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ANNEX B
SCOTTISH STATUTORY INSTRUMENTS
2008 No.
TOWN AND COUNTRY PLANNING
The Town and Country Planning (Scotland) Local Review Procedure Regulations 2008
Made - - - - 2008
Laid before the Scottish Parliament 2008
Coming into force - - 2008
The Scottish Ministers make the following regulations in exercise of the powers conferred by section 43A(10), (11), (13) and (17), 275 and 275A of the Town and Country Planning (Scotland) Act 1997( a) and all other powers enabling them to do so.
Citation and commencement
1. These Regulations may be cited as the Town and Country Planning (Scotland) Local Review Procedure Regulations 2008 and shall come into force on {insert date}.
Interpretation
2. In these Regulations-
"Act" means the Town and Country Planning (Scotland) Act 1997;
"additional party" means in relation to a request for further written representations or information or a hearing session, as the case may be, a body or person other than the applicant to whom the local review body gives a procedure notice;
"appointed officer" means a person appointed by virtue of a scheme of delegation under section 43 of the Act by the planning authority to determine the application which is subject to review;
"consulted person" means an authority or person consulted by the planning authority in compliance with a requirement imposed by virtue of section 43(1)(c) of the Act;
"hearing statement" means, and is comprised of-
(a) a written statement which contains particulars of the case relating to the specified matters which a person proposes to put forward at a hearing session; and
(b) a list of documents (if any) which the person putting forward that case intends to refer to, rely on or put in evidence.
( a) 1997 c.8. Sections 43A and 275A were respectively inserted by section 17 and 52 of the Planning etc. (Scotland) Act 2006 (asp 17) (the "2006 Act"). Section 275 was amended by [ ] and section 53(16) of the 2006 Act.
"interested party" means-
(a) any consulted person from whom representations were received (and not subsequently withdrawn) by the planning authority in connection with the application;
(b) any other person from whom representations were received (and not subsequently withdrawn), by the planning authority before the end of the period mentioned in section 38(1) of the Act;
"local review body" means, in respect of the review of a case, the planning authority to whom the application for planning permission, consent, agreement or approval, as the case may be, was made;
"new issues" has the meaning given in regulation 9(4);
"reference number of the application" means the unique number assigned by the planning authority to the application;
"specified matters" are-
(a) in relation to a request for further written submission, those matters which are specified in the procedure notice served in respect of that request;
(b) in relation to a particular hearing session, those matters which are specified in the procedure notice served in respect of that hearing session.
PART 1
Review
Review on failure to determine the application
3. -(1) An applicant may require the local review body to review the case under section 43A(8)(c) of the Act if the appointed officer has failed to give to the applicant notice of their decision or determination or notice of referral of the application to the Scottish Ministers within the period specified in regulation 29(4) of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008.
(2) The period prescribed for the purposes of section 43A(17) of the Act is the period of two months beginning on the date when the requirement to review is made by virtue of section 43A(8)(c).
Notice of Review
4. -(1) An applicant may require the local review body to review a case under section 43A(8) by giving notice in writing in accordance with this regulation and regulation 5.
(2) In the case of a review required by virtue of-
(a) section 43A(8)(a) or (b) of the Act, the notice must be served on the local review body within the period of three months beginning with the date of notification of the decision; and
(b) section 43(8)(c) of the Act, the notice must be served on the local review body within-
(i) the period of three months beginning with the date of expiry of the period specified in regulation 29(4) of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008 or;
(ii) such extended period as may be agreed upon in writing between the applicant and the local review body.
(3) Subject to paragraph (4)-
(a) all matters which the applicant intends to raise in the review must be set out in or accompany the notice of review; and
(b) all documents, materials and evidence which the applicant intends to rely on in the review must accompany the notice of review.
(4) In addition to matters set out in the notice of review, the applicant may raise matters only in accordance with and to the extent permitted by regulation 9 and Schedule 1.
Form of Notice of Review
5. The notice of review must include-
(a) the name and address of the applicant;
(b) the date and, if known, the reference number of the application in respect of which the review is made;
(c) the name and address of the representative of the applicant (if any) and whether any notice or other correspondence which is required by these regulations to be sent to the applicant should be sent to the representative instead of the applicant;
(d) a statement setting out the applicant's reasons for requiring the local review body to review the case;
(e) a statement identifying any matter raised which was not before the appointed officer at the time the decision in question was made where the applicant can demonstrate why the matter-
(i) could not be raised before that time;
(ii) could not be raised before that time as a consequence of exceptional circumstances and specifying those circumstances;
(f) a statement that the notice is a notice of review.
