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Revised Scottish planning policy will ensure "right developments in the right places", says planning minister

Out-Law News | 24 Jun 2014 | 1:14 pm | 3 min. read

Onshore wind farms will "effectively be banned" from Scotland's national parks and National Scenic Areas (NSAs), while developers of shale gas and coal bed methane extraction projects will have to agree site-specific 'buffer zones' between their sites and local communities under changes to the Scottish Planning Policy (SPP).

Energy and planning law expert Gary McGovern of Pinsent Masons, the law firm behind Out-Law.com, said that onshore wind developers would be pleased the end result was "a slightly more balanced and less negative approach to onshore wind than had been presented in the consultation draft last year".

"Most developers already steer clear of national parks and NSAs for obvious reasons, so this is not a substantial new constraint," he said. "It has been the Scottish government's approach to the new 'Areas of Significant Protection' and wild land and community separation distances in particular which has been of most concern."

New rules have been introduced in relation to hydraulic fracturing and other unconventional onshore oil and gas developments as part of the SPP. These include a new requirement for 'buffer zones' to protect communities and the environment, to be assessed on a case by case basis by the planning authority and statutory consultees; new risk assessment requirements and community consultation.

"The Scottish government is presenting the new policies on shale gas and coal bed methane extractions as 'tougher rules'; but the need for consultation, robust risk assessments etc. are largely predictable and sensible requirements which the industry will be doing or ought to be doing anyway. Potentially, the most problematic aspect will be the new requirement for applicants to determine and try to agree appropriate 'buffer zones' around any sensitive receptors on a site by site basis with planning authorities and statutory consultees. The setting of these should be evidence based, but there is the potential for this to be abused in practice" he said.

The SPP is the Scottish government's statement of policy on how national important land use planning matters should be addressed across the country. Among the biggest changes included in the latest version is the introduction of a presumption in favour of sustainable development as a "significant material consideration" where development plans are out of date or silent. This is a similar concept to, but does not go as far as, the presumption in favour of sustainable development which has operated in England since 2012.

Among the general policies set out in the updated SPP are that any proposed developments should make best use of the capacity of existing infrastructure, and should promote regeneration by considering the reuse of previously developed land before developing on Greenfield sites. The document also sets out a preference for the use of town centre locations for "uses which generate significant footfall".

"This principle seems to be widely accepted but I expect there will be implementation issues in the near term," said Gary McGovern. "The precise scope of the expanded policy is not very well defined by the SPP, and some guidance is needed to explain how it should be understood and applied in practice. Some detailed guidance on other aspects, such as the new presumption in favour of sustainable development, would also be welcome."

The SPP also includes a detailed map of Scotland's 'wild land areas' for the first time and identifies "sensitive areas" which will benefit from stronger protection against inappropriate development. Together with the ban on windfarm development in the 19% of Scotland identified as part of a national park or NSA, approximately 30% of Scottish landscape will be better protected, the Scottish government said.

"The Scottish government remains strongly committed to releasing Scotland's onshore wind energy potential, however we have always made clear that we want the right developments in the right places," said Derek Mackay, the Scottish planning minister.

"This new policy also gives serious consideration to concerns over unconventional oil and gas with five main changes to strengthen planning policy. Any application for coalbed methane or shale gas projects must comply with the appropriate regulatory regimes, including SEPA's guidance on the regulation of shale gas and coalbed methane," he said.

Alongside the revised SPP, the Scottish government published a third version of its National Planning Framework (NPF3) setting out 14 priorities for major infrastructure development. NP3 places more of an emphasis on the jobs and economic benefits which projects will deliver. Among the new developments highlighted by NPF3 are two carbon capture and storage (CCS) schemes at Peterhead and Grangemouth; improvements to Dundee Waterfront; and airport enhancements at the country's major airports.