National Planning Framework and local development plans - proposals for amending regulations: consultation

Amendments to the National Planning Framework

15. The 1997 Act allows the Scottish Ministers to amend the NPF at any time. This is provided for in section 3CC(1) of the 1997 Act, inserted by section 12(2) of the 2019 Act.

3CC Amendment of National Planning Framework

(1) The Scottish Ministers may at any time amend the National Planning Framework.

16. In practice, we expect to exercise this power sparingly. We are strongly of the view that having an established and consistent policy framework enables confidence in the planning system over the long term. This benefits all stakeholders, including communities, developers and infrastructure providers, and supports the requirement that the Scottish Ministers exercise their functions relating to the NPF aligned to the purpose of planning: to manage the development and use of land in the long-term public interest.

17. The power to amend the NPF is likely to only be used in circumstances where Scottish Ministers are satisfied that an amendment is required, recognising that any proposal for an amendment will be considered on its individual merits.

18. The scale of any amendment to the NPF could vary from policy changes or amendments to national developments, to more minor, straightforward amendments, for example a change to a name, or adding a new reference or a change of terminology.

Scope of regulations on amendment of NPF

19. Regulations can only cover matters where power has been given in the primary legislation for the Scottish Ministers to regulate.

Requirement for Full Review of NPF

3CC Amendment of National Planning Framework

(3) The Scottish Ministers must by regulations set out the circumstances in which they consider that an amendment would result in a significant change to the policies and proposals for the development and use of land of the most recent National Planning Framework such that would require that the National Planning Framework should be reviewed and revised under sections 3AA to 3CA.

20. Section 3CC(3) of the 1997 Act, as amended, requires the Scottish Ministers to set out in regulations the circumstances in which they consider an amendment would result in a significant change to the NPF, such that it would require to be reviewed and revised under sections 3AA to 3CA – the full NPF review process. The Act does not however make provision for the Scottish Ministers to set out in regulations triggers for when any amendment of the NPF would be required.

21. Whilst the Scottish Ministers can decide to review the NPF in full at any time, given the resource implications of a full review (both on the Scottish Government and other stakeholders, including communities), along with associated timescales, we propose to set the bar for a full review fairly high to ensure it would take a significant change to the most recent document to make a full review mandatory.

22. Measuring significance of any proposed change(s) to the NPF in a way that can provide precise triggers in legislation is not straightforward, particularly when the scale of impact that policy changes may have could be subjective. The Act nevertheless does require the regulations to set out circumstances or triggers in which a proposed change would require a full review, so requiring some degree of precision.

23. We are proposing that the NPF should be reviewed under sections 3AA to 3CA if the proposed amendment(s) would mean half or more of the following would be amended:

• national developments; or
  • In NPF4: 18
  • Half or more: 9+
• national planning policies;
  • In NPF4: 33
  • Half or more: 17+

24. This proposal would support the intention for the NPF to provide confidence in the planning system over the long term. It would mean a full review of the NPF is not triggered via legislation when a limited part of the NPF requires an amendment. We propose that any changes to text solely amending references or links, e.g. ‘key policy connections’ as featured in NPF4 policies, within the document are not considered significant and would therefore not be counted towards triggering a review.

25. Our proposal is intentionally broad and not specific to particular topics. It enables amendments to be brought on any individual issue without requiring the significant resource commitment needed by all stakeholders for a full review. It also ensures that significant deviation from the most recent document will result in a full review, whilst guarding against the possibility that a detailed and specified list is unlikely to predict all future situations.

26. We believe it follows that less significant changes could be made by the amendment route – which will itself carry an appropriate level of consultation and scrutiny – without a full review being statutorily required. It is already acknowledged that Scottish Ministers can decide to review the NPF in full at any time without amendments reaching this trigger.

Question 1:

To what extent do you agree that it is appropriate to adopt a broad and high-level approach as to when a full review of the NPF is required?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Question 2:

In cases where amendments would require changes to half or more of the contents of the NPF, to what extent do you agree that a full review of the NPF would be required?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Procedures for amending NPF

3CC Amendment of National Planning Framework

(4) The Scottish Ministers may by regulations make further provision about amendments under subsection (1).

(5) Regulations under subsection (4) may in particular make provision—

(a) about the procedures to be followed,

(b) about the consultation to be undertaken on proposed amendments,

(c) about when the amendments take effect,

(d) about the publication of the amended framework,

(e) about the laying of the amended framework before the Scottish Parliament.

