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The Planning System

Development Control

42. Development control is a key function of the planning system. In addition to determining planning applications it includes:

• advice to the public;
• pre-application discussions with applicants and agents;
• processing related applications, for example listed building, conservation area and hazardous substance consents;
• monitoring implementation of approved applications and, where appropriate, enforcement; and
• appeals.

43. Development control should be reliable, consistent, speedy and efficient. It is essentially a regulatory service, but one which aims to promote positive outcomes on the ground. Efficient development control depends largely on clear and precise development plan policies. The development control service should aim to accommodate change where appropriate and to secure investment in new development that meets the needs of the individual and the wider community, respecting the character and identity of places and safeguarding local amenity.

Deciding a Planning Application

44. Sections 25 and 37(2) of the Town and Country Planning (Scotland) Act 1997 require that planning decisions be made in accordance with the development plan unless material considerations indicate otherwise. The interpretation of this provision was clarified in a House of Lords’ decision in 1998². If a proposal accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. Conversely, if the application does not accord with the plan, it should be refused unless there are material considerations indicating that it should be granted. Although priority must initially be given to the development plan in determining a planning application, there is a built in flexibility depending on the facts and circumstances of each case.

45. The House of Lords’ judgement set out the following approach to deciding an application:

• identify any provisions of the development plan which are relevant to the decision;
• interpret them carefully, looking at the aims and objectives of the plan as well as detailed wording of policies;
• consider whether or not the proposal accords with the development plan;
• identify and consider relevant material considerations, for and against the proposal; and
• assess whether these considerations warrant a departure from the development plan.

The weight to be attached to any relevant material consideration is for the judgement of the decision-maker.

46. There is an expectation that development proposals that are in accordance with the development plan will be granted planning permission. However, other considerations such as more recent expressions of policy and planning guidance may outweigh the policies of the plan, either in favour of, or against, the proposed development. Likewise, similar circumstances may apply where plans are out of date and less relevant to changed circumstances. The critical link between up-to-date and relevant plans and sound development control decisions cannot be over-emphasised. For development plans to fulfil their role of providing an effective and consistent basis for determining planning applications a systematic process of monitoring and review of policies is essential.

47. Where planning permission is refused or granted subject to conditions, the reasons must be stated in the decision notice. It is not enough to indicate that the proposal is contrary to the provisions of a development plan. Clear and intelligible reasons should be given and the relevant policies referred to explicitly. Planning authorities should also be prepared to justify the reasons for approval of an application for which there is opposition. Information on planning decisions and the reasons for them is vital to public understanding of the planning system, particularly in cases where public interest has been expressed. Individuals and organisations that have made representations about applications should be notified of the decision.

Material Considerations

48. There are two main tests in deciding whether a consideration is material and relevant:

• it should serve or be related to the purpose of planning - it should therefore relate to the development and use of land; and
• it should fairly and reasonably relate to the particular application.

It is for the decision-maker to consider whether a consideration is material and to assess both the weight to be attached to each consideration and whether individually or together they are sufficient to outweigh the provisions of the development plan. Where development plan policies are not directly relevant to a development proposal or where there is no conflict with declared policy objectives, material considerations will be of particular importance.

49. The range of considerations which might be considered material in planning terms is, in practice, very wide and falls to be determined in the context of each case. Examples of possible material considerations include:

• Scottish Executive policy, and Government policy on reserved matters;
• National Planning Policy Guidelines and Planning Advice Notes;
• European policy, where relevant;
• a draft structure or local plan;
• a National Park Plan;
• the environmental impact of the proposal;
• the design of the proposed development and its relationship to its surroundings;
• access, provision of infrastructure and planning history of the site;
• views of statutory and other consultees; and
• legitimate public concern or support expressed on relevant planning matters.

Use of Conditions

50. Conditions imposed on a grant of planning permission can enable development proposals to proceed where it would otherwise have been necessary to refuse planning permission. While the power to impose planning conditions is very wide, it needs to be exercised in a manner which is fair, reasonable and practicable. Planning conditions should only be imposed where they are:

• relevant to planning;
• relevant to the development to be permitted;
• enforceable;
• precise;
• reasonable; and
• necessary.

51. The Scottish Ministers attach great importance to these criteria being met so that unreasonable or unjustified burdens are not placed on development. Planning conditions should never be applied excessively or unthinkingly. They should be appropriate to the particular proposal and used to achieve a specific end, not to cover every eventuality.

Planning Agreements

52. Planning authorities have the power to enter into an agreement with persons having an interest in land in their area for the purpose of restricting or regulating the use of that land (Section 75 of the Town and Country Planning (Scotland) Act 1997). Such agreements can be enforced against successors in title. Most Section 75 planning agreements are triggered by applications for planning permission.

