Planning circular 3/2022: development management procedures

2. Pre-Application Phase

Background

2.1 The Scottish Government wants to encourage trust between parties, and promote open, positive working relationships from the earliest stages in the planning process and to provide, where possible, an early opportunity for community views to be reflected in proposals.

2.2 Both pre-application consultations with the community and pre-application discussions with the planning authority and statutory consultees are intended to add value at the start of the development management process. They should improve the quality of the proposal and allow prospective applicants the opportunity to amend their emerging proposals in light of community, statutory consultee and planning authority opinion. For proposed major and national developments, there are statutory requirements for consultation with communities before a planning application can be made (see paragraph 2.7).

Pre-Application Engagement Between Prospective Applicants, Planning Authorities and Statutory Consultees

2.3 The Scottish Government strongly encourages constructive pre-application discussions between the prospective applicants and the relevant planning authority, agencies and other bodies which will have to be consulted on any subsequent planning application. Such discussions are a separate activity from the statutory pre-application consultation (PAC) with communities required by legislation (detailed below). Both non-statutory pre-application discussions and statutory PAC are intended to front-load the application process.

2.4 Pre-application discussions can help to identify potential key planning issues and considerations at an early stage. They can help to clarify the information required to support a subsequent application and the potential scope of statutory consultation. In doing so, pre-application discussions can inform design development and help to improve the quality of planning applications and the efficiency of the determination process.

2.5 The Scottish Government also strongly encourages the use of processing agreements with planning applications for national and major developments and for substantial or complex local developments. These provide greater clarity about the timescales, information requirements and processes that will take place before a determination is made on such proposals. A processing agreement (see Chapter 6 for more information) is essentially a framework for project managing a complex planning application. The pre-application stage is the most appropriate and effective point to conclude the terms of a processing agreement.

2.6 Between them, pre-application discussions and processing agreements should identify upfront the information required in support of an application and when it will be submitted and considered. Those involved should ensure that any requirements for additional information are limited to what is necessary to inform the decision, relevant to the development proposal, proportionate to the scale and complexity of likely impacts arising, and are clearly scoped to avoid unnecessary costs. Likewise, submissions should be focussed and fit for purpose and findings clearly reported.

Statutory Pre-Application Consultation Between Prospective Applicants and Communities

(Sections 35A, 35B, 35C and 39 and regulations 4 – 7B)

The Purpoe of PAC

2.7 The objective of PAC is to provide a process which enables communities to:

• be better informed about major and national development proposals; and
• have an opportunity to contribute their views to prospective applicants before a formal planning application is submitted to the planning authority.

2.8 In doing so, PAC can help to: improve the quality of planning applications; address misunderstandings; highlight any issues which are particularly important to the local community; and smooth the application process itself and ultimately improve development outcomes.

2.9 The Scottish Government also encourages pre-application engagement with communities in cases where statutory PAC requirements do not apply^[10].

Overview of the PAC Process

2.10 PAC is a statutory requirement for major and national developments and is to be undertaken in accordance with the procedures set out in sections 35A, 35B, 35C and 39 and regulations 4 to 7B. The key stages of the PAC process are:

• Determining whether PAC is required (paragraphs 2.19 – 2.21);
• Giving a proposal of application notice (PoAN) to the planning authority (paragraphs 2.22 – 2.28);
• Publishing newspaper notices in advance of public events (paragraphs 2.32 – 2.36);
• Carrying out statutorily required consultation activity:
• o Holding a minimum of two physical public events regarding the proposals (paragraphs 2.37 – 2.44);
• o Consulting relevant community councils (paragraphs 2.45 – 2.47);
• Carrying out any additional consultation activity beyond the statutory minimum(paragraphs 2.48 – 2.52) as required by the planning authority in its response to the PoAN;
• Making the application to the planning authority no earlier than 12 weeks from when the PoAN was given to the planning authority, and no later than 18 months from the giving of the PoAN (paragraphs 2.29 – 2.31); and
• Submitting a report of PAC alongside their application for planning permission (paragraphs 2.53 – 2.61).

