LOCAL DEVELOPMENT PLANS
55. LDPs must cover the whole of the authority's area, although one location may be covered by more than one LDP if prepared for different purposes ( e.g. minerals), and LDPs may extend across the areas of more than one planning authority.
56. LDPs should be properly integrated with other statutory plans and strategies affecting the development and use of land. In preparing the LDP, section 16 of the Act requires authorities to take into account the National Planning Framework. Section 16 (6) of the Act requires that, where land to which a local development plan relates is within a SDP area, the planning authority preparing the LDP are to ensure the plan prepared is consistent with the SDP.
57. Regulation 10 also requires the planning authority to have regard to a range of matters including:
- the resources available for implementing the plan;
- any LDPs prepared for other purposes but covering the same area;
- any neighbouring LDPs, SDPs, or local development frameworks;
- any adopted national marine plan or regional marine plan relating to areas adjoining the plan area;
- any regional or local transport strategy, approved flood risk management plan, finalised local flood risk management plan, river basin management plan, or local housing strategy relating to the plan area;
- the national waste management plan; and
- issues arising out of the European Directive on the control of major accident hazards involving dangerous substances.
In addition, section 14 of the National Parks (Scotland) Act 2000 requires local authorities to have regard to the National Park Plan in exercising functions so far as affecting a National Park.
58. The normal process for preparing LDPs is set out in Figure 2 alongside the environmental assessment process and indicative timings.
Monitoring and the Evidence Base
59. An early task of planning authorities will be to monitor:
- changes in the principal physical, economic, social and environmental characteristics of the area; and
- the impact of the policies and proposals of the existing plan(s).
60. Evidence is required to inform plan-making, justify the plan's content, and provide a baseline for later monitoring. Information gathering and analysis should serve efficient high quality plan-making. Certain aspects of the evidence base (such as Housing Need and Demand Assessment, and transport appraisals) are likely to be essential at each plan review. Authorities should therefore take a proportionate approach and consider what is required, and where scarce resources can best be spent, to inform the particular issues being addressed in the plan. A robust evidence base will also be critical at any subsequent development plan Examination.
61. As a product of this exercise, section 16 of the Act requires the planning authority to publish a Monitoring Statement. The Monitoring Statement should summarise the evidence base for the plan and may signpost to other background reports or studies. The Monitoring Statement is likely to focus on the wider impact of the plan on area and population-wide indicators and on how far the objectives and vision of the previous plan have been realised. It will be one way of identifying the issues to discuss in the Main Issues Report. The planning authority is to publish the Monitoring Statement, including electronically, alongside the publication of any Main Issues Report.
62. Evidence should be presented in a form that can be readily understood. Authorities should be conscious that the evidence base is also likely to be used at the Examination. Effective use of resources should therefore avoid having to do work later specifically for the Examination. Planning authorities should keep an audit trail on how the evidence base may have changed between the MIR and Proposed Plan stages.
63. In preparing the evidence base and Main Issues Report, authorities should think ahead to the requirements on form and content of the plan as set out in paragraphs 77-81 below.
64. Many authorities run a 'Call for Sites' prior to preparing the Main Issues Report. This is not a requirement of the legislation, but it can be a useful part of the process. This stage allows landowners and prospective developers to put forward for consideration by the planning authority the sites for which they have an aspiration for development. It is important in meeting the requirements for strategic environmental assessment that full information on sites and alternative options is submitted early and not held back until the later stages of plan preparation or even the Examination. Promoters of sites would be advised to respond positively at this point, and to provide the necessary evidence to justify their site's inclusion as a preferred option at the Main Issues Report stage. Engaging at this early stage is likely to ensure that the planning authority is able to properly assess the merits of the proposal, with it being more likely to be subject to public engagement and strategic environmental assessment at the Main Issues Report stage and to neighbour notification at the Proposed Plan stage (should the planning authority propose that the site be allocated in the plan). Even if a site is not included in the Proposed Plan, evidence of it being subject to community engagement will be useful if the issue is considered at a subsequent Examination, helping ensure that the reporter is furnished with the necessary information to reach a conclusion, and if appropriate to recommend a modification to the plan.
