Planning - permitted development rights review - phase 2: consultation

Annex B: Partial Business and Regulatory Impact Assessment

Purpose and intended effect Permitted development rights (PDR) refer to those forms of development which are granted planning permission through national legislation, meaning they can be carried out without a planning application having to be submitted to (and approved by) the local authority. Specifically, PDR are contained within the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 ("the GPDO"). The Scottish Government is currently undertaking a review of PDR in Scotland. This review involves taking forward new and extended PDR for a wide range of development types. Through Phase 2 of the programme, we are considering how changes to PDR, as well as the Town and Country Planning (Use Classes) (Scotland) Order 1997 (UCO)^[35], could help to support:

• The rollout of electric vehicle (EV) charging infrastructure.
• The resilience and recovery of city, town and local centres.
• Operational development at Scottish ports

The measures proposed as part of Phase 2 would:

• Increase the scale of EV chargers that may be installed under PDR, broaden the locations where PDR apply and extend the scope of the PDR to include associated apparatus and equipment.
• Provide greater flexibility to change the use of certain buildings and place furniture outside premises.
• Align port operators' PDR with those of airports.

The proposals have been informed by a sustainability appraisal incorporating Strategic Environmental Assessment (SEA) requirements, which was subject to public consultation in November 2019. The Phase 2 proposals are accompanied by an update to the sustainability appraisal and draft SEA Post Adoption Statement. By removing the need to seek planning permission before carrying out specified forms of development, PDR and the UCO can help to provide greater certainty for applicants and save time and money associated with preparing a planning application. In doing so, this can help to promote wider Scottish Government objectives – including those related to EV charging, centres and ports.

Consultation

Within Government

The proposals have been informed by targeted engagement with Transport Scotland, Historic Environment Scotland (HES), National Parks, NatureScot and the Scottish Environment Protection Agency (SEPA). Discussions were also held with representatives from the Scottish Futures Trust, Heads of Planning Scotland (HOPS), the Society of Chief Officers of Transport in Scotland (SCOTS), COSLA, the Law Society of Scotland, Scottish Property Federation, Scottish Grocers Federation and the UK Major Ports Group (UKMPG).

Public Consultation

In November 2019 we consulted on a proposed work programme for reviewing and extending PDR in Scotland along with a Sustainability Appraisal. This included early versions of proposals for extending PDR in relation to existing PDR for EV charging infrastructure and changes of use in centres. The ports proposals did not form part of the original PDR work programme; the Sustainability Appraisal has been updated to reflect this and other changes to the draft proposals since the original appraisal. The update accompanies the Phase 2 consultation.

The Phase 2 consultation will run for three months, during which the public will be able to comment on the proposals.

Business

Some initial engagement has been undertaken with businesses in advance of public consultation. Further engagement will be undertaken during the consultation period to help inform our final proposals for change.

Options

Option 1 - Do Nothing

No changes to current PDR or the UCO. Unless development is covered by PDR (or not development by virtue of the UCO), an application for planning permission would continue to be required.

Option 2 – Measures set out in Phase 2 consultation

Through the Phase 2 consultation, views are sought on the following potential measures:

• EV Charging Infrastructure
  • Removing the restriction in specified areas for upstands and wall mounted charging points in off-street parking areas.
  • Increasing the height limit for EV charging upstands in off street parking areas.
  • Extending PDR to cover solar canopies, equipment housing and battery storage related to EV charging upstands in off-street parking areas.
  • Introducing PDR for the conversion of existing petrol filling stations to EV charging hubs.
  • Introducing PDR for on-street EV charging infrastructure.
  • Updating local authority PDR to reflect emerging delivery models for EV charging infrastructure which might involve private sector.
• Centres
  • Merging various use classes, thereby providing greater flexibility to change the use of buildings without planning permission being required.
  • Introducing PDR to allow the conversion of buildings in specified use to workspace.
  • Introducing PDR for furniture to be placed outside specified premises serving food and drink.
• Port Development
  • Aligning port operators' PDR with those of airports to ensure a level playing field between English and Scottish ports, with respect to PDR.

