Planning performance and fees: consultation analysis

5. Other Fees

5.1 Introduction

5.1.1 The consultation sought views on how certain fees should be charged in the future e.g. cross-boundary applications. This section sets out the results of the questions which examine some of the issues related to how these fees might be charged.

5.2 Approval of Matters Specified in Conditions (AMSC) Applications

5.2.1 AMSC applications are currently charged at the full rate until the total paid by the applicant is equal to the fee that would have been paid if approval of all matters involved had been sought all at once for the whole development. It was envisaged that one applicant was responsible for a site, but it appears that when a site is being taken forward by multiple developers/applicants there is the potential that the first developers/applicants could end up paying significantly more for their AMSCs than those who take forward their part of the site at a later date.

5.2.2 It is not intended to change the principle that PPP and AMSC applications ultimately lead to 150% of the planning fee being paid, but views are sought on how the maximum fee is reached thus triggering the standard fee for AMSC applications

Q28. How Should Applications for Planning Permission in Principle and Approval of Matters Specified in Conditions be Charged in Future?

5.2.3 The consultation asked how applications for PPP and AMSC should be charged in the future. Several respondents in policy and planning highlighted that the current fee for AMSC applications does not cover the cost of processing these applications and is not really suitable for large, complex sites. The current fee structure of AMSC applications is overly complicated, particularly for major sites where the assessment of PPP and AMSC applications are very resource intensive and can result in work lasting for many decades without fee income.

5.2.4 However, six respondents across the development industry, policy and planning and business groups stated that there should be no change to these applications.

5.2.5 Many comments were made suggesting changes which are summarised as follows:

• Several points were made in relation to the 150% cap on fees from policy and planning respondents:
  • If the principle of the cap is to remain, it was suggested that PPP should be charged at 100% and AMSC should be charged at 50%.
  • A few policy and planning respondents suggested the cap should be removed, particularly for strategic sites which may generate AMSC applications over 20 years. Multiple AMSC applications can be time consuming and difficult to administer. It was suggested that each application could be charged without a maximum fee.
  • The cap may not be a significant fee relative to the scale of development, so it may be appropriate to limit the time period for the maximum fee to apply.
  • The cap should only apply to the original applicant with any other applicant submitting an AMSC required to pay the fee applicable for a full application.
  • The full fee (or a high proportion) should be charged for a PPP application with no charge (or a nominal fee) for AMSC applications (civil society).
• The AMSC could be calculated as a proportion of the number of units/site area of the PPP/proportion of PPP site, (development industry, policy and planning).
• If additional documentation is required with an AMSC (e.g. site investigation reports) there should be a separate category with a set fee per application (policy and planning).
• Subsequent developers should have the same outlay as the first (civil society).

Q28a. How Should the Fee for AMSC Applications be Calculated?

5.2.6 The consultation asked how the fee for AMSC applications should be charged. There were 22 comments on how the fee for AMSC calculations should be calculated, the majority of which were from the policy and planning group:

• A few respondents suggested that fee levels could be calculated on the basis of the development category to which the application relates.
• It should be 50% of the PPP fee.
• A flat base rate and levels set above that rate when the application relates to siting and design of houses; all other applications could be a flat rate based on site area.
• Each application could be charged its own fee.
• Given the development plan led system, the allocation of a site is effectively an in principle decision. It was suggested that fees for AMSC applications should be the same as for their full planning permission fee. To simplify the calculation of the fee, it would be possible to just apply the higher of the fees, rather than the cumulative total, as the total fee to be paid e.g. in a residential development, the fee for houses, at their full rate, would probably be the highest fee and would not require fees for the road infrastructure, landscaping etc when submitted as a single AMSC package.
• AMSC applications that do not seek approval for the siting/design of new buildings should have a separate category with a flat rate to cover administration.
• The PPP fees could be kept and AMSC applications charged at 50% of the full permission fee until the development is built out.
• The 150% cap should only apply to the original applicant. Any other applicant submitting an AMSC should pay the fee applicable to a full application.
• Site area and a sliding scale could be used based on the use being proposed.

