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.

May 172012
 

Planning ReformThe Government’s “Planning Reform – Next Steps” document summarises a package of proposals which aim to help the planning system reach its potential in supporting economic recovery. The emphasis is on non-legislative measures but legislative changes will be brought forward where necessary – and some are.

The key priorities for the next stages of planning modernisation are stated to be :-

  • promoting the plan-led system
  • driving improved performance
  • simplifying and streamlining processes
  • delivering development.

The Government invites comment on five consultation papers, which are summarised below.  Perhaps the most significant is 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.

Planning fees

Audits by councils on the cost of running their planning service reveal that fee levels do not reflect the resources needed to process planning applications.   The fee for a minor, straightforward planning application may exceed the cost of processing it, and fees for major applications are unlikely to cover the processing cost.  The philosophy for this may in part reflect a recent revision of the English planning fee structure where the maximum planning fee for major application is now £250,000; whereas in Scotland it is £15,950; and house extensions are £150 in England and £160 in Scotland.

The structure of the fee system is proposed to change, with the following key changes :

  • The maximum fee will rise from £15,950 to £100,000
  • Planning permission in Principle will have a maximum of £50,000, with fees calculated at £500 per 0.1ha.
  • One house : £800, two to forty-nine houses : £500 per house; 50 houses would be £24,800 with subsequent houses at £200 until  the maximum of £100,000 is reached.
  • Retail and leisure developments, like many other categories will now have their own fee scale.  £200 for up to 50 sqm; then £1000 for the first 50 – 100 sqm;  £500 per 100 sqm thereafter up to 2500 sqm :  then £800 per 100 sqm up to the maximum.  For example, the fee for a 10,000 sqm shop will rise from £15,950 to £73,000.
  • Business and commercial fees would be £200 for up to 50 sqm; then  £600 for the first 100 sqm;  then £300 per additional 100 sqm up to the maximum.
  • Separate categories of fees for agricultural buildings, wind farms, other energy, minerals, waste, plant & machinery, car parks, drilling for oil and gas, and marine development.
  • Building changes of use will have two categories :  change of a building to residential use will be the same scale as for new housing developments on the basis of the number of units being created (see above), and others at £500 per application.
  • Land changes of use (a new category) will be at £500 for the first 0.1ha, and £200 for each 0.1ha thereafter up to the maximum.
  • Fees are to be introduced for “Section 42” applications to amend planning conditions, and where permitted development rights are withdrawn in conservation areas, etc.

Another part of the fee consultation concerns linking fees to performance, though little detail is given.

You can make your views known to the Government by 22nd June, and see the full document at the following link :  http://www.scotland.gov.uk/Publications/2012/03/3164   or contact us for assistance.

Development Plan Examinations. 

A controversial aspect is the suggestion that Councils should once again be able to disregard the Reporters’ findings on their Development Plans.  Making Reporters’ development plan reports binding on Councils was one of the positive aspects of the new Scottish Planning system, and ended the practice where Councils could ignore the results of hard-fought inquiry sessions.   We suspect that the pressure for this is being led by Councils which do not allocate sufficient development land in the first place, and lose their arguments when the Plan goes to examination.

Other concepts in this consultation are :

  • Allowing planning authorities to decide what matters are to be considered at examination (inquiry or hearing).
  • Allowing planning authorities to avoid independent examination of development plans.

We wonder if these extreme options are included to make the first one seem not so bad in comparison!

You can make your views known to the Government by 22nd June, and see the full document at the following link :  http://www.scotland.gov.uk/Publications/2012/03/3942  or contact us for assistance.

Development Delivery

This consultation paper seeks initial views from all sectors of the development industry on current issues and opportunities for facilitating development and infrastructure provision. The intention is to use the findings and output from this consultation to inform a second consultation (Stage 2) which shall investigate the detail of potential proposals or measures to assist with development delivery.

The purpose of the consultation is to “garner views on the efficacy of current processes in delivering development”; and to invite views on what could assist the delivery of development and infrastructure.  The Government is investigating the potential to introduce a development charge system where developers could pay for infrastructure downstream, as units are built or sold.

You can make your views known to the Government by 22nd June, and see the full document at the following link :  http://www.scotland.gov.uk/Publications/2012/03/3965   or contact us for assistance.

Amendments to the General Permitted Development Order 

The General Permitted Development Order (GPDO) grants planning permission for types of development which are judged to be of sufficiently minor scale that they will have no adverse effect on neighbours or the environment. Such developments are called “permitted development” and therefore do not need planning permission from a local authority.

The Government proposes to increase the list of such developments, some examples being :

  • formation of an access ramp to any non-domestic building.
  • extension or alteration of a shop or a financial or professional services establishment, including provision of free standing trolley stores.
  • minor extensions of office buildings.
  • extension and alteration of buildings used as Hospitals, Universities, Colleges, Schools, Nurseries, and Care Homes
  • temporary use of land as an open air market.
  • provision of a pavement café.
  • Installation of both freestanding and wall mounted Electric Vehicle Charging Points.

Alteration of some existing permitted development rights is proposed – an example being a limit on permitted development rights for new hill tracks.

You can make your views known to the Government by 22nd June, and see the full document at the following link :  http://www.scotland.gov.uk/Publications/2012/03/8498   or contact us for assistance.

