Mark McMurray addresses the trend of increased ministerial involvement in Scottish planning decisions and offers advice for developers on how best to prepare to have their applications called in
Politics is always something to be borne in mind if you are involved in development and engaging with the planning system. It could be Scottish government policy to deliver more homes, the Scottish parliament votes to support a ban on fracking, or even forthcoming local government elections, which could see significant changes in the composition of local authorities in many areas of Scotland. However, there could be a new factor, or at least one which has not been prevalent for several years, that may now need to be taken into account, thanks to a recent trend.
The vast majority of planning appeals are delegated to reporters, although the Scottish ministers always retain the ability to recall the appeals for their own determination and they have increasingly exercised that option recently. Combined with the call-in of various applications that would normally be determined by planning authorities, developers may need to be prepared for an increased chance of their applications or appeals being determined by the Scottish ministers.
Basis for recall or call-in
The recalled appeals and called-in applications are not confined to any particular type of development, although housing does seem to account for the greatest number. The proposals currently before the Scottish ministers include applications or appeals for housing, hotel, tennis and golf centre, retail and mineral development.
Appeals are recalled and applications called-in for a variety of reasons, such as:
• issues of national importance in terms of potential impacts on the historic environment, including the Old and New Towns of Edinburgh World Heritage Site, and in relation to potential economic and tourism benefits;
• high level of public interest in the proposal; and
• potential economic, tourism and sporting benefits of the proposal considered to be an issue of national importance.
The politics of planning
Scotland has a plan-led planning system. This means that formal development plans describe which forms of development should and should not get planning permission, through a combination of land allocations and policies covering a wide range of issues including environmental protection, infrastructure provision and design. Decisions on individual applications are then made in accordance with that development plan unless material considerations indicate otherwise. The plan-led system is designed to provide a degree of certainty about which developments will be acceptable and which will be unacceptable.
There is potential for an increased level of political involvement at a ministerial level to result in decisions on individual planning applications or appeals being made for political reasons rather than being based on policies in the development plan. When planning decisions, at whatever level, are made for political reasons, there is a risk that they are made with the short term in mind and without looking much beyond the application or appeal in question. This detracts from the long-term view provided by a development plan and raises questions about the reliance that can be placed on development plan policies.
When pursuing a planning application, substantial costs are incurred by an applicant at risk, with no guarantee that planning permission will ultimately be granted. An effective plan-led system is therefore important to provide a level of consistency and certainty which will give developers and their funders the confidence to proceed with a planning application for their proposed development.
There is a counter argument, namely that the Scottish ministers have to intervene to ensure that an effective plan-led system is being delivered. However, sending a message that Scotland does not have an effective plan-led system may in itself not provide developers and investors with the confidence they need to proceed with their proposals.
Reform on the horizon
This recent trend also comes at a time when the Scottish ministers have stated that “a coherent programme of planning reform for the coming years is a priority” and the process of reform is already well under way. One of the aims of the reform is to improve efficiency in development management and the Scottish ministers seem to accept that their involvement does not help achieve this goal; they have announced the withdrawal of arrangements for the recall of appeals for developments of more than 100 homes to avoid unnecessary delays.
It remains to be seen whether the Scottish ministers will now reduce their involvement in individual applications to improve efficiency or whether their continued involvement could undermine aspects of the planning reform which they see as a priority.
What can developers do?
The Scottish ministers may be more likely to attach greater weight to wider policy objectives, such as economic growth and meeting renewable energy targets, than development plan policies. Applicants may therefore wish to place greater emphasis on these wider policy objectives when making the case for their development, or at least retain the flexibility to make the arguments in the event of a call-in or recalled appeal.
Also, the consultees and stakeholders who are likely to have the greatest influence on the Scottish ministers may be different to those likely to be influential with the planning authority. If there is an increased likelihood of a ministerial decision, applicants may wish to factor this into their consultation and engagement strategy.
There may be good reasons why an applicant would welcome a ministerial decision, such as the development is not supported by the planning authority but it meets a number of the Scottish government’s wider political objectives. Recalled appeals are more likely than called-in applications so, in these circumstances, applicants might want to be prepared to lodge an appeal at the earliest opportunity, ie on expiry of the statutory determination period.
In summary, developers should assess the possibility of ministerial involvement from the outset and take account of it when devising and updating their consent strategy.
Mark McMurray is a senior associate at CMS Cameron McKenna LLP
