National Planning Framework and local development plans - proposals for amending regulations: consultation

Amendment to Local Development Plans

45. Section 12 of the 2019 Act inserts section 20AA into the 1997 Act. Section 20AA(1) of the 1997 Act will provide that a planning authority may amend their LDP at any time.

20AA Amendment of local development plan

(1) A planning authority may at any time amend a local development plan constituted for their district.

46. The 1997 Act and 2023 Development Planning regulations set out detailed requirements for the preparation of a LDP. The supporting LDP guidance indicates this process should take around 3 to 4 years. We do not expect an amendment to a LDP to take this length of time and intend the amendment process to be more responsive and streamlined.

Circumstances for amending LDPs

47. Whilst it will generally be at the discretion of the planning authority, we would anticipate the power to amend a LDP could be used to address a new local policy matter that reflects a new local issue or ambition. It may also be used to address local place-based matters, such as incorporating content from one or more local place plans, Masterplan Consent Areas, or local implications of a new national development in a revised NPF. We would not anticipate LDPs being amended to add in single sites, for example for housing or business use. We will update the local development planning guidance with further advice, which will be informed by responses to this consultation.

48. Section 20AA(2) of the 1997 Act provides discretion for the Scottish Ministers to direct a planning authority to exercise their power to amend a LDP, and for that to relate to matters specified in the direction. It is also a requirement under section 20AA(3) of the 1997 Act that the direction sets out the reasons for requiring the amendment to the LDP.

20AA Amendment of local development plan

(2) The Scottish Ministers may direct a planning authority to exercise their power under subsection (1) in relation to matters specified in the direction.

(3) A direction under subsection (2) must set out the Scottish Ministers’ reasons for requiring an amendment to the local development plan.

49. The Scottish Ministers would expect to exercise this power very sparingly. In considering a direction to amend a LDP, each circumstance will be considered on its own merits. The benefits of an established and consistent policy framework are equally applicable to LDPs as to the NPF, with the aim of enabling confidence in the planning system over the long term.

Scope of regulations for amendment to LDPs

50. As set out previously, regulations can only cover matters where power has been given in the primary legislation for the Scottish Ministers to regulate. These powers are provided in section 20AA (5)-(7).

20AA Amendment of local development plan

(5) The Scottish Ministers may by regulations make further provision about amendments under subsection (1).

(6) Regulations under subsection (5) may in particular make provision—

(a) about the procedures to be followed,

(b) about the consultation to be undertaken on proposed amendments,

(c) about when the amendments take effect,

(d) about the publication of the amended plan.

(7) Regulations under subsection (5) may provide that sections 16A to 20A apply to an amendment to a local development plan as they apply to a local development plan subject to such modifications as are specified in the regulations.

51. Our intention is to update the LDP guidance to reflect the procedures for amendments to LDPs, and Ministers’ expectations around amendments, to accompany the regulations coming into force.

Procedures for amending LDPs

52. The principle of streamlining the process for amendments compared to that for a full LDP is reflected in the proposals below. Appropriate engagement, consultation and scrutiny will still be incorporated. We consider that planning authorities should not be required, in preparing an amendment, to undertake elements of the process which may not be relevant in all cases. Guidance will, however, indicate where additional elements may be appropriate.

Early engagement/discussions

53. Section 16C of the 1997 Act relates to effective community engagement guidance; planning authorities must have regard to any such guidance issued by Scottish Ministers when preparing a LDP. Community engagement is a significant aspect of planning reform, therefore we propose to require that regard must also be had to any community engagement guidance issued by Ministers when amending a LDP.

Question 11:

To what extent do you agree that planning authorities should be required to have regard to community engagement guidance issued by the Scottish Ministers under section 16C when amending a LDP?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

54. Section 20B of the 1997 Act relating to Development Plan Schemes (DPS) and Participation Statements falls outwith the provisions listed in Section 20AA(7). However, under the powers for these regulations to cover procedures for amendments, we propose to include a requirement for planning authorities to provide a statement outlining how they intend to engage with stakeholders on an amendment to a LDP. This could take the form of either an update to the DPS, an additional annex or a separate statement that cover the subject of the amendment, expected timescales and proposed engagement.

