Planning - pre-application consultation requirements - proposed changes: consultation analysis

2. Proposed Changes to PAC Regulations

2.1 Introduction

2

2.1.1 This section sets out the views and opinions of the respondents to the proposed changes to the PAC regulations and is organised as follows:

• Section 2.2: the provision of information – Q1
• Section 2.3: an additional public event – Q3 to Q6
• Section 2.4: content of the PAC report – Q7
• Section 2.5: exemption from PAC – Q8 to Q12

2.2 Provision of Information

2.2

2.2.1 Under the Development Management (DM) regulations^[1], the PAC newspaper notice is required to include "details as to where further information may be obtained concerning the proposed development" and this is understood to refer to a physical location and format. Included in the miscellaneous temporary provisions brought in during the COVID-19 emergency was the option to provide this information by electronic means. The consultation proposes that the DM regulations should be amended to allow the provision of information both in hard copy and by electronic means.

Q1. Do you agree with the proposal to require PAC information, which is to be made available to the public, to be available both by electronic means and in 'hard copy' format?

2.2.2 The table below shows whether respondents agreed with the proposal to require PAC information to be available by both electronic means and in hard copy format. There was substantial support with the majority (94%) of respondents agreeing with the proposal. There was support from all groups with a small number of individuals and planning authorities disagreeing with the proposal.

Do you agree with the proposal to require PAC information, which is be made available to the public, to be available both by electronic means and in 'hard copy' format?

	Yes	No	No View	Not Answered	Total
Community Bodies	3				3
Community Councils	29				30
Developers	16				16
Individuals	18	3	1		22
Planning Authorities	16	1	1		17
Planning/Other Consultants	6				6
Public and representative Bodies	14			1	15
Total	102	4	2	1	109
% respondent answering question	94.4	3.7	1.9

2.2.3 There were 88 comments on the format of PAC information. Responses are considered separately for those agreeing and those disagreeing with the quantitative part of the question. The themes are described below in descending order of comments received.

Agreed

Important to Have Both Formats

2.2.4 The majority of comments related to the importance of having both hard copy and electronic formats to allow access to the information. This was true across all respondent groups. Within this broad theme a number of points were made:

• Many respondents across all seven groups felt that community engagement is most effective when different means are used to reach different audiences and would like electronic and hard copy formats to be available to enhance access to information.
• Many respondents (community councils, planning authorities, public and representative bodies, developers) believe having an electronic format will ensure the widest access to information and encourage community engagement and participation in the PAC process through easy access.
• Many respondents (particularly individuals) noted that while having an electronic format helps access, it is important to recognise not everyone in the community has access to online technology or the ability to use this format so both formats are necessary.
• Several developers responded with a request that hard copy documents should be phased out over time to reduce the overall cost of the planning process, while recognising the need to be inclusive.

Other Comments

2.2.5 A number of other comments were made, including:

• Several (public and representative bodies, developers) suggested further streamlining of the planning system including reducing the requirement for hard copies over time and using local targeted media in place of newspaper notices.
• A few developers added that they would welcome consideration of how the planning system can continue to support the digitalisation agenda including the digitalisation of the Environment Impact Assessment (EIA) process.
• A few respondents (community bodies, public and representative bodies) suggested planning authorities should regulate the quality of the information provided regardless of the format.
• One planning authority noted moving to online information may reduce the numbers attending physical events which could lead to less understanding of the development and less discussion with the developer.
• One consultant felt clarification is required on whether a fee could be charged to those requesting hard copies of information which is otherwise available electronically.

Disagreed

Electronic Format Only

2.2.6 A few respondents (individuals, planning authorities) felt that the PAC information should only be available electronically. Hard copies are not required as most people have online access. It was suggested having electronic format would mean the information is likely to reach a wider audience.

Disagree with PAC Generally

2.2.7 One individual disagreed with the concept of PAC generally and felt it adds to the time and cost of planning applications. It was suggested that it would lend focus to the process if the public were made aware at the time of the PAC the local authority's likelihood of approval or refusal and its reasons.

2.3 Additional Public Event

2.3.1 There were four questions related to holding an additional public event.

Second Physical Public Event

2.3.2 The Scottish Government is proposing a requirement for two public events as a minimum statutory requirement for PAC. The second (or final) event would be a physical event.

Q3. Do you agree with the proposal to make a second physical public event a minimum requirement of PAC?

2.3.3 The table below shows whether respondents agreed with the proposal to make a second physical public event a minimum requirement of PAC. Across all respondent groups (except developers) there is general support for the proposal. Overall, a considerable majority of respondents (68%) agree with the proposal. While there is some disagreement from all groups, the majority of developers oppose the proposal.

Do you agree with the proposal to make a second physical public event a minimum requirement of PAC?

	Yes	No	No View	Not Answered	Total
Community Bodies	2	1			3
Community Councils	24	4	2		30
Developers	3	12		1	16
Individuals	17	3	2		22
Planning Authorities	14	2	1		17
Planning/Other Consultants	4	2			6
Public and representative Bodies	7	3	2	3	15
Total	71	4	7	4	109
% respondent answering question	67.6	25.7	6.7

2.3.4 There were 96 comments on the requirement for a second physical public event to be a minimum requirement of PAC. Responses are considered separately for those agreeing and those disagreeing with the quantitative part of the question. The themes are described below in descending order of comments received.

Agreed

Opportunity to See if Feedback from First Event Has Been Taken On Board

2.3.5 Many respondents (community councils, planning authorities and individuals) felt that a second event would allow feedback from the first event to be considered and the applicant would be able to provide an explanation of how such feedback has been taken on board and influenced the proposal.

