Publication - Consultation paper

Local development planning - regulations and guidance consultation: part C - local development planning - draft guidance

Published: 17 Dec 2021

Part C of the local development planning - regulations and guidance consultation sets out: (1) the overall aims and expectations for new style LDPs; (2) the process of how to achieve a new style plans; (3) and detailed thematic guidance on how new style plans are to implement policies in NPF4.

Local development planning - regulations and guidance consultation: part C - local development planning - draft guidance
Section 2 - Process

Section 2 - Process

26. This section sets out the process for preparing a Local Development Plan (LDP) under the Town and Country Planning (Scotland) Act 1997, as amended by the Planning (Scotland) Act 2019. It replaces Circular 6/2013 on Development Planning. It provides a route through the stages of the process using the following headings:

Purpose – this will outline the contribution to a plan being deliverable, place-based and people-focused.

Legislative Requirements – outlining the statutory requirements of the 1997 Act as amended and referencing secondary regulations (subject to this public consultation).

Implementation – outlining further guidance on the Scottish Ministers’ expectations for how legislative requirements should be put into practice.

Responsibilities – outlining key stakeholders involved*, including statutory requirements for engagement. Further detail on effective community engagement will be set out in separate guidance.

Bigger Picture – outlining related processes and activities*.

*Suggestions in the guidance should not be seen as exhaustive – local circumstances may inform other stakeholders or activities being involved.

27. Whilst this section focuses on the process for preparing plans, that preparation should be carried out with the intention that the plans will be delivery focused, place-based and people-centred, as outlined in section 1 of this guidance. LDPs should be:

  • a toolkit to support delivery of development;
  • presented as a collation of site briefs and masterplans with minimal policy wording, looking ahead to 20 years in the future; and
  • prepared collaboratively.

Local Development Planning

Purpose

28. The purpose of planning as applied to development planning by section 3ZA of the 1997 Act (as amended) is to manage the development and use of land in the long term public interest. It does this by setting out how our places will change into the future, including where development should and shouldn’t happen. Development Plans consider where our new homes and workplaces will be built, how services and facilities will be provided, such as education and travel, and identify places we value that we should protect and enhance. Plans therefore have a role in co-ordinating and aligning many different sectors and interests to achieve the desired change for places and communities.

29. The statutory ‘Development Plan’ comprises the National Planning Framework (NPF) and the Local Development Plan (LDP)[1]. The Development Plan is the statutory basis for deciding planning applications, in that applications must be determined in accordance with the plan unless material considerations indicate otherwise.

30. This guidance focuses on the preparation process of the LDP.

Legislative Requirements

31. Planning authorities are required by law to prepare an LDP for all parts of their district (section 16(1)). They may prepare more than one LDP for the same area, as long as the purposes of the plans are different (section 16(3)). The boundaries for such different plans need not be the same (section 16(4)). Two or more planning authorities may prepare a joint LDP applying to part or all of their areas (section 16(5)).

32. LDPs must be prepared at intervals of no more than 10 years or when required by the Scottish Ministers (section 16(1)(a)). Planning authorities must keep the plan under review and in doing so, monitor changes in a range of characteristics set out in legislation (section 16(1)(b), section 16(8)(a)). These characteristics are set out at Annex B (section 15(5)). They must also monitor the impact of policies and proposals contained in LDPs (section 16(8)(b)).

33. In preparing the LDP planning authorities have a duty to have regard to their adopted Regional Spatial Strategy (section 14ZB(2)) and must take into account the plans listed below (section 16(2)(a)):

  • the NPF;
  • any Local Outcomes Improvement Plan for the area, and
  • any registered Local Place Plan for the area.

34. The LDP must contain a Spatial Strategy that is a detailed statement of the planning authority’s policies and proposals as to the development and use of land (section 15(1)(a)). This must take account of the matters listed in Annex B. The LDP can contain any other matter which the planning authority considers is appropriate to include (section 15(1)(c)) but it must include:

  • targets for meeting the housing needs of people living in the area to which it relates (section 15(1A));
  • a statement of the planning authority’s policies and proposals as to the provision of public conveniences (section 15(2A)), and
  • a statement of the planning authority’s policies and proposals as to the provision of water refill locations (section 15(2B)).

35. In preparing the LDP planning authorities must have regard to the following matters, as well as to any other information and considerations that appear relevant to them (section 16(2)(c)).

  • the desirability of preserving disused railway infrastructure for the purpose of ensuring its availability for possible future public transport infrastructure (section 16(2)(aa));
  • the list prepared under section 16E of the 1997 Act of people in the authority’s area seeking land for self-build housing (section 16(2)(ab)); and
  • any such information and considerations as may be prescribed (section 16(2)(b)).

36. Regulations set out additional information and considerations that regard must be given to (draft regulation 8(1)). These include:

  • the resources available or likely to be available for carrying out the plan policies and proposals;
  • any other LDP prepared for a different purpose in the area;
  • any LDP for an adjoining area;
  • any Regional Spatial Strategy prepared for the area, or an adjoining area;
  • any regional transport strategy relating to the area;
  • any local transport strategy relating to the area;
  • any river basin management plan relating to the area;
  • any Local Housing Strategy relating to the area;
  • the national waste management plan; and
  • where the LDP adjoins land in England any relevant plans.

37. Regulations also require regard to be had to objectives of preventing major accidents and limiting the consequences of accidents for human health and the environment (draft regulation 8(2)(a)), particularly in relation to: establishments[2] covered by the Directive on the control of major accident hazards (draft regulation 8(2)(b)(i)); protecting areas of particular natural sensitivity (draft regulation 8(2)(b)(ii)); and taking additional technical measures so as not to increase risks (draft regulation 8(2)(b)(iii)).

38. The LDP must include a proposals map that describes and illustrates the policies and proposals of the plan spatially (draft regulation 6(1)), and it must be sufficiently detailed to identify the location of proposals for development (draft regulation 6(2)). Other maps, diagrams, illustrations and descriptive matter thought appropriate by the planning authority can also be included.

39. Where the LDP contains plans, policies or proposals for development on land owned by the planning authority, the plan must include as an appendix a schedule which identifies that land, and references the relevant plans, policies or proposals (section 15(3)).

Part B of this consultation, the Proposals for Regulations, propose changes to legislative requirements relating to the preparation and content of LDPs.

Implementation

40. There are 3 key parts to local development planning, as shown in Figure 4.

  • Evidence and the gathering of data and information,
  • Plan preparation and
  • Delivery of the plan.
Figure 4 – Local Development Plan Process: Evidence, Plan, Deliver

41. The figure shows that plan preparation is one part of development planning activity. Early evidence gathering and later implementation of the policies and proposals also contribute to achieving the intended outcomes. The 10 year period for review of an LDP includes ensuring a robust evidence base and delivery of the plan. Whilst the adoption of a plan is a significant milestone, it is not the end point, it is a step towards its delivery.

42. The LDP should not take 10 years to prepare. It is expected that plan preparation should take around 3-4 years, allowing more time for a focus on the delivery of the plan in the remaining years and subsequent monitoring and evidence gathering to inform the next plan.

43. Local guidance can be prepared on key matters to support the LDP. It would be a material consideration to be afforded weight as to be determined by the decision maker.

44. The diagram shows 5 stages in plan preparation:

  • Evidence Report
  • Gate Check
  • Proposed Plan
  • Examination and
  • Adoption and Delivery.

45. There are also additional statutory duties to prepare a Development Plan Scheme and a Delivery Programme, and to invite communities to prepare Local Place Plans. These tools can support project planning, stakeholder engagement and community involvement in the plan. This guidance provides further information on each of these duties and stages.

Responsibilities

46. It is the responsibility of the planning authority to prepare the LDP. A wide range of stakeholders should be encouraged to collaborate, including within a local authority and with wider sectors and groups. This is likely to include:

  • an authority’s economic development, transport, education and housing teams;
  • local communities, community councils and relevant communities of interest;
  • voluntary organisations and the third sector;
  • business owners, landowners and developers;
  • infrastructure and service providers, including public health teams and healthcare providers and public transport providers;
  • national and regional agencies.

47. Regulations set out those agencies referred to as ‘key agencies’. It includes:

  • Historic Environment Scotland;
  • Scottish Natural Heritage, known as Nature Scot;
  • Scottish Environmental Protection Agency;
  • Scottish Water;
  • Scottish Enterprise (only in its area of jurisdiction);
  • Highlands and Islands Enterprise (only in its area of jurisdiction);
  • South of Scotland Enterprise (only in its area of jurisdiction);
  • Regional Transport Partnerships (only in relevant areas of jurisdiction);
  • Crofters Commission (only in crofting counties); and
  • Health Boards.

Part B of this consultation, the Proposals for Regulations, propose changes to legislative requirements relating to Key Agencies at paragraph 32.

48. Whilst forming parts of the Scottish Government, the following should have the same level of involvement in the development planning process:

  • Transport Scotland;
  • Scottish Forestry; and
  • Marine Scotland.

49. As a matter of good practice, the planning authority is expected to engage with a range of people at all stages in the preparation of the LDP. The authority should engage with the public at large and seek the views of particular organisations and societal groups, including key agencies, children and young people, disabled persons, Gypsy/Travellers and community councils.