General Considerations

2.11 PAC does not take away the need for, and right of, individuals and communities to express formal views to the planning authority during the planning application process itself. This should be emphasised by the prospective applicant during PAC. While engagement should be meaningful, the prospective applicant is not obliged to take on board community views, or directly reflect them in any subsequent application. As with any application for planning permission, the applicant has the right to choose what they wish to apply for. It is important, therefore, for communities and others to follow their interest in a proposal through to the planning application stage, when views can be made to the planning authority before it determines the application.

2.12 A range of considerations, in addition to the views of the public, will inform the development of a prospective applicant's proposals, such as planning policy, as well as financial, legal and contractual constraints. It is important to note that Scotland's planning system is plan-led, so planning policies contained in national policy and local development plans are the starting point for decisions on planning applications (See Annex A). There are opportunities for the public to engage in the development of such policy before the stage of individual applications and PAC.

2.13 Scottish Ministers expect planning authorities to develop and maintain up to date lists of bodies and interests with whom prospective applicants should consult in particular types of case (similar lists could be prepared for the purposes of pre-application discussions – see paragraph 2.3). They should draw from those resources as appropriate to the particular proposal and its potential impacts and not simply send the same list of consultees in response to each and every proposal of application notice. These lists should be available to prospective applicants, who can draft proposal of application notices in light of their content.

2.14 Prospective applicants should consider:

• The timing of their PAC with regard to pre-application discussions with the planning authority and statutory consultees. Either discussion may identify constraints or considerations, which may in some cases affect the scope to amend the proposed development.
• Approaching communities to help frame their PAC, including on when and how best to approach particular parties, such as community councils, for comment.
• The timing of:
• o events and other engagement activity;
• o information provided in support of such activities; and
• o the timing of deadlines for comments, to allow effective engagement with communities.

• Additional measures for publicising PAC activities, such as use of their own web sites to host information.
• The use of online measures, in addition to the statutory minimum requirement for physical events, which may help to broaden participation and engagement.

2.15 Prospective applicants should have meaningful and proportionate engagement with those who represent the views of potentially affected communities, guided by PAN 3/2010: Community Engagement, the National Standards for Community Engagement or other locally agreed or adapted framework or set of principles.

2.16 A number of tools (including those mentioned in paragraph 2.15 above) are available which provide a sound basis for prospective applicants and planning authorities to assess and respond to the need for any additional consultation requirements, as appropriate.

2.17 Information issued as part of PAC should be factually accurate, easy to understand, jargon free, accessible and relevant. It should be made available in appropriate formats and provided in good time to enable people to take part and discuss their views with others. In doing so, prospective applicants should consider the needs of different groups in the local population, such as people with disabilities, age or language related issues.

2.18. The use of online tools as an additional measure can help broaden participation and enable engagement with a wider range of people who could be affected by the proposal.

Determining whether PAC is required

(Section 35A and regulations 4 and 5)

2.19 Unless an exemption applies, all applications for planning permission or for planning permission in principle under regulations 9, 10 or 11 for major and national development require PAC between prospective applicants and communities. Applications for such developments will need to demonstrate compliance with the legislative requirements for PAC. The National Planning Framework (NPF) and the Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009 (SSI 2009/51) specify what development is to be treated as national or major development.

2.20 An exemption applies where an application for planning permission is made under Section 42 (a Section 42 application see Glossary) or where an exemption applies under Section 35A(1A)(b). See Annex B for more information about exemptions from PAC.

2.21 A screening process is available whereby prospective applicants can seek the planning authority's view on whether PAC is required. This will involve consideration as to whether the application is for a national development or a major development, or, where such development is involved, whether the criteria for exemption are met. Further information on the screening process can be found in Annex B.

Proposal of application notice

(Section 35B and regulation 6)

2.22 Where PAC is required, the prospective applicant must provide to the planning authority a 'proposal of application notice' (PoAN) at least 12 weeks prior to the submission of an application for planning permission. That notice must include the following information:

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

ii) the postal address of the development site, if it has one;

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

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

v) an account of what consultation the prospective applicant proposes to

undertake, including information as to when such consultation is to take place, with whom and what form it will take. This should include any steps in addition to the statutory minimum for consultation.

2.23 Element (v) will assist the planning authority in responding to the proposal of application notice with any additional notification and consultation requirements (see paragraphs 2.48 to 2.52).

