Office of Public Sector Information
PART 3 continued
(4) A proposal of application notice is to be in such form, and have such content, as may be prescribed but must in any event contain—
(a) a description in general terms of the development to be carried out,
(b) if the site at which the development is to be carried out has a postal address, that address,
(c) a plan showing the outline of the site at which the development is to be carried out and sufficient to identify that site, and
(d) details as to how the prospective applicant may be contacted and corresponded with.
(5) Regulations may—
(a) require that the proposal of application notice be given to persons specified in the regulations,
(b) specify—
(i) persons who are to be consulted as respects a proposed application, and
(ii) what form that consultation is to take.
(6) Different provision may be made under subsection (5) for different cases or classes of case and for different areas.
(7) The planning authority may, provided that they do so within the period of 21 days after receiving the proposal of application notice, notify the prospective applicant that they require (either or both)—
(a) that the proposal of application notice be given to persons additional to those specified under subsection (5) (specifying in the notification who those persons are),
(b) that consultation additional to any required by virtue of subsection (5)(b) be undertaken as regards the proposed development (specifying in the notification what form that consultation is to take).
(8) In considering whether to give notification under subsection (7) the planning authority are to have regard to the nature, extent and location of the proposed development and to the likely effects, at and in the vicinity of that location, of its being carried out.
(9) In the case of an application for planning permission made to the Scottish Ministers, this section has effect as if any reference to the “planning authority” were a reference to the Scottish Ministers.
(1) A person who, before submitting an application for planning permission for a development, is required to comply with section 35B and who proceeds to submit that application is to prepare a report (a “pre-application consultation report”) as to what has been done to effect such compliance.
(2) A pre-application consultation report is to be in such form as may be prescribed.”.
In section 36 of the principal Act (registers of applications etc.)—
(a) in subsection (1)—
(i) after paragraph (a) insert—
“(aa) any variation, by virtue of section 32A(1), to such an application,
(ab) documents to which regard was had in dealing with each such application (including documents to which regard was had in considering whether to agree to such a variation),
(ac) material considerations to which regard was had by virtue of section 37(2),
(ad) any pre-application consultation report prepared under section 35C(1) and submitted with such an application,”,
(ii) in paragraph (b), for the words “such applications have been dealt with” substitute “each such application has been dealt with and a copy of any notice given by virtue of paragraph (d) or (e) of section 43(1) in respect of an application (or, in the case of an application in respect of which notice does not fall to be so given, a statement of the reasons on which the authority based their decision on the application)”,
(iii) the word “and” which immediately follows paragraph (b) is repealed,
(iv) after paragraph (b) insert—
“(ba) applications under section 242A(2) for planning permission in respect of development in the district of that authority,”, and
(v) after paragraph (c) insert “and
(d) any planning obligation entered into under section 75”, and
(b) in subsection (3)(a)—
(i) after the word “applications” insert “and variations to applications”, and
(ii) for the word “them” substitute “such applications and variations and copies of documents to which regard was had in dealing with such applications and in considering whether to agree to such variations”.
After section 36 of the principal Act insert—
(1) Every planning authority are, in such manner as may be prescribed by regulations or a development order, to keep a list of—
(a) the applications mentioned in section 36(1)(a) which are made to them (including any variations, by virtue of section 32A(1), to those applications),
(b) the applications mentioned in section 36(1)(ba) which are made in respect of development in their district, and
(c) the proposal of application notices received by them under section 35B(2).
(2) Weekly, or at such intervals as may be so prescribed, the authority are—
(a) to revise the list by removing from it the entries relating to—
(i) such applications as have been determined, and
(ii) such proposal of application notices as have ceased to be current, and
(b) in such manner as may be so prescribed (or, if and in so far as the regulations or development order may admit, in such manner as the authority consider appropriate), to publish that revised list.
(3) The availability of the list is to be advertised by the authority in a local newspaper at such intervals as may be so prescribed.
