Case Study

Question 1

What is a section 75 agreement?

Answer 1

A section 75 agreement is a contract entered into between a landowner and the local council which has the effect of restricting or regulating the development or use of land or requires a payment further to our part of the planning application process.

Question 2

How is social rent defined?

Answer 2

Social rented accommodation is that provided at an affordable rent and usually manage locally by registered social landlord such as a housing association or cooperative or the local authority or any other housing body regulated by the Scottish housing regulator

Question 3

What is the statutory Consultee?

Answer 3

A statutory consultee is an organisation or body defined by statute which local planning authorities are legally required to consult before reaching a decision on the relevant planning application

Question 4

Why was this 2020 application withdrawn by XXXXXXXX?

Answer 4

XXXXXXXX had determined to withdraw the application in order to reassess this in house. The approach taken to launch this application was subsequently decided against.

Question 5

What information must be provided with a planning permission in principle application?

Answer 5

For planning permission in principle it may be sufficient to submit only:
a location plan and any showing neighbouring land owned by the applicant;
describe the location of access points and of the proposed use.

It is however a matter for planning authorities to consider what additional information they wish to receive in order to determine the application. Regulation 24

Question 6

What is planning permission in principle? And how is this different from full planning permission?

Answer 6

Planning permission in principle is sought with the applicant wishes to obtain consent to the principle of the development before drawing up a detailed scheme thereby saving expense and risk of that work shit permission not be granted. In this respect it is different from full planning permission because of the information required to be submitted

Question 7

Why did you review the development plan?

Answer 7

Section 25 of the town and country planning Scotland act as amended requires that applications are determined in accordance with the development plan unless material considerations indicate otherwise

Question 8

What does the Development plan consist of?

Answer 8

At present the development plan consists of the strategic development plan where applicable the local development plan and any supplementary guidance related thereto

Question 9

What is the strategic development plan?

Answer 9

A strategic development plan is currently in place in the four largest city regions in Scotland addressing land-use issues across local authority boundaries and relative to strategic infrastructure. Local development plans are required to be consistent with strategic development plans

Question 10

Is the strategic development plan still in force?

Answer 10

Yes, the strategic development plan remains in force until the publication of the National planning framework 4 thereafter they will cease to have affect

Question 11

What is the status of supplementary guidance?

Answer 11

At present supplementary guidance prepared in relation to the local development or strategic development plan enjoys development plan status under the Planning Etc Scotland Act 2006.

Question 12

I note that you identified that the emerging local plan with designate the site is protected amenity space what was its provision and the adopted plan at present?

Answer 12

The current local development plan did not designate the site for any particular use

Question 13

Can you advise what some of the other relevant policies where?

Answer 13

Policy H1 – housing land H2 affordable housing policy P1 layout siting and design

Question 14

Tell me about the Aberdeenshire Council Housing Land and Affordable Housing Policy?

Answer 14

Policies H1 and H2 of the LPD support the development of housing on sites allocated for that purpose and for proposals that would contribute to meeting the identified need for affordable housing

Question 15

What is a medium to high flood risk area?

Answer 15

An area where the annual probability of flood occurring is greater than 1: 200 years or 0.5%

Question 16

How is flood risk calculated?

Answer 16

Flood risk is calculated in the planning guidance issued by SEPA as the probability of flood hazard x the consequences due to the receptor use characteristics.

In this way housing is a very vulnerable use because of the propensity for the receptor to suffer harm from the impact of flooding and the propensity of the receptor recover from the damage of flooding.

Susceptibility and resilience are key

Question 17

What section of Scottish planning policy advocates the precautionary principle

Answer 17

Managing flood risk and drainage paragraphs 254 to 268

Question 18

How did the hydrologist get involved?

Answer 18

I contacted the hydrologist responsible for the flood risk assessment undertaken as part of the previous application. He was engaged to provide a refreshed assessment and give advice on a flood prevention strategy.

Question 19

What’s the hydrologist formally instructed?

Answer 19

Yes, they were asked to refresh flood risk assessment that had been undertaken for a previous scheme and give advice on flood prevention strategy.

Question 20

Did you check their insurance and that they were qualified?

Answer 20

No, as my employer only engages services from those consultants on its framework their insurance and professional status would have already been confirmed by procurement colleagues before I could issue a purchase order for the works. I recognise the importance of checking these had arrangements/circumstances been different.

Question 21

Would a duty of care had been created had the advice been given informally or without a fee?

Answer 21

Possibly, it would depend on the circumstances. In the context in which advice was sought here, it was clearly in a professional capacity and the purpose for which the advice was required was made aware to the consultant.

Question 22

How would you check their insurance and qualifications?

