Circular 4/1997
INTRODUCTION
1. This Circular updates and consolidates the advice given in SDDCircular No29/1988. Its aim is to bring together all of the Directions relating to notification of planning applications in one document. It explains the provisions of the Town and Country Planning (Notification of Applications) (Scotland) Direction 1996 (AnnexA to this Circular), the Town and Country Planning (Consultation on Retail Applications) (Scotland) Direction 1996 (AnnexB) and the Town and Country Planning (Development Contrary to Development Plans) (Scotland) Direction 1996 (AnnexC). The new Notification of Applications Direction at AnnexA consolidates recent changes to the corresponding earlier Direction and includes some further amendments. AnnexB is simply a copy of the Consultation on Retail Applications Direction issued on 29April 1996 under cover of SODDCircular16/1996 to accompany NPPG8 "Retailing". AnnexC is a copy of the Development Contrary to Development Plans Direction issued on 9April 1996 under cover of SODDCircular10/1996.
NOTIFICATION OF APPLICATIONS DIRECTION
Amendments
2. The new Notification of Applications Direction (AnnexA) incorporates amendments made to the 1988 Direction in 1994 in respect of applications involving agricultural land, coastal superquarries and wind generators and in 1996 in respect of flooding and retail development. It incorporates requirements to protect important nature conservation sites and to notify developments affecting SSSIs as set out in SOEnD Circular13/1991 and European Sites as required by SOEnDCircular6/1995. It also incorporates the requirements introduced by the Town and Country Planning (Notification of Applications) (Scotland) Direction 1995, in respect of developments in which the planning authority has an interest. In addition, it incorporates the following changes which are new:
2.1 Development in the vicinity of hazardous installations or sites- Following the introduction of the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 (SINo1993/323), Article15(1)(f) of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 (SINo1992/224) (the GDPO) was amended by the Town and Country Planning (General Development Procedure) (Scotland) Amendment Order 1993 (SINo1993/1039) to alter the circumstances in which the Health and Safety Executive (HSE) should be consulted about development which constitutes a hazard. (This provision was subsequently reworded by the Town and Country Planning (General Development Procedure) (Scotland) Amendment (No. 2) Order 1994 (SINo1994/3293) without making any substantive changes). This provision requires planning authorities to consult HSE about certain development in the vicinity of a hazardous installation or site. Consequential changes have now been made to paragraph9 of the Schedule to the Direction. The new paragraph9 simply requires the Secretary of State to be notified of any application where the Health and Safety Executive has been consulted under Article15(1)(f) of the GDPO and has either advised against granting permission or recommended conditions but the planning authority intend to grant planning permission against such advice or recommendation. Further information is given in AnnexB of SOEnDCircularNo5/1993, "Planning Controls for Hazardous Substances";
2.2 Development affecting Motorway Service Areas- The Town and Country Planning (General Development Procedure) (Scotland) Amendment Order 1997 (SI No. 749/1997) introduces new sub-paragraphs(iiA) to (iiC) into Article15(1)(j) of the GDPO to require planning authorities to consult the Secretary of State about development proposals relating to Motorway Service Areas. SODD Circular5/1997 explains the provisions of the Amendment Order. Paragraph7 of the Schedule to the Notification of Applications Direction is amended to require planning authorities to notify the Secretary of State of any planning application where they propose to grant planning permission for:-
a. any development proposal to create a new Motorway Service Area or any development within the boundary of an existing Motorway Service Area;
b. any development proposal which includes services such as refreshments, fuel or parking and is wholly or partly within 400metres of the boundary of a motorway; or
c. any development for the purpose of providing fuel and refreshments which comprises an area exceeding 2hectares within one kilometre of a motorway junction;
where the Secretary of State has advised against granting planning permission or has recommended conditions which the planning authority do not propose to attach;
2.3 Development affecting a scheduled monument or CategoryA listed building- A new provision is introduced at paragraph13 of the Schedule to the Direction requiring the Secretary of State to be notified of any application where the Secretary of State has been consulted under Article15(1)(j)(v) or(vi) of the GDPO about development affecting a scheduled monument or a CategoryA Listed Building and has either advised against granting permission or recommended conditions but the planning authority intend to grant planning permission against such advice or recommendation;
2.4 New town development corporations- The planning functions of the new town development corporations reverted to the planning authorities on the winding-up of the development corporations. Paragraph15 of the Schedule to the Direction requires the Secretary of State to be notified about applications which the planning authority intend to approve contrary to an approval under Section6(1) of the New Towns (Scotland) Act 1968, during a period of 3years following the revocation of the Special Development Order. This means that, in the case of East Kilbride, relevant applications must be notified until 31March 1998 and applications in respect of Cumbernauld, Livingston and Irvine should be notified until 31March 1999. In the case of Glenrothes, for which there was no Special Development Order, relevant applications must be notified to the Secretary of State until 31March 1998.
