Appealing to Scottish Ministers
There are a number of circumstances where an appeal can be made to Scottish Ministers on land use planning matters. These can be grouped into two broad categories:
- certain decisions made on applications: where the applications has been made to the planning authority but the person who made the application doesn’t agree with the decision (or the planning authority hasn’t made a decision). The most common of these appeals follow from applications for planning permission and listed building consent
- formal notices requiring action: where the planning authority has served a notice requiring somebody to carry out a specific action, or for particular activities to be stopped. These include appeals against several types of enforcement notice relating to alleged breaches of planning control, and notices requiring action to improve the condition of land
Making an appeal to Scottish Ministers
For most case types, the people who are entitled to make an appeal to the Scottish Ministers is limited to the person who made the application to the planning authority, or, in the case of notice types appeals, any person who is named on the notice served by the planning authority, or any other person with an interest in the land.
The exception to this is where an appeal is being lodged in relation to a high hedge application – in these cases the people who can make an appeal are either the person who owns the land on which the high hedge is situated (high hedge owner), or the person(s) whose property is affected by the high hedge (also known as the high hedge neighbour).
Cannot be appealed to Scottish Ministers
Having the right to challenge a decision on a planning application does not always mean making an appeal to the Scottish Ministers. When a proposal is for a small-scale ‘local development’ – and it falls under the planning authority’s scheme of delegation’ for local developments – the responsibility to decide the planning application sits with a planning authority official, rather than elected councillors. In those cases, the planning authority official’s decision can be challenged by the person who made the application by requesting a review by the planning authority’s local review body, and not by making an appeal to the Scottish Ministers. The local review body is made up of a group of three or more elected members of the planning authority.
The planning authority’s decision notice or other correspondence about the application will make it clear whether the right to challenge the decision is by local review or by appeal to Ministers. Information about where an appeal should be lodged, the scheme of delegation, or about requesting a local review, can be obtained from the planning authority.
There is one exception, where a local review case can be appealed to the Scottish Ministers:
- if an applicant asked for a local review because the planning authority official had not decided the planning application within 2 months; and
- the local review body then also failed to make a decision within a further 3 months
Lodging an appeal
The person making the appeal, and also the planning authority, 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 planning authority must provide its full response within 21 days, and appellants can only respond to that if there are new issues raised by the planning authority in its response which were not raised in the planning authority’s earlier decision notice on the related application.
The Town and Country Planning (Appeal) (Scotland) Regulations 2013 (link provided in section 2) set a structured timetable with clear deadlines for people to provide information to the reporter.
When an appeal is lodged it is allocated to a case officer, who is responsible for administrating all documentation and submissions in relation to a case, maintaining the file for the reporter and publishing documents to DPEA’s website. They will be your point of contact throughout the case and all correspondence will be with them.
Timescales for considering appeals
We aim to ensure that all of our work is dealt with as swiftly as possible. Scottish Ministers set target timescales in which reporters should determine appeals and expect 80% of appeals to meet the targets. The timescales are set by the method of determination and all begin from date of receipt of appeal, as set out below.
No further procedure – 8 weeks Site inspection – 12 weeks
Further written submissions – 20 weeks
Hearing session – 26 weeks
Inquiry session – 32 weeks
These timescales apply only to cases decided by the reporter, and not to cases ultimately decided by Scottish Ministers.
Participating in an appeal
The opportunities for people other than the appellant and the planning authority to participate will depend on the type of appeal and the procedures being followed. Anyone who has already written to the planning authority on an application, known as interested parties, will have their comments passed onto the reporter (by the planning authority or Scottish Government department) to be considered in a subsequent appeal.
Interested parties will also be informed if and when an appeal is made, will have the chance to give further comments to the reporter and might also be invited to participate in any further appeal procedures. There will normally be a timetable, setting a firm deadline for people to provide their comments. Their comments will also be made available to the appellant and the planning authority, and will be published on DPEA’s online appeal case file. For further information on how your personal data will be dealt with by DPEA, please see section 26.
