PlanningBlog – Brodies LLP

All at PlanningBlog are delighted that Jackie McGuire has been appointed a Partner (and well done to the other new Partners and Associates – details). Jackie assures us that she will continue blogging, so look out for more Doctor Who inspired thoughts on planning.

With all the attention on the legal reforms to the planning system, not much has been said lately about culture change  (has “culture change” been consigned to the dustbin where all those other phrases rest – remember “joined up thinking”?).

Some innovation from The City of Edinburgh Council and Homes for Scotland: Gina Bellhouse from the Council’s planning department has been seconded to Homes for Scotland. The Council say that the secondment will provide an opportunity to develop new ways of working  with the house building industry and facilitate residential development.  Culture change in action.

This year the biggest renewable energy event in Scotland looks certain to be the ALL – Energy Exhibition and Conference scheduled to take place in Aberdeen 0n 19/20th May. The Brodies’ Renewable Energy team will be out in force on both dates. Neil Collar, Jackie McGuire and Robert Seaton will make up the planning contingent and will be accompanied by collegues from projects, property, and banking all of whom have considerable experience and expertise in the field.

The exhibitor’s list is very impressive  with participants including local authorities, energy producers ( large and small) with an interest in all forms of renewable energy production. The event also features producers of the newest and the best in terms of supply of plant and systems to the energy industry, funders , and highly sucessful community energy projects.  We are genuinely excited, if not electrified by the prospect of networking  with existing contacts and forging new alliances. 

The conference boasts what promises to be a stimulating and informative programme of seminars with Ministerial and Industry keynote sessions on both days .   As part of the programme, alongside a wealth of other highly informed speakers,  Neil Collar will be addressing delegates at the On- Shore seminar, whilst partner Keith Patterson will be covering the economic benefits of  on- farm wind wind clusters. (Robert and I will largely be looking after the twixes, being as we are, craftly located next to the coffee bar). 

If you are planning to atttend the event we would be delighted to see you there. If you would like to book time out for a coffee or a chat feel free to call  Neil, Robert or myself – our contact detals are on the Brodies website. The show website , which is updated with daily newsfeeds, tells you everything you need to know about the event and can be accessed by following the link below. 

www.all-energy.co.uk

A further demand for planning reform came shortly before the election from Caroline Spelman, possibly the Conservatives’ future minister with responsibility for planning in England. Gypsies in Ms Spelman’s constituency had acquired land and were apparently about to create a permanent encampment on it without having first obtained planning permission. The development was not popular amongst Ms Spelman’s existing constituents. Solihull Council served a temporary stop notice and apparently is seeking a court order to prevent further development. Ms Spelman explained that there is a “loophole” in the law. In her view, provision is made for retrospective permission “where a genuine mistake has been made”, but this is apparently abused by some developers to press ahead with unconsented development! She called for a reform.

In Scotland, if an enforcement notice is served, it is no longer a ground of appeal to argue that planning permission ought to be granted for the development. Retrospective planning permission must be applied for through the ordinary process. In the meantime, the planning authority might serve fixed penalty notices on the developer if steps required to be taken by the enforcement notice, such as clearing away unconsented development, are not taken.

The Conservatives have already borrowed some planning concepts (such as good neighbour agreements) from the Scottish reforms. Will they now look at applying the Scottish enforcement reforms in England?

It’s difficult to get excited about the new draft regulations on planning obligations and good neighbour agreements (GNAs), produced as part of the Scottish Government’s latest planning consultation.  Yawn. End of  blog….

But seriously….the regulations deal with the mechanics of an application for discharge or modification of both types of document, but alas the billion dollar question remains unanswered – when will such applications be appropriate? As Robert highlighted in a previous blog, there are no criteria built in to the amended provisions of the 1997 Act. Given that the  regs too remain silent, we can only assume that some guidance will be given in yet another Circular further down the line. I’d be interested to hear any info to the contrary.

