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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