The Town and Country Planning (National Planning Framework and Local Development Plan Amendment) (Scotland) Regulations 2024 - Impact Assessments

Business and Regulatory Impact Assessment (BRIA) - Partial

Title of Proposal

Development Plan Amendment Regulations: Consultation on proposed secondary legislation

Purpose and Intended Effect

Background

The purpose of planning is to manage the development and use of land in the long-term public interest. The decisions we make today will have implications for future generations. We must embrace and deliver radical change so we can tackle and adapt to climate change, restore biodiversity loss, improve health and wellbeing, reduce inequalities, build a wellbeing economy and create great places.

The National Planning Framework (NPF) is a long-term plan for Scotland, that sets out where development and infrastructure is needed. It guides spatial development, sets out national planning policies, designates national developments and highlights regional spatial priorities. The current NPF, NPF4 which looks to Scotland in 2045, was adopted by Scottish Ministers in February 2023.

Local development plans (LDPs) are prepared by each planning authority. They set out how places will change into the future, including where development should and shouldn’t happen. They show where new homes and workplaces will be built, how services and facilities such as schools and travel will be provided, and identify the places and buildings we value and want to protect.

NPF and the LDP for each planning authority comprise the statutory development plan. Decisions on planning applications are legally required to be made in accordance with the ‘development plan’ unless there are material considerations that indicate otherwise.

In the consultation ‘Places, People and Planning’ (January 2017) it was proposed that the review cycles of NPF and LDPs be extended from 5 years to 10 years, and that provisions for interim updates be made. This proposal sought to achieve stronger and more flexible development plans. The Analysis of Consultation Responses indicated there was general agreement that should a 10 year plan life be introduced, it must include a mechanism to amend.

In responding to the feedback, the June 2017 ‘Places, People and Planning Position Statement’ confirmed that we would progress with the 10-year timeframe and the provision for plans to be amended between full review cycles in a way that is proportionate and avoids delays, whilst ensuring significant change is subjected to robust scrutiny.

The Planning (Scotland) Act 2019 (the 2019 Act), made changes to the Town and Country Planning (Scotland) Act 1997 (the 1997 Act). Section 12 of the 2019 Act (not yet fully in force) inserts new sections 3CC and 20AA into the Town and Country Planning (Scotland) Act 1997 to introduce powers to amend both the NPF and LDPs. It also provides powers for Scottish Ministers to provide further provisions on the procedures for amendments in regulations

Objective

The aim is to implement the provisions in the Planning (Scotland) Act 2019 on the procedures to make amendments to both the NPF and LDPs. Sections 3CC and 20AA of the Town and Country Planning (Scotland) Act 1997 (inserted by the 2019 Act) provide for the NPF and LDPs to be amended, and give Scottish Ministers powers to make regulations about the procedure for doing so.

The amendment powers are a core element of the reformed planning system, important to address any emerging policy issues that need to be reflected in the NPF or LDPs.

Rationale for Government Intervention

Regulations, or secondary legislation, are necessary to provide additional detail to the requirements set out in primary legislation. The proposed new provisions are necessary to ensure that the legislative requirements operate effectively and in a way that is compatible with the Scottish Government’s wider policy objectives for the planning system.

Preparing regulations is part of our wider work on planning reform and implementation of the 2019 Act. The National Planning Framework 4 Delivery Programme (September 2023) identifies that National Planning Framework and local development plan amendment regulations are to be prepared.

These regulations will ensure that Scottish Ministers and planning authorities are able to make amendments to the development plan where required, as part of a proactive, place-making approach to planning and consenting. These powers are important to address any emerging policy issues that need to be reflected in the NPF or in LDPs.

This will contribute to the National Outcomes identified within both the NPF and LDPs and contained in the National Performance Framework:

• We live in communities that are inclusive, empowered, resilient and safe.
• We have a globally competitive, entrepreneurial, inclusive and sustainable economy.
• We have thriving and innovative businesses, with quality jobs and fair work for everyone,
• We value, enjoy, protect and enhance our environment.
• We are healthy and active.

Public Consultation

Within Government

As procedural matters falling under the Planning Act, responsibility for preparing

these regulations lies primarily with the Scottish Government’s Planning,

Architecture and Regeneration Division (PARD). The proposals have been developed by a core team with assistance from colleagues across the Division.