5.2.7 Suggestions from other groups on how the fee for AMSC applications should be charged included:

• The full fee for PPP should be charged and no fee/ low fee per AMSC application (civil society).
• The fees should be based on the proportion of site built by particular developer (civil society).
• The fee should be based on the potential full permission fee and split on a proportionate basis with PPP having the lower proportion than AMSC e.g. 1/3 PPP, 2/3 AMSC (business).

Q28b. Should the maximum fee apply to the individual developers or be applied to the whole development?

5.2.8 The consultation asked if the maximum fee should be applied to individual developers/applicants or applied to the whole development with the applicants (if the number is known) paying an equal share of the maximum fee. There were 24 comments on this question. Reasons cited for not applying the fee to individual developers/applicants were that it was unlikely that the number of developers would be known at the start of the process and because you can't control when AMSC applications come forward. The alternative view that it should be applied to the whole development was suggested because planning permission runs with land and not the applicant.

Q28c. Should the granting of a Section 42 application lead to the fee calculator being reset?

5.2.9 The consultation asked if the granting of a Section 42 application should lead to the fee calculator being reset. The table below shows that 33 respondents answered this question with the majority (61%) in favour of the proposal. All respondents who were in favour of the calculator being reset following a Section 42 application were from the civil society and policy and planning groups. Although some civil society and policy and planning respondents opposed the proposal, all business and development industry respondents answering the question opposed the proposal.

Should the granting of a Section 42 application lead to the fee calculator being reset?

	Yes	No	Not Answered
Business		2	27
Civil Society	6	3	19
Development Industry		6	6
Policy and Planning	14	2	24
Total	20	13	76
% of Respondents Answering Question	61	39

5.2.10 There were 16 comments on the re-setting of the fee calculator. Re-setting the fee calculator was felt to be appropriate from a policy and planning perspective because a new consent for the site is being issued, it can introduce further complications and must include all conditions which involves similar workload to the full application. It was suggested that Section 42 is often used by developers to avoid paying a large application fee. This is a category which should be considered for a fee proposal.

5.2.11 One policy and planning respondent felt it should not be re-set because it is a difficult process to manage. Reasons, from the business and development industry groups, why it should not be re-set include the principle that a developer should not pay more than they would if a detailed application has been made, Section 42 applications for the variation of conditions can often be associated with minor matters pertaining to the wider planning application and the Section 42 application is only concerned with a particular part of the approval being varied, not the whole approval.

5.3 Cross Boundary Applications - Allocation of the Fee

5.3.1 Cross boundary fees are currently calculated separately for each application, in the normal way, and then added together. The applicant pays this amount or, if less, an amount equal to 150% of the fee that would have been paid had one application been made. The planning fee goes to the authority where the majority of the development occurs with the other authority receiving nothing.

5.3.2 As there can be significant work involved for both parties, the consultation sought feedback on whether there should be a more equal distribution of the fee.

Q29. Should the fee for cross boundary applications be split between the respective authorities?

5.3.3 The table below shows respondents views on how cross boundary application fees should be treated. A majority (55%) of respondents favoured splitting the fee as per how the development is split across boundaries. These respondents were from all respondent groups and cited that this would provide a more equitable distribution of the fee given that both authorities had to undertake assessment.

Should the fee for cross boundary applications by split between the respective authorities?

	No Change	100% to main authority, 50% to other	Fee split across auth. with development	Other	Not Answered
Business	3		5	3	18
Civil Society		1	8		19
Development Ind.	1	1	3	2	5
Policy and Planning	5	4	11	2	18
Total	9	6	27	7	60
% of Respondents Answering Question	18	12	55	14

5.3.4 There were only a few comments by policy and planning respondents advocating "no change" to the system. They stated the system was working and were not aware of any concerns relating to the existing arrangements.

5.3.5 Respondents favouring 100% of the fee to the authority where the majority of development occurs with the remaining 50% to the other authority felt that ascertaining how much of a development is distributed across authorities may be labour intensive. Hence, the 100%/50% would be easier to apply and fairer than the current system.

5.4 Conservation Areas

5.4.1 Concerns have been raised about the requirement to apply for planning permission for carrying out alterations to a property which would otherwise have been carried out under permitted development rights. The consultation proposes that where applications are submitted under categories 2, 3, 4 and 5 for development in conservation areas which are required because of the restriction on permitted development, then only half the fee would be payable.

