Subordinate Legislation
Public Services Reform (Planning) (Pre-application consultation) (Scotland) Order 2013 [Draft]
Public Services Reform (Planning) (Local Review Procedure) (Scotland) Order 2013 [Draft]
Planning etc (Scotland) Act 2006 (Supplementary and Consequential Provisions) Order 2013 [Draft]
Items 2, 3 and 4 are three draft affirmative Scottish statutory instruments. The Minister for Local Government and Planning is here to give oral evidence on them. In the interests of efficiency, I propose that the committee takes evidence from the minister on all three at the same time. Members have copies of the draft orders and papers setting out their purpose. I welcome the minister, Derek Mackay MSP; Alan Cameron, policy manager for planning legislation at the Scottish Government; and Norman MacLeod, senior principal legal officer in the Scottish Government legal directorate.
I invite the minister to make any opening remarks.
The Minister for Local Government and Planning (Derek Mackay)
I welcome the opportunity to debate the motions on the three statutory instruments.
The three statutory instruments before the committee are part of the “Planning Reform—Next Steps” package that I announced last March. There was some discussion of the issue in Parliament yesterday. The proposals are largely technical and apply to the Town and Country Planning (Scotland) Act 1997, as amended, with some consequential changes to secondary legislation.
On the first draft order—the Public Services Reform (Planning) (Pre-application consultation) (Scotland) Order 2013 [draft]—statutory requirements for pre-application consultation currently apply to applications for planning permission for a change in conditions on an existing permission for a major or national development. Those are known as section 42 applications. The draft order would remove the PAC requirements from section 42 applications for major and national developments.
The requirement for PAC in such cases has been repeatedly highlighted by planning authorities and developers as disproportionate, for example, regarding the time and cost implications of 12 weeks of consultation and the holding of public events. It can also be misleading for the public, as the application relates only to conditions and not to the proposal as a whole.
Although changes to conditions can be a significant issue, it is not the same as considering the totality of a major development. The section 42 application process already provides communities and others with a suitable opportunity to make their views known to the planning authority, which is required to give those views due consideration before making a decision.
Having consulted on the need for change on a number of options, we concluded that the proposed amendment would be the most proportionate and straightforward solution. In the consultation on precise proposals, the majority of respondents supported the proposals. I am happy to take questions on the first draft order, before I move on to the others.
Are there any questions for the minister?
Minister, was consideration given to making pre-application consultation discretionary for the local authority, rather than abolishing the requirement across the board? Concern has been expressed that in some instances—a minority of instances, I am sure—the conditions are such a substantial part of the decision-making process that it is important that there is the fullest consideration, by the widest range of people, of any variation in conditions.
Your question is pertinent. Consideration was given to that and other options in the comprehensive consultation. It was thought that our approach is proportionate and clear and that an approach that created categories that would require a second round of pre-application consultation would be complex and unnecessary.
The determining local authority will go through the whole planning process again if that is what is required and there is a change to the original conditions. The full process will be gone through a second time if there is an application to change the conditions. All the matters will therefore be reconsidered at the planning application stage, so people will be aware of that.
We propose a standard approach throughout the country that is proportionate and clear and adds no more unwelcome and unnecessary clutter to the planning system. Our proposed approach carried a great deal of support in the consultation.
Are you saying that, through the whole planning procedure, the public and interested parties have the opportunity to intervene, make their views known and interact with the planning system on the variation of conditions, as they did with the original application? Are you saying that there is therefore no loss of opportunity to make views known and interact when a variation in conditions is proposed?
For the purpose of the planning application, yes, but—to be clear—for the purpose of the pre-application consultation, no, because the body of the application and the conditions have already been determined. However, the change would be presented in the renewed application and the normal mechanisms would apply.
For clarity, the pre-application process is about helping the applicant and the planning authority to shape what will happen, whereas the planning process itself is the one by which decisions are made. In the circumstances that you propose, there absolutely remains the opportunity to interact in the decision-making process for everyone who has an interest.
Yes, through the planning system. You are absolutely correct. Pre-application consultation the first time round for applications on the scale that we are talking about will continue and will help to shape the application and therefore the decisions later on.