Main Issues Report
65. With a view to facilitating and informing their work in preparing a LDP, Section 17 of the Act requires planning authorities to first compile a Main Issues Report. Main Issues Reports are key documents in terms of front-loading effective engagement on the plan, and aligning development planning with Strategic Environmental Assessment ( SEA). All LDPs require both a SEA and a Habitats Regulations Appraisal ( HRA). The Main Issues Report should be informed by a sound evidence base (as discussed in paragraphs 59-64 above).
66. LDPs should be fully co-ordinated with other key strategies from the earliest stage, with key infrastructure providers signed up to the delivery of the emerging proposals. Therefore, in compiling the Main Issues Report ( i.e. before its publication), section 17(4) of the Act and regulation 11 requires the planning authority to consult with and have regard to any views expressed by:
- the key agencies;
- the Scottish Ministers;
- any adjoining planning authority (including national park authorities and SDPAs); and
- any planning authority within the same SDPA as the LDP area.
67. The Main Issues Report is not a draft version of the plan. It will concentrate attention on the key changes that have occurred since the previous plan and on the authority's big ideas for future development. However, it still needs to be site specific and should set out the authority's proposals for development, in particular where these developments should and should not occur. The MIR should identify the planning authority's preferred options but it also needs to consider reasonable alternatives, where these are available. The selection of the preferred sites should be based on a understanding of place, together with consideration of deliverability factors such as site viability and housing land effectiveness. The principles of setting out the preferred option and any reasonable alternatives also apply to policy matters, where a policy issue is a main issue. MIRs should not just ask wholly open questions about a policy area as this will give no indication as to the planning authority's likely position on a policy matter in the Proposed Plan. Instead MIRs should indicate the planning authority's preferred policy approach (without necessarily getting into the detailed wording of a proposed policy), and reasonable alternatives to this where they are thought to exist. This will allow a more informed and early debate on the realistic policy options which exist, and better environmental assessment of these.
68. The report has to draw attention to the ways in which the preferred and alternative proposals differ from the spatial strategy of the existing adopted LDP (if any). There is no legal requirement to draw such a comparison with existing local plans, but it would be good practice to do this within the first generation of Main Issues Reports. It is useful at the outset for planning authorities to think ahead to the type of document they envisage their Proposed Plan being, in terms of style, form and content, as this can help shape thinking on the aspects to be covered in the MIR and to ensure a consistency in style between the MIR and Proposed Plan. Content that the authority proposes to retain in the Proposed Plan from the existing plan such as particular policies, or which does not have a significant environmental or other effect, should be identified in the MIR but with limited discussion.
69. The Main Issues Report is a key stage for SEA, and has to be accompanied by the Environmental Report during the consultation. The report therefore needs to contain enough detail and consider alternatives sufficiently at the strategic, policy and site-specific level to meet the statutory requirements for environmental assessment. Planning Advice Note 1/2010 provides guidance on how the SEA and development plan processes relate.
70. As set out in paragraph 21, Ministers expect authorities to employ a range of innovative methods to meaningfully engage with their stakeholders and communities. The nature of this engagement activity is likely to shift as the plan progresses. In the early stages, the authority should concentrate on involving stakeholders in identifying and assessing issues and options. This could include the use of charettes or other visioning tools to bring interested parties together to focus on an issue or area.
71. When the authority's thinking starts to coalesce around preferred options at the time of the Main Issues Report, the approach should be more consultative: asking people to respond to proposals and potential alternatives. Main Issues Reports are the principal opportunity for consulting stakeholders on the content of the plan and involving the wider public. Consultation on the Main Issues Report should come before the planning authority has reached a firm view as to the strategy. It is important at this stage that the authority be genuinely open, and willing to consider new or different ideas, and not resolved simply to defend their preferred proposals. Main Issues Reports have to be engaging documents that encourage the public and other wider stakeholders to read and respond to them. Main Issues Reports may be viewed as progress reports issued in the course of an ongoing process of engagement that will last throughout the period of the plan's preparation.
72. Following publication of the Proposed Plan the character of engagement will change again: the authority should have now reached a settled view, and the emphasis should be on providing specific information and facilitating representations.