Answer 22

I would ask for them to confirm their credentials and if necessary provide proof of qualification and insurance and check that my client/employer were satisfied with this.

Question 23

What are the risk categories of flooding?

Answer 23

There are three categories of flood risk: 1 - Little to no risk – annual probability of coastal or water coast flooding less than 0.1% or one and 1000 years 2 - Low to medium risk – annual probability of coastal or watercourse flooding is between 0.1% and 0.5% or between one and 1000 years - 200 years.

3 - Medium to high risk – annual probability of coastal water coast flooding is greater than 0.5% (bracket one: 200 years)

Question 24

What might a flood prevention scheme on the site have a look like?

Answer 24

The advice from the hydrologist highlighted that a number of flood mitigation measures would be required at a minimum including bond and Swale along the boundaries of the site together with a flat top road hump however There remained concerns about the residual level of flooding that could still occur to the site and the impact of these measures further downstream were difficult to quantify

Question 25

What is the statutory basis for the Planning Authority to request additional information

Answer 25

The town and country planning development management procedure Scotland regulations 2013 part for section 24 further information provided that the planning authority may require from the applicant further information that it requires to enable them to deal with the application

Question 26

Does the Scottish government issue any other advice on flood risk and how this can be managed?

Answer 26

The Scottish government provide guidance on flood risk and planning advice flood risk 6/2015 this sets out the considerations of flood risk relative to application and how development management officers should take flood risk into account.

Question 27

Why was SEPA involved? What was the importance of their input?

Answer 27

Schedule 5 Section 1.(1) of The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008 (the Development
Management Regulations) requires that planning authorities must, before determining an application for planning permission, consult with SEPA where the
development is likely to result in a material increase in the number of buildings at risk of being damaged by flooding.

Question 28

Did you consider Planning advice flood risk 6/2015?

Answer 28

Yes, I review the section which set out how appointed officers should approach proposals affected by flood risk.

Question 29

And how should appointed officers/planning authorities approach proposals affected by flood risk.

Answer 29

They should seek first to establish whether the development site is susceptible to flooding or if development of the site would lead to an increase in
flood risk elsewhere. If so, they should seek additional information, consult with SEPA and consider the proposals within site specific circumstances, the characteristics and nature of any flood
risk.

Question 30

How did you come to the conclusion that the planning authority would attach significant and overriding weight to flood risk?

Answer 30

The vulnerability of occupiers plus the status of the site and there being no other policies of relevance that would take precedence in my judgement

Question 31

Could they not have been technical solution to this through construction on stilts et cetera so that future occupiers were less lately to experience flooding?

Answer 31

As I understand the advice provided by the hydrologist there were various measures that could be proposed however there was considerable difficulty in demonstrating what impact this would have downstream. In this way it would be difficult to convince the planning authority that the development would not increase the probability of flooding elsewhere and also the residual risk of flooding on the site despite measures

Question 32

What is the precautionary principle?

Answer 32

The precautionary principle is set out in paragraph 255 of Scottish planning policy and advocates that the planning system should promote first the avoidance of flood by safeguarding food storage and conveying capacity and locating development away from functional floodplains and medium to high risk areas. If on balance there are material reasons why development may still be appropriate then further assessing flood risk and the structural flood management measures to mitigate this would be appropriate And only if these can be satisfied should development be approved

Question 33

What is a material consideration?

Answer 33

Material consideration is a fundamental concept in the Scottish planning system. Section 25 of the 1997 act states that decisions on planning applications must be made in accordance with the development plan unless material considerations indicate otherwise. the two tests that must be satisfied in deciding whether a consideration is material is:

• It should serve or be related to the purpose of planning. This means it should relate to the development and use of land.
• It should fairly and reasonably relate to that particular application.

Question 34

What material considerations did you identify?

Answer 34

Affordable housing.

Question 35

Why did you consider that the development plan would outweigh affordable housing as a material consideration?

Answer 35

In my assessment I judged that as the proposals were for housing, which is the most vulnerable use in relation to flood risk, that the communities need for affordable housing could not therefore outweigh the exposure of this accommodation to flooding risk that was unacceptable.

Question 36

What is a approval of matters specified in conditions application?

Answer 36

Subsequent to the approval of planning permission in principle a separate procedure is required for the approval consent or agreement of the planning authority for any detailed aspect of the development whether or not that approval is required before the development can begin.

Question 37

You noted that these would be extremely burdensome can you explain this?

Answer 37

Yes, the advice from the hydrologist was that multiple measures would likely be required to address flood risk. Whether or not this would be acceptable to the council is a discrete issue, however it was commented that the maintenance in perpetuity of all these measures was quantifiable but likely to be very expensive

Question 38

Did you seek Pre-Application Advice

Answer 38

No, I was instructed not to engage with the Council.

