Local Government, Housing and Planning Committee

Meeting date: Tuesday, April 25, 2023

Official Report 631KB pdf

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Subordinate Legislation

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Town and Country Planning (Development Planning) (Scotland) Regulations 2023 (SSI 2023/101)

The next agenda item is to take evidence on the Town and Country Planning (Development Planning) (Scotland) Regulations 2023 from Joe FitzPatrick, the Minister for Local Government Empowerment and Planning. He is joined by Scottish Government officials. Kristen Anderson is principal planner, Andy Kinnaird is head of transforming planning and Carrie Thomson is head of development planning and housing. I welcome our witnesses to the meeting, and I invite the minister to make a brief opening statement.

Good morning, everyone. The previous time that I attended a meeting of a committee with a similar remit was as convener of the Local Government and Regeneration Committee in session 4. I note that Mark Griffin was a member of that committee way back in 2011. When I was preparing for this morning’s meeting, I felt that it was a little bit soon after my appointment to be facing a double committee session. That said, it is good to be back.

I thank the committee for giving me the opportunity briefly to outline the Scottish Government’s approach to the new development planning provisions, which are contained in Scottish statutory instrument 2023/101 and the associated regulations on commencement, savings and transitional arrangements.

Scotland’s plan-led system of development is widely supported. As the committee will be aware from its consideration of national planning framework 4, the Scottish Government is strengthening development planning as part of its wider planning reform programme. That includes changes to what constitutes a development plan, the interplay between policies on NPF4 and local development plans, and the process of preparing LDPs with a greater focus on delivery. Together, those changes create opportunities for LDPs to refocus on delivering place-based outcomes.

The broad framework for new-style LDPs and their preparation is set out in the primary legislation—the Planning (Scotland) Act 2019—which made strategic changes to LDPs. The new regulations provide the detail for how the act’s requirements should be fulfilled. They were informed by extensive engagement with key stakeholders, with input from the cross-sectoral development planning working group. That led to public consultation on the main regulations and draft guidance, along with the consultation on the draft NPF4 and a separate one with targeted engagement on the definition of “Gypsies and Travellers”.

Overall, respondents were generally supportive of our proposed approach of producing carefully targeted regulations. More detail will be provided in the fuller associated guidance. I assure the committee that the regulations were finalised while taking into account comments raised through the public consultation. The policy note sets out details of the consultations, including the issues raised, and the regulations now reflect that feedback. Not all the suggestions put forward have been included in the regulations, but we will address the matters raised in them in the guidance.

The connection between the regulations and the guidance is key. We have sought to strike a balance between having a clear statutory framework and clear guidance to support all stakeholders in implementing the new system while giving planning authorities flexibility to implement the statutory procedures in the ways that best suit their places, communities and organisational priorities.

We also intend to identify and share best practice as the new system beds in. I would welcome the opportunity to come back to the committee to talk through the comprehensive guidance once it has been published, if the committee would be interested in that.

The Planning (Scotland) Act 2019 (Commencement No 12 and Saving and Transitional Provisions) Regulations 2023 will commence the various provisions of the 2019 act that will be needed to support the envisaged new system of LDPs. We have also provided for savings and transitional arrangements for plans that started under the current system. From our discussions with stakeholders, we know that planning authorities are eager to get on with their new-style plans. The new regulations will provide a solid foundation for a consistent approach to plan making across the country.

I look forward to answering the committee’s questions, perhaps with a bit more support from my officials than is usual.

Thank you very much for that. I am certainly aware of the eagerness in my local authority in this area—some great work has already been initiated on local development plans and community engagement.

You began to touch on this, but I would be interested to hear about it a little more deeply. How did the Scottish Government consult on the regulations, what significant issues were raised during the consultation, and what changes were made in the light of representations that were received?

Obviously, there was extensive work at the start. The cross-sectoral development planning working group was involved from the outset—virtually before we even put pen to paper. Three sub-groups looked at procedures, evidence reports and the gate check, and the scope and content. Each of those produced outputs in February 2021, offering information on their ideas to support the development of the regulations.

The public consultation on the proposed LDP regulations and guidance ran for more than 14 weeks—between December 2021 and the end of March 2022—alongside the consultation on the draft NPF4, which allowed people to have a joined-up understanding. Eighty-seven responses were received from planning authorities, key agencies, and development, property and land management bodies.