50. Detail on requirements to engage with groups at a particular stage is outlined later in this guidance. Statutory guidance on effective community engagement is currently being prepared. This will be subject to public consultation in due course.

Bigger Picture

51. There are a number of different assessments which must be undertaken to support the preparation of the LDP. These assessments are an integral part of the plan making process and should inform and be informed by the plan as it is prepared. They include:

  • Strategic Environmental Assessment;
  • Public Sector Equality Duty Assessment;
  • Fairer Scotland Duty Assessment;
  • Island Communities Impact Assessment, where appropriate; and
  • Habitats Regulations Appraisal
Strategic Environmental Assessment

52. Strategic Environmental Assessment (SEA) is a statutory requirement that aims to ensure the environment is a primary consideration in the preparation of qualifying public plans, programmes and strategies. The Environmental Assessment (Scotland) Act 2005 requires those preparing qualifying plans, including the LDP, to undertake an SEA. As well as being a statutory requirement, SEA can be beneficial when preparing an LDP, offering a better understanding to the plan’s environmental context and providing a means to taking steps to avoid, mitigate or reduce significant adverse effects, where possible, or enhance positive ones. Improving the consultation process lies at the heart of SEA, ensuring the public and those who will be consulted are provided with the relevant environmental information relating to the plan to allow them to make informed choices.

53. Annex C includes an overview of the SEA process alongside the LDP plan preparation stages for context.

Public Sector Equality Duty Assessment

54. The Equality Act 2010 (section 149) places a duty on public authorities to: eliminate discrimination, harassment and victimisation; advance equality of opportunity; and to foster good relations between persons who share a protected characteristic (age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation) and those who do not. This is known as the Public Sector Equality Duty (PSED).

55. Although the 2010 Act is largely reserved, Scottish Ministers have supplemented the general duty (PSED) by placing detailed requirements on Scottish public authorities through the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012. The 2012 Regulations are aimed at supporting the Scottish public authorities to improve implementation of the PSED by requiring them to: report progress on mainstreaming equalities; propose and publish equality outcomes; assess policies and practices from the perspective of equalities; and publish employee information on pay and occupational segregation.

56. Specifically regulation 5 of the Scottish Specific Duties requires that a listed authority must make such arrangements as it considers appropriate to review and, where necessary, revise any policy or practice that it applies in the exercise of its functions to ensure that, in exercising those functions, it complies with the equality duties. Further information is available in the Equality and Human Right Commission (EHRC) Guidance.

Fairer Scotland Duty Assessment

57. The Fairer Scotland Duty places a legal responsibility on particular public bodies in Scotland to actively consider how they can reduce inequalities of outcome caused by socio-economic disadvantage when making strategic decisions.

58. In the application of the Duty, particular importance is placed on involving relevant communities, especially people with experience of poverty, throughout all stages of the assessment. Due to their unique understanding of the issues they face, any decisions that take into account their expertise, how they might be affected by different options and what would work best for them will ultimately be most effective in addressing inequality.

59. To assist with implementation of the Duty, the Scottish Government published interim guidance for public bodies in March 2018.

Island Communities Impact Assessment

60. A relevant authority must prepare an Island Communities Impact Assessment in relation to a policy, strategy or service which, in the authority’s opinion, is likely to have an effect on an island community which is significantly different from its effect on other communities (including other island communities) in the area in which the authority exercises its functions. Further guidance is available in the Guidance and Toolkit.

Habitats Regulations Appraisal

61. Under the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) all competent authorities must consider whether a plan or project could have a ‘likely significant effect’ on a European site. If so, they must carry out an ‘appropriate assessment’ (AA). In Scotland, when preparing a plan that could impact on a European site, advice must be sought from NatureScot which is identified in the 1994 Regulations as a nature conservation body, and which oversees the statutory requirements.

Question 15

Do you agree with the general guidance on Local Development Plans?

Yes / No / No View

Please explain why you agree or disagree.

Development Plan Scheme

Purpose

62. The Development Plan Scheme (DPS) is an important communications tool. It is key to supporting deliverable and people-focussed plans by letting stakeholders know when and how they can get involved in the plan and keep them informed of progress. It is part of the wider project management of development planning that should be ongoing. The DPS is especially important for achieving collaboration, with a role in helping stakeholders manage their responsibilities and input.

Legislative Requirements

63. A planning authority must prepare and publish a DPS at least annually, or when directed to do so by Scottish Ministers (section 20B(2)). The DPS must set out the planning authority’s programme for preparation and review of the LDP (section 20B(3)). This includes timetabling (section 20B(4)(a)) and what is involved in each stage of preparation or review (section 20B(4)(b)).

64. The DPS must also include a Participation Statement (section 20B(4)(c)). This should outline when consultation is likely to take place, with whom and its likely form, including the steps to be taken to involve the public at large. When preparing the DPS, planning authorities are required to seek the views of the public on what the content of the Participation Statement should be, and have regard to any views expressed (section 20B(4A)). This allows interested stakeholders to have a say in how they can be most effectively consulted, so that authorities can tailor their approach to improve its effectiveness.

65. As soon as possible after the planning authority has adopted the DPS it must send two copies to the Scottish Ministers, publish it, and place a copy in any public library in the area to which it applies (section 20B(5)). The timetabling must state the month of expected publication of the Evidence Report, Proposed Plan and submission of the proposed LDP to the Scottish Ministers (draft regulation 21(1)(a)).

Part B of this consultation, the Proposals for Regulations, propose changes to legislative requirements relating to Development Plan Schemes at paragraph 29.

Implementation

66. The DPS is important to project management and communication. Its style, presentation and content should reflect its outward facing role. It should be easily located, particularly on planning authority websites, and be accessible for non-planning professionals.

67. The Participation Statement should include targeted methods to reach under-represented groups, help to make public participation inclusive, ensure that wider public engagement directly feeds into the development of the LDP, and promote proactive engagement at all stages of the plan’s preparation.

68. Planning authorities may find it helpful to ask key stakeholders how they can best support plan preparation and implementation. This will include key agencies given their duty to cooperate in the preparation of the Proposed Plan.

69. The planning authority’s view on the opportunity and potential scope for the use of mediation should be set out in the Participation Statement. Circular 2/2021 provides guidance on the promotion and use of mediation in the Scottish planning system.

70. The DPS should identify an appropriate programme for evidence gathering and the monitoring and review of evidence, to ensure that evidence is maintained.

Responsibilities

71. Preparation of the DPS is the responsibility of the planning authority. The planning authority should have regard to the views of the public on the content of the Participation Statement. As a tool to bring a range of parties together to collaborate, it can support stakeholders in having the right resources available at the right time to engage in local development planning.

Bigger Picture

72. The DPS should set out the programme for work on the assessments required, including:

  • Strategic Environmental Assessment;
  • Public Sector Equality Duty Assessment;
  • Fairer Scotland Duty Assessment;
  • Island Communities Impact Assessment, where appropriate; and
  • Habitats Regulations Appraisal.

73. The DPS links to a planning authority’s project management and communication activities. It is expected that the planning authority will project manage its development planning activity on a rolling basis. The DPS is the external facing part of this and should set out the elements of the work programme in which other local authority and external stakeholders will need to be involved.

Question 16

Do you agree with the guidance on Development Plan Schemes?

Yes / No / No View

Please explain why you agree or disagree.

Delivery Programme

Purpose

74. The Delivery Programme sets out how an authority proposes to implement its LDP. It is as important a part of the package as the plan itself, representing a firm commitment to the delivery of the plan. It is part of the project management toolkit, helping to focus development planning resources on delivery as well as plan-making. It is instrumental to achieving an outcomes focussed approach to development planning. It should support delivery of the LDP and achievement of its intended outcomes, rather than being focussed on noting progress of particular actions.

Legislative Requirements

75. It is the duty of the head of the planning authority’s paid service to prepare the planning authority’s Delivery Programme (section 21(4A)). In preparing the Delivery Programme, the authority must consult with and have regard to the views of key agencies (section 21(3)(a)), the Scottish Ministers (draft regulation 22(a)), and anyone named in the programme (draft regulation 22(b)). There is a duty on key agencies to cooperate with the planning authority in its preparation (section 21(5)).

76. As a minimum, the Delivery Programme must set out a list of actions to deliver policies and proposals, the name of the person who is to carry out each action and the timescale for the conclusion of each action (draft regulation 23).

77. A Proposed Plan must be accompanied by a proposed Delivery Programme (section 21(4)). The proposed Delivery Programme must be approved by the full Council of the authority (without delegating that function) before it is published (section 21(4B)).

78. A planning authority must adopt and publish a Delivery Programme within three months of its LDP being adopted (section 21(8)). The Delivery Programme must be kept under review, and updated at least every two years, or if the Scottish Ministers direct the authority to update it (section 21(9)). When published, the Delivery Programme must be sent to the Scottish Ministers, and a copy placed in each public library in the relevant area (section 21(10)).

Part B of this consultation, the Proposals for Regulations, propose changes to legislative requirements relating to the Delivery Programme at paragraphs 30 - 31.

