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Scottish Government submission of 5 October 2021

PE1852/D - Increase planning protection for Scottish battlefields

Thank you for your letter of 7 September, on behalf of the Committee, regarding petition PE1852 on increasing planning protection for Scottish battlefields, and the issue of repeat planning applications.

I note the discussion in committee regarding repeat applications and the concerns about these being used to wear down opposition to a proposal. I can confirm that planning authorities already have discretionary powers to decline to determine repeat applications in certain circumstances, and I have summarised these in more detail in the annex to this letter.

There is no general power to refuse to deal with repeat applications or any restriction on an individual’s right to apply for planning permission. Such provisions would stymie the ability of applicants to respond positively to previous decisions and/or changes in relevant planning policies. In this way, the legislation aims to strike a fair balance between allowing repeat applications in order to make useful amendments to proposals on the one hand, without allowing such repetition to be used to exhaust the system.

These provisions were the subject of consideration in the review of planning and the subsequent bill which became the Planning (Scotland) Act 2019. That Act includes measures intended to strengthen and clarify authorities’ powers to deal with repeat applications, and these measures are also summarised in the annex to this letter.

Due to the need to divert resource to manage the implications of the pandemic, we have had to pause some aspects of our previously published programme of work to implement the Planning (Scotland) Act 2019. This included putting on hold our proposed work on repeat applications. We are currently reviewing our Planning Reform Implementation Programme and will publish a revised work schedule shortly.

A key point to note is the role of the development plan in determining planning applications. Decisions on planning applications are required to be made in accordance with the development plan for the area unless material considerations indicate otherwise. Annex A of Circular 3/2013 on Development Management Procedures contains more information on material considerations.

Whilst people will want to ensure their views on individual applications are heard, it is also important that they engage in the development planning process. At that stage they can support the introduction, retention or improvement of development plan policies which reflect their views regarding the development of an area, or challenge any proposed policies which do not.

On the specific issue of development which may affect historic battlefields, the consultation and notification requirements, discussed by the Committee, apply to each application made. That is, those requirements would not fall away simply because a previous application for essentially the same proposal had been through them already.

I hope this information is helpful.

ANNEX

Planning Authority Discretion to Decline to Determine Planning Applications

Section 39 of the Town and Country Planning (Scotland) Act 1997 sets out the discretionary powers for planning authorities decline to determine an application. There are three aspects to this: the proposal (i.e. the content of ‘similar applications’), the decisions on the earlier application or applications; and any change in the basis for the earlier decisions.

So, firstly, the discretion applies to ‘similar applications’, i.e. where the development and the land are the same or substantially the same.

Secondly, for the discretion to apply, either: i) an application has been refused by the Scottish Ministers, on appeal or after Ministerial call-in, and a similar application is made within two years of that decision; or ii) the planning authority has refused more than one similar application in the previous two years, but either no appeal has been made to the Scottish Ministers, or it has but they have yet to make a decision.

This second criterion similarly applies where applications are subject to a right to a local review by the planning authority, rather than a right of appeal to Scottish Ministers.

Thirdly, this discretion to decline to determine only applies where in the planning authority’s opinion there has been no significant change in the development plan for the area or any of the other material considerations in the case. Decisions on planning applications are required to be made on the basis of the development plan unless material considerations indicate otherwise.

As a result of recommendations in the ‘Empowering planning to deliver great places: independent review report’ (2016), the Planning (Scotland) Act 2019 includes amendments in relation to section 39 of the Town and Country Planning (Scotland) Act. These are to extend the time limit on the discretion to decline to determine from two years to five years, and a requirement for Scottish Ministers to publish guidance outlining what constitutes a “similar application” and a “significant change” for the purposes of section 39.

Note: Section 39 also requires a planning authority to decline to determine an application where pre-application consultation (PAC) requirements apply and the applicant has failed to comply with these.

Planning & Architecture Division

Scottish Government
October 2021