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May 162014
 

PPD May 2014 Scottish Planning News

Welcome to the PPD May 2014 Scottish Planning News

This issue concentrates on the new Local Development Plans, as a considerable number throughout Scotland are at the “Proposed Plan” or “Examination” stages: crucial for those involved in promoting or safeguarding the development potential of land.

The planning system in Scotland is now firmly rooted in the Development Plan.  There is now little chance of obtaining planning permission for the development of land unless it is covered by a relevant development policy in the Local Development Plan.  Even minor developments such as house extensions are likely to be tested against an array of policies and guidance. The planning officer’s report on a recent planning application in Glasgow cited twenty-six relevant policies.

Topics covered below are the Local development Plan process, click HERE; Housing Land Supply, click HERE;  What is in the Plan? Click HERE, Glasgow proposed Local Development Plan, click HERE; Local Development Plan progress at a glance, click HERE; and can I speak at the examination?, click HERE.

URGENT !   Is your planning permission about to expire?   Read more HERE

For previous newsletters click HERE.

The Local Development Plan process

When the new Scottish Planning system was introduced after 2006, all planning authorities had to start the process of preparing new-style local development plans.  While some were in the late stages of the old-style process and completed these plans, the vast majority started the process afresh, with the result that there are many plans which are roughly at the same stage in the process.

The statutory stages of preparing a development plan are : preparation, publication and consultation on a “Main Issues” Report, preparation, publication of a “Proposed Plan” followed by a consultation process, examination of the plan by a Reporter appointed by the Scottish Government, then adoption of the plan by the planning authority.  For good reasons, some councils have added extra stages :  an initial “call for sites” to developers and land owners, and a process for modifying the Proposed Plan to take account of consultation comments before it goes to examination.  All planning authorities are required to produce a “Development Plan Scheme” at least every year, which should include a Participation Statement stating when, how and with whom consultation on the plan will take place.

We remain disappointed by the slow progress in preparing local development plans.  Speeding up the process was one of the Government’s key objectives in reforming the planning system.  Several councils have used the need to await an approved Strategic Development Plan as an excuse, but other planning authorities have been equally slow in areas where there is no SPD.

Housing Land Supply

Housing land supply is one of the contentious issues in most plans.  The Housing Needs and Demands Assessment (HNDA) is the starting point, providing the evidence base for assessing the need for housing land. Councils seem to have learned lessons from the past where poorly-researched and structured HNDAs received stiff criticism from Reporters.  Where planning authorities can prove that their HNDA is consistent with the methodology recommended in “Scottish Planning Policy”, and where the Scottish Government’s Centre for Housing Market Analysis has confirmed that the process and methodology used in the HNDA were considered to be robust and credible, Reporters are unlikely to question any finding of an HNDA and will countenance no further debate.

However, the output of the HNDA represents only the first step in the process. The HNDA provides the evidential basis on which the subsequent stages, involving the preparation of a Local Housing Strategy (LHS) and the Local Development Plan, are grounded. The LHS is a statutory document which contains the Council’s strategy for meeting housing need and demand, investment in housing, and housing supply targets for all tenures.  As with the HNDA, it is evident that Reporters are reluctant to question the philosophy and content of an LHS which accords with Government guidance on the subject.

Translation of the HNDA and LHS findings into a generous “effective housing land supply”:  i.e. that will provide and maintain  “more than enough land to deliver the required housing during the five-year plan period, is where the greatest conflict arises.

We see Proposed Plans which :

  • Rely on sites that have been allocated over a number of previous plans but which have failed to deliver the anticipated houses,
  • Base the effective housing land supply on a small number of large sites which require heavy and collaborative infrastructure expenditure to achieve their development (see how slow the “Community Growth Area” concept in the West of Scotland has been to deliver houses on the ground),
  • Fail to include mechanism to allow small-scale sites to be identified and promoted for development,
  • Do not include a sufficient “flexibility” allowance to compensate for slow delivery from some sites (i.e. failing the “generous” test),
  • Make over-ambitious assumptions on “windfall” sites or the ability of Councils to intervene, such as by bringing existing empty houses back into use or by existing large houses being sub divided.

There have been suggestions that manipulation of figures takes place to artificially inflate the existing housing land supply, thereby reducing the amount of land that needs to be allocated.

It has also been suggested that councils fail to demonstrate how the requirement in SPP to ensure that a minimum of five years effective land supply is maintained at all times will be assessed and any shortfalls resolved.

We also note a failure by Reporters to challenge councils who narrow the definition of “affordable houses” only to social or public-rented stock, and not include a range of private-sector affordable housing initiatives.   We also see the blanket application of affordable housing requirements even in settlements which already have a high proportion of social-rented stock, with the result that affordable housing contributions become a tax on those who buy a house, rather than a way of providing lower-cost housing where it is needed.

We also see Reporters getting involved in site selection : being prepared to reject sites included in the Proposed Plan and choose others instead.  The recent Stirling plan is an example.

What is in the Plan?

Those familiar with the old Local Plans will know how enormous and verbose some were, full of policies and guidance on the most trivial minor matters.  The famous two-page “postman’s pouch” policy in Glasgow City Plan 1 was probably the most ridiculous example (the pouches are permitted development anyway!). The level of detailed micro-management in these plans had become completely disproportionate to the need for a policy context in decision-making.

Most Local Development Plans are now much shorter and focus on key policy matters.  If anything, the new Glasgow plan (see below) leaves too much out.  The concern is that leaving the detailed policy and guidance to supplementary documents means that the detail is not subject to the rigor of independent examination.  Our experience is that few councils are willing to make fundamental changes to their proposed planning guidance following consultation.

The key seems to be getting a balance between policy (that is either accorded with or not) and the range of subjects that need it; and guidance (opinion and advice).

Glasgow Proposed Local Development Plan

A significant step forward has been achieved by Glasgow City Council in producing a Proposed Plan of only 70 pages and 12 policies!   Previous Glasgow City Plans have been immense documents, and this volte-face to brevity is very welcome.

Content that immediately comes to attention :

  • The policies are of a general nature, and merely refer to forthcoming policy guidance for detailed application.  This is reasonable in principle, but the guidance has not been prepared and is not therefore available for scrutiny and challenge.  As can be said of Glasgow’s previous plans, “the devil is in the detail”.  By not presenting the guidance at this stage prevents its proper examination and challenge.  We are concerned that the same micro-detail found in the old plans will just be re-hashed in the form of guidance, free of effective challenge.
  • Over-worded and confusing policies, such as Policy CDP 5 Resource Management which ranges over several subjects.  This particular policy also crosses-over into matters that are the concern of Building Control legislation.
  • Reliance on Community Growth Areas and brownfield land for new housebuilding : acknowledging that there will need to be focus on securing the necessary infrastructure to allow progress in these locations, but not elaborating.  Our experience is that infrastructure costs can be ruinously expensive in developing CGAs.
  • The immense detail of the “green network” :  tiny sites are included, some in our experience may be as a means of frustrating development. It states that “The Open Space Map shows all open spaces within the City, including those protected, as open space, by planning policy”.   It is hard to work out the difference between an open space and a green network site, and whether an open space is protected or not.

We are in the process of analysing the plan’s detailed impacts on our clients’ interests, and welcome discussion on how the plan affects your development aspirations.

Local Development Plan progress at a glance

The following chart gives a shap-shot of development plan progress throughout Scotland.

Development Plan Progress in Scotland at a glance : May 2014

Some of the early Local Development Plans to be adopted were “hybrids” from the old system.  As with the old local plans, West Lothian is among the last lot.  North Lanarkshire were working on a local plan when the new system started, so continued that process to adoption in 2012.  They therefore started work on the new plan later than others, and to be fair some other councils  were still busy with nearly-complete old-style plans which they completed before starting new-style plans.

Can I speak at the examination?

Many people who have made representations on a proposed development plan would like the opportunity to address the Reporter directly. It used to be almost certain that such an opportunity would be granted by the Reporter, and an “inquiry” would be held at which most of the content of the Plan would be debated in detail, often with legal and counsel representation.  These inquiries often lasted over a month and were seen as one of the reasons that the process took so long.

The 2006 Planning Act and its associated legislation changed this by giving Reporters the sole right to decide what matters required verbal examination, and those that he / she could deal with using the written representations submitted on the Proposed Plan.   The assumption is that the Reporter deals with most matters on the written submissions only, but can decide if specific contentious issues need to be addressed by informal hearing or full inquiry sessions.  Our experience is that few topics are determined to need verbal examination, and those that do take the form of hearings.

Nevertheless if you wish to address the Reporter in a verbal session, it is still worth making the request.

Is your planning permission about to expire?

Nearly five years ago, on 3rd August 2009, various parts of the new Scottish planning system were enacted. The resultant changes that we are talking about here had the following impact :

  • Permissions granted on and after that date are valid for only three years, instead of five; and
  • The validity period is no longer a condition, and therefore cannot be extended by the mechanism for amending conditions (section 42 of the planning act).  A full explanation of this was given in our August 2013 News, see HERE

Planning permissions granted before 3rd August 2009 where the development has not started remain valid for five years, until 2nd August this year.  These permissions were granted with the standard five year time-limiting condition applied by the legislation in force at that time.

It is therefore still possible to seek extension of these permissions by means of Section 42, provided that the application is registered by the planning authority before 3rd August.   This applies to applications that are still valid at present : i.e. have not already expired.  Extension cannot be sought retrospectively.  If the development has started or will start before 2nd August – proven by submission to the planning authority of an “Initiation of Development Notice” – the continuing validity of the permission is secured.