Q30. Do you agree with the proposal that where applications are required because permitted development rights for dwellings in conservation areas are restricted, then a reduced fee should be payable?

5.4.2 The table below sets out whether respondents agree or disagree with the proposal that where applications are required because permitted development rights for dwellings in conservation areas are restricted, then a reduced fee should be payable. The majority of respondents did not answer the question but, of those who did, the majority (60%) of respondents disagreed that there should be a 50% reduction for planning applications in conservation areas that would previously have been permitted development. Business respondents supported the proposal, civil society and development industry respondents were evenly split on the proposal and the majority of policy and planning respondents disagreed with the proposal.

Do you agree or disagree with the proposal that where applications are required because permitted development rights for dwellings in conservation areas are restricted, then a reduced fee should be payable?

	Agree	Disagree	Not Answered
Business	3		26
Civil Society	7	7	14
Development Industry	2	2	8
Policy and Planning	6	18	16
Total	18	27	64
% of Respondents Answering Question	40	60

5.4.3 Many policy and planning respondents identified the need to recover costs as the main reason for opposing the increase. It was stated that the work and cost involved in processing an application in a conservation area is more than a householder application, given the requirement to advertise the application, put up a site notice and assess the matter against heritage issues and context. In addition, applications in conservation areas are often more likely to attract representations and require further consideration in terms of the conservation area issues.

5.4.4 Other reasons for disagreeing with the proposed reduction in fees include:

• There should be no fee as applicants are maintaining their properties for the enjoyment of everyone i.e. it is in the public interest (several responses across civil society, development industry and policy and planning).
• Conservation should always take priority (civil society).

5.4.5 Comments made to support the proposed reduction in fees include:

• Charging full fee may dissuade applications and lead to properties not being updated or maintained (civil society, policy and planning).
• It might lead to better compliance (policy and planning).
• It seems reasonable given that it would have been permitted development (policy and planning).
• Conservation areas provide public benefits, therefore it is correct that residents are not penalised (civil society).

5.4.6 The responses highlight the balance to be achieved in ensuring that the planning system is resourced with the skills and expertise needed to protect and enhance Scotland's built heritage and the need to ensure that that goal is not undermined by disincentivising building owners from investing in the maintenance and upkeep of their properties.

5.5 Q31. Listed Building Consent

5.5.1 There is currently no fee payable for listed building consent. The consultation sought to understand any potential long-term implications and unintended consequences of introducing fees for Listed Building Consent (LBC). The Scottish Government wants to ensure the long term viability of historic buildings is not compromised by the introduction of additional costs for homeowners and applicants but also recognises the considerable resource required to deal with LBC applications.

5.5.2 For larger developments (often requiring planning permission) the introduction of fees for LBC is likely to make little difference, but many applications are for relatively minor works in planning terms. Hence, the introduction of fees for LBC may require clearer national-level guidance on the need for consent to be produced.

Q31. Is the introduction of a fee for LBC appropriate?

5.5.3 The table below shows respondents views on whether a fee for listed building consent should be introduced. The majority of respondents did not answer the question but, of those who did there was a majority (72%) in favour of the introduction of a fee. There was support from all groups, although civil society respondents were more evenly split on the introduction of a LBC fee than the other groups.

Is the introduction of a fee for applying for Listed Building Consent appropriate?

	Yes	No	Not Answered
Business	2		27
Civil Society	8	8	12
Development Industry	3	1	8
Policy and Planning	21	4	15
Total	34	13	62
% of Respondents Answering Question	72	28

5.5.4 There were 49 comments on how the LBC fee should be set. In terms of respondents supporting the introduction of a fee, the following comments were made:

Policy and Planning

• Several suggested a flat fee ranging from £100 to £500.
• While the introduction of a LBC fee was considered to be a good idea, a few respondents felt that there should be exemptions or very reduced fees for restoring/reinstating buildings or for buildings on the "at risk" register.
• A few respondents suggested a scale to cover the range of works from minor to demolition.
• A few suggested it should be a proportion of the planning fee with different rates depending on whether planning permission is required.

Civil Society

• As per a standard application or proportion of a planning application (25%).
• The same as if it was not listed.
• It would depend on the size and category of building and cost of work.

