Planning performance and fees: consultation analysis

7. Other Issues

7.1 Introduction

7.1.1 The consultation sought views on a range of other issues including retrospective applications, incentives, EIA, hybrid applications and Scottish Government services which are set out in this section.

7.2 Q47. Retrospective Applications

7.2.1 Retrospective applications can often be more intensive and more controversial than other applications. There can be local frustration/tension where people are perceived to be abusing the system. This can particularly be the case where a development is granted retrospective permission. However, not all retrospective applications are the result of what might be deemed "bad practice". The Scottish Government believes that authorities should be able to exercise some discretion in whether the surcharge is applied or not

Q47. Should the surcharge be set at 100%?

7.2.2 The consultation sought views on the level of the surcharge and whether authorities should set out the reasons why the surcharge has been applied or not in each case. The table below sets out respondents' views on whether the surcharge should be set at 100%. The majority (55%) of respondents support the surcharge being set at 100% with support primarily from the civil society and policy and planning groups. Respondents from business and development industry were opposed to the proposal.

Should the surcharge be set at 100%?

	Yes	No	Not Answered
Business	3	7	19
Civil Society	9	6	13
Development Industry	1	3	8
Policy and Planning	19	10	11
Total	32	26	51
% of Respondents Answering Question	55	45

7.2.3 There were 34 comments on whether or not the surcharge should be set at 100%. The main themes are described below in descending order of comments received.

Supportive of Surcharge at 100%

• Civil Society: A few respondents felt it was essential to ensure all parties comply with the Planning Act.
• Policy and Planning: Several respondents felt that setting the fee at 100% would act as a deterrent and encourage applicants to apply properly. It was also felt that the fee would be more reflective of the work required to process these applications. One policy and planning respondent also felt the fee should be monitored to assess whether the number of retrospective applications decreased. If there was no reduction in applications, the fee should be increased.

Opposed to Surcharge at 100%

• Business, Development Industry and Policy and Planning: several respondents felt that a 100% surcharge would be punitive and introducing this fee could further discourage submission.
• Business and Policy and Planning: a respondent from each group felt that there should be no surcharge.

Other Observations

• Policy and Planning: a few policy and planning respondents suggested alignment with building standards where the principle of charging a higher fee for works that have already started is well established. A similar surcharge is considered appropriate to incentivise applicants to establish whether permission is required before undertaking works and to apply for permission before starting works.
• Policy and Planning: several policy and planning respondents highlighted that the problem with a surcharge for retrospective applications is that it could prevent the resolution of enforcement cases where the increased fee becomes a deterrent to potential applicants. Hence, a lower surcharge (20%) was suggested by one respondent.

Q47a. If not 100%, what level should the surcharge be set?

7.2.4 There were 12 comments on the level at which the surcharge should be set from respondents who felt 100% was inappropriate. All bar one suggestion was from policy and planning. The levels suggested were

• 10% or 20% - 2 responses.
• 50% - 5 responses.
• 150% - 3 responses.
• Normal fees plus a penalty.
• A sliding scale of surcharges, dependent on the type and size of development e.g. none or minimal surcharge for householder development to a larger surcharge for industrial development.

Q47b. Should authorities need to set out the reasons why the surcharge has been applied or not in each individual case?

7.2.5 Authorities will need to apply discretion when applying this surcharge. The consultation asked if authorities should need to clearly set out the reason why the surcharge has been applied or not in each individual case. The table below sets out respondents' views with the majority (68%) in support of the reasoning for a surcharge being applied or not in each case. All groups supported the proposal, but policy and planning was more evenly split than other groups.

Authorities will need to apply discretion when applying this surcharge. Should authorities need to clearly set out the reasons why the surcharge has been applied or not in each individual case?

	Yes	No	Not Answered
Business	10		19
Civil Society	11	5	12
Development Industry	3	1	8
Policy and Planning	14	12	14
Total	38	18	53
% of Respondents Answering Question	68	32

7.2.6 There were 39 comments on whether the reasons for the surcharge should be set out in each case across the themes described below, in descending order of comments received.

Support Discretion - Transparency

• Civil Society: a few respondents stated that transparency is essential, and all charges should be clear.
• Business: a respondent supported the use of discretion, but the reasons should be clearly set out.
• Policy and Planning: several policy and planning respondents felt that it could be difficult to apply discretion. The planning authority would have to be fully satisfied that a genuine mistake had been made by the developer in not applying for planning permission and that it would be unreasonable to apply the full surcharge. The reasons for applying discretion would also need to be set out in the interests of transparency.