PPD Planning advice throughout Scotland

 

Jan 212014
 

January 2014 Scottish Planning Newsletter

Welcome to the PPD January 2014 Scottish Planning Newsletter

Recent headline events are :

  • Scotland’s third National Planning Framework goes for Parliamentary approval   Click HERE to read more.
  • The Government have issued a position statement on the emerging Scottish Planning Policy.  Click HERE to read more.

Can you lose a development plan allocation?   –  Yes, going by a recent case.  Click HERE to read more.

Click HERE for an update on progress with Scotland’s local development plans.

Other information is available on our website, click HERE.    For previous newsletters click HERE.

Scotland’s Third National Planning Framework

Scotland's Third National Planning FrameworkThe Government has published its proposed new National Planning Framework (NPF) for consideration by Parliament :  “Ambition – Opportunity – Place”.

The NPF sets out the Government’s framework for the spatial development of Scotland over the next 20-30 years. Last summer, it consulted the public on the “main issues” on which the new NPF would be based, and that document gave a flavour of the new NPF.

The document contains a four-part vision, and for each describes action today, tomorrow and the spatial strategy and priorities for change.   The four parts are : 1 : “a successful, sustainable place” , 2 : “a low carbon place”, 3 ; “a natural, resilient place”,  and 4 ; “a connected place”.

Each spatial strategy includes the relevant National Developments.   It will be remembered that this designation has the effect of approving the principle of these developments, and that subsequent planning applications deal only with the detail.

The 14 National Developments are as follows.

Vision part N.D.
No.
Development Comment
1 1 Ravenscraig New in MIR
1 2 Dundee Waterfront : support the delivery of large-scale proposals required for the transformation Dundee. New in MIR
2 3 Carbon Capture and Storage Network and Thermal Generation :  support the delivery of a CC+S network to establish Scotland as a centre of expertise in this technology. Varied from MIR
2 4 High Voltage Electricity Transmission Network : to support the delivery of an enhanced high voltage electricity transmission grid. From NPF 2
3 5 Pumped Hydroelectric Storage : increasing the capacity through new or expanded sites (Cruachan specifically mentioned). New (not in MIR)
3 6 Central Scotland Green Network :  support the delivery of a step change in the quality, accessibility, biodiversity and adaptability of the Central Scotland environment. From NPF 2
3 7 Metropolitan Glasgow Strategic Drainage Partnership : contribute to the delivery of infrastructure required for water resource and drainage management on a broad scale within the Glasgow city region. From NPF 2
3 8 National Long Distance Cycling and Walking Network New in MIR
4 9 High Speed Rail :  First phase Edinburgh – Glasgow; then connection to London. From NPF 2
4 10 Strategic Airport Investments : operational developments at the five main Scottish Airports and business development adjoining Glasgow, Edinburgh and Prestwick; relocation of Royal Highland Showground. Varied from NPF 2
4 11 Grangemouth Investment Zone Varied from NPF 2
4 12 Freight Handling Capacity on the Forth : new and expanded freight handling facilities, with road and rail links; at existing and disused ports on the Forth estuary. Varied from NPF 2
4 13 Aberdeen Harbour New in MIR
4 14 National Digital Fibre Network : broadband cabling focussed on the Highlands and Islands. New (not in MIR)

MIR :  Main Issues Report (on which consultation took place last summer).

Developments which have not been carried over from NPF 2 to NPF 3 :

Replacement Forth Crossing Under way
West of Scotland rail enhancements Complete
Port development on Loch Ryan Removed without explanation
Scapa Flow container transhipment facility Removed without explanation
New power station and transhipment hub at Hunterston Removed without explanation
2014 Commonwealth Games Under way

Notable additions are Carbon Capture and Storage, a concept that the Westminster Government appear to have gone cold on; regeneration of Ravenscraig and Dundee Waterfront, both of which have appear to have stalled in recent years. The scope of “national development” at the central Scotland airports is broadened to adjoining commercial development.

The proposed NPF 3 will now be scrutinised by four Parliamentary Committees, a process that could take three months.  The Government intends to publish the finalised document in June.

Scottish Planning Policy position statement

Scottish Planning Policy (SPP) is the other key document that, with the NPF (see previous section), sets the framework for development across Scotland.   The SPP sets out national planning policies which reflect Scottish Ministers’ priorities for the development and use of land: it informs the content of development plans, decisions on planning applications and appeals, and how proposals are developed from conception to implementation. Over the last year, the Government has been consulting on a review of SPP.

Unlike the NPF, SPP does not require to be approved by Parliament.  However, given the important linkages between the two documents Scottish Ministers announced in September 2013 that both documents would be finalised in June 2014. This will enable the Parliament’s views to be taken into account where they are relevant to the SPP rather than to the NPF.

To ensure that there is consistency between the documents and to support Parliament’s consideration of the NPF, the Government has now published a “position statement” on progress with the new SPP.  This contains a response to all the issues that have been raised during the consultation – described as “considerations”, of which the following are significant.

A presumption in favour of development that contributes to sustainable development

This would include replacing the Draft SPP principal policies on Sustainable Economic Growth and Sustainable Development with a principal policy on sustainability and planning therefore showing the concepts as compatible.

Amended wording to give ‘due weight to net economic benefit’

That development plans reflect the presumption to reinforce the plan-led system; and that the presumption applies to decisions on planning applications if local development plans are out-of-date or do not contain relevant policies.

Reinforcing that community engagement it is a crucial aspect of the planning process

Reinstating the existing policy that the design requirements for placemaking are material considerations that may solely influence decision making

Delivery of Residential Development

This includes retaining a definition of generous land supply, providing a clear steer on the geography at which SDPs should express housing supply targets, and an appropriate policy on identifying a 5-year effective land supply.

Can you lose a development plan allocation?

The extent to which planning decisions are influenced by an emerging new local development plan has been in the news recently.  The case of land owned by the Pilkington Trust at Huntingtower west of Perth, comes as a reminder that a development allocation for a particular use in an adopted plan does not necessarily continue into a new plan.

The formal stages of local development plan preparation in the new Scottish planning system are Main Issues, Proposed Plan, Examination, and Adopted Plan.   To these, most Councils have sensibly added an initial “Call for Sites” stage, sometimes followed by a consultation exercise; and in some cases a draft “Proposed Plan” can be seen before the council or committee meet to approve it.  Some Main Issues Reports indicate which sites are likely to be favoured for development allocation.  By the Proposed Plan stage it should be beyond doubt what the Council’s attitude is to the development of any piece of land in its area.

At what point do such indications have a bearing on planning decisions?   The traditional view was that no content of the plan ought to influence decision-making until it has been exposed to the rigours of public examination, but a recent case has questioned this.

The background

In the case of Pilkington v The Scottish Ministers, a site beyond the western perimeter of Perth was allocated for development in the adopted Local Plan and an application for its development recommended for approval by the officers.   However the Council’s Development Control Committee rejected that advice for the reason that the application boundary (but not the proposed development area shown on the masterplan) extended beyond the allocation boundary, and refused the application.

A few days after taking this decision the Council met to consider the draft Proposed Local Development Plan (LDP), which – like the adopted plan – designated the land as a housing allocation.  At the meeting the Council approved the Proposed LDP but re-allocated part of the land from housing to employment use, the remainder becoming unallocated.  Two alternative sites were added into the Proposed LDP as strategic housing sites in compensation.

Appeal decision

In the subsequent appeal against refusal of the planning application, the reporter found that the emerging LDP was a material consideration and that the appeal proposal’s conflict with it justified departure from the adopted development plan. She found that other matters – such as flooding and traffic impact – had been the subject of agreement between the Council and appellant and could be addressed by conditions and legal agreements.  Nevertheless she dismissed the appeal for the reasons that :  “conformity with the development plan is outweighed by conflict with the emerging local development plan. I also conclude that it would be premature to grant planning permission in principle for the appeal proposal in circumstances where the local development plan examination is likely to start in 4 months”.

Court of Session

In an appeal to the Court of Session, it was submitted that the reporter’s decision was irrational since the existence of an emerging LDP was not of itself a reason to refuse planning permission. Since the proposed LDP had no formal status within the planning system prior to adoption, to take it into account was contrary to the government’s plan-led policy. To place weight upon it in preference to the provisions of the relevant adopted local plan was contrary to the terms and spirit of section 25 of the 1997 Act.  While it was conceded that there could be situations where an emerging development plan could be taken into account in a planning decision, it was submitted that the land’s removal from the housing allocation of the proposed LDP was done without prior consideration and with no reason given within the minutes of the meeting, and that the removal of the appeal site from the proposed LDP was no more than a consequence of the refusal of planning permission by the planning authority.

In his opinion on the case, Lord Armstrong considered that the Reporter had been entitled to consider whether the proposed LDP was a material consideration.  He was satisfied that the reporter was entitled, for the purposes of her decision, to consider the Proposed LDP to be the planning authority’s “settled view”.  The reporter had correctly considered the other infrastructure issues and attached appropriate weight to them.

Conclusions

Several important conclusions can be drawn from this.

It cannot be assumed that just because a site is allocated for a particular type of development, it will continue to have the same allocation in a new plan.

Taking this further, it cannot be assumed that even if a site is identified in the pre-plan stages and even in a consultation draft “proposed” plan, that it will automatically appear in the adopted plan.   In the Pilkington case, despite already being allocated and continuing to be so in the consultation draft stages, the Council decided to remove it before the Proposed Plan was published.

Land owners and developers should secure planning permission for allocated land before a Council has a chance to reconsider it!   Don’t rest assured that it has an enduring development plan allocation.

The case serves as a reminder that the Court of Session considers whether the process was carried out properly, and not the merits of the decision: as required by section 239 of the Planning Act.  In this case Lord Armstrong found the Reporter had carried out the necessary considerations and made a judgement as to their importance in reaching the decision; and therefore she had correctly performed her duties and her decision could not be challenged.

