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PLANNING APPEAL PROCESS

The Notice of Appeal

8. An appeal to the Scottish Ministers against a decision on a planning application (or a failure to make a decision) needs to be made in writing. Regulation 3 requires the notice to be given in a form obtained from the Scottish Ministers. Appeals may be submitted online; forms and guidance for doing so are available online at www.eplanning.scotland.gov.uk. The notice of appeal needs to be served within a period of three months from the date of the decision notice or, in the case of an appeal against non-determination, three months from the expiry of the prescribed period for determining the application. This is a change from previous practice which allowed appeals to be made within six months of these relevant dates, although that six month period will continue to apply where the relevant date is before 3rd August 2009. Once the prescribed period has passed there is no scope for an appeal to be lodged.

9. Regulation 3 sets out what is required to accompany a notice of appeal to the Scottish Ministers. The notice of appeal must include the following information:-

• The name and address of the appellant;
• The date and reference number of the relevant planning application;
• The name and address of any representative of the appellant for correspondence purposes; and
• A statement setting out full particulars of the appeal including a note of what matters the appellant feels should be taken into account in determining the appeal and by which procedure (or combination of procedures) the appellant would prefer the appeal to be conducted.

The appeal form provided by the Scottish Government will prompt the provision of all of this information. Appeals will not be accepted if they are submitted without this information.

10. All matters that the appellant intends to raise in the appeal must be set out in the notice of appeal (on a form obtained from the Scottish Ministers) or in the accompanying documents. All documents, including a copy of the planning application and all accompanying certification, decision notice if appropriate, and copies of plans submitted to the planning authority and any other evidence that the appellant intends to use to support his case should also accompany the notice of appeal.

11. The appellant is only entitled under the regulations to raise additional matters at a later stage either to respond to any new matter raised by the planning authority, representations from interested parties or where the person appointed by the Scottish Ministers to consider the appeal (referred to as the "appointed person") has specifically requested further information. It may be therefore, that the point of lodging the appeal will be the only opportunity the appellant will have to provide supporting information; so it is essential that a full case is stated at that time.

12. The 2006 Act inserts a new provision at section 32A of the Town and Country Planning (Scotland) Act 1997 confirming that an application is not to be varied after an appeal has been made. Section 47 as amended by the 2006 Act confirms that the applicant may appeal to the Scottish Ministers against the decision. This provides clarity about the extent to which the appeal process should focus on the proposal that was considered by the planning authority. Where an applicant considers that it would be beneficial to revise a proposal, a new planning application should be submitted for consideration by the planning authority.

Intimation to planning authority

13. At the same time that the appellant gives notice of appeal to Scottish Ministers the appellant must also inform the planning authority. Regulation 4 requires that the appellant sends to the planning authority a copy of the notice of appeal, a list of all documents, materials and evidence which the appellant intends to rely upon and which accompanied the notice of appeal. There is no need for the appellant to send the planning authority copies of documents the appellant has already submitted to that authority. The appellant should however also send to the planning authority a copy of any documents, materials and evidence which - for whatever exceptional reason - had not already been provided to the planning authority while it had been considering the application.

Planning authority response

14. Having received the notice of appeal from the appellant, regulation 4 (2) requires the planning authority to provide a response within 21 days. The planning authority should send to the Scottish Ministers and the appellant the following information:

• A note of the matters that the planning authority considers should be taken into account in determining the appeal and by what procedure (or combination of procedures) the authority thinks these should be examined.
• A copy of the documents (other than those specified by the appellant in his list of documents, materials and evidence) which were taken into consideration by the planning authority in making its decision.
• A copy of any report on the authority's handling of the planning application.
• The conditions which the planning authority consider should be imposed in the event that planning permission is granted.

The Scottish Government's Directorate for Planning and Environmental Appeals ( DPEA) provide a form to help order this submission; available at http://www.scotland.gov.uk/Topics/Built-Environment/planning/decisions-appeals/Appeals/dpea.

15. Regulation 4(3) allows that having received the planning authority's response the appellant can within 14 days, send to Scottish Ministers and to the planning authority any comments on the matters raised by the planning authority which had not previously been addressed in the decision notice. At the same time, the appellant can also provide any further documents or other evidence in support of those additional comments. Planning authorities are expected to provide full reasons in their decision notice and so this regulation should only need to be used infrequently. This is not intended to be a chance for appellants to add to their response to issues raised in the decision notice.

16. Under the terms of the regulations, no additional response will routinely be sought from the planning authority; although the appointed person may specifically request further submissions from the appellant, planning authority and any other specified party through a subsequent procedure notice (see paragraphs 21 to 36 below).