Question 39

Why did you have to do this assessment? Could XXXXXXXXX not have simply approached the council to obtain an answer?

Answer 39

To ensure transparency and fairness between RSLs, many Councils often ask that proposals are formally drafted and discussed at stakeholder meetings. There would be considerable embarrassment caused by the Council’s refusal to fund the scheme hence my employer, and many RSLs I understand, would always assesses proposals before formal submission.

Question 40

What is the strategic housing investment plan?

Answer 40

A strategic housing investment plan is a document that sets out our local authorities strategic investment priority for housing or a five year period specifically for affordable housing and gypsy/traveller accommodation. The ship is prepared in order to meet local housing strategy outcomes and priorities. It’s an operational rather than policy document.

Question 41

What is the affordable housing supply programme and how does it work?

Answer 41

The affordable housing supply programme is the main funding mechanism to deliver homes of affordable tenure across Scotland to support local authorities local housing strategies.

Question 42

I note that you say development would be non-viable without grant subsidy did you conduct a viability appraisal of the project?

Answer 42

No at this stage there was too many unknowns to enable a more in-depth viability appraisal. The requirements of my employer at the stage was to determine whether planning permission and grant funding would be available for the scheme.

Question 43

Would XXXXXXXXXhave considered the building these units without grant funding?

Answer 43

No my employer would not consider development without grant funding in place.

Question 44

Why what’s the multi agency approach in the district of relevance?

Answer 44

A multi agency approach means that registered social landlords and councils in the local authority area use a unitary system for applications which allows those in housing need to have their needs met on a priority basis without having to apply to separate housing associations. The system in Aberdeenshire is called apply4homes. This is of relevance as it means that the waiting list data captures pressure for social rented accommodation.

Question 45

How much funding is available through the SHIP?

Answer 45

The Council’s resource planning assumption is around £32 million annually.

Question 46

Was there capacity in the SHIP for funding the project?

Answer 46

Yes, given the small nature of the scheme and that it would take taken a number of years to start on site had development been possible, the SHIP would likely have had capacity to fund the development .

Question 47

What is the local housing strategy?

Answer 47

The local housing strategy sets out how the council and its partners plan to address housing issues and demand in the area over the next five years. The evidence for the LHS comes from housing need and demand assessment which estimates need for both private and affordable housing in the area. The housing Scotland act 2001 places are responsibility on local authorities to prepare a local housing strategy.

Question 48

What is the housing needs and demands assessment? How is this prepared?

Answer 48

Housing needs and demands assessments are designed to give a broad long run estimate of what housing need might be in an area. They provide an evidence base to inform housing policy decisions and the local housing strategy and land allocation decisions in the development plan.

Question 49

How was affordable housing need determined?

Answer 49

Affordable housing need is determined in the HNDA by calculating whether households are likely to afford owner occupation and private rent. The first assumption made about housing affordability is that the house is affordable to purchase at the price does not exceed 3.9 times a households income. Once this is determined further constraints are assessed to identify the number of households that would be unable to provide a deposit for owner occupation and thus could rent privately. All other households are assumed to require affordable housing.

Question 50

What were the Council’s priorities?

Answer 50

To increase the supply of social rented housing by 225 units per year, direct housing investment to Areas of High Priority, increase one-bedroom, four and five bed-room stock, and wheelchair accessible housing.

Question 51

What is the housing needs and demands assessment? How is this prepared?

Answer 51

Housing needs and demands assessments are designed to give a broad long run estimate of what housing need might be in an area. They provide an evidence base to inform housing policy decisions and the local housing strategy and land allocation decisions in the development plan.

Question 52

What is the relationship between the local housing strategy and the strategic housing investment plan?

Answer 52

The local housing strategy is a policy document that sets out high-level priorities whereas the strategic housing investment plan as an operational document that provides detailed information on how the local housing strategy is priorities will be made within the constraints of funding and site availability.

Question 53

Why did you conclude that the proposals were unlikely to be suitable for inclusion in the SHIP?

Answer 53

The accommodation provided by the scheme would not meet the priorities of the local housing strategy and the ship because it would not deliver the accommodation in the right place and was ill aligned to meeting pressure for larger homes. The SHIP also appeared to have been committed to funding projects that would allow the Council to meet its social rent target hence there was unlikely to be internal pressure on the Council to accept ill-aligned proposals.

Question 54

How would you have revised the scheme?

Answer 54

Using the information available from waiting list later and affordable completions I may have considered larger homes on the site and potentially some specialist accommodation.

Question 55

Why would different schemes have different implications for grant funding and eligibility?