53. Planning agreements can be used to overcome obstacles to the grant of planning permission, but planning authorities should not use an applicant’s need for planning permission to obtain a benefit which is unrelated in nature, scale or kind to the proposed development. The presence or absence of unrelated inducements or benefits should not influence the planning authority’s decision. Where possible planning authorities should rely on planning conditions rather than use a planning agreement.

Other Legislation

54. Planning decisions should always be made on planning grounds and in the public interest. The planning system should not be used to secure objectives that are more properly achieved under other legislation. The grant of planning permission does not remove the need to seek other statutory consents nor does it imply that these consents will be forthcoming. Even where legal or administrative measures outwith the planning system may exist for controlling a particular activity, this can still be a consideration to which weight is given in reaching a planning decision. If a consideration is material in planning terms, it must be taken into account in reaching a decision. For example, the planning authority should have regard to the impact of a proposal on air or water quality although the regulation of emissions or discharges will fall to be dealt with other under other legislation.

Development Contrary to Development Plans

55. There are special procedures for dealing with applications that depart from policies in structure and local plans. The Town and Country Planning (Notification of Applications) (Scotland) Direction 1997 requires notification to the Scottish Ministers of applications the planning authority is minded to approve and which depart significantly from an approved structure plan and local plans approved by the Scottish Ministers under section 19 of the Town and Country Planning (Scotland) Act 1997. It is for councils to decide whether an application marks a significant departure, but in general such applications should only be notified where it is inconsistent with the strategic objectives of the plan. Under the Town and Country Planning (Development Contrary to Development Plans) (Scotland) (No 2) Direction 1996, councils can permit development that does not accord with the provisions of approved structure plans or adopted local plans, provided specific procedures are followed.

56. If the planning authority is uncertain whether an application would be a departure, it should treat the application as a potential departure and begin departure procedures. When development which does not accord with the development plan is permitted, the planning authority should inform objectors of the decision and provide them with a statement of reasons why the departure is justified. Where it is decided that an application, which the planning authority had advertised as a potential departure, is not in fact contrary to the development plan, objectors should be informed and given reasons. The Scottish Ministers expect these procedures to be used consistently to maintain public confidence in the system.

Public Involvement in Development Control

57. Planning authorities are legally required to consult community councils and certain statutory bodies before granting planning permission for particular classes of development. In addition the wider public has a right to view and comment to the planning authority on any application. Planning authorities should respond to comments and objections received to explain what decisions have been taken and why. Public interest in planning extends beyond those most directly affected by a proposal to the wider community. Legislation provides for registers of all planning applications to be available for public inspection. In addition, applicants for planning permission are required to notify their proposals to owners and occupiers holding an interest in neighbouring land.

58. Opposition to a proposal is not in itself a ground for refusing planning permission. The weight given to public concern as a material consideration should be based on the relevance of the planning issues raised. Planning authorities should be able to demonstrate clearly how and when the opinions of interested parties were sought and taken into account.

Enforcement

59. The Scottish Ministers attach great importance to effective enforcement as a means of sustaining public confidence in the planning system. It is essential that planning procedures and decisions are respected and adhered to. The Town and Country Planning (Scotland) Act 1997 provides a range of powers for enforcing planning control. Primary responsibility for exercising these powers rests with planning authorities.

60. Before considering enforcement action, planning authorities should consider whether the breach of planning control would unacceptably affect public amenity or the use of land or buildings meriting protection in the public interest. Action should always be commensurate with the breach of planning control to which it relates. While it is for the local authority to decide what action is necessary when there is a breach of planning control, failure to take appropriate action could result in a finding of maladministration by the Ombudsman.

61. Enforcement powers are only useful if they are used effectively. A wide range of options is available to planning authorities in dealing with breaches of planning control including granting retrospective planning permission, certificates of lawful use or development, planning contravention notices, breach of condition notices, enforcement notices and stop notices. Planning authorities are encouraged to use the full range of powers available to them to ensure that enforcement action is appropriate, speedy and effective.

The Role of the Scottish Executive in Development Control

Planning Applications

62. The Scottish Ministers have a general power to intervene in planning applications. Since 1996 the number of planning applications notified has risen but the number of applications called in by the Scottish Ministers for determination has remained fairly static at 25-30 each year. Planning decisions are primarily a matter for local councils and intervention by Ministers is generally only in circumstances where a proposed development raises an issue of national importance, or where proposals are a significant departure from the approved development plan for an area and/or national planning guidance. Ministers may also intervene where it is considered that a planning authority has failed to give full consideration to local objection. A substantial volume of objections is not in itself sufficient grounds to call-in a planning application. Similar considerations apply in relation to developments by planning authorities.

