UK: The Future For Planning Appeals In Scotland

Last Updated: 4 April 2008
Article by Murray Shaw

The final significant consultation paper regarding the changes in the planning system emerged at the end of February.  This was concerned with planning appeals.  While it is likely there will be further consultation papers regarding permitted development rights and fees payable in relation to planning applications, this paper really completes the significant consultation process which commenced at the end of 2007 concerning the implementation of the Planning Act.  With the publication of this consultation paper, it is possible to see the whole range of changes. 

As the consultation paper makes clear, the proposed changes to the appeal system are part of the wider agenda to modernise the planning system, intended to make it more efficient, effective and accessible.  These proposals must be seen in that context and in fact reflect a number of other significant changes including the characterisation of developments as either national, major or local. 

Restriction Of A Right Of Appeal

While these proposed changes can be seen as the last part of the process, they in fact confirm one of most controversial changes, namely the restriction of a right of appeal in respect of certain "local applications" to a local review body.  This is possibly the most controversial change and one which a number of parties consider to be of dubious legal validity.  The consultation paper is accompanied by a draft statutory instrument which sets out proposed rules for the operation of these review bodies. 

Reduced Timescales

Any appeal in relation to a relevant application (in effect, an application in respect of a development which is categorised as a "local" development which has been decided in terms of a scheme of delegation – see below) must be made within 3 months.  The current period is 6 months.  That reduction is to be followed through in relation to all planning appeals (see below).  It is interesting that when a similar change was introduced in the recent past in England, the Inspectors' Unit there was inundated with appeals and the change had to be "reversed".  It is understood that the same concerns do not apply in Scotland but it will be interesting to see what the effect of this change is.

Notice Of Review

It is presently proposed that the appeal must be given by way of a Notice of Review.  This must include a statement of the applicant's reasons for requiring a review.  If it is intended to raise any matter which was not raised before the planning authority when the application was under consideration, it will be necessary to confirm why that could not be raised previously together with details of any exceptional circumstances relating to that situation.  While notice will be given to those who have commented on the application, it appears to be intended (whether or not new matters are raised) that other than the planning authority, they should not be involved in the review process.

The Review Body

A local review body will be made up of at least 3 and not more than 5 Councillors.  They will be members of the Council taking the decision (albeit making the decision will have been delegated).  It is not intended at this stage to widen the scope of a local review body to include non-Councillors or indeed Councillors from any other planning authority.  The consultation document suggests that these Councillors will need specific training and support both from the planning and legal teams within the Council.  The consultation document specifically comments:- "However, the Scottish Government recognises that this significant change must not result in reduction in the quality of examination, one of the key strengths of the existing system.  It is essential that any local review processes are underpinned by high standards: those with responsibility for participating as members or chairing a local review body must be fully trained... those requesting  a review must be confident that their case will be dealt with fairly".

Leaving aside any legal issues as to whether this system is compliant with, for example, human rights legislation, clearly, if confidence in the system is to be maintained, these aspirations must be achieved. 

It will be for the local review body to decide whether they can determine the position on the basis of the information they have.  Interestingly enough, it does not appear to be intended specifically that the planning authority should make any further submissions to the local review body unless the local review body requires these.  The Schedule to the draft regulations sets out specific procedures which will apply either in relation to a review carried out by way of written submissions or by way of hearing.  While the local review body is not obliged to hold a hearing it can.  Specifically, any hearings are to take the form of a discussion led by the local review body and "cross examination shall not be permitted unless the local review body considers that cross examination is required".  Any form of cross examination will be the exception.  Whatever procedures are adopted, the local review body will need to ensure that there is a full and thorough examination of all the relevant issues.  Any hearings that are held, are to be in public.

The decision of the local review body is to be given in writing and to include certain prescribed information.  It appears likely that local review bodies will require considerable assistance in preparing their decisions, a burden that is likely to fall upon legal departments in planning authorities.

Delegated Powers

Integral to the whole system is an expectation that there will be considerably more decisions reached on the basis of delegated powers (the appeal from such a decision being to the local review body).  This consultation paper contains draft regulations in relation to schemes of delegation.  These are to be submitted for approval to the Scottish Government.  It appears likely that they will not be forthcoming if the scheme fails to delegate to the extent expected.

