Planning - permitted development rights review - phase 2: consultation

1. Introduction

Overview

1.1. The Scottish Government is carrying out a review of permitted development rights (PDR) as part of our wider planning reform programme. The review is being taken forward in phases, with each phase looking at the potential for new and extended PDR for specific development types.

1.2. This consultation document sets out – and seeks views on – proposed changes to PDR, as well as the use classes order, which are being considered through Phase 2 of the review. Our Phase 2 proposals relate to:

• Electric vehicle charging infrastructure
• Changes of use in centres and other locations
• Port development

Previous consultations

1.3. This Phase 2 consultation follows on from the November 2019 consultation on the overall PDR work programme and associated Sustainability Appraisal of options. An independent analysis of responses to the consultation on the Proposed Work Programme and Sustainability Appraisal was published on 30 September 2020. The responses informed the development of the detailed proposals for change we are consulting on now.

1.4. In October 2020 we consulted on Phase 1 measures relating to digital telecommunications infrastructure, agricultural development, peatland restoration and active travel. An independent analysis of responses to the Phase 1 consultation was published on 18 December 2020. The measures taken forward following the Phase 1 consultation came into force on 1 April 2021^[1].

1.5. This Phase 2 consultation is itself accompanied by an update to the 2019 Sustainability Appraisal (see Annex A), and an updated Draft Strategic Environmental Assessment (SEA) Post Adoption Statement.

This consultation

1.6. We are seeking feedback on the proposed changes outlined in Chapters 2, 3 and 4 of this document and the additional sustainability appraisal work which has been carried out. Views are also sought on the draft assessments that accompany the proposals (see Chapter 5).

1.7. This consultation runs until 3 August 2022, which is the closing date for responses. Chapter 6 of this document explains how to respond to the consultation. Feedback from respondents will inform the further refinement of proposals and the preparation of the regulations that would bring any changes flowing from this consultation into force. We anticipate that such regulations would be laid in the Scottish Parliament later in Autumn 2022.

Permitted Development Rights and the Use Classes Order

1.8. PDR refer to those forms of development which are granted planning permission through national legislation, meaning they can be carried out without an application for planning permission having to be submitted to – and approved by – the relevant planning authority. Specifically, PDR are contained within the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 ("the GPDO").

1.9. In most cases, PDR are subject to conditions and limitations specified in the GPDO. These may for example specify the maximum size or scale of what is permitted, restrict or dis-apply the rights in certain locations (e.g. conservation areas, national scenic areas etc.) or provide that the PDR only apply to certain developers (e.g. local authorities, electronic communications operators or statutory undertakers). Proposed developments that do not fall within the scope of PDR, including any conditions, must be the subject of a planning application.

1.10. The definition of "development" under planning legislation^[2] includes making a material change to the use of land or buildings^[3]. Material changes of use therefore require planning permission. However, the Town and Country Planning (Use Classes) (Scotland) Order 1997 (UCO) groups together various land uses with broadly similar planning impacts into separate "use classes". Legislation^[4] provides that a change of use within a use class does not constitute development for planning purposes, and so planning permission is not required.

1.11. Both PDR and the UCO have the effect of allowing certain works or changes of use to take place without the need to seek planning permission from the planning authority. In doing so, they can help provide certainty for developers and save the time and expense associated with preparing a planning application. They can also reduce burdens on planning authorities, allowing them to focus resources on more complex and/or strategic cases.

1.12. The key difference is that the UCO takes specified changes of use entirely out of the scope of planning control by providing that they do not involve development. PDR, on the other hand, grant permission for specified forms of development (including certain changes of use) and can therefore be tailored through conditions and limitations.

1.13. The planning flexibilities provided by PDR and the UCO apply nationally. That is why PDR typically relate to relatively minor, uncontroversial developments or changes associated with an existing development. They tend to cover situations where it is unlikely that planning permission would be refused or where standardised conditions are likely to be used, and therefore, where consideration on the principle of the development by a planning authority on an individual basis is unlikely to add value to the process.

Masterplan Consent Areas

1.14. Part 2 of the Planning (Scotland) Act 2019 contains powers that, once in force, would allow planning authorities to designate Masterplan Consent

Areas ("MCA"). The Act provides that a MCA can grant planning permission (and other consents) for the type(s) of development identified in a masterplan scheme, within the specific area covered by the scheme.

1.15. These powers are intended to provide authorities with a new tool to proactively promote local growth and investment. They have the potential to provide localised planning flexibilities which are tailored to the specific needs and circumstances of an area. For this reason, MCA may be a more appropriate mechanism than PDR or the UCO in some instances. This is explored in more detail in this consultation. Our updated planning reform programme (October 2021) indicates that work to implement MCAs will be progressed during the course of 2022.

Other General PDR Provisions

1.16. The GPDO contains a number of important restrictions on PDR. For the purposes of this consultation, the key restrictions to be aware of are:

• PDR would not apply where an environmental impact assessment (EIA) would be required under The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 (legislation.gov.uk).
• An additional approval (from the planning authority) and appropriate assessment would be required for works likely to have significant effects on a European Site – under The Conservation (Natural Habitats &c.) Regs 1994.
• No authorisation for any development other than development permitted by Parts 9 (repairs to private roads and private ways), 11 (development under local acts or private acts or orders) and 24 (toll road facilities) and Class 31 (roads authority development) of the GPDO, which requires the formation, laying out or material widening of a means of access to an existing road which is a trunk road or a classified road or creates an obstruction to the view of persons using any road used by vehicular traffic, so as to be likely to cause danger to such persons.

1.17. Article 4 of the GPDO contains provisions which allow planning authorities or Scottish Ministers to make Directions (commonly known as Article 4 Directions) removing PDR for particular types of development or classes of development. For example, Article 4 Directions limiting permitted development are sometimes used by planning authorities to restrict development in conservation areas.