Public Consultation

The preparation of the consultation on the proposals for regulations follows on from the extensive engagement undertaken prior to the Planning (Scotland) Bill being considered by the Scottish Parliament and as the NPF and the Town and Country Planning (Development Planning) (Scotland) Regulations (2023) were prepared. We have taken into account comments made in relation to procedures for amendment at earlier stages of our planning reform process.

We have had discussions with the Chair of Heads of Planning Scotland (HoPS) Development Planning sub-committee and we anticipate engaging with any other stakeholders likely to have an interest in this upon request.

There will be a public consultation for 12 weeks between February 2024 and May 2024 on the proposals for Regulations. This consultation will highlight the process by which the NPF can be amended, the criteria applicable for formal review of the framework and the process by which LDPs can be amended once adopted. This will allow planning authorities and relevant stakeholders the opportunity to comment on the process and consider the implications before the final regulations are drafted.

Business

We will invite views on this partial BRIA as part of the public consultation. We also intend to promote the consultation to business organisations representing a range of sectors for awareness and comment where appropriate.

Options

Option 1: Do nothing

This is not our preferred option. The Planning (Scotland) Act 2019 includes provision for the NPF and LDPs to be amended, and Scottish Ministers are expected to implement the legislation passed by the Scottish Parliament. The legislation requires Scottish Ministers to make regulations setting out the circumstances in which they consider an amendment to the NPF would require a full review of the Framework. In addition, if the provisions on amendments to the NPF and LDPs were commenced without regulations on procedures, it would be unclear how such amendments could be made.

Failure to progress regulations would remove the ability to make changes to keep pace with wider and emerging Scottish Government policies and strategies. For example, the Scottish Government has committed to developing new bespoke planning policy on onshore wind to be applied in new National Parks.

The National Planning Framework 4 Delivery Programme (Sept 2023) sets out the approach for implementing NPF4 and includes key actions to be taken forward over the short and medium term. The delivery programme identifies Amendment Regulations as a short term action (for 2023) and medium term action (2024-28). Failure to deliver on this may impact negatively on stakeholder expectations.

Option 2 - Implement Amendment provisions within the Act through regulations, with amendments requiring a full review

This would not be a preferred option as, while it meets our approach towards the implementation laid out above and is in line with the provisions included in The Planning (Scotland) Act 2019, it places an unreasonable resource burden on all involved where amendments might be considered minor.

Option 3: Implement Amendment provisions within the Act through regulations, with a streamlined procedure for amendments (Preferred option)

Under this option, regulations will implement the provisions in the Planning (Scotland) Act 2019 on the procedures for making amendments to both the NPF and LDPs once adopted. Proposals to inform the regulations are included within the consultation paper.

The approach taken looks to balance the benefit of maintaining a long-term, stable planning framework at national and local levels to promote investment and confidence in decision making, with the ability to address pressing matters more quickly. Amendments have the potential to take a variety of forms, from amending references and terminology to introducing new policies and proposals. We have therefore sought to appropriately balance time and costs with engagement, justification and scrutiny.

Sectors and Groups Affected

Businesses

Developers across a range of business sectors interact with the development plan and planning authorities on a regular basis. This particularly involves those seeking land allocations or businesses potentially affected by land allocations.

Businesses looking to expand, build new property, develop local infrastructure or explore other forms of permission with the planning authority have to have due regard to what is laid out in both the NPF and in any relevant parts of their planning authority’s LDPs.

Planning authorities

Whilst it will be for Scottish Ministers to lead on the progression of any amendment to NPF, there will be scope for planning authorities to input to the process, and respond to consultation on any proposed amendment to NPF.

Once in force, section 20AA will provide that a planning authority may at any time amend their local development plan. Scottish Ministers will also have the power to direct a planning authority to amend their local development plan.

The regulations will provide procedural requirements for planning authorities to amend their LDP. This will include minimum consultation requirements, and requirements around the holding of examinations into any unresolved representations on proposed amendments to the LDP. The proposed regulations are necessary to provide additional detail to the requirements set out in primary legislation.

The proposals offer flexibility to planning authorities enabling an amendment to a LDP with a more proportionate process with less intensive resource implications than are required for a full review of the LDP. They provide minimums, which allow for authorities some scope to shape the procedures in practice, depending on the significance of the amendment proposed. We will update the local development planning guidance to provide details of Scottish Ministers’ expectations for amendments.

