Scotland planning news, November 2023
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Scottish Ministers handed down an appeal decision on 19 July which is significant for the immediate future of development management in Scotland. The application, in respect of a site in Mossend, was initially made to West Lothian Council on 7 March 2022, but was called in by Scottish ministers on 26 April 2023, who refused permission. The proposal in question was for around 250 homes on an 18.45 ha greenfield site, submitted for Miller Homes.
From the appeal decision, we can conclude:
- That policy 16 (f) of NPF4 (which considers new homes on land not allocated in an LDP) overrides land release policies in old-style LDPs adopted prior to NPF4.
- That ministers are prepared to give weight to the Minimum All-Tenure Housing Land Requirement (MATHLR) where it is considered to be the most up-to-date housing land position.
The wider issue concerns the correct interpretation of how development-plan policy should apply now that National Planning Framework 4 (NPF4) has been incorporated as part of the Scottish Development Plan. In determining the application, there was an incompatibility between the West Lothian Local Development Plan (WLLDP), adopted 2018, and NPF4, adopted February 2022. The Scottish Ministers found that the national policy should override policies in the WLLDP since NPF4 is itself the most recent national development plan[1]. This is in spite of legal opinions arguing that Policy 16 (f) of NPF4 should only apply once ‘new-style’ LDPs are adopted, with ‘old-style’ LDP release policies applying in the interim.
We understand that the developer has now appealed the Ministers’ decision to the Court of Session. However, Mossend nevertheless highlights that exactly how much of NPF4 will override policies in old-style development plans is unclear. This means there is concern in Scotland around the certainty with which development can come forward. This point is considered by the reporter in paragraph 24 of the Mossend report, which states:
“It seems to me that if the straightforward reading of NPF4 (that its development-management policies take effect at the time of its publication) is not correct, then understanding which parts of NPF4 have taken effect and which not, would become a maze. There is simply nothing express in NPF4 to justify such a reading. If such an approach had been intended, it is hard to believe the document would not have gone about it more systematically, setting out expressly what policies would take effect immediately and what would only apply from such time as a “new-style” LDP is adopted.”
Lichfields’ Edinburgh team will continue to monitor how this decision is impacting other development management decisions in Scotland.
Appeal Decision at Land North of B792, Mossend, West Calder, West Lothian
Guidance for Scottish Planning Authorities on new-style Local Development Plans in Scotland was published on 24 May. An ambition to create a “new system of local development planning” formed a large part of the Planning (Scotland) Act 2019 when it was passed, with a new onus on planning authorities to progress “place-based plans”, designed in the “long term public interest”. The 250-page document is complete with a suite of step-by-step guidance for plan-makers to help them navigate the system.
A swathe of policy papers and secondary legislation have followed the Act to begin the realisation of the government’s planning agenda, including provisions for the extension of permitted development rights and the new requirement for play sufficiency assessments (both summarised in this edition of the Scotland Planning News).
Transitional arrangements
Any authority that did not publish notice of their proposed plan before 12 February 2023 is required to prepare a plan under the new system confirmed by statutory instruments [1] [2] that came into force on 19 May 2023. Every planning authority in Scotland should have a new style LDP in place within “around 5 years” of the Regulations coming into force (i.e. by May 2028).
It is possible to have more than one LDP for one area, so long as they serve different purposes. From 1 April 2025, no further statutory supplementary guidance will be allowed to come forward. This means the necessary key provisions that would have previously been covered in supplementary guidance need to be provided for in the LDP itself.
It is also possible for two or more planning authorities to prepare joint LDPs that apply to part or all of their areas. Strategic Development Plans (SDPs) and associated supplementary guidance ceased to have effect on 13 February 2023, and as such are no longer part of the development plan. LDPs within SDP areas are no longer required to be consistent with the SDP. Now SDPs are to be replaced with Regional Spatial Strategies, which are required under The Planning (Scotland) Act 2019. Regional Spatial Strategies are prepared by a planning authority, or authorities acting jointly, and are long-term spatial strategies for the strategic development of an area. However, they are not part of the statutory development plan.[3]
Source: LDP Guidance, Scottish Government
Preparation for the new LDPs
Legal changes to procedure
In preparing the new LDPs, there are new procedures that will have to be dealt with by LPAs, largely because of the Planning (Scotland) Act 2019. These new procedures and responsibilities are:
- A statutory duty to include children and young people in any consultation process as part of a wider policy aim to embed Childrens’ rights into Scots Law.
- A requirement to include Play Sufficiency Assessments in evidence reports (see below), as stipulated by the Town and Country Planning (Play Sufficiency Assessment) (Scotland) Regulations 2023.
- A process which applies following examination under section 19ZA (regulation 4 of the LDP Commencement Provisions) where if the appointed person is not satisfied that the amount of land allocated for housing is sufficient to meet the targets they can require that a new local development plan be prepared.
- A duty afforded to authorities to invite communities to prepare Local Place Plans before preparing an LDP. Local Place Plans are community-led plans that set out proposals for the development and use of land. It is also the role of the Authority to provide and publish relevant guidance to communities so they can prepare these effectively.
