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Development Department Circular 1/2000

CODE OF PRACTICE FOR PLANNING APPEALS AND OTHER PLANNING CASES DETERMINED BY WRITTEN SUBMISSIONS

Introduction

This Code of Practice provides detailed guidance on the operation of procedures for determining planning appeals by means of written submissions and site inspection. The Code also applies to applications for planning permission and for listed building consent which have been called-in for the Scottish Ministers’ determination and to appeals against refusal of listed building consent.

Background

1. The written submissions procedure was introduced as an alternative to the public local inquiry procedure to offer a simple means of determining fairly, impartially and efficiently small scale planning and planning-related appeals involving uncomplicated issues. In the vast majority of planning cases handled by the Scottish Executive, the Scottish Ministers delegate the responsibility for decision making to an appointed Reporter, but in a minority of cases they retain jurisdiction through use of their recall and call-in powers. Over 90% of delegated cases are determined by written submissions, the remainder being the subject of a public local inquiry or a hearing. Where the decision-making responsibility has not been delegated, a higher proportion of cases proceed by way of a public local inquiry or hearing. In delegated appeals appellants and planning authorities are generally encouraged to consider the written submissions procedure as a first option.

2. The Town and Country Planning (Appeals) (Written Submissions Procedure) (Scotland) Regulations 1990 provide the statutory framework which applies to appeal cases. The Regulations in part are also applied by analogy to planning applications and applications for listed building consent which have been called in for Scottish Ministers’ determination and also to appeals for refusal of listed building consent.

3. For planning appeals proceeding by way of written submissions, the regulations envisage that the number of exchanges between the main parties will be kept to a minimum, normally consisting of :

• the appellant’s grounds of appeal;
• either the appeal questionnaire and related supplementary papers, including representations, or a statement on the appeal by the planning authority; and lastly,
• a written submission in response by the appellant.

4 The Scottish Ministers expect all parties to co-operate to ensure that the written submissions procedures operate efficiently and effectively. It is vitally important that parties present the necessary relevant background material in support of their case to the Scottish Executive Inquiry Reporters Unit (SEIRU), or, where appropriate, to the relevant client division of the Scottish Executive, to enable an informed and reasoned decision to be reached on every written submissions case. While SEIRU and client divisions of the Scottish Executive will apply the regulations to ensure that all parties continue to have an adequate opportunity to present their case, the Scottish Ministers retain the responsibility for ensuring that the exchange of submissions is administered quickly and efficiently. It is important to ensure that unnecessary delays do not result from a failure to adhere to the procedures and timescales prescribed in the regulations or from further time being spent on matters which are of little direct relevance to the issues in dispute or under consideration or which have already been sufficiently addressed in earlier correspondence. Failure to adhere to the timescales prescribed in the regulations could be considered unreasonable behaviour, which may result in an award of expenses (see paragraphs 42-45 below).

5. Experience confirms that, in practice, the exchanges of written submissions in delegated planning appeals are rarely limited to the exchanges outlined in paragraph 3 above. However, stricter controls have successfully been applied to the number and timescale of exchanges between the parties in non-delegated cases. The Scottish Ministers now propose to introduce similar controls in respect of all written submission cases. These controls would, in the majority of cases, limit submissions to an exchange between the main parties of the formal questionnaire/written statement with a tight deadline for any comments.

PLANNING AND PLANNING RELATED APPEALS

Pre-appeal considerations

6. National Planning Policy Guideline 1 (NPPG 1): The Planning System emphasises that, where planning permission is refused or is granted subject to conditions, the reasons given by the planning authority in the decision notice should be sound and clearly explained. In the case of refusal, the planning authority must explain to an applicant in the decision notice, in as much detail as is necessary, the exact nature of their objection to the development. It will not be enough for a planning authority to state that a proposal is rejected as contrary to a structure plan or local plan without showing that the plan in fact provides sound reasons for refusal. Stereotyped or general grounds of refusal are unhelpful. The same principles apply to decisions on other types of planning related applications. Section 128 of the Town and Country Planning (Scotland) Act 1997 ("the Act"), together with Part II of the Town and Country Planning (Enforcement of Control) (No.2) (Scotland) Regulations 1992, sets down the matters which a planning enforcement notice is required to contain. These matters include a requirement for the planning authority to specify the reasons why they consider it expedient to issue the enforcement notice.

