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Rights of Appeal in Planning - A Consultation Paper

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Rights of Appeal in Planning

POSSIBLE OPTIONS

6.1 This section of the consultation paper considers some options for the way ahead. Based on the considerations in Section 5, it might not be appropriate simply to add further third party rights onto the existing planning system without considering other alterations as part of a package. We would need to consider what, if any, associated measures would be necessary to ensure the planning system is balanced, fair and effective in achieving its purpose. This section sets out some possible packages of changes through indicative models . These range from introducing a third party right of appeal in the circumstances described in the Partnership Agreement to maintaining the status quo on appeal rights.

6.2 These models are based on the principles of fairness, clarity and transparency which are a theme of the current programme of modernisation of the planning system. They also take account of the Executive's wider aspirations for the planning system which have been touched on to some extent in sections 1 and 3.

6.3 Nothing in this paper should be taken as a firm proposal for change. It serves as a means of exploring particular issues to identify a possible way forward.

6.4 Irrespective of whether you support or oppose the principle of widening the right of appeal to third parties, your views on the approaches set out in this part of the paper are important. Comments on any aspect of this section will not be taken to contradict your response to the question about whether we should introduce a third party right of appeal.

Model 1 - new right of appeal for third parties within Partnership Agreement categories

6.5.1 As mentioned earlier in this paper, the Partnership Agreement identified four categories within which new rights of appeal would be considered:

  • where the local authority has an interest;
  • where the application is contrary to the local plan;
  • when planning officers have recommended rejection; or
  • where an Environmental Impact Assessment is needed.

6.5.2 This model suggests retaining applicants' existing right to appeal. It also proposes to introduce a parallel right of appeal for third parties where the proposal or decision meets one or more of the categories listed above. In these circumstances, any person who does not agree with a planning authority's decision could lodge an appeal. However, an alternative could be to limit that right to those people who lodged valid objections with the planning authority during the application process, as is the case in the Republic of Ireland.

6.5.3 To ensure that everyone is clear about their rights in any individual planning case, the planning authority would record what, if any, appeal rights exist, possibly in the minutes of the council/committee meeting and on the formal decision notice. These would be publicly available once the decision was reached.

6.5.4 In lodging an appeal, the appellant would make a clear statement of the grounds on which the appeal is based, in response to the clear reasons for approval, refusal or the conditions imposed by the planning authority when they decided the application. An exception to the requirement for an appellant to state clear grounds of appeal would be where an appeal is lodged on the basis of the council's failure to make a decision on a planning application. In these circumstances the appellant would not then have a statement of grounds for the decision against which to frame his appeal. In such cases the planning authority would be required to indicate whether they would have granted or refused permission within a set period of the appeal being lodged.

6.5.5 Any amendments to the appeal process to be made as a result of other aspects of our modernising planning agenda would also be relevant to third party appeals. For example, we said in Your place, your plan that we intended to reduce the period within which an appeal can be lodged from six months to three months, and this would apply equally to all appeals.

6.5.6 The procedure for third party appeals would mirror that of the current applicant appeals, in that they would be lodged with the Scottish Executive Inquiry Reporters Unit, and the vast majority would be decided by Reporters under delegated authority from the Scottish Ministers. Appeals would be decided following either the written submissions, hearing or public local inquiry processes. The consultation paper Modernising Public Local Inquiries, published by the Scottish Executive in July 2003 sought views on proposals to make the inquiry process more efficient and less intimidating. That paper also raised the question of whether the main parties to a planning appeal (i.e. currently the developer and planning authority) should retain their 'right' to an inquiry or whether the Scottish Ministers should decide whether an inquiry or hearing was necessary. A number of procedures for such a decision by Ministers were outlined. The resource implication of the current provisions for inquiries and hearings is of course relevant to the present consultation, but the issue is not being considered in any detail in this paper as it has already been the subject of that earlier consultation.

Particular issues to consider on third party appeals

Multiple appellants

6.5.7 On some occasions there would be more than one person or body seeking to appeal against a single planning decision. This could be several third parties. It is also conceivable that a developer and a third party could appeal against the same decision, for example where an applicant appeals against conditions attached to a planning permission while the third party appeals against the decision to grant consent.