The consultation paper is keen to discourage any comment on the use of planning agreements or GNAs.  That particular horse has bolted.  So what are we left with?

Amongst other things, the draft regs deal with the issue of notification. Who should be told when an application for discharge or modification is lodged? The regs currently provide only for notification to a relevant landowner (where not the applicant), any other party subject to obligations, or the relevant community body in the case of GNAs (again where not the applicant).  No doubt for many cases, an obligation to notify objectors to the original planning application would be prohibitive, and so it seems inevitable that community councils at least will be added to  the notification requirement before the regs are finalised.

A period of 21 days is suggested for representations to be submitted in respect of an application for modification or discharge, and a period of 2 months for determination of the application by the planning authority, in line with normal  timescales under the development management regulations (for local/non-EIA  development). Interestingly no reference is made, at any stage in the regs or in the relevant part of the Act itself,  to the planning hierarchy. Accordingly, any appeal against a planning authority’s refusal or non-determination of an application for modification or discharge must be made to the Scottish Ministers.  No doubt LRBs have quite enough to contend with, but a little odd when you consider that LRBs will have to assess the need for section 75s or GNAs in the context of their general business. Where an appeal is lodged, it is proposed that it will be governed by the existing 2008 Appeals Regulations. 

So for all those consultation junkies keen to engage, we have  another opportunity to throw in our tuppence worth.  But it’s what we aren’t told in these draft regulations that is likely to stimulate the most debate.

There was a lively examination of environmental impact assessment (EIA) at our recent seminar. We travelled (not literally, unfortunately!) from Skye to Madrid, St Andrews and included a visit to Donald’s Trump’s development at Menie in Aberdeenshire, pausing to mention appeals for waste sites in Portobello and Perth.

The message for developers is that more work is required, and that work will be earlier in the process.

Reform of the Scottish planning system was touched on. The thresholds in the new hierarchy of development  are not synchronised with the EIA thresholds. That means that some EIA development might be classed as local development, with the potential for the planning application being delegated to an officer for decision. The trap for the unwary is that the time limit for determination under delegated powers cannot be extended by agreement, so the developer can run out of time to “appeal”  to the local review body (delegated decisions cannot be appealed to the Scottish Ministers/ reporter). Although twice as long is allowed for determination of planning applications for EIA development, that time quickly vanishes ……

A delegate highlighted the difficulty marrying the new pre-application consultation requirements for a major development with the need for EIA. Consult too early, and there will not be enough detail for some people; but delaying consultation until later in the process risks EIA and design work having to be revised. Unfortunately there is no right answer on this one.

The no new matters rule in appeals/ reviews will put pressure on developers to ensure that all the environmental information is in the application before it is decided by the planning authority. It is risky to rely on the Scottish Ministers/ reporter exercising their powers to require EIA, or submission of further environmental information.

Although non compliance with EIA rules is a favourite line of attack for objectors, the Scottish courts have dealt with very few EIA cases. The judges have generally been disinclined to get bogged down in technicalities.

English and European court cases have taken a purposive approach, stressing the objectives of the EIA rules. Environmental effects cannot be properly analysed if there is too narrow a focus: is the development actually an integral part of a more substantial development? For example, although the Madrid urban ring road was divided into 15 sub-projects, it was incorrect to only subject one of those sub-projects to EIA. Where works to an airport enabled much greater use of the facility, the EIA had to consider not just the works, but also the increased activity. Arguing for too narrow a focus for the EIA might therefore be storing up trouble in the courts later.

The legislation has now been changed to confirm that in multi-consent projects the need for EIA has to be considered both at the initial (planning permission in principle – PPP) and later (approval of matters specified) stages. Planning authorities need to condition a grant of PPP to ensure that the development cannot extend beyond the parameters assessed – a recent consent had a condition listing 98 drawings! Clarity in the ES about the parameters used will help planning authorities.

The caselaw also shows that the potential for mitigation should not determine whether or not EIA is required. The survey results and mitigation should be in the ES, and only non-significant surveys/ mitigation should be dealt with by planning conditions.

