Masterplan Consent Areas: guidance

How?

Graphic text below:

Stage 1 - Project initiation

Stage 2 - consult on possible proposals

Stage 3 - prepare proposed scheme & consultation

Stage 4 - Finalise Scheme

Stage 5 - decision making/notification

Stage 6 - ‘make’ the scheme

Stage 7 - publicity

MCA Scheme

Project initiation

(team / governance)

Understanding the site / evidence gathering

❑ Site Survey/

❑ Analysis/Constraints

❑ Baseline info

Early engagement

Online Notice (description in general terms of what's being considered, and for where, invite comments / representations)

Consult community council

Where the MCA scheme may include national or major developments hold at least 2 public events

[MCAs Reg 3]

Drafting / developing the masterplan, must include:

❑ Map

specify the area the scheme covers

❑ Written statement specify the development or descriptions of development which the scheme grants authorisation for

❑ any diagrams, illustrations, descriptive matters, the planning authority thinks appropriate

❑ any conditions, limitations (including reasons)

[Act : Schedule 5A paras 1,2 & 7 and MCAs Reg 6]

Publicity and Consultation

Publicity

❑ Neighbour Notification

❑ Publish notice on internet

❑ 30 day period for representations

❑ Statutory consultees

[Act : Schedule 5A para 9 & MCAs Regs 4]

Consider representations

[Act : Schedule 5A para 10]

Finalise scheme and conditions

Predetermination hearing if required (national developments)

[Act : Schedule

5A para 11 & MCAs Reg 5]

Notification to Ministers if required

[Act : Schedule 5A para 12 & Notification Direction]

Ad opt/ ‘Make’ the Scheme

[Act :Schedule 5A para 7(2)]

Notify decision

Publicise

Put on register

Copy available for inspection

[MCA Regs: 7&10]

EIA

Screening

Planning authority adopt a screening opinion or the Scottish Ministers make a screening direction, indicating if EIA required

[MCA EIA Regs 6-7]

Scoping

A scoping opinion (or scoping direction) will include the scope and level of detail of information to be provided in the EIA report.

[MCA / EIA Reg 8]

Consideration Preparation of EIA Report - consult with bodies for any information relevant to the preparation of the EIA Report

[MCA EIA Reg 9] Publicity and Consultation

Publication of EIA Report

❑ Neighbour notification

❑ Notice – Edinburgh Gazette, local newspaper, website

❑ Available for inspection in office of the planning authority

[MCA EIA Regs 10-11]

Statutory consultation (30-day period for representations)

[MCA EIA Reg 12]

Review, evaluation & decision making

Additional information

[MCA / EIA 16-17]

Send to Scottish Ministers (if required)

Provide Ministers with copy of EIA Report, if MCA subject to call-in direction.

[MCA EIA Regs 13 & 14]

EIA available for inspection

Decision Notice

Inform the public/newspaper

[MCA EIA Regs 18,19 & 21]

Screening Direction (MCA/EIA Reg 7 (4 - 6)), Scottish Ministers may make a screening direction either at their own volition or if requested to be any person.  

Documents to be made available on the Register as issued e.g. Screening / Scoping Opinion/Direction - see MCA EIA Reg 18.

Stage 1: Project Initiation

Team/Governance/Collaborative Working

45. MCAs are a way for authorities to set out their stall as to the type and quality of development they want to see in their area, and consent and enable that type of development. Agreement of an appropriate council committee may be needed, both to begin preparation and formally adopt or ‘make’ an MCA. Local members will also be involved where there is a requirement for a hearing.

46. MCAs can be used as part of collaborative approach, with the planning authority taking the lead and working with landowners, developers and investors, key agencies and the community.

47. It was not appropriate to regulate on how planning authorities and any partners initiate the project to develop an MCA, but we expect that authorities will put together an appropriate project team for particular MCAs, as a vital first step, to give the MCA a firm foundation. This may consider suitable project management structures and internal processes, including consideration of risks. The process of masterplanning is likely to involve local authorities working together corporately in a coordinated manner, particularly in terms of planning, roads and transport.

48. Planning authorities may also wish to work closely with potential developers and investors to understand market aspirations and aspects around feasibility. In some cases, a partnership approach could be taken forward with a development partner(s) who may provide resources to carry out some of the work, for example around site investigations, EIA work, or design.

49. Planning authorities may also wish to engage with key agencies early on for advice about the particular location they are considering bringing an MCA forward for, and to explore any potential issues or wider considerations for the masterplan. This is also an opportunity to establish links and processes with statutory consultees around putting the scheme in place, and around compliance checks on any conditions.