Implementation

79. Preparation of the Delivery Programme should be considered at the outset of plan preparation and run alongside it. The above legislative requirements for the Delivery Programme should be seen as a minimum.

80. The Delivery Programme should be considered akin to a business plan for the delivery of the LDP, with a shared commitment to achieving the actions identified, clearly linked to the relevant intended outcome(s). It is a corporate document which project manages the timing of the authority’s financial investment for the delivery of the plan, and any coordination with private or other funding identified as being required to deliver intended plan outcomes.

81. The links with infrastructure and service delivery are critical and will play a key role in putting infrastructure and service providers at the heart of plan making through the Delivery Programme.

82. An ambitious Delivery Programme has the potential to proactively guide and steer the delivery of the LDP, setting out a clear route to delivery for every site and proposal within the plan. Ideally, it should:

  • clearly indicate how sites are prioritised;
  • specify actions and timescales to deliver sites, including any interventions required, identifying any costs and constraints and a clear pathway to addressing them e.g. funding sources, timescales / phasing;
  • specify how and when developer contributions will be sought, collected and become available over time to support the delivery of development;
  • identify a pathway to delivery for longer term allocations; and
  • link with the Housing Land Audit to monitor progress of the delivery of the deliverable Housing Land Pipeline to meet the Housing Land Requirement.

83. The Infrastructure First approach requires a robust and consistent approach to ensuring the required infrastructure is deliverable. Further detail of the expectations for the Delivery Programme are included in section 3.

84. The Delivery Programme and Housing Land Audit together play an important and complementary role in supporting and driving the delivery of the LDP. The Housing Land Audit should be undertaken annually by each planning authority, monitoring the delivery of land for housing. Separate guidance will be published to establish a common approach to Housing Land Audits.

85. The success of the Delivery Programme in supporting plan implementation relates not just to their content but also to consideration of how they are used and monitored in practice. This includes the extent to which they are influenced and supported by other departments across local authorities and how they are reported and used in decision making by Committees and Members.

86. The Delivery Programme should be supported by public and private sector interests. It should align, where possible, with wider local authority budgets and should consider not only the capital impacts of proposals, but also revenue costs to the authority and others. It should reflect any financial shortfalls and the proposals to address those; include any bridging or priming required and plan for their management; and monitor risk and implications if funding is not forthcoming as anticipated. Consideration may also be required to be given to the budgets, priorities and programming of interventions required by other stakeholders in the delivery process. This may include identifying collaborative work required across the authority or with other stakeholders.

87. Preparation and review of the Delivery Programme is an ongoing activity that should run in parallel to the preparation of an LDP. This will ensure that, as far as possible, the plan is prepared with a realistic and achievable implementation strategy in mind. Review and renewal of the Delivery Programme will also be ongoing once a plan is adopted, at least every two years.

Responsibilities

88. The planning authority’s head of service is responsible for preparing the Delivery Programme. Key Agencies have a duty to cooperate with the planning authority in the preparation of the Delivery Programme. Collaboration is equally important to the preparation of the Delivery Programme as it is to preparation of the LDP itself. Implementation of the LDP requires buy-in from stakeholders within and outwith the relevant local authority, and this input will need to be recognised and timetabled by the Delivery Programme.

Bigger Picture

89. Maintenance of the development planning evidence base will form part of the feedback loop that enables planning authorities to assess progress on implementation of the LDP. It can also help to identify barriers to delivery and ultimately inform the amendment or full review of the LDP as and when appropriate.

Question 17

Do you agree with the guidance on the Delivery Programme?

Yes / No / No View

Please explain why you agree or disagree.

Local Place Plans

Purpose

90. A Local Place Plan (LPP) is a proposal by a community body about the development and use of land. It can describe what changes people want to see made to the LDP. LPPs aim to improve people’s engagement and involvement in the planning system. They are a way for communities to achieve change in their local area by proactively feeding into development planning. Our intention is for local communities to think about how to make their place better, agree priorities, and take action (often working with others) to make change happen.

Legislative Requirements

91. Before preparing an LDP, a planning authority must invite local communities to prepare LPPs (section 15A(a)). They must also publish information about how LPPs are to be prepared and by when, so that they can be taken into account in the preparation of the LDP (section 15A(b)(i)). Information about the assistance available to local communities to help them prepare LPPs should also be published (section 15A(b)(ii)) and it is expected that this would not necessarily depend on local authority support but can extend to wider programmes. Once an LPP has been validated by the planning authority, it must be kept on a register (schedule 19(3)). A map must be made available of the land covered by registered LPPs (schedule 19(4)).

92. Planning authorities must take into account any registered LPP when they are preparing or amending an LDP (section 16(2)(a)(iii)). The Evidence Report must set out how communities have been invited to prepare LPPs and the assistance provided to them (section 16B(3)(d)).

Implementation

A consultation on Local Place Plans took place in Spring 2021 alongside an invitation to comment on a draft ‘How to Guide’. Regulations were laid in the Scottish Parliament in October 2021 and are due to come into force on 22 January 2022. A consultation analysis report, consultation responses and a blog are available online.

93. The invitation to local communities to prepare an LPP must be published by the planning authority at the start of each plan preparation cycle. The Development Plan Scheme sets out an authority’s programme for preparing an LDP and should also therefore cover how the timing of the LPP invitation factors into this.

Responsibilities

94. LPPs are prepared by community bodies and planning authorities must take into account registered LPPs in preparing the LDP. Whilst the first LPPs are being prepared, there could be other community-led plans within planning authority areas which do not comply with the new legal requirements but nonetheless provide a community vision for the development and use of land. Should such community-led plans be submitted to the planning authority, they should be given due weight as expressions of the community’s aspiration.

Bigger Picture

95. The National Performance Framework includes the outcome that 'people live in communities that are inclusive, empowered, resilient and safe'. It recognises that communities are shaped by the quality and character of the places we live in and the people we live among. Communities are well placed to express their aspirations for the future of their local places. LPPs offer the opportunity for a community-led, but collaborative, approach to creating great local places. LPPs can support community aspirations on the big challenges for a future Scotland such as responding to the global climate emergency and tackling inequalities. It is vital that local people have the opportunity to engage meaningfully and have a positive influence in the future planning of development in their areas.

Question 18

Do you agree with the guidance on Local Place Plans?

Yes / No / No View

Please explain why you agree or disagree.

Evidence Report

Purpose

96. The purpose of the Evidence Report is to improve the quality and effectiveness of plan making given the significant implications of plans for people, places and finances. The aim is to front load the work and use the evidence to clearly inform what to plan for before the Proposed Plan looks at where development should take place. The Evidence Report is not expected to contain all the detail of evidence, it should provide a summary and the analysis of what the evidence means for the plan.

97. The Evidence Report should be informed by the views of those who are anticipated to be affected by the plan, and involved in its implementation. It provides an early, independent review as part of the project management of the plan. This stage should check that the future LDP will be based on sound evidence and therefore more likely to achieve its outcomes.

Legislative Requirements

98. Planning authorities are required to prepare an Evidence Report that contains sufficient information to enable the planning authority to prepare an LDP. It must set out the authority’s views on the matters listed at Annex B (section 16B(3)(a)). These are the same matters that must be taken into account in forming the Spatial Strategy for the LDP later at Proposed Plan stage (section 15(1)(a)). They cover the characteristics of the land use and population of the plan area as well as housing, education and infrastructure matters, amongst others. There are other legislative requirements for matters which must be considered in the preparation of the plan, linked to specific policy topics. These are detailed in section 3 of this guidance.

99. In preparing the Evidence Report, the planning authority must assess the sufficiency of play opportunities in its area for children to establish needs and demands to be met and communities’ aspirations (section 16D).

100. The Evidence Report must also set out the following:

  • a summary of the action taken by the planning authority to support and promote the construction and adaptation of housing to meet the housing needs of older people and disabled people in the authority's area, and analysis of the extent to which the action has helped to meet those needs (section 16B(3)(b));
  • a summary of the action taken by the planning authority to meet the accommodation needs of Gypsy/Travellers in the authority’s area, and an analysis of the extent to which that action has helped to meet those needs (section 16B(3)(c)), and
  • how the authority have invited local communities to prepare LPPs, and what assistance they have provided (section 16B(3)(d)).

101. The planning authority must seek the views of particular groups of people, and have regard to those views when preparing the Evidence Report (section 16B(2)). These groups are:

  • key agencies;
  • children and young people (particularly school pupils, youth councillors and youth parliament representatives); and
  • the public at large.

102. The Evidence Report must include a statement on how the planning authority has sought particular stakeholders’ views, and how these views are taken into account in the report (section 16B(4)). These groups are:

  • the public at large;
  • disabled people;
  • Gypsies and Travellers;
  • children and young people; and
  • Community Councils.

103. The Evidence Report must be approved by the full Council before it is submitted to the Scottish Ministers (section 16B(5)).

Part B of this consultation, the Proposals for Regulations, propose legislative requirements relating to the Evidence Report at paragraphs 12 – 18.