Need to Increase Awareness of and Participation in Event

2.3.6 Many (planning authorities, public and representative bodies, consultants) suggested that provision should be made for online engagement to be used as well as the physical events to ensure the PAC process is accessible to as many people as possible and to encourage engagement. It is noted the particular importance of this should COVID-19 restrictions remain for some time.

2.3.7 Several respondents (particularly community councils) felt that newspaper notices are not the most effective method of alerting the public to meetings and are often missed. It was suggested that the event should be advertised on social media and the planning authority's website and that appropriate notice should be given. See also the responses to Q6 on the proposed requirement for an additional newspaper notice.

Gives a Second Opportunity to Attend

2.3.8 Many respondents (community councils, planning authorities, individuals) felt that a second event would give an alternative to those who could not attend the first event and could offer an opportunity to increase community engagement in the PAC process. It was suggested that the two events should be advertised at the same time to avoid possible confusion over a second notice.

Opportunity to Ask Questions

2.3.9 Several respondents (community councils, community bodies, individuals) noted the importance of a second event in allowing members of the public time to gather information from the first event, consider and prepare questions and organise a community response.

Other Comments

2.3.10 Several respondents (community councils, planning authorities, public and representative bodies) noted that the second event would only be useful if sufficient information is provided at the first event. It is felt that the applicant would need to clearly set out the purpose of the first event to ensure the second event is meaningful.

2.3.11 Several respondents across a variety of groups made the point that physical events are important to ensure those who do not have access to online tools can participate. It was noted that this can be particularly the case in remote rural areas and where there is significant poverty.

2.3.12 A few respondents (community councils, developers) raised concerns over the potential for over-consultation or consultation fatigue, particularly in areas of significant developer interest. To avoid this, it is suggested that there could be exemptions in place, for example, where it can be clearly demonstrated to the planning authority that there was little or no interest in the first event.

Disagreed

Should be an Online Event Rather Than Physical

2.3.13 Many respondents (developers, public and representative bodies, community councils, planning authorities) felt that a second physical event could end up as a tick box exercise and if a second event becomes mandatory it is felt that an online event would provide scope for wider engagement and reduce the potential for consultation fatigue.

Flexibility and Discretion Required on Appropriateness of Second Event

2.3.14 Many respondents argued for a degree of flexibility in the requirement for a second physical event:

• Several respondents (developers, community councils) felt the decision to hold a second event should be dependent on the context of the proposal or feedback from the initial physical event and should be judged on a case-by-case basis.
• Several respondents (public and representative bodies, planning authorities, consultant) suggested that the statutory requirement for one event should remain in place with the addition of a second event being a discretionary requirement to be determined by the planning authority. The determinations could be based on the type of development, the level of interest in the development (from the PAC report) and the likelihood of changes being made to the application.

Cost Benefit Considerations

2.3.15 Several respondents (developers, consultants, individual, public and representative body) responded noting that a second event would add costs and delays to the project with little added benefit given their experience of poor attendance at physical events.

Other Comments

2.3.16 A number of other issues were raised including:

• A few respondents reported that a second physical event was unnecessary given the PAC processes already in place i.e. the PAC report.
• A community body noted that the Covid-19 situation may make a second physical event impossible.
• A community council felt a second meeting may cause confusion with the public who may see it as an opportunity to make comment on the original proposals rather than an update. It was suggested the second meeting should occur after the planning application has been submitted to allow discussion of the application and to inform the public on how to comment on the submitted application.

Second Event to Include Feedback on Earlier Engagement

2.3.17 The consultation states that it is intended that the second event should occur later in the PAC process with the aim of providing feedback to the public on the views received in the earlier stages of PAC. Any additional views raised at the second (final) event would be responded to via the finalised application and related PAC report.

Q4. Do you agree that a second physical public event required as part of PAC must include feedback to the public on their earlier engagement in PAC?

2.3.18 The table below shows that there was strong support for the proposal for the second physical event to include feedback to the public on views raised in the earlier PAC stages. A substantial majority (81%) of respondents agree with the proposal. In fact, there was majority support across all groups with the exception of developers where the majority of respondents from this group disagreed with the proposal.

Do you agree that a second physical public event required as part of PAC must include feedback to the public on their earlier engagement in PAC?

	Yes	No	No View	Not Answered	Total
Community Bodies	3				3
Community Councils	27	1	1	1	30
Developers	5	9	2		16
Individuals	19	2	1		22
Planning Authorities	16	1			17
Planning/Other Consultants	5	1			6
Public and representative Bodies	10	1	1	3	15
Total	85	15	5	4	109
% respondent answering question	81.10	14.3	4.8

2.3.19 There were 89 comments on the requirement for the second PAC event to include feedback to the public on their earlier engagement. The themes are described below in descending order of comments received, with responses considered separately for those agreeing and those disagreeing with the quantitative part of the question.

Agreed

Importance of Feedback to Ensure Public Engagement and Transparency

2.3.20 Many respondents across all groups agreed with the proposal and felt that providing feedback would improve the transparency of the process and help ensure effective public engagement. Where feedback has not resulted in a change it is believed that the reasons for this should be clearly explained. Community councils and planning authorities in particular provided comments under this heading.

Importance of Feedback to Hold Developers to Account

2.3.21 Many respondents (particularly community councils and planning authorities) felt that the requirement to include feedback to the public on their earlier engagement in PAC was important in order to hold developers to account and offer an opportunity for the public to hear how the developer intends to address, or not, the issues raised. It would allow the developer to show how comments raised in the first event had been properly considered. This point is also raised under Q7 (content of the PAC reports).

