4. Processing Planning Applications
Schemes of Delegation
4.1 General powers to delegate decision making to committees or officers exist under the 1973 Act. However, section 43A of the 1997 Act requires planning authorities to have schemes delegating, to a person appointed for that purpose (the appointed officer), the determination of applications for planning permission for local developments or any application for consent, agreement or approval required by a condition on a grant of planning permission for a local development. These applications for local development cannot be delegated to officers for decision other than through a section 43A scheme of delegation.
4.2 Where a decision has been taken by an appointed officer under a section 43A scheme of delegation, or in cases where the applicant wishes to challenge the appointed officer's failure to determine an application so delegated, the route to challenge is a review by the local review body rather than an appeal to Scottish Ministers.
4.3 The procedures for adopting new schemes of delegation and for carrying out local reviews are set out in the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2013 (SSI 2013/157) and the related circular (5/2013).
Validation and Acknowledgement of Applications
(Regulations 9 - 12, 14 and 17)
4.4 It is for the planning authority to check whether the application meets the requirements of regulations 9, 10, 11 or 12 as appropriate. The administrative checking of applications in this regard should be carried out as soon as possible but certainly within 5 working days of receiving the application. Since neighbour notification will follow the validation process, it is important that planning applications are processed with the minimum of delay.
4.5 With reference to PAC reports, design statements and design and access statements, the crux for the purposes of validation is whether they meet the statutory requirements on form and content.
4.6 With design statements and design and access statements, assessment of the quality of the information submitted is to be addressed when considering the application, rather than during the validation process.
4.7 With PAC reports, whether the applicant might have done more to respond to any comments made is not relevant at the validation stage. Nor are qualitative judgements on how a public event was run, unless the planning authority concludes that events were so ineffectual that the applicant has failed to carry out the required step or steps (see Annex E on declining to determine applications).
4.8 The validation date, from which the time period for determination runs, is the date when the final piece of information required by regulation 9, 10, 11 or 12 as appropriate has been received by the planning authority.
4.9 The planning authority is required to acknowledge receipt of the application once the final piece of information is received. That acknowledgement must:
- include an explanation of the timescales within which the planning authority is to give notice to the applicant of its decision on the application; and
- inform the applicant of the right to appeal to Scottish Ministers or to require a local review of the planning authority's decision or failure to make a decision.
(See the section on Time Periods for Determination paragraphs 4.79 - 4.86 below)
4.10 The acknowledgement should also include the date of receipt of the last item of information specified in the DMR - the validation date. This is required so the applicant is clear about when decisions should be issued or when appeals can be made or local reviews sought on the grounds of non-determination and the time limits for pursuing such appeals or local reviews. Any confusion over the validation date, as opposed to the date of receipt of additional information, could have implications for appeals or local reviews on the grounds of non-determination being made within the relevant statutory time limits.
4.11 Where an initial application does not contain sufficient information to meet validation requirements the planning authority must notify the applicant of the information that is necessary to validate the application. Once that information is received, then an acknowledgement must be sent.
4.12 In acknowledging receipt of applications or requesting missing information authorities may at the same time to request any information beyond the statutory minimum which is required to determine the application. However, it should be clearly stated what information is required to comply with validation requirements and what is additional information required to determine the application (see paragraph 4.10).
4.13 Planning authorities are not obliged to process applications where there is a failure on the part of the applicant to comply with the requirements on content in regulations 9, 10, 11 or 12. In such circumstances the time period for determining the application will not start.
Declining to Determine Applications
4.14 Section 39 sets out the circumstances in which planning authorities may and, in some cases, must decline to determine an application, even where the information required by regulations 9, 10, 11 or 12 has been submitted. There is no specific time limit as to when these powers can be exercised. However, the expectation is that their use should be considered upon receipt of an application. See Annex E for further details.
Neighbour Notification and Publicity
4.15 Neighbour notification requirements apply to applications for planning permission (regulation 9), planning permission in principle (regulation 10), further applications for such permission (regulation 11) and applications for approval of matters specified in conditions attached to planning permission in principle (regulation 12). Notice is to be sent to premises on "neighbouring land". The term "neighbouring land" is defined in regulation 3 as:
"an area or plot of land (other than land forming part of a road) which, or part of which, is conterminous with or within 20 metres of the boundary of the land for which the development is proposed."