Implementation

104. The Evidence Report should be a basis upon which an authority can build its LDP. It should include a summary of the baseline data and information needed to inform a deliverable, place-based and people-focused LDP. This early stage is to establish what to plan for, with specific locations being the focus of the later Proposed Plan. Site specific matters should not be included in the Evidence Report. A number of aspects are expected to be part of preparing the Report as outlined below.

Scoping

105. Scoping should cover the matters to be addressed in the Evidence Report. This should include those matters identified at Annex B, and any other matters considered relevant by the planning authority, and cover the relevant baseline information needed to support each issue, the need for further work and the resource and capacity to undertake data gathering and analysis. Scoping could also look at the stakeholders who will need to be involved in collating and reviewing it (further guidance on stakeholders is covered under the responsibilities heading below). It should consider the process and proposed timescales for preparation of the Evidence Report.

106. As part of the preparation of the Evidence Report, the planning authority should evaluate whether the previous plan has delivered on its outcomes, identify any lessons learnt for the preparation of the new plan and consider the appropriateness of the previous Spatial Strategy. This should not include site specific detail at this stage.

Evidence Gathering

107. The Evidence Report should consider the local, regional and national strategies and policy priorities that could impact the direction and subsequent implementation of the LDP and which will shape the requirements of the evidence base. Other types of data and information likely to be needed to inform the Evidence Report could include:

  • any existing Action / Delivery Programme for the LDP;
  • infrastructure capacity and planned investment, including: communications, transport and drainage, water, energy, healthcare, education, digital and ‘grey’, ‘green’ and ‘blue’ infrastructure;
  • Place Standard Tool outputs or on-going local initiatives that can help to identify issues and opportunities for the area;
  • public health and wellbeing indicators;
  • NPF Minimum All-tenure Housing Land Requirements, the Housing Needs and Demand Assessment, Local Housing Strategy, Strategic Housing Investment Plans and recent annual Housing Land Audits;
  • assessment of existing and planned travel and transport infrastructure and services available in the plan area for movement of people and freight across all modes of transport, including previous transport appraisal/assessment work that has been undertaken; consideration of local, regional and national transport strategies and plans.
  • Strategic Environmental Assessment scoping report ;
  • evidence from other impact assessments, including Equality, Fairer Scotland, and where applicable Island Communities Assessments;
  • urban capacity studies / Vacant and Derelict land information;
  • town centre health check data;
  • local and regional economic strategies;
  • national strategies relating to climate change and land use.

108. The Evidence Report provides an opportunity to support the Infrastructure First approach by frontloading infrastructure considerations in the preparation of LDPs and undertaking an audit of infrastructure and services.

109. Section 3 of this guidance provides further information on specific evidence requirements for key NPF4 policy matters.

110. Collation of the evidence will involve a range of stakeholders to provide information and inform an assessment of its sufficiency to inform the plan. The aim should be to resolve any issues raised by stakeholders on the sufficiency of the evidence.

111. A significant proportion of the evidence required will already be produced and in most cases secondary data will suffice. Where required, reasonable steps should be taken to address any gaps in evidence identified. Key areas for this could include information required to implement an Infrastructure First approach and priorities of increasing or particular relevance to the plan area, such as sustainable travel modes and health. As part of the scoping stage, the timescales for collating additional evidence should be considered.

Drafting

112. A suggested template for the structure of the Evidence Report is provided at Figure 5. It is a similar format to the schedule for the summary of unresolved issues used for submitting the required information to Scottish Ministers for examination. The format promotes a consistent approach across Scotland but allows flexibility for authorities to include information appropriate to them. The headings encourage a systematic way of thinking about the evidence – summarising, then analysing and interpreting information that leads to what it means for the plan and to it being outcome focused.

113. The Evidence Report should be collated around issues or topics. This provides authorities with flexibility to determine the matters that are relevant to them. Authorities should ensure that the key topics below are specifically covered in the Evidence Report:

  • plan outcomes;
  • stakeholder involvement;
  • infrastructure and services;
  • housing land;
  • employment land; and
  • climate and environment.

114. The final part of the Evidence Report should bring together the same summary headings from each topic so they can be looked at in the round to make connections across issues. A significant amount of evidence informs the preparation of plans but authorities should take a proportionate approach to the preparation of the Evidence Report. The Evidence Report should be written in plain English, rather than technical jargon, to ensure it is accessible to any reader.

Figure 5 – Evidence Report Structure

Issue / Topic

e.g. infrastructure, housing etc.

Links to Evidence

  • X (hyperlinks where appropriate)
  • X
  • X

Summary of Evidence

This should provide a summary of the detailed data and information noted above.

Summary of Stakeholder Engagement

This should summarise the steps taken by the planning authority to seek the views of all relevant stakeholders.

This should also summarise the views expressed, and explain how they have been taken account of in the Evidence Report or the influence they have had.

Summary of Implications for the Proposed Plan

This should cover what the evidence means for the plan, e.g. the Spatial Strategy, the Delivery Programme or plan preparation.

Statements of Agreement / Dispute

This should include statements from stakeholders highlighting their agreement or the areas they dispute.

115. To assist in the Gate Check process, the planning authority should identify where there are any potential gaps in the evidence gathered or uncertainty in data and evidence within the Evidence Report together with an explanation on the authority’s reasoning for accepting this evidence and including it in the Evidence Report.

116. Detailed policies and site proposals should not be included in the Evidence Report. Detailed site appraisal will not be appropriate at the Evidence Report stage, however the authority should establish a site appraisal methodology that will be used to appraise sites and inform allocations for the Proposed Plan.

Implications for Proposed Plan

117. In the preparation of the Evidence Report, the planning authority should draw conclusions from the evidence gathered and analyse the evidence to allow the authority to consider the implications of the evidence on the forthcoming preparation of the Proposed Plan, the future Spatial Strategy and the Delivery Programme.

Stakeholder Engagement

118. Planning authorities are expected to undertake early and proactive engagement with stakeholders, including key agencies, to ensure collaborative and transparent evidence gathering.

119. Innovative approaches to engagement, tailored to the unique circumstances and reflecting a broad range of interests, are encouraged. The Place Standard Tool can be used to stimulate early engagement on the challenges and opportunities of the plan area and inform the Evidence Report.

Timescales

120. A robust Evidence Report should make it easier to prepare a strong, place-based, people focused and deliverable LDP that is rooted in an Infrastructure First approach. The preparation and content of the Evidence Report should be proportionate. Taking time to get this stage of development planning right is, therefore, important.

Responsibilities

121. The planning authority will primarily be responsible for preparing the Evidence Report, but a collaborative approach to development planning is essential from this early stage. Used well, evidence can help stakeholders to engage with the plan.

122. The planning authority will already be aware of relevant stakeholders and stakeholder mapping can help to identify any additional interests or organisations who already hold relevant information. This will be important for identifying internal and external partners who will be required to contribute evidence and input. It will help to be clear what is being asked of groups at an early stage. The legislative requirements are likely to be a minimum and there is an important role for the public and stakeholders to both supply information and comment on the data collected.

123. The Evidence Report should include proportionate information about the lived experience of those who live and work in a place, to be considered together with technical data. There is a statutory requirement to seek particular views in preparing the Evidence Report (see paragraphs 101 and 102) but there is not a requirement to consult on it. Forthcoming Scottish Government guidance on Community Engagement should inform the approach taken to engaging the public in the preparation of the Evidence Report. Close Engagement with community groups, for example Community Planning Partnerships and community councils will help to ensure that the Evidence Report provides a strong foundation for a place-based, people focused LDP.

124. Preparation of the Evidence Report can encourage a corporate approach across local authorities by bringing relevant departments into the process early. Within local authorities, reporting to relevant Committees will also help to build corporate consensus for the Proposed LDP. The finalised Evidence Report must be approved by the full Council.

125. The Evidence Report should highlight areas where stakeholders are in agreement or in dispute, and the reasons for these. The aim is to have minimal areas of dispute outstanding so the authority can progress to preparing the Proposed Plan quickly. Highlighting remaining areas of dispute in the Evidence Report will enable those assessing it at the Gate Check to focus their attention on the issue, with a view to potential requests for information or recommendations for improving the Evidence Report

Bigger Picture

126. Whilst the Evidence Report must be prepared at the start of each plan making cycle, authorities are not starting with a blank sheet. Existing LDPs have been prepared on the basis of available evidence that is monitored over time, and all authorities also have an existing Spatial Strategy. The Evidence Report stage aims to improve the consistency in the approach to evidence and plan making across Scotland. By showing the evidence that the plan is based on and what it means for the future of a place, the process can be more transparent and supported by a stronger Delivery Programme.

Strategic Environmental Assessment

127. The Evidence Report preparation should be aligned with the scoping requirements of Strategic Environmental Assessment (SEA). The Evidence Report must set out the planning authority’s view on ‘environmental characteristics’ as per section 15(5) of the 2019 Act (see Annex B for the full list of requirements). In the preparation of the SEA, there is a need to identify and consider existing environmental problems relevant to the plan and to manage environmental sensitivities, including but not limited to those identified in section 15(5). The material that informs the scoping report and the Evidence Report can be similar.