Notification to interested parties

17. Regulation 5 requires planning authorities to give interested parties notice of the appeal within 14 days of the authority being notified of the appeal. "Interested parties" are any statutory consultees or any other persons who made representations to the planning authority during the authority's consideration of the planning application, which were not subsequently withdrawn. Interested parties should be advised of where the notice of appeal can be inspected, and also that the representations they previously made will be sent to the Scottish Ministers and the appellant by the planning authority. As representations previously made and lodged with the planning authority by interested parties will be taken into account before a decision is reached on the appeal; there is no need or expectation for the same matters to be raised again with the Scottish Ministers. Nevertheless, regulation 5(4) allows that interested parties may make further representations to the Scottish Ministers in respect of the appeal within 14 days from the date of being notified of the appeal. In turn, the regulations require Scottish Ministers to send a copy of any representations received by them to the appellant and to the planning authority, each of whom are provided with an opportunity to respond, again within 14 days from issue.

18. The planning authority are to make all the relevant appeal papers available for inspection and for copying at an office of the planning authority.

Deadlines for provision of statements and other evidence

19. As noted above, the regulations set a number of statutory deadlines, for the provision of:

• the planning authority's response to the appeal (21 days);
• the appellant's further comments (14 days);
• the planning authority's notification to interested parties (14 days);
• further representations from interested parties (14 days); and
• appellant's and planning authority's comments on representations from interested parties (specified date, not less than 14 days)

In the interests of efficiency in decision-making, the Government expects parties to provide this information at the earliest opportunity.

Matters which may be raised in an appeal

20. Section 47A of the Act restricts the introduction of material in the appeal process which was not before the planning authority at the time the decision that is the subject of the appeal was made. Parties are not entitled to raise any such matter unless they can demonstrate that it could not have been introduced earlier in the process, or that it arises as a consequence of exceptional circumstances. This does not alter the entitlement to have the provisions of the development plan or any other material considerations taken into account in the decision-making process. These changes, together with the restrictions introduced around variation of proposals described in paragraph 12 above, are consistent with the Government's intention that the planning system should be frontloaded.

Procedure for determination

21. Once the exchange of information set out in the paragraphs above, has been completed, and where the person appointed to decide the appeal has sufficient information to make a decision, regulation 7 allows the decision to be made, without there being any further procedure or information gathering. It is at the appointed person's discretion whether further procedure would be needed. For example, it does not follow that, where either the appellant or the planning authority has requested a public local inquiry, that an inquiry would be arranged. As soon as the appointed person feels they have sufficient information to allow them to make a decision, the regulations provide that they may determine the appeal.

Further evidence

22. If, however, the appointed person decides that further information or additional representations are required to enable him to determine the appeal, the appointed person may do this by one of, or by a combination of the procedures set out in regulation 8 (further written submissions, hearing sessions, inquiry sessions or a site inspection). The appointed person will identify each of the matters on which further information is needed, and also the procedure to be used to obtain it. This will be clearly set out to the parties involved in what the regulations refer to as a procedure notice.

Site Inspections

23. Irrespective of whether there is sufficient written evidence available to reach a decision, the appointed person may, at any stage, consider it necessary to carry out a site inspection before making a decision. Regulation 11 sets out details about site inspections. Site inspections may be either unaccompanied or accompanied. Where the appointed person intends to make an unaccompanied inspection of the site they will inform the appellant and the planning authority. If for any reason the appointed person considers an accompanied site inspection would be appropriate, then the appellant, the planning authority and all interested parties will be informed of the arrangements, including the date and time. The appointed person is not obliged, or likely, to defer the site inspection if any of the parties or interested persons is not present or available on the set date.

Pre-examination meetings

24. In some instances it will be helpful for the appointed person to hold a pre-examination meeting to consider how the appeal or a particular stage of it can best be conducted efficiently and expeditiously. Regulation 9 provides a procedure for this and for involving the appellant, the planning authority and the interested parties. The arrangements for holding and giving notice of such a meeting and for deciding the matters to be discussed are for the appointed person to determine. It is likely that pre-examination meetings will only be required in a small number of complex cases.

Written submissions

25. Regulation 10 sets out the procedure for seeking further written submissions on the appeal. The appointed person is free to seek additional representations or information from the appellant, the planning authority or from any other body or person. The procedure notice will set out what information is required and by what date and will provide details of those who have been requested to provide the additional information. Parties providing such further information to the appointed person should at the same time send copies to all parties specified in the procedure notice, including the appellant and the planning authority. All of these parties then have an opportunity to send comments on such further information to the appointed person within 14 days again providing copies to the appellant, planning authority and others specified in the procedure notice. The timetables for the provision of this information must be observed; late submissions may not be taken into consideration in the final decision.

