Section 17 - Local developments: schemes of delegation

103.     This section inserts new sections 43A and 43B into the 1997 Act. Section 43A(1) requires each planning authority to prepare a scheme of delegation, describing how applications relating to local developments are to be determined by appointed persons (such as officials) instead of elected members. Section 43A(3) indicates that the scheme of delegation required by section 43A(1) does not apply to cases specified under section 38A(1) as requiring pre-determination hearings. As part of the new enhanced scrutiny procedures, such cases are to be decided by the full council.

104.     Section 43A(4) allows regulations to set out the procedures for preparing and adopting schemes of delegation, and their form and content. Section 43A(5) applies the relevant parts of sections 37 to 39, 41, 42 and Part1 of Schedule 3 to the 1997 Act to planning applications dealt with by the appointed person. Section 43A(6) allows the authority to determine any delegated application themselves, and section 43A(7) requires them to produce a statement of reasons for doing so, which must be copied to the applicant.

105.     Section 43A(8) to (17) covers the procedure under which the applicant can require a review of a delegated decision where an application was refused or granted subject to conditions, or where the appointed person failed to determine an application within the prescribed time period. The form and procedure of such a review may be set out in regulations or a development order under section 43A(10). The regulations will also set out the time limits for requiring a review and the terms in which the case has been reviewed and the reasons for the decision. There is no right of appeal to the Scottish Ministers (other than in relation to a failure to determine the application). The applicant has a right to apply to the Court of Session under section 239 of the 1997 Act.

106.     Section 43A(18) substitutes paragraph 1(6)(b) of Schedule 3 to the 1997 Act. This applies to planning applications dealt with by the appointed person as set out in section 43A(8).

107.     New section 43B sets out the circumstances under which the applicant may be allowed to raise a matter which was not part of the application determined by the appointed person, when the planning authority conduct a review under section 43A(8).

Section 18 - Call-in of applications by the Scottish Ministers

108.     This section makes minor changes to section 46 of the 1997 Act which gives the Scottish Ministers the power to make directions to call in applications. The directions may apply to one or more planning authorities and may relate to an individual application or a class of applications as described in the directions. This section inserts a subsection (1A) giving the Scottish Ministers the power to either withdraw directions or modify existing directions by making further directions. Subsection (3) is amended consequentially to make explicit reference to subsection (1).

Section 19 - Appeals etc.

109.     Subsection (1) amends section 47 of the 1997 Act to clarify that an appeal under subsection (1) is to be against the decision of a planning authority to refuse an application or grant it subject to conditions. It also adds a new subsection (1A) to exclude from subsection (1) actions taken by an authority in a review of a delegated decision under section 43A(8). This change combined with the changes made by subsections (3) and (4) give a party aggrieved by the decision on a review of a delegated decision the right to appeal to the Court of Session rather than to the Scottish Ministers.

110.     Subsection (2) inserts a new section 47A into the 1997 Act. This sets out the circumstances under which the applicant may be allowed to raise a matter which was not part of the application determined by the planning authority, when making an appeal under section 47(1).

111.     Subsection (3) amends section 237 of the 1997 Act (validity of certain plans, schemes, orders and actions) in relation to the delegation of decisions by planning authorities under new section 43A.

112.     Subsection (4) amends section 239 of the 1997 Act (proceedings for questioning the validity of certain orders, decisions and directions) in relation to the delegation of decisions by planning authorities under new section 43A.

113.     Subsection (5) amends section 267 of the 1997 Act (procedure on certain appeals and applications) to extend the scope of regulations to cover appeals and applications under the 1997 Act irrespective of whether the Scottish Ministers are required to afford any person an opportunity of appearing before and being heard by a person appointed by Ministers. It inserts new subsections (1A), (1B) and (1C) which clarify further the content of the regulations. These provisions replace subsection (3) which is repealed.

Section 20 - Duration of planning permission and listed building consent etc.

