Modernising Planning Update

Introduction

The latest milestone in planning modernisation is the laying in the Scottish Parliament of 8 sets of regulations. They come into force during 2009, implementing most of the Planning etc (Scotland) Act 2006. Below, there are brief summaries of the changes. For the latest information and news, please see the Scottish Government website:

• Scottish Government - Planning

If you require any further information about how the changes effect planning in Aberdeen, please do not hesitate to contact us. The areas of change relate to the way that planning applications are processed, decided and decisions can be appealed:

• Local, Major and National developments - the Hierarchy of Developments Regulations
• Dealing with planning applications - the Development Management Procedure Regulations
• Schemes of Delegation and Local Review Procedure Regulations
• Appeals to the Scottish Ministers - Appeal Regulations
• Enforcement – Fixed Penalty Notice Regulations Changes to development planning:
• The Structure Plan and Local Plan - Development Planning Regulations

There will also be changes in the future to permitted development rights, i.e, the types of development that can be carried out without applying for planning permission (including householder applications), to fees for planning applications and in other areas. For up to date information on these, see the Scottish Government website.

All new regulations can be accessed on the following website:

• Legislation.gov.uk

Circulars

Circulars have been produced to accompany each of the regulations mentioned above. These explain the requirements of the new system. The Circulars will be published after the regulations have completed their parliamentary progress and will then be available on the Scottish Government website

There now follows a brief summary of the main changes resulting from the Regulations

Local, Major and National developments - the Hierarchy of Developments Regulations

Applications will be divided into different categories to ensure that they are dealt with in a way appropriate to their scale and complexity and allowing decisions to be taken at the most appropriate level. There are 3 categories in the hierarchy of development to which all developments will be allocated:

• national development;
• major development; and
• local development.

National developments are described in the National Planning Framework (NPF2), the only proposal effecting Aberdeen is at Aberdeen Airport.

There is no scope for local interpretation of what constitutes a major development or local development. These are prescribed in the Regulations. Applications for major development will be determined by Planning Committee and include (this is not a comprehensive list):

• Development classed within Schedule 1 in the Environmental Impact Regulations;
• Housing development of >50 units, or on sites of more than 2 hectares;
• Business, Industrial or storage and distribution uses where the gross floor area is greater than 10,000m2, or the site more than 2 hectares;
• Other Development, including combinations of the above classes, with gross floor area over 5000m2, or on a site of 2 hectares or more.

Extensions to existing 'major' developments is proposed must in themselves exceed the thresholds for that application to be considered 'major'. Applications for 'major' development must be accompanied by a Design and Access statement. This describes the design principles and concept and considers issues of access for the disabled. Applications for major development must be subject to pre-application consultation with the local community.

Dealing with planning applications - the Development Management Procedure Regulations

The Sections relating to Pre-application consultation come into force on 6 April 2009, and have the following effect:

• Pre-application consultation is required for major and national development. This involves submitting a notice to the planning authority 12 weeks ahead of an application. The notice states what sort of consultation will be undertaken and must be agreed with the planning authority. Applications for major development submitted after 3 August must include a Pre-Application Consultation report (PAC) and have gone through this process.

The remainder of the Regulations are due to come into effect 3 August:

• Making planning applications: local forms to be used until national form available, or applicants may use a Scottish Government electronic form;
• Although no particular additional accompanying documents are required as a statutory minimum, encouragement is given to applicants to look beyond the minimum and discuss information requirements beforehand with the planning authority;
• Planning permission in principle (PPP) replaces outline planning. PPP requires no plans other than a location plan; does not require design and access statement, but does require PAC if it is a major or national application.
• Reserved Matters applications have been replaced by the requirement for applications to agree conditions on PPP;
• Design and Access statements: required for major and national applications and local applications for new buildings in sensitive areas (e.g Conservation Areas). There are some exceptions to the general requirement, including for householder developments and changes of use. Statements should describe design concept and access measures for disabled. PAN 68 gives further advice on access.
• Power to refuse to determine repeat applications (even where these have not been refused at appeal by Scottish Ministers);
• Neighbour notification to be carried out by the planning authority: this relates to land within 20m of property boundary (as opposed to actual development site); 21 days are given for representations, rather than existing 14 days. Where pre-application consultation has taken place objectors must still make representations in relation to the application;
• Processing Agreements: these are not required by regulation, but promoted for major and national applications. They would be agreed between the planning authority and the applicant and would relate to issues such as information requirements, timescales and responsibilities of parties. The processing agreement is a form of 'project managing' major applications.
• List of extant applications is a running list of applications and is required to be published, including online. A list is also to be published of 'proposal of application notices' submitted as the initial stage of pre-application consultation. These are in addition to weekly lists in libraries and to be sent to Community Councils. The application register must include a map based index.
• Reports of handling are required to be issued with decision notices. These provide information on processing of the application, including how representations and the main issues have been dealt with;
• Time periods for determination: 4 months for major and national; 2 months for remainder. These don't apply where the planning authority and applicant have agreed to extend the time period.
• Pre-determination hearings are required for national and major developments that are significantly contrary to LDP. These may be held in front of a Committee and applicants and objectors / representors may speak.
• Applications determined by full Council: cases required to have pre-determination hearing must be decided by full council;
• Notice of initiation of development is to be submitted prior to the start of development;
• Notice of completion of development - may be required for each phase
• Site Notices: must be displayed for the duration of development, for national, major and bad neighbour development. The Regulations provide a standard pro forma for this.
• Duration of permission: This has been reduced to 3 years for full planning permission, although planning authorities may decide on a different duration. For Planning Permission in Principle the period is 2 years from the grant of last matter required by conditions. Further applications must generally be within 3 years of PPP.

