Planning is a devolved matter in Scotland. Consequently it has its own rules and policies, such as Planning Circular 4/1998 relating to the use of conditions in planning permissions. Paragraph 2 states clearly and unambiguously:

Conditions imposed on a grant of planning permission can enable many development proposals to proceed where it would otherwise have been necessary to refuse planning permission.

It goes on to say that such conditions should be imposed only where they are necessary; relevant to planning; relevant to the development to be permitted; enforceable; precise; reasonable in all other respects. It’s not clear (to me, at least) whether those qualifications are cumulative or in the alternative, but on balance my assessment is that they are cumulative. Paragraph 4 goes on to stress the importance of carefully drawn conditions that can be enforced, and the need to maintain public confidence:

It is essential that the operation of the planning system should command public confidence. The sensitive use of conditions can improve the effectiveness of development control and enhance that confidence. Conditions imposed in an unreasonable way, so that it proves impracticable or inexpedient to enforce them, will damage such confidence and should be avoided.

It seems reasonable to assume, then, that where a planning application would have been refused were it not for the imposition of one or more conditions that satisfy the criteria set out in paragraph 2, then such conditions must be strictly monitored and enforced. Anything less is likely to bring the system into disrepute and to damage public confidence.

In Scotland, there is an extensive system in place in connection with planning which attempts to ensure that the system works well and that concerns can be raised and rectified. There is, for example, a Planning and Environmental Appeals Stakeholder Forum (“The group supports the development of our service improvement agenda and give us a better understanding of the needs and expectations of our stakeholders”). The forum meets twice a year, and a number of relevant and interested parties are represented, including the campaign group, Scotland Against Spin (“the independent alliance campaigning for the reform of the Scottish Government’s wind energy policy”).

Following the meeting of the Forum in June 2026, a representative of Scotland Against Spin, having raised public concerns that planning conditions were not being effectively enforced when there was a perceived breach, made contact with Heads of Planning Scotland (“HOPS”). This was done following discussions with the Scottish DPEA (Planning & Environmental Appeals Division). A number of examples of verified non-compliance with planning conditions were supplied, but the response received effectively passed the parcel, with a suggestion that the question instead be put to yet another directorate within the Scottish Government (the Planning, Architecture and Regeneration Directorate: “PARD”). Given PARD’s remit for overseeing and reforming Scotland’s statutory planning system, this was duly done, in the hope that it would take some action. Concerns expressed specifically included the following:

…a local authority has absolute discretion whether or not it chooses to enforce any condition under current legislation.
Members of the Public do not ordinarily have the financial resources at their disposal to mount a judicial review against either their local authority or a developer for a perceived breach of planning conditions. The expectation that unfunded third parties should be responsible for resolving this problem is an unfair and unrealistic course of action.

A local authority not only has the lawful ability to reinterpret or choose not to enforce a perceived breach of planning control (even if that breach is reported by a Planning Monitoring Officer) but can also agree to alter an existing condition or plan as a ‘Non material variation’ – even if this would include new windfarm access tracks and water crossings which have not been assessed under EIA regulations. Of course, this can occur without any public notification or scrutiny which would otherwise occur with a variation of planning conditions under a s.42 application.

In this context, it’s worth noting that Equinor is currently seeking to avail itself of the “non-material variation” option in respect of the mitigation measures I discussed in Screwing the Tern. Readers may recall that planning permission was granted for Equinor to develop an inland pool with islands in the hope that it would prove attractive to nesting sandwich terns (as part of a plan to mitigate the birdlife likely to be killed by its plans for an offshore wind farm extension hundreds of miles away in the North Sea). If this variation is granted, the size of the pool will decrease from 2.2ha to 1.8ha, which stirikes me as a significant reduction in its surface area. Furthermore, the planned islands within the pool are not only reducing from four in number to three, but the island area is to reduce from 1150m2 to 920m2, which represents a 20% reduction in the proposed nesting area. Aside from the question as to when is a planning condition not an effective planning condition, we might also ask when a “non-material” variation is in fact very material.

To return to the correspondence between Scotland Against Spin and PARD, the situation seems to have advanced not one jot. The reply was full of the usual platitudes, while stating baldly that “authorities are under no legal obligation to take formal enforcement action against any particular breach where they consider it is not in the wider public interest to do so” and also “[d]ecisions on whether a particular change is capable of being treated as a non-material variation are matters for the planning authority, having regard to the relevant statutory provisions and the circumstances of the case.”

And that would seem to be that. It appears that the Scottish government has no plans to ensure that planning conditions are enforced when they are breached; nor to ensure that planning processes aren’t side-stepped by developers seeking to slip through major amendments under the guise of “non-material variations” to the original planning consent. Scotland continues to be a very benign environment for rapacious, often foreign, renewable energy companies. It’s easy to agree to a condition, to achieve a consent that would otherwise be denied, then ignore the condition, secure in the knowledge that there’s a good chance it won’t be enforced. Equally, should an aspect of the development subsequently turn out to be inconvenient, then don’t worry – there’s no need for a fresh planning application: just submit an application for a “non-material variation”, and Bob’s your uncle.

PARD’s response says that “We recognise the importance of effective planning enforcement in maintaining public confidence in the planning system. Planning conditions are attached to permissions where they are considered necessary to make a development acceptable in planning terms, and compliance with those conditions is an important aspect of the development management process.” It would help if its actions matched these words.