Feb 102012
 

February 2012 Newsletter

 

PPD has now been in existence for two months, and we have received great encouragement from clients and friends since starting.   Thanks to all for the good wishes received.

The company website contains a growing selection of comments and news on all aspects of the planning system, and in particular those parts of the new Scottish system that we find people still get confused about. 

This bulletin aims to update you on current Scottish planning issues.

Please visit our website for general information: http://www.pp-d.co.uk/

Development plans

We’ll start by boring everyone with the same comment that it is imperative that they need to protect  their land interests by taking part in the development plan approval process.

Many of us were cynical of the Government’s aim of speeding-up the preparation and approval of development plans.  That cynicism has proved to be well-founded.    It is unbelievable how slow many authorities have been;  and in council areas covered by a Strategic Development Plan, desperately  slow.  The SDPs have been lumbering along slowly, some swamped in a sea of verbiage.

One technique that a number of councils have adopted, which we have found useful, is to start land-searches early in the process.   This has taken the form of “calls for sites” – even before the Main Issues Report (MIR) stage.  A gazetteer of “candidate” sites is then published, together with an assessment process which may rank the sites into various categories:  eg, from  “promoted for inclusion in the housing land supply” down to “rejected”.   This allows site owners to make an early assessment of the work they will have to do to get a site into the plan.  It also allows communities to understand what land is being promoted for development.   The system assumes going straight from the Main Issues Report to the Draft Plan, which is a big jump.

Have a look at progress with development plans at :
http://www.pp-d.co.uk/?p=374

Householder Permitted Development Rights

Having been in gestation for years, the new householder permitted development rights at last came into effect on 6thFebruary.   The long consultation and revision process has been worthwhile, as apart from one or two mind-benders, the terminology and most Class descriptions are quite easy to understand – certainly compared to the drafts.    We wonder how many two-storey extensions will succeed in meeting the “10m from the boundary” requirement.  We had a laugh at the maximum height of a ramp being set at 0.4m and its length at 9m :  odd numbers like these used to turn up in old legislation when dimensions were converted over from imperial.   Those who enjoy the world of legislation wordplay also probably laughed at Class 2B which introduced the interesting scenario that an addition to a dwelling house that protrudes up to a metre from its envelope is not an “enlargement”.

Have a look at our comments on the new householder permitted development rights at :
http://www.pp-d.co.uk/?p=367

You can access the Statutory Instrument at : http://www.legislation.gov.uk/ssi/2011/357/pdfs/ssi_20110357_en.pdf

Local Review

There is growing experience and frustration with the Local Review procedure, and some developers are realising that it is judicious to make best endeavours to ensure that planning applications are determined by the planning committee, rather than delegated to officers.

Have a look at our comments on “local” planning applications, and Local Review Bodies :
http://www.pp-d.co.uk/comments-news/comments/

Feb 092012
 

Development Plan review

Feb 2012

Many of us were cynical that the Government’s aims and exhortations for speeding-up the preparation and approval of development plans would translate into action by planning authorities. In much of Scotland, these aims have evaporated in the mist, and the cynicism has proved to be well-founded.    It is unbelievable how slow many authorities have been;  and in council areas covered by a Strategic Development Plan, desperately slow.  The SDPs have been lumbering along slowly, some swamped in a sea of verbiage.

One technique that a number of councils have adopted, which we have found useful, is to start land-searches early in the process.   This has taken the form of “calls for sites” – even before the Main Issues Report (MIR) stage.  A gazetteer of “candidate” sites is then published, together with an assessment process which relates the available potential supply of land thereby revealed to the demand, then ranks the sites into various categories:  eg, from “promoted for inclusion in the housing land supply” down to “rejected”.   This allows site owners to make an early assessment of the work they will have to do to get a site into the plan.  It also allows communities to understand what land is being promoted for development.  The risk is that the whole process is delayed, but some councils have avoided this.   The statutory process is to go straight from the Main Issues Report to the Draft Plan, which is a big jump.

LDP  SDP  MIR  SEA : Are you confused by these acronyms?    See section on Terminology below.

Some forthcoming dates for development plans throughout Scotland

Argyll and Bute Local Development Plan

The Council’s Development Plan Scheme indicated that a Draft Plan was to be published in January, but it did not appear!    News from the Council is that August is now the anticipated date.

Clackmannan Local Development Plan

This Council’s DP Scheme, and indeed the Scottish Government, anticipated publication of a Local Development Plan for Clackmannan in February.  Current advice from the Council is “after the Local Government elections, maybe June”.   Watch our website for an update!

Dumfries and Galloway Local Development Plan

This is a council that is presently doing a “sites” consultation, following publication of the MIR.  If you have a land interest in its area, be sure to check the consultation documents and SEA, and respond by the deadline which is 9th March 2012.

