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18.0 REFORMING APPEAL AND INQUIRY PROCEDURES
A consultation paper on reforms to inquiry procedures is expected shortly. This section of the report draws attention to four other matters relating to appeals that have been raised.
18.1 Reducing the time for lodging an appeal
Proposal: The time for lodging an appeal should be reduced from 6 months from the date of the decision or the date by which the decision should have been made to 2 months.
Source: White Paper, Your place, your plan, 2003, paras.107-109; Getting Involved in Planning, Consultation Paper, SEDD, 2001, para.88. See too Analysis of Consultation Responses.
Present position: Regulation 23(2) of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 provides that the time within an appeal must be lodged is 6 months.
Implementation: Regulation 23(2) would require amendment.
Discussion:
- this may provoke an increase in holding appeals following refusals of planning permission while discussions take place between applicants and planning authorities over ways of meeting the planning authorities' concerns. It would not be uncommon for such discussions to take more than 2 months.
- the White Paper states that the period will be reduced to 3 months, not 2. This is seen to provide a reasonable balance between the need to reduce uncertainty and delay, and concerns among developers about the need to allow sufficient time for discussions with planning authorities to run their course.
18.2 Appeals against non-determination: dual jurisdiction
Proposal: Section 42(2) of the 1997 Act provides for a right of appeal to the Scottish Ministers against a 'deemed refusal' where a planning authority have failed to give a decision on a planning application within the time prescribed (generally 8 weeks). Once an appeal to the Ministers has been made against a non-determination, the planning authority can no longer determine the application. This can be inefficient where the authority would in fact be able to give a decision shortly after the expiry of the prescribed period. The proposal is to allow a short period of dual jurisdiction. If during that period consent is given, the appeal can be withdrawn.
Source: Planning and Compulsory Purchase Bill, Clause 45.
Present position: See 'Proposal' above.
Implementation: A new provision would have to be added after s.42 to permit dual jurisdiction. In England and Wales it is proposed that the period of dual jurisdiction (likely to be 14 days which is arguably too short) will be prescribed by regulations.
18.3 Appeals against non-determination: timing
Proposal: That the time for lodging an appeal against a non-determination should run until such time as a decision is eventually made.
Source: Developers
Present position: Regulation 23(2)(b) provides that an appeal must be lodged within 6 months of the expiry of the period for giving notice of a decision. That has been interpreted by SEIRU to mean that an appeal lodged beyond that time is incompetent. It is of course still open to an applicant to wait for the eventual decision from the planning authority and then appeal that if it is adverse.
Implementation: An amendment would be required to regulation 23(2)(b).
18.4 SEIRU should be put on an independent footing
Proposal: It was suggested that greater confidence in the system would be provided by disengaging SEIRU from the Executive.
Source: Seminar with lawyers.
Present position: SEIRU is part of SEDD.
Implementation: Primary legislation would be required.
Discussion:
- this would result in SEIRU transforming itself into something akin to a tribunal. The question is whether it is appropriate to divorce planning decisions from the political process? In fact, most appeal decisions are delegated to reporters and there is no direct political input. But the concern is that reporters may be subject to indirect pressure through eg. performance monitoring.
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