As Head of the Planning team at Burness Paull, a leading Scottish commercial law firm, our next expert has vast experience in the details of planning law and the progress therein. Here Elaine Farquharson-Black gives some insight into the development of planning law in Scotland over the last few years, with a complex history of statutes dating back as far as the 1800s.
Can you tell me a little about your role in planning?
As the Burness Paull planning team advises on all aspects of planning law, policy and procedure, my role is extremely varied, which keeps things interesting! Our team is widely recognised for its expertise in major infrastructure and energy developments (particularly in the oil and gas and renewables sectors), housebuilding, leisure, compulsory purchase and negotiation of planning obligations. Unusually, we have a senior chartered town planner within our team and regularly submit planning applications for clients.
How do you navigate the inevitable challenges that arise within your work to steer your case towards a successful outcome for your client?
We act for both the private and public sector and for individuals as well as multi nationals, so it is important to understand what the client wants to achieve and recognise the different drivers behind a client’s decision making process. We like to be involved with the project team on a development as early in the application process as possible, so that we can provide tactical guidance from the outset, giving the client the best possible chance at appeal should that become necessary.
Which types of planning work do you find most complex and why?
Compulsory purchase and compensation is one of the most complicated areas of planning law as the legislation is set out in various statutes and amending statutes, dating back to 1845. Clients affected by compulsory purchase find the system difficult to understand, and often emotionally draining as they may be losing their home or business. Hopefully that may all be about to change! I sit on the Committee of the Scottish Compulsory Purchase Association, which has been assisting the Scottish Law Commission in reviewing the current legislation with a view to reform. Their report is currently being considered by the Scottish Government.
What are some of the biggest talking points currently in planning law in Scotland?
The speed of the planning process (or lack of it!) is always a concern. The Scottish Government has just published the statistics for April-June 2016, which reveal that the average decision time for a major application is 39.3 weeks. This is 13 weeks longer than the previous quarter and the longest since Q4 2014/15. If a legal agreement is required, the average time rises to 59.3 weeks, some 43 weeks longer than the statutory period for determination. Many planning authorities are looking to introduce standard form templates for legal agreements, but often it is lack of resource which is the issue, with agreements being dealt with on a “first come first served” basis.
Do you see the need for any changes to planning law in Scotland?
The planning process is regularly blamed for holding up development. In September 2015, the Scottish Ministers appointed an independent panel to undertake a “game changing” review of the Scottish planning system with the stated intentions of streamlining the process and ensuring that planning plays a more positive and effective role. Focusing on six key themes of development planning, housing delivery, infrastructure, development management, community engagement and leadership, skills and resources, the panel made 48 recommendations of change. The Scottish Government has established a number of working groups to explore the key themes further and hopes to publish a White Paper outlining the proposed reforms before the end of the year.
How realistic is it that the desired outcomes will be achieved?
Around 10 years ago changes were made to the Scottish planning system under the badge of modernisation, with an emphasis on culture change. So ‘development control’ became ‘development management’, but it is clear that those changes were not widespread enough. This review is looking behind the scenes at issues which are often cited as holding up development, such as delivery of infrastructure and leadership, resourcing and skills. If changes are made in these areas, then this review does have the potential to be “game-changing,” but it will require much more collaboration among those involved in the development industry.