6.5.8 This raises the question of how many appeals there could be against a single decision. In the Republic of Ireland, the first 'third party' objector to lodge an appeal against a decision is the 'appellant' and any other objectors wishing to become involved take on the role of 'observers', who can make observations on the appeal. However, if the appeal is subsequently withdrawn by the 'appellant', no further action is taken and the original decision made by the planning authority stands, irrespective of the remaining interests of the 'observers'.

6.5.9 We consider that the way to handle a multiplicity of appeals against a single planning decision would be for the reporter to undertake a general review of the original decision taking all appeal submissions into account. Withdrawal of an appeal by any party would not affect the right of the other parties to continue their appeals.

6.5.10 There could be complications however for the calculation of appeal fees or any claim for an award of expenses (see below), where there are a significant number of main parties to an appeal. There would also be implications for the administration of the process set out in the Inquiry Procedure Rules as regards exchange of statements etc, which would be more complex if all parties to an appeal had equal status.

Fees to object and to appeal

6.5.11 Applicants pay a fee to the relevant planning authority when they apply for planning permission. There is no additional fee to appeal against the subsequent decision. This fee can range from £110 for minor developments such as an alteration to a dwelling house to a maximum of £11,000 for a housing or commercial development or £16,500 for a waste or mineral development. The fee is intended to contribute to or cover the administrative cost of processing the application.

6.5.12 Third parties do not currently pay a fee to make representations on a planning application, even though there is a cost to the planning authority in addressing the comments made. However, an appeal by a third party would generate a new procedure on a particular case, which would involve a cost to both the applicant and the planning authority, as well as to the Scottish Executive. We therefore need to consider whether it would be appropriate for third parties to pay fees in planning cases.

6.5.13 Again, to draw a comparison with the system of third party appeal in the Republic of Ireland, there is a fee of €20 to submit comments to the planning authority on the original application. There is also a fee of €200 for a third party to lodge an appeal against the subsequent decision plus €90 to request an oral hearing, or €50 to become an "observer". This compares with a fee for an applicant appeal of €200-600 with up to €1,800 for unauthorised commercial development appeals.

6.5.14 There would be a cost to the public purse in processing any appeal, particularly one lodged by a party who has not contributed to that cost. Appeal fees similar to those in Ireland would most certainly not cover the administrative cost of an appeal. However, it would be counter-productive to allowing members of the public a right to challenge planning decisions if any fee was excessive and therefore effectively excluded many members of the public from exercising their right.

Q9

Should a fee be payable to object to a planning application and/or to lodge an appeal against a planning decision? If so, what do you think would be an appropriate level of fee?

Awards of expenses

6.5.15 Parties involved in planning cases are normally expected to cover their own expenses. However there is an existing procedure whereby one party can be ordered to meet all or some of the expenses of another, on the grounds of unreasonable behaviour which has caused unnecessary expense. This is detailed in the Scottish Development Department Circular 6/1990, which notes that an award of expenses is made where:

This unreasonable conduct has caused the party making the application [for the award of expenses] to incur unnecessary expense, either because it should not have been necessary for the case to come before the [Scottish Ministers] for determination or because of the manner in which the party against whom the claim is made has conducted his part of the proceedings.

6.5.16 In the past, developers and planning authorities have rarely claimed expenses against third parties. However, it may be that they would be less likely to maintain that position where the appeal, and therefore the expense, had been generated by the third party appellant.

6.5.17 The amount payable could be significant, taking into account consultants' and legal fees etc. This raises similar issues to that of appeal fees above - but potentially on a much larger scale - should third parties feel priced out of taking up their right to appeal for fear of a need to pay expenses. On the other hand, it is important to remember that costs are awarded only in the case of unreasonable behaviour. An award is not associated with the success or failure of the appeal. However the threat of such action for people unfamiliar with the system could be a significant disincentive.

6.5.18 The cost to the Executive, and thereby to the taxpayer, in dealing with an appeal can also be significant. The Scottish Executive has powers to recover its own expenses in planning cases, although these are not currently exercised. The consultation paper, Modernising Public Local Inquiries, asked whether Ministers should use their power to recover costs where an appeal has been delayed or withdrawn after the inquiry arrangements have been made. This question is also relevant in the context of wider rights of appeal.

