News
Scotland planning news, April 2020
16 Apr 2020
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Headline news |
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Coronavirus (Scotland) Act 2020
The Scottish Government published its Coronavirus Bill on 31 March and it was passed the next day. The Coronavirus (Scotland) Act 2020 gained Royal Assent on 6 April and came into force on 7 April. The Scottish Government has also produced guidance on the Act.
The Act incorporates three main pillars, the first of which focuses on making changes to the justice system to facilitate the continuation of criminal proceedings, secondly provisions are in place to ensure that businesses and public services can continue to operate thus propping up the economy. Thirdly there is emphasis on changing the laws around evictions to provide a layer of protection to those renting their homes in the private and social sector.
Schedules 6 and 7 of the Act are particularly relevant to planning.
Schedule 6 outlines how council meetings should not include members of the public as long as the Coronavirus risk persists. Scottish LPAs may already meet and make decisions remotely and by virtue of the Act may now exclude the public from physical meetings on health grounds.
Schedule 7 ensures that where a planning permission or permission in principle is due to expire during the “emergency period” within the six months of the Act coming into force then the period for implementation will be extended to the end of the “extended period” of 12 months of the Act coming into force.
It also provides that if a planning permission in principle is bound by a time period for submitting an approval of matters application that is due to expire during the first six months of the Act, that time period will also be extended to the end of the “extended period”.
A permission would only lapse if the development has not commenced before the end of the 12-month period. These timescales can be amended by Scottish ministers if required.
Six months from the start of the emergency period on 7 April is 6 October 2020 and the 12 month extended period ends on 6 April 2021; although provisions actually expire on 30 September 2020, they can be extended by regulations approved via the negative procedure (no debate required).
The Act also requires Scottish Ministers to prepare a report every two months from 31 May in order to declare whether the measures in the Act are still necessary.
Coronavirus (Scotland) Act 2020Coronavirus (Scotland) Act 2020: guidance for stakeholders
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Quote of the month |
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Planning has a crucial part to play within and beyond the immediate emergency. A high performing planning system will have a critical role in supporting our future economic and societal recovery, and our future health and wellbeing. Those of us involved in planning, across sectors, must do what we can to keep plans and proposals moving through the system, throughout this period of uncertainty and in the months and years ahead. That might mean being prepared to adopt some new approaches; measuring risk and taking a pragmatic view of how we can best continue to plan and make the decisions vital to the recovery of our communities and businesses |
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Facilitating a functioning planning system during the Coronavirus pandemic
The Scottish Government has released its latest planning and building updates which address a number of issues included the Coronavirus outbreak and the impact on the planning system. The restrictions put in place to stem the outbreak will undoubtedly have an impact on the development management process. Consequently the Scottish Government is exploring options which will facilitate the continued functionality of the planning system to support Scotland’s broader economy. Given the ever evolving situation, new updates are set to be provided on a regular basis with more detail on how planning and development will be supported through the pandemic.
Regulations removing the requirement on a developer to make hard copies of Environmental Impact Assessments available at a physical location and removing the requirement for a public event to be held as part of pre-application consultation, come into force on 24 April 2020.
Planning Procedures and COVID-19: Chief Planner letter April 2020
On 3 April, the Chief Planner and Housing Minister issued a joint letter to Chief Planners regarding planning procedures during the COVID-19 pandemic.
Their top priority at the moment is to maintain the function of the planning system, ensuring that the process is facilitating as best as possible to given that planning has an integral part to play both now and beyond the emergency measures.
The importance of adjusting enforcement action so supermarkets can operate most effectively without fear of receiving enforcement action if they are in breach of their planning conditions has been highlighted.
The letter refers to the Chief Planner’s earlier letter regarding enforcement (see below) and notes:
“There may be other situations to come, not explicitly catered for within those letters where, in the current period, it will be equally important to take that reasonable and pragmatic view. Other examples might be where temporary developments or changes of use can contribute to the response to COVID-19, or where staged payments fall to be due under the terms of planning agreements in relation to development sites which have temporarily ceased construction work”.
The letter also notes that while the steps are temporary and the commitment to improve the planning system remains “the current situation may have highlighted procedures and methods of working that would benefit from new, digitally enabled, arrangements. We hope to learn some valuable lessons from current experiences as we take forward implementation of the Act”.
One prominent change that is emphasised to be temporary is the suspension of pre-application consultation exercises. However, the letter is clear that the Scottish Government “will expect prospective applicants to replace this requirement for a physical, face-to-face public event with an alternative, online version”.
The Government is in discussion with Heads of Planning to understand if the closure of Council offices means neighbour notification is not possible. The position with regard to the requirement to post site notices remains unclear.
“We are exploring the position relating to the requirement for site notices relating to certain applications, and will bring forward regulations to suspend that requirement if needed”.