And finally – if you have an interest in the development of land, keep a very close watch on progress with the Local Development Plan.

We understand that a further appeal is now under way.

Development plan updates

Main Issue Report consultation is underway at Aberdeenshire (closes 1st February), and Aberdeen City (closes 24th March).

Proposed Plans are out for consultation at Clackmannanshire (closes 24th January) and Scottish Borders (closes 3rd March); while Moray Council meet to consider its Proposed Plan on 29th January so the consultation will follow afterwards.

Plans at the examination stage are Cairngorms NP, Dumfries & Galloway, Inverclyde, North Ayrshire, Orkney, Perth & Kinross, Renfrewshire, Shetlands, South Ayrshire, South Lanarkshire and Stirling.

Adoption :  Dundee adopted its Local Development Plan on 5th December.   This is the first plan that has completed the full “new” development plan process to reach adoption (one or two were hybrids from the old system).

Coming soon :   East Lothian MIR; Edinburgh – a revised or modified Proposed Plan; Falkirk Proposed Plan to Scottish Ministers;  and a “Call for sites” expected for Loch Lomond and the Trossachs NP.

Aug 062013
 

August 2013 Scottish Planning Newsletter

Welcome to the PPD August 2013 Scottish Planning Newsletter

Recent headline events are :

  • An end to extending the validity of planning permissions?   Click HERE to read.
  • More legislation changes.  Click HERE to read.
  • SESPlan approved : but without housing!    Click HERE to read.

Recent appeal decisions emphasise that those wishing to develop their land must have it allocated for the intended use in the Local Development Plan.   It is now almost impossible to obtain a planning permission which does not accord with an up-to-date plan.   For our regular review of development plan progress across Scotland with some comment, click HERE.
Other information is available on our website, click HERE.    For previous newsletters click HERE.

Extending the validity of planning permissions: no longer possible?

From time immemorial it has been possible to extend the period during which a planning permission is valid by use of an application under “Section 42” of the present planning act – the mechanism used to amend planning conditions.   Such an application was used to amend the time-limiting condition applied automatically to all planning permissions by the various planning acts, and had to be done before the period of validity expired (previously five years, now three).

A Section 42 application had the attraction that the planning authority could only consider whether it was reasonable to grant such a time extension, and therefore could not re-consider any other aspects of the permission.  Provided that relevant development plan policies had not changed to such an extent that the development had become “contrary to the development plan”, it has been our experience that such applications were granted with little controversy, and very little effort on the part of planning authorities.
With the economic downturn making it harder for developers to start development (or all phases of a development) within the lifetime of a planning permission, compounded by the reduction in the period of validity from five years to three, applications to extend validity have become far more common than in the past.  We have received several such approvals this year alone.

However a group of Scottish planning authorities are now citing a little-known change in the 2006 Act to reject such applications.   The three-year time limit still applies (section 58 of the Act as amended), but the wording of subsection 1 removes reference to this being a condition.  These authorities claim that as the time limit is no longer a condition, it cannot be amended by Section 42.

Subsection 2 of section 58 introduced a new concept : that if a council wishes to vary the standard validity period, it should do so by issuing a “Direction” at the time of approval.  The view is that Section 42 does not now apply to the statutory time limit, or to a council “Direction” – because neither are conditions.  To add confusion to all this, subsection 3 tells us that such a “Direction” is to be treated as a condition in respect of the right of appeal!

The Act does not advise whether a council would be able to amend such a “Direction” after approval while the permission is still valid.

We await the view of our legal friends to all this with interest!

Our best advice to those submitting planning applications for complex developments is to carefully consider whether the development can be started within three years.  If there is any possibility that this will not be achieved, a request should be made to the council before it approves the application that it “Directs” that planning permission be granted for a longer period.  A number of Councils have already granted Planning Permissions in Principle for major developments which are valid for much longer than the statutory period: we are dealing with a 15-year PPP in Edinburgh at present.

More new legislation changes

The Government has now enacted the changes that were the subject of consultation last year, and made other minor changes.  Those of greatest interest are :

  • changes to avoid the need for newspaper advertising where neighbouring land has no premises to which notification can be sent, i.e. where neighbouring land is a road or is owned by the planning authority, or the proposal is “householder development”,
  • it is now a requirement that neighbouring land owned by the applicant be identified : the so-called “blue line” land,
  • Councils cannot now claim that a public road bordering a site is “neighbouring land on which there are no buildings”.  Amazingly, some were actually arguing this!
  • consultation is now required by planning authorities with Network Rail on planning applications within 10 metres of a railway line,
  • Reporters are now given discretion in handling minor pieces of additional information at appeals,
  • Extending the period for determining local reviews sought on the grounds of non-determination from 2 to 3 months (before the automatic deemed refusal of permission applies),
  • the appeal procedures in relation to advertisement control have been brought in line with the main procedures for planning appeals (i.e. appeals must be submitted within three months of the council’s decision),
  • an “opt-in” procedure for interested parties to appeals where vast numbers of pro forma or petition style representations have been made,
  • “hearing statements” in appeals and local reviews must fully set out the case, and not just an outline of the case.

SESPlan approved : without housing!

The situation – never known before in our experience – has arisen with publication of the Government’s approval of the South-East Scotland Strategic Development Plan, but with housing land supply deleted from the plan.  The Reporters found that various aspects of SESPlan’s case were so unsatisfactory that in order to approve the plan, they had to defer housing land supply to further analysis and approval in Supplementary Planning Guidance.

This remarkable situation is explained by the Reporters in the following strident terms:

“Scottish Planning Policy confirms that a housing need and demand assessment should be used to provide the evidence base for defining housing supply targets and allocating land for housing in development plans”.

“The main concern raised in representations here relates not to the methodology used for the assessment, but to the decisions by the (SESPan) authority both to depart from the outcomes of that assessment, and also to delay to beyond 2024 the release of land for some 11,000 of the houses assessed as being required before then. Those decisions are not clear from the plan itself, but have been confirmed by the authority in its further submissions made in the course of this examination”.

“The authority does not accept the outcome of the housing need and demand assessment .. .. .. either for the SESplan area as a whole, or for any of the six constituent local development plan areas”.

“.. .. I find that the reasons given by the authority to justify departing from the outcome of the housing need and demand assessment are not related to any specific wider strategic economic, social or environmental policy objective”.

“I find that the approach adopted by the authority here is not consistent with its vision for the plan area. That vision is based on the role which it has identified for South-East Scotland as both the main growth area and the key driver of the Scottish economy. Failure to identify and allocate the land required to enable the assessed housing needs and demands of the area’s residents and households to be met is liable to hinder economic growth and dilute the area’s contribution to the Scottish economy”.

“However, failure either to identify the scale of the housing land requirements for each planning authority area for the periods to 2019 and 2024, or to ensure that sufficient housing land allocations are made in local development plans, will not assist”.

“I consider that, to be consistent with the requirements for any strategic development plan, as set out in Scottish Planning Policy at paragraph 72, it would be necessary to set out, for each local development plan area, what is the scale of the housing requirement for the periods 2009 to 2019 and 2019 to 2024. This plan does not do so, either explicitly or implicitly. In response to a request from me, the authority has been unable to provide the necessary information to enable me to recommend appropriate modifications to rectify this omission”.

The Reporters had to find a different method to deal with the situation, namely that supplementary guidance will be prepared to identify how much land requires to be allocated in each local development plan area.

The Government perspective of this situation is explained as :   “The Scottish Ministers would prefer SDPs to consider the likely contribution from the established supply (and potentially from windfall sites) and so arrive at a clear expression of the numbers of houses requiring new allocations in LDPs for each area. However the information does not exist to include this analysis in the plan at this late stage”.

Strong words!

Our concern with this result is whether the supplementary guidance will be subject to the rigorous independent examination it would have undergone had it been part of the Strategic Development Plan.

 

Other development plan updates

Strategic Development Plan coverage in Scotland is now Glasgow and the Clyde Valley, SESPlan and Tayplan all approved; and Aberdeen City and Shire with the Scottish Ministers.

The long wait for new local development plans in South-East Scotland is set to continue with housing land supply in the “SESPlan” Strategic Development Plan now waiting for production of a Supplementary Planning Guidance document (see above).  Midlothian has gone ahead with a Main Issues Report on which consultation ends on 31st August. At West Lothian (where the present adopted Local Plan took over ten years to produce and adopt), present best guesses for a Main Issues Report are November / December. East Lothian MIR expected in October.  HoweverScottish Borders Council is going ahead with a Proposed Plan consultation in the autumn, despite being in the SESPlan area.

In the West, several plans have now completed the Proposed Plan consultation stage, and – surprise, surprise – are progressing to the examination stage unaltered!  (Why bother consulting anyone?). My slight sympathy with councils is that if “notifiable” changes are envisaged, re-consultation is required under the new procedures.  Nevertheless, many councils managed to do a re-consult under the old system with “Pre-Inquiry Modifications”.   North Ayrshire got caught out by this and had to do a re-consult on late changes after the plan had been submitted to the Government for examination.

Fun at Dumfries and Galloway, where the Council deferred decision on the Proposed LDP consultation response report.  There has to be more consultation with councillors, including seminars; and a re-submission to committee by 20th September.

Clackmannanshire :  Proposed Local Development Plan, consultation expected in the autumn.

Glasgow : Proposed Local Development Plan expected to go to committee in October or November; consultation would then be in December.

North Lanarkshire :  “Call for Sites” closes on 27th September 2013.