Business/Development Industry

• A fee of £300 if required along with planning permission.
• As a percentage of the planning application fee.

5.5.5 Several policy and planning respondents were against introducing a fee as they felt it may dissuade people applying for LBC or doing the necessary works to the detriment of the buildings. A few civil society respondents were also concerned about:

• Adding additional burdens to those already faced because they have a listed building.
• Preventing people seeking listed status or applying for de-listing.
• Listed buildings are enjoyed by the community as a public amenity and should not attract a fee.

5.5.6 It was suggested that further analysis on listed buildings is required which covers:

• The costs associated with resourcing LBC applications including the nature of works that are typically the subject of LBC applications.
• How a fee would affect the attractiveness and viability of owning and using listed buildings. In addition to the perceived regulatory burden, there are costs associated with owning/using listed buildings including increased insurance costs, requirements to invest in the use of traditional materials and a requirement to seek professional advice before the submission of an LBC application.
• The circumstances where LBC is required, is at the discretion of the local authority as to whether any works proposed would affect the character of a listed building and would consequently require LBC. It was also suggested that there is a need for national guidance on when an application is required.
• The relationship of fees for LBC and permitted development rights, particularly given the proposals to introduce mandatory standards for energy efficiency for homeowners from 2024 which is likely to result in a significant increase in LBC applications. A fee scale may be more appropriate than a flat fee.

5.6 Q32. Hazardous Substances Consent

5.6.1 The fee levels for hazardous substances have not changed for 25 years and are £200, £250 and £400. Where the quantity is twice the controlled quantity, the fee is £1,000. The consultation does not propose a change in the fee structure, but it seeks views on whether there should be an increase in fee levels.

Q32. Should the fees for hazardous substances consent be increased?

5.6.2 The table below shows the respondents views on whether the fees for hazardous substances should be increased. The majority of respondents did not answer the question but, of those who did, there was a substantial majority (91%) in favour of the proposal.

Should the fees for hazardous substances consent be increased?

	Yes	No	Not Answered
Business			29
Civil Society	9	1	18
Development Industry	2		10
Policy and Planning	19	2	19
Total	30	3	76
% of Respondents Answering Question	91	9

5.6.3 There were 28 suggestions on the appropriate level of fees for hazardous substances consent:

• Fee should recover costs (several civil society and a few policy and planning respondents).
• A doubling of fee levels (several policy and planning and a civil society respondent).
• An inflation increase (several policy and planning respondents). It was suggested that a doubling of fees would be roughly an inflation increase over 25 years.
• Percentage increase of between 15% and 25% (a few civil society respondents).
• £500 minimum fee (a civil society and a policy and planning respondent).
• A few policy and planning respondents suggested a base of £1,000 with the potential scale being £1,000, £1,500, £2,000 and £5,000. Increases in units of £500 to a maximum of £2,000 was also suggested.

5.6.4 It was suggested that clarification was required on who was the most appropriate party to determine these consents - local authorities or the Health and Safety Executive.

5.7 Other Types of Application

Certificate of Lawful Use or Development (CLUD)

5.7.1 There are currently four categories of fees for a CLUD application:

1. Section 150(1)(a) - use as one or more separate dwelling houses: £401 for each dwelling house subject to a maximum of £20,055.

2. Section 150(1)(a) or (b) - uses other than use as one or more separate dwelling houses and any operations: the same fee as would apply to a planning application for the same development.

3. Section 150(1)(c) - existing use: £202.

4. Section 151(1) - proposed use: half the fee applying to a planning application for the same development.

5.7.2 The following fees are proposed for categories one and three:

• 1. £600 for each dwelling house subject to a maximum of £150,000.
• 3. £300.

Q33a. is the proposed increase for CLUDS appropriate?

5.7.3 The table below sets out respondents' views on whether the proposed fees for CLUDS are appropriate. The majority of respondents did not answer the question but, of those who did, a substantial majority (88%) agreed that the proposed fees were appropriate. While the majority of civil society and policy and planning respondents answering the question were supportive of the proposals, business respondents did not agree with the proposed fees and development industry respondents were evenly split.

Are the proposed fees for CLUDS appropriate?

