Power to decline to determine repeat applications
Local Authorities
Aberdeen City Council: This would be a welcome reform as frequently concerns are expressed about applicants being able to submit repeated applications to wear down opposition.
Dundee City Council: This measure will go some way to meeting the concerns of local communities who feel that applicants use repeat applications to wear down local opposition. Nevertheless the Council would welcome guidance as to the definition of "similar".
East Dunbartonshire Council: Whilst this is to some extent welcomed it is of concern that standardisation will constrain the opportunities to improve practice.
Fife Council: This measure is supported as it will help to avoid the duplicate submission of applications and will avoid frustrating and wasting time of planning staff and Committees We welcome the proposed widening of powers for planning authorities to decline to determine applications. This move should offer significant efficiency gains; it will, however, need to be accompanied by clear guidance to ensure that planning authorities do not expose themselves to the risk of appeals based on non-determination.
Glasgow City Council: Planning authorities can, currently, refuse to determine an application which is not substantially different from one that has been refused consent and had a subsequent appeal dismissed within the previous two years. The prospect of being able to refuse to determine an application which has previously been refused consent on more than one occasion, and has not substantially changed, would be welcomed on the basis that this will save staff time.
Moray Council: Support in principle. There are only a limited number of applications that this will impact on. There are already powers in place to do this (following an appeal) but these are rarely if ever used. Support would be dependent on whether the proposal positively impacted on officer workloads. There will however need to be a balance struck to distinguish between applications that are no more than straight 'repeats' as opposed to those which make amendments and improvements to the development.
Development Industry
Glasgow Harbour Ltd ( GHL): We suggest that further guidelines are required to enable planning authorities to clearly determine whether the issues have changed significantly.
James Barr Ltd (on behalf of various development industry businesses): This power to decline repeat applications needs further detailed consideration before being included in the Bill. At present, it is often a bone of contention in trying to establish and agree with a planning authority exactly what constitutes a material change in a scheme where revisions have been made to that originally submitted. It is to be expected that this problem will at the very least continue to be a subject of debate. While not objecting to this proposal in principle, it is imperative that some form of independent procedure is established whereby schemes can be assessed to consider what constitutes a material change in the nature of a scheme rather than leaving this solely to the discretion of a planning authority. There is a concern that planning authorities may use this possible new power to decline to consider schemes that they have in principle objections to, on the basis that the scheme has not sufficiently evolved since any previous applications have been considered.
Other Businesses
Arqiva: The power for Planning Authorities to be able to decline to determine applications where they have determined more than one similar application in the previous 2 years is not supported. This proposal needs reviewing and if progressed looked at in some detail. The definition of similar development will need to be clarified so that the local authority and applicant alike can understand what would actually constitute a similar development. If managed in the wrong way this could have serious repercussions for the communications industry. New installations may be applied for on existing towers and sites for many different applications. Equipment may appear similar. There is concern that to reduce the number of applications, authorities use the provision as an excuse not to consider other proposals. In the extreme an authority may have refused an application for a new mobile operator and within 2 years have an application for an Emergency Service, or for broadcast digital switch installation over, which they refuse to consider as being similar to that which has previously been determined.
British Energy: We support the proposal where Planning Authorities have power to decline to determine applications where they have determined more than one similar application in the previous 2 years and where issues surrounding application have not changed significantly.
Crown Castle UKLTD: Although we support the prevention of the abuse in the planning system as a matter of principle, we are concerned however with the underlying suggestion that those who submit repeat applications do so with the object of being vexatious and to wear down resistance to a proposal. We may sometimes be asked by a telecommunications operator to submit an application for a proposal that in its detail or through lack of justification is refused and then not appealed. We may then be asked by another telecommunications operator to submit a substantially similar proposal that is improved in its detail or contains more compelling justification. In these cases, we are concerned a recalcitrant authority could refuse to entertain such an application that might be acceptable, if not to the authority then to a Reporter on appeal. We believe your objective to end abuse and our concerns would be reconciled if when twin tracking the right to appeal against non-determination be curtailed whilst the authority has before it an application for an identical or substantially similar proposal by the same applicant. With regard to restricting repeat applications we consider that there is no need to change the existing legislative provisions set out in Section 39 of the Town and Country Planning (Scotland) Act 1997.
Federation of Small Businesses: There is no mention of appeal procedures in relation to granting the power to decline to determine an application, this should perhaps be addressed
Mobile Operators Association ( MOA): The mobile operators are opposed to this proposal as planning authorities will inevitably come under constituent (and political) pressure to define revised applications as 'repeat' applications. An operator may, on the basis of a rejected application, revise the plans for a particular site to meet the concerns of the planners, and submit a revised application. This should not be treated as a 'repeat' application, but rather as a new (or revised) application. Classifying this as a 'repeat' application would penalise the operators for attempting to address the concerns of planners and local communities. Well-intentioned, revised applications, based on comments and recommendations of planning officers, should not be treated as 'repeat' applications. This proposal could give local authorities an opportunity to refuse some controversial developments that would otherwise be approved. The Executive must be firm in ensuring that revised applications are treated fairly an equitably. Greater clarity on how the Executive believes that this approach would work would be welcome.