4.16 The boundary of the land for which development is proposed is determined in the circumstances of the case, but need not be a property boundary. For example, in the case of farms or estates where a building is being erected in one part of the farm or estate, it is not the whole farm or estate that is being developed so it would not make sense to use the boundary of the farm or estate as the boundary of the land for which development is proposed. In the case of a specific site for the purposes of a supermarket, industrial or business premises, for example, then the boundary of that specific site will normally be the boundary of the land for which development is proposed. With most private houses in urban areas, for example, it will probably be the property boundary. In practice the boundary of the land to be developed will normally be indicated by a red line on the application location plans.
4.17 The premises on neighbouring land to which neighbour notification should be sent do not have to be within 20 metres of the boundary of the land for which development is proposed. Such premises can be elsewhere on the neighbouring land. In using the term "area or plot", the aim is to identify this as a discrete piece of land. Where such neighbouring land consists of open fields, countryside or woodland with no obvious premises on it, then an advert would be necessary.
4.18 Planning authorities should carry out neighbour notification as soon as possible after the application has been validated. This is to ensure that, given the minimum period of 21 days within which individuals can make representations, the planning authority can determine applications with the minimum of delay.
4.19 A single notice must be sent to the "Owner, Lessee or Occupier" at the address of the neighbouring land. Under regulation 18(2)(b), where there are no premises on the neighbouring land to which the notification can be sent, the planning authority must place a notice in a local newspaper in accordance with regulation 20 (see paragraphs 4.23 to 4.29 below). Regulation 20 includes certain exceptions to the requirement for newspaper notices in such circumstances. Relevant planning authorities are also required to give notice of applications to the Cairngorm National Park Authority within 5 days of the validation date where the proposed development is in the area of the Park Authority.
4.20 The notices sent to neighbours must include the following information:
- the date of the notice (notices should be dated and sent on the same date);
- the name of the applicant and the name and address of any agent;
- the planning authority reference number for the application;
- a description of the development;
- the postal address of the site or, in the absence of such an address, a description of the location of the land;
- how the application, plans, drawings and other related documents can be inspected;
- where and by when (at least 21 days after the date the notice is sent) representations can be made;
- a location plan showing the position of the proposed development in relation to neighbouring land;
- a statement of where more information can be obtained on planning application procedures;
- in relation to applications which require PAC, a statement that despite the fact that comments may have been made to the applicant prior to the application being made, persons wishing to make representations in respect of the application should do so to the planning authority in the manner indicated in the notice.
4.21 On the last point, the requirement in regulation 18(3)(j) is to make clear that comments made to developers in the pre-application stage are not representations to the planning authority.
Notification of minerals applications
4.22 See Annex C for issues relating to the notification of minerals applications.
Publication of an application by the planning authority
(Regulation 20 and schedule 4)
4.23 A notice must be published in a local newspaper in the form set out in schedule 4 where:
- it is not possible for the authority to carry out neighbour notification of an application under regulation 18 because there are no premises on neighbouring land to which the notification can be sent. This does not apply where all of the neighbouring land without premises is owned by the applicant or the planning authority, or where the application is for a householder development. Newspaper advertising may still be required if triggered by one of the other criteria below;
- in relation to an application for planning permission or planning permission in principle (regulations 9, 10 or 11), an applicant has certified under regulation 15 that it has not been possible to notify all owners and agricultural tenants of the proposed development;
- the application is made under regulations 9, 10 or 11 and relates to a class of development likely to have a wider impact on amenity (as specified in schedule 3); or
- the application is made under regulations 9, 10 or 11 and is for development which is contrary to the development plan.
4.24 Where a proposed development falls within more than one of the categories listed above, the planning authority is not required to publish more than one notice. Similarly where an application is advertised under sections 60(2)(a) and 65(2)(a) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (publicity for applications affecting conservation areas and listed buildings), there is no need to advertise under regulation 20.
4.25 As specified in schedule 4, the published notice must provide a description of the location and nature of the proposed development and information on how representations may be made to the planning authority.
4.26 As with notices to neighbours, where applications have been subject to PAC requirements, advertisements must also explain clearly that, despite any comments made to prospective applicants during PAC, any formal representations on the application should be made directly to the planning authority within the prescribed time period.
4.27 Published notices must also include a date by which representations should be made to the planning authority. This date or period must be not less than 14 days after the date on which the notice was published.
4.28 In order to determine planning applications within the prescribed 2 or 4 months from the validation date, planning authorities should arrange for notices to be published as soon as possible, and certainly within 14 days of the validation date.
4.29 Published notices should be clear, concise and fit for purpose.
General issues regarding publicity
4.30 To avoid confusion, it would be helpful to align the dates for representations to be made in response to published notices and those sent to identified neighbours, bearing in mind the prescribed minimum periods.