128. This provides an opportunity for SEA to be closely aligned with, and to influence the plan’s preparation, ensuring the evidence used is not contradictory, and potential aspects of the environment where thresholds could be exceeded are identified, for example air quality, or to consider different approaches. A scoping workshop may be useful to inform the environmental baseline and consider alternative evidence. The relevant environmental indicators are likely to vary from authority to authority – e.g. typically air quality indicators may be more relevant within urban areas, while soils could be a more significant consideration in rural settings.

129. Including the scoping report material as part of the evidence base can offer wider benefits, particularly around the identification of potential reasonable alternatives for the Spatial Strategy, early identification of sensitivities or mitigation measures to avoid adverse effects, and links to the Delivery Programme. This also allows an early opportunity to gain views from the consultation authorities prior to finalising the Evidence Report.

130. The views of key agencies should be sought as part of the Strategic Environmental Assessment.

Question 19

Do you agree with the guidance on the Evidence Report?

Yes / No / No View

Please explain why you agree or disagree.

Gate Check

Purpose

131. The Gate Check will provide an independent assessment of whether the planning authority has sufficient information to prepare an LDP. It will be carried out by a person appointed by Scottish Ministers, usually a Reporter from the Directorate for Planning and Environmental Appeals. The Reporter may decide there is sufficient information, and the authority may then move to prepare and publish their Proposed Plan. The Gatecheck process should reduce the level of debate arising at the Examination at the end of the plan preparation period.

Legislative Requirements

132. Once a planning authority has approved its Evidence Report, it is to submit it to the Scottish Ministers (section 16B(7)). The Scottish Ministers must then appoint ‘a person to assess whether the report contains sufficient information to enable the planning authority to prepare a Local Development Plan’ (section 16B(8)).

133. Where the appointed person considers the Evidence Report to contain sufficient information, they must inform the planning authority and the Scottish Ministers accordingly (section 16B(9)). Where they are not satisfied that there is sufficient information, the appointed person must prepare an ‘assessment report’ which sets out the reasons for not being satisfied and recommendations for improving the Evidence Report (section 16B(10)(a)). A copy of the assessment report must be sent to the planning authority and the Scottish Ministers (section 16B(10)(b)). On receiving an assessment report a planning authority must revise its Evidence Report, and resubmit it to the Scottish Ministers (section 16B(11)). The same process as above is then followed again.

Part B of this consultation, the Proposals for Regulations, propose changes to legislative requirements relating to the Gate Check at paragraphs 15 - 16.

Implementation

134. The Gate Check aims to assess the sufficiency of the evidence. Stakeholder engagement in the preparation of the Evidence Report is therefore vital so that views on its sufficiency can be taken into account. Where there is agreement between stakeholders it is unlikely to be necessary for the Reporter to take a look at the issue in depth. However, where disputes remain, the Gate Check provides an opportunity for the Reporter to consider the different viewpoints and come to a view on the sufficiency of evidence. This may be informed either by requesting further information or by convening a hearing. It is expected that the majority of assessments will be carried out using written submissions, with a hearing only used where a particularly complex dispute is identified.

135. Section 3 of this guidance provides further information on specific evidence requirements for key NPF4 policy matters. However this is not exhaustive and it will be for the Reporter to identify whether there are any gaps in evidence which should be addressed.

136. The Gate Check and Examination are distinct steps, but the former will inform the latter. The role of the Gate Check is to confirm the sufficiency of the evidence base on which the Proposed Plan will be developed. It should not be necessary for these issues to be revisited at the Examination, which is to focus on unresolved issues arising from the plan.

Responsibilities

137. The person appointed by Scottish Ministers has the responsibility for carrying out the Gate Check. To discharge this responsibility they will need to communicate with the relevant planning authority, and the other stakeholders involved in the preparation of the Evidence Report.

Bigger Picture

138. The Gate Check has an important relationship to the later LDP Examination but the two are distinct processes with different purposes: the Gate Check should not be seen as a mini or early Examination. The preparation of the Proposed Plan should be closely informed by the baseline evidence in the Evidence Report. The Examination is not an opportunity to revisit the Evidence Report itself. Planning authorities should aim to move quickly from successfully completing the Gate Check to preparation of the Proposed Plan.

Question 20

Do you agree with the guidance on the Gate Check?

Yes / No / No View

Please explain why you agree or disagree.

Proposed Plan

Purpose

139. The Proposed Plan should identify where new development should take place and where it should not. It can articulate the ambitions and priorities for the future development of the plan area. It should coordinate development and service provision and an Infrastructure First approach should inform its preparation and support its delivery.

140. New style plans are expected to be place-based: there should be greater emphasis on maps, site briefs and masterplans, with minimal policy wording. The reader should be able to find what is relevant to a particular place in one area of the plan. It is envisaged that the policies and proposals within the LDP are to be focused on places and locations. Thematic policies are contained in National Planning Framework, which has the status of the Development Plan in decision making.

Legislative Requirements

141. In preparing the Proposed Plan the planning authority must have regard to the Evidence Report that has successfully completed the Gate Check stage (section 18(1)(a)).

142. Key agencies have a duty to cooperate with a planning authority in the preparation of the Proposed Plan (section 18(10)). Key agencies and other relevant bodies are those set out in secondary legislation and referred to in paragraph 47 above.

143. Planning authorities must have regard to any guidance issued by the Scottish Ministers in relation to effective community engagement (section 16C). They must also promote and facilitate the participation of children and young people under the age of 25 in their preparation of the Proposed Plan (section 16A(1)). As a starting point, this must include schools, youth councils and youth parliament representatives within the authority area (section 16A(2)). The planning authority must publish and maintain up to date information about how children and young people have been involved in LDP preparation (section 16A(3)).

144. The Proposed Plan must be approved by the full Council before being published for consultation (section 18(1B)). This approval cannot be delegated to a committee or officer of the authority (section 18(1C)).

145. The Proposed Plan, the Evidence Report that supports it, and the draft Delivery Programme must be published by the planning authority at the same time (section 18(1)(aa) and section 21(4)). They must also be sent to each key agency (section 18(1)(b)) and good practice will be to send to the other relevant bodies listed in paragraph 48 above. In doing this, a planning authority must specify a date no fewer than 12 weeks from the date of publication, by which any representations on the Proposed Plan must be made to the authority (section 18(2)). The 12 weeks is a statutory minimum and it will be for authorities to consider whether additional time is appropriate, for example taking account of general holiday periods.

146. The planning authority must also consult with the key agencies and Scottish Ministers. Section 18(1A) states that a planning authority “for a district all or part of which falls within the boundary identified by the Central Scotland Green Network Partnership are (for so long as such a body is included in the National Planning Framework as a national development) to consult the Network on the Proposed LDP”. The Central Scotland Green Network Partnership’s aims are currently delivered by the Green Action Trust.

147. After the consultation period has ended, the planning authority can modify the Proposed Plan (section 18(3)). In doing this they can take account of representations made to them, any matters arising from consultation with key agencies and Scottish Ministers, and any minor drafting or technical matters. If modifications are made, the planning authority must prepare a Modification Report setting out the modifications and the reasons for making them (section 18(4)(iii)).

Part B of this consultation, the Proposals for Regulations, propose changes to legislative requirements relating to preparation and publication of proposed plans at paragraphs 20 - 23.

Implementation

Spatial Strategy

148. A Spatial Strategy signals future change in an area and should be expressed as a visual that maps change. It should go beyond the existing situation, to provide an indication of the place in 20 years’ time. The Spatial Strategy should actively guide development to locations that create and shape places, taking account of the spatial aspects of the NPF and having regard to any relevant adopted Regional Spatial Strategy. The Spatial Strategy can help the LDP to connect activities in the plan area and align investment across services and sectors over the long term.

Preparation

149. The LDP must take account of the NPF, along with the planning authority’s LOIP, and any registered Local Place Plans. Where applicable the LDP should also look to align with the relevant National Park Plan, and have regard to any relevant adopted Regional Spatial Strategy.

150. Planning authorities should work corporately, across the local authority, and with stakeholders to prepare a Proposed Plan that takes an Infrastructure First approach to delivering development.

151. A key aspect of this will be the preparation of a Transport Appraisal, which should be completed in time to inform the Proposed Plan, and should be published alongside the Proposed Plan to support consideration of the plan’s deliverability. Further detail on transport and infrastructure guidance is provided in section 3 of this draft guidance.

152. The Proposed Plan should focus on places and use place-based site briefs or masterplans to promote development that the planning authority considers to be in the long term public interest. Place-based briefs should identify what is needed to deliver high quality development outcomes. All sites proposed for development in plans should have been assessed for their deliverability – they should not be automatically rolled forward from the previous plan.

153. Any policy wording included in the plan should focus on adding value by providing any necessary detail not provided by the NPF or where national policy does not reflect local circumstances and local variation is therefore considered appropriate.

154. Following the Evidence Report and Gate Check stage, a planning authority may wish to undertake a general Call for Ideas to inform the preparation of the Proposed Plan. This should be open to everyone to propose ideas for any aspect of the plan, it should not be limited specifically to suggestions for development sites or types of development e.g. housing. It is expected that proposals submitted at the Call for Ideas should support the preparation of the full Spatial Strategy within the Proposed Plan.

