NOTIFICATION TO SCOTTISH MINISTERS
21. The Town and Country Planning (Notification of Applications) (Scotland) Direction 2007 (see Scottish Executive Development Department Planning Circular 5/2007) sets out circumstances in which planning authorities must notify Scottish Ministers where they intend to grant planning permission. This allows Scottish Ministers to consider whether there are reasons for them to intervene by calling in planning applications for their own determination. In relation to local authority interest developments, before granting consent planning authorities must notify Ministers where the proposed development:
- would be contrary to the development plan for the area; or
- has been the subject of a substantial body of objections.
22. The notification requirement is structured in such a way so that only in certain circumstances will planning authorities need to notify local authority interest developments to Scottish Ministers. The main purpose of this process is to allow Ministers to consider whether any possible conflict of interests may have unduly influenced the planning authority, or have made it difficult for the authority to retain an impartial view of the merits of the proposed development. In such circumstances, Ministers will give serious thought to whether they should call in applications for their own determination. Proposals that do not fall within the criteria noted above are unlikely to require Ministerial intervention. It is for this reason that not all local authority interest developments should be notified to Ministers.
23. The terms of the Notification Direction, therefore, require a degree of interpretation as to how the Direction applies to individual planning applications. Local authorities, as the planning authorities for their areas, are best placed to judge whether a particular proposal is a departure from the development plan, or whether the body of objections has been substantial. The judgement on whether to notify will always be influenced by the individual circumstances and characteristics of the case. As such, it would not be appropriate to set absolute definitions to fit all circumstances.
24. In most cases, it will be clear whether an application should or should not be notified to Ministers. But there will be borderline cases where the need to notify is less certain. There have been times in the past when applications have not been passed to Scottish Ministers which perhaps should have been; sometimes to the disappointment of objectors who expected an opportunity to pursue their case with Ministers. On the other hand, there have also been many occasions where planning authorities have taken an extra-cautious approach and have notified Ministers unnecessarily; serving only to delay the consent process. The following paragraphs are intended to assist with the interpretation of the notification requirement, both to guide planning authorities on the matter and also to aid other people's understanding of why an application has, or has not, followed this notification procedure.
UNDERSTANDING THE NOTIFICATION REQUIREMENT
"Contrary to the development plan for the area"
25. Planning legislation places a statutory duty, when deciding a planning application, to make that decision in accordance with the development plan for the area, unless material considerations indicate otherwise. This duty ensures that development plans are firmly at the heart of the planning system, and are central to a planning authority's assessment of any application. In carrying out that assessment, the authority must identify all aspects of the development plan which are relevant to the proposed development, interpret them carefully taking account of the wider aims and objectives of the plan as well as the detailed wording of stated policies, and then reach a decision as to whether or not the proposal is in accordance with the development plan.
26. In many cases, deciding whether or not a proposed development is in accordance with the plan will be straightforward. It will clearly be out of accord with the plan if the development conflicts with a specific land allocation or designation. But it might not be so certain where a proposal is being assessed against more general or criteria-based policies, or where it is actively supported by some policies of the development plan but perhaps does not sit perfectly with other policies.
27. The planning authority is best placed to balance the range of policies and proposals and decide whether a proposal does or does not accord with the development plan, and is obliged to do so as part of its assessment of any planning application. In terms of this criterion for notifying Ministers, the only judgement to be made is whether or not the proposal constitutes a departure from the development plan; it should not be influenced by material considerations.
"Substantial body of objections"
28. There is evidence that, in the past, planning authorities have interpreted this term in different ways. It has sometimes raised questions over whether a "substantial body" should be determined by the number of objections alone, or whether it should also take into account the nature or relevance of the grounds of objection, or how the objections have been presented. The following paragraphs set out Ministers' intentions in relation to local authorities determining whether or not a body of objections is indeed "substantial" for the purposes of the notification requirement.
Scottish Ministers should be notified where the planning authority considers the strength of opposition is a significant material consideration, taking account of all of the following factors:
(a) the number of representations against the proposal, in the context of the locality;
(b) where objections are from a group or organisation, the extent to which it may be representative of the community; and
(c) the relevance, in planning terms, of those representations
Number of representations
29. The views of local people and the strength of public feeling will always be important factors in planning decisions. In terms of numbers of objections or objectors, what might constitute "substantial" will not be the same in all cases; much depends on the particular circumstances and nature of the area. For example, 10 objections may not be considered substantial in a built-up urban area; but it might be in a small rural settlement. For this reason, it would not be appropriate for Scottish Ministers to set a threshold over which notification would always be necessary. The planning authority should be much better placed to reach a conclusion on whether the number of objections might be considered substantial; taking account of how the number and location of objectors relates to the local and wider population that could legitimately claim to be affected by the development.
