UK: Planning Appeals And The Internal Guidance Of The DPEA

Last Updated: 14 July 2011
Article by Murray Shaw

The whole appeal system in Scotland has been significantly changed as a result of the provisions of the Planning Etc (Scotland) Act 2006 and the Supplementary Regulations made to implement that legislation ( Hierarchy – Schemes of Delegation and Development Management). Inquiries are now few and far between and typically written submissions and/or hearing will be the norm. While the Directorate for Planning and Environmental Appeals (formerly the Reporters' Unit) (the DPEA) will seek the views of parties about processes and procedures they now have much more discretion to decide what processes and procedures they consider appropriate.

Against that background it is therefore helpful now to have access to internal guidance notices produced by the DPEA to assist Reporters with a number of issues. These are now available on the DPEA website. Click here to view. Being able to read these and understand the approach taken should allow those involved in the appeal process (whatever form it may take) to better understand the stance likely to be taken by Reporters and to advise their clients appropriately.

There are 15 different Guidance Notes available as follows:-

  1. Reporter Guidance Note 1 – Sists
  2. Reporter Guidance Note 2 – Listed Buildings
  3. Reporter Guidance Note 3 – Receipt of 2008 regs case file
  4. Reporter Guidance Note 4 – Time limits on planning permission (full)
  5. Reporter Guidance Note 5 – Time limits on planning permission (in principle)
  6. Reporter Guidance Note 6 – Site inspections (accompanied or unaccompanied)
  7. Reporter Guidance Note 7 – No further procedure
  8. Reporter Guidance Note 8 – Further procedure
  9. Reporter Guidance Note 9 – No variation of application
  10. Reporter Guidance Note 10 – Reporters' decisions, house style
  11. Reporter Guidance Note 11 – Applying timescales for appeal submissions
  12. Reporter Guidance Note 12 – Development Plan Examinations – role of lead reporter
  13. Reporter Guidance Note 13 – Development Plan Examinations – role of non-lead reporter
  14. Reporter Guidance Note 14 – Planning obligation appeals
  15. Reporter Guidance Note 15 – Good neighbour agreement appeals

In addition to these Guidance Notes the Scottish Government has made available a revised Code of Practice for handling inquiries under the Electricity Act 1989 together with their guidance to planning authorities in respect of Development Plan examinations.

Depending upon what sort of appeal you are involved in the relevant guidance is worth consideration. The various Guidance Notes identified above all carry a disclaimer making clear that each case must be considered on its merits and it is for the person dealing with the appeal to decide whether or not the guidance given is appropriate in any particular circumstance. The guidance goes on however that where a Reporter intends to depart from the guidance they should make the appropriate person internally aware so that any issues can be considered for future reference.

It is not appropriate to rehearse all the guidance notes but there are some points of particular interest.

In relation to sists the point is made that the decision making process should be efficient and avoid uncertainties for those who may be affected by development proposals. Accordingly there are 3 criteria that should be applied as follows:-

  1. It is thought there is a good reason to grant a sist (this seems to be potentially very wide scope);
  2. That it will not prejudice any party;
  3. It has been agreed by the main parties to the appeal.

Some amplification is given of good reasons – these apparently include unexpected events such as insolvency or death. In fact those sorts of eventualities are likely to be few and far between. Specifically however the fact that a fresh planning application has been lodged is not considered to be a good reason for a sist – the guidance suggests that the appellant can simply withdraw the appeal. While that is true that is unlikely to be a proposition that many parties would necessarily accept or welcome.

Guidance Note 3 deals with the receipt of a case under the new Regulations. In itself not necessarily particularly significant guidance but what is interesting are the timescales that the guidance sets out for dealing with particular type of cases. Where there is to be no further procedure a case should be determined within 8 weeks, where only a site visit is required then the case should be determined within 12 weeks and where there is to be further written evidence and a site visit the relevant period is 20 weeks. Where there is to be a hearing with a site visit 26 weeks is the expected timescale while for an inquiry session with a site visit 32 weeks is the expected timescale. Obviously these periods may vary having regard to the particular circumstances of the case. That guidance however is useful to help advise clients.

Guidance Note 5 deals with time limits on planning permission and makes the point that as the Act now deals with matters there is no need for specific conditions if the standard time limits are to apply. If the standard time limits are not to apply then the way in which they should be dealt with is by way of a direction in the "decision" part of the decision notice. The justification for that direction will be set out in the decision notice. Where this happens it may be necessary to give some consideration as to how that time limit may be further amended should this be necessary.