The availability of alternative sites has always been a awkward issue for the planning system. Caselaw has clarified that the EIA legislation does not require alternatives to be examined, but the ES must mention what alternatives have been studied. A subtle distinction, but an important one for developers.

There was an upbeat mood at Scottish Renewables’ Onshore Wind conference in Glasgow this week. And why not? While there was general acknowledgement amongst the speakers that much of the “low hanging fruit” has now been picked, ambitious government targets to 2050 and beyond indicate that there are plenty more rewards to be had, despite the more challenging pool of sites remaining. And with those challenges in mind, there was no shortage of issues to discuss. 

There was a strong theme of engagement throughout the day. Senior representatives from the Consents Unit and SNH urged early and frequent dialogue to ensure a smoother EIA process, and delegates were encouraged to take advantage of an “open door” policy within these organisations.   If not exactly “open”, the door of Highland Council at least seemed to be ajar, as planning officer David Mudie explained the Council’s new guidance on visualisations. Contentious perhaps, but borne out of the Council’s dissatisfaction with developers’ supporting material on a large number of applications. “Could do better” we were told…

For the science fans we were dazzled by the dark arts of noise assessment, and bat surveys, thanks to Hayes McKenzie and FDM Ecology.  In both fields it was interesting to note that even the experts are still learning and developing their techniques.  In fact throughout the day a number of pleas were made for new or better research to be conducted in different contentious areas. As always, the question remains – who will pay?

The radar conundrum reared its head in the afternoon when the new Head of the Consents (and Deployment) team, Simon Cootes, updated the conference on the work of a new committee on which various key stakeholders were represented. Until new technical solutions are funded and comprehensive in cover, debate will continue over the (non) use of suspensive conditions. Various delegates were clearly unhappy about the government’s resistance to this, and the apparent intention to devise a special set of rules within the planning system to deal with a single, albeit tricky, issue.

And last but not least, our own Mr Collar argued that nothing is ever truly new in planning, by reference to the thorny issue of community benefit.  Environmental compensation? Community trust funds? Remember opencast mining? (it’s never gone away…) Those  guys have done it all before.  So it’s reassuring to know that the problems of today are not so very different from the problems (and solutions) 0f the past. Just don’t mention good neighbour agreements….

The Scottish Government has made a very welcome announcement of its programme of work to promote good practice in the use of compulsory purchase. This will include publishing a revised circular, sharing good practice, issuing plain English guidance, and reviewing internal procedures for confirming CPOs. 

Encouragement for local authorities to use CPO powers will be welcomed by developers, who can spend many years dealing with landowners who are unwilling to sell, or delay sales because of their unrealistic expectations of the value of their land.

Brodies have already offered some top tips for successful compulsory purchase.

District heating networks, common in places like Denmark and the central European countries, are still rare in Scotland (there are successful examples in Aberdeen and Lerwick), although heating and hot water represents half of all energy consumed by Scottish households. Although not suitable everywhere, the fitting of district heating in our towns is key to achieving the Scottish target of 11% of heat consumed in Scotland coming from renewable sources by 2020 (which is eight times the current rate). See for instance the visionary Sustainable Glasgow Initiative which proposes envisages the creation of substantial district heating schemes in Glasgow. My colleague Charles Smith has written elsewhere about the new financial and policy incentives encouraging installation of district heat. But is the planning environment sufficiently encouraging?

The Department of Communities and Local Government is presently consulting on a new PPS for England: Planning for a Low Carbon Future in a Changing Climate. The draft includes policies to back the development of renewable heat. There is a requirement to identify opportunities for decentralised energy supply during the development planning process, including a specific requirement for heat mapping (see London example), and a requirement that the suitability of sites should be assessed for potential to contribute to heat demand where a heat network exists or could be provided. This means that heat sources and heat users in proximity can be identified – and so can opportunities for one to supply heat to the other. Furthermore, the new policy indicates that planning authorities should expect developers in areas where there is an existing decentralised power supply system to connect into it.

