The Scottish Government has issued its consultation paper on the future of the Scottish planning system: "Places, people and planning". Responses are invited by 4 April 2017.
Is this the root and branch reform we were promised?
There is a sense that we have been here before. There are broad similarities with the 2005 White Paper, both focus on delivering development, but much is left to culture change rather than specific procedural reform. Over a decade later, is that an implicit acknowledgement that the 2005 White Paper did not deliver, or is the planning supertanker taking a long time to change course?
The consultation paper goes much further than the Independent Panel proposals in strengthening local influence, which was another key aspect of the 2005 White Paper. Is this the equivalent of school sports day where everyone has to be a winner? The exception is the continued rejection of an equal right of appeal, but that lobby is continuing to make its voice heard.
Developers are left relying on promises/ aspirations. Although the consultation paper states boldly: "We want to reduce bureaucracy...", there are few specific examples. Indeed, innovations such as local place plans are likely to make the system more complicated.
- less activity on plan-making and more focus on delivery
- partnership working
- clearer national and regional aspirations for new homes
- local control
- additional scrutiny for non-allocated sites
- fees - cost recovery for planning applications/ appeals
The Scottish Government's response to the Independent Panel report agreed in principle with many of the changes proposed, so it is no surprise that the consultation paper largely replicates the Panel's recommendations.
The disappointment is how little detail has been added to the proposals. That leaves it difficult to predict whether the objectives can / will be fulfilled, and if there are fundamental inconsistencies. For example, will more local control reduce delivery? Additional scrutiny is proposed for non-allocated sites, but changing the plan only every 10 years gives less opportunity for sites to be allocated.
Replicating the Panel's recommendations
Development plans a substantial shake-up is proposed, including:
- Greater role for the Scottish Ministers an enhanced role for their National Planning Framework (NPF) and Scottish Planning Policy (SPP), which will replace Strategic Development Plans (SDPs) prepared by the City Regions
- Abbreviated preparation process for Local Development Plans (LDPs)
- Less frequent review of LDPs every 10 years instead of five years
- Development plan examinations to include a frontloaded 'gatecheck'
- Local place plans prepared by communities
- Regional housing targets to be defined by Scottish Ministers in the NPF
Infrastructure creation of a national or regional infrastructure levy
Planning fees on major applications to be increased substantially
New proposals/ details
- National infrastructure and development delivery group rather than a national infrastructure agency
As the consultation paper acknowledges, a new agency would take time to establish.
- Statutory supplementary guidance to be removed
This will address the concerns about the lack of independent examination of supplementary guidance. However, it creates uncertainty about whether non-statutory supplementary guidance can still be used to expand on development plan policies.
- More appeal decisions to be made by local authorities
Local Review Bodies (minimum three councillors) are still a relatively new part of the planning system. Many have still to cut their teeth on significant developments, either because of developer reluctance to risk an LRB decision, or the scope of delegated powers; and the legacy of the recession has also been a factor.
There is concern about the quality of decision-making by Local Review Bodies. Training can assist, but there is still a perception that some decisions are made for local political reasons, especially those relating to new housing and wind turbines. Reporters frequently overturn decisions made by councillors sitting as planning committees (the success rate of appeals is approximately 50%), which raises the question of why councillors sitting as LRBs should be given more power to have the final say on developments.
- Simplified planning zones for housing allocations rather than deemed planning permission in principle
The drawback with simplified planning zones (SPZs) is that the initiative has to come from the local authority. This is a retreat from the Panel's proposals, which sought to give an elevated status to sites allocated in development plans. There are good examples of councils promoting SPZs for commercial sites, but doing this for housing sites might be less attractive.
- Fee to be payable for planning appeals/ reviews
The current system does, in effect, involve all applicants subsiding developers who submit appeals, so it would be fairer to have a separate appeal fee. However, consideration should also be given to reviewing the system for awarding expenses, which too rarely results in an award of expenses being made against the planning authority. There is also the conundrum that Local Review Bodies have no power to award expenses, presumably because of the conflict of interest in deciding an issue that would have financial implications for their own authority.
- Restricting the ability to modify and discharge terms of section 75 planning obligations
The consultation paper suggests that the ability to challenge developer contribution requirements in section 75 obligations increases uncertainty about infrastructure provision. Ironically the current uncertainty actually arises from a court case involving the Elsick development, which the proposed restriction would not have prevented.
The ability to challenge, using the section 75A procedure, is an important check and balance to ensure that planning authorities do not seek excessive or unjustified contributions. A planning authority that complies with the Scottish Government guidance on the use of planning agreements should have no reason to be concerned about potential challenge. The evidence does not indicate that uncertainty is a widespread problem. There has been no avalanche of appeals, and only a handful have been successful.
Introducing restrictions on the use of the section 75A procedure risks more cases going to court, with greater delay and expense.
Restricting the section 75A procedure would return us to the old days of stalemate between the developer and the planning authority, which delays the issue of planning permission and therefore the start of the development. The section 75A procedure enables the development to start while the developer contribution is challenged.
- Permitted development rights
There are welcome proposals for permitted development rights for: digital telecommunications infrastructure; microgeneration equipment; renewable heat networks; cycle networks, parking and storage; low carbon and electric vehicle facilities; polytunnels and changes of use from agricultural buildings to housing; allotments and community growing schemes; town centre premises; and aquaculture. PD rights free up resources otherwise used to process planning applications, although that benefit is reduced if the PD rights involve prior notification procedures.
It is interesting to revisit the potential concerns we mentioned in relation to the Independent Panel's proposals in June 2016:
- A greater role for Scottish Ministers means less influence and control for local authorities this continues to be a concern, as the NPF/ SPP will fulfil the regional function currently undertaken by the SDPs.
- Is too much decision-making power left in the hands of politicians who will often take a short term view? by giving LRBs greater jurisdiction, the consultation paper increases the number of decisions where councillors will have the final say. It also proposes that more appeals could be decided by the Ministers rather than reporters.
- Does the enhanced role for the NPF and SPP require the introduction of additional independent checks and balances? the consultation paper proposes extending Parliamentary consideration to 90 days, but that is weaker than the independent examination by reporter which continue for LDPs.
- Without active encouragement to review LDPs on an interim basis, a 10 year cycle risks them becoming stale the consultation paper does not address this.
- There is significant criticism of the Community Infrastructure Levy (CIL) in England and Wales, and the previous Planning Gain Supplement did not proceed can lessons be learnt to provide a well-designed mechanism? the consultation paper does commit to consultation on more detailed proposals for an infrastructure levy.
- Could new arrangements prejudice developers with limited financial resources? there are concerns that some developers cannot afford the package of increased application fees, repeat application fees, appeal fees, SPZ costs, and infrastructure levy.
- Lack of detail for many recommendations and a need to identify potential knock-on consequences still a concern.
The Scottish Government's commitment to change is welcome but unfortunately the consultation paper lacks detail on how the most important changes can/ will be delivered.
A Planning Bill will be introduced in the Scottish Parliament, probably in Winter 2017. The Scottish Government will also continue its research and working group programmes.
The National Planning Framework 3 Monitoring Report will be published later in 2017. The Scottish Government will then consider the timing of NPF4 and revision of Scottish Planning Policy.
For more information please get in touch with your usual Brodies contact, or one of the individuals listed below.