Pictured (L-R): Neil Collar and George Sismey-Durrant 

From 25 April, the time limit for enforcement action in England will be 10 years for all categories of breaches of planning control. Scotland continues with the 4 and 10-year time limits. This illustrates how the separate planning laws in England and Scotland involve key differences.

Differences between England and Scotland

Other differences include:

Planning applications - pre-application consultation (PAC) with communities is compulsory in Scotland for specified categories of development. It’s only encouraged in England.

Type of planning permission – in Scotland, a planning permission in principle (PPiP) is followed by an application for approval of matters specified in condition (AMSIC). These are broadly similar to the English outline permission and reserved matters approval. However, in Scotland there is a single time limit for commencement of development – 5 years from the date of the PPiP; whereas in England, the reserved matters application must be submitted within 3 years of the date of the outline permission, and work must begin within 2 years of the reserved matters approval.

Biodiversity – in England there is a statutory requirement to deliver a minimum 10% biodiversity net gain, which is calculated using the Defra metric; in Scotland, National Planning Framework 4 contains a policy requirement for biodiversity enhancement and potential use of a metric is only at the consultation stage.

Infrastructure levy – there is no Scottish equivalent of the community infrastructure levy which applies in England, although the Planning (Scotland) Act 2019 contains a power to introduce an infrastructure levy.

Planning obligations – in England there is no requirement to register a section 106 obligation on the land title (it is registrable as a local land charge though), but in Scotland a section 75 obligation is only fully effective against successors in title once it has been registered in the Land Register or recorded in the Register of Sasines. In Scotland it is possible to apply to vary a section 75 immediately after the planning permission has been granted; in England it is necessary to wait 5 years.

Planning permission appeals – the time limit for submission is 3 months in Scotland, but 6 months in England; in Scotland, specified categories of appeals are decided by the councillors on the local review body (LRB) rather than by Scottish Government reporters (the equivalent of inspectors).

Judicial review time limits – in England the time limit for submitting a legal challenge to a planning decision is 6 weeks; in Scotland, it depends on who made the decision – there is 3 months to challenge a decision by a council, but only 6 weeks if it was made by the Scottish Ministers or their reporter.

Use Classes and permitted development – there are numerous differences between the two systems. For example, the English use class E includes developments which fall within four use classes in Scotland – class 1A (shops, financial, professional and other services), class 3 (restaurant and café), class 4 (business and light industrial), and class 11 (gyms and indoor sports).

Practical implications

According to the saying, “A little knowledge is a dangerous thing”. Planning on either side of the border looks similar, which creates the pitfall of assuming it is the same. Practitioners need to check that key differences are taken into account.

Neil Collar is a partner and George Sismey-Durrant is an associate at Brodies LLP