- Publishing in a local newspaper circulating in the area and on the internet a notice setting out:
− that the document has been produced 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:
− the key agencies;
− neighbouring planning authorities;
− planning authorities within the same SDPA; and
− community councils;
- Making a copy of the document available to inspect at an office of the planning authority and in public libraries; and
- Publication on the internet.
74. The Act requires authorities to secure that people who may be expected to want to comment on the Main Issues Report are made aware that they can do so, and are offered such an opportunity. This is the main chance for stakeholders to influence the later Proposed Plan. Therefore, those making representations to the Main Issues Report should at this point provide the authority with all evidence necessary to persuade it. In the event that the planning authority does not agree, then that material can be referred to again in representations made to the Proposed Plan, and as such would subsequently be available to a reporter examining the unresolved issues.
75. In publishing the Main Issues Report, the authority is to send a copy of it to Scottish Ministers, along with the Monitoring Statement.
76. These publication requirements are a statutory minimum. Scottish Ministers' expectation is that authorities will have already carefully considered, through their Participation Statement, the best ways of engaging stakeholders and the wider public at the various stages of plan preparation.
Proposed Plan - Form and Content
77. Having had regard to the representations received on the Main Issues Report, Section 18 of the Act requires the planning authority to prepare and publish a Proposed Plan.
78. The Proposed Plan should address the spatial implications of economic, social and environmental change, be clear about the scale of that anticipated change and in particular identify opportunities for development and set out the authority's policies for the development and use of land. Scottish Ministers expect the Proposed Plan to represent the planning authority's settled view as to what the final adopted content of the plan should be. The content of the Proposed Plan should be developed taking account of placemaking principles, environmental impact and deliverability. The planning authority should also at this stage think about the likely timescale and any necessary sequence of development, and any actions required to deliver the plan (see also paragraphs 130-134 on Action Programmes). Further details on the content of LDPs are in Table 1.
79. Scottish Ministers expect LDPs to be concise, map-based documents, making use of plain language and a range of graphical techniques to convey the strategy and individual policies and proposals in an accessible way. Ministers expect Proposed Plans to be shorter than the Main Issues Report, as they do not need to set out discussion on alternatives.
80. Planning authorities should be able to demonstrate the underlying reasons for their preferred development locations and policies. This stage should not be used to 'test the water': new or controversial elements of plan content should already have been aired at the Main Issues Report stage (at least as reasonable alternatives). If a particular issue or site arises that was not consulted on in the MIR, the planning authority may need to carry out further consultation on that particular issue before publishing its Proposed Plan, if it wants to include it in the plan. Planning authorities should be prepared to justify their position at any subsequent Examination of the plan.
81. Minor proposals and detailed policies may be removed to Supplementary Guidance, especially if there is no significant change from the previous plan, and provided an appropriate context remains in the plan itself. The plan should however include all the allocated sites and committed sites. Further information on Supplementary Guidance is in paragraphs 135-150.
LDPs in SDP areas
LDPs outside SDP areas
Publication and Notification of Proposed Plan
82. Publication at the Proposed Plan stage is subject to the same minimum requirements as for the Main Issues Report as described at paragraph 73 above, but the authority must allow at least six weeks for representations to be made. The legislation additionally requires the planning authority to:
- send a copy of the Proposed Plan to each key agency;
- consult the key agencies and Scottish Ministers;
- notify any person who commented on the Main Issues Report;
- notify the occupiers and neighbours of some specific proposal sites (see paragraph 83); and
- on the rare occasions that a Proposed Plan is republished following changes to the underlying aims or strategy of an earlier Proposed Plan, consult people who made representations on the original plan.
83. The planning authority must notify the owners, lessees or occupiers of sites which the Proposed Plan specifically proposes to be developed and which would have a significant effect on the use and amenity of the site. It must also notify the owners, lessees or occupiers of land neighbouring ( i.e. within 20 metres of) sites which the Proposed Plan specifically proposes to be developed and which would have a significant effect on the use and amenity of the neighbouring land. Notification is only required where there are premises on the site or neighbouring land. In both cases, the authority should use the form included at Schedule 2 of the regulations, or similar, and enclose a map of the site. The notification is to be addressed to the "owner, lessee or occupier" of the premises, and not to a named individual.