Sectors and groups affected

The measures would, if taken forward, grant planning permission for specified forms of development (or provide that specified changes of use are not development for planning purposes). The effect is to allow relevant development to be carried out without a planning application needing to be submitted to and approved by the local authority. Key parties affected are:

• Developers, operators and landowners able to carry out development without preparing a planning application;
• Planning authorities no longer having to handle and determine planning applications for relevant development types; and
• Members of the public potentially affected by developments carried out under PDR (impacts, whether positive or negative, will depend on the nature of development).

Benefits

Granting planning permission through new or extended PDR (or providing that changes of use do not constitute development through UCO amendments) can help to provide greater certainty for developers. Such measures can avoid developers having to go to the time and expense of submitting a planning application. Financial savings (per development) will be associated with the lack of an application fee and the costs of preparing associated documentation, drawings and reports. Other than application fees (which are set by national legislation), these costs are very development- and context-specific and so cannot be robustly quantified. As of 1 April 2022^[36], fees for the following types of development are:

• Change of use of building (other than to residential use): £600 per 100sqm of floorspace for first 4,000sqm; thereafter £300 per 100sqm up to maximum of £150,000
• Erection, alteration or replacement of plant or machinery: £500 per 0.1ha of site area for first 5ha, thereafter £250 per 0.1ha up to maximum of £150,000
• Construction of buildings and structures: £600 per 100sqm of floorspace for first 4,000sqm; thereafter £300 per 100sqm up to maximum of £150,000 ^[37]

In addition to savings linked to lack of planning application fee and cost of preparing planning application documents, there would be savings associated with the time taken to obtain planning permission. Notwithstanding time preparing application materials, planning performance statistics indicate that in 2020-21 the average time taken to determine applications for local non- householder development was 12.4 weeks. Although we do not have the evidence to quantify time based savings, the planning application statistics indicate they could be substantial.

The overall extent of savings to business will ultimately depend on how many developments come forward under PDR (or UCO provisions) that would previously have been subject to a planning application. This is difficult to forecast, not least because planning application data held centrally is not broken down with sufficient 'granularity' to indicate how many applications there have previously been for the types of development for which PDR/UCO measures are being considered.

By removing more development proposals from the planning application process, the Phase 2 measures under consideration will also reduce administrative burdens on planning authorities – allowing them to focus resources elsewhere, including the determination of major planning applications.

The proposed measures are intended to, amongst other things:

• Encourage the rollout of EV charging infrastructure, in doing so helping to reduce vehicle emissions and tackle climate change.
• Promote the resilience, regeneration and recovery of city, town and local centres.
• Support operational development at ports.

To this extent, there will be benefits to the general public – particularly EV users and those who live in, work in or visit centres.

Costs

The proposed changes would result in savings for both applicants (who would no longer have to pay to prepare applications for planning permission) and planning authorities (who would no longer have to determine said applications). However, initially, savings may be partially offset by some indirect costs to business in ascertaining whether or not development proposals are covered by PDR, and in complying with planning enforcement were any work inadvertently carried out which subsequently transpires not to benefit from PDR. However, such costs are anticipated to be minimal and short-term and will naturally dissipate as parties become familiar with the changes.

The non-financial costs associated with projects carried out under PDR or UCO would depend on the specific nature and characteristics of the works (e.g. changes of use) that come forward. There could be localised impacts on amenity (e.g. visual appearance, noise, odours). The Phase 2 consultation seeks views on the extent of such impacts, and whether they could be controlled through either non-planning regimes (e.g. environmental health, consenting under Roads legislation) or conditions/limitations placed on any new or amended PDR.

Scottish Firms Impact Test

We have had some initial engagement with firms/ organisations about our proposals; further discussions will take place during the consultation period.

Competition Assessment

We do not consider that the proposed Phase 2 measures would negatively impact on competition. It is considered that the measures would not limit the number or range of suppliers, the ability of suppliers to compete, suppliers' incentives to compete or the choices and information available to consumers.