7. Where permission, consent or approval is withheld, it is desirable that there should be discussion between the potential appellant and the planning authority prior to lodging an appeal, to establish whether the reasons for refusal might be overcome by alterations to the proposal which could then be the subject of a new application. Such negotiation will assist a potential appellant in assessing the likely prospect of success of a new application, which he should then balance against the cost and the time taken to prepare for and process an appeal. Clearly stated policies endorsed through the development plan system, and which remain relevant to a case, will not be set aside lightly. Potential appellants should be aware that it is for the Reporter and the Scottish Ministers to review the planning arguments and to reach a decision in accordance with the development plan, planning policy, relevant material considerations and the merits of the proposal. Where an appeal is unavoidable, early discussion with the planning authority may help to clarify and narrow the issues which remain in dispute and facilitate the agreement of background material.

Time periods for lodging appeals

8. Appeals against the refusal of planning permission, against conditions imposed on a grant of permission or against a planning authority’s refusal to approve a reserved matters submission, must be lodged with SEIRU within 6 months of the date of the planning authority’s decision. In the case of appeals against the failure of the planning authority to issue a decision within the prescribed period, the appeal must be lodged within 6 months of the date by which the planning authority should have issued a decision, i.e. 2 months from the date of receipt of the application or such later period as has been agreed in writing between the applicant and the planning authority. The timescale within which appeals must be lodged in relation to other planning related decisions is prescribed by the relevant regulations or by a development order. Where the appeal relates to an enforcement notice, it must reach the Scottish Ministers before the date specified in the notice as the date on which the notice is to take effect.

9. For planning, listed building consent and conservation area consent appeals, standard forms are available on request from SEIRU. Other appeals must be lodged with SEIRU in the form of a letter. An explanatory leaflet on each type of appeal is available on request from SEIRU.

Choosing the appropriate appeal procedure

10. In every case, the appellant and the planning authority should give careful consideration to whether the written submissions, hearing or public inquiry procedure is the appropriate means of presenting their case and resolving the issues in dispute. Only the appellant has the right to opt to proceed by way of written submissions. However this does not preclude either the appellant or planning authority from exercising their right to ask for a public local inquiry to be held. If either opts to be heard before a Reporter, the appeal will usually proceed by way of a public inquiry. In appropriate cases, however, where there are few interested persons and the issues are straightforward and lend themselves to resolution by a structured discussion, SEIRU may suggest the alternative of a hearing. Codes of Practice for public inquiries and hearings form the subject of Annexes to SODD Circular 17/1998. Should either the appellant or the planning authority wish to be heard at an inquiry, then statute requires that the matter will be determined on that basis.

11. Larger, more complex appeal cases generally involve detailed policy interpretation and technical or statistical analysis and in these and other cases there may also be important questions of fact in dispute. Such cases are frequently controversial, involving many objectors drawn from the local community. It is these cases which are most suited to the public inquiry procedure.

12. In every appeal case, the Scottish Ministers will consider at the outset whether the written submissions procedure is the appropriate means of determination. Notwithstanding a request from the appellant that the written submissions procedure should be followed, the Reporter, or the Scottish Ministers, may decide in terms of paragraph 6(1) of Schedule 4 to the Act that an inquiry is necessary. Such a decision will, however, be taken only in exceptional circumstances. The alternative of a hearing may be suggested where a written submissions appeal concerns a topic that involves particularly complex evidence which would benefit from face-to-face discussion. The hearing may cover all the issues involved in the case, or may focus on specific issues where discussion would be helpful. Where a case is proceeding by way of written submissions, but it becomes apparent during the course of the exchanges that the issues under consideration are of such a technical or complex nature that they cannot effectively be assessed on the basis of correspondence, the Reporter or the Scottish Ministers will convene a hearing or, very exceptionally, a public local inquiry.