4.31 In acknowledging representations, planning authorities should make people aware of their policy in relation to the publication of comments.
4.32 Where possible, notices to identified neighbours should be hand delivered or sent by first class post, since the use of second class mail could result in recipients having a significantly reduced period within which to make representations.
4.33 Planning authorities should keep a record of details of the neighbour notification, advertising and posting of site notices carried out in relation to applications. This is for the purposes of transparency and to assist in any further notification (where, for example, an environmental statement is subsequently submitted under the EIA Regulations or to assist the Local Review Body in identifying whether it has to undertake any of these requirements).
Recovering costs of publicising applications
4.34 The Town and Country Planning (Charges for Publication of Notices) (Scotland) Regulations 2009 provide for the recovery from the applicant of costs of publicising planning applications required by regulation 20. These regulations require that the cost of publication of a notice be divided among the applications to which the notice relates.
4.35 The planning authority must write (electronic communication is allowed where the applicant has agreed to such communication) to the applicant advising them of the costs and these regulations require the applicant to pay within
21 days of being notified. Under the 1997 Act, the planning authority cannot determine the application until these costs have been recovered from the applicant.
Lists of Applications
(Section 36A and regulations 21 - 23)
4.36 The 1997 Act and the DMR contain require planning authorities to have a register of applications, to prepare weekly lists and provide a list of extant applications which are all to be accessible to the public.
List of extant applications
(Regulation 21 and 22)
4.37 Regulations set out that the list of applications to be kept by the planning authority is to be kept in two sections. The first section is for:
- applications for planning permission and planning permission in principle;
- applications for such permission made to Scottish Ministers under section 242A (urgent Crown development) of the 1997 Act for development in the planning authority's area; and
- applications for approval of matters specified in conditions attached to a planning permission in principle.
4.38 The information to be kept on this section of the list is:
(a) the reference number given to the application by the planning authority or, as the case may be, Scottish Ministers;
(b) the site location;
(c) the name of the applicant and agent (if any);
(d) a description of the proposed development; and
(e) the date of expiry of the period allowed for representations in any neighbour notification or publication of the application.
(f) in relation to applications for approval of matters specified in conditions, a description of the matter in respect of which the application is made; and,
(g) in relation to applications made to Scottish Ministers for urgent Crown development, an identification of the application as one made to Scottish Ministers and a statement that representations may be made to Scottish Ministers and where any such representations should be sent.
4.39 The second section of the list relates to proposal of application notices received by the planning authority in relation to requirements for PAC. This section is to include:
- the reference number given to the application by the planning authority or, as the case may be, Scottish Ministers;
- the site location;
- a description of the proposed development; and
- details as to how the prospective applicant may be contacted and corresponded with;
- the earliest date on which an application for planning permission in respect of the development may be submitted to the planning authority (minimum of 12 weeks from submission of the notice); and
- where the planning authority give notice to the prospective applicant about additional pre-application consultation, a specification of any additional persons to whom a proposal of application notice is to be given and any additional consultation to be undertaken.
4.40 The DMR only require the list to set out the authority's PAC requirements which go beyond the statutory minimum. However, the planning authority may wish to consider providing information on the statutorily required public event, should such information be available.
4.41 Where Scottish Ministers have notified an application for urgent Crown development under section 242A to the planning authority, the date referred to at (e) in paragraph 4.38 will be provided by Scottish Ministers.
4.42 The list shall also contain a statement as to how further information in relation to an application may be obtained from the planning authority. The list must be updated on a weekly basis to remove determined applications and proposal of application notices that are no longer current (where an application is submitted, the prospective applicant indicates no application will be made, or 12 months has elapsed since notice was given).
4.43 Planning authorities are to make the list of applications available online. In order to ensure that the list is more widely available to the general public, it must also be accessible at its principal office and public libraries within its district. How the list is made available at these offices is a matter for the planning authority (hard copy or electronic versions for example).
4.44 The requirement to maintain the list only relates to applications and notices received by the planning authority on or after 3 August 2009.
4.45 A weekly list must be sent to every community council in the district of the planning authority and made available for inspection in the principal planning office and public libraries. This list shall contain all applications made to the planning authority under regulations 9, 10, 11 or 12 and to Scottish Ministers within the previous week. In addition to the relevant information requirements, the weekly list shall contain a statement as to how further information relating to the application may be obtained from the authority.
4.46 The "weekly list" is to contain the same information as that on the list of extant applications.
4.47 It will be for planning authorities and individual community councils to consider the most appropriate way of disseminating this information, which may be electronically.
