Partial Business and Regulatory Impact Assessment
Title of Proposal
The Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2016
Purpose and intended effect
The Scottish Government's aim is to have a proportionate, efficient and effective planning system that contributes to the overall objective of increasing sustainable economic growth. Part of this is ensuring that we have an appropriate level of planning control, in particular applications for planning permission are not required unnecessarily. The purpose of this consultation is to seek views on proposed amendments to Class 67 of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (the GPDO). The GPDO grants general planning permission across Scotland for certain developments for which it removes the need to apply for planning permission. Class 67 specifically provides permitted development rights for electronic communications code operators  . This permission is often referred to as permitted development rights ( PD rights) and is subject to certain limitations and conditions.
The proposed amendments to the GPDO set out various extensions and amendments to Class 67.
Class 67 has been subject to a number of changes since its introduction, the most recent being in 2014. The Scottish Government consider, however, that with the increasing importance of digital connectivity, the changing nature of technology and changes to PD rights in other parts of the UK, a further look at Class 67 PD rights, with a view to both current and, where possible, future needs, is necessary.
To this end the Scottish Government commissioned 'Research on Permitted Development Rights and Planning Guidance for Electronic Communications Infrastructure'  . This research, conducted by Bidwells LLP and FarrPoint Ltd made recommendations for further specific changes to extend Class 67 PD rights and identified scope for potential additional changes, subject to further consideration.
Rationale for Government Intervention
World class digital connectivity is vital to Scotland's economy and is a priority for the Scottish Government. We have committed to using the powers available to Scottish Ministers, including through the planning system, to improve the case for sustainable investment in all forms of digital infrastructure in Scotland. By further relaxing planning controls the proposed changes can help to incentivise development, for example by improving certainty of outcome for developers and reducing timescales. PD rights can also help to free up resources within planning authorities.
- Within Government
We have consulted with colleagues in Scottish Government Legal Directorate and those with policy interests in natural heritage and built heritage issues as well as with the Scottish Futures Trust and Transport Scotland.
- Public Consultation
The draft legislation will be subject to public consultation and this draft BRIA will form part of that consultation.
In addition, comments will also be sought directly from key stakeholders including within the Telecommunications industry, as well as with Scottish Natural Heritage, Historic Environment Scotland and the National Parks Authorities, COSLA and Heads of Planning Scotland.
A number of businesses and business organisations were invited to comment and to submit views to inform the research recommendations, as were planning authorities and statutory and other bodies with interests in the built heritage, natural heritage and the environment.
We will undertake further engagement with business to seek their views on the draft BRIA. Relevant comments will be incorporated into the final BRIA.
Option 1 - Do nothing
Option 2 - Implement the proposed amendments to the GPDO.
- Option 2a) We are also inviting views through the consultation paper on the scope to expand PDR in certain 'designated' areas, including for new ground based masts.
Sectors and groups affected
PD rights mainly affect directly developers, landowners, community groups and planning authorities. Landowners and developers may include individual persons as well as business interests. Where PD rights encourage development, then the wider public can also experience any associated benefits and/or any negative impacts of the development itself.
There would be no additional benefits associated with option 1
Extending PD rights will help to improve certainty of outcome for developers, and can help to reduce timescales for securing any necessary permissions or approvals. By removing more proposals from the planning application process, the proposals will also help free up resources for Planning Authorities. Where prior approval is required, these benefits may be offset in part by the need to submit an application for prior approval.
In addition, extending PD rights could encourage development and improve digital connectivity, with benefits for businesses and the general public.
The research has identified 405 planning applications for 'telecommunications development' in the period 2013-14 and 2014-15. Of these it is not clear how many would be removed from the planning application process as a direct result of the proposals.
