Local development planning - regulations and guidance consultation: part B - proposals for development planning regulations

Local Development Planning Regulations & Guidance Consultation: Part B Proposals for Development Planning Regulations

Development Planning Regulations

1. Primary legislation provides the framework for Local Development Plans (LDPs) and includes detail on many of the procedures to be followed in preparing plans. It also gives the Scottish Ministers powers to prepare secondary legislation - regulations - concerning a range of matters.

2. Current regulations relating to development planning include:

• The Town and Country Planning (Development Planning) (Scotland) Regulations 2008.
• The Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Order 2008.
• The Town and Country Planning (Grounds for declining to follow recommendations) (Scotland) Regulations 2009.

3. New regulations will be prepared for the implementation of the new LDP system. Given the amount of change, we have worked to the principle that regulations are kept to the minimum necessary with much of the detail of Scottish Ministers' expectations for implementation being set out in guidance. This will provide flexibility and resilience, with the opportunity for guidance to be updated to reflect lessons learnt once the new system is in operation.

4. This paper sets out the proposals for new Development Planning regulations. It is structured to reflect the provisions within the Town and Country Planning (Scotland) Act, 1997, as amended by the Planning (Scotland) Act, 2019. An amended version of the relevant 1997 Act provisions is available online.

5. A summary of proposed changes is provided at Annex A and Draft Development Planning Regulations are provided at Annex B.

Provisions for Regulations under the Town and Country Planning (Scotland) Act 1997, as amended by the 2019 Act.

Section 15 - Form and content of local development plans

6. Section 15(1) of the Act sets out that an LDP is to contain (a) a spatial strategy, (b) other matters as may be prescribed, and (c) any other matter the planning authority consider it appropriate to include. This provision in the Act is not new and there are currently no regulations prescribing other matters. The 2019 Act amends section 15 to include specific matters to be included, namely statements of the planning authority's policies and proposals as to the provision of water refill stations (15(2B)) and public conveniences (15(2A)) and targets for meeting housing needs (15(1A)). There is a substantial list of matters at section 15(5) which the planning authority must take into account for its spatial strategy. Whilst these are not necessarily matters that must be included, there is the provision to include them where the planning authority consider it appropriate. We consider these requirements to be comprehensive and do not propose to prescribe any further matters in regulations.

7. Section 15(3) of the Act sets out that where the LDP contains policies or proposals for the development of land owned by the planning authority, a schedule of land ownership is to be appended to the plan. The Act provides for the form of the schedule to be prescribed in regulations. This provision in the Act is not new. The 2008 Regulations provide detail on this in regulation 9 and schedule 1. We consider the existing regulations and schedule to be appropriate and propose to maintain it unchanged in replacement regulations, see Annex B, Regulation 7 and Schedule 1.

8. Section 15(4)(a) of the Act sets out that an LDP is, for the purpose of explaining or illustrating proposals in the plan, to contain or be accompanied by such maps, diagrams, illustrations and descriptive matter as may be prescribed. This provision in the Act is not new. The 2008 Regulations prescribe at regulation 8 that a 'Proposals Map' be included that describes the policies and proposals of the plan and that it be sufficiently detailed for the location of proposals for development and the use of land be identified. We expect new style LDPs to be more map based, rather than focusing on written policy content. However, we do not consider it necessary to specify further what maps are to be contained beyond the Proposals Map. This will enable planning authorities to tailor the mapped content of plans as appropriate to their local area. We consider the existing regulation to be appropriate and propose to maintain it unchanged in replacement regulations, see Annex B, Regulation 6.

Question 4

Do you agree with the proposals for regulations relating to the form and content of LDPs?

Yes / No / No View

Please explain why you agree or disagree.

Section 16 - Preparation and monitoring of local development plans: general

9. Section 16(2) of the Act sets out matters which are to be taken into account and had regard to when preparing LDPs, including the National Planning Framework, local outcomes improvement plans and any registered local place plans. Additionally, matters to which the planning authority are to have regard include such information and considerations as may be prescribed (16(2)(b)). This provision in the Act is not new. The 2008 Regulations prescribe at regulation 10 a wide range of information and considerations including resources, adjoining plans, and strategies relating to transport and housing.