84. Representations by stakeholders and the general public should be concise (Ministers expect representations to be no more than 2,000 words plus any limited supporting productions), but should fully explain the issues wished to be considered at the Examination. It is useful if promoters of alternative sites obtain and provide information on environmental impact and community opinion as part of their representation, if this does not already exist. 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, as this will then form part of the material available to the reporter at any subsequent Examination. Authorities may therefore wish to consider offering a longer period, of up to 12 weeks for complex plans, to give parties sufficient time to formulate their case in full.
85. Section 18(3) to 18(9) and regulations 12 and 15 deal with pre-Examination modifications. Following the close of the period for representations on the Proposed Plan, planning authorities may make modifications, but only so as to take account of representations, consultation responses or minor drafting and technical matters.
86. There are four possible ways forward:
- (1) Where no representations have been received, or all representations have been withdrawn or fully taken account of by 'non-notifiable modifications' ( i.e. only minor modifications such as minor wording or typographical changes):
− the authority are to publish the plan, submit it to Scottish Ministers and advertise their intention to adopt it.
Where there are unresolved representations and the authority:
- (2) decides not to make 'notifiable modifications' ( i.e. makes no significant modifications):
− they are to publish the plan (they may make non-notifiable modifications such as minor wording or typographical changes), and submit it to Scottish Ministers;
- (3) decides to make 'notifiable modifications' (defined in Regulation 15 as those that add, remove or significantly alter any policy or proposal in the plan):
− section 18(5) of the Act sets out that the planning authority are to publish the proposed local development plan as modified - i.e. not just a list of the modifications.
− The minimum publication requirements are the same as at the Main Issues Report stage, as set out at paragraph 73.
− The making of 'notifiable modifications' brings with it a further opportunity to make representations. The modified version of the whole of the Proposed Plan will be subject to consultation, although the authority may wish to separately highlight the modifications.
− Where the planning authority proposes notifiable modifications, they are required (under Regulation 15(2)) to give notice to the owner, lessee or occupier of any premises situated on a 'relevant site' or on neighbouring land. Relevant site means land in respect of which a modification removes, alters or introduces a specific proposal for the development of that land which if implemented would be likely to have a significant effect on the use or amenity of that land or neighbouring land (Regulation 15(4)).
− A form is provided in Schedule 3 to the Regulations for the planning authority to use to as the form of notice for 'Notification of modifications made to the proposed local development plan' when notifying the owner, lessee or occupier of any premises situated on a 'relevant site' or on neighbouring land. It should also be accompanied by a map showing the location of the relevant site in question (Regulation 15(3)). The authority must specify a date (at least 6 weeks ahead) by which further representations may be made.
− The authority would also have to update the Environmental Report, considering the potential environmental impacts of the modifications.
− Following receipt of any representations on the modified plan, the authority may then further modify the plan or submit it to Ministers.
- (4) intends to make modifications that change the underlying aims or strategy of the Proposed Plan:
− they are required to prepare and publish a new proposed LDP.
Following the preparation of a new Proposed Plan, there would be publication and notification requirements, including notifying the owners, lessees and occupiers of all sites specifically proposed in the plan to be developed, and the neighbour notification of the owners, lessees and occupiers of the neighbouring land as set out in paragraphs 82- 83.
87. From the Proposed Plan stage, Scottish Ministers expect an authority's priority to be to progress to adoption as quickly as possible. Pre-Examination negotiations and notifiable modifications can cause significant delay and so should not be undertaken as a matter of course, but only where the authority is minded to make significant changes to the plan. However, if authorities do wish to support a significant change to the plan, this should be done by pre-Examination modification, as set out in paragraph 86 (3) above. The Examination also provides an opportunity to change the plan, so if authorities see merit in a representation they may say so in their response to the reporter, and leave them to make appropriate recommendations.
Submission to Scottish Ministers
- their proposed Action Programme;
- a report of conformity with their current Participation Statement; and
- (if there are unresolved representations) a request that Scottish Ministers appoint a person to examine the Proposed Plan.
If possible, it would also be good practice to submit the material required under regulation 20 (and set out in paragraph 109) at this time.
