Rights of Appeal in Planning
WHAT MIGHT THIRD PARTY RIGHT OF APPEAL IN THE PLANNING SYSTEM ENTAIL?
4.1 This section of the consultation paper considers what any new appeal rights might mean in practice and how appeal rights might be defined, as it is in the interests of all concerned for definitions and criteria to be as clear as possible.
4.2 In considering the options, we have been aware of examples of third party rights of appeal either in the UK or other countries. Most countries' planning systems do not have a third party right of appeal. Indeed, some do not have a right of appeal for applicants. Planning systems which do allow third parties a right to appeal follow a variety of models. For example, the New South Wales model allows objectors to appeal against certain large scale developments which are likely to have an environmental impact, which in practice applies mainly to industrial and minerals developments. The Swedish system confers the right on neighbours, who must prove they are affected by a proposal to be allowed to appeal, and the Irish system broadly speaking on those who have lodged a valid objection, but neither of those systems restrict the category of case which may be the subject of appeal. While these models give interesting pointers, they cannot be regarded as immediately transferable to Scotland as they exist in the context of planning systems which are considerably different from our own. For example, the Irish system gives little opportunity for public involvement in development planning; councillors have effectively no involvement in development control decisions; and if an application is not decided within a specified time, planning permission is deemed to be granted (rather than the deemed refusal we have in Scotland).
4.3 The Isle of Man planning system has a third party right of appeal, in the form of a 2-tier "appeal" provision. Planning applications are decided by the Planning Committee of the Department of Local Government and the Environment. Any party who submitted a representation on a planning application can seek review by the Planning Committee of the decision. If no request for review is made within 21 days, the decision is deemed final. If a review is held, there is a further period of 21 days during which an appeal may be requested. If no appeal is requested the review decision is deemed final. Such an appeal is made to the Minister of the Department of Local Government and the Environment and an independent person is appointed to conduct the appeal and report to the Minister who makes the final decision.
4.4 There is a third party right of appeal under the statutory control regime for marine developments in Shetland's coastal area and in designated harbour areas in Orkney. Through Work Licences schemes under Section 11 of the respective Zetland and Orkney County Council Acts of 1974, these councils have the power to grant licences to individuals seeking to construct, place, maintain, alter, renew or extend any works in designated marine areas. These provisions were introduced originally to control oil-related works, but have more recently been used mainly in relation to fish farming. Applicants have a right of appeal against refusal, deemed refusal of a licence or against conditions which the applicant finds unacceptable. A person who has made a valid objection may also appeal to the Scottish Ministers against the granting of a licence or against conditions applied to it. Appeals must be made within 28 days of the date of the decision. There is no subsequent right of appeal to the Court of Session.
Which categories of planning authority decisions could be appealed to the Scottish Ministers?
4.5 The following paragraphs look at the issues raised by the 4 categories selected for consideration by the Partnership Agreement. They are dealt with in turn but an individual application could come within the scope of more than one category. The categories under discussion tend to imply the larger or potentially more contentious cases, but the second and third categories could include some applications by householders.
4.5.1 Cases where the local authority has an interest
- In each of 2001-02 and 2002-03 about 700 proposals were approved by planning authorities in this category. Of these fewer than 5% involved departures from the development plan.
- The existing system recognises the importance of probity in decision-making. Planning authorities are required to notify the Scottish Ministers when they propose to grant permission for a development in which the planning authority has a financial interest or an interest in the land if the development does not accord with the adopted or approved local plan or has been the subject of a substantial body of objections. The Scottish Ministers consider whether they require to intervene. In the last 3 years a total of 319 such cases were notified, of which 21 were called in by Ministers.
- There are circumstances where local authority interest might be seen as extending beyond financial or property interests. For example, if a community planning partnership (and the local authority is a key player here) agrees to a particular course of action which has planning implications, there could be concerns that the local authority had already fettered its discretion and might not be considering a related planning application on its merits.
