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SCOPE OF THE REGULATIONS
5. Historically, all appeals against refusal or failure to take decisions on planning applications have been made to the Scottish Ministers. But changes introduced by the 2006 Act will result in fewer appeals being made to the Scottish Ministers in the future. Instead in many cases, an applicant's right to challenge a local authority's delegated decision on a planning application for a local development will be by means of seeking a review of the delegated decision by that planning authority rather than making an appeal to Scottish Ministers. This follows the principle that decisions on local issues should be made by the local authority. The local review process only applies where the original planning decision is made by a person appointed under the terms of the council's new section 43A scheme of delegation introduced by the 2006 Act which has a link to local review. The procedures for seeking and carrying out a review are set out in The Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 3 2008 and explained in Circular 7/2009.
6. This circular explains the processes involved in appeals to Scottish Ministers only, as set by the Town and Country Planning (Scotland) Appeals Regulations 2008. These new regulations set out the procedures that will apply to appeals in respect of:
- Decisions on planning applications, or the failure to take such decisions (including those appeals recalled for a decision by Scottish Ministers);
- Enforcement notices;
- Notices requiring replacement of trees;
- Amenity notices; and
- Refusals of certificates of lawful use or development.
The regulations also set the relevant processes for handling planning applications called-in from planning authorities for decision by Scottish Ministers.
7. There are a small number of appeals against other decisions which are unaffected by the 2006 Act because the arrangements for dealing with them are contained in other legislation. These include appeals against decisions in relation to applications for: listed building consent; conservation area consent; advertisement control; and hazardous substances consent. In the meantime, statutory appeals procedures in relation to these regimes remain unchanged. A revised statutory instrument setting out the procedures for such appeals has been made separately to provide clarity around the procedures for those appeals 4. But the principles of the new appeals regulations will be applied wherever possible, particularly to avoid unnecessarily protracted processes. The Scottish Government intends to formally align these appeals with the procedures set out in the new appeals regulations when opportunities arise to review the relevant primary legislation.
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