Planning (Scotland) Act 2019 – Summary Guide to Implementation

The Scottish Government has described 2020 as a “massive year for planning in Scotland.”

To kick things off it has launched a new website: Transforming Planning.  A ‘one stop shop’ for information on its programme of planning reform, which includes changes to legislation, national planning priorities and policy.

Central to this programme of reform is the continuing implementation of the Planning (Scotland) Act 2019.

In September last year, the Scottish Government published its programme for implementation of the Act. This anticipates the implementation of most of the Act by early 2021. Indeed, some measures have already been put in place.

Before the next round of commencement on 1 March 2020, it is worth taking stock of where we are.

Purpose of Planning (effective 8 November 2019)

Planning now has a defined statutory purpose:

The purpose of planning is to manage the development and use of land in the long term public interest.

Section 1 of the Act goes further with reference to sustainability and national outcomes under the Community Empowerment Act 2015 in relation to “the long term public interest”. The statutory purpose of planning only applies to the exercise of Scottish Ministers and local authorities’ functions relating to the National Planning Framework and development planning.

Given that planning decisions gave primacy to the development plan and that the Act elevated the status of the National Planning Framework as part of the development plan, the need to define the purpose of planning in this manner may appear to some as unnecessary.

The Law Society of Scotland in their Stage 3 Briefing Paper on the Planning (Scotland) Bill highlighted the potential for the introduction of a statutory purpose for planning to result in legal challenges on the basis that a decision does not comply with the defined planning purpose.

We are not aware of any challenges having been taken on this basis, but it is now very much in play.

NPF4 (effective 8 November 2019)

Section 2 of the Act makes amendments to the content and procedures for preparing the National Planning Framework.

Now the Act has been passed, stakeholders in the planning system are naturally turning their attention to the fourth National Planning Framework (“NPF4”). Given NPF4 will encompass Scottish Planning Policy, those who made efforts to push through policy recommendations in the primary legislation and feel aggrieved about amendments to or omissions from the Act, will potentially see NPF4 as a new battleground to recommence their particular policy fight.

NPF4 will provide a national spatial strategy until 2050 and, as discussed above, the Act has elevated its status as part of the statutory development plan.

The Act provides that NPF4 should be in place no later than 23 June 2024 (and reviewed every ten years after). However, the Scottish Government Programme envisages a draft of the NPF4 for public consultation in Q3 2020. Taking into account the new procedures and Scottish Parliament elections, approval of NPF4 is anticipated in late 2021.

Consultation during the preparation of NPF4 will need to be extensive. Particularly given the inclusion to its scope the thorny issue of targets for use of land for housing. These housing targets were previously the remit of local authorities. These targets now being fixed at Parliamentary level means that it is imperative for there to be sufficient local land to meet the targets proposed.

The Scottish Government have launched a “Call for Ideas” in relation to NPF4 which runs until 31 March 2020.  Industry bodies including Homes for Scotland and Scottish Renewables are running their own consultations seeking views from stakeholders, which provides much needed focus at this “open” consultation stage.

National Scenic Area and Forestry and Woodland Strategy (effective 1 December 2019)

In exercising planning powers with respect to land in any National Scenic Area (which are of outstanding scenic value in a national context), special attention is to be paid to the desirability of safeguarding or enhancing its character or appearance.

Planning authorities are also to prepare forestry and woodland strategies.

Scottish Ministers/Further Regulations (effective 1 December 2019)

Amendments have also been made to the powers of the Scottish Ministers (likely to be fleshed out in further regulations) in relation to:

• pre-application consultation;
• section 42 applications;
• assessment of environmental effects;
• call-in of applications;
• toilet facilities within certain large developments;
• fees for planning applications;
• national performance monitoring; and
• notice of applications for listed building consent.

A consultation is ongoing on performance monitoring and fees. This closes on 14 February 2020.

Agent of Change Principle (effective 20 December 2019)

We were put on notice back in December 2017 by Kevin Stewart MSP, Minister for Local Government and Housing, that the Agent of Change principle was being considered for introduction into the planning system. This was followed up by the Chief Planner in a letter on 16 February 2018 indicating the Scottish Government support for the principle.

The Agent of Change principle essentially places the burden on developers to mitigate the noise issues of the surrounding area on their particular development. Where “noise-sensitive development” is being considered, the planning authority must take particular account of measures the developer seeks to include to “mitigate, minimise or manage” the effect of noise between the development and any existing venues or facilities (eg. live music venues), dwellings or businesses in the vicinity.

Fines (effective 20 December 2019)

New provisions have come into force which increase the levels of maximum fine that can be imposed by the courts on conviction for various planning offences and, for certain offences, introduces a requirement for the courts to take account of financial benefit when setting amounts of fines.

What’s Next?

The big focus is on NPF4 and preparations are starting to move apace. However, there are already issues with timing.

NPF4 should be informed by the new Regional Spatial Strategies (which have replaced strategic development plans). The Scottish Government have acknowledged that RSS preparation will run beyond their timescales for NPF4. However, it would appear that many local authorities are pressing on with preparing their RSS.  The intention is that statutory guidance will be available on the approaches to RSS by Q4 2021.

In terms of the Act, further changes will be implemented on 1 March 2020, including:

• notification of major applications to Councillors, Members of the Scottish Parliament and Members of the UK Parliament;
• removal of the requirement for applications subject to a pre-determination hearing to go to full council for decision, and leaves the local authority free to delegate the decision on such applications as it sees fit; and
• the requirement for the planning authority to include in the decision notice for a planning application a statement as to whether they consider the development to be in accordance with the development plan, and their reasons for reaching that view.

The Transforming Planning website will be a useful resource for following progress of planning and policy reform. The website should be updated regularly throughout the development of NPF4, new regulation and guidance supporting the Act and the digital strategy for planning.

We are very much looking forward to being part of the discussion in 2020.