Site inspections are an integral part of the planning appeal process (however the appeal is actually determined). Guidance Note 6 deals with site inspections and in particular deals with the issue of whether they should be accompanied or unaccompanied. The guidance suggests in many cases an unaccompanied inspection "will be all that is required to obtain the necessary information". In particular the guidance makes the point that an accompanied inspection should not be carried out simply because one or more of the parties has requested this or because there are a number of interested parties. The guidance sets out specific situations where it may be preferable for the site visit to be accompanied. These include difficulties of access, where there is need to go onto private land and there is a concern the Reporter might be influenced by contact with a particular party, where there are issues about health and safety or where the presence of a particular party is necessary to explain the feature. The guidance makes the point that where the site inspection is to be accompanied the Reporter will not necessarily defer the inspection if one party does not attend or seeks an alternative date. The guidance also sets out how a site visit should be dealt with – procedures which will be familiar to all those who have been involved in the past.

The regulations made under the 2006 Act included provisions to allow the appointed person (the Reporter) to determine an appeal without any further procedure where that person did not consider further representations or information was required. Guidance Note 7 deals with this making clear that a site inspection in fact constitutes further procedure. Specifically the guidance sets out circumstances where this regulation might be relied upon, though Guidance Note 7 makes clear in particular that each case will need careful consideration by the Reporter. Amongst the circumstances where no further procedure may be necessary include where a development would clearly contravene National Planning Policy or Development Plan Policy and there are no material considerations to outweigh this, where the planning authority is not defending the appeal and where the appeal relates to a non-determination case and the planning authority indicates there would have been a grant of planning permission. Specific examples are also given in relation to enforcement appeals, certificates of lawful use or development and amenity notices.

Guidance Note 8 deals with what further procedure is appropriate making clear that the underlying emphasis for further procedure is to ensure that the Reporter obtains the further information that they require to determine the appeal. The guidance goes on to make clear that further written submissions will not routinely be invited but may be relevant if there is a lack of clarity about one party's position. Hearing sessions may be required where these would be helpful to enhance the Reporter's understanding of the situation, if there is some dispute but cross examination is not required, or where the evidence is really opinion evidence and that evidence needs to be explored by a Reporter in a structured discussion led by the Reporter. Inquiry sessions may be appropriate in accordance with the guidance where essential facts are in dispute and cross examination is required or whether there is a conflict of professional opinion.

Section 32A of the 1997 Act (Section 32A having been introduced by the 2006 Act) makes clear that an application cannot be varied after an appeal has been made. Guidance Note 9 really sets out that position in some detail making the point (not surprisingly) that if requests to amend the development are made then this cannot be accepted.

Guidance Notes 12 and 13 deal with Development Plan Examinations and in particular make clear the role of the Lead Reporter in comparison to other Reporters appointed to conduct the examination. The term "Lead Reporter" may be misleading in the sense that the role of the Lead Reporter is to take responsibility for the efficient management of the Development Plan examination – it is a project management role. Otherwise all Reporters are generally equal though the role of the Lead Reporter does encompass assessing conformity with the participation statement, determining the approach to the shape of the final report and liaising with the administrative team at DPEA. Certain decisions made by other Reporters need to be fed back to the Lead Reporter to provide the Lead Reporter to keep a track on progress and how much time will be involved.

The final two Guidance Notes, 14 and 15 deal with planning obligation appeals (i.e. seeking to vary a Section 75 Agreement) and good neighbour agreement appeals. These are new processes which only became effective in the early part of 2011. It is unlikely that any appeals in respect of good neighbour agreements will be made for some time because good neighbour agreements in themselves are an innovation. The position in relation to appeals in respect to planning obligations appears to be confused. Planning obligations are essentially the subject matter of Section 75 Agreements. There appears to be different views between planning authorities are to whether the legislation is retrospective or not.

The guidance gives no direction as to the grounds upon which any decisions will be made. What the guidance does stress however if that the decision of the Reporter is limited to one of three options:-

  • There should be no modification;
  • The agreement should be discharged;
  • The agreement can be modified as specified in the application.

Critically the guidance makes clear that a Reporter cannot modify an obligation in a way other than that proposed by the applicant/appellant.

Guidance Note 10 deals with how decisions should be written and the "house style" in relation to that. Long sentences and paragraphs are to be avoided as is jargon and Latin terms. There are specific provisions in respect of type appearance and how figures should be used. Probably to most appellants it is what the decision letter says rather than how it says it that is important!

Having access to this guidance is helpful and consulting it may well avoid disputes with DPEA or requests being made which are inevitably likely to fail.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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