55. We do not propose that planning authorities be required to invite views on how stakeholders wish to be engaged. We propose to require the statement to be issued as soon as practicable. In practice, we would expect this would be within 6 weeks of an authority's decision to progress an amendment to a LDP. We consider the proposals will provide transparency, enable relevant stakeholders to be engaged in the process (including children and young people as referred to below) and assist stakeholders in resourcing their engagement.

Question 12:

To what extent do you agree that planning authorities should be required to provide a statement outlining how they intend to engage with stakeholders on an amendment to a LDP?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

56. Section 20AA(7) provides that the LDP Amendment regulations may provide that section 16A applies to an amendment to a LDP as it applies to a LDP, subject to such modifications as are specified in the regulations. Section 16A of the 1997 Act relates to the participation of children and young people in the LDP. Given that amendments may be specialist or technical in nature, and relate to individual elements of the plan, we do not propose to specifically require the participation of children and young people for every amendment to a LDP. However, we would expect that where an amendment is likely to have a direct impact on the interests of children and young people, planning authorities would ensure engagement and involvement, as appropriate. We intend to update our guidance to reflect this.

Question 13:

To what extent do you agree that not every amendment to a LDP should require specific participation of children and young people?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Information and Considerations

57. The primary legislation provides that in preparing an amendment to a LDP, the planning authority must take into account the NPF and any local outcomes improvement plan (LOIP). There is also scope for Scottish Ministers to prescribe in regulations other information and considerations.

20AA Amendment of local development plan

(4) In preparing an amendment to a local development plan, a planning authority—

(a) are to take into account—

(i) the National Planning Framework,

(ii) any local outcomes improvement plan (within the meaning of section 6 of the Community Empowerment (Scotland) Act 2015) for the part of their district to which the local development plan relates,

(b) are to have regard to such information and considerations as are prescribed; and

(c) may have regard to such other information and considerations as appear to them to be relevant.

58. In relation to the prescribed matters, we propose that planning authorities must have regard to the information and considerations set out in regulation 9 of the Town and Country Planning (Scotland)(Development Planning) regulations 2023. This would ensure that the information given regard to mirrors that required when reviewing a LDP in full.

59. If this was covered in the LDP Amendment regulations it would cover a range of potentially relevant documents, for example regional spatial strategies, neighbouring LDPs, and various other strategies, as set out in regulation 9(2)(e).

Regulation 9 of the Town and Country Planning (Scotland) (Development Planning) regulations 2023

(2) The information and considerations are—

(a) any regional spatial strategy prepared under section 4ZA(1) of the Act for the local development plan area or an area adjoining the local development plan area,

(b) any local development plan prepared for a different purpose for the local development plan area,

(c) any local development plan prepared for an area adjoining the local development plan area,

(d) where the local development plan area adjoins land in England, any document which forms part of the development plan(2) for the area in which that land is situated,

(e) the following plans and strategies, insofar as relating to the local development plan area—

(i) the national waste management plan,

(ii) the national marine plan,

(iii) any regional marine plan,

(iv) any river basin management plan,

(v) any flood risk management plan,

(vi) any local flood risk management plan,

(vii)any regional transport strategy,

(viii) any local transport strategy,

(ix) any local housing strategy,

(x) any open space strategy published under section 3G(3) of the Act.

(f) the objectives of preventing major accidents and limiting the consequences of such accidents for human health and the environment,

(g) the need in the long term—

(i) to maintain appropriate safety distances between residential areas, buildings and areas of public use, recreational areas and, as far as possible, major transport routes and—

(aa) establishments covered by the Directive,

(bb) major accident hazard pipelines,

(ii) to protect areas of particular natural sensitivity or interest in the vicinity of establishments or major accident hazard pipelines, where appropriate through appropriate safety distances or other relevant measures,

(iii) in the case of existing establishments, to take additional technical measures in accordance with regulation 5 of the Control of Major Accident Hazards Regulations 2015(4) so as not to increase the risks to human health and the environment.

(h) the resources available or likely to be available for the carrying out of the policies and proposals set out in the local development plan.

60. The requirement ‘to have regard to’ enables the planning authority to establish the information and considerations that are relevant to the amendment, and to give appropriate weight to them.

61. We also intend to ensure that the considerations set out in regulation 9(f)-(h) of the development planning regulations are to be given regard to. These are around prevention of major accidents, safety distances, major accident hazard pipelines and the resources available or likely to be available for the carrying out of the policies and proposals set out in the LDP as amended.