10. The requirements in the existing regulations need to be amended to reflect a number of changes. The 2008 Regulations were amended by the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 2015. Whilst already in place, it is appropriate to consolidate the requirements in the replacement regulations. Changes are also required to amend references from Strategic Development Plans (SDPs) to Regional Spatial Strategies, to provide correct references to English planning documents (relevant where an LDP adjoins land in England), and to ensure accurate references to primary legislation. We therefore intend to make these necessary amendments, see Annex B, Regulation 8.

Question 5

Do you agree with the proposals for regulations relating to the preparation and monitoring of LDPs?

Yes / No / No View

Please explain why you agree or disagree

11. Since commencement of the 2008 Regulations a number of issues have become increasingly prominent, particularly with regard to climate change, community planning and health. The Scottish Parliament also highlighted a range of priorities for LDPs to address during its scrutiny of the Planning (Scotland) Act 2019. We therefore invite views on whether the information and considerations listed at Regulation 8 should change and/or be added to.

Question 6

Do you have views on additional information and considerations to have regard to when preparing and monitoring LDPs?

Yes / No / No View

Please explain your views.

Section 16B - Evidence report for preparation of local development plan

12. Section 16B(2) of the Act sets out those whose views the planning authority are to seek and have regard to in preparing an Evidence Report. It includes key agencies, children and young people, the public at large, and such other persons as may be prescribed. The Evidence Report is a new, early stage of plan preparation, therefore this provision is new. The Evidence Report and Gate Check Subgroup considered that regulations should specify the stakeholders with whom consultation should take place as a minimum.

13. Evidence Reports are expected to be wide ranging in scope and therefore of relevance to a wide range of groups and individuals with interests in the area and the issues covered. Reference is already provided to the 'public at large' which will require views of the general public to be sought and taken into account. Statutory requirements in primary legislation for Development Plan Schemes mean they must include a Participation Statement, and that they include information on whom the planning authority will consult in preparing the plan. The 2019 Act strengthened this to require that in preparing the Development Plan Scheme, the planning authority seek the views of the public at large as to the content of the Participation Statement. We expect this will include seeking views on who should be engaged at different stages, and on the best approach to involving people. We therefore consider it would be more flexible to address this matter in guidance, enabling planning authorities to tailor their approach to their local situation and we do not propose to prescribe any other persons in regulations.

14. Section 16B(3) of the Act states what the Evidence Report is to set out. It covers the planning authority's view on the list of matters in section 15(5), which are to be taken account of in the LDP spatial strategy, as well as matters relating to housing needs of older people and disabled people, 'Gypsies and Travellers' accommodation needs, and the preparation of Local Place Plans. It also provides that other such matters may be prescribed. Whilst the list at 15(5) is not exhaustive it is extensive and further detail of how these and other land use matters should be addressed will be covered in guidance. We do not propose to set out in regulations other matters for the Evidence Report to include.

15. The Evidence Report and Gate Check Subgroup indicated the need for regulations to set out the minimum data requirements for the Evidence Report. They consider this should make it easier to move beyond the gate-check stage. We have concerns that this has potential to result in a 'tick-box' approach to the early plan preparation stage instead of improving the quality of plans. We consider the relevant evidence for different aspects of land use can be addressed in guidance, which will provide flexibility for authorities on the appropriate evidence for their area and for the appointed person to make a judgement of the sufficiency of that evidence based on the views of stakeholders. We also believe this approach will allow for this new part of the process to evolve and for lessons from practice to inform improvements. We therefore do not propose to include minimum evidence requirements in regulations.

16. Section 16B(13) of the Act provides for Scottish Ministers to make regulations relating to the assessment of the Evidence Report, the 'gate-check stage', including costs, procedures and what is to be assessed. 16B(13)(b) relating to procedure states that this includes making provision that the procedure is to be at the discretion of the appointed person. New regulations would be required and we consider that it would be appropriate for these to be consistent with the equivalent regulations for the examination of the LDP, which are in Part 4 of the 2008 Regulations. We would expect the regulations for the assessment of the Evidence Report to include provisions equivalent to; Notification of the appointed person (regulation 19); Further representation or information (regulation 22); and Expenses of assessment (regulation 23). Part 4 of the 2008 Regulations also sets out the information and material to be submitted to the appointed person (section 20), including the environmental report and the participation statement. It will not be possible for the Evidence Report to contain all the detail of relevant background data and information itself but any documents referred to in the Evidence Report should be provided electronically to the appointed person. We therefore propose to address these matters in regulations, see Annex B, Regulations 3, 4 and 5.

