The Planning (Scotland) Act 2019

• United Kingdom

• Real estate planning

28-08-2019

This Act heralds the next stage of the reform of the Scottish planning system. The reform process introduces a significant number of changes to spatial planning and development management, intended to strengthen and simplify planning processes and positively enable development. This will be of significance to those with interests in current or future proposals for energy developments in Scotland.   

The majority of the provisions of the Act will come into force on a date to be specified in subsidiary regulations.

A key change is the introduction of a purpose of planning to manage the development and use of land in the long term public interest. The purpose applies to the Scottish Ministers and planning authorities in the exercise of spatial planning and development management.  

Other significant changes are listed under the topic headings listed below.

National Planning Framework

Scottish Planning Policy will be incorporated into the National Planning Framework (NPF) and this revised NPF will form part of the statutory development plan. Statutory outcomes for development are specified which the NPF must address, including how development will meet any greenhouse gas emission targets. Planning authorities can be directed by the Scottish Ministers to assist in the preparation of the NPF.

The NPF must be reviewed every ten years, rather than the current five, and either revised or an explanation as to why a revision is not required is to be provided. A revised NPF must have regard to published strategies for adaptation to climate change and the land use strategy prepared under Scottish climate change legislation. The NPF will require approval by Parliamentary resolution before being brought into effect, subject to representations being made within 120 days (with some exceptions).

Local Development Plans

Procedural changes to the preparation and review of local development plans (LDP) are proposed. These changes include an extension of the LDP timescale to ten years from the current five and a streamlined, front-loaded preparation process. Detailed preparation of a plan will proceed once a report setting out the evidence base has passed an early ‘gatecheck’ to be undertaken by an appointed person, likely to be a Reporter. 

Substantive changes are also proposed. LDPs are to be better aligned with community planning through a requirement to take into account the local outcome improvement plan prepared by community planning partnerships, with guidance from the Scottish Ministers. LDPs must also take into account built heritage, health effects, education needs and systems for the supply of energy, including land available for the development and use of facilities for renewable sources of energy. Wider consultation requirements are also included, including promoting participation from children and young people. 

Infrastructure Levy

The Act empowers Ministers to establish an infrastructure levy to raise funds to support the provision of infrastructure projects.  Guidance may be issued by Scottish Ministers and this must be adhered to. A sunset clause is in place; where no regulations are made to introduce an infrastructure levy within seven years, the power is no longer exercisable.

Duration of Planning Permissions

The provisions setting the duration of planning permissions are to be simplified. The Act requires a condition setting a time period for implementation of a planning permission to be attached or a condition will be deemed to have been included. Such conditions may be, like other conditions, appealed or reviewed. For planning permissions, the default period is three years from the date of grant and the default period for permissions in principle is five years. This change will allow developers to make an application to seek an extension of life through a variation application.

The exemption for limited time permissions is removed. Previously, time limited permissions did not require a commencement condition. This issue has been the subject of much discussion recently, however was never formally tested and upon commencement of this Bill is no longer relevant. 

Planning Obligations

Planning authorities and applicants are now required to publish and ‘promote’ planning obligations to bring them to the attention of local residents.

A modification or discharge of a planning obligation may be made through a s75A application, or an appeal to Scottish Ministers, or through agreement with the planning authority. No burden may be placed on a non-applicant against whom the obligation is enforceable without their consent. Similarly, a planning authority cannot make modifications which are not sought in a modification application without the applicant’s consent. The same powers are given to Scottish Ministers.

Other

A number of other changes are introduced by the Act which are not considered further here. These changes include:

• Planning application fees and costs
• Changes to masterplan consent areas and simplified planning zones
• Content of Pre-Application Consultation reports
• Notification requirements for major development
• Fines for planning offences
• Notification requirements for listed building consent applications
• Consideration of biodiversity