Proposed changes to pre-application consultation requirements: consultation

The Proposals

17. The specific proposed changes to secondary legislation (i.e. regulations) on PAC are:

• To require information about the proposal to be available both in hard copy and electronic (online) versions;
• An additional public event (i.e. a required minimum of two public events);
• Requirements on the content of PAC reports; and
• Exemption from PAC for applications in certain circumstances.

18. A draft of the regulations making these amendments is at Annex A.

Provision of Information

19. Under the DM regulations, the PAC newspaper notice is required to include "details as to where further information may be obtained concerning the proposed development". This is understood to mean a physical location and format. As part of the miscellaneous temporary provisions brought in during the COVID-19 emergency^[9], the option to provide this information by electronic means was introduced. These provisions will expire when Part 1 of the Coronavirus (Scotland) Act 2020^[10] expires; the Act can if necessary be extended up to 30 September 2021, but must be reviewed every 2 months.

20. The proposal is that the DM regulations should be amended to make this provision of information to be by electronic means and in hard copy, i.e. members of the public would have the choice how they wish to access it. Draft regulation 6(b) makes the necessary amendment. Draft regulation 7 relates to accommodating any COVID-19 related arrangement in this regard.

Q1. Do you agree with the proposal to require the PAC information, which is to be made available to the public, to be available both by electronic means and in 'hard copy' format?

Yes No No view

Please comment on your answer (particularly if you do not agree).

Comments

Additional Public Event

Digital Options

21. During the COVID-19 emergency the requirement for a public event has been suspended temporarily. Guidance indicated that digital / online alternatives should be used instead. We have not as yet had an opportunity to evaluate how well such alternatives have operated during the COVID-19 emergency.

22. At this stage, therefore, we are considering a second public event as a physical event. We will consider including in guidance suggestions as to using online approaches to engagement and live events as a complement to the new statutory requirements.

23. It would be useful therefore to have any feedback from the public, prospective applicants and consultants and any other stakeholders who have been involved in online public events for PAC. An indication of levels of engagement and of the experience of engaging online would be helpful, as well as an indication of approaches that worked particularly well, and those that did not.

Q2. Please give us details of your experience using online alternatives to public events during the COVID-19 emergency.

Comments

24. Draft Regulation 6(a) contains the requirement for two public event as a minimum statutory requirement for PAC. As in the pre-COVID-19 circumstances, this would be a physical event. The intention is that this second (or final) event is to occur later in the PAC process and to provide feedback to the public on the views received during the earlier stages of PAC – draft regulation 6(f).

25. Any further views raised at that second (or final) event would be responded to through the finalised application and related PAC report.

26. Draft regulation 6(f) specifies a minimum of seven days between the first public event and the final one (at which feedback is required to be given). This is not to suggest a 'norm', but to avoid the first and final public events on, for example, consecutive days, merely to 'tick the box'. Draft Regulation 6(a) also means a further newspaper notice must be issued for the second, statutory public event. That second notice is also to include similar details to the first notice regarding the proposal and PAC - draft regulation 6(f).

27. Any further considerations around holding public events or additional publicity in addition to the existing and proposed legal requirements would be a matter for guidance – see the later question on guidance.

Q.3 Do you agree with the proposal to make a second physical public event a minimum requirement of PAC?

Yes No No view

Please comment on your answer (particularly if you do not agree).

Comments

Q4. Do you agree that a second physical public event required as part of PAC must include feedback to the public on their earlier engagement in PAC?

Yes No No view

Please comment on your answer (particularly if you do not agree).

Comments

Q5. Do you agree with the proposed minimum time period between the required public events in PAC?

Yes No No view

Please comment on your answer (particularly if you do not agree).

Comments

Q6. Do you agree with the proposed requirement for an additional newspaper notice for the second required public event?

Yes No No view

Please comment on your answer (particularly if you do not agree).

Comments

The Prescribed Content of Pre-application Consultation Reports

28. Currently the content of PAC reports is covered by guidance (Circular 3/2013 Development Management Procedures^[11], paragraphs 2.6 to 2.41). In order to improve consistency and transparency of such reports, the intention is to specify requirements on content in the regulations. Section 35C(1) already requires the report to say what has been done to comply with PAC requirements.

29. The proposed additional requirements (specific wording in draft regulation 8 – introducing a new regulation 7B) are:

(a) the dates on which and places where public events were held,

(b) a description of any additional steps taken by the prospective applicant to consult with members of the public as regards the proposed development,

(c) a list of bodies, groups and organisations who were consulted by the prospective applicant,

(d) evidence of the prospective applicant carrying out the activities described under sub-paragraphs (a), (b) and (c),

(e) copies of—
(i) any materials sent to consultees,
(ii) any materials provided to those attending a public event, and
(iii) any visual presentation shown or displayed at a public event,

(f) photographs of any display boards or models at public events,

(g) confirmation as to whether consultees and attendees at public events were informed that pre-application consultation does not remove the right or the potential need to comment on the final application once it is made to the planning authority,
(i) a summary of—
(i) the written responses to consultations, and
(ii) views raised at public events,

(j) an explanation of how the prospective applicant took account of views raised during the pre-application consultation process, and

(k) an explanation of how members of the public were given feedback on the prospective applicant's consideration of the views raised during the pre-application consultation process.

30. Guidance could elaborate on some of these requirements, for example, some of the considerations that should be covered when explaining their response to the points raised, such as practical, commercial or design considerations. See the general question below on the content of guidance.

Q7. Do you agree with the proposed list of required content for PAC reports?

Yes No No view

Please comment on your answer (particularly if you do not agree).