Mid-Fife Local Plan

This old-style local plan was finally adopted by the Council at the end of January .  It covers Kirkcaldy, Glenrothes, Methil, Lochgelly, etc.

North Lanarkshire Local Plan

The Scottish Government reporters have now issued their “Report of Findings” on this old-style draft plan, following its examination stage.  The report is available on the Council’s website – but at 720 pages watch what you do with the “print” button.  The Council anticipates submitting the Findings to committee in June for adoption, with publication following soon after.

Perth and Kinross Local Development Plan

Like its big brother the “Tayplan” strategic development plan, this plan has been produced quickly and gets its message across in a reasonably concise manner : the policy section taking only 71 pages.  The remaining 249 pages are diagrams and narrative for each community in the area.  The document opens easily on the web and the plans are easy to open and read without stressing-out your PC.   Consultation closes on 10th April 2012.

Renfrewshire Local Development Plan

The Main Issues Report is at the consultation stage.  Comments have to be made to the Council by 24th February.

South Ayrshire Local Development Plan

This long-awaited draft plan is due to go back for Council consideration before Easter.  Release to the public is anticipated in May, but it should be possible to see the plan in a “raw” form in the Council papers before then.

 

Terminology

Some readers may not be familiar with the terminology and acronyms surrounding this subject.  A few of the ones you will often see are :

SDP : Strategic Development Plan.    These replace the old Structure Plans, but only in the “City Regions” of Glasgow and the Clyde Valley,  Edinburgh and South East Scotland “SESPlan”, Dundee / Perth “TayPlan”, and Aberdeen City and Shire.    Outwith these areas, LDPs do the strategic planning.

LDP : Local Development Plan.  These are successors to the old Local Plans, and require to be produced by all planning authorities.

MIR : Main Issues Report.    The first statutory step in preparing an SDP or LDP.  This is supposed to identify the main issues which the draft plan will seek to address.  As mentioned in the introduction, some planning authorities are supplementing the MIR with an additional site selection and consultation stage.

Draft Plan.   This follows the MIR and is the last stage of the plan-making process when developers and the public can make representations on a new plan.  It is important to remember a full case must now be made for or against the Draft Plan by the end of its consultation stage, as further support documents are unlikely to be accepted at the examination stage.

DPS :  Development Plan Scheme.    If you want to find out when a council’s development plan is being produced, or what stage has been reached in the process, find its Development Plan Scheme on the web.  All councils are required to produce and update a DPS.  Be aware that the development plan programmes of many councils have slipped since the last DPS update.

SEA :  Strategic Environmental Assessment.     All SDPs and LDPs, and some MIRs, are now accompanied by SEAs.  At their very least they present a summary environmental appraisal of the policies, proposals and development sites.  SEAs have also accompanied the additional site selection process used by some councils.  SEAs should be read by those with site interests, as they often contain rudimentary assumptions regarding the impact and developability of sites and may need to be challenged in Draft Plan submissions.

 

February 2012

Feb 092012
 

Householder development comment

6th February 2012 is the day that the long-awaited revision of householder permitted development came into force.

Introduction

“Permitted development” is minor development for which planning permission is automatically granted by the “General Permitted Development Order”, thereby removing the need to formally obtain planning permission.  It is usually minor works which are unlikely to have an adverse impact on neighbours or the environment.

The new Order amends the “General Permitted Development Order” by modernising permitted development for householders, and has the effect of increasing the amount of development in existing houses which will fall within the “permitted” categories. This goes back to the Government’s aim of reducing un-necessary regulation in the planning system and thereby focussing Council resources on more important development which has the potential for greater environmental impact.  Up until now, permitted development did not apply to flats, but the new Order now introduces limited permitted development to flats.

Overview

This is an overview of householder permitted development – for detail call us, or look at the legislation (link below).  The Order is split into eleven separate classes, each of which has a list of “exclusions”.  Few of the permitted development rights apply in conservation areas and within the curtilages of listed buildings.

New concepts have been introduced.   These include :

Principal elevation : the front of the house, by reference to location of the main door, windows, relationship to a road, boundary tratment or architectural treatment.  Houses with staggered frontages may have more than one principal elevation.

Fronting a road : this applies to the principal elevation, and a side elevation if it fronts onto a road at the side of the house.

Front and rear curtilage :  the front curtilage would be land lying in front of the principle elevation, including that on either side of the house – in front of an imaginary line extending from the principal elevation to the boundary.  The rear curtilage is “that part of the curtilage which is not the front curtilage”. 

Height :  measurements of height are taken from the lowest point of the existing or proposed new building.