155. An appraisal of all sites should be undertaken so that sites are assessed using the site appraisal methodology contained in the Evidence Report. This should include sites allocated in an existing LDP, sites proposed through any Call for Ideas and any others the planning authority considers may have potential. No sites should automatically roll forward from one plan to the next without being assessed.

156. Where sites are to be allocated in the Proposed Plan, they should be confirmed as deliverable through the site appraisal process. Sites should be free of constraints as far as possible. Where constraints exist, sites can still be regarded as deliverable providing that the Delivery Programme sets out how constraints will be removed and the timeframe expected for this. Where necessary, additional infrastructure appraisal work may be undertaken to provide greater certainty for the site allocation process as part of the site appraisal.

Engagement

157. As part of the Development Plan Scheme, the Participation Statement will outline the engagement that will take place in relation to the preparation of the Proposed Plan. The planning authority is expected to consult with children and young people, following on from the participation required in the preparation of the Proposed Plan.

158. A local authority’s wider conversations with its communities and stakeholders may also be relevant to inform the preparation of the Proposed Plan. In early engagement, connections and efficiencies can be made with other plans and strategies, such as the Local Outcomes Improvement Plan, Locality Plans, Regional and Local Transport Strategy, Local Housing Strategy, Strategic Housing Investment Plan or Local Economic Strategy to avoid consultation fatigue.

159. In responding to the consultation on the Proposed Plan, stakeholders and the general public should be encouraged to be concise in their representations. Ideally, representations should be limited to no more than 2,000 words plus any limited supporting productions. The representation should clearly explain the issues stakeholders wished to be considered by the planning authority and, if unresolved, by the Reporter at the Examination.

160. Where stakeholders are promoting alternatives to the content of the Proposed Plan, they should provide information on environmental impact and community opinion as part of their representation. There is no automatic opportunity for parties to expand on their representation later in the process, so it is important that they provide their full case and evidence at this stage. This will then form part of the material available to the Reporter at any subsequent Examination.

Approval

161. The Proposed Plan and Delivery Programme should be approved by the full Council, reflecting the collaborative preparation process. This will confirm the plan’s status as a corporate tool. As well as being influenced by other service areas, the plan should influence decision making on wider service investment and delivery.

Modification

162. Where authorities make modifications to a Proposed Plan following consultation, a Modification Report is required that sets out the modifications made and explains the reasons for making them. It should demonstrate to stakeholders that have engaged in the process how the changes contribute to the intended outcomes of the LDP. This will support the ongoing dialogue between the planning authority and stakeholders, bringing transparency to decisions about changes where they are made. Where matters have been raised in significant number and changes have not been made, planning authorities should explain why this is the case.

163. The requirement to prepare a modified Proposed Plan where modifications are of a prescribed kind (section 18(5)), and the requirement to prepare a new Proposed Plan where modifications would change the underlying aims or strategy of the plan (section 18(8)) are removed from legislation by the 2019 Act.

Responsibilities

164. The planning authority is responsible for preparing the LDP. The planning authority’s Chief Planning Officer will have a particularly important role in ensuring that the plan does what it can to fulfil its intended outcomes.

165. This corporate role of the plan should be reflected in the way the plan is prepared, with ongoing close collaboration between planning and other Council services being essential. This collaboration will also need to extend beyond the local authority, to key agencies, communities, infrastructure providers, the development industry and landowners.

Bigger Picture

166. The Proposed Plan must be subject to a number of related assessments, including those listed below. The preparation of these should inform the content of the plan.

  • Strategic Environmental Assessment;
  • Public Sector Equality Duty Assessment;
  • Fairer Scotland Duty Assessment;
  • Island Communities Impact Assessment, where appropriate; and
  • Habitats Regulations Appraisal.
Strategic Environmental Assessment

167. The SEA should take a thorough but proportionate approach to assessing the content of the Proposed Plan. All sites should be included in the assessment, as well as all reasonable alternatives. The findings should be set out in the Environmental Report, which should be published alongside the Proposed Plan and consulted on.

168. The public should have an opportunity through the consultation process to consider the reasonable alternatives and their environmental effects and make comment on them. The same level of rigour to the assessment of reasonable alternatives should be applied. It is unnecessary to make up alternatives if none exist and responsible authorities should take care to avoid constructing less preferred alternatives to justify their approach.

169. If a planning authority undertakes a Call for Ideas stage, any site may be submitted. However, it is then legitimate for the authority to assess each site through the lens of the detailed Spatial Strategy prepared as part of the Proposed Plan.

170. The place-based approach to plans (e.g. on settlement / neighbourhood basis) allows an opportunity to reflect the broad environmental impacts and benefits of the policies and proposals rather than impacts of individual sites, which can both support proportionality in terms of reporting and potentially a more engaging report as a consequence.

171. The use of infographics and or digital framework to present technical information is encouraged to support engagement and ensure those who will be affected, or have an interest in the plan, can understand the likely impacts and associated environmental context.

172. SEA offers an iterative approach to the plan’s preparation as the assessment highlights opportunities for improvement through the avoidance of adverse effects, by trying alternative approaches and the use of mitigation.

173. The statutory requirements for the content of an Environmental Report are set out in Schedule 3 of the Environmental Assessment (Scotland) Act 2005. It is important when preparing an Environmental Report to ensure all the information listed in this Schedule is present.

174. Section 15(1) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (“the Continuity Act”) sets out the duty on certain public authorities to have due regard to five guiding principles on the environment when preparing plans for which an SEA is required. These principles are set out at section 13(1) of the Continuity Act, and are the principle of integration, the precautionary principle, the preventative principle, the rectification at source principle and the polluter pays principle.

175. An SEA process is likely to be the main route for consideration of these guiding principles in line with the duty. As those preparing the LDP identify means to avoid, reduce or mitigate adverse environmental effects and look to monitor the plan implementation, these actions are aligned with the principles and can be set out within the Environmental Report. This should help to support those authorities who have to have regard to the duty, without significant administrative burden.

Question 21

Do you agree with the guidance on the Proposed Plan?

Yes / No / No View

Please explain why you agree or disagree.

Examination

Purpose

176. The examination is the opportunity for independent consideration of any issues raised during the formal consultation on the Proposed Plan that have not been resolved through modifications.

Legislative Requirements

Appointed Person

177. Where representations have not been resolved, the planning authority is, when submitting the Proposed Plan to the Scottish Ministers, to request that the Scottish Ministers appoint a person to examine the Proposed Plan (section 19(1)). The Scottish Ministers may also decide to appoint a person to examine the plan even if it is not requested of them, if they believe there are unresolved representations to be examined (section 19(3)(b)). Scottish Ministers must notify the planning authority of the appointment of the person to examine the plan (draft regulation 14).

Documentation

178. The authority must submit a number of documents to the Scottish Ministers for the examination:

  • the Proposed Plan (section 18(4)(a));
  • a summary of unresolved issues and copies of unresolved representations (draft regulation 15(1)(a) and draft regulation 15(1)(b));
  • the Environmental Report (draft regulation 15(1)(c));
  • the proposed Delivery Programme (section 18(4)(ii) and draft regulation 15(1)(d));
  • the Participation Statement at the time the Proposed Plan was published (draft regulation 15(1)(e)) and a report outlining how consultation and involvement of the public have been met or gone further than, what is outlined in it (section 18(4)(a)(i)); and
  • the Modification Report, if any modifications have been made following the formal consultation period (section 18(4)(a)(iii)).

179. The summary of unresolved issues is to (draft regulation 15(2)):

  • specify the number of and list all unresolved representations, including the name of the people making the representations;
  • include a summary of the issues raised in the representations;
  • include the authority’s reasons (generally expressed in less than 800 words per issue) for not modifying the plan in regard to each issue; and
  • be arranged, so far as is practicable, so that the issues appear in the same order as they are set out in the plan.

180. A form for the summary of unresolved issued is included at Schedule 3 of the draft regulations. A separate form should be used for each group of unresolved issues.

181. When the appointment of a person to examine the plan is made, the planning authority must publish the Proposed Plan (section 19(5A)(a)). If any modifications were made following formal consultation, the authority must also publish the Modification Report (section 19(5A)(b)). The planning authority must also advertise the upcoming examination in a local newspaper and in local public libraries, and notify anyone who made representations during the formal consultation on the Proposed Plan (section 19(6)).

Consideration of Consultation and Involvement of the Public

182. Before considering the Proposed Plan itself, the appointed person must examine whether the consultation and involvement of the public in the preparation of the plan meets or exceeds the requirements of the authority’s current Participation Statement (section 19(4)). When assessing planning authority conformity with the participation statement, the reporter should take into account the voluntary nature of mediation when considering whether there are any shortcomings. If the appointed person is not satisfied that the requirements of the participation statement have been fulfilled, they should (section 19A(1)):

  • prepare a report outlining why this is the case, and recommending that the planning authority take further steps with regard to consultation or involving the public;
  • submit the report to the Scottish Ministers; and
  • send a copy of the report to the planning authority.