Schemes of Delegation and Local Review Procedure Regulations

A scheme of delegation allows the smaller and more straightforward applications to be determined by Planning Officers. Our scheme of delegation was approved in June 2009 and the full scheme is available to view at:

• Scheme of Delegation

In short, our scheme of delegation will allow us to determine applications falling into the category of local development (see above), with some exceptions. These exceptions are: where an application has been made by the Council itself, or a member of staff or Councillor; where it relates to land owned by the Council or there is a financial interest; for certain types of 'bad neighbour' development; where is an objection from the local Community Council or the Council's roads engineers or environmental health officers; where there are 5 or more objections; and, where the application must be referred to the Scottish Ministers. The only exception to this is that Planning Committee may decide to determine an application that could otherwise be delegated. Where this happens, a statement of the reasons for the decision to determine the application at committee, must be made and copied to the applicant.

Local Review

Local Reviews will replace the current appeal to the Scottish Ministers, for applications decided by Planning Officers.

• Local Review Body (LRB) will consist of at least three elected members. There will also be a planning advisor and the Body may request advice from experts on particular subjects when and if needed;
• Meetings must be in public;
• Method of determination (i.e. written submissions or hearing) is at the discretion of the LRB;
• No automatic right for applicant or others to be make oral representation;
• The process must be fair and transparent;
• Where an application has not been determined within 2 months, and 'Notice of Review' served by the applicant, but review not carried out within 2 months, the applicant may then appeal to the Scottish Ministers.

The Review Process

• 'Notice of Review' must be served by the applicant on the planning authority within 3 months of decision, or date of expiry of period allowed for determining application (2 months unless period for determination has been extended by agreement);
• Applicants must include, inter alia, reasons for requiring review; preferred method of review; matters to be raised and documents to be used and further information will only be accepted where requested by LRB;
• The LRB will make interested parties aware – statutory consultees and objectors;
• 14 days is period for further representations. The applicant may see these and make further comment;
• LRB may then determined the review; or,
• Hold a pre-examination meeting – giving notice to interested parties as they consider reasonable;
• At pre-examination meeting LRB may request further information by way of written submissions or hearings and/or site visit; decided matters to be discussed and procedure to follow. Regulations cover these matters and how to deal with new evidence;
• Decision notice must include issues considered and reasons for decision;
• If the applicant wishes to question the validity of the decision application may be made to the Court of Session within 6 weeks

The Regulations relating to local reviews are relatively complex and further information will be available on our website shortly, or link to the legislation provided above.

Appeals to the Scottish Ministers - Appeal Regulations

Appeals to the Scottish Ministers will be the recourse for those applications determined by Planning Committee or Full Council, or those remaining undetermined that would not fall within the Scheme of Delegation. The changes to the planning appeal system introduced by the 2006 Act include removal of the automatic right to appear before and be heard by a person appointed by Scottish Ministers, a restriction on the introduction of new material in the appeal process and confirmation that it will not be possible to vary a proposal once an appeal has been made.

Enforcement – Fixed Penalty Notice Regulations

The 2006 Act introduced fixed penalty notices for failure to comply with enforcement notices and failure to comply with breach of condition notices. The Regulations fix the amount of the fines as £2000 and £300 respectively.

The Local Plan - Development Planning Regulations

The Regulations relating to Development Planning came into effect in February. Development Plan Schemes consist, basically, of timetables for the preparation of plans and are required to be prepared by end March 2009. Structure plans are replaced by Strategic Development Plans. The Development Plan Scheme suggests that the approved structure plan would be published in the second half of 2009. The recently adopted local plan will be replaced in time by a Local Development Plan. As for the Local Development Plan, development options are being received and we aim to have completed the assessment of these by June 2009.

The main issues report, a discussion document summarising the main planning issues facing the City, and looking at how much land is required and possibly options for locations, is timetabled to be published in September this year. Having considered objections the Proposed Plan (a draft) is timetabled to be published in September 2010, with a consultation period to follow that. Following the plan Examination process, it is planned that the Local Development Plan will be adopted around April 2012. More details about plan preparation are contained within a report to Planning Committee on 19 March. The agenda and minutes to this Committee are available here:

• http://www.aberdeencity.gov.uk/Councillors/RM/cde_committee_pla.asp 

or by contacting the Development Plan Team:

• localplan@aberdeencity.gov.uk

For information about how the changes will effect planning in Aberdeen, please contact us.

Contacts

• Development Management Team
  Enterprise, Planning and Infrastructure
  Aberdeen City Council
  Business Hub 4
  Marischal College
  Broad Street
  Aberdeen
  AB10 1AB
  Phone: 01224 523470
  Fax: 01224 523180
  Email: pi@aberdeencity.gov.uk