Planning briefing: ministers have set up an independent review panel with a mission to improve the efficiency of the planning process; and a revised circular clarifies the effect of s 42 applications

Independent planning review

On 1 September 2015 the Scottish Government announced its intention to review the planning system, with a particular focus on increasing the delivery of high quality housing developments.

The efficient delivery of housing, both through development plans (local development plans and strategic development plans) and the granting of planning permission for housing developments, is considered to be central to the achievement of sustainable economic growth.

The extent and scope of the review is potentially far reaching, and the aim is to achieve a quicker, more accessible and efficient planning process in order to build investor and community confidence. This is understood potentially to include both policy and legislative reforms.

Interestingly, the review will be undertaken by an “independent panel”. It is stated that the panel will provide a “strategic perspective” and will be open to “game changing” views and ideas.

The panel members have been appointed, with Crawford Beveridge in the chair, working with Petra Biberbach of Planning Aid Scotland and John Hamilton of the Scottish Property Federation. Reporting in spring 2016, it will consider six key issues:

  • development planning;
  • housing delivery;
  • planning for infrastructure;
  • further improvement to development management;
  • leadership, resourcing and skills; and
  • community engagement.

The Royal Town Planning Institute has expressed concern that the panel does not include a chartered town planner.

As confirmed by the Chief Planning Officer, there will be opportunities for all stakeholders to contribute to the review, and the arrangements for this will be agreed at the first meeting of the panel on 13 October 2015. He has also confirmed that the review is the beginning of a process of reform and will be followed by further professional debate as legal, procedural and professional solutions are identified and progress. The Law Society of Scotland’s Planning Law Subcommittee will be representing the interest of its members in this review by engaging positively in the work of the panel. Delays in planning are often, and not always fairly, attributed to the increasing requirement for s 75 agreements or other planning agreements. Each planning authority has a different style for these agreements and these are often outsourced to private law firms. There is a good case for agreement across all of the planning authorities on a common style(s) of agreements to improve the efficiency of this process.

Section 42 Circular revised

Applications under the Town and Country Planning (Scotland) Act 1997, s 42 are employed where an applicant seeks permission for the development of land without complying with planning conditions imposed on an existing planning permission. These applications have often been treated by planning authorities as a variation or amendment of the original planning permission, but they are not.

The Scottish Government has now clarified in its updated Circular 3/2013: Development Management Procedures that the effect of a s 42 application being granted is to create a new and separate planning permission for the development with different (or no) conditions attached. The previous planning permission remains unaltered and is not varied by the decision under the s 42 application.

In practice, s 75 agreements often relate only to a particular planning permission and care should be taken to establish the consequences of the creation of a new planning permission for a s 75 agreement. The EIA Regulations 2011 will also be engaged, and a s 42 application may be subject to screening for EIA and potentially require a new environmental statement.

The Author
Alastair McKie, partner, Anderson Strathern LLP
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