Scotland’s National Parks – The Legal Framework For Planning Control & Land Use Planning
This paper considers and explains the new legal frameworks for planning control and land use planning[1] in Scotland’s first two National Parks - in Loch Lomond and the Trossachs[2] and the Cairngorms National Park[3]. It identifies how and why these arrangements differ from those exercised by local authorities in their capacity as statutory planning authorities and focuses on the differences in those powers in each of the National Park Authorities. To undertake this it is necessary to examine the terms of the enabling legislation, the National Parks (Scotland) Act 2000[4] (“Act”). The Act sets out a general legal framework for National Parks in Scotland. It is against that legal framework that National Parks are established through designation orders[5] made by the Scottish Ministers and to understand how a National Park operates both the Act and the designation orders must be examined. The powers and in particular planning powers may vary between National Park authorities depending on the terms of the designation order. The material differences between the planning functions of Scotalnd’s first two National Parks will be examined.
The ability of a National Park (rather than the Local Authority in whose area the National Park boundary lies) to control new development and to promote development plans[6] to allocate land for development is considered by many to be essential in achieving the conservation aims of a National Park. National Parks in England and Wales have their own powers of planning control established under the National Parks and Access to the Countryside Act 1949. Despite this, Scotland’s first two National Park authorities, whose conservation interests are broadly similar, have been given markedly different planning powers which are explained below. As will be made clear the explanation for this difference may have more to do with a struggle for political (planning) power than strictly environmental concerns[7]. The provisions of the Act and the designation orders made thereunder provide a set of statutory rules to be applied in balancing the potentially conflicting aims of conservation and economic development in the exercise of planning control and in creating the statutory planning policy against which new developments must be assessed[8].
Before turning to the detail of the statutory framework it is interesting to observe that Scotland, known for its world-class landscapes is one of the last few countries to establish National Parks. It is also perhaps ironic that the establishment of the Loch Lomond and the Trossachs National Park (“LLTNP”) took place well over 100 years after the establishment of America’s best known National Park (Yosemite[9]) by the Scot, John Muir[10]. Scotland has also lagged significantly behind England and Wales and indeed whilst the provisions of the National Parks and Access to the Countryside Act 1949[11] which enable the establishment of National Parks in England and Wales could have been applied to Scotland, they were not. As far as my researches have revealed this “delay” was not a result of apathy on the part of interested parties - indeed there were many Studies, Commissions and even a Private Members Bill from 1947 to 1991 exerting pressure. However, the factors for not enacting legislation (in Scotland as opposed to more limited access rights in England and Wales) may have included the Scottish tradition of informal access rights exercised in Scotland (as opposed to those rights in England and Wales), lack of visitor pressure and indeed the use of “national scenic designations” enabling a Ministerial call-in of planning applications for development affecting the protected landscapes. However, momentum clearly gathered with the establishment of the Scottish Parliament[12] and the Scottish Executive (Scotland’s Government under the Scottish parliament) with mention of National Parks in the respective manifestoes of the Labour and Liberal Democratic parties. The Act followed in the first year of the Scottish Parliament and can be considered as part of a suite of legislation enacted by the Scottish Executive in relation to land and rights in land including the Land Reform (Scotland) Act 2003[13] which provides a statutory right of responsible access to countryside (including land and water) and the Nature Conservation (Scotland) Act 2004[14].
In examining the planning function of a National Park regard must be had not only to the Act but also to the terms of a designation order establishing a National Park. The designation order will specify the boundary of the National Park (by way of a plan) and provide for the establishment of a National Park Authority whose members shall consist of members of the authority and those members who may be nominated by local authorities. It may also specify the number of elected members. The designation order vests the National Park Authority with its powers and duties including its planning powers.
Fundamental to all of the decision-making processes (including the exercise of a planning function) of a National Park Authority is its obligation under the Act to meet its statutory aims: -
Section 1of Act- The National Park Aims:-
(a) to conserve and enhance the natural and cultural heritage of the area,
(b) to promote sustainable use of the natural resources of the area,
(c) to promote understanding and enjoyment (including enjoyment in the form of recreation) of the special qualities of the area by the public, and
(d) to promote sustainable economic and social development of the area's communities.
The general purpose[15] of a National Park Authority is governed by the Act and this is to ensure that the aims set out above are achieved in a way that is mutually supportive rather than in isolation. As well as the expected reference to conservation it is interesting to observe the positive duty (1(d)) to promote sustainable socio-economic development. The achievement of these collective aims may not be possible in the exercise of a planning decision due to the impacts of a particular proposal or project. In those circumstances the Act predicts that there may be occasions when there remains a conflict between the aim at Section 1 (a) above and the others, simply put this provides a potential statutory solution to the environment verses jobs argument. In those circumstances greater weight[16] must be given to (a), the conservation of natural and cultural heritage. The application of this overriding criterion will be pivotal where the National Park Authority exercises a planning function. This is known as the “Sanford Principle”. In the interpretation of the application of that criterion regard may be had to the original reasons for the designation of the National Park in the first place[17].
