Planning (Scotland) Bill – Stage 2 amendments

In September 2015 the Scottish Government announced a review of the planning system in Scotland with the aim of ensuring that “planning plays a more positive and effective role in creating high quality places for current and future generations, while respecting local democracy.” The review was to deliver a quicker, more accessible and efficient process. After extensive engagement with all stakeholders involved in the system the Planning (Scotland) Bill was then introduced to Parliament on 5 December 2017. With the general principles of the Bill having been agreed by Parliament at the end of May 2018, Stage 2 of Bill, in which the detail is considered, and amendments proposed, began in September and completed earlier this month after 7 days of debate. With over 300 amendments put forward and considered by the Parliament it would be impossible to comment on them all, so the following are just some of the interesting highlights, not all of which we think will deliver on the original intentions of the review:

The purpose of planning – the need for a purpose of planning to be embedded in statute came out of the stage 1 report and, of the various proposed purposes, the amended Bill that will go forward to stage 3 now opens with the following:

“The purpose of the planning system is to manage the development and use of land in the best long-term public interest.”

This creates a stand-alone purpose, which is then replicated in the purpose to be achieved by Ministers and planning authorities in the exercise of their functions. Whilst there has been a broad consensus on the principle of this, planning has always been carried out in the public interest, and so it is questionable whether the purpose now proposed is sufficiently ambitious to go beyond that bare minimum and really deliver great places (as envisaged in the early days of the current review of the planning system).

Third party/equal rights of appeal – this was another area in which a number of different proposals were put forward, including a third party right of appeal against planning decisions that are not in accordance with the development plan, and restrictions on an applicant’s right of appeal. However, none of these amendments have made it through to stage 3; a decision that has been applauded by the development industry but criticised by community campaigners, and another subject on which the debate could fill a blog in its own right!

The definition of development – ultimately, the definition of development underpins what is and isn’t caught by the planning system, and any changes to this would be significant. However, while there were proposals to bring agriculture and forestry into the definition of development, these were withdrawn at this stage, reflecting the need for any proposals to change the definition of development to be very well thought out.

Local Place Plans – we have often said that Local Place Plans (LPPs) have the potential to be a game changer in terms of allowing people to pro-actively plan the places in which they live, however concerns about the resourcing and efficacy of these cannot be ignored. And, in light of such concerns, there were proposals made to remove provisions for LPPs from the Bill altogether, none of which were successful. On the other hand, amendments to strengthen the role of LPPs were accepted, in particular a change to the wording on the respective roles of LPPs and Local Development Plans (LDP) such that LDPs are required to “take account of” LPPs rather than merely “have regard to” them. Whilst this could just be seen as semantics, ultimately resulting in the same outcome, those semantics could be significant if LPPs are to have any chance of making a real difference.

The role of open space strategies – whereas there is not currently a binding obligation on local authorities to have an up to date open space strategy, the revised Bill will include a statutory requirement for them to do so, in the expectation that this will “elevate current best practice in Scottish planning policy to the level of a statutory requirement to ensure that the good work that has been carried out to date continues.” We can but hope that this laudable aim will be achieved given the importance of open space to quality of life.

Strategic Development Plans – Section 2 of the Bill, which would have removed strategic development plans (SDP) from the planning system, is to be deleted such that they will now be retained. We have argued previously that the SDP has served the North-East well, and so we very much welcome the acceptance of this amendment. It will, however, be important that SDPs are integrated with regional transport and economic development strategies to maximise their impact.

Local Development Plans – amendments have been agreed that impose additional requirements on Local Development Plans (LDPs), including (i) targets about the provision of housing for the elderly and for disabled people (ii) statements on how the planning authority proposes to provide public conveniences and water fountains and (iii) a list of sites suitable for self-build projects. While these are all important placemaking considerations, there is a question here as to whether including such detail in LDPs is really compatible with the ostensible aim of the current review to simplify the planning system.

Material considerations – on the other hand, acceptance of the amendment to define material considerations in the Bill may reduce much of the debate between planners and lawyers over these, but it still leaves the question of the weight to be given to these in determining applications open to debate, which is often where the crux of the matter lies.

Short term holiday lets – a particular issue for cities, such as Edinburgh, where a number of enforcement cases against unauthorised changes of use of residential properties to short term holiday lets have recently been decided or are still ongoing, the amended Bill will expressly require such accommodation to get planning permission from the outset. That said, given the recent enforcement cases, it may well be asked whether this is something that really requires new legislation, or just effective enforcement of the law as it is?

Fees – the relationship between the level of planning fees and the performance of planning authorities in determining applications within set timescales has long been a hot topic. The Bill aims to address this by allowing the planning authority to charge a higher fee for an application to be fast tracked. At the same time, in line with the principle of planning becoming more inclusive, a further amendment was agreed for application fees to be waived where proposed development has the primary purpose of contributing to a social enterprise, not for profit enterprise, or the improvement of the health of residents of the area to which the application relates.

Statutory chief planning officer – we have previously advocated for planning to be given its place within Councils and the creation of a statutory chief planning officer as now included in the Bill should help to achieve that, so this is an amendment which we very much welcome.

There are of course many other changes, and lots to look out for at stage 3, which will be the final opportunity for amendments to be made and debated before the Bill becomes law.

Meantime, the Bill as currently amended in light of stage 2 is available here, with dates for this to be considered at stage 3 yet to be confirmed. It will only be then that we will really be able to judge whether or not the Bill can achieve its original aims.

Margaret Bochel and Pippa Robertson, directors at Aurora Planning Limited

Margaret Bochel and Pippa Robertson, directors at Aurora Planning Limited