114.     Subsections (1) and (2) amend section 58 of the 1997 Act (which is re-entitled "Duration of planning permission"). In section 58, subsections (1) to (3) are substituted by new subsections (1) to (3A). Under the new subsections a planning permission lapses after three years unless the development is begun within that time. The planning authority may under new subsection (2) direct that a different time limit shall apply. In subsection (4) new paragraph (ca) makes it clear that the new version of section 58 does not apply to permissions granted prior to the coming into force of section 20.

115.     Subsection (3) makes similar amendments to section 16 of the listed buildings Act.

Section 21 - Planning permission in principle

116.     Section 21 replaces the existing section 59 of the 1997 Act with a new section 59, "Planning permission in principle". New subsection (1) defines "planning permission in principle", and new subsections (2) and (3) set out time limits within which an application must be made for the approval of any matters set out in conditions imposed under subsection (1)(b).

117.     An application for approval must be made within 3 years of the date when the "planning permission in principle" was granted or within 6 months of when a previous application of approval has been refused or an appeal against a refusal has been dismissed, whichever is the latest date. Approval does not necessarily have to be given for the whole application at the same time. The planning authority may direct that a longer or shorter period than 3 years is to apply.

118.     Subsections (4) provides that planning permission in principle lapses on the expiry of a period of two years after the date (or the last date) on which approval mentioned in subsection (1)(b) is given unless development has begun before that date. The planning authority may direct that a longer or shorter period should apply. Subsection (6) states that a direction under subsection (4) is to be treated as a condition for the purposes of section 47 of the 1997 Act. Subsection (7) allows a direction under subsection (5) to provide that different periods may apply to different parts of the development. Subsection (8) requires the planning authority to have regard to any provisions set out in its development plan or other material considerations if it chooses to adjust time limits set out under subsections (5) and (7).

119.     Subsection (2) ensures that the provisions in the new section 59, introduced by section 21 of the Act, do not apply to outline planning permissions granted under the current section 59 of the 1997 Act prior to section 21 of the Act coming into force. The existing statutory arrangements will continue to apply to such outline planning permissions.

Section 22 - Further provisions as regards duration of planning permission etc.

120.     Section 22 amends various sections of the 1997 Act to bring them into line with the revised wording of sections 58 and 59 of the 1997 Act resulting from sections 20 and 21 of this Act.

Section 23 - Planning obligations

121.     Subsection (1) replaces section 75 of the 1997 Act - planning agreements - with new sections 75, 75A, 75B and 75C.

122.     In new section 75 - Planning obligations - subsection (1) provides that a person may enter into a planning obligation, either by agreement with a planning authority or unilaterally. The obligation in respect of land in the authority's district restricts or regulates the development or use of the land, either permanently or during a specified period. Typical examples could relate to the provision of road improvements, community facilities or extensions to schools relating to the development, either directly by the developer or through funding to the local authority.

123.     Subsection (2) confirms that obligations can require operations or activities to be carried out, or require the land to be used in the specified way.

124.     Subsection (3) states that an obligation may be subject to conditions, require the payment of a specified amount or periodic sums, and contain such other provisions as the planning authority or the person entering into the obligation believe to be necessary or expedient.

125.     Subsection (4) states that an obligation can have effect on a specified date or a date determined by reference to an event.

126.     Subsection (5) states that an obligation is enforceable by the planning authority against the owner of the land or (in the case of obligations other than those mentioned in subsection (2) or (3)(b)) any other person having use of the land, if it is recorded in the Register of Sasines or registered in the Land Register of Scotland. To be so recorded or registered the owner of the land must be a party to the obligation. In terms of subsection (12) it does not matter if the owner of the land at the time of recording or registration was owner at the time when the obligation was entered into. Subsection (6) prevents enforcement of a planning obligation under subsection (5) where a third party acquires right to the land prior to the obligation being recorded or registered.

127.     Subsection (7) gives the planning authority powers to enter land, carry out operations and recover costs where there is a breach of a requirement in an obligation to carry out any operation. Subsection (8) requires the authority to give 21 days notice of their intention to do so.

128.     Subsection (9) states that anyone wilfully obstructing someone who is acting in the exercise of the power of entry under subsection (7) is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 (at present £500).