4.5.2 Cases where the application is contrary to the local plan
- Planning applications must be determined in accordance with the development plan unless material considerations indicate otherwise. Deciding whether an application accords with the plan can be a complicated matter. The authority often has to weigh up a range of relevant policies, some of which may support the development, while others point to a refusal of planning permission. In addition many policies, particularly on issues such as design and conservation, are criteria based and give the planning authority a fairly wide discretion as to how they might be interpreted on a case by case basis.
- Planning authorities are currently required to notify the Scottish Ministers when they propose to grant permission for a development which they consider to be a significant departure from a structure plan approved by the Scottish Ministers or from the provisions of a local plan approved by the Scottish Ministers. This in effect concentrates on departures from the structure plan as it is rare for a local plan to be approved by the Scottish Ministers - most local plans are 'adopted' by the planning authority without Ministers' intervention. On average, around 15 planning applications are passed to the Scottish Ministers each year under this arrangement, of which one or two are called in for Ministers to decide. There is no requirement to notify the Scottish Ministers of departures from an adopted local plan.
- In 2001-02 and 2002-03 about 680 and 650 applications respectively were approved by planning authorities as departures from a structure or local plan. In each year about 1,600 applications were advertised as departures from the development plan which indicates that almost 60% of such applications are rejected. These figures reflect a wider category of case than is envisaged by the Partnership Agreement as it includes developments contrary to the approved structure plan as well as the local plan.
- This category was identified in the Partnership Agreement commitment in terms of the current system of development planning. If any new appeal rights were to apply under this category, it would be relevant to the future 'local development plans' which are to be introduced as a result of the Review of Strategic Planning.
- A development proposal is not necessarily inappropriate because it does not accord with the plan. Even a fairly up-to-date plan may not foresee everything eg fast moving changes in the economy or new national policy. It is not always the age of a local plan which indicates whether it is out of date, but rather the relevance of its policies and guidance. However, we recommend that planning authorities should review plans every 5 years. There are currently 131 adopted local plans covering Scotland. Of these, 70% were adopted more than 5 years ago. Around 20% of the total were adopted more than 15 years ago, with an average age of just under 10 years.
- Many minor forms of development such as householder proposals or minor changes of use may not be covered by development plan policies, or only dealt with in supplementary planning guidance. The plan may contain criteria-based policies which involve an exercise of judgement. Turning the spotlight on approvals contrary to the local plan could have the effect of encouraging more frequent up-dating of plans, but there will always be occasions when planning authorities are up-dating their plan but have to deal with applications in the interim.
- There are also issues around developments which, in principle, may be in accord with the development plan but where the detail of development is controversial. For example, a site may be identified for housing in a local plan but the application for housing may involve a substantially greater number of units than the local community had expected or there may be significant concerns on design which manifest themselves only when details of the development are available. However, as the proposal was in accord with the local plan, the right of appeal for third parties would not apply.
4.5.3 Cases when planning officers have recommended rejection
- In planning, various factors have to be taken into account and balanced. Some may support the development, others may not. There is a judgement to be made and elected members may choose to give more/less weight to a particular consideration and to arrive at a different conclusion from their officials. The current system is, however, transparent in that officials' recommendations are in the public domain, as is the decision of the council. In addition, our intention is to move to a system where councils must give clear reasons for their decisions to approve or refuse applications for planning permission.
- The majority of planning decisions are delegated to officers - on average about 75% of cases.
- Figures on the frequency of applications being approved by elected members against officials' advice are not collated nationally. However, a small sample of planning authorities have provided us with this information, identifying that approximately 0.4% of all planning applications decided in their areas fall into this category (about 1.9% of applications decided by elected members). If this trend were repeated across Scotland, we might expect there to be about 180 decisions each year granting planning permission against the advice of council planning officers.
- It is already the case that, where decisions are made against the recommendations in an officer's report and there is an appeal against the local authority's decision, planning officials may be unable to defend that decision at appeal.
- There are concerns that if a decision contrary to officials' recommendation would trigger an appeal, officials would be under considerable pressure to alter their recommendation and the system would be less transparent.