Importantly, a separate consultation on the definition of “Gypsies and Travellers” ran between December 2022 and February 2023. That enabled targeted involvement of that community and offered an opportunity to explain the specific matters that were associated with the definition and the specific context in which it was used. There were four in-person consultation events with travelling community members, and 41 responses. That is probably a good example of best practice in how we engage with communities that, sometimes, appear to be more difficult to engage with when it comes to consultation.

You asked about the issues that were raised. Generally, there was broad agreement, I think, with the majority of the proposals. Overall, there seemed to be agreement that the regulations should be kept to a minimum, to support flexibility and the ability to address potential problems that might arise.

We were able to make some changes on a few areas in the draft regulations, but, on balance, many of the issues that were raised will be dealt with in the guidance rather than in the regulations, in accordance with the principle of keeping regulations to a minimum in order to ensure that the legal framework is clear. Most of the other points from the consultation were to do with the guidance, which can be updated in line with best practice.

I ask Kristen Anderson to fill in any bits that I may have missed.

Those are the main points. I will add a few points of detail about what we covered and updated in the regulations. For example, some members of the business community wanted to ensure that, at examinations, there is an opportunity for them to comment on any further information that is provided, so we provided for that.

As the minister indicated, we have added the definition of “Gypsies and Travellers”. In the feedback, there was quite a lot of consensus on the changes to that definition that were required, which we have taken on board.

We have also updated some of the information and considerations that planners have to take into account when preparing their local development plan. We have added things about the climate change agenda, such as national and regional marine plans, open space strategies and flood risk management plans.

Thanks very much for that. It is good to hear about the additional clarity on the climate change agenda.

How do you expect a planning authority to go about developing an evidence report, and what opportunities will there be for communities and individuals to input to the process?

The evidence report is important in ensuring robust and evidence-led plan making. It should provide a summary of what the evidence means for plan making. The aim is to front-load that work.

Sorry, what were you asking about the process?

I was asking about how the authority would go about developing it, and then about the opportunities for communities and individuals to input.

It is crucial that community involvement is front-loaded—that the community is involved at the earliest opportunity.

I ask Kristen Anderson to help me.

The act sets out the different groups that the planning authority has to engage as it prepares its evidence report. Those cover a wide cross-section of people, including “the key agencies” and

“children and young people, in particular school pupils, youth councillors and youth parliament representatives”.

It also includes “the public at large”, which is quite a large catch-all category that covers most groups.

Planning authorities must also include in the evidence report a statement about how they have engaged with disabled people, Gypsies and Travellers—we spoke about those earlier—and community councils. We therefore think that we have captured a wide range of engagement.

The focus is on early and collaborative engagement to inform the level of sufficiency of that evidence, rather than just the more formal responding to a report. It is about a more embracive and holistic approach to engagement.

Is it pretty much up to the planning authority to decide how it goes about engaging with young people or any of the groups that you have identified?

Yes, when it comes to the methods that it uses. However, we will bring forward separate statutory guidance, which will be published fairly shortly, on effective community engagement in development plans.

The evidence report, which has to be produced, is the key to making sure that that engagement is appropriate for the local place and the local community; that might not be the same everywhere.

Good morning. To follow on from Ariane Burgess’s question, minister, why has the Scottish Government chosen not to establish minimum evidence and consultation requirements for evidence reports?

A big concern would be that, if we had laid out in the regulations minimum requirements for evidence and consultation, that could be seen as the bar or as a tick-box exercise. Our approach is about having a system that can adapt. The guidance will be crucial to that. If we set such minimum requirements, there is a danger that people would aim for those, tick the box and move on to the next thing.

I hope that folk who engage will see it in that way. Crucially, because so much will be in the guidance, it will be easier for us to adapt it. The guidance will be a living document—it will not be edition 1 followed by edition 2—so it will support everyone to engage in the way that we expect.

Will that continue to be monitored throughout, and will you come back to the committee with anything that changes?

The guidance will be a living document, but I will be happy to speak to the committee when it is published and whenever the committee feels that there has been a significant change that it wants to discuss further.

Perfect. Thanks, minister.