4.48 Community councils may request formal consultation on particular applications. Even if they do not, there is also a requirement to consult them on development likely to affect the amenity in the area of the community council.
4.49 Planning authorities may wish to consider if there are other persons who should be provided with the weekly list (such as elected representatives or Police Architectural Liaison Officers, referred to in Planning Advice Note 77: 'Designing Safer Places.).
(Section 36, regulation 16 and schedule 2)
4.50 Schedule 2 to the DMR sets out the requirements for registering entries on applications for planning permission and planning permission in principle (paragraphs 1 to 4 of schedule 2) and for certificates of lawful use or development (paragraph 5 of schedule 2). Paragraphs 6 and 7 of schedule 2 contain provisions applicable to registers generally. Paragraph 1 of schedule 2 requires the register of applications for planning permission to be kept in two parts.
4.52 Separate provisions arising from the EIA Regulations require that the register contains relevant screening and scoping opinions and certain other information where the development is subject to EIA (see Circular 3/2011 on the EIA Regulations for further information).
4.53 Information on Part I of the register is to relate to those applications which have not been finally disposed of. Part II of the register relates to applications which have been determined.
Reports on handling
4.54 For those applications for planning permission or planning permission in principle determined by the planning authority, other than by local review, the register must contain a copy of a report on the handling of the application. Planning authorities are to prepare such a report on each application which is to contain a range of information relevant to the processing of the application.
4.55 The required contents of a report are set out in schedule 2. The format and structure of the report is a matter for the planning authority. In many cases the contents of the report should be similar to reports prepared for planning committees. Reports of handling should be proportionate to the nature, scale and complexity of the proposal.
Certificates of lawful use or development
4.56 Schedule 2 lists the information that shall be kept by the planning authority in respect of every application for a certificate under section 150 (certificate of lawfulness of existing use or development) or 151 (certificate of lawfulness of proposed use or development) of the 1997 Act. It also requires the planning authority to place information on the register where there has been an appeal to Scottish Ministers in relation to such certificates.
Provisions applicable to registers generally
4.57 The register shall include an index which shall be in the form of a map. The planning authority should keep the register at their principal office. However, the authority may also keep copies of elements of its register relating to land in a part of a district at a place in or convenient to that area of its district.
4.58 Where the register is kept electronically, the authority may make it available for public inspection on a website maintained by the authority. The amount and quality of planning information available on planning authority websites is increasing, making the planning process more transparent and accessible. ePlanning allows the progress of applications and appeals to be tracked, comments to be made and decisions better understood.
4.59 The Scottish Government have issued 'Publishing Planning Applications Online - Data Protection Guidance for Planning Authorities', containing general guidance on web publication. On the issue of security sensitive material, planning authorities are not obliged to keep the contents of the register on their website. When dealing with applications where there are potentially security sensitive issues raised by plans and drawings or other information, planning authorities should consider restricting web access to such material. The latter would mean that anyone wishing to view such material has to attend the planning office to view it, and there is some opportunity to monitor access. Where information raises issues of national security, then information will be subject to more severe restrictions (see paragraph 4.124).
Timeframe for placing material on the Register
4.60 Whilst no statutory timeframe is set out, the following timings are recommended:
- The information on applications made but undetermined should be placed on Part I of the register on or before the earliest date on which neighbour notification is undertaken and/ or notice of the application is published in a newspaper;
- Any direction given under the 1997 Act or the DMR in relation to the application should be entered on Part I of the register within 7 days of receipt; and
- The information should be placed on Part II of the register within 7 days of a decision being issued by the planning authority or received from Scottish Ministers.
Requesting Further Information on Applications
4.61 Planning authorities can require applicants to provide any additional information, beyond that required by the regulations on the content of applications, in order to deal with the application. The time period for determining the application under regulation 26 will continue to run. Ideally, such information requirements should be discussed prior to an application being submitted so that as far as possible the application as submitted contains the information necessary to determine the application. Processing agreements provide a vehicle for this for complex or substantial developments (see Chapter 6).
4.62 Any requirements for additional information, whether they are identified in the pre-application or post-application stages, should be necessary, proportionate and clearly scoped to avoid unnecessary costs to applicants and public bodies. Similarly, it is important that the information subsequently submitted meets these criteria.
Variation of Applications
4.63 Applications for planning permission (including planning permission in principle) can be varied after submission with the agreement of the planning authority. It is for the planning authority to decide what notice they give to other parties regarding any such variation. However, if the planning authority consider the variation would result in a substantial change in the description of the development, they are not to agree to it. Another application would be required for such a variation.
