Permitted Development Rights review - phase 2: consultation analysis

Executive Summary

Introduction

The Scottish Government is carrying out a review of Permitted Development Rights (PDR) as part of a wider programme of planning reform. PDR refer to forms of development that are granted planning permission through national legislation, meaning they can be carried out without an application for planning permission having to be submitted to, and approved by, the relevant planning authority.

This report presents analysis of responses to a public consultation on proposals relating to:

• Electric vehicle (EV) charging infrastructure
• Changes of use in centres and other locations
• Port development

The consultation opened on 11 May 2022 and closed on 3 August 2022. The consultation documents are available on the Scottish Government's consultation website.

In total 95 responses were received, of which 72 were from groups or organisations and 23 from individual members of the public.

Electric Vehicle Charging Infrastructure

Proposed Changes to Class 9E: Wall-Mounted EV Chargers (Off-street Parking Areas)

A majority of respondents – 65% of those answering the question – agreed with the removal of restrictions on Class 9E PDR, for wall-mounted EV charging outlets, in the specified areas currently listed in Class 9E(3).

Some of those commenting agreed that greater flexibility in planning regulations around development of EV charging infrastructure will make an important contribution to meeting Scottish Government climate targets, noting the potential for a simplified planning process to encouraging more EV adoption. Respondents referred to the relatively small scale of EV charging infrastructure and suggested that it is unlikely to have a significant amenity impact.

Other respondents raised concerns about the potential for the removal of restrictions to have a detrimental impact on protected areas. There were particular concerns about smaller scale areas of historic or cultural importance such as conservation areas, World Heritage Sites and sites of archaeological interest.

A number of respondents who felt that the proposed expansion of PDR goes too far suggested locations or circumstances where PDR should be restricted. Reference was made to retaining restrictions for conservation areas, World Heritage Sites, historic sites, sites of archaeological interest, and designed landscapes.

A majority of respondents – 61% of those answering the question – did not think the conditions regarding nameplates should be withdrawn from Class 9E on wall-mounted EV charging outlets.

A number of those raising concerns around removal of conditions wished to see current restrictions on the size, siting and illumination of nameplates retained.

Proposed Changes to Class 9F: EV Charging Upstands (Off-street Parking Areas)

A small majority of respondents – 55% of those answering the question – agreed with the removal of current restrictions on Class 9F PDR for EV charging upstands in the specified areas currently listed in Class 9F(3).

Some of those expressing support for the removal of restrictions on Class 9F referred to the role of EV in delivering against climate targets, and the projected increase in need for charging infrastructure referenced in the consultation paper. Those raising concerns most commonly linked this to the potential for EV upstands to have a detrimental impact on particularly sensitive areas.

A majority of respondents – 63% of those answering the question – did not agree that the conditions regarding nameplates should be withdrawn from Class 9F on EV charging upstands.

Concerns were most commonly linked to the potential visual impact of nameplates, including the potential for larger and/or illuminated nameplates.

A majority of respondents – 65% of those answering the question – agreed with the proposed increase in height allowable for EV charging upstands under Class 9F PDR.

Reasons given for supporting the proposed increase in height allowance included the importance of faster roll-out of charging points to support climate targets and the need to facilitate the development of higher powered chargers (HPCs).

Concerns about an increased height allowance for charging upstands included that such a change would potentially add to the impact on particularly sensitive locations, such as conservation areas.

Solar canopies and battery storage

A majority of respondents – 69% of those answering the question – agreed with the proposal to introduce PDR for solar canopies and related battery storage and equipment housing for EV charging upstands in off-street parking areas.

Some of those supporting the proposed PDR commented on the value of enabling greater use of renewable energy for EV charging. Reference was also made to the potential for solar canopies to offer opportunities for additional benefits.

Some respondents, including a number of 'planning authority' respondents, raised concerns about the potential visual impact of new PDR for solar panels and associated equipment. The most frequently-raised concern related to the visual impact of the proposed 4 metre height allowance for solar canopies. Respondents – including some otherwise in favour of the proposals – referred to the impact of canopies with a large surface area and the potential cumulative visual impact of multiple solar canopies in close proximity.

A majority of respondents – 72% of those answering the question – agreed with the proposal to introduce PDR for equipment housing for EV charging upstands in off-street areas where solar canopies are not provided.

Reasons given for supporting a new PDR included that the proposed restrictions on the size and location of EV upstands, and especially the proposed list of designated areas where PDR would not apply, would mitigate the potential impact of PDR for equipment housing.