With regard to decision making, remote decision making is already possible. The 3 April letter confirms “planning authorities already have extensive powers to delegate decisions […] Where authorities require to amend their schemes of delegation under the Planning Act, those will require approval by the Scottish Government; we will process those to approval very quickly”.
Chief Planner urges relaxation of enforcement activity
The Chief Planner, John McNairney, published two letters in March which encourage planning authorities to adapt to the current coronavirus outbreak given the pressures the virus is going to place on the economy and wider society.
In both letters he urged local authorities to remember that enforcement is discretionary.
In the 11 March letter local authorities are asked not to look to take enforcement action against breaches of condition controlling opening or delivery hours where it which would unnecessarily restrict the operation of food stores and other retailers of essential items while there are supply chain issues – while having regard to legal obligations.
According to the 18 March letter, planning authorities should not take enforcement action against public houses and restaurants who are providing a takeaway service on temporary basis.
Scottish Government, Chief Planner letters
Directorate of Planning and Environmental Appeals issues Covid-19 related appeals guidance
The Directorate of Planning and Environmental Appeals (DPEA) has issued detailed guidance on its approach to planning appeals.
Site visits are cancelled and DPEA will consider the appropriateness of alternatives for understanding the site location, such as photographs and virtual technology options on a case by case basis. A sist will be considered if a site visit is determined to be necessary.
For existing cases the Reporter will advise the way forward and in future the precise arrangements will depend on the scheme proposed. Regard will be had to ensuring that participants can travel safely if they need to travel to take part.
Pre-examination meetings, Hearings and Inquiries will not be held orally where parties are present; they will proceed by written representations, virtual meetings or a combination of both having regard to participants’ access to video conferencing and knowledge of using it and limitations if a significant number of people are due to participate. Essentially, if a video link proves impossible then proceedings will be delayed.
The guidance reminds that virtual presence is not essential at a Hearing and it is not essential at an Inquiry for local participation. It is noted “that there are potentially significantly greater practical and other challenges in so proceeding [with an inquiry] compared to pre examination meetings and Hearings”.
Housing starts and completions to September 2019
The Scottish Government has released new figures showing that more than 21,800 new build homes across all sectors were completed in the year to September 2019. There were also encouraging signs for the future as in the same period there was a 24% increase in the number of new build homes started, culminating in a total of 24,873.
The statistics also demonstrate that the number of affordable homes delivered has increased by 25% since 2016, with a total of 9,317 affordable homes delivered in the year to September 2019. New homes for social rent completed during the year were 16% higher than the previous year.
Scottish Government, More homes available
The Call for Ideas deadline has been extended from 31 March until 30 April due to the disruption the Coronavirus has caused to the NPF4 roadshow events. The extension will cover all aspects of the Call for Ideas including the housing technical paper and suggestions for national developments.
Related to this, the 3 April joint letter from the Chief Planner and Housing Minister letter (see above) says:
“We had previously expected to produce a draft of NPF4 for consultation in September 2020. However slippage in the programme is now inevitable […] it now looks likely that we will lay a draft in the Scottish Parliament and consult publicly during 2021”.
Scottish Government, National Planning Framework 4 – Extension to Call for Ideas deadline
The Scottish Government has begun to implement aspects of the Planning (Scotland) Act 2019. Regulations will bring into force Sections 17, 26 and 62 of Act on 18 May 2020.
Section 17 allows a planning authority to designate all or part of its area as a short-term let control area, where the use of a dwellinghouse for the purpose of providing short-term lets would then be deemed to involve a material change of use of the dwellinghouse.
It is intended that an upcoming consultation will inform what the related regulations will include, with the aim of introducing the regulations on short term let controls by the end of 2020.
Section 26 inserts Section 41B into the Town and Country Planning (Scotland) Act 1997, which introduces a requirement that planning applications on certain types of developments include proposals for toilet facilities that meet the terms set out in the Act, if they wish to gain approval.
The draft Town and Country Planning (Changing Places Toilet Facilities) (Scotland) Regulations 2020 propose amendments to the requirements in Section 41B.
The Town and Country Planning (Changing Places Toilet Facilities) (Scotland) Regulations 2020
The Planning (Scotland) Act 2019 (Commencement No. 4 and Transitional Provision) Regulations 2020
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The Lichfields perspective |
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Lichfields is pleased to see the provisions in the Coronavirus (Scotland) Bill 2020 that prevent planning permissions from lapsing during this difficult time, but we are most eager to see provisions to ensure that new planning applications could be made and could progress. Further regulations have been put in place removing the requirement for pre-applications consultation, with virtual pre-application consultations encouraged, but there is yet to be a mechanism to enable neighbour notifications for new applications made post lockdown. In addition, there are some applications that are stuck in limbo. These are applications that were advertised pre-lockdown where written representations were requested but because planning offices are currently un-manned cannot be progressed because any such representations are not available to officers. These matters now need attention and we very much hope that Heads of Planning Scotland and Scottish Government will be able to come up with a solution soon. |
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Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116