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COVID-19 - planning procedures changed in Scotland

Planning procedures in Scotland have formally changed this week in response to the COVID-19 pandemic. The Coronavirus (Scotland) Bill completed its journey through Parliament on Wednesday, and the chief planner issued his third and most notable letter today (3 April).

When it receives Royal Assent (expected any moment now) the bill will extend the life span of unimplemented planning permissions that are due to expire over the next six months (referred to as the emergency period), until the expiry of the period of 12 months beginning with the date that the bill comes into force (referred to as the extended period).

 This welcome extension should prevent planning permissions expiring in circumstances where developers are powerless to implement them. A similar length of extension will be applied to the time periods for making applications for the approval of matters specified in conditions. If those applications should be made within the emergency period, then the time period for doing so will also be extended until the expiry of the extended period.

One issue in connection with these extensions that may arise at the end of the 12-month period, and which may be categorised as a worry for another day, is where a planning permission contains an express condition dealing with the time period for implementation. If that time period falls within the emergency period and is therefore extended to the end of the 12-month period, will section 42 applications be competent in connection with the underlying condition?

The chief planner’s letter addresses a range of points that are critical to planning in Scotland. The stated top priority of the planning and architectural division of the Scottish Government is to maintain a functioning planning system. In order to do so, the following advice and direction in connection with development management is contained within the letter:-  

  • Enforcement: Encouraging a reasonable and pragmatic view on enforcement action, particularly in connection with temporary changes of use or developments that may assist with the response to the current pandemic. Flexibility in connection with the staged payments of Section 75 contributions is also noted.
  • Pre-application consultation: A change in the Development Management Regulations 2013 will be brought forward to suspend the requirement to carry out a public event as part of pre-application consultation. Guidance will follow in relation to this, which will contain alternative options and expectations focussed on holding alternative events online.  
  • Neighbour notification: No solution has been given to this issue, but the letter recognises that there are likely to be difficulties for councils carrying this out in the current circumstances. We can expect further guidance on this in due course.
  • Committee meetings: The letter flags that councils already have the power to hold virtual committee meetings, and to delegate decision-making to officers. The bill will also give the Council powers to exclude members of the public from attending committee meetings where there is a risk of infection of COVID-19. Further regulations will come forward to suspend local review bodies from taking place in public.

These measures are all to be welcomed. It should be acknowledged that everyone involved in the industry, from public to private sector, is adjusting to unprecedented circumstances. There will clearly be further issues that arise over the coming weeks and months: Will councils embrace virtual committee meetings? Will delegated powers be exercised for the determination of major or contentious applications? Will developers opt to exercise their appeal rights against deemed refusals where applications are not determined within the statutory timeframe?

In a fast-moving planning landscape, these issues may need addressed before long.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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