Planning Advice Note 3/2010: community engagement

COMMUNITY ENGAGEMENT IN THE PLANNING SYSTEM

23. This section sets out the statutory requirements of the planning system plus advice to communities, developers and planning authorities on engaging effectively. Flowcharts of the planning system are included and highlight the main areas of community engagement.

The Preparation of Development Plans

Introduction

24. Development plans are key documents in the planning system. They identify:

• where development should and should not take place;
• the main factors that will be taken into account when decisions are made on applications for planning permission; and
• allocate sites for specific land uses such as housing, retailing, business and industry; or developments such as schools, health centres and waste management facilities.

They may also protect land from development - for example leaving open space such as parks and areas for natural heritage purposes. These allocations establish the principle that a site may be used, or protected, for a particular purpose.

25. Development plans are not prepared in isolation. Plans are also bound by European obligations and national and regional strategies such as the National Planning Framework or transport strategies. Additionally all development plans fall under the provisions of the Environmental Assessment (Scotland) Act 2005 and must be subjected to a strategic environmental assessment. A requirement for public engagement is an integral part of the process.

26. It is vital that planning authorities are clear about the constraints on decisions when engaging communities in development planning. This should help communities understand which aspects of the plan are fixed and which aspects the community can influence.

27. All planning authorities are required to prepare local development plans for their areas. These contain a detailed statement of the authority's policies and proposals for development and land use. Strategic development plans are required only in Scotland's 4 biggest city regions and set out a vision and spatial strategy for development, identifying the key location and priorities for protection, development and regeneration up to 20 years ahead. Authorities may also produce supplementary guidance in connection with either strategic or local development plans. It is anticipated this would contain detailed policy inappropriate for inclusion in the plans themselves, including masterplans for particular sites identified in the plan.

28. It is the role of the planning authority, including councillors, to promote wider public awareness of development plans by engaging actively with the people they represent. The community has an important role in engaging positively with the planning authority to ensure all parties have a common understanding of the issues.

Wide publicity for the plan Planning authorities should aim to widely publicise the plan and use engagement methods which fit into everyday lives. This might include considering for example: stands at community events, supermarkets, shopping centres or public buildings; articles and advertisements in the local press and the use of electronic information through websites and e-mail; • a strategy for raising awareness through the local press and media; timing issues, for example avoiding starting a consultation during main holiday periods when many people will be away, or if it is unavoidable, extend the period of engagement.

Development Plan Schemes In taking stock of progress on the new development plans, the Government's Directorate for the Built Environment identified a number of good examples of Development Plan Schemes and some of the innovative approaches to community engagement being suggested. Schemes were seen as being good examples where they were clear, concise and written in accessible language. They specified "who, what and when" and were easily printable from the web.

• Preparing a plan

29. Every year each planning authority publishes a Development Plan Scheme which sets the timetable for plan preparation. The Scheme will include a Participation Statement, which sets out how and when people can get involved in plan preparation. Scottish Ministers expect the range of techniques contained in such statements to be innovative with activities for consulting stakeholders tailored to local circumstances and the issues being dealt with in the plan. Planning authorities publish their development plan schemes on their website and make a copy available in all local libraries.

Engaging early Community groups are encouraged to look at the development plan scheme and provide feedback on the proposals for engagement. If community groups have particular preferences as to how and when they wish to be consulted on development plans, they are advised to inform the planning authority of this at the earliest opportunity.

Minimum legal publication requirements - main issues report, proposed plan and modified plan stages for strategic and local development plans

Publication of a notice in one or more local newspapers and on the internet, setting out: That the document has been prepared, and where and when it may be viewed; A brief description of the content and purpose of the document; Details of how further information may be obtained; and A statement that representations may be made, and how, to whom and by when they should be made. Sending this information to: Key agencies; Other planning authorities or Strategic Development Planning Authorities; and Community councils within the plan area. Making a copy of the document available to inspect at an office of each planning authority and in all public libraries in the plan area; and Publication on the internet. (These requirements are set out in Part 2 of the Planning etc. (Scotland) Act 2006 and the Town and Country Planning (Development Planning) (Scotland) Regulations 2008)

