Reviewing appeals

The new planning appeals system currently in draft regulation form will increase the importance of applicants seeking early advice

The Journal, April 2008, page 49

The Scottish Government has recently published a consultation paper setting out significant proposed changes to the planning appeals system. It invites comment on the next tranche of draft subordinate legislation required by the Planning etc (Scotland) Act 2006 by 9 May 2008.

The reforms are intended to make the process for challenging planning decisions more efficient, without compromising on the high quality service currently provided.

In order to understand the proposed changes, one must first understand the proposed planning hierarchy of “national”, “major” and “local” developments under the draft regulations discussed in the last briefing (Journal, January, 39).

New role for planning authorities

The topic of appeals is intrinsically linked to the reforms which will redefine the role of planning authorities within the system. The intention is that greater use should be made of delegation to officers, allowing elected members to focus their attention on more complex or controversial matters. It is proposed that all applications for local development will be decided at officer level through a new “scheme of delegation”, unless the application is:

• subject to an unresolved statutory objection;
• made by the planning authority or one of its members;
• relates to land in which the local authority has a financial or landownership interest;
• subject to environmental impact assessment;
• significantly contrary to the development plan;
• subject to substantial body of objection; or
• for a class of development mentioned in s 38A of the 2006 Act.

Local reviews

Where an applicant is dissatisfied with a decision taken under a scheme of delegation, they will not be able to appeal it. Rather, they will be entitled to seek a review of the case by the local authority. Each authority will have to establish a local review body (LRB), comprising between three and five elected members, for this purpose. This proposal is one of the most controversial, and concerns have been expressed about the likely independence of such a body.

Grounds of review must be lodged within three months, but it will not be permissible to introduce material not previously before the planning authority, unless exceptional circumstances can be shown. Third parties will be notified, but will not be entitled to make further comment.

The LRB will determine whether a review is to proceed by written exchange or hearing (but not formal inquiry). It may uphold, reverse or vary the decision. The LRB will be entitled to advice and support from local authority planners not involved in the decision under review, and will make decisions in public. LRB decisions will be subject to a further right of “statutory appeal” on points of law only – not in relation to the planning merits of the decision.

Planning appeals

Whilst delegated decisions will be subject to review, all other appeals will be made to the Scottish Ministers. The timescale for appealing will be reduced from six to three months.

As matters currently stand, there are three procedures for determining planning appeals: written submissions, hearing, or inquiry, and the appellant can select their preferred method, regardless of the type of development proposed. This choice is being removed and whilst parties may express a preference, the decision will be taken by the Scottish Ministers. Furthermore, it will be open for an appeal to be pursued by a combination of these three methods.

Similarly to the local review process, the opportunity to change proposals on appeal will be curbed, and it will only be possible to review material that was before the planning authority when the application was determined, unless exceptional circumstances justify otherwise.

Full grounds of appeal will be lodged, to which the local authority must respond within 14 days. Interested parties will be notified but will not be invited to comment further. If an inquiry is to take place, the Scottish Ministers will serve a “procedure notice” specifying the issues to be considered and parties must respond setting out how they intend to present their case. Precognitions will be restricted to 2,000 words in length.

Seek advice

Applicants should be aware of the intended restrictions on their right to decide the method of disposal for their appeal, and their ability to amend their proposals or introduce new information. Applicants will therefore require to ensure that their original application contains all the necessary information. This latter point applies equally to those applications determined under a scheme of delegation. These changes reinforce the importance of seeking early strategic legal advice.

These draft regulations are of considerable practical significance to all involved in property development and make clear the way appeals will be processed in future. Anyone involved in the planning system should familiarise themselves with the contents of this paper.

Caroline F Mair, Senior Solicitor, Planning & Environment, Anderson Strathern