Appeals

63. Applicants aggrieved by the decision of a council to refuse planning permission or to grant planning permission subject to conditions have a right of appeal to the Scottish Ministers within 6 months of the issue of the decision notice. They may also appeal if the planning authority has failed to make a decision on a planning application within the required period (normally 2 months but 4 months where an Environmental Impact Assessment is required). Other appeals include those related to listed building consent, advertisement control and enforcement action. Responsibility for the decisions on most appeals is delegated to the Scottish Executive Inquiry Reporters Unit (SEIRU).

64. Most appeals handled by SEIRU are dealt with by written submissions, the rest through a Public Local Inquiry or hearing. In a few cases the Scottish Ministers make the final decision. If any party believes that unfairness or a failure to comply with any requirement of the statutory procedures prejudiced the decision, they may apply to the Court of Session within 6 weeks to ask the Court to quash the decision.

65. A planning authority experiencing high rates of sustained appeals should examine possible reasons for this, including the continuing relevance of the policy framework on which their decisions have been based.

The Planning Service

66. A continuing priority of the Scottish Ministers is to support and encourage the provision of a high quality planning service by the Executive and by planning authorities. This requires clear and transparent procedures, efficient working practices and ensuring that development maintains and enhances the quality of our urban and rural areas. Effective management is essential to providing a service that is efficient, consistent, open and fair. In many councils, planning also has a key role in implementing a wide range of projects including economic development, the promotion of sustainable urban growth, area regeneration and conservation of the built and natural heritage.

67. The development industry, local communities and individuals have a right to a high quality service that is fair, open, transparent and efficient. All councils should prepare a Service Standard Statement, setting out standards and targets the planning authority seeks to achieve, so that planning staff know what is required of them and the public and others are aware of the standard of service they can expect.

Openness and Accountability

68. Openness and accountability are part of the Scottish Executive’s vision for modernising Government. The planning system has a long tradition of involving the public in the preparation of development plans and providing opportunities for making representations on planning applications. The active participation of communities in decision making is an important feature of sustainable development and, for development plans, creating a sense of ownership by local communities is important for the acceptance of the policies and proposals of the plan. Planning authorities should be able to demonstrate clearly how the views of local people and local interests were heard and taken into account in policies and decisions. Planning authorities should regularly monitor the views of those affected by the service, using methods such as surveys and focus groups.

Working Together

69. Working together to build a prosperous and fair Scotland is a guiding principle for the Executive. This involves working with councils, business interests, heritage and community groups and others in modernising the planning system to ensure that it is efficient, effective and fair. Efficiency involves the provision of a service that is positively managed against performance targets and which offers value for money. An effective system requires policies and decisions that support sustainable development. A fair system is one that is consistent, open and accessible with decisions taken in the wider community interest, while respecting the rights of individuals. Priority should be given to establishing partnership working as an integral part of the operation of the planning system. Partnership arrangements can be used in a variety of different situations including co-ordination of investment, infrastructure delivery, project implementation and crosscutting area regeneration. Examples of successful partnership working can be found across Scotland. Planning authorities should seek to exchange information and best practice advice to inform their own work in developing mechanisms for partnership working.

Implementation

70. Planning authorities have a dual role in the implementation of objectives and specific projects:

• an enabling role; and
• a direct action role.

The enabling role involves working to deliver change with agencies and organisations such as Scottish Enterprise, Highland and Islands Enterprise and the local enterprise companies, Scottish Natural Heritage, Scottish Homes, Historic Scotland, Scottish Environment Protection Agency, the three water authorities and the private and voluntary sectors. There must be interaction and co-ordination between planning authorities, council departments and agencies in developing strategies and plans that have land use implications. Planning authorities should promote shared targets for the development of an area and close working relationships with implementation agencies. Agencies must give full consideration to the policies and proposals in the development plan and similarly planning authorities must involve these agencies from the earliest possible opportunity when developing plans. As changes occur within strategies there should be positive steps taken to co-ordinate and revise related strategies and plans. The direct action role of planning authorities is a result of the discretionary powers available in the Planning Acts, particularly for site assembly and disposal. Tools such as Compulsory Purchase Orders can be employed to secure effective implementation of agreed and shared strategies and plans.

Community Planning

71. Community planning is the term given to the process by which a local authority and other organisations come together to promote, plan and provide for the well being of the communities they serve. It is a mechanism for partnership working between public, private and voluntary sectors, encouraging community involvement and fostering a co-operative approach to develop an agreed Strategic Vision and the tools that will help to deliver it.

