Any appeal against refusal of a planning application in Scotland now incurs a significant fee, but issues with the way they have been implemented may give rise to the fees being challenged via the courts.
It has been well documented that the planning system in Scotland (and indeed across the UK) is in desperate need of an injection of resources to ensure it delivers efficient decisions.
With better funding to help process planning submissions and appeals more quickly the hope is it will unlock growth in both commercial and residential property developments and boost the wider economy.
What has been less clear is how cash-strapped governments and local authorities will meet this funding challenge.
The Scottish Government has introduced new charges to try and do so, and as of 9 June 2025 any appeal against refusal of a planning application in Scotland will attract a fee.
And those fees are not small.
The maximum appeal fees are circa £71,000 for a detailed application and circa £36,000 for a PPP.
Those maximum fees would apply even to modest solar farms, small-scale wind farm projects, housing developments of more than circa 550 homes, or non-residential developments of circa 82,000 square metres. A sliding scale applies below those figures.
When the Scottish Government consulted on the possibility of introducing appeal fees it said it did not intend the fees to be calculated on a cost recovery basis.
However, it now appears to want the fees to cover the total costs of running the appeal system.
The Planning Minister has said in the Scottish Parliament that fees need to be “weighted more heavily against larger developments than against SMEs” – suggesting that larger developments are effectively subsidising the cost of determining smaller scale appeals.
That would help to explain the size of the maximum fees - we are not aware of any planning appeal case in Scotland that would be likely to have incurred costs of that magnitude.
Also, somewhat controversially, it appears that there is no intention to require Local Review Bodies to ring fence appeal fees to meet their own costs. Those fees will simply be paid to the Local Authority who will be able to use them for any Local Authority function they choose.
So how did we get here, and what happens next?
Background to introduction of planning appeal fees
The Scottish Parliament has enacted two sets of regulations that introduce for the first time fees for appeals to Scottish Ministers or Local Review Bodies. Both came into effect on 9 June 2025.
The regulations were considered by the Parliament's Local Government Planning and Housing Committee on 27 May.
During that meeting the Planning Minister was questioned on the government's approach to consultation and cost recovery. In answer to a question regarding the impact on SMEs the Minster stated:
“…If we charged for smaller appeals according to how much it costs the system to process them, the cost of smaller appeals would be higher than it is in the proposals that we are taking forward. We recognise that the fees need to be weighted more heavily against larger developments than against SMEs, and that is embedded in the proposals that we are taking forward.”
The clear implication in that statement is that appellants seeking permission for “larger developments” are not only expected to pay for the processing of their own appeals – but also to subsidise the cost of other appeals that might not be able to comply with the principle of cost recovery.
Potential legal issues
In the event of refusal, an applicant for planning permission is entitled to have access to an independent and impartial tribunal.
That right is enshrined in Article 6 of the European Convention on Human Rights and Fundamental Freedoms as applied by the Courts.
The law requires a “reasonable relationship of proportionality” between tribunal fees and the cost of delivering access to justice.
However, in its new fee regime it appears that Scottish Government is not tying appeal fees to the actual cost of determining that appeal.
We have seen no evidence that any planning appeal in recent years has cost anything like the £71,424 maximum fee for appeals related to detailed applications, or even the £35,212 maximum fee for PPP appeals.
The proposed maximum appeal cost is well beyond the likely staffing cost of any planning appeal and there is no obvious legitimate basis for imposing it.
That is particularly so given that there appears to be no ring-fencing of the appeal fee for use in determining the appeal in question or even planning work more generally at Local Authority level, as confirmed by the Planning Minister when asked about the principle of fees during his appearance before the Committee.
The failure to properly consider the need for fees to be proportionate and rationally connected to the policy objective may give grounds for challenge.
There also appear to be legal issues with the consultation process itself.
In the first place, the Scottish Government consulted on the basis that it did not intend to propose that the fee for appealing a refusal of planning permission should achieve full cost recovery.
If the Scottish Government had disclosed an intention to fully recover costs, consultees would no doubt have wanted to know more about how those costs were calculated.
There is in fact no information in the Consultation related to the costs of individual planning appeals or even assumptions about what the costs might be.
Consultations by public bodies must be undertaken in a manner that is fair in a legal sense.
An important part of that duty is the need to make available sufficient information to allow a reasonable reader to understand the consultation document and provide an effective response. Non-disclosure of information can result in a consultation being declared unlawful.
In this case, the Scottish Government consulted without providing any details on what costs of individual appeals or categories of appeal were. It did not tell consultees that it intended to link appeal fees to cost recovery.
It arguably did not therefore put consultees in a position where they could effectively respond.
Are the new fees open to challenge?
Given the issues outlined above, it appears the decision to bring in the appeal fees could be challengeable. Fairness and proportionality of Government action are key principles in any democratic society. There are serious questions as to whether those principles have been applied in this case.
What is certain is that with so much political focus on the planning system and its fitness for purpose the issue of appeal fees look set to be a hot topic for the foreseeable future.
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.