17. Part 4 of the 2008 Regulations (section 20(2)(b)) also includes reference to a schedule that sets out the format in which the summary of unresolved issues is to be submitted (commonly known as a Schedule 4). This guarantees consistency across all authorities. As noted above, primary legislation has an extensive list of what the Evidence Report is to set out. We therefore consider it would be more appropriate to address the format for doing this in guidance, setting out the expectation that a consistent approach be taken across all authorities but enabling this new part of the process to evolve and for lessons from practice to inform improvements. We therefore do not propose to prescribe the format of the Evidence Report in regulations.

18. Section 16B(14) of the Act provides the meanings of terms referred to in section 16. It refers that 'Gypsies and Travellers' has the meaning specified in regulations made by the Scottish Ministers. The supplementary delegated powers memorandum, prepared during the passage of the Planning Bill, indicated that there is no definition of Gypsies and Travellers in Scots law, and there had been no consultation with the community on a definition. It was therefore considered appropriate that a definition be provided in regulations, enabling engagement with the community on the definition to take place. We propose to hold a separate consultation on this matter. This will enable the targeted involvement of the Gypsies and Travellers community and explanation of the specific matters associated with this requirement.

Question 7

Do you agree with the proposals for regulations relating to the Evidence Report?

Yes / No / No View

Please explain why you agree or disagree

Section 16D – Play sufficiency assessment

19. Section 16D of the Act introduces requirements relating to the assessment of play opportunities for children. A separate consultation on this is taking place alongside this LDP consultation.

Section 18 – Preparation and publication of proposed local development plan

20. After the planning authority have been notified under section 16B(9) that the Evidence Report contains sufficient information to enable the planning authority to prepare an LDP, the planning authority are to prepare and publish a Proposed LDP. Section 18(1) of the Act sets out actions a planning authority are to take relating to preparation and publication of the LDP. Section 18(1)(a) requires the preparation of a proposed LDP and for it to be published in such manner as is prescribed. The 2008 Regulations prescribe the way in which the Main Issues Report (MIR) is to be published (regulation 12) and these are also applied to the Proposed Plan. The MIR stage of plan preparation has now been removed. However, we propose that the manner of publication of the Proposed Plan remains as it was previously. This includes publishing a notice in a local newspaper circulating in the area and on the internet, sending notice to identified stakeholders, making a copy available for inspection at the planning authority offices and libraries, and publishing it on the internet.

21. Whilst we have seen increased digital access over time, and particularly in the last 18 months, local newspapers have remained a normal route to raise awareness. Social media notices are increasingly used in the publication of LDPs and supplement the minimum requirement of internet publication. However, there are groups in society who use the internet less, including older people and disabled people. Whilst we propose the substance of the requirements be largely maintained, there is a need to make amendments to reference the correct parts of the primary legislation (section 18(1)) and to remove references to SDPs and MIRs. We therefore propose to make these necessary amendments, see Annex B, Regulation 9.

22. Section 18(1)(d) of the Act requires a planning authority to consult key agencies and such persons who may be prescribed on the Proposed Plan. This provision in the Act is not new. The 2008 Regulations (regulation 13) require that a planning authority consult Scottish Ministers. Proposed Plans will be of interest for a wide range of stakeholders and local authorities will have a good understanding of those relevant to their area. Statutory requirements in primary legislation for Development Plan Schemes mean they must include a Participation Statement, and that they include information on whom the planning authority will consult in preparing the plan. The 2019 Act strengthened this to require that in preparing the Development Plan Scheme, the planning authority seek the views of the public at large as to the content of the Participation Statement. We expect this will include seeking views on who should be engaged at different stages, and on the best approach to involving people. We therefore do not propose to prescribe in regulations, any further persons to be consulted on the Proposed Plan, see Annex B, Regulation 10, but expect to say more in guidance.

23. Section 18(1)(e) of the Act provides for arrangements regarding notification of the Proposed Plan to be set out in regulations. This provision in the Act is not new. The 2008 Regulations (regulation 14) requires notice to be given to the owner, lessee or occupiers of sites and neighbouring land that may be significantly affected by development proposals. We consider the existing regulations to be appropriate and propose to maintain current requirements unchanged in replacement regulations, see Annex B Regulation 11.

