KNOWLEDGE

Scottish and English planning regimes

MortonFraser_Sally Anthony
Author
Sally Anthony
Professional Support Lawyer
PUBLISHED:
25 June 2014
Audience:
category:
Factsheet

Status: Different rules have always applied

Nature and timing of the change: Each legal jurisdiction has been governed by its own legislation and statutory framework ever since the foundations for the planning system were made in 1948.   Scotland has fully devolved responsibility for town and country planning policy and decision making.

Below is a note of some key facts for the two different planning regimes.

Submission and processing:

Other than for nationally significant infrastructure projects ("NSIPs"), a planning application for a development in England is made to the local planning authority.  All planning applications are processed in the same manner.

All planning applications in Scotland are made to the local planning authority.  However, applications are treated and processed differently, with differing rights of appeal.  This depends on the type of development, its size and importance.  This is known as the development hierarchy and is split into three categories:

  • national developments - are the top tier and are set out in the National Planning Framework 2.
  • major developments - include developments such as housing proposals over 50 units, supermarkets over 5,000 square metres  and wind farms over 20MW.
  • local developments – single unit houses, shop front alterations and change of use of properties.

Pre-application consultation:

As yet there is no legal duty on applicants to undertake pre-application consultation in England, but one will be introduced if and when the relevant part of the Localism Act 2011 comes into force.

Mandatory Pre-Application Consultation with the public exists in Scotland for national and major developments.  It does not apply to applications to vary a condition attached to an existing planning permission.

Extending life of a planning permission:

There is no mechanism to apply to an English planning authority to extend the lifetime of a planning permission. However, there is a streamlined renewal process for planning permissions granted on or before 1 October 2010.

An application can be made to a Scottish planning authority to extend the lifetime of a planning permission.

Appeal:

All planning appeals for English property are to the Secretary of State, irrespective of the size of the development.

For Scottish property, certain local developments have appeal rights to a Local Review Body only, consisting of local councillors, rather than to the Scottish Ministers.

Judicial Review Time Limit:

Currently, the period for England is 6 weeks.

In Scotland:-

  • for a decision of the local planning authority, the time limit is 3 months or such longer period as is equitable in the circumstances; and
  • there is a 6 week time limit for a statutory appeal against a decision by the Scottish Ministers or reporter.

Major infrastructure projects:

There are a number of different statutory consents that are required for a major infrastructure project in England – not just planning permission.  For example, a project may also need compulsory purchase powers for land assembly or road orders to stop up roads.  All necessary consents for NSIPs can now be obtained by means of applying for a Development Consent Order (DCO) - replacing the need to apply for a myriad of  statutory consents.

In Scotland, the necessary statutory  consents for any major infrastructure project are usually applied for and obtained separately.  However, in certain instances a Transport and Works Order or the Private/Hybrid Bill process in the Scottish Parliament could be used – a process used for the Edinburgh Tram Project, heavy railways and the Forth Crossing.

Discharge of planning obligations:

Planning obligations in England can be discharged by voluntary agreement between an applicant and planning authority at any time.  However, a formal application to discharge or vary an obligation can only be made, to the planning authority, after five years from entering into it. There are also appeal rights to the Secretary of State against any refusal or failure to determine such application.

Planning obligations in Scotland can only be discharged or varied by formal application to the planning authority.  Unlike the case in England, an application can be made at any time.   There are also appeal rights to the Scottish Ministers against any refusal or failure to determine such application.

Community Infrastructure Levy

Local Planning Authorities in England now have the legal right to charge a Community Infrastructure Levy ("CIL") on all new developments. The CIL is calculated on a price per square foot basis for each new development. No CIL applies in Scotland.

Each local authority in England can choose whether to charge the CIL, whether it will apply to all developments or only to certain types of development and the amount of the CIL.

To date, only a limited number of local authorities have chosen to impose the levy, but this number is set to rise - as in April 2014 the CIL replaced Section 106 agreements as the only mechanism by which infrastructure projects (including open space, education and highways improvements) in England can be delivered.


Section 75 Agreement payments

Although no CIL has been set up for Scotland, planning authorities can still impose obligations on developers to provide funding for (or themselves to deliver) infrastructure, community facilities and the like, via the Section 75 mechanism.

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