Procedures for Notification of Applications
3. Apart from the changes described in paragraph2 above, the new Direction also includes changes to take account of the reorganisation of local government. Various statutory and other references are also updated. However, the procedures relating to notification of applications are otherwise unchanged. Where the Direction requires the planning authority to send details of an application to the Secretary of State, copies of the application and relevant documents plus any necessary explanatory notes will normally be acceptable. All papers should be addressed to The Scottish Office Development Department, Planning Division, Victoria Quay, Edinburgh, EH66QQ. The Secretary of State will notify the planning authority of the date on which he receives the information and the planning authority may not grant planning permission before the expiry of 28days beginning with that date. The 28day period will not start until the Secretary of State has received all the information prescribed in the Direction.
4. The Secretary of State should usually be able to tell the planning authority within 28days whether he proposes to take any action. Should the Secretary of State require to extend his consideration of an application beyond the period of 28days, he will issue a direction under Article17 of the GDPO restricting the granting of planning permission. Should he decide to call-in the application, he will, before the end of the 28day period (or such longer period as has been stipulated), give a direction under Section32 of the Town and Country Planning (Scotland) Act 1972 ("the 1972 Act") calling-in the application. If the 28days have expired and the planning authority have received no such directions from the Secretary of State they may proceed to determine the application.
5. Development Contrary to Approved Structure and Local Plans- Paragraph8 of the Schedule to the Direction requires the Secretary of State to be notified of applications which mark a significant departure from an approved structure plan or a local plan approved by the Secretary of State. (Note: significant departures from adopted local plans should not be notified). It will be for the planning authority to judge in each case whether an application which conflicts with a development plan marks a significant departure, but in general such an application should only be notified if it is for development on a substantial scale or if it is likely to prejudice the implementation of the strategic objectives of that plan. In this context it should be noted that, unless other criteria apply, egconflict with SSSI, planning applications for fewer than 10houses need not be notified to the Secretary of State.
6. It should also be noted that paragraph2 of the Town and Country Planning (Development Contrary to Development Plans) (Scotland) Direction 1996 provides that the Direction "does not apply to an application for planning permission to which an Article17 direction applies, during the restriction period referred to in such direction". This means that a planning authority cannot grant permission for a departure under the powers contained in the Development Contrary to Development Plans Direction during the period in which paragraph2 of the Notification Direction (which is "an Article17 direction") prevents an authority from granting planning permission following notification of an application to the Secretary of State. This period allows him to decide what action, if any, he is going to take on an application notified to him.
7. Development in which the planning authority has an interest- The new Notification of Applications Direction incorporates the requirements introduced by the Town and Country Planning (Notification of Applications) (Scotland) Direction 1995 (issued with SODDCircular26/1995) in respect of developments in which a planning authority has an interest (following local government re-organisation all local authorities are now planning authorities). Proposals by planning authorities to carry out development on land situated within their area are not treated like normal planning applications. Paragraphs13 to18 below deal with procedures for development by planning authorities.