Support Discretion - Consistency

• Civil Society: a respondent highlighted that discretion in reducing surcharges needs to be applied consistently and setting out the reasons would demonstrate consistency.
• Policy and Planning: several policy and planning respondents felt that would be preferable if the surcharge was a statutory requirement or national guidance was in place to help local authorities justify their stance.

Do Not Support Discretion

• Civil Society: a few respondents felt that everyone understands that planning permission is required and therefore they should be penalised. One respondent suggested there should be no retrospective applications and charges resulting from these practices should be higher than normal fees.
• Business: a respondent (who did not answer the closed question) felt that determining whether the applicant made a 'genuine mistake' was a highly subjective test and given that the authority would be the beneficiary of any decision to impose a surcharge it risks undermining the integrity of the planning system.
• Development Industry: a respondent did not support any surcharge for retrospective applications unless it can be proven that an individual/group has intentionally abused the planning system.
• Policy and Planning: several respondents considered that it would be very difficult to make a judgement on whether a 'genuine mistake' has been made and therefore the use of discretion is not supported. It could also lead to further conflict, disagreement and delay. As a result, the surcharge should be fixed and apply in all cases. In contrast to most other responses which focus on the performance of planning authorities, these responses focus on the behaviour of applicants.

7.3 Incentives

7.3.1 An amendment was lodged during the Planning Bill which sought to define that an applicant would be entitled to a refund if there had been an unreasonable delay in processing their application. The amendment defined an unreasonable delay as an application which has not been determined within 26 weeks or another agreed timescale

7.3.2 Planning Authorities have previously expressed concern about the fairness of introducing refunds particularly where delays could lie outwith their control. It is also recognised that potentially having to repay fees will add additional administrative burdens and costs and could introduce the need for arbitration.

Q48. Do you consider the use of rebates, discounts or other incentives, a useful tool in delivering a more efficient service?

7.3.3 The consultation sought views on whether the use of rebates, discounts or other incentives are a useful tool in delivering a more efficient service. The majority of respondents did not answer the question but the views of those who did are shown in the table below. Of those answering the question, the majority (56%) of respondents opposed the use of rebates, discounts or other incentives as a tool in delivering a more efficient service, primarily in civil society and policy and planning. Business and development industry respondents were, in the main, in favour of the use of rebates, discounts and other incentives in delivering a more efficient planning service.

Do you consider the use of rebates, discounts or other incentives, a useful tool in delivering a more efficient service?

	Yes	No	Not Answered
Business	8	1	20
Civil Society	4	6	18
Development Industry	5		7
Policy and Plannin	4	20	16
Total	21	27	61
% of Respondents Answering Question	44	56

Q48a. If so, what would you consider to be an effective discount, rebate or other incentive?

7.3.4 There were 40 comments on what would be considered an effective discount, rebate or other incentive across the themes are described below, in descending order of comments received.

Disagree with Penalties

• Civil Society: a few respondents consider all the options take time to administer and it is not cost effective.
• Development Industry: one respondent considers that it is not clear that the described penalty would be constructive in improving planning authority resourcing and service levels, and so is considered unhelpful.
• Policy and Planning: many respondents disagree as very often delays in decision-making are due to reasons outwith the control of the planning authority.

Agree with Penalties

• Business: several respondents support the use of incentives and note determination timescales need to improve. The use of rebates, discounts and other incentives should be considered to ensure delivery of an efficient planning service, particularly if the level and scope of planning fees is to increase.
• Civil Society: a few respondents agree, but it is noted that they should not become over elaborate.
• Development Industry: a few respondents consider that the use, or threat, of rebates would be a useful incentive to assist in delivering a more efficient planning service.
• Policy and Planning: several respondents support the principle, with one interested in exploring how incentives could be used to stimulate the submission of fully complete applications, particularly for major applications and for some of the larger local proposals.

Q48b. Given the success of ePlanning, do you think it is appropriate to apply an increased fee for submitting a paper application due to the additional work involved?

7.3.5 Given the success of ePlanning, the continuing increase in its use and the savings which are made to both an applicant and authority in submitting an application electronically, the consultation sought views on whether it is appropriate to apply an increased fee for submitting a paper application due to the additional work involved. The table below shows that the majority (55%) of respondents answering the question are opposed to an increased fee for applications submitted on paper. All groups with the exception of policy and planning tended to oppose the increased fee.

