Consultation on the implementation of the “new” Planning Act continues

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The Scottish Government has now published a number of consultation papers consequent to The Planning etc. (Scotland) Act 2006.

The most recent consultation paper sets out the significant proposed changes to the planning appeals system and contains the next tranche of draft subordinate legislation required by the Planning etc. (Scotland) Act 2006.

The proposed changes are radical and will have significant implications for those involved in the property development process.
 
Background
The proposed changes to the planning appeals system cannot be viewed in isolation. They form part of the wider overhaul of the planning system in Scotland. The White Paper, Modernising the Planning System, signalled the Scottish Government’s intention to radically reform the planning system. The Planning etc. (Scotland) Act 2006 sets out the primary framework instituting those changes.

In addition to the Act, draft regulations which are being released in stages set out in detail how these changes are intended to operate in practice.

The White Paper identified the need for planning decisions to be taken more quickly, in the interests of the Scottish economy, whilst at the same time ensuring that parties who wish to make their views known have the opportunity to do so. The reforms are intended to make the process for challenging planning decisions more efficient without compromising the high quality of determination currently provided.

In order to understand the proposed changes to the appeals system, one must first understand the proposed planning hierarchy which has been introduced by draft regulations made under the 2006 Act. Under the new hierarchy, development will fall into one of three classes: - “national developments” (major infrastructure schemes identified within the National Planning Framework), “major developments” (relatively complex proposals which raise significant economic or environmental issues) and developments which do not fall into either category will be “local developments”. Some of these local developments will determined under new Schemes of Delegation and will be subject to a new review procedure, as opposed to a planning appeal.

New role for planning authorities
The topic of appeals is intrinsically linked to the reforms which will redefine the role of planning authorities within the system. The intention is that greater use should be made of delegation to officers, allowing elected members to focus their attention on more complex or controversial matters. It is hoped that this will enable quicker decision making on straightforward applications, freeing up Committee time.

As matters currently stand, planning officers enjoy delegated powers to make certain planning decisions; the intention is to broaden the range of decisions which can be made by officials. It is proposed that all applications for local development will be decided at officer level under delegated powers through a new “Scheme of Delegation” unless the application is: -

  • subject to an unresolved statutory objection;
  • made by planning authority or one of its members;
  • relates to land in which local authority has a financial or land ownership interest;
  • subject to EIA;
  • significantly contrary to the development plan;
  • subject to substantial body of objection; or
  • for a class of development mentioned in s.38A of 2006 Act (these are applications which are subject to enhanced scrutiny, including a pre-determination hearing before the local authority).

Local reviews
Where an applicant is dissatisfied with a decision taken under a new Scheme of Delegation, they will not be able to appeal it. Rather, they will be entitled to seek a review of the decision by the local authority. Each local authority will have to establish a Local Review Body (LRB) which will comprise between 3 and 5 elected members for this purpose.

This is a significant change to current arrangements whereby such appeals are made to the Scottish Ministers. This proposal is also one of the most controversial; concerns have been expressed about the likely independence of such a body and the fact that the local authority will effectively be reviewing its own decisions.    

A party seeking a review will require to lodge a “Notice of Review” within 3 months of the decision being taken (or failure of the local authority to determine the application). Such notice will require to be accompanied by grounds in support of the request. This represents a reduction in the timescale of 6 months within which an appeal must currently be lodged. 

It will not be permissible to introduce material not previously before the planning authority unless exceptional circumstances can be shown. Instead, the focus will be on the material that was before the planning authority when the decision was taken. Third parties will be notified of the review but will not be entitled to make further comment.

It is envisaged that the LRB may take a decision without requesting any further information from the key parties. In such cases, the review will be considered in public but no further representations will be allowed. However, where the LRB considers that it requires further information or clarification from parties, they may invite this. The LRB will determine whether such further examination is to proceed by written exchange or hearing but it is not open to them to hold a formal inquiry. The process is intended to be structured but informal and represents a departure from the adversarial, rigid format adopted in planning inquiries.

The LRB may uphold, reverse or vary the decision. It will be entitled to advice and support from local authority planners not involved in the decision under review and will make its decisions in public. LRB decisions will be subject to a further right of “statutory appeal” or judicial review on points of law only - not in relation to the planning merits of the decision.

Planning appeals
Whilst delegated decisions will be subject to a right of review, all other appeals will continue to be made to the Scottish Ministers. The timescale for appealing will be reduced from six months to three months.

As matters currently stand there are three procedures for determining a planning appeal: - written submissions, hearing and inquiry, and an appellant can select their preferred method, regardless of the type of development proposed.

This choice is being removed and whilst parties may express a preference for a particular method, the decision will be taken by the Scottish Ministers. Furthermore, it will be open for an appeal to be pursued by a combination of the three methods. The existing right to be heard is therefore being removed and inquiries and hearings will be avoided unless absolutely necessary. Where an inquiry or a hearing is held, the remit will be narrower than at present, with more time spent at the start of the process distilling the key issues which will require to be tested on cross-examination. 

Similar to the local review process, the opportunity to change proposals on appeal will be curbed and it will only be possible to review material that was before the planning authority when the application was determined. An appellant wishing to introduce new material will require to demonstrate either that the material could not have been made available earlier or that there are exceptional circumstances justifying its introduction.

This is consistent with the new emphasis on “front loading” the planning system – ensuring that all relevant information is provided up front, thus avoiding the cycle of comment and counter comment which can arise under present arrangements.

Full grounds of appeal will be lodged, to which the local authority must respond within 14 days. Interested parties will be notified but will not be invited to comment further. As is the case under review, the Scottish Ministers will be free to take a decision without further reference to or input from the interested parties. However, they may decide to determine an appeal by one or by a combination of the methods noted above. If an Inquiry is to take place, the Scottish Ministers will serve a “Procedure Notice” specifying the issues to be considered at the Inquiry and parties must respond setting out how they intend to present their case. Precognitions will be restricted to 2000 words in length to encourage parties to focus on the issues in contention and avoid repetition of previous arguments.

Conclusion
The rules of engagement for planning appeals are set to change. Appellants should be aware of the intended restrictions on their right to decide the method of disposal for their appeal; it will be for Scottish Ministers to decide whether a case will proceed by inquiry, hearing or written submissions. Further, they will not, except in very limited circumstances, be able to amend their proposals or introduce new information (e.g. new technical reports). Applicants will therefore require to ensure that their original application contains all of the necessary information. For those applications determined under a Scheme of Delegation, there will be no right of appeal but instead a right of review with similar restrictions placed on amending the proposal or introducing new matters. These changes reinforce the importance of seeking strategic legal advice early in the planning process.

Comment
A copy of all the current Scottish Government consultations can be viewed here.

These draft regulations are of considerable practical significance to all involved in property development and make clear the way appeals will be processed in future. There is an opportunity to comment on the proposals and the Scottish Government is inviting responses by 9 May 2008.

Further information
For further information on this or any planning issue, please contact Alastair McKie. 


This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.