Good morning to you, Joe. For the benefit of the committee and anybody who is watching, will you say a wee bit more about the gate-checking exercise? What is it? Is it a series of tests that need to be applied to verify, almost, that the LDP is compliant across a broad range of issues? That is my estimate. Broadly, what is it, and will it be the same in every local authority, or do the local authorities get to define it themselves?

The “gate check” is what we term the assessment of the evidence report. Obviously, that is a new process. It will provide an independent assessment of whether the planning authority has sufficient information for the preparation of an LDP. The gate check will be carried out by a person who has been appointed by the Scottish ministers—usually, a reporter from the planning and environmental appeals division. It is a new and independent process.

I ask Kristen Anderson to add a little more about it.

09:45  

As the minister has outlined, it will be for the reporter to consider whether there is sufficient information in the evidence report, which compiles the different types of evidence, to allow the authority to progress to the next stage of preparing its plan. The evidence report is, almost, the baseline information. It deals with whether there is enough information on what to plan for. The proposed plan then sets out where things go.

Does the reporter issue guidelines about what should be in the evidence report, or can local authorities determine the context and make-up of the report?

The reporter will decide the procedure and provide the evidence report. In the guidance, we will set out some templates of what the evidence report should look like. It is then up to the reporter as to whether they invite further written or oral procedures to assess that information.

Do you envisage any resource implications in that process? Do you anticipate any additional resource requirements to ensure that the process is smooth?

We have been in discussions with our colleagues in the planning and environmental appeals division, who have been aware of and preparing for those changes and that new stage since the legislation was passed in 2019. They have been getting ready for that. In addition, they are reaching out to planning authorities across the country—in particular, to those that will be the early pioneers—to get them ready. That will include the logistics of presenting the information and uploading it to their data servers. They will make sure that they have those conversations early.

We expect planning authorities to develop the plans over a period of about five years. Those will not all come at once. Six authorities are ahead of the game, I think. It should be phased over time.

Thanks for that. Another query, minister, is about the online map-based provision for the plans. Certainly, I am aware of the capability of East Ayrshire Council’s planning department in online mapping systems. Is that broadly available across Scotland? Are you aware of any technical resource requirements or issues for authorities in the implementation of those systems?

We are working with the high-level group to look at the range of skills that are required for the new plans. That is to ensure that we have performance improvement and the necessary reform to support that cross-sectoral approach to the range of skills, including mapping skills, that is needed, and to determine whether additional resource is needed.

Was there anything specific about the mapping that you want to know about? I see that Andy Kinnaird wants to come in.

Another crucial element of the overall wider planning reform programme is our work on the digital transformation of the planning system and of services. One key element of that is how we can better use reliable, open-access data and map that round the country, so that authorities and those who may be looking to invest in development will have access to the same mapped-out information.

That is not available across the board at the moment, though.

Not yet. We are actively working on it.

Do we help to support and fund the local authorities that need to invest in that, or do we expect them to make that investment?

Our digital programme is a six-year, £35 million investment by the Scottish Government, working with authorities and wider stakeholders.

Excellent.

Minister, I again highlight that the system that I have seen at East Ayrshire Council is really good, and the local people really engage with it.

I am sure that somebody from East Ayrshire has heard your comment and that an invite to chat with them will be on its way to you.

Many thanks for the answers to those questions, minister.

I have a couple of supplementary questions. In answer to the previous question, you mentioned that some local authorities are already ahead in the process. Can you tell us which ones?

Kristen?

You can write to us and let us know.

Maybe we are better to write.

They include Loch Lomond and the Trossachs National Park Authority and, I think, Midlothian Council and Fife Council. We are only just having those conversations. The Improvement Service is providing us with data on the timelines of all the local authorities, but we expect that some may overtake others. Some are eager to learn from Fife Council and the others early doors.

My other question is about mapping. What level of detail—what types of information—would we get from the mapping system?

It is about looking at lots of different layers of different types of information. That can be around what development plans are already allocating for land, or it can be where there are designations, such as environmental designations of bits of vacant and derelict land. That is all data that can be map based and sit in those layers.

If, at some point, we want to set up a cadastral system, is the system robust enough to go to that level?

That is certainly the thinking at the moment. The work is in the early days of scoping out exactly what it will do and what its shape will be, but we see it as a platform in which development plans, including the national planning framework, can sit in the future.

