Section 7 — Variation of planning applications

Planning etc (Scotland) Bill: Stage 3 – in the Scottish Parliament at 5:15 pm on 15 November 2006.

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Photo of Murray Tosh Murray Tosh Conservative 5:15, 15 November 2006

Group 14 is on variation of applications. Amendment 118, in the name of Christine Grahame, is grouped with amendments 119 and 120.

Photo of Christine Grahame Christine Grahame Scottish National Party

I hope that members will bear with me, as the issue is a bit technical and therefore a bit dry. Amendments 118 to 120 are about the situation in which an application has been granted consent but the developer seeks post-consent variation. As laid out in the bill, if a planning authority considers that a proposed variation is not substantial, the variation may proceed.

I have concerns about the term "substantial". For example, suppose that a community council and others object to a development proposal for 50 houses on a site and that, as a result of that, the planning authority takes the view that 40 houses is the correct density. The developer starts to build the houses then goes into liquidation. Another developer takes over and says, "I can't continue developing on this site. Forty houses is not worth my while. I want to make it 50." The developer and the planning authority say that that is not a substantial variation and the application proceeds as varied. We must remember that the application is post-consent; 40 houses had been agreed to and now the number is 50. In those circumstances, the only right that the community would appear to have is to go to litigation. There is also an issue under the European convention on human rights, on the right to be heard. The community would not have the right to be heard. I am presuming, of course, that the community objects to the further 10 houses.

On amendment 120, whether the variation is substantial—that is the key to this issue—and whether the community considers that it is substantial should be determined by an independent arbiter. It should not just be up to the developer and the planning authority to agree to the variation. Furthermore, the third party—the community, as it would be in this example—should not have to resort to litigation, which is a long and expensive process. Under the second of the two new sections that amendment 120 would introduce, an independent arbiter, agreed between the parties, would be appointed simply to determine whether, in the circumstances, the variation was substantial. If the variation was not considered to be substantial, the application could proceed; if it was, a fresh application would have to be made.

I move amendment 118.

Photo of Dave Petrie Dave Petrie Conservative

I almost found myself agreeing with Christine Grahame. My understanding is that it is all to do with the degree of variation. A minor variation should be permitted under the variation rules in planning, but a major variation should mean a resubmission.

Photo of Johann Lamont Johann Lamont Labour

I hope to be helpful. Amendments 118 and 119 are contingent on amendment 120. However, amendment 120 is fundamentally flawed in that it is based on the mistaken premise that section 7 relates to variation of planning permission previously granted, when in fact it relates to variation of planning applications under consideration by the planning authority or the Scottish ministers. On that basis, I do not propose to examine the other problems with the detail of amendment 120 and simply recommend that it, and its associated amendments, be rejected.

Photo of Christine Grahame Christine Grahame Scottish National Party

I am happy to be corrected, but section 7, on variation of planning applications, which will insert new section 32A into the 1997 act, says:

"An application for planning permission ... may, with the agreement of the planning authority, be varied after it is made."

That is the issue—"after it is made". As for Mr Petrie's contribution: yes, minor and major variations, but who decides? There may be a strong conflict with the community, which might say, "In your view, building 10 extra houses here may be minor, but in the circumstances the community considers that to be substantial". The community might wish there to be a fresh application. I hope that I have answered the two issues raised.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 118 be agreed to. Are we agreed?

Members:

No.

Division number 14

For: Adam, Brian, Baird, Shiona, Ballance, Chris, Ballard, Mark, Byrne, Ms Rosemary, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Fabiani, Linda, Gibson, Rob, Grahame, Christine, Harper, Robin, Harvie, Patrick, Hyslop, Fiona, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Margo, Martin, Campbell, Marwick, Tricia, Mather, Jim, Maxwell, Mr Stewart, McFee, Mr Bruce, Morgan, Alasdair, Neil, Alex, Ruskell, Mr Mark, Scott, Eleanor, Stevenson, Stewart, Sturgeon, Nicola, Swinburne, John, Turner, Dr Jean, Watt, Ms Maureen, Welsh, Mr Andrew, White, Ms Sandra
Against: Aitken, Bill, Arbuckle, Mr Andrew, Baker, Richard, Brankin, Rhona, Brocklebank, Mr Ted, Brown, Robert, Brownlee, Derek, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Fraser, Murdo, Gillon, Karen, Glen, Marlyn, Goldie, Miss Annabel, Gordon, Mr Charlie, Gorrie, Donald, Henry, Hugh, Home Robertson, John, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, McCabe, Mr Tom, McConnell, Mr Jack, McGrigor, Mr Jamie, McLetchie, David, McMahon, Michael, McNeill, Pauline, Milne, Mrs Nanette, Mitchell, Margaret, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Peattie, Cathy, Petrie, Dave, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Tosh, Murray, Whitefield, Karen
Abstentions: Douglas-Hamilton, Lord James

Photo of Murray Tosh Murray Tosh Conservative 5:30, 15 November 2006

The result of the division is: For 33, Against 58, Abstentions 1.

Amendment 118 disagreed to.

Amendment 24 moved—[Malcolm Chisholm]—and agreed to.

Amendments 119 and 120 not moved.