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Scottish Planning Series: Planning Circular 1 2009: Development Planning

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LOCAL DEVELOPMENT PLANS

32. Section 16 of the Act requires all planning authorities to prepare one or more local development plan ( LDP) for their area as soon as practicable after the Act comes into force. These must cover the whole of the authority's area, although one location may be covered by more than one LDP if prepared for different purposes (e.g. minerals), and LDPs may extend across the areas of more than one planning authority. Regardless of how many LDPs cover a local authority area, all must be replaced at least every 5 years. Authorities must also keep their plans under review.

33. The normal process for preparing LDPs is set out in Figure 2 alongside the strategic environmental assessment ( SEA) process and indicative timings. In SDP areas there should be a degree of twin-tracking of SDP and LDP preparation in order to ensure that SDP strategies are implemented quickly. Scottish Ministers expect LDPs in SDP areas to be adopted within 2 years of the approval of the relevant SDP. LDP main issues reports or proposed plans may be published on the basis of a proposed SDP, but the LDP should not be submitted to Ministers until the SDP has been approved.

MONITORING AND THE EVIDENCE BASE

34. An early task of planning authorities will be to monitor:

  • changes in the principal physical, economic, social and environmental characteristics of the area; and
  • the impact of the policies and proposals of the existing plan(s).

35. As a product of this exercise, section 16 of the Act requires the planning authority to publish a monitoring statement. The planning authority is to publish the monitoring statement, including electronically, alongside the publication of any main issues report.

36. Whereas changes to the action programme will reflect progress with particular development proposals, the monitoring report is likely to focus more on the wider impact of the plan on area and population-wide indicators and on how far the objectives and vision of the previous plan have been realised. It will be one way of identifying the issues to discuss in the main issues report.

37. The monitoring statement will form one part of the evidence base for the plan. Evidence is required to inform plan-making, justify the plan's content, and provide a baseline for later monitoring. Information gathering and analysis should serve efficient high quality plan-making. Authorities should therefore take a proportionate approach and consider what is required, and where scarce resources can best be spent, to inform the particular issues being addressed in the plan. Evidence should be presented in a form that can be readily understood.

FORM AND CONTENT

38. Section 15 of the Act requires LDPs to contain a spatial strategy, this being a detailed statement of the planning authority's policies and proposals as to the development and use of land. Outside SDP areas, LDPs must also contain a vision statement, as described in paragraph 14 above. Planning authorities may also include any other matters in the plan that it considers appropriate.

39. Scottish Ministers expect LDPs to be concise map-based documents that focus on their specific main proposals for the period up to year 10 from adoption. Outside SDP areas, they should also provide a broad indication of the scale and location of growth up to year 20. Minor proposals and detailed policies may be removed to supplementary guidance, especially if there is no significant change from the previous plan, and provided an appropriate context remains in the plan itself. In SDP areas, LDPs need not repeat policy material contained in the SDP.

40. Section 15(4) of the Act allows LDPs to contain any maps, diagrams, illustrations and descriptive material the planning authority think appropriate, but regulation 8 requires the inclusion of a proposals map to illustrate the plan's policies and proposals spatially and allow the specific location of proposals to be accurately identified. The proposals map may constitute a number of sheets, thus allowing for the use of insets and the use of different scales for different parts of the plan area.

41. Section 15(3) of the Act also requires LDPs to contain a schedule of land that is owned by the planning authority (and the local authority in national parks) and affected by any of the policies, proposals or views expressed in the plan. Schedule 1 of the regulations contains a form for this purpose. Scottish Ministers intend this provision to relate to policies, proposals or views relating to specific built developments on specific sites, and not to broad policy designations.

PLAN PREPARATION

42. LDPs should be properly integrated with other statutory plans and strategies affecting the development and use of land. In preparing the LDP, section 16 of the Act requires authorities to take into account the National Planning Framework. Within SDP areas, it also requires LDPs to be consistent with the SDP. Regulation 10 also requires the planning authority to have regard to:

  • the resources available for implementing the plan;
  • any LDPs prepared for other purposes but covering the same area;
  • any neighbouring LDPs, SDPs, or English regional spatial strategies or local development frameworks;
  • any regional or local transport strategy, river basin management plan, or local housing strategy relating to the plan area;
  • the national waste management plan; and
  • issues arising out of the European directive on the control of major accident hazards involving dangerous substances.

