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PLANNING APPEALS

30. While reviews of decisions in respect of planning applications subject to the s.43A scheme of delegation will be made to the local review body, all other appeals will be made to Scottish Ministers. As indicated in paragraph 1, the intention is that the appeal system should be made more efficient without losing the key strengths of the current arrangements.

31. In common with the proposed approach for local review, we propose to reduce the timescale for appealing to Scottish Ministers from six months to three months. This will reduce uncertainty for objectors and planning authorities whilst providing appellants with a reasonable period within which to consider whether to appeal or to submit a fresh planning application that addresses the reasons for refusal.

32. The principles of front-loading the system apply equally to appeals to Scottish Ministers as they do to other elements of the planning process. Section 47A of the Act restricts the ability of parties to introduce matters that were not before the planning authority at the time the proposal was considered by them. An appellant wishing to introduce new material into the appeal process will be required to demonstrate either that the material could not have been made available earlier in the process or that it is being produced in consequence of exceptional circumstances. The proposed changes do not reduce the responsibility on those making determinations under the Planning Acts to take account of all material considerations and to have regard to the provisions of the development plan. The proposed changes to the appeal process will prevent proposals significantly changing late in the process. New section 32A introduced by the 2006 Act will prevent proposals from being varied once an appeal has been made. Where an appellant wishes to alter proposals following a decision by the planning authority a revised planning application should be submitted to the planning authority.

Method of examination

33. At present appeals are determined through one of the following methods, or a combination of them:

• Written submissions are considered the most straightforward method of determination, based on an exchange of written representations and are used in 90% of current appeals. We consider that this method is most appropriate where the position of the respective parties is clear and no further discussion or examination is required in order for the appointed decision taker to reach a proper understanding of the issues. In such cases an oral process adds no value in examining the key issues.
• Hearings enable parties to provide further explanation of their opinion within the format of a structured discussion led by the person appointed to determine the case. Only those issues that require clarification and which are susceptible to this approach would be considered in this way; other matters where the position of parties is clear would be considered on the basis of their written submissions. Hearings can assist in clarifying issues in an atmosphere that is less intimidating than a formal, adversarial, inquiry.
• In future , inquiry sessions will be reserved for more complex issues in already complicated cases and for those situations where the factual position is in dispute and effective resolution would be unlikely either through an exchange of written submissions or a hearing. In an inquiry session the process is formal: the appointed person hears evidence from witnesses and that evidence, which may be heard on oath, is subject to cross-examination.

34. In future, Scottish Ministers will take into account the preferred method of determination suggested by the principal parties but the decision on which route should be taken to examine the appeal, whether written submission, hearing, inquiry session, or combination of these, will be made by Scottish Ministers. The existing right to be heard will therefore be changed, avoiding the need to hold hearings or inquiries where these are not necessary to fully examine the issues in the appeal. The inquiry process will thus be reserved for those issues where cross-examination is required. The scope of the inquiry sessions will also be focussed on the key issues which require more rigorous examination. In some cases a combination of the methods outlined above will be applied. In introducing these changes we intend that the appeal process should become more proportionate without reducing the quality of determination.

35. While the appeal by Scottish Ministers is a new decision and one that must take account of all material considerations, the changes being introduced highlight the importance of introducing all supporting material early in the process. It is also important that parties are clear on the positions adopted by others and that the scope for these to shift over time is reduced so that there is greater clarity throughout the process.

The appeal process

36. When an appeal is made to Scottish Ministers it should be accompanied by full grounds of appeal and any documentation supporting it. Draft regulation 5 sets out what is required to provide adequate notice of the appeal. The notice of the appeal should include full details of the appellant and of the application in respect of which an appeal is made. It should include details of the matters that the appellant considers need to be examined and the preferred method of doing so. The appellant will also be required to identify any material which was not before the planning authority and explain why this was unable to be provided earlier in the process. The notice of appeal and supporting documents should be copied to the relevant planning authority at the same time notice of appeal is given to Scottish Ministers.

37. Having received a notice of appeal, the planning authority will provide a response to Scottish Ministers within a 14 day period. This will include the authority's view on what issues need to be examined and the appropriate method of doing that together with the relevant documents that were before the authority and taken into account in reaching its decision. The report of handling (in cases where a determination has been made) should also be provided. Where the planning authority has introduced new material the appellant should be given an opportunity to comment on that material. Within 14 days of receiving notice of an appeal, the planning authority will be required to write to interested parties who have made representations advising them of the appeal, and confirming that comments previously made will be taken into account when a decision is made on the appeal. Interested parties will be advised where the notice of appeal, the planning authority's response and supporting documents may be viewed but it is not the intention that additional comments will be canvassed from third parties.

38. In some instances, once the appeal and planning authority's response to it have been received, the appeal will be able to be decided without further reference to parties and a decision prepared based on the material submitted. Where Scottish Ministers require additional information in order to arrive at a decision then the draft regulations allow for that to be provided and for the relevant parties to comment on the new material.

39. The draft regulations provide that Scottish Ministers can determine an appeal by one or by a combination of the methods of examination described at paragraph 33 above. The schedules to the draft appeals regulations describe the process that is to be applied in the case of hearing sessions and inquiry sessions.

40. In notifying interested parties that a hearing is to be held, Scottish Ministers will specify the matters that are to be considered at the hearing. The draft regulations set out the procedure for notifying parties of the hearing and for the exchange of hearing statements between the parties. The hearing process will be as determined by the person appointed to hold it but it is not intended to be adversarial.

41. The draft regulations also set out the procedure to be followed at inquiry sessions. A number of changes are proposed with a view to promoting greater efficiency in these sessions. The existing provisions which include service of statements of case are being changed. Instead, Ministers will serve a procedure notice that will specify what issues are to be considered at the inquiry. In response to this, parties will set out how they intend to present their case at the inquiry and provide details of those appearing to give evidence. While precognitions will be retained, these will be restricted in length to not more than 2000 words to encourage parties to focus on the relevant issues under consideration. With greater emphasis on front-loading the system, the need for lengthy statements, either re-iterating arguments previously made or describing new material, has little place in the framework of examination now proposed.

CROWN DEVELOPMENT

42. Since June 2006 Crown development has been bound by planning legislation. There are certain caveats and alternative procedures set out in primary and secondary planning legislation in this regard to address the particular nature of the Crown. However, for the most part, applications for Crown development are expected to go through the same procedures and processes as any other comparable non-Crown development proposal.

43. The secondary legislation which came into force in 2006 included provisions around inquiries procedures to deal with urgent applications under section 242A of the Town and Country Planning (Scotland) Act - that is where development is of national importance and is required urgently - and applications or appeals to which section 265A of the 1997 Act applies because public disclosure of information would not be in the national interest - where issues of national security are involved for example. We are considering similar provisions in relation to the draft legislation included in this consultation paper.

44. The legislation on schemes of delegation which result in local reviews is a new procedure and which would clearly have implications in relation to, for example, applications involving information which was sensitive on national security grounds. We are considering further the application of these procedures to Crown development.

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