Planning (Scotland) Act 2019

PART 4 Other matters

Promotion and use of mediation etc.

40 Promotion and use of mediation etc.

(1) The Town and Country Planning (Scotland) Act 1997 is amended as follows.

(2) After section 268 insert—

“Promotion and use of mediation etc.

268A Promotion and use of mediation etc.

(1) The Scottish Ministers may issue guidance in relation to the promotion and use of mediation in relation to the following—

(a) the preparation of local development plans and related evidence reports under Part 2,

(b) a prospective applicant’s compliance with any requirements in respect of pre-application consultation imposed under or by virtue of section 35B,

(c) assisting in the determination of an application for planning permission,

(d) any other matter related to planning that they consider appropriate.

(2) Guidance under subsection (1) may include provision about—

(a) the form of mediation that is to be used in a particular circumstance, and

(b) the procedure to be followed in any such mediation.

(3) Local authorities must have regard to any guidance issued under subsection (1).

(4) Before issuing any guidance under subsection (1), the Scottish Ministers must consult—

(a) planning authorities, and

(b) such other persons that the Scottish Ministers consider appropriate.

(5) The Scottish Ministers must make any guidance issued under subsection (1) publicly available.

(6) The power under subsection (1) to issue guidance includes power to—

(a) issue guidance that varies guidance issued under that subsection, and

(b) revoke guidance issued under that subsection.

(7) For the purposes of this section, “mediation” includes any means of exploring, resolving or reducing disagreement between persons involving an impartial person that the Scottish Ministers consider appropriate.

(8) The Scottish Ministers must issue guidance under subsection (1) within the period of two years beginning with the date on which the Planning (Scotland) Act 2019 received Royal Assent.”.

Charges and fees

41 Fees for planning applications etc.

(1) Section 252 of the Town and Country Planning (Scotland) Act 1997 (fees for planning applications etc.) is amended as follows.

(2) After subsection (1)(b) insert—

“(c) the performance by a person appointed by virtue of a scheme of delegation under section 43A of the person’s functions.”.

(3) After subsection (1) insert—

“(1ZA) The Scottish Ministers may by regulations make provision for the payment of a charge or fee to the Scottish Ministers in respect of—

(a) the performance by the Scottish Ministers of any of their functions under the planning Acts or any order or regulations made under them,

(b) anything done by the Scottish Ministers which is calculated to facilitate, or is conducive or incidental to, the performance of any such function,

(c) the performance by a person appointed by the Scottish Ministers under paragraph 1 of schedule 4 of the person’s functions.”.

(4) In subsection (1A), for “The regulations” substitute “Regulations under subsections (1) and (1ZA)”.

(5) In subsection (1A)(b), after “calculated” insert “(including conferring on a planning authority the power to determine how it is to be calculated)”.

(6) Subsection (1A)(da) is repealed.

(7) For subsection (1A)(e) substitute—

“(e) provide that a planning authority or the Scottish Ministers may waive or reduce the charge or fee,

(ea) specify circumstances in which a planning authority or the Scottish Ministers are or are not to waive or reduce the charge or fee,”.

(8) Subsections (1AA) and (1AB) are repealed.

(9) After subsection (1AB) insert—

“(1AC) Regulations under subsection (1) may not make provision for the charge or fee payable to different planning authorities to be of different amounts on the basis of whether the functions of the authority are not being, or have not been, performed satisfactorily.”.

(10) After subsection (1B) insert—

“(1C) The power to make provision such as mentioned in subsection (1A)(e) and (ea) includes the power to specify the steps a planning authority are to take before or after waiving or reducing the charge or fee.

(1D) Regulations under subsections (1) and (1ZA) may provide for a surcharge to be imposed in relation to an application for planning permission made after the carrying out of the development to which it relates but those regulations may not provide for the imposition of a surcharge greater than the fee that would be payable otherwise in relation to the application.