Question 8

Do you agree with the proposals for regulations relating to the preparation and publication of the LDP?

Yes / No / No View

Please explain why you agree or disagree.

Section 19 – Examination of proposed Local Development Plan

24. Section 19(5) of the Act provides for Scottish Ministers to make regulations relating to the examination of the plan, including costs, procedures and what is to be assessed. This provision in the Act is not new. The 2008 Regulations set out requirements relating to examination at Part 4. Paragraph 15 above notes that we consider it appropriate for regulations relating to the costs, procedures and assessment at examination, to be consistent with the equivalent ones for Evidence Reports. We consider that no changes are necessary to regulations relating to 'Notification of appointment of appointed person' (regulation 19) and 'Further representations of information' (regulation 22), see Annex B, Regulations 14 and 17. Regulations relating to the 'Application and interpretation of Part 4' (regulation 18), 'Scope of the examination' (regulation 21) and 'Expenses of examination' (regulation 23) should be replaced to reflect there will not be SDPs in future. Regulations relating to the 'Summary of unresolved issues' (regulation 20) should remove reference to SDPs, correctly reference the Delivery Programme, remove reference to the Monitoring Statement and add reference to the Evidence Report. We therefore propose to make these necessary amendments, see Annex B, Regulations 13, 15, 16 and 18.

25. Section 19(5A) of the Act provides for publication of the Proposed Plan and any modifications to be in the prescribed manner when a plan is to be examined. This provision is new but equates to section 18(4) of the Town and Country Planning (Scotland) Act, 1997, as amended by the Planning etc. (Scotland) Act, 2006 when planning authorities submit the plan for examination. The 2008 Regulations set out these requirements at regulation 16 and we consider it appropriate to continue to publish the plan submitted for examination in the same manner as previous. We therefore propose to maintain the requirements unchanged in replacement regulations, see Annex B, Regulation 12.

26. Section 19(10)(a)(i) of the 2019 Act requires planning authorities to make such modifications as the appointed person recommends and only allows for them to be declined in circumstances as may be prescribed. These circumstances are set out in the Town and Country Planning (Grounds for Declining to Follow Recommendations) (Scotland) Regulations 2009. Regulation 2 of the 2009 Regulations, makes reference to SDPs, applying where the modification would make the LDP inconsistent with the SDP. Whilst we do not intend to alter the grounds for declining to follow recommendations, this regulation should be amended to reflect the removal of SDPs. These regulations were prepared under affirmative Parliamentary procedures but the proposed change is consequential to the changes to primary legislation and can therefore be achieved using consequential powers. We therefore propose to amend the regulations to reflect the removal of SDPs.

Question 9

Do you agree with the proposals for regulations relating to the examination of the LDP?

Yes / No / No View

Please explain why you agree or disagree.

Section 20A – Publication of and publicity for local development plan

27. Section 20A(1)(b) of the Act requires that as soon as reasonably practicable after the local development plan is constituted, the planning authority are to publish the plan. Sections 20(1A)(a) and (b) provide that a recommended-modifications statement and a report of modifications be published in the prescribed manner. The former relates to when a modification proposed by an appointed person is not made and the later relates to when the constituted plan is different to the Proposed Plan as a result of modifications. These provisions in the Act are new. The manner in which the regulations propose for the documents to be published however, mirrors the requirements of the 2008 Regulations for publication of the proposed local development plan following examination (regulation 17). This includes publishing in a local newspaper a statement that the planning authority have adopted the plan either without making a modification as recommended, or have made modifications to it, and how the relevant documents may be inspected. Publication is also be include making copies available for inspection at an office of the planning authority and publishing the documents on the internet. We therefore propose to address these matters in regulations, see Annex B, Regulations 19 and 20.

Section 20AA – Amendment of local development plan

28. The 2019 Act introduces provisions for the amendment of LDPs. The introduction to this consultation (Part A) explains that we will consider this in regulations and guidance once the new development planning system is in place.

Question 10

Are there matters you wish to highlight relating to amendment of the LDP which may have bearing on the proposals for regulations being consulted on in this document?

Yes / No / No View

Please explain your view.