The amendments to the Town and Country Planning (Scotland) Act 1997 also includes a requirement, under section 20B(2), that a planning authority must prepare and publish a Development Plan Scheme (DPS) at least annually, or when directed to do so by the Scottish Ministers. A DPS is defined in the amended 1997 Act as being “a document setting out the authority's programme for preparing and reviewing their LDP” (section 20B (3)).
The Evidence Report
After a DPS has been created, planning authorities now need to create a new-style evidence report. While the Regulations do not include minimum requirements for the evidence to be presented within the new Evidence Reports, a significant new part of the new LDP guidance is centred on these. They are designed to front-load the plan-making process through early engagement and problem identification. Before LDP drafting can begin, an evidence report must pass a “Gate Check”, conducted by a government-appointed examiner, before LDP preparation can begin in earnest.
The LDP itself
The onus on front-loading the LDP process through early engagement and consultation is important. The Scottish Government said in the draft version of LDP guidance that new style plans “should be prepared in a different way, look different and be used differently to before”[4]. While this exact phrasing did not make it into the new guidance, there remains an expectation that the new-style plans have less written text and be more “visual”. They should “include a clear spatial strategy reflected more in a collection of maps, development briefs and masterplans than in lengthy written text and policy”. A focus on presenting information in this way means that Evidence Reporting is crucial to LDPs. The document refers to resources by Architecture & Design Scotland[5] and Our Place[6] as best-practice guidance for the intended style and presentation of LDPs.
Another significant element in the content of LDPs is an expectation that it should show a Local Housing Land Requirement that exceeds the 10-year minimum set out in Annex E of NPF4. Nicola Woodward’s blog summarises this.
Lichfields continues to monitor how these new plans come forward and the lessons that are learnt along the way in order to best understand what the future of development management will look like in Scotland under NPF4.
[1] The Town and Country Planning (Development Planning) (Scotland) Regulations 2023
[2] The Planning (Scotland) Act 2019 (Commencement No. 12 and Saving and Transitional Provisions) Regulations 2023
[3] NPF4 Annex A - How to use this document
[4] Draft Local Development Plan Guidance for Consultation
[5] Architecture and Design Scotland - Designing for a Changing Climate
[6] Our Place - Planning Overview
Scottish Government, Local Development Planning Guidance
Local planning authorities are now required to prepare a Play Sufficiency Assessment (PSA) to support their Local Development Plans in Scotland. The Town and Country Planning (Play Sufficiency Assessment) (Scotland) Regulations 2023, which came into force on 19 May 2023, form the legislative underpinnings of Policy 21 of the new Scottish National Planning Framework 4 (NPF4). The policy encourages local authorities to support planning applications for the development of play spaces, parks, and sports facilities. The intended outcomes of this policy are:
- “That the natural and built environments are improved, with more equitable access to opportunities for play and recreation.
- That physical and mental health are improved through provision of, and access to, outdoor recreation, play and sport facilities.”
The new regulations relate only to the “Play” element of this policy. The new legislation requires PSAs assessment as part of the evidence report prepared under section 16B of the Town and Country Planning (Scotland) Act 1997, before the preparation of a local development plan. The aim of the PSA is to understand the amount and quality of current play provision, the perceived demand for it now and in the future, and the most appropriate way to meet that demand.
The PSA must be a written report, published by electronic means, that shows:
- by means of a map, the location of formal play spaces within its area.
- statements as regards the overall quality, quantity, and accessibility, of formal play spaces and informal play spaces
- within the whole local planning authority; and
- with respect to each “locality” (as defined in section 9(2) of the Community Empowerment (Scotland) act) within that planning authority’s area.
The Regulations also state planning authorities must consult the public as part of the assessment. There is explicit direction that that this should include children, parents and carers, community councils within the planning authority’s area (established under Part IV of the Local Government (Scotland) Act 1973), and other community bodies or persons whom the planning authority consider should be consulted.
PSAs sit alongside other requirements within Policy 21 of NPF4 to support applications for temporary or informal play space on unused or underused land, and to allow proposals that include well-designed, good quality provision for play proportionate to the scale and nature of the development and existing provision in the area. As well as this, the Scottish Government says PSAs are a way in which children’s rights are being brought into Scots Law, which was part of the aim of the Planning (Scotland) Act 2019.
NPF4
Scottish Government, Supporting Outdoor Play
The Scottish Government has made - and will make - legislation to encourage the delivery of green development through initiatives such as Active Travel networks, Green Freeports, and domestic and non-domestic renewables equipment.
The amendments to Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (the Order) are being undertaken in three phases. The Government says the changes are designed to help address the climate emergency as well as aid with high street regeneration and improving public health.
The first phase, which came into force on 1 April 2o21, amended the Order to introduce new permitted development rights (PDRs) for digital connectivity, agricultural developments, peatland restoration and development in relation to active travel and aquaculture.