Matters considered in an appeal
The issues that can be raised and considered in an appeal will depend on the type of appeal. For example, an appeal which is seeking listed building consent will focus on the impact on the listed building. And appeals against notices served by planning authorities (for example, an enforcement notice) have standard grounds of appeal which can be argued. The guidance notes which accompany the appeal forms explain how to state grounds of appeal.
When a planning permission appeal is made, the appellant cannot change the description of the proposed development – it must be the same proposal that was ultimately considered previously by the planning authority, using the same plans. Also, appellants and planning authorities are not expected to raise any new matters in an appeal that had not been available to the planning authority when it dealt with the application – unless they can prove that those matters could not have been raised with the planning authority at the earlier stage, or that there are some exceptional circumstances why they are being raised at a late stage. Where the appellant seeks to vary the proposed development from that considered by the planning authority, they will be advised that variation is not permitted. We will suggest that, should the appellant wish to amend or revise the proposal, then this should be done by making a new planning application to the planning authority.
As a general rule for applications and appeals seeking planning permission, the law requires that decisions are made in line with the development plan for the area, unless there are ‘material considerations’ that outweigh the provisions of the plan. Relevant issues will relate to the development and use of land, and to the development proposed.
Material considerations cover a wide range including Scottish Planning Policy, the National Planning Framework, a proposed strategic or local development plan as well as community plans, the environmental impact of the proposal as well as legitimate public concern or support expressed on relevant planning matters. Further information on what constitutes material considerations.
Reporters can only consider evidence placed before them. They do not actively seek evidence and will normally take evidence before them at face value unless significantly unclear, disputed or clearly factually inaccurate.
Documentation submitted by the planning authority
The planning authority are required to submit the following documentation to the DPEA alongside their response to the appellant’s grounds of appeal.
- a note of the matters which the authority consider require to be taken into account
- a note of which procedure, if any, the authority would wish the appeal to be conducted by (for more information on procedures, please see sections 18-22)
- a copy of any Report of Handling prepared in respect of the application
- full copies of all representations and consultations received in consideration of application
- a copy of the documents (other than those already submitted by the appellant as part of their appeal) which were before the authority and which were taken into account in reaching their decision
- the conditions, if any, which the authority consider should be imposed in the event that the reporter/Scottish Ministers decide that permission/consent be granted
Please note this list is not exhaustive.
The appellant is then given the opportunity to comment on any new matters raised in the authority’s response which had not been raised in the decision notice, and submit any documents or evidence that they intend to rely on in support of such comments.
Once the planning authority’s response to the appeal has been received, and where there are a large number of parties with an interest in a case, DPEA may write to those who submitted representations to the planning authority about the application or representation to DPEA about the appeal to ask them to confirm whether they wish to take part in any further procedure in the appeal, that is, whether they wish to ‘opt in’. Those who ‘opt in’ will be notified of any further procedure in the appeal.
If you are not the appellant, but wrote to the planning authority in relation to the application, you will be termed an ‘interested party’ in the terms of the planning regulations. The planning authority are required to notify all interested parties of the lodging of an appeal within 14 days. Interested parties are entitled to make further representation directly to DPEA within 14 days of receiving notification from the planning authority that an appeal has been lodged.
All representations and consultation responses previously received by the planning authority in relation to the application are sent to DPEA as part of the planning authority’s response to the appeal and the contents will be taken into account by the reporter. Similarly, Scottish Government departments send all received documentation and correspondence to DPEA when referring a case for examination.
It is not necessary to resubmit the same matters to DPEA as you submitted in your representation to the planning authority, you only need submit a further representation where you wish to add further/new information. Your contact details will be added to our case management system for the life of the appeal, and for 12 weeks afterwards (to allow for any judicial review process) before being deleted in line with our data protection policy. Further information can be found in DPEA’s privacy notice.
If you are able, any supporting documentation should be submitted in electronic format rather than hard copy. Submitting documents electronically helps to speed up the appeal process, allows information to be copied easily to others and makes it more cost effective and efficient for all parties involved.
