Publications - Commercial Litigation & Dispute Resolution - Scotland
13 January 2006
Ministers press for upgrade
By Craig Connal
(Published Planning Journal)
Scottish planning reforms will need resources and a culture shift as well as updated laws to succeed, maintains David Dewar.
The Scottish planning community received a Christmas fillip with the publication of a long-awaited bill outlining reforms to the system north of the border.
In floating the legislation, the Scottish Executive is aiming to foster a quicker and more efficient, strategic and in-clusive style of planning.
Ministers claim that the bill represents the most fundamental reform of the Scottish system since it was created in 1948. Communities minister Malcolm Chisholm sees it as a 'once in a lifetime opportunity' for reform. 'Sustainable economic growth needs a modern planning system to speed up decisions, reflect local views and allow quicker decisions for businesses that want to invest in Scotland,' says Chisholm. 'These reforms will encourage engage-ment and openness, not confrontation and imposition. They will support investment in jobs, essential infrastructure such as housing, schools and hospitals and the regeneration of our communities.'
The main thrust of the bill follows the principles for reform set out in a white paper last summer (Planning, 1 July 2005, p1). These include ensuring speedier preparation and review of local plans and strengthening community in-volvement in planning while rejecting third party rights of appeal. They also aim to streamline development control, now restyled as 'development management', by splitting applications into national, major and local categories.
One significant addition to the white paper is the new duty for the planning system to promote sustainable devel-opment. Planning authorities 'must exercise the function with the objective of contributing to sustainable development', the bill proposes. The move will please environmental groups, although the green lobby is still seething over the lack of a third party right of appeal.
'For communities to have the confidence that the system will better meet our needs, they need not just rights of con-sultation but genuine rights of participation,' insists Friends of the Earth Scotland chief executive Duncan McLaren. 'Without even limited third party rights of appeal, they cannot enjoy that confidence.'
The bill also cements the position of Scotland's national planning framework (NPF). The supporting policy memo-randum argues that the first framework, published almost two years ago (Planning, 9 April 2004, p1), has been well received. The executive 'intends to build on its success by enhancing its role and status to make it a more powerful in-strument for securing delivery of national policies'.
An updated framework due to be published in 2008 will provide more of an emphasis on implementation than its predecessor, the executive promises.
Given its enhanced importance, the bill lays down a formal role for the Scottish parliament in helping to prepare the framework, including a 40-day 'period for parliamentary consideration'.
Ministers will have to take MSPs' views into account before finalising modifications. Legal experts agree that the proposals will make the framework more powerful and that it will be a key publication in setting out the executive's long-term development priorities. But some observers are unhappy about the amount of time allowed for parliamentary scrutiny.
Graham U'ren, director of the RTPI in Scotland, says it is important to get the balance right between a public ex-amination-style process and a system in which the NPF is probed by a parliamentary committee. 'We are proposing that parliament sets up an appraisal of the framework under an independent reporter or scrutineer, who would produce a report that would then inform the parliamentary debate,' he explains.
Development management applications will be split between national, major or local schemes. Under this hierar-chy, ministers would be able to assess nationally important schemes. For major projects, a processing agreement would be reached between the authority and developer. Councils would set out an agreed timetable for processing the case while the developer would pay a higher fee.
Despite publication of the bill, much of the detail of the reforms will need to be ironed out in secondary legislation, regulations and guidance.
Subject to such clarification, U'ren agrees that the bill is a major step forward. But he stresses that it needs to be ac-companied by a commitment from the executive to cultural change in planning. 'The culture change agenda is about changes in the profession and a change of public perception of planning. This requires political leadership,' he warns.
'The real test of the executive's approach may well be how it is going to effect the culture change which it accepts is required,' says Craig Connal QC, partner and head of planning at law firm McGrigors. 'Unless we can find real and practical steps to drive that change, there is a risk that the executive's worthy intentions will be difficult to achieve.'
Connal argues that Scottish planning needs to adopt a stance in which development is not seen as a bad thing, but something that adds to communities.
He is concerned that the bill's journey through parliament may not be straightforward, given that issues such as third party rights of appeal are likely to continue to surface from certain MSPs.
As to resources, a recent study commissioned by the executive highlighted the scale of the problem. Carried out by Ove Arup with Professor Philip Allmendinger, Geoff Peart Consulting and solicitors Anderson Strathern, the study found that while local authority net revenue expenditure increased by 40 per cent between 1996-97 and 2003-04, spend-ing on planning services fell from pounds 74.4 million to pounds 70 million.
'The planning service in Scotland has not been given the resources priority it has needed to operate effectively in recent years,' the report concludes.
Relieving the shortage is likely to be tackled by an increase in fees.
There is no Scottish equivalent of the planning delivery grant, with the executive instead running a training pro-gramme for council planners under its planning delivery budget.
Connal argues that the executive needs to focus its own resources if it wants a bigger role in planning. The bill's parliamentary passage will be watched closely by practitioners, as will any supporting regulations and secondary legis-lation that emerge over the coming months.
The Scottish Planning Bill can be viewed via http://www.PlanningResource.co.uk
SCOTTISH PLANNING: KEY AIMS FOR MODERNISATION
- Make planning fit for purpose by introducing a clearer sense of priority and allowing different types of application to be addressed.
- Ensure that the planning system is more efficient by establishing requirements for production of development plans that are at the heart of an efficient system providing certainty for users.
- Provide an inclusive system in which local people can be more involved in planning decisions.
- Ensure that those making policy promote development in the most sustainable locations.
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