Can you give examples of the conditions that you are talking about? As you know, sometimes a condition is vital and is germane to the application being granted. I would have a great deal of concern if there was a move to change such a condition. Examples would be good, as would a clear indication of what would happen if a condition was the subject of a section 42 application in relation to which there would be no pre-application consultation. Where are the checks and balances?
If it is deemed that there is a requirement for flexibility in the conditions in an application, it can be part of the planning determination that further conditions could be considered. For example, the times of operation could be determined in the application or left for a future decision. I suppose that a condition on hours of operation is one that could be changed, in relation to a property. That could be determined at the stage of the original decision or it could be left to further negotiation and agreement between the planning authority and the applicant.
As the member is a Conservative, I am sure that she will appreciate that the requirement for a pre-application consultation second time round can cost between £1,000 and £10,000, which feels disproportionate to change just one condition, rather than the whole planning determination. Applicants and stakeholders in the planning system have said that it is disproportionate.
If there is to be a variation of a condition, a renewed application will have to be made, which will result in the whole planning system being re-enacted to consider the change, and the local authority or planning authority will have to take all the matters into account. The kind of condition that might be changed might relate to hours of operation or an expectation that arises as a consequence of the application.
The process already happens, in that key Government agencies, other partners and planning authorities at present reconsider some planning obligations in light of the fact that economic circumstances have changed since planning applications were initially approved. Because economic circumstances have changed, planning obligations might no longer be as appropriate as they were when a planning application was first determined. However, the order focuses more on planning conditions.
I fully appreciate that there has to be a balance and that there is a good reason for introducing the measure, but I am concerned that it gives a carte blanche. I am afraid that your example of hours of operation does not give me much comfort, because that issue can sometimes be key to a local community’s decision on whether it can compromise and live with something that it was previously against. For example, hours of operation might be curtailed so that they do not extend after 5 o’clock, to allow families to settle and not be disrupted.
I would appreciate it if you would look again at the issue. I understand that sometimes there are extenuating circumstances and that things change and conditions are varied or perhaps even removed but, to allay fears that the order could provide a loophole for abuse, will you consider providing some way of referring proposed changes that are of concern, such as changes to hours of operation in certain circumstances?
I hope that I can answer that query. The question to ask about the order is what value the pre-application consultation process adds to the overall planning system. The evidence that we have is that, for the kind of change that we are talking about, the process adds very little value. Many people enter such pre-application consultations with the view that they will be able to change the overall application, rather than the conditions that are to be varied.
The member should not be alarmed by the change, because all the factors that were raised during the consideration and determination, such as the community or local view on a potential bad neighbour or the impacts of a decision, will have been taken into account in the first place and will be returned to if the planning application is reconsidered. Because of the scale of the decision, the local elected members who make it will still have to take all those factors into account when deciding whether to allow a change of conditions. It is not as if those factors and views from the community will be dispensed with; it is just that the statutory necessity for a pre-application consultation will no longer exist. I hope that any concerns that might have been raised earlier in the process, or in the planning process, will be addressed as part of the determination.
It is felt that the requirement was automatically put in the planning system simply as a consequence of the 2006 act, rather than because it was seen to add any value. I hope that I can assure the member that safeguards will continue in the planning system.
Is there a right of appeal if all those things do not come to pass and in the very rare circumstances in which an appeal might be necessary?
The right of appeal is complex and depends on the scale of the application and where the decision was taken. The order makes no change whatever to the right of appeal.
The minister has mentioned twice, as far as I can recall, that the majority of respondents expressed support for the change. Where did the majority of respondents to the proposal to change the legislation come from? Were they developers, planning departments, community councils, local organisations or community groups?
10:15
I will be happy to supply you with the details of who responded, which have been published in the consultation responses documents, but, to be helpful, I can generalise from memory—[Interruption.] The officials are giving me details; shall I go through them or would you rather that I generalised?
Please generalise, minister.
In general, planning authorities agreed with the approach and developers were broadly in agreement, too—in quite large numbers, in both cases. Responses from individuals were balanced. Consultants were in favour, and professional and statutory bodies’ responses were balanced but broadly in favour.
Community groups and community councils generally disagreed, which I suppose reflects concern about losing out on an opportunity to input into the process. Of course, their rights to input into the planning process are retained, but I suppose that they fear that they will miss an opportunity to input through pre-application consultation—that is the point that Margaret Mitchell helpfully covered. I argue that there is little proportionate value in pre-application consultation being part of the process.
