UK: Planning Appeals In Scotland

Last Updated: 5 March 2009
Article by Murray Shaw

Introduction

Consistent with the timetable published in December 2008, the Regulations in relation to planning appeals and separately schemes of delegation and local review bodies have now appeared.

In effect these two sets of regulations are the final regulations required to implement the substantive provisions of the Planning etc (Scotland) Act 2006.

The Town & Country Planning (Schemes of Delegation & Local Review Procedure) (Scotland) Regulations 2008

An integral part of the proposals was an intention to delegate more decisions from planning authorities to planning officers. The practical manifestation of this is found in the regulations entitled "The Town & Country Planning (Schemes of Delegation & Local Review Procedure) (Scotland) Regulations 2008".

Schemes of Delegation

The provisions in relation to schemes of delegation are relatively brief and straightforward. There is an obligation upon local authorities to prepare a scheme of delegation (the intention being these should be reviewed at intervals of no greater than 5 years). The scheme is to prescribe applications which are to be dealt with by the appointed officer and if there are to be restrictions upon what applications are to be delegated the scheme is to make these clear. These schemes will relate to local applications in terms of the hierarchy which now applies. In terms of this legislation these schemes of delegation are only to deal with applications for planning permission and applications for consents required by a planning permission. Local authorities in fact have wide power under other legislation to make schemes of delegation and one issue which local authorities will need to address is the inter relationship between schemes made specifically for the purposes of these regulations and schemes made more generally. Schemes of delegation are to include restrictions preventing a "delegated" decision in some cases. These restrictions are simplified from the draft regulations and in effect now delegation is only prescribed where the application is made by a planning authority, a member of the planning authority or the application relates to land in ownership of the planning authority or in which they have a financial interest.

Apart from these provisions there are now no mandatory provisions regarding the format of schemes of delegation (as there was in the draft regulations) but where a scheme is to be made then the authority are to send a copy of the scheme to Scottish Ministers and they are not free to adopt the scheme until it has been approved by Scottish Ministers. There appears to be no specific timescale within which approval is to be given. Once the scheme has been made however it is to be published on the internet and made available in public libraries and at Council offices.

Local Review Bodies

Appeals from delegated decisions will no longer be to the Scottish Government (in reality the Department for Planning & Environmental Appeals) but rather to a local review body. This is possibly the most controversial change that was brought about by the 2006 Planning Act.

There are considerable concerns about whether local review bodies are in fact human rights compliant. It is interesting to note that a similar proposal in England was dropped because of such concerns.

Leaving to one side that legal issue (which can ultimately only be determined by the courts) there are practical concerns about the operation of local review bodies. The Government is certainly aware of these concerns. Indeed in the original consultation paper, it commented as follows:- "However the Scottish Government recognises that this significant change must not result in reduction in the quality of the 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".

Local review bodies are to be made up of at least 3 members of an authority and to meet in public. The membership is in itself to a degree controversial. In small authorities (such as East Renfrewshire or Clackmannanshire) identifying 3 members (minimum) and having them trained may be a significant burden particularly when those members for all practical purposes will have to be precluded from other planning decisions. There will also be difficulties where those members have an interest in a planning application within their ward – an issue that becomes particularly complicated with larger multi-member wards. In large authorities however different problems may also arise. A number of local authorities in Scotland act on a local committee basis. It might reasonably be anticipated that members of a local committee will be concerned if their committee has no representation on the local review body.

The regulations set out detailed provisions in relation to how the review body must work, notice to be given and the procedures to be followed. The local review body is to have a discretion to consider whether further representation should be made and how a review is to be conducted. A review apparently may be by means of written submissions, a hearing or inspection of the land (or any combination of these means). The regulations contain detailed provisions about how each process should be conducted. The draft regulations made provision for some form of inquiry process. This has been dropped though the hearing process may involve a degree of questioning and evidence being given.

A particular issue of concern was how local review bodies would be advised in relation to issues. It seems inappropriate that advice should be given by the Director of Planning (on the basis that in effect it was a decision made by him or on his behalf that was being reviewed) or a planning officer who might be a colleague of the actual decision maker. The regulations now provide for the possible appointment of an assessor to advise the local review body. If an assessor is appointed, he/she is to advise in writing after any hearing session upon the matters in relation to which they were appointed. There is nothing in the rules to make clear who can be appointed assessor. It will be interesting to see whether planning authorities turn to the private sector in this regard, though given the restrictions on local authority funding there may be practical restrictions on their ability so to do.

There are also concerns about how matters such as conditions and Section 75 Agreements may be dealt with in the event that a review is successful. Nothing is said in the regulations specifically as to how such matters are to be dealt with though a decision notice requires to specify any conditions which the decision is subject to and if there is to be a Section 75 Agreement to state the terms of this and where such terms may be inspected. Again however there is the practical issue of who is to advise the local authority in relation to these.

Generally speaking the regulations are simpler than the draft regulations. Leaving to one side the issue in relation to human rights, the practical concern is how local review bodies will in fact operate and whether the high standard and quality which the consultation paper referred to will in fact be maintained.

Schemes of delegation come into operation on 6 April 2009 with a view to ensuring that local authorities have schemes of delegation in place in good time for the effective start date for the new appeal system which will be 3 August 2009 (though there will be a delay until applications made under the new system percolate through).

Town & Country Planning (Appeals) (Scotland) Regulations 2008

The second set of regulations which appeared dealing with appeals are entitled "Town & Country Planning (Appeals) (Scotland) Regulations 2008". These make significant changes to the appeal process and will need to be closely followed by anyone who is involved in that process.

Notably the period within which an appeal is to be lodged has been reduced from 6 months to 3 months. When a similar change was made in England the Inspectorate there was swamped with appeals. There are some concerns that this will also happen in Scotland though it may be the current financial position (and a consequent reduction in the number of planning applications) will reduce the impact.

While the regulations make a number of detailed changes regarding how an appeal is made possibly the most significant change however is that the decision as to the format of the appeal will no longer be made by the appellant, but rather by the decision maker (effectively the Directorate for Planning & Environmental Appeals). While there is provision for an appeal to be determined without further procedure once lodged, when this does not happen the decision maker is to decide how the appeal should be dealt with having regard to the terms of the regulations. It appears unlikely that many (if any) appeals will be determined without some further procedure.

The procedures available for determining an appeal are written submissions, hearing sessions, inquiry sessions, inspection of the land to which the appeal relates or any combination of these. In practice it seems more likely in the future that a combination will be used (indeed in the Trump Inquiry some issues were dealt with in writing with the balance in an Inquiry).

Detailed provisions are made in relation to how the different types of appeal processes are to be conducted. In effect the intention is to make the decision maker much more effectively in control of the process.

The rule restricting a precognition to 2,000 words has been retained – there is provision that the decision maker (the appointed person) may authorise a longer precognition. Given some witnesses will be hard pushed to keep their precognition to that sort of length then there may be more reference to reports which contain information which previously would have found its way into a precognition. It appears likely that the decision maker (the appointed person) will not necessarily allow new information to be lodged and in practical terms it is likely that an appeal (whatever process follows) will be more akin to a review of the information before the planning authority than has previously been the case.

The significance of these changes is likely in reality to result from the way in which the new rules are operated by the decision maker. While it is easy to challenge what have the potential to be significant changes, in reality what will be important is that the appellant (whoever they might be) feels that in an appeal context (howsoever run) their case has been properly and fairly considered.

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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