	Yes	No	Not Answered
Business		2	27
Civil Society	7		21
Development Industry	1	1	10
Policy and Planning	22	1	17
Total	30	4	75
% of Respondents Answering Question	88	12

5.7.4 There were 8 comments made in relation to proposed fees for CLUDS:

• The proposed fee level for an application for a certificate of lawfulness of existing use or development is considered appropriate in circumstances where the development was lawful when undertaken. However, it is suggested that a separate and higher fee, in accordance with those applicable for retrospective applications should apply in circumstances where the use or development has become lawful by virtue of time limits set by Section 124 (policy and planning).
• One policy and planning respondent questioned whether fees should be increased to 150% of the normal fee to reflect the retrospective nature of such applications, but conversely maybe fees should be reduced to act as an incentive to do things properly.
• The CLUD fee per dwelling house does not take account of the reduction in cost associated with the unit number thresholds in the planning permission application fee structure (policy and planning).
• A business respondent stated that a Certificate of Lawful Use is distinct from obtaining planning permission in that it allows the applicant to obtain a decision from the planning authority as to whether a proposed use or works require planning permission. This implies that the information and work required to process such an application are not as rigorous as a full application for planning permission. That being the case fee levels which are equivalent to full planning permission are not appropriate for CLUD applications

Advertisement

5.7.5 The current fee for advertisement is £202. The consultation proposes an increase to £300.

Q33b. Is the proposed fee for advertisement appropriate?

5.7.6 The table below shows whether respondents think the proposed fees for advertisement are appropriate. The majority of respondents did not answer the question but of those who did, there was substantial (88%) support for the proposed fees from business, civil society and policy and planning. There was no support from the development industry group for the proposal.

Are the proposed fees for advertisement appropriate?

	Yes	No	Not Answered
Business	2		27
Civil Society	5	2	21
Development Industry		1	11
Policy and Planning	22	1	17
Total	29	4	76
% of Respondents Answering Question	88	12

5.7.7 There were 9 comments received on the proposed advertisements fee with the majority of these comments supporting the proposal. Other comments from policy and planning include:

• There should be a greater fee for advertisements on shopfronts or for illuminated signage to reflect the greater level of work and detail required to ensure development is appropriate to its context and to reflect consultation with the roads authority and other bodies.
• There should be a lower fee if the proposals comprise a single advertisement or higher rates where there are 2 or more advertisements.

5.7.8 There were a few comments received which appear to have misinterpreted the question. The question relates to applications for advertisements not advertising applications. The comments from civil society and policy and planning include:

• Adverts should be online or by email or social media with no costs.
• The paper costs of advertising can be prohibitive for larger rural authorities and authorities with many listed buildings. New methods of advertising should be considered, including the use of digital planning approaches.

Prior Approval

5.7.9 There are currently two fees for prior approval covering "telecoms" and "all others" as follows:

• Telecoms: £300.
• All others: £78.

5.7.10 It is proposed that these fees are increased as follows:

• Telecoms: £500.
• All others: £100.

Q33c. Is the proposed fee for prior approval appropriate?

5.7.11 The table below shows whether respondents think the proposed fees for prior approval are appropriate. The majority of respondents did not answer the question but, of those who did, there was substantial support (83%) for the proposed fees from business, civil society and policy and planning. There was no support from the development industry group for the proposal.

Are the proposed fees for prior approval appropriate?

	Yes	No	Not Answered
Business	3		26
Civil Society	5	2	21
Development Industry		1	11
Policy and Planning	21	3	16
Total	29	6	74
% of Respondents Answering Question	83	17

5.7.12 There were 11 comments on the proposed fee for prior approval. Several respondents supported the proposed increase with other comments including:

• A few policy and planning respondents suggested prior approval should be phased out as a development either needs planning permission or not. The question was also raised if agricultural buildings will still be exempt from a prior approval fee. Please also see the comments on DPA under Category 8 (agricultural buildings) in Section 5.
• Prior Approval should be increased to £200 (civil society).
• A few policy and planning respondents raised a number of points around forestry tracks:
  • Will forestry tracks (private ways) still be exempt from a prior approval fee?
  • Payment of fees should be applicable to all prior notification submissions to cover administration costs to local authorities. The requirement for fees for forestry tracks (and electricity works) should be addressed by amendment of the GPDO.
  • 'Hill track' prior notification/approvals can have potentially significant impacts in sensitive areas that require careful consideration of their siting, design and construction. Where prior approval is required, a higher fee should be charged reflecting the resources required and the stated intention of moving towards full-cost recovery.