(4) The regulations or development order may make provision as to how any costs incurred by the authority by virtue of this section are to be recovered from the applicants.
(5) In this section “publish”, without prejudice to that expression’s generality, may include publish by electronic means (as for example by means of the internet).
(6) For the purposes of subsection (2)(a)(ii), a notice ceases to be current when—
(a) an application for planning permission is submitted for the development in question,
(b) the prospective applicant gives notice in writing under this paragraph to the planning authority that no application is to be submitted for the development in question, or
(c) 12 months have elapsed since the date on which the proposal of application notice was given.”.
(1) After section 38 of the principal Act insert—
(1) Regulations or a development order may provide that, before determining an application for planning permission for a development of a class prescribed in the regulations or order, a planning authority are to give the applicant and any person so prescribed an opportunity of appearing before and being heard by a committee of the authority.
(2) The procedures in accordance with which any such hearing is arranged and conducted (including, without prejudice to the generality of this subsection, procedures for ensuring relevance and avoiding repetition) and any other procedures consequent upon the hearing are to be such as the authority consider appropriate.
(3) Any right of attendance at the hearing (other than for the purpose of appearing before and being heard by the committee) is to be such as the authority consider appropriate.
(4) In relation to an application other than is provided for in regulations or a development order under subsection (1), a planning authority may elect to give the applicant and any other person an opportunity such as is mentioned in that subsection; and if the authority do so elect, subsections (2) and (3) apply accordingly.”.
(2) In section 56 of the Local Government (Scotland) Act 1973 (c. 65) (arrangements for discharge of functions by local authorities), after subsection (6) there is inserted—
“(6A) A local authority’s function of determining an application for planning permission for a development of a class mentioned in section 38A(1) of the Town and Country Planning (Scotland) Act 1997 (c. 8) shall be discharged only by the authority.”.
Section 39 of the principal Act (power of planning authority to decline to determine application) is amended as follows—
(a) for subsection (1) substitute—
“(1) A planning authority may decline to determine an application (in this subsection referred to as the “current application”) for planning permission for the development of any land—
(a) if—
(i) in the period of two years ending with the date on which the current application is received, the Scottish Ministers have refused a similar application referred to them under section 46 or have dismissed an appeal against the refusal of, or an appeal under section 47(2) in respect of, a similar application, and
(ii) in the opinion of the authority there has not, since the Scottish Ministers refused the similar application or dismissed the appeal, been any significant change in the development plan (so far as material to the current application) or in any other material consideration,
(b) if—
(i) in that period of two years the planning authority have refused more than one similar application,
(ii) there has been no appeal to the Scottish Ministers against either (or as the case may be any) of those refusals, and
(iii) in the opinion of the authority there has not, since the more (or as the case may be most) recent of the refusals, been any significant change in the development plan (so far as material to the current application) or in any other material consideration,
(c) if—
(i) in that period of two years the planning authority have refused more than one similar application,
(ii) there has been an appeal to the Scottish Ministers against either (or as the case may be any) of those refusals but as at the time the current application is received no such appeal has yet been determined, and
(iii) in the opinion of the authority there has not, since the more (or as the case may be most) recent of the refusals, been any significant change in the development plan (so far as material to the current application) or in any other material consideration,
(d) if—
(i) in that period of two years there have been appeals under section 47(2) in respect of more than one similar application but as at the time the current application is received no such appeal has yet been determined, and
(ii) in the opinion of the authority there has not, since the more (or as the case may be most) recent of the appeals was made, been any significant change in the development plan (so far as material to the current application) or in any other material consideration, or
(e) if—
(i) in that period of two years two similar applications have been made to the planning authority,
(ii) the planning authority have refused one of those applications and there has been an appeal under section 47(2) in respect of the other but as at the time the current application is received the appeal under that section has yet to be determined as has the appeal (if any) against the refusal, and
(iii) in the opinion of the authority there has not, since the refusal or since the appeal was made (whichever was the more recent), been any significant change in the development plan (so far as material to the current application) or in any other material consideration.
