Planning decisions should help increase sustainable economic growth at the same time as protecting the environment for future generations and promoting a better quality of life.
Indeed, the way in which our two largest cities have been planned, from the preservation of Edinburgh’s historic buildings and landscapes to Glasgow’s grid system, play a major role in our lives today.
Nevertheless, the fact is planning gets a bad rap. There are constant stories and complaints about projects being delayed again and again because of planning issues.
That could be about to change.
We are at a pivotal moment as ‘game changing’ views are sought by Government on how the planning system could be improved. In September 2015, the Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights appointed an independent panel to review the Scottish planning system.
It aims to ‘streamline, simplify and improve current systems and remove unnecessary blockages in the decision-making process’.
The planning system makes decisions about future development and the use of land in our towns, cities and countryside. It decides where development should happen, where it should not and how it affects its surroundings. Planning seeks to balance competing demands to make sure that land is used and developed in the public’s long-term interest.
Therein lies the problem.
Achieving that balance seems to equate to endless planning hoops to jump through. Completing legal agreements can be a lengthy process. In extreme case it can take years. Here’s a typical scenario.
A developer feels that the hard yards have been covered - various reports have been completed, the community has been engaged with and, the developer is now the proud owner of a ‘minded to grant’ planning decision for an exciting new development.
However, they are just short of the actual granting of planning permission which will allow building to begin.
Before the JCBs can roll in, the developers and owners of the land have to sign up to a Section 75 agreement.
This agreement legally binds the developer to provide ‘planning gain’ which translates to various additional conditions such as building the necessary road and utility infrastructure or financing a new school.
The reality is that agreeing a section 75 can take just as long as the rest of the process. Meanwhile, families could be crying out for new homes in a particular area.
There will always be disagreements between planning authorities and developers over the extent of ‘planning gain’ payable due to their differing goals. There are a variety of approaches throughout the 32 local authorities in Scotland on how planning agreements are entered into as well as the types and level of contributions expected.
With reducing budgets and financial pressures, local authorities are increasingly finding it difficult to deliver essential infrastructure to support a new housing development. Equally, the financial impact of ‘planning gain’ requirements to support infrastructure is often a problem for developers.
In some circumstances it means a proposed development is no longer viable.
This fundamental problem for the planning system is one, which the Scottish Government hopes its review will help to address.
If planning is to be fit-for-purpose and really deliver for our country’s future effectively, the current review has to be open to some radical suggestions. Here’s some food for thought.
Clarity from planning authorities from the outset should lead to robust decisions which are easier to turn into planning permissions
Major infrastructure requirements should be identified and reviewed regularly in ‘live’ Action Programmes with buy-in from central and local government. These would provide statutory guidance on planning obligations.
Set a six month time limit for a section 75 agreement. If it is not met by the developer, the planning authority should have the ability to refuse the planning application. If it is not met by the planning authority, the developer should be able to progress, using a unilateral obligation, and appeal for the release of the planning permission.
Introduce a Community Infrastructure Levy (“CIL”) for major infrastructure. This pooling of contributions would remove the need for a development’s approval and success to be dependent on a potentially crippling up front financial contribution. Each planning authority would set its own levy based on its needs. This method is used in England.
Holyrood and Local Government should take the lead on the provision of major infrastructure and consider alternative funding mechanisms such as City Deals, TIF and prudential borrowing. Advanced major infrastructure works are sometimes required to unlock development potential in growth areas.
We need to grasp this opportunity to make the planning system work better for the good of the country. It’s about decisive leadership and clear communications. The independent panel is due to publish its report in May – let’s hope it doesn’t hit delays akin to the system it’s reporting on!
Douglas, Partner, Morton Fraser is sharing his views at the SOLAR conference on Friday 18th March