183. The planning authority may, within 4 weeks of receiving the report, make representations to the Scottish Ministers (section 19A(2)). Once those 4 weeks have passed, the Scottish Ministers may either (section 19A(3)):

  • direct the planning authority to take further steps with regard to consultation or involvement of the public, as specified in the report, or
  • direct the appointed person to proceed to examination.

184. If the Scottish Ministers choose to direct the planning authority to carry out further consultation or public involvement this decision should have regard to both the recommendations made in the report, and the planning authority’s representations on these recommendations (section 19A(4)). Where such a direction is made (section 19A(5)):

  • the appointed person is not to proceed to an examination;
  • once the further consultation or involvement of the public has been carried out the planning authority may modify the Proposed Plan to take account of any representations that emerge from it; and
  • the Proposed Plan (modified or not) should be submitted to the Scottish Ministers with:
    • a note of any representations made,
    • a note of whether those representations are taken account of in the Proposed Plan, and
    • a report outlining how the authority has met the recommendations of the appointed person’s report with respect to recommended further consultation and involvement of the public.

185. If following further consultation and involvement of the public the planning authority believes that modifications are necessary that would change the underlying aims or strategy of the Proposed Plan, the authority should not modify the Proposed Plan, but prepare a new one (section 19A(6)).

Examination Procedure & Report

186. The form the examination is to take is the discretion of the appointed person, for example whether it should be in public, a hearing or written submissions (section 19(5)).

187. Once the examination has been completed, unless section 19ZA applies (for which see paragraphs 189-190), the appointed person is to prepare a report setting out and giving reasons for their conclusions and recommendations (section 19(8)). The recommendations may include that a planning authority make modifications to the plan, or where they consider a change required is not suitable to be dealt with by modification, they can recommend that the plan, if adopted, be amended in relation to specified matters (section 19(8A)).

188. The examination report should be sent to the planning authority and published (section 19(8)(b) and (c)). Notice of the report and its publication should also be sent to anybody who made unresolved representations on the Proposed Plan, either during the formal consultation or further consultation in the event that the planning authority was earlier found by the Reporter to not have complied with their Participation Statement (section 19(8)(d)). Where the report contains a recommendation for the plan if adopted to be subsequently amended under section 20AA, a copy of the report must be sent to the Scottish Ministers (section 19(8B)).

Housing Land

189. Under section 19ZA, if, having completed the examination, the appointed person is not satisfied that the Proposed Plan allocates sufficient land to meet the Housing Land Requirement included in the Plan, instead of preparing an examination report they may issue a notice that requires the planning authority to prepare another Proposed Plan. The notice must include a statement that the Proposed Plan is unsatisfactory because it fails to address identified housing needs, and explain the appointed person’s reasons for coming to that conclusion. A copy of the notice must be sent to the Scottish Ministers, published, and sent to anyone who has made unresolved representations on the Proposed Plan.

190. If a planning authority receives such a notice, they may not take any further action in respect of the unsatisfactory plan, and must prepare another Proposed Plan. The Evidence Report already prepared may be used to inform the new Proposed Plan. There is no different process for the Proposed Plan that follows the previously unsatisfactory one.

Modifications

191. On receiving the examination report, the planning authority are to make such modifications as recommended by the appointed person. They may make other modifications, where they appear to them to be necessary having regard to the report (section 19(10)).

192. There are limited circumstances for when a planning authority may decline to make modifications. One such circumstance is when the recommendation would not be acceptable having regard to an environmental assessment carried out by the planning authority on the plan, following modification in response to recommendations (section 19(11)).

193. Others are set out in the Town and Country Planning (Grounds for declining to follow recommendations) (Scotland) Regulations 2009 namely where:

  • the modification would have the effect that the plan would not be consistent with the NPF or any adopted National Park Plan;
  • the adoption of the plan as modified would not be compatible with the requirements of Part IVA of the Conservation (Natural Habitats, &c) Regulations, 1994(a); or
  • the recommendation in respect of the modification, is based on conclusions that the appointed person could not reasonably have reached based on the evidence considered in the course of the examination.

194. Where, having considered a proposed recommendation, the authority consider it likely to have a significant effect on a European Site, that authority must undertake an Appropriate Assessment of the plan as if modified by the recommendation. Where that assessment cannot conclude that the plan, were it to be modified by the recommendation, would not adversely affect the integrity of the site, the recommendation should not usually be adopted.

Part B of this consultation, the Proposals for Regulations, propose changes to legislative requirements relating to the examination at paragraphs 24 - 26.

Implementation

195. The Scottish Ministers will appoint a Reporter of the Directorate for Planning and Environmental Appeals (DPEA) to carry out the examination. For some plans, more than one person may be appointed and small teams of Reporters will examine the plan.

196. Examinations should:

  • be accessible and transparent to all stakeholders, including the public;
  • examine any unresolved issues raised in representations rather than responding to each individual representation;
  • be succinct and proportionate;
  • be focussed on the Reporter seeking out the information they feel they need to reach conclusions on the matters at hand. As the onus is on the planning authority and interested parties providing information in advance, further procedure will rarely be required and will be at the discretion of the Reporter; and
  • identify any deficiencies in the plan, arising from the Examination of the unresolved issues, and recommend modifications to rectify these or, where this is not possible, require another Proposed Plan where insufficient housing land is allocated to meet the plan’s target, or identify post-adoption actions to rectify the deficiency.

197. A key principle of the examination process is that as far as possible, the Reporter should at the outset be furnished will all the information required to reach conclusions and recommendations. As well as the documents that are statutorily required to be submitted to the appointed person, any supporting material should be submitted but these should be concise, proportionate and limited in number.

Summary of Unresolved Issues

198. The intention of Scottish Ministers is that if any individual policy or proposal in the plan is subject to representations, then this will generally be dealt with as a separate issue. But if multiple representations are made on one policy or proposal, these may be grouped into a single issue. Representations relating to a number of closely related sites, for instance around a particular town, may also be grouped into a single issue, particularly where infrastructure and other matters would clearly benefit from being considered in the round. It would be wise for the planning authority to engage with the Directorate for Planning and Environmental Appeals before formal submission of the summary of unresolved issues (e.g. by sending draft committee reports), to ensure that it is fit for purpose.

Conformity with Participation Statement

199. Consideration of conformity with the Participation Statement is restricted by the legislation to examination of the actions of the authority concerning consultation and public engagement in respect of the Proposed Plan, rather than the extended plan preparation process. In carrying out this assessment, Scottish Ministers envisage that the Reporter will only refer to existing published documents such as the Participation Statement itself, the authority's statement of conformity with this, and any representations relating to the authority's consultation and public involvement activities. The Participation Statement should take into account any guidance published by the Scottish Ministers regarding best practice in community engagement. Ministers do not expect any additional evidence to be routinely invited on these matters.

Examination Procedure and Further Information

200. The expectation is that examinations will be as succinct as possible. The priority of Ministers is to ensure development plans are place-based, people focused and deliverable. There is no provision, for either those who have made representations or the planning authority, to submit any further material to the Examination unless invited and required to do so by the Reporter. This reinforces the importance of front-loading the process, ensuring that the Reporter, the planning authority and other interested parties have the information they need at the start of the examination.

201. It is the Reporter who will determine the form the Examination is to take. Where they feel they do not have all the information they need to make a proper assessment of an issue they can request further information from any person. This ability is not limited to making a request to the planning authority or people who made representations but could be extended, e.g. to key agencies.

202. The Examination may comprise a range of methods. The majority of issues are expected to be dealt with without any need for further information to be submitted, but where further evidence is requested, this will normally be in written form. Where an oral session is required, this should take the form of a hearing. Different aspects of individual issues may be dealt with using a number of formats.

203. There is not necessarily a link between the importance of an issue and whether the Reporter seeks further representations on it. There may be issues of great significance where the Reporter feels they have all the information they need to reach a conclusion without any further input. Conversely, they may feel unable to make a recommendation on a relatively minor issue without further information.

Scope of Examination

204. The scope of the Examination is limited only to issues raised in unresolved representations. These issues will be set out in the summary of unresolved issues prepared by the planning authority. The Reporter can refine or redefine the issues to be assessed, but at all times these must be limited to issues raised in the original representations. There is no provision for parties to widen the scope of the examination by introducing new material to the Examination.

205. Scottish Ministers intend the Reporter, within the bounds of the issues raised in unresolved representations, is primarily to examine the appropriateness and sufficiency of the content of the Proposed Plan. Only if the Proposed Plan is insufficient or inappropriate should they consider other sites or approaches. They are not tasked with making the plan as good as it can be, but with modifying those parts that are clearly inappropriate or insufficient.

206. Reporters require adequate environmental information to be provided to them, together with evidence arising from public engagement, without this they will be unable to recommend modifications to the plan on particular sites.

Costs and Administration

207. Scottish Ministers are responsible for the organisation and administration of the Examination. The Directorate for Planning and Environmental Appeals will provide further information on costs and will invoice authorities directly. A party's individual costs incurred preparing and presenting evidence should be met by that party.

Recommendations

208. Scottish Ministers expect the Reporter to provide conclusions and recommendations for each of the unresolved issues identified at the start of the Examination process, but not on every individual representation. Ministers do not expect the Reporter, within the scope of the Examination, to have to consider making wholesale changes to the plan.

