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

SECTION 43A SCHEMES OF DELEGATION

Content

10. All planning authorities have adopted schemes of delegation as required by section 43A(1). The scheme's main role is to set out the classes of local developments which, rather than having to be determined by elected members, would be suitable for delegation to an appointed officer. The scheme itself does not have to identify who will be the appointed officer to determine applications but is to set the framework by which applications are determined by appointed officers.

11. Section 43A(4) provides that regulations may set out the form, content and procedures for preparing and adopting a scheme of delegation. These details are set out in the Regulations.

12. Regulation 3 specifies the content of schemes of delegation. It will largely be for planning authorities to determine which applications will be delegated to an appointed officer. Regulation 3(1) requires the scheme to describe the classes of development to which the scheme will apply and to explain with respect to every class which applications may be determined by an appointed officer. These are classes within the category of local development which authorities can identify to tailor the scheme to their own circumstances.

13. Where an application may only be determined by an appointed officer in particular circumstances the scheme should set these out. With the removal of the statutory requirement for schemes to prevent the delegation of planning authority interest cases, local authorities can tailor their scheme of delegation to suit their circumstances and administrative procedures. The Government's view is that there should be flexibility to enable planning authorities to develop clear schemes of delegation appropriate to local circumstances.

Procedures for adoption of the scheme

14. Regulation 4 provides that where the planning authority propose to adopt a scheme of delegation under section 43A they must first send a copy of the scheme to Scottish Ministers. The planning authority are not to adopt the scheme until such time as it has been approved by Scottish Ministers. Similarly, where changes are to be made to the scheme, the planning authority must send a revised copy of the scheme they propose to adopt to Scottish Ministers for approval.

Publication of the scheme

15. Once the scheme has been approved by Scottish Ministers and adopted by the planning authority, regulation 5 requires that the planning authority make a copy of the scheme available for inspection at an office of the planning authority and in every public library in the authority's area (the legislation does not rule out electronic access to a copy). The scheme must also be published on the internet. The provisions for adoption and publication contained in the Regulations are intended to offer a straightforward process for putting schemes of delegation in place. Planning authorities remain free to take additional steps to publicise the schemes, should they consider that to be appropriate.

Use of the section 43A scheme of delegation

16. Decisions made by an appointed officer under the scheme of delegation have the same status as other decisions taken by the planning authority, other than the arrangements for reviewing the decision. Sections 43A(8) to (16) give an applicant a right to require the planning authority to review these decisions instead of a right of appeal to Scottish Ministers.

17. In cases where the planning authority receive an application for planning permission for a local development and the proposal would also require another type of consent (for example, listed building consent), there is the potential, where the former is delegated to an appointed officer for determination, for there to be two separate routes for challenging the respective decisions: one a local review and the other an appeal to Scottish Ministers. However, it will remain for the planning authority to consider which is the most effective route to determine related applications.

18. Notwithstanding the terms of the scheme of delegation, and any restrictions it places on delegation, section 43A(6) states that the planning authority may, if they think fit, decide themselves to determine an application which would otherwise be determined by an appointed officer. Any such decision must include a statement of the reasons for which it has been taken, and a copy of the decision is to be served on the applicant.

Subsequent schemes of delegation

19. Regulation 6 requires that the planning authority prepare a scheme of delegation at intervals of no greater than every five years. Section 43A(1)(a)(i) also prescribes that planning authorities must prepare a scheme of delegation whenever required by Scottish Ministers. The procedure for doing so will mirror that for preparing the original scheme.