Decision-making roles for Ministers and Reporters

6.5.19 In existing practice, reporters from SEIRU are appointed by the Scottish Ministers to decide the vast majority of planning appeals under delegated authority. Only a very small number of appeals are 'recalled' for a decision by the Scottish Ministers (in 2002-03 only 11 out of 651 planning permission appeals). In a delegated case, the Reporter will reach a conclusion and issue a decision on the appeal accordingly. Where an appeal is recalled, once the Reporter has reached that conclusion, he/she will submit a report to the Scottish Ministers, who will then consider the Reporter's findings and recommendation before reaching their own decision. In the past, Ministers have mostly accepted the Reporters' recommendations, but there have been exceptions.

6.5.20 One issue for consideration is whether all appeals should be decided by SEIRU, without the Scottish Ministers having any influence unless as a participant (or even appellant) in the case. This would shorten the timescale for those appeals which would otherwise have been recalled by the Scottish Ministers, but it would remove the direct role of elected representatives in such decisions.

6.5.21 SEIRU is part of the Scottish Executive Development Department, though its staff act independently in exercising their casework and inquiry functions. If SEIRU were to make decisions on all appeals without influence from the Scottish Ministers, this raises a series of issues about the legal status of the Inquiry Reporters Unit. These issues include: whether SEIRU should be constituted as an independent body and, if so, what form that independent constitution would take, to whom would it be accountable, how would it be managed and how would reporters be appointed.

Q10

Should the Scottish Ministers retain their role in deciding particular planning appeals, or should SEIRU decide all appeals?

Model 2 - Continue with ongoing programme of modernisation of the planning system without introducing a new appeal system

6.6.1 It remains an option that we retain the current approach to appeal rights. Third parties would thus not acquire a right of appeal against planning decisions.

6.6.2 This is not to say that there would be no change. As outlined earlier in this paper, the Executive has a continuing programme of modernisation of the planning system in hand. A decision not to alter the right of appeal should be seen in the context of changes such as those set out in the White Paper on public involvement in the planning system, Your place, your plan, in the consultation on Modernising Public Local Inquiries and in the proposals for modernising development planning. Proposals for change in relation to public participation and influence in the planning system include:

  • Setting up local planning forums to encourage discussion and build up local interest and expertise on the full range of planning issues in an area.
  • Placing the responsibility to notify neighbours of development proposals on planning authorities, rather than the existing system of relying on applicants to do this.
  • Extending the timescale for people to comment on planning applications from 14 to 21 days.
  • Restricting the scope for planning authorities to deviate from a reporter's recommendations following a public inquiry into objections to a local plan.
  • Reducing the adversarial nature of planning inquiries and supporting greater use of the less formal 'hearings' process instead.
  • Requiring action plans to be prepared for each development plan, which will set out how the plan will be delivered and provide greater transparency for communities and other stakeholders.

6.6.3 The rationale for this approach is that, through ongoing reform of the planning system, the Executive is already addressing the underlying issues of confidence in the development plan and in the ability of the public to contribute to the decision-making process. This model therefore suggests that the ongoing work to modernise the planning system and improve public participation could continue without the need to add new rights of appeal.

Model 3 - No new appeal system. Introduction of mandatory public hearings prior to determination of planning applications and additional requirement to notify the Scottish Ministers

6.7.1 This model adds 2 features to those outlined in Model 2. The introduction of mandatory hearings is a further response to concerns expressed by some members of the public about their ability to contribute effectively to the decision-making process. The strengthening of the notification arrangements in relation to development plan departures recognises concerns about the extent to which the public can have confidence that the development plan will guide planning decisions.

Introduce a statutory requirement for councils to hold hearings in defined circumstances.

6.7.2 As mentioned in section 2 some councils already hold public hearings into certain planning applications as a matter of good practice to aid their understanding of the issues before them. These hearings are not required by law, but can be held at the discretion of individual councils. Under this model we suggest that hearings should be mandatory. As hearings are resource intensive, it would not be possible to hold them for all applications. To ensure consistency of practice the circumstances in which such hearings would take place would be established at a Scotland-wide level. The aim of this proposal is to ensure that developers' and third parties' views are fully expressed and that everybody can have confidence in the process which led to a decision, no matter what the eventual decision may be. In putting this forward as an option we are aware of concerns that hearings may not add enough value to the process to justify the resource demand of introducing them on a routine basis. We would be grateful for views on this.