Table: DEVELOPMENT PLAN (NORMAL PROCESS) including STRATEGIC ENVIRONMENTAL ASSESSMENT

	PUBLIC ENGAGEMENT	TYPICAL TIMINGS
		Time (weeks)	Cumulative (weeks)
Publish Development Plan Scheme (including Participation Statement)
Prepare Monitoring Statement and Main Issues Report ( MIR)	Opportunity to scope out MIR with communities. Engage with key agencies etc. Submit Scoping Report to the SEA Gateway and undertake statutory consultation as a minimum.
Publish and consult on Main Issues Report, Monitoring Statement and Environmental Report	Undertake widespread consultation activity including alerting community councils. Make available at libraries and at planning office. Advertise in local paper and on the internet. Environmental Report submitted to the SEA Gateway, advertised and published alongside the MIR for consultation.	6	6
Consider responses and prepare Proposed Plan and Action Programme ( AP)		36	42
Publish Proposed Plan, Proposed Action Programme and Environmental Report	Publicise publication of proposed plan and opportunity to make representations. Alert community councils. Make available at libraries and at planning office. Publish in local paper and on the internet. Notify occupiers and neighbours of some specific proposal sites ( LDPs only). Notify people who commented on MIR. If required, advertise and consult on any updates to the Environmental Report.	12 (6 minimum)	54
Consider responses. Prepare response and Report of Conformity with Participation Statement. (Prepare Modifications to plan and AP if required).		23	77
Submit Proposed Plan, AP and Statement of Conformity with Participation Statement) (as modified if relevant) with Note of Representations and how taken account of to Ministers	Publicise submission of plan. Advertise in local newspaper. Publish on internet. Make copy available at planning office and public libraries.	1	78
Examination of Proposed Plan		35	113
Report published and submitted to Ministers and SDPA ( SDP) or planning authority ( LDP)		0	113
Plan adopted by planning authority ( LDPs) or approved by Scottish Ministers ( SDPs)	Publicise intention to adopt plan: publish notice in local newspaper; make copies available on internet, in planning office and in libraries; and notify people who made representations.	17	130

30. Main Issues Reports identify the key areas of change that need to be addressed in the plan. The Main Issues Report should be accompanied by a Strategic Environmental Assessment Environmental Report, which is also publicly consulted upon. Some planning authorities have taken the opportunity to consult in advance of the Main Issues Report. Representations received during the 6 week minimum participation period on the Main Issues Report will provide the planning authority with important views from the public and other stakeholders and will assist in the preparation of the proposed plan.

Gauging Opinion Planning authorities should look to gauge community opinion in the course of preparing Main Issues Reports, in addition to seeking dialogue and inviting representations following their publication. Planning authorities should tailor this engagement to focus on the issues under discussion and on relevant audiences. For example, where a plan is likely to propose a significant number of new houses but few other changes to the overall strategy, the engagement could focus on the options for different housing sites and target the communities likely to be most affected.

31. Following analysis of the comments received on the Main Issues Report, the proposed plan will be prepared and published. There is then another 6 week minimum period for people to make formal representations. Neighbours significantly affected by site specific proposals in the proposed local development plan will be notified directly by the planning authority to ensure they are aware of the proposals.

32. The planning authority should seek to resolve differences and build support for the proposals through discussion and negotiation prior to the publication of the proposed plan. Where communication has broken down, the use of mediation may be productive (see A Guide to the Use of Mediation in the Planning System in Scotland). Where objections are not withdrawn an independent Development Plan Examination by the Scottish Government's Directorate for Planning and Environmental Appeals ( DPEA) will be held.

33. Development proposals in which the local authority has an interest (financial or land ownership) are handled with greater transparency and rigour. A schedule of land ownership will form part of each local development plan. This will identify sites proposed for development that include local authority owned land.

34. The extent to which the planning authority has met or exceeded its intentions to involve people in the development plan process, as set out in its participation statement, will be assessed, generally by a reporter from DPEA. If the reporter decides that consultation undertaken falls below the level set out in the participation statement, Scottish Ministers have the power to ask for further work to be carried out before the plan proceeds to the next stage. This will ensure that all parties that the authority said it would involve have had a chance to view and comment on the plan. There is also a requirement within the strategic environmental assessment legislation to achieve early and effective engagement by the public in both the plan and appraisal processes.

