Planning circular 2/2024: non-domestic permitted development rights

Annex A: Prior notification / prior approval

1. In most cases, permitted development rights (PDR) allow development to be carried out without reference to the planning authority – provided the relevant PDR conditions are complied with.

2. However, a small number of PDR are subject to a process known as “prior notification^[5]/prior approval”. Under this process, a developer must notify the planning authority, provide details of its proposed development and pay the relevant fee – as specified in Planning Circular 2/2022 The Town and Country Planning (Fees for Applications) (Scotland) Regulations 2022. The authority then has an opportunity to indicate whether specific aspects of the development are acceptable.

3. The planning authority’s determination is limited to the particular matters specified in the relevant PDR class – for example, siting, design or appearance. In this sense, the process is lighter touch than a ‘standard’ planning application because a narrower range of considerations can be taken into account.

4. This annex provides a general explanation of how the prior notification/prior approval process works. Where relevant, annexes covering particular development types provide additional guidance on details that are specific to particular classes.

5. Please note that with regard to the PDR for electronic code operators under Class 67 (Annex G), there are two forms of prior notification/prior approval. The version for ground based masts and related equipment follows a different procedure to that described in this annex. Careful attention should, therefore, be given to such requirements as set out in Annex G and also in the following guidance: Scottish Government Planning Guidance: Digital Telecommunications.

Requirement to comply with conditions and restrictions of PDR

6. In order to benefit from PDR a person must comply with all the requirements of the relevant class as set out in the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 – also known as “the GPDO” otherwise the PDR do not apply. Prior notification/ prior approval is a condition of certain classes of PDR.

7. Where the planning authority consider the proposal does not comply with the other relevant GPDO requirements, and the development would not have PDR, they must refuse to consider any related prior notification/prior approval application.

8. In particular, see paragraphs 10 to 12 on EIA in the main circular. For ‘Schedule 1 development’ in this regard, prior notification/ prior approval should not be pursued or considered. A full planning application and EIA assessment is required. For ‘Schedule 2 development’, prior notification/ prior approval should not be pursued or considered unless a screening opinion or direction has been issued to the effect EIA is not required.

Prior notification/ prior approval process

9. Anyone who wants to carry out development under permitted development provisions which include a condition requiring prior notification/prior approval must notify the planning authority before starting development (see ‘Enforcement’ below). Unless otherwise specified, the planning authority has 28 days in which to consider the notification.

10. If no request for details or indication that prior approval is required is received within the 28 day period, the developer may proceed to exercise their permitted development rights. Likewise, if the planning authority responds within the 28 day period to say prior approval is not required, the developer may proceed. In either of these cases where prior approval is not required, the developer can proceed only in accordance with the details submitted in the prior notification.

11. Where the authority responds within the 28 day period to say prior approval is required, the development cannot proceed until such time as approval is granted, and in accordance with the approval as granted.

12. So, in summary, where prior notification/prior approval is required, a developer or landowner must:

• submit a prior notification before starting any work on the development
• not start this work until:
• the planning authority responds to the prior notification within 28 days to confirm that prior approval is not required; or
• the 28 day period expires with no response from the planning authority; or
• where the planning authority indicates prior approval is required, such approval is granted.
• carry out the work in accordance with the details supplied in the prior notification or, where appropriate, as detailed in the prior approval.

13. The prior notification/prior approval procedure provides planning authorities with a means of regulating, where necessary, important aspects of development for which an application for full planning permission is not required by virtue of the GPDO. Provided all the GPDO requirements are met, the principle of whether the development should be permitted is not for consideration. Prior approval should only be required in cases where the authority considers that a proposal is likely to have a significant impact on its surroundings. Many proposals notified to authorities under the GPDO will not have such an impact.

Efficient Handling of Prior Notification/ Prior Approval

14. The Scottish Ministers attach great importance to the prompt and efficient handling of notifications and any subsequent submissions of details for approval under the provisions of the GPDO. For example, undue delays could have serious consequences, for example, for agricultural and forestry businesses, which are more dependent than most on seasonal and market considerations.

15. The procedures adopted by authorities should be straightforward, simple, and easily understood. Delegation of decisions to officers will help to achieve prompt and efficient handling, and should be extended as far as possible. It is essential that authorities acknowledge receipt of each prior notification, giving the date on which it was received, so that the developer will know when the 28 day period begins.

16. Where the authority does not propose to require its prior approval it should not wait for the 28 days to expire but should inform the developer as soon as possible, to avoid any uncertainty and possible delay. Where the authority does decide that their prior approval is required and the submission of details is needed, it should write to the developer as soon as possible stating clearly and simply exactly what details are needed. Care should be taken not to request more information than is absolutely necessary.

17. There will often be scope for informal negotiations with the developer. If, as a result of discussions, the developer's original proposal is modified by agreement, he or she is not required to re-notify it formally to the authority in order to comply with the terms of the GPDO condition, but the authority should give its written approval to the modification to make it clear that the developer has authority to proceed with the modified proposals.

Time limit for consideration of a prior approval

18. Where prior approval is required, as is the case with planning applications, there is no set time limit for planning authority to issue a prior approval decision. If prior approval is not issued within 2 months then the applicant has the option, if they wish, to appeal to Scottish Ministers on the grounds of non-determination.

Decisions on prior approval

19. As noted previously a planning authority should refuse to consider an application for prior notification/prior approval where the development does not, in their opinion constitute permitted development.

20. Where the authority have indicated that prior approval is required and subsequently consider that the proposal cannot be made acceptable by changes to the relevant matters under consideration, they may refuse the application. The applicant has the right to appeal such a decision.

21. Where prior approval is required, it can be granted with or without conditions. The requirements relating to the use of conditions in planning permission^[6] would apply. The applicant has the right to appeal against the conditions.

Records

22. Although there is no statutory requirement to do so, planning authorities should keep records of prior notification/prior approval cases. Data on certain notifications form part of the Planning Application Statistics returns that are submitted by planning authorities and form the basis of the Scottish Government’s Official Statistics on planning applications.

Enforcement

23. The prior notification/prior approval arrangements are intended to fit in with the existing enforcement provisions in the Town and Country Planning (Scotland) Act 1997. Planning Circular 10/2009: Planning Enforcement provides guidance on planning enforcement procedures and practice.

24. Anyone wishing to carry out development under PDR to which prior notification/ prior approval applies is required to notify the planning authority - this is a condition of the planning permission deemed to be granted under these provisions. If a developer fails to notify an authority the usual enforcement action for a breach of planning control would be open to that authority.

25. Where a development has been notified and the authority has advised that prior approval is required and has requested further details, the development may not proceed until the details have been submitted and approved. It is therefore in the developer's own interests to submit the details as soon as possible. If, however, the developer proceeds without submitting details or without, or in contravention of, the authority's approval, the normal enforcement measures would again be available for use as the authority deem appropriate in the circumstances of any particular case.