Planning Applications
Below is my explanation of how planning works in Scotland. Nothing in this should be considered as definitive so do take professional advice rather than relying on anything here. You might also want to visit the councilās pages on Planning Permission.
Deciding planning applications
The vast majority of planning applications never come to councillors for a decision, instead they are decided by officers under delegated powers, but about 5% do and those are largely applications which are contentious and so need a decision by members.
As you hopefully know by now Iām chair of the South Planning Applications Committee (SPAC or āSouth PACā) which decides planning applications in the south of the council area from Nairnshire and Badenoch & Strathspey through Inverness and down the Great Glen to Fort William and on to Mallaig. A similar committee, NPAC, decides applications for the north west part of the council area.
Being a member of a planning committee is hard work. For a start thereās a lot of papers to read before each meeting, so typically several hundred pages of text plus up to a hundred pages of plans. And then, if you want to know more, and you often do rather than just relying on the officerās summary, you need to go back to the original documents which are on the planning portal.
It doesnāt stop there either: thereās normally at least a couple of applications where residents email members of the committee in the days before the application is to be considered. Sometimes itās a trickle, sometimes itās a flood and especially where thereās an organised campaign.
Planning law, and indeed the Code of Conduct for Councillors is very clear that we mustnāt be seen to pre-judge the application. For this reason whenever I get emails I acknowledge receipt but also say this in my reply:
In planning matters, if a councillor makes comment to either support or object to a proposal before it comes to committee, then such comments would rule them out of participating in any vote, as applications are supposed to be judged on their merits given the full presentation at the relevant committee hearing. I hope you will understand that, given this restriction, I will defer from comment at this time.
If you message me, phone me, or stop me in the street to talk about an application youāll also find me very careful in what I say. I can listen to your opinions but I wonāt comment, either for or against.
This also limits what we can say more generally too. If, for example, I say to residents that Iām against wind turbines in general then I can no longer take part in or vote on any wind farm related application as, if I do so, the applicant can raise a complaint against me with the Ethical Standards Commissioner who can, in turn, refer my offence to The Standards Commission for Scotland who can impose sanctions up to and including suspending me or disqualifying me from being a councillor any longer.
How applications are decided
Fundamentally an application has to be valid within the planning framework - so thatās the various plans that have been previously agreed, both by the council but also by the Scottish Government - and itās using these documents that officers either decide applications or refer them to committee with a recommendation.
These plans include (in order of area covered):
National Planning Framework 4 - in the words of the Scottish Government this is the ānational spatial strategy for Scotland. It sets out our spatial principles, regional priorities, national developments and national planning policy.ā This a key document and it tries to ensure that planning across the country is consistent.
Highland Wide Local Development Plan - this was agreed by the council back in April 2012 and has sections for each area (so Nairn for example starts at page 51). Itās showing its age now, and itās in the process of being replaced by a Highland Local Development Plan which is currently out for consultation.
And then for some areas there are more specific plans. For our ward for example we have two:
Inner Moray Firth Local Development Plan 2 - of which Iāve posted many times over the last three years. This really drills down into the specifics - so it indicates to what use each area of land should be put. You may remember that āNairn Eastā was originally in the Plan but was dropped as a result of pressure from your ward members and the community. Itās also worth noting that Delnies was not in the Plan, and I tried to get it refused on that basis but failed as it already had outline approval under a previous version of the Plan.
Nairnshire Local Place Plan - a plan developed by members of the community which sets out their local priorities for future use and management of land and buildings in this place for the next 10 years.
For any application which comes before SPAC planning officers will consider these documents and, based on their interpretation of them, will make a recommendation to councillors to grant or refuse. We then have to decide whether we agree with their recommendation.
This is done in the form of a motion, proposed and seconded by two members of the committee. If at least two members disagree then they will propose and second an amendment and we will then vote for the motion or the amendment.
Quite often there is no amendment and hence no vote and the motion passes by default. This is the way all decisions are made at Scottish councils and at all committees, not just planning, but it confuses people who are used to committees elsewhere where itās more normal to always have a vote on a motion.
Fairness of the planning system
I often have to explain to people who are upset by planning decisions that the planning system in this country is, quite deliberately it seems to me, biased in favour of the applicant.
The first way this manifests itself is that when deciding applications, and especially when we refuse them against the recommendation of officers, itās not enough to just say āwe donāt like this applicationā, we have to find reasons to refuse it which are valid within the planning framework Iāve just discussed.
Secondly if we do refuse the application at committee then the applicant has the right of appeal to the Scottish Government āReporterā who will make their decision based on the planning framework - hence what I said above about finding reasons to refuse it which are valid within that framework.
Similarly if officers refuse an application under delegated powers then the applicant can appeal that decision to the Planning Review Body (PRB) - a committee of councillors with more experience of planning matters on which I sit as vice chair.
So the applicant gets two chances to get their application through.
However if the applicant succeeds, either the first time or the second, then objectors have no right to appeal.
(This is a slight over-simplification: objectors can go to court to apply for judicial review of the decision, but you need very deep pockets if you want to try that, the cost starts in the tens of thousands and can end up at well over Ā£100,000. Even if you succeed then that means the body which approved the application, be it the council or the Reporter, just has to re-consider the application, and they can refuse it again.)
Notice of Amendment (Planning)
I should mention that there is another route for overturning a planning decision. As Iāve said planning decisions are made by councilās two planning committees but it is possible for a member of the relevant committee who wishes to have a decision on a planning matter re-considered by the full council to submit a Notice of Amendment (Planning) not more than three working days after the date of the Committee meeting.
This happens rarely - I think weāve had a grand total of one referring a SPAC decision to full council in my time on council, and only a handful from NPAC - but it can and does occur occasionally.
And this doesnāt stop the applicant appealing to the Reporter if the application is refused however and weāve had applications go either way on appeal.
Section 36 and 37
There is a post script to all of the above, which is that certain energy related planning applications which are considered to be of national importance are not decided by the council at all, we are just a statutory consultee.
These are defined under section 36 and section 37 of the Electricity Act 1989.
Section 37 relates to larger capacity overhead lines and section 36 covers pretty much everything else with a maximum output of over 50MW - so most of the wind farms weāre seeing, most pumped storage, and the minority of Battery Energy Storage Systems or BESSs (the five currently proposed between Nairn and Auldearn are all below 50MW so are or will be decided by the council).
We only get to comment on these applications so we can object if we want to, and we sometimes do, but the decision is made by the Scottish Government ministers based on the recommendation of their Energy Consent Unit.