Multiple objections and representative groups
30. There can be many different ways in which objections are presented; not all objectors write individual letters to the planning authority. Sometimes objections are lodged in the form of petitions or of standard/template letters to which people add their names and contact details. It cannot be assumed that those signatories feel any less strongly about the proposed development, although an individually considered expression of views might legitimately be seen as a clearer confirmation of the strength of those views. Sometimes a single group or organisation (e.g. a community council or a local action group) acts on behalf of a larger group of people when making representations. In these cases, a judgement will need to be made about how representative these groups or organisations, and their views, may be of the local population. Where such groups regularly engage proactively in the planning process and are normally very measured in their views of future development of their areas, but on a specific proposal have raised clear objections, that in itself might reasonably be treated as a substantial body of objection.
31. For the purposes of considering this requirement to notify Ministers, the level of public support for the proposed development, whilst in itself an important consideration, should not be used to offset the strength of opposition.
Relevance of grounds of objection
32. As stated above, planning decisions are made on the basis of the terms of the development plan and other relevant planning issues. While it is essential that legitimate local concerns are fully and fairly considered, the planning process should not be manipulated by a well-organised or well-resourced minority without a strong case to state against a particular development; public opinion cannot always be measured by the intensity by which some people pursue their arguments or campaigns.
33. The number of objections or objectors cannot be the sole deciding factor as to whether the body of objections has been "substantial", but the quality and relevance of the arguments presented will be paramount.
The decision whether to notify Scottish Ministers
34. In deciding whether an application "does not accord with the development plan" or has attracted a "substantial body of objections" - and should therefore be notified to Ministers - planning authorities will need to contemplate all of these issues and make a judgement drawing on their knowledge of their areas and of the relevant issues. To carry out the notification procedure where there is no need to do so will lead to unnecessary delays to development, causing frustration to some parties; and it may also give a degree of false hope to people who have lodged objections. Planning authorities should not therefore adopt a blanket approach to notifying local authority interest developments to Ministers without considering these relevant factors. But as a general rule, if having considered this advice planning authorities are unsure whether any particular application falls within the criteria, it would be best to err on the side of caution and notify Ministers, to ensure there is no doubt about there having been an appropriate level of scrutiny.
35. It is good practice for a planning authority to provide a clear explanation why it has concluded that a local authority interest development should or should not be notified to Scottish Ministers. This can generally be explained in the report to the council's relevant committee.
PRIOR CONSULTATION WITH OBJECTORS
36. The Town and Country Planning (Notification of Applications) (Scotland) Direction 2007 introduces a new requirement for prior consultation with objectors on local authority interest developments. Its purpose is to enhance the scrutiny of such developments and the manner in which any objections have been considered to ensure confidence in a transparent decision-making process. This consultation should be carried out only where a planning application falls within the requirement to be notified to Scottish Ministers as a local authority interest development, as set out above, and should occur:
- after the planning authority has resolved to grant planning permission; and
- before Scottish Ministers are notified of the intended decision.
37. The planning authority must inform all objectors of its decision to grant planning permission and provide them with a statement of reasons for that decision. Those objectors must be afforded an opportunity to provide comments to the planning authority on that statement of reasons, and also to make representations to the planning authority and to Scottish Ministers if they consider that their earlier representations have not been properly dealt with by the authority. Objectors must be given a minimum of 14 days to lodge any further representations in respect of these matters. It is important that the planning authority clearly explains to objectors why they are being consulted at this stage, the basis on which further representations are being invited and what will happen to any further representations they make.
38. Following the receipt of any further comments as a result of this consultation, the planning authority must consider whether it remains minded to grant planning permission. If so, then at that stage the authority should notify Scottish Ministers as set out in the Town and Country Planning (Notification of Applications) (Scotland) Direction 2007.
39. SEDD Planning Circular 5/2007 provides guidance to planning authorities on the submission of the relevant information to Scottish Ministers.