iPlanning - May 2013

• New Scottish Planning Policy and National Planning Framework 3 includes further details on protection of Wild Land
• Recent Activity in the Cairngorms National Park
• RWE Npower Renewables v Milton Keynes Council
• Increase in Planning Application Fees as of 6 April 2013
• High Hedges(Scotland) Bill

New Scottish Planning Policy and National Planning Framework 3 includes further details on protection of Wild Land

Scottish Planning Policy (“SPP”) and the National Planning Framework (“NPF”) are both currently being reviewed and updated by the Scottish Government. The documents will remain separate but are being reviewed at the same time to enable connections to be made between where there is desire to see development (the NPF) and how it will be delivered (the SPP).

SPP is a statement of Scottish Government policy on nationally important land use matters which originally consolidated a series of topic specific policies into a single document in 2010.

The revised NPF will be the third NPF and will set out development priorities for the next 20-30 years. This document sits over other development plans and Strategic and Local Development plans are required to correspond with it.

Drafts of both documents were published on 30th April 2013 for public consultation and are available on the Scottish Government website along with the consultation questionnaires. The consultation period will end on 23rd July 2013 and further information is expected to be added to the Scottish Government website over the coming days, including supporting documentation.

Wild Land

The inclusion of further material on wild land was widely trailed in the press prior to the publication of the drafts. This follows a relatively recent focus on “wild land” by both SNH and also a petition seeking to obtain statutory protection for wild land which was lodged by the John Muir Trust.

Scotland’s most sensitive and iconic landscapes and habitats are currently protected by a number of statutory designations, including National Parks and National Scenic Areas. There is currently no definition of what “wild land” is, however, it is essentially considered as large areas of high scenic and wildlife value, with minimal evidence of modern human development.

SNH issued guidance on wild land and maps that identify search areas for wild land (the majority of which are in the Highlands). The SNH Policy Statement 02/03 makes it clear that the search areas are not defined boundaries of wild land but merely act as a “starting point” for review of where the main resource of wild land is most likely to be found. SNH are currently undergoing work to replace the 2002 map of search areas, analysing areas in more detail than before and drawing potential provisional boundaries. An updated map is now available on the SNH website, however, it will not formally replace the 2002 map until the results of the consultation have been considered and Government confirms its approach in the finalised SPP.

Currently wild land areas of search do not necessarily preclude wind farm developments. Developers are required to take into account any potential impacts their proposed project may have on wild land areas that are identified in the local planning authority’s Development Plan, when undertaking the Environmental Impact Assessment of their proposed development..

Paul Wheelhouse, the Minister for Environment and Climate Change, has said that he is not convinced that there is a case for statutory designation for wild land, however the question of what is appropriate policy approach to wild land is one on which he will be very keen to hear views as part of the SPP and NPF consultation.

« Back to top

Recent Activity in the Cairngorms National Park

Call to extend the Cairngorms National Park to prevent wind farms

A call has been made by Ramblers Scotland to extend the Cairngorms National Park (“CNP”) to block wind farms in the area.

The CNP was established in 2003 and extended in 2010 to include part of Perthshire. The CNP currently covers 6% of Scotland and is over twice the size of Scotland’s other National Park; the Lake District and Loch Lomond and the Trossachs.

The Ramblers submitted the proposal in a briefing to MSPs for a debate on endangered species and wild land conservation. They claim that the western boundary is too close to the central part of the Cairngorms massif and that the western boundary of the Cairngorms National Park should be extended across the Monadhliaths until it is close to Fort Augustus.

It is worth noting that new planning guidance is being prepared by the Scottish Government (as part of the new SPP and NPF) which will be issued to local authorities advising that wind farm applications should not be granted permission in “wild land” areas unless there are special circumstances. SNH is currently undergoing the second phase of preparing maps. For more details see the below article here.

Cairngorms Campaign & Others v Cairngorms National Park Authority

In 2010 the CNPA adopted the Cairngorms National Park Local Plan 2010 as modified (“the Local Plan”). In this case (appealing the decision of the Inner House in the Court of Session) the Cairngorms Campaign & Others (“the Appellants”) sought the reduction of the decision by CNPA to adopt this Local Plan. They complained in particular about the adoption of development policies in the Local Plan regarding allocation for business units and housing at Nethybridge and housing at Kingussie, Carrbridge and An Camas Mòr.The primary aims of CNP are:

1. To conserve and enhance the natural and cultural heritage of the area
2. To promote sustainable use of the natural resources of the area
3. To promote understanding and enjoyment (including enjoyment in the form of recreation) of the special qualities of the area by the public
4. To promote sustainable economic and social development of the area’s communities

The 2000 Act creates an obligation on CNPA to ensure the aims of the CNP are achieved in a co-ordinated way.

In the event of conflict, however, between the aims, the CNPA must give “greater weight” to conserving and enhancing the natural and cultural heritage of the area.

In this case, the Appellants accepted that to give “greater weight” did not necessarily mean that this aim would prevail in the event of conflict, however, they submitted that this duty to give greater weight must be observed at every level of the formulation of the Local Plan, including considering each particular housing or development allocation within it. Whilst acknowledging this duty was recognised in the Local Plan, the Appellants submitted that it had not been carried through to the site-specific proposals of the Local Plan.

In particular, they argued that the allocation could not be carried out without affecting a European Natura 2000 site and that Local Plan policies providing protection were not enough. As such, they argued that the decision to adopt the Local Plan was unlawful as the Habitats Directive required the CNPA to carry out an adequate Appropriate Assessment at the Local Plan stage to determine specific details about whether the sites would have an effect on Natura 2000 sites, rather than allowing that assessment to be carried out for the first time at the planning application stage.