4.64 The terms of an application cannot be varied after it has become the subject of an appeal to Scottish Ministers.
Consultation on Applications
(Regulations 25, 30 and 37 and schedule 5)
4.65 The DMR contain the provisions for consultation by the planning authority on applications for planning permission and planning permission in principle. They also provide (regulation 30) that Scottish Ministers can direct that planning authorities must consult with other authorities, bodies or persons on a particular case or class of case before planning permission can be granted. Consultees specified in the DMR may (except regarding consultation in relation to major hazards - paragraphs 3 and 4 of schedule 5) write to a planning authority to indicate that consultation with them is not required on a particular case or class of case or on development in a particular area or areas, and the planning authority will not be obliged to consult on such cases. Regulation 37 contains specific requirements for consulting the Cairngorms National Park Authority.
4.66 The planning authority must give consultees under the DMR at least 14 days to respond before they determine the application. With national or major developments, suitable timescales should be agreed in a processing agreement although such timescales cannot be less than the statutory 14 days. Where a consultee fails to respond within the timescale the planning authority is not obliged to await a response. However, planning authorities will wish to consider the potential impact of proceeding without the views of a consultee.
4.67 As well as the provisions in the DMR, requirements for consultation on planning applications are also set out in directions contained in Scottish Government circulars. There are also requirements in other legislation, such as the EIA Regulations and the Conservation (Natural Habitats &c.) Regulations 1994, applicable in certain cases.
4.68 Where an application is for development straddling local authority boundaries, the local authorities involved should inform the Local Government Boundary Commission Scotland ( firstname.lastname@example.org ). This is to allow the Commission to consider the need to re-align the boundary to ensure clarity about which local government area the resulting development is located. This is especially an issue with housing developments as regards council tax, education provision and other services.
(Section 38A and regulation 27)
4.69 Pre-determination hearings are required in certain cases. Their purpose is to allow the views of applicants and those who have made representations to be heard before a planning decision is taken. The planning authority has discretion over how hearings will operate in its area.
4.70 The opportunity to attend pre-determination hearings must be provided in respect of applications for planning permission and planning permission in principle for major developments which are significantly contrary to the development plan, and for all national developments.
4.71 The planning authority must give the applicant and people who submitted representations to them in respect of the application an opportunity of appearing before and being heard by a committee of the authority. The 1997 Act allows the planning authority to specify the procedures for arranging and conducting hearings. This includes ensuring the matters discussed at a hearing are relevant, efficient and avoid repetition. Attendance, beyond those who have a right to appear before and be heard by the committee, is to be such as the authority consider appropriate. Further guidance on pre-determination hearing procedures is contained in Annex F.
Major developments which are significant departures from the development plan
4.72 Planning authorities are best placed to balance the range of policies and proposals and decide whether a development does or does not accord with the development plan, and are obliged to do so as part of their assessment of planning applications.
4.73 With regard to pre-determination hearings required under section 38A, authorities need to consider whether any departure from the plan is "significant". While this judgement will lie with the planning authority in the first instance, and ultimately the Courts, Scottish Ministers' general expectation is that this applies where approval would be contrary to the vision or wider spatial strategy of the plan.
Referral of Applications to Full Council for Decision
4.74 To add further transparency and accountability to the decision-making framework, cases in which an opportunity to attend a pre-determination hearing must be provided, under section 38A of the 1997 Act, must also be decided by the full council.
4.75 Authorities should have administrative arrangements in place to convene meetings of the full council to make the decisions on these developments. Members should receive the necessary training and advice to enable them to discharge this function.
Notification to Scottish Ministers
4.76 Directions requiring planning authorities to notify to Scottish Ministers specified applications or classes of applications (for example, the direction in Circular 3/2009 on 'Notification of Planning Applications') apply regardless of whether the appointed officer, a planning committee or local review body is determining an application. Where an application subject to such a direction is also subject to requirements on pre-determination hearings, then notification of applications that the planning authority are minded to grant should be made following the decision of the full council.
4.77 Regulation 33 enables Scottish Ministers to direct planning authorities to consider attaching conditions when granting planning permission. We envisage this power being used primarily where applications have been notified to Scottish Ministers and where call-in of an application would not be considered necessary by Scottish Ministers if a condition, which the planning authority had not previously proposed, were to be attached to the consent.
