Hansard

Good morning, convener. This group of amendments relates to a planning authority’s ability to refuse to even deal with an application. The current provisions are contained in section 39 of the Town and Country Planning (Scotland) Act 1997. The power applies where, within the previous two years, a similar application was refused by Scottish ministers as a result of a call-in or appeal or by the planning authority on local review, or where, in the absence of such appeal or review decisions, the planning authority has refused two previous similar applications. In this context, a “similar application” is one where the land and the proposal are the same or are substantially the same. The other criterion that applies is that there has been no “significant change in the development plan”, as far as it is relevant to the case, “or in any other material consideration”. That ensures that the decision is based on planning considerations and is not arbitrary. I appreciate that there can be concerns in communities where the same or similar proposals for a site keep being submitted as applications despite previous refusal of permission. However, a second application can, in some circumstances, serve a useful purpose by proposing changes to a development that address the original grounds for refusal. As a proposal cannot be varied on appeal, that might be the best way of making an application better. We also need to bear in mind that the planning system can, in the public interest, prevent a person from developing their land. As that affects their human rights, we need to be careful how we restrict their access to the decision-making process. There is no planning appeal procedure where a planning authority declines to determine an application. Taking those issues into account, amendment 257 seeks to extend from the current two years to five years the period within which the power to decline to determine can apply. It is a significant extension; indeed, it more than doubles the time. Claudia Beamish’s amendment 145 would extend the period from two to 10 years. The amendments will not change the position that authorities cannot decline to determine an application where there has been a significant change in the development plan or in other material considerations. However, that means that the original grounds for refusal have to be revisited in the light of the current position—indeed, they might no longer apply—and the planning authority will have to reach a considered and reasonable judgment on whether there have been any significant changes in circumstances. That does not mean reaching a view that the authority would make the same decision again—that would require the application to be processed and the position considered anew. The longer the time since the original decision, the more likely it will be that some material consideration will have changed, and the more difficult it will be for the planning authority to be certain about whether there has been such a change. If it cannot be certain, it will have to process the application. It is not reasonable to suppose that circumstances will not change substantially over a period of 10 years and therefore it is unlikely that any cases could be declined at that timescale. I believe that a five-year period represents a more reasonable extension to the times involved. Amendment 145 would also remove the right to make one similar application after a refusal before the ability to decline to determine applies. As I have said, I believe that a second application can be helpful in addressing concerns that have been raised, so I do not support such a provision. Amendment 146 would require Scottish ministers to publish guidance on interpreting the definition of a “similar application”, and on what constitutes a “significant change” as regards the development plan and other material considerations. As I said in relation to a previous amendment, guidance cannot change the meaning of legislation; interpretation is a matter for the courts. In any case, guidance could not usefully address all the possible issues that might arise in every type of case. Amendment 147 would introduce a specific power allowing ministers to introduce regulations to charge a higher fee for similar applications. Currently, fee regulations allow a zero fee where an applicant submits a largely similar application within 12 months of a decision on the previous application. We have already indicated our intention to reconsider the so-called free go in the fees review following the bill. However, given that planning fees are in principle about cost recovery, there is no obvious basis for charging a higher-than-standard fee for repeat applications, which can often serve a useful purpose. We propose to impose a surcharge over and above the fee payable for a retrospective planning application. In such cases, however, there is a breach of planning control and the surcharge is in effect a penalty rather than a charge that relates to the cost of processing the application. I therefore ask Claudia Beamish not to move her amendments in this group. I move amendment 257.