27. Sections 3CC (4) and (5) of the 1997 Act provides that Scottish Ministers may make further provisions about amendments of the NPF by regulations, and sets out matters which the regulations may in particular make provisions about. The 1997 Act, in sections 3AA to 3CA, sets out the required procedures and considerations for carrying out a full review of the NPF. We have considered these in developing the proposals for procedures for amendment of the NPF.

28. We envisage the process for amending the NPF having three main stages:

• Engagement/justification for the amendment
• Preparation of the amendment (including consultation, laying in the Scottish Parliament and Parliamentary approval)
• Adoption by Scottish Ministers of the amendment and publication of the NPF as amended.

Engagement/Justification

Engagement

29. We envisage that at the outset of considering an amendment to the NPF, the Scottish Ministers would usually provide an update on what engagement they intend to carry out, appropriate to the specific proposed amendment.

Considerations

30. The 1997 Act sets out a series of issues that Ministers must consider when carrying out a full review of the NPF. We are proposing that these should also be considerations for amendments, whilst recognising that the weight given to each of the considerations may vary depending on the nature and topic of the proposed amendment.

31. The Act contains some specific requirements in relation to national developments around considering the Infrastructure Investment Plan and carrying out a lifecycle greenhouse gas emissions assessment. We propose that the regulations would also apply these where a proposed amendment seeks to add a national development.

Requirement in Act for preparing a revised NPF

General

• section 3AB(3)(a)

  the Scottish Ministers must—

  (a) have regard to relevant policies and strategies, including in particular—

  i. any national strategy and action plan for housing prepared by the Scottish Ministers,

  ii. any infrastructure investment plan prepared by the Scottish Ministers to set out their priorities for the development of public infrastructure,

  iii. any national transport strategy prepared by the Scottish Ministers,

  iv. any strategic transport projects review prepared by the Scottish Ministers to set out their priorities for transport investment,

  v. the land use strategy prepared under section 57 of the Climate Change (Scotland) Act 2009,

  vi. the programme for adaptation to climate change prepared under section 53 of the Climate Change (Scotland) Act 2009,

  vii. any national strategy in respect of the improvement of air quality prepared by the Scottish Ministers,

  viii. any land rights and responsibilities statement prepared under section 1 of the Land Reform (Scotland) Act 2016,

  ix. any national strategy or action plan for the ownership or use of land prepared by the Scottish Ministers, and

  x. the national marine plan prepared under section 5 of the Marine (Scotland) Act 2010, and

• section 3AB(3)(b)

  (b) have regard to the desirability of—

  i. resettling rural areas that have become depopulated,

  ii. preserving disused railway infrastructure for the purpose of ensuring its availability for possible future public transport requirements, and

  iii. preserving peatland.

• section 3A(4A)

  The Scottish Ministers must have due regard to any National Scenic Areas report published by them under section 263B when preparing the framework.

In relation to national developments

• section (3A(5)

  If the framework contains a designation under subsection (4)(b) [national development] the framework —

  (za) must have due regard to an Infrastructure Investment Plan published by the Scottish Ministers, and include a statement setting out the ways it has been taken into account in preparing the framework,

  (a) must contain a statement by the Scottish Ministers of their reasons for considering that there is a need for the national development in question.

• section 3A (3)(e)

  (3)The National Planning Framework must contain—

  (e) an assessment of the likely impact of each proposed national development's lifecycle greenhouse gas emissions on achieving national greenhouse gas emissions reduction targets (within the meaning given in the Climate Change (Scotland) Act 2009)

Question 3:

In preparing an amendment to the NPF, to what extent do you agree that the Scottish Ministers should have the same considerations as they would for a full review of the NPF, where that is relevant to the proposed amendment?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Preparation

Provision of information

3CC Amendment of National Planning Framework

(2) Section 3AC applies to amending the National Planning Framework as it applies to preparing or revising it.

32. Section 3CC(2) of the 1997 Act provides that section 3AC applies to amendments. Section 3AC enables the Scottish Ministers to direct planning authorities to provide information about a specified range of matters (for example population, housing and infrastructure) to assist them in amending the NPF. While already provided for in the Act, this is a discretionary power so that the Scottish Ministers would only require information on issues that are relevant to the particular amendment if they consider that to be necessary. As such information would be obtained by a direction, there is no need to address this in these regulations.

