Planning Circular 3/2013: Development management procedures (withdrawn)

2. Pre-Application Phase

Background

2.1 The Scottish Government wants to encourage improved trust and 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. Statutory requirements include publicity and consultation to make communities aware of, and have an opportunity to comment on, certain types of development proposals (namely major and national developments - see paragraph 2.8) before they are finalised and a planning application has been made. The planning applications in such cases must include a report of the pre-application consultation between applicants and communities.

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.

Pre-Application Discussions and Processing Agreements

2.3 The Scottish Government 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.

2.4 Processing agreements need constructive pre-application discussions between planning authorities, developers, agencies and other bodies who will have to be consulted on any subsequent planning application. Such discussions are a separate activity from statutory pre-application consultation with communities, although they can inform the planning and scope of the statutory consultation activity. Such discussions and consultation may also support the preparation of any statutory design statement or design and access statement, where required.

2.5 Pre-application discussions and processing agreements should identify upfront the information to be required in support of an application and when it will be submitted and considered. Those involved should ensure any requirements for additional information are 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.

Pre-Application Consultation ( PAC) Between Prospective Applicants and Communities

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

2.6 The objective of PAC is for communities to be better informed about major and national development proposals and to have an opportunity to contribute their views before a formal planning application is submitted to the planning authority. This helps to: improve the quality of planning applications; mitigate negative impacts where possible; address misunderstandings; and to air and to address where practicable any community issues. Any adjustments made as a result of PAC should improve the proposals and assist the efficient consideration of applications once submitted.

2.7 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. 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.

Classes of development and screening

(Section 35A and regulations 4 and 5)

2.8 With one exception, all applications for planning permission or for planning permission in principle under regulations 9, 10 or 11 for national and for major developments require PAC between developers 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 the range of development to be treated as national or major respectively.

2.9 The exception mentioned in the previous paragraph is where an application for planning permission is made under Section 42 of the 1997 Act (a Section 42 Application – see Glossary).

2.10 A screening process is available whereby prospective applicants can seek the planning authority's view on whether their proposal is a national development or a major development and therefore requires PAC. Further information on the screening process can be found in Annex B.

Proposal of Application Notice

(Section 35B and regulation 6)

2.11 Where PAC is required, the prospective applicant must provide to the planning authority a 'proposal of application notice' 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, when such consultation is to take place, with whom and what form it will take. This should include steps in addition to the statutory minimum for consultation.

2.12 Element v) will assist the planning authority in responding to the proposal of application notice with any additional notification and consultation requirements (see paragraphs 2.21-2.23 and 2.35).

2.13 The 'description in general terms' should outline the proposal's characteristics, and the identification of its category (for example, major development). 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 proposal of application notice means that relatively minor changes could trigger the need to repeat PAC.

2.14 Descriptions should accurately and adequately convey to the layman what the development involves. Describing a proposal for superstore with car park and petrol station as a "retail development" or a wind farm as "renewables development" with "ancillary development" is unlikely to do that.

2.15 It is for the planning authority (and ultimately the courts) to satisfy themselves that an application is sufficiently linked to the proposals consulted upon at the pre-application stage. An application involving land not included in the outline of the site in the proposal of application notice may cast doubt over such a link. Prospective applicants should try to ensure the site identified in PAC covers the likely options for the final proposal.

2.16 The submission of the proposal of application notice starts the PAC processing clock. After a minimum of 12 weeks, 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. Information in relation to the proposal of application notice must be placed on the list of applications (see paragraphs 4.36 - 4.49). There is no statutory maximum length of time between carrying out PAC and submitting the related planning application.

Minimum consultation activity

(Regulation 7)

Consultation with community councils

2.17 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 proposal of application notice.

2.18 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.

The public event

2.19 The prospective applicant is required to hold at least one event for members of the public where they can make comments to the prospective applicant on the proposals. Notice of this 'public event' must be published at least 7 days in advance in a newspaper circulating in the locality of the proposed development.

2.20 The notice for the public event must include:

• a description of the proposed development and its location;
• details as to where further information may be obtained concerning the proposed development;
• the date and place of the public event;
• a statement explaining how, and by when, persons wishing to make comments to the prospective applicant relating to the proposal may do so; and
• a statement 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.

Additional consultation activity

(Section 35B and regulation 6)

2.21 The prospective applicant should indicate in the proposal of application notice 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 specifying any additional notification and consultation they wish 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.

2.22 In requiring 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. Further advice on planning community engagement activity can be found in Planning Advice Note 3/2010: 'Community Engagement' ^[7] .

2.23 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.

Pre-application consultation ( PAC) - general

2.24 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 on proposals or the ability to amend them.

2.25 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 2.4). 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.

2.26 Prospective applicants may want to consider approaching communities to help frame their PAC. Planning authorities, in considering any additional consultation, may want to seek the views of others, for example, the relevant community councils, particularly where they have not drawn up the lists referred to in paragraph 2.25.

2.27 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.

2.28 A number of tools (including those mentioned in paragraph 2.27 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.

2.29 Prospective applicants should consider additional measures for publicising PAC activities, such as use of their own web sites to host information. 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.

2.30 Prospective applicants will gain less 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.

2.31 The public event 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. 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.

2.32 Presentations at events should follow the guidance at paragraph 2.29 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.

2.33 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.

2.34 After PAC, and once a planning application has been submitted to the planning authority, communities should ensure that any representations they wish to make on the proposal are submitted to that authority as part of the process of considering the planning application.

Pre-application consultation ( PAC) reports

(Sections 35C and 39 and regulation 3)

Content

2.35 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 proposal of application notice. The report is to be made in writing (which may include being in electronic format).

2.36 The legislation does not specify the content of the report beyond that it should set out what was done to effect compliance with the aforementioned requirements. However, a useful minimum would be to:

• specify who has been consulted;
• set out what steps were taken to comply with the statutory requirements and those of the planning authority;
• set out how the applicant has responded to the comments made, including whether and the extent to which the proposals have changed as a result of PAC;
• provide appropriate evidence that the various prescribed steps have been undertaken - for example, copies of advertisements of the public events and reference to material made available at such events; and
• demonstrate that steps were taken to explain the nature of PAC, in particular that it does not replace the application process whereby representations can be made to the planning authority.

2.37 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 (see paragraph 2.10 and Annex B).

2.38 The report must accompany the subsequent application for planning permission or planning permission in principle under regulations 9 to 11 (other than a Section 42 application) 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

2.39 The purpose of the PAC report is 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.

2.40 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.

2.41 If parties are concerned that their views have not been taken on board as a result of the PAC, it is important that they make their concerns about the proposal known by making representations to the planning authority at the planning application stage, so that due consideration can be given to them before a decision is reached.

Notices to Owners and Agricultural Tenants

(Section 35, regulation 15 and schedule 1)

2.42 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). See Annex C for requirements regarding applications involving the underground working and winning of minerals.

2.43 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.

2.44 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).

2.45 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).