Annex F:
Draft Regulatory Assessment:
Consultation on planning enforcement provisions in the Planning etc. (Scotland) Act 2006.
Introduction and summary
This is a draft Regulatory Impact Assessment ( RIA) of the proposals for Regulations to implement the provisions made in the Planning etc (Scotland) Act 2006 (the 2006 Act) in respect of;
- Fixed Penalty Notices ( FPNs)
- Temporary Stop Notices ( TSNs)
- Notification of Initiation of Development ( NIDs) and on-site display of notices
This draft assesses the impact of the proposals in the consultation paper on business and other interests. It considers the additional costs that may be imposed by the legislative changes and seeks to assess the wider benefits which may be brought by the changes.
The proposals for secondary legislation, and this assessment, may be revised following consultation. Q11 of the consultation invites consultees to submit views on the draft RIA.
Objective
The Scottish Government is seeking to implement provisions in the Planning etc. (Scotland)Act (the 2006) Act to extend existing, and introduce new, enforcement powers designed to improve the delivery of planning enforcement. The proposed Regulations will extend the range of options available to planning authorities to effectively address breaches of planning control. They will also increase general public awareness of major developments in their area.
Background
The Town and Country Planning (Scotland) Act 1997 sets out a range of enforcement powers available to planning authorities to enable them to address breaches of planning control. The 2006 Act developed the existing framework, introducing a new power to issue a Temporary Stop Notice, requiring developers to submit Notification of Initiation and Completion of Development and, in respect of certain developments as defined in Regulations, to display on-site notices containing certain information. The 2006 Act also introduces Fixed Penalty Notices, which may be issued by planning authorities as an alternative to prosecution where a developer breaches the requirements of either an Enforcement Notice or a Breach of Condition Notice.
Consultation
Within Government:
The Scottish Government Planning Directorate has consulted with colleagues in:
Solicitors Development, land and Local Government Division
Public Health and Wellbeing Directorate, Equality Unit
Crown Office Procurator Fiscal Service
Public consultation:
The measures in the 2006 Act were, with the exception of Fixed Penalty Notices, set out in the White Paper: Modernising the Planning System. The Regulations which are the subject of the current consultation are therefore consequential to the provisions of the 2006 Act. The need for the regulations is not therefore a matter for consultation (having been agreed by Parliament) however the detail of the Regulations is.
Options
The Scottish Government has considered options for implementing the provisions of the 2006 Act. The options identified are:
Option 1 - do nothing and remain with the status quo.
Option 2 - Implement the legislation in the 2006 Act. In order to do so certain Regulations are required. The proposed Regulations are set out (in draft form) in the consultation paper.
Option 1 (do nothing and remain with the status quo) is not considered viable, given the commitment in the White Paper, subsequently confirmed by the Scottish Parliament in approving the 2006 Act, to implement the enforcement provisions. Therefore the partial RIA focuses on the costs and benefits of implementing the proposed Regulations.
Costs and benefits
At this stage we are unable to estimate any costs accurately. We do not however expect that the proposed measures will have any significant financial impact on any particular group in the community.
Sectors and groups affected:
- Public sector - planning authorities will have new powers to address breaches of planning control.
- Private sector - developers will be required to submit information in NIDs to planning authorities, and depending on the nature of a development display on-site notices.
- Individuals - any individual carrying out development for which planning permission has been granted will be required to submit a NID.
Benefits
Planning authorities will benefit;
- Through having a wider range of enforcement measures available to them to respond appropriately to a breach of planning control.
- By being able to offer the option to play a fixed penalty as an alternative to the costly and lengthy process of seeking a prosecution.
- NIDs will provide information on which developments are currently active in their areas, as well as background information on a developers 'track record', allowing for more effective allocation of resources.
Developers will benefit if earlier identification of a breach saves time and money. Most, if not the majority of breaches are inadvertent and relatively easily corrected. However if a breach is not detected and subsequent development continues, it will generally be harder and more expensive to correct.
Communities will benefit;
- Where TSNs are used to immediately stop unauthorised development which damages local environment or amenities.
- Where a major, national or bad-neighbour development is being undertaken, they will have readily available information (on-site notices) enabling them to find out more about the development and to report any perceived or suspected breaches of planning control.
Finally, there will be a benefit to ethnic minorities, as Gypsy/Travellers will benefit from the Regulations regarding use of TSNs. These Regulations will extend to caravan dwellers similar protection as that offered to dwellinghouses under the 2006 Act. However a balance has been struck to ensure that the siting of a caravan does not adversely affect the safety of either the occupants or other members of the community or cause unacceptable damage to the environment or amenity.
Costs
There may be increased costs to planning authorities associated with the investigation of allegations of breaches arising from increased public awareness of development in their area. However the other proposals should offset any such increase through;
- The provisions requiring developers to notify the planning authority of the date on which development will start, etc, will enable planning authorities to allocate resources more effectively.
- The new power to issue a Fixed Penalty Notice will provide a cost-effective alternative to prosecution. Penalties paid in response to Fixed Penalty Notices will accrue to the planning authority, rather than the Courts.
It should also be remembered that in respect of any allegation of a breach of planning control, the planning authority has discretion to determine the most appropriate enforcement action to be taken.
There will be slight costs incurred to developers and individuals carrying out development, in that they will be required to complete NIDs. The main cost would be in compiling and maintaining a list of previous enforcement action. However we believe the impact of these costs would be negligible as;
- In the case of a large-scale developer, they would in effect only have to create the list once. Thereafter it could be maintained on a rolling basis, with any new enforcement action being recorded at the time.
- In the case of an individual, they would be aware of any action taken against them.
There would be a further cost involved for any developer who was required, by the nature of the development, to display an on-site notice. Again, however, we believe that, given we propose the notices would be displayed in respect of National, Major, and/or bad-neighbour development, the costs involved would be negligible in comparison to the overall cost of the development. This required information should be readily available to either a company or an individual.
Small/Micro Firms Impact Test
We take the view that the impact on such firms would be minimal. Enforcement action would only be taken where there was a breach of planning control, therefore it follows that action would only be taken where there is evidence of a breach. While there are extended powers for a planning authority to take action, it remains the fact that enforcement action will only be taken if there has been a breach of planning control. In considering appropriate action the planning authority will consider the scale of the breach, rather than the size of the company.
Where the issue is the submission of an NID, this would not adversely affect small/ micro firms. Since the Regulations would require any developer (individuals, small companies, large developers) to submit information, it is not unreasonable to expect that they would be aware of any enforcement action taken against them. Again we take the view that small/micro companies will have no major financial outlay in completing the NID. We would also make the point that the requirement to complete a NID applies to all applicants for planning permission, therefore it does not discriminate against any group within the planning sector.
Legal Aid Impact Test
The legal Aid Test looks at an individual's right to access to justice through availability of legal aid and possible expenditure from the legal aid fund.
The Regulations do not create a new legal procedure, as they do not create a new offence (they create an alternative to existing penalties), nor do they include a right of appeal. A person who disagreed with the serving of a notice would be able to refuse payment and it would be for the planning authority to take further action through seeking a prosecution. There would therefore appear to be no new grounds where Legal Aid would be available.