Planning & Environment

There has been a strange lack of fanfare for the Commencement No.10 Order, but maybe that’s not so surprising given the amount of reforms implemented since the Commencement No.1 Order over 3 years ago.

On 26 November, the Order brought into force section 263A on National Scenic Areas. That largely reinstates the law as it was, the NSA provisions having been superseded by the Natural Heritage Area provisions, although no NHAs were ever designated. The Order also gives the Ministers power to make regulations regarding applications for consent under Tree Preservation Orders.

1 February is more exciting, as it is the start date for the new law on planning obligations – henceforth ‘O’ day, to remind us not to talk about planning agreements any more.

Apart from the name change, there will be a new power to enter into a unilateral undertaking, removing the necessity of reaching agreement with the planning authority; new procedures to modify and discharge planning obligations, including a right of appeal to the Scottish Ministers; and provisions about continuing liability of former owners.

Good neighbour agreements are also born on the same day. It’s tempting to write them off as political posturing, since it is unclear how they will be used, given the existing wide-ranging powers to impose planning conditions and use planning obligations. It will be interesting to see what the pioneers – whether community bodies or developers – come up with.

The system of Tree Preservation Orders is also amended on 1 February, including enabling TPOs to be made for trees of cultural or historical significance, and giving the planning authority power to enter the land and fix a copy of the TPO to the trees, if it appears to them that the trees may be in imminent danger.

And this is pretty much the end of the 2006 Act reform process. The Scottish Ministers have indicated no current intention to introduce the provisions for assessment of planning authority’s performance or decision making. The work on bringing forward the regulations on mezzanine floors has been postponed until further notice. Nothing has been said about commencement of the provisions for correction of errors in decisions by Scottish Ministers/ reporters.

Neil Collar

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