(1A) A planning authority or the Scottish Ministers must decline to determine an application for planning permission for the development of any land if, in their opinion—
(a) compliance with section 35B was required as respects the development, and
(b) there has not been such compliance.
(1B) But before deciding whether, under subsection (1A), an application must be declined the authority or as the case may be the Scottish Ministers may request the applicant to provide such additional information as they may specify.
(1C) Where, under subsection (1A), a planning authority or the Scottish Ministers decline to determine an application they are to advise the applicant of the reason for their being of the opinion mentioned in that subsection.
(1D) Subsection (1A) is subject to section 35A(9).”,
(b) subsection (3) is repealed, and
(c) the title of the section becomes “Declining to determine an application”.
In section 43 of the principal Act (directions etc. as to method of dealing with applications)—
(a) in subsection (1)—
(i) after paragraph (a) insert—
“(aa) for enabling the Scottish Ministers to give directions to the planning authority requiring them, in respect of any such development, or in respect of development of any such class, as may be specified in the directions—
(i) to consider, where the authority are minded to grant planning permission, imposing a condition specified in, or of a nature indicated in, the directions; and
(ii) (unless the directions are withdrawn) not to grant planning permission without first satisfying the Scottish Ministers that such consideration has been given and that such a condition either will be imposed or need not be imposed;”,
(ii) after paragraph (b) insert—
“(bb) for enabling the planning authority, in the course of their consideration of an application, to require from the applicant particulars, documents, materials or evidence which they consider they require to enable them to deal with the application (being particulars, documents, materials or evidence additional to any which, by virtue of section 32(2), as the case may be, was included in, accompanied or was provided in support of anything in, or relating to, the application);”, and
(iii) in paragraph (f), for the words from “the planning authority” to “order” substitute “, or enabling directions to be made requiring, the planning authority to give to the Scottish Ministers and to such other persons as may be prescribed by or under the regulations, order or directions”,
(b) after subsection (1) insert—
“(1A) Any notice given by virtue of paragraph (d) or (e) of subsection (1)—
(a) is to include a statement of—
(i) the terms of the planning authority’s decision,
(ii) any conditions to which that decision is subject, and
(iii) the reasons on which the authority based that decision, and
(b) may include such other information as may be prescribed by the regulations or the order.”, and
(c) after subsection (2) add—
“(3) Paragraphs (a) and (f) of that subsection shall apply in relation to applications under section 75A(2) as they apply in relation to applications for planning permission.
(4) For the purposes of the application provided for in subsection (3), the reference in paragraph (a) of subsection (1) to restricting the grant of planning permission is to be construed as a reference to restricting the giving of any agreement under subsection (2) of section 75A or the making of any determination under subsection (4) of that section.”.
After section 43 of the principal Act insert—
(1) A planning authority are—
(a) as soon as practicable after the coming into force of section 17 of the Planning etc. (Scotland) Act 2006 (asp 17), and thereafter—
(i) whenever required to do so by the Scottish Ministers, or
(ii) subject to sub-paragraph (i), at such intervals as may be provided for in regulations under this section,
to prepare a scheme (to be known as a “scheme of delegation”) by which any application for planning permission for a development within the category of local developments or any application for consent, agreement or approval required by a condition imposed on a grant of planning permission for a development within that category is to be determined by a person appointed by them for the purposes of this section instead of by them, and
(b) to keep under review the scheme so prepared.
(2) Other than for the purposes of subsections (8) to (16) or section 47, the determination of any person so appointed is to be treated as that of the authority.
(3) References in subsection (1) to a development do not include references to a development of a class mentioned in section 38A(1).
(4) Without prejudice to subsection (1)(a)(ii), regulations under this section may make provision as to—
(a) the form and content of, and
(b) the procedures for preparing and adopting,
a scheme of delegation.
