Every planner knows that, by law, a planning application must be determined in accordance with the development plan unless material considerations indicate otherwise (T&CPSA section 25). However, the law says that there’s more than just this that a planner should have in mind when determining an application.
The Planning Acts also require planning authorities in taking their decisions to pay attention (in certain specified ways) to:
But it has become increasingly common for Parliament (both UK and Scottish) to pass laws with cross-cutting obligations that other bodies must comply with in the exercise of their functions. Here’s a quick trawl of examples that may have an effect on planning decisions:
- rights guaranteed by the European Convention
- equality duties in relation to race, age, disability, religion/belief, sex, sexual orientation, gender reassignment (see previous blog)
- furthering the conservation of biodiversity;
- preserving the natural heritage of Scotland including flora and fauna, geological and physiographical features, and natural beauty and amenity;
- sustainability and delivery of climate change targets and the Government’s climate change adaptation programme;
- determination of applications affecting the Scottish marine area in accordance with marine plans unless relevant considerations indicate otherwise.
- reducing overall flood risk.
Then there are sometimes broad duties imposed for the implementation of European Directives. Planning authorities are required to:
- have regard to the requirements of the Habitats Directive and
- exercise their planning functions so as to secure compliance with the Water Framework Directive
(which is not very helpful if you’re looking for guidance on precisely what your duties are).
And then there’s decisions on applications that will affect a site of special scientific interest … and so on.
Planning is a system that provides broad discretion to planning authorities and relies on policy to provide a reasonable measure of certainty in decision-making. Policy is capable of covering matters such as flooding, climate change, sustainability, biodiversity and so on, possibly better than law. How many of these legal duties imposed on decision-makers really add much other than complexity?
Fortunately courts don’t always insist a decision expressly considers each point the law says planners must have regard to, though planning authorities might want to show how they’ve discharged their duties.
The Scottish Government has produced a useful general guide to public authority decision-making. But perhaps it’s time it compiled a checklist specifically for planners of all the matters they are required to take into account in determining an application.
On July 3, 2012