Notification to interested parties and publication
6. -(1) The local review body must not later than 14 days following notification of the review give notice of the review to each interested party.
(2) Notice under paragraph (1) shall-
(a) state the name of the applicant and the address of the site to which the review relates;
(b) describe the application;
(c) state that copies of any representations previously made with respect to the application, other than representations which the interested party has asked to be treated as confidential, will be sent to the applicant; and will be considered by the local review body when determining the review; and
(d) where the interested party may inspect a copy of the notice of review
(3) The local review body is to-
(a) make a copy of the notice of review available for inspection at an office of the planning authority; and
(b) publish a copy of the notice of review on the internet.
Local Review Body
7. -(1) A review of a case by virtue of section 43A(8) of the Act is to be conducted by a committee of the planning authority comprising at least three and not more than five members of the authority.
(2) Meetings of the local review body at which decisions-
(a) under regulation 9 relating to the manner in which the review, or any stage of the review, is to be conducted; or
(b) as to how the case under review is to be determined,
are to be held in public.
Determination without further procedure
8. Where the local review body considers that the notice of review, the decision notice and report on handling provide sufficient information to enable them to determine the review, they may, subject to regulation 9(3), determine the review without further procedure.
Decision as to procedure to be followed
9. -(1) The local review body may determine the manner in which the review, or any stage of the review, is to be conducted and are to do so in accordance with this regulation and the provisions of Parts 1 and 2 of Schedule 1.
(2) The local review body may determine at any stage of the review that further representations should be made or further information should be made or provided to enable them to determine the review.
(3) Where the local review body so determine, the review or a stage of the review is to be conducted by one of or by a combination of the procedures set out in the provisions of the Schedule and may comprise the holding of one or more hearing sessions.
(4) Where the local review body session proposes to take into consideration any new matter, evidence or any new issue of fact which was not raised in the decision notice ("new issues"), the local review body shall not come to a decision on the case without first notifying the applicant and any interested parties of their proposal and the reasons for it and affording the applicant and any interested parties an opportunity of making representations thereon in writing within 14 days or at a hearing session.
(5) Where, or the extent to which the planning authority considers that such further representations or information are to be made or provided-
(a) only in writing, the provisions of Part 1 of Schedule 1 apply;
(b) at a hearing session, the rules set out in Part 2 of Schedule 1 apply.
Decision Notice
10. -(1) The local review body must give-
(a) the applicant; and
(b) every person who has made (and not subsequently withdrawn) representations in respect of the application.
notice ("a decision notice") as to the manner in which the review has been dealt with within the period mentioned in regulation 3.
(2) A decision notice must, in addition to the matters required by section 43A(12)(a) of the Act-
(a) in the case of an application for planning permission-
(i) any conditions to which the decision is subject;
(ii) include a description of the proposed development (including identification of the plans and drawings showing the proposed development) for which planning permission has been granted, or as the case may be, refused;
(iii) include a description of the location of the proposed development, including where applicable, a postal address;
(iv) include the reference number of the application;
(v) include a description of any variation made to the application in accordance with section 32A of the Act;
(vi) a statement as to the effect of section 58(2) or 59(4) of the Act, as the case may be, or where the planning authority have made a direction under section 58(2) or 59(5) of the Act, give details of that direction; and
(vii) if any obligation is to be entered into under section 75 of the Act in connection with the application state where the terms of such obligation or a summary of such terms may be inspected;
(b) in the case of an application for a consent, agreement or approval required by a condition imposed on a grant of planning permission include-
(i) a description of the matter in respect of which approval, consent or agreement has been granted, or as the case may be, refused;
(ii) the reference number of the application; and
(iii) the reference number of the application for the planning permission in respect of which the condition in question was imposed.
