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'Fresh ideas', but no third party right of appeal, in independent Scottish planning review


Streamlining the Scottish planning framework and "challenging" new powers for local communities to put forward their own 'locality plans' are among 48 recommendations for reform of the planning system, put forward by an independent panel of experts.

However planning law expert Gary McGovern of Pinsent Masons, the law firm behind Out-Law.com, said that developers in particular would "welcome" the fact that the report's authors had ruled out the introduction of a 'third-party right of appeal' following the eight-month review process, which was commissioned by the Scottish Government.

"Most countries' planning systems do not have a third-party right of appeal and the panel has, rightly in my view, concluded that introducing one would be contrary to the aims of this review," he said.

"Perhaps to offset that decision, as with the 2006 reform package which similarly ruled out any third party right of appeal, there is much emphasis on local 'ownership' of and engagement in plan-making and decision-taking. In this vein, there are common sense proposals to diversify and enhance local participation, for example by building 'place planning' into the school curriculum, better use of IT and social media, as well as an enhanced role for community councils at the plan preparation stage," he said.

McGovern said that although some "old chestnuts, for example the use of combined consents" featured among the 48 recommendations of the report (60-page / 1.4MB PDF), it also contained many "fresh ideas with potential". These included a proposal that regional housing targets be set nationally, as part of the National Planning Framework, streamlining and minimising the use of 'section 75' planning obligations on developers and the creation of a new 'National Infrastructure Agency', with "as yet unspecified statutory powers", he said.

The experts also recommended that communities be given the power to bring forward their own 'locality plans', with statutory status, as part of the local development plan.

"This is a laudable, but challenging, recommendation," McGovern said. "As the panel acknowledges, the experience of 'neighbourhood planning' in England and Wales has been mixed at best - such plans can reflect a 'preservationist' rather than an 'enabling' agenda. This aspect requires very careful consideration and detailed consultation."

"There is a lot in this report for the Scottish Government to digest. It has already committed itself to a new Planning Act and modernisation of compulsory purchase order legislation but, with the summer holidays fast approaching, it seems likely to be later in the year before we see a considered response and get a better sense of next steps and timescales," he said.

The review panel was appointed in September 2015 to conduct a "root and branch review" of the Scottish planning system, with an emphasis on sustainable development. Chaired by Crawford Beveridge alongside Petra Biberbach of Planning Aid Scotland and John Hamilton of the Scottish Property Federation, the panel split its report into six focus areas: development planning; housing delivery; development management; leadership; resourcing and skills; and community engagement.

Although concluding that Scotland's planning system was "not broken", the panel said that the system required "a strong commitment to change existing practices and culture, and to re-focus the profession's improvement agenda" if it was to fulfil its potential. Its recommendations were a mixture of small-scale improvements to existing processes, as well as "game changing" proposals which, in the view of the panel, would require legislative change.

The report recommended replacing existing regional-level strategic development plans with a single, enhanced National Planning Framework, which should be "more fully integrated with wider government policies and strategies". The role of the Scottish Planning Policy (SPP) should also be expanded, to "avoid the need for policy to be repeated in development plans", according to the report.

Local development plans should move to a 10-year cycle, but with more flexibility for reviewing and updating them within that 10-year period, according to the report. The panel also recommended "new and innovative delivery mechanisms" for housing as a national priority, and better coordination and collaboration between local authorities and providers on infrastructure.

"The panel was tasked with seeking out 'game-changing' ideas and there are several suggestions with potential," said planning law expert Gary McGovern. "Amongst these I would include the expansion of Simplified Planning Zones to allow their use on a much wider scale, and the proposal that allocated sites be afforded Planning Permission in Principle, or benefit from exemptions from pre-application consultation requirements and fast-tracked appeals. As ever, the devil will be in the detail - proposals in England to introduce 'outline planning' for housing on brownfield land have run into some practical challenges – but both merit further consideration."

"In relation to infrastructure delivery, the proposal for a national infrastructure agency with statutory powers is very interesting and also has obvious merit, not least as a way of bringing together disparate key agencies to provide a more joined up approach, but may also help to depoliticise this aspect. I would like to see this idea taken forward," he said.

However, McGovern said that developers would have concerns about the panel's proposals to "hike up planning fees substantially", without any accompanying measures to ensure that the proceeds of the increased fees went directly to planning departments, he said. These proposals "should be the subject of further consultation" before being taken forward by the Scottish Government, he said.

"In a world where planning departments must function with fewer resources, there is a strong case to do less and focus on interventions which add value so as to minimise the need for endless fee increases," he said. "In that context, while less eye-catching, the proposal to substantially expand permitted development rights to de-clutter the system is necessary."

"Interestingly, the panel suggest a bottom up approach whereby the Heads of Planning Scotland would establish a working group to define the scope and options as a precursor to a Scottish Government consultation," he said.

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