Planning circular 3/2022: development management procedures

Annex B

Pre-Application Consultation – Exemptions and Screening

Exemptions of PAC

1. Requirements for PAC currently apply to major and national development. The Scottish Government considers exemptions from PAC requirements are justified in certain cases. These exemptions fall into two categories:

i) Where the application is made under section 42 (Section 42 Applications), i.e. an application for a new planning permission with different conditions for a development previously granted permission^[35]; or

ii) Exemption in the circumstances specified in regulation 4A, under section 35A(1A)(b) – where PAC was carried out in connection with an earlier application for planning permission and a subsequent application for essentially the same development is to be made, subject to certain criteria.

2. The scope of section 42 applications, and the publicity and consultation requirements that apply to them, are set out in Annex H.

3. An exemption under section 35A(1A)(b) applies where all of (a) to (d) apply:

(a) the application for planning permission relates to proposed development—

(i) of the same character or description as development (or part of the development) in respect of which an earlier application for planning permission was made ("the earlier application"),

(ii) comprised within the description of the development contained in the proposal of application notice for PAC given to the planning authority under section 35B(2) in respect of the earlier application, and

(iii) to be situated on or within the same site as the development to which the earlier application related and on no other land except land which is solely for the purpose of providing a different means of access to the site of the proposed development,

(b) there has been compliance with the PAC requirements in respect of the earlier application,

(c) the planning authority has not exercised their power under section 39 to decline to determine the earlier application, and

(d) the application for planning permission is made no later than 18 months after the validation date of the earlier application.

4. The prescribed circumstances mean in effect that provided there was an earlier application for essentially the same development prior to which PAC was carried out, then as long as a follow up application is made within 18 months from when that earlier application was made, it is exempt from further PAC requirements. This applies as long as the planning authority did not refuse to deal with the earlier application ('decline to determine' it) under section 39 (see Annex E).

5. Criteria in (a) above specify that the new proposal could be different in some respects from that in the earlier application, but has to be the same character or description of development. It also has to be on or within the same site as the earlier application, though some allowance is made for a change to a means of access. The proposal would also have to be within the scope of the description of the development in the PoAN, on which PAC was carried out.

6. The exemption provided for by section 35A(1A)(b) and regulation 4A is intended to allow, for example: applicants to address grounds for refusal of permission; make amendments to address practical considerations that arise in the wake of planning permission being granted; or, where an application has to be withdrawn and a fresh one submitted, to address some aspect of the development without having to start PAC again.

7. It would be open to a prospective applicant to engage in some pre-application consultation voluntarily before making a subsequent application. They will still have to go through the planning application process, with the associated public engagement requirements on the planning authority, and there may be value in trying to identify before entering that process any issues the community have as regards the elements of the proposal that are to be changed in the new application.

8. The provisions recognise that a newer application may relate to only part of the overall development or part of the proposal site and that the applicant may be a different party.

9. Where the criteria are met, exemptions in effect apply whatever happened to the earlier application, e.g. whether it was withdrawn, refused, granted, granted with conditions, or is still live.

PAC Screening

10. PAC screening in advance of making an application is optional. There are two types: Firstly screening to ascertain whether the development is of a class to which PAC applies; and secondly, if it is, whether an exemption applies.

Screening as to whether the proposal is of a class of development to which PAC applies

11. The process is started by a prospective applicant submitting a notice to the planning authority (a 'pre-application screening notice') requiring the authority to make a statement as to whether the PAC is required before an application is made. Under section 35A(5) and regulation 5 of the DMR, the 'pre-application screening notice' must contain:

a) a description in general terms of the development to be carried out;

b) the postal address, if any, of the site at which the development is to be carried out;

c) a plan showing the outline of the site at which the development is to be carried out and sufficient to identify the site;

d) detail as to how the prospective applicant may be contacted and corresponded with; and

e) a statement as to whether in respect of the development a screening opinion or screening direction has previously been issued on the need for environmental impact assessment (EIA), under the EIA Regulations.

