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