The main changes include :

  • Enlargements of a house behind the principal elevation (and side elevation if it fronts a road) often does not now need planning permission.  There are height limits, size curtailments near boundaries, and in terms of the amount of the overall curtilage taken up by the development.  Single and multi-storey extensions get separate classes.
  • Porches are an exception to the “principal elevation” rule mentioned above, which are now permitted up to a footprint of 3 sq. m; a height of 3m; and provided it is no less than 2m from a boundary that fronts a road.  Few porches will be sufficiently small to qualify.
  • Roof alterations are now permitted, with a number of exceptions which include not on front or side elevations that face roads, not on a roof plane which is within 10m of a boundary, not higher than the height of the highest part of the existing dwellinghouse (except chimneys),  not within 0.3m of the edge of the roof plane, and no wider than half the total width of the roof plane.
  • Access ramps are now permitted up to a total length of 9m (including landings); any part cannot exceed 0.4m, and the overall height including fence, wall, handrail etc. cannot exceed 1.5m.  Like porches, these can be on the front of the house.
  • Other alterations to a house (without enlargening it) can be done within a 1m “bubble”.  For example, satellite dishes and solar panels will often not need permission.  There are exceptions such as wind turbines and balconies.
  • There are separate rules for decking, porches and driveways, and gates and fences.  Notable is that fences and walls can now be built up to 2m in height, or 1m in height in front of an elevation fronting a road or on a road boundary.  At long last the old 20m rule has gone!
  • There are some limited permitted development rights to alter and improve, but not enlarge flatted properties.

See the Order itself at :   http://www.legislation.gov.uk/ssi/2011/357/pdfs/ssi_20110357_en.pdf

Getting confirmation that your development is “permitted”.

Although the permitted development requirements are now much simpler than those the old Order, houseowners may still wish to obtain confirmation from their council that the works they intend to carry out do quality as permitted development.  Lawyers may require to see such evidence at subsequent house sales and purchases.  It has been the custom in the past for councils to do this informally by issuing a letter of comfort, but many councils are now formalising this by requiring submission of a Certificate of Proposed Lawful Use or Development at the national fee which is half that had a planning application been required -presently £80.     One council that I am aware of has taken the sensible decision that if a Certificate application reveals that planning permission is required, the £80 fee is transferred over as part-payment for the subsequent planning application.

February 2012

Feb 082012
 

If you are unfortunate enough to get your planning application refused, what can you do about it?

If it is a large enough development the decision will have been taken by a committee of the council, usually the planning committee.  You can then appeal to the Scottish Ministers whose “Directorate of Planning & Environmental Appeals” is generally credited with treating your case fairly and without bias.   But the new Scottish planning system created a category of minor planning applications – know as “local” developments, which sometimes can be decided by the council officers, rather than by the councillors.  It is then known as a “delegated” application.  When your refusal decision has been taken by a delegated officer you cannot appeal to the Scottish Ministers.  Your only right is to request that the Council (which employs the official who refused your application) “reviews” your case. Our comment on “Local Development” gives information on how your application could be delegated, and the consequences of this.

Local Review

When a “local” application is first submitted to the council, it will usually be registered as “delegated” or “not delegated”.  However this may change during its processing, for example if there are objections from neighbours (see my comment on Local Development).

It is important to remember that if the application is decided by committee it cannot be categorised as “delegated” even if it was initially registered as such,  and you can appeal refusal to the Scottish Ministers.

The Local Review Body

When you submit the request for review, it will be dealt with by the council’s “Local Review Body”.  This is a panel of councillors (usually between 3 and 5), a clerk (sometimes from the council’s legal department), and a planning official who is supposed to be kept separate from the decision making process so that he or she can offer unbiased advice to the Body.

Can I speak to the Local Review Body?

Most Local Review Bodies assume that review requests will be dealt with on the basis of written submissions (where the applicant and objectors are not allowed to speak).  With these councils you have to specifically request to be heard (present your case verbally to the councillors).  Many, such as Glasgow, rarely grant such requests.  If the Review Body reject your request for a hearing, you can still attend the Review which is conducted in the same way as a small planning committee meeting.  It can be galling to sit there listening to the planning official giving supposedly “unbiased” advice to the Body – which sometimes is anything but unbiased, and you cannot utter a word of dissent.

However some councils freely offer the option of a hearing, and indeed a few (such as Midlothian) deal with all reviews by a hearing, even if nobody has objected to the application.  A tiny proportion of the Review cases in Scotland are dealt with by hearings, although the exact number cannot be discerned from the Government statistics.

Chances of success

In the six months between August 2010 and February 2011, only 35% of Reviews throughout Scotland overturned the officer’s refusal.  Even this was an improvement on the previous six months, up from 32%.  The chances of success seem to vary from council to council : Inverclyde and Fife established an early reputation for thorough scrutiny of their officer’s refusals and overturned a high proportion.  Other councils, such as the cities, rarely do this.  This contrasts with a 45% chance of success of appeals to the Scottish Ministers over the year 2011.