Code of practice for public hearings

6.7.3 There is currently no standard procedure for hearings and practice varies throughout Scotland. If hearings were mandatory, a Code of Practice would be introduced to ensure consistency of process by all councils. This would be worked up on a Scotland-wide basis and would draw on current good practice and would be likely to cover aspects such as who is eligible to make representations at a hearing, time limits for parties to state their case, grouping participants to avoid unnecessary repetition of arguments and arrangements prior to, during and following committee hearings.

Q11

Would the introduction of mandatory public hearings in defined circumstances increase public confidence in planning authorities' decisions?

Extend notification arrangements to include development plan departures

6.7.4 In planning, the presumption is that decisions are made in accordance with the terms of the development plan, unless other material considerations outweigh the plan. People often find it frustrating that decisions are being taken which do not accord with the development plan. This raises definitional issues in that an application may seem to be supported by some policies of the development plan but be out of accord with others and a judgement has to be made about whether on balance it is a departure from the plan.

6.7.5 Planning authorities must notify the Scottish Ministers where they resolve to grant planning permission in certain circumstances, including where a development marks a "significant" departure from an approved structure plan or a local plan approved by the Scottish Ministers. This allows Ministers the opportunity to consider whether or not to 'call in' an application from the council and decide it themselves. There is however no need for a council to notify an application either where it does not consider the departure to be 'significant' or where the proposed development is a departure from a local plan which the council adopted itself (ie. it did not require the approval of the Scottish Ministers). This model raises the question of extending the terms of the notification procedure to include all development plan departures.

6.7.6 At present the Scottish Ministers generally call in planning applications where they raise issues which Ministers consider are of national significance. The current Notification Direction is designed with that in mind. If we widened the provision to take in all cases where planning authorities are minded to grant approval to applications which depart from the development plan - around 650 a year - this implies that Scottish Ministers would be considering calling in cases where there is no issue that needs consideration at national level but where there is sufficient doubt about the justification of the authority's decision to warrant further scrutiny. This is a significant shift from the current principles of notification and reasoning for Ministerial call-in.

Q12

Would extending the circumstances in which the Scottish Ministers are notified, to include all development plan departures, sufficiently address concerns about decisions being made by planning authorities against the terms of development plans?

Model 4 - New appeals system and related changes

6.8.1 This model would involve the introduction of a right of appeal for those who objected to the planning application and would make associated changes to the applicant's right of appeal. We propose 2 possible approaches to this model. First we describe an approach which offers a right of appeal which is subject to a sift to ensure that the case is admissible. Next we set out an alternative approach in the form of a right of review before a planning authority's decision is confirmed. This would offer the same level of access to the appeal system to both applicants and objectors. The objectors to whom this right would apply would include agencies such as SEPA and Historic Scotland, divisions of the Executive and neighbouring local authorities. Finally we then set out a package of other associated changes to the planning system.

6.8.2 With the potentially very significant costs outlined in section 5, there might be a case for introducing an initial screening process for appeals. The primary considerations for screening would be the categories of application outlined in the Partnership Agreement along with related considerations. There may also be other reasons why appeals could be screened out, such as those in relation to development of urgent and strategic importance. Any screening process in relation to the individual merits of any appeal would need to be supported by clear criteria and guidance on its use.

6.8.3 This model addresses related policy changes to the circumstances in which inquiries would be held and to the Notification Direction. The associated changes are partly intended to release some of the resources which would be required to support additional appeals and which are unlikely to be obtainable by recruitment and partly because a fundamental change of this nature is bound to require consequential policy changes.

6.8.4 Under this model, all planning appeals (whether they be applicant or objector appeals) would be lodged with the Scottish Ministers through the Planning Divisions of the Scottish Executive, rather than with SEIRU as they are at present. Stage 1, the screening stage, would be administered by the Planning Divisions on behalf of Ministers. Only appeals which proceed to Stage 2, full consideration, would be considered by SEIRU. We propose separating the screening stage from the full consideration to ensure that users of the system have confidence that the decision on screening is not perceived to presuppose any particular outcome to the appeal. The fact that an appeal proceeds to stage 2 is not necessarily an indication that it will be successful.