89. The planning authority should include a Habitats Regulations Appraisal Record with the submission of their proposed LDP to Scottish Ministers. The HRA record should be a short document setting out in succinct terms:
- how the authority has determined that there is not likely to be a significant effect on a European site (if that is the case); and
- where a likely significant effect has been determined and an Appropriate Assessment has been undertaken, the conclusions reached and what action is proposed or has been taken to comply with the Habitats Regulations;
- a copy of any relevant correspondence from SNH.
Regulation 85B(5) of the Habitat Regulations  refers. Failure to provide such information could result in delays to the processing of the plan.
- placing a notice in one or more local newspapers stating that the LDP has been submitted, when this happened, and where and when the plan may be viewed;
- making copies available in an office of the planning authority and public libraries; and
- publishing on the internet.
91. On receiving the proposed LDP, Scottish Ministers will, if there are unresolved representations, appoint a person(s) to examine the plan. The Examination process is discussed further from paragraph 105 below.
92. The recommendations contained in Examination Reports are largely binding on planning authorities. Planning authorities may depart from the recommendations only in specific defined circumstances. These are set out in Regulation 2 of the Town and Country Planning (Grounds for declining to follow recommendations) (Scotland) Regulations 2009 and Section 19(11) of the Act. The circumstances where authorities may depart from recommendations are where the recommendation(s):
(a) would have the effect of making the LDP inconsistent with the National Planning Framework, or with any SDP or national park plan for the same area;
(b) is incompatible with Part IVA of the Conservation (Natural Habitats etc) Regulations 1994;
(c) 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;
(d) are based on conclusions that could not reasonably have been reached based on the evidence considered at the Examination.
93. Where, having considered a proposed recommendation, the authority considers 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 modified by the recommendation, would not adversely affect the integrity of the site, the recommendation should not usually be adopted - for exceptions see paragraph 104.
94. Criterion (d) above addresses the possibility of clear errors (including factual errors) having been made by the reporter. It does not relate to circumstances where the planning authority disagrees with the planning judgement reached by the reporter.
95. Subject to these exceptions, section 19(10) of the Act requires authorities to make the modifications recommended in the Examination Report, and any other requisite modifications. The intention is that these other, requisite modifications should be wholly consequent on the reporter's recommendations ( e.g. to rectify any factual or terminological inconsistencies created by the reporter's recommended modifications, or any necessary adjustments to tables, maps, schedules and text which are solely required to ensure that the whole of the plan properly reflects the terms of the modification which has been recommended). The planning authority should not make any unconnected modifications.
96. The planning authority are now to publish the modifications (if any) and the plan as they propose to adopt it by (section 19(10) of the Act and regulation 17):
- Publishing a notice in one or more local newspapers stating:
− that the authority propose to adopt the Proposed Plan;
− whether the plan has been modified following the Examination; and
− where and when the plan (as modified if appropriate) and the modifications (if any) may be inspected;
- Making copies of the Proposed Plan (as modified if appropriate) and the modifications (if any) available to inspect at the planning office and in all public libraries and on the internet; and
- Notifying people who made representations on the proposed or modified plan prior to the Examination that the Proposed Plan has been published in the form in which the authority propose to adopt it, and where and when it can be viewed.
97. Within three months of receiving the Examination Report, section 19(12) of the Act requires authorities to send to the Scottish Ministers:
- the modifications made following receipt of the Examination Report;
- a statement setting out any recommended modifications that the authority has not made and the explanation for this (by reference to the grounds listed above);
- the Proposed Plan they wish to adopt;
- the Report of the Examination;
- the advertisement of their intention to adopt the plan; and
- any environmental assessment carried out into the Proposed Plan as modified.
98. 28 days after this, the authority may adopt the plan unless directed not to by the Scottish Ministers. Scottish Ministers have a default power under the Act (section 20) to direct the planning authority to consider modifying a LDP, or for Scottish Ministers to approve the plan themselves. Ministers expect they will rarely use this power.
- send two copies to Scottish Ministers;
- publish it, including electronically;
- place copies in public libraries;
- notify people who made representations on the proposed or modified plan of its publication and its availability in public libraries; and
- advertise its publication and availability in a local newspaper.
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