Given the success of ePlanning, the continuing increase in its use and the savings which are made to both an applicant and authority in submitting an application electronically, do you think it is appropriate to apply an increased fee for submitting a paper application due to the additional work involved?

	Yes	No	Not Answered
Business	2	12	15
Civil Society	6	9	13
Development Industry	2	5	5
Policy and Planning	18	8	14
Total	28	34	47
% of Respondents Answering Question[1]	45	55

7.3.6 There were 58 comments on whether it is appropriate to apply an increased fee for submitting a paper application due to the additional work involved. The comments were made across a number of themes which are described below in descending order of comments received.

Not Appropriate

• Business: a few respondents are concerned this will unfairly disadvantage applicants who do not have access to the necessary resources to submit applications electronically. A few noted that whilst ePlanning has been successful, further improvements should be made to the service in order to ensure it is fit for purpose - the current 5mb limit on file size should be increased to improve user experience. A few also highlighted that some sectors are unable to fully utilise ePlanning and should not be penalised for this.
• Civil Society: several respondents are concerned that not every applicant has computer ability or access.
• Development Industry: several respondents note that ePlanning is fine for small projects but does not allow full applications packages to be submitted in their original size due to file restrictions.
• Policy and Planning: several respondents are concerned this could disadvantage those not able to make electronic submissions.

Appropriate

• Business: one respondent notes that, should a fee be charged, it would be essential for an opportunity to be given to users of the system to engage and influence the changes that take place to ensure that the system best reflects the users.
• Civil Society: several respondents support the proposal noting the use of ePlanning provides a more streamlined and efficient means of communication.
• Development Industry: one respondent would support the introduction of an additional fee for applications not made electronically on the ePlanning portal, providing that the applicant is otherwise not in any way prevented from submitting their entire application via ePlanning.
• Policy and Planning: many respondents consider it reasonable to impose an administration fee to cover the additional costs of paper submissions and it is noted this would also act as a financial incentive for applicants to make e-submissions.

7.4 Advertising Fee

7.4.1 It has been suggested that any change in planning fees should be used to ensure that everything required of a planning application is paid upfront. A single fee to absorb all other costs and charges, including recovering the costs related to publishing planning applications in local newspapers would solve any cost recovery issues experienced by authorities.

7.4.2 The solution proposed is for a small percentage increase to be added to the planning fee to ensure the cost of advertising is recovered without the need for recharging applicants and pursuing payment, which leads to delays within the system and processing times of the application.

Q49. Do you consider there should be a single fee?

7.4.3 The consultation asked whether there should be a single fee with the results shown in the table below. The majority (60%) of respondents agreed with the proposal to have a single fee covering all costs and charges. While business, civil society and development industry respondents tended to support the proposal for a single fee, policy and planning respondents tended to oppose the single fee.

Do you consider there should be a single fee?

	Yes	No	Not Answered
Business	7	3	19
Civil Society	11	3	14
Development Industry	4	2	6
Policy and Planning	11	14	15
Total	33	22	54
% of Respondents Answering Question	60	40

Q49a. How do you think the cost of advertising should be recovered?

7.4.4 There were 50 comments on how the cost of advertising should be recovered across the themes described below, in descending order of the number of comments received.

Part of a Single Planning Fee

• Business: several respondents welcome the proposal to include advertising fees as part of the planning application fee, rather than having two separate fees.
• Civil Society: several respondents suggest the cost should be upfront and contained within the planning fee.
• Development Industry: one respondent considers in principle, overheads such as advertising fees should be recovered through the planning fee, so if these are not presently included in the proposed fees, then the fees ought to be increased accordingly in those instances where advertising fees are genuinely incurred by the planning authority.
• Policy and Planning: many respondents support the idea of a single fee and consider the costs associated with advertising applications should be covered by a small percentage increase to the planning application fee. However, that increase should be over and above the increases proposed through this consultation.

Move Away from Print Media

• Business: several respondents questioned the need and merit in advertising planning applications in local newspapers and would suggest that there are cheaper and more beneficial alternatives such as the use of site notices or creating a dedicated webpage on planning authorities' websites.
• Civil Society: a few respondents noted that hard-copy printed newspapers are not used by many so may not be an effective advertising source.
• Policy and Planning: many respondents suggested that the government should consider whether continuing to require that some applications are still advertised in newspapers is effective or appropriate and suggest more use could be made of e-planning and social media.