Orange PCS Ltd: If this is to proceed, there needs to be a very careful definition of what constitutes a "repeat" application. This is particularly important where a different design is proposed that still comprises the main elements of the installation. We would be very concerned if we were unable to do this, in cases where discussion with the planning officer reveals that a relatively minor amendment would enable approval to be given. The effect of the proposed change may mean that the developer would have to start again from scratch with a completely new proposal. This will involve significantly greater developer and planner time and resources, the opposite of what the Executive hopes to achieve. We would also be concerned if the proposal would prohibit the submission of an application on a previous refusal site by a second developer.
Scottish Environmental Services Association ( SESA):SESA opposes the proposal to allow a planning authority to decline to determine an application. A developer should always have a right to submit an application even if material changes haven't been made. For example, a different political party could take control of the council and support the same application.
Scottish Power: We do not support the power to decline to determine similar applications, as currently outlined. We agree with the need to balance repeat applications in order to make useful amendments to proposals with allowing such repetition to be used to exhaust opposition. Reapplications should also address any initial objection.
Universities Superannuation Scheme Ltd ( USS): We suggest that further guidelines are required to enable planning authorities to clearly determine whether the issues have changed significantly.
Professional Organisations
Association of Regional and Island Archaeologists:ARIA notes that a power to decline to determine in the forthcoming Planning Bill applies only within a certain very limited context (repeat applications contrary to the development plan). There are other areas where the ability to reject applications would be welcome, for example, where an inadequate application has been submitted which affects an historic environment resource, such as a Scheduled Ancient Monument, a designed landscape, a significant unscheduled archaeological site or landscape, or a World Heritage Site not currently afforded any special protection, unless through the development plan process or scheduling under the Ancient Monuments and Archaeological Areas Act 1979. At the moment the local authorities can request the submission of further information but the processing time clock cannot be stopped, unless EIA is required. As stated above, not all applications which require historic environment assessment, necessarily require EIA. There should be a facility for local authorities either to reject an inadequately detailed application, or to be able to stop the clock on processing until sufficiently adequate details have been produced by the applicant.
Planning Consultants, Architects and Lawyers
Collar, Neil: If repeat applications are to be restricted, it is essential that local authorities are given guidance on the criteria to be applied. Also, a decision to decline to determine an application should be subject to a right of appeal to the Scottish Ministers so that the merits of the decision can be debated, otherwise the applicant would have to apply to the Court of Session for judicial review which would only be granted if the local authority had acted perversely.
Drivers Jonas: We suggest that further guidelines are required to enable planning authorities to clearly determine whether the issues have changed significantly.
Hargest & Wallace Planning: Similar" applications will require careful definition - otherwise it could result in litigation under ECHR or similar.
Turley Associates: We support the proposal to give Councils the power to decline to determine repeat applications which have been refused in the previous two years.
Warren Consultants: Repeat applications should be acceptable as long as there is a genuine attempt each time by the applicant to address the concerns of the local authority. It should not be left to the local authority to judge whether or not the applicant is making a genuine attempt and even repeat applications should have deemed refusal appeal rights so that a Reporter can judge whether the appellant has tried to address previous concerns and whether he or she has been successful.
Community Councils
Broughty Ferry Community Council: We support the limitation on repetitious applications. A block on further applications for three years should be imposed. Planners' time could also be saved by screening out poorly conceived or drafted first time applications, e.g. where the Development Plan is clearly contravened. Greater pre-application consultation should reduce the number of poorly conceived applications. The declination to determine could be subject to appeal.
Currie Community Council: We agree that there should be no "twin tracking" of planning applications, where similar applications are submitted at or about the same time. Amendments to an application (duly notified to objectors) are an acceptable way of dealing with this issue without the need for duplicate applications. We agree that the Local Authority should be entitled to decline applications "where they have determined more than one similar application in the previous 2 years" except we would recommend that this should relate to a single application and for a longer period - say 4 years. We are also opposed to applications to develop another person's land without their express consent, such consent having to be included with the planning application.
Garioch Area Forum of Community Councils: We support the proposed power to decline to determine applications where a similar application has been determined in the previous two years and the issues have not changed significantly. The key word here is 'significantly', as we can foresee developers exploiting the looseness of this wording to continue, as they do now, to submit multiple applications for the same site. We would contend that any new application should have to be fundamentally different, and further, that the definition of 'fundamentally different' must be unambiguous. We also believe that that Local Authority planning departments should not only insist on minimum standards but also be allowed to refuse planning applications from a developer on the grounds of unsatisfactory completion of previous works.
