Scotland’s planning bill is going down the toilet – Cliff Hague

Scotland’s current Planning Bill is a botched job that pleases nobody and would create an under-funded system designed to fail, writes Cliff Hague.

The Planning Bill would require local development plans to include policies about the provision of public toilets (Picture: Ian Georgeson)
The Planning Bill would require local development plans to include policies about the provision of public toilets (Picture: Ian Georgeson)

The Planning Bill introduced by the Scottish Government at the end of 2017 is in a mess. The Bill has been so heavily amended on its way through Holyrood that its future could be in doubt. This matters for Scotland’s communities, businesses, landscapes, heritage and environment. How did we come to this, and is there a way out?

It all began in 2015 when the SNP still had a majority at Holyrood. The big housebuilding companies lobbied ministers, as they do, telling them how the planning system was holding back provision of new housing, and how looser regulation would help them to contribute to “sustainable economic growth”. This refrain has been the mood music in Westminster for years, leading to a weakening of planning there – and continuing housing shortages and a chronic crisis of affordability.

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The 2017 Bill sought to put “delivery” of development at the core of planning, while also cutting costs. For example, it proposed to do away with strategic development plans for city regions and to “streamline” other procedures. Planning legislation at Holyrood and in Westminster has usually been seen as technical rather than party political, so an easy ride might have been anticipated. However, three factors combined to frustrate expectations.

Firstly, having lost its overall parliamentary majority in 2016, the Scottish Government needs support from other parties to carry through its proposed legislation.

This has not been forthcoming. Secondly, one reason why it has been hard to win such support is because our planning system is centralised and public confidence in it has been eroded. Scottish ministers have used their powers to over-ride objections from local authorities and communities, and granted permissions for development. This practice does not nurture trust. Finally, years of austerity have resulted in councils cutting back on all “non-essentials”: unless they have a legal obligation to do something, it does not get done.

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Consequently while the minister, Kevin Stewart, MSP, has talked up the good intentions behind his Bill, MSPs have sought to amend it to ensure that matters of concern to them and to their constituents become statutory requirements. The result is that the amended Bill is now laden with a level of detail that is not appropriate to primary legislation.

For example, as amended the Bill would require a local development plan “to include a statement of the planning authority’s policies and proposals as to the provision of public conveniences”.

As councils close and sell off public conveniences – despite an ageing population or the needs of young children – it is clear why this amendment won support, for who could imagine that the issue would otherwise be addressed?

The Royal Town Planning Institute says that the Bill as it now stands would place 66 new duties on planning authorities and 25 on Scottish Government. Yet since 2010 councils have shed almost a quarter of their planning staff. In effect, an unfunded mandate is being proposed in what was intended to be a Bill facilitating further cost-cutting.

Research commissioned by the Scottish Government a couple of years ago into “Barriers to Engagement” reported that “there is a serious lack of trust, respect and confidence in the system, and that community engagement exerts very little influence on planning outcomes”. Only 41 per cent of those surveyed felt their local historic environment had been protected or enhanced by the planning system, and only 47 per cent believed that local greenspaces and natural heritage had been protected. Quite simply the system is seen as unfair, and not addressing major public expectations.

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Detailed steps to protect conservation areas, listed buildings, designed landscapes, gardens and battlefields are often set out in “supplementary guidance” to a development plan. The Bill originally sought to remove such guidance, but now an amendment would retain it.

To address the public confidence deficit, the Bill as originally drafted proposed “front-loading” the system. In other words, members of the public would be encouraged to get involved in the early stages of making a plan or in consultations with developers before a planning application is formally lodged. The same argument was used when the last Planning Act was passed in 2006. The extra element this time is a “Local Place Plan”, preparation of which could be led by local residents or organisations.

However, just what real influence such a plan would carry remains unclear, and there are concerns that better-off places would find it easiest to make such plans. Meanwhile, the Government strongly resisted any change to the system of planning appeals. This means that the system actually remains “back-loaded”, as, after developers have failed to get the permission they want, expensive advocates argue the legal minutiae of why their clients nevertheless should be given the go-ahead. Amendments to rebalance this part of the Bill have not been successful.

So we have a Bill that is causing concern to many, including at least some of the original intended beneficiaries in the development industry. One proposal to speed “delivery” was a power to designate “Simplified Development Zones”, which the minister subsequently amended in a linguistic flourish to assuage critics as “Masterplan Consent Zones”. However, amendments have been successfully moved to this part of the Bill, introducing the possibility of some form of land value capture in those zones.

Homes for Scotland, the industry body for house builders, is less than enthusiastic about the idea which would reduce the power of landowners in such zones to pocket the full increase in land value after a planning permission is gained. Not unreasonably, they have pointed out that the Scottish Land Commission is still working on the idea of land value capture.

So what is to be done? Scotland needs a planning system fit for the 21st century, and many amendments show an ambition for this. Instead the Bill sought to tweak previous legislation to further align it with developer aspirations. What we have at the moment is a botched job pleasing nobody, and creating a system underfunded to fail. There is a case for a rethink, providing the lessons from this ill-fated Bill have been learned.

Professor Cliff Hague is chair of architectural conservation body The Cockburn Association