A scheme of delegation is however to specifically prohibit an appointed officer from determining certain applications.  These include applications made by planning authorities, applications made by a member of the planning authority, applications where there is any outstanding objection from a statutory consultee, applications which are subject to EIA development, applications which are significantly contrary to the Development Plan, applications in which the authority has a financial interest and applications where there is substantial body of objections.  Any appeal in relation to these will remain to Scottish Ministers, albeit there are to be significant changes there.

The original White Paper sought to ensure that the system was fit for purpose, more efficient, more inclusive and sustainable.  The changes in relation to local review bodies and delegation are intended to assist in achieving these objectives.  Critical however to achieving a change of culture (which it is accepted is also required) will be confidence in these arrangements.  It is at least possible that enhanced schemes of delegation will result in planning officers being under more pressure in relation to an application.  Equally, members of local review bodies will need to make sure that applications referred to them are properly and thoroughly examined if that change is to be achieved.  Members of the local review body may also be more susceptible to pressure.  It is fair to acknowledge that planning authorities do make decisions at the moment contrary to officers' recommendations.  If however, a local review body simply becomes "a rubber stamp" of decisions made under schemes of delegation then it is unlikely that confidence will be achieved. 

Appealing To Scottish Ministers

The consultation paper also deals with applications where an appeal to Scottish Ministers will remain available and provides a new set of draft regulations to govern such appeals.  Again any appeal must be made within 3 months and must be made by a Notice of Appeal which is to include a statement setting out full particulars of the appeal.  Again this must identify (if they are to be pursued) any issues which were not raised at the time the application was determined with information about any exceptional circumstances as to why they were not raised at that time.  The planning authority is to respond within 14 days from receipt of a copy of the Notice of Appeal.  In their response, the planning authority is to indicate what matters they consider to require determination and "by what means these should be determined".  That timescale is tight particularly as the local authority has to come to a view of the appropriate form of process. 

Irrespective of the views of the parties, Scottish Ministers (in reality this will mean the Directorate for Planning & Environmental Appeals) will decide what form of process is to be followed.  The procedures available are either, dealing with matters by way of written submissions or by holding a hearing or inquiry session.  The consultation paper suggests that inquiries will only be used "for more complex issues in already complicated cases and for those situations where the factual position is in dispute and effective resolution would be unlikely either through an exchange of written submissions or a hearing".  This appears to indicate that there is a possibility of different processes being used for different parts of an appeal, i.e. some parts by way of a hearing session and some parts by way of a full blown inquiry.  Scottish Ministers have already indicated this approach may well be followed in relation to the Trump appeal.  The consultation paper indicates that the changes are intended to make the appeal process more "proportionate without reducing the quality of determination".

Procedural Changes

The draft regulations which accompany the consultation paper include rules for hearing sessions and inquiries.  These make a number of significant procedural changes.  Perhaps the most startling is that a precognition, unless the appointed person (the Reporter) agrees otherwise, should not contain more than 2,000 words.  At present, there is no limitation on the length of precognitions, albeit if more than 2,000 words, they require a summary.  Certainly some witnesses will be hard pushed to keep their precognitions to 2,000 words and it may be there will be much more cross referring to reports lodged by way of productions.  The rules also provide when an inquiry should be held which is within 20 weeks of the relevant date being a date upon which the Scottish Ministers issue a procedure notice.  That stipulation however can be varied if it is not practicable to achieve that date.  At least 4 weeks notice needs to be given of the inquiry session.  Hopefully in practice it will be significantly more than 4 weeks.  The rules also set the procedure for an inquiry session and specifically entitle the decision maker to refuse to permit the giving or production of evidence, of cross examination or other presentations if and to the extent it is considered "irrelevant or repetitive". 

These are substantial changes intended to make the process more efficient.  It is welcome that the consultation paper acknowledges the need to ensure that the quality of decision making is protected.  While no doubt all of those who are involved in the process to date will have their own views at to the quality of decisions they have received, it must be right that as a critical principle this issue of quality is protected.  As always, with significant change, there is the possibility of a "knee jerk" reaction to criticise and oppose what is proposed.  In truth, the effectiveness of what is proposed is likely to depend upon the fair operation of the system and the ability of those entrusted with making decisions (at whatever level) to make sure that the appellant (whoever they might be) feels that their case has been properly and fairly considered.  It would certainly be unfortunate if the consequence of these changes were more challenges to the Court of Session, which in itself provides a far from satisfactory remedy.

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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