4.78 The effect would be that the planning authority could proceed to grant planning permission if, having considered the matter, the authority (i) informs Scottish Ministers that it has decided to impose such a condition, or (ii) satisfies Scottish Ministers that the condition is not necessary. This could prevent unnecessary delays in the planning process by resolving, a matter of concern without the need for an application to be called in for determination by Scottish Ministers.
Time Periods for Determination
(Regulations 14 and 26)
4.79 It is important that applications are handled and determined efficiently to support certainty and confidence in the planning system. Planning authorities and applicants should not allow applications to drift for long periods with little or no progress being made.
4.80 The following paragraphs describe the statutory time periods for determining applications, the rights to appeal and local review where decisions are not issued, and the ability for applicants and planning authorities to agree extended periods.
4.81 The planning authority have up to 4 months to determine applications for planning permission for national developments and major developments and up to 2 months to determine applications for planning permission for local developments. Applications for approval of matters specified in conditions attached to planning permission in principle are subject to a 2 month time period. These time periods run from the date the last piece of information required by the DMR on content of applications is received, i.e. the validation date (regulation 14).
4.82 The 2 month time period for determining applications also applies where an applicant seeks the approval, consent or agreement of the planning authority as a result of a condition attached to a planning permission (including permission granted by a development order). While no formal application is required under the DMR, applicants still have a right to have a response within the specified time period and, as appropriate, a right to appeal or to seek a local review of the planning authority's decision or its failure to issue a decision.
4.83 Planning authorities must not determine applications before the end of periods allowed for representations to be made (regulation 26(3)(b) refers). These periods are those in relation to neighbour notification, site notices for applications for underground working of minerals, advertisement in local newspapers and notices in relation to applications affecting conservation areas or listed buildings.
4.84 Where an application is subject to environmental impact assessment, the EIA Regulations amend the time periods to the effect that a 4 month period for determination applies. Where the date on which the Environmental Statement ('ES') is submitted is later than the validation date, that 4 month period runs from the date on which the ES and accompanying documents are submitted.
4.85 Where the provisions at regulation 26(3)(b) prevent the planning authority from
granting permission, this does not alter the period for making an appeal or seeking a review on the grounds of non-determination of the application - see the following sections on "Local reviews" and "Appeals to Scottish Ministers".
4.86 Planning authorities and applicants can agree extended periods for determining applications before this right to appeal or seek local review arises - again see the following paragraphs on "Local reviews" and "Appeals to Scottish Ministers". Whether this facility is used or not, planning authorities and applicants should ensure applications do not become inactive over sustained periods and are brought to a conclusion within a reasonable timeframe.
4.87 Once a decision is issued on an application for a local development delegated in accordance with a section 43A scheme of delegation, the applicant can seek a local review of a refusal or a grant with conditions. This must be done within 3 months beginning with the date of the decision notice.
4.88 Where a decision notice on such an application is not issued within the prescribed 2 month period, or 4 month period in EIA cases ('the period allowed for determination of the application'), the applicant has 3 months beginning with the date of expiry of that period within which to seek a local review on the grounds of non-determination of the application. See paragraphs 4.10 and 4.12 on the importance of clarity of the validation date.
4.89 The planning authority and the applicant can agree in writing an extended period for determination, and the 3 months for seeking a review on the grounds of non-determination will begin with the date of expiry of the period of the agreed extension.
4.90 If the review body does not conduct a review sought on the grounds of non-determination within 3 months beginning with the date the requirement to review is made, the application is automatically refused permission. There is then a right of appeal to Scottish Ministers. The time limit for making an appeal is 3 months.
4.91 Where the 3 month period for seeking a review on the grounds of non-determination elapses without a review being sought, the applicant would be able to seek a review of the eventual decision on the application once it is issued.
4.92 Local reviews also apply where the section 43A scheme delegates applications for approval of matters specified in conditions (regulation 12) and other applications for approval, consent or agreement sought as a result of a condition on planning permission relating to local development. Further guidance is set out in the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2013 (SSI 2013/157) and the related circular (5/2013).
Appeals to Scottish Ministers
4.93 In any other case (for example, a local development not delegated to an appointed officer, a national development or a major development), the applicant has a right of appeal to Scottish Ministers against the decision of the planning authority on the application. Such an appeal must be made within a period of 3 months beginning with the date of the decision notice.
4.94 Where a decision notice on such an application is not issued within the appropriate 2 month or 4 month time period ('the period allowed for determination of the application'), the applicant may appeal to Scottish Ministers within 3 months beginning with the date of expiry of that time period or of any extended period agreed upon in writing between the applicant and the planning authority. As with local reviews, if no appeal was sought on the grounds of non-determination, the applicant would have a right of appeal against the eventual decision. See paragraphs 4.10 and 4.12 on the importance of clarity of the validation date.
