The Scottish Government

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INTRODUCTION

1. This consultation paper seeks comments on proposed changes to the planning appeal system in Scotland. The Government's proposals are intended to make the process for challenging planning decisions more efficient without reducing the high quality of determination provided under present arrangements.

2. It is important that applicants who are unhappy with the terms of a planning decision have recourse to a process that enables an effective review of the decision to take place. It is also clear that people should continue to have an appropriate opportunity during the planning process to make representations about proposals that affect them or their communities. The Scottish Government wants the planning system to be fit for purpose and for its response to applications or appeals to be proportionate. We also need to ensure that the appeal process avoids unnecessary complexity or lengthy procedures that do not add value to the quality of decision.

3. The White Paper, Modernising the Planning System, published in 2005, (the White Paper) signalled the intention to modernise the planning system and the Planning etc. (Scotland) Act 2006 (the 2006 Act) now provides the primary legislative framework for change. This consultation paper and the accompanying draft regulations set out in detail how those changes are intended to operate. Because there are important connections between our proposals for more effective decision taking locally and those for appeals made to Scottish Ministers, the proposals for schemes of delegation, local review bodies and appeals are all considered in this consultation paper. Your views are sought on a range of questions covering the detailed changes. Draft regulations covering all the proposed changes are set out in the three annexes to this paper.

4. Our proposals to modernise the planning appeals system should not be viewed in isolation. They form part of the wider agenda for modernising the planning system in Scotland. Part of those wider proposals include a new hierarchy for planning aimed at delivering a more proportionate response from the planning system to the proposals that come before it for consideration. At the top of the hierarchy, a number of national developments will be identified in the National Planning Framework. A category of major developments will then be identified, these being relatively complex proposals which raise significant environmental or economic issues. All applications which are neither national developments nor major applications will be classed as local developments. Some of these local developments will be determined under new schemes of delegation and in turn will be subject of a review procedure by the planning authority rather than an appeal to Scottish Ministers. This paper explains how these new arrangements are intended to work. A public consultation paper on the draft regulations for the planning hierarchy has separately issued for consultation available online at http://www.scotland.gov.uk/Publications/2007/12/11104120/0

Towards a more efficient appeal system

5. The appeal system in Scotland is regarded as providing a fair, transparent and independent mechanism for reviewing planning decisions. While these are important strengths, it is also considered by many to be difficult for ordinary people to engage with. There is also little doubt that the time taken to process some cases contributes to the impression that the present planning system is inefficient.

6. The White Paper underlined the need for planning decisions to be made quickly so that the Scottish economy is not disadvantaged. It also highlighted the importance of allowing those wishing to make their views known to do so without being intimidated by the process. It proposed that the right to examination by formal inquiry process should be reserved for those issues where the subject matter could not be addressed through less formal procedures such as by conducting a hearing or by an exchange of written submissions. While appellants and planning authorities would be asked how they considered issues should best be examined, the decision on the method of examination - inquiry, hearing, written submissions, or a combination of these would be taken by Scottish Ministers. The person appointed to determine the case by Scottish Ministers would be given greater scope to enforce a timetable for the process and parties' rights to delay consideration would be limited. The 2006 Act now provides a framework for delivering the greater efficiency required.

7. The White Paper also set out the need to curb the tendency for proposals to change during the planning and appeal process and for the justification for them to alter without reference to the local community. This aspiration is consistent with the principle of front-loading the planning system. Provisions in the 2006 Act confirm that while there is some scope to agree a variation of an application with the planning authority once it has been made, the proposals cannot be varied after an appeal has been lodged. While decisions taken by planning authorities or by Scottish Ministers in reviewing cases are essentially new determinations, the intention is that the system in future should focus on reviewing the material that was before the planning authority in the first instance. Those making determinations under the Planning Acts must take into account all material considerations and this will continue to be the case. However, in the interests of efficiency we want to avoid maintaining a cycle of comment and counter-comment on proposals by the various parties. This does not necessarily add value to the system and can be inefficient. Instead, we want to ensure that the decision taker gains access to the appropriate level of information to enable a fully considered decision to be taken on any particular case.

8. The 2006 Act provides that only exceptionally would additional material to that which was before the planning authority and community be permitted to be introduced. While this does not reduce the need to have regard to the provisions of the development plan or any other material considerations, the shift in emphasis is important. It is not intended to remove the rights of parties to introduce material in support of their respective cases but it underlines the importance of doing so at the appropriate point in the planning process. This should be while the application is before the planning authority and not late in the process. If we are to deliver a more efficient system then all parties to the process must understand the importance of making their views and any supporting material available to the planning authority early in the process.

9. Early determination of appeals was also proposed in the White Paper in cases where a decision on the appeal could be made without more extensive consideration involving the principal parties. These proposals were intended to improve the efficiency of the system and they subsequently received strong support during the Bill process in the Scottish Parliament. The draft regulations provide that it will be for the decision-taker, either the planning authority in a review case or the Scottish Ministers on an appeal, to take a decision when they are in possession of sufficient information to do so. This is not intended to remove rights to provide information in support of an appeal - although such information should be provided early in the process rather than during an appeal. There will nevertheless be cases where a decision at appeal can be taken swiftly, based on the material before the planning authority when the application was determined together with the additional material provided in the grounds of appeal and in the planning authority's response. In such cases further procedure would not add value to the process.

A New Role for Planning Authorities

10. The White Paper highlighted the efficiency gains that can be delivered by delegation to officers. The intention is that greater use should be made of delegation, allowing elected members to focus their attention on more complex or more controversial applications. We propose that officers should be able to take the full range of decisions on applications for local developments unless there are clear reasons why the decision should be taken by elected members- for example where applications are significantly contrary to the development plan, involve EIA development, have attracted a substantial body of objection or where the planning authority has a financial interest in the development. Elected members would continue to take decisions on such applications. Paragraphs 13 to 19 set out further detail on preparing schemes of delegation.

11. Appeals against decisions taken by the planning committee will continue to be made to Scottish Ministers but for those falling within the terms of a scheme of delegation appeals would be determined locally. The 2006 Act provides that where an applicant is dissatisfied with a decision on a planning application determined under a s.43A scheme of delegation that they would seek a review of the decision by the planning authority rather than appealing to Scottish Ministers. We propose that the review function should be conducted by elected members meeting together to form a local review body supported by officials who were not involved in reaching the decision under review. The majority of reviews of local developments would be determined quickly and locally, recognising that local authorities are best placed to take decisions on such local issues. We want to ensure that the revised arrangements operate to a high standard and that processes for reviewing decisions locally ensure the highest standards of fairness, independence, transparency and customer care. The draft regulations set out the timescales and approach that should be taken in handling reviews. Finalised regulations will be accompanied by guidance on the operation of local review bodies.

12. The timescale for either seeking either a review of a delegated decision or for making an appeal to Scottish Ministers will be reduced from six months to three in line with the proposals set out in the White Paper. Paragraphs 20 to 29 set out further detail on local reviews.

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