Communities

Development plans impact on communities as they focus on the future of the places where people live, work, learn and play. The proposed amendment procedures will provide opportunities for public involvement, including through responding to public consultations. The extent that the proposals will impact on members of the community will be dependent on their willingness and need to become involved.

As set out above, the proposals provide minimums, which allow authorities some scope to shape the procedures in practice, depending on the significance of the amendment proposed. We will update the development planning guidance to provide details of Scottish Ministers’ expectations for amendments.

Public Bodies

The proposals require both the Scottish Government and planning authorities to consult with key agencies on any amendment proposals to either the NPF or LDP.

Benefits

Option 1: Do nothing

There are no benefits arising from this approach.

Option 2: Implement Amendment provisions within the Act through regulations, with amendments requiring a full review.

There are no benefits arising from this approach.

Option 3: Implement Amendment provisions within the Act through regulations, with a streamlined procedure for amendments (Preferred option)

An established policy framework/development plan provides confidence to businesses, investors and other stakeholders, but there may be instances where amendments are required. With the move to the longer 10 year review cycle for the local development plan, implementing the provisions in the Planning (Scotland) Act 2019 on the procedures for making amendments to both NPF and LDPs will ensure that the development plan can remain flexible enough to adapt to and address any emerging policy issues that need to be reflected. This option looks to ensure that the planning system is able to respond appropriately through policy where new or urgent matters arise, without requiring a review of the whole document and the associated resource demands that entails.

The Development Plan Amendment Regulations will offer developers and a range of business sectors reassurance that both the Scottish Government and planning authorities are able to make adjustments to policy/plans where significant issues arise or unintended consequences are highlighted and give developers reassurance that the development plan is able to be flexible and adapt to changing conditions, including emerging technologies, financial market pressures and national priorities.

Going forward, the opportunity for stakeholders, including businesses, to be consulted during any proposed amendments ensures transparency and engagement with the decision making process.

The new provisions may form an opportunity for community bodies to seek to engage with their local planning authority to seek to have incorporated into the LDP parts of their Local Place Plan, where that has been registered with the planning authority following adoption of the LDP. This may provide a further opportunity for community priorities to be reflected in the LDP.

The regulations will provide the procedural framework of the processes for amending the NPF and LDPs. They will provide clarity on the process, including;

• the required consultation (providing opportunities for business, from all sectors and sizes, to express their views, and any implications on their land or other business interests), and to ensure views are considered as part of the process;
• around scrutiny (whether laying before the Scottish Parliament in the case of the NPF, or around examinations for LDPs where substantive amendments are proposed and there may be a need to make provision for independent scrutiny of the amendment);
• publication (ensuring business have access to the amended plan/ framework); and
• confirming when amendments will be effective from.

It is important for the development plan to remain up-to-date, to ensure confidence and certainty in the plan-led system. An up-to-date development plan can support a proactive, place-making approach, supporting a range of scales and types of development from small scale changes, up to major new developments.

Costs

Option 1: Do nothing

There are no costs arising from this approach.

There would be no direct financial costs from this option. There is a possibility that the development plan would become outdated and irrelevant to changing circumstances. There is a danger that the NPF or LDPs would not be reflective of emerging policy issues if they cannot be amended. Without a functioning mechanism in place for amending NPF or LDPs, it could otherwise prove necessary to carry out a full review sooner than expected, so incurring higher costs for that full process.

This could create possible uncertainty and challenges in the implementation of the development plan or in bringing forward proposals. This could lead to costs to business and planning authorities linked to loss of opportunity or more complex application processes and decisions, and an increase in local reviews or appeals.

Option 2: Implement Amendment provisions within the Act through regulations, with amendments requiring a full review

In support of the Scottish Parliament’s scrutiny of the 2017 Planning Bill, the Scottish Government prepared an accompanying Financial Memorandum. This was updated following the Stage 2 scrutiny.

The majority of costs of amending the NPF will fall on the Scottish Government. Cost will vary depending on the scale and nature of any amendment(s) being considered. Costs will include staff costs, including of professional planners, and other specialists as required (e.g. if further environmental assessment required to inform the amendment), there may be costs associated with holding a public consultation (including publication costs, and to service any public events if Ministers decide to hold such sessions).