(1E) Without prejudice to the generality of paragraphs (e) and (ea) of subsection (1A), in relation to applications for planning permission, provision may be made under those paragraphs for fees and charges to be waived where the application is for a development that, in the opinion of the planning authority—

(a) has the primary purpose of contributing to a social enterprise or not for profit enterprise,

(b) is likely to contribute to improving the health of residents of the area to which the application relates.

(1F) For the purposes of subsection (1E)—

• “not for profit enterprise” means an organisation which a person might reasonably consider to exist wholly or mainly to provide benefits for society,

• “social enterprise” means an organisation whose activities are wholly or mainly activities which a person might reasonably consider to be activities carried on for the benefit of society (“its social objects”), and which—

  (a)

  generates most of its income through business or trade,

  (b)

  reinvests most of its profits in its social objects,

  (c)

  is independent of any public authority, and

  (d)

  is owned, controlled and managed in a way that is consistent with its social objects.”.

(11) Subsection (2) is repealed.

(12) In subsection (3)—

(a) in paragraph (a), for “subsection (1)” substitute “subsections (1) and (1ZA)”,

(b) paragraph (b) is repealed.

(13) In subsection (7), for “the regulations, the planning authority” substitute “regulations under subsection (1A) or (1ZA), the planning authority or, as the case may be, the Scottish Ministers”.

(14) After subsection (8) insert—

“(9) Subsection (7) does not apply in relation to surcharges imposed by virtue of subsection (1D).”.

Enforcement

42 Fines: increases and duty of court in determining amount

(1) The Town and Country Planning (Scotland) Act 1997 is amended as follows.

(2) In section 126 (penalties for non-compliance with planning contravention notice)—

(a) in subsection (4), for “level 3” substitute “level 5”,

(b) in subsection (6), for “level 5 on the standard scale” substitute “the statutory maximum”.

(3) In section 136 (offence where enforcement notice not complied with), in subsection (8)(a), for “£20,000” substitute “£50,000”.

(4) In section 138 (enforcement notice to have effect against subsequent development)—

(a) in subsection (4), for “level 5 on the standard scale” substitute “the statutory maximum”,

(b) after subsection (4), insert—

“(5) In determining the amount of the fine to be imposed under subsection (4), the court is in particular to have regard to any financial benefit which has accrued or appears likely to accrue to the convicted person in consequence of the activity which constituted the offence.”.

(5) In section 144 (penalties for contravention of stop notice), in subsection (5)(a), for “£20,000” substitute “£50,000”.

(6) In section 144C (temporary stop notices: offences), in subsection (6)(a), for “£20,000” substitute “£50,000”.

(7) In section 145 (enforcement of conditions)—

(a) in subsection (12), for “level 3” substitute “level 5”,

(b) after subsection (12), insert—

“(12A) In determining the amount of the fine to be imposed under subsection (12), the court is in particular to have regard to any financial benefit which has accrued or appears likely to accrue to the convicted person in consequence of the activity which constituted the offence.”.

(8) In section 186 (enforcement of control as to advertisements), in subsection (3) for “level 3” in both places it occurs substitute “level 5”.

43 Liability for expenses under enforcement notice

(1) The Town and Country Planning (Scotland) Act 1997 is amended as follows.

(2) In section 135 (execution and cost of works required by enforcement notice)—

(a) in subsection (1)(b)—

(i) the words “from the person who is then the owner or lessee of the land” are repealed, and

(ii) after “so”, insert “from—

(i) the person who is then the lessee of the land, or any part of the land,

(ii) any person who is then or subsequently becomes the owner of the land, or any part of the land (whether or not that person remains the owner).”,

(b) in paragraph (b) of subsection (4), the words from “in respect” to the end of that paragraph are repealed,

(c) after subsection (4), insert—

“(4A) The right of recovery that an owner, lessee or occupier of land has under subsection (4) applies whether or not that person remains the owner, lessee or occupier of the land.”.

(3) After section 158A, insert—

“Charging orders

158B Liability under a charging order

(1) Where—

(a) a planning authority or the Scottish Ministers (“the charging body”) have taken action in relation to land under section 135(1), and

(b) a person is liable under that section for the expenses reasonably incurred by the charging body in taking that action,

the charging body may make a charging order and apply to register it in the appropriate land register.

