Applications
Section 18: Pre-application consultation
137.Section 18 of the Act amends sections 35A, 35B and 35C of the 1997 Act on pre-application consultation (PAC).
138.Section 35A (pre-application consultation: preliminary) of the 1997 Act requires that, before submitting an application for planning permission for a prescribed class of development, the prospective applicant has to comply with section 35B (pre-application consultation: compliance). Section 35A of the 1997 Act goes on to specify a screening procedure whereby a prospective applicant can ask the planning authority for their opinion on whether the proposal falls within a class of development requiring pre-application consultation (PAC).
139.Section 35B of the 1997 Act requires the prospective applicant to give a notice (a proposal of application notice) to the planning authority that an application for planning permission to which PAC applies will be made. Such an application cannot be submitted within 12 weeks from the giving of this notice. Section 35B goes on to make provision about the content of the notice, who is to be consulted and how the consultation is to be carried out.
140.Section 35C (pre-application consultation report) of the 1997 Act requires that if an application is to be submitted, a report must be prepared of what was done to comply with the PAC requirements. This section also allows for the form of such a report to be prescribed.
141.Section 35A(1A) of the 1997 Act contains an exception to the requirement for PAC in relation to applications for planning permission under section 42 of the Act. Section 18(2)(a) of the Act amends section 35A(1A) of the 1997 Act to add a new paragraph (b) allowing the Scottish Ministers to make regulations specifying circumstances in which an application for planning permission does not require PAC. This power will be in addition to the existing power under section 35A which allows Ministers to prescribe classes of development to which PAC requirements apply.
142.Sections 35A(3) and (9) of the 1997 Act relate to the screening process for prospective applicants on the need for PAC. At the moment, these provisions are framed on the basis of the existing rules about when PAC applies. Sections 18(2)(b) and (d) of the Act update that reference, in light of the fact that whether or not the development is of a prescribed class will now no longer be the only factor in determining whether PAC is required. The replacement form of words allows the screening opinion to consider both the current test for PAC (whether the proposal relates to a prescribed class of development to which PAC applies) and also the new test (whether it is covered by any prescribed circumstances where PAC does not apply).
143.Section 18(2)(c) of the Act also amends section 35A(5) of the 1997 Act so that regulations may prescribe the content, and not just the form, of a notice requesting screening.
144.Section 18(3) of the Act amends section 35B(3) of the 1997 Act so that an application for planning permission must be submitted within a maximum of 18 months of the date of submission of the proposal of application notice. This runs concurrently with the existing minimum period, which provides that the application cannot be submitted until at least 12 weeks after the giving of this notice.
145.Section 18(4) of the Act amends section 35C(2) of the 1997 Act so that regulations can prescribe not only the form but also the content of a PAC report.
Section 19: Assessment of health effects
146.Section 19 of the Act introduces a new section 40A into the 1997 Act, which requires the Scottish Ministers to make regulations about the consideration to be given to the likely health effects of any national or major development, before planning permission is granted. Under paragraph 9 of schedule 2 of the Act, the regulations are to be subject to affirmative procedure.
Section 20: Regulations about procedure for certain applications
147.Section 20 of the Act replaces subsection (3) of section 42 (determination of applications to develop land without compliance with conditions previously attached) of the 1997 Act – see paragraph 172 below. Subsection (3) currently allows special provision to be made in a development order about the procedure to be followed in an application under section 42 of the 1997 Act. The revised text allows for such provision to also be made in regulations.
Section 21: Removal of requirement to recover costs before determining certain applications
148.Section 34(4)(c) of the 1997 Act requires an applicant to pay the planning authority a fee to cover the costs incurred in giving notice to interested parties of the application before the authority can issue a decision on that application. Section 21 of the Act repeals this requirement as the intention is to change the approach to recovering such costs upfront through the application fee. Currently the advertising costs are not collected at point of application, but before decision notice is issued which may lead to applicants refusing to pay such costs if they know the application is to be refused.
Section 22: Declining to determine an application
149.Section 39 of the 1997 Act sets out the discretionary powers for planning authorities to refuse to accept planning applications (decline to determine), where permission was previously refused for a ‘similar application’, i.e. where the development and the land are the same or substantially the same. Different criteria apply depending whether there has been an appeal or local review, but in each case the authority may decline to determine an application if the criteria were met within the previous two years. Section 14A of the Act amends this to be five years in each case. Section 38 of the Act inserts a new section 39A requiring the Scottish Ministers to publish guidance on what constitutes a “similar application” and a “significant change” for the purposes of declining to determine an application.