Written or Online Feedback Should also be Required

2.3.22 Several respondents across a few groups, but particularly community councils, thought feedback should be given in the form of a written report published online. This should correlate comments made at the first public event with changes to the proposal. This point is also raised under Q7 (content of the PAC reports).

Other Comments

2.3.23 A few community councils raised concerns that the minimum seven days between events could be too short to collate information in some cases. This theme is explored further in Q5 below.

Disagreed

Need for Flexibility in Requirement to Provide Feedback

2.3.24 Several respondents who disagreed with the proposal thought that the guidance should be flexible as, in some cases, it may be more important to address a specific issue rather than provide feedback on issues already discussed at the first event. It was noted that some of the issues raised in the first event may only be able to be addressed through an EIA and it would be unfair to expect an applicant to address these issues at a second event.

Disagree with a Second Event

2.3.25 Several respondents (developers, individuals, consultant, planning authority) restated their opposition to holding a second physical public event. It is felt the second event would lead to additional costs and delays to the timescale. As above, it is felt that the PAC report addresses feedback thereby negating the need for a second event.

2.3.26 A few respondents also felt that holding a second event, specifically to provide feedback on the initial comments may unduly raise expectations in communities as to what the prospective applicant is willing to consider by way of changes to a proposal.

Minimum Time Between Events

2.3.27 The draft regulation specifies a minimum of seven days between the first and second public events. This is proposed, not to be prescriptive, but to avoid events being held too close together merely to meet the requirements.

Q5. Do you agree with the proposed minimum time period between the required public events in PAC?

2.3.28 The table below shows that overall, there was support (59%) for the proposal to have a minimum time period between the two public events in PAC. Within this, public and representative bodies, developers and consultants had a much larger proportion of respondents agreeing with the proposal while opinion was more evenly split for community councils and individuals.

Do you agree with the proposed minimum time period between the required public events in PAC?

	Yes	No	No View	Not Answered	Total
Community Bodies	2	1			3
Community Councils	13	13	4		30
Developers	12	2	1	1	16
Individuals	9	8	5		22
Planning Authorities	13	4			17
Planning/Other Consultants	5	1			6
Public and representative Bodies	8	1	3	3	15
Total	62	30	13	4	109
% respondent answering question	59.0	3.7	12.4

2.3.29 There were 76 comments on the proposal to have a minimum time period between events of seven days. The themes are described below in descending order of comments received, with responses considered separately for those agreeing and those disagreeing with the quantitative part of the question.

Agreed

Agree with Seven-Day Time Period

2.3.30 Many respondents (from all groups except individuals) reported that they were happy with the proposal to have a seven-day minimum period as a requirement. It was felt that this would avoid significant delays to the PAC process while still allowing for a longer period where required.

Agree with Minimum of Seven Days, but Would Prefer Longer

2.3.31 Many respondents (from all groups except consultants) agreed that the seven-day period suggested could be a minimum, but that more time might be more appropriate to allow both developers and communities time to prepare and reflect upon the first PAC event.

Other Comments

2.3.32 One developer supported the proposal to retain the credibility of the process, but felt it was essential that local planning authorities do not place additional restrictions beyond the seven-day minimum period.

Disagreed

Seven Day Minimum Time Period is Too Short

2.3.33 Many respondents (across all groups) disagreeing with the proposal thought that the seven-day minimum period was too short. It was felt that the proposed time period would be insufficient to allow applicants to prepare a meaningful PAC report that considers the public's responses and make any required changes to proposals. A longer period would also allow interested parties in the community time to consult and consolidate public views.

2.3.34 Many of the respondents disagreeing with the proposal also suggested an alternative minimum time period: two weeks was the most suggested timescale, but three and four weeks were also proposed.

Additional Newspaper Notice

2.3.35 The draft regulation also specifies a requirement for a further newspaper notice to be issued for the second statutory event to include similar details to the first notice relating to the proposal and PAC.

Q6. Do you agree with the proposed requirement for an additional newspaper notice for the second required public event?

2.3.36 The table below shows that overall, there was support for the proposed requirement for an additional newspaper notice for the second public event from 59% of respondents. Within the groups, individuals, community councils and planning authorities were more likely to agree with the proposal while developers were clearly opposed to the proposal.

Do you agree with the proposed requirement for an additional newspaper notice for the second required public event?

	Yes	No	No View	Not Answered	Total
Community Bodies	2	1			3
Community Councils	21	6	3		30
Developers	2	11	3		16
Individuals	18	2	2		22
Planning Authorities	12	4	1		17
Planning/Other Consultants	3	6			6
Public and representative Bodies	5	6	1	3	15
Total	63	33	10	3	109
% respondent answering question	59.4	31.1	9.4

2.3.37 There were 88 comments on the proposal to have an additional newspaper notice for the second public event. The themes are described below in descending order of comments received, with responses considered separately for those agreeing and those disagreeing to the quantitative part of the question.

Agreed

General Support of Proposal to Raise Awareness

2.3.38 Many respondents (across all groups) stated their support for the proposal to require an additional newspaper notice. In the main, this was recognised as important to ensure the public are made aware of the event and it was felt that a newspaper notice would reach those not accessing online information. It was felt to be important that the second event is effectively communicated to all parties and not just those who participated in the first event.

Various Means of Notification Required

2.3.39 Many of those respondents agreeing with the proposal qualified their support by stating that a range of channels should be used including local websites, social media and posters in local buildings/locations. It was felt that there should be a requirement for an online notice in addition to a newspaper notice. This point was made by respondents in all groups except developers and public and representative bodies.