Depending on future legislation, it is possible that further items will be added to this list, including flood management plans, marine plans and further provisions relating to major accident hazards.

ENGAGEMENT AND THE MAIN ISSUES REPORT

43. With a view to facilitating and informing their work in preparing a LDP, Section 17 of the Act requires planning authorities to first compile a main issues report. This must set out the authority's general proposals for development in the area and in particular proposals as to where development should and should not occur. The report must be sufficiently clear and precise to enable people to understand what is proposed and to make meaningful comments. It must also contain one or more reasonable alternative sets of proposals. Finally, the report must draw attention to the ways in which the favoured and alternative proposals differ from the spatial strategy of the existing adopted LDP (if any). There is no legal requirement to draw such a comparison with existing local plans, but it would be good practice to do this within the first generation of main issues reports.

44. LDPs should be fully co-ordinated with other key strategies from the earliest stage with key infrastructure providers signed up to the delivery of the emerging proposals. Therefore, in compiling the main issues report (i.e. before its publication), section 17(4) of the Act and regulation 11 requires the planning authority to consult with and have regard to any views expressed by:

  • the key agencies;
  • the Scottish Ministers;
  • any adjoining planning authority (including national park authorities); and
  • any planning authority within the same SDPA as the LDP area.

45. Main issues reports are key documents in terms of front-loading effective engagement on the plan, and aligning development planning with SEA. They are the principal opportunity within the plan preparation process for productively consulting stakeholders on the content of the plan and for involving the wider public. Main issues reports are not draft versions of the plan, but should concentrate on the key changes that have occurred since the previous plan and on the authority's big ideas for future development. They should identify a preferred option and reasonable alternatives, and be informed by a sound evidence base. Content that the authority proposes to retain from the existing plan, or which does not have a significant environmental or other effect, should be identified but with limited discussion.

46. Publication should come before the planning authority has reached a firm view as to the strategy that should be followed, and the authority's approach should not be one of 'defending' their proposals but one of genuine openness to different ideas. Main issues reports should be engaging documents that encourage the public and other stakeholders to read and respond to them.

47. The main issues report is a key stage for SEA, and will be accompanied by the draft environmental report. The report therefore needs to contain enough detail and consider alternatives sufficiently at the strategic, policy and site-specific level to meet the statutory requirements for environmental assessment. Separate guidance will be provided on how the SEA and development plan processes relate.

48. Main issues reports may be viewed as progress reports issued in the course of an ongoing process of engagement that will last throughout the period of plan preparation. The character of the engagement activity will change as the plan progresses. In the early stages, the authority should concentrate on involving stakeholders in identifying and assessing issues and options. When the authority's thinking starts to coalesce around preferred options at the time of the main issues report, the approach should be more consultative: asking people to respond to proposals. Following publication of the proposed plan the character of engagement will change again: the authority has now reached a view, and the emphasis should be on providing information and facilitating representations.

PUBLICITY

49. Regulation 12 requires the following minimum publication requirements to apply at the main issues report, proposed plan and modified plan (if any) stages:

  • Publication of a notice in one or more local newspapers, setting out:
    • That the document has been produced and where and when it may be viewed;
    • A brief description of the content and purpose of the document;
    • Details of how further information may be obtained; and
    • A statement that representations may be made, and how, to whom and by when they should be made.
  • Sending this information to:
    • the key agencies;
    • neighbouring planning authorities;
    • planning authorities within the same SDPA; and
    • community councils.
  • Making a copy of the document available to inspect at an office of the planning authority and in public libraries; and
  • Publication on the internet.

50. The Act requires authorities to secure that people who may be expected to want to comment on the main issues report are made aware that they can do so, and are given such an opportunity.

51. In publishing the main issues report, the authority is to send a copy of it to Scottish Ministers, along with the monitoring statement.

