Appeal rights in planning are due to be discussed this week by the Scottish Parliament’s Local Government & Communities Committee, as part of the scrutiny of the Planning (Scotland) Bill.
Why do developers need a right of appeal?
A client recently won an appeal against refusal of planning permission. Expenses were also awarded against the council on the grounds of its unreasonable behaviour. Such an award of expenses is rare, in contrast to court actions.
If the developer right of appeal had been removed, there would have been no procedure for my client to challenge, and reverse, the council’s unreasonable decision.
Restricted right of appeal
Rather than remove the appeal right entirely, there is a alternative suggestion that compliance with the development plan could be used as a criterion for a restricted developer right of appeal.
The drawback is that compliance is often the key area of dispute.
In my client’s appeal, the council’s only ground for refusal was non-compliance with a development plan policy. Not only did the Scottish Government reporter disagree with that, he also awarded expenses against the council because there were no reasonable planning grounds for the reason for refusal.
That shows the problems with a plan-led right of appeal.
Even if a filter mechanism was introduced, in many instances a full hearing of the appeal would be required before any decision could be reached on compliance with the development plan.
It is difficult to formulate workable proposals for changes to appeal rights. If changes are to be introduced, there needs to be full consultation.