2.24 The 'description in general terms' should accurately and adequately convey to the layperson what the development involves; for example, providing information on the scale, dimensions, appearance of the development, etc. Describing a proposal for superstore with car park and petrol station as a "retail development" or erecting wind turbines as "renewables development" with "ancillary development" is unlikely to be sufficient in itself.

2.25 While there is scope for proposals to alter between PAC and an application being submitted, any subsequent application needs to be recognisably linked to what was described in the proposal of application notice. A very detailed or narrow descriptive content in the PoAN means that relatively minor changes could trigger the need to repeat PAC. A balance, therefore, has to be struck between including enough information so that members of the public can reasonably identify the proposal and raise issues (in light of the information provided, or potential issues where detail may follow in an application), without the basic proposal at PAC being so detailed it changes out of recognition when the application is made.

2.26 It is for the planning authority to satisfy itself that an application is sufficiently linked to the proposals consulted upon at the pre-application stage. An application including development of land outwith the site indicated in the PoAN may cast doubt over such a link. Prospective applicants should ensure, as far as possible, that the site identified in PAC covers all the likely options for the final proposal.

2.27 The submission of the PoAN in accordance with the legislation is an important point as regards time limits on making applications – see paragraphs 2.29 – 2.31. Information in relation to the proposal of application notice must be placed on the list of applications (see paragraphs 4.45 – 4.46).

Planning authority response to a PoAN

(Section 35B(7) and (8))

2.28 The planning authority has 21 days from when the PoAN is given to respond regarding any additional PAC requirements (see paragraphs 2.48 – 2.52 below). In considering whether to require additional consultation, the planning authority is to have regard to the nature, extent and location of the proposed development and to the likely effects, at and in the vicinity of that location, of it being carried out. The applicant will need to have complied with such additional PAC requirements in addition to the statutory requirements before making an application.

PoAN and time limits on making planning applications

(Section 35B(3))

2.29 The statutory PAC process starts when the prospective applicant gives the PoAN to the planning authority and a number of time limits are measured from that point.

2.30 After a minimum of 12 weeks from the giving of the PoAN, and having carried out the statutory requirements and any additional requirements specified by the planning authority, an applicant can submit the application along with the required written PAC report.

2.31 An application must be made within 18 months from when the PoAN is given to the planning authority. If it is not, then the PAC measures carried out will be redundant and PAC will need to be started again from the beginning.

Newspaper Notices

(Regulation 7)

2.32 The notice for the first statutory public event must include:

a) a description of the proposed development and its location;

b) details as to how (including by what electronic means) further information may be obtained concerning the proposed development;

c) the date and place of the public event;

d) a statement explaining how, and by when, persons wishing to make comments to the prospective applicant relating to the proposal may do so; and

e) a statement clarifying that comments made to the prospective applicant are not representations to the planning authority and that there will be an opportunity to make representations on any resultant application to the planning authority.

2.33 The newspaper notice for the final public event must include all but item (d) as regards making comments – this event being primarily about feedback to the public as regards the views gathered during PAC.

2.34 Notice of these public events must be published at least 7 days in advance in a newspaper circulating in the locality of the proposed development.

2.35 Where additional events are held, notices should be published in a similar manner.

2.36 Such notices can also include, for example, reference to where further information on the prospective applicant's PAC can be found, such as a web site where applicable.

Public events

(Regulation 7)

2.37 The prospective applicant is required to hold at least two events for members of the public where they can make comments to the prospective applicant on the proposals. Whether two or more PAC public events are held, at the final event the prospective applicant is required to provide feedback to the public on the views obtained through the PAC process. There must be at least 14 days between the first and final event.

2.38 Prospective applicants will gain less, see paragraph 2.8, from poorly attended or unrepresentative PAC events. For this reason, they should ensure that processes are put in place that will allow members of the community to participate meaningfully in any public event. It is not the intention that planning authorities will routinely have a direct role in PAC activities beyond their statutory roles in screening, responding to proposal of application notices and considering PAC reports when validating applications.

2.39 The public events should, as far as possible, be accessible to all members of the public. Consideration should be given to any additional needs of specific members of the public, such as people with disabilities. Such considerations include:

• accessibility of the location and the building itself;
• access to appropriate facilities, such as toilets;
• the nature of supporting materials, presentations and engagement at the event.