In sampling 75 such applications in 2013-14 and 78 in 2014-15, the researchers noted a split between types of development as follows: Alteration or replacement of existing ground based masts 15%; installation of new ground based masts 21%; installation, alteration or replacement of rooftop apparatus 8%; and equipment housing 56%. Extrapolating these figures suggests in the two year period being considered there were around 85 applications for ground based masts. The industry suggests that for the most part they make applications for masts around 15 metres height as that has been the norm established by PD rights in England and, prior to 2001, in Scotland. We expect that, if these numbers and trends continue, the vast majority of these masts would in future go through a prior approval process, if the draft legislation is implemented in the format consulted on, with benefits to industry arising from the increased certainty derived from PD rights. It is difficult to predict however, what the level of activity as regards new ground based masts will be once PD rights are in place.
There would be no additional costs associated with option 1.
Generally the proposals will extend existing PD rights or create new PD rights, and should therefore give rise to cost savings. It has been suggested that, certainly initially, savings may be partially offset by some indirect costs to business in ascertaining whether or not development is permitted development, and in complying with planning enforcement were any work inadvertently carried out which subsequently transpires not to benefit from PD rights. However, such costs are anticipated to be minimal and will naturally fall away as developers become familiar with the changes. We have also committed to providing guidance to accompany the new legislation, which should further reduce the likelihood of any such errors.
Where PD rights are extended to cover new ground based masts, it is proposed this will require a prior approval, for which there will be a fee. The consultation seeks views on an appropriate level of fee.
There may also be less tangible costs where development is allowed without an application for planning permission being considered which gives rise to impacts on visual and environmental amenity, with associated impacts on businesses which rely on such amenity. However, the proposals include a requirement for Prior approval of the siting and external appearance for new ground based masts, providing for planning authority control over the most potentially intrusive of developments allowed under PD rights.
In seeking views on further extensions to PD rights in designated areas, we are also seeking views on any safeguards required to protect the environment, amenity and heritage.
Costs by sector
Developers - The proposals will extend existing PD rights or create new PD rights, and will therefore give rise to cost savings.
Public sector - planning authorities will not receive any fee income for development that takes place under PD rights, except where there is an associated fee for any prior approval. There may initially be some additional administrative burden arising initially due to unfamiliarity with the new procedures though this should decrease with time.
Scottish Firms Impact Test
The proposals are not expected to impact significantly more on some firms than others nor restrict new entrants to the market. The legislation does not place any additional burden, over and above what is already in place, on businesses. Indeed, it is expected that there will be a net benefit to business.
Test run of business forms
No new forms will be introduced as a result of this legislation therefore there is
no requirement for a test run. The draft legislation does not require the applicant to submit a form, simply stating the information that has to be submitted. Prior approval already exists for certain PD rights so existing (non- statutory) forms could be adapted should there be a need to do so.
Legal Aid Impact Test
We do not believe that the proposed regulations would create any additional pressures on legal aid resources.
Enforcement, sanctions and monitoring
The Amendment Order would not create any additional need for enforcement or monitoring of planning control, as there is currently a requirement for planning authorities to monitor development within their area.
Reaction to how the changes have worked in practice and any particular areas of concern or uncertainty are likely to become quickly apparent through representations made by planning authorities, community bodies and business.
Summary and recommendation
- Improved certainty for businesses, allowing them to plan expansions and roll-out, with greater confidence.
- Reduced costs for business where applications for planning permission are no longer required or are replaced by applications for prior approval. Reduced timescales for small-scale works.
- Fewer planning applications to planning authorities allowing them to concentrate on other applications which may be more significant or controversial in terms of their scale and impact.
- Indirect administrative cost to planning authorities in handling queries in relation to PD rights. Anticipated to be minimal and likely to decrease over time.
- Potential increase in enforcement work due to misunderstanding of new PD rights. Anticipated to be minimal and decrease over time.
Declaration and publication
I have read the business and regulatory impact assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. I am satisfied that business impact has been/will be assessed with the support of businesses in Scotland.
Minister for Local Government and Housing
Email: Alan Cameron firstname.lastname@example.org