30 years as a planning lawyer

On 1 October 1990 I rolled up to 15 Atholl Crescent in Edinburgh to start my traineeship with Brodies. 30 years later, I'm still there (in spirit - I've not set foot in the office since March). So what's changed in planning in those 30 years?

Planning portals

Availability of planning information via the web is something we take for granted (and have relied on during COVID working from home). In the 90s, looking at a planning application meant going to the planning office and asking to see the file. Sometimes you could photocopy it - at a cost. Note to self: remember the trip to the planning office next time you swear at the portal.

Size and complexity

The days of submitting an application form and a location plan, and not much more are long gone. The information requirements, even for a straight-forward development, are much more strenuous.

In part, this comes from the realisation of the importance of issues such as flooding - I can remember the interest when NPPG 7 Planning and flooding, the first Scottish planning guidance on the topic, was issued in 1995. Things have, rightly, got more complicated, but we do all worry that the need for a proportionate approach is often pushed to one side.

I did my LLM on the use of planning conditions. I claim no "crystal ball" moment, but there has been huge growth in use of conditions. In 1995, the Hagshaw Hill wind farm permission, had 14 conditions; the longest is only 4 lines, with no sub-paragraphs. Now a single condition can have 14 sub-paragraphs, and it's not unusual for permissions to have 30+ conditions.

Government

I got a few years of "enjoying" the two tier local government, with regional councils having the power to call in applications from district councils.

The biggest change was the establishment of the Scottish Parliament in 1999. Until then, although there had always been separate Scottish planning legislation, it had to find time within the busy Westminster Parliament schedule. Without devolution, it's unlikely there would have been two significant planning reform programmes for Scotland - the 2006 and 2019 Acts.

Plan-led system

In a Back-to-the-Future moment, 1990 me would recognise much about planning in 2020.

The basic framework remains the same: planning permission is required for "development"; and the decision to grant permission involves taking into account development plans and material considerations. Yes, the 2006 Act introduced the plan-led system, but in practice it often seems that little has changed: the weight given to the plan, by all parties, depends on the case they are advancing.

Procedures and approaches have changed, but we're still talking about the same problems with the system - that's a discussion for another day.

Public inquiries

There have been improvements. In the 1990s public inquiries were often sprawling beasts, with parties represented by senior and junior counsel. Local plan inquiries could be months long contests between competing sites.

The 2006 Act introduced a much more (too?) efficient process, giving Reporters the power to decide if an inquiry is necessary; and, if so, which issues require to be debated at inquiry. Reporters have responded with gusto, and inquiries are infrequent these days; in LDP examinations, even informal hearings tend to be no more than a day or two. Opinions are mixed about whether written submission procedures provide sufficient scrutiny and public transparency.

It seems incredible now, but witness precognitions were not exchanged in advance. Front-loading exchange of information has been a significant improvement, narrowing the areas of debate.

Planning gain

The growth of planning gain has been remarkable. Infrastructure contributions have widened from road improvements, to schools, and now long lists including health centres. The Elsick case, reminding us of the legal limits, only caused a short hiatus.

Planning gain has become more complicated, with more use of formula based approaches. That gives developers a degree of certainty and fairness, avoiding the former problem of a developer paying to create infrastructure capacity which a subsequent developer could utilise free of charge. However, it can make it more difficult for the planning authority to prove the link between an individual development and the contribution being requested. Progress isn't easy.

Affordable housing has also taken on a much bigger role, moving from ad hoc approaches to the 25% requirement.

New forms of development

We have seen trading formats come and go: remember internet cafes? Others spark off use class debates for a while and then settle down without (planning) excitement, eg. coffee shops. Planning authorities have reacted cautiously to built to rent (BTR) and student accommodation.

Mobile phone masts created problems for a while, with planning applications frequently refused, despite government guidance that health concerns were not a planning issue.

More recently, the planning system has got pulled into regulating short term visitor lets, thanks to the flexibility inherent in the "material change of use" threshold for when planning permission is required.

Years of competition between food retailers to get planning permission for superstores gave us many of the landmark court decisions (excuse the planning lawyer moment); retail planning has seemed strangely quiet in the last few years without the superstore battles.

The wind farm sector has seen enormous growth, with no signs of any decline. Planning approaches involved the inevitable "growing pains", and controversial issues remain.

Housing isn't "new", but 30 years on it is disappointing that the planning debate doesn't really feel that it has moved on.