Gordon Clark compares the planning changes and proposals for reform in Scotland and England.
Planning reform is hitting the headlines frequently these days, and underpins Boris Johnson’s “build, build, build” strategy for economic recovery from the Covid-19 pandemic. What some may not appreciate, however, is that Scotland has a different planning regime to England, and the latest UK government proposals for reform do not apply north of the border. Scotland has been undertaking its own planning reform process in recent years. A panel was appointed in 2015 to review the Scottish planning system and the resultant Planning (Scotland) Act 2019 is currently being implemented in phases. Differences between the two regimes include use classes, permitted development and proposals for reform, as well as some temporary Covid-19-related changes.
Use classes and permitted development
In England, new laws are due to come into force in September 2020 to change certain use classes and permitted development rights. The most significant change sees the creation of a new use class (class E), amalgamating existing classes A1-A3, B1, D1 and D2 (retail, café/restaurant, office, financial/professional services, indoor sports, medical and nursery). Free movement between uses within class E will be allowed without planning permission (subject to certain exceptions). Classes A4 (pubs) and A5 (hot-food takeaways) will be classed as sui generis uses, meaning any change of use from those classes will require planning permission. The changes to PDRs in England will allow (a) the construction of additional storeys on certain buildings; and (b) the demolition and redevelopment of freestanding blocks of flats and certain commercial buildings for residential purposes without the need for planning permission.
These English reforms do not apply in Scotland, which has a separate use classes and permitted development regime. We have 11 use classes: retail, financial/professional services, food and drink, business (offices), general industrial, storage/distribution, hotels/hostels, residential institutions, houses, non-residential institutions and assembly/leisure. The Scottish permitted development regime allows only certain changes between the use classes without planning permission (eg café/restaurant can change to retail or financial/professional services). There are no PDRs available for shops. Pubs and hot-food takeaways are already sui generis in Scotland, although takeaways can change to retail or financial/professional services. There are certain PDRs for construction/development works in set categories, but not for constructing additional storeys or for any commercial-to-residential repurposing.
Although equivalent changes to those being introduced in England have not been announced for Scotland, the Scottish government has confirmed (as part of its economic recovery plan) that there will be a comprehensive review of planning policies and potential extensions to PDRs for priority areas of development. This is likely to include renewable energy development and town centre changes of use. A consultation on detailed proposals is expected in the autumn.
In the meantime, in response to Covid-19, the Scottish government has temporarily relaxed certain planning enforcement rules. Planning conditions applicable to retail deliveries and store opening hours have been relaxed, and pubs and restaurants can operate as hot food takeaways without planning permission. In addition, the 28-day rule (which allows the use of land, and the erection of movable structures on land, for any purpose – except as a caravan site or open-air market – for up to 28 days in any year) can be extended where appropriate for reasonable temporary outdoor uses. This aims to assist the hospitality sector in allowing outdoor seating for pubs, cafés and restaurants without the need for further permission.
Planning reform in Scotland
As England progresses with major zonal planning reform with the publication of its Planning for the Future white paper, the Scottish government’s current top priority is to maintain a functioning planning system during Covid-19. The focus is on the implementation of the 2019 Act. The Act will make numerous changes to the plan-led system, aiming to streamline the development planning and management processes, as well as giving the option to create a nationwide infrastructure levy. Implementation is likely to be slower than previously intended due to the pandemic, and perhaps also the Scottish parliament elections, which are set for May 2021. It remains to be seen whether the attempt to impose an infrastructure levy in Scotland will proceed, particularly when in England there are proposals to abolish the community infrastructure levy and section 106 agreements.
There are no current proposals in Scotland to move to a zonal system. However, as mentioned, the Scottish government is now conducting a comprehensive review of national planning policies. It has also:
- committed to explore options to alleviate planning restraints, build capacity and deal with complex planning applications faster;
- announced that it will publish a digital planning strategy in November 2020;
- started work on the fourth national planning framework (NPF4), Scotland’s long-term spatial strategy until 2050. NPF4 was expected around September 2020, but has been delayed by a year; and
- published a draft consultation paper in July 2020 proposing to scrap the presumption in favour of sustainable development. This is widely viewed as a knee-jerk response to the recent decision in Gladman Developments Ltd v Scottish Ministers [2020] CSIH 28; [2020] PLSCS 108, where the presumption was held to apply to a development because it would help to address a shortfall in the five-year housing land supply, and therefore almost inevitably contribute to sustainable development. The consultation paper argues that the “tilted balance” is not intended to override normal planning judgment based on the development plan and other material considerations.
Final words
While similar themes run through the Scottish and English planning reforms, the current Scottish reforms are not nearly as radical as those proposed in England. It remains to be seen whether more sweeping changes may end up being introduced in Scotland, to help aid the country’s economic recovery in the wake of Covid-19.
Gordon Clark is an associate at Dentons
