The Scottish Government

Circular 7/1990

The Chief Executive
Local Authorities

Our ref: PGG/1/5
22 March 1990

Dear Sir

THE TOWN AND COUNTRY PLANNING (APPEALS) (WRITTEN SUBMISSIONS PROCEDURE) (SCOTLAND) REGULATIONS 1990

THE TOWN AND COUNTRY PLANNING (GENERAL DEVELOPMENT) (SCOTLAND) AMENDMENT ORDER 1990

Introduction

1. This Circular gives guidance on the operation of the Town and Country Planning (Appeals) (Written Submissions Procedure) (Scotland) Regulations 1990 (SI 1990/507) which come into force on 31 March 1990. The power to make these Regulations was introduced by paragraph 41 of Schedule 11 to the Housing and Planning Act 1986 which also comes into force on 31 March 1990 by virtue of the Housing and Planning Act 1986 (Commencement No 14) Order 1990. A copy of this Circular is enclosed for your Director of Planning.

2. The vast majority of appeals (86% in 1989) are decided by means of written submissions and the procedure for dealing with cases by this method has evolved as administrative practice over the years. The Regulations now give this procedure a statutory basis and the opportunity has been taken to introduce changes to streamline and improve the procedure. The introduction of these Regulations requires changes to the provisions in Article 16 of the Town and Country Planning (General Development) (Scotland) Order 1981 and the effect of these changes on cases which are the subject of a public inquiry are explained in paragraph 21. One change which has been made applies to all planning permission appeals namely that the appellant in submitting his appeal to the Secretary of State has to send a copy direct to the planning authority (see paragraph 20).

3. The Regulations supersede the administrative code set out in SDD Memorandum 27/1984. The guidance given in the associated SDD Circular 26/1984 remains largely relevant particularly in relation to the contributions which planning authorities can made.

Scope

4. The Regulations apply to all appeals received by the Secretary of State on or after 31 March 1990 under the provisions listed in the Schedule to the Regulations where the appellant requests that the appeal be disposed of on the basis of written submissions. This does not preclude the planning authority from exercising their right to ask for a public inquiry to be held and, in such cases, the Regulations will cease to apply by virtue of Regulation 3(3). Where either of the parties has asked for an appeal to be the subject of a public inquiry but it is subsequently decided to deal with it by written submissions then the Regulations are applied in terms of Regulation 3(2). The provisions listed in the Schedule cover practically all of the appeals under the Town and Country Planning (Scotland) Act 1972 which are dealt with by The Scottish Office Inquiry Reporters Unit.

Notice to Interested Persons

5. Regulation 4 introduces a change to the present procedure. At the present time, any persons who made representations to the planning authority at the application stage are not informed that an appeal has been lodged until a late stage in the process. Regulation 4 requires that not later than 14 days after receiving notice of the appeal and of the appellant's wish to have it disposed of on the basis of written submissions the planning authority shall give notice of the appeal to any persons who made representations to them at the application stage. The reference to "person" is used in its widest sense and includes bodies and councils including any whom the planning authority required to consult in terms of the General Development Order and any other directions. In its application to appeals arising from notices served by the planning authority, the planning authority should notify any person who made representations to them in relation to the subject matter of the notice whether before or after the notice was served.

6. Regulation 4(1)(a) provides that notice of the appeal has to be given to any person whom the planning authority notified or consulted under the Act and who made representations in connection with the application. The planning authority do not need to notify any persons who did not respond to the earlier notification or consultation or, who did respond, but did not offer any comments on the merits of the proposal. Notices under this provision must always be given in writing.

7. Regulation 4(1)(b) provides that notice of the appeal has also to be given to any persons who made representations to the planning authority which did not arise from notifications or consultations by the planning authority. Such representations would normally be from members of the public arising from the neighbour notification or Section 24 procedure or from articles or notices in a local newspaper. To allow for situations where a large number of representations are received the Regulation provides an alternative of a newspaper advertisement instead of individual notifications. It is left to planning authorities to decide which alternative to choose, but in most cases, the number of persons on whom notice is required to be served will be small and written notification should cause no great difficulty. In some cases the planning authority may decide to both advertise the appeal and serve individual notifications on some of the persons who made representations. Petitions are not regarded as coming within the terms of Regulation 4 and the planning authority are not obliged to notify all those persons who have signed petitions. However, it would be reasonable to give notice to any persons who are known to have organised and submitted the petitions.