Although there is plenty of generally encouraging national Scottish policy on district heat, there is no Scottish equivalent yet to this PPS giving such a specific policy lead. In order to support district heating, detailed planning policies of the sort proposed in the draft English PPS are going to be needed.  Now that national planning policy is to be kept to a minimum, the lead on policies to encourage district heating will need to come from the development plans. In the absence of specific policy or guidance from the Scottish Government, the development planners might consider using the draft English policies as their model.

Aficionados of the Brodies Tech Blog will have read reports of the presence of Cybermen in the capital; indeed our very own Douglas Mathie is pictured in a supposed street battle with one of these reputed Sci Fi menaces in the middle of Festival Square.

Without wishing to cause a domestic incident, I have put it to Douglas that the alleged Cyberman was indeed a man in a plastic suit, in other words, a faux Cyber invader!

Three clues give rise to this allegation – (1) unless Eleanor Peterkin, who also appears in the photo, is in league with alien invaders, which although possible seems highly unlikely, she looks far from troubled at the prospect of Douglas’s imminent demise (it takes more than bare knuckles to get one over on one of those guys, although I concede that the tie might have done the trick), and (2) because there have been no major planning related incidents in the vicinity of Festival square.

The absence of planning related incidents was the biggest give away. For, where Cybermen go the Doctor will follow, and there’s no Doctor without the Tardis. And you’re not telling me that the sight of an unauthorised blue police box in Edinburgh City Centre would not have resulted in complaints to Development Control. There will be some among you thinking – get up to date woman – mediation is the new DC -but if you want to take your chances mediating with a Cyberman, that’s entirely your choice.  As a lawyer I am bound to point out that there may be some attendant risk .

In a way it’s just as well the whole thing was a spoof because the Tardis may have presented DC with a pretty unique challenge. Does it, or does it not require planning permission? The Tardis (Time and Relative Dimension in Space) is not a spaceship (in which case it would not require planning permission, but probably would attract a parking ticket). It’s a time machine. It transports its occupants through space and time. Arguably, for the purposes of the Use Classes Order, it’s sui generis. A bit like vehicle hire, except that it always has to be driven by the Doctor, because it won’t start unless it detects the Rassilon Imprimature gene which is unique to Timelords. So, maybe more like a taxi business (also sui generis), except that the Doctor is not known for carrying fare paying passengers, so probably not.

Of course the Tardis is a lot bigger on the inside than it is on the outside. It is, after all, where the Doctor lives. So, is it a residence (Class 14)?  Not sure, because from a number of accounts I have learned that there are all sorts of things in there. Storage, dormitories etc. How big is the storage? (don’t pretend you know the answer to that because you have not been inside it). Big enough perhaps to suggest Class 6?

How many dormitories? Sufficient to give rise to suspicions of Class 7?  Let’s face it, there could be anything in there! A swimming pool, an ice rink (current and last Doctor look fit enough to give rise to suspicion of such facilities), a bingo hall perhaps (I think Tom Baker would you know)…. and we are all the way back to sui generis.

Of more concern to the good citizens of Edinburgh is all the dematerialisation that goes on in there. Sounds like a potential candidate for Class 5 (general industrial)– and you don’t want that in the shadow of the Castle!

It comes, and it goes. So, is the Tardis a temporary building for the purposes of Part 4 of the Permitted Development Order?  Well, at first I scoffed at this suggestion, because there are no associated operations on adjoining land. But what about the refurbishment of the Usher Hall ? Just over the road! Or perhaps tram? Is this how the Doctor finances his jet set, time continuum lifestyle – navvying on infrastructure and building projects?

At this point I realise I need to calm down… there were after all three reasons for doubting the presence of Cybermen in Edinburgh ….. (3) it WAS ONLY  A MAN IN A PLASTIC SUIT.