The need to submit full grounds of appeal at the outset

13. Other than where an appeal is lodged against non-determination, it is essential that full grounds of appeal are stated at the outset. Where planning permission, consent or approval has been withheld, the grounds of appeal should contain a clear explanation as to why the appellant disagrees with each of the planning authority’s reasons for refusal and not merely a statement that the reasons are not accepted. In the case of an appeal against an enforcement notice, a listed building enforcement notice, or an advertisement enforcement notice, the appellant must state the grounds on which it is based. These are specified in section 130 of the Act, section 35 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 and regulation 25 of the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984. Where an appellant against a planning or listed building enforcement notice does not supply the required grounds of appeal and supporting facts, he/she will be notified in writing by SEIRU that failure to do so within a period of 14 days will result in the appeal being dismissed.

14. In each of the exchanges which the regulations allow, parties should aim for clarity, brevity and precision. Some professional agents submit only the barest grounds of appeal at the outset, waiting until receipt of the questionnaire or the planning authority statement to present the substance of their client’s case. That approach is contrary to the spirit of the written submissions procedure and can lead to an unacceptably large number of exchanges between the parties, delays in the issue of decisions and the failure to meet performance targets as set out in NPPG 1.

Time periods prescribed by the Written Submissions Regulations

15. In the case of delegated written submissions appeals, the regulations require:

16. Where a party expects to have difficulty in complying with a prescribed time limit, that fact, and the reasons for it, should be notified to the appeal case officer in SEIRU at the earliest opportunity. Only in exceptional circumstances which could not have reasonably been foreseen, or in the case of public or other recognised local holidays, is a time limit likely to be extended.

17. Regulation 8(1) gives the Reporter the power to proceed to a decision on an appeal taking into account only such written submissions as have been sent within the relevant time limits. Regulation 8(2) provides that where no submissions have been received within the prescribed time limits, the Reporter may, after giving written notice to the appellant and the planning authority, proceed to a decision if he is satisfied that he has sufficient material before him to determine the merits of the case. Where in the case of enforcement and listed building enforcement appeals the statement of observations from the planning authority is not received within the specified 28 day period, SEIRU will issue a letter stating that failure to submit it within a period of 14 days will result in the notice being quashed.

18. A flowchart of the written submissions delegated appeal stages and prescribed time limits is at Annex A.

Validity of the appeal

19. In the case of planning appeals, article 23(5) of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992, as amended, specifies the documents which must accompany the notice of appeal. For listed building and conservation area consent appeals, the equivalent requirements are specified in the Town and Country Planning (Listed Buildings and Buildings in Conservation Areas) (Scotland) Regulations 1987. For enforcement notice, listed building enforcement notice, conservation area consent enforcement notice and wasteland notice appeals, the equivalent requirements are specified in the Town and Country Planning (Enforcement of Control) (No.2) (Scotland) Regulations 1992. It is recommended, as a matter of good practice, that the copy of the notice of the appeal, which requires to be sent by an appellant to the planning authority, is accompanied by copies of all of the relevant specified documents. Where that is done, the onus will lie with the planning authority to check that these are the correct documents.

20. An appeal must be received within the prescribed period. If it is not accompanied by all of the required specified documents, it will be accepted on a "holding" basis and a letter will be issued requesting receipt of the missing documents within 14 days. In future, the processing of the appeal and the timescales prescribed by the Regulations, and referred to at paragraph 15 above, will not commence until all of the required specified documents have been received by SEIRU and the planning authority. The letter issued by SEIRU will also make it clear that, if the missing documents are not received within a specified time, then the appeal will be dismissed on the grounds that the Scottish Ministers do not have all the necessary information and documents before them on which to base their decision. A copy of the letter sent to the appellant will be copied to the planning authority.

