- 28 Apr 2016
This guidance is relevant to you if:
- you have a right to appeal to Scottish Ministers against a planning decision or other planning action of a local planning authority
- you have an interest in an appeal that has been made to Scottish Ministers by someone else
We have compiled a list of all the forms you can use to appeal to Scottish Ministers.
Terms used in this guide
Appellant – The person or organisation making an appeal to the Scottish Ministers.
Council – In most cases, the local council is the 'planning authority' for its area and so makes decisions on planning applications and other planning matters. But sometimes a 'national park authority' holds the role of the planning authority. For the sake of ease in this guide, we refer to the planning authority as being the "council".
DPEA – The Scottish Government's Planning and Environmental Appeals Division, which handles planning appeals on behalf of the Scottish Ministers.
Reporter – The representative of the Scottish Government who will consider and, in most cases, decide the appeal.
This short guide does not cover every aspect of planning appeals procedures. It just gives an overview of how the appeal system works.
References to other guidance and contact information are given towards the end of the guide.
1. What can be appealed 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:
- Decisions made on applications: where an application has been made to the council but the person who made the application doesn't agree with the decision (or the council hasn't made a decision).
The most common of these appeals follow from applications for planning permission, listed building consent and consent to display advertisements.
- Formal notices requiring action: where the council 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.
2. What 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 fairly small-scale 'local development'– and it falls under the council's 'scheme of delegation' for local developments – the responsibility to decide the planning application sits with a council official, rather than elected councillors. In those cases, the council official's decision can be challenged by the person who made the application by requesting a review by the council'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 council.
The council's decision notice and other letters 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 the scheme of delegation, or about requesting a local review, can be obtained from the council.
There is one exception, where a local review case can later be appealed to the Scottish Ministers:
- if an applicant asked for a local review because the council official had not decided the planning application within 2 months;
- the local review body then also failed to make a decision within a further 3 months;
then that applicant can make an appeal to Ministers.
3. Who can make an appeal?
The right to make an appeal lies only with the person or organisation who either:
- made the application to the council, seeking a consent; or
- covered by that notice.
There is no right of appeal for anyone else to challenge a council's planning decision or action. But there are other opportunities for anyone to get involved and make their views known at the various stages of the wider planning process.
4. How do I make an appeal?
There are several different ways to make an appeal.
ePlanning: online appeal form
You can use the online appeal function through the ePlanning website, which takes you through the various sections of the appeal form, allowing you to add attachments and then send the appeal through to the Scottish Government's Planning and Environmental Appeals Division (DPEA) by clicking on the 'send' button.
Scottish Government website
Appeal forms and guidance notes for all planning and environmental appeals are available to download and then submit electronically, or by post. The forms can either be completed electronically or printed and filled in by hand. They can be e-mailed to DPEA – contact us if you have any questions about sending attachments with your e-mail.
Alternatively, all of this paperwork can be sent by post. The DPEA address and other contact information are given at the end of this guide.
You can telephone or write to DPEA to request paper copies of the appeal form and relevant guidance notes, which will be sent out to you – normally on the day of your request. You can then complete the form and return it to DPEA along with copies of any supporting documents.
Whichever method used, when you make an appeal, you must send a copy to the council at the same time as you send it to DPEA. This is done automatically when you make an appeal through the ePlanning online appeal system.
5. What matters are 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 councils (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.
Planning permission appeals
When you make a planning permission appeal, you cannot change the terms of the proposed development – it must be the same as the proposal that was considered previously by the council, using the same plans. Also, appellants and councils are not expected to raise any new matters in an appeal that had not been available to the council when it dealt with the application – unless they can prove that those matters could not have been raised with the council at the earlier stage, or that there are some exceptional circumstances why they are being raised at this late stage. If the plans are to be revised or something has changed which could lead the council to make a different decision, it might be better to make a new application to the council than to pursue the old plans through an appeal.
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 justify going against that plan. Relevant issues will relate to the development and use of land, and to the development proposed.
6. Timescales for making an appeal
If you are going to make an appeal, there will be a deadline for you to get it to DPEA. The time limit depends on the type of decision or notice being appealed.
For appeals relating to planning applications, the limit is 3 months from the date of the council's decision on the application (or 3 months from the date by which the council should have made a decision). This 3-month appeal period also applies where both a council official and the local review body have failed to make a decision on the application by their deadlines (see section 2 of this guide). Please note however that the appeal must be made within the 3 month period.
For most other consent type appeals (including listed building, conservation area and advertisement consents) the above 3 month time limit applies, but there is no option to go to a local review body, and an appeal cannot therefore be made on such a bodies failure to reach a decision.
If you want to appeal against a notice served by the council (for example, an enforcement notice), you will need to make your appeal before the date that the notice is due to come into effect. This date will be clearly stated on the notice itself.
If you have any doubt about the start and end date for the appeal period, you can find out this information from the council that handled the application or served the notice.
7. Who will decide the appeal?
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 then make the final decision themselves. In those cases, the appeal will still be examined by a reporter, who will then write a report and make a recommendation for Ministers to consider before they make their decision. Ministers do not have to agree with the reporter's recommendation.
