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Options For Change

17.0 THIRD PARTY APPEALS

Proposal: Third parties should be given a right of appeal against a grant of planning permission in certain circumstances.

Source: Royal Commission on Environmental Pollution, 23 ^rd Report, Environmental Planning, 2002, para.5.46; White Paper, Your place, your plan, 2003, paras.40-43.

Present position: Section 47 of the 1997 Act confers a right of appeal to the Scottish Ministers against a refusal of planning permission (and in certain other situations) on an applicant. Third parties will, in certain situations, have a right to take part in an appeal; they may also have standing to petition for judicial review of a planning decision and may be an 'aggrieved person' for the purposes of a statutory application to the Court of Session to quash certain planning decisions. There is no right of appeal to the Scottish Ministers for third parties against a grant of planning permission, although the White Paper promises a consultation paper on the topic later this year.

The proposal in more detail: Those promoting third party appeals accept that they should be limited to defined circumstances so as to prevent frivolous and vexatious appeals. RCEP mentions the following possible limitations:

• EIA developments.
• Development plan departures.
• Development by the planning authority.
• The scale of development.

Others have suggested that applications which members approve against the advice of their officers and applications in which planning authorities have an interest (but for which they are not the applicant) should be added to the list ( see Third Party Rights of Appeal, CPRE, RSPB and TCPA, 2002). Another suggestion is that SEIRU could have a role to play in sifting third party appeals to ensure that they are limited to defined circumstances.

Implementation: A third party right of appeal to the Scottish Ministers would have to be introduced by way of primary legislation. The Town and Country (Appeals) (Written Submissions Procedure) (Scotland) Regulations 1990 (SI 1990 No 507), the Town and Country Planning Appeals (Determination by Appointed Person) (Inquiries Procedure) (Scotland) Rules 1997 (SI 1997 No 750) (as amended by SI 1998 No 2312), and the Town and Country Planning (Inquiries Procedure) (Scotland) Rules 1997 (SI 1997 No 796) (as amended by SI 1998 No 2311) would need amendment to accommodate third party appeals.

Discussion:

• the argument for a third party right of appeal is that it is unfair if a promoter of a scheme can appeal against a refusal if objectors to a scheme cannot appeal against an approval. Although planning authorities make decisions in the public interest, both promoters and objectors are embraced by the 'public interest'. To confine the right of appeal to promoters is to favour the case for development.
• as against that, it has been suggested that it is appropriate for applicants only to have a right of appeal because it is their right to develop land which has, in effect, been nationalised. No such consideration applies to third parties.
• there have been suggestions that a third party right of appeal to Ministers is required in order to comply with article 6 of the European Convention on Human Rights. It is not clear that this is so. Article 6 provides that "in the determination of his civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". Although the matter is not finally resolved, the decision of the English Court of Appeal in R (Adlard) v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 735 suggests that, where first instance decisions turn primarily on questions of judgement and discretion (as is the case with most planning decisions) rather than findings of fact, there is no requirement for a hearing. The remedy of judicial review enables the courts to correct injustice. In other words, Art.6 does not require that there should be a third party right of appeal. The decision has been criticised as providing for a lower level of safeguard for political decision-making.
• there have been suggestions that a third party right of appeal is required to secure compliance with the UK government's obligations under the Aarhus Convention. This is not strictly correct. Article 9 of the Convention requires that members of the public with a sufficient interest should have access to a review procedure before a court of law and/ or another independent and impartial body established by law, to challenge the substantive and procedural legality of such decisions. Whilst acknowledging this, RECP suggested that the lack of a third party right of appeal might not be consistent with the spirit and objectives of the Convention.
• the Planning Green Paper (2001) rejected the idea of third party appeals for England and Wales on the ground that they could add to the costs and uncertainties of planning (para.6.22). Indeed, in the House of Lords, the Government spokesman, Lord Rooker, observed that the proposal had been rejected on the ground that it "would bring the system to a grinding halt"!
• presumably the intention would be to allow the same time for lodging an appeal as is available to an applicant - currently 6 months. That would mean that a grant of planning permission could not be implemented for 6 months in case it was appealed, thus creating additional uncertainty.
• reference was also made in the Green Paper to the argument that such a right would not be consistent with our democratically accountable system of planning. Elected councillors represent their communities - they must take account of the views of local people on planning matters before decisions are made and justify their decisions subsequently to their electorate. This, however, ignores the fact that there may be different opinions within the same community; a councillor cannot represent them all.
• the SEDD consultation paper Getting Involved in Planning, Consultation Paper (2001, paras.26-29) concluded that there are compelling reasons for not introducing a third party right of appeal. These reasons included: greater delays in approving applications, third parties might not be representative of the wider community, and the significant resource implications for planning authorities and others involved in the appeal process. The White Paper, Your place, your plan, 2003, paras.40-43, while acknowledging the difficulties, accepts that there would be benefit in carrying out a detailed examination of the issues.
• it is unlikely that third party appeals could be confined only to planning decisions. RCEP recommended that similar rights for third parties should apply to other forms of environmental regulation.
• third parties would be likely to include competitors who would use the right of appeal to gain an advantage for themselves by getting the application delayed and, possibly, running the proposal out of time. Would it be possible to restrict third party appeals to certain categories of third party (eg neighbours or the 'local community') and would this be desirable?
• one consequence of the introduction of third party appeals might be a reduction in the opportunities for third parties to address planning committees before decisions are made.
• there have been suggestions that a fee should be levied for third party appeals to discourage frivolous or vexatious appeals. This could be argued to be fair: the applicant will have paid a fee when lodging the application.
• presumably, there would a time limit within which a third party appeal had to be lodged.
• third party rights of appeal operate in the Republic of Ireland (see B Grist, "Curtailment of Third Party Planning Appeals in the Republic of Ireland" (2001) 86 SPEL 82) and in certain other countries.
• RCEP noted that an alternative approach, which would put applicants and third parties in the same position, would be to remove the right of appeal for applicants. Access to the Court of Session to challenge the legality of a decision would remain.

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