Aug 062013

August 2013 Scottish Planning Newsletter

Welcome to the PPD August 2013 Scottish Planning Newsletter

Recent headline events are :

  • An end to extending the validity of planning permissions?   Click HERE to read.
  • More legislation changes.  Click HERE to read.
  • SESPlan approved : but without housing!    Click HERE to read.

Recent appeal decisions emphasise that those wishing to develop their land must have it allocated for the intended use in the Local Development Plan.   It is now almost impossible to obtain a planning permission which does not accord with an up-to-date plan.   For our regular review of development plan progress across Scotland with some comment, click HERE.
Other information is available on our website, click HERE.    For previous newsletters click HERE.

Extending the validity of planning permissions: no longer possible?

From time immemorial it has been possible to extend the period during which a planning permission is valid by use of an application under “Section 42” of the present planning act – the mechanism used to amend planning conditions.   Such an application was used to amend the time-limiting condition applied automatically to all planning permissions by the various planning acts, and had to be done before the period of validity expired (previously five years, now three).

A Section 42 application had the attraction that the planning authority could only consider whether it was reasonable to grant such a time extension, and therefore could not re-consider any other aspects of the permission.  Provided that relevant development plan policies had not changed to such an extent that the development had become “contrary to the development plan”, it has been our experience that such applications were granted with little controversy, and very little effort on the part of planning authorities.
With the economic downturn making it harder for developers to start development (or all phases of a development) within the lifetime of a planning permission, compounded by the reduction in the period of validity from five years to three, applications to extend validity have become far more common than in the past.  We have received several such approvals this year alone.

However a group of Scottish planning authorities are now citing a little-known change in the 2006 Act to reject such applications.   The three-year time limit still applies (section 58 of the Act as amended), but the wording of subsection 1 removes reference to this being a condition.  These authorities claim that as the time limit is no longer a condition, it cannot be amended by Section 42.

Subsection 2 of section 58 introduced a new concept : that if a council wishes to vary the standard validity period, it should do so by issuing a “Direction” at the time of approval.  The view is that Section 42 does not now apply to the statutory time limit, or to a council “Direction” – because neither are conditions.  To add confusion to all this, subsection 3 tells us that such a “Direction” is to be treated as a condition in respect of the right of appeal!

The Act does not advise whether a council would be able to amend such a “Direction” after approval while the permission is still valid.

We await the view of our legal friends to all this with interest!

Our best advice to those submitting planning applications for complex developments is to carefully consider whether the development can be started within three years.  If there is any possibility that this will not be achieved, a request should be made to the council before it approves the application that it “Directs” that planning permission be granted for a longer period.  A number of Councils have already granted Planning Permissions in Principle for major developments which are valid for much longer than the statutory period: we are dealing with a 15-year PPP in Edinburgh at present.

More new legislation changes

The Government has now enacted the changes that were the subject of consultation last year, and made other minor changes.  Those of greatest interest are :

  • changes to avoid the need for newspaper advertising where neighbouring land has no premises to which notification can be sent, i.e. where neighbouring land is a road or is owned by the planning authority, or the proposal is “householder development”,
  • it is now a requirement that neighbouring land owned by the applicant be identified : the so-called “blue line” land,
  • Councils cannot now claim that a public road bordering a site is “neighbouring land on which there are no buildings”.  Amazingly, some were actually arguing this!
  • consultation is now required by planning authorities with Network Rail on planning applications within 10 metres of a railway line,
  • Reporters are now given discretion in handling minor pieces of additional information at appeals,
  • Extending the period for determining local reviews sought on the grounds of non-determination from 2 to 3 months (before the automatic deemed refusal of permission applies),
  • the appeal procedures in relation to advertisement control have been brought in line with the main procedures for planning appeals (i.e. appeals must be submitted within three months of the council’s decision),
  • an “opt-in” procedure for interested parties to appeals where vast numbers of pro forma or petition style representations have been made,
  • “hearing statements” in appeals and local reviews must fully set out the case, and not just an outline of the case.

SESPlan approved : without housing!

The situation – never known before in our experience – has arisen with publication of the Government’s approval of the South-East Scotland Strategic Development Plan, but with housing land supply deleted from the plan.  The Reporters found that various aspects of SESPlan’s case were so unsatisfactory that in order to approve the plan, they had to defer housing land supply to further analysis and approval in Supplementary Planning Guidance.