(2) Once the charging order is registered the amount payable under section 135(1)(b)—

(a) becomes payable in instalments in accordance with section 158C, and

(b) includes the administrative expenses referred to in subsection (3)(a) and, if the order so provides, the interest charges referred to in subsection (3)(b).

(3) The administrative expenses and interest charges referred to are—

(a) any administrative expenses reasonably incurred by the charging body in connection with recovering the amount due under section 135(1)(b) (including the fees for registration and discharge of the charging order),

(b) if the charging order provides for it, interest—

(i) on the expenses mentioned in subsection (1)(b),

(ii) at the rate (which must be a reasonable rate) specified in the order,

(iii) in respect of the period beginning with the first demand for payment of the expenses mentioned in subsection (1)(b) and ending with payment of the amount payable under section 135(1)(b).

(4) In this section and sections 158C to 158F, reference to section 135(1) includes reference to that section as applied by section 139(4) or 179(6).

(5) A charging order may not be made or registered in connection with a liability under section 135(1) that was incurred before section 43 of the Planning (Scotland) Act 2019 came into force.

158C Payments under a charging order

(1) A charging body which makes a charging order must specify in the order—

(a) the number of annual instalments in which the amount payable under section 135(1)(b) is to be paid (which must be between 3 and 30), and

(b) the date on which each instalment falls due.

(2) The date specified under subsection (1)(b) for the payment of the first instalment must fall at least 56 days after the date on which a copy of the charging order is served on a person from whom payment is sought.

(3) A person may redeem the amount payable under section 135(1)(b) early by paying to the charging body—

(a) the amount payable under section 135(1)(b), or

(b) such lower sum as the person agrees with the charging body.

(4) For the avoidance of doubt, despite the terms of a registered charging order, the charging body may (at any time) waive or reduce the amount payable under section 135(1)(b).

158D Form of a charging order

(1) A charging order may not be registered unless it is in the form prescribed by the Scottish Ministers in regulations.

(2) Regulations under subsection (1) must require that a charging order contain at least the following information—

(a) the land to which it relates,

(b) the action taken under section 135(1) in relation to the land,

(c) the amount payable under section 135(1)(b), or a description of that amount,

(d) the number of annual instalments into which the amount payable under section 135(1)(b) is divided and the date on which each instalment falls due,

(e) notice that an instalment which is not paid is recoverable as a debt.

(3) On making a charging order, the charging body are to serve a copy of the order on the owner of the land to which it relates.

158E Discharge of charging order

(1) The charging body must register a discharge of a registered charging order in the appropriate land register as soon as reasonably practicable after it has received payment in full of—

(a) the amount payable under section 135(1)(b), or

(b) such lower sum as the person agrees with the charging body under section 158C(3)(b).

(2) A discharge of a registered charging order may not be registered unless it is in the form prescribed by the Scottish Ministers in regulations.

158F Meaning of “register” and “appropriate land register”

(1) In sections 158B to 158E, “register” means—

(a) register the information contained in the order, discharge or notice in the Land Register of Scotland, or

(b) record the order, discharge or notice in the Register of Sasines,

and “registered” is to be construed accordingly.

(2) In sections 158B and 158E, “appropriate land register” means the Land Register of Scotland or the Register of Sasines.”.

(4) In section 186(2) (enforcement of control as to advertisements), after “enforcement notices” insert “, charging orders”.

(5) The modifications made by this section do not apply in relation to any liability under section 135(1) of the Town and Country Planning (Scotland) Act 1997 that was incurred before this section came into force.

44 Enforcement charters: statement on major developments

(1) The Town and Country Planning (Scotland) Act 1997 is amended as follows.

(2) In section 158A (enforcement charters), after subsection (1) insert—

“(1A) The charter is also to contain a statement in relation to the planning authority’s monitoring of compliance with planning permissions which have been granted in respect of major developments (as described in regulations made under section 26A(2)), which must set out—

(a) how the authority monitor compliance with such planning permissions,

(b) how the authority record—

(i) the monitoring activities undertaken, and

(ii) the findings of those monitoring activities, and

(c) how the authority make such records available to the public.”.