4.95 More information on appeals can be found in the Town and Country Planning (Appeals) (Scotland) Regulations 2013 (SSI 2013/ 156) and the related Circular 4/ 2013.
4.96 With regard to applications for:
- planning permission;
- planning permission in principle;
- approval of matters specified in conditions attached to planning permission in principle; or
- any other consent, agreement or approval required by a condition attached to planning permission (i.e. including those that do not require a formal application under regulations 9, 10, 11 or 12),
the planning authority, within the prescribed time periods for determining the application (see paragraph 4.79 - 4.86 above), must:
(a) provide a decision notice to the applicant or their agent; and
(b) inform every person who made written representations (and provided an address, including an e-mail address) on the application of their decision and where a copy of the decision notice is available for inspection.
4.97 Where 3 or more people have made representations in a single document, the planning authority is only obliged to notify the person who sent the document where they can readily identify that person from the document. Where that is not possible, the planning authority would only be required to notify the first named person on the document for whom an address (including an e-mail address) is provided.
The contents of the decision notice
(Section 43(1A), regulation 28 and schedule 6)
4.98 Section 43(1A) of the 1997 Act requires the planning authority to include in each decision notice issued to an applicant:
- the terms of the planning authority's decision;
- any conditions to which that decision is subject; and
- the reasons on which the authority based that decision.
4.99 In addition, under regulation 28, the decision notice to the applicant or agent on applications for planning permission or planning permission in principle must include:
- General Information - a description of the proposed development (including a description of any variation to the original proposal agreed with the applicant under section 32A of the 1997 Act); a description of the location including a postal address (where applicable); and the reference number of the application. The notice must also include identification of the plans and drawings showing the proposed development irrespective of whether the application has been approved, approved subject to conditions or refused;
- Duration of planning permission - see paragraphs 4.103 - 4.111. The decision notice must include a statement on the effect of section 58 or 59 on duration or, where a planning authority has directed that different time periods to those in sections 58 and 59 should apply, the effect of such a direction;
- Section 75 planning obligation - where such an agreement is to be entered into, the decision notice must indicate where the terms or a summary of such terms can be inspected.
4.100 Decision notices on applications for approval of matters specified in conditions attached to planning permission in principle shall, in addition to the minimum set out in paragraph 4.99 above, include:
- a description of the matter in respect of which approval, consent or agreement has been granted or refused;
- the reference number of the application; and
- the reference number of the application for planning permission in respect of which the condition in question was imposed.
4.101 Where a decision on any application is made to refuse or to approve subject to conditions, the decision notice must be accompanied by either:
- notification of the right to a local review by the planning authority (Form 1 of schedule 6 to the DMR); and
- a statement drawing attention to information on how to seek a local review: or
- notification of the right to appeal to Scottish Ministers (Form 2 of schedule 6 to the DMR; and
- a statement drawing attention to where to find out more information on how to make an appeal.
Notice of Requirements for Notices
(Sections 27A, B and C and regulations 40 and 41)
4.102 Paragraphs 5.1 to 5.11 describe requirements for developers to submit notices of initiation of development and of completion of development to the planning authority and, in certain cases, have a notice on-site during development. Planning authorities are required under the 1997 Act, when granting planning permission, to give applicants notice of the requirement for a notice of initiation of development (it also makes sense to advise them of the requirements for notice of completion of development and, where appropriate, for on-site notices). The decision notice would be an appropriate mechanism for giving the applicant such notice.
Duration of Planning Permission
4.103 The following paragraphs set out the statutory default time periods on duration of planning permission and the powers for planning authorities to set alternative time periods. Planning authorities should consider carefully the nature of the development and issues such as the prevailing economic climate and reach a view on whether the statutory default time limits are appropriate in the circumstances of the case or whether they should specify a different period.
4.104 It is open to applicants to make a case to the planning authority to use the available discretion to set a different time period for duration. In the case of planning permission in principle, a number of the periods for starting development and applying for approval required by conditions on the permission can be varied by direction (see Annex H).
4.105 Section 58(1) specifies that planning permission will expire after 3 years from the date on which it is granted unless the development to which it relates has been started.
4.106 The planning authority may in granting planning permission direct that a longer or shorter period than 3 years may apply. Although these time periods are not a condition to the planning permission, it is open to the applicant to appeal to Scottish Ministers against, or seek a local review by the planning authority of, the 3 year time period, or any different period directed by the planning authority, as if it were such a condition.