Consistent with views on PDR for equipment associated with solar canopies, concerns raised around the proposed new PDR for equipment housing were focused on the impacts, and particularly on the potential visual impacts, of such development.

A majority of respondents – 78% of those answering the question – agreed with the list of areas within which new PDR for such solar canopies and related battery storage and equipment housing should not apply.

Many of those commenting noted their agreement that the proposed PDR could have a negative impact on the listed areas. This included a view that development allowed under the new PDR could be relatively large and visually imposing. There was a view that the development of EV charging infrastructure should be supported but that there should be a more detailed planning authority assessment to mitigate negative impacts on sensitive environments.

Some of those raising concerns around the potential impact of development under the new PDR identified other locations which were considered inappropriate for PDR. These included in the setting of listed buildings and their curtilage or, specifically, category A listed buildings.

A majority of respondents – 70% of those answering the question – agreed with the suggested height limit of 4 metres on PDR for solar canopies for EV charging upstands in off-street parking areas.

Reasons given for supporting the proposed 4 metre height limit on solar canopies included that it strikes the right balance between supporting use of renewable energy in the rollout of EV charging infrastructure and mitigating any amenity impacts. However, a number of respondents, including some 'planning authority' respondents, suggested that the proposed height restriction is too high and would still allow development of substantial structures with the potential for significant visual impact. In contrast, a small number of 'private sector - energy and transport' respondents suggested that a height limit of 4 metres may not be sufficient to accommodate taller EVs. They proposed height limits of 5-6 metres to ensure that all vehicles can access charging upstands.

A substantial majority of respondents – 82% of those answering the question – agreed that any new PDR for solar canopies, battery storage and equipment housing for EV charging upstands in off-street parking areas should not apply within 5 metres of a road and 10 metres of the curtilage of a dwelling.

Comments in support of the proposed restrictions included that they will be necessary for mitigating the impact of solar canopies, battery storage and equipment housing while also enabling the appropriate rollout of EV charging infrastructure.

In relation to limiting the PDR within 10 metres of the curtilage of a dwelling, it was suggested that this kind of development in close proximity to residential dwellings could have a significant adverse impact in terms of overshadowing and loss of amenity; there was a view that a 10 metre distance from the curtilage of a dwelling may not be sufficient in all circumstances. There were concerns raised about proximity to other buildings, such as hospitals.

However, some 'private sector – energy and transport' respondents described the proposed limits on PDR as overly restrictive and expressed concerns that they could constrain development of EV charging infrastructure unnecessarily.

On-street/Kerbside Charging

A majority of respondents – 68% of those answering the question – thought it would be helpful to amend Class 30 PDR for local authorities to make clear they apply to EV charging points and any associated infrastructure.

Issues raised by those supporting the amendment of the Class 30 PDR included that a clarification would be welcome and should help to minimise the potential for confusion, including because Class 30 does not currently include any explicit reference to EV charging.

Other respondents did not see any need for clarification of Class 30 PDR, with further comments including that the current Class 30 is clear in providing planning authorities with broad powers.

A majority of respondents – 74% of those answering the question – thought that local authority PDR do need to be amended to take account of emerging models for financing, delivering and operating EV charging infrastructure, and the changing nature of private sector involvement.

A frequently-made point was that amendments could enable planning authorities to work in partnership with third parties, including private providers. Those in favour of amending PDR highlighted potential benefits of allowing new forms of private sector involvement. These were primarily focused on the need for greater flexibility and agility in the rollout of charging infrastructure to encourage private investment and support more universal access, with particular reference to the anticipated future scale of need for EV charging.

Some respondents, among them some 'planning authority' respondents, did not think that amendments are required. Comments included that the existing PDR allows for works to be carried out by private developers on behalf of the local authority, and that joint arrangements between local authorities and partner bodies are commonly used across other forms of development.

A small majority of respondents – 53% of those answering the question – did not think PDR for EV charging infrastructure in roads should apply to parties other than local authorities.

A number of respondents gave reasons for why they did not think a PDR should apply to other parties. These included the risk of 'clutter' on roads and other public spaces. It was suggested that other PDR for in-road development have already caused issues in some locations, and there was reference to ongoing efforts by local authorities to improve the design, appearance and usability of town and city centres.

A substantial majority of respondents – 89% of those answering the question – thought that if PDR were to be introduced, it would need to be linked to some arrangement with local authorities or other form of authorisation.

Issues raised by those who agreed sometimes reflected concerns raised at the previous question in relation to 'clutter' and adverse impacts on the amenity, accessibility and safety of public streets. Reference was also made to a need for consistency in standards of in-road development.