West Dunbartonshire :  Proposed Local Development Plan going to committee on 14th August, with consultation expected from 27th September to 29th November.  If you have development interests in this area, note that the contents of the plan will be available on the Council’s website after committee approval in August.

May 012013
 

PPD May 2013 Newsletter

Welcome to the PPD May 2013 Scottish Planning Newsletter

Recent headline events are :

  • Planning fees rose by 20% on 6th April.  Click HERE for more information.
  • The Government is consulting on changes to Judicial Review procedures.  Click HERE for more information.
  • A draft of the new Scottish Planning Policy has been published by the Government for consultation.  Click HERE for more information.
  • A Main Issues Report for National Planning Framework 3 has been published by the Government for consultation.  Click HERE for more information.

For our regular review of development plan progress across Scotland, click HERE.
Other information is available on our website, click HERE.  For previous newsletters click HERE

Planning Fees

Scottish planning application fees increased by approximately 20% from 6 April 2013. This is not the radical revision of fees that the Government proposed and consulted on last year : it continues the present fee structure.

Typical fee increases are :

  • Houses :   £319 increased to £382 per house, up to new maximum fee (see below).
  • Other buildings :  from £319 to £382 per 75 sq m, up to the maximum fee.
  • Change of use :  from £319 up to £382.
  • “Maximum fee” (other than waste, minerals and drilling) from £15,950 to £19,100.
  • Planning permission in Principle : £382 per 0.1ha up to £9550 (previously £7975).

The Government Circular (2/2013) announcing the increase merely contains a fee update.  For interpretation and advice on fees you need to go back to Circular 1/2004.  There you will find advice on all the odd situations such as applications crossing council boundaries, re-submissions, and how to calculate mixed-use developments.

Judicial and statutory review of planning decisions

In February, the Scottish Government issued a consultation paper  on proposals to restructure the way civil cases and summary criminal cases are dealt with by the courts in Scotland. This follows the “Scottish Civil Courts Review” led by Lord Gill.  Two parts of this have important impacts on planning court petitions.

Time limit  
One of the unsatisfactory aspects of the present system is the lack of a time limit within which a petition for Judicial Review can be submitted to the Court of Session.  Developers are therefore left unsure as to when their planning permission is safe from JR.  The Government consider that there is a public interest in challenges to the decisions of public bodies being made promptly and resolved quickly, and now propose to introduce a time limit of 3 months within which judicial review can be submitted.  Nevertheless the 6 week time limit will still apply to “statutory” rights of appeal to the Court of Session, such as reporters’ decisions on planning permission appeals.

Introducing a leave to appeal mechanism.
At present, there is no mechanism by which “unmeritorious” applications for judicial review can be sifted out. The Scottish Civil Courts Review noted that there “has been a steady increase in numbers of petitions for judicial review. These take up a disproportionate amount of sitting days”.   In England and Wales, where a permission stage has been introduced, permission is refused in a relatively high percentage of cases and only in a small minority of cases is there an appeal against refusal of permission.
The Government therefore proposes to introduce a requirement to obtain leave from the Court of Session to proceed with an application for judicial review.

The full paper can be seen athttp://www.scotland.gov.uk/Publications/2013/02/5302/downloads#res415373 Responses are sought by 24 May 2013.

Consultation on Scottish Planning Policy

The SPP is the Scottish Government policy statement on how nationally important land use planning matters should be addressed across the country. The Government has issued a draft updated SPP for comment.

The purpose of the SPP is to set out national planning policies which reflect Scottish Ministers’ priorities for the development and use of land. It directly relates to:

  • the preparation of development plans;
  • the design of development, from initial concept through to delivery ; and
  • the determination of planning applications and appeals.

The SPP promotes consistency in the application of policy across Scotland whilst allowing sufficient flexibility to reflect local circumstances. It does not restate the policy and guidance set out elsewhere.

A first read reveals a more lucid, easy-to-read approach, using colour headings for ease of movement around the document.  A strong emphasis is on outcomes, rather that the process. This is clearly seen in the “Principal Policies”, which admirably starts with sustainable economic growth and development, and now includes climate change, placemaking and location of new development.  Commentary on process (development plans and management) – given significant early coverage before – is now presented as the means to achieving the policies and outcomes.  This concept may come as a surprise to some old-style “development controllers”!

The subject policies are now clearly grouped :  buildings, natural resources, movement and ultilities.  Under buildings, many readers will be pleased to see early emphasis on a generous supply of housing land and maintenance of an effective 5-year supply at all times.

The draft SPP can be seen at :http://www.scotland.gov.uk/Publications/2013/04/1027/downloads
Responses are required to the consultation by 23rd July 2013.

Consultation on National Planning Framework 3

The Government has also started a consultation on the Main Issues of a new National Planning Framework 3  (NPF3).

The NPFs provide a framework for the spatial development of Scotland. The third NPF will set out the Government’s development priorities over the next 20-30 years. The Main Issues Report sets out the Government’s preferred option plus reasonable alternatives.

Like the SPP, the NPF3 Main Issues Report is more concise and reads better than NPF2.   It has significant emphasis on reducing energy demand and Scotland becoming a “low carbon place” : the title of the first main, and longest section.
As regards the candidate national developments, these are proposed to be as follows.  It will be remembered that this designation has the effect of approving the principle of these developments, and that subsequent planning applications deal only with the detail.

1 Onshore infrastructure for offshore renewable energy new
2 Grid Infrastructure Enhancements From NPF 2
3 Baseload capacity at existing sites: Longannet and Cockenzie Variation from NPF 2
4 Grangemouth and Peterhead Carbon Capture and Storage new
5 Metropolitan Glasgow Strategic Drainage Plan From NPF 2
6 Central Scotland Green Network From NPF 2
7 Dundee Waterfront new
8 Ravenscraig new
9 Aberdeen Harbour new
10 Grangemouth Investment Zone Variation from NPF 2
11 Freight Capacity on the Forth Variation from NPF 2
12 High Speed Rail From NPF 2
Un-numbered :
  • Airport Enhancements
From NPF 2
  • National Cycling and  Walking Network
new

Developments in NPF 2 which not included in the draft NPF 3 :

Replacement Forth Crossing
West of Scotland rail enhancements
Port development on Loch Ryan
Scapa Flow container transhipment facility
New power station and transhipment hub at Hunterston
2014 Commonwealth Games
Under way
Complete
Why?
Why?
Why?
Under way

Notable additions are Carbon Capture and Storage, a concept that the Westminster Government appear to have gone cold on; and regeneration of Ravenscraig and Dundee Waterfront, both of which have stalled in recent years.

For the first time, NPF 3 proposes to indicate areas where the Government does not wish to see new wind farms : National Parks and National Scenic Areas.

The Main Issues Report can be seen at http://www.scotland.gov.uk/Publications/2013/04/2377/downloads  Views are sought by 22nd July 2013.

Development plan progress

South East Scotland Strategic Development Plan (SESPlan) is continuing its lethargic approval process.  The Reporters have passed their findings on to the Ministers who have until 8th August to respond.  Experience shows that final approval will come well before then.  Once this milestone is reached the Local Development Plans in its area will start rolling, most of which have been on hold pending approval of SESPlan by the Ministers.

A further group of Draft Local Development Plans are at or about to reach public consultation stage.  These are :

  • Aberdeen City (LDP number 2) : ”Pre-Main Issues Report” consultation and land search closes on 14th June.
  • Cairngorms National Park :  Draft Plan consultation closes 5th July.
  • City of Edinburgh :  Draft Plan consultation ending on 14th June.
  • Falkirk : Draft Plan,  ending on 7th June.
  • Glasgow :  Draft Plan publication and consultation “before August”.
  • Inverclyde :   Draft Plan publication expected on 31st May.
  • Midlothian :  Main Issues Report, consultation 13th May until August.
  • Scottish Borders :  Draft Plan publication “during the summer”.
  • South Lanarkshire :  Draft Plan publication 16th May, consultation ending 28th June.
  • West Dunbartonshire :  Draft Plan consultation starts early July, closing date not announced.
Oct 042012
 
October 2012 Scottish Planning Newsletter

 

Welcome to our October 2012 Scottish Planning Newsletter

Recent headline events have been :

  • the Government starting the process towards a new National Planning Framework and “Scottish Planning Policy”, and publishing the results of the consultations held earlier in the year on further changes to the planning system.  (See next section below).
  • A very “cautious” approach by Councils is becoming evident towards housing land allocations.   Such an approach has been taken to extreme in East Renfrewshire which has decided to under-allocate to the extent of 1600 units below the Glasgow & Clyde Valley Strategic Development Plan target.  Click here for further information.
  • East Dunbartonshire has put its Local Development Plan process on hold pending discussions with the Government on affordable housing. Click here for further information.
  • The Government is to end the need for pre-application consultation for “Section 42” applications.  Click here for further information.
  • Progress is now being made across Scotland on the new Local Development Plans.   Click here to see the latest news.

These, and other topical matters are dealt with below.

National Planning Framework 3:
“A Plan for Scotland: Ambition, Opportunity, Place”

The National Planning Framework (NPF) sets the context for development planning in Scotland and provides a framework for the spatial development of Scotland as a whole.  One of its key roles is as top level in the Planning Hierarchy :  it defines “National Developments” (14 at present), the principle of which is therefore approved and planning authorities can only consider the details in planning applications.

The Government has issued a consultation on the third NPF, and encourages participation.  A key part of this is a call for new National Developments, and suggestions have to be in by 14thDecember 2012.

For further information, visit http://www.scotland.gov.uk/Topics/Built-Environment/planning/National-Planning-Policy/npf/NPF3

Scottish Planning Policy

Scottish Planning Policy (SPP) is a document which contains the Scottish Government’s policy on nationally important land use matters, and is considered to be a material consideration when planning authorities make decisions.