6.8.5 The following paragraphs set out a possible new procedure for planning appeals. We are aware that this package may seem complicated as the explanation is fairly detailed.

Stage 1 appeals - the screening decision

6.8.6 The decision on whether an appeal should move to stage 2 would be based on the categories of case set out in the Partnership Agreement, ie:

  • where the local authority involved has an interest;
  • where the application is contrary to the local plan;
  • when planning officers have recommended rejection; or
  • where an Environmental Impact Assessment is needed.

The categories were written with third parties in mind. For them to operate as screening criteria for all appeals, they should be amplified by related considerations to ensure that their application would impact equitably on applicants and objectors.

6.8.7 As under existing arrangements the appellant would notify the planning authority of the appeal at the same time as lodging it with the Scottish Ministers. Other interested parties would be advised of the appeal by the planning authority. The appellant would make a clear statement of the grounds on which the appeal is based, in response to the clear statement of the reasons for the planning authority's decision, unless the appeal were against a deemed refusal.

6.8.8 All interested parties would have the opportunity to provide further comments in relation to the grounds of appeal stated by the appellant.

6.8.9 Once all comments are received, the Scottish Ministers would consider whether the appeal should proceed to Stage 2 for further consideration.

6.8.10 Clear guidance would be issued by the Scottish Ministers, setting out their policy on circumstances where an appeal is likely to proceed to Stage 2. This would serve as a guide without being prescriptive as it is likely that a number of criteria could apply to an individual appeal and their interrelationship would have an impact on whether the appeal proceeded to stage 2 for full consideration. Examples of possible criteria follow to illustrate how screening criteria might operate in relation to the terms of the Partnership Agreement categories.

  • Where the local authority involved has an interest. An authority might be perceived to have an interest which would encourage it either to approve an application or to refuse it because of the likely impact on the council's own financial or land interests. Appeals of this kind would be likely to proceed to Stage 2 unless it was apparent that the council's interest was minimal.
  • Where the application is contrary to the local plan. For the purposes of screening we propose to look instead at "whether" the application is contrary to the plan. An appeal against approval contrary to the plan or against refusal of an application which is in line with the plan would be likely to proceed unless there were evidence that the plan is significantly out of date and/or that material considerations, such as wider economic, environmental or social objectives are relevant to the decision. It would be worth considering whether this category should be widened to refer to applications contrary to the development plan as a whole to recognise the fact that structure plans and local plans do not tend to be reviewed simultaneously and may be out of line with each other in some respects.
  • When planning officers have recommended rejection. For the purposes of screening we would look instead at whether councillors have reached a decision contrary to officers' recommendations to ensure that applicants had the same right of appeal as objectors.
  • Where an Environmental Impact Assessment is needed. Appeals against grants of planning permission would be likely to proceed if there were unresolved issues from the EIA. Correspondingly an applicant's appeal against refusals would be likely to proceed if it is evident that the EIA was satisfactory and there were no unresolved issues.

6.8.11 Applying these criteria would allow people the right to appeal in circumstances set out in the Partnership Agreement, but would not guarantee that it proceeded to full consideration. Such criteria would have to be used with care to avoid negating the right to appeal but would allow the screener to reject cases where, for example, the application was only marginally out of line with the development plan and where other material considerations had great force or where an EIA had been carried out and showed no cause for concern.

6.8.12 Other criteria which might be relevant include the following.

  • The council has not reached a decision despite having all necessary information (deemed refusal).
  • The reasons for a decision are not supported by the evidence set down in the council's decision notice and report.
  • There may have been a flaw in the process, such as not carrying out the required consultation or notification.

Q13

Would it be appropriate to introduce a screening process for planning appeals? Please let us have your comments on relevant screening criteria.

Stage 2 appeals - full consideration

6.8.13 By the time an appeal was passed to SEIRU for Stage 2, it is expected that all relevant information would have been submitted. SEIRU would proceed to arrange a site inspection, hearing or planning inquiry as necessary. The vast majority of appeals would, as at present, be conducted by means of written submissions without the need for a hearing or inquiry, subject to the conclusions reached on the option proposed in the Modernising Public Local Inquiries consultation paper on the availability of inquiries or hearings.

