One of the key changes to the Scottish planning system which was the subject of legislation in 2006 and which, for all practical purposes, became fully effective in 2009 was the differentiation amongst different types of planning applications.  The aim behind this differentiation was to try and ensure that the appropriate level of resources was devoted to those applications which merited it – from the perspective of the Government those most likely to help achieve their objective of sustainable economic growth Hierarchy and Schemes of Delegation].

At the top of the tree (so to speak) are national applications where the principle of the project is established in terms of the National Planning Framework (now NPF2) with any subsequent inquiry process being limited to specific aspects of the proposal.  At the bottom of the tree (so to speak) are the wide range of applications which are in effect to be taken out of the need for a formal application as a result of permitted development rights.  In fact the categories of permitted development rights have been amended though further changes are shortly to be made.

In the middle were, and are, 2 categories of developments which local authorities deal directly with, namely major applications and local applications.  Major applications have to go to the Planning Committee and are subject to pre-application consultation.  The relevant statutory instrument (the Town & Country Planning (Hierarchy of Developments) (Scotland) Regulations 2008 - insert link) sets out the different categories of developments which are to be treated as major developments.  Broadly speaking they involve sites in excess of 2 hectares and in relation to housing more than 50 houses or other developments involving (depending on the nature of the development) floor space of either more than 5,000 or 10,000 square metres.  In practice when dealing with an application which may be a major application detailed consideration of the relevant order is appropriate given the way in which the various categories are framed. 

Local applications lie between major applications and those matters which are now dealt with by way of permitted development rights.  In many ways local applications are the most controversial part of the new system because in respect of many local applications the right of appeal from the decision of the "appointed" official (the Planning Officer in question) lies no longer to the Directorate of Planning & Environmental Appeals (DPEA) but to a Committee of the Council – the Local Review Body. 

Each Council has to have its own Scheme of Delegation for the purposes of the Act and while these vary generally speaking they provide for an application which would otherwise be delegated and dealt with by a planning official to be considered by the Planning Committee of the Council (or its equivalent) in circumstances identified in the Scheme of Delegation.  Typically if there are more than a specified number of objections that will result in an application going to the Planning Committee rather than being dealt with on a delegated basis.  If the application is dealt with by the Planning Committee then the ultimate appeal is to the DPEA.  For the vast majority of local applications however the "appeal" route is to the Local Review Body.

Before the legislation came into effect there were considerable criticisms of the local review body system.  Many thought it unfair that a decision made by a planning official ("the appointed officer") should be "reviewed" by a Committee of the Council for which that official worked.  There was certainly comment to the effect that the system was not human rights compliant and it is understood that a similar proposal in England was dropped on such grounds.  The Scottish Government however was robust in its defence of Local Review Bodies indicating that they had received advice that they were in fact human rights compliant.

Despite all the controversy which took place so far there have been no significant challenges to the system and Local Review Bodies now operate in Scotland regularly.  The Scottish Government appear to believe that they are working well.  Despite the absence of challenge there is anecdotal evidence of a level of dis-satisfaction with how they operate, though care has to be taken with that anecdotal evidence as someone who applies for planning permission and is then refused such permission is unlikely to be an unbiased observer.

One issue which however has arisen in relation to Local Review Bodies is the nature of the task to be carried out by the review body – was the decision to be considered on its merits as if the application had been made to the review body or was the review body simply to review what the planning officer had done?

Section 43A(8) of the Act provides that where the person delegated to make the appeal either refuses it, grants it subject to conditions or fails to determine it within the specified period "the applicant may require the planning authority to review the case".  The relevant regulations (the Town & Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2008 – 2008 No. 433 set out how Local Review Bodies are to operate.  Nothing is said however to clarify the approach the local review body is supposed to take.  The legislation makes clear (see Section 43A(5)) that a person making a decision in relation to a Local Plan is to apply the same tests as those which apply otherwise.  In contrast Section 48(1) specifically provides that where an appeal is to Scottish Ministers (or a Reporter in respect of any case delegated by Ministers) they "may deal with the application as if it had been made to him in the first instance".  This makes clear what the process entails – a fresh decision on the merits not just a review of the planning authority's decision.

The Chief Planner on 29 July 2011 issued a letter dealing with this matter indicating that the Scottish Government's position is that a review body should take the same approach in effect as the Scottish Ministers do.  Namely to treat a review case as if it was an application made to them and to consider the application on its merits rather than simply and only carrying out a review of the decision of the appointed officer. 

In an appendix to the letter the Chief Planner accepts that there is nothing in Section 43(A) to mirror the language of Section 48(1) referred to above.  The appendix to his letter suggests that this did not require to be stated however because in effect the application is made and being determined by the planning authority (irrespective of whether made by the local review body or the appointed officer).  The appendix to the letter makes the fair point that the approach advocated in the letter will result in a consistency of approach and suggests there is no reason why an application that ended up before a Local Review Body should be dealt with differently.

This guidance is helpful.  Ultimately the question is one of law however and it will be for the courts to determine whether or not the position of the Scottish Ministers in relation to this matter is correct (albeit no doubt the terms of the letter from the Scottish Government's own Chief Planner will be of weight in any such determination which results).  It is unfortunate that the legislation (despite the length of its gestation period) did not make the matter clear at the outset to avoid any doubt.  There may also be issues about any cases where such an approach has not been taken to date.

It does of course remain to be seen whether or not a challenge to the fundamental fairness of this part of the system often talked about yet emerges.

Planning Agreements

The Chief Planner has also given guidance on another issue in a letter of 25 July.

This letter relates to Planning Agreements Section 75 Agreements).  It deals with the issue of whether the new provisions allowing an agreement to be modified apply to agreements made before the new provisions came into effect.  The Chief Planner makes clear that they can.  While this is entirely logical and sensible the legislation is not clear.  Ultimately it is a matter for the courts, though in this case it is the intention of Scottish Ministers to make a new regulation confirming the position.

Welcome guidance, but again it is unfortunate that the position was not made clear when the subordinate legislation was made – not least because the position was highlighted by some at the time.

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