50. In particular, where it is being considered that the MCA scheme may give listed building and/or conservation area consent, planning authorities are encouraged to contact Historic Environment Scotland early on. As conservation area consent is in relation to demolition, it will be vital to consider the tests for demolition early on, as further steps may need to be taken well in advance for example around advertising/marketing the property for six months.

Understanding the site/area

51. Good design depends on thoroughly understanding the site and its context. It will be important to put effort into this early evidence gathering stage, and to collate relevant baseline information.

52. Planning authorities would be expected to analyse the site/area, which may include a site survey and ground investigations. This is likely to consider constraints and opportunities and any special features. It should take an infrastructure first approach. In most cases there will be a need to assess its physical/environmental characteristics, social factors and economic needs. Further advice around considering context, identity and connections is available in Planning Advice Note 83: Masterplanning, and within other tools such as the Place Standard Design Version.

53. Planning authorities may also wish to engage early on with infrastructure providers, utility companies, and local communities and groups.

Stage 2: Consult on possible proposals

Consultation on possible proposals for a masterplan consent area scheme

online notice

54. The planning authority must consult on its early possible proposals for an MCA scheme. Under Regulations 3(3) and (5), it must publish on the internet:

• a map showing the area in respect of which the planning authority are considering making a masterplan consent area scheme, and
• a notice containing the following information –

(a) a description in general terms of the development in respect of which the planning authority are considering the formulation of proposals for a masterplan consent area scheme,

(b) a description of the area in respect of which the planning authority are considering making a masterplan consent area scheme and a statement that that a map showing that area is to be published on the internet,

(c) information as to how, to whom and by what date representations may be made in respect of proposals to make a masterplan consent area scheme,

(d) the date and place of the public events (where required, see paragraphs 57-59 below).

consultation with community councils

55. The planning authority must send a notice containing the above information to the community council, if one exists for the area, where the planning authority is considering making a masterplan consent area scheme [Reg 3(4)]. Planning authorities may also wish to send the notice to Local Place Plan groups, community and interest groups, development trusts, neighbouring community councils, with interests in the area, and to owners and occupiers.

representations

56. Planning authorities must have regard to any valid representations received from anyone consulted. For a representation to be treated as valid it must be made on or before the date specified in the notice.

public events (where the MCA scheme may include national or major developments)

57. Where the planning authority considers that its proposals for an MCA scheme may include national or major developments [Reg 3(6)], it must also hold at least two public events where members of the public may make comments on the proposals to make an MCA scheme [Reg 3(2)].

58. This is an equivalent requirement to pre-application consultation (PAC) for planning applications for national and major developments. Regulation 3 is similar to the PAC requirements set out in Regulation 7 of The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013 (DMR) and so it may be useful for planning authorities to refer to Chapter 2 of Planning Circular 3/2022: Development Management Procedures, including paragraphs 2.11 – 2.18.

59. Appropriate notice of the events must be given [Reg 3(5)(d)]. There should be at least 7 days from the date of the notice to the first event, and at least 14 days between the first and final event [Reg 3(7)]. At the final public event, the planning authority must provide feedback to members of the public in respect of comments received as regards proposals to make the MCA scheme [Reg 3(8)].

Stage 3: Prepare proposed masterplan consent area scheme and consultation

Form and content of MCA schemes

60. Requirements on the form and content of MCA schemes are set in the Schedule 5A paragraph 1 and Regulation 6. An MCA scheme is to consist of:

• a map (Schedule 5A para 1(1)(a))

Maps should be in a format which is easy to understand by all interested parties, for example clearly showing the proposed location, types and scale of development proposed.

• a written statement (Schedule 5A para 1(1)(b))
  • a scheme must specify— (Schedule 5A para (2)).
  • - the area to which the scheme relates,
  • - the development, or descriptions of development, for which the scheme grants authorisation,
  • - the date on which the scheme comes into effect,
  • - the date on which the scheme ceases to have effect. (This cannot be more than 10 years after the scheme comes into effect) Schedule 5A para (4))
  • authorisation granted by a scheme is subject to any conditions, limitations and exceptions specified in the scheme (section 54B (2)(a)).
  • reasons for conditions, limitations or exceptions – this is a requirement of Regulation 6 in the interests of transparency and to reflect the requirement for reasons for conditions attached to planning application consents.
• such diagrams, illustrations and other descriptive matter as the relevant planning authority thinks appropriate for explaining or illustrating the scheme's provisions (Schedule 5A para 1(1)(c)).