Several suggestions were made for potential mechanisms to ensure appropriate authorisation or control of EV charging infrastructure development by third parties. These included authorisation or control managed through partnership or contractual agreements with third parties, or prior notification/prior approval, for example to address matters of visual amenity. The approach to telecommunications development was referenced as a potential model. Concerns about such approaches were also raised.

In terms of what conditions and limitations would need to be placed on any additional PDR for EV charging infrastructure in roads, restrictions on location were most commonly raised in relation to sensitive areas. Specific suggestions included the designated areas set out at Classes 9E and 9F, listed buildings and their curtilage, and the setting of these and of scheduled monuments.

A range of respondents called for restrictions to ensure that development does not hinder active travel by obstructing either footways or cycleways, with specific concerns raised with respect to maintaining safe access for older people, people with disabilities and people using buggies.

Respondents also suggested restrictions to limit the visual impact of EV charging infrastructure, including the dimensions or colour of charging equipment. Again, restrictions set out at Classes 9E and 9F were suggested as a model for restrictions on additional PDR.

In relation to issues to be considered if extending PDR for EV charging infrastructure in roads, a range of respondents highlighted the importance of the relationship between development of EV charging infrastructure and other infrastructure. Most comments referenced essential utilities such as electricity, water, gas and telecommunications, although links with other travel infrastructure such as cycle ways were also noted.

Respondents noted the potential for conflict between development of EV charging infrastructure and other utilities and infrastructure, including competing interests for available road space, both above and below ground. Some respondents highlighted the extensive PDR already in place for statutory undertakers.

Some respondents saw a need for a co-ordinating role, both to ensure that EV charging development under any additional PDR will not affect other infrastructure, and to minimise impacts and costs. There were concerns that requiring planning authorities to co-ordinate in-road development rights would add significant burden to the planning system and it was suggested that Roads Authorities would be suitable for this co-ordinating role.

Changes to Existing Petrol Stations

A substantial majority – 83% of those who answered the question agreed in principle with having PDR for changing existing petrol/diesel stations to EV charging only.

A range of respondents referred to specific benefits associated with delivering EV infrastructure through conversion of existing infrastructure, rather than 'new' development. This included suggestions that conversion to EV charging is likely to have little additional visual impact relative to existing petrol stations, and would represent continuation of an established vehicle refuelling land use on sites that are already in appropriate locations.

A small number of respondents took a view that conversion to EV charging is potentially a substantive change that should require planning permission, or that not all existing locations may be suitable for EV charging infrastructure.

In terms of what further specification of the conditions and limitations would be required, some respondents raised specific concerns regarding the proposed condition that there should be 'no changes to the access arrangements to the road, unless otherwise agreed with the planning authority'. How this would be controlled in the absence of a formal planning process was queried.

There were also concerns that stations may change only gradually from petrol and diesel to EV charging. This in turn raised issues about how PDR would relate to change to a hybrid station, and management of the implications of such change.

Changes of Use in Centres

Potential changes to the UCO

The Town Centre Review Group suggested that the Scottish Government should consider "the desirability of a revision perhaps to a more general Town Centre Use Class". However, as noted in the consultation paper, the UCO is not a spatial tool and therefore any changes would therefore apply in all locations, not just in centres.

A majority of respondents – 68% of those answering the question – considered that a merged use class would help to support the regeneration, resilience and recovery of Scotland's centres.

The most-frequently given reason for supporting the creation of a merged use class related to increasing flexibility and adaptability, including to help building owners manage their properties in a way that keeps them in use. It was suggested that the current UCO system is built on the idea that property uses remain largely static but that, with this no longer being the case, a merged class would allow landlords to respond to the market and adapt properties more swiftly, helping to ensure their continued viability.

Other respondents did not think a merged use class would support regeneration or have an overall and/or positive impact on town centres. It was suggested that obtaining planning permission for appropriate town centre uses such as Classes 1, 2 and 3 is generally fairly straightforward and unlikely to pose a significant obstacle to new occupiers. It was suggested that other issues, such as rent or rates levels, are likely a more significant consideration.

In terms of the key risks associated with a merged use class, the most-frequently identified issue centred on the potential amenity impacts associated with changes from commercial uses (such as retail) to cafes, takeaways or restaurants. A number of respondents noted possible issues that could arise in relation to a change to Class 3 food and drink use – particularly where such a change occurs in proximity to residential property. There were also concerns about the impact, particularly on residents, of planning authorities having less control over issues such as operating hours, noise levels, smell and parking.