Alternative Schemes

5.7.13 The current fee for alternative schemes is the highest applicable fee for options and a sum equal to half of the cumulative remaining options. No change is proposed by the consultation.

Q33d. Should the fee for alternative schemes remain as it is?

5.7.14 The table below shows whether respondents think the fees for alternative schemes should remain the same. The majority of respondents did not answer the question but of those who did, there was substantial support (84%) for the proposed fees from business, civil society and policy and planning. Development industry respondents were evenly split on the proposal.

Should the fees for alternative schemes remain the same?

	Yes	No	Not Answered
Business	2		27
Civil Society	5	2	21
Development Industry	1	1	10
Policy and Planning	18	2	20
Total	26	5	78
% of Respondents Answering Question	84	16

5.7.15 There were 7 comments regarding fees for alternative schemes. A few respondents considered the fees proportionate. Other comments included:

• Fees should increase to £400 (civil society).
• This option is very rarely employed (policy and planning).
• There is little justification for a reduced fee for alternative schemes on the same site. A proposal for a wind farm on an area of land will give rise to different issues than a proposal for a housing development on the same area of land. The submission of alternative schemes for different development on the same site does not reduce costs incurred by the planning authority. An alternative scheme still requires a full and detailed assessment (a few policy and planning).

Section 42 Applications

5.7.16 The consultation proposes an increase in the fee for Section 42 applications from £202 to £300. There was no closed question for Section 42 applications and only 3 comments were received. One business respondent felt the fee proposal was acceptable with the other policy and planning comments shown below:

• Section 42 applications are increasingly being used as a means of renewing planning permissions that are due to expire. This is likely to further increase given the Planning Act will reintroduce the requirement for timescales to be attached by planning condition. The approval of a Section 42 application results in the grant of a new and separate permission. Circular 3/2013 is clear that in determining a Section 42 application, consideration can be given to the overall effect of granting a new permission. The procedure places less burden on an applicant but similar duties and responsibilities on the planning authority as would be found with an application for planning permission. A planning authority is expected to undertake publicity and consultation on the application, including neighbour notification and advertisement and it can be required to revisit the overall effect of granting a new planning permission. The costs incurred by a planning authority in determining a Section 42 application can be similar to those that would be incurred in determining a planning application for the development, and the benefit to the applicant is the same. The current fee regulations are clear that an application for 'renewal' should pay the full fee calculated in accordance with the prevailing charges at the time the application is submitted and the same approach should be adopted for Section 42 applications that achieve the same purpose. The flat rate fee is not appropriate.
• The provisions for Section 42 applications should be tightened up and it should be made clear that they are not to be used to amend the approved development.

5.7.17 At Q34 the consultation asked if there were any fees which had not been considered. Many respondents (mainly policy and planning) highlighted that the fee for a Section 42 application was not appropriate as it did not reflect the amount of work processing an application, particularly major developments.

5.8 Q34. Any Other Fees

5.8.1 The consultation asked if there were any other fees which had not been considered. There were 22 comments across a range of suggestions. Those suggestions made by more than one respondent are highlighted below:

• There is currently no fee for the modification or discharge of obligations which can be complex and time consuming. Fees should also be able to be introduced for the monitoring of planning obligations which is a potentially time consuming but important task (a few policy and planning).
• A civil society respondent felt there should be fees for applications arising as a consequence of new legislation but a business felt that there should not be a charge for planning applications required by changes in legislation e.g. those required to address climate change and energy efficiency improvements or to comply with the Equality Act 2010. A policy and planning respondent also noted that the proposed increase in fees is not to fund the 49 new and unfunded duties introduced through the new Planning Act.
• A few respondents (civil society and policy and planning) felt there was a need for fees for repeat applications where developers submit similar proposals time and time again despite refusal. This can put undue burden on resources and it was suggested that there should be significant additional fees, for each additional application, with the fee increasing each time.