Timetables

6.8.14 A timetable would be set for lodging appeals and other comments, and targets set for decision-making, to ensure efficient processing of appeals at both stages. Timetables are suggested below.

Stage 1 timetable

  • Appeal to be lodged with Scottish Ministers (and copied to the planning authority) on standard form with full documentation and grounds of appeal fully stated within 28 days of the date of the planning authority's decision. Following consultation on public involvement in planning, we intended to reduce the period for submission of an appeal by an applicant from 6 months to 3. The potential for delays if there were a wider right of appeal leads us to propose a shorter deadline of one month for all appeals.
  • Copied to others with an interest to reach them within 7 days. At present notification of an appeal has to be sent to other interested parties within 14 days, which leaves them 14 days to send in any further comments. We propose this change because those parties would then have 21 days to respond. This would be in line with our intention to allow 21 days to comment on planning applications.
  • Views of other interested parties to be lodged within 28 days from notification date, ie the date on which the appeal is lodged with the Scottish Executive.
  • Scottish Executive to set performance targets for consideration and decision on Stage 1 appeals, e.g. to decide 80% within one month; 100% within two months.

Stage 2 timetable

  • SEIRU would set performance targets for consideration and decision on Stage 2 appeals based on the method of determination.
  • The right to challenge a decision in the Courts, on a point of law only, would remain (6 weeks).

6.8.15 The above description of this model assumes that an application would be determined and could subsequently be the subject of an appeal by the applicant or by objectors or conceivably both. An alternative approach to this model would be to require planning authorities to notify the applicant and objectors of their decision on the case. The decision would not have immediate effect but would be suspended for 28 days. During that time parties would have an opportunity to request the Scottish Ministers to review the proposed decision and would require to state clear grounds for that request. If no party requested review, the decision would take effect at the end of the 28 day period. If such a request were received, the planning authority would forward the case papers to the Planning Divisions. These would contain the full views of the other parties. This would provide an alternative approach to the stage 1 procedure already described and Planning Division would consider whether the case required further consideration in stage 2.

Multiple appellants, fees, expenses and decisions by Ministers

6.8.16 The issues raised in Model 1 regarding multiple appellants for a single case, the payment of a fee, awards of expenses and the role of the Scottish Ministers in deciding appeals (paragraphs 6.5.7 to 6.5.21) are also relevant to consideration of this model. Some modifications might be needed to accommodate them to this different model.

Withdrawal of right to appeal

6.8.17 We also need to consider whether there is a case for exempting certain types of cases from a right of appeal for third parties, or perhaps also for applicants. For example a geographical area could be designated as being of strategic importance, eg. for economic reasons, for regeneration or for achievement of the National Waste Strategy. Alternatively, the appeal right could be withdrawn only for certain categories of development (e.g. national security or vital economic development).

6.8.18 Planning authorities would need to carry out thorough public consultation before any final decision is taken on withdrawing or restricting appeal rights, arguably this would have to be through the development plan, and would need to have the designation confirmed by the Scottish Ministers. This provision would be used only on an exceptional basis, as it, combined with the proposal set out below to remove the Notification Direction, would cut down on existing checks on applications.

Q14

Are there circumstances in which any right to appeal against planning decisions should be withdrawn? Please give details.

Related changes to other parts of the planning system

Remove right to an inquiry into objections to local plans

6.8.19 Development plans set out a framework for future development and use of land in their areas, including what development and how much development may take place, where it will take place and where it is unlikely to be allowed. Under existing arrangements, the development plan is made up of two parts - the structure plan and the local plan. These plans are the basis for decisions on planning applications. Planning legislation requires that all planning decisions are made in accordance with the development plan for the area, unless material considerations indicate otherwise. Objectors to local plans already have a statutory right to have their objections heard at a local inquiry or hearing.

6.8.20 Following the Review of Strategic Planning, the Executive intends to make certain changes to the development plan process. In particular, we intend to discontinue the two-tier system of development plans in many parts of Scotland. Instead, we will replace structure plans with City Region Plans for Scotland's four largest cities and their surrounding areas only. The rest of the country will have single-tier development plans.