A review of the policy was announced in the Scottish Parliament on September 18, 2012 by Derek Mackay MSP, Minister for Local Government and Planning.  The review will:

  • Up-date policy : many of the previous Scottish planning policies bought together in the 2010 consolidation were debated and published prior to 2008.
  • Focus the policy on sustainable economic growth : the SPP must look to meet the challenges presented by the significant economic challenges we continue to face.
  • Emphasise place making : good quality, successful and sustainable places are achieved by making connections and understanding linkages – such places in urban and rural Scotland are vital to the success of the economy.

The review will be of the document as a whole, not on a topic-by-topic basis.  This means looking at the connections between policy topics and taking a more integrated approach.

No general invitation to comment has so far been announced, but the Government  website advises that there will be consultation across a “range of stakeholders”.   For further details, visit : http://www.scotland.gov.uk/Topics/Built-Environment/planning/National-Planning-Policy/newSPP

Report-backs on the responses to various Government consultations on changes to the planning system

Planning fees

The Government has issued a report which summarises the responses from the consultation on planning fees held earlier in the year.   Not surprisingly, the top issue is general concern about the basis of calculation of the revised fees, and wished to see a more detailed cost benefit analysis. Some raised issues of the impact on project and organisational viability. Others felt that the advocated structure would act as a disincentive to development and ran counter to the Scottish Government’s economic objectives.  As could be expected, planning authorities appear to have advocated a fee-maximisation approach, others a more cautionary approach.  Other key findings are :

  • A majority of respondents supported linking fees to stages within processing agreements.
  • Most respondents agreed that a reduced fee should be payable where there are restricted development rights for dwellings in conservation areas.
  • A majority of respondents supported a separate fee for renewals of planning permission.
  • All planning authority respondents agreed that fees should be increased annually. Other respondent groups provided more mixed views. Some questioned the timing, calculation of the increase and potential impact on the planning system.
  • A majority of respondents disagreed with using site area to calculate the fee for wind farms. Some felt it to be too simplistic a measure. Alternative suggestions included the number, size or generating capacity of turbines.
  • A number of respondents, including house builders and agents/consultants, made reference to the need to ensure that there was a direct relationship between increased fees and improved performance. However, others felt that this could be counter-productive, encouraging rushed decision making and depriving poorer performing authorities of the resources to improve.
  • A few respondents felt that the proposals would adversely affect small business.

For our previous bulletin on the proposed changes click here  http://www.pp-d.co.uk/2012/05/17/planning-reform-next-steps/

To see the full Government report, click on this linkhttp://www.scotland.gov.uk/Publications/2012/09/7926

Miscellaneous amendments to the planning system

There was a high level of agreement that Pre-Application Consultation (PAC) requirements should be removed for applications to amend conditions attached to existing planning permissions (known as S42 Applications).  See below for further details.

There was also general agreement with the introduction of a facility to negotiate an extended period for determining applications where local review procedures would apply; as this would resolve an anomaly in the planning system and improve decision-making. There was also a high level of support for the proposal to increase the two month time-limit for determining local reviews sought on grounds of non-determination.

Many of those who answered the question on applications for approval of matters specified in conditions (AMSC) on planning permission in principle felt that the current requirements were generally excessive. There was a suggestion to revert  to the pre-2009 procedures for reserved matters.

For our previous bulletin on the proposed changes click here   http://www.pp-d.co.uk/2012/05/17/planning-reform-next-steps/

To see the full Government report, click on this link  http://www.scotland.gov.uk/Publications/2012/09/9618

Changes to the “General Permitted Development Order”

There was qualified majority support for all the proposed changes in the GPDO Consultation Document with the exception of the proposals in respect of hill tracks, and to a lesser extent, caravan sites.

The proposal to withdraw PD rights for agricultural and forestry private ways (commonly referred to as hill tracks) attracted substantial opposition from rural business interests who cited concerns around costs, bureaucracy and damage to the economy. There was however strong support from environmental interests who believed much damage was being done to the landscape by such tracks.

For our previous bulletin on the proposed changes click here   http://www.pp-d.co.uk/2012/05/17/planning-reform-next-steps/

To see the full Government report, click on this link http://www.scotland.gov.uk/Publications/2012/09/7170

Applications to vary planning conditions under “Section 42” of the Planning Act

“Section 42” applications allow someone who has planning permission to seek formal amendment to the conditions, without prejudicing the original permission.  Often, Section 42 will be used to extend the validity of an application beyond the expiry date stated on a condition.  A word of caution : this must be done before the permission expires. When the original approval was for a development categorised as “major” under the new Scottish planning system, a Section 42 application requires the full pre-application consultation procedures.  This has proved excessive, and confusing to members of the public who take part.

Removal of this need for statutory pre-application community consultation formed part of the Government’s consultations mentioned above.   Not surprisingly, there was a high level of agreement that the requirements should be removed for such applications.

The Government has now indicated that legislation will be presented to Parliament this autumn to do this, with enactment in the spring.

Housing Land Supply

An issue of keen relevance to those who see house building as one of the most important ways that the Scottish economic recovery will be kick-started, is the allocation of land for houses in places where people want to buy them.  Yes, there is a significant need for “affordable” housing, but it is dispiriting to hear commentators belittle the building of private family housing : almost as if it is politically incorrect to identify a need for this sector.   Several councils are cloaking the release of land for private housing in terms of how many affordable houses such development will be required to deliver as planning gain.  For “affordable”, this often really means “social rented”.

Recent significant events in this regard have been :

  • On 20th September, East Dunbartonshire Council decided to halt its Local Development Plan to engage with the Scottish Government over the challenges faced in delivering affordable housing in East Dunbartonshire.  The Council Leader said  “we are guided to rely on a 25% benchmark quota delivered through housebuilders who develop market housing sites. This means allocating four times as much land as we need to meet our affordable housing shortfall”.
  • On 12th September, East Renfrewshire Council approved a report which recommended that sites for only 4100 houses (all tenures) be identified in the forthcoming Local Development Plan.  The Glasgow & Clyde Valley Strategic Development Plan target for East Renfrewshire is 5,700 units.  The figure is also lower than Option 2B “Flexible Long-Term Growth” in the Council’s Main Issues Report.

Development Plan progress

With the elections now a receding memory and three out of four Strategic Development Plans reaching approval, most planning authorities are now getting down to the business of progressing their Local Development Plans.

Ayrshire is the main focus of development plan activity at present, with comments on the South Ayrshire Draft Local Development Plan and the North Ayrshire Modified Local Development Plan both to be in by Friday 19th October.

  • The North Ayrshire consultation concerns an additional stage in the process : the Council’s response to representations received after publication and consultation on the Draft Plan last year.
  • Those making representations on the South Ayrshire plan should remember that the Council insists that companies and agents (as opposed to residents) can only lodge representations on-line.  Paper documents will be rejected, although the legality of this is highly questionable : the Act does not restrict a “duly made” representation in this way.  Several people report that the on-line process is difficult, so don’t leave it to the last moment!

The Angus Local Development Plan Main Issues Report is being considered by the Planning Committee on 9th October, and its contents are likely to be accessible on the web at that time. Publication is expected during the first week in November with consultation running into the new year.

Argyll and Bute has not published its Draft Plan in September, as advised in its Development Plan Scheme due to “ongoing discussions with key agencies”.  No revised publication date is given.

Cairngorms National Park Local Plan.   The legal challenge to this plan was rejected on 21stSeptember by Lord Glennie, so the plan can now proceed to adoption.

Dundee was to have published its Draft Local Development Plan in September but the month has passed without any sign of it.  Latest suggestions are that it will now appear in November.

East Ayrshire is to publish its Main Issues Report in November.

East Dunbartonshire has halted production of its Local Development Plan (see “Housing Land Supply” above).

Fife. An all-Fife Local Development Plan Main Issues Report is anticipated in the autumn.   This will be unique in that it is within the boundaries of two Strategic Development Plans.

Midlothian anticipates that its Main Issues Report will be considered by the Planning Committee in November, with consultation to follow.

Stirling Council considered its Draft Local Development Plan on 26th September.  You can see a pre-publication version, together with the separate settlement volumes at : http://www.stirling.gov.uk/services/business-and-trade/planning-and-building-standards/local-and-statutory-development-plans/local-development-plan.    It is to be published for consultation on 15th October.

May 182012
 

May 2012 newsletter

Welcome to the PPD May 2012 Scottish Planning Newsletter

Other than the usual planning stories that appear in the press such as wind-farms, out-of-town shopping centres and city centre gardens, the major planning story is the Government’s consultation on Planning Reform – The Next Steps.

Planning Reform : the next steps

This is a wide-range consultation exercise by the Scottish Government on further reform of the planning system.  The most controversial aspect is the proposal for a thorough revision of planning fees, most of which will rise – in some cases substantially.   The previously-expressed wish that fees are related to performance is given scant attention.  The justification is that fee income to Councils does not reflect the cost of running the Development Management service.

Another controversial issue is the suggestion that Councils should again be able to ignore Reporters’ development plan examination findings.

The five consultation papers cover the following subjects.  The closing date for responses is Friday June 22, 2012.

  • Fees for Planning Applications
  • Development Delivery
  • Development Plan Examinations
  • Miscellaneous Amendments to the Planning System
  • General Permitted Development Order.

Click here for further information on this subject.

Development plan monitoring

Few new plans have appeared since our last newsletter in February.  We suspect that this is due to planning committees shying away from taking potentially controversial decisions in the run up to the local government elections.

Nevertheless some Main Issue Reports have been published, or are about to appear, and there are some consultation deadlines during May and June.