The simple message is that your chance of success in asking that a council review a delegated refusal is poor.  If you can manage to have the application referred to the committee for decision, you can then appeal to the Scottish Ministers and have a greater chance of success.

February 2012

Feb 082012
 

 

One of the major changes to the Scottish planning system was creation of the “planning hierarchy” :  national, major and local developments.  Planning applications for developments which fall in to each category are dealt with in different ways.  This comment concerns the “local” category.

What is a “local” development ?   Some examples are :

  • Housing :  less than 50 houses;  and the site is less than 2 hectares in size.
  • Business / industry / storage :  buildings less than 10,000 square metres in size; and the site is less than 2 hectares in size.
  • Other developments :   buildings less than 5,000 square metres in size;  and the site is less than 2 hectares in size.

Both requirements must be met in each case to be in the “local” development category.

So what is different about a “local” development?

  • The planning authority are supposed to deal with the application in two months (unlike Major or National applications which are four months).
  • The decision may be taken by the council officers (called a “delegated” decision), rather than by the councillors on the planning committee.
  • If the application is “delegated” (dealt with by the officers), you cannot appeal against its refusal, or against conditions that you don’t like, to the Scottish Ministers.  You can only request that the Council’s  “Local Review Body” reviews the decision.
  • If the local application is not “delegated”, it will be referred by the officers to the planning committee for its decision, and usual appeal rights to the Scottish Ministers will still be available.

How do I know if my application will be delegated?

This is one of the most confusing parts of the new planning system.  Each council is given the right to decide this itself, in a document called its “Scheme of Delegation”.   All councils therefore have different schemes of delegation and you need to check this document – or phone your planning consultant!  Ever helpful, many councils did not bother to make their Schemes of Delegation available on the web, but the Scottish Government resolved this by publishing a link to them all, at

http://www.scotland.gov.uk/Topics/Built-Environment/planning/National-Planning-Policy/themes/dev-man/SchemeofDelegation

Have a look at some of the Schemes by using this link, but don’t expect an easy read. Many are big documents in which the details of the scheme are hard to find, and others are worded in a legalistic manner.

Typical reasons for a planning application to be “delegated”, as found in council Schemes of Delegation are :

  • The number of houses in the development is below a certain number :  for example  25, 20 or 10,
  • Buildings are below certain size limits,
  • The site is below a certain size,
  • The development would not require a “bad neighbour” newspaper advert,
  • No statutory or council-department consultee objects (for example  SNH or a  Roads Department),
  • The development accords with the development plan,
  • The application does not concern council land, and is not submitted by a councillor or official, or their relative.
  • There are no, or very few objections to the development (some examples are 6, 8 or 10 letters).

Some introduce uncertainty :

  • Some councils do not allow delegation when a senior officer considers that the application raises an issue which requires to be dealt with by the committee,
  • A councillor sees the application on the “weekly list” and calls for it to be submitted to the committee for decision,

And others are designed to achieve a political aim :

  • It can be delegated when the officer is going to refuse the application, regardless of the number of objections.

(This last one is used by Dundee City Council to ensure that all applicants who have received “local” refusals can only appeal to the Council’s Local Review Body, and not to the Scottish Ministers).   This list is not exhaustive, nor do all councils have each of these reasons in their Scheme of Delegation.

 

So I ask again : how do I know for sure that my application is going to be delegated, or not delegated?

You can’t be sure!  Most Schemes of Delegation include thresholds for the number of objections : if the number received exceeds the threshold, then the application is usually required to go to committee (Dundee example mentioned above excluded!).   As you can’t know in advance how many people are going to send in objections, you can’t be sure whether the application will be delegated.  Also, you can’t always anticipate objections from consultees.   As indicated above, some schemes allow discretion of councillors and officials, which usually you can’t anticipate in advance.

I don’t want my application to be delegated because it may be refused, and I want to be able to appeal to a body independent of the council to be sure of a fair hearing.

The only way to influence whether an application is not going to be delegated is to understand the council’s Scheme of Delegation.  For example, you could try and make sure that it exceeds thresholds such as the number of houses, or you could try and persuade enough neighbours to make “soft” objections to exceed that threshold.  In Dundee this wouldn’t work as explained above.  In some councils, you could try to persuade your local councillor to request that the application be referred to the planning committee for decision – check if the Scheme of Delegation allows this.  Remember :  even if your application starts out in the “delegated” category, all applications which go to the planning committee are not delegated and you retain appeal rights to the Scottish Ministers.

So I get a “delegated” refusal – what can I do about it?

Read my separate comment on “Local Review Bodies”.

 

February 2012

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