Annex E: Declining to Determine Planning Applications
1. Section 39(1) contains discretionary powers for planning authorities to decline to determine repeat planning applications. Where Scottish Ministers have, within the previous 2 years, refused permission on a similar application on call-in or appeal (section 39(1)(a)) and, in the opinion of the planning authority, there has been no significant change in the relevant parts of the development plan or other material considerations since that decision, the planning authority can refuse to deal with the application.
2. The same discretionary power applies where more than one similar application has been made in the previous 2 years and no appeal has been made or has been made but not determined. In these cases the above criterion relating to changes in the development plan or other material considerations relates to the period since the most recent refusal (or deemed refusal) of a similar application.
3. The same criteria for exercising this discretion apply where an application is subject to a right to local review by the planning authority rather than a right to appeal to Scottish Ministers. For example, where a similar application has been refused on local review within the previous two years and there is no change in the development plan or other material considerations, then the planning authority may decline to determine the application.
Applications without the necessary pre-application consultation (PAC)
4. Section 39(1A) requires that planning authorities decline to determine a planning application to which the PAC requirements apply and where the applicant has not complied with those requirements.
5. The planning authority may, before declining to determine an application in these circumstances, ask the applicant to provide such additional information as they may specify. There is therefore some discretion for the planning authority to request additional information to demonstrate that the requirements have been complied with or that some previously missing aspect of required PAC had subsequently been undertaken.
6. When declining to determine an application in these circumstances, the planning authority must advise the applicant of the reasons for their opinion that the applicant has not complied with the PAC requirements. The requirement to decline to determine due to an absence of required PAC does not apply where the applicant has:
- a statement of the planning authority's opinion under section 35A(3) to the effect that the proposal is not in a class of development which requires PAC; and
- submitted the related application within 12 months after submitting the notice seeking the planning authority's opinion, and the proposal does not differ materially from the information provided in that notice.