Planning briefing on important legislative and policy reforms announced by the Scottish Government

This article focuses on a number of the more important legislative and policy reforms that have recently been announced by the Scottish Government. These reforms aim to assist the planning system reach its potential in supporting economic recovery. The Scottish Government has stressed the importance of the planning system in creating sustainable economic growth for Scotland, and that is to be welcomed. Whilst the emphasis is on non-legislative (policy) measures, legislative changes will be brought forward where they are considered to be necessary.

The Scottish Government's priorities for reform are:

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

National Planning Framework (NPF 3)

On 18 September 2012, Planning Minister Derek McKay announced a programme for delivering the new National Planning Framework (NPF 3), with the publication of a participation statement. NPF3 will set the priorities for national development over the next 20 to 30 years and will be a central policy document in planning decisions.

As part of the review of the NPF3, there is a consultation call for candidate national developments to be considered for inclusion in the final document. No doubt many will claim that their projects meet the criteria and will seek their inclusion. The selected developments must make a significant contribution to Scotland’s sustainable economic growth, be of national, rather than regional, significance, and make a significant contribution to one or more of the following:

  • an 80% reduction in emissions by 2050;
  • achieving the aims of the Zero Waste Plan;
  • the Scottish Government’s renewable energy targets;
  • skills development, reducing unemployment, and job creation;
  • strengthening Scotland’s links with the rest of the world;
  • improving our digital, transport, utilities or green infrastructure networks;
  • adapting to or mitigating the effects of climate change;
  • improving the quality of the built or natural environment.

Nationally significant developments in the NPF3 will be given a high priority in the planning decision-making through s 25 of the Planning Act 1997. Those developments that are currently identified in NPF2, which was approved by the Scottish Parliament, include the replacement Forth crossing and the Commonwealth Games 2014. Many of the developments identified in NPF2 have not been implemented (e.g. a new power station and transhipment hub at Hunterston). The wording of the consultation is such that nationally significant developments identified in NPF2 will not be automatically included in NPF3, and a case will need to be made for their inclusion.

Development plan examination

The Scottish Government has also consulted on the process and procedures associated with development plan examination. This examination is an essential part of the process, and a key focus for developers seeking to have their developments included within the plan in order to ease the consenting process. The outcome of the examination is binding on the planning authority.

There have been issues in relation to reporters conducting those examinations wishing to take into account in their assessments, sites not identified in the plans, which have led to delays. The current legislative arrangements do not readily allow for public notification and consultation on sites not identified in the plan. Concerns have also been expressed in relation to the binding nature of the reporter’s recommendations, where they have reached conclusions that do not accord with the final plan as published.

The consultation considered four options:
(1) improving current practice;
(2) greater discretion to depart from the reporter’s recommendation;
(3) restricting the scope of the examination;
(4) removing the independent examination from the process.

The outcome of the consultation exercise appears to be that the independent nature of the examination should be retained, with a number of improvements including enhanced rights of participation for interested parties. It is now for the Scottish Government to decide how the examinations can be improved.

New planning fee regime

This is perhaps the most controversial proposal, and recognises that planning fees in Scotland significantly lag those in England. The existing cap in Scotland is £15,000, whereas in England it is £250,000. The proposed changes include increasing the maximum fee to £100,000; linking fees to the planning authority’s performance; and introducing new categories and increasing some fees. There is a particular issue regarding how performance should be judged and what criteria are to be applied. The first reports on planning authority performance to assess standards of planning in Scotland will be published soon.

Scottish Planning Policy 2010 (SPP)

The minister has also announced a review of the Scottish Government’s overarching statement of planning policy (SPP) to take account of the urgent need for economic recovery. It is stated in the announcement that there will be a focus on and an enhanced weight given to sustainable economic growth in planning decision-making. A consultation exercise will be undertaken in the next few months on this topic.

Pre-application consultation (PAC)

An unintended consequence of the Planning Act 2006 (which has required PAC for major development) is that even the reconsideration of relatively minor conditions attached to a planning permission cannot be progressed without the applicant undertaking a 12 week PAC stage, involving the expense of holding a public event with associated costs. It is considered that this adds little value and it is the intention of the Scottish Government to remove this requirement for applications under s 42 of the Planning Act.

The Author
Alastair McKie, Head of Planning & Environment, Anderson Strathern LLP  
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