Despite much speculation on the future of the Planning (Scotland) Bill following the more than 200 amendments made at Stage 2 of the Parliamentary process (on which see our blog from November 2018), the Bill is now proceeding to Stage 3 with three days of debate over more than 150 amendments scheduled to take place this week. As set out in our April blog, Stage 3 is the last opportunity for any changes to be made and for the Government to “rescue” the Bill. So, are the amendments now proposed, particularly those put forward by the Government, likely to get the cross-party support required to achieve that? That’s difficult to predict, but below are our observations on just a few of the amendments, many of which you will recognise as being of particular interest to us.
Regional Spatial Strategies – as advocates for the retention of strategic development plans (SDPs), we were pleased to see these reintroduced at Stage 2 in the Bill process, although we did always have our doubts as to whether they would survive to the end. Now, Regional Spatial Strategies (RSS) appear to be the Government’s concession to the pressure to retain some level of regional land use planning in the absence of SDPs, which again are proposed for removal. However, it's not clear what the status of RSSs will be in terms of determining planning applications, the proposals are not accompanied by an authority with responsibility for RSS's production, and preparation of the new strategies will fall to local planning authorities with no obligation for them to work together or with any other regional authority (such as Regional Transport Partnerships), no definition of the geographical area which they should cover, and no timescale for their preparation (other than “as soon as reasonably practicable”). Indeed, a single authority can prepare a RSS on its own, which seems to defeat the purpose of them to a large extent, given that the benefits of SDPs were in providing a co-ordinated and integrated approach across functional geographical areas.
Additional requirements for Local Development Plans – one of the big criticisms of the Bill as amended following Stage 2 was that it imposed unworkably extensive additional obligations on planning authorities, including significant requirements with regards to the content of Local Development Plans (LDPs). Further amendments are now proposed to reduce these again, including removing the requirements that LDPs include a statement on the likely health effects of development, certain provisions in respect of housing specifically for older and disabled people, and a list of sites suitable for self-build projects. There are however no proposals to remove duties to include policies and proposals on the provision of public convenience’s and water refill locations (toilets and fountains to most of us!). At the same time, some new additional responsibilities are proposed, such as for planning authorities to prepare and maintain lists of persons who have registered interest in acquiring land for self-build housing. As such, it remains to be seen how much the additional obligations on planning authorities imposed at Stage 2 will actually be reduced as a result of Stage 3, or whether it will just be a different list.
Third party rights of appeal – after various proposals for both third party rights of appeal and restrictions on an applicant’s right of appeal were put forward and rejected at Stage 2, these have now been whittled down to just two proposed amendments on third party rights of appeal only. Broadly, these propose that certain third parties (those who made representations on the planning application and potentially also community councils) have the right to appeal planning approvals in certain circumstances, such as where the decision includes a statement that it is contrary to the Development Plan. Given that both proposed amendments are in broadly similar terms to amendments put forward at Stage 2, it will be interesting to see how concerns that were raised then will be addressed now, the main ones being that a third party right of appeal could undermine early engagement, further complicate and slow up the planning system, and discourage investment and development contrary to the public interest. On the other hand, there was also support for the idea being given more discussion and thought, with this being the time for that.
Short term holiday lets – one of many amendments made to the Bill at Stage 2 having been to require short term lets to get planning permission, further amendments are now proposed to refine the new provisions, including providing additional detail on what is meant by short term lets and proposals for short term let control areas. Interestingly, there is more on what wouldn’t count as a short term let than what would, with the only specific detail being that a short term let would be 31 days or less in a dwellinghouse that is not the sole or main residence of a person. Dwellinghouse is not defined, but in this context must be presumed to include flats, notwithstanding the fact that the general permitted development order expressly defines dwellinghouses as not including flats. At the same time, as we’ve raised previously, it is questionable whether the proposed provisions really change the law at all, given that recent enforcement decisions confirm that the use of properties as short term accommodation already constitutes a material change of use. As such, it is perhaps effective enforcement of the existing law that is needed, rather than changes to legislation.
Mediation – given our frequent references to planning “battles” in previous blogs and Spotlights, it may go without saying that we’d be unlikely to be averse to the use of mediation to resolve planning disputes. However, we’re struggling to understand the need to include reference to it in legislation, as is now proposed. The proposal is that Ministers may issue guidance on the promotion and use of mediation in relation to the preparation of LDPs, prospective applicant’s compliance with any requirements in respect of pre-application consultation, assisting in the determination of planning applications, and any other matter related to planning that they consider appropriate. Surely though that can be done at any time without the need for it to be in the Bill? Mediation in planning is not however straightforward. Who for example will pay for it? Might it raise expectations that development can be stopped, or indeed approved, without complying with the development plan as long as an agreement can be reached between mediation parties? What impact will it have on timescales for the preparation of plans and the determination of planning applications (and hence on the performance of planning authorities)?
Performance – and on the subject of performance, the requirement for planning authorities to report on the performance of their functions was removed at Stage 2. However, given the longstanding emphasis that has been made over the connection between fees and performance, it is unsurprising that the Government is seeking to re-introduce this, along with other proposals related to monitoring and managing performance. Whilst we would agree that performance is critical, there are still many questions as to how it should be measured; performance should not be judged on the speed of determination of planning applications alone, but rather should also focus on outcomes. That is particularly so given that the purpose of planning introduced to the Bill at Stage 2 is to manage the development and use of land in the long term public interest, with the public interest including contributing to sustainable development and achieving national outcomes.
There are of course many other amendments and it will be fascinating to see how the future of the planning system in Scotland emerges at the end of this week.
For those of you keen to have a blow by blow account, the BBC is livestreaming the debate:
- Tuesday 18th June: https://www.bbc.co.uk/news/live/uk-scotland-scotland-politics-48661773;
- Wednesday 19th June: https://www.bbc.co.uk/news/live/uk-scotland-scotland-politics-48661775;
- Thursday 20th June: https://www.bbc.co.uk/news/live/uk-scotland-scotland-politics-48661777.
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Thanks for reading!
Pippa and Maggie