8. The Secretary of State is concerned that where planning authorities have an interest, albeit indirect, in a proposed development, the planning procedure is seen to be operating openly and fairly. Paragraph16 of the Schedule to the Direction therefore requires a planning authority to notify him of any planning application where they propose to grant planning permission for any development:-
a. in respect of which they have a financial interest; or
b. which is to be located on land owned by them or in respect of which they may have an interest;
where the proposed development does not accord with the adopted or approved Local Plan for the Area or has been the subject of a substantial body of objections and the Town and Country Planning (Development by Planning Authorities) (Scotland) Regulations 1981 do not apply.
9. Flooding- Paragraph14 of the Schedule to the Direction requires the Secretary of State to be notified of any application where, having consulted the Scottish Environment Protection Agency (SEPA) under Article15(1)(h)(i) of the GDPO (as substituted by Article2 of SINo1996/467), a planning authority intend to approve a planning application contrary to advice from SEPA that there is a risk of flooding.
Further Guidance
10. Further guidance relating to development in certain categories in the Schedule to the Direction is provided in the following publications:-
a. Category1: agricultural land- SDDCircular18/1987 as amended by SOEnDCircular25/1994;
b. Category2: large industrial, petrochemical and business developments- NPPG2: Business and Industry;
c. Category3: development affecting large single user high amenity sites- NPPG2;
d. Category4: development affecting large industrial and business sites, or large petrochemicals sites- NPPG2;
e. Category5: oil-related development - SDDCircular12/1986;
f. Category6: major retail development- NPPG8: Retailing;
g. Category7: development affecting trunk roads and special roads- AnnexD to this Circular and SODDCircular5/1997;
h. Category8: development contrary to approved structure and local plans- NPPG1: The Planning System and Planning Advice Note (PAN)41: Development Plan Departures (1997 revision);
i. Category9: development in the vicinity of major hazards- SOEnDCircular5/1993;
j. Category10: nature conservation- SOEnDCircular13/1991 and SOEnD Circular6/1995;
k. Category11: coastal quarries - NPPG4: Land for Mineral Working;
l. Category12: wind generators- NPPG6: Renewable Energy and PAN45: Renewable Energy Technologies.
m. Category 14: flooding- SODD Circular4/1996 and NPPG7: Planning and Flooding.
CONSULTATION ON RETAIL APPLICATIONS DIRECTION
11. The Town and Country Planning (Consultation on Retail Applications) Direction 1996 (copy at AnnexB), which was issued with SODDCircular16/1996, revoked the Town and Country Planning (Consultation on Retail Applications) (Scotland) Direction 1988, and requires planning authorities to consult such local authorities as are responsible for areas within which persons expected to visit a retail development are resident.
DEVELOPMENT CONTRARY TO DEVELOPMENT PLANS DIRECTION
12. The Town and Country Planning (Development Contrary to Development Plans) (Scotland) Direction 1996 replaced the 1994 Direction on 1April 1996 (see SODDCircularNo10/1996). A copy of the Direction is at AnnexC to this Circular. It authorises planning authorities to grant planning permission for development which does not accord with the provisions of the development plan, as defined in Section275 of the 1972 Act, subject to certain requirements listed in the Direction. Detailed advice on the procedures contained in the direction is set out in the revised version of Planning Advice Note (PAN)41 "Development Plan Departures" which was issued on 14 March 1997. PAN41 sets out good practice in dealing with development plan departures under a number of headings. Key advice is also offered under each heading.
DEVELOPMENT BY PLANNING AUTHORITIES
13. Under the Town and Country Planning (Development by Planning Authorities) (Scotland) Regulations 1981, (SI1981No829 as amended by SI1984No238) planning authorities are obliged to submit to the Secretary of State Notices of Intention to Develop (NIDs) where, interalia, they have received objections to their advertised proposals. This is to enable the Secretary of State to consider whether he wishes to call for a formal application from the authority. These regulations do not make provision for procedure analogous to applications for outline planning permission and, accordingly, authorities are reminded that NIDs should not be advertised as outline proposals and should contain sufficient detail to allow the Secretary of State to come to a conclusion about the development as a whole. Therefore, NIDs should usually as a minimum provide details of location, site layout and elevations where appropriate.
