The planning regime in Scotland has always differed from that in England. Each legal jurisdiction has been governed by its own legislation and statutory framework ever since the foundations for the planning system were laid in 1948. Scotland has fully devolved responsibility for town and country planning policy and decision making.
Submission and Processing
Other than for nationally significant infrastructure projects ("NSIPs"), a planning application for a development in England is made to the local planning authority. All planning applications are processed in the same manner.
In Scotland, all planning applications are made to the local planning authority. However, the processing of an application and the available rights of appeal differ depending on the type of development, its size and importance. This is known as the development hierarchy and is split into three categories:
- National developments are top tier and are set out in National Planning Framework 4.
- Major developments which include developments such as housing proposals over 50 units, supermarkets over 5,000 square metres and wind farms over 20MW.
- Local developments include single unit houses, shop front alterations and change of use of properties.
Pre-application Consultation
In England, applicants are required to undertake pre-application consultation where the proposed development is of a certain description including NSIPs and wind farm developments comprising the installation of more than two wind turbines or where the turbine height exceeds 15 metres.
In Scotland, pre-application consultation is required for national and major developments but not for applications to vary a condition attached to an existing planning permission.
Extending the Life of a Planning Permission
There is no mechanism to apply to an English planning authority to extend the lifetime of a planning permission. However, there is a streamlined renewal process for planning permissions granted on or before 1 October 2010. By contrast, an application can be made to a Scottish planning authority to extend the lifetime of a planning permission.
Appeal
All planning appeals for English property are made to the Secretary of State, irrespective of the size of the development.
For Scottish property, certain local developments have appeal rights to a Local Review Body only, consisting of local councillors, rather than to the Scottish Ministers.
Judicial Review Time Limits
In England, the time limit for a judicial review is 6 weeks.
In Scotland, the time limit is:
- for decisions of the local planning authority, 3 months or such longer period as is equitable in the circumstances; or
- for statutory appeals against a decision by the Scottish Ministers or Reporter, 6 weeks.
Major Infrastructure Projects
There are a number of different statutory consents that are required for major infrastructure projects, not just planning permission e.g. a project may also need compulsory purchase powers for land assembly or road orders to stop up roads.
In England, all necessary consents for NSIPs can now be obtained by means of applying for a Development Consent Order (DCO).
In Scotland, the necessary statutory consents for any major infrastructure project are usually applied for and obtained separately. However, in certain instances a Transport and Works Order or the Private/Hybrid Bill process in the Scottish Parliament could be used. This legislative process was used for the Edinburgh Tram Project and the Forth Crossing.
Discharge of Planning Obligations
In England, planning obligations can be discharged by voluntary agreement between an applicant and planning authority at any time. However, a formal application to discharge or vary an obligation can only be made, to the planning authority, five years after entering into it. There are appeal rights to the Secretary of State against any refusal or failure to determine such application.
Planning obligations in Scotland can only be discharged or varied by formal application to the planning authority. In contrast to the position in England, an application can be made at any time. There are appeal rights to the Scottish Ministers against any refusal or failure to determine such application.
Community Infrastructure Levy
Local planning authorities in England are entitled to charge a Community Infrastructure Levy ("CIL") on all new development. The CIL is calculated on a price per square foot basis for each new development. Local authorities can choose whether to charge the CIL, whether it will apply to all developments or only to certain types of development and the amount of the CIL. Most local authorities have now adopted CIL plans, although some are still in the consultation phase.
No CIL applies in Scotland. However, the Planning (Scotland) Act 2019 does contain a power to introduce an infrastructure levy going forward.
Section 75 agreements
Although no CIL has been set up for Scotland, planning authorities can still impose obligations on developers to provide funding for infrastructure, community facilities and the like, via Section 75 agreements (which are broadly equivalent to Section 106 agreements in England).