129.     Subsections (10) and (11) define owner in relation to planning obligations.

130.     New section 75A - Modification and discharge of planning obligations - sets out the circumstances in which an obligation can be modified or discharged. Subsection (2) states that a person may apply to a planning authority for their agreement that an obligation should be modified or discharged. Subsection (1)(a) requires agreement to modification or discharge of a planning obligation to be pursuant upon an application made under subsection (2).

131.     Subsection (4) gives the authority powers to continue, discharge or modify an obligation, and subsection (5) requires the authority to give notice of their determination to the applicant.

132.     Subsections (6) to (8) set out that, where the obligation has been recorded in the Register of Sasines or registered in the Land Register of Scotland, the modification or discharge is effective from the date of recording or registration of the notice that the obligation is to be discharged or modified.

133.     Subsection (9) allows regulations to provide for the form and content of an application under subsection 75A(2), the publication of notice of any such application, procedures for considering representations and the form and content of any notice given under subsection 75A(5).

134.     New section 75B - Appeals - provides a right of appeal to the Scottish Ministers where a planning authority fail to comply with subsection 75A(5) (their duty to give notice of their determination of an application to modify or discharge an obligation) or determine that an obligation is to continue without modification.

135.     Subsection (3) states that an appeal may be made within such period and by a notice served as prescribed in regulations. Subsection (4) allows the Scottish Ministers to continue, discharge or modify an obligation, and subsection (5) requires Ministers to give notice of their determination to the applicant.

136.     Subsections (6) to (8) set out that when this determination takes effect where the obligation has been recorded in the Register of Sasines or registered in the Land Register of Scotland this is the date of recording or registration as the case may be.

137.     Subsection (9) allows regulations to provide for the form and content of a notice served under subsection 75B(3), or given under subsection 75B(5).

138.     Subsection (10) provides that the determination of an appeal under this section by Scottish Ministers is final save to the extent that there is a right to apply to the Court of Session under section 239 of the 1997 Act.

139.     New section 75C - Planning obligations: continuing liability of former owner etc. - sets out the circumstances in which an owner of land does not cease to be bound by a planning obligation when ceasing to be the owner of that land. Under subsection (4), unless the obligation states otherwise, a person who becomes an owner of land subject to an obligation is severally liable with any former owner, but in terms of subsection (5) that person may recover any expenditure incurred from the former owner.

140.     Subsection (2) provides that subsections (3) and (4) of the existing section 75 of the 1997 Act will continue to apply to agreements entered into before the coming into force of section 23(1) of this Act.

Section 24 - Good neighbour agreements

141.     Section 24 inserts new sections into the 1997 Act to govern the operation of good neighbour agreements.

142.     New section 75D - Good neighbour agreements - allows a person to enter into a good neighbour agreement with a community body. Subsections (2) to (4) define which bodies may be community bodies for the purposes of a good neighbour agreement. Subsection (6) further describes the requirements that can be specified in an agreement and subsection (7) describes conditions that may be attached to the agreement. Subsection (9) makes provision for good neighbour agreements to be recorded in the Register of Sasines or registered in the Land Register for Scotland. Where an agreement has been recorded/registered then the obligation is enforceable against the owner, tenant or other person entering into the agreement. Subsection (10) provides that any new owner of the land will be bound by the agreement unless it has been acquired in advance of the agreement being registered/recorded.

143.     New section 75E - Good neighbour agreements: modification and discharge of obligations - sets out the circumstances under which an obligation under a good neighbour agreement can be modified or discharged and the process by which either party may apply to the planning authority for its determination if they are unable to reach agreement on the modifications or discharge. Subsection (4) confirms that any application for modification should not impose an obligation on any non-applicant. Subsections (5) to (8) set out the effect of the planning authority's determination, the requirement to give notice of their determination and when any modification or discharge is to take effect. Subsection (9) give the Scottish Ministers the power to make regulations with respect to applications for determination.