Cost Recovery

• Business: a few respondents suggested advertising costs should be passed through to the applicant on an at-cost basis.
• Development Industry: a few respondents consider the fees charged by the planning authorities should reflect the authority's costs incurred in relation to that project.
• Policy and Planning: several respondents note that as advertising fees differ across the country, it may be prohibitive to set a single advertising fee.

Other observations

• Civil Society: several respondents suggested there should be a set fee for advertising.
• Development Industry: the current system where developers have to pay the advert fee, where required, prior to the release of the consent should be maintained.
• Policy and Planning: although it may be helpful to have a single fee rather than planning application fee plus advertising fee and would save time requesting advert fees, it may be simpler to require the advert fee at validation.

7.5 Environmental Impact Assessments (EIA)

7.5.1 The technical information contained within an EIA report can be substantial. Specialist skills and expertise may be required either within the authority or externally. Some authorities have indicated they wish to see the requirement for an EIA being a trigger for attracting an enhanced fee.

Q50. Do you consider that submission of an EIA should warrant a supplementary fee in all cases?

7.5.2 The consultation asked whether the submission of an EIA should warrant a supplementary fee. The table below shows that the majority (66%) of respondents answering the question, opposed a supplementary fee for the submission of an EIA. Business and development industry strongly opposed the supplementary fee, civil society tended to oppose the fee and policy and planning tended to support the introduction of a fee.

Do you consider that submission of an EIA should warrant a supplementary fee in all cases?

	Yes	No	Not Answered
Business		20	9
Civil Society	5	8	15
Development Industry	1	8	3
Policy and Planning	18	11	11
Total	24	47	38
% of Respondents Answering Question	34	66

7.5.3 There were 69 comments on whether the submission of an EIA should warrant a supplementary fee in all cases across the themes are described below. The themes are presented in descending order of comments received.

Part of Planning Process/Fee

• Business: many respondents consider a supplementary fee is not warranted as there is likely to be a significant planning fee associated with such applications already. In addition, it is noted that applicants already incur significant additional costs where an EIA is required.
• Civil Society: several respondents consider the submission of an EIA is a necessary part of applications and should not be treated as an extra. As such the costs involved in dealing with EIA submissions should be included in the overall fee charged to applicants.
• Development Industry: several respondents note that applicants already incur significant additional costs where an EIA is required and the costs of considering EIA reports should be anticipated and covered by the fee rates for planning applications.
• Policy and Planning: several respondents consider that developments requiring an EIA would usually have a significant fee already which should cover the amount of assessment required.

Cost Recovery

• Civil Society: several respondents consider it takes time to review an EIA therefore it is about cost recovery.
• Development Industry: one respondent believes that the fees charged by planning authorities should reflect their costs incurred in relation to each application.
• Policy and Planning: many respondents reported that when there is an EIA provided, there is likely to be an additional work and it may be necessary for authorities to employ specialist advisers.

Other observations

• Business: one respondent considers additional fees should only be charged for applications which are not major applications, as these will already be subject to a significant fee.
• Civil Society: a few respondents are unsure and consider that it will be important that this does not influence the decision on whether an EIA is needed.
• Policy and Planning: one respondent reports that a supplementary fee is considered appropriate in cases where a Section 42 application requires an EIA. The charge should be equal to the category of fee that the proposal would have generated if a detailed application had been submitted.

Q50b. If so, what might an appropriate charge be?

7.5.4 There were 24 comments on what an appropriate charge might be for a supplementary fee for an EIA. The themes are described below.

No Charge

• Business, Civil Society, Development Industry: several respondents contend there should be no additional charge as it is already covered by the application fee.

Cost Recovery

• Civil Society, Development Industry: a few civil society and one development industry respondent consider the charge should be based on the amount of work involved in assessing the EIA.
• Policy and Planning: one respondent advises that any surcharge be based upon the estimated additional costs of processing an EIA development and suggests this could potentially be streamlined to include advertisement costs as a single payment.

Other observations

• Policy and Planning: a range of charges are suggested from £600 to £10,000. Others suggest the charge should depend on the size and nature of the application rather than being a flat fee and there should be a minimum fee.