62. Section 20AA(4)(c) provides that planning authorities may have regard to such other information and considerations as appear to them to be relevant. This could include other local strategies, action plans and registered local place plans.

Question 14:

To what extent do you agree that, when preparing an amendment, a planning authority must have regard to the information and considerations set out in regulation 9 of the Town and Country Planning (Scotland)(Development Planning) regulations 2023?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Justification

63. As provided for in section 20AA (7) (see para 54 above), the regulations on LDP amendments may provide that section 16B applies to an amendment to a LDP as they apply to a local development plan. Section 16B of the 1997 Act relates to the Evidence Report for the preparation of a LDP, and as per our local development plan guidance the Gate Check stage of preparation. In line with ensuring our proposals remain proportionate and appropriate to the amendment being made, we do not propose to require a full Evidence Report to be prepared or the Gate Check stage to be undertaken for an amendment to a LDP.

64. However, we propose that the planning authority collates evidence to justify and inform the proposed amendment. We propose that the planning authority prepares a Justification of Amendment Statement, setting out the rationale for the proposed change and details of any evidence or engagement already collected/carried out. This will be published alongside the draft amendment proposal and consultation.

Question 15:

To what extent do you agree that an authority should be required to collate relevant evidence to inform the proposed amendment and prepare a Justification of Amendment Statement?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

65. Section 20AA (7) also allows the amendment regulations to provide that section 16D applies to an amendment to a LDP. Section 16D of the 1997 Act relates to Play Sufficiency Assessment (PSA) and its requirement for the preparation of the Evidence Report. As we do not propose to require an Evidence Report for an amendment to a LDP, we do not propose to require a PSA for an amendment to a LDP. Moreover, it is unlikely that a PSA would be relevant to all amendments.

Question 16:

To what extent do you agree that a Play Sufficiency Assessment should not be required for an amendment to a LDP?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

66. Section 20AA (7) also allows for the application of section 16E of the 1997 Act, which relates to publication of a list of persons seeking land for self-build housing. Planning authorities are to have regard to the list when preparing a LDP under section 16 of the 1997 Act. Whilst we do not propose to require that regard be had to the self-build list for every amendment to a LDP, we would expect that where the information is relevant, it will be taken into account. We will update the LDP Guidance to reflect this.

Question 17:

To what extent do you agree that an authority should not be required to have regard to the self-build list for every amendment to a LDP?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Consultation

67. For preparation of LDPs, sections 18(1B) and 18(1C) of the 1997 Act require that a Proposed LDP is approved by the planning authority before it is published (for consultation) and remove the ability of this to be delegated by the full council.

68. We do not consider it necessary for a proposed amendment to a LDP to be considered by the full council prior to consultation. Therefore we propose that before a proposed amendment is published for consultation, it must be approved by the planning authority. We are not intending to require approval by the full council within regulations. By referring to the ‘planning authority’ rather than ‘full council’ this will enable the planning authority to decide on the appropriate level of approval/sign off for the proposed amendment to be consulted on (for example, it could be a decision of full council, or at Committee, or delegated to the Chief Planning Officer, depending on the nature of the amendment and the Council’s internal delegation procedures).

Question 18:

To what extent do you agree that approval by the full council is not always required before the publication of a proposed amendment to a LDP for consultation?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

69. Sections 18(a) and 18(aa) of the 1997 Act require the publication of the Proposed Plan for consultation and the Evidence Report alongside for information. Section 21(4) also requires publication of the Proposed Delivery Programme at the same time. For an amendment to a LDP we propose that the proposed amendment be published for consultation, alongside the aforementioned Justification of Amendment statement which is to be published for information and to clarify evidence gathered. It would be expected that a statement on the consequences for any existing Delivery Programme would also be published at this time. We consider this to be an equivalent and proportionate package of material for consultation and information relating to a proposed amendment to a LDP.

Question 19:

To what extent do you agree that the proposed amendment to a LDP should be published for consultation, alongside the Justification of Amendment statement and any statement on the consequences for the Delivery Programme which are to be published for information?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

70. Section 18(1)(d) of the 1997 Act requires that planning authorities consult with key agencies and such persons as may be prescribed, when a Proposed Plan is published. Regulation 11 of the Town and Country Planning (Development Planning) (Scotland) regulations 2023 prescribes that Scottish Ministers should also be consulted.