The second phase, which came into force on 31st March 2023, laid new legislation to creates a new use class 1A which groups the uses previously in use class 1 (shops) and 2 (financial, professional, and other services) into one single class for high street regeneration in Scotland’s towns and cities. Lichfields’ Guide to the Use Classes Order in Scotland was updated shortly after to reflect these changes and continue providing a guide to all the use classes in Scotland and how it is possible to change from one use to another.
As well as this, the second phase extended permitted development rights for electric vehicle charging infrastructure and “operational port development”, also known as Green Freeports. The PDRs afforded to freeports are designed to ensure parity with those coming forward in England.
Phase three, which was released for consultation on 31 May 2023, will focus primarily on new and extended PDRs for domestic and non-domestic renewable energy equipment. The proposals are designed to streamline the planning process for various zero and low carbon technologies, such as solar panels and heat pumps. The proposed changes are intended to support households and businesses who are looking to reduce bills and emissions by adapting their properties. Other proposals in the Phase 3 consultation relate to electricity network infrastructure, reverse vending machines, certain domestic flues, and the temporary use of land.
Lichfields continues to monitor how these changes to permitted development play out and study the potential benefits that these can have for our clients.
Scottish Green Freeports: set up phase guidance
The Town and Country Planning (General Permitted Development and Use Classes) (Scotland) Miscellaneous Amendment Order 2023
Lichfields, Guide to Use Classes Order in Scotland
Scottish Government, Proposed Programme for Reviewing and Extending Permitted Development Rights in Scotland
The planning minister, Joe Fitzpatrick, has launched a consultation on “Local Living and 20 Minute Neighbourhoods” at the Scottish Young Planners Network annual conference in Stirling on 27 April 2023. Local Living and 20-minute neighbourhoods are included within the policy framework of NPF4, adopted by Scottish Ministers on 13 February, and this guidance is designed to support its implementation. The consultation ran until 20 July.
The draft guidance is expected to be of relevance to local planning authorities in the preparation of Local Development Plans, as well as in their decision-making.
The concept of local living and 20-minute neighbourhoods is intended to support places where people can meet the majority of their daily needs within a reasonable distance of their home, preferably through active travel modes or by public transport. Much of the 20-minute neighbourhood guidance serves to expand on the principles set out in to the Scottish Government’s Place Standard tool , a resource that NPF4 and its associated guidance recommends be used for placemaking.
The “Local Living and 20 Minute Neighbourhoods” draft guidance sets out:
- The purported benefits and context for local living and 20-minute neighbourhoods.
- What the Government would like local living to look like, including the key considerations of local living and 20-minute neighbourhoods.
- Ways to support the delivery of local living and 20-minute neighbourhoods, including case studies.
In terms of delivery, the guidance recommends three ways that the planning system should implement local living by engaging in the collation of both quantitative and qualitative information to inform place management. As well as more well-known practices such as community engagement and general consultation, spatial mapping, and digital resources such as GIS should be used to assess existing, previous and future land uses, transport connections and patterns of behaviour in relation to daily needs. Lichfields’ insight “20 Minute Neighbourhoods for Scotland” did this last year. We will continue to use our in-house GIS expertise to be at the forefront of thought leadership on 20-minute neighbourhoods. [1]
[1] See a summary of this research in the December 2022 edition of the Scotland Planning News
Scotland's chief planner, Fiona Simpson, wrote to local planning authorities on 21 March notifying them of a new Direction[1] regarding oil and gas planning applications. The Direction includes requirements meaning that where a planning authority receives an application for planning permission for conventional oil and gas development, it must within 7 days of the validation date in respect of the application send to the Scottish Ministers a copy of: the planning application, accompanying plans and associated documentation (e.g. transport/noise assessments), together with the full address and post-code of the site to be developed; and a copy of any EIA report accompanying the application.
Authorities are also restricted from granting planning permission for conventional oil and gas development without first notifying the application to Scottish Ministers. The requirement applies to both new planning applications and any that are currently being considered. As well as the above, LPAs proposing to grant planning permission for oil and gas development must supply ministers with:
- their reasoning for proposing to grant planning permission,
- a copy of any appropriate assessment relating to the application, carried out under Part IV of the Conservation (Natural Habitats) Regulations 1994,
- copies of - and responses to – all observations submitted by consultees and all representations and petitions received, together with a list of the names and addresses of those who have submitted observations/made representations.
Finally, the Direction states that a planning authority must not grant planning permission for conventional oil and gas development before the expiry of a period of 28 days beginning with the date notified to them by the Scottish Ministers as the date of receipt by the Scottish Ministers of the information which the planning authority are required to give to the Scottish Ministers.
These new requirements represent some of the steps taken in planning policy to reach Scotland’s target date for net zero emissions of all greenhouse gases by 2045.
Conventional Oil and Gas Direction: Chief Planner letter
Scottish Government, Onshore conventional oil and gas: preferred policy position
[1] The Town and Country Planning (Notification of Applications) (Conventional Oil and Gas) (Scotland) Direction 2023
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