A number of respondents identified loss of diversity, and the potential clustering of types of uses, as a potential risk associated with a merged use class. There were particular concerns about the loss of retail provision within certain locations, including to the detriment of residents.

There were also references to possible risks connected to a merged use class applying in all areas and not just in designated town and city centres and to how a merged use class could affect locally-driven, plan-led place-making. There were also concerns about whether non-planning controls are sufficient and/or appropriate to address the possible risks. The focus was often on the role of Environmental Health and the amenity-related risks discussed above, and that Environmental Health powers can only mitigate impacts and cannot address any concerns regarding the location.

Masterplan Consent Areas for centres

A substantial majority of respondents – 82% of those answering the question – agreed that Masterplan Consent Areas (MCAs) could be a useful tool to provide more extensive planning freedoms and flexibilities in Scotland's centres.

Respondents were most likely to comment that MCAs would bring flexibility, including because the approach could be targeted at areas where it would be effective, with MCAs offering the opportunity for a nuanced, place-specific approach to determining what is appropriate development in an area.

It was also suggested that the MCA would provide an important framework in which changes to UCO would sit and could avoid the blunt effect of implementing change nationally and having unintended consequences on areas where such changes are not required.

Those who did not agree that MCAs could be a useful tool included some who had agreed with the introduction of a merged use class. Their further comments included that the current proposal seems at odds with the intention behind MCAs.

PDR for provision of workspace

A majority of respondents – 79% of those answering the question – thought that a PDR providing for a change of use to Class 4 (business) would help to support the regeneration, resilience and recovery of centres – as well as the establishment of 20-minute neighbourhoods.

Some respondents commented that providing for a change of use to Class 4 would offer flexibility, including to reflect changing work patterns and the greater demand for more flexible office space.

While those supporting a PDR for change of use to Class 4 tended to think that, on balance, it would benefit town centres, others thought it would not. It was noted that the loss of the types of uses that attract visitors to town centres would have a harmful impact on vitality and vibrancy. There were particular concerns about the loss of active shopfronts.

If a PDR of this nature were taken forward, many of those who commented agreed with the consultation paper's reference to a PDR to change from uses in Class 1, 2 and 3 to a Class 4 use.

A substantial majority of respondents – 81% of those answering the question – thought that a 300 square metres would be an appropriate maximum floorspace limit. Comments included that a limit would prevent larger shops or other facilities being lost and protect dedicated office areas where large floor spaces are provided.

In terms of any additional conditions or limitations should such a PDR be subject to, the most-frequently made point was that consideration should be given to preventing the loss of shop frontages in order to protect the appearance of the street.

PDR for moveable outdoor furniture

A majority – 65% of those who answered the question – agreed with the proposed introduction of a PDR for moveable furniture placed on the road outside of (Class 3) food and drink premises.

Reasons given in favour of a PDR for mobile furniture included that it would increase vibrancy and aid the post-pandemic recovery of businesses in the hospitality sector.

Some respondents agreed in principle with a PDR for moveable furniture but suggested that controls would be required, for example that access and safety for people walking, wheeling and cycling must not be compromised. Other respondents argued that the provision should be extended beyond that being considered at present and should apply to bars and public houses.

Some respondents argued against a PDR for mobile furniture, taking a view that this should remain under planning control. It was argued that mobile furniture permitted by the proposed PDR will cause obstruction and concerns were raised with respect to access for older people, people with impaired mobility or vision, and for pedestrians and wheelers all referenced.

Specific issues were raised in relation to noise, and some respondents argued both that the temporary arrangements put in place during the pandemic should not be made permanent, and that a blanket PDR would be inappropriate for small towns and villages and for conservation areas.

A large majority – 85% of those who answered the question – thought that there should be conditions or limitations on a PDR for moveable furniture.

Respondents emphasised the need to ensure inclusive access is maintained. It was suggested an assessment of pedestrian and traffic safety impacts should be required or that an Equality Impact Assessment should be carried out. Other conditions that respondents thought should be applied to the proposed PDR included around hours of operation and the size and location of seating areas.

A majority of respondents – 67% of those who answered the question – did not think that there are any uses other than (Class 3) food and drink premises that a PDR for moveable furniture should apply to. Of those who did think such a PDR should apply to premises other than class 3, the most frequent suggestion was that it should apply to public houses (sui generis use) or to all licensed premises.

