Supplementary Guidance - status
135. Section 22 of the Act and Regulation 27 deal with Supplementary Guidance - often referred to as 'statutory' Supplementary Guidance. Scottish Ministers envisage that to allow plans themselves to focus on vision, the spatial strategy, overarching and other key policies and proposals, that much detailed material can be contained in Supplementary Guidance.
136. Supplementary Guidance can be adopted and issued by a strategic development planning authority in connection with a SDP, or by a planning authority in connection with a LDP. Any such guidance will form part of the development plan, and have that status for decision making in line with section 25 of the Planning Act.
Supplementary Guidance - suitable topics / content
137. In deciding whether a policy area or level of detail is appropriate for inclusion in Supplementary Guidance rather the SDP or LDP, planning authorities should consider whether it requires the level of scrutiny associated with the Examination.
138. Regulation 27(2) requires Supplementary Guidance to:
- cover topics specifically identified in the SDP or LDP as being topics for Supplementary Guidance; and
- be limited to the provision of further information or detail in respect of policies or proposals set out in the SDP or LDP. There must be a sufficient 'hook' in the SDP or LDP policies or proposals to hang the Supplementary Guidance on, in order to give it statutory weight.
139. Suitable topics for supplementary guidance and those that should be included in the plan itself include:
Matters that should
not be included in Supplementary
Suitable topics for Supplementary Guidance, provided there is an appropriate context in the plan, include:
Supplementary Guidance - preparation procedures
140. Supplementary Guidance may be prepared and adopted alongside the SDP or LDP, or subsequently.
141. Authorities must publicise the Supplementary Guidance they have drafted, make people who may wish to comment aware of the guidance and give them an opportunity to comment (Section 22(3)-(4)), setting a date before which representations may be made. The authority must then consider any timeous representations made to it on the proposed Supplementary Guidance (Section 22(5)). The content of Supplementary Guidance does not need to be scrutinised at Examination given that the principle of the policy or proposal will already have been scrutinised and subsequently included in the SDP or LDP - the Supplementary Guidance will be limited to providing further detail on that.
142. Section 22 requires the authority to send Scottish Ministers a copy of the guidance they wish to adopt. At that time authorities must also send Ministers a Statement setting out the publicity measures they have undertaken, the comments they received, and an explanation of how these comments were taken into account (Regulation 27(1)).
143. Given that the principle of the policy or proposal will already have been established (see paragraph 141), scrutiny by Scottish Ministers at the pre-adoption stage is likely to focus more on ensuring that the principles of good public involvement and a proper connection with the SDP or LDP have been achieved consistently, rather than on detailed policy content. However, Ministers will not wish to allow supplementary guidance to be adopted which they consider to be significantly contrary to Scottish Planning Policy.
144. After 28 days have elapsed, the authority may adopt the Supplementary Guidance unless Scottish Ministers have directed otherwise (Section 22(6)-(8)).
145. Supplementary Guidance adopted in connection with a plan falls when that plan is replaced. But if it remains up-to-date, authorities may readopt it in connection with the replacement plan after consultation, provided a proper connection with the new plan remains.
Non-Statutory Planning Guidance
146. Authorities may also issue non-statutory planning guidance without going through the procedures for Supplementary Guidance. Scottish Ministers do not expect authorities to promote all of their current non-statutory planning guidance to become Supplementary Guidance - much of this can continue to provide useful interim or long-term guidance.
147. Non-statutory planning guidance may be used to provide detail on a range of subject areas (excluding those set out in the table above which should be included in the plan itself). One of the benefits of non-statutory guidance is that it can be updated quickly as required. It can also be prepared where an issue arises during the lifecycle of the plan, and there is therefore not the appropriate hook in the plan to allow the supporting guidance to form statutory Supplementary Guidance. It could be used in this way to address various issues, for example in relation to an emerging technology which the authority wants to provide some planning guidance on, or in relation to a windfall site for which the Council wish to provide a design framework or masterplan.
148. This non-statutory guidance should not be termed Supplementary Guidance and will not form part of the development plan. However, the Council's adoption of it will give it a degree of authorisation and it may be a material consideration in decision making.
Environmental Assessment of Supplementary Guidance
149. Supplementary Guidance is subject to SEA, and HRA consideration. Planning authorities should be aware that non-statutory planning guidance, is not a "land use plan" under Part IVA of the Habitats Regulations  , but they should have regard to the generality of provisions under regulations 47 and 48 of those Regulations. In determining whether a plan falls within regulation 48, and therefore whether it should be subject to Habitats Regulations Appraisal, authorities will wish to have regard to European Commission guidance on 'Managing Natura 2000 Sites; The Provisions of Article 6 of the 'Habitats' Directive 91/43/ EEC'  . Sections 4.3 - 4.3.2 refer. In particular, the guidance notes that:
"…the Directive does not circumscribe the scope of either 'plan' or 'project' by reference to particular categories of either. Instead, the key limiting factor is whether or not they are likely to have a significant effect on a site".
150. Authorities should also be aware that a higher tier plan appraisal will not obviate the need for any lower tier plan to also be subject to Habitats Regulations Appraisal. Similarly, a lower tier plan appraisal will not remove the need for the higher tier plan to also be appraised. For example, an appraisal of a Local Development Plan does not itself obviate the need for a masterplan or development brief to be appraised. As the Advocate General concluded in her opinion in the case Commission v UK  , "adverse effects on areas of conservation must be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan. This assessment is to be updated with increasing specificity in subsequent stages of the procedure".
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