Matthew Stimson

On 17 May 2018, the Scottish Parliament’s Local Government and Communities Committee published its Stage 1 Report on the Planning (Scotland) Bill.

Whilst the report concludes by inviting parliament to agree the general principles of the bill, it invites ministers to give further consideration to a range of matters and asserts that, in certain respects, the bill fails to address public frustration with the planning system.

The bill, which was introduced to parliament on 4 December 2017, is the culmination of a review of the Scottish planning system that began in April 2015. It proposes a number of reforms to the Town and Country Planning (Scotland) Act 1997 including:

• to the system of plan making (by strengthening the role of the National Planning Framework, removing the requirement for regional Strategic Development Plans and introducing Local Place Plans);
• to the system of decision taking (including making provision for pre-application consultation, training for decision makers, and monitoring the performance of planning authorities)
• by introducing the power to create a new Infrastructure Levy to raise money for provision of infrastructure needed to support development in Scotland
• However, two key criticisms of the bill levelled by the committee are that it fails to:
• take the opportunity to introduce an overarching statutory purpose of the planning system
• undertake any reform of the system of appeals against planning decisions.

The report argues the planning system “is uniquely placed to deliver a wide range of public benefits including a high quality environment, social development, cultural and artistic opportunities, connectivity and economic prosperity” and that “it is important to have a clear and shared view of what the planning system is designed to achieve”.

Significantly, no attempt to define the purpose of the planning system in this way has been made previously either in Scotland or elsewhere in the UK. Examples are cited of where this has been effectively and succinctly achieved in the Netherlands, Finland, Denmark and Germany. However, articulating such an overarching purpose of planning will not be without difficulty. It must recognise that, in addition to being uniquely placed to deliver a wide range of public benefits, it must also serve and find a compromise between a wide range of conflicting interests. Delivering a planning system that both serves and reflects those interests and has sufficient meaning to be of any consequence will be no mean feat.

Similarly, the committees comments regarding appeals reflect a long-standing debate about how the planning system should best serve the often competing interests of land owners, developers, local authorities and other interested parties including members of the public. The bill itself currently contains no proposals to reform the system by which any person who has applied for planning permission may appeal to the Scottish Ministers against a decision by the local authority to refuse their application or to grant planning permission subject to conditions.

The report moots curtailing applicants’ rights of appeal, thereby strengthening the role of local government. It also asks ministers to consider introducing a third party right of appeal (for interested parties and members of the public aggrieved by planning decisions). However, the arguments for and against third party appeals are well rehearsed. It is interesting to observe that the report neatly avoids making any recommendation on this point beyond simply urging Ministers to consider the issues further.

That said, through its Stage 1 Report on the Planning (Scotland) Bill, the Scottish Parliament’s Local Government and Communities Committee has made its views known. The challenge is to find the right way forward. Ultimately, if the planning system is to be fit for purpose, it has to strike a balance between the many and varied competing interests that it is designed to serve. In a democracy, this will always amount to an exercise in compromise!

Part and parcel of this is the principle that administrative decisions should be subject to fair and independent scrutiny whether through a system of appeal or judicial review. That this may lead to delays in development or locally made decisions being overturned is inevitable and unavoidable. When all is said and done, it’s hard to look beyond the fact that compromise is the key to an effective planning system.

Matthew Stimson is a senior associate at Shoosmiths