Planning Circular 3/2013: Development management procedures

Annex H: Duration of Planning Permissions in Principle

Introduction

1. Planning authorities will wish to give careful consideration as to the appropriate duration of a planning permission in principle (' PPP') where such permission is to be granted, and to the time limit for making applications for approval of matters specified in conditions. This will be the case particularly where the permission relates to development intended to take place in phases over a number of years. Examples might include large housing schemes, plot-by-plot housing schemes, business parks, or other similar development where the details of later phases are not yet known. All parties should seek to avoid a scenario where it only subsequently becomes clear after a PPP has been granted that the timetable for making applications and implementing the development is unrealistic.

2. In all cases, authorities will wish to allow reasonable flexibility for developers, whilst seeking to minimise uncertainty surrounding the implementation in practice of the permission.

3. The following terms are used for the purposes of this guidance:

'Requisite approval': approval of matters specified in condition(s) attached to planning permission in principle where such approval, consent or agreement of the planning authority is required before the development in question can begin.

'Development in question': The development to which the particular condition relates. The condition may restrict any development or only part of the development depending on the wording of the individual condition.

'Approval of matters specified in conditions': approval, consent, or agreement of the planning authority for any detailed aspects of the development, whether or not that approval is required before development can begin.

4. Guidance on procedures for applications for the approval of matters specified in conditions, including 'requisite approvals', is available in paragraphs 3.11 - 3.14 of this Circular.

Background

5. Section 59 of the Town and Country Planning (Scotland) Act 1997, as amended, ('the Act') provides that:

a. To be a PPP the planning permission granted must be subject to a condition or conditions requiring the approval of certain matters (a 'requisite approval') before the development in question can begin.

b. Section 59(2)(b) provides that applications for requisite approval may be made at different times in relation to different matters and different parts of the development.

c. Section 59(2)(a)(i) provides that applications for requisite approval must be made within 3 years of the date of the grant of permission. However, section 59(5)(a) enables the planning authority when granting permission to substitute, through direction, an alternative time period.

d. Section 59(7) provides that this direction may substitute different time periods for different parts of a development.

e. In terms of section 59(4), PPP will lapse 2 years after the last requisite approval is obtained, unless the development to which the permission relates has begun. However, Section 59(5)(b) provides for the substitution, through direction, of an alternative time period for the lapsing of the permission. Again section 59(7) provides this direction may substitute different time periods for different parts of a development.

f. Directions made under Section 59(5) must be made at the time at which the PPP is granted, and there is no provision to issue a direction after a grant of PPP. The time periods in section 59(3) and (4) can only be altered by means of direction(s) under section 59(5).

g. Applicants may, as the case may be, appeal or seek a local review, of the period specified in a direction up to 3 months after the grant of PPP.

h. A Planning Permission in Principle which has lapsed, or which is no longer capable of being implemented, may be a material consideration to be taken into account in determining any future application for planning permission in respect of the site.

Procedures for seeking approvals

6. All applications for approval, consent or agreement required by a condition attached to a planning permission in principle are subject to the procedural requirements of regulations 12 and 18 (and where applicable regulation 20) of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013 ^[31] ('the DMR'). Regulation 12 requires an application for consent to be made in writing including certain information. There is however no limit on the number of approvals which can be sought in any single application. Regulation 18 requires neighbour notification of the application and, where applicable, regulation 20 requires notice of the application to be published in a newspaper. Applications will also attract a fee. The aim of these requirements is to ensure that opportunity is provided for consultation to take place, as the key details of a development that has been approved in principle are being submitted.

7. An authority may, in determining an application for approval, consent, or agreement, grant such an application subject to conditions. Where such a condition is imposed requiring further approvals or consents, the time limits in S.59(2) would not apply to applications for those further approvals or consents.

Timescales for seeking approvals

8. Section 59(7) of the Act expressly provides that a direction under section 59(5) can substitute different time limits for making an application for a requisite approval for different parts of the development. In this way, the Act recognises, and provides for, the principle of phased development, and enables the planning authority to make directions where appropriate to set different timetables for the approval and implementation of different parts of the permission. This means, for example, that by using directions under section 59(5), a planning authority (or Ministers) can alter the effect of section 59(2)(a)(i) to substitute a different period (the substituted period) for the usual period of 3 years, and that this may be done for all of the development or for only part of the development. In the latter case, the result would be that applications for the requisite approvals for the part of the development specified in the direction would have to be made before the end of the substituted period.

9. The planning authority, in discussion with the applicant, will therefore wish to give consideration, prior to the granting of a PPP, as to the appropriate statutory time period within which applications for approvals should be made. This will involve giving consideration as to the need for any direction(s) under Section 59(5) of the Act.

10. Equally however, it will be important for the applicant to be clear as to the need to adhere to the time limits for submission of all requisite approvals in terms of section 59, and to consider whether they need to ask the authority to make directions to set an alternative timetable. In this way, all parties can seek to avoid a scenario where it only subsequently becomes clear after a PPP has been granted that the timetable for making applications and implementing the development is unrealistic. If the timetable is not considered carefully at the point of granting PPP, the result may be that a development cannot be implemented as originally envisaged, for example because the time period for submitting applications for approval may expire before such applications can realistically expect to be made.

11. If the intention is that a development is to be implemented in phases, or approvals for parts of a development should be submitted in phases, the conditions themselves need to be framed to recognise this.

Drafting conditions to a PPP

12. In light of all of the above, planning authorities and developers will wish to give consideration to the wording of individual conditions, and in particular will wish to ensure clarity as to:

• Which conditions require the further approval, consent or agreement of the planning authority, and consequently are subject to the procedures set out in regulation 12 of the DMR;
• Where a further approval is required, whether this is necessary before the development as a whole can begin, or before part of the development can begin.
• Whether the matters to be approved concern the development as a whole, or whether they relate only to particular phases. For example, where a condition requires the approval of the planning authority on the 'siting, design, and external appearance of all buildings,' whether this relates to all buildings across the development as a whole, or only in relation to a particular phase of development.
• Authorities may wish to consider using an advisory note to clearly set out the timetable for making applications for requisite approvals.
• Authorities are reminded of the need to ensure that all conditions imposed on a PPP meet the tests set out in Circular 4/1998 ^[32] .

The use of Directions to substitute alternative time periods

13. Authorities may wish to use and adapt the following forms of wording when making directions under section 59(5) of the Act in relation to a planning permission in principle:

• The [planning authority] direct that subsections (2)(a)(i) and (3) of section 59 of the Town and Country Planning (Scotland) Act 1997 apply as respects [ the PPP ] with the substitution for the period of 3 years referred to in each of those subsections, of the period of [ X years].

And

• The [planning authority] direct that subsection (4) of section 59 of the Town and Country Planning (Scotland) Act 1997 applies as respects [ the PPP ] with the substitution for the period of 2 years referred to in that subsections, of the period of [ X years].

Summary:

• Applications for 'requisite approvals' required by condition to a PPP must usually be made within 3 years.
• Authorities can substitute an alternative time period or periods through direction at the time at which PPP is granted.
• In this way, the Act recognises and provides for the principle of phased development, including in circumstances where it may be appropriate for different parts of the development to be implemented according to different timetables.