Voluntary Organisations
Brethren Gospel Trusts: It is considered that the proposed power for planning authorities to decline to determine applications which are similar to applications submitted within the previous two years should be framed with care. Whilst we support the desirability of resisting repeat applications following a refusal of planning permission, other than an application incorporating amendments to overcome the reasons for refusal, applicants often require a similar application to be submitted in order- to address unforeseen difficulties arising following the grant of planning permission (to relocate a building for legitimate reasons) or to incorporate "revised doors and fenestration, for example). The legislation seeking to resist repeat applications following refusals should not at the same time inhibit applications where legitimate revisions to a proposal are required to be subject to a revised planning application, for example where the changes proposed cannot he accepted as a minor amendment within the scope of the original approval.
Colinton Amenity Association: We strongly support this proposal. There is a need to define 'similar', as our experience is that planning authorities have accepted very minor changes to a design as justifying acceptance while the underlying issues remain unchanged. It must be emphasised that both are important considerations. We also consider that it should not be possible to submit planning applications for other people's property without their consent.
Friends of the Earth Scotland: Neither developers nor communities have an interest in unnecessary delay. At worst delay leads to planning blight. Delays could be reduced without harming participation by empowering planning authorities to rule out repeat applications, and twin-tracking of applications. We welcome the proposals for powers to decline to determine a repeat application within a certain period. We would also support wider application and use of such powers.
Mountaineering Council of Scotland: We welcome the comments on restricting repeat planning applications, but feel that the powers and timescales should be greater than those proposed in the White Paper. For example, we would suggest that the time period for not allowing a repeat application should be 10 years rather than 2, and that in special circumstances in areas of the highest landscape quality there should be a category for the Scottish Executive to place an area out of bounds for any development in perpetuity
Portobello Campaign against the Superstore: The time limit for reapplying on a refused application should be five years and not two years. If development plans can run for five years then this would seem to be a suitable time limit. It is proposed to allow reapplication if the surrounding issues have changed significantly. In the interest of efficient land use, if an application has been refused then is it not better to encourage some other land use or built form rather than let the developer allow time to pass. A five year moratorium would encourage this.
Rural Scotland: Rural Scotland supports the intention to make Development Plans the core documents for the determination of planning applications. The supremacy of the Development Plan must be maintained. Any application that does not conform to the approved Development Plan, has been refused by the Planning Authority and has been dismissed at any appeal should not be reconsidered until a new Development Plan has been approved. In other words the Scottish Executive's suggested discretionary power for LPAs to decline to determine similar repeat applications should be transferred into a statutory requirement
Scottish Renewables Forum: Concerning repeat applications, we agree that there is a need to balance 'allowing repeat applications in order to make useful amendments to proposals without allowing such repetition to be used to exhaust opposition.'
Private Individuals
Henriksen, Neil: Consequent upon my submission of Public Petition PE554 to the Scottish Parliament in September 2002 I received a letter from the clerk to the Public Petitions Committee dated 6 September 2003 that included: "The Committee welcomed the Executive's commitment to include relevant proposals in the context of a future planning bill, as a direct result of your petition…. I would like to take this opportunity on behalf of the Committee to congratulate you on the success of your petition. My petition was as follows: If there have been well-founded objections to a planning proposal on grounds of amenity, sustainability or damage to the environment and if, after one year from first being submitted, agreement has not been obtained, then no similar proposal shall be allowed until a change is signalled in the relevant local or structure plan. Under 'Power to decline to determine applications' on page 73 of the White Paper, I can now see that my time limit of one year was too short and also I accept that there must be room for adjustment - to an otherwise sound proposal. However, my petition is not addressed by allowing developers to return to the same or similar flawed proposals having waited for two years. It appears from paragraph 2 on page 73 that a planning application, if refused, would give to the local authority the right to decline to determine a similar application for two years. However, allowance is made for a modification to that first application in the form of a second application, which if refused would then start the clock on the two-year period. Two years is not enough. This period must be sine die or until there is a relevant change of circumstances. The cycles of application, refusal and unsuccessful appeal already repeat at the rate of roughly once every four years. Respondent cites examples that have been appealed and refused three times over a dozen years as have many other repeat applications, refusals and appeals. This proposal will not free local communities from the wearing down process. And it is not doing a favour to the developers. For them it will be business much as usual. They must be given greater incentive to get it right the first (or second) time and local communities must be given a much longer period of remission.
Oliver, Jean: The present system which allows would-be developers to shower applications like confetti should be stopped.