35. Communities may also get involved in the preparation of other planning documents, for example master plans, development briefs for individual sites and in the supplementary guidance. If supplementary guidance is to be adopted as part of the development plan, consultation is a legal requirement. These may also be subjected to strategic environmental assessment and associated consultation.

Planning authority checklist for community engagement in the Strategic and Local Development Planning process: Annually prepare and publicise a Development Plan Scheme including a Participation Statement setting out how and when people can get involved in the preparation process. Prepare and publish a Main Issues Report to help with early targeted engagement, identifying suitable participatory approaches. Consider responses and seek to strengthen support for the plan and resolve issues through negotiation or mediation. Following review of the representations made, prepare and publish proposed plan and proposed Action Programme. For local development plans only, notify neighbours significantly affected by site specific proposals, along with others who have made previous representations. Take into account responses to consultation on SEA reports, particularly the Environmental Report. Produce a report confirming what engagement has been carried out. This report will be assessed at the examination or approval (Strategic Development Plan) / adoption (Local Development Plan) stages to check how the planning authority has met, or exceeded its intentions set out in the participation statement.

Development Management

Deciding planning applications

36. Development management is the term used for the process of deciding whether to grant or refuse planning permission. The law requires planning decisions to be made in accordance with the development plan unless material considerations indicate otherwise. If a proposal accords with the development plan and there are no material considerations indicating that it should be refused, planning permission should normally be granted. The weight to be attached to any relevant consideration is initially for the judgement of the decision maker, although ultimately it is a matter for the courts. There are a range of considerations which might be considered material in planning terms including legitimate public concern or support expressed on relevant planning matters.

37. The planning system does not exist to protect the interests of one person or business against the activities of another, although in some cases private interests may coincide with public interest. In distinguishing between public and private interests, the basic question is whether the wider community's interest would be unacceptably affected by the proposals, for instance through loss of amenity or loss or damage to land and buildings which ought to be protected, not whether owners or occupiers of neighbouring or other existing properties would experience financial or other loss from a particular development.

Opportunities to engage

38. The legal requirements on community engagement in the planning system depend mainly on the type and scale of the proposed development. The hierarchy of development categorises all developments into national, major or local developments. The hierarchy was introduced in 2009 with additional community engagement requirements for applications for developments which are classed as major or national.
In summary:

National developments - are developments set out in the National Planning Framework;

Major developments - there are 9 classes of development set out in law including developments of 50 or more dwellings, certain waste and transport infrastructure and larger scale mixed use developments; and

Local developments - these are all other developments not categorised as national or major.

Consultation before an application is submitted

39. Prospective applicants are required by law to consult communities before a planning application is made for a national or major development. The purpose of pre-application consultation is for communities to be informed about development proposals and to have an opportunity to contribute their views before a formal planning application is submitted to the planning authority. Its aim is to improve the quality of planning applications, mitigate negative impacts where possible, address misunderstandings, and air and deal with any community issues that can be tackled. During pre-application consultation the dialogue is between the community and the prospective applicant.

40. Where pre-application consultation is required, the prospective applicant must send a proposal of application notice to the planning authority at least 12 weeks before submitting an application for planning permission. They must also send a copy of this notice to relevant community councils. The notice will contain:

i) a general description of the proposed development;

ii) the address of the site (if it has one);

iii) a plan showing the outline of the site;

iv) contact information for the developer; and

v) a description of what consultation the developer is going to undertake, when it will take place, with whom and what form it will take.

41. The planning authority has 21 days to respond if it considers that it wants to see additional notification and consultation beyond the minimum set out in law. The minimum consultation requirement is to consult relevant community councils and hold at least one public event which is advertised in the local press. The advert will give people information about the consultation and must give at least 7 days notice of the event.

42. The public event should be reasonably accessible to the public, including disabled people. The public event may take place over a number of dates, times and places, or can just be one event. Written comments should be sent to the developer in response to the newspaper advertisement. Further guidance is contained in Circular 4/2009: Development Management Procedures.