- There is also some possibility that more experienced councillors could be reluctant to serve on the Planning Committee, where the fear of triggering an appeal might create the impression of officers' recommendations being "rubber-stamped" and the value of councils' planning decisions undermined.
4.5.4 Cases where an Environmental Impact Assessment is needed.
- The Environmental Impact Assessment (Scotland) Regulations 1999 indicate the circumstances in which such assessment is needed. For some types of development it is obligatory (Schedule 1 development). Examples include a crude oil refinery above a specified size and particular types of chemical installation. For another category of developments (Schedule 2 development) EIA is required if the development is likely to have significant effects on the environment by virtue of factors such as its size, nature or location. In these cases a judgement has to be reached on whether EIA is required. The EIA Regulations already provide a framework for making this judgement where there is some doubt about the need for an EIA.
- Around 40 such cases were decided by planning authorities in each of the last 2 years.
- The fact of requiring formal environmental impact assessment does not mean that the development proposal is ill-considered or inappropriate. The EIA may be the means of ensuring that environmental consequences are appropriately mitigated so that a worthwhile development can take place.
- We understand that, in the main, where there is an element of discretion about performing an environmental assessment, developers prefer to undertake EIA to ensure that any permission that is granted is robust and unlikely to fail any subsequent challenge.
- A possible reaction to the introduction of a third party appeal for EIA cases is that developers would lodge proposals which fell just below the relevant thresholds, leading to concerns about the cumulative impact of smaller developments.
If the right of appeal were to be extended to third parties, do you think it should be restricted to all or some of the four categories identified in the Partnership Agreement? Please give reasons to support your views.
Your response to this question will not prejudice any view you express on the principle of widening the right of appeal.
Volume of cases involved
4.6 The categories suggested in the Partnership Agreement could apply to around 650 approvals a year where the planning authority has an interest, fewer than 700 which are departures from the local plan, about 180 where councillors depart from officers' recommendations and around 40 which have had a formal environmental impact assessment. We would expect some duplication in these figures as there would be some applications which meet more than one of the categories. While these grants of planning permission with a potential third party right of appeal represent only 3-4% (around 1,600 cases) of total approvals, their impact on the planning system is better calculated in relation to the current appeal caseload. In recent years the Scottish Executive Inquiry Reporters Unit (SEIRU) has received around 1,000 planning and other appeals annually. Applying a third party right to these categories could more than double the Unit's caseload and would probably involve a greater proportion of large-scale or contentious appeals than at present.
4.7 Appeals are lodged by applicants against around one third of refusals of planning permission. We might expect the rate of appeal by applicants to continue, although some commentators have predicted an increase if third party right of appeal were to be introduced as they expect that applicants would be more inclined to appeal at an early stage against deemed refusal. The thinking is that, if a case is likely to go to appeal irrespective of the planning authority's decision, the applicant is more likely to lodge an appeal at the end of the 2-month period rather than wait until the application is decided some time later, starting the appeal earlier and thereby saving some time in the overall process.
4.8 It is difficult to foresee the rate of third party appeal if introduced. We might expect it to be higher than the rate of appeal by applicants as there are often many third parties in relation to each proposal, any of whom could initiate an appeal. We understand that around 3% of planning decisions are the subject of third party appeal in Ireland, while in Sweden around 15% of adopted detailed plans are appealed by objectors. The categories proposed by the Partnership Agreement concentrate on cases which might be relatively contentious implying that there may be a greater likelihood of the planning authority's decision being challenged. Our parallel efforts to modernise and improve the planning system are intended to increase public confidence. These may avoid the need for some appeals but will not avoid them all by any means.
Which decisions could be appealed to the Scottish Ministers?
4.9 Applicants can appeal against the decision of a planning authority to refuse planning permission or advertisement consent, non-determination of such cases or conditions applied to them. Applicants also have a right of appeal against conditions applied after the periodic review of mineral planning permissions.