8. The planning authority are required to serve notice within 14 calendar days of receiving notification of the appeal and of the appellant's wish to have it disposed of on the basis of written submissions. Where an appeal form is used it will be immediately clear to the planning authority whether the provisions of the Regulations apply. In other cases such as enforcement notice appeals the planning authority will not be in a position to take action under Regulation 4 until the Secretary of State has intimated to them that the appeal is to be dealt with on the basis of written submissions.

Appeals Questionnaire

9. An appeals questionnaire in connection with planning permission appeals under Section 33 of the Act has been in use for many years and Regulation 5 now gives it statutory recognition. Although the Regulations can only prescribe the use of the questionnaire in relation to those Section 33 appeals dealt with by written submissions, the questionnaire will also be used for Section 33 appeals dealt with by means of a public inquiry. The questionnaire is to be despatched not later than 14 calendar days after receiving notification of an appeal and the planning authority are required in terms of Regulation 5(2) to send to the appellant a copy of the questionnaire and the supporting documents at the same time as they are submitted to the Secretary of State.

Exchange of Written Submissions

10. The written submissions procedure starts with the submission of the notice of appeal and documents relating to it which comprise the appellant's written submissions. The time limits for this vary depending on the type of appeal and are prescribed in the General Development Order and other Regulations. Regulation 6 sets out the procedure to be followed in the further exchange of written submissions. The periods specified in Regulation 6 are the calendar days within which the submissions should be despatched to the Secretary of State and the other party - they do not require to be in the hands of the Secretary of State and the other party within these periods.

11. An important change is the inclusion of Regulation 6(1) which provides that in any appeals under Section 33 of the Act, the questionnaire and supporting document submitted by the planning authority may comprise their written submissions. Some planning authorities submit statements of observation on appeals which largely repeat information contained in the report made to the Planning Committee at the application stage. It is hoped that in many cases the planning authority will elect to treat the questionnaire and supporting documents (including the report to the Planning Committee) as their written submissions in connection with appeals under Section 33 of the Act. Where they do not do so in the case of Section 33 appeals and, subject to Regulation 6(2), for all other appeals, Regulation 6(3) requires the planning authority to send their written submissions to the Secretary of State not later than 28 days after receiving notification of an appeal to be dealt with by written submissions. As is the present practice, a copy of the submissions should be sent to the appellant.

12. The Town and Country Planning (Enforcement of Control) (Scotland) Regulations 1984 already provides for the planning authority to submit a statement to the Secretary of State in connection with appeals against an enforcement notice, a listed building enforcement notice or a notice under Section 63 of the 1972 Act. This statement will continue to be requested by the Secretary of State for such appeals - usually at an earlier stage than would be possible under the Written Submission Regulations. Regulation 6(2) recognises this and provides that the planning authority can (and, it is expected, will) elect to treat that statement as their written submissions for the purposes of the Written Submissions Regulations.

13. Regulation 6(4) provides an opportunity for the appellant to make further written submissions in reply to the planning authority's statement and the appellant is required to send to the planning authority a copy of any further submissions he makes.

14. In some cases the Secretary of State will receive submissions from third parties who were not notified of the lodging of an appeal in terms of Regulation 4. Regulation 6(5) provides that any such submissions received within 28 days of the receipt of an appeal will be taken into account by the Secretary of State and parties will have an opportunity to comment on them. Although the deadline has been introduced it is recognised that third parities are unlikely to be aware of this provision. When submissions are received outwith the 28 day period it is likely, therefore, that the Secretary of State will exercise his powers under Regulation 7 to take into account such submissions if they raise new matters which are likely to be relevant to a decision on the appeal.