43. When an applicant submits a planning application for a major or national development, they must also submit a pre-application consultation report. This report confirms that consultation has taken place in line with statutory minimum requirements and any further requirements set by the authority in its response to the proposal of application notice. Planning authorities must decline to determine applications where pre-application consultation requirements have not been carried out.

44. As part of the pre-application consultation report, applicants should set out how they have responded to the comments made, including whether, and in what way, the proposals have changed as a result of this consultation. Whilst under no obligation to take onboard community views, or directly reflect them in any subsequent application, the proposals, if adjusted, should benefit from that engagement and assist the efficient consideration of applications once submitted.

Retaining involvement Pre-application consultation is an additional measure and does not take away an individual or community's right to express views on any subsequent application. It is important that this community interest is followed through to the formal application stage.

Table: PROCESS FOR DEVELOPMENT MANAGEMENT
(NATIONAL AND MAJOR DEVELOPMENTS)

	PUBLIC ENGAGEMENT	STATUTORY TIMETABLE
Pre-application Screening
Submission of a proposal of application notice	Planning authority decides what, if any, additional consultation is required.	Planning authority has 21 days to require additional consultation Minimum 12 week period between the submission of the proposal of application notice and submitting the application
Pre-application processes - Consultation with communities on applications for a national or major development. Plus preparation of a design and access statement if required. Design statements to also accompany certain local developments	The minimum consultation activity - consult the community council and hold a public event (local event to be advertised and that advert to indicate representations can be made to the prospective applicant) advertised in the local press. Other consultation may be required by the planning authority.
	Prospective applicant prepares design / design and access statement setting out what, if any, consultation has taken place plus what account has been taken of the consultation.
	Prospective applicant prepares pre-application consultation report.
Submit application	Applicant submits a pre-application consultation report plus design / design and access statement when required.	Period for determination is 4 months or agreed extended period
Validation and Registration
Processing of the Application	Planning authority - notify neighbours and advertise if necessary. Publish information in the weekly list. Send weekly list to community councils and make available in libraries, planning office and on the internet. Information placed on part I of the planning register.
Consultation with Statutory Consultees	Community councils may seek to be consulted on any application.
Period for Representations	Anyone can make representations on applications.
Report of handling prepared
If application is for a major development significantly contrary to the development plan or a national development - pre-termination hearing followed by decision of the full council	Planning authority must offer opportunity to attend a pre-determination hearing to the applicant and those making representations on the application. Hearings can also be held even when not required in law.
Decision making	Planning authority places information on the decision on part II of the planning register and notifies the decision to those who made representations. Where a petition, the organiser is notified.

Table: PROCESS FOR DEVELOPMENT MANAGEMENT
(LOCAL DEVELOPMENTS)

	PUBLIC ENGAGEMENT	STATUTORY TIMETABLE
Pre-application Screening
Submission of the Application		Period for determination is 2 months, or where an Environmental Impact Assessment is required, 4 months
Validation and Registration
Processing of the Application	Planning authority - notify neighbours and advertise if necessary. Publish information in the weekly list. Send weekly list to community councils and make available in libraries, planning office and on the internet. Information placed on part I of the planning register.
Consult with statutory consultees	Community Councils may seek to be consulted.
Period for representations	Anyone can make representations on applications.
Application determined either by Planning Officer or planning authority committee, depending on the Scheme of Delegation
Decision making	Planning authority places information on the decision on part II of the planning register and notify the decision to those who made representations. Where a petition, the organiser is notified.

Engagement and Information on planning applications

47. Planning authorities are legally required to publicise information on applications and decisions to the wider public in the following ways:

Lists of applications - planning authorities have a list of all applications for planning permission submitted but not decided and proposal of application notices submitted. This list is available on the internet, at the planning office and at public libraries. This may be an on-line version and not necessarily in a paper form.

Weekly lists - planning authorities send community councils in their district a list of applications received in the previous week. This list is also available at the planning office and at public libraries. Again, this may be an on-line version and not necessarily in a paper form.

Planning register - planning authorities keep a register of planning applications.

