Most of the provisions revising and bringing the planning system in Scotland up to date have now become effective. The one outstanding area relates to Section 75 Agreements (the provisions of which are to be known as planning obligations hereafter) and Good Neighbour Agreements.
The Scottish Government have been clear however that even once all the legislative changes have become effective the system would be kept under review and further changes would be made as and when necessary. There is evidence of this in a discussion document which came out in July entitled "Resourcing a High Quality Planning System – A Consultation Paper".
This looks at a number of issues in relation to the planning system though it is particularly concerned with the topic of fees. In relation to quality generally the Scottish Government have had for a considerable length of time extensive powers to step in if and to the extent a local authority was perceived not to be operating properly in its role as a planning authority. These powers were clearly reviewed at the time the Planning Etc (Scotland) Act 2006 was brought into being because that introduced into the 1997 Act Section 23b which deals with the default powers of Ministers. These powers have never been used by the Scottish Government and they are possibly the "nuclear" option. If there are real issues about quality in planning then maybe these should be looked at.
Costs and fees
In relation to the issue of costs it is probably relevant to observe that the costs involved in a planning application can be significantly more than the fee paid to the Council. This is so if for example the application is accompanied by an environmental impact assessment and the Council needs to use external expertise to review that but it is equally so if the application is refused and a significant appeal process results. A very good example of that (though possibly in somewhat unique circumstances) is the Trump golf development which not only resulted in the Council being drawn into an inquiry but equally a significant judicial review process involving a petitioner who is legally aided and in respect of whom it will be difficult for the Council to recover legal costs.
The discussion paper notes (see paragraph 9) that it is Scottish Government policy that "developers should pay for the work involved in deciding planning applications, whilst other functions which are largely for the wider public good should be resourced by local authorities". While planning fees were raised in Scotland in April 2010 the maximum of fee in Scotland is a fraction of the figure in England and Wales (£15,950 as against £250,000) and even comparisons with Northern Ireland result in higher fees being paid there in some circumstances.
Creating a more effective planning process
While the discussion paper looks at fees extensively it does highlight that there are other issues which are of significance to this issue. The point is made that the new processes are intended to streamline and make more effective the planning process. It is still therefore the intention of the Scottish Government to bring out a more extensive permitted development order which would remove many applications from the system. This has been long promised and indeed is an integral part of the changes to the system.
The new system is intended to be proportionate ensuring that unnecessary demands are not made of any party. The discussion paper again emphasises the need for pre-applications discussions and suggests that use should be made of Processing Agreements, though these were dropped as a mandatory element of major applications (though the Scottish Government has said on more than one occasion that there is no need for any legislation to allow a Processing Agreement to be entered into – correct but without legislation and a degree of compulsion that may not happen).
The discussion paper also looks at the use of joint services, sharing good practice and outsourcing the handling of some parts of the planning process.
Fee structures
However the major emphasis of the discussion paper is on the fee structure and a number of options are looked at including a value based approach, time charging, fees being fixed by Councils, fees being linked to the hierarchy of developments and the current model subject to certain adjustments.
A value based approach is one where the fee is linked to the value of the development (this is an approach which is already used in Scotland in relation to building warrants and is apparently used in Australia). Typically such a system would not have a maximum fee. At the moment the fee is fixed by reference to the category of the development and the area involved. Obviously there is the potential for dispute about the value of the development though the proposal is that an objective measure such as the RICS Building Cost Information Survey of tender prices might be relied upon in such circumstances.
Time charging as the name suggests involves fees being linked to the time spent processing the application. Such arrangements are not unknown obviously in the private sector. Already in England some authorities charge for pre-application discussions, usually on a fixed fee rather than a time based model. For such a system to operate local authorities would need to change their approach and probably make use of time recording systems.
Possibly the most radical option is to allow authorities to set their own fees. Local authorities would need to be able to justify their fees. One consequence of such an approach is that there would no longer be a standard fee structure across the country. Given the fact that the Scottish Government deliberately decided to apply the hierarchy across the country on a consistent basis even although the nature of the local authorities and the planning application made to them differ significantly, it is not immediately obvious why a different approach should be taken to fee charging.
The next option raised is linking fees to the hierarchy of developments ensuring that the major fees are therefore paid for the major applications. Clearly there is some scope for avoidance in such arrangements simply by parcelling up the applications.
The final option is to change the current system probably by looking at the categories and raising the maximum fee.
While in principle developers appear to accept that paying higher planning fees for a better service is acceptable (the British Property Federation have said as much), there are concerns that if higher fees are brought in the local authorities will not in fact use that money to maintain the planning service but will use the funds realised for other purposes. Having said that, with a standard planning application a number of other departments will be involved in the consultation process at some form of "cost" to themselves. Possibly allowing these departments to charge for consultations might be an answer.
Section 75 Agreements
Another area where there is significant cost relates to Section 75 Agreements. While typically local authorities will seek to recover the legal costs from the developer there are other costs involving staff. One possible suggestion is that "to encourage local authorities to conclude planning agreements a separate payment could be made on their conclusion". It will be interesting to see how the development industry reacts to this suggestion. Why should local authorities need to be incentivised in this way to fulfil what is an essential part of their statutory function?
Two tier system
The discussion paper also looks at the possibility of the payment of an additional fee for "dedicated" services from a particular local authority employee. This is also likely to be controversial with the possibility for a two tier system.
As well as looking at general principles the discussions paper considers a number of specific developments and/or planning applications and how these might be addressed.
Summary
Given the importance of planning to sustainable economic development in Scotland it is obviously important that we do have a quality planning system. While the discussion paper is interesting it is possibly unhelpful that the major concentration is on financial issues where quality really relates to so much more including the quality of resourcing and quality of decision making.
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