Planning Reform in Scotland – an update

The Scottish Government’s focus on managing the response to the impact of COVID-19 hampered the progress of its programme for reforming the planning system in Scotland.  However, it did not stop entirely.

The Scottish Government has continued to bring forward legislation and guidance as part of the roll out and implementation of the Planning (Scotland) Act 2019.

The development of the Fourth National Planning Framework is considered in this blog. Other developments affecting the renewables sector include the following items.

Pre-application consultation

2020 saw the requirement for face-to-face consultations suspended, and the emergence of virtual pre-application consultations. They have been widely well-received, with most citing an improvement in engagement and the ability to reach a broader audience.

The Town and Country Planning (Pre-Application Consultations) (Scotland) Regulations 2021 seek to amend the existing statutory requirements for pre-application consultation (PAC) which currently apply to major and national developments, as well as introducing specific criteria for exemptions from PAC requirements made under powers introduced by the Planning (Scotland) Act 2019.

The Regulations are due to come into force on 1 October 2021 and the proposed changes include:

• an applicant must hold a minimum of two physical public events (currently, only one event is required),
• a newspaper notice must be published in advance of the first and second (or final) event,
• the information which can be obtained by the public must be available both electronically and in hard copy,
• there must be a minimum of 14 days between the first and final event,
• feedback on comments received must be provided at the final event,
• amendment to content of a PAN to clarify that it allows information on who will be consulted, when and how, rather than precise dates or persons,
• statutory requirements on the specific content of the PAC report to which an application that does not comply with the requirements must be refused,
• applications are exempt from PAC where the development is similar to, or part of a development which an earlier application, which was subject to PAC was made. To be exempt, applications must also be made to the planning authority within 18 months from when the earlier application was made. An exemption would not apply where the planning authority had refused to deal with the earlier application, either because it was a repeat application with no prospect of a different decision being made or had itself not complied with PAC requirements.

Some may find it surprising that, despite the apparent success of virtual pre-application consultation over the last twelve months, instead of allowing applicants to replace face-to-face consultation with online consultation, applicants will instead be required to hold two face-to-face consultations.

However, in fairness to the Scottish Government, the analysis of the responses to the consultation on the proposed changes suggests a mixture of views - with some (if not many) respondents suggesting online consultation has been less effective.

Perhaps more work needs to be done to assess the objective impact of online events, but if the planning system is trying to broaden engagement (and in particular engage younger generations) then it is disappointing there is no room for virtual consultation in the new regulations.

Extension to Duration of Planning Permission

From the outset of the Covid-19 pandemic it was evident that a number of planning processes were being impacted. This was addressed by a mix of legislative change and guidance from the Chief Planner.

Legislative changes were included in the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No.2) Act 2020.

Amongst other things, these acts extended the duration of planning permission (including planning permission in principle, listed building consent and conservation area consent) in Scotland which were due to expire within the emergency period by up to 12 months.

The original emergency period was due to expire on 31 March 2021, meaning that any permissions due to be implemented after that date would not be entitled to an extension.

However, the Scottish Government has now announced that, subject to the agreement of Parliament, Part 1 of both of the Coronavirus Acts should be extended to 30 September 2021.

On 24 February 2021, Scottish Ministers laid down the Town and Country Planning (Emergency Period and Extended Period) (Coronavirus) (Scotland) Regulations 2021 in the Scottish Parliament, which purports to extend the provisions of the Coronavirus Acts relating to the duration of planning permission.

The effect of the extension being that those consents which are due to expire between now and 30 September 2021 shall be extended to 31 March 2022.

Section 75 Agreements (planning obligations)

Planning obligations and “planning gain” do not perhaps affect renewables projects to the same extent as development in other sectors.

However, most projects will be subject to some form of section 75 agreement, which may restrict or regulate the development of the land and may even require payment of a financial contribution for the purposes set out in the agreement.

There have been two key recent changes. Firstly, it is now competent for a section 75 agreement to require payment of a financial contribution without otherwise restricting the development or use of the land. Secondly, and of real practical benefit for developers, it is now possible to agree to modify or discharge a planning obligation by agreement in writing without having to make a formal costly and time consuming application.

Both changes provide more flexibility to the use and application of planning obligations.

Permitted Development Rights

On 1 April 2021, phase one of the Scottish Government’s phased programme for reviewing permitted development rights in Scotland will come into force. This will provide new and extended permitted development rights relating to digital communications, infrastructure, agriculture, peatland restoration, active travel and aquaculture.

It was originally intended that phase one would include permitted development for some micro-renewables developments, domestic and non-domestic, such as solar panels, biomass, free-standing wind turbines and air source heat pumps.

These will instead be brought forward in the next stages, along with other development like electric vehicle charging points and energy storage (domestic and non-domestic).

No timetable has been fixed for these further changes, but they will not happen this side of the election, so will come forward later in the year, at the earliest.

We look forward to seeing how these developments will play out across the renewables sector.

If you would like to discuss any of the upcoming changes and how these may impact your business, please get in touch.