Other Comments

2.3.40 Several respondents noted that the time interval between events would have a bearing on this and it was suggested that in cases where there is a short time period between the first and second event there could be one public notice for both events.

2.3.41 A public and representative body also suggested that the regulations could include required text for a press advert to help ensure adverts are standardised and more concise thereby reducing the cost.

Disagreed

Newspaper Notice May Not Be the Most Effective Method

2.3.42 As with some of the respondents agreeing with the proposal, many respondents (across all groups except individuals) questioned the effectiveness of newspaper adverts and suggested alternative means of notifying the public about events. Alternatives included social media, a greater role for community councils through their websites or community magazines and use of posters locally. The high cost of advertising in newspapers was noted compared to the perceived limited benefit in terms of reaching the public. Developers and public and representative bodies made these points most often.

One Notice for Both Events Sufficient

2.3.43 Several respondents (across all groups except community bodies and individuals) felt that one notice for both events would be sufficient although it is recognised that this is dependent on the dates for both events being known at the outset.

Other Comments

2.3.44 Several respondents felt that there should be more targeted publicity for the second event including invites to those who participated in the first event and other relevant parties.

2.4 Prescribed Content of PAC Reports

2.4.1 The content of PAC reports is currently covered by guidance^[2], but in order to improve the transparency and consistency of the reports, it is proposed to specify the content in the regulations. In addition to reporting what has been done to comply with PAC requirements, the proposed additional requirements are:

(a) the dates on which and places where public events were held.

(b) a description of any additional steps taken by the prospective applicant to consult with members of the public as regards the proposed development.

(c) a list of bodies, groups and organisations who were consulted by the prospective applicant.

(d) evidence of the prospective applicant carrying out the activities described under sub-paragraphs (a), (b) and (c).

(e) copies of —

i. any materials sent to consultees,

ii. any materials provided to those attending a public event, and

iii. any visual presentation shown or displayed at a public event.

(f) photographs of any display boards or models at public events.

(g) confirmation as to whether consultees and attendees at public events were informed that pre-application consultation does not remove the right or the potential need to comment on the final application once it is made to the planning authority.

(i) a summary of –

i. the written responses to consultations, and

ii. views raised at public events,

(j) an explanation of how the prospective applicant took account of views raised during the pre-application consultation process.

(k) an explanation of how members of the public were given feedback on the prospective applicant's consideration of the views raised during the pre-application consultation process.

Q7. Do you agree with the list of required content for PAC reports?

2.4.2 The table below shows whether the respondents agreed with the proposed list of required content for PAC reports. There was substantial support, across all respondent groups, with almost 85% of respondents agreeing with the proposed content. A small number of community councils, developers, individuals and planning authorities did not agree with the proposal.

Do you agree with the proposed list of required content for PAC reports?

	Yes	No	No View	Not Answered	Total
Community Bodies	3				3
Community Councils	26	3	1		30
Developers	11	1	3	1	16
Individuals	15	4	2	1	22
Planning Authorities	16	1			17
Planning/Other Consultants	6				6
Public and representative Bodies	12		1	2	15
Total	89	9	7	4	109
% respondent answering question	84.8	8.6	6.7

2.4.3 There were 81 comments on the proposed content of the PAC reports with most of the comments made by respondents who were in agreement with the proposals. The themes are presented in descending order of comments received for those in agreement and those disagreeing with the proposed list.

Agreed

Specific Issues in relation to Proposed Content

2.4.4 Respondents agreeing with the proposed list of required content made a number of specific points relating to the content described in paragraph 2.4.1 above:

• Point (c): with respect to the list of bodies, groups and organisations consulted, several respondents suggested further detail including:
  • Whether the planning authority suggested there should be engagement beyond the statutory minimum and if so, how this was addressed (community councils, public and representative bodies).
  • Details of who attended each event (online, physical) and number of people commenting (planning authorities).
  • Confirmation from consultees that they were consulted and the form the consultation took (community councils).
• Point (g): a planning authority suggested it would be helpful to know the number of written responses received.
• Point (i): with respect to the summary of written responses and views, several respondents suggested further detail. For example, a summary of views was not considered sufficient with respondents suggesting that all comments should be listed/itemised (community councils, public and representative bodies). A community council also suggested that written responses from the relevant community council should be published in full and another suggested that interested parties should be allowed to address events with a formal record kept.
• Point (j): with respect to explaining how the applicant took account of views during the PAC process, a few respondents (planning authorities, consultants) suggested that the report should make clear how plans have evolved, particularly if a second event becomes statutory. The PAC report should set out what changes were suggested, which have been accepted and why and why other changes were not accepted. Comments raised at a second event should be reported in the PAC report (public and representative bodies) with stakeholders (e.g. community councils) given an opportunity to comment on the PAC report. This would help to ensure that the report reflects the views submitted.
• Point (k): a few respondents (developers and consultants) stated that they agreed with the proposed content except for point (k). This is the requirement to explain of how members of the public were given feedback on the prospective applicant's consideration of views raised during the PAC process.

Consistency and Transparency

2.4.5 Several respondents (planning authorities, public and representative bodies, consultants, developers) felt that the proposed list will provide clarity and consistency in the report format which is in the interest of transparency and accountability. It should enable local representatives to better understand and appreciate how their contributions have been assessed and their influence on outcomes.

2.4.6 Several individuals also highlighted that the proposed content should provide greater transparency. One respondent suggested further information should be made available to local people (e.g. risk assessments and impact information) to equip them to challenge planning applications.

