PlanningBlog – Brodies LLP

Drawing breath after doing this seminar at our offices in Aberdeen, Glasgow and Edinburgh.

The mention of ecological interest might strike terror in the heart of property developers, but my theme was “don’t panic”.

The potential impact of wind turbines on birds is well-known, but ecological interest can affect all types of development, irrespective of location. Even derelict urban sites attract types of wildlife – and a delegate noted that with the slowdown in development this could be an issue when consented sites come up for renewal of permission.

Ecology is a complicated issue, because of differing levels of protection. Developers should obtain specialist ecological and legal advice.

It is often possible to design developments to take account of protected species and the like. One delegate mentioned a newt prison (probably not its official title!).

Developers need to build sufficient time into their programme, both to undertake survey work, and also for construction work to avoid breeding seasons. There are innovative approaches, such as employing Ecological Clerks of Works (ECOWs) on large wind farm and other developments.

Objectors often focus on ecological issues. The AWPR legal challenge includes arguments about assessing the impact on the River Dee Special Area of Conservation from construction of a bridge. This illustrates the potential for disputes. Developers need to be well-informed.

See my post on Brodies’ Renewablesblog.

I attended Planning Aid for Scotland’s community consultation workshop last night led by Chris Whitehead of Facilitating Change (UK) Limited. We had an interesting discussion on the level/quality of PAC which is generally required by planning authorities on major applications. The experience of the group was that while many developers offer more than the statutory minimum when submitting their PAN, planning authorities will rarely require a developer to go beyond the minimum threshold. I wonder if this is an accurate reflection of planning authority practice?

Of course developers aren’t the only ones involved in community consultation, and Chris encouraged the authority planners in the group to set the bar high when consulting on their own development plan documents. Let’s see if the current raft of MIRs and proposed plans rise to that challenge!

We finished with a look at PAS’ SP=EED guide to engagement  which is endorsed by the Scottish Government as a means to driving up quality. Take a look at www.planningaidscotland.org.uk/sp=eed

And for those who are not yet “converts” to consultation, Chris had an interesting statistic – the earlier the consultation, the cheaper the cost, and the greater the benefit achieved!

So 23 out of 32 councils are hung. It will have been a busy weekend of coalition negotiations (no more smoke filled rooms?). 

Eventually there will be many new convenors and members of planning committees. The Housing Minister reminded us at the Homes for Scotland lunch on Friday that this is a good opportunity for engagement with these new faces.

Interesting to see a partnership in planning category in the Homes for Scotland awards.

But worry not – there is still some way to go before housebuilders love the planning system (will they ever?) – there were comments about the need for more changes – culture change is an on-going process.

Codes of Conduct are back in the news – whether it’s Jeremy Hunt and BSkyB, or the convener of the East Lothian planning committee  who was suspended from his duties earlier this year following a report to the Public Standards Commissioner. The behaviour of councillors within the planning system is often  controversial.  Most consultants will have stories to share of clients left feeling badly let down by some dubious intervention in the process. The question then arises, what can be done about it?

A breach of the Code of Conduct won’t necessarily lead to a legal remedy (or at least an affordable one), but at least in Scotland the arguments are there to be made. Elsewhere in the UK, things may be more difficult.

Take a recent case in Newport involving consent for a Morison supermarket. Judicial review was sought on various grounds, including an allegation of bias on the part of a member of the planing committee, a Councillor Richards. Prior to the committee meeting, a leaflet supporting the scheme had been distributed by local councillors, including a Councillor Richards. A supportive petition had also been submitted to the Council bearing the words “John Edwards Richards petition Morrison’s doc” on each page. Subsequently at the relevant committee, Councillor Richards spoke in favour of the proposal, and had “reminded” the officers who recommended refusal that they were there “to serve the public”. The vote in favour of the store had then gone through without debate, 8:1.

Although it was not open to the court to make a finding of actual bias in light of the evidence examined, the court decided that the appearance of bias by a  member of the committee was not enough to vitiate the decision.

In Scotland,  section 7 of the Councillors Code of Conduct makes it clear that a member of the planning committee must not make  statements about a pending decision which might be seen to prejudge the matter. Similarly, if participating in decision making, members should not organise support for/opposition to a particular proposal, lobby other members or act as an advocate for the proposal. If making representations on an application, a member must declare his interest and then retire from the decision making.

There are no equivalent provisions in the Newport Code. Even worse, in England there are now the controversial provisions on “predetermination” within the Localism Act, which still seem like a bad joke gone wrong. So perhaps we should be grateful for small mercies?

Politics and planning do, of course, go hand in hand. But when the politics overrides due process, then we need our courts to step in.

Planning is a means to an end, not an end in itself. That’s why it’s well worth reading the ideas from the Centre for Scottish Public Policy in their Manifesto 2012: Localising Government. You may not agree with the recommendations about the future direction for our towns and cities, including the “framework for mess”, but it’s worth a read (even just for its refreshing style – have you ever seen a report starting with the heading “Blurb”?).

The Court of Session has upheld the decision by Moray Council to vary the planning permission for the Springfield Retail Park in Elgin, from bulky goods to non food retail (Robertson Property Limited v Moray Council).

This is the latest in a series of failed legal challenges: Dundee, East Kilbride, and Tain.

The approach taken by the Court is familiar from those previous cases: the application of the sequential test is a matter for the planning judgment of the decision-maker, and the court will be reluctant to intervene; also, the committee report has to be read as a whole.

Points of interest:

• the committee hearing was an opportunity to discuss and challenge the contents of the committee report, so the petitioners could not complain to the Court about an alleged misdirection in the committee report, which they had not mentioned at the committee hearing
• the committee were entitled to proceed on the basis that they had sufficient information and knowledge about alternative locations, without insisting that a separate analysis of these be carried out by the applicant
• it makes sense for cumulative retail impact to be assessed on the basis of committed developments, for which planning permission has been granted, rather than trying to factor in developments for which permission might be granted in the future
• it is undesirable for the court to construe comments by councillors in the somewhat microscopic manner reflected in the petitioners’ argument

I’m looking at the Aberdeenshire local development plan, recently back from examination. The plan is an admirably concise 17 pages. There are 28 pages of schedules. And 120 pages of supplementary guidance. And the report on examination is 922 pages long.

Just recently I’ve come across the TellmeScotland service – it’s a free search of public notices in Scotland, including planning notices. It’s been provided by the Improvement Service since December 2010.

Two useful features:

• There are also email alerts you can set for an area within a certain radius of any postcode you set
• You can search for live or archived notices either within a certain radius of a post code or in relation to key words.

The postcode-based alerts are good to mention to clients who might be sensitive about nearby development.

The keyword search is useful if you’re researching a planning authority’s attitude to certain types of application (so e.g. you could search on “conservation area”, “cafe”, “change of use”). You can’t generally search Council planning  portals in relation to keywords.

There are some annoying limitations to Tellmescotland’s function:

• The coverage isn’t universal: many planning authorities aren’t participating, including big authorities like Highland and Fife;  
• You can only search notices for one planning authority at a time and you have to search “live” and “archived” notices separately;
• The search results appear with oldest notices first;
• The email alerts aren’t completely reliable (or mine at least have missed some notices).   

I was going to pass these criticisms on to TMS, but unfortunately their “contact us” link provides links to their clients, but no email address for TMS.

PlanningAlerts, until its demise, alerted you to the submission of a planning application within a certain radius of a chosen postcode. So far as I understand it had pretty much universal coverage. Its operators certainly pursued planning authorities to open up their planning data. We look forward to its return on OpenlyLocal.