Drafting

33. It will be for the Scottish Government to draft any proposed amendment to the NPF, prepare justification for the amendment, and to carry out any other impact assessments required.

Consultation

34. We propose that when intending to amend the NPF the Scottish Ministers are required to publish (online):

• the proposed amendment, for consultation; and
• explanation as to why the amendment is proposed.

35. When proposing an amendment to the NPF, along with publishing for comment from the public at large, we propose that the Scottish Ministers be required to consult with:

• key agencies as defined in the Development Planning regulations 2023; and
• planning authorities.

36. The ‘public at large’ is a broad inclusive category covering most people and stakeholders, therefore we do not consider it necessary to define further groups to be consulted, especially where they may not be interested in particular amendments.

37. A full revision of the NPF is required to be laid in draft before the Scottish Parliament. For consistency, and to allow opportunity for Parliamentary engagement around amendments to the NPF, we propose to also require the laying of a copy of the draft amendment before the Scottish Parliament.

38. A full revision of the NPF is required to be laid in draft before the Scottish Parliament for 120 laying days (equivalent to around 17 weeks). We propose that for a proposed amendment to the NPF the consultation period be a minimum of 6 weeks. Whilst a Scottish Government consultation is typically 12 weeks, that length of time may not always be necessary or appropriate, for example for an amendment to terminology that only affects a small number of stakeholders. Setting a minimum rather than a prescribed timescale will provide flexibility and mean the consultation can reflect the nature and significance of the amendment. It would allow decision makers to set a suitable timescale, relative to the significance of the amendment and take account of Parliamentary recess and other timeframes.

Question 4:

To what extent do you agree with the list of those the Scottish Ministers should consult with on a proposed amendment i.e. the public at large, key agencies and planning authorities?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Question 5:

To what extent do you agree that a copy of the proposed amendment should be laid in the Scottish Parliament during the consultation period?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Question 6:

To what extent do you agree with the proposed minimum 6 week consultation period, understanding that the timescale may be extended when deemed appropriate given the significance and nature of the amendment?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Consideration of comments and representations

39. We propose that the regulations will require the Scottish Ministers to have regard to any representations about the proposed amendment that are made to them by the end of the consultation period.

40. The full procedure for reviewing the NPF includes the laying of an explanatory document that sets out the consultation that has taken place, a summary of representations received in relation to the consultation, and the changes made as a result of the representations. This supported transparency and understanding in the development and approval/adoption of NPF4, and we consider that there is benefit in carrying out a similar procedure whenever amending the NPF.

41. We therefore propose that an Explanatory Report is required to be published and this will set out:

• a summary of any representations received; and
• the changes (if any) made to the draft of the amended framework as a result of those representations.

Question 7:

To what extent do you agree that the Scottish Ministers be required to publish an Explanatory Report before the amended NPF is adopted?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Parliamentary approval

42. A full review of the NPF cannot be adopted by the Scottish Ministers until it has been approved by a resolution of the Scottish Parliament. Whilst this is a further procedure after the end of the consultation process, we consider that in the interests of consistency and transparency, providing Parliamentary oversight on any changes to this part of the statutory development plan would be appropriate. We therefore propose for amendments to the NPF to also have to be approved by a resolution of the Scottish Parliament.

Question 8:

To what extent do you agree that all amendments to the NPF should have to be approved by a resolution of the Scottish Parliament?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Taking effect

43. When the NPF is reviewed in full, the NPF as amended takes effect once it has been adopted by the Scottish Ministers (section 3CA(1)). We propose the same for when there is an amendment to the NPF: that it takes effect once it has been adopted by the Scottish Ministers.

Question 9:

To what extent do you agree that the amended NPF should take effect when it has been adopted by Scottish Ministers?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Publication

44. When the NPF is reviewed in full, the NPF as amended is to be published as soon as practicable after it has been adopted by the Scottish Ministers (section 3CA(7)). We propose the same for when there is an amendment to the NPF: that it be published as soon as practicable following adoption by Scottish Ministers. We also propose for the publication requirement to relate to the full updated version of the NPF with the amendment incorporated.

Question 10:

To what extent do you agree that the full updated version of the amended NPF, incorporating the amendment, should be published as soon as practicable after it has been adopted by Scottish Ministers?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.