Role of Local Authority

2.4.7 Several respondents raised issues regarding the role of the planning authority and what they are required to do with the information in the reports. One planning authority questioned if there would be a need to consider the quality of the consultation or just note it had been done while another felt that planning authorities were not using the authority they already have. A few respondents (individual, community bodies, developers) felt that planning authorities should be required to comment on the quality and outcome of consultations and depth of engagement.

Presentation of Materials

2.4.8 A few responses (individuals, community councils and public and representative bodies) raised a number of issues concerning the material presented as part of the consultation. It was suggested that applicants for major developments should provide clear summaries and guides to the information presented to allow better understanding by the general public. The guidance should specify what is presented at consultations and it should be a clear and accurate representation of the proposal. Requiring the PAC report to contain copies of any visual content would ensure that the quality of the presentation materials is accurate and accessible for communities, particularly if the content is online.

Move from Guidance to Regulation

2.4.9 A few responses (developers, public and representative bodies) commented on the content of the reports moving from guidance to regulations. However, there were differing views within groups with one developer supporting the move from guidance to regulations while another felt that retaining the requirements as guidance would allow flexibility. Retaining the requirements as guidance was felt to be appropriate as the majority of people engaging with the planning system are not legal experts.

Other Comments

2.4.10 A few community councils highlighted the need to specify the information required. One suggested that the regulations should specify minimum details of the proposed development to be included in an exhibition and report (e.g. principal types and scales of development) while another felt that all information should be specified so there is a standard format with all applications having the same input.

2.4.11 A few planning authorities and a consultant felt that guidance should provide more detail on the requirements. For example, providing links to good practice examples

Disagreed

Specific Issues in Relation to Proposed Content

2.4.12 Of the eight comments made by respondents answering "no" to the quantitative question, half the comments were supportive of the proposed list but felt additional information should be provided. In particular:

• (i) -parts (i) and (ii) – evidence should be kept to validate the summary of the written responses and views raised.
• (j) – should include why they did not take account of views raised and present any proposed adaptations/alterations.
• (k)- should record the response of the public.
• There should be an additional requirement allowing planning authorities to request specific items for inclusion in the PAC.
• There should be a list of people/organisations invited to the physical event(s) as well as a list of those who attended. This would allow the level of engagement to be measured.

2.4.13 Other comments from those not in agreement with the list of required content include:

• The report should include the original proposal (presented at Stage 1) and the amended (Stage 2) proposal to allow the planning authority to see any changes made.
• A senior representative from the applicant should be present who can revise the application based on engagement with the public. Although made in response to Q7, this response is about PAC in general rather than the content of the reports.

2.5 Exemptions from PAC Requirements

2.5.1 There are some reasons why an applicant will want to make a second application for the same or amended version of the same basic proposal that was the subject of PAC and an application. In these cases, it is likely that a prospective applicant would only be considering a limited range of changes, if any, to the previously finalised proposal. In these situations, it would be excessive to require the second application to go through the PAC process again.

2.5.2 In terms of defining the cases where a PAC exemption would apply, the proposals cover five elements:

• Who is making the application.
• The circumstances in which a second application is being made.
• The relationship between the development in the earlier application and that in the second application.
• The relationship between the development in the second application and the proposal described in the PAN submitted for the earlier application.
• A time limit on the period within which an exemption would apply.

2.5.3 The draft regulations propose that all five of these elements would need to be met to qualify for exemption from PAC. Each of these elements is considered below.

Who is Making the Application?

2.5.4 It is proposed that PAC exemption for a second application would apply only to the applicant who made the earlier application (and so also conducted the PAC).

Q8. Do you agree with the PAC exemption being limited to the same applicant who made the earlier application?

2.5.5 The table below shows whether the respondents agreed with the PAC exemption being limited to the same applicant who made the earlier application. The majority (59%) of respondents agreed with the exemption being limited to the same applicant. Community councils and individuals were particularly supportive of the proposals. The majority of developers opposed the proposal with opinion more evenly split across the other groups.

Do you agree with the PAC exemption being limited to the same applicant who made the earlier application?

	Yes	No	No View	Not Answered	Total
Community Bodies	2	1			3
Community Councils	23	5	2		30
Developers	5	9	1	1	16
Individuals	14	5	3		22
Planning Authorities	10	7			17
Planning/Other Consultants	3	3			6
Public and representative Bodies	5	6	2	2	15
Total	62	36	8	3	109
% respondent answering question	58.5	34.0	7.5

2.5.6 There were 71 comments on whether the PAC exemption should be limited to the same applicant who made the earlier application. Responses are considered separately for those agreeing and those disagreeing with the quantitative part of the question. The themes are described below in descending order of comments received.

Agreed

Different Applicant, Different Views

2.5.7 Several respondents (individuals, planning authorities and community councils) felt that the exemption should be restricted to the same applicant because a different applicant will have different proposals (e.g. designs and views of the site), different approaches to PAC and different consultation materials.

2.5.8 One planning authority raised the issue of definition of 'same applicant', particularly in relation to company structures. A few developers highlighted the need for flexibility around the setup of different limited companies/joint ventures for some development projects. This was also made by several developers who disagreed with the proposals (paragraph 2.5.10 below).

Transparency and Consistency

2.5.9 Several respondents (individuals, community councils, planning authorities) felt that it was necessary to restrict exemptions to the same applicant to ensure that there is consistency and transparency in the process. Restricting the exemption to the same applicant would ensure that the consultation remains valid. It would prevent subsequent applications by different applicants avoiding PAC where there could be contentious issues and ensure modifications to schemes which are proposed by different applicants are brought to the attention of the community.

