Property development? There’s a root and branch reform of the planning system underway

  • Insight

03 May 2019

The way in which the Planning (Scotland) Bill seeks to reshape the planning system is of particular importance to all engaged with property development including developers, planning authorities, communities and other stakeholders.

This ‘root and branch’ reform of the planning system by the Scottish Government will also be relevant across all sectors including housing, transport, energy, leisure and infrastructure. The planning process, including planning permission, helps decide what gets built and where. Our review of the Bill is an insight to those looking to develop property. This is the first in a series of useful articles where we will explore the particular provisions of the Bill. We have summarised amendments to the Bill in a downloadable PDF here.

Creating a better planning system for all

The aim of the Bill was to achieve a quicker, more accessible and efficient planning process in order to build investor and community confidence.

The original content of the Bill, as introduced into the Scottish Parliament on 4 December 2017, has been heavily influenced by the Independent Review of Planning, commissioned in 2015. That review, although not exclusively focused on how to accelerate the delivery of new homes, examined the wider planning system, seeking a better system for all.

Existing Planning Bill amendments v simplifying the system

The Bill as introduced and unamended, although not without its critics, is to be much preferred to the amended Stage 2 Bill. The Bill as introduced contained a number of fundamental reforms that had the potential to improve the planning system. However, it has now been subject to more than 230 approved amendments, with a very significant number of new statutory duties and responsibilities being imposed on planning authorities and the Scottish Ministers.  In essence, the Bill that was consulted upon is very different and in some parts unrecognisable from the Bill as approved at Stage 2. 

As consequence the Planning (Scotland) Bill is now difficult to follow and contains contradicting and unnecessary complexities. The resource, funding and efficiency implications of these will be very significant. Early supporters of the Planning Bill must be concerned that the central improvements of the system intended by the Bill appear to have been lost.

We have produced a downloadable summary of the Planning (Scotland Bill) amendments here.

Planning, communities and the economy

The Bill was intended to strengthen and simplify the system, and to ensure planning better serves Scotland’s communities and economy. In a series of meetings of the Local Government Committee (which examined the detail of the  Bill), opposition MSPs forced through changes against the wishes of the SNP minority, radically altering the Bill to the extent that in its current amended form is considered to be  ‘unworkable’. In addition to the duplications, complexities and contradictions, the Bill now contains a level of detail that one would expect to find in policy rather than primary legislation. Now included are the requirements for the provision for public toilets, water refill points and protection of disused railway infrastructure which although of importance can be dealt with under regulation or policy. 

The Bill has now entered Stage 3 the stage at which the full Parliament will consider the Bill as amended at Stage 2. Fortunately, an opportunity is available to ‘save’ the Bill as further amendments can be made and in some circumstances sections of the Bill may be referred back to stage 2 for further consideration.

Financial implications of the Planning Bill amendments

Planning Minister Kevin Stewart MSP has indicated that the costs associated with the amendments to the Planning Bill threaten its aims. A Revised Financial Memorandum published in March 2019 shows that an increase in costs for the development industry between £ 395.2m and £1,177m, planning authorities costs could be increased to £75m and almost £12m for communities. Against these eye watering increases in costs, Kevin Stewart will be seeking to ‘rescue’ the Bill and seek co-operation of MSPs during Stage 3 of the Bill to amend it back to a form that supports its original aims and purposes.  

Planning permission appeal rights

Significant by its absence is an amendment to the rights of appeal currently afforded to the applicant. Only an applicant has the right of appeal against planning decisions on an application.  Third-party rights of appeal, to enable persons other than the applicant for planning permission to make an appeal against the merits of a decision of a planning authority, have been carefully considered but excluded from the Bill.

The Scottish Governments’ response to third party rights of appeal was that stronger community engagement at an early stage was more constructive than adversarial appeals towards the end of the process. It is considered that their inclusion would create uncertainty and delays and could discourage investment. It would mean that almost every planning application would be decided not by the planning authority but by Scottish Ministers on appeal. The Policy Memorandum sensibly suggests that the focus of the Bill is to encourage stronger early engagement, supplemented with the new Local Place Plans, is the preferred alternative. Although amendments to the rights of appeal were tabled at Stage 2, none were passed. Cleary there is scope for their reintroduction by way of amendment in Stage 3. 

Planning Bill next steps

The Bill is in Stage 3 for consideration by all MSPs and it is anticipated that it will receive Royal Assent in summer 2019. Stage 3 is the final opportunity for MSPs to propose amendments to a bill in order to tidy up the wording and debate important issues relating to the Bill. The difficulty with the Bill is that, given the sheer scale of the amendments approved thus far, it is not a case of simply ‘tidying up’.

The Scottish Government will need to consider carefully, amendments to restore the Bill as much as it can to its original form, and MSPs will need to work collaboratively to enact a bill which strengthens and simplifies the system.

We will be producing regular updates on the Bill and exploring in more detail the particular provisions of the Planning (Scotland) Bill on a topic by topic basis.  It is our intention to host a joint breakfast seminar with Lichfields, planning consultants at or around the time of the Stage 3 Debate to discuss the impacts of the Planning (Scotland) Act 2019.

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