Planning Circular 5/2013: Schemes of delegation and local reviews

INTRODUCTION

1. The planning system should operate in support of the Government's central purpose of creating a more successful country, with opportunities for all of Scotland to flourish, through increasing sustainable economic growth. For decision making this means providing greater certainty of process, including being timely and transparent, as a means to achieve better places for Scotland. Planning authorities use powers of delegation so that certain decisions can be taken by officials instead of being considered by elected members of the authority at committee. Delegation to officials is an important means of adding efficiency to administrative processes and the Scottish Government wants to encourage an appropriate level of delegation to officials to support the role of the planning system in achieving their central purpose.

Schemes of delegation and local reviews for local development

2. This circular relates to the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2013 ¹ (the Regulations). It replaces Circular 7/2009 on Schemes of Delegation and Local Reviews, which is cancelled. It explains the requirements for preparing schemes of delegation and conducting local reviews contained in the Regulations and the Town and Country Planning (Scotland) Act 1997 ² , as amended (the 1997 Act). Unless otherwise stated, references to a particular regulation or to a section will be to the Regulations or the 1997 Act respectively. References to planning permission include planning permission in principle.

3. These schemes of delegation relate to applications for planning permission for local development and applications for approval, consent or agreement required by a condition imposed on a grant of planning permission for a local development. Local developments are those which are not categorised as either major developments in the Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009 ³ or as national developments in the National Planning Framework.

4. Where a scheme of delegation under section 43A(1) of the 1997 Act delegates such applications to a person appointed to make a decision (usually an officer of the authority and hereafter referred to as an appointed officer), the applicant does not have a right of appeal to Scottish Ministers against either the decision or the failure of the appointed officer to take a decision within the period for determination ⁴ . Instead the applicant has a right to a review by the planning authority of the decision or the failure to determine the application.

5. Where the applications mentioned in paragraph 3 are not determined by an appointed officer, the applicant has a right of appeal to Scottish Ministers. This may be the case because the terms of the scheme trigger referral of the application to members for a decision, or where the planning authority exercise the power to take specific applications out of the scheme of delegation (see paragraph 18).

Changes to legislation

6. The Regulations incorporate the minor amendments previously made to the Town and Country Planning (Schemes of Delegation and Local Review Procedures) (Scotland) Regulations 2008 (which are now revoked), and make other minor amendments to improve consistency and clarity. However, the main changes made by the Regulations are:

• the removal of the requirement for schemes of delegation to include a restriction on delegating planning authority interest cases;
• the extension from two to three months of the period within which a local review body must deal with a review sought on the grounds of non-determination, before the deemed refusal of permission applies; and
• a "hearing statement" must now "fully set out" the case, (rather than the previous requirement to "outline" the case).

7. Information on the transitional arrangements for these changes (previously available online) is at paragraphs 60 to 62.

8. The provisions are intended to promote efficient and high quality decision making. The Scottish Government's intention is that planning authorities should make the most effective use of powers to delegate decisions on straightforward planning applications to officials, allowing elected members to focus attention on more complex or controversial applications. The approach taken in the Regulations is to provide planning authorities with significant scope to develop schemes of delegation that are appropriate to local circumstances and to provide a clear framework for conducting reviews of decisions locally.

Delegation of other applications made under planning legislation

9. The general powers to delegate authority contained in the Local Government (Scotland) Act 1973 as amended ⁵ (the 1973 Act) remain, but do not apply to delegating decisions on the applications relating to local development mentioned in paragraph 3. The powers in the 1973 Act can be used to delegate decisions on planning applications relating to major development which is not significantly contrary to the development plan ⁶ (though members may want to determine such applications), and other types of application under planning legislation, such as listed building consent, conservation area consent, hazardous substances consent and consent to display advertisements. These cases have a right of appeal to Scottish Ministers, whether they are delegated to an officer for decision or not.