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LOCAL REVIEWS

Principles

20. Where an applicant is dissatisfied with the decision, or failure to take a decision, in respect of an application for planning permission or for approval required by condition under a scheme of delegation, they will be entitled to require the planning authority to review the case. This is a significant change to existing arrangements whereby such appeals are made to Scottish Ministers.

21. There are important efficiencies to be made overall in making the review of local developments the responsibility of local authorities. However, the Scottish Government recognises that this significant change must not result in a reduction in the quality of examination, one of the key strengths of the existing system. It is essential that any local review process is underpinned by high standards: those with responsibility for participating as members or chairing a local review body must be fully trained; there must be clear timescales for requiring and responding to reviews; those requesting a review must be confident that their case will be dealt with fairly; clear reasons explaining the decision of the review body must be made available and, crucially, the local review body must operate in a way that demonstrates independence from the original decision-taker. Some of these issues will be best dealt with in guidance rather than regulations. The draft regulations in Annex B set out the procedures, timings and arrangements for communicating decisions on cases reviewed.

Requirement to review

22. Draft regulation 4(2) provides that a requirement to review a decision must be made within three months of the decision being taken or within three months of a failure to determine the application. This reduction in the current timescale for challenging a planning decision is intended to support efficiency whilst maintaining a reasonable period to enable applicants to consider whether to seek a review or to submit a revised planning application that addresses the issues. The requirement for the planning authority to review the case will be made in writing (a Notice of Review) to the planning authority and should be accompanied by grounds in support of the request that the officer's decision be reversed or varied together with all materials in support of the requirement to review. Draft regulation 5(e) requires that the applicant should explain, where new issues have been raised, why these could not have been raised earlier in the process or what exceptional circumstances apply to support their introduction. This is consistent with the provisions to focus on the material before the planning authority at the point when the delegated decision was taken.

23. Once the planning authority has received a notice of review it should notify those individuals who made unresolved representations or who were consulted on the application. Draft regulation 6 sets out the process for doing so and requires interested parties to be advised that their earlier comments will be taken into account by the review body. They will also be advised that the notice of review and supporting documents can be inspected at the offices of the planning authority but they are not invited to provide further comments on the case. To do so would risk undermining the efficiency of the process by providing a cycle of comment and counter comment without adding value to the process or aiding the local review body in arriving at a decision. This is also consistent with the approach to front-loading the system described earlier in this paper.

The local review body

24. We consider that a local review body should comprise a small number of elected members - a minimum of three and a maximum of five - and this is provided for in draft regulation 7(1). Each authority should ideally make a larger pool of trained elected members available to ensure that on occasions where a conflict of interest arises, the review process can still operate effectively. The review body will require administrative support to advise on process and to issue the reasoned decisions reached by the review body. We envisage that support being provided by the authority's legal officer supported as necessary by the planning authority's professional planning expertise drawn from those not involved in the decision under review. The draft regulations do not set out the detailed administrative arrangements that should support operation of the review body. These will vary according to local circumstances but may benefit from future guidance. While we want to promote a degree of flexibility around how each planning authority will implement the review body provisions, draft regulation 7(2) requires that meetings of the review body, either to take decisions on the review or on how the case should be determined, should be held in public. Authorities will be mindful of the need to promote fairness and transparency in decision taking when developing detailed procedures for operation of local review bodies.

25. The review process will focus on the material which was before the planning authority and consider whether the decision taken under delegated powers was appropriate. The review body may uphold, reverse or vary the decision. Where the requirement to review follows non-determination (a deemed refusal), the review body will be able to take a decision on the proposal. In cases of non-determination it will be necessary for advice on the planning merits of the case to be provided to the review body and for such material to be made available for comment to the applicant. We envisage that it will be for the authority to provide access to professional planning advice which will most commonly be obtained from the Head of the Planning Service.

26. The 2006 Act removed the automatic right to be heard in planning appeals. While those pursuing an appeal to Scottish Ministers or requiring a review by the planning authority will in future be asked for their view on how their case should be processed, the decision on the method of examination be reserved to Ministers (in cases where an appeal has been made) or to the local review body (where a review is required). The local review body may be in a position to reach a decision in a review without requesting further information or clarification from key parties. In those cases, even though the review will be considered by the review body in public, no further representations may be required. Where the review body requires further information or elucidation from parties to enable them to arrive at a decision they may seek this. The manner of examination, whether by written exchange, hearing, or by a combination of these methods will be for the local review body to determine. However it is not intended that a review process should involve formal inquiry sessions and accordingly the draft regulations do not provide for that. It will be for the review body to determine whether a site inspection is required in order to arrive at their decision.

27. The review process is not intended to be adversarial. The review body will take into account the material before the planning authority during the planning process, including any report of handling, together with the supporting material lodged by the applicant in seeking a review. It is important that the applicant is aware of the material that will be taken into account by the body in reaching its decision and accordingly regulation 9(4) provides that any new issues not raised in the decision notice which are to be relied upon will be notified to the applicant and for him/her to comment on these within a 14 day period before the case is considered. Where, exceptionally, new material has been introduced into the process at review stage, parties to the review will be given an opportunity to comment on that material. Draft regulation 9(4) provides for a 14 day period for submission of comments on any such material prior to the review body considering the case. Where the local review body consider that additional information or advice is required in order to enable it to arrive at a decision on a case then they will request that, allowing the principal parties to comment on the additional material.

28. We expect the majority of cases to be determined by written submissions. In a limited number of cases the review body may consider that it would be appropriate to hold a hearing to provide further clarification into certain issues. Where that is considered appropriate the format set out in the regulations should be followed. This format is intended to focus on a structured discussion within an informal atmosphere rather than a formal adversarial inquiry.

29. It is important that cases under review are considered through an efficient process with clear timescales for each stage. Cases should be considered promptly with decisions issued not more than two months from the notice to review being received. The local review body should issue the decision notice promptly and record it on the planning register. Reasons for the decision should be set out in full, signed by the Chair of the review body and communicated to all parties, including those who made representations on the application when first considered under delegated powers. This will provide clarity for all parties around the considerations taken into account and the reasons for the decision.

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