9 How do the processes work?
The procedures to be followed will depend on the type of appeal. The majority of appeals will follow the procedures set by The Town and Country Planning (Appeals) (Scotland) Regulations 2013. But some other appeal types are covered by other, older legislation, and so follow different processes. Whatever the process for any appeal, core principles of fairness and robust decision-making will be at the heart of it.
Some explanation of the different appeal procedures is given in sections 9.1 and 9.2.
9.1 Appeals regulations
(The Town and Country Planning (Appeals) (Scotland) Regulations 2013)
These regulations set out the process for certain types of appeals against decisions made or notices served by a council. These are:
- planning permission appeals
- listed building consent appeals
- conservation area consent
- planning obligation appeals
- good neighbour agreement appeals
- certificate of lawful use or development appeals
- tree works consent appeals
- advertisement consent appeals
- enforcement notice appeals
- listed building enforcement appeals
- conservation area enforcement appeals
- advertisement enforcement notice appeals
- advertisement discontinuance notice appeals
- amenity notice appeals
- tree replacement enforcement notice appeals
These regulations are also used where a planning application is called in for a decision by the Scottish Ministers before the council has completed its own decision on the application.
Under these regulations, the Scottish Government reporter appointed to consider the appeal will manage the whole process and consider what action is needed to gather enough information to make a decision. The person making the appeal, and also the council, will state their full case at the outset. This is called front-loading the system. It is important that appellants raise all relevant issues when they make their appeals, because there might not be another opportunity later. Once an appeal is made, the council must provide its full response within 21 days, and appellants can only respond to that if there are new issues raised by the council in its response which were not raised in the council's earlier decision notice on the related application.
The regulations set a structured timetable with clear deadlines for people to provide information to the reporter. Late information will be returned to the sender and may not be taken into account when a decision is made on the appeal. So it is important that people comply with the deadlines that are set.
The reporter appointed to consider an appeal will make a decision as soon as he/she is able to do so. However, it is sometimes necessary to obtain some further information on a particular matter before the appeal can be decided. Where this happens, the reporter may choose to carry out one or more of these further procedures:
- Inspection of the site
- Further written submissions
- Hearing session
- Inquiry session
The reporter will choose the most effective and efficient method for obtaining the information needed. Either a hearing or an inquiry session will involve people presenting their case in person in front of the reporter. Hearing sessions take the form of structured meetings, while inquiry sessions are normally more formal events similar in nature to cases in the law courts.
The reporter will always ensure that everyone is aware of what is expected of them.
While ultimately it is the reporter's role to decide whether (and, if so, what) further procedure is needed to inform the decision on an appeal, both the appellant and the council are entitled to express an opinion on which procedure (or combination of procedures) they think there should be.
9.2 Other appeal processes
Appeals other than those listed in section 9.1 will follow one of three possible processes:
- written submissions;
- hearing; or
- public local inquiry.
For these types of appeal, the appellant and the council have a legal right to be 'heard' before a decision is made. Where either asks to be heard, then either a hearing or a public local inquiry must be held. These both involve an oral process, where those involved will state their case in person, in front of the reporter. A hearing takes the form of a structured discussion led by the reporter. A public local inquiry is normally a more formal event, where witnesses give their evidence in front of the reporter and can be cross-examined by other parties (normally by their legal representatives), similar to what you might see in the law courts.
As an alternative to these oral sessions, the written submissions procedure is used in most of these cases and is a quicker, simple and normally cheaper method of deciding an appeal. It involves the person making the appeal and the council stating their cases in writing, with an opportunity to comment on each other's statements.
In most of these cases, the reporter will inspect the site in addition to the other procedure used to examine the appeal.
As with the appeals regulations (see section 9.1), there will be a timetable to be followed for people to provide the information they want to be considered in the appeal. Late information will be returned to the sender and may not be taken into account when a decision is made on the appeal.