A majority – 77% of those who answered the question – thought that matters such as safety and inclusive access could continue be controlled through other regimes that would continue to apply. Some respondents argued that those matters are likely to be compromised without appropriate planning controls, or that it is not clear how other regimes can control these matters. However, the majority view was that controlling safety and access via other regimes is possible. While a small number of respondents pointed to licensing arrangements and/or Environmental Health regulation, many more referenced the Roads Authority or the Roads (Scotland) Act 1984 as providing such control.

PDR for provision of residential accommodation

A substantial majority of respondents – 91% of those answering the question – agreed that new residential development in Scotland's centres should be plan-led rather than consented through new PDR.

A number of those who supported a plan-led approach simply noted that they agreed with the explanation set out in the consultation paper. Further comments included that planning control is essential, with a plan-led approach allowing development to be located in the best areas, supporting the creation of 20-minute neighbourhoods, and allowing potential use conflicts to be addressed at an early stage. Other advantages connected to the plan-led approach included that it allows for the impact on infrastructure and local public services to be taken into account.

A small majority of respondents who answered the question – 53 % – thought there are other PDR changes that could support the regeneration, resilience and recovery of centres. The most frequent suggestion was that consideration should be given to allowing temporary use of buildings, and that this could be for 28 days or for up to 3 months. Respondents suggested that a PDR might apply to buildings and their curtilage, up to a limited floor area. Among potential benefits identified were reducing vacancies, flexibility, promoting entrepreneurship and allowing businesses/owners to test different options before applying for planning permission.

Port Development

PDR for ports

The Scottish Government is considering whether port operators' PDR are fit for purpose and whether amending them could support the Scottish and UK Governments' objectives for Green Freeports. The consultation paper explains that, following a UK Government decision to amend the PDR that apply to port operators in England, the Scottish Government is minded to take forward similar measures in Scotland to ensure a level playing field between English and Scottish ports.

A substantial majority of those who answered the question – 91% – agreed that, with respect to PDR, there should be a level playing field between English and Scottish ports. In some cases, respondents added caveats in relation to the detail of any potential changes to PDR. Reasons given in support of a level playing field were most frequently the economic importance of parity between ports in England and Scotland and the risk that Scottish ports could be placed at a competitive disadvantage in the absence of equivalent PDR.

Both respondents who agreed there should be a level playing field and some who did not argued that, rather than necessarily mirroring changes to English planning policy, amendments to PDR in Scotland should be based on an understanding of benefits and impacts in Scotland.

With respect to the amendments in England, and the practical effect of making an equivalent change to Class 35 PDR, comments included that the changes made in England are vague or that it is not clear what the practical effects of an equivalent change to Class 35 PDR would be. However, there was also a view that the effects would be to ensure a level playing field between English and Scottish ports.

In relation to the addition of '…in connection with the provision of services and facilities', some respondents welcomed the revised drafting with comments around amended wording. However, it was noted that no definition of 'services and facilities' is provided.

Some respondents referenced the requirement for consultation with planning authorities, introduced as part of recent PDR changes in England, arguing that this should not be replicated in Scotland, or that any consultation must be proportionate. The range of other consenting processes to which port development and operations are already subject were noted.

The majority of those who answered the question – 60% – thought that there is potential to widen the scope of Class 35 PDR further. However, further comments suggested that some respondents may have been referring to an extension of the existing Class 35 PDR to give parity with English ports and others to an extension of Class 35 beyond that required to give parity with PDR for English ports.

Some respondents considered that the scope of Class 35 PDR is already wide, and potentially too wide, with one suggestion that existing provisions may be used inappropriately. Others felt that providing parity with rights now available in England would be adequate.

In terms of considering higher thresholds, it was suggested that leaving the EU creates an opportunity to reconsider the thresholds for Environmental Impact Assessment (EIA) Screening, including the area of the works of harbour projects.

MCAs for ports

A substantial majority – 89% of those who answered the question – thought that MCAs could be a useful tool to provide more extensive planning freedoms and flexibilities in Scotland's ports.

Some respondents agreed MCAs could provide greater flexibility and an opportunity for a place-specific approach, targeting development opportunities in specific areas while also setting limitations and ensuring the right development happens in the right place.

While there was broad support for use of MCAs, several caveats were added including that subordinate legislation introducing MCAs has yet to be put in place and they are not yet proven in practice. Both the extensive work needed to establish an MCA and the significant resource allocation this will require on the part of local authorities were highlighted, with a view that this may not be feasible given current pressures.

A small number of respondents did not think MCAs will provide a useful tool, with a view expressed that the proposed use misunderstands the intention for which MCAs were designed.