Proposed changes to pre-application consultation requirements: consultation

Introduction

1. This consultation paper relates to proposed changes to the existing requirements for pre-application consultation (PAC) with local communities on applications for planning permission for national and major developments. These requirements were introduced in 2009, as part of the implementation of the Planning etc. (Scotland) Act 2006.

2. The proposed changes to PAC are the first part of a wider package of measures on improving community engagement in planning matters and building public trust. The proposals for changes to PAC come from, in part, the report by the independent panel assigned to review the Scottish Planning system: 'Empowering Planning to Deliver Great Places'^[1] (May 2016). The report referred to concerns that PAC can be a 'tick box' exercise and that there was a lack of feedback to communities on their views in the pre-application phase – i.e. prior to the finalised application being made. The report recommended an additional public event to allow for greater discussion of proposals. Subsequent consultation indicated a need for clarity and transparency around the process.

3. In addition, since the inception of PAC, there have been concerns about PAC requiring to be repeated in situations where a PAC has been conducted previously and an application made, and then the developer seeks to make a subsequent application for the same, basic development. The Planning (Scotland) Act 2019^[2], which was developed as part of the response to the review mentioned above, includes new powers to specify exemptions from PAC requirements.

Background

4. PAC is a statutory requirement in relation to applications for planning permission for national and major developments – i.e. large scale development as opposed to local developments (the third level of the planning hierarchy^[3]). The aim is that local communities are made aware of proposals at an early stage, and have the opportunity to comment to the prospective applicant before the proposal is finalised and an application for planning permission is made.

5. PAC can increase the likelihood of a local community's views being taken on-board, as the ability to amend proposals to accommodate concerns is more limited once in the application process. With increased guidance and awareness of the importance of engaging communities effectively in decisions about land, it may be possible to take a more cooperative approach to proposals. It is, however, up to the applicant to decide, having considered the outcome of PAC, what their detailed proposal for application should be.

6. Once the application is made to the planning authority, the various planning application consultation and publicity requirements will apply^[4], and anyone can make comment to the planning authority on the proposal, whether positive or negative. Indeed, it is important that they do so at this stage, as the proposal may have altered as a result of PAC and other pre-application discussions, and the planning authority will be considering the finalised proposal in the application, and comments submitted to them on that. The planning authority is required to give due consideration to any relevant planning issues (material considerations) when deciding whether to grant planning permission or not.

Current PAC Requirements

7. The requirement for PAC to be undertaken is contained in sections 35A, 35B and 35C of the Town and Country Planning (Scotland) Act 1997^[5], as amended. The detailed requirements are set out in the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013^[6] (the DM Regulations).

8. The basic PAC requirements are currently that the prospective applicant must:

• Serve a proposal of application notice (PAN) on the planning authority describing the proposal and location and indicating what consultation they intend carrying out as part of PAC.
• Consult the community councils in whose area the proposal site is located or whose area adjoins the proposal site;
• Hold a public event^[7].
• Publish a notice in a local newspaper indicating: where information on the proposal can be obtained; how to make views known to the prospective applicant; and the details of the public event (the notice must be published at least 7 days prior to the public event).
• Carry out any further PAC measures required by the planning authority (the authority has 21 days from the receipt of the PAN to make such requirements).

9. The planning application to which PAC relates cannot be submitted until at least 12 weeks have passed since the PAN was served on the planning authority. When an application is submitted, it must be accompanied by a report on the PAC. Currently the content of such reports is the subject of guidance rather than statutory requirement.

10. There is currently no maximum time limit for the application for which PAC relates to be submitted. Provision in the Planning (Scotland) Act 2019^[8] introduces an 18 month time limit for making an application to which PAC applies, from when the PAN is served on the planning authority. This is intended to ensure that the views given during PAC are still relevant when the application is made. We intend to bring this time limit into force at the same time as the changes to PAC requirements proposed in this paper (with appropriate transitional arrangements, see paragraphs 48 to 50).

Objective

11. The intention is to address the concerns about a lack of feedback to local communities engaging in PAC and seek to make the process more consistent and transparent when it comes to reporting on PAC. The focus in these regards being on the public events held by the prospective applicant and content of the PAC report.

12. We are also proposing that information on the proposal should be available in hard copy and by electronic means (online). Such electronic availability of information was introduced as an option as part of the COVID-19 emergency arrangements. In considering the Equality and Child Rights and Wellbeing Impact Assessment, the information on internet use suggested it would be appropriate to have more information provided in that way. See paragraphs 21 to 23 below regarding online public events.

13. We are also proposing potential exemptions from PAC requirements in certain cases. Since the inception of PAC, there have been some concerns about situations where a PAC has been conducted and an application made, and the developer seeks to make a subsequent application for essentially the same development. It has been suggested that it can be excessive for PAC to be required again for such an application, when the changes or options for change being considered may be very limited.

14. There is a cost to applicants in terms of time and resources, in going through PAC again, which would be increased with some of the other proposals in this package.

15. PAC in such cases may also unduly raise expectations in communities as to what the prospective applicant is willing to consider by way of changes to a proposal. This in turn might lead to a degree of consultation fatigue or frustration: consultation at PAC; then on the earlier application; then on another PAC (where the changes, if any, for discussion may be limited); and then consultation on the second application.

16. The objective is therefore to improve the PAC process, make it clearer and provide more information on and opportunities for feedback, whilst ensuring that the PAC requirements are proportionate. This is part of the overall package of measures on community engagement, which will include guidance as well as other legislative changes.