2.40 It may be appropriate for the public event to take place over a number of dates, times and places. Prospective applicants must ensure that individuals and community groups can submit written comments in response to the newspaper advertisement. There should be scope for people to take information away from public events and to respond in writing later, having considered what they have seen and heard.

2.41 Presentations at events should follow the guidance at paragraph 2.17 about information. Staffing of events should include people who are knowledgeable about the proposals and about the planning issues likely to be of concern or interest to the public. PAC should not be treated by prospective applicants as merely a marketing exercise to promote the development.

2.42 There is a need to emphasise to communities that the plans presented to them may alter in some way before the final proposal is submitted as a planning application. Ideally, those consulted or who expressed views could be given a chance to comment on any significant changes to proposals being considered as a result of PAC, before the application is finalised.

2.43 The prospective applicant is required to provide feedback at the final PAC public event, and the nature of this feedback will depend on the circumstances of the case. In some cases, for example, prospective applicants may be able to indicate the changes to be made in light of earlier public comment, or the reasons why changes are not proposed. In other cases they may only be able to say what issues arising from those earlier comments they will be considering further.

2.44 Prospective applicants may, for example, want to take issues forward in future pre-application discussion with other parties, or may consider issues raised at, or submitted after, the final public event. The eventual application and PAC report will indicate the extent to which they have, or have sought to, address pre-application comments, hence the importance of the public continuing to engage at the application stage.

Consultation with community councils

(Regulation 7)

2.45 The prospective applicant must consult every community council any part of whose area is within or adjoins the land on which the proposed development is situated. This may include community councils in a neighbouring planning authority. The prospective applicant must also serve on these community councils the PoAN.

2.46 Each local authority has at least one Community Council Liaison Officer who should be able to provide contact details for Chairs and Secretaries of community councils. Neighbouring authorities should be able to assist when adjoining community councils are beyond the boundary of the planning authority in whose area the proposal is located.

2.47 When planning their PAC, it is suggested that prospective applicants contact relevant community councils as regards when and how best to seek their views.

Additional consultation activity

(Section 35B and regulation 6)

2.48 The prospective applicant should indicate in the PoAN what consultation, if any, they will undertake in addition to the statutory minimum. The planning authority must respond within 21 days of receipt of the notice as regards any additional notification and consultation it wishes to see undertaken (including that indicated by the prospective applicant) beyond the statutory minimum, in order to make it binding on the prospective applicant. If there is no response to the proposal of application notice by the planning authority within 21 days, it would be for the applicant to consider any subsequent request for additional consultation.

2.49 In requiring any additional pre-application consultation, planning authorities must have regard to the nature, extent and location of the proposed development and to its likely effects, both at that location and in its vicinity. Additional consultation requirements should be proportionate, specific and reasonable in the circumstances.

2.50 In responding to a proposal of application notice, and given their powers to require additional consultation, planning authorities should be as clear as they can as to their expectations of matters to be included in the PAC report. In this way, the prospective applicant will be more readily able to show that the required steps have been undertaken.

2.51 Planning authorities, in considering any additional consultation requirements, may want to seek the views of others, for example, the relevant community councils.

2.52 Planning authorities in responding to a proposal of application notice may wish to draw attention to the Scottish Government's Guidance on the Promotion and Use of Mediation in the Scottish Planning System (Circular 2/2021)^[11]. This guidance must not be specified as a requirement for PAC, mediation being a voluntary activity.

PAC reports

(Sections 35C and 39 and regulations 3, 7B and 9 to 11)

Content

2.53 The applicant must prepare a report of what has been done during the pre-application phase to comply with the statutory requirements for PAC and any requirements set out in the planning authority's response to the PoAN.

2.54 The statutory requirements for the form and content of the report are set out in Annex C.

2.55 The report must accompany the subsequent application for planning permission or planning permission in principle under regulations 9 to 11 (other than an application to which an exemption applies) for major or national development. The authority is required to include it on Part I of the planning register along with the application details, plans and drawings.