52. These publication requirements are a statutory minimum, and Scottish Ministers' expectation is that authorities will have already carefully considered, through their participation statement, the best ways of engaging stakeholders and the wider public at the various stages of plan preparation.

THE PROPOSED PLAN

53. Having had regard to the representations received on the main issues report, section 18 of the Act requires the planning authority to prepare and publish a proposed plan. Publication at this stage is subject to the same minimum requirements as for the main issues report as described at paragraph 49 above, but the authority must allow at least 6 weeks for representations to be made. The legislation additionally requires the planning authority to:

  • Send a copy of the proposed plan to each key agency;
  • Consult the key agencies and Scottish Ministers;
  • Notify any person who commented on the main issues report;
  • Notify the occupiers and neighbours of some specific proposal sites (see para 54 below); and
  • On the rare occasions that a proposed plan is republished following changes to the underlying aims or strategy of an earlier proposed plan, consult people who made representations on the original plan.

54. The planning authority must notify the owners, lessees or occupiers of sites which the proposed plan specifically proposes to be developed and which would have a significant effect on the use and amenity of the site. It must also notify the owners, lessees or occupiers of land neighbouring (i.e. within 20 metres of) sites which the proposed plan specifically proposes to be developed and which would have a significant effect on the use and amenity of the neighbouring land. Notification is only required where there are premises on the site or neighbouring land. In both cases, the authority should use the form included at schedule 2 of the regulations, or similar, and enclose a map of the site. The notification is to be addressed to the "owner, lessee or occupier" of the premises, and not to a named individual.

55. Scottish Ministers expect the proposed plan to represent the planning authority's settled view as to what the final adopted content of the plan should be. This stage should not be used to 'test the water': new or controversial elements of plan content should already have been aired at the main issues report stage (at least as options). Representations by stakeholders and the general public should be concise (no more than 2,000 words plus any limited supporting productions), but should fully explain the issues that people wish to be considered at the examination. There is no automatic opportunity for parties to expand on their representation later in the process. Authorities may therefore wish to consider offering a longer period, of up to 12 weeks for complex plans, to give parties sufficient time to formulate the entirety of their case.

MODIFICATIONS

56. Section 18(3) to 18(9) and regulations 12 and 15 deal with pre-examination modifications. Following the close of the period for representations on the proposed plan, planning authorities may make modifications, but only so as to take account of representations, consultation responses or minor drafting and technical matters. There are four possible ways forward:

(1) Where no representations have been received, or all representations have been withdrawn or fully taken account of by non-notifiable modifications (i.e. only minor modifications), the authority are to publish the plan, submit it to Scottish Ministers and advertise their intention to adopt it.

(2) Where there are unresolved representations, but the authority decides to make no notifiable modifications (i.e. only minor modifications), they are to publish the plan and submit it to Scottish Ministers.

(3) Where the authority decides to make notifiable modifications, they are to publish the modified plan and specify a date (at least 6 weeks ahead) by which further representations may be made. The authority may then further modify the plan or submit it to Ministers.

(4) Where the authority makes modifications that change the underlying aims or strategy of the proposed plan, they are required to prepare and publish a new proposed LDP.

57. So the making of more significant modifications (termed here 'notifiable modifications') brings with it a further opportunity for the public to make representations. Regulation 15 defines notifiable modifications as those that add, remove or significantly alter any policy or proposal in the plan. Where notifiable modifications are made, the minimum requirements for publication are the same as those at the main issues stage, as set out at paragraph 49 above. There is also a requirement to notify the owners, lessees or occupiers of sites significantly affected by site specific notifiable modifications that propose development, and neighbours of such sites who are significantly affected, in the same way as was described at paragraph 54.

58. From the proposed plan stage, Scottish Ministers expect the authority's priority to be to progress to adoption as quickly as possible. Pre-examination negotiations and notifiable modifications can cause significant delay and so should not be undertaken as a matter of course, but only where the authority is minded to make significant changes to the plan. The examination also provides an opportunity to change the plan, so if authorities see merit in a representation they may say so in their response to the reporter, and leave them to make appropriate recommendations. However, if authorities wish to support a significant change to the plan, especially one that would entail further neighbour notification, this should be done by means of a pre-examination modification.