Those are, broadly, the responses to the consultation.
Thank you. Your answer confirmed what I thought, which was that planning authorities, developers and other people with an interest in development would generally be in favour of the proposal, whereas community groups and community councils would be more concerned about a change to the pre-application consultation process, particularly in the context of proposed changes to conditions that the local authority has previously agreed.
What change to conditions might be subject to pre-application consultation, or will no change to conditions be subject to pre-application consultation? As Margaret Mitchell said, communities engage in the planning process at an early stage, by making representation to the local authority planning department and planning committee.
There might be conditions about times of operation, as you said. I am less worried about a 5 o’clock finish than I am about an 8 am start. If it was a condition that work would start at 8 am, but the developer then said that they wanted to start at 7 am in the summer, they would be proposing a fundamental change in the conditions that had been applied to the planning application. Would any proposed changes to conditions be subject to public consultation? I am less concerned about planning authority consultation than I am about the public’s perception of their right to guaranteed consultation on any changes to the conditions that have been set out in a planning application.
Because of the nature of applications and the elected member input in the planning process, I would argue that there is public engagement. I am sure that you recognise that, from your local authority perspective. I think that planning authorities would take account of all the matters about which you are concerned.
I ask again: what extra value is given by a full pre-application consultation for a change in only part of the application? The full process lasts 12 weeks and generates costs for developers and planning authorities, so we must consider whether it is necessary.
I entirely understand your point about public engagement, but we do not want to lead people into pre-application consultation under the illusion that they are being consulted again on the full planning application, when they are being consulted only on a variation in conditions which, as I said, will be fully considered by the planning authority, with all the usual mechanisms coming into play.
I am sure that many community organisations and individuals are well aware that, in such a consultation, only the proposed change of conditions in the planning application is subject to further consultation.
I think that you said that the additional cost to the developer of such consultation could be between £1,000 and £2,000. However, the Parliament and local authorities must ensure that communities throughout Scotland can have faith in the planning process. It is communities in Scotland who feel aggrieved and that might argue that the draft order is a developer’s charter. Developers might agree to conditions in their original applications, knowing that they will be able to amend them at a later stage when they will not have to go through the pre-application consultation process. In that way, developers might try to circumvent issues that should be fully discussed with the public and local authorities before a decision is made.
That characterisation does not reflect the evidence that was presented through the consultation. Planning obligations are often revisited, for example because economic circumstances have changed or an issue that was deemed to be an appropriate planning consideration no longer applies. Planning decisions might be revisited for a number of reasons and the situation will not necessarily be as you described. That said, it is fair to say that not every developer plays by the rules.
We want to take a more proportionate approach to planning. The cost that I gave was just the cost of the process itself. Right now, if an applicant seeks to vary conditions that have been set out as part of planning consent, there is a delay of 12 weeks or more, and the second round of pre-application consultation could cost the developer substantially more. People might not think that they are interested in the costs to developers, but there is an impact on jobs and economic growth. Surely at this point in our economic recovery we should be doing everything that we can do to try to stimulate the economy, as long as what we do is proportionate.
I am not convinced that the proposed approach would have the negative consequences that you suggest it would. The evidence is that the current approach adds no value to the planning process, because concerns of the kind that you raised would be picked up in the planning process.
There was not a huge response from individuals and community councils, but some respondents were concerned that their opportunity to input into the process would be somewhat diminished. I argue that that opportunity is diminished by the fact that a second round of pre-application consultation does not add value, and I still expect communities’ views to be taken on board in any planning authority’s determination.
I was trying to express what I think is the view of many communities in Scotland, which is that the current system of determining planning applications disadvantages them and the proposed change in relation to consultation on variation of conditions would be a developer’s charter.
You talked about changing economic circumstances. In how many applications would a change of economic circumstances be a reason to revisit conditions?
I do not want to indulge in speculation. I do not think that the draft order will lead to a flurry of applications; what it will do is ensure that people who go through the process do not have to bear an extra burden, which adds no value to the system for objectors or for applicants.