6.8.21 At present, the local plan inquiry (including the administrative arrangements for the inquiry) represents a significant period of time in the planning process. This brings costs, not just to the local authority but also to other participants. It is however considered to be an important aspect of public participation in planning. However, taking into account the other options in this paper, which includes allowing third parties a right to appeal in certain circumstances, there is a question of whether it would remain appropriate to make a public examination of development plans mandatory where objections have been made.

6.8.22 The intention is that objections to either strategic or local development plans will be considered by a reporter to provide scrutiny independent of the planning authority. The consultation on Making Development Plans Deliver proposes that the reporter should be given the discretion to decide whether an inquiry or hearing into the plan is necessary. We consider that that principle makes sense in the related context of widening the right of appeal and our proposals are based on the premise that in future the reporter and not the objector would decide whether an inquiry should be held. This would bring about quicker reviews of development plans and would ensure that resources necessary for appeals were not being absorbed unnecessarily in inquiries into those plans. The Scottish Ministers would issue guidance for determining whether an inquiry or hearing was necessary.

Revoke Notification Direction

6.8.23 Under existing procedures councils are required to notify the Scottish Ministers that they intend to grant planning permission in certain circumstances before permission is granted. The terms are set out in Scottish Development Department Circular 4/1997: Notification of Planning Applications, as amended. This allows Ministers the opportunity to consider whether or not to 'call in' an application from the council and decide it themselves.

6.8.24 If planning permission, which has been granted by a council, can be the subject of an appeal, it might be unnecessary to retain this notification procedure, or at least some of the categories which trigger the procedure could be withdrawn. For example, where bodies (e.g. the Scottish Environment Protection Agency) have maintained objections to a proposal, they would have the right to appeal against the decision should the council grant planning permission. An appeal right would also have to be granted to other parts of the Executive whose intervention would at present trigger notification, eg Trunk Roads Division and Historic Scotland, and to neighbouring local authorities. It would not be our intention that the influence of such bodies, who are statutory consultees for planning applications, would be diminished.

6.8.25 The present arrangements are based in the belief that it is preferable to address contentious issues as early as possible in the decision-making process. There is a considerable overlap between the type of cases notified to Ministers under the Notification Direction and the categories proposed by the Partnership Agreement for consideration of new rights of appeal. If new rights of appeal were introduced alongside the existing Notification Direction, the same issues could potentially be investigated twice in the course of processing an individual case, which would not be a good use of resources. For this reason we would propose revoking the Notification Direction if the terms of this model were to be introduced. In proposing this, we are well aware that some planning decisions will not be the subject of appeal and would therefore not receive the scrutiny that the Notification Direction currently provides nor that which would be provided by the use of the new appeal right.

Permitted development

6.8.26 There is a long-standing provision in the planning system that certain types of development are granted permission by Scottish Ministers without the need for a planning application to the planning authority. Such classes of development are defined in The Town and Country Planning (General Permitted Development) (Scotland) Order 1992. The purpose of this system of 'permitted development' is to grant a general planning permission across Scotland for developments which, because of the nature of the proposals, would almost without exception be granted. This allows resources for the planning service to be allocated to other work requiring more detailed consideration and ensures that businesses and individuals are not hampered unnecessarily by the planning system. There is a wide range of types of development, meeting specified limits or circumstances, which fall within the definition of permitted development, such as:

  • house extensions and alterations.
  • gates, fences and walls.
  • agricultural and forestry buildings.
  • repairs to sewers, pipes, cables etc.
  • developments by local authorities.

6.8.27 We propose that a wider right of appeal should be accompanied by a provision allowing planning authorities to designate further classes of development in their areas which would no longer require to be the subject of planning applications. For example a planning authority might consider that it could safely allow permitted development rights to extensions to houses as long as they did not exceed 36 square metres or 30% of the original floor area instead of 24 square metres and 20% as at present. Again, this would free up resources to accommodate new work on appeals, both because some development which is currently the subject of planning applications would no longer need to be applied for and because, as a consequence, they would not be subject to appeal.

Q15

(a) Please give us your views on each of the models outlined in this section.

(b) Can you think of any alternative package of changes to the planning system to ensure a system which is both fair and effective.

(c) How would each of these models (and any other package you suggest) impact on the resources and objectives of you or your organisation?