That is great—it is good to hear that it can grow arms and legs and be very useful, because the mapping of Scotland has clearly been an issue.

Most of the significant changes were brought in by the 2019 act rather than being brought in through these regulations, and that is why work is on-going.

We turn to questions from Ivan McKee.

My questions are around the requirement for planning authorities to notify owners and occupiers of land about neighbouring development sites that are identified in a proposed plan, where that proposal might have a significant impact on their land. What consideration have you given to the resource implications of that requirement? Is there any thinking about additional resources being made available to support that?

We are generally comfortable that the majority of the changes are not being made by the regulations; the majority of the changes were made by the Planning (Scotland) Act 2019, which is already in place. As I said, we have tried to keep the regulations to a minimum.

That requirement—in relation to the arrangements for preparing local development plans—is already in the existing system. It is not new in the regulations.

Can you explain how you decided on the list of key agencies to be consulted by the planning authority when drafting the LDP? Are there not some obvious omissions, such as Network Rail and VisitScotland?

The key agencies are the same key agencies that were in the 2008 regulations. There are some changes, because some of the organisations have changed their names; for instance, Scottish Natural Heritage is now NatureScot. There are also a couple of new agencies; for instance, South of Scotland Enterprise effectively has the same role as Highlands and Islands Enterprise, although they have different geographies. Those are the main changes but, largely, the list is based on the list in the 2008 regulations.

With regard to which agencies are key and which are not, some of the agencies that might make sense as key agencies, such as Transport Scotland and Marine Scotland, are agencies of the Scottish Government, so the legislation does not allow them to be key agencies—although it is absolutely important that they are engaged. Guidance will make it clear that some of those big organisations should still be connected.

You mentioned Network Rail and VisitScotland. Obviously, Network Rail is part of the UK Government, but the regional transport partnerships are in the list. I think that VisitScotland is probably in a similar place to the other groups that I mentioned.

Thank you for that clarification.

Are you able to set out how the Government feels that local planning authorities should balance the policies and proposals that they consult on and develop locally with potential competing interests or clashes with NPF4? How do you expect planning authorities to resolve those issues? You talked about the guidance that you plan to release to supplement NPF4. When might that be released?

NPF4 sits alongside LDPs, and the 2019 act sets out the requirement for planning authorities to take into account NPF4 when preparing their LDPs. It is a bit different from how it was in the past, when you would expect the national planning framework to virtually be replicated in local plans. However, that is no longer necessary because they sit alongside each other, which is a more sensible way of working.

You are right: the guidance is crucial. Andy, do we have an expectation for when it will be published?

Yes, we expect it shortly after the regulations come into force. We are talking about days; it is coming very soon—certainly during May.

So it will be soon.

I do not know whether this is the right place to ask this question, but I will do so. We have NPF4, local development plans and, my favourite topic, local place plans—I see Andy Kinnaird smiling, because he knows that I often bring them up. One of my concerns is about local development plans, which you have said might take five years to create—that is an interesting and useful bit of information. A community might not have wanted to create a local place plan or get on board with its local development plan. If people just put in place a done-and-dusted local development plan and say, “Here it is,” how could that be opened up at a later stage, to give space for community expression to be honoured and respected through a local place plan?

The regulations that we are putting in place are all about trying to ensure that we get community engagement. It is appropriate that we have different layers, but it is all about trying to get engagement at the earliest possible time. Perhaps Andy Kinnaird will add more on the specifics of interfacing with place.

The provisions around local place plans are intentionally light touch so that we do not brigade local communities into doing something by a particular time. Therefore, they can bring forward a local place plan at any time in the life cycle of the LDP.

As well as the work on theregulations, we will start work shortly on regulations that will be required to provide for making amendments to local development plans within their 10-year cycle. It is just an end process so that amendments can be made. The regulations will provide opportunities for authorities to make amendments to their LDPs if they want to take forward proposals from local place plans.

I look forward to seeing those regulations.

I think that that is it. Thank you for your evidence; it was very helpful, and I think that we got some useful bits of information. The minister will stay with us for our next evidence session, as he said at the beginning of the meeting. I suspend for five minutes to allow for a changeover of supporting officials.

09:57 Meeting suspended.  

10:02 On resuming—