Planning - unauthorised EIA development - time limits for enforcement action: consultation

2. Proposed changes to legislation in Scotland

2.1. Whilst we consider that the range of enforcement powers is sufficient to enable planning authorities to take effective enforcement action to halt, or address the adverse impacts of unauthorised development, the requirement for enforcement action to be taken within a set period could theoretically give rise to a situation where a development, which should be subject to EIA procedures, becomes immune from enforcement action. As indicated previously, whilst we consider this unlikely, nevertheless it is possible this situation could arise.

Question

Q1. Are you aware of any cases where an unauthorised EIA development has become immune from enforcement action under Section 124 of the Town and Country Planning (Scotland) Act? If yes, please give further information.

2.2. The draft SSI in Annex A of this paper sets out proposed amendments to Section 124 of the 1997 Act, such that the time limits would not apply to any development that would be subject to EIA. Removal of time limits on enforcement would remove the possibility that EIA development could become immune from enforcement action. This would in effect mean that unauthorised EIA development could not benefit from a retrospective CLUD and that the only way for such development to lawfully remain in place or continue to operate is to apply for retrospective planning permission, and undertake EIA procedures as appropriate.

Question

Q2. Do you agree enforcement time limits as set out in Section 124 of the 1997 Planning Act should be disapplied for unauthorised EIA development?

Q3. Do you have any comments on the draft SSI contained in Annex A of this consultation?

Planning permission for unauthorised EIA Development

2.3. The ACCC considers that planning permission should be granted for unauthorised EIA development only in ‘highly exceptional cases’ and subject to strict and defined criteria.

2.4. It is already the case that the relevant planning authority in considering any retrospective application must consider whether any material planning considerations would justify the grant of permission. Our view is that this gives planning authorities sufficient scope to consider whether there are ‘exceptional circumstances’ that would justify the grant of permission retrospectively for development likely to have a significant effect on the environment, including whether conditions could be used to make the development acceptable in planning terms. Further guidance is contained in Planning Circular 10/2009: Planning Enforcement - gov.scot (www.gov.scot)

Question

Q4. Do you have any comment on the circumstances in which planning authorities may retrospectively grant planning permission for unauthorised EIA development?

Q5. Do you agree with the findings of the impact assessments in Annex B of this paper or have any comments relating to these?

Responding to this Consultation

We are inviting responses to this consultation by 11^th July 2024.

Please respond to this consultation using the Scottish Government’s consultation hub, Citizen Space. You can save and return to your responses while the consultation is still open. Please ensure that consultation responses are submitted before the closing date of 11^th July 2024.

If you are unable to respond using our consultation hub, please complete and return the Respondent Information Form to:

Planning, Architecture and Regeneration Division
Scottish Government
2F South
Victoria Quay
Edinburgh, EH6 6QQ

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Next steps in the process

Where respondents have given permission for their response to be made public, and after we have checked that they contain no potentially defamatory material, responses will be made available to the public at http://consult.gov.scot. If you use the consultation hub to respond, you will receive a copy of your response via email.

Following the closing date, all responses will be analysed and considered along with any other available evidence to help us. Responses will be published where we have been given permission to do so. An analysis report will also be made available.

Comments and complaints

If you have any comments about how this consultation exercise has been conducted, please send them to the contact address above or at PlanningEIAconsultation@gov.scot

Scottish Government consultation process

Consultation is an essential part of the policymaking process. It gives us the opportunity to consider your opinion and expertise on a proposed area of work.

You can find all our consultations online. Each consultation details the issues under consideration, as well as a way for you to give us your views, either online, by email or by post.

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• indicate the need for policy development or review
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