(5) Where an application for planning permission falls to be determined by a person so appointed, sections 37(1) to (3), 38, 39, 41(1) and (2) and 42 and Part 1 of Schedule 3 apply, with any necessary modifications (including, in the case of that Part, the modification mentioned in subsection (18)), as they apply to an application which falls to be determined by the planning authority.
(6) The planning authority may, if they think fit, decide themselves to determine an application which would otherwise fall to be determined by a person so appointed.
(7) Any such decision must include a statement of the reasons for which it has been taken; and a copy of the decision is to be served on the applicant.
(8) Where a person so appointed—
(a) refuses an application for planning permission or for consent, agreement or approval,
(b) grants it subject to conditions, or
(c) has not determined it within such period as may be prescribed by regulations or a development order,
the applicant may require the planning authority to review the case.
(9) Where a requirement to review is made by virtue of paragraph (c) of subsection (8), the person so appointed is, for the purposes of the review, to be deemed to have decided to refuse the application.
(10) Regulations or a development order may make provision as to the form and procedures of any review conducted by virtue of subsection (8).
(11) Without prejudice to the generality of subsection (10), the regulations or order may—
(a) make different provision for different cases or classes of case,
(b) make different provision for different stages of a case,
(c) make provision in relation to oral or written submissions and to documents in support of such submissions,
(d) make provision in relation to time limits (including a time limit for requiring the review), and
(e) require the planning authority to give to the person who has required the review such notice as may be prescribed by the regulations or the order as to the manner in which that review has been dealt with.
(12) Any notice given by virtue of paragraph (e) of subsection (11)—
(a) is to include a statement of—
(i) the terms in which the planning authority have decided the case reviewed, and
(ii) the reasons on which the authority based that decision, and
(b) may include such other information as may be prescribed by the regulations or the order.
(13) The provision which may be made by virtue of subsections (10) and (11) includes provision as to—
(a) the making of oral submissions, or as to any failure to make such submissions or to lodge documents in support of such submissions, or
(b) the lodging of, or as to any failure to lodge, written submissions or documents in support of such submissions,
and, subject to section 43B, as to what matters may be raised in the course of the review.
(14) The provision which may be made by virtue of subsections (10) and (11) includes provision that the manner in which the review, or any stage of the review, is to be conducted (as for example whether oral submissions are to be made or written submissions lodged) is to be at the discretion of the planning authority.
(15) The planning authority may uphold, reverse or vary a determination reviewed by them by virtue of subsection (8).
(16) Subject to subsection (17) and except as provided under section 239, the decision of a planning authority in a case reviewed under this section is final.
(17) Where a requirement to review is made by virtue of paragraph (c) of subsection (8) and the planning authority have not conducted the review within such period as may be prescribed by regulations or a development order, the authority are to be deemed to have decided to refuse the application and section 47(1) is to apply accordingly.
(18) The modification is that, in paragraph 1(6) of Schedule 3, for paragraph (b) there is substituted—
“(b) is to be regarded for the purposes of section 43A as a condition imposed by a decision of the appointed person, and may accordingly be the subject of a review under subsection (8) of that section.”.
(1) In a review under section 43A(8), a party to the proceedings is not to raise any matter which was not before the appointed person at the time the determination reviewed was made unless that party can demonstrate—
(a) that the matter could not have been raised before that time, or
(b) that its not being raised before that time was a consequence of exceptional circumstances.
(2) Nothing in subsection (1) affects any requirement or entitlement to have regard to—
(a) the provisions of the development plan, or
(b) any other material consideration.”.
In section 46 of the principal Act (call-in of applications by Scottish Ministers)—
(a) after subsection (1) insert—
“(1A) A direction under subsection (1) may be withdrawn or modified by a subsequent direction.”, and
(b) in subsection (3), for “this section” substitute “subsection (1)”.
(1) In section 47 of the principal Act (right to appeal against planning decisions and failure to take such decisions)—
(a) in subsection (1), at the end add “against the decision”, and
(b) after subsection (1) insert—
“(1A) But subsection (1) does not apply in relation to any such action on the part of a planning authority as is mentioned in section 237(3A).”.