Comments

Exemptions from Pre-application Consultation Requirements

31. As indicated above, there may be reasons why an applicant will wish to make a second application for the same or an amended version of the same basic proposal that was the subject of PAC and an application. This, for example, may be: to address grounds for refusal, or potential refusal where an earlier application is withdrawn; where permission is granted, but for practical reasons permission for an amended proposal is needed; or where an applicant may want to make two applications with different versions of the same basic proposal (note that different planning permissions can be in effect at the same time for the same land, and the landowner can choose which one to implement).

32. In such cases it is likely a prospective applicant would be considering only a limited range of changes to the previously finalised proposal, if indeed any changes are proposed. It would seem excessive therefore to require a second application in certain situations to be the subject of the PAC process again before it can be made. The current powers (in section 39 of The Town and Country Planning (Scotland) Act 1997^[12]), for planning authorities to decline to determine repeat applications will continue to apply.

33. In terms of defining the cases where a PAC exemption would apply, the proposals cover five elements:

• Who is making the application;
• The circumstances in which a second application is being made;
• The relationship between the development in the earlier application and that in the second application;
• The relationship between the development in the second application and the proposal described in the proposal of application notice submitted for the earlier application; and
• A time limit on the period within which an exemption would apply.

34. Draft regulation 4, introducing new regulation 4A, specifies the various criteria, which are discussed in the following paragraphs. All of the criteria in these five elements would need to be met to qualify for exemption from PAC.

35. Section 35A of the Town and Country Planning (Scotland) Act 1997 contains a screening process whereby a prospective applicant can obtain the planning authority's view prior to making an application on whether PAC requirements apply. With the addition of circumstances in which exemptions apply, additional information will need to be submitted when applying for such a view with reference to whether an exemption applies. See draft regulation 5.

Who is making the application for which PAC exemption is sought?

36. The current requirement is that the party who makes an application to which PAC applies must be the same party who carried out the related PAC. The intention is that PAC exemption for a second application would apply only to the applicant who made the earlier application (and so also conducted the PAC).

Q8. Do you agree with the PAC exemption being limited to the same applicant who made the earlier application?

Yes No No view

Please comment on your answer (particularly if you do not agree).

Comments

The circumstances in which a second application is being made

37. New regulation 4A only rules out an exemption where the planning authority has refused to deal with (declined to determine) the earlier application under section 39 of the Town and Country Planning (Scotland) Act 1997^[13]. The planning authority is required to decline to determine an application where there is a failure to comply with PAC requirements. Section 39 also provides powers for planning authorities, in certain circumstances, to decline to determine a similar application to one previously refused permission, where there has been no significant change in the basis for making a decision on the proposal.

38. This means that the earlier application could have been withdrawn, granted or refused permission, appealed, called-in by Scottish Ministers for determination, or still be before the planning authority, and a second application could qualify for exemption from PAC.

Q9. Do you agree with the circumstances regarding an earlier application (withdrawn, refused etc.) in which a second application would be able to get exemption from PAC?

Yes No No view

Please comment on your answer (particularly if you do not agree).

Comments

The relationship between the development in the earlier application and that in the second application

39. Clearly there has to be some link between the proposal in the earlier application and that in the second application in order to justify an exemption from PAC. However, the idea of defining specific aspects of a development and the extent to which they can change across the full range of development types is not practical.

40. We have therefore considered existing definitions in planning legislation that try to capture the situation where proposals are basically the same but could differ in some of the detail.

41. Linking it to the description in the proposal of application notice for the PAC on the earlier application may be too vague on its own. In order to accommodate changes to proposals arising from the PAC itself, the description in the PAN may be quite broad.

42. The proposal is therefore to use the concept in the Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 2004^[14] (Regulations 7(a) and 8(c)), which relates to where a second application is exempt from a fee).

43. The proposal in the second application must be for 'development of the same character or description as development to which an earlier application relates and to no other development' and where 'the application relates to the same site as that to which the earlier application related, or to part of that site, and to no other land except land included solely for the purpose of providing a different means of access to the site' (that is both criteria need to be met).

44. This description of the proposal is to allow for some changes to be made but that the development proposal is basically the same.

Q10. Do you agree with the approach to linking the description of the proposal in the earlier application and that in the second application for the purposes of a PAC exemption?

Yes No No view

Please comment on your answer (particularly if you do not agree).

Comments

The relationship to the proposal of application notice (PAN)

45. We also consider it appropriate that both applications should fall within the scope of what was considered at PAC. So, the proposals in both applications must also be within the scope of the description of development contained in the PAN for the PAC for the earlier application.

Q11. Do you agree that the exemption from PAC should be linked to the content of the PAN served in relation to PAC for the earlier application?

Yes No No view

Please comment on your answer (particularly if you do not agree).

Comments

A time limit on the period within which an exemption would apply

46. Given we are introducing a time limit on making an application to which PAC requirements apply (see paragraphs 48 to 49 below), we propose that any exemption from PAC for a second application be time limited – that is, it cannot be divorced in time too much from the PAC on the earlier application).

47. Such a time limit would need to allow for processing of the earlier application. Linking it to, for example, the decision or date of withdrawal leaves it very open. We propose allowing an exemption from PAC for a second application up to 18 months from the date the earlier application was made to the planning authority, i.e. from the validation date (regulation 14 of the DM Regulations^[15]). See draft regulation 4, introducing new regulation 4A(1)(e).

Q12. Do you agree with the proposed time limit on exemptions from PAC?

Yes No No view

Please comment on your answer (particularly if you do not agree).

Comments