john

Feb 082012
 

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

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

Local Review

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

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

The Local Review Body

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

Can I speak to the Local Review Body?

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

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

Chances of success

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

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

February 2012

Feb 082012
 

 

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

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

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

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

So what is different about a “local” development?

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

How do I know if my application will be delegated?

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

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

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

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

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

Some introduce uncertainty :

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

And others are designed to achieve a political aim :

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

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

 

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

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

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

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

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

Read my separate comment on “Local Review Bodies”.

 

February 2012

Dec 162011
 

Certificate Of Intention Not To List (COINTL)

A COINTL is a legal guarantee that a building or buildings will not be statutorily listed as being of special architectural or historic interest during the five years from the date on which the certificate is signed. Certificates are a useful tool when development is intended on a site. The COINTL has been introduced to enable owners and developers to engage early with Historic Scotland and to provide them with certainty on whether the building or site is of special interest.

COINTLs are being introduced on 1 December 2011 as part of the Historic Environment (Amendment) (Scotland) Act 2011.

 

COINTLs and the Listing Process

The process for a COINTL is the same as any listing assessment and buildings are assessed by applying the listing criteria as defined in the Scottish Historic Environment Policy (SHEP). Historic Scotland may review a wider area to that proposed for a COINTL in order to have full understanding of the site.

The issue of a certificate also prevents the local planning authority from serving a Building Preservation Notice (BPN) on the property during this period. (A BPN is a form of temporary listing served by the local planning authority). Applying for a certificate does not give any temporary statutory protection to the subject being considered.

Dec 152011
 

 

CHANGING THE USE OF LAND OR BUILDINGS :  DO YOU NEED PLANNING PERMISSION ?

As in most parts of planning law, the answer is not simple.

Section 28 of the Planning Act * defines that planning permission is required if you wish to carry-out any development of land. Section 26 defines the meaning of development, which includes “any material change in the use of any buildings or other land“. So if you want to change the use you make of land or a building, planning permission might be required.

But the Government acknowledged that many changes of use do not have any adverse impact on neighbours, communities or the environment, so the “Use Classes Order “ * groups together various uses into 11 Classes.  The Classes and the uses they contain as shown in the table below.   No planning permission is required if the change you want to make remains within the same class : it is not a “material” change of use. Hence use of this word in Section 26.  But if your new use would result in a change from one class to another, planning permission is usually required.

There is another category of uses, known as “sui generis” uses, which are specifically excluded from all the use classes.  These are un-neighbourly uses which it would unwise to allow to start unregulated. Some of these uses are listed in the Use Classes Order : see list under the table.

It is still not quite as simple as this. The Government then took the view that some material changes of use (i.e. from one class to another) do not have any adverse impact on neighbours, communities or the environment, so a mechanism is used to remove the need for planning permission for these changes.  This is known as “permitted development”.   The General Permitted Development Order* grants planning permission for a list of 72 classes of development which otherwise would require formal planning permission from the planning authority.  Four of these classes relate to changes of use, and are indicated in the third column of the table below.  It should be noted that they only apply in the direction indicated and not in reverse.  Two “sui generis” uses : sale or display of motor vehicles, and hot-food carry-out shops, have permitted development rights to change to uses within the Use Classes Order (see bottom of table).

The Classes in the Use Classes Order, and permitted changes from class to class are shown in the table below.

CLASSES LISTING

Use Class Description of uses “Permitted development” changes
Class 1 Shops    Retail sale of goods other than hot food; post office;  travel or ticket agency, sale of cold food   for consumption off the premises, hairdresser, undertaker, the display of   goods for sale, hiring of domestic goods or articles,  laundrette or dry cleaner,  or for the reception of goods to be washed.  All where the sale,display or service is provided principally to visiting members of the public. None
Class 2 Financial professional and other services   Financial professional and other services appropriate to be found in a shopping centre.  These typically   include betting shops, lawyer, accountant, estate agent, health centre, dentist, doctor or vet surgery. (where all are principally used by members of  the public). To Class 1
Class 3 Food and drink   Provided that the food or drink is consumed on the premises. To Classes 1 and 2
Class 4 Business     Offices (other than those described in Class 2), research and development of products and processes, which can be carried out in any residfential area without detriment to amenity. To Class 6 with limit of 235 square metres.
Class 5 General industrial    Carrying out an industrial process, other than one which would fall into Class 4. To class 4, or to Class 6 with limit of 235 square metres.
Class 6 Storage and distribution To Class 4
Class 7 Hotels and hostels   Hotel, boarding house, guest house, hostel with no significant element of care; other than premises licensed for sale of alcohol other than to residents or diners eating on the premises; and other than a Class 9 (houses) use. None
Class 8 Residential institutions  Residential accommodation with care, hospital, nursing home; residential school, college or training centre. None
Class 9 Houses   House (but not a flat) occupied by a single person, people living together as a family, or as a household of not more than 5 people.  Bed and breakfast or guesthouse with bedroom limits. None
Class 10 Non-residential institutions    Creche, day nursery, day centre;  provision of education; display of works of   art (but not sale or hire); museum, public library, public or exhibition   hall; or public worship, religious instruction, or social activities of a religious body. None
Class 11 Assembly and leisure   Cinema, concert hall, bingo hall, casino, dance hall, discotheque,   swimming bath, skating rink, gymnasium, or for indoor and outdoor sport and   recreation not involving motorised vehicles or  firearms. None
Hot food shops (not classified) To Classes 1 or 2
Display or sale of motor vehicles    (not classified) To Class 1 with limit of 235 square metres.

 

Planning permission is always required for uses not contained in any class (these are known as “sui generis” uses).   The exception is the permitted development changes allowed for hot foot and motor vehicles shown at the bottom of the table.  The Use Classes Order contains a list of specifically excluded classes, which are :  theatres, amusement centres, funfairs, sale or display of motor vehicles, sale of fuel for motor vehicles, taxi / car hire businesses, scrap yards, mineral storage and distribution, public houses, works registrable under the Alkali Act, and hot-food carry-out shops.

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* “The Planning Act” is The Town and Country Planning (Scotland) Act 1997 (as amended)

“The Use Classes Order” is The Town and Country Planning (Use Classes) (Scotland) Order 1997

“The General Permitted Development Order” is The Town and Country Planning (General

Permitted Development) (Scotland) Order 1992   (as amended).