Role of PAC Reports

2.56 The main purpose of the PAC report is to help the planning authority to confirm that PAC has taken place in line with statutory minimum requirements and any further requirements set by the authority in its response to the proposal of application notice.

2.57 Another purpose for the PAC report is a transparency measure: to help those who engaged in PAC, and anyone else, see how that process shaped the eventual proposal. The explanation of how the prospective applicant took into account the views raised should seek to explain what changes were taken on board, and address any views which could not be accommodated.

2.58 The authority is required to include the PAC report on Part I of the public planning register along with the application details, plans and drawings.

2.59 The report is not likely to have a significant role in the determination of any subsequent application, unless it identifies issues or contains information which could be considered a material consideration in terms of the 1997 Act and to which the planning authority should give weight. Further information on what may be a material consideration is set out in Annex A to this circular.

2.60 Representations made to the prospective applicant at the PAC stage are not representations to the planning authority nor are they necessarily made on the proposals for development contained in the eventual application (see paragraph 2.11). A proposal may have altered between PAC and the application – that is the intention after all – and it is not for the planning authority to second guess the extent to which members of the public's views on, or concerns about, the proposal as presented at PAC may have changed, or not, with regard to the proposal as set out in the eventual application.

2.61 Where parties are concerned that their views on the proposal have not been taken on board as a result of the PAC, it is important that they make representations on the proposal in the planning application to the planning authority at the planning application stage. The planning authority can then give due consideration to these views before a decision is reached on whether to grant the proposal planning permission.

Failure to Comply with PAC Requirements and Declining to Determine an Application

(Section 39)

2.62 Planning authorities must decline to determine an application where PAC requirements apply and, in their opinion, have not been complied with. Before coming to such a view the planning authority may seek additional information from the applicant. Where a planning authority declines to determine an application on these grounds, they are to advise the applicant of their reasons. The requirement to decline to determine would not apply where a screening statement has been issued by the planning authority saying PAC is not required or exemption from PAC applies and an application is made in accordance with the time limit(s) in those regards. (See Annex B, paragraphs 24 and 25).

Notices to owners and agricultural tenants

(Section 35, regulation 15 and schedule 1)

2.63 Prior to applying for planning permission or planning permission in principle under regulations 9, 10 or 11, applicants should notify all persons who (other than themselves) were the owners of any of the land to which the application relates, or were agricultural tenants at the beginning of the prescribed period (i.e. 21 days ending with the date on which the application was submitted).

2.64 Notices to owners and agricultural tenants should be in the form set out in schedule 1 and must include the name of the applicant, a description of the proposed development, its address or location and the name and address of the planning authority to whom the application has been submitted.

2.65 The applicant must submit a certificate with the planning application certifying whether there are any other owners or agricultural tenants of any of the land to which the application relates and, if so, which of these have been notified of the proposed development. The certificate must state:

a) whether or not the land or part of the land to which the application relates constitutes or forms part of agricultural land;

and, depending on the circumstances:

b) that at the beginning of the prescribed period no person (other than the applicant) was the owner of any of the land to which the application relates or an agricultural tenant; or

c) that the applicant has given notice to every person (other than the applicant) who at the beginning of the prescribed period was the owner of any land to which the application relates or an agricultural tenant; or

d) that the applicant is unable to give notice to every such person (i.e. where there are other owners and/ or agricultural tenants, he is unable to notify any or all of these people).

2.66 A certificate issued under c) or d) above must set out the name of every person to whom notice was given and the address to and date on which the notice was given. Where d) applies the applicant must certify that he has taken reasonable steps (setting out what they were) to try and ascertain the names and addresses of those to whom he has been unable to give notice. In this situation, the planning authority must publish notification in a local newspaper once an application has been received (regulation 20).

Applications for the working and winning of underground minerals

(Regulation 15)

2.67 The notification of site owners and agricultural tenants regarding applications for the working and winning of underground minerals may be both onerous and complex. In addition to those owners and agricultural tenants with rights in relation to the relevant surface land, there may be other people with ownership rights to minerals, other than those vested in the Crown (oil, gas, coal, gold and silver), who may be difficult to identify and notify.

2.68 For the purposes of these applications, regulation 15(4) amends the requirement to notify owners to relate to those who "to the applicant's knowledge" are owners.