News

Scotland planning news, June 2020

01 Jun 2020
       

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Headline news

 
     

 

Coronavirus (Scotland) (No.2) Act 2020

The Coronavirus (Scotland) (No.2) Act was enacted on 26 May and came into force on 27 May; it will introduce a number of measures in response to the coronavirus pandemic.
Of particular interest to the development sector, provisions have been made that extend the duration of a listed building consent or a conservation area consent that might have otherwise lapsed over the next few months.
Section 16 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 is now amended, so that any consent due to lapse during the emergency period of 27 May to 6 October will now instead lapse on 6 April 2021, unless works are begun within that extended period.

Coronavirus (Scotland) (No.2) Act 2020

     

 

Quote of the month

 
     
     
     
 

Another practical issue that the bill provides for is building consent in conservation areas, by extending the duration of a listed building consent or a conservation area consent that would otherwise lapse during the emergency period because works authorised by the consent have not begun. […] Such building consents are not the first subject to spring to mind; nevertheless, they are of importance to those who intend to keep our heritage safe.

Kenneth Gibson (Cunninghame North) (SNP), during the Stage One debate on the Coronavirus (Scotland) (No.2) Bill, 13 May 2020
 
     
     

Authorities urged to offer flexibility over construction site opening hours and other conditions restricting business operations

A letter from the Chief Planner has stated that local planning authorities should be supportive of reasonable requests to change the working hours for construction sites, where these are restricted by way of conditions attached to planning permissions.
The letter states that in most circumstances it will be reasonable to extend working hours from 7am through to 9pm Mondays to Saturdays, and in some instances, depending on the nature of the works and local circumstances, longer operating hours may also be acceptable (up to 24 hours).
The letter goes on to say that in most cases temporary extensions of operating hours should be reached informally without the need for applicants to amend existing permissions, with authorities reminded that planning enforcement is discretionary.
Further to this, the letter also states that some businesses may need to adapt or adjust operations to help recover from the current situation. Local planning authorities are encouraged to support solutions that may aid this through temporarily relaxing certain planning controls. Whilst the letter does not provide an exhaustive list of all potential circumstances, examples given include allowing on-street seating for food and drink businesses, and enabling seasonable businesses such as holiday parks and camp sites to operate outside of the periods conditioned by a planning permission.

Coronavirus (COVID-19): planning procedures - Chief Planner letter May 2020

Impact of COVID-19 on planning in Scotland

As the third month of lockdown approaches, many Scottish authorities have managed to adapt to the circumstances, though some delays are still expected as authorities still struggle to undertake some tasks relating to the validation and determination of applications. Added flexibility over meeting publicity requirements (detailed below) should however help more authorities to process applications more easily, especially in more remote areas.
Whilst some authorities, including Highland and Edinburgh had previously extended powers of delegation to officers, many authorities have now adapted to remote ways of working allowing Committees to recommence. Heads of Planning Scotland have noted that approximately 33% of Planning Committees and 20% of Local Review Bodies are now utilising technology to allow for remote meetings and decision making, whilst many authorities are reviewing whether to adopt this at a future date. 
Edinburgh City Council has now re-instated its Development Management Sub-Committee, and the authority held its first meeting post-lockdown using video-conferencing technology on 20 May.
Whilst previous guidance for the construction sector published on 6 April said that all non-essential work should be postponed, on 21 May, First Minister Nicola Sturgeon, published the Scottish Government’s route map through and out of the crisis, which stated that the construction sector was ready to move to Phase 1 of its approach to re-opening of non-essential construction sites, for pre-start site prep to facilitate physical distancing and enhanced hygiene.

On 28 May the First Minister confirmed:

“From tomorrow (29 May), the construction sector is expected to be able to implement the first phase in its restart plan”.

In a letter to Chair of Construction Scotland Ken Gillespie, Minister for Local Government, Housing and Planning Kevin Stewart said, that depending on the evidence emerging from the initial phase and subject to statutory Health and Safety requirements being satisfied, the sector can begin Phase 2, beginning a “soft start” on sites with social distancing measures in place.
The 28 May First Minister statement also confirmed that the “move to ‘phase 2’ of the construction sector’s plan will follow consultation with government to ensure it is safe to do so in line with public health advice”.
Where starts on site have not been possible and planning permissions are at risk of lapsing, provisions in the Coronavirus (Scotland) Act 2020 that came into force last month have extended the time limits for planning permissions due to expire in the six month emergency period by a further 12 months. As noted above, the Coronavirus (Scotland) Act (No.2) 2020 makes similar provisions for listed building and conservation area consents.
The Scottish Government says there are no plans at present to alter the timescales for prior notification and approval cases, but it “will continue to monitor the situation”.
There have been further legislative amendments since to aid the development sector and help authorities and health service providers respond to the current situation, further details are provided in the updates below.

Scottish Government, Guidance for the construction sectorScottish Government, Scotland’s route map through and out of the crisis Scottish Government, Minister for Local Government and Planning’s letter to Chair of Construction ScotlandHeads of Planning, COVID-19 and the Planning System

Amendment regulations temporarily halt PAC requirements

On 24 April, the Town and Country Planning (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020 came into force. The Regulations amend the statutory requirements on public consultation, bringing a temporary halt to a number of pre-application requirements, deemed contrary to public health policy in light of the COVID 19 outbreak.
This effectively removes the requirement for holding a public event, and the accompanying need to publicise such an event in local newspapers.
This will apply to all cases where the proposal of application notice (PAN) has been served either before or during the emergency period, from the date these Regulations came into force.
The Scottish Government has issued guidance on these temporary arrangements.