21. It is not uncommon for drawings which accompany planning and related applications to be amended between the time of submission and the time of the planning authority decision. It would be beneficial if those drawings on which the decision of the planning authority is based were docketed "approved" or "refused" as appropriate, stamped with the date of the decision and clearly marked with the application reference. Where an appeal relates to non-determination and the drawings before the planning authority have been amended from those submitted with the original application, it is the amended drawings which should accompany the notice of appeal. In such cases the amended drawings should also clearly record the date on which they were submitted to the planning authority.

22. In cases where there is a significant public interest, SEIRU may decide to advertise receipt of a written submissions appeal, in which circumstance a period of a minimum of 14 days from the date of the advert will normally be allowed for representations to be made by interested persons. This is in addition to the requirement on the planning authority to notify interested persons in terms of Regulation 4 of the 1990 Regulations.

Return of the appeal questionnaire and accompanying documents

23. Initially appeals questionnaires will be available only from SEIRU, but in future stocks of the different types of appeal questionnaire will be held by planning authorities. Significant delays can result from the failure of a planning authority to forward copies of the required consultation responses, representations received, the relevant development plan details and, where reliance is being placed on the questionnaire, any report to the appropriate council committee. In most instances all that material should be already available for timeous submission. Another common occurrence has been sending the wrong extracts from the development plan. The responsibility for submitting complete and accurate information lies with the parties and not with SEIRU. These deficiencies should be resolved by careful checking. When returning the questionnaire, it is recommended that the planning authority advise the name of the officer nominated to deal with all correspondence relating to the appeal.

Planning authorities’ reliance on the questionnaire

24. It is for the planning authority to decide how they wish to tailor their submission to meet the timescale laid down by the regulations. In many cases Reporters are able to appraise fully the planning authority’s case from the documents accompanying the questionnaire without any need for a free-standing statement of observations on the appeal. Where a planning authority elects to rely on the questionnaire, rather than lodge a further statement, there is a saving in time and effort for all concerned without prejudicing consideration of their case.

CALLED-IN APPLICATIONS

25. Where the Scottish Ministers call-in an application for their own determination the case may be dealt with on the basis of written submissions and a site inspection by a Reporter. But if either the applicant or the planning authority so wish, they will be given the opportunity of appearing before, and being heard by, a Reporter at a public local inquiry or hearing. The Scottish Ministers also have the power to direct that a public local inquiry be held into a called-in application and that decision can be made without any requirement to seek the views of the applicant or the planning authority. In practice those called-in applications which raise significant policy issues of national importance will normally be the subject of a public local inquiry.

CONTENT OF WRITTEN SUBMISSIONS

Written submissions appeals

26. All correspondence in written submissions appeals should clearly state the relevant SEIRU case reference number. It should be the aim of parties to address all aspects of their case in a single submission. Lodging supplementary statements frequently leads to unnecessary, and sometimes serious, delays in reaching a decision. The Scottish Ministers take the view that this is unacceptable and, as indicated in paragraph 5, propose to limit the exchanges between the main parties. For the future each of the main parties will be given an opportunity to comment on the submission(s) of the other party/parties. A tight deadline, normally not exceeding 2 weeks, will be imposed for receipt of responses. Only where it is clear that new material considerations have been raised, which parties have not had an opportunity to comment on, will further exchanges be permitted.

27. Detailed histories of application sites are to be avoided unless of direct relevance, as are long lists of "precedent" cases, since each appeal will be treated on its individual merits. In every case emphasis should be given to explaining how the proposed development would relate to development plan policies and other material considerations such as national planning policy guidelines (NPPGs) and planning advice notes (PANs) and also whether it would result in demonstrable harm. Planning authorities should respond to appellants’ comments only if relevant new material has been introduced. The submissions of both sides should seek to concentrate on the key issues which are in dispute rather than attempt to address every possible eventuality. In the conclusions section of a decision letter, the Reporter or the Scottish Ministers will always identify the determining issues on which the outcome will be based. Parties will find it a useful discipline if they adopt a similar approach and confine their submissions to addressing what they perceive to be the determining issues. In their decision letters, Reporters and the Scottish Ministers will always provide reasons for accepting or rejecting conditions suggested by the planning authority or appellants/applicants. Conditions which are imposed by Reporters and the Scottish Ministers will always be supported by reasons in accordance with the advice given in SODD Circular 4/1998 "The Use of Conditions in Planning Permissions".