Planning authorities will be responsible for costs of taking forward any amendments to their LDP. Similarly to costs for amending the NPF, it is anticipated that costs will vary depending on the scale and nature of any amendment(s) being considered. Costs will include staff costs, including of professional planners, and other specialists as required (e.g. if further environmental assessment required to inform the amendment). There may be costs associated with holding a public consultation (including publication costs, and to service any public events), if an examination is required to be held to consider outstanding representations to the proposed amendment, the planning authority would be expected to meet the costs of any examination, mirroring the approach for other LDP examinations.

Option 3: Implement Amendment provisions within the Act through regulations, with a streamlined procedure for amendments (Preferred option)

This option would in essence be a mirror of the costs laid out above in Option 2, however these costs can be viewed partly in the context of what would likely be much higher costs to carry out a full review of the NPF to make the chosen changes, if the streamlined amendment provisions that Option 3 provides did not exist.

In terms of planning authority costs associated with amending a LDP, similar to NPF costs, this could be viewed partly in the context of what would likely be much higher costs to carry out a full LDP review without an option of a more proportionate procedural approach where appropriate.

Regulatory and EU Alignment Impacts

Intra-UK Trade

Is this measure likely to impact on intra-UK trade? No

International Trade

Is this measure likely to impact on international trade and investment? No

EU Alignment

Is this measure likely to impact on the Scottish Government’s policy to maintain alignment with the EU? No

Scottish Firms Impact Test

The proposed changes are not expected to have any overall impact on Scottish Firms. Views from business and industry interests are however invited as part of the public consultation process.

Competition Assessment

There are no obvious impacts on competition from the proposed regulations or guidance, though views are being sought on this Interim BRIA as part of our consultation process.

Consumer Assessment

The Scottish Government definition of a consumer is "anyone who buys goods or digital content, or uses goods or services either in the private or public sector, now or in the future". It is not anticipated that the proposed regulations or guidance will have any impact on consumers though views are being sought on this Interim BRIA as part of our consultation process.

Test Run of Business Forms

Implementing the provisions in the Planning (Scotland) Act 2019 on the procedures for making amendments to both the NPF and LDPs will not introduce any statutory business forms.

Digital Impact Test

Publicity arrangements for amendment proposals are set out in the proposed regulations and include requirements relating to publishing material on the internet. However, such measures are in addition to other publicity requirements, so it is not considered that the proposed regulations will have any impact on digital technologies or on traditional or offline businesses.

Legal Aid Impact Test

These changes would not affect claims for legal aid.

Enforcement, Sanctions and Monitoring

There is a power within the primary legislation that the Scottish Ministers may direct a planning authority to amend their LDP in relation to matters specified in the direction.

Implementation and Delivery Plan

The National Planning Framework 4 Delivery Programme (Sept 2023) sets out the approach for implementing NPF4 and includes key actions to be taken forward over the short and medium term. The delivery programme identifies Amendment Regulations as a short term action (2023) and medium term action (2024-28).

Subject to the responses to the public consultation and parliamentary procedures the intention is for the amendment regulations to come into force later in 2024. The intention is to update the Local Development Planning Guidance to cover the amendment process.

Post-implementation Review

Evidence gathered during the consultation will help inform the work to finalise the Development Plan Amendment Regulations. The final BRIA will consider the post-implementation.

Future guidance will be largely factual and will explain the statutory procedures from the 2019 Act and the sets of regulations.

We intend to then engage with planning authorities, the Heads of Planning Scotland network, key agencies, developers and other partners to identify and share good practice and to promote peer-to-peer learning as good practice develops.

Summary and Recommendation

The above proposals for new regulations have emerged from legislative requirements set out in the Planning (Scotland) Act 2019 and following an extensive review of the planning system.

The above proposals aim to strike a balance between having certainty in the long term development plan, and the need for flexibility to adapt to arising issues. This proposal provides clarity on the procedure to amend any part of the development plan, whilst ensuring relevant sectors and interested parties are consulted as part of any proposed amendments.

Declaration and publication

I have read the partial 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 the businesses in Scotland.

Date: 07/02/2024

Minister’s name: Joe Fitzpatrick MSP

Minister’s title: Minister for Local Government, Empowerment and Planning

Scottish Government Contact Point:

Ruairidh Anderson

Planning, Architecture and Regeneration Division