72. Community planning is essentially about taking action and providing services in a more integrated way so that the needs of local people are met more effectively. The planning system is the main means of delivering those aspects of the Community Plan which impact on the development and use of land. Supplying sites and premises for economic development, providing land for affordable housing, schools and other community facilities, maintaining and enhancing the natural and built heritage to realise wider community aspirations will depend for their implementation on relevant and up-to-date development plans and on a well managed development control service.

Best Value

73. Best Value is a process through which councils work for continuous improvement in service delivery. The aim is to ensure that the cost and quality of services are of a level that is acceptable to customers. It requires councils to reflect constantly on what they are doing, to measure their successes and shortcomings and to take action to improve. The key principles are accountability, transparency, continuous improvement and ownership. Best Value promotes changes in attitude, culture and management style within councils. The process gives councils the scope to tailor their planning and management in the light of their local conditions, and should be applied to all council services, including the planning service.

74. In carrying out reviews under Best Value councils are required to outline current organisational structures, processes and procedures. They should identify key performance indicators, the cost of the service, and the output (for example, planning applications decided in relation to performance targets, investment levered, etc). It is also important to establish customer’s views on the service provided by the Council. The issue here is not about particular policies or planning decisions but whether those involved in the process are satisfied with the service offered. Comparisons with other Councils (benchmarking) and other organisations where appropriate, can be useful in highlighting different approaches and identifying best practice. Alternative methods of service delivery, ranging from modest changes in practice to contracting out all or part of the planning service where it is not offering Best Value, need to be considered. A plan of action, including a review mechanism, should also be prepared and implemented.

Information and Communication Technology

75. The Scottish Ministers believe that Information and Communication Technology (ICT) has the potential to achieve significant service improvements as part of modernising local government. Planning authorities should explore cost-effective ways to develop ICT both internally and to provide direct customer service. Possibilities associated with the Internet now and in the future include receiving applications and representations electronically and making available on the web:

• application forms and related guidance material;
• the weekly list of planning applications;
• reports, minutes of committee meetings and decisions;
• structure plans, local plans and planning briefs;
• statistical returns to the Executive; and
• full details of planning applications.

Representations and responses may be submitted electronically to planning authorities.

Councillor Standards and Training

76. The consultation papers, A New Ethical Framework for Local Government in Scotland (The Scottish Office, 1998) and Standards in Public Life (Scottish Executive, 1999) set out proposals for a new ethical framework for local government in Scotland. There will be statutory support for new general codes of conduct for local government councillors and members of relevant public bodies. A number of local authorities already have Codes of Conduct in Planning for councillors. In addition the Convention of Scottish Local Authorities (COSLA), the RTPI and the Scottish Executive have developed a training framework for councillors which relates specifically to planning. At the core of the planning system is the democratic accountability of decision-making. The importance of this responsibility cannot be over-emphasised. Planning issues can be complex. It is therefore essential that councillors who take planning decisions understand the operation of the key elements of the planning system and the ethical issues underlying the handling of planning matters. These joint initiatives will help to improve the consistency of approach across Scotland and enable councillors to carry out their duties more effectively. Councils should consider offering training to members of community councils to help make their contribution to the planning process more effective.

Human Rights

77. The Human Rights Act 1998 has been in force from 2 October 2000. It incorporated provisions of the European Convention on Human Rights (ECHR) into UK law. The general purpose of the ECHR is to protect human rights and fundamental freedoms and to maintain and promote the ideals and values of a democratic society. It sets out the basic rights of every person together with the limitations placed on these rights in order to protect the rights of others and of the wider community. The Human Rights Act makes it unlawful for a public authority to act incompatibly with these ECHR rights except where, as a result of primary legislation, it could not have acted differently. Since the UK ratified the Convention in 1951 the rights have been directly enforceable only through the European Court of Human Rights in Strasbourg. From 2 October 2000 the rights can be enforced through the UK Courts.

78. The planning system by its very nature respects the rights of the individual whilst acting in the interest of the wider community. The specific Articles of the ECHR relevant to planning include Article 6 (Right to a fair and public trial within a reasonable time), Article 8 (Right to respect for private and family life, home and correspondence), Article 14 (Prohibition of discrimination) and Article 1 of Protocol 1 (Right to peaceful enjoyment of possessions and protection of property). The Scottish Executive issued guidance on the Human Rights Act and the ECHR to all public authorities, including planning authorities, in January 2000. All planning authorities should be aware of the possible implications of the Human Rights Act and should seek legal advice with a view to ensuring that processes and practices are compatible with the ECHR.