If we recommend that the draft order is approved and it is subsequently approved by the Parliament, will the situation be monitored, to ensure that the new approach does not create the disadvantages that members expressed concern about?
Of course. This is just one aspect of the planning system, and all aspects of planning operation are monitored and remain under review. I am focusing on delivering a plan-led system, improving performance, delivering development, streamlining and simplifying the system and taking on board community opinions. There will be on-going monitoring of applications and indeed the nature of the planning system, to ensure that it is fit for purpose—you would expect no less. We will of course consider the impact of the change.
Are there any other comments on the draft order on pre-application consultation?
In summing up, I think that we are concerned about the unintended consequences of what seems a reasonable proposition, so I hope that the committee will continue to monitor it. I hope that all members of the Parliament will draw on their local knowledge of what is happening with planning applications and variations of conditions to bring information to the committee to ensure that we have not created a loophole that was not intended.
The next draft order is the Public Services Reform (Planning) (Local Review Procedure) (Scotland) Order 2013 [draft].
The draft order relates to applications with a right to local review of a decision rather than a right to appeal to ministers. Local reviews were introduced in 2009 and they apply where an application is for local development and is delegated to an officer for decision.
The aim is to put both types of case—those that are subject to local review and those that can involve an appeal to ministers—on the same footing with regard to time periods for challenging failure to determine a planning application. Currently, applicants can seek a local review if the delegated officer takes more than two months to determine an application. However, seeking such a local review is currently time limited. That means that, where an applicant waits for a decision from the officer, he or she could lose the right to local review on the ground of non-determination. In such circumstances, they would simply have to wait until the officer eventually issued a decision on the application. Alternatively, rather than lose that right, the applicant might seek such a local review despite the fact the officer’s decision is imminent, needlessly starting a separate decision-making process.
Currently, where a right to appeal to ministers on the ground of non-determination applies, the applicant and the planning authority can agree to an extended period for determining the application and retain the applicant’s right to appeal on the grounds of non-determination. That avoids the applicant losing such a right or being under pressure to exercise it prematurely.
The draft order will allow such an extension to be agreed where the right to local review on the ground of non-determination applies. Therefore, where the applicant is content that more time is required, they can stay in the application process for longer rather than starting a local review process, while retaining the right to challenge the failure to determine their application if a decision is not forthcoming after the extended period. The vast majority of consultation responses supported the proposed change.
I hope that that was clear and I am happy to take questions on the draft order.
There are no questions for the minister on that order. The next order is the Planning etc (Scotland) Act 2006 (Supplementary and Consequential Provisions) Order 2013 [draft].
This draft order also amends the local review procedures, which replaced appeals to ministers in certain cases. It makes a number of clarifications and improvements to the way existing planning mechanisms apply in cases where a right to local review applies, avoiding potential uncertainty about how the system works.
The changes that are involved are very technical. A number of the amendments clarify how mechanisms that specifically refer to appeals or appeal decisions apply where local reviews or local review decisions are involved: for example, provisions allowing the planning authority to return repeat planning applications in certain circumstances, including where previous applications were refused on appeal.
Again, I am happy to take questions on this draft order.
There are no questions for the minister on that order.
We move on to the debate on motions S4M-05247, S4M-05246 and S4M-05245. No members wish to speak in the debate, so I invite the minister to move the motions.
Motions moved,
That the Local Government and Regeneration Committee recommends that the Public Services Reform (Planning) (Pre-application consultation) (Scotland) Order 2013 [draft] be approved.
That the Local Government and Regeneration Committee recommends that the Public Services Reform (Planning) (Local Review Procedure) (Scotland) Order 2013 [draft] be approved.
That the Local Government and Regeneration Committee recommends that the Planning etc (Scotland) Act 2006 (Supplementary and Consequential Provisions) Order 2013 [draft] be approved.—[Derek Mackay.]
Motions agreed to.
Town and Country Planning (Miscellaneous Amendments) (Scotland) Regulations 2012 (SSI 2012/325)
We move to consideration of a negative instrument. Members have a paper from the clerk setting out the purpose of the regulations. The Subordinate Legislation Committee had no points to bring to the attention of the committee. There are no comments from members on the regulations. Are we agreed to make no comment on the regulations to the Parliament?
Members indicated agreement.
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Meeting suspended.
10:36
On resuming—