209. For unresolved issues, the Reporter should focus on whether allocations and proposals within the plan accord with the Spatial Strategy, and identify any policies which depart from national policy. The Reporter should consider whether commitments made by stakeholders at Evidence Report and Gate Check stages have been met, or if there are justifiable reasons why these have not been taken forward.

210. In cases where the Reporter identifies deficiencies in the plan, if they have enough information to enable a suitable modification to be drafted or if the necessary information can be obtained in time for the examination to be concluded, they will recommend appropriate modifications to resolve the deficiency. The Reporter is not tasked with making the plan as good as it can be, but with modifying those parts that are clearly inappropriate or insufficient.

211. In limited, exceptional circumstances, the Reporter may identify a serious policy omission or deficiency in the plan, such as inconsistency with the NPF. If this deficiency is not capable of being resolved through the Examination process due to a lack of sufficient information, or if the information required could not be provided within the normal timescale for an Examination, the Reporter will highlight the deficiency in the Examination Report.

212. Where such a deficiency is identified, the Reporter will provide a recommendation(s) on actions that could be taken to remedy the deficiency such as recommending that the plan is amended shortly following Adoption.

213. Recommendations to make modifications to a Proposed Plan in an Examination Report are largely binding on planning authorities. Legislation provides for requisite modifications that should be wholly consequent on the Reporter’s recommendations, for example to rectify any factual or terminological inconsistencies or necessary adjustments to tables, maps, schedules and text and which are solely required to ensure that the whole of the plan reflects the modification that has been recommended. The planning authority should not make unconnected modifications.

214. The possibility of clear and factual errors having been made by the Reporter is covered in the ability to decline recommendations where they are based on conclusions that could not reasonably have been reached based on the evidence considered at the examination. This however, does not relate to circumstances where the planning authority disagrees with the planning judgement of the Reporter.

Insufficient Housing Land

215. The Reporter may require that a new Proposed Plan is prepared, if they judge that the Proposed Plan under examination does not allocate enough land to meet the housing land requirement for the area.

Responsibilities

216. It is the responsibility of the planning authority to liaise with the Directorate for Planning and Environmental Appeals regarding the timing and documentation for a forthcoming examination. They are also responsible for meeting requirements relating to advertisement and notification of relevant parties for the examination.

217. The Scottish Ministers are responsible for appointing a person to carry out an Examination. It will be for the appointed person to determine the format of the examination and to request any additional information they consider necessary. Where information is requested, this should be provided by the relevant stakeholders within the timescales provided to make sure that the examination can be completed as efficiently as possible. It will be for the appointed person to prepare the examination report, submit it to the planning authority, publish it and notify parties who made unresolved representations that the report has been published and submitted.

Bigger Picture

218. The LDP Examination and the earlier Gate Check are distinct and separate processes, but nonetheless the Gate Check has an important role in informing the Examination. The role of the Gate Check is to assess the sufficiency of the evidence base on which the Proposed Plan will be developed. The Examination focusses on unresolved issues raised in relation to the Proposed Plan.

Strategic Environmental Assessment

219. The Examination of the plan may result in recommendations to modify the plan. Modifications that have not previously been considered as part of the SEA will have to be reviewed for their environmental implications. If any modifications are considered likely to have significant environmental impacts and they have not been consulted upon previously, they would have to be consulted on to ensure that SEA requirements are satisfied.

220. Fundamental changes at this stage have the potential to result in significant delay. This underlines the importance that is placed on SEA advice to frontloading and including a comprehensive assessment of all reasonable alternatives at Proposed Plan stage.

221. The updated Environmental Report should be published and sent to the Scottish Ministers. How to reflect updates to the Environmental Report is for the planning authority to consider, however the clearest option may be to add an annex or addendum rather than updating the whole Report.

Question 22

Do you agree with the guidance on Local Development Plan Examinations?

Yes / No / No View

Please explain why you agree or disagree.

Adoption & Delivery

Purpose

222. The plan once adopted constitutes part of the Development Plan which is the basis against which to make decisions on planning applications. As diagram 1 indicates, whilst the adoption of a plan is a significant milestone, it is not the end point, it is a step towards delivery.

Legislative Requirements

223. As set out above, where a Proposed Plan is submitted to the Scottish Ministers (usually under section 18(4)), it is likely to be the case that there remain unresolved representations made in respect of the Proposed Plan. In such a case the planning authority is to request that a person is appointed to examine the Proposed Plan. It is however, also possible that no such request is made but nevertheless the Scottish Ministers consider that there are unresolved representations and that an examination should be held. Section 20(1A) prohibits adoption of a Proposed Plan within the period of 28 days after it is submitted to the Scottish Ministers. This allows Ministers 28 days within which they can either appoint a person to examine the plan, or decide not to. Where the planning authority requests that a Reporter is appointed to examine the plan, or if the Scottish Ministers appoint a Reporter to do so without a request, the plan may not be adopted until the planning authority has received an examination report (section 20(1B)).

224. Once the Proposed LDP is adopted by the planning authority, it is constituted as the Local Development Plan. As soon as reasonably possible after having adopted the plan, the planning authority must (section 20A(1)):

  • send two copies to the Scottish Ministers;
  • publish it;
  • place a copy in any local public libraries;
  • notify anybody who commented on the Proposed Plan; and
  • place an advert in a local newspaper.

225. In circumstances where a recommended modification to the plan was not made, the planning authority must also, as soon as reasonably practicable following adoption, publish a ‘recommended-modifications statement’ relating to this (section 20A(1A)(a)). This must set out the recommended modification which was not made and explain why it was not made with reference to the grounds for declining the recommendation.

226. In circumstances where as a result of modifications made during the course of the procedure the adopted plan differs from the Proposed Plan originally consulted upon, the planning authority must, as soon as reasonably practicable following adoption, publish a report on modifications (section 20A(1A)(b)). This is to set out those modifications and the reasons for making them. If no modifications have been made, a report is not needed. If the planning authority has already published a modifications report following public consultation, a further modifications report need only be published if the plan has changed again.

227. Within 3 months of the plan being adopted, the planning authority must adopt and publish the associated Delivery Programme (section 21(8)).

228. Following adoption, planning authorities must keep the plan under review (section 16(1)(b)). They are required to monitor changes in the characteristics set out in Annex B, and they must also monitor the impact of the policies and proposals in the LDP (section 16(8)).

Implementation

229. The purpose of the recommended-modifications statement and/or report on modifications is to provide a transparent narrative to all stakeholders on how and why the Proposed Plan has changed in its progression towards adoption.

230. To achieve a delivery focussed system, it is expected that the planning authority will focus on supporting the delivery of the plan following adoption. The Delivery Programme is as important a part of the package as the plan itself and should demonstrate a clear route to delivery for sites and proposals in the plan. The section above (paragraphs 74-89) sets out the requirements for the Delivery Programme.

Responsibilities

231. The planning authority is responsible for publishing the adopted LDP, providing the necessary copies, carrying out the relevant advertisement and notification, publishing any associated modifications report and/or recommended modifications report.

232. The requirement for planning authorities to advertise and notify the Scottish Ministers of their intention to adopt the LDP has been removed from legislation. The plan preparation process is a comprehensive one and changes have been made to front load it. The responsibility for preparation of the LDP is at the local level for their local places and communities.

Bigger Picture

233. Publication of the LDP should reflect its status as a corporate tool designed to deliver on local authority priorities across services. Strong communication of the contents of the LDP should make it easy for stakeholders to understand the connections between it and other local authority, community, regional and national strategies and plans. The Delivery Programme that sits alongside the plan is particularly important in supporting the delivery of the plan and in demonstrating how development planning will lead the implementation of an Infrastructure First approach to improving Scotland’s places.

Strategic Environmental Assessment

234. Once the LDP has been adopted, the Responsible Authority has to prepare and publish a Post Adoption Statement. The Statement outlines how the assessment findings and the comments received at the main consultation, both on the plan and the Environmental Report, have been taken into account. The Statement is designed to improve the transparency of the decision making process within plans. As outlined in SEA guidance, it can be beneficial for plan-makers to undertake some of the preparatory work for the Post Adoption Statement when both the assessment and the consultation process is still relatively fresh in the mind. Ideally, practitioners should aim to undertake this alongside, if not as an integral part of, the process of finalising the plan, while resources are still available.

235. Monitoring is an important requirement within SEA, as it seeks to ensure that unforeseen adverse environmental effects are identified, and remedial action taken where required. In terms of monitoring indicators, paragraph 3.17 of the Scottish Government SEA guidance states ‘it is possible to select meaningful indicators from existing monitoring regimes, to save resources and avoid duplication. It is important, if and when selecting a suitable indicator for use in monitoring, that it reflects both the cause and the effect. For example, a development plan might usefully monitor the percentage of sites developed within known flood plains, whereas, monitoring the number of listed buildings within the plan area would provide little insight into a plan’s effects’.

Question 23

Do you agree with the guidance on Adoption and Delivery?

Yes / No / No View

Please explain why you agree or disagree.


Contact

Email: LDPRegsandGuidance@gov.scot