144.     New section 75F - Good neighbour agreements: appeals - sets out the circumstances under which either party may serve a notice on the Scottish Ministers, appealing against the planning authority's determination or failure to make a determination within the period prescribed under section 75E(6). The Scottish Ministers have the power to make regulations on the form, content and notice periods for appeals. The determination of an appeal to the Scottish Ministers may be appealed to the Court of Session in accordance with the terms of section 239 of the 1997 Act.

145.     New section 75G - Good neighbour agreements: continuing liability of former owner etc. - sets out the circumstances in which an owner of land does not cease to be bound by an obligation contained in a good neighbour agreement when ceasing to be the owner of that land. Under subsection (4), unless the good neighbour agreement states otherwise, a person who becomes an owner of land subject to an obligation is severally liable with any former owner, but may recover any expenditure incurred from the former owner.

PART 4 - ENFORCEMENT

Section 25 - Fixed penalty notices

146.     Subsection (1) inserts new section 136A into the 1997 Act. This establishes powers for planning authorities to issue fixed penalty notices as an alternative to prosecution in cases where a person is in breach of an enforcement notice. In the new section 136A, subsection (1) allows a planning authority to issue a fixed penalty notice provided certain conditions, as set out in subsection (7), are met. The conditions of subsection (7) are that the fixed penalty notice must be issued within 6 months of the failure to comply with the enforcement notice, and that a fixed penalty notice cannot be issued where a person has already been charged with an offence in respect of the breach of the enforcement notice.

147.     Subsections (4), (5) and (6) of new section 136A set out that a person who receives a fixed penalty notice has 30 days to pay the penalty, and that the penalty is reduced by 25% if payment is made within 15 days.

148.     Subsection (10) of new section 136A provides that any payment received by a planning authority in respect of a fixed penalty notice is retained by the authority.

149.     Subsection (11) of new section 136A allows Scottish Ministers to prescribe in secondary legislation different levels of fine for different cases. This will allow Ministers to set out in regulations an incremental scale of fines related to previous fixed penalty notices or prosecutions.

150.     Subsection (2) inserts new section 145A into the 1997 Act. This establishes a similar power to that of section 136A, allowing planning authorities to issue fixed penalty notices in respect of breaches of breach of condition notices. The various subsections of new section 145A make the same provision as those of 136A with regard to payment and the introduction of a scale of fines as set out by Ministers in regulations.

Section 26 - Temporary stop notices

151.     Subsection (1) inserts new sections 144A, 144B, 144C and 144D into the 1997 Act, which cover the operation of the new system of temporary stop notices. In new section 144A, subsection (1) sets out the circumstances in which planning authorities may issue temporary stop notices. The planning authority have to consider that there has been a breach of planning control which comprises an activity, and to consider that there is a valid reason for stopping it immediately.

152.     Subsection (2) of new section 144A requires that the notice must be in writing and specify the activity which is to stop, prohibit its continuation and set out the authority's reasons for issuing the notice.

153.     Subsection (3) of new section 144A states that notice may be served on a person who either appears to be engaged in the activity and/or a person who has an interest in the land.

154.     Subsection (4) of new section 144A states that the authority must display a copy of the notice and a statement on the effect of section 144C (relating to offences) on the land in question.

155.     Subsections (5) to (7) of new section 144A set out when the notice starts and ceases to have effect. It may only have effect for a maximum of 28 days. Subsection (8) of new section 144A provides that if the notice is withdrawn it ceases to have effect at that point.

156.     In new section 144B (restrictions to temporary stop notices) subsection (1) sets out that such notices do not prohibit the use of a building as a dwelling house or the engagement in any activity which is prescribed in regulations. Subsection (2) states that such notices do not apply where the activity has been carried out for more than 4 years prior to the notice being displayed, and subsection (3) disapplies this where the activity relates to building, engineering, mining or the deposit of refuse or waste materials.

157.     Subsections (5) and (6) of new section 144B prohibit the issue of a further temporary stop notice unless another enforcement action has been taken.

158.     In new section 144C (offences) subsections (1) to (4) set out the circumstances in which a person is guilty of an offence for contravening a temporary stop notice, and allow for convictions to be made for any number of offences with reference to different days or periods.