Conditions

61. Conditions within an MCA scheme should follow the tests within Planning Circular 4/1998: The Use Of Conditions In Planning Permissions. Conditions must be used sensibly and proportionately, where required, in order to ensure that the whole rationale for an MCA is not undermined by an excessive use of conditions. Conditions could be used to offer a degree of flexibility, so that a general consent is in place offering broad scope for developers, including investors, to take forward proposals within the MCA scheme. Obtaining a planning authority's consent for development to begin may be specified as a condition of authorisation being conferred by a scheme.

62. Conditions or planning obligations can be used to secure developer contributions, though these should be market-facing and proportionate to avoid MCA schemes that are too restrictive or onerous, and should be in line with the tests within Planning Circular 4/1998 and Planning Circular 3/2012.

63. When preparing conditions for MCA schemes it may be useful for planning authorities to refer to Annex G of Planning Circular 3/2022: Development Management Procedures, most notably paragraph 16.

64. If a developer wanted to pursue a development proposal that did not comply with the MCA scheme, they would have to apply for planning permission, and pay the fee, in the usual way. Planning authorities have a range of enforcement powers available to them and can use these as they consider appropriate to remediate any breaches of planning control. Powers range from requiring retrospective consent through to requiring complete removal or cessation of the unauthorised development.

65. MCA schemes may include informatives or annexes directing developers to other consents and their associated timescales, that may be required, e.g. Advertisements, Building Warrants, Hazardous Substances Consent or SEPA environmental authorisations.

Consultation on proposed masterplan consent area scheme

66. Once the planning authority has drafted the proposed MCA scheme, there is a formal 30-day consultation. These consultation requirements are covered by Regulation 4 of the MCA Regulations.

Notice on the internet

67. The planning authority must, under Reg 4(2) and 4(4), publish on the internet:

• a copy of the proposed masterplan consent area scheme, and
• a notice containing the following information:

a) a statement that the proposed masterplan consent area scheme has been prepared and how it may be inspected,

b) a brief description of the content and purpose of the proposed masterplan consent area scheme,

c) details of how further information may be obtained regarding the proposed masterplan consent area scheme, including that it is to be published on the internet under paragraph (2)(a),

d) a statement that any person wishing to do so may make representations on the content of the proposed masterplan consent area scheme before the end of the period for representations, and

e) information as to how and to whom any representations should be made including information stating when the period for representations expires.

68. The planning authority may also wish to make available online any supporting information and assessments which informed the preparation of the proposed MCA scheme.

69. The planning authority must make a copy of any proposed MCA scheme (or proposed alteration to an MCA scheme) available on the planning register, as set out within DMR Schedule 2 paragraph 5A(a).

Consultees/notification

70. The planning authority must, under Reg 4(3), send the above notice to the following:

a) any person (other than the planning authority) who is an owner of land to which the proposed masterplan consent area scheme relates,

b) where there are premises situated on neighbouring land to which the notice can be sent, to the owner, lessee or occupier of those premises,

c) to persons, authorities and bodies in accordance with the schedule within the MCA regulations.

71. A notice required to be sent to the owner, lessee or occupier of premises under may, under Reg 4(6), be sent by sending the notice to the premises addressed to “the Owner, Lessee or Occupier”.

72. The term “neighbouring land” is defined in Regulation 2 as:

“an area or plot of land (other than land forming part of a road) which, or part of which, is conterminous with or within 20 metres of the boundary of the area in respect of which the planning authority propose to make a masterplan consent area scheme”.

73. The list of consultees for MCAs is similar to the consultee list for planning applications, set out within Schedule 5 of the DMR.

74. The Health and Safety Executive (HSE) is included as a consultee within the MCA regulations’ Schedule, for development proposed within HSE consultation areas. Planning authorities have access to HSE’s planning webapp. If an MCA is too large to be outlined in the web app (greater than 200 hectares), then HSE can be consulted by emailing LUPenquiries@hse.gov.uk. That address should be used for EIA consultations.

75. Should planning authorities need to contact and consult with the Ministry of Defence (MOD) regarding a proposed MCA scheme, please email DIOODC-TownPlanning@mod.gov.uk.

Representation period

76. There is a 30-day period for representations to be made to the planning authority. This period begins on whichever is the latest date, the date on which the notice is published on the internet (Regulation 4 (2)(b)) or the date the notice is sent as required by Regulation 4 (3).

