Overview of the Act Development planning Examination of proposed local development plan
57.Subsections (9) to (14) of section 7 of the Act remove the Scottish Ministers’ ability to intervene in local development plans (LDPs) at the end of the plan preparation process, prior to its adoption; adjust requirements relating to publication and notification requirements to prevent duplication of process due to the changes; and introduce new powers for the appointed person where they find the proposed plan is not satisfactory.
58.At present, if a proposed plan is unsatisfactory (for example by failing to allocate sufficient land for housing) the Reporter is expected to make recommendations for modifications, which the planning authority must implement. The Scottish Ministers may also direct the authority to consider modifying the plan, and may prevent the plan being adopted until they approve it. The new provisions place the responsibility back on the planning authority to address any failures in the plan, either before or immediately after the plan is adopted.
59.Section 19 of the 1997 Act relates to examination of the proposed local development plan. Section 7(9)(a) of the Act inserts a new subsection (5A) into section 19. This requires that when an examination of a plan is to take place, either at the request of the authority or by Ministers, the planning authority must publish the proposed plan and a report setting out any modifications made and the reasons for them. The change to section 19(9), made by paragraph (e), is in consequence of this and by reference to the new subsection (5A), allows publication to include publication by electronic means.
60.Section 7(9)(f) of the Act repeals paragraphs (b) to (d) in section 19(10) of the 1997 Act. This removes the requirements for the planning authority, following the examination, to publish the plan and modifications made to it, to advertise their intention to adopt the plan and to notify those who made representations on it. This avoids duplication with the publicity requirements when the plan is constituted, set out in section 20A of the 1997 Act.
61.Section 7(9)(g) of the Act removes section 19(12) of the 1997 Act. This removes the requirement for planning authorities to send copies of various documents to the Scottish Ministers, including the modifications made, any reasons for not modifying the plan as recommended, the proposed plan, the examination report, environmental assessment undertaken and details of the advert of their intention to adopt the plan.
62.Section 7(9)(d) of the Act introduces new subsections (8A) and (8B) into section 19 of the 1997 Act. Subsection (8A)(a) replaces provisions (removed by section 7(9)(c)) which enable recommendations to be made to modify the proposed local development plan. Subsection (8A)(b) introduces a new power for the appointed person (Reporter) to recommend that the plan is amended following its adoption. If a recommendation is made under subsection (8A)(b) new subsection (8B) requires that the report submitted to the planning authority including that recommendation is also sent to the Scottish Ministers.
63.Section 7(9)(b) of the Act broadens otherwise mandatory requirements of section 19(8) of the 1997 Act to allow for the new section 19ZA, inserted by section 7(10).
64.New section 19ZA gives the appointed person a new power, if they are not satisfied that the amount of land allocated is sufficient to meet the targets that are set in the plan, to issue a notice to a planning authority to require it to prepare another proposed local development plan. Subsection (3) sets out what the notice must include and subsection (4) sets out requirements to notify Ministers and those who have made representations, and to publish it (electronically). If the planning authority receives such a notice, under subsection (5) they must prepare another proposed local development plan. Subsection (6) allows this to be done on the basis of the existing evidence report, rather than having to start from the beginning of the process (although it does not prevent the authority for preparing a new evidence report if it considers it appropriate to do so).
65.Section 19A of the 1997 Act deals with whether the planning authority’s consultation and public involvement with respect to the proposed plan has conformed with their participation statement in place at the time. The appointed person must consider this before carrying out the examination. If the appointed person is not satisfied, the Scottish Ministers may direct the authority to undertake further consultation, after which the authority may modify and must resubmit the proposed plan. Section 7(11) of the Act removes the separate requirements to publish the modified plan and advertise that a proposed plan has been resubmitted in these circumstances, and instead applies the requirement to publish the proposed plan and report on modifications under new section 19(5A).
66.Section 7(12) of the Act amends section 20 of the 1997 Act, which provides for the local development plan to be constituted when it is adopted by the planning authority. In particular, it removes subsections (2) to (7), which allow the Scottish Ministers to direct that modifications are to be made to the proposed plan, extend the time before which the plan may not be adopted, or require that the plan is to be constituted when it is approved by the Scottish Ministers, rather than when it is adopted by the planning authority. In place of these, the Act inserts new subsections (1A) and (1B) into section 20.
67.New subsection (1A) provides that planning authorities cannot adopt their plan until 28 days have passed following submission of the proposed local development plan to the Scottish Ministers. This allows Ministers 28 days within which they can either appoint a person to examine the plan, or decide not to. New subsection (1B) requires, where an examination has taken place, for the examination report to have been received by the planning authority before they can proceed to adopt the plan.
68.Section 7(13) of the Act inserts new subsections (1A) to (1E) into section 20A of the 1997 Act, which deals with publication and publicity for the local development plan.
69.New subsection (1A) provides that in certain circumstances, as soon as reasonably practicable after the local development plan is constituted, the planning authority must publish either (a) a “recommended-modification statement” or (b) a “report on modifications”.
70.New subsection (1B) defines the circumstances where a recommended-modification statement is required – this being where a planning authority has declined to follow a recommendation in an examination report. New subsection (1E)(a) provides that the statement must set out the modification and explain why it was not made.
71.New subsection (1C) sets out where a report on modifications is required – this is where the constituted plan is different to the proposed plan as a result of modifications from earlier stages. New subsection (1D) provides that if a report on modifications was published at the examination stage, only new modifications need to be included in the report following constitution of the plan; if no new modifications were made no report need be published.
72.Section 7(14) of the Act inserts a new subsection (4A) into section 20B of the 1997 Act relating to development plan schemes. A development plan scheme is a document setting out the authority’s programme for preparing and reviewing their plan. The development plan scheme is currently required to include a participation statement, which is an account of when consultation is likely to take place, with whom, its likely form, and steps to be taken to involve the public at large. New subsection (4A) requires that when the planning authority is preparing a development plan scheme, they must seek the views of, and have regard to any views expressed by, the public at large on the content of the participation statement. This will allow interested stakeholders to have a say in how they can be most effectively consulted, so that authorities can tailor their approach to improve its effectiveness.