Click here for our monitoring sheet.

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/

Jun 282016
 

Welcome to PPD June 2016 Scottish Planning News

Welcome to PPD June 2016 Scottish Planning News

We concentrate here on the independent review of the Scottish planning system, the findings of which were published last month (see below), and recent changes in Historic Environment Scotland (click HERE to go direct).

Other information is available on our website, click HERE.    For previous newsletters click HERE

Independent review of the Scottish planning system:
“Empowering planning to deliver great places”

This review was commissioned by the Scottish Government last year and comprised a panel of three people:

  • Crawford Beveridge (chair of the Scottish Government’s Council of Economic Advisors and Non-executive Chairman of the Board at Autodesk Inc.).
  • John Hamilton, (Winchburgh Developments Ltd. and former Chairman of the Scottish Property Federation).
  • Petra Biberbach (Chief Executive of Planning Aid for Scotland and a Member of the Board and Chair of the Planning & Access Committee at Loch Lomond and the Trossachs National Park Authority).

The panel certainly gave value for their efforts, producing a detailed and fulsome set of forty-eight recommendations.

Quick read

We consider that the highlight recommendations are as follows.

  • Strategic development plans should cease.
  • The Local Development Plan preparation process should be simplified:
    • The main issues report should be removed and replaced with a single, full draft plan.
    • Removing or limiting the scope to produce supplementary guidance.
  • Local development plans should move to a 10 year cycle.
  • Development plan examinations should be replaced with a frontloaded ‘gatecheck’ of the plan.
  • The National Planning Framework should define regional housing targets.
  • Options for a national or regional infrastructure levy should be defined and consulted upon.
  • A development delivery infrastructure fund should be established, which could be partly resourced by a mechanism to capture land value uplift.
  • The certainty provided by the development plan in development management should be strengthened. To incentivise this, allocated sites should be afforded planning permission in principle, could be exempted from pre-application consultation requirements and could benefit from fast-tracked appeals.
  • Planning authorities should work together to identify the scope for significantly extending permitted development rights.
  • Planning fees on major applications should be increased substantially.
  • A new means of measuring service quality which builds on performance frameworks, and a mechanism for penalties such as a refund in the planning fee to be incurred where this is not achieved.
  • Scope for further discretionary charging, for example for pre-application processes, should be considered further.
  • The panel are not persuaded that third party rights of appeal should be introduced.

Commentary

We welcome the recommendation that the development plan should retain its primacy in the Scottish Planning system.  We suspect that few will mourn the recommended demise of Strategic Development Plans, subject to the National Planning Framework having an effective city-region content.  However, just as we are gradually achieving a 5-year cycle for Local Development Plans – and therefore that the plans are genuinely up-to-date, the recommended 10-year cycle would be a very retrograde step.

Our experience has been that Development Plan “Main Issues Reports” have not been a particularly useful element of the 2008 system, especially as many Councils have introduced a non-statutory earlier “call for sites” or other community-based stage; and therefore we agree with the recommendation to scrap them. Perhaps the later recommendation of early engagement with the entire “community”:  residents, developers, landowners, housebuyers, young people, etc; would be a more meaningful start to the process.

A check on the fervour of planning authorities to churn out Supplementary Guidance is very welcome.  There now seems to be a universal enthusiasm – started by Glasgow’s first City Plan some years ago – to provide guidance on every last detail of every possible development scenario.  In practice, this guidance is usually treated as policy!   Aberdeenshire now has Supplementary Guidance, and then further Guidance on how the interpret the Guidance!  All this Guidance – some may say ‘policy’ is enforced with far too little external scrutiny or examination.

In this regard, we are seriously concerned about limitations on development plan examinations.  This is the one occasion when plan-making is subject to independent scrutiny and its loss would have a serious impact on the ability to allocate sufficient land for the nation’s housing needs.

The recommendation that a development plan allocation has the status of Planning Permission in Principle is strongly supported.  This would focus attention on development plans as the prime vehicle for making land-use decisions, and prevent the situation where the principle of development on allocated sites is the subject of further debate at application stage.

Suggestions of a mechanism to capture land value uplift take us back to the 1948 Act which introduced a development charge or “betterment” to capture the uplift in land value which arose when permission to develop land was granted, even for small projects.  The effect was to bring a halt to most development, and its repeal shortly afterwards.

There is concern that infrastructure funding may move away from locally-justified requirements to a nationally-managed fund, which may not prioritize infrastructure investment in the locality of those paying the money.

We are aware that fees for major applications in Scotland are much lower than equivalent fees in England, but the Scottish fees were not similarly increased because it was felt that the time was not right to increase the burden on economic development.  Our view is that if fees are to be significantly increased, the recommended penalty system for non-performance should be imposed.

We support the extension of permitted development rights.  There are still far too many minor building operations that require planning applications: minor alterations to offices, factories, warehouses and shops come immediately to mind.

We are thoroughly relieved that the panel were not persuaded that third party rights of appeal should be introduced!

More detail

The significant recommendations, in our view are as follows.  The blue headings are the panel’s “outcomes” that the recommendations are designed to achieve.

Strong and flexible development plans

  • The primacy of the development plan should be retained, but focussed on outcomes, rather than policy and procedure.
  • Strategic development plans should cease.
  • An enhanced National Planning Framework should address long term city-region development and infrastructure issues more fully and effectively. The National Planning Framework should be more fully integrated with wider government policies and strategies.
  • The role of the Scottish Planning Policy (SPP) should be expanded to avoid the need for policy to be repeated in development plans. Local development plans should only set out where these policies are being varied to reflect local circumstances. Further consideration should be given to integrating the SPP with the National Planning Framework, with both being afforded the same statutory weight as the development plan.
  • The plan preparation process should be simplified.
    • The main issues report should be removed and replaced with a single, full draft plan.
    • The proportionality of supporting information, including environmental assessment, should be addressed.
    • Removing or limiting the scope to produce supplementary guidance.
  • Local development plans should move to a 10 year cycle, with a 20 year vision and focus on place, rather than policy.
  • Development plan examinations should be replaced with a frontloaded ‘gatecheck’ of the plan. Only after agreement is reached on key parameters for the plan, should a fuller, locally driven discussion on place and development sites move forward. Where early agreement is achieved there should be no need for further scrutiny or intervention at this later stage.

The delivery of more high quality homes

  • The National Planning Framework should define regional housing targets as the basis for setting housing land requirements in local development plans.
  • A clearer definition of effective housing land so that local development plans can move on from this to take a positive and flexible approach to addressing the housing land requirement for their area.
  • The Simplified Planning Zones concept should be rebranded and evolved into a more flexible and widely applicable zoning mechanism which identifies and prepares areas to make them ‘investment ready.’

An infrastructure first approach to planning and development

  • A national infrastructure agency or working group with statutory powers should be established, involving all infrastructure providers as well as planning representatives.
  • Options for a national or regional infrastructure levy should be defined and consulted upon.
  • A development delivery infrastructure fund should be established, which could be partly resourced by a mechanism to capture land value uplift.
  • A corporate structure requiring all key infrastructure providers to co-operate in delivering the local development plan should be introduced.
  • A review of transport governance should be undertaken to address the gap between this key aspect of infrastructure and development planning. Our view is that transport agencies at the national and regional scales should be given a clearer mandate to directly support the delivery of development in accordance with the development plan.
  • Future school building programmes should address the need for new schools in housing growth areas.
  • Section 75 planning obligations should be retained but their use should be minimised and the process streamlined.

Efficient and transparent development management

  • Timescales for decision making remain critical in creating certainty and should remain part of the performance monitoring framework. Processing agreements should be required for all major developments.
  • The certainty provided by the development plan in development management should be strengthened. To incentivise this, allocated sites should be afforded planning permission in principle, could be exempted from pre-application consultation requirements and could benefit from fast-tracked appeals.
  • The quality and effectiveness of pre-application discussions with planning authorities and consultation by developers should be significantly improved.
  • National guidance on minimum requirements for validation is required.
  • Planning authorities should work together to identify the scope for significantly extending permitted development rights.
  • A fuller study of the scope for combined consents, particularly planning, roads and drainage consents, should be carried out.

Stronger leadership, smarter resourcing and sharing of skills

  • Planning fees on major applications should be increased substantially, so that the service moves towards full cost recovery. A revised cap should be considered to better reflect the level of resource they demand. Local authorities must accept that all increases in fees must be directly linked with improved performance and that this will require investment in the resourcing of planning authorities. We also recommend a new means of measuring service quality which builds on performance frameworks, and a mechanism for penalties such as a refund in the planning fee to be incurred where this is not achieved.
  • Scope for further discretionary charging, for example for pre-application processes, should be considered further.

Collaboration rather than conflict – inclusion and empowerment

  • There should be a continuing commitment to early engagement in planning, but practice needs to improve significantly.
  • Communities should be empowered to bring forward their own local place plans, and these should form part of the development plan.
  • Community councils should be given a statutory right to be consulted on the development plan.
  • We are not persuaded that third party rights of appeal should be introduced.
  • A new statutory right for young people to be consulted on the development plan should be introduced.

Historic Environment Scotland

Historic Environment Scotland is the body formed last year which took over the functions of Historic Scotland and the Royal Commission on Ancient and Historical Monuments of Scotland.