(3) A decision notice must also contain-
(a) a statement of the number of representations made in respect of the application and a summary of the main issues raised by such representations;
(b) details of the authorities and persons consulted by the planning authority in respect of the application and a summary of the responses made by such authorities or persons;
(c) a statement as to whether-
(i) an appropriate assessment under the Conservation (Natural Habitats &c.) Regulations 1994 was carried out in respect of the proposed development;
(ii) a design and access statement was submitted in respect of the proposed development; or
(iii) any report on the impact or potential impact of the proposed development (for example the retail impact, transport impact, noise impact or risk of flooding) was submitted in connection with the application,
and where such a statement or report was submitted or such assessment carried out, a summary of the main issues raised by such statement, report or assessment;
(d) a summary of the terms of any planning obligation entered into under section 75 of the Act in relation to the grant of planning permission for the proposed development;
(e) details of the provisions of the development plan and any other material considerations (in addition to any to be included under above paragraphs) to which the planning authority had regard in determining the application; and
(f) particulars of any direction given under the Act or these Regulations in respect of the application.
(4) A decision notice must in the case of refusal or approval subject to conditions be accompanied by a notification in the terms set out in Schedule 2.
Authorised to sign by the Scottish Ministers
St Andrew's House,
Edinburgh
2008
SCHEDULE 1
Regulation 9
PART 1
Written submissions
1. Where the local review body has determined that further representations should be made or further information should be made or provided by means of written submissions in relation to specified matters, the local review body is to by written notice (a "procedure notice") request such further representation or information to that effect from-
(a) the applicant; or
(b) any interested party who made representations in relation to specified matters;
(c) any other body or person from whom the local review body wishes to receive further representations or to provide further information in writing on specified matters.
2. The procedure notice is to-
(a) set out the matters on which such further representations or information is requested; and
(b) specify the date by which such further representations or information is to be sent to the local review body.
3. Any further representations or information made in response to such a request is to be sent to the local review body on or before the date specified in the procedure notice and a copy of any such further representations or information is to be sent to the applicant.
4. The applicant may, within a period of 14 days from receipt of the response, send further representations or information to the local review body in reply to it.
PART 2
Hearing Sessions
Procedure notice and specified matters
5. -(1) Where the local review body has determined that the review or a stage of the review, is to be conducted by means of the holding of a hearing session to consider specified matters they are to give written notice to that effect ("the procedure notice") to-
(a) the applicant; and
(b) any interested party who made representations in relation to specified matters;
(c) any other body or person from whom the local review body wishes to receive further representations or to provide further information on specified matters at a hearing session.
(2) The procedure notice is to set out the matters which are to be considered at the hearing and where the hearing is to be held by virtue of regulation 8(4) must include any new issues.
(3) Only specified matters are to be considered at the hearing session.
Date and notification of hearing session
6. -(1) The date fixed by the local review body for the commencement of a hearing session shall be-
(a) not later than 6 weeks after date of the procedure notice; or
(b) where the local review body are satisfied that in all the circumstances of the case it is impracticable to commence the hearing session within such 6 week period, the earliest practicable date after the end of that period.
(2) The place at which the hearing session is to be held shall be determined by the local review body.
(3) The local review body must give not less than 4 weeks' notice of the date, time and place fixed by them for the holding of a hearing session to every person entitled to appear at the hearing session.
(4) The local review body may vary the time or place for the holding of a hearing session (whether or not the revised date is within the applicable period mentioned in paragraph (1)) and shall give such notice of any such variation as appears to them to be reasonable and paragraph (3) shall apply to a variation of a date as it applied to the date originally fixed.
Appearances at hearing session
7. The persons entitled to appear at a hearing session are-
(a) the applicant; and
(b) any additional party.
Service of hearing statements, etc
8. -(1) A person entitled to appear at the hearing session shall not later than 4 weeks after the date of the procedure notice serve a hearing statement on the local review body and on each other party entitled to appear at the hearing session.
(2) In addition to the hearing statement served under paragraph (1), each person entitled to appear at the hearing session shall, not later than 2 weeks before the commencement of the hearing session serve upon the local review body a copy of every document or the relevant part of any document which such person intends to refer to or put in evidence.
(3) Any person who has served a hearing statement in accordance with this rule shall-
(a) when required by notice in writing from the local review body provide such further information about the matters contained in the statement as the local review body may specify; and
(b) at the same time send a copy of such further information to any other person on whom the hearing statement has been served.
