On 1 April 2020 the Scottish Parliament passed the Coronavirus (Scotland) Act 2020. The Act went through the entire Parliamentary process in one day, after the Bill was published on 31 March 2020. The Act will come into force once it receives Royal Assent – which is expected to be within the next week. There are limited, but significant, provisions relating to planning.
Duration of Planning Permissions
As we highlighted last week, one issue currently facing the development industry is the statutory expiration of planning permissions which have not been implemented within the specified time period. The Act addresses this by extending the time period for implementation.
Where a planning permission would ordinarily lapse within the six months after the Act comes into force (the 'emergency period'), the period for implementation will now be extended by 12 months from the date the Act comes into force (the 'extended period'). Scottish Ministers are empowered to extend the emergency period and extended period by Regulation.
The period for the submission of applications for approval of matters specified by condition will be similarly extended.
The effect of this provision is that all permissions that would have lapsed within the next 6 months, have had their lifespan extended to April 2021 (the exact date will depend on when the Act comes into force). However, as the emergency period only runs from the date on which the Act comes into force, planning permission which have lapsed since lockdown commenced cannot be revived.
These changes will bring welcome relief to developers with planning permissions at risk of expiry. As well as taking the pressure off in relation to commencement of development, the changes also mean that developers have an extended period of time in which to discharge pre-commencement planning conditions. This is particularly helpful as people adjust to working from home, and necessary site surveys and investigations are delayed. It will also prevent s75 obligations being inadvertently triggered by perfunctory implementation intended to preserve the planning permission.
Contractual deadlines and longstop dates in underlying land agreements will still need to be checked.
Land Registration
The closure of the Registers last week meant that section 75 agreements could not be submitted for registration. This has the effect of delaying the release of planning permissions for developments requiring a section 75 agreement.
The Act makes provision for electronic submission of applications for registration in the Land Register of Scotland and Register of Sasines. The provisions only apply where submission is by a means (and in a form) specified on Registers of Scotland’s website as acceptable, and so further guidance from Registers will be required before electronic submission can begin.
Local authorities – making documents available for inspection
The Act allows local authorities to dispense with their statutory duties to physically publish documents or make documents available for physical inspection, in cases where they consider that doing so may give risk to a significant risk of transmission of coronavirus. Where a local authority decides to exercise this power, they must, if possible, publish, give notice, or make the document(s) available electronically.
This option will be available to local authorities in relation to obligations under the planning regime, such as neighbour notification and making hard copy application documents publically available.
It is important to note that authorities are not permanently relieved of their obligations, but must comply as soon as possible where they consider there is no longer a significant risk of the transmission of coronavirus. If they decide not to, they must publish a statement setting out their reasons for not complying e.g. the information was published electronically.
This provision will help with some of the practical difficulties the current lockdown has caused for developers and local authorities in the administration of planning applications.
What is not included?
There has been speculation that the statutory pre-application consultation requirement for a public meeting would be waived. This has not been included in the Act, and statutory obligations continue to apply. However, a lot of the detail of pre-application consultation requirements are set out in Regulation, which can be amended by Scottish Ministers without an act of Parliament. It is to be hoped that further amendments will be made so that major applications can continue to be progressed.
We will continue to monitor legal developments as the situation evolves, and flag further opportunities and issues.
For any further information on these issues or queries on planning issues more generally, please contact Lynsey Reid or Craig Whelton.