Consumer Assessment

We do not consider that the proposed Phase 2 measures would negatively impact on consumers. It is considered that the measures would not affect the quality, availability or price of any goods or services in a market, affect the essential services market, such as energy or water, involve storage or increased use of consumer data, increase opportunities for unscrupulous suppliers to target consumers, impact the information available to consumers on either goods or services or their rights in relation to these, or affect routes for consumers to seek advice or raise complaints on consumer issues.

Test run of business forms

No new forms to be introduced.

Digital Impact Test

It is considered that the proposed measures would not be impacted by changes to processes brought about by digital transformation. Regulation of the technology used in the developments is not a matter for planning.

Legal Aid Impact Test

It is considered that the proposed changes will not give rise to increased use of legal processes or create new rights or responsibilities which would impact on the legal aid fund.

Enforcement, sanctions and monitoring

Planning authorities have a range of enforcement tools to deal with breaches of planning control. See Planning Circular 10/2009 for further information.

Summary andrecommendation

Summary costs and benefits table

Option		Total benefit per annum	Total cost per annum
Option 1 – Do Nothing		Current situation is maintained which is understood by applicants, authorities and third parties.	Applications would continue to be required for relevant development types, with associated costs and timescales. Not progressing the Phase 2 measures could potentially slow the rollout of EV charging infrastructure, the recovery of our centres and high streets and port development.
Option 2 – Measures set out in Phase 2 consultation	EV Charging Infrastructure	New/extended PDR would reduce need for planning applications, leading to financial and time savings for applicants. However, we do not have data indicating how many planning applications the proposed measures would remove from the system or how many developments would be progressed as a result. Changes under consideration would support roll-out of EV charging infrastructure, helping to reduce vehicle emissions and tackle climate change. Fewer applications would reduce burdens on planning authorities.	There could be localised amenity impacts, particularly as a result of visual effects of infrastructure located in designated areas (e.g. National Scenic Areas, conservation areas) where PDR are currently restricted. Article 4 directions could be used to address this. On-street chargers have potential to create obstructions which could adversely affect particular groups. Consultation seeks views on whether such impacts can be adequately controlled through separate consenting under Roads legislation and/or conditions attached to any new PDR.
	Changes of Use in Centres	New PDR and/or changes to the UCO would reduce need for planning applications, leading to financial and time savings for applicants. However, we do not have data indicating how many planning applications the proposed measures would remove from the system or how many developments would be progressed as a result. The enhanced flexibility provided by the measures could help businesses to diversify and respond more rapidly to changing circumstances, community needs and customer demands. To that extent, proposals may help to support the resilience and recovery of centres, and promote the establishment of 20-minute neighbourhoods. Thriving centres (and the ability of people to readily access local facilities and services) are associated with a range of social, economic and environmental benefits. Fewer applications would reduce burdens on planning authorities.	In the case of UCO changes under consideration, there could be localised amenity impacts where changes of use can take place outwith planning (by virtue of not being development). Consultation seeks views on whether non-planning regimes (e.g. environmental health) provide adequate control. Proposed UCO measures could potentially see a loss of certain uses (e.g. retail) in particular locations, leading to localised clustering rather than a diverse mix of uses. Furniture located on pavements outside food and drink premises have the potential to create obstructions which could adversely affect particular groups. Consultation seeks views on whether such impacts can be adequately controlled through separate consenting under Roads legislation and/or conditions attached to any new PDR.
	Port Development	We do not have data indicating how many planning applications the proposed measures would remove from the system or how many developments would be progressed as a result. Consultation seeks views on this point. Alignment of port and airport PDR would ensure a level playing field between Scottish and English ports with respect to ports, helping to attract and retain investment. Fewer applications would reduce burdens on planning authorities.	Potential localised amenity impacts; these are expected to be limited as port and airport PDR are already very similar. Consultation seeks further views on this point.

Declaration and publication

I have read the Business and Regulatory Impact Assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. I am satisfied that business impact will be assessed with the support of businesses in Scotland.

Signed: Tom Arthur Date: 21 April 2022

Minister's name: Tom Arthur MSP

Minister's title: Minister for Public Finance, Planning and Community Wealth

Scottish Government Contact point: Tom Winter, Planning and Architecture Division