Notification of appointment of assessor
9. Where the local review body appoint an assessor, they shall notify the persons entitled to appear at the hearing session of the assessor's name and of the matters on which the assessor is to advise the local review body.
Procedure at hearing
10. -(1) Except as otherwise provided in the rules set out in this Part of the Schedule, the local review body shall determine the procedure at a hearing session.
(2) The local review body is to state at the commencement of the hearing session the procedure the local review body proposes to adopt subject to consideration of any submission by any of the persons entitled to appear at the hearing session.
(3) Any person entitled to appear may do so on that person's own behalf or be represented by another person.
(4) Where there are two or more persons having a similar interest in the issues being considered at the hearing session, the local review body may allow one or more persons to appear on behalf of some or all of any persons so interested.
(5) A hearing shall take the form of a discussion led by the local review body and cross-examination shall not be permitted unless the local review body considers that cross-examination is required to ensure a thorough examination of the issues.
(6) A person entitled to appear at a hearing session shall be entitled to call evidence but, subject to paragraphs (8) and (10), the calling of evidence shall otherwise be at the local review body's discretion.
(7) The local review body may require any person appearing or present at a hearing session who, in the local review body's opinion, is behaving in a disruptive manner to leave and may refuse to permit that person to return, or may permit that person to return only on such conditions as the local review body may specify; but any such person may submit to the local review body in writing any evidence or other matter before the close of the hearing session.
(8) The local review body may proceed with a hearing session in the absence of any person entitled to appear at the hearing session.
(9) The local review body may allow any person to alter or add to a hearing statement served under rule 4 so far as may be necessary for the purpose of the hearing session; but the local review body shall (if necessary by adjourning the hearing session) give every other person entitled to appear at the hearing session an adequate opportunity of considering any fresh matter or document.
(10) The local review body may take into account any written representation or evidence or any other document received by the local review body from any person before a hearing session opens or during the hearing session provided that the local review body discloses it either, where practical, in advance of the hearing session by circulating copies of the documents or otherwise, at the hearing session, by ensuring that copies are available for inspection.
(11) The local review body may from time to time adjourn a hearing session, and
(a) if at the hearing session the local review body announces the date, time and place for reconvening the adjourned hearing session no further notice shall be required, but
(b) if the local review body makes no such announcement the local review body shall give such notice as the local review body considers reasonable and appropriate.
Site inspections
11. -(1) The local review body may at any time make an unaccompanied inspection of the land without giving notice of the local review body's intention to the persons entitled or permitted to appear at the hearing session.
(2) Subject to the provisions of this rule, the local review body may, before or during the hearing session, inspect the land during or after the close of the hearing session in the company of such of the persons entitled under paragraph (3) of this rule to accompany the local review body as desire to do so.
(3) Where the local review body intends to make an inspection by virtue of paragraph (2) of this rule, the local review body shall during the hearing session announce the date and time at which the local review body proposes to do so and the applicant and all persons entitled or permitted to appear at the hearing session shall be entitled to accompany the local review body on any such inspection.
(4) The local review body shall not be bound to defer an inspection if any person entitled to accompany the local review body is not present at the time appointed.
SCHEDULE 2
Regulation 10
NOTICE TO ACCOMPANY REFUSAL ETC.
TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997
Notification to be sent to applicant on refusal of planning permission or on the grant of permission subject to conditions
NOTICE TO ACCOMPANY REFUSAL ETC.
TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997
Notification to be sent to applicant on determination by the planning authority of an application following a review conducted under section 43A(8)
1. If the applicant is aggrieved by the decision of the planning authority to refuse permission for or approval required by a condition in respect of the proposed development, or to grant permission or approval subject to conditions, the applicant may question the validity of that decision by making an application to the Court of Session. An application to the Court of Session must be made within 6 weeks of the date of the decision.
2. If permission to develop land is refused or granted subject to conditions and the owner of the land claims that the land has become incapable of reasonably beneficial use in its existing state and cannot be rendered capable of reasonably beneficial use by the carrying out of any development which has been or would be permitted, the owner of the land may serve on the planning authority a purchase notice requiring the purchase of the owner of the land's interest in the land in accordance with Part V of the Town and Country Planning (Scotland) Act 1997.
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations make provisions in connection with
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