Scottish planning reforms passed by ministers

Out-Law Analysis | 25 Jun 2019 | 3:49 pm | 5 min. read

The Planning (Scotland) Bill has been passed by Scottish ministers, paving the way for significant changes to planning law in Scotland.

The bill is expected to receive Royal Assent and pass into law by mid-July.

The passage of the bill follows months of political wrangling over proposed measures to improve and modernise Scotland's planning system. Three days of parliamentary time were set aside last week to vote on amendments to the stage 2 version of the bill, which had drawn widespread criticism from across the property development industry as unworkable.

Overall, the final bill is a welcome improvement. The absence of proposed changes to appeal rights or green belt protection and the removal of a land value capture mechanism will be particularly welcomed by developers, while new measures to require committee members to undergo training and for the performance of planning authorities to be more closely monitored by central government are also likely to receive cautious support.

However, uncertainty remains over the effects of secondary legislation, particularly in relation to measures to introduce an infrastructure levy. Elsewhere, changes to the development planning process and new reporting duties are likely to further increase the burden on chronically under-resourced planning authorities. The consequence is that the bill offers little in terms of meeting the government's original objective of simplifying the planning system.

What is included in the bill?

Changes to the National Planning Framework (NPF): Scottish Planning Policy (SPP) will effectively be merged into the NPF and put on a statutory footing through a new requirement for the NPF to set out the Scottish ministers' "policies and proposals for the development and use of land".

The requirements around the content of the NPF are more prescriptive. It must now contain a statement setting out how spatial development priorities will contribute to specific outcomes including meeting housing needs, particularly for the elderly and disabled; improving health and wellbeing; and increasing the population of rural areas. The NPF must also include targets for use of land in different areas of Scotland as well as an assessment of how each proposed national development will impact on achieving national emissions targets.

The absence of proposed changes to appeal rights or green belt protection and the removal of a land value capture mechanism will be particularly welcomed by developers.

Other changes include amending the meaning of 'development plan' to include the NPF; and adjusting the timescale for review from once every five years to once every 10 years from the date of publication.

Changes to local development plans (LDPs): LDPs must now "take into account" matters including the housing needs of the area's population; the availability of housing land; the health and educational needs of the local population; and the desirability of maintaining cultural venues.

There are new powers available to examination reporters to compel planning authorities to prepare a revised draft of the LDP where the amount of land allocated for housing does not meet the proposed housing targets. The examination reporter may also allow an LDP to be adopted with deficiencies, subject to a recommendation that the planning authority must pursue an amendment following adoption. As with the NPF, the review period for LDPs will change from every five years to every 10 years.

Replacement of strategic development plans (SDPs) with regional spatial strategies (RSS): SDPs have been abolished in line with the government's ambitions to simplify the development planning process and reduce the burden on Scotland's strategic planning authorities. Instead, there is a new requirement for planning authorities to prepare RSS, a new, long-term spatial strategy document that is designed to address the need, outcomes and priorities for strategic development and identify the proposed locations for development.

Unlike an SDP, the RSS will not form part of the development plan. It will also be incumbent on all planning authorities to prepare RSS, which differs from the requirement for SDPs to be prepared only by city region authorities. Publication and consultation requirements for RSS have been designed to be deliberately flexible, to allow authorities to decide on their own appropriate arrangements.

Local place plans (LPPs): Before preparing an LDP, planning authorities must invite local communities to prepare an LPP setting out their priorities for the development or use of land in the local area. The LPP may also identify land and buildings that the community body consider to be of particular significance. The LPP will not form part of the development plan, but must be "taken into account" by the planning authority in the preparation of the LDP.

Infrastructure levy: The bill grants enabling powers to the Scottish ministers to make regulations for an infrastructure levy, to be operated by the planning authorities. However, it is silent about how the levy would work in practice. The bill also includes a 'sunset' clause which removes the regulation-making power if no regulations are made within seven years of the bill passing into law.

Training for planning decision-makers: The bill grants enabling powers to the Scottish ministers to make regulations requiring training for members of planning authorities engaged in planning decision making. The bill states that members must not exercise decision-making powers unless they have fulfilled the specified training requirements.

Short-term let control areas: There are new powers for planning authorities to designate all or parts of their area as a "short-term let control area". Within these control areas, the use of a dwelling house for the purpose of providing a short-term let will be deemed to involve a material change of use, which may require planning permission.

Other notable provisions in the bill include:

  • new duties for planning authorities to report on: the performance of their planning functions; planning obligations entered into and details of outstanding obligations; and persons intending to buy land in their area for the purpose of self-build housing;
  • a simplified process for modifying planning obligations;
  • provisions for the Scottish ministers to provide guidance on mediation in respect of development planning and management matters. Planning authorities must "have regard" to any guidance issued;
  • new powers for Scottish ministers to appoint a performance co-ordinator to monitor the performance of planning authorities and provide guidance to improve performance.

What's missing from the bill?

Third party rights of appeal: Labour and the Scottish Green Party had sought to introduce equitable appeal rights, allowing communities to appeal against a planning authority's decision to grant planning permission where the proposal did not accord with the development plan. A corresponding measure was also proposed to remove the developer's right to appeal against a planning refusal taken in accordance with the development plan. These proposals were voted down by the SNP and the Conservative Party, whose preference was to improve community involvement in planning decisions through more robust consultation.

The absence of any changes to appeal rights will be welcomed by the development industry, which had expressed serious concerns that the measures would both reduce the speed of decision making and increase the unpredictability of the planning process.

Land value capture: The Scottish government remains interested in the concept of land value capture, but has conceded that its proposals were premature. Concerns have persisted that consequential changes to compulsory purchase and compensation legislation could interfere with the European Convention on Human Rights. There was also uncertainty as to how the proposals would work alongside existing measures to capture the value of new development, including through the infrastructure levy and planning obligations.

The government will examine the recent report on land value capture by the Scottish Land Commission (11-page / 212KB PDF) and consider whether new primary legislation is required.

Measures to enhance green belt development: A proposed requirement to refuse planning applications where the proposal would impact the "natural and cultural" value of the green belt has been dropped. Ministers considered that the policy protection already afforded to the green belt was sufficiently robust without the introduction of new legislative requirements. A new duty on planning authorities to analyse brownfield site options before submitting an application for development in the green belt has also been removed.

Other notable absences from the bill include measures to create "culturally significant zones"; and to protect music venues where development is planned nearby.

James Gibson and Gary McGovern are planning law experts at Pinsent Masons, the law firm behind Out-Law.