The following “planning functions”[18] may be conferred under the Act in the designation order and the process offers the Scottish Ministers flexibility in what powers may be conferred in the designation order ranging from: -
· The National Park Authority becoming the planning authority for the National Park or
· The National Park Authority being the planning authority in respect of development plan preparation, or
· The National Park Authority having such planning powers as the designation order specifies (and that might include for example the right of a National Park Authority to be consulted on certain categories of planning applications and to have a power to call these in for their own determination).
It is extraordinary that different planning powers are devolved to the Loch Lomond and the Trossachs National Park Authority (“LLTNPA”) and the Cairngorms National Park authority (“CNPA”) and these will now be compared.
The LLTNPA has been conferred with planning powers to decide all planning and related applications and to enter into planning agreements in relation to development within the LLTNP. All planning and related applications must therefore be submitted to the LLTNPA for a determination. It is required to prepare and adopt local plans but is not empowered to prepare structure plans although the Local Authority preparing these must consult it. There is clearly the potential for conflict between the local authority and the LLNPA in terms of the local authority retaining the power to promote a structure plan to which the LLTNPA local plan must conform.
In contrast the CNPA only has power to decide planning or related applications where it decides to exercise its power to call-in that application in circumstances where the proposed development raises a planning issue of “general significance” to the National Park. All planning and related applications will continue to be submitted and determined by the existing local authorities (of which there are five) but there is duty on the local authorities to notify the CNPA of any planning or related application for development in the National Park. It is required to prepare and adopt local plans but is not empowered to prepare structure plans although the Local Authority preparing these must consult it. There is clearly the potential for conflict between the local authority and the CNP in terms of the local authority retaining the power to promote a structure plan to which the CNPA local plan must conform[19].
It may appear rather odd that Scotland’s first two National Park authorities have ended up with very different arrangements for the exercise of planning functions. Covering the boundaries of five local authority areas the allocation of planning powers to the Cairngorm National Park authority was a hotly contested issue. Perhaps not unsurprisingly the local authorities, community councils, economic and business interest and land owners favoured local authorities retaining their planning functions. The arguments in favour of retention of local authority planning control included, fear of increased bureaucracy, lack of democratic accountability and importantly undermining the priority for economic development. An important testament to the priority for economic development is the Cairngorm Funicular railway, which was sanctioned by the Highland Council in the heart of what is now the National Park. Those in favour of ceding full planning powers to the CNPA argued that this would restore an appropriate equilibrium between the need for conservation and economic development and clearly pointed to the fact that for this reason full planning powers were conferred on the LLTNPA. The output of the political struggle which ensued between the Scottish Ministers, relevant local authorities and other interested parties both in relation to the boundaries of the Cairngorms National Park and its powers resulted in a National Park with some boundaries bisecting important landscape features and importantly without the power to decide planning applications other than by way of a call-in. It is interesting to observe that the newly established New Forest National Park[20] has the power to decide planning applications.
In addition to the requirement on both the LLTNPA and The CNPA to prepare local plans for their area they also have a duty[21] to prepare and submit a National Park Plan to the Scottish Ministers setting out its policy for the management of the National Park. This together with any local plan will be central to a National Park Authority’s planning decision-making. In preparing a National Park Plan so the National Park Authority must be guided by it general purpose[22]. Prior to submission there is a duty to consult with stakeholders and the Scottish Ministers can approve it, reject it or modify it. The National Park Plan for Loch Lomond and the Trossachs has recently been published for consultation. The National Park Plan must be reviewed every 5 years or less as the Scottish Ministers may direct. The National Park Plan will guide the preparation of local plans although there are areas of potential conflict as LLTNA and the CNPA are not the strategic planning authority and this remains with the local authorities. Further the existing local plans (until the new local plans are promoted and adopted) for both National Parks are those of the processor Local Authorities. There may also be an inherent tension in that all new local plans promoted by LLTNPA and CNPA must conform to the existing structure plans of the relevant local authorities.
All public bodies including the Scottish Ministers and the National Park Authority must have regard[23] to the National Park Plan when exercising their functions so far as affecting the National Park. This means that the National Park Plan will be a pivotal policy statement in all decisions concerning land use planning in a National Park.
To examine how these new planning arrangements operate in practise I would provide the reader with a hypothetical example of a windfarm proposal in each of the National Parks. Planning permission is required for a windfarm and if it were promoted in the LLTNP it would involve the submission of a planning application to the LLTNPA. The application would be determined with regard to the achievement of the statutory aims of the Act, the terms of the development plan[24], the National Park Plan and other material considerations including national planning policy. A windfarm development may well raise a number of issues in elation to the achievement of these aims and one can well envisage the application of the “Sanford Principle” and that greater weight must be given to the conservation of natural and cultural heritage. In the event of a refusal the applicant would have the right of appeal to the Scottish Ministers who would be required to have regard to the achievement of the statutory aims of the Act, the provisions of the development plan, the National Park Plan and other material considerations including National Planning Policy.