I moved from a London law firms' planning and environmental team to Brodies' planning and environmental teams in February 2021. I am English qualified, now based in Edinburgh.
But now that I've been in the Scottish planning legal system for 18 months, I thought it would be useful to share some reflections on my experience of the different Scottish regime.
How has my day-to-day life changed working on Scottish planning matters?
Well…not that much really. Save for the terminology, e.g. referring to the 1997 act instead of the 1990 act and saying "Reporter" instead of "Inspector", my day-to-day tasks are substantially the same.
Projects in Scotland have to obtain planning permissions for development; they need to ensure compliance with conditions and statutory agreements often need to be negotiated and complied with, just like in England. They have similar considerations to factor in when looking at planning risk.
Likewise, a compulsory purchase claim will run to some extent in a similar fashion in England as it would north of the Border (although there are differences in the procedures when dealing with the different tribunals).
There are definitely differences between the two regimes that require specific technical knowledge that I have had to learn and develop, and there are many other areas of practice that operate differently. But in general, notwithstanding I still do plenty of English work, my daily job does not look too dissimilar to my job in London.
So what have I noticed is different? What have I had to get my head around?
- Use Classes (and associated permitted development rights) – this is perhaps where I have most frequently encountered the differences between the two systems. Although similar in many respects (e.g. a Class C2 residential institution will likely fall into the equivalent Class 8 in Scotland) there are a number of differences that mean it is often necessary to refer back to the specific wording of the relevant use classes order. The most obvious difference is the introduction of a broad commercial class (E) into the English system (and the associated PD right to convert a wide range of uses to residential), whereas Scotland still has the constituent uses. However sometimes the differences are more subtle. For example, in Scotland, a flat is a separate sui generis use (it is C3 in England); and in England a dwelling house can hold up to 6 people living as a single household before it is considered an HMO (C4), but in Scotland it is only 5.
- Statutory agreements – Although if you looked at a s.75 agreement (Scotland) next to a s.106 agreement (England) they would look similar in many ways there are important differences. S.75 agreements are registered against the title of the property that they affect whereas s.106s are (generally) not – they are only put on the LPAs local land charges register. This is a double edged sword though as although the terms of a s.75 are much easier to identify – they are on the title sheet – there is a lot more formality around their completion and the property description as they need to meet the stringent requirements of Registers of Scotland. S.106s can therefore be a lot simpler (i.e. simply referring to a redline plan to identify the property), but if they are not uploaded to the planning portal, they need to be requested from the LPA to find out their terms.
- Planning policy – You need to know your NPF from your NPPF. Policy and its application is a key difference between the regimes. The National Planning Policy Framework is in England and forms a material consideration with applicable policies for planning decision-making. The current National Planning Framework 3 in Scotland, however, is simply the framework and the separate Scottish Planning Policy (SPP) is the document setting out policies (along with LDPs) applicable for planning decisions. NPF4 is anticipated to operate a bit more like the NPPF once it is adopted as it replaces the SPP. Additionally policy approaches are often different. For example, Scottish Government policies for onshore wind development are more favourable than in England.
- It's a small, small world – there is certainly a smaller pool of planning lawyers and firms in Scotland so you find yourself increasingly dealing with the same people on the other side of a transaction or case. In England / London, the numbers are just so much greater that you will often have different people opposite you. The familiarity it brings in Scotland is valuable. For example, dealing with a familiar person at the Council when negotiating a new section 75 agreement makes the process a lot more efficient.
There are certainly other aspects not mentioned here that I have picked up and learnt along the way that demonstrate the differences between the two regimes. But at a high level, planning on each side of the Border is not so different and many English planning cases (e.g. Finney)are applied in the Scottish courts despite the nuances between the regimes. It is certainly nothing to be intimidated by for anyone considering coming to Scotland.
But, to be clear, that is not to say that you do not need to seek appropriate legal advice from practitioners on the relevant side of the Border when faced with planning legal issues. It is vital you get the correct legal advice. The similarity between the two system may create a false sense of security and important differences could be missed.
Here at Brodies we have capabilities of advising in both England and Scotland and would be happy to help wherever your project is.