It has now produced “HISTORIC ENVIRONMENT CIRCULAR 1” which describes the requirements of the secondary legislation and the processes to be adopted by the new body.  The contents are:

  1. General Principles
  2. Designation (of scheduled ancient monuments and listed buildings)
  3. Historic Environment Scotland’s role in the planning system
  4. Scheduled Monument Consent (procedures relating to applications)
  5. Listed building consent and conservation area consent (the process for applying for and determining applications for listed building consent and conservation area consent).
  6. Appealing decisions made by Historic Environment Scotland
  7. Transitional arrangements

See the full document at:

https://www.historicenvironment.scot/archives-and-research/publications/publication/?publicationId=ec209755-9bf8-4840-a1d8-a61800a9230d

It has also produced “HISTORIC ENVIRONMENT SCOTLAND POLICY STATEMENT”.  This replaces the previous “Scottish Historic Environment Policy” with updated operational policy and legislation, so SHEP becomes HESPS!  The content of the new HESPS is very similar to SHEP.

It is stated that the document guides the operation of decision making in the Scottish planning system, and sets out how Historic Environment Scotland fulfils its regulatory and advisory roles and how it expects others to interpret and implement Scottish Planning Policy. It is a material consideration in the Scottish planning system.

See the full document at:

https://www.historicenvironment.scot/archives-and-research/publications/publication/?publicationId=f413711b-bb7b-4a8d-a3e8-a619008ca8b5

Put simply, Circular 1 says what the policies and procedures are, and HEPS says how they will be interpreted and implemented.

Fundamental operational review

Historic Environment Scotland is developing a detailed plan for engaging the sector in a fundamental operational review of how it undertakes its regulatory activities with a view to a longer term amendment or replacement of this policy statement as required. They will be providing further information on this shortly and will commence the process in the summer.

 PPD Planning advice throughout Scotland   Homes For Scotland                              Associate Member

 

 

 

May 012015
 

 

PPD May 2015 Scottish Planning News

Welcome to PPD May 2015 Scottish Planning News

The main activity over the last six months has been examination and adoption of the new Local Development Plans, and appeals against housing planning applications where development plans are out-of-date.

We examine HERE recent appeal decisions where reporters have treated the failure of a planning authority to adopt an up-to-date development plan as a “material consideration”, and where the Scottish Ministers have “recalled” appeals for their own determination because an inadequate supply of land for house building is an issue of “national significance”.

With the new Scottish planning system reducing the duration of a planning permission to three years, and the removal of the ability to use Section 42 to extend permissions which are approaching their expiry date, we look HERE at some decisions and case law concerning what actions are required to “commence” a development.

In the last news we mentioned the new “High Hedges” legislation.  The extent to which disputes over high hedges occur can be seen by the number of appeals which have ended up in the casework of the Scottish Government’s Directorate of Planning and Environmental Appeals (DPEA).  See HERE for a brief account of this sad and unfortunate modern suburban version of the “stairheid rammy” (to use the Glasgow vernacular).

We take a quick look at recent permitted development changes in England HERE

For an update on development plan progress throughout Scotland, click HERE.

Other information is available on our website, click HERE.    For previous newsletters click HERE

Housing land decisions

The Scottish Government’s “Scottish Planning Policy” (SPP) requires that the planning system be “plan-led, with plans being up-to-date and relevant”.  It also requires that that the system identifies a “generous supply of land for each housing market area ……… maintaining at least a 5-year supply of effective housing land at all times”.

Both these requirements have been found lacking in some recent planning appeals. 

Normally, planning appeals are dealt with by a Reporter from the Government’s Directorate of Planning and Environmental Appeals (DPEA).  However, the Scottish Ministers have the right to “recall” appeals for their own determination.  In the past, such recalls were very unusual and tended to concern very controversial major developments of national interest.  However, in December eight appeals concerning housing developments of between 50 and 670 units were recalled by the Scottish Ministers.  Alex Neil, Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights, explained that delivery of housing was a matter of “national significance”.

In the first case, planning permission in principle was refused by East Lothian Council for a housing development of 52 units. Being within the green belt and not in a strategic development area, it was considered to be contrary to the Development Plan.  However the appellant argued on appeal that the 2008 Local Plan was out of date, and that the more recent Strategic Development Plan gave the area “potential for strategic development”. The Reporter agreed that the 2008 Local Plan was out-of-date, and therefore the Strategic Plan should prevail. The site would contribute to addressing the significant shortfall in the five-year housing land supply. Other “interim” council documents that were evidence for the refusal were found to support the proposal (!), others were “illogical” and were given no weight in the appeal.  He therefore recommended to the Minister that the appeal be sustained and planning permission granted – with which the Minister agreed.

In the second case, the appeal concerned City of Edinburgh Council’s failure to determine a planning application for up to 368 houses within the prescribed statutory period.  The council’s position once the appeal was submitted was that planning permission should be refused, because the proposal was contrary to the Local Plan, the Strategic Development Plan, and the emerging new Local Development Plan, and is in the green belt.  The appellant argued that the Local Plan was out-of-date because there is a 40% shortfall in the 5-year housing land supply, and was in a strategic development area in the Strategic Plan.  The Reporter agreed that the Local Plan was out-of-date because there is a significant shortfall in the 5 year supply of effective housing land, and accepted that the site was capable of being effective.  He considered that the development met important Strategic Development Plan green belt and housing land supply policy criteria for the release of greenfield land, and met other environmental and infrastructure requirements.  His recommendation that the appeal be sustained and planning permission granted was accepted by the Minister.

Six further “recall” decisions are awaited in the near future.

Conclusions:

  • Development plans need to be up-to-date, both in terms of their five-year lifespan, but also in terms of the maintenance of a generous supply of effective housing land.
  • Interim council documents which are intended to ‘fill-the-gap’ created by an old plan and which frequently are not subject to any effective examination, can be of limited relevance in decision making.
  • In cases where there is a pressing need for new housing in a location identified in the Strategic Plan, other policies such as green belts have lesser relevance.
  • Read all the documents which are claimed to support refusal of a planning permission. It is significant that a Reporter agreed that an apparently negative policy document in fact supported the development, and another was “illogical”!

When does a development start?

Reduction in the duration of a planning permission to three years and the removal of the ability to use applications under Section 42 of the Planning Act to extend permissions which are approaching their expiry date, are two provisions of the new Scottish planning system the effect of which are now being felt, just as the economy is improving and builders are stepping up the delivery of new homes.  These issues have already been discussed in previous issues of this News.

Other than submitting a new application (with possible pre-application consultation, fees, uncertainty, etc), the only way to protect a planning permission now is to ensure that the works start before it expires.  A recent appeal has considered what works constitute commencement or “initiation” of the development. 

It is often said that as demolition of buildings does not normally require planning permission in itself (Permitted Development Class 70), site clearance is not sufficient evidence of commencement (as it could be done even if the permission did not exist). This appeal puts a different interpretation on this issue.

East Lothian Council had served enforcement action on a builder who, it claimed, had started a development after expiry of the planning permission.  The Reporter gave careful consideration to the appellant’s claim that demolition of the buildings on the site, and works to form a roadway had started before expiry.  As regards demolition, he pointed out that the development could not be implemented without the removal of a building, and that as Class 70 (3) (b) “excludes” the need for prior approval where a building needs to be demolished to implement a planning permission, he confirmed that it was a “necessary part of the development”.  Section 27(1)(a) of the Planning Act states that if development consists of carrying out operations, it shall be taken to be initiated when those operations are begun, while section 27(2) defines this as the earliest date on which any material operation comprised in the development begins to be carried out. Section 27(4)(b) includes “any work of demolition of a building” as a material operation in the meaning of this section. The Reporter was therefore satisfied that, even though it may not have been specifically referred to in the application, the demolition was a necessary part of the development possibly within the “associated works” in the description which, if it was begun before the expiry date, would have implemented the planning permission.

As regards the road, kerb footings had been laid to define the line of the new road. The Reporter referred to the case of Malvern Hill District Council v Secretary of State for the Environment and Another (1983), in which the marking out of a road was sufficient to constitute a specified operation: the judgement referred to found that very little need by done to satisfy the section.

The other evidence that work has commenced is compliance with suspensive conditions, i. e. those that have to be discharged before works start. Another interesting outcome of this case was that the Reporter decided that a condition requiring the submission of information on contamination was satisfactorily discharged by the inclusion of this information in a building warrant application.  The judgement of R v Basildon Homes ex parte Martin Grant Homes Limited (1987) was cited as applying to planning officers who, in this case, should have been aware of the application for a Building Warrant and of its approval, particularly when it covers details specifically required by a planning condition.

In practice, an obstacle to starting the development may be the need to discharge onerous pre-start conditions. If these are not discharged, a Council will refuse to issue an “Initiation of Development” Notice, which is now a requirement of the planning system before works start on site.  A work of caution though: such a Notice is not in itself confirmation that works have started – the physical works are also necessary. 

Conclusions:

Firstly – before permission is granted, if there is any likelihood that a development will not be started within the three year duration (or all phases of a Planning Permission in Principle will receive Conditions Approval and be started within three years), we recommend that you request that the planning authority direct that planning permission be granted for a longer period.  This is a perfectly legal action, and one which some planning authorities are prepared to do.

To effectively protect a planning permission any pre-start conditions must be discharged, the required “Initiation of Development Notice” submitted to the planning authority, and physical works commence.  These works could be limited to preparations for laying a site access, but should be documented by dated photographs.  Although it has not yet been tested in court, we assume that the “initiation of Development Notice” alone will not be sufficient evidence.

We are hearing of cases where Councils are still allowing use of Section 42 to extend the duration of permissions, in cases where a specific condition on the permission defines the duration of the permission (i.e. not merely relying on the “standard” condition applied by the Act before it was amended).  Some such conditions were imposed by Councils long after the legislation change. We are also aware of a Council (which shall remain nameless) which has validated an application in these circumstances, and where the time limit stated in the condition had already expired!

High hedges .. .. ..

