Scottish Government

Introduction

The guidance below is intended to answer some of the common questions about the changeover to the new planning system. The definitive position on these matters is set out in the legislation on modernising planning:

Cases determined prior to August 03, 2009 under the existing system are basically unaffected by the changes.

Planning applications which are in the midst of processing on August 03, 2009 may be affected in three main ways: i) certain of the new requirements associated with the latter stages of processing will apply (e.g. requirements for decision notices and reports of handling); ii) those in the category of local developments may be delegated under new schemes of delegation from August 03, 2009 which, for example, will affect the right of appeal; and iii) any grant of permission on or after August 03, 2009 will be subject to the new provisions on duration of planning permission and in the case of applications for outline planning permission, will result in a grant of planning permission in principle.

Where an appeal is underway but not completed before August 03, 2009, it will continue to be processed under the procedures in place at the time the appeal was made.

Further details below:

Applications made before August 03, 2009 determined before that date.

These applications are basically unaffected by the changes, except where a related appeal is made or determined on or after August 03, 2009 (see section below on Appeals).

Applications made before August 03, 2009 but determined on or after that date.

Such cases will be processed in accordance with the planning system as it exists prior to August 03, 2009 with the following exceptions. At the end of processing they will have to comply with certain new requirements in place from August 03, 2009, namely:

• The time period for determining the application (e.g. a 2 month or 4 month period) will be in accordance with the new Development Management Regulations and will run from the date of receipt of the application under the General Development Procedure Order;
• the content and distribution of decision notice will need to comply with the requirements of the new Development Management Regulations;
• the information to be kept on the register will have to comply with the new Development Management Regulations (e.g. copy of the decision notice, a report of handling and plans and drawings to be kept on Part II of the register);
• any application which meets the criteria specified in the new Development Management Regulations will need to provide an opportunity for a pre-determination hearing and be referred to full council for a decision.
• decisions made on or after August 03, 2009 on such applications will have the new default time periods for duration of planning permission, unless the planning authority directs otherwise.

(See also relevant sections below on Outline Planning Permission, List of Applications, Variation of Applications, Appeals, Local Reviews, Notices of Development).

Pre-Application Consultation

• Statutory requirements for pre-application consultation to have been carried out in relation to major or national development only apply to applications for planning permission or planning permission in principle made on or after August 03, 2009.
• the processes for carrying out pre-application consultation in relation to relevant applications to be made on or after August 03, 2009 are already in place.

Outline Planning Permission (OPP)

• where applications for OPP result in a grant of such permission issued prior to August 03, 2009 the statutory time limits then in force on duration of planning permission will apply, unless the planning authority has attached their own time limits by condition.
• where reserved matters applications in relation to such a grant of OPP are made on or after 3 August they will be treated for the purposes of processing as applications under Regulation 12 (Approval of Matters Specified in Conditions) of the new Development Management Regulations.
• Applications for OPP made before August 03, 2009 but the decision to grant permission is issued on or after that date, will result in a grant of planning permission in principle in accordance with the new provisions in section 59 of the 1997 Act as amended.

Full Planning Permission

• Where applications for full planning permission made before August 03, 2009 are determined on or after that date the duration of planning permission will be in accordance with section 58 of the 1997 Act as amended. The planning authority can direct on the period of duration otherwise a default duration of 3 years will apply.

Additional Grounds for Declining to Determine Applications

• there are new additional discretionary powers for planning authorities to decline to determine repeat applications and a requirement to decline to determine applications where required pre-application consultation has not been carried out.
• these powers and requirements apply only in relation to applications made on or after August 03, 2009.

Lists of Applications

• the new requirement for a list of information on all live applications before the council applies only to applications made on or after August 03, 2009. That is, there is no requirement for authorities to put all live applications received before that date on the list (though authorities can if they wish). In time the list should build into a picture of all live applications.

Variation of Planning Applications (and Appeals)

• new provisions prevent, from August 03, 2009, variations to applications which make a substantial change in the description of the development. Although there is no specific legislation in this regard currently, this should be little different from current practice.
• These new provisions also prevent any variation once an appeal has been made. As this is a considerable change, this will only apply to appeals made on or after August 03, 2009.

Pre- Determination Hearings and Referral to Full Council

• the requirements to provide an opportunity for parties to have a pre-determination hearing and to refer the same categories of case to full council for decision apply from August 03, 2009 to all relevant applications not determined before that date.

Rights of Appeal

• Where a right of appeal to the Scottish Ministers arises before August 03, 2009, then that right of appeal is preserved. That is to say where planning permission or outline planning permission, application for reserved matters etc is refused, granted with conditions before August 03, 2009 or the right to appeal on the grounds of non-determination arises before August 03, 2009 then the applicant has 6 months to appeal to the Scottish Ministers.
• where the right to appeal is exercised in such cases on or after August 03, 2009 the new procedures in relation to appeals will apply - e.g. no right to be heard and limited introduction of new material and no variation of the proposal allowed.
• where a right to appeal has been exercised before August 03, 2009, the appeal will be processed in accordance with procedures in force at the time the appeal was made, e.g. right to be heard will apply.

Local Reviews

• Local reviews in relation to refusals of planning permission or a grant of permission with conditions will only apply to applications for local developments determined under a section 43A scheme of delegations on or after August 03, 2009.
• the above applies regardless of when the application was made, e.g. if an application made prior to August 03, 2009 is determined on or after that date under a section 43A scheme of delegation, then challenge can be made by local review, not by appeal to Ministers.
• Where an application is made before August 03, 2009 and from that date is delegated for decision under a section 43A scheme of delegation, then the right to challenge on the grounds of non-determination is through a local review, not an appeal to Ministers. The exception to this is where the right to appeal on the grounds of non-determination arose prior to August 03, 2009.

Called-in Applications

• Applications called-in prior to August 03, 2009 will continue to be dealt with under procedures (e.g. inquiries procedures) as they existed prior to August 03, 2009, including, for example, the right to be heard..

Duration of Planning Permission

• Applications for planning permission or planning permission in principle determined on or after August 03, 2009 will have the new reduced statutory time periods for the duration of planning permission, unless the planning authority directs that an alternative duration applies.
• Applications for outline planning permission granted permission on or after August 03, 2009 will be granted planning permission in principle with the new reduced statutory time period for duration of permission, unless the planning authority directs that an alternative duration applies.
• Applicants can appeal to Ministers against or, where the case is a local development delegated for a decision to an officer, seek a local review of the duration of planning permission directed by the authority or, where no direction is made, against the default duration.

Notices of Development

• Where development is granted planning permission on or after August 03, 2009, the developer will have to serve notice of initiation of development and notice of completion of development on the planning authority and, in certain cases, have an on-site notice in place during development. Further information is in Circular 4/2009 Development Management Procedures.

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