Government consultation on significant changes to the Scottish planning system
Client briefing note
|The Scottish Government has published a consultation document “Places, people and planning” which proposes further changes to the Scottish planning system. These proposals originate from the Independent Review of the system which we described in our June 2016 News – click here to view.
Some of these changes are significant, and will add to the difficulty, uncertainty and cost of gaining planning permission.
This is a brief overview of the proposed changes. Some are in the form of proposals, others are suggestions on which comment is encouraged.
Further details of these changes can be discussed with John at PPD.
| The deadline for making comments to the Government is Tuesday 4 April 2017
Strategic Development Plans should be scrapped. Instead, local authorities will have duties or powers to work together on defining regional priorities.
The National Planning Framework (NPF) and Scottish Planning Policy (SPP) should be part of the statutory development plan, or that both are given due weight in decision making through their local implementation.
Local development plans:
The following development types are proposed to be added to ‘permitted development’ – where planning permission is not required from a local authority:
Enforcement of planning control
It should be made easier for planning authorities to recover costs associated with taking enforcement action.
Financial penalties for breaches of planning control should be substantially increased.
The Government wants the release of more ‘development ready’ land for housing.
Being clear about how much housing land is required. The Government believes that there is a need to change the way we plan for housing – too great a focus on debating precise numbers rather than delivering development and creating good quality places to live.
Encouraging the preparation of “Simplified Planning Zones” – see above.
The Government is determined to see more land across Scotland in community ownership and have set an ambitious target of reaching one million acres by 2020.
It wants to see a clear, accessible, effective and efficient system of legislation and policy which allows for the compulsory acquisition and purchase of legal interests in land and property for the public benefit.
It asks whether a development land tax approach could help to tackle the issues associated with sites being held in the hope of improved market conditions. Such an approach would require sites to be released or a tax paid.
The Government proposes that a new Planning Bill will include an enabling power to introduce a new infrastructure levy for Scotland, based on the following key principles:
6th February 2012 is the day that the long-awaited revision of householder permitted development came into force.
The new Order amends the “General Permitted Development Order” by modernising permitted development for householders, and has the effect of increasing the amount of development within the grounds of existing houses which will fall within the “permitted” categories. This goes back to the Government’s aim of reducing un-necessary regulation in the planning system and thereby focussing Council resources on more important development which has the potential for greater environmental impact. Up until now, permitted development did not apply to flats, but the new Order now introduces limited permitted development to flats.“Permitted development” is minor development for which planning permission is automatically granted by the “General Permitted Development Order”, thereby removing the need to formally obtain planning permission. It is usually minor works which are unlikely to have an adverse impact on neighbours or the environment.
The main changes include :This is an overview of householder permitted development – for detail call us, or look at the legislation (link below). The Order is split into eleven separate classes, each of which has a list of “exclusions”. Few of the permitted development rights apply in conservation areas and within the curtilages of listed buildings.
- Enlargements of a house behind the “principal elevation” (which is the front or side wall fronting a road) often does not now need planning permission. There are height limits, size curtailments near boundaries, and in terms of the amount of the overall curtilage taken up by the development. Single and multi-storey extensions get separate classes.
- Porches are an exception to the “principal elevation” rule mentioned above, which are now permitted up to a footprint of 3 sq. m; a height of 3m; and provided it is no less than 2m from a boundary that fronts a road.
- Roof alterations are now permitted, with a number of exceptions which include not on front or side elevations that face roads, not on a roof plane which is within 10m of a boundary, not higher than the height of the highest part of the existing dwellinghouse (except chimneys), and not within 0.3m of the edge of the roof plane.
- Access ramps are now permitted up to 5m in length, up to a combined height of 9m (including landings), any part cannot exceed 0.4m, and the overall height including fence, wall, handrail etc. cannot exceed 1.5m. Like porches, these can be on the front of the house.
- Other alterations to a house (without enlargening it) can be done within a 1m “bubble”. For example, satellite dishes and solar panels will often not need permission. There are exceptions such as wind turbines and balconies.
- There are separate rules for decking, porches and driveways, and gates and fences. Notable is that fences and walls can now be built up to 2m in height, or 1m in height in front of an elevation fronting a road or on a road boundary. At long last the old 20m rule has gone!
- There are some limited permitted development rights to alter and improve, but not enlarge flatted properties.
See the Order itself at : http://www.legislation.gov.uk/ssi/2011/357/pdfs/ssi_20110357_en.pdf
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.
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.
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
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”.
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.
|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.
* “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).