Disagreed

Exemption not Restricted to Same Applicant

2.5.10 Many responses were received disagreeing with the exemption being limited to the applicant who made the earlier application. These responses covered three main themes:

• Exemption should apply to the land: many respondents across all groups (except community bodies and consultants) felt that the exemption should apply to the land. The main reason being that planning permission applies to land, therefore the exemption should also apply to the land.
• Exemption should apply to the proposals: related to the point above, many respondents (planning authorities, public and representative bodies, developers and consultants) felt that the exemption should apply to the characteristics of the proposal. It is the scale and nature of the changes and amendments being proposed which are important, not whether it is the same applicant.
• Flexibility required around company names: several respondents (mainly developers and one public and representative body) felt that there are legal/contractual circumstances where it is necessary to amend the name of the applicant while the project team and the proposed development remain substantially the same. There can also be circumstances where part of a site with planning permission can be sold (e.g. too another housebuilder) and the new owner submits a planning application to make minor changes (e.g. to the house design). In these circumstances, a new PAC would not be proportionate.

No Exemptions

2.5.11 Several respondents (individuals, community bodies and community councils) felt that there should be no exemptions. Reasons cited include PAC being the only chance the public have to question any proposal prior to an application and concerns over abuse of the exemption by developers.

The Circumstances Regarding an Earlier Application (withdrawal, refusal etc.) which have led to a Second Application

2.5.12 It is proposed that, depending on what happened to the earlier application, an exemption cannot apply where the planning authority has declined to determine the earlier application^[3]. This means that an earlier application could have been withdrawn, granted, refused, appealed, called-in or be awaiting determination and a second application could qualify for PAC exemption (depending on the other criteria being met).

Q9. Do you agree with the circumstances regarding an earlier application (withdrawn, refused etc.) in which a second application would be able to get exemption from PAC?

2.5.13 The table below shows whether the respondents agreed with the circumstances of the earlier application enabling a second application to get exemption from PAC. A slight majority (52%) of respondents agreed with the proposal. Community councils and individuals were the groups least supportive of the proposals.

Do you agree with the circumstances regarding an earlier application (withdrawn, refused etc.) in which a second application would be able to get exemption from PAC?

	Yes	No	No View	Not Answered	Total
Community Bodies	2	1			3
Community Councils	11	17	1	1	30
Developers	8	1	5	2	16
Individuals	5	16		1	22
Planning Authorities	15	1	1		17
Planning/Other Consultants	5		1		6
Public and representative Bodies	8	3	2	2	15
Total	54	39	10	6	109
% respondent answering question	52.4	37.9	9.7

2.5.14 There were 67 comments on the circumstances regarding an earlier application in which a second application would be able to get exemption from PAC. The themes are described below in descending order of comments received, with responses considered separately for those agreeing and those disagreeing with the quantitative part of the question.

Agreed

Qualification to Proposals

2.5.15 Many responses across all groups (except individuals and community councils) agreed with the proposal but identified some qualifications to the proposed exemptions including:

• The second application should be essentially for the same development (planning authorities, community council, public and representative body). This should include no material changes to the application, no fundamental changes in the circumstances in which the application is being made and where a second PAC would not result in a different outcome.
• Some PAC should still be required (e.g. a third event) to ensure the community is kept informed of progress, any minor changes, updated information (planning authorities, individual).
• Providing there is a time limit (e.g. six months) (individual, planning authorities)
• Only under appeal conditions (community body).

Other Comments

2.5.16 Other comments were made regarding the circumstances of an earlier application in which a second application would be able to get exemption including:

• If all the proposed criteria for exemption are met, it is considered appropriate to grant an exemption. This would avoid PAC which would add little value and could lead to consultation fatigue for communities (a few planning authorities). Concerns were noted with this approach in certain circumstances e.g. where there has been significant opposition to a development that was subsequently approved.
• Guidance should be clear on what is an exemption from the PAC process and governance on exemptions should rest with the planning authorities rather than the applicant (consultants, community councils). It was also suggested that planning authorities should confirm that an exemption applies at the outset of any discussions to avoid applicants progressing with a repeat application only for a planning authority to decline to determine the application under Section 39 of the Act.
• There was agreement for the proposal on the basis that it aligns with the requirements for a second application to be exempt from a fee (consultants).

Disagreed

Public Consultation Required

2.5.17 Many respondents (primarily from individuals and community councils) disagreed with the exemption being available to second applications where the first application had been withdrawn, refused etc. It was felt that by allowing an exemption, it prevented the public from having the opportunity to engage with the second application. Concern was expressed that if an application had been refused, withdrawn etc. it was for good reason and therefore further community consultation would be useful.

Transparency and Consistency

2.5.18 Several respondents (individuals, community councils, public and representative bodies) felt that allowing exemptions would impact on transparency and consistency. There was concern that the exemptions may be open to abuse and important impacts (e.g. environmental) may not be addressed. There was also concern that it becomes difficult for the public/communities to follow the progress of the application.

Other Comments

2.5.19 Other issues raised included:

• A few individual and community council respondents felt that the grounds for exemption are too complicated and confusing.
• A few individual and community council respondents felt that there was an issue over definition. There was concern that it was not possible to define when a second application was 'similar' to an earlier application and more clarity was required on what is meant by 'no significant change'.

The Relationship Between the Development in the Earlier Application and that in the Second Application

2.5.20 There must be a link between the proposal in the earlier application and that in the second application to justify an exemption from PAC, but it is not practical to define specific aspects of a development and the extent to which they can change across the full range of development types.