The Town and Country Planning (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020Scottish Government, Coronavirus (COVID-19): planning guidance on pre-application consultations for public events

NPF4: Call for Ideas closes

On 30 April the Scottish Government’s call for ideas consultation on the NPF4 ended. The NPF4 will differ from previous iterations, as a number of changes brought through under the Planning (Scotland) Act 2019 will be introduced into national policy. The Scottish Government advised via Twitter that it had received more than 350 responses to the consultation.
A draft NPF4 was previously scheduled to be published later this year, though this has been postponed until autumn 2021, with a final version being adopted in spring/summer 2022.

According to a 28 May letter to local planning authorities, the Government intends to publish an interim position statement in autumn 2020 that will:

  • update on evidence gathered in early 2020;
  • explain how NPF4 will align with other Scottish Government strategies;
  • set out an overview of the key challenges, opportunities and potential policy changes for NPF4; and
  • reflect on the impacts of COVID-19 and what NPF4 can do to help societal and economic recovery.
We set out our key suggestions to Scottish Government in this recent blog post, focusing specifically on the Housing Technical Discussion Paper.

Lichfields - Planning Matters

Amendments to the GPDO introduced PD for certain emergency development

On 24 April amendments to the General Permitted Development) (Scotland) Order 1992 came into force. The Order introduced Part 25C which has brought in a new permitted development right that will allow local authorities and certain health service bodies to carry out development for the purposes of:
  • preventing an emergency,
  • reducing, controlling or mitigating the effects of an emergency, or
  • taking other action in connection with an emergency.
The Order defines an emergency is an event or situation which threatens serious damage to human welfare in a place in the United Kingdom.

The Town and Country Planning (General Permitted Development) (Coronavirus) (Scotland) Amendment Order 2020

 

Court of Session decides perverse retail decision must be redetermined

A planning permission in principle (PPiP) for an extension to a retail park just under two miles from Cumbernauld town centre is to be redetermined by North Lanarkshire Council (NLC) after it was quashed by the Court of Session.
The PPiP included a condition limiting convenience floorspace to 1858sqm and comparison floorspace to 4599sq m.
Relevant to the decision was a 2004 outline planning permission and subsequent amendments:
“[3] By the time that the current application was submitted, 12,610 sqm of floorspace had been built, comprising 11 retail units of which 9,293 sqm had been let and 3,317 sqm of which was unlet. 18,085 sq m of the permitted retail floorspace had not been built. [4] The current application, therefore, would add 1858 sq m of convenience floorspace and 4599 sqm of comparison floorspace to the existing 12,610 sqm already built on the site”.
According to the judgement, NLC had determined that With regards to the proposed retail elements, this proposal is for significantly less comparison retail floor space that has consent at this location and the unrestricted class 1 retail is also less that has previously been consented for the site. As such there would be no requirement to reassess impacts on the vitality and viability of the town centre network.”
However, the judge held:
“The existence of extant permission does not show that the development of the retail role of Cumbernauld Town Centre will be protected and enhanced by the proposal. It was for significantly more comparison floorspace that the threshold set out in the Strategic Development Plan of 2,500 sq m beyond which assessment is required […] The selection of that threshold indicates that any proposal for more than 2,500 sqm is seen to be at least capable of having a detrimental impact and must therefore be assessed.”
The judge went on to state that the reliance on the fall-back position did not satisfy the Policy requirement for a retail assessment to be undertaken; whilst the fact that the unbuilt floorspace permitted by the extant permission was unlikely to be built, demonstrated the lack of usefulness of relying on the extant permission as an indication of potential impact.
Furthermore, the report to Committee had inaccurately “given the impression that some form of assessment of impact of the comparison floorspace already consented had been carried out in the past”.
Consequently, the Court found that the Report to Committee was materially flawed as it concluded that the application complied with the Development Plan on an erroneous basis, rendering the decision unlawful.
Referring to Mansell v Tonbridge and Malling Borough Council, the judge noted “Had the deficiencies in the method of assessment of impact which was used been identified, the decision might have been different”.
The NLC did not err in applying a fall-back position to the application. But was not used to show that the existing extant permissions would cause greater harm to Cumbernauld, but rather to predict the likely impact and effect of the application – notwithstanding the agreed position that the unbuilt element of the development would be not built, was relevant to applying the extant permissions in this way.
The judge accepted:
“the reasons advanced by the respondents for the grant of permission were perverse and inadequate. It is perverse to use as a justification for granting permission a method of assessment which is incapable of meeting the requirements of the relevant policies. To do so is also to give inadequate reasons”.
The decision was reduced.

Bridges Antonine LLP v North Lanarkshire Council

 

Scottish Government publishes Infrastructure Investment review

The Scottish Government has published its annual Progress Report setting out its performance against its 2015 Investment Plan. This covers public spending across all sectors, including transport, housing and regeneration.
Over the course of 2019-20, infrastructure projects totalling over £1.8 billion from the Scottish Government’s Project pipeline reached completion and were opened to the public.
The report states that spending for the year ahead may undergo significant adjustments in light of COVID-19, though it not yet clear what the impact of this will be. The Scottish Government will publish its next Infrastructure Investment Plan later this year, building on the findings of this report and taking into account the impact of COVID-19 on public finances.

Infrastructure Investment Plan 2015: Progress Report for 2019-20

     

 

The Lichfields perspective

 
     
     
     
 

It is with great relief that Scotland has reached a stage in living with COVID-19 whereby normality can begin to return, albeit slowly. We are delighted that, all being well, from Thursday 28th May the construction industry can start to implement its six stage return to work plan. These are difficult times; so this impending return coupled with local authorities finding a new way of working that enables planning applications to be dealt with, is real light at the end of a tragically dark tunnel.

Nicola Woodward, Senior Director
 
     
     

 

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