Ombudsman

79. The Executive is committed to ensuring that those who are dissatisfied with the administration of the planning system have their complaints dealt with timeously and effectively. Planning authorities are therefore expected to have in place proper procedures for investigating and responding to complaints about alleged failures in the delivery of the planning service.

80. It is essential for those who remain dissatisfied with any public service to have access to an impartial independent complaints system. Complaints of injustice arising from alleged maladministration by planning authorities may be referred to the Local Government Ombudsman. Examples of maladministration of the planning service include advice given which is inaccurate or misleading, breaches of statutory procedure, inadequate consultation, poor communication and the absence of articulated reasons for decisions. The Ombudsman expects planning authorities to have regard to government policy and advice, and failure to do so may amount to maladministration. If parties consider that the law has not been properly complied with they may petition for Judicial Review.

Performance Targets

81. There is a statutory duty for planning applications to be determined in 2 months from the receipt of a valid planning application (4 months where applications require an Environmental Statement). This period can be extended with the agreement of the applicant. The Executive recognises the importance of efficient handling of development proposals. Planning authorities are therefore expected to take action as necessary to ensure applications are dealt with efficiently. Prompt decision making should not compromise the quality of the decision.

82. The following performance targets have been set for councils:

• 80% of planning applications should be determined in 2 months;
• 85% of planning applications should be determined in 3 months;
• 90% of householder applications should be determined in 2 months;
• 95% of householder applications should be determined within 3 months; and
• 80% of major applications should be determined within 4 months.

For large or complex proposals, developers and planning authorities should seek to agree a timetable for handling the application. Experience has shown that well-managed pre-application discussions can help reduce the time taken to deal with a formal application. Improved efficiency of decision making should not adversely affect the quality of the decision making process or the quality of development on the ground.

83. Achieving greater efficiency in development control is not just a matter for local councils. The Executive is committed to greater efficiency in taking decisions on notified applications and appeals. The targets are:

Notified Applications

• 80% of cases notified to the Scottish Ministers for a decision on whether to call-in to be decided within 28 working days and the remainder within 2 months; and

• for called-in applications a decision should be issued within 2 months of receipt of report from the Scottish Executive Inquiry Reporter’s Unit in 80% of cases, and the remainder within 3 months.

Appeals

• 80% of planning permission appeals involving written submissions should be determined within 23 weeks;

• 80% of enforcement notice appeals involving written submissions should be determined within 28 weeks;

• 80% of advertisement appeals involving written submissions should be determined within 19 weeks;

• 80% of planning permission appeals and enforcement notice appeals involving public local inquiries should be determined within 42 weeks; and

• 80% of appeals against refusal of planning permissions (including listed building consent appeals) for the Scottish Ministers decision should be determined within 2 months of receiving the Reporter’s report, and the remainder within 3 months.

Each year, the Executive will publish details of its performance against these targets.

84. The performance targets for development plans are:

Structure Plans

• 100% coverage of up-to-date plans;
• plans should be submitted for approval within 2 years of plan preparation beginning; and
• the Scottish Ministers aim to approve structure plans within 40 weeks of submission, unless an EIP is necessary.

Local Plans

• 100% coverage of plans less than 5 years old; and
• planning authorities should take less than 3 years to prepare and adopt new or replacement plans and less than 2 years for alterations.

Conclusion

85. The planning system should be responsive to social and economic changes and ensure that a policy framework is established to inform decision making in the public interest. It can play an important role in delivering sustainable development that embraces the goals of economic prosperity, social justice and environmental quality. Development plans should set out a long-term vision with a clear focus, setting out the scale and direction of change. They must guide investment decisions rather than being led by them. They must identify environmental resources that require protection to meet national and international obligations, but they must also take into account local character and identity. They should address local perceptions, community aspirations and seek to identify local development opportunities. This requires a consistent approach that is inclusive rather than exclusive; that anticipates rather than reacts; and that is consistent rather than arbitrary. Development control is a key means by which these objectives and policies are delivered. Organisational and other linkages with development planning must be frequent and direct.

86. The planning system has a range of tools at its disposal for shaping a more sustainable Scotland; it must apply them positively, creatively, sensitively and fairly.

Notes

87. Legislation, NPPGs, PANs and a list of planning Circulars can be viewed on the Scottish Executive web site: www.scotland.gov.uk/planning

88. Enquiries about the content of this guideline should be addressed to Roger Kelly (0131 244 7526, roger.kelly@scotland.gsi.gov.uk). Further copies and a list of current NPPGs and planning Circulars can be obtained by telephoning 0131 244 7066. Planning Advice Notes can be obtained by telephoning 0131 244 7543.

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