8. Can anybody participate in an appeal?
The opportunities for people other than the appellant and the council to participate will depend on the type of appeal and the procedures being followed. People will have already been able to get involved much earlier, by being able to influence the council's decision (or other actions) being appealed. So this very late stage is not the best time to start making views known. Anyone who has already written to the council on an application will have their comments passed on to the reporter (by the council) to be considered in a subsequent appeal.
They 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 join 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 council, and will be published on DPEA's online appeal case file (see section 10 of this guide)
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 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. T his 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.
Once the council's response to the appeal has been received DPEA will write to all those who submitted representations to the council about the application or representations 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.
People who do not 'opt in' may not have the opportunity to participate in further procedure, however, their representations will be taken into account by the reporter. They will be able to follow the progress of the appeal on the DPEA website and will be informed of the outcome of the appeal.
9.2. Other appeal processes
Appeals other than those listed in section 9.1 follow one of three possible processes:
- written submissions; or
- 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 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.
10. Keeping track of progress
DPEA publishes all information and correspondence relating to live appeals on the internet: at http://www.dpea.scotland.gov.uk. This allows you access to everything held on the Scottish Government's file which will be taken into account before a decision is made on an appeal, including any plans, grounds of appeal, the council's response and any other correspondence. The search facility enables you to easily find the appeal file you are interested in.
The website is updated once every day, and so will always allow you to keep track of what stage of the process an appeal is at and what is going to happen next; and also to view the decision on the appeal once it has been made.
For compliance with the Data Protection Act 1998, personal information such as people's telephone numbers, e-mail addresses and signatures are removed from documents before they are published on the website.
11. Can I withdraw my appeal?
If you have made an appeal, you can ask to withdraw it at any time before the decision is issued. You would need to confirm your wish to withdraw in writing to DPEA.
If you do withdraw your appeal, particularly at a late stage, you could be liable to meet some of the council's expenses. More information about awards of expenses is given in section 12.
12. How much does it cost to make an appeal?
There is no fee for most types of appeal. (The one exception is for an appeal against a Hazardous Substances Contravention Notice.)
Everybody who participates in an appeal process is normally expected to cover their own expenses. The appeal procedures support you being able to make your case to the reporter by yourself. If you employ a professional agent though, such as a planning consultant, architect or lawyer, you will normally have to cover their fees at your own cost.
Awards of expenses
The Scottish Ministers (and reporters) have the power to make awards to any party in relation to their expenses, to be paid by another party. Awards of expenses are not made routinely, but they can be made if any individual or organisation has been found to have acted unreasonably over the matter at appeal. If you think, for example, that the council has acted unreasonably and that action has caused you unnecessary expense, you can make a claim for an award of expenses which will be considered by the reporter. T he other side to this is, of course, that if you act unreasonably and in doing so cause another party unnecessary expense, then you may be liable to pay some or all of their costs. It does not follow that the party which 'wins' the appeal will have its expenses paid by another – the test is in terms of how people have conducted themselves. More information about this is available in the Scottish Government's Planning Circular 6/1990: Awards of Expenses in Appeals and other Planning Proceedings.
13. How will I find out the decision?
After the appeal processes are complete, the reporter will prepare and issue a decision notice. This will spell out the terms of the decision and also the reasons for it. The notice will be sent to the appellant and to the council. Everyone who has participated in the appeal will be told about the decision. The decision notice will also be published on the online case file at http://www.dpea.scotland.gov.uk.
14. What will the decision mean?
The reporter will either 'allow' or 'dismiss' the appeal.
Allow the appeal This might mean granting a consent (for example, giving planning permission), contrary to the council's earlier decision. Or it could mean that some or all of the grounds of appeal against an enforcement notice have been successful.
Dismiss the appeal This means that the appeal has not been successful. So if the appeal was made against a council's decision to refuse planning permission, the reporter will also have refused permission. And if the appeal was against an enforcement (or similar) notice, then that notice will come into force if the reporter has dismissed the appeal.
15. Where can I find out more?
Scottish Government websites
Your council should be the starting point for general planning enquiries. It can:
- tell you whether you need planning permission and how to apply;
- answer questions about how it deals with individual planning applications;
- give you advice about enforcement and local review procedures; and
- give you information about the contents of local development plans, strategic development plans and supplementary guidance.
Contact your local council for more details. Contact information is available at: http://www.gov.scot/Topics/Built-Environment/planning/Local-Planning
Planning Aid for Scotland
An independent charity which helps people engage in the planning system. It provides free, impartial advice on planning for individuals and community groups.
11a South Charlotte Street
Royal Town Planning Institute
The professional body for planners in Scotland.
18 Atholl Crescent
16. Contact us
Planning and Environmental Appeals Division
For information and documents on making appeals to Scottish Ministers.
4 The Courtyard
Callendar Business Park
Telephone: 0300 244 6668
Directorate for the Built Environment
For information on legislation and national planning policy in Scotland.
Edinburgh EH6 6QQ
Telephone: 08457 741741
Further copies of this document are available, on request, in audio and large print formats and in community languages; please contact 01324 696400 or e-mail firstname.lastname@example.org.
Telephone: 0300 244 6668
Planning and Environmental Appeals Division
4 The Courtyard
Callendar Business Park