Introduction of high hedges legislation was reported in the last News.  What comes as a surprise is the number of High Hedges appeals that can already be found in the casework of the Scottish Government’s Directorate of Planning and Environmental Appeals (DPEA).

It will be recalled that those on whom a “High Hedge” notice is served (an “enforcement” appeal), and those who receive an opinion from the Council that a nuisance hedge is not within the definition of a “High Hedge” (a “consent” appeal), can appeal to the DPEA.

By a long margin Stirling Council leads in appeal cases, but this is influenced by a single hedge where 10 High Hedge notices were served (coming from 10 neighbours), and all were appealed. The Reporter’s decision ran to 12 pages on this case – longer than many planning appeals. Elsewhere, Perth & Kinross leads with 7 cases, South Lanarkshire, and Stirling (excluding the above) with 4 cases, then Dundee, North Lanarkshire and Dumfries + Galloway with three each.

The vast majority are enforcement appeals, and in most cases the High Hedge Notice is upheld, though often amended by the Reporter (changing the resultant height after pruning).  This gives confidence that Councils are correctly interpreting the High Hedges Act in their dealing with requests for notices.  In one case the Notice was quashed on appeal because the trees were a “woodland copse” rather than a hedge.

South of the Border

For those who dip their toes into planning affairs south of the Border, changes were made on 15th April to “Permitted Development Rights” (these are where the General Permitted Development Order “grants” planning permission for specified operations and changes-of-use, and permission is not therefore required from planning authorities).  From a Scottish viewpoint these are very radical changes.

The most significant of these include:

  • For a three year period, there is a right to change from storage and distribution use to residential – subject to prior notification.
  • Amusement arcades and casinos are able to change to residential, including some enabling works.
  • Shops and service uses can change to restaurants – including some extensions and extraction equipment – subject to prior notification; and also to assembly and leisure uses.
  • Betting offices and pay-day loan shops become “sui generis” (outwith the Use Classes, and therefore always require permission).

 

It is notable that the Scottish Government recently declined to make comparable changes regarding the last of these.

Development Plan progress at a glance

The following chart gives a snap-shot of development plan progress throughout Scotland.

Development Plan progress at a glance  : April 2015

The second round of Strategic Development Plans are now emerging:  “ClydePlan” (formerly “Glasgow & the Clyde Valley”) completed Main Issues Report consultation in March, consultation on the TayPlan Proposed Plan runs from 11 May until 3 July 2015, and the SESPlan Main Issues Report is going to Committee on 18th May for consultation thereafter.

There are a number of significant Local Development Plan consultations in progress:

East Dunbartonshire:  Proposed Plan consultation closes on 27th May 2015.

Loch Lomond and the Trossachs National Park:  Proposed Plan consultation will run from Monday 18 May 2015 until Monday 29 June 2015

Midlothian:  Proposed Plan consultation will run from 14 May 2015 until 26 June 2015.

North Lanarkshire:  the Main Issues consultation period is extended to 29th May 2015.

Stirling:   Adoption of the Local Development Plan is subject to a challenge.  Main Issues consultation for the second Plan is due this summer.

 PPD Planning advice throughout Scotland   Homes For Scotland                              Associate Member 

 

 

 

 

Oct 222014
 

October 2014 Scottish Planning News

Welcome to the PPD October 2014 Scottish Planning News

This summer and autumn have been relatively quiet months for changes to the planning system, with several major events taking place which may have been a distraction!

Planning fees are increasing on 1st November.  See further details below.

We discuss the recent and impending imposition of controls over matters which previously were not concerns of the planning system.  High hedges, click HERE; payday lending and betting offices, click HERE; and hill tracks, click HERE.

For an update on development plan progress throughout Scotland, click HERE.

Other information is available on our website, click HERE.    For previous newsletters click HERE

Fee increase

Planning fees will be increase again, by about 5%, from 1 November 2014.

This is the third increase in planning fees since the start of the 2009 planning regime. Fees were increased by about ten per cent from 1 April 2010. Most recently fees were increased from 6 April 2013 by about 20 per cent. So from 1 November 2014 planning fees will have increased by over 35 per cent since March 2010.

Examples of the increases are:

  • House extensions, etc; go up from £192 to £202;
  • the “standard” fee to build one house, create 75 sq m of floorspace, 0.1ha of site area, change-of-use, etc; goes up from £382 to £401;
  • the maximum planning permission in principle fee goes up from £9550 to £10,028;
  • the maximum full application fee goes up from £19,100 to £20,055.

The Government justifies this fee increase as a reward to Councils for improved performance:

The average decision time for the 7,855 local developments decided in quarter 1, 2014/15 was 10.1 weeks, the quickest average decision time over the past nine quarters and more than 2 days quicker than the previous quarter (10.5 weeks).

There is a similar improvement of 2 days when compared to the equivalent quarter in 2013/14 (10.5 weeks) and when compared to the first quarter in 2012/13 (11.2 weeks) the improvement is over 1 week.

The average decision time for the 86 major developments decided in quarter 1, 2014/15 was 28.9 weeks, the quickest average decision time over the past nine quarters and more than 6 weeks quicker than the previous quarter (35.2 weeks).

There is an improvement of almost 4 weeks on the average decision time for the equivalent quarter in 2013/14 (32.8 weeks) and when compared to the first quarter in 2012/13 (38.5 weeks) the improvement is almost 10 weeks”

chart2                     chart4

(From Planning Performance Statistics, Quarter 1 2014/15, 1st October 2014; the Scottish Government) 

The downside of this is that the statutory determining times for “local” applications is 8 weeks, and for “major” is 16 weeks; so although an improvement, these averages are not even being reached for local applications – and are some way off being achieved for major applications : the very ones which are likely to be delivering jobs, investment and economic enhancement.

High hedges .. .. ..

Every so often issues arise which the great and good consider can best be dealt with by the poor, maligned planning system!

There has been a rush of these this year, starting with high hedges – particularly unusual because the planning system has never before controlled what people can grow – only what they can cut down.  The High Hedges (Scotland) Act came into force in April, which introduces a system by which action can be taken against high hedges which restrict daylight and amenity. Many councils have decided that its provisions will be administered by their planning department.

Basically a high hedge is over 2 metres high and formed by a row of two or more trees or shrubs.  It is only defined as a high hedge if someone complains about it and that claim is upheld by the council.  Complainants have to demonstrate to the council that they have tried to reach a solution with the hedge owner by alternative means, such as by mediation.  If that has failed they send a “High Hedges Notice” application to the Council with a fee – presently £450.   The council notifies the hedge owner that a complaint has been made, and then an officer from the council will go out to the property to assess the hedge, and its impact on the light levels in the complainant’s property.  If this determines that the hedge is “high”, the Council serves the notice which describes the actions required and contains a deadline.  If this is not met, the council can do the work itself and recharge the hedge owner.  The hedge does not have to be on an immediately adjoining property.

There are appeal rights to the Scottish Ministers for both parties.

For further information read  http://www.scotland.gov.uk/Resource/0044/00445025.pdf

. .. .. Pay Day Lending and Betting Offices  .. .. ..

…. .. and the Government also propose that the planning system can contribute to dealing with these problems!

A consultation paper has been issued proposing that:

Betting shops be removed from Class 2 of the Use Classes Order, and be added to the list of “sui generis” uses which are not in any class.  However the current Class 2 freedoms from planning control to change from use as a betting office to other uses would remain.

Pay Day Lending is more difficult: it is harder to define, but presently comes under the general description of “financial services” as Class 2.  The consultation suggest two options: one is making exclusions to the definition of financial services in Class 2 – making them sui generis,  such as “Money Service Business”, “Pawn broking”, “Premises for buying goods from visiting members of the public”, “Financial lending other than by deposit takers”, and “Deposit takers”.  Option 2 would be the reverse – being more specific about what financial services are within Class 2 and therefore free from planning control : the suggestions are “Accountancy services”, “Insurance Services”, “Deposit takers” – such as a bank, a building society, a credit union or a friendly society.

Not only does this seem complex and open to interpretation, but could add to endless arguments where pay-day lending takes place within other premises such as a shop. The planning officer dealing with an application will need guidance on what is an acceptable number of such facilities in an area, so there will need to be another new raft of planning policies on this subject.

The Government consultation is open until 14th November and can be accessed at http://www.scotland.gov.uk/Publications/2014/08/6425/downloads#res458193

Readers unfamiliar with the term and purpose of the “Use Classes Order” should click on this link HERE

.. .. .. .. and hill tracks.

“Prior notification” is a process that already exists in planning legislation and would be achieved by amendments to the General Permitted Development Order.  The requirement for “prior notification” would apply throughout Scotland for any private way, but the emphasis will be on controlling tracks in areas where it is considered that additional protection of amenity, landscape or environment is required, while not imposing any significant additional burden on businesses in other areas.The Minister for Local Government and Planning has announced that “prior notification” will be required to planning authorities before “private ways” for agricultural or forestry uses are constructed (usually known as hill tracks). The planning authority can then consider whether or not prior approval is required for the siting, design or materials used for the track.

Local Development Plan progress at a glance

The following chart gives a snap-shot of development plan progress throughout Scotland.
Devplan progress October 14

Key dates are :

Angus:  the Proposed Plan was due this month, but suggestions are that it has been delayed into the new year.   If you have development interests in Angus, keep an eye on the website or call us.
East Lothian: expects to publish its Main Issues Report this month, with consultation starting in November.
Fife: consultation on Proposed Plan starting this month.  The plan can be viewed on the Council’s website.
North Lanarkshire:  Main Issues Report expected in new year.
East Ayrshire: proposed plan expected early in the new year.

PPD Planning advice throughout Scotland

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