4.107 Whilst there is no standard form for such a direction, planning authorities may wish to consider writing to the applicant citing the relevant powers and specifying the time periods for the duration of permission. The decision notice must include reference to the effect of section 58 (or section 59 - see following paragraphs) or details of any direction.
Planning Permission in Principle
4.108 Planning permission in principle is permission granted in accordance with the DMR and subject to a condition (or conditions) that the development in question will not be begun until certain matters have been approved by the planning authority. Planning permission in principle will lapse unless development is begun within 2 years from the grant of the last such approval.
4.109 Applications for approval required before development can be begun must be made within 3 years from the grant of planning permission in principle, or, if later, within 6 months from when an earlier application for approval for the same matters was refused or dismissed on appeal or review. Where the latter 6 month period applies, only one application for such approval can be made after 3 years from the grant of planning permission in principle. Note that these time limits for applying for approval apply only where the condition requires approval to be obtained before development can be begun (see Annex H). There is no statutory time limit for applying for other approvals or agreements required by conditions on planning permission in principle.
4.110 Moreover the planning authority can direct that different time periods apply in relation to the 3 year period for making an application for approval or the 3 year period after which only one more application for approval can be made. The authority can also direct that a different time period applies for the 2 year period after the final approval is given and within which development must be started. Directions can also specify different time periods for different parts of the development. Such directions can be made only at the point when planning permission is granted. See Annex H for more information. An applicant can, as appropriate, appeal to the Scottish Ministers against or seek a local review by the planning authority of time periods substituted by a direction, and/or the statutory 2 year period within which development must be started.
4.111 Authorities should be mindful that some major developments, particularly those involving multiple interests, will benefit from longer timescales than the statutory 3 year period for applying for certain approvals.
Marine Fish Farming
4.112 This regulation applies the DMR to applications for marine fish farming development subject to certain modifications.
4.113 Regulation 7 is modified so that advertising of public events for pre-application consultation is required in the district of the planning authority for the marine planning zone in which the marine fish farm development is proposed, rather than in the locality in which the proposed development is situated.
4.114 Regulation 9 on the content of planning applications is modified so that the requirement to give the postal address of the site or a description of the location of the land is changed to require a description of the location of the development. Similarly, the requirement to provide a plan sufficient to identify the land to which the application relates and neighbouring land is modified to a plan sufficient to identify the location of the development. The requirement for a plan identifying any neighbouring land owned by the applicant does not apply.
4.115 The requirements in regulation 13 for a design and access statement are also modified to the extent that only a design statement would be required for marine fish farming developments, and only those which are major developments or which are a local development in a World Heritage Site, National Scenic Area or within the site of a scheduled monument. A design statement is not required for alterations or extensions to an existing marine fish farm.
4.116 Regulations 10 (Applications for Planning Permission in Principle), 18 (Notification by the Planning Authority) and 41 (Display Notices) are omitted in relation to marine fish farming developments.
4.117 Regulation 20 (Publication of application by the planning authority) is modified to the effect that all marine fish farm development applications require to be advertised (given the lack of neighbour notification).
4.118 Schedule 2 is amended so that entries in registers referring to the address or location of the land are changed to a description of the location of the development.
4.119 Schedule 5 on consultation is modified to refer to community councils whose area is adjacent to the marine planning zone in which the proposal is located, rather than community councils in whose area the proposal is located.
4.120 Regulation 36(8) makes clear that where an application relates in part to marine fish farm development and in part to other development, the modifications apply only for the purposes of that application to the extent to which it relates to marine fish farming.
Cairngorms National Park
4.121 Regulation 37(1) modifies the validation date under regulation 14 to the date on which an application is called in by the Cairngorms National Park Authority. Consequently the time periods for determination of the application under regulation 26 run from this later date.
4.122 The planning authority is to notify the National Park Authority within 5 days beginning with the validation date where an application for development in the area of the National Park Authority is submitted.
4.123 The planning authority is required to consult the National Park Authority where it believes the development which is the subject of the application is likely to affect land in the area of the National Park.
Applications - National Security
4.124 Regulation 38 specifies that withholding information which the applicant considers to be national security sensitive from an application does not invalidate that application. This is subject to the requirement that a written statement is included explaining that this national security consideration (as defined in regulation 38) is the reason for not submitting the information. If the planning authority are unable to determine the review without the withheld information, then the case could be appealed on the grounds of non-determination or called in for determination by Scottish Ministers, and special procedures for dealing with national security sensitive information applied.