Amending planning conditions

If you wish to amend or remove a planning condition, an application is made to the planning authority under “Section 42” of the 2006 Act.   Perhaps as an unintended consequence of the way the Act was worded, Section 42 applications which relate to “major” developments are subject to the pre-application consultation process.  This can lead to absurd situations where community consultation takes place for minor matters that are of little interest to, and have no adverse impact on neighbours.

The Government now propose to remove the requirement for pre-application consultation on Section 42 applications. This is part of the “other changes” consultation described below, but in our view is a significant and welcome change.

You can make your views known to the Government by 22nd June, and see the full document at the following link : http://www.scotland.gov.uk/Publications/2012/03/5577   or contact us for assistance.

Other changes

Fees for the advertising of a planning application 

These adverts are required when neighbouring land has no buildings on it, because the development is categorised as a “bad neighbour” under Schedule 2 of the General Permitted Development Order, or because a development is contrary to the development plan.   The Government propose that the cost of the advertising comes out of the new (increased) planning fees, rather than as separate charges.

Other changes, include :

  • Minor changes to neighbour notification requirements,
  • Notification of Network Rail by planning authorities where a development is within 10m of a railway line,
  • Changes to delegation of applications where there is a local authority interest,
  • Allowing extension of the determining period for “minor” delegated applications, to bring these into line with the same facility that exists for non-delegated applications.
  • Extending the period in which a Local Review Body must determine each case from two months to three months.  This is to give the LRBs more time, thereby lessening the opportunity for an appeal to be made to the Government.

You can make your views known to the Government by 22nd June, and see the full document at the following link :  http://www.scotland.gov.uk/Publications/2012/03/5577   or contact us for assistance.

May 172012
 

Development Plan Review May 2012

May 2012

Recent headline events have seen West Lothian Council circulate a questionnaire to those promoting sites for development allocation, which is designed to test whether sites are likely to be “effective” in delivering housing land during the Plan period.   South Ayrshire has produced a Draft Plan which is very limited in its allocation of development land.  Legal challenges to the Aberdeen Local Development Plan (by Tesco) , and to the Cairngorms National Park Local Plan continue.  Our favourite Strategic Development Plan “Tayplan”, completed its Reporters examination in April and was awarded the RTPI Silver Jubilee Cup, receiving very high praise.  The Reporters’ findings on our unfavoured plan, Glasgow and the Clyde Valley Strategic Development Plan, were released in April with considerable comment on its approach to strategic housing land.

Progress made recently has been publication of a number of Main Issues Reports (MIR).  Few new draft development plans have appeared since our last bulletin in February.  At that time several councils appeared to be avoiding controversial decisions by delaying publication until after the Local Government elections, and that is basically what happened.

In the two central belt city-regions, councils are awaiting the approval of Strategic Development Plans before drafting new local development plans.

The February bulletin included an explanation of the many acronyms that are found in development planning :  if you see one below that you don’t understand, click back to the February bulletin here.

Some forthcoming dates for development plans throughout Scotland 

Aberdeenshire Local Development Plan
The Council expect that this plan will be adopted on 1st June 2012, being the first “new style” plan to complete the process.

Highland Council Inner Moray Firth Local Development Plan
The MIR has been published, with comments to be in by 6th July.  The plan covers an area centred on Inverness and bounded by Nairn, Tain and Fort Augustus.

Moray Local Development Plan
The MIR is expected to be published during May.

Scottish Borders Local Development Plan
The MIR has been published, with comments to be in by 25th June.

South Ayrshire Draft Local Plan
This is expected to be formally published during May, but can already be viewed on the Council website.

South Lanarkshire Draft Local Plan
The Main Issues Report (MIR) has been published, with comments to be in by 29th June.

West Lothian Council
As mentioned above, a consultation is underway with those who have already made representations to the “Call for sites”, taking the form of an “effectiveness” questionnaire which is to be returned to the council by 1st June.

West Dunbartonshire
The MIR has been published, with comments to be in by 22nd June.

May 2012

Feb 102012
 

February 2012 Newsletter

 

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

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

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

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

Development plans

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

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

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

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

Householder Permitted Development Rights

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

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

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

Local Review

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

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

Feb 092012
 

Development Plan review

Feb 2012

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

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

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

Some forthcoming dates for development plans throughout Scotland

Argyll and Bute Local Development Plan

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

Clackmannan Local Development Plan

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

Dumfries and Galloway Local Development Plan

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

Mid-Fife Local Plan

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

North Lanarkshire Local Plan

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

Perth and Kinross Local Development Plan

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

Renfrewshire Local Development Plan

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

South Ayrshire Local Development Plan

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

 

Terminology

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

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

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

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

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

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

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

 

February 2012

Feb 092012
 

Householder development comment

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

Introduction

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

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

Overview

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

New concepts have been introduced.   These include :

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

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

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

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

The main changes include :

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

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

Getting confirmation that your development is “permitted”.

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

February 2012

Feb 082012
 

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

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

Local Review

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

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

The Local Review Body

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

Can I speak to the Local Review Body?

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

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

Chances of success

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

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

February 2012

Feb 082012
 

 

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

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

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

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

So what is different about a “local” development?

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

How do I know if my application will be delegated?

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

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

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

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

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

Some introduce uncertainty :

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

And others are designed to achieve a political aim :

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

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

 

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

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

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

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

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

Read my separate comment on “Local Review Bodies”.

 

February 2012

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