HM Insights

Planning (Scotland) Act 2019 – what is in the most amended Bill before Holyrood?

We have issued a series of briefing notes on the various stages of the Planning (Scotland) Bill (see articles here and here) and its passage through the Scottish Parliament. Now that the Bill has been passed following Stage 3 Debate, and in the process became the most amended Bill before Holyrood to date, and has received Royal Assent, we look here at what is now the Planning (Scotland) Act 2019.

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Development Planning

Many of the changes which the Act makes to development planning have remained largely unchanged from the proposals set out at Stage 2. The Act makes changes to local development plan (LDP) content and procedure. The LDP will set out targets for meeting the housing needs of people living in the area.

As per previous stages of the Bill, the Act provides that LDPs will be replaced every 10 years as opposed to the current 5-year renewal timescale. There will be greater scope for amending the LDP once adopted; planning authorities will be able to voluntarily amend the LDP at any time, or be required to do so at the direction of the Scottish Ministers. All of the detail of the planning authority's development policies will once again be found within the development plan itself, as provision for statutory supplementary planning guidance has been removed.

The 'development plan' against which applications are to be assessed will consist of the National Planning Framework and the authority's local development plan. Although the requirement for the city authorities to prepare Strategic Development Plans no longer applies, there will be an obligation on all planning authorities, either individually or acting together across a region, to prepare a 'regional spatial strategy'. This is to identify the need for, and priorities for the delivery of, 'strategic development', i.e. development which is likely to have a significant impact on future development within the area, across a particular region.

'Local place plans' allowing community bodies to set out proposals for the development or use of land in a particular area, are included in the Act. Although neither regional spatial strategies nor local place plans prepared by community bodies will form part of the LDP, they must be taken account of when the LDP is being prepared.

The Act introduces a new requirement for planning authorities to prepare an 'open space strategy' which will set out a strategic framework of the authority's policies and proposals relating to development, maintenance and use of green infrastructure in their area, as well as a forestry and woodland strategy.

Masterplan Consent Areas will replace the existing concept of simplified planning zones. The idea is that the planning authority may prepare a scheme authorising specified development or type of development within a particular area, subject to certain conditions and limitations. The Act outlines planning authorities' powers in designating these schemes and the process for doing so. It remains to be seen whether there will be greater uptake of Masterplan Consent Area schemes than there has been of simplified planning zones.

The definition of 'planning purpose' has been retained, but there is no longer an intention to define 'material considerations' in legislation.

Development Management

An amendment was proposed at Stage 2 of the Bill which would have meant that all changes to use of a property as short-term let, Airbnb style accommodation, would be a change of use requiring planning permission. However, the Act as passed doesn't go quite so far.

Planning authorities will be allowed to designate part or all of their area as a 'short-term let control area', and in that area any change to use of a dwellinghouse for short-term lets will be deemed to involve a material change of use, which may require planning permission.

There are measures in the Act to protect the position of existing noise-generating developments relative to new development proposals nearby. Planning authorities will not be able to impose additional costs on the existing development for measures to mitigate, minimise or manage the effects of noise. Also, in deciding the application the authority must take particular account of whether the proposed development includes sufficient noise mitigation measures.

The procedure for modifying or discharging planning obligations will be streamlined by now allowing this to be done by written agreement between the parties, although this can still be done through the existing section 75A application procedure.

Other matters

There are some additional administrative duties imposed on planning authorities by the Act, including a duty to publish details of planning obligations entered into, or modifications of planning obligations. Planning authorities will also need to produce an annual performance report to the Scottish Ministers.

Penalties - maximum penalties for failure to comply with enforcement proceedings under the Act are increased.

Training - the Scottish Ministers will specify training requirements which members must complete before exercising the functions of the planning authority.

CPO - Each planning authority must appoint a chief planning officer to advise the authority on the carrying out of its statutory functions.

Infrastructure levy - The proposed infrastructure levy, to be established by regulations and the details of which are still largely unknown, has been included in the Act as passed, relatively unchanged. The infrastructure levy is subject to a sunset clause such that if it is not enacted by regulations within seven years of the Act then the ability to enact it will be lost. Some informed commentators have speculated that it will never be enacted.

Land value capture - Provisions on 'land value capture' whereby planning authorities would be empowered to purchase land within a Masterplan Consent Area based on its current use value, rather than its value based on authorised development, have not been included in the final version.

Right to appeal - The Act does not make provision for either third party rights of appeal, or the removal of applicant's rights of appeal, both of which were argued strongly for at various stages of the Bill. The current law, which gives only the applicant a right to appeal on the planning merits, remains unchanged.

What comes next?

The Planning Scotland Bill passed Stage 3 of the Parliamentary process on 20 June 2019 and received Royal Assent on 25 July. The Planning Scotland (Act) 2019 is therefore live but the majority of its provisions have not yet been brought into force. It is yet to be determined when the majority of the Act's provisions will come into force and further updates will be provided when the Scottish Government provides this information.

Get in touch

If you require assistance in relation to any of the issues highlighted in this article, or any other planning related matter, please get in touch with a member of our team.