Answer 55

Under the affordable housing supply program different tenures Attract different levels of grant and prioritisation. This would have to be carefully considered before proceeding. For instance the impact of the falling price of oil has impacted the Aberdeen/shire housing market such that it is now more affordable to private rent hence there is less demand for mid-market units etc.

Question 56

Can you tell me how the affordable housing supply program process works?

Answer 56

Once a developer has submitted a scheme to the SHIP it is prioritised based on the provision and ability to meet identified affordable housing need as well as how quick it will be delivered. It will then be funded by the Scottish Government through the HARP system.

Question 57

Were there any changes made to your reports when you had submitted them?

Answer 57

I was asked to slightly rephrase my wording in the conclusion of my planning appraisal to emphasis how the appointed officer would likely determine the application. I was also asked to provide further detail on what would have happened had the council rejected the application. I was also asked relative to the housing report to provide data on local need in Marykirk itself.

Question 58

What is an options appraisal and how did you go about creating this?

Answer 58

And options appraisal is a technique for reviewing options and analysing the strengths and uses of each one in order to identify the most appropriate course of action in the circumstances. I undertook this by first identifying my employers requirements/objectives and considering the issues with the site in order to formulate three options and then carefully considered each option in order to identify which was most appropriate

Question 59

What sort of insurance would be required in the circumstances should a member of the public be injured or hurt on the site.

Answer 59

Public liability insurance – this typically covers loss or damage to cost a third party as a result of the organisations negligence.

Question 60

What would have happened if there was a large number of objections who would determine the application? Did you check the scheme of delegation?

Answer 60

Under the scheme of delegation if more than six objections were received the application would be determined by elected members at area committee. This would have the effect of meeting that any appeal would be to Scottish ministers.

Question 61

What are the current regulations that determine how scheme’s of delegation operate?

Answer 61

The planning etc Scotland act 2006 part three section 17 provides for schemes of delegation.

Question 62

What would happen if the local review body upheld the decision? Would sanctuary have any other course of action?

Answer 62

Should the applicant be aggrieved by the decision it is awful to them to challenge that decision at the court of session within six weeks of the date of the decision.

Question 63

What is a ‘notifiable event’? Under what legislation is this?

Answer 63

Under the housing Scotland act 2010 registered social landlords are required to notify the regulator about certain disposal of land and assets. Notification does not mean approval however this should ideally be undertaken before any transaction has occurred.

Question 64

What is the role of the Scottish housing regulator?

Answer 64

The Scottish housing regulator is an independent non-ministerial department of the Scottish government directly accountable to the Scottish parliament it was established under the housing act 2010 with a duty to protect the interest of tenants, people who are homeless, and others Who use social landlord services

Question 65

Hypothetically, if a market sale was being pursued what method of sale then would most likely be appropriate? And why?

Answer 65

Private treaty may have been most appropriate in the circumstances had a market disposal been the preferred method. Its flexible and confidential and doesn’t lead to a binding contract.

Question 66

Was there not the potential that the council and Scottish government might be concerned about sectors approach to disposal? What was your considerations here?

Answer 66

I highlighted that consultation with stakeholders was appropriate for this reason. Any course of action would be discussed with them and the board of sanctuary Scotland housing association

Question 67

How would you amend a section 75 agreement?

Answer 67

Section 75A introduced the right to apply to the planning authority for modification or discharge of the planning obligation. It involves submitting an Application for Discharge to the planning authority in question, which requires to be intimated to interested parties, and determined by the authority.

Question 68

Did XXXXXXXX wish to consider alternative provision?

Answer 68

No, particularly given the distance to existing stock pools other tenures where not given consideration.

Question 69

Who were the key stakeholders?

Answer 69

The council, the Scottish government, sanctuary Scotland housing association board, Scottish housing regulator,

Question 70

What is the work breakdown structure and how did you approach this?

Answer 70

Once I had identified my instructions and confirmed what was within the scope of that I was able to prepare a work breakdown structure to consider the individual aspects of each task and how these should be sequenced I used a template WBS in Microsoft Word to prepare this.

Question 71

You meation the new RICS rules of Conduct. What are these and when did they come into force?

Answer 71

Published October, 2021 and effective from 2nd February 2022.

Rule 1 - Members and firms must be honest, act with integrity and comply with their professional obligations, including obligations to RICS.

Rule 2 - Members and firms must maintain their professional competence and ensure that services are provided by competent individuals who have the necessary expertise.

Rule 3 - Members and firms must provide good-quality and diligent service.

Rule 4 - Members and firms must treat others with respect and encourage diversity and inclusion.

Rule 5 - Members and firms must act in the public interest, take responsibility for their actions and act to prevent harm and maintain public confidence in the profession.