77. The requirement for publicising and inviting representations is similar to consultation requirements for planning applications under The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013. In the interests of transparency, authorities may wish to publish representations received in a similar way to what they would do for planning applications.

Stage 4: Finalise scheme

Consideration of representations

78. The planning authority must consider the validly submitted representations before making or altering an MCA Scheme (Schedule 5A Paragraph 10).

79. Representations are to be counted as validly submitted if they are submitted within the period for representations prescribed – see para 76 above.

80. In the interests of transparency authorities may wish to publish representations received.

Hearings

81. A hearing by a committee of the planning authority must be held where a proposed MCA scheme would authorise development belonging to the category of national developments (as designated in the National Planning Framework).

Such hearings will provide an opportunity to discuss the detail of the proposed MCA scheme, rather than the principle of the national development, which is already established through the National Planning Framework.

82. Where a hearing is mandatory, an ‘interested party’, i.e. anyone who submitted a representation (which was not subsequently withdrawn) regarding the MCA scheme, must be given an opportunity to appear before and be heard by a committee of the planning authority. Regulation 5(3) provides the definition of an interested party.

83. The Act states the requirement for a planning authority to consider representations includes any representations made at a hearing required by regulations.

84. Hearing procedures are to be subject to rules made by the planning authority. The 1997 Act (Schedule 5A Paragraph 11(3)) requires the planning authority to make rules to specify the procedures for arranging and conducting hearings for MCA Schemes. This includes ensuring the matters discussed at a hearing are relevant and avoid repetition. The hearing rules may cover wider attendance, beyond those who have a right to appear before and be heard by the committee; planning authorities will have discretion over this. It may be useful for planning authorities to refer to Annex F of Planning Circular 3/2022: Development Management Procedures, for further guidance on hearing procedures.

Stage 5: Decision-making/notification

Requirement to notify the Scottish Ministers of certain proposals

85. Scottish Ministers intend to issue a new Direction and accompanying circular that will ensure the same notification triggers apply to both planning applications and MCA schemes, providing a consistent level of scrutiny. This general direction will cover proposals of a specified description, and circumstances which occur (e.g. objection by government agencies in relation to their interests). In addition, Ministers also have power to issue directions addressed to particular authorities, which could relate to a specific proposed MCA scheme. This will be available online at Ministerial involvement in planning decisions.

86. As provided for in paragraph 12(2) of Schedule 5A, where a planning authority are required by a direction to notify the Scottish Ministers of their proposals, the authority may not make the proposed scheme or alteration (whether in the terms proposed or otherwise) until the period provided for in the direction has ended.

Call in of proposals

87. Scottish Ministers can call-in an MCA scheme for their own determination, as provided for in Part 4 of Schedule 5A. A call-in direction may be given in relation to an authority's proposals at any time prior to the authority making the proposed scheme or alteration. In keeping with similar powers relating to the handling of planning applications, Ministers expect to exercise this call-in power very sparingly, recognising and respecting the important role of local authorities in making decisions on the future development of their areas.

88. If a planning authority has been given a call-in direction, the authority:

a) may not make the proposed scheme or alteration (whether in the terms proposed or otherwise), and

b) must not begin, or as the case may be proceed with, any hearings in relation to the proposals that would (but for this paragraph) be required by regulations under paragraph 11(1).

89. Where a call-in direction has been given in relation to a planning authority's proposals for making or altering a scheme, the Scottish Ministers may:

a) make the scheme or alteration proposed,

b) make a scheme or alteration that is different from what the authority proposed, or

c) decline to make any scheme or alteration.

90. In coming to a decision, Scottish Ministers may require a local inquiry or other hearing to be held by a person appointed by them.

91. If Scottish Ministers decide to alter a scheme and the alteration they intend to make would have one of the following effects:

a) excluding a place from the area to which the scheme relates,

b) withdrawing authorisation granted by the scheme, or

c) making the authorisation granted by the scheme subject to new or more stringent conditions, limitations or exception

they must pause and may not make the alteration until the end of the day that falls 12 months after the day on which they decided to make the alteration. It is expected that this approach will only need to be used by Scottish Ministers in exceptional circumstances.

Stage 6: ‘Make’ the scheme

92. ‘Making’ is the legal term for adopting an MCA scheme, once ‘made’ the scheme will be in force, and consent granted.

