Planning matters

The Scottish Government has released a consultation entitled Investing in planning – resourcing Scotland’s planning system [1]. It seeks views on a range of options designed to improve the capacity of the Scottish planning system. The consultation contains within it a range of policy ideas, which are developed to varying degrees. In this blog, I focus primarily on elements of the consultation that are at ‘proposal’ stage, rather than those where views are being sought on initial concepts that will likely be the subject of a future consultation.

It is proposed that discretionary charging powers under The Town and Country Planning (Fees for Applications) (Scotland) Regulations 2022 are extended so that authorities can introduce a range of charges for services supporting the efficient processing of planning applications.

“Charging should focus on areas where the authority can add real value to ensure that applications are determined effectively and efficiently, provide high levels of customer service, and that the post consent process does not delay the commencement of development.”

Whilst not proposed explicitly, the consultation is open to the idea that a refund may be possible when a discretionary fee is paid, and that service is not provided.

The Scottish Government is also consulting on the legislation to support the introduction of Masterplan Consent Areas (MCAs)[3]. The Investing in Planning consultation considers the fees for MCAs.

The consultation recognises that the costs of establishing a MCA will vary significantly:

One key element of the consultation is that it proposes a potential reclassification of onshore energy generation applications. It posits raising the threshold for applications for onshore energy generation projects to be referred to the Energy Consents Unit (Scottish Ministers) under s.36 of the Electricity Act 1989. At present, it is the role of Scottish Ministers to decide applications to build, operate or modify onshore electricity generating stations with a capacity of more than 50 Megawatts. However, the consultation acknowledges that development in technology “has shifted the balance of decision making with Scottish Ministers now determining a greater number/proportion of wind farm applications since the Electricity Act came into force in 1989.”

Increasing the threshold would mean more applications could be determined by local planning authorities, allowing them to capture more of the application fee [4], albeit with an increased workload to match.

Having more energy projects be determined locally will mean more planning permissions (granted by LPAs) and fewer energy consents with deemed planning permission (granted by Scottish Ministers). For those proposals no longer being captured by the s.36 threshold, application determination times would be expected to be reduced and there would be a right to appeal to the Department of Planning and Environmental Appeals. However, the automatic Public Local Inquiry - which an LPA objection to an energy consent triggers - would be lost for projects below an increased threshold.

The consultation proposes introducing new fees for specific services, such as submitting applications online, introducing a fee category for hydrogen projects, increased fees for prior notification and approval categories, and a “consistent approach to fees for shellfish farming.”

The consultation proposes that a “proportionate approach” be introduced to charge for appeals, based on a percentage of the application fee. This is in response to significant workload and cost of determining appeals by both Planning and Environmental Appeals Division and Local Review bodies. The consultation asks for views on whether the appeal fee, if brought in, should be set at 10, 20, 30, or 40 per cent as shown in Figure 4 of the consultation document, copied below [5].

As well as seeking views on the potentials to increase financial resource within local planning authorities, the consultation takes the opportunity solicit views on work that the Scottish Government is doing from a managerial perspective. It seeks views on establishing a working group to improve proportionality in submission requirements between different local authorities, the use of processing agreements, standardisation of the s75 process, and recruitment drivers, and the formulation of a digital planning hub.

This consultation is a useful demonstration of the direction of the Scottish Government in increasing the capacity of the planning system, increasing its performance, and responding to changing demands on resource over time.

The consultation closes on 31^st May 2024.