Planning etc. (Scotland) Act 2006 – Appeal Procedures

The Planning etc. (Scotland) Act 2006 received Royal Assent in December of last year. This new legislation will implement a new system of dealing with planning permissions specifically in relation to how they are applied for, how they are decided and how they are appealed.

Appeal procedures under the current legislation

All applicants for planning permission have an existing statutory right of appeal under the Town & Country Planning (Scotland) Act 1997. That right of appeal can be used in the following circumstances:

#  Where the planning authority refuses a planning application or where planning permission is granted subject to conditions.

#  Where the planning authority refuses an application for consent, agreement or approval required by condition in an existing planning permission.

#  Where the planning authority refuses an application for consent, agreement or approval required under a Development Order.

#  Where the planning authority fails to give the applicant notice of their decision on the application, notice that they will decline to determine it, or notice that the application has been referred to the Scottish Ministers.

#  As things stand, appeals in these circumstances are made to the Scottish Ministers. The appeals are then generally heard and determined by the Scottish Executive Inquiry Reporters Unit ("SEIRU").

Appeal procedures under the Planning etc. (Scotland) Act 2006

Major Planning Applications

Under the 2006 Act there will be two streams of appeal procedure. "Major" planning applications will still be determined and appealed in the same manner. That is to say that the application will be decided by the Planning Authority and any appeal will be to the SEIRU. The 2006 Act does however provide that that the Scottish Ministers or SEIRU will in future be able to determine the mode of appeal.

Local Planning Applications

Local planning applications will be subject to an amended appeals procedure. The 2006 Act will introduce new "development management" procedures (these are explained in the Planning and Environment e-bulletin on Planning Applications dated 8 February 2007) which include "schemes of delegation". These schemes will allow local planning applications to be decided by planning officers. If an applicant wishes to appeal such a determination they will request a review by the Councillors. This new procedure may raise human rights issues, specifically whether such a determination and subsequent appeal will constitute a fair and impartial tribunal under Article 6 the European Convention on Human Rights. It is possible that the legislation itself may be challenged on these grounds.

Screening Potential Appeals

At the time of issuing the 2006 Act in the form of a Bill, the Scottish Executive issued accompanying supporting documentation which suggested that there may be a new system of screening potential appeals by officials within the Scottish Executive Planning Division. If the relevant official determined, on this screening and without consultation, that it was without merit in planning terms they could dismiss it without it going before SEIRU. If this were to come to fruition it would of course have further implications in relation to the human rights legislation. This power has not been set out in the 2006 Act although the ability to make Regulations dealing with Appeal Procedure may well be wide enough to cover this.

New information presented at appeal

The 2006 Act has reduced the applicant's ability to introduce new information in support of their application once it reaches appeal. The focus of the application system is to include all necessary information at the time of application. Additional information will be permitted at appeal only if the applicant can demonstrate that the matter could not have been raised any earlier, or that a failure to raise it at the time of application was a consequence of exceptional circumstances.

The general thrust of the 2006 Act is to make sure that all necessary information is included at the application stage, especially if the application involves controversial issues. The applicant should include sufficient information with the application so as to allow an effective case to be presented at appeal should that prove necessary. This can often be a matter of judgement and experience, upon which the Planning and Environment Group will be ready to advise.

The 2006 Act introduces new procedures for appealing planning decisions. These procedures will provide fresh challenges to applicants seeking to secure permission for their development.