2.5.21 It is proposed to use the concept from the Town and Country Planning Regulations^[4] such that the proposal in the second application must be for "development of the same character or description as development to which an earlier application relates and to no other development" and where "the application relates to the same site as that to which an earlier application related, or to part of that site, and to no other land except land included solely for the purpose of providing a different means of access to the site". Hence, both criteria need to be met. This description of the proposal allows for some changes to be made, but the development proposal is basically the same.

Q10. Do you agree with the approach to linking the description of the proposal in the earlier application and that in the second application for the purpose of PAC exemption?

2.5.22 The table below shows whether the respondents agreed with linking the description of the proposal in the earlier application with that in the second application. A clear majority (64%) of respondents agreed with the proposal to link the description in the earlier application with that in the second application. Indeed, there was majority support across all groups except individuals.

Do you agree with the approach to linking the description of the proposal in the earlier application and that in the second application for the purpose of PAC exemption?

	Yes	No	No View	Not Answered	Total
Community Bodies	2	1			3
Community Councils	16	10	3	1	30
Developers	10	4		2	16
Individuals	10	10	2		22
Planning Authorities	16	1			17
Planning/Other Consultants	5	1			6
Public and representative Bodies	8	2	4	1	15
Total	67	29	9	4	109
% respondent answering question	63.8	27.6	8.6

2.5.23 There were 63 comments on linking the description of the development in the earlier application and the second application to justify an exemption from PAC. The themes are described below in descending order of comments received, with responses considered separately for those agreeing and those disagreeing to the quantitative part of the question.

Agreed

Issues relating to Definition

2.5.24 Many respondents from all groups (except community bodies) raised a number of issues which related to the definitions in the proposed criteria for granting an exemption. These included:

• Several respondents (individuals, planning authorities, consultants) highlighted the need for clarity on "development of the same character or description of development". For example, a proposal of the same character and description on the same site could have significantly different aspects (e.g. access, drainage) with different environmental or amenity impacts. It was suggested that further clarity could be provided by broadening the definition to cover the consideration of a similar level of environmental or amenity impact.
• Without clear guidelines, the description in the PAN may be very broad to ensure that a prospective applicant does not miss out on being exempt from repeating the PAC process at a later stage.
• A few planning authorities raised questions about applications for part of a site covered by a PAN and how they would be dealt with,
• Contrasting views were also provided by a planning authority and a developer around the circumstances where the community should be informed of the second application. The planning authority suggested that the community should be able to comment on a residential development of the same description but with a new layout or different aspects. However, a developer felt that it was essential that any remixes in a housing development to address market circumstances should be exempt.
• A few developers identified that as it is at the discretion of the planning authority to consider whether the proposal is of "the same character or description to which an earlier application relates", the applicant and planning authority must be able at the outset to formally screen whether the second application is exempt from PAC.
• A public and representative body recognised that a development description can remain relevant in a generic sense, but that an important component part of the associated detail could be materially altered within the same description. It was suggested that the link should be between the description of the development and the component parts of the scheme.

Keeping the Community Informed

2.5.25 A few respondents (individuals, community councils) felt that if the proposal changes at all, the local community should have the chance to comment again. Changing the means of access could be a major change and should be subject to consultation.

Disagreed

Concern over Definition

2.5.26 Several respondents (community councils, individuals, public and representative bodies) felt that the wording is too vague, particularly whether the definition is sufficiently clear to determine whether the development proposal is basically the same as the previous proposal. The definition was felt to be open to interpretation and therefore a matter of judgement. Concern was raised that it could lead to a lack of trust in the process from members of the public and stakeholders.

2.5.27 On the other hand, a few developers felt that adhering too rigidly to the description of the first application may have negative effects. For example, it could negate the inclusion of land for mitigation, compensation or enhancement or hinder the introduction of new innovations in the design process. It is noted that a potential implication of this is that the PAN and PAC could be drafted vaguely. Concern was also expressed about placing additional weight on the description of the development in light of the recent "Finney decision" with the potential for legal challenges around the regulation of the description.

2.5.28 A planning authority also questioned whether the approach should allow a degree of flexibility for some minor changes such as slight alterations to red line boundaries or site changes which are part of larger masterplans.

Keeping the Community Informed

2.5.29 Several respondents (individuals, community council, consultants) felt that the community should have the opportunity to engage with a second PAC even for small changes. "Alternative means of access" and other changes to the proposal (e.g. turbine height or output) could result in significant implications for a community so restricting the need for a second PAC would not be in the interest of communities near these developments. This point was also made by some respondents agreeing with the application.

No Exemptions

2.5.30 Several respondents (community bodies, community councils, individuals) felt there should be no exemptions.

The Relationship to the Proposal of Application Notices (PAN)

2.5.31 It is proposed that the proposals in both applications must also be within the scope of the description of development contained in the PAN for the PAC for the earlier application.

Q11. Do you agree that the exemption from PAC should be linked to the content of the PAN served in relation to PAC for the earlier application?

2.5.32 The table below shows whether the respondents agreed with the proposals that both applications must be within the scope of the description of development contained within the PAN. A clear majority (67%) of respondents agreed with the proposal with support from all groups. There was some opposition from respondents in all groups except for planning authorities.

Do you agree that the exemption from PAC should be linked to the content of the PAN served in relation to PAC for the earlier application?

	Yes	No	No View	Not Answered	Total
Community Bodies	2	1			3
Community Councils	20	6	2	2	30
Developers	8	5	2	1	16
Individuals	8	4	9	1	22
Planning Authorities	16			1	17
Planning/Other Consultants	5	1			6
Public and representative Bodies	9	1	3	2	15
Total	68	18	16	7	109
% respondent answering question	66.7	17.6	15.7

2.5.33 There were 61 comments on the proposals in both applications being within the scope of the description of development contained in the PAN for the PAC for the earlier application. The themes are described below in descending order of comments received, with responses considered separately for those agreeing and those disagreeing with the quantitative part of the question.