SUBMISSION TO SCOTTISH MINISTERS

59. On submitting the plan to Scottish Ministers, sections 18(4) and 19(1) of the Act also require authorities to submit their proposed action programme, a report of conformity with their participation statement, and (if there are unresolved representations) a request that Scottish Ministers appoint a person to examine the proposed plan. If possible, it would also be good practice to submit the material required under regulation 20 (and set out in paragraph 70 below) at this time. The submitted plan must also be published by (regulation 16):

  • Placing a notice in one or more local newspapers stating that the LDP has been submitted, when this happened, and where and when the plan may be viewed;
  • Making copies available in an office of the planning authority and public libraries; and
  • Publishing on the internet.

EXAMINATION

60. On receiving the proposed LDP, Scottish Ministers will, if there are unresolved representations, appoint a person to examine the plan. The examination process is discussed further from paras 68 below.

ADOPTION

61. Examination reports are largely binding on planning authorities. Regulation 2 of the Town and Country Planning (Grounds for declining to follow recommendations) (Scotland) Regulations 2009 states that authorities may only depart from recommendations that:

a) Would have the effect of making the LDP inconsistent with the National Planning Framework, or with any SDP or national park plan for the same area;

b) Are incompatible with Part IVA of the Conservation (Natural Habitats etc) Regulations 1994; or

c) Are based on conclusions that could not reasonably have been reached based on the evidence considered at the examination.

Section 19(11) of the Act also allows authorities to environmentally assess the plan following modification in response to recommendations, and to not make modifications that are not acceptable having regard to that assessment.

62. The reference to the Natural Habitats regulations is primarily intended to allow the authority to carry out and take account of an appropriate assessment where they suspect a proposed modification may have a significant effect on a European site. Criterion (c) is intended to relate to the possibility of clear errors (including factual errors) by the appointed person, but not to occasions where the appointed person has reached a different planning judgement to the authority's.

63. Subject to these exceptions, section 19(10) of the Act requires authorities to make the modifications recommended in the examination report, and any other requisite modifications. The intention is that these other modifications should be wholly consequent on the reporter's recommendations (e.g. to rectify any factual or terminological inconsistencies created by the reporter's recommended modifications), and should not introduce unconnected new material into the plan.

64. The planning authority are now to publish the modifications (if any) and the plan as they propose to adopt it by (section 19(10) of the Act and regulation 17):

  • Publishing a notice in one or more local newspapers stating:
    • That the authority propose to adopt the proposed plan;
    • Whether the plan has been modified following the examination; and
    • Where and when the plan (as modified if appropriate) and the modifications (if any) may be inspected;
  • Making copies of the proposed plan (as modified if appropriate) and the modifications (if any) available to inspect at the planning office and in all public libraries and on the internet; and
  • Notifying people who made representations on the proposed or modified plan prior to the examination that the proposed plan has been published in the form in which the authority propose to adopt it, and where and when it can be viewed.

65. Within 3 months of receiving the examination report, section 19(12) of the Act requires authorities to send to the Scottish Ministers:

  • The modifications made following receipt of the examination report;
  • A statement setting out any recommended modifications that the authority has not made and the explanation for this (by reference to the grounds listed above);
  • The proposed plan they wish to adopt;
  • The report of the examination;
  • The advertisement of their intention to adopt the plan; and
  • Any environmental assessment carried out into the proposed plan as modified.

66. 28 days after this, the authority may adopt the plan unless directed not to by the Scottish Ministers.

67. After the adoption of the plan, section 20A of the Act requires the planning authority to:

  • Send 2 copies to Scottish Ministers;
  • Publish it, including electronically;
  • Place copies in public libraries;
  • Notify people who made representations on the proposed or modified plan of its publication and its availability in public libraries; and
  • Advertise its publication and availability in a local newspaper.

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Page updated: Friday, February 13, 2009