Section 20B – Development Plan Schemes

29. Section 20B(7) of the Act provides for regulations to be made relating to the form and content, and procedures for preparing and adopting Development Plan Schemes (DPS). This provision in the Act is not new. Part 5 of the 2008 Regulations (regulation 24), requires timetabling information for different stages of plan preparation to be included in the DPS. The regulations require to be amended to replace references to MIRs with Evidence Reports and to remove reference to SDPs and Strategic Development Planning Authorities (SDPA). The regulations do not currently require timetabling for when the LDP is expected to be adopted, or the tracking of any changes to the original timescales and for an explanation to be provided for any changes. Although the review period for plans will be 10 years we do not expect plans to take this long to prepare. We wish to see plan preparation to proceed in a timely manner and for any delay to be justified. We therefore propose to make the necessary amendments and address the additional matters in regulations, see Annex B, Regulation 21.

Question 11

Do you agree with the proposals for regulations relating to Development Plan Schemes?

Yes / No / No View

Please explain why you agree or disagree.

Section 21 – Delivery Programmes

30. Section 21(3) of the Act identifies those from whom planning authorities are to seek the views and have regard to in preparing a Delivery Programme. This includes key agencies and such persons as may be prescribed. This provision in the Act is not new. The 2008 Regulations (regulation 25) set out others whose views are to be sought including Scottish Ministers and any person who the authority proposed to specify by name. We consider that those already specified in legislation are appropriate, however there is a need to replace the references to refer to Delivery Programmes instead of Action Programmes, as they were formerly known, and to remove references to SDPA. We therefore propose to make these necessary amendments, See Annex B, Regulation 22.

31. Section 21(7) of the Act provides for regulations to prescribe requirements relating to the form, content and procedures of a Delivery Programme. This provision in the Act is not new. The 2008 Regulations (regulation 26) require the content of the Action Programme to set out: a list of actions required to deliver each of the policies and proposals of the plan; the name of the person to carry out the action; and the timescale for the conclusion of each action. We consider that it is appropriate to maintain these requirements for Delivery Programmes however references to Action Programmes should be replaced with Delivery Programme. We therefore propose to make these necessary amendments, see Annex B, Regulation 23.

Question 12

Do you agree with the proposals for regulations relating to Delivery Programmes?

Yes / No / No View

Please explain why you agree or disagree.

Section 23D – Meaning of "key agency"

32. Section 23D of the Act provides for the meaning of key agency to be provided in regulations, given the numerous references to the term in the Act. The provision in the Act is not new and the 2008 Regulations set out the meaning at regulation 28. Various bodies are referred to including Scottish Natural Heritage and Highlands and Islands Enterprise. Scottish Natural Heritage have changed name to become NatureScot. South of Scotland Enterprise was launched in April 2020 and has similar status to Highlands and Islands Enterprise. Historic Environment Scotland was formed in 2015 after the previous government agency, Historic Scotland, was dissolved. We therefore propose to address these matters in regulations, see Annex B, Regulation 24.

Question 13

Do you agree with the proposals for regulations relating to the meaning of 'key agency'?

Yes / No / No View

Please explain why you agree or disagree.

Transitional Provisions

33. Regulations are needed to address the arrangements for transitioning between the current and future LDP systems. We have previously provided transitional guidance on intentions for transitional arrangements.

34. The guidance sets out that where a planning authority has published its proposed LDP before June 2022, they will be able to proceed to adoption under the existing provisions and procedures in the 1997 Act (introduced by the 2006 Act). Emerging LDPs which have not reached the stage of a published proposed plan before June 2022 will be subject to all the new process introduced by the 2019 Act.

35. The guidance also covers supplementary guidance, and indicates that a period of 24 months after the coming into force of the development plan regulations will be allowed for the adoption of supplementary guidance associated with LDPs adopted under the 2006 Act. It proposes that after that point, no further supplementary guidance will be allowed to come forward for adoption as we transition to the new system. We propose to give effect to the above arrangements regarding LDPs and supplementary guidance in separate regulations making saving and transitional provisions.

36. For LDPs and supplementary guidance that proceed to adoption under the provisions and procedures introduced by the 2006 Act, the existing regulations will need to be continued. We therefore propose to enable this through the replacement regulations, see Annex B, Regulation 25.

Question 14

Do you agree with the proposals for regulations relating to transitional provisions?

Yes / No / No View

Please explain why you agree or disagree.