159.     Subsection (5) of new section 144C sets out the statutory defences under this section, which are that the notice was not served on the accused and that he did not know, and could not reasonably have known of its existence.

160.     Subsections (6) and (7) set out the penalties for offences under these new sections, including a requirement for the court to have regard to any financial benefit which might accrue to the convicted person as a result of the activity which constituted the offence.

161.     In new section 144D (compensation) subsections (1) and (2) set out who is entitled to compensation in respect of any loss or damage which can be directly attributed to the notice being served. Subsection (3) applies subsections (3) to (7) of section 143 of the 1997 Act to compensation under this section. These provisions cover how the claim for compensation is to be made, give further details of what the compensation may cover and provide that any question of disputed compensation shall be referred to and determined by the Lands Tribunal.

162.     Subsection (2) gives persons duly authorised by the planning authority rights of entry in relation to the service of temporary stop notices.

Section 27 - Enforcement charters

163.     This section inserts new section 158A into the 1997 Act. It places a duty on the planning authority to prepare an enforcement charter, setting out the contents for such a document. The planning authority are obliged to have regard to any guidance issued by the Scottish Ministers concerning this section. The section also places a duty on the planning authority to update and re-publish their enforcement charter, to issue copies to the Scottish Ministers and make it publicly available.

PART 5 - TREES

Section 28 - Tree preservation orders

164.     This section amends Part VII, Chapter I of the 1997 Act. Subsection (1) amends section 159 of the 1997 Act by extending to Scottish Ministers the duty, currently only on planning authorities, to ensure, whenever it is appropriate, that in granting planning permission for any development adequate provision is made, by the imposition of conditions, for the preservation or planting of trees.

165.     Subsection (1) also amends section 159 of the 1997 Act to place a duty on the planning authority to review existing tree preservation orders (TPOs).

166.     Subsection (2) amends section 160 of the 1997 Act to expand the powers to include trees, groups of trees, or woodlands of cultural or historical significance, when a planning authority is making a TPO.

167.     Subsection (2) also amends section 160(6) of the 1997 Act. Currently, under schedule 2 paragraph 4 of the Town and Country Planning (Tree Preservation Order and Trees in Conservation Areas) (Scotland) Regulations 1975, statutory undertakers are not required to notify the planning authority of operations on operational land as described in section 215 of the 1997 Act. Removing the reference to paragraphs (a) and (b) has the effect that anyone carrying out operations, either in accordance with the statutory obligations under section 160(6)(c) of the 1997 Act or as a statutory undertaker, must now notify planning authorities when undertaking operations on a tree, group of trees or woodland covered by a TPO.

168.     Subsection (2) also inserts a new section 160(8) into the 1997 Act. The Scottish Ministers already have the power to make regulations on the form and manner of tree preservation orders in section 161(3) of the 1997 Act. The new subsection (8) extends the powers to make regulations setting out the form and manner of applications for consent (under tree preservation orders).

169.     Subsection (3) replaces the existing section 161(1) of the 1997 Act to provide that all tree preservation orders will take effect on the date specified in the order, rather than the date it is confirmed. The provision removes the distinction between tree preservation orders made under previous section 161 and provisional orders under section 163 (which is repealed in the Schedule to the 2006 Act). Under new subsection (1)(b), a tree preservation order will expire unless confirmed by the planning authority within 6 months.

170.     Subsection (4) inserts a new section 161A into the 1997 Act to provide a new power for a person authorised by the planning authority to enter land for the purposes of affixing a copy of a tree preservation order, where such an order has been made and where a tree or trees may be at risk of imminent damage or destruction. This does not affect any requirements for giving notice that an order has been made or confirmed which may be made in regulations by virtue of section 161(3)(b) and (4) of the principal Act.

171.     Subsection (6) inserts a new subsection (3A) into section 168 of the 1997 Act. Section 168 gives the planning authority the power to serve a notice on a land owner who has failed to plant replacement trees, as required by a condition of a consent under a tree preservation order. The new subsection (3A) extends the order applied to the original trees to also cover all replacement trees required as a condition of consent for tree operations as mentioned in section 168(1)(b).