We are currently awaiting the outcome of this case and iPlanning will be keep you updated.

« Back to top

RWE Npower Renewables v Milton Keynes Council

For some years now many people opposed to wind farms have tried to suggest that there are, or should be, fixed separation distances between turbines and residential properties, commonly known as “buffer zones”. Milton Keynes Council’s recently adopted a Supplementary Planning Document (“SPD”) addressing wind energy developments which stipulated fixed buffer zone distances. The High Court, however, has found in favour of RWE Npower renewables Ltd (“RWE”), supported by Ecotricity, in their judicial review of the SPD.

The SPD required buffer zones between wind turbines and certain locations, such as the location of residential properties and bridleways, unless all the owners and occupiers within the separation distance agree to waive the requirement. The distance was fixed according to the height of the turbine, and so for example a turbine measuring 100m to the vertical tip of the blade would have to be sited at least 1km from the nearest residential property.

If allowed to stand this SPD would effectively sterilise the Borough of Milton Keynes for any further commercial wind energy development. It would effectively be an attempt to change national policies at local level following a failure of the anti-wind lobby at national level. RWE challenged the SPD, submitting that legislation and Government guidance require SPDs to supplement, not contravene, adopted local plan policies.

The Court ruled that the buffer zone distance policy in the SPD breached Regulation 8(3) of the Town and Country Planning Regulations 2012 (which provides that any policies contained in a SPD must not conflict with the adopted development plan) and that national guidance indicated that local authorities should not have a policy on minimum buffer zones.

The equivalent of an SPD in Scotland is Supplementary Planning Guidance (“SPG”), which, if adopted, forms part of the development plan. Similar attempts to introduce buffer zones around residential properties have been made in a few council regions in Scotland and so, while this is an English case, it will have significance in Scotland also. This also accords with the position set out in Scottish Planning Policy (SPP) which uses a 2km separation distance as a spatial planning tool designating areas for development in local plans and initial areas of search rather than the determination of individual planning applications).

Whilst this is an English case, it will have significance to the debate surrounding buffer zones and confirms that any it would currently be unlawful for any local authority in Scotland adopt an SPG providing for specific significant buffer zones or implement any local policy which conflicts with national policy.

« Back to top

Increase in Planning Application Fees as of 6 April 2013

Planning application fees in Scotland increased by approximately 20% on 6 April 2013.

The amendments follow a consultation on fees and form part of a larger planning reform programme announced in March 2012. It is hoped that the additional funds available to local authorities as a result of the increase in fees will enable local authorities to process applications faster, as limited resources are often considered to be connected with performance.

The primary changes are:

• £673,000 designated to help authorities struggling with applications for wind farms
• £20,000 available to heads of planning for training
• Fee increase from £319 to £382 each, subject to a maximum of £19,100 (previously £15,950) for residential dwelling houses
• Fee increase from £7,975 to £9,550 for planning permission in principle for large scale mixed use development for various uses (greater than 2.5 hectares site size).

The Scottish Government has noted that the fees in Scotland remain lower than those in England and Wales for most categories of development.

Planning Circular 2/2013 draws attention to these fee increases which were introduced by the Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Amendment Regulations 2013. These regulations make no changes other than the increase in fees. The new circular means that Circular 1/2004 is amended and Circular 2/2007 revoked.

The Scottish Government’s larger planning reform programme aims consolidate and intensify planning modernisation. It is focused on simplification, streamlining, as well as greater emphasis on place making and quality of outcomes.

« Back to top

High Hedges(Scotland) Bill

The High Hedges (Scotland) Bill intends to provide a solution to the problems caused by high hedges interfering with the reasonable enjoyment of domestic property.

The Bill introduces a definition of a “high hedge”. This is a hedge (formed wholly or mainly by a row of two or more trees or shrubs) more than two metres high above ground level and forming a barrier to light.

The Bill introduces the right of an owner or occupier of a domestic property to submit an application to the planning authority for a “High Hedge Notice”. The right only arises where the applicant considers that the height of the hedge adversely affects his or her enjoyment of their property. It is important to note that before making such an application the applicant must have taken all reasonable steps to resolve the matter of the high hedge, and if they have not the planning authority can refuse to consider the application. 

On receipt of an application, the planning authority must carry out neighbour notification and parties have a right to submit an objection within a period of 28 days. At the end of the period for representations the authority must decide whether or not the hedge adversely affects the reasonable enjoyment of the applicant’s property, and if so, whether they should require any action to be taken to remedy these effects. The local authority, before issuing a notice, must consider the circumstances of the case including the representations made by landowner in response to the application, whether the hedge is protected by a tree preservation order (under s160 of the Town and Country Planning (Scotland) Act 1997 as amended), the amenity of the area and any cultural or historical significance. There is a right of appeal against a planning authority’s decision both to decide that no action should be taken, but also where they decide that action should be taken by way of issuing a High Hedge Notice (effectively an enforcement notice).

National Park Authorities must be consulted with before any decision is made regarding an application for an enforcement notice made within the National Park area.

The Committee reporting to Parliament on the Bill recommends that the Scottish Government take the opportunity of the on-going review of Scottish Planning Policy to examine the issues raised such as residential development in proximity to woodlands.

The High Hedges (Scotland) Bill has still to receive Royal Assent but is expected to come into force in 2014.

« Back to top