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Rights of Appeal in Planning - A Consultation Paper

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Rights of Appeal in Planning

CURRENT POSITION

Purpose of planning system

2.1 Scottish Planning Policy 1: The Planning System states that the purpose of the planning system is to guide the future development and use of land in cities, towns and rural areas in the long-term public interest. The aim is to ensure that development and changes in land use occur in suitable locations and are sustainable. The planning system must also provide protection from inappropriate development. Its primary objectives are:

  • to set the land use framework for promoting sustainable economic development;
  • to encourage and support regeneration; and
  • to maintain and enhance the quality of the natural heritage and built environment.

Planning policies and decisions should not prevent or inhibit development unless there are sound reasons for doing so.

2.2 Processes should be efficient and effective. They should respect the rights of the individual while acting in the interest of the wider community. The planning system has to make hard decisions, regularly involving choices between competing objectives and priorities. Planning decisions are often controversial and they cannot always be popular.

2.3 There are a number of opportunities for people to participate in development planning and in influencing decisions on planning applications. A few key points about the distinction between the position of applicants and other parties are noted below.

Applicant's right of appeal

2.4 As mentioned in Section 1, an applicant has the right to appeal to the Scottish Ministers against a planning authority's refusal of planning permission, its non-determination of the application or conditions imposed in granting consent. This existing right of appeal should be seen in the context of the introduction of the current system of planning legislation in 1947 which, in effect, had the potential to restrict a property owner's "right" to develop their land. The appeal provision formed part of the planning process to provide appropriate scrutiny of the denial of that right to develop.

2.5 Where a planning application is decided by the Scottish Ministers rather than the planning authority, the applicant does not have a right of appeal against that decision except to the Courts on a point of law (i.e. if it is considered that a legal requirement has not been met). There is no higher authority in our planning system than the Scottish Ministers, and therefore the only scope for challenge is through the Courts. The planning merits of cases or the exercise of legitimate discretion by decision makers are not matters for the Courts to consider.

Position of third parties

2.6 Third parties have no right of appeal against planning decisions. They do however have several opportunities to influence the planning of their areas.

2.7 Planning authorities are under a statutory duty to involve people and communities when preparing structure and local plans (collectively called the 'development plan') and there are also opportunities to lodge objections and any other comments once the draft plans have been published. Where objections are lodged against a local plan and are not withdrawn, the objectors can have their views heard at a local plan inquiry before the council decides how to adopt the plan.

2.8 Everyone has the right to comment on individual development proposals. Observations on any planning application made in good time must be taken into account by the council before it reaches its decision. If that decision is refused by the planning authority and appealed by the applicant, the views expressed by third parties are also carefully considered.

2.9 Some councils hold public hearings when there are objections to planning applications at which third parties can speak and make their views known. There is no statutory requirement for councils to hold such hearings and practice differs between councils. This is considered further in Section 6 of this paper.

2.10 The Scottish Public Services Ombudsman can investigate complaints about administrative failure. Where third parties consider that planning authorities or the Scottish Executive have acted unreasonably or have not properly considered an application, they may ask the Ombudsman to look into the case.

2.11 Like applicants, third parties also have recourse to the Courts to challenge a planning decision on a point of law. This is an expensive process, although in most cases the issues that concern third parties are unlikely to be remedied by judicial means.

2.12 The Scottish Executive carries out public consultations on matters of national planning policy and on planning procedures, such as this consultation. Members of the public are encouraged to respond to these consultations and to influence the development of national policy, on which local planning policies and development control decisions will be based.