Hearing sessions

26. Schedule 1 to the regulations sets out the hearing sessions rules. These provide the appointed person with scope to determine what procedure should be followed at a hearing into specified matters that are set out in the procedure notice. The hearing is intended to take the form of a discussion led by the appointed person. Formal cross examination of participants will not be allowed. While the rules provide discretion for the procedure the appointed person thinks appropriate to follow during the hearing, they also provide a framework to ensure that the relevant parties have clear notice of the hearing session, the other participants in the process and clarity about the issues and evidence to be considered.

27. Where a hearing session forms part of the appeal process, the appointed person is required to give written notice of that to the appellant, to the planning authority and to those parties who made representations into specified matters. Any party intending to participate in the hearing must inform the appointed person within 14 days from the date of the notice as set out in Rule 2. Only those matters in the procedure notice are to be considered at the hearing. Because of that, only those who made related representations are to be given notice of the hearing: it is not the intention that all parties who made other representations on the appeal should participate in the hearing. The appointed person may also give notice to any other body or person who is to provide further representations on the specified matters.

28. It is for the appointed person to give, those entitled to appear, notification of when and where the hearing is to take place and to give whatever notice the appointed person considers to be reasonable in the circumstances (Rule 3). Those who are entitled to appear at a hearing session may be required to send a hearing statement and any supporting documents to the other parties entitled to appear at the hearing and to the appointed person (Rule 4). This will not be required in every case and will be for the appointed person to determine. Rule 4(5) confirms a hearing statement to be a written statement outlining the case relating to the specified matters on which the appointed person has sought information in the procedure notice, together with a list of supporting documents to be relied upon and a list of any other persons who are to speak at the hearing session including the matters to be covered by each person and their relevant qualifications. The rules are intended to ensure that all parties are clear on the issues and evidence to be considered at the hearing session.

29. At the start of the hearing session the appointed person is to explain the procedure they intend to adopt, taking into account submissions made by any of the parties entitled to appear. Parties may be represented or, where two or more persons have a similar interest, one or more may appear for the benefit of some or all.

Inquiry sessions

30 . Schedule 2 to the regulations sets out inquiry session rules. In common with the procedure for hearing sessions, the inquiry sessions will examine only those specified matters on which the appointed person sought further information, as set out in the procedure notice. The parties entitled to appear at inquiry sessions will be;

• the appellant;
• the planning authority; and
• those who made, or who the appointed person wishes to make, representations into the specified matters (where they have confirmed they intend to appear at the inquiry in line with Rule 1(4)).

Those provided with written notice on the inquiry session by the appointed person must confirm their intention to attend the session within 14 days of the date of the notice.

31. Rule 3 requires the appointed person to provide such notice of the date, time and place fixed for the holding of the inquiry session as they consider reasonable, to those parties entitled to appear at the inquiry session. However the appointed person may also require the planning authority to take one or more of the following additional steps to publicise the inquiry session:-

• Publish notices in a local newspaper and on a website not less than 14 days before the inquiry session; or
• Serve notice of the inquiry session in a form and on such parties as the appointed person specifies.

32. Where required to by notice from the appointed person, those entitled to appear at the inquiry session need to provide copies of an inquiry statement to the appointed person and to the appellant and planning authority. This should set out the particulars of the case relating to the specified matters, a list of documents to be relied upon, and a list of any other persons who are to speak at the inquiry session including the matters to be covered by each person and their relevant qualifications. The appointed person will provide those entitled to appear at the inquiry session with details of when information should be submitted.

33. The inquiry session rules require that precognitions outlining evidence that a witness will give to the inquiry should not exceed 2000 words in length.

34. The rules provide the appointed person with scope to determine the procedure at the inquiry session but he is to state at commencement of the session what the procedure will be, taking account of submissions from those entitled to appear. The rules require the appointed person to explain the order in which specified matters are to be considered and the order in which those entitled to appear are to be heard. Parties may be represented or, where two or more persons have a similar interest, one or more may appear for the benefit of some or all.

35. Those entitled to appear at an inquiry session may call evidence, cross-examine witnesses and make closing statements. However, the appointed person can refuse to permit this wherever he considers that to be irrelevant or repetitious.

New evidence

36. Where, following conclusion of the examination procedure, the appointed person intends to take into account new evidence the regulations require them to give the appellant, the planning authority and other relevant parties described in the regulations an opportunity to make representations on the evidence before a decision can be made on the appeal. Regulation 12 defines "relevant party" as being those who were entitled to appear at a hearing session or inquiry session in relation to the specified matter which is subject of the new evidence or who were previously involved in providing further written evidence on the matter.

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