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3rd August 2009 - Modernising Planning Day

Some parts of the brave new planning system are already in force and coming into operation, but most of the real changes will come into effect on 3rd August 2009. Things are going to be very different, in content and in pace.

Applications

Putting in a planning application now needs more advance planning than before, and the more substantial the development, the more forward thinking and preparation will be needed. Much more discussion and work will be required before you put in an application.

In particular, if an appeal (or a local review if there is now no appeal to Scottish Ministers - see below) is a possibility for your application, think about what you need to submit with your application more carefully because the whole pace of appeals has changed. It will all be much quicker and there will be much less time to add materials to your application, and the scope for changing your application once it is in will be restricted. You have to get it right first time.

For most medium sized development applications the people you have to convince begin and end with the local planning authority, their officers, because they will be the final decision makers, as explained below.

All planning applications are now classified by law into three categories; national applications, that is, specific projects of national significance to Scotland all as now defined in the National Planning Framework 2, recently approved by the Scottish Parliament (see http://www.scotland.gov.uk/Publications/2009/07/02105627/10 ); major applications, which are defined in regulations as the larger applications for various types of developments, usually for areas of land of 2 hectares and above; and all the rest are to be local applications. There are several different processing rules for each category of applications, and new appeal routes.

There are new permitted development rights for householders which are supposed to take a good number of development applications out of the system altogether.

For larger applications there are important new procedures for notification, and compulsory pre submission consultations with the community and others. There are also innovations such as processing agreements, where developers and authorities can plan the progress of an application through the system before that gets started, and eventually good neighbour agreements, which allow developers to enter enforceable legal agreements about the operation of the development with community groups.

Enforcement

It used to be possible to appeal against enforcement action on the basis that planning permission should be given for the unauthorised development, or that the condition breached should be discharged. This is no longer available. Planning Authorities can serve a notice requiring an application to be made.

e-planning

The government has invested heavily in the e-planning system, an IT framework which when it is fully implemented will give extensive public access through the net to all applications and all appeal documents. See www.eplanning.scotland.gov.uk Eventually, and before long, anybody will be able to inspect documents and monitor progress electronically of all applications and appeals. The SGDPEA has already adopted a policy of full public access for all documents they are handling.

Local Review Bodies

For most day to day planning applications, the right of appeal to the Scottish Ministers will disappear on 3rd August. The applications affected are those legally classified as 'local' which means all applications which are not classified as 'major'. These applications will be dealt with by a compulsory scheme of delegation to appointed officers and the decision will be taken by officers. If you don't like the decision, your appeal route goes to a new local administrative body created by the Planning (etc) Scotland Act 2006 - a new committee of each local planning authority called 'the Local Review Body'.

The only challenge to their decision will be on a point of law to the Court of Session, if the LRB makes a procedural error. That will be expensive, and if the application is successful, the court will send it back to be done again by the LRB correcting the original mistake.

There are lots of bits and pieces of the planning system like enforcement and listed buildings for which aspects meantime still go on to the Ministers, but government is waiting to change/update these too.

Call ins

Ministers have declared that they will call in even fewer applications , but if they do, and a a hearing or a public inquiry is decided to be necessary, the same greatly restricted and expedited new procedures for appeals summarised below will be used. Everything is being greatly speeded up.

Appeals

If you had a right of appeal before the 3rd August, you still have six months to appeal, but for any non local or major applications not determined by the 3rd August, the time limit for appeals will suddenly shorten to three months. Furthermore, the days of putting in a holding appeal form and waiting till the inquiry timescales are set to lay out your case are about to go, and for all appeals made after the 3rd August, the new, very different, procedures will apply.

When you first make your appeal, you really will have to plan to submit everything right at the outset. Only exceptionally will the Reporter allow new material in later. Change to applications is very much discouraged.

Gone will be the days when the developer could do the choosing about whether there should be a public inquiry, or a hearing or written submissions. The type of procedure used for the appeal will be chosen by the reporter, and they are strongly influenced to go for written decisions - which would simply be done quickly on the basis of the original appeal submission without further procedure - or hearings, rather than public inquiries. Public inquiries might just become a rarity.

As it is submitted the appeal is intimated to the planning authority, who have 21 days to submit their response, which is to include everything the reporter should require to determine the appeal without further procedure or deliberation, including proposed conditions. The appellant has 14 days to comment on these, if they want to. No response will be sought from the Council. There are powers for the Reporter to request information, but the governments position is that these should only rarely be used.

As for statutory consultees and objectors, the planning authority has to make them aware of the appeal. They are not expected to require to make further representations, but they have 14 days to do so.

Site visits are no longer automatic, apparently, and although parties will be advised of the visit, it will not necessarily be delayed to suit everybody's convenience.

If a Reporter considers a hearing session is required, he/she will specify the matters considered to require discussion, and parties may be given an opportunity to lodge a hearing statement on the matters required to be considered. Third parties will only be invited if their representations contained submissions relevant to the hearing agenda.

Some appeals, exceptionally it appears, will be considered at public inquiries. Again, procedures for these have been greatly speeded up. And the inquiry, as in hearings, will consider only those matters the Reporter thinks require further examination. No precognition is to be longer than 2000 words in length , which will be most interesting to see in practice.

Structure and Local Plans set for ever in the West

While structure and local plans currently at an advanced stage of preparation are being permitted to finish the process, and existing approved plans will continue in force, they will gradually be replaced by a new generation of development plans called Strategic Development Plans, and at local level Local Development Plans. These are supposed to be stripped down to be shorter, sharper and much more specific as to where development is expected, and presumably where it is not. Not everywhere will be covered by both; it depends on the local development plan scheme, which will have been approved by Ministers.

Both SDP's and LDP's are intended to be made on schedule, in accordance with the approved schemes, with no serious slippage. As previously, there will be scope for objections, and planning authorities are being encouraged to invest more time and effort in improving public involvement and participation for these new plans.

Disoriented?

This is all going to be very new and different. There may well occasionally be a sense of loss of control of the application as it is swept into the new processes. But the whole idea was greatly to speed up the planning process, because of complaints that the system was moribund and slow . Six months hence,some developers may well reflect on the old adage 'be careful what you wish for ...'

If you would like any further information please contact Frances McChlery by emailing: frances.mcchlery@simpmar.com

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