Late representations are usually only accepted in exceptional circumstances, or where it can be proven that the information being submitted could not have been submitted at an earlier stage, and is solely at the discretion of the appointed reporter.
Once the timescale for receipt of representations has expired, all representations are sent to the appellant and planning authority for their comments within 14 days, and are published to the DPEA’s website.
DPEA’s data protection policy ensures that some information is removed (redacted) from your submissions before they are published to the website. The list below is not exhaustive, but some sensitive/confidential information that may be removed from the published version of your representation includes:
- personal email addresses (business addresses will not be redacted)
- personal telephone numbers
- personal financial information
- information relating to police investigations/criminal records
- medical records or personal medical/health information
- information which identifies the location of nesting/den sites of protected species of birds/animals
- where a party indicates that they will be away on holiday, or their house will be empty for a period of time
- party indicates that they are frail/infirm
In addition to sensitive/personal information, case officers will also keep a close eye out for any comments or information that could be liable to cause offence. This can be a very subjective matter and there is no definitive list of what would be liable to cause offence, but some commonly identified comments that could be liable to cause offence are:
- inappropriate reference to other parties
- inappropriate comments about the planning authority – regarding their handling of the case, or about the particular planning officer, particularly if they are mentioned by name
- we usually find that a good indicator of comments that could be liable to cause offence is to consider whether you would be happy to have someone refer to you in a similar manner – if not, it may potentially be liable to cause offence and will therefore be removed from the published document
DPEA’s aim is to ensure that anything that is abusive, indecent, unlawful or liable to cause offence is not displayed on our website. However, individuals must take personal responsibility for the comments that they make and submit.
The measures that are applied to the redaction of personal/sensitive/information that could be liable to cause offence from documentation only apply to the version that is published to our website.
The version sent to the appellant and planning authority for comment, added to the case file, and therefore considered by the reporter will remain unredacted.
It is not possible to submit a ‘confidential’ representation – legislation requires DPEA to share your representation with the reporter, the appellant and the planning authority. No information that is to be considered by the reporter can be kept confidential from the appellant and planning authority. If someone submits something with a request that it remain confidential, they will be written to advising that this is not possible, although we can make sure that it is not published on our website. We will inform them that it is required to be sent to the appellant and planning authority, alongside the reporter and ask whether they are content that we proceed on that basis. If a party is not content with these proposed actions, their correspondence/document is returned to them and not added to the appeal file, nor taken into account in determination of the appeal.
Appeal allocated to a reporter
The vast majority of appeals are considered and decided by Scottish Government reporters. The reporter is appointed by Scottish Ministers to make the decision on their behalf.
A very small number of appeals are not delegated to reporters for decision, but instead are ‘recalled’ by Scottish Ministers who will make the final decision. In those cases, the appeal will still be examined by a reporter, who will then write a report and make recommendations for Ministers to consider before they make their decision.
Appeals and applications that are referred to DPEA by other Scottish Government departments for examination are always decided by Scottish Ministers, such as those cases listed in Section 3.
The reporter appointed to determine/examine the appeal will manage the whole process and consider what action is needed to gather enough information to make a decision. They will make their decision as soon as they are able to do so. However, it is sometimes necessary to obtain some further information on a particular matter before the appeal can be decided. When this happens, the reporter may choose to carry out one or more of these further procedures:
- inspection of the site
- hearing session
- further written submissions
- inquiry session
The reporter will choose the most effective and efficient method for obtaining the information needed. Either a hearing or inquiry session will involve people presenting their case in person in front of the reporter. The reporter will 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 planning authority are entitled to express an opinion on which procedure (or combination of procedures) they think there should be.
Occasionally, depending on the scale and/or complexity of an appeal, more than one reporter may be appointed.
Telephone: 0300 244 6668
Planning and Environmental Appeals Division
Callendar Business Park
There is a problem
Thanks for your feedback