71. For a proposed amendment to a LDP, we propose that planning authorities are required to notify:

• Scottish Ministers;
• the public at large;
• key agencies (as identified in Reg 25 of the Development Planning regulations); and
• Community Councils.

72. We would expect that planning authorities also engage and consult those considered appropriate to the specific amendment being proposed.

73. This will enable planning authorities to consider those stakeholders relevant to the proposed amendment, in line with the proposals outlined above, for a statement outlining how they intend to engage with stakeholders. It will also enable key agencies to consider whether they have an interest in the amendment, rather than the planning authority determining that. As explained at paragraph 36, we believe the ‘public at large’ would be a sufficiently broad requirement to include different sections and groups within that.

Question 20:

To what extent do you agree that planning authorities should be required to notify Scottish Ministers and to consult with the public at large and key agencies, alongside others they consider appropriate, when amending a LDP?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

74. Section 18(2) of the 1997 Act requires consultation on a Proposed Plan for a period of 12 weeks. Similar to our reasoning in paragraph 38 for the NPF, we consider that length of time may not always be necessary or appropriate and setting a minimum rather than a prescribed timescale will provide flexibility. Therefore, for a proposed amendment to a LDP, we propose that the timescale for consultation be a minimum of 6 weeks. This will provide flexibility for the authority subject to the nature and scale of the amendment, allowing them to extend the timescale for more complex amendments or those where significant numbers of people may have an interest.

Question 21:

To what extent do you agree with the proposed minimum 6 weeks consultation period, understanding that the timescale may be extended when deemed appropriate given the scale of the amendment?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Consideration of representations/Examination

75. We propose that, following the consultation, the planning authority be required to take into account any representations made. Our proposal aims to ensure a reasonable approach which helps to reduce the time and resource burden for straightforward cases, whilst maintaining independent scrutiny as appropriate.

76. Sections 19, 19ZA and 19A of the 1997 Act relate to the Examination of a LDP. Examinations provide independent scrutiny once stakeholders have input to the LDP process. They also have an impact on the time and resources needed to progress the plan. We envisage that not all amendments to LDPs will require comprehensive independent scrutiny, but understand that this is an important part of the decision making process. Our proposed approach seeks to balance streamlining of the amendment process with the need for independent scrutiny in some circumstances.

77. Following the consultation on a proposed LDP amendment, we propose that the planning authority publishes a modifications report, providing the details and rationale for any changes subsequently made to the proposed amendment. This will include a summary of the representations made and the consideration given.

78. Where there are no unresolved representations, we propose that the planning authority may proceed to adopt the amendment without any further scrutiny.

79. Where unresolved representations remain that are not addressed via the modifications report, we propose that the planning authority must notify Scottish Ministers and request they appoint a person to examine the amendment.

80. If an Examination is required to be held, similar to LDP Examinations, the form it takes would be at the discretion of the appointed person, in practice a reporter from the Scottish Government’s Planning and Environmental Appeals Division. The reporter’s recommendations would then be considered binding, subject to the same grounds for declining to follow recommendations as apply for LDP preparation.

Question 22:

To what extent do you agree with our proposed approach to independent examination?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Taking effect

81. Section 20(1) of the 1997 Act sets out that the LDP is constituted when it is adopted by the planning authority. We propose that an amendment to a LDP also takes effect when it is adopted by the planning authority.

Question 23:

To what extent do you agree that an amendment to a LDP should take effect when it is adopted by the planning authority?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.

Publication

82. Section 20A of the 1997 Act sets out the publication requirements for when a LDP has been adopted. This includes publishing it, including by electronic means, sending two copies to Scottish Ministers, placing a copy in public libraries within the authority area, notifying those who made representations to the consultation and advertising in a local newspaper that the LDP has been published.

83. We propose that the same be required when an amendment to a LDP has been adopted. We also propose for the publication requirement to relate to the full updated version of the LDP with the amendment incorporated. This provides for the most up to date version of the plan being available and for publication to have been done in the same way as the initial plan and therefore having the potential to reach the same audience for their awareness.

Question 24:

To what extent do you agree that a full, updated version of the amended LDP, incorporating the amendment, should be published in the same way as the initial LDP?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly Disagree

Where applicable, please give reasons for your answer.