Proposed new planning legislation for Scotland should be amended to restrict the rights of unsuccessful applicants to appeal decisions that have been taken in a way that is clearly in line with a development plan, MSPs have suggested.
A stage 1 report by the Scottish parliament's local government and communities committee makes a number of recommendations to improve and strengthen the Planning (Scotland) Bill. The committee has, however, welcomed the proposed reforms overall, and has recommended that MSPs agree to the general principles of the bill when they vote for it for the first time.
The Planning (Scotland) Bill was introduced to the Scottish parliament on 5 December 2017. The bill aims to streamline the system of development planning and support delivery of planned developments. It also includes a new right for communities to produce their own 'local place plans' for their local areas and a proposed new "infrastructure levy".
In its report, the committee said that many communities felt "frustrated" by the current planning system, which they said allows developers the right to appeal against decisions taken "in clear accordance with a development plan" but does not extend 'equal' rights of appeal to interested third parties. Scottish ministers have so far ruled out the creation of third party rights of appeal as part of the Planning (Scotland) Bill despite lobbying from campaigners, environmental organisations and community groups.
The committee's view is that allowing unsuccessful applicants to appeal planning decisions free of charge, and irrespective of whether an application is in accordance with a development plan, "undermines confidence in a plan-led system". It has called on the Scottish government to reconsider its position before the bill reaches its next parliamentary stage.
Planning law expert Gary McGovern of Pinsent Masons, the law firm behind Out-Law.com, said that although the committee had stopped short of recommending the creation of a third party right of appeal, "it will be of considerable concern that it does advocate that an applicant's existing right of appeal should be curtailed".
"From a purely practical viewpoint, trying to define in any clear way circumstances when an appeal could or could not be made seems fraught with difficulty," he said.
"The assertion that there is an 'imbalance in the system' because the applicant can appeal decisions taken 'in clear accordance with the development plan' is simplistic. Policy in a local development plan will often pull in different directions and decisions are usually taken on balance, weighing competing considerations – cases where the position is 'clear' one way or another are not as common as may be inferred from the committee's report. In any event, the starting point for determining appeals is the LDP and the success rate - around 50% - on appeal last year suggests that many refusals of grounds of conflict with the LDP are wrong or, to give the planning authorities the benefit of the doubt, the position was not clear," he said.
"On the principle, I do not think the case has been made for restricting applicant appeal rights, far less introducing any third party right of appeal. Some of the evidence appears anecdotal, and those advocating 'equalisation' seem to me to conflate 'community' or private interests with 'public interest'. I cannot see how either option will encourage much-needed investment in new infrastructure or housing, which was the objective of the Scottish government when it first proposed a new Planning Bill," he said.
Craig Connal QC of Pinsent Masons said: "Any attempt to restrict appeals such that an applicant may never get heard on the merits by an independent party risks possible human rights challenges, tilting the development playing field against development wherever there is vocal and/or aggressive opposition and damaging the public interest. Unpopular developments may be public sector driven too – these things have to go somewhere – the more power to the vocal minority may have unintended consequences."
The committee, among its other recommendations, called for the bill to be amended in order to incorporate a 'purpose' for planning, which they said would provide greater certainty to communities and developers. It is also seeking amendments to the provisions on local plan place plans to support disadvantaged communities, warning that communities without the capacity, resources and time to devote to preparing plans will be less likely to do so and that this could widen inequality.
The report does not take a particular view on the introduction, through the bill, of the proposed 'infrastructure levy'. However, given the lack of clarity about how this would work in practice, it has recommended that its future introduction be scrutinised and consulted on in more detail by the Scottish parliament, and at an earlier stage than as currently envisaged by the legislation. It is also seeking further explanations about the need for the so-called 're-distribution power', which would enable Scottish ministers to collect levy funds centrally and distribute them as they wish, rather than having funds collected and distributed at the local level.
"The committee acknowledges in its report that, if the proposed infrastructure levy is introduced, it will likely be more effective in some circumstances and places than others," said McGovern. " Differences in land values, development volumes and viability make it challenging to see how it could work in many parts of Scotland, certainly outside the main cities."
"Recognising that the bill only includes very broad 'enabling powers' and greater clarity is required, it is welcome that the committee recommends a 'sunset clause' and that the detailed secondary legislation is made subject to the 'super-affirmative process', to ensure it is subject to a reasonable degree of scrutiny," he said.
Elsewhere, the committee welcomed the proposal in the bill to put the Scottish Planning Policy and the National Planning Framework on equal footing, but noted concerns about making these documents part of the local development plan. It did not recommend the repeal of strategic development plans, unless these are to be replaced by a more robust mechanism than that currently proposed in the bill. It also backed the introduction of a statutory 'agent of change' principle, which would the onus on developers seeking to build near music venues to mitigate pre-existing noise impacts.
"The ‘agent of change’ approach is interesting because it could readily apply to a whole range of potentially conflicting uses, not just houses and music venues and an equally wider range of impacts," said Connal.
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