15. It is appreciated that those planning authorities who deal with a number of planning permission appeals each year may find it difficult to comply immediately with the shorter timetable introduced in Regulation 6. In such cases the Secretary of State will be prepared to extend the time limits for a transitional period to allow time to change from the present 2 month period to the new 28 day period.

Extension of Time Limits

16. For a variety of reasons it may not be possible for parties to comply with the time limits prescribed in Regulation 6. Regulation 7 empowers the Secretary of State to set later time limits in particular cases or to extend time limits which are already operating either at his own behest or at the request of one of the parties.

Disregarding Late Submissions

17. The object of the written submissions procedure is to ensure that information on all relevant planning matters is before the Secretary of State when reaching a decision on the appeal and the Regulations give a statutory framework within which submissions are to be made. The Secretary of State has a discretion to accept late submissions but in circumstances where there have been significant delays on the part of one or both parties in lodging their submissions Regulation 8(1) gives the Secretary of State the power to proceed to a decision on an appeal taking into account only such written submissions as have been sent to him within the relevant time limits.

Determination of Appeal without any Written Submissions

18. Regulation 8(2) provides that the Secretary of State, after giving written notice to parties of his intention to do so, may take a decision on an appeal where no written submissions have been made to him within the relevant time limits. Regulation 8(3) defines "relevant time limits" as time limits prescribed by or set by direction of the Secretary of State under these regulations. As the appellant's grounds of appeal will have been made under some other statutory provisions they do not fall within the terms of Regulation 8(2). The effect of Regulation 8(2), therefore, is that where the planning authority fail to submit the questionnaire (if that is to form their written submissions) or their submissions under Regulation 6(2) or 6(3) the Secretary of State can proceed to determine the appeal if he has sufficient information before him to enable him to reach a decision on the merits of the case.

Site Inspection

19. There is no specific provision made in the Regulations for a site inspection to be held but this will continue to be routine part of the written submissions procedure. Normally site inspections are arranged with the appellant and the planning authority at least 2 weeks in advance. In most cases persons who have made submissions to the Secretary of State are also notified of the arrangements. However, this is not practicable in cases where there are a large number of third parties and in such cases only representative bodies and/or people who live closest to the site are informed.

Amendments to the General Development Order 1981

20. Article 2(b)(i) of the General Development Amendment Order amends Article 16(1) of the General Development Order 1981 to require the appellant in Section 33 and Section 51 appeals to send a copy of the notice of appeal to the planning authority at the same time as he submits his appeal to the Secretary of State. This should mean that the planning authority will receive notification of the appeal at the same time it is received by the Secretary of State. This provision applies to appeals dealt with by written submissions and public inquiry. The receipt of the appeal form by the planning authority will mark the beginning of the periods within which the questionnaire and any further written submissions are to be sent to the Secretary of State and appellant.

21. The provisions of Articles 16(3)-(8) of the General Development Order are overtaken by the provisions contained in the Written Submissions Regulations and Article 2(b)(ii) of the General Development Amendment Order applies these provisions only to cases being dealt with other than on the basis of written submissions (ie by public inquiry). Certain of these provisions are also superseded in relation to appeals dealt with by public inquiry. Article 16(3) concerning the notification of the appeal to the planning authority is no longer required as this will be done by the appellant in term of the amendment made by Article 16(1). The provision in Article 16(4) for a planning authority to submit a statement of observations within 2 months has been revoked but the planning authority will still be required to submit such a statement in terms of the Inquiry Procedure Rules 1980. In terms of Article 16(5) the Secretary of State will continue to notify the regional planning authority of any Section 33 appeals where the appellant has asked for a public inquiry. For appeals dealt with by written submissions, the regional planning authority will be notified, where appropriate, by the planning authority in terms of Regulation 4 of the Written Submissions Regulations. In cases where the application has been dealt with by the regional planning authority after having been "called in" by them, the Secretary of State will notify the district council as at present in terms of Articles 16(5) and 16(8).

Further Copies and Enquiries

22. Further copies of this Circular and a list of current planning Circulars may be obtained from Rom 6/84, New St Andrew's House (031-244-4082) and any enquiries should be addressed to Mr S Farrell (031-244-4209).

Yours faithfully

J S GRAHAM