planning application) at the end of the first sentence insert "Developers submitting applications for developments categorised as national or major under the Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009 [1], which includes all Schedule 1 development, will be required to undertake statutory Pre-Application Consultations with communities. Whilst there is no requirement to consult the relevant planning authority or the consultation bodies prior to submitting such applications, nevertheless Circular 4/2009 [2] continues to encourage pre-application discussions between prospective applicants, agencies and the planning authority. It also proposes a more formal tool for project managing the planning process for national and major developments - 'the processing agreement'.

After paragraph 82 insert;

Application under review not accompanied by an Environmental Statement (regulation 9A)

82(A) Where an application comes before a Local Review Body which appears to be either Schedule 1 or Schedule 2 Development and is not accompanied by an Environmental Statement, the authority must check its records for any screening direction or screening opinion previously issued. Where no such opinion or direction exists, the authority must adopt an opinion. Regulation 9(1)(a) refers. Where the authority's opinion is that EIA is not required, the procedure outlined at paragraph 73 above will apply with reference to regulation 9(1) rather than 7(1). Where the authority's opinion is that EIA is required, regulations 9A(2) - 9A(7) set out the procedures to be followed.

At paragraph 83, at the end of the first sentence delete "article 16 of the GDPO" and replace with "regulation 30 of the Development Management Procedure Regulations ('the DMR'). [3]

At regulation 83(c) delete "(under article 16 of the GDPO)" and replace with "(under regulation 30 of the DMR)".

Delete paragraph 105 and replace with;

"Where an applicant or appellant submits an environmental statement to a planning authority or Scottish Ministers, the authority or the Scottish Ministers as the case may be must notify those with an interest in "neighbouring land" to that on which the proposed development would take place, of the availability of the statement. The form of notification is specified in Schedule 5 to the Regulations and the process should, when the environmental statement is submitted at the same time as the planning application, be combined so far as possible with the neighbour notification requirements under regulation 18 of the DMR. Where a statement is only later submitted to the Scottish Ministers to accompany an application which they have called-in for their determination or which is before Ministers on appeal, the relevant planning authority must provide the Scottish Ministers with full details, including the postal address, of all premises situated on "neighbouring land" as defined by regulation 3(1) of the DMR [4]. The time limit for representations must be no earlier than 4 weeks from the date on which the notice is published.

At paragraph 111, delete sub-paragraph (b) and re-number sub-paragraphs (c) and (d) as (b) and (c) respectively.

At paragraph 114 ( Environmental Statement submitted after a planning application) at the end of the sentence insert "Where an application or appeal is before the Scottish Ministers for determination when the statement is submitted, the planning authority must provide the Scottish Ministers with full details of the notification previously carried out under regulation 18 of the DMR. Paragraph 105 gives further information.

At paragraph 119, at the end of the final sentence delete "under article 13 of the Town and Country Planning (General Development Procedure Order) 1992, as amended" and replace with; "under regulation 24 of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008.

At paragraph 127, delete the last two sentences beginning "Where a planning authority…" to "Circular 5/2007".

The Environmental Impact Assessment (Scotland) Amendment Regulations 2009 [5] made changes to the Regulations to replace references to "outline planning permission" and applications for approval of "reserved matters" with references to "planning permission in principle" and applications for "approval, consent or agreement required by a condition imposed on the grant of planning permission in principle". References to Outline Planning Permission contained at paragraphs 136 - 142 of the Circular should therefore be read as applying equally to 'planning permission in principle'; similarly, references to 'reserved matters' should be read as applying to 'approval, consent or agreement required by a condition imposed on the grant of planning permission in principle'. Footnote 32 on page 34 of the Circular should be updated by inserting, at the end of the sentence, "and amended by The Environmental Impact Assessment (Scotland) Amendment Regulations 2009 (S.S.I 2009/221)."

Delete paragraph 143 (Changes to the Planning System).

Delete paragraphs 148 - 164. Insert new paragraph 148 as follows: "Regulations 29 - 39 of the Regulations set out the procedures to be followed in respect of EIA development which is the subject of a planning enforcement notice. However, following the repeal of section 130(1)(a) and 133(1)(a)-(c) and (7) of the 1997 Act by the 2006 Act, it is no longer the case that an appeal against an enforcement notice can, if successful, result in the grant of planning permission. Whilst the obligations contained in regulations 29 - 39 remain, it is our intention to bring forward amending regulations as soon as practicable to make any changes necessary as a result of the changes to the 1997 Act."