14. When considering NIDs which are submitted to him under Regulation6 of the Development by Planning Authorities Regulations 1981 the Secretary of State will, in deciding whether to call for a formal application from a planning authority, continue to consider each case individually. He will make a presumption against calling for a formal application where the proposed development either:-
a. accords with the adopted or approved local plan for the area; or
b. has not attracted a significant body of objections.
15. The only situation in which these general presumptions will not apply is where the NID is linked to a Compulsory Purchase Order (CPO). The Secretary of State may call in such a NID, if the CPO is to be the subject of a public local inquiry, to enable the planning aspects of the proposal to be considered alongside the case for compulsory purchase.
16. When planning authorities submit NIDs which are in accordance with the terms of the adopted Local Plan for the area, they should draw this to the Secretary of State's attention and quote the terms of the policy or policies of the Plan with which their proposals comply.
17. Planning authorities are reminded that, to ensure speedy consideration of NIDs within the Department, it is important that they submit full documentation with the NID. Otherwise delays may occur whilst the further information is sought. The documents required are:-
a. the Notice of Intention to Develop form (duly signed and dated) as set out in the Town and Country Planning (Development by Planning Authorities) (Scotland) Regulations 1981;
b. details of the development including a location plan;
c. details of consultations and copies of any representations made;
d. a copy of the press advertisement;
e. copies of any objections made as a result of(d) above; and
f. the authority's comments on any objections or representations made.
18. The Secretary of State should normally be able to tell the planning authority within 28days whether he intends to take any action. If, however, the Secretary of State requires a longer period for his consideration he will advise the planning authority in writing that he is extending the period.
HABITATS AND BIRDS DIRECTIVES AND RAMSAR CONVENTION
19. The Conservation (Natural Habitats and Conservation) Regulations 1994 (SI1994No2716) (the Habitats Regulations) place a duty on the Secretary of State and Scottish Natural Heritage to exercise their conservation functions to secure compliance with the requirements of the Habitats and Birds Directives. The effect of Regulations48 and49 is that planning authorities are required to notify the Secretary of State if SNH advise that the development will have a significant effect on a Special Protection Area or a Special Area of Conservation. This requirement refers also to development which is outwith the site but, nevertheless, is likely to have a significant effect on the interests for which the site is designated, particularly European sites designated in accordance with the Habitats and Birds Directives. Detailed procedures are set out in SOEnDCircular6/1995 "Habitats and Birds Directive". As a matter of policy these procedures also apply to Ramsar sites designated in accordance with the Convention on Wetlands of National Importance.
NATIONAL SCENIC AREAS
20. The Town and Country Planning (Notification of Applications) (National Scenic Areas) (Scotland) Direction 1987, which was issued with SDDCircular9/1987, requires a planning authority to consult Scottish Natural Heritage (as the successor to the Countryside Commission for Scotland) about certain types of development which would affect a National Scenic Area. The Direction also requires planning authorities to notify the Secretary of State about planning applications which Scottish Natural Heritage have advised against granting or have recommended conditions which the planning authority do not propose to attach. This Direction remains in force.
CONSULTATION ON DEVELOPMENT AFFECTING TRUNK ROADS AND SPECIAL ROADS
21. Guidance about consultation with the Secretary of State, under Article15(1)(j)(i) and(ii) of the GDPO, on certain types of development proposals affecting trunk roads is contained in AnnexD. There is no change in this guidance apart from an updating of statutory references.
FURTHER COPIES AND ENQUIRIES
22. Enquiries about the content of this Circular should be addressed to MrStephenBruce (0131-2447065). Further copies and a list of current planning circulars may be obtained from The Scottish Office Development Department, Planning Division, Branch1, 2-H, Victoria Quay, Edinburgh, EH66QQ, (0131-2447066 or 7825).