7.6 Hybrid Applications

7.6.1 Fees for PPP are calculated at half the fee for full planning permission. In some circumstances an application has been submitted for PPP which provides additional details that would normally be considered through an application for AMSC. This has been unofficially referred to as a hybrid application.

Q51. Do you think that applications for PPP should continue to be charged at half the standard fee?

7.6.2 The consultation sought views on whether applications for PPP should continue to be charged at half the standard fee. The majority (59%) of respondents did not answer this question, but of those who did, the majority supported PPP applications being charged half the standard fee. There was clear support from business and development industry respondents, with civil society and policy and planning respondents more evenly split on the proposal.

Do you think applications for planning permission in principle should continue to be charged at half the standard fee?

	Yes	No	Not Answered
Business	5		24
Civil Society	7	6	15
Development Industry	6	2	4
Policy and Planning	11	12	17
Total	29	20	60
% of Respondents Answering Question	59	41

7.6.3 The "hardcopy" of the consultation asked if there should be a different fee for hybrid applications as described in paragraph 7.6.1 above. However, this question was missing from the online version and hence, there are no quantitative results.

7.6.4 While the majority of respondents favoured PPP continuing to be charged at half the standard rate, it is noted that the review of individual fees in Section 4 (Q5 to Q27) did not really support this view.

7.6.5 There were 29 comments on PPP and hybrid applications across the themes described below. The themes are shown in descending order of the number of comments received.

Not Supportive of Proposals

• Business: one respondent does not agree with the idea of a different fee for a hybrid application. The fee structure should remain the same and be based on PPP/ AMSC or full planning permission.
• Civil Society: a few respondents disagreed and suggested that it is essential that differing levels of charges are not utilised by applicants to short circuit the process and avoid the full costs of genuine open applications. As such hybrid applications should not be allowed.
• Development Industry: a few respondents disagreed and suggested that applications for PPP require a full assessment of the suitability of the proposals and, therefore, charging half a fee for a PPP application does not reflect the level of assessment required.
• Policy and Planning: several respondents consider there is still a great deal of work involved in PPP applications, it is not "half" the work of a detailed application. Unless there are calculations demonstrating the proportion of work involved in a PPP compared to a full permission, this could be amended to 75% or 80% in order to ensure that resources are in place for what can be highly complex applications.

Supportive of Proposals

• Business: a few respondents agreed with the lower fee for PPP and for clarity would suggest hybrid applications have a category of their own or are clearly defined as falling within the PPP fee category or full application fee category.
• Civil Society: a few responded 'Yes'.
• Policy and Planning: several respondents agree that hybrid applications should attract a different fee, noting a hybrid application contains information relevant to a full planning application and needs to be assessed in that context. It is recommended that hybrid applications are charged at the full fee.

Other observations

• Civil Society and Policy and Planning: a civil society respondent suggested PPP should be charged at the full cost of a planning application and AMSC applications should be free. This would simplify the system. A policy and planning respondent suggested the fee for a PPP application should be increased and that might allow for a reduced fee to be charged for any subsequent AMSC application.
• Policy and Planning: a respondent suggested that planning authorities should consider whether it is appropriate to accept such 'hybrid applications,' or whether they are in fact full planning applications.

7.7 Charging for Scottish Government services

7.7.1 All applications submitted through the Planning Portal in England which attract a planning fee of £60 or more incur a service charge of £20.83 (+VAT). The income is retained by the Planning Portal to cover the costs of delivering the service and to invest in improvements.

7.7.2 Scottish Government would use any income from a service charge to develop its services including:

• The range of free-to-use content and interactive guidance to explain planning.
• Free-to-use technical and legislative content for planning and building professionals.
• A dedicated customer support team.
• The planning application service including increasing maximum file size, e-enabling further application types etc.

Q52. Should the Scottish Government introduce a service charge for submitting an application through eDevelopment?

7.7.3 The consultation sought views on whether a service charge should be introduced for submitting an application through eDevelopment. The table below shows that the majority (66%) of respondents did not support the introduction of a service charge. While all groups had some support for the proposal, they tended to oppose the introduction of a service charge.

7.7.4 There are no additional comments on this question as it was only a "closed" question.

Should the Scottish Government introduce a service charge for submitting an application through eDevelopment (ePlanning and eBuilding Standards)?

	Yes	No	Not Answered
Business	1	9	19
Civil Society	5	6	17
Development Industry	4	6	2
Policy and Planning	10	17	13
Total	20	38	51
% of Respondents Answering Question	34	66