As Covid-19 continues to impact on every part of the country, including the planning system, the Scottish Government is pressing ahead with further public consultation. Ironically, the topic the Government wishes to discuss is just that: pre-application consultation (PAC).
PAC is a current part of the planning system and can play an extremely important role in the formation of a successful development. These current requirements were introduced in 2009 as part of the implementation of the Planning etc. (Scotland) Act 2006. PAC is a statutory requirement for National and Major scale developments i.e. large scale developments.
The Government makes clear that this consultation is not related to the changes that were made to planning application consultation processes in light of the Covid-19 pandemic (see Town and Country Planning (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020). Remember, these temporary regulations removed the requirement to hold a ‘physical’ public event and, instead, encouraged, online events for the public to be involved in.
These new proposals are intended to address concerns which were first raised in 2016 from the independent review in to the Scottish Planning System which referred to it sometimes being a ‘tick box exercise’. There have also been concerns that there are instances where PAC needs to be repeated where a developer seeks to make another application for the same overall development leading to wasting time and resources, also causing consultation ‘fatigue’ for both developers and communities.
The Current PAC
In short, requirements under current legislation include:
- Serving a Proposal of Application Notice (PAN) on the Planning Authority;
- Consult the local community councils;
- Hold (at least) one public event;
- Publish a notice in the local newspaper at least 7 days prior to the public event; and
- Carry out any other PAC measure as requested by the Planning Authority.
A PAC report must be submitted with the future planning application detailing all these measures and what the PAC achieved.
The Government states that it wishes to make the PAC process more consistent and transparent by proposing that the proposal information should be available both online (as has been done through emergency Covid-19 arrangements) and in hard copy.
Furthermore, exemptions to PAC are also proposed. For example, in some circumstances a developer has undertaken PAC, submitted an application, before making a further application for essentially the same development which would trigger PAC again. This may lead to the aforementioned fatigue and inefficiency for stakeholders when changes are very minor.
PAC Events and Reports
Another key proposal is to the requirement for two public events as a statutory minimum for PAC and this would be a physical event. It would be intended for the second event to occur later in the process and to provide feedback to the public on the views received during the earlier stages of PAC. Seven days would be the minimum time period between the first and second events – so as to avoid a ‘tick the box’ and allow genuine feedback to be provided. A further newspaper notice would be required in this instance too. Although, the consultation paper does make clear that views are welcome about online approaches to online consultation.
PAC reports which are then submitted alongside the planning application would be subject to further detail on how events were undertaken, who attended, how information was presented and handed, who was consulted, how feedback was taken on board and how members of the public were given feedback on the applicant’s consideration of views raised during the PAC process.
Exemptions from Pre-Application Consultation Requirements
There is also an extensive discussion on where PAC would not be required where an applicant wishes to make a second application for the same or amended version of the same basic proposal that was the subject of PAC and an application. A subsequent application may seek to amend points of refusal, or potential refusal where an earlier application is withdrawn, or where an applicant way want to make two applications with different versions of the same proposal. It would seem likely that only limited changes would be made in these circumstances and, therefore, a second round of PAC could be excessive. There are five criteria and, crucially, all five of these elements would need to met to qualify for PAC exemption.
The consultation document goes into further detail on the elements where PAC exemption would apply.
Currently, a prospective applicant can also obtain the view of the planning authority as to whether PAC requirements apply prior to making an application. With the addition of circumstances in which exemptions apply, additional information will need to be submitted when applying for such a view with reference to whether an exemption applies. Further details of these requirements are included within the draft regulations.
An important update is the intention of the government to introduce the time-limit for submitting an application: an application for planning permission would need to be made within 18 months of the PAN. This change would come into force at the same as the other proposals outlined. This provision was introduced as part of the Planning (Scotland) Act 2019 to ensure views given at the PAC stage are still relevant when an application is made.
Currently, there is no time limit for submitting an application after a PAN is submitted (apart from having to wait the minimum 12 weeks before submitting a planning application).
There will be transitional arrangements in order to not disadvantage those who have already started the PAC process. Thus, where a PAN has been served before the time limit comes into force, a prospective applicant will have 18 months from the coming into force date to make an application.
Pre-Application Consultation with Disabled People
The government is proposing guidance to highlight the importance of consulting with disabled people at an early stage in the application process; noting that any PAC report should also indicate what was done and how any issues raised were considered in finalising the proposal.
This consultations is open until the 6th November 2020 with the Government seeking responses.
Certainly, PAC plays an important role in the development process with community views often providing invaluable insight into local areas and sites. The Covid-19 crisis has already accelerated the digitisation of PAC events which will surely be seen as a positive addition to the consultation process making it more accessible and transparent (and possibly encouraging younger people to be involved too).
The principle of PAC exemption for second applications in certain circumstances appears sensible and the new requirements for PAC reports will increase transparency and formalise a lot of information which is already included by many applicants.
However, it will be interesting to understand just how the requirement for a minimum of two events will be taken by the development community. Some may argue that not every development proposal needs more than a single PAC event (especially if information can be uploaded online on a consistent basis): this depends on the location, community activity, scale, amongst other factors.
Indeed, the decision to hold a second event may only be made after the first one is finished and assessed, demonstrating the flexibility in the current system. Therefore, prescribing a second event may only serve to maintain a ‘tick-box’ exercise in some circumstances going forward.
Full details of the proposals can be found here.
Should you require any further information about these proposals, please contact the Planning and Development Team via Planning@g-s.co.uk.