93. Paragraph 7 (2) of Schedule 5A provides that having considered any responses received to the consultation on their proposals, the planning authority may (subject to any direction):

a) make the proposed scheme or alteration,

b) make a scheme or alteration which, in light of the consideration given to responses received to the consultation and any other matters which appear to the authority to be material, differs from what they proposed, or

c) decide not to make any scheme or alteration.

Decision Notice

94. The planning authority must publish a Decision Notice, when making an MCA Scheme. Regulation 7(2) sets out what a decision notice must contain:

• a statement that the masterplan consent area scheme has been made and how it may be inspected,
• the main reasons and considerations on which the decision is based, including reasons for any conditions, limitations or exceptions,
• information about the arrangements taken to ensure the public had the opportunity to participate in the decision-making procedures,
• information regarding the right to challenge the validity of the decision and the procedures for doing so.

95. Planning authorities may consider whether it would be helpful to reference representations received and any material considerations raised, within the decision notice, as is required for planning applications within the DMR Schedule 2 paragraph 4(f).

Stage 7: Publicity of MCA scheme and Decision Notice

96. Regulation 7 sets out the publication requirements for MCA schemes that have been ‘made’ by the planning authority: The planning authority must:

• publish on the internet a copy of the MCA scheme and the decision notice (Reg 7(1)(a))
• publish in a local newspaper circulating in the area and on the internet a notice containing -

(a) a statement that the masterplan consent area scheme has been made

(b) information as to how the scheme and the decision notice may be inspected. (Reg 7(3))

• make a copy of the decision notice and MCA scheme available on the planning register, as set out within DMR Schedule 2 paragraph 5A(b and c).
• make a copy of the MCA scheme available for inspection at an office of the planning authority. (Reg 7(4)).

Alteration of an MCA scheme

97. Regulation 8 provides details of the process to be followed when an MCA scheme is to be altered. The principle behind this provision is that mostly the requirements apply to the alteration of an MCA scheme as apply to the making of an MCA scheme, subject to some modifications, so that references relate to an alteration, and to remove the requirement for public PAC-style events. However, sometimes planning authorities may still wish to still undertake PAC style events when altering MCA schemes.

98. An MCA scheme can be altered to extend the length of the ‘made’ scheme beyond the original 10-year limit.

Electronic Communication

99. Our expectation is that electronic communications will be widely used throughout the preparation of MCA schemes. For example, the Regulations specially set out the requirement to publish information associated with the MCA on the internet.

Environmental Impact Assessment

100. The aim of an Environmental Impact Assessment (EIA) is to ensure that prior to a consent decision being taken, for a qualifying project, that it is done so in the full knowledge of any likely significant effects on the environment and any available steps to avoid, minimise adverse or offset effects.

101. EIA development can be included within MCAs. This enables a wider range of development types and uses to make use of MCAs, than could previously have benefitted through SPZs.

102. The Masterplan Consent Area Scheme (Environmental Impact Assessment) (Scotland) Regulations 2024 were developed alongside the main MCA Regulations, to provide an integrated process and ensure environmental assessment principles are followed (see Figure 1 above). These Regulations align process and procedures with The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, and set out what is required for MCA schemes to meet EIA requirements, where required. The MCA Scheme (EIA) Regulations set out the procedures that have to be followed to ensure compliance.

103. In terms of benefits, the EIA process can help to identify the likely significant environmental effects of a particular development at an early stage. This can be a creative catalyst to help produce improvements within the planning and design of the development, in order to avoid significant adverse effects or enhance positive ones.

104. As the lead for the preparation of the MCA scheme rests with the planning authority, it will be for the planning authority to prepare an EIA Report where an MCA includes EIA development. This differs from requirements for planning applications where it the responsibility of a developer to prepare the EIA Report. We do however want to promote a collaborative approach to the production of MCA schemes including EIA related work, with planning authorities working in partnership with those who would benefit from the certainty an MCA scheme can bring (including developers and investors).

105. The MCA Scheme (EIA) Regulations can accommodate a multi-stage consent. This involves a principal decision at the first stage, and is then followed by other stages, where additional information can be provided. These additional stages cannot extend beyond the parameters set by the principal decision. This approach is helpful where there is insufficient detailed information within the plan at the time of the principal decision to make an assessment of likely environmental effects, but an assessment can be undertaken at subsequent stages as details emerge.

106. Proposed MCAs which are likely to adversely affect a Special Protection Area or a Special Area of Conservation must be subject to an assessment of those effects in accordance with The Conservation (Natural Habitats &c.) Regulations 1994.