This remarkable situation is explained by the Reporters in the following strident terms:

“Scottish Planning Policy confirms that a housing need and demand assessment should be used to provide the evidence base for defining housing supply targets and allocating land for housing in development plans”.

“The main concern raised in representations here relates not to the methodology used for the assessment, but to the decisions by the (SESPan) authority both to depart from the outcomes of that assessment, and also to delay to beyond 2024 the release of land for some 11,000 of the houses assessed as being required before then. Those decisions are not clear from the plan itself, but have been confirmed by the authority in its further submissions made in the course of this examination”.

“The authority does not accept the outcome of the housing need and demand assessment .. .. .. either for the SESplan area as a whole, or for any of the six constituent local development plan areas”.

“.. .. I find that the reasons given by the authority to justify departing from the outcome of the housing need and demand assessment are not related to any specific wider strategic economic, social or environmental policy objective”.

“I find that the approach adopted by the authority here is not consistent with its vision for the plan area. That vision is based on the role which it has identified for South-East Scotland as both the main growth area and the key driver of the Scottish economy. Failure to identify and allocate the land required to enable the assessed housing needs and demands of the area’s residents and households to be met is liable to hinder economic growth and dilute the area’s contribution to the Scottish economy”.

“However, failure either to identify the scale of the housing land requirements for each planning authority area for the periods to 2019 and 2024, or to ensure that sufficient housing land allocations are made in local development plans, will not assist”.

“I consider that, to be consistent with the requirements for any strategic development plan, as set out in Scottish Planning Policy at paragraph 72, it would be necessary to set out, for each local development plan area, what is the scale of the housing requirement for the periods 2009 to 2019 and 2019 to 2024. This plan does not do so, either explicitly or implicitly. In response to a request from me, the authority has been unable to provide the necessary information to enable me to recommend appropriate modifications to rectify this omission”.

The Reporters had to find a different method to deal with the situation, namely that supplementary guidance will be prepared to identify how much land requires to be allocated in each local development plan area.

The Government perspective of this situation is explained as :   “The Scottish Ministers would prefer SDPs to consider the likely contribution from the established supply (and potentially from windfall sites) and so arrive at a clear expression of the numbers of houses requiring new allocations in LDPs for each area. However the information does not exist to include this analysis in the plan at this late stage”.

Strong words!

Our concern with this result is whether the supplementary guidance will be subject to the rigorous independent examination it would have undergone had it been part of the Strategic Development Plan.


Other development plan updates

Strategic Development Plan coverage in Scotland is now Glasgow and the Clyde Valley, SESPlan and Tayplan all approved; and Aberdeen City and Shire with the Scottish Ministers.

The long wait for new local development plans in South-East Scotland is set to continue with housing land supply in the “SESPlan” Strategic Development Plan now waiting for production of a Supplementary Planning Guidance document (see above).  Midlothian has gone ahead with a Main Issues Report on which consultation ends on 31st August. At West Lothian (where the present adopted Local Plan took over ten years to produce and adopt), present best guesses for a Main Issues Report are November / December. East Lothian MIR expected in October.  HoweverScottish Borders Council is going ahead with a Proposed Plan consultation in the autumn, despite being in the SESPlan area.

In the West, several plans have now completed the Proposed Plan consultation stage, and – surprise, surprise – are progressing to the examination stage unaltered!  (Why bother consulting anyone?). My slight sympathy with councils is that if “notifiable” changes are envisaged, re-consultation is required under the new procedures.  Nevertheless, many councils managed to do a re-consult under the old system with “Pre-Inquiry Modifications”.   North Ayrshire got caught out by this and had to do a re-consult on late changes after the plan had been submitted to the Government for examination.

Fun at Dumfries and Galloway, where the Council deferred decision on the Proposed LDP consultation response report.  There has to be more consultation with councillors, including seminars; and a re-submission to committee by 20th September.

Clackmannanshire :  Proposed Local Development Plan, consultation expected in the autumn.

Glasgow : Proposed Local Development Plan expected to go to committee in October or November; consultation would then be in December.

North Lanarkshire :  “Call for Sites” closes on 27th September 2013.

West Dunbartonshire :  Proposed Local Development Plan going to committee on 14th August, with consultation expected from 27th September to 29th November.  If you have development interests in this area, note that the contents of the plan will be available on the Council’s website after committee approval in August.