4.10 The suggestion of third party right of appeal implies appeal in the categories listed by the Partnership Agreement against:
- planning authority approval of planning applications, but also
- planning authority refusal of planning permission, non-determination of such cases or conditions applied to them;
- planning authority approval of outline planning permissions as well as of full planning permissions in these categories;
- planning authority decisions following the periodic review of mineral planning permissions. Planning legislation provides for the modification or revocation of planning permissions if the planning authority considers that revised operating or restoration conditions are required. The legislation also provides for compensation to be paid to the operator in specified circumstances if the review leads to a restriction of working rights; and
- planning authorities giving prior approval for development under the General Permitted Development Order.
4.11 We consider that, whatever the outcome of this consultation, the following should not come within the scope of third party right of appeal.
- Enforcement. It would not be appropriate for third parties to appeal against what they perceive to be inaction by a planning authority. Apparent inaction might conceal fact-finding or negotiation of resolution. It would not be helpful if an appeal forced a planning authority into inappropriate or premature enforcement action. Genuine inaction may be a factor of resourcing, not incorrect decision.
- A deemed planning permission linked to a consent under the Electricity Act 1989. Such a consent is inextricably linked to the authorisation made by the Scottish Ministers, rather than a planning authority, under the Electricity Act.
- Decisions made under the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984.
Which planning decisions do you think should be capable of appeal to the Scottish Ministers?
Who could appeal?
4.12 If the right of appeal were to be widened following this consultation, we would need to consider carefully which third parties would be able to appeal and whether there should be some restriction or qualifying circumstances.
4.12.1 It could be offered to all members of public. There is potential for a very large number of appeals.
4.12.2 Persons with interest in the land.
- Property rights, including holiday homes, would be an obvious defining factor. The Swedish system of third party right of appeal is based on neighbouring property interests. In Scotland there is a long-held tradition that planning is not concerned with property ownership or value. An owner must be notified when another party applies for planning permission for his land. Despite his property rights he has no right of appeal, although he has the ultimate sanction as his ownership of the land would block any development.
- Neighbours, as defined for neighbour notification? Neighbours too have an obvious interest, but in some cases they may be less affected than someone further afield. For example residents beside a new development may be less affected than those a few streets away who suddenly find themselves on the access route to the development.
4.12.3 Those who objected to the original planning application.
- Such people have already shown an interest in the development proposal in question. This is the Irish and New South Wales model, albeit involving the payment of a fee. Consideration would need to be given to the situation where the scheme ultimately granted permission differed from the original. Some people might be content with the original application, and would therefore not have objected, but could have concerns about the amended design and feel motivated to appeal.
- This option raises the question of whether it would encourage an increase in objections to planning applications if people need to object to secure the right to appeal, in effect reserving their future position.
4.12.4 It could be restricted to "representatives".
- Community councils are often mentioned as possible third party appellants on behalf of the community. Any recognition of community councils as appellants acting on behalf of the community raises different issues from recognising community councils as appellants in their own right, such as whether elections to community councils are sufficiently public to encourage voting by residents thus ensuring that the community council is representative of the wider community. Moreover, not all communities have such a council.
- Other community organisations, such as residents' groups, but they too may not be representative of the wider community.
- Environmental and amenity/heritage organisations. These could be nationally-based or local interest groups.
4.12.5 Other interested parties?
The following are some examples of possible legitimate interests.
- Those with a business interest, eg commercial competitors.
- Statutory consultees such as the Scottish Environment Protection Agency, Scottish Natural Heritage.
- National/local interest groups.
- Councillors who had either been in the minority on the planning committee which made the decision or do not serve on the planning committee.
- Local enterprise companies
- Trades unions
If the right of appeal were to be extended, which third parties should be able to appeal and in what circumstances? Please give reasons for your answer and also, where relevant, explain why you think any of the third parties identified above should not qualify for a right to appeal.
Your response to this question will not prejudice any view you express on the principle of widening the right of appeal.
Do you support, in principle, the introduction of a wider right of appeal in the planning system? Please give reasons to support your views.