Training for taking planning decisions

45 Power to impose training requirements: planning authorities

(1) A member of a planning authority who has not fulfilled the specified training requirements is prohibited from—

(a) exercising any of the authority’s specified functions on their behalf, or

(b) being involved in exercising any of those functions on the authority’s behalf as a member of a committee or any other body.

(2) In this section—

(a) “specified” means specified by the Scottish Ministers in regulations under this section,

(b) “planning authority” means—

(i) local authority, and

(ii) National Park authority,

(c) the reference to a member of a planning authority includes a member of a committee of a National Park authority appointed under paragraph 16(1) of schedule 1 of the National Parks (Scotland) Act 2000.

(3) Regulations under this section specifying functions of a planning authority may only specify functions conferred by the planning Acts as defined by section 277 of the Town and Country Planning (Scotland) 1997 Act.

(4) Regulations under this section may in particular—

(a) specify that completing a training course is a training requirement,

(b) specify training requirements on the basis that the content and provider of the training must be accredited by the Scottish Ministers.

(5) The Scottish Ministers may disapply subsection (1) in relation to a planning authority (or all authorities) by regulations under this section.”.

Performance of planning authorities

46 Annual report by planning authorities on performance

(1) The Town and Country Planning (Scotland) Act 1997 is amended as follows.

(2) After Part 12 insert—

“PART 12A Performance of planning authority functions

Annual report

251A Annual report on performance of functions

(1) As soon as reasonably practicable after the end of each financial year, a planning authority are to prepare a report on the performance of their functions (or such of their functions as are specified in regulations made by the Scottish Ministers) during that year.

(2) The planning authority are to—

(a) submit a copy of the report to the Scottish Ministers, and

(b) publish the report.

(3) The Scottish Ministers may by regulations make provision about—

(a) the form of the report,

(b) the content of the report (including about what quantitative and qualitative information is to be included in the report, and what outcomes are to be used to assess the performance by planning authorities of their functions),

(c) the process to be undertaken in preparing the report,

(d) how the report is to be published.

(4) In this section, a financial year is the period of 12 months beginning with 1 April.”.

47 National performance monitoring

(1) The Town and Country Planning (Scotland) Act 1997 is amended as follows.

(2) After section 251A (as inserted by section 46) insert—

“National performance monitoring

251B National planning improvement co-ordinator

(1) The Scottish Ministers may appoint a person (“the co-ordinator”) to—

(a) monitor the performance by planning authorities of their functions, and

(b) provide advice to planning authorities, and to such other persons as the co-ordinator considers appropriate, in relation to what steps might be taken by planning authorities or such other persons to improve the performance of their functions.

(2) The Scottish Ministers may by regulations make further provision about the appointment and functions of the co-ordinator.”.

Regulations

48 Regulations

(1) The Town and Country Planning (Scotland) Act 1997 is amended as follows.

(2) In section 275 (regulations and orders), in subsection (2A) after “purposes” insert “and areas”.

Ministerial directions

49 Publication of directions

(1) The Town and Country Planning (Scotland) Act 1997 is amended as follows.

(2) After section 275A insert—

“275B Directions

(1) Having given a direction in exercise of a power conferred by virtue of this Act, the Scottish Ministers are to publish—

(a) the direction, and

(b) their reasons for giving it.

(2) Subsection (1) does not apply in relation to the following—

(a) a direction under section 265A,

(b) a direction given before the day that section 49 of the Planning (Scotland) Act 2019 comes into force,

(c) a direction given in the form of a regulation or order (see, for example, section 173(1)).

(3) In this section, “publish” includes, without prejudice to that expression’s generality, publish by electronic means (as for example by means of the internet).”.

Chief planning officers

50 Chief planning officers

(1) The Town and Country Planning (Scotland) Act 1997 is amended as follows.

(2) After section 1 insert—

“1A Planning authorities: chief planning officer

(1) Each planning authority must have a chief planning officer.