• Part I of the register contains information on applications which have yet to be determined, including where one has been submitted, a copy of the design / design and access statement and the pre-application consultation report.
• Part II of the register relates to applications which have been determined by the planning authority and contains information on the decision including the report of handling, any environmental statement and the decision notice.

Where applicants seek a local review or an appeal on the grounds of non-determination of their applications, reports of handling and decision notices on the application will not appear on Part II of the register, but the subsequent decision of the Local Review Body or of Scottish Ministers will.

Decisions on applications - as well as sending the decision notice to the applicant, the planning authority informs everyone who made a written representation on the application of the decision and where a copy of the decision notice is available for inspection. The process is slightly different where comments are made as part of a petition.

48. Planning authorities now provide a wide range of planning information online. This generally includes information about current planning applications including submitted plans and supporting documentation. In many authorities representations can also be submitted online.

E-planning Planning applications can also be submitted online. The ePlanning Scotland website ( www.eplanning.scotland.gov.uk) can be used to: make planning applications and appeals online; buy an online location plan; use the checklist to make sure all the necessary information is provided; attach plans, drawings and other documents to support the application; use a fee calculator to work out the correct fee; create an account to make more applications; and share information with neighbours, clients or colleagues.

Neighbour notification and publicity

49. Everyone has the right to comment on a planning application - the wider community as well as those who could be directly affected such as neighbours.

50. Neighbour notification requirements seek to give those likely to be most affected by proposals notice that a planning application has been submitted. It is the responsibility of the planning authority to write to owners, occupiers and lessees of "neighbouring land" at any premises on such land once the planning application and supporting drawings and plans are available to view.

51. Where there are no premises on the neighbouring land, the application must be advertised in the local press. There are further requirements to publicise applications in the local press which include where an applicant has been unable to notify the owners of the site of the proposed development or the development is of a class specified in regulation as one likely to have wider impacts on amenity ( e.g. hot food shops and licensed premises). The requirements for neighbour notification and advertising are set out in the amended Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008 and further guidance is contained in Circular 4/2009: Development Management Procedures.

52. The period for making comments on a planning application in response to neighbour notification is no less than 21 days from the date of the notice. Where the application is advertised in the local press, then the period for responding is no less than 14 days from the date of the advert. The period within which representations should be made will be set out in the notice or advert.

Consultation with the community council

53. As noted above, community councils must be consulted on development plans and where pre-application consultation is required for applications for national and major developments. The law also requires them to be consulted:

• where the community council, within 7 days of receiving the weekly list containing information about an application, informs the planning authority that it wishes to be consulted; and
• where the development is likely to affect the amenity of the community council's area.

54. Planning authorities must give community councils at least 14 days to consider and respond to the application before they determine it. As with all representations, those which contain relevant considerations may be accepted any time before an application is decided on.

Commenting on applications Most cases should be handled within the timescale set out in legislation. But the 14 day period is a minimum and it is open to a community council, like any other statutory consultee, to ask the authority to use its discretion to allow a reasonable extension in special cases: for example those which are unusually complex or controversial.

Enhanced scrutiny

55. When an application for a national development or for a major development which is considered to be significantly contrary to the development plan, the planning authority will provide an opportunity for a pre-determination hearing. Anyone who has submitted views on the planning application will be able to make their views known to a Committee of the Council before the decision is made. The final decision on the application will be made by the full Council.

Notification to Scottish Ministers

56. Where the planning authority proposes to carry out development itself, or has some other interest in a proposed development, it will be subject to the same requirements as any other planning application. Also, where the local authority considers that such a development proposed is significantly contrary to the development plan for the area, the application will also be subject to notification to Scottish Ministers in the event the planning authority wish to grant planning permission. This gives Ministers an opportunity to consider intervening in the handling process by calling in the application for their own determination. This is instead of the planning authority being the decision maker, if there are any issues of genuine national interest at stake.

Appeals and Local Reviews

57. Where planning permission is refused, or where the planning authority has failed to make a decision within a specific timescale, the applicant can challenge the decision or non-determination by making an appeal. It is only the applicant who can make an appeal or seek a review of the decision. The appeal will be made to either the Local Review Body ( i.e. local developments delegated to an officer for decision) or the Scottish Ministers ( i.e. local developments not delegated to an officer for decision plus all major and national developments).