Agreed

Flexibility Required

2.5.34 Several respondents (planning authorities, public and representative bodies and developers) felt that it would be helpful for there to be an element of flexibility for minor changes in the second application. A few respondents suggested a minor amendment to the wording of Regulation 4A 2(a)(iii) to allow minor changes to the site boundary including extensions outwith the original site boundary.

General Comments

2.5.35 A few respondents (community councils and public and representative bodies) did not feel that the proposed changes set out how applications which only cover part of the full site set out under PAN would be treated. This point was also raised under Q10 (paragraph 2.5.24)

2.5.36 A number of benefits were identified by respondents including:

• It will ensure that the PAC exercise is still relevant to the application (community councils and planning authorities).
• It requires the description of the development to be fairly precise and this should be set out in the regulations (community council).
• It will provide greater awareness of the PAC history and provide easier access to all information relating to one application (community council).

Disagreed

Context may have Changed

2.5.37 Several respondents (community councils, individuals, public and representative bodies, developers) felt that both applications should not be linked to the description of development in the PAN as specific aspects of the second application or the context may have changed. It was suggested that for certain types of proposals (e.g. renewables projects) the PAN is often undertaken at an early stage when the context may still be quite vague.

2.5.38 A few developers also felt that the consultation should consider greater opportunities for proposals to alter between the PAN stage and an application being submitted. These changes could reflect compensatory habitat restoration or changes to accommodate additional technologies. It was also suggested that as the purpose of PAC is to gather public opinion on development proposals, there should be scope to change the proposals in light of public feedback received.

2.5.39 Concern was expressed from a developer that there could be variation between authorities in what is deemed acceptable in terms of the description and that each case should be considered on its own merits. This latter point was also made by a community council which felt that all PAC submissions should stand on their own merit.

General Comments

2.5.40 A few specific points were made by community councils:

• If a second application is made for a site where a previous application has been refused, the second application should provide good evidence that the reasons for refusal have been rigorously addressed and that the concerns expressed for the previous application have been satisfactorily resolved.
• A second PAN should be required including a request for PAC exemption and stating the grounds for exemption. The planning authority should decide whether to agree to the exemption.

No Exemptions

2.5.41 Several respondents (community bodies, community councils, individuals, consultants) felt there should be no exemptions.

A Time Limit on the Period within which an Exemption would Apply

2.5.42 It is proposed that any exemption from PAC for a second application is time limited. That is, it cannot be divorced in time too much from the PAC on the earlier application. The consultation proposes allowing an exemption from PAC for a second application up to 18 months from the date of the earlier application i.e. from the validation date^[5].

Q12. Do you agree with the proposed time limit on exemptions from PAC?

2.5.43 The table below shows whether the respondents agreed with the proposed time limit on exemptions from PAC. A majority (57%) of respondents supported the proposed time limit. While there was support across all groups, the majority of community councils and planning authorities agreed with the proposed time limit. The majority of consultants opposed the time limit with opinion split amongst community bodies, developers and individuals.

Do you agree with the proposed time limit on exemptions from PAC?

	Yes	No	No View	Not Answered	Total
Community Bodies	1	1	1		3
Community Councils	19	8	2	1	30
Developers	6	7	2	1	16
Individuals	8	9	5		22
Planning Authorities	16	1			17
Planning/Other Consultants	2	4			6
Public and representative Bodies	8	3	3	1	15
Total	60	33	13	3	109
% respondent answering question	56.6	31.1	12.3

2.5.44 There were 68 comments on whether respondents agreed with the proposed time limit for exemptions from PAC. The themes are described below in descending order of comments received, with responses considered separately for those agreeing and those disagreeing with the quantitative part of the question:

Agreed

18 Months is Appropriate

2.5.45 Many respondents across all groups felt that 18 months was an appropriate timescale for a second application to be able to get exemption from PAC. While agreeing with the proposed timescale in the quantitative analysis in the table above, several respondents (individuals, community councils and planning authorities) suggested that 18 months may be slightly long and that 12 months may be more appropriate.

Disagreed

18 Months is Too Long

2.5.46 Many respondents (community councils, individuals, planning authorities, public and representative bodies) felt that 18 months was too long for a second application to be able to get exemption from PAC. There was concern that circumstances may have changed significantly within 18 months. Many of the respondents felt that twelve months would be an appropriate timescale. Twelve months should allow adequate time for investigations/reports and may encourage proposals to be brought forward more quickly. One individual thought that six months was reasonable for an exemption, given the other requirements.

Need for Flexibility

2.5.47 Several respondents (developers, consultants) felt that there was a need to be flexible with the time limit. It often takes planning authorities more than 18 months to determine an application, particularly major applications, and it would not be fair to penalise the applicant in these circumstances. Clarification was also requested on whether a developer would have to rerun PAC in full if an application is submitted just before the proposed 18-month deadline, but it is then judged to be invalid. Respondents felt the deadline should be extended in these circumstances.

18 Months Too Short

2.5.48 Several respondents (developers and consultants) felt that 18 months was too short a period and a few respondents suggested 24 months. The longer time period was suggested to allow for factors arising that were outside the control of the developer (e.g. unforeseen technical constraints) and to allow sufficient time for assessments which may have arisen out of the previous planning application to be addressed (e.g. nature conservation).