12. In preparing the notice, a prospective applicant should include enough detail within the general description of the proposal to enable the planning authority to determine the class of development within the hierarchy. Any plan showing the site should be to a proper cartographic base, for example Ordnance Survey, and use an appropriate scale.

13. Point (e) is to facilitate the identification of proposals previously screened as Schedule 1 development in the EIA Regulations, which are categorised as major developments in the hierarchy.

14. Although this information should be sufficient in most cases to make a decision, the planning authority has powers under section 35A(6) to request further information where necessary to determine whether the proposal is in a class categorised as requiring PAC.

15. The authority has 21 days to respond to a screening notice, which does not include any time between requesting additional information and its receipt (sections 35A(7) and (8)). Any request by the planning authority for further information would need to be made before the 21 day period elapsed. In responding to a screening notice to request further information, the planning authority should be clear whether the request relates to information which is required to meet the content specified in legislation or merely additional information needed to help them make a decision.

16. If the proposal is not considered to be in a category for which PAC is required, and the proposal is not then altered materially prior to submission of a planning application within 12 months from when the prospective applicant gave notice, the planning authority cannot subsequently alter its initial view. The date the prospective applicant gave notice applies to when the statutory requirement on content of such notices was met, not when any additional information requested by the planning authority, over and above the statutory requirement, was received.

17. The screening processes for EIA and for PAC are separate statutory procedures. Therefore a screening opinion under the EIA Regulations would not in itself function as a view on the need for PAC.

18. It is open to the prospective applicant to proceed with PAC without a screening notice. In most instances it should be clear whether PAC is required from the definition of major and national developments. Where a pre-application screening notice and a proposal of application notice are submitted together, they can be processed concurrently rather than consecutively.

Screening for PAC Exemption

19. The PAC exemptions under section 35A(1A)(b) described above were introduced on 1 October 2022. PAC screening can play an important role in determining whether such exemptions apply.

20. Where exemption from PAC relates to the making of a Section 42 Application, none of the criteria in regulation 4A, and described in paragraph 3 of this Annex, apply^[36]. There should therefore be no need for screening to the extent that the applicant is clear they are intending to make an application for a new planning permission for the same development again, seeking only changes to the conditions attached to a previous permission. Whether making an application under section 42 would be appropriate is not a matter for PAC screening.

21. Where a screening notice is submitted regarding the section 35A(1A)(b) exemption (see paragraph 3 of this Annex), in addition to the information in paragraph 11 of this Annex, the notice must also contain—

(a) sufficient information to enable the earlier application to be identified by the planning authority,

(b) the information contained in the proposal of application notice given to the planning authority under section 35B(2) in respect of the earlier application, and

(c) a statement (for the purposes of assessment of the need to comply with section 35B), confirming the date, or latest date, on which the prospective applicant intends to make that application for planning permission.

22. Items (a) and (b) relate to the judgement regarding the relationship between the proposal described in the notice and the proposal as set out in the earlier application and related PoAN.

23. Item (c) relates to the time limit on exemptions, i.e. the subsequent application would, amongst other things, need to be made no later than 18 months after the validation date of the earlier application to qualify for exemption from PAC. Whilst the point at which the planning authority's screening statement is given may be within 18 months after the validation date of the earlier application, that 18 month period may elapse before the new application is made.

24. Where a planning authority issues a screening statement to the effect the PAC exemption applies, they will need to specify the date by which the application needs to be made in order to meet the 18 month time limit on such exemptions. The planning authority does not have the power to specify that the exemption only lasts for a shorter period.

25. A section 35A(1A)(b) exemption will fall if the 18 month time limit from the date the earlier application was made elapses. Where that is within the 12 month period from submission of the screening notice (see paragraph 16 of this Annex), then the exemption nonetheless falls at the end of the 18 month time limit.