28. Where the planning authority chooses to lodge a free-standing statement on the appeal, it should be kept as simple and concise as possible. It should contain:

• a short description of the site and its location, restricted to those features which are relevant to the appeal;
• an assessment of the proposal against the statutory approved development plan and any other relevant policies;
• an assessment of the proposal against relevant national planning policy guidance and advice; and
• appropriate commentary on other material considerations, including other matters referred to in the appellant’s grounds of appeal.

Electronic submission of appeals

29. SEIRU will accept appeals and written submissions which are lodged electronically only when the complete appeal documents or the entire written submission with accompanying documentation can be produced electronically in a Microsoft Word compatible form. In such circumstances the timescales prescribed by the regulations still apply.

Called-in written submissions cases

30. Where appropriate, the principles set down at paragraphs 26-28 above also generally apply to the content of written submissions lodged in respect of called-in applications. In cases where the decision of the planning authority has been reached against the recommendation of the planning officer’s report, it is particularly important that the planning authority’s reasons for approving the proposal are clearly explained in the required statement.

All written submissions cases

31. As part of their written submissions, planning authorities should provide a schedule of conditions (together with reasons for them) which they would wish to see imposed on any approval that may be given. Similarly, authorities are encouraged to provide a summary of the points which they may wish to be covered by any section 75 or other agreement. In preparing these documents, the planning authority will be expected to have followed the advice contained in SODD Circular 4/1998: The Use of Conditions in Planning Permissions and SODD Circular 12/1996: Planning Agreements. The inclusion by a planning authority of suggested conditions and/or agreements is not taken to indicate any weakness in its opposition to the proposed development, but experience shows that Reporters and the Scottish Ministers appreciate having the authority’s reasoned views on the conditions or limitations which they would favour if the appeal were allowed, together with a reasoned response from the appellant.

32. Where a written submission is accompanied by other supporting documents, each document should be given a discrete identification number in an accompanying schedule. Each reference in the text to that document should record in brackets its identification number, together with the relevant page and/or paragraph number.

33. Alterations made to a proposal during the course of the exchange of written submissions, and which effectively produce a development which is materially different from that which was before the planning authority, will not normally be considered. An exception may be made where it is shown that all parties consulted on the original proposal, or who submitted representations on it, have been given the equivalent opportunity to view and consider the amended proposal and to submit representations on it. However a fundamental change in the nature or concept of the proposal will require the submission of a new application and a fresh decision by the planning authority.

34. In considering any case the Reporter can, and in certain circumstances should, take account of matters which have not specifically been drawn to his attention through the parties’ written submissions. Occasionally this may be based on the Reporter’s own experience or his/her observations at a site inspection, but is more likely to concern development plan policies or relevant statements of Executive policy guidance or advice. In all cases the Reporter will of course be bound by the rules of natural justice in deciding whether, and to what extent, parties must be given an opportunity to comment.

Site visits

35. Improved efficiency in SEIRU has led to a general reduction in the period of time between receipt of an appeal or a called-in case and the date of the site visit. While site visits are normally arranged in agreement with the main parties, they should not be delayed because the development control officer or a particular representative of an agent is unavailable, or in order deliberately to delay matters in enforcement cases. In situations where parties fail to agree an early date for the site visit, the Scottish Ministers will exercise their power to impose a date.

36. One contributing factor to delay is where the main submissions of parties have not been completed prior to the site visit and significant exchanges of correspondence take place after it has been held. Parties must therefore make every effort to conclude their submissions within the specified period which will usually be in advance of the date of the site visit. Should a further exchange of submissions after the site visit be unavoