3. INFORMATION TO BE PUBLISHED ON THE INTERNET
Planning Authorities have a legal duty to make available certain details relating to planning applications and regulations allow for this information to be made publicly available on the Internet. 5 Following the introduction of the Town and Country Planning (Electronic Communications)(Scotland) Order 2004, the current General Development Procedure Order ( GDPO) allows most of the statutory procedures to be carried out electronically and the intention is that the new Development Management Regulations should be similarly e-enabled. Planning Authorities are, and will, be acting lawfully in making planning applications available on the Internet.
3.1 E-Planning and Data Protection
The e-Planning Programme will deliver a key change in the way the planning system is delivered through the provision of a range of online services to users. It will create an end-to-end e-Planning service which will be transparent with all applications, plans and progress updates viewable online.
With the move to have more planning information accessible online, there is a responsibility on all staff who are handling, storing and publishing planning information to ensure that it is done correctly and in line with data protection legislation. All information received by planning authorities will need to be captured, and where necessary, redacted to ensure that information published online through their online planning information system does not breach the Data Protection Act.
Not all of the information relating to an application or appeal will be personal data relating to the applicant, appellant or third parties. Neither will all of the information or correspondence accompanying a planning application form part of the planning register. However, with the move to a more e-enabled planning system it is essential that planning authorities carefully consider how much information is published on the web, and the guidance below should be followed as a matter of good practice.
3.2 Submission of Planning Applications and Appeals
Through the Scottish Government's Online Application and Appeals system, applicants, agents and appellants will be able to submit their application or appeal, associated documents and payment electronically to planning authorities back office systems.
Changes introduced by the Planning etc. (Scotland) Act 2006 and the Town and Country (Scotland) Act 1997 as amended allow Scottish Ministers to prepare statutory standard planning application forms. Work on standard application forms has been taken forward through the ePlanning Programme, in developing standard application forms for electronic submission of planning applications.
The advice provided by the Information Commissioner confirms that applicants and objectors should be made aware of which elements of their personal information will be published on the internet.
It must be made clear to people which information there is a legal requirement to publish and which information there is an option to publish. Planning Authorities should ensure that this advice is included in any hard copy application forms or guidance provided to applicants and it should also be clearly stated on the Local Authority's website. For example, Authorities may wish to state: "Please note that when you submit a planning application, the information will appear on the Planning Register and the completed forms and any associated documentation will also be published on the Council's website." A clear and concise statement should be included in any correspondence, consultation letters, online advice and forms, and in press and site notices.
Where people wish to make a representation on planning applications, Planning Authorities must ensure that the same message is communicated clearly. Planning Authorities should provide guidance on what issues can be taken into account in making representations, information on how representations are dealt with, and advice on how name and postal address information will be handled. For example, authorities may wish to communicate that all comments submitted will be available for anyone to see through their Online Planning and Information System but any telephone numbers, email addresses or signatures will be removed. It should also be made clear to those making representations that if an appeal against the proposal is submitted to the Scottish Government's Directorate of Planning and Environmental Appeals ( DPEA), they will also publish their comments on the web.
3.3 List of Applications
Weekly lists of planning applications are prepared by all Planning Authorities. They are primarily used to inform community councils and others of the planning applications received that week.
Currently there is no requirement for this information to be published online. Rather it is seen as good practice in terms of openness and transparency within the planning system. In line with the Scottish Government's commitment to promote greater involvement in the planning system for all and to allow for the provision of public services electronically, the new section of 36A in the 1997 Act, places a duty on every planning authority to publish a list of applications and proposals of application notices for pre-applications. The terms "publish" includes making it available by electronic means.
This has implications for planning authorities in regards to data protection and authorities should ensure only those requirements set out in planning legislation are made publicly available on the internet. The current information requirements which the list must include are:
- the reference number given to the application by the planning authority;
- the site location;
- the name and address of the applicant or agent; and,
- a description of the proposed development.
Through powers made under the Town and Country Planning (Scotland) Act 1997, as amended by the Planning etc (Scotland) Act, new Development Management Regulations will set out the statutory requirement for what is to be published and will require the planning authority to publish the list of applications on their website.
Should authorities wish to publish information beyond the statutory requirement set out in planning legislation, it is their responsibility to ensure that any information published is compliant with the Data Protection Act 1998, and other relevant legislation.
Authorities have the option of seeking legal guidance where clarification is required to ensure they do not contravene the relevant legislation regarding information disclosure. Advice can also be sought from ICO. 6
3.4 Planning Registers
Section 36(1) of the Town and Country (Scotland) Planning Act 1997 requires planning authorities to keep a register containing information on applications for planning permission, their approval of applications and the manner in which the applications have been dealt with.
Once commenced, the changes made by section 12 of the Planning (Scotland) Act 2006 will require planning authorities to provide a full record of the relevant factors considered in determining each application, including all documents relating to the application and considered in the decision making process, the reasons for the decision, and the material considerations to which regard was had when making the decision. Authorities will have to provide an explanation of how the application has been dealt with and provide a copy of the notice informing the applicant of the authority's decision.
New Development Management Regulations will prescribe the content of the Register for planning permission applications and planning authorities should ensure that this statutory requirement is met. Should Planning Authorities wish to publish any information beyond what is prescribed in Regulations, they should ensure that it complies with the Data Protection Act.
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