(2) The role of an authority’s chief planning officer is to advise the authority about the carrying out of—

(a) the functions conferred on them by virtue of the planning Acts, and

(b) any function conferred on them by any other enactment, insofar as the function relates to development.

(3) The Scottish Ministers must issue guidance to planning authorities concerning the role of an authority’s chief planning officer.

(4) A planning authority may not appoint a person as their chief planning officer unless satisfied that the person has appropriate qualifications and experience for the role.

(5) In deciding what constitutes appropriate qualifications and experience for the role of chief planning officer, a planning authority must have regard to any guidance on the matter issued by the Scottish Ministers.”.

National Scenic Areas

51 National Scenic Areas

(1) The Town and Country Planning (Scotland) Act 1997 is amended as follows.

(2) In section 263A(2) (National Scenic Areas), the words “the desirability of” are repealed.

(3) In section 263A (National Scenic Areas), after subsection (6)(a), insert—

“(aa) persons resident within, or adjacent to, the area of a proposed designation,

(ab) a community body (as defined by section 4(9) of the Community Empowerment (Scotland) Act 2015) with an interest in the area of a proposed designation,”.

(4) After section 263A insert—

“263B National Scenic Areas: report on consultation

(1) Where in any year the Scottish Ministers have designated a National Scenic Area under section 263A(1), they must, as soon as practicable after the end of that year, prepare and publish a report on the consultation undertaken in regard to the designation.

(2) A report under subsection (1) must include—

(a) the ways in which views expressed by any person consulted under subsection 263A(6)(aa) and (ab) were taken into account by the Scottish Ministers before issuing a direction under section 263A(1) or (5), and

(b) how the Scottish Ministers intend to improve their consultation process before issuing any future such directions.”.

Notice by planning authority of applications for listed building consent

52 Notice by planning authority of applications for listed building consent

(1) The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 is amended as follows.

(2) In section 9 (making of applications for listed building consent), in subsection (3), after paragraph (ab) insert—

“(ac) the planning authority giving notice of such applications made to them—

(i) to such persons or categories of person as may be prescribed,

(ii) in such manner as may be prescribed,

(iii) for such period as may be prescribed, and

(iv) on such number of occasions as may be prescribed,

(ad) the applicant providing such person or persons as may be prescribed such information with respect to the application as may be prescribed,”.

Forestry and woodland strategy

53 Forestry and woodland strategy

(1) The Town and Country Planning (Scotland) Act 1997 is amended as follows.

(2) Before section 159 (planning permission to include appropriate provision for preservation and planting of trees) insert—

“A159 Forestry and woodland strategy

(1) A planning authority are to prepare a forestry and woodland strategy.

(2) A forestry and woodland strategy is to—

(a) identify woodlands of high nature conservation value in the planning authority’s area, and

(b) set out the planning authority’s policies and proposals in their area, as to—

(i) the development of forestry and woodlands,

(ii) the protection and enhancement of woodlands, in particular those mentioned in paragraph (a),

(iii) the resilience to climate change of woodlands, in particular those mentioned in paragraph (a),

(iv) the expansion of woodlands of a range of types to provide multiple benefits to the physical, cultural, economic, social and environmental characteristics of the area,

(c) any other matter which the planning authority consider appropriate.

(3) In preparing a forestry and woodland strategy a planning authority are to consult—

(a) the Scottish Ministers,

(b) such organisations appearing to them to represent those with an interest in the matters listed in subsection (2)(b), and

(c) such other persons as they consider appropriate.

(4) The planning authority must publish the strategy by such means as they consider appropriate.

(5) Two or more planning authorities may act jointly to prepare a forestry and woodland strategy.

(6) Where two or more planning authorities act jointly to prepare a forestry and woodland strategy, a reference in this section to—

(a) a planning authority is to those authorities acting jointly,

(b) a planning authority’s area is a reference to the combined area of the authorities.

(7) In this section, “publish” includes, without prejudice to that expression’s generality, publish by electronic means (as for example by means of the internet).”.