Planning (Scotland) Bill – Changes to Development Management

This is the second in a series of briefing notes on the Planning (Scotland) Bill, currently before the Scottish Parliament, which aims to strengthen and simplify the Scottish planning system.

The first note in this series looked at the proposed changes to development planning; we now shift our focus to development management, dealt with in Part 3 of the Bill, and the changes to the planning application and decision-making processes.

Overview

As with the proposed changes to development planning, the changes to development management do not overhaul the existing system and some applicants will be largely unaffected by the changes, however for others these changes will be significant.

One of the clear intentions of the development management provisions of the Bill is to streamline the process for certain types of application by, as discussed, increasing the classes of application which can be referred to the Local Review Body (LRB) and allowing regulations to specify circumstances in which Pre-Application Consultation (PAC) is not required.

From the development management provisions of the Bill in particular, it is clear that the Scottish Government wishes to signify its desire to facilitate development in Scotland.

Pre-Application Consultation – PAC

There is an existing requirement for PAC by applicants on national and major development proposals. Section 12 of the Bill would require a valid planning application to be submitted within 18 months from the date of the Proposal of Application Notice to which it relates, to ensure that the PAC is sufficiently recent. Otherwise, the PAC process will need to be repeated if the application is to be submitted. The Bill, if passed, would also allow the content as well as the form of the PAC report to be prescribed by regulations.

The Bill does, however, allow for some additional flexibility around the requirements of PAC as regulations would be able to prescribe the circumstances in which PAC is not required – at present regulations are restricted to specifying the classes of development for which PAC is required, without providing for any exceptions.

Delegation of Development Decisions

Section 15 of the Bill removes the requirement for certain planning applications made following pre-determination hearings by committees to be made by full council, the aim being to improve efficiency of decision-making on such applications.

Similar intentions are behind section 16 of the Bill, which concerns the Local Review Body (LRB) procedures and delegation to the LRB. Existing legislation provides for certain decisions where developments are of minor or localised impact to be made by the LRB at local level in place of a right of appeal to the Scottish Ministers.

One of the things section 16 does is increase the number of such decisions that will be delegated to the LRB; the additional application types to be heard by the LRB are those for:

• display of advertisements,
• certificates of lawful use or development
• prior approval under a development order (relating to certain development rights).

Another change made by section 16 is that new section 43AB(3) of the Town and Country Planning (Scotland)1997 Act would require planning authorities to have regard to any guidance issued by the Scottish Ministers when preparing, adopting, reviewing or changing a scheme of delegation.

Significant changes to duration of Planning Permission

Among the most significant changes from a development management perspective are the changes to the duration of planning permissions, particularly planning permissions in principle.

At present, the default position for permissions in principle is that application for approval of matters specified in conditions must be made before the expiry of 3 years from the date of grant, and the permission lapses on expiry of 2 years from the date of the final approval being obtained.

Section 17 of the Bill would simplify this by requiring the permission in principle to specify a single 5-year time period (or such other time period as the authority may specify) for commencement of works, with no specified default timeframe within that for obtaining all necessary approvals, although planning authorities will have the flexibility to use conditions to set time periods for approval of details as appropriate.

The other significant change to duration of permission is how time periods for commencement of works under both permissions and permissions in principle will be set out. Whilst currently these are specified by way of a direction, under the Bill’s proposals this would revert to the previous position where duration is specified by a condition.

One consequence of this is that, whilst under the current system applicants often try to use an application for non-compliance with a condition under section 42 of the Act to obtain a new permission, giving further time for commencement of works, under the Bill applicants would be able to make an application under section 42 transparently to vary the duration of the permission. It is expected that this ability to vary the duration of a permission under section 42 would all but remove any need to rely on Regulation 11(1) of the Town and Country Planning (Development Management Procedure (Scotland) Regulations 2013, which effectively provides a mechanism for an applicant to re-apply for an existing, unexpired permission, without the need to fulfil all of the same statutory requirements which would ordinarily form part of the application process.

The Bill is currently at Stage 1 of the parliamentary process and as such remains subject to amendments. A call for written evidence on the Bill was issued in December 2017 and was closed for submissions on 2 February 2018.

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