(2) After that section insert—
(1) In an appeal under section 47(1), a party to the proceedings is not to raise any matter which was not before the planning authority at the time the decision appealed against was made unless that party can demonstrate—
(a) that the matter could not have been raised before that time, or
(b) that its not being raised before that time was a consequence of exceptional circumstances.
(2) Nothing in subsection (1) affects any requirement or entitlement to have regard to—
(a) the provisions of the development plan, or
(b) any other material consideration.”.
(3) In section 237 of that Act (validity of certain plans, schemes, orders and actions)—
(a) in subsection (1)(f), at the end add “or on the part of a planning authority as is mentioned in subsection (3A)”,
(b) after subsection (3) insert—
“(3A) The action on the part of a planning authority is any decision or determination (other than a deemed decision) in a review conducted by them by virtue of section 43A(8).”, and
(c) at the end of subsection (4), add “or on the part of a planning authority to take any such action as is mentioned in subsection (3A)”.
(4) In section 239 of that Act (proceedings for questioning the validity of certain orders, decisions and directions)—
(a) in subsection (1)(b), before the words “to which” insert “, or on the part of a planning authority,”, and
(b) in subsection (4), at the end add “or on the part of a planning authority as is mentioned in subsection (3A) of that section”.
(5) In section 267 of that Act (procedure on certain appeals and applications)—
(a) in subsection (1), for the words from “proceedings” to the end substitute “appeals and applications under this Act and as to the manner in which such appeals and applications are to be conducted”,
(b) after subsection (1) insert—
“(1A) Without prejudice to the generality of subsection (1), the regulations may—
(a) make different provision for different cases or classes of case and in particular according to whether an appeal is under subsection (1) of section 47 or under subsection (2) of that section,
(b) as regards the manner in which an appeal or application is to be conducted, make different provision for different stages of a case,
(c) make provision in relation to oral or written submissions and to documents in support of such submissions, and
(d) make provision in relation to time limits.
(1B) The provision which may be made by virtue of subsections (1) and (1A) includes provision as to—
(a) the making of oral submissions, or as to any failure to make such submissions or to lodge documents in support of such submissions,
(b) the lodging of, or as to any failure to lodge, written submissions or documents in support of such submissions, and
(c) subject to section 47A, as to what matters may be raised in the course of the appeal or application.
(1C) The provision which may be made by virtue of subsections (1) and (1A) includes provision that the manner in which an appeal or application, or any stage of an appeal or application, is to be conducted (as for example whether written submissions are to be presented or persons are to be heard) is to be at the discretion of the Scottish Ministers (or of a person appointed by them under or by virtue of this Act).”,
(c) in subsection (2)(a), the word “such” is repealed, and
(d) subsection (3) is repealed.
(6) The title of section 267 becomes “Appeals and applications under this Act: procedure etc.”.
(1) In section 58 of the principal Act (general condition limiting duration of planning permission)—
(a) for subsections (1) to (3) substitute—
“(1) Subject to subsection (2), a planning permission to which this section applies, whether granted or deemed to be granted, lapses on the expiration of a period of 3 years (beginning with the date on which the permission is granted or as the case may be deemed to be granted) unless the development to which the permission relates is begun before that expiration.
(2) The authority concerned may, in granting any such planning permission (or as the case may be in making a direction under section 57), direct that subsection (1) is not to apply as respects the permission but that the permission is to lapse on the expiration of a period, whether longer or shorter than 3 years, specified in the direction (under this section) unless the development to which the permission relates is begun before that expiration.
(3) For the purposes of section 47(1)(a), (3) and (4)(a)—
(a) any such direction, or
(b) the effect of subsection (1) as that subsection applies in consequence of the authority electing not to make such a direction,
is to be treated as a condition subject to which the application is granted.
Planning etc (Scotland) Act 2006