Planning authority checklist for engaging people in the planning application process Ensure that applicants have, where required, fulfilled pre-application consultation with the community by assessing the pre-application consultation report. Maintain a list of applications to be determined. Prepare a weekly list of new planning applications received. Notify neighbours of planning applications allowing at least 21 days for people to comment from the date of the notice. If publicised in the local newspaper, at least 14 days from the date of the advertisement. Provide an opportunity for pre-determination hearings for national developments and for major developments which are significantly contrary to the development plan. Give reasons for all decisions - approvals as well as refusals. Follow procedures for development proposals where there is a local authority interest. Place more information on the Planning Register with decision notices and reports of handling. (The legal requirements set out above can be found in the amended Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008.)

58. The applications for local development which can go before the Local Review Body are set out in the planning authority's Scheme of Delegation. Each planning authority has individually prepared such a Scheme which specifies the cases which can be delegated. With the exception of a legal bar on delegating certain council interest cases, the sorts of triggers preventing delegation are a matter for the individual planning authority. Examples of triggers used by local authorities include the number of representations or an objection from a specified statutory consultee. Schemes should be available on the planning authority website with copies also available on the Scottish Government planning website. All other appeals, including those on major and national developments will go to Scottish Ministers.

Further information on appeals to Ministers can be found in A Guide to Planning Appeals in Scotland which is available on the Scottish Government website at www.scotland.gov.uk.

59. Appeals and local reviews examine all relevant information which had been before the planning authority when it considered the application - including letters of representation from local people, community groups etc. The Scottish Ministers (through the Directorate for Planning and Environmental Appeals) or the Local Review Body might contact people who have already participated in the application if they need any additional information or evidence before making a decision.

Enforcement

60. For many people, their first contact with the planning system is, unfortunately, when they complain to the planning authority about apparent breaches of planning requirements. Breaches of planning control fall into two broad categories; unauthorised development - including development without planning permission, and breaches of planning conditions which were attached to a grant of planning permission. Guidance on the Government's policy on the use and range of enforcement powers available to planning authorities can be found in Circular 10/2009: Planning Enforcement.

Planning Enforcement

61. Planning authorities are required to publish a regularly reviewed and updated Planning Enforcement Charter. The Charter should set out in clear terms their policies in respect of planning enforcement so that members of the public can understand how to raise concerns about suspected breaches of planning control and how these will be investigated and addressed.

The Scottish Government has prepared a model charter available at www.scotland.gov.uk. A planning authority must, when preparing its charter, have regard to this guidance as an example of the sort of information the charter should contain.

Planning Enforcement Charter checklist: Explain the planning authority's policies on enforcement action. Explain how members of the public are to notify breaches of planning control to the authority. Explain how members of the public and developers will be made aware of the procedures for complaints about the way enforcement action was taken by the authority and explain how complaints about enforcement action will be dealt with by the authority. Review, update and republish the Charter at least every two years, or as directed by Scottish Ministers. Publicise the charter with copies in local libraries and on the council's website.

Community Engagement - Other Examples

Good Neighbour Agreements

62. Section 24 of the Planning etc (Scotland) Act 2006 will, when implemented, introduce formal procedures for establishing good neighbour agreements ( GNAs). These will be voluntary arrangements between a community body and developer or site operator. There is no obligation on either party to enter into such an agreement, however, where there is a shared commitment to set a framework for liaison around how a site operates then good neighbour agreements can have a number of benefits. Once agreed, an agreement may be recorded in the Register of Sasines or the Land Register of Scotland and runs with the land, i.e. it is binding on any future landowner. The 2006 Act also introduces a formal mechanism that allows GNAs to be modified or discharged should circumstances change.

Environmental Impact Assessment

63. For those proposals which require an environmental impact assessment, applicants must make a non-technical summary of the Environmental Statement available. The purpose of the non-technical summary is to ensure that the key points of the Environmental Statement can be more readily understood by the lay person. It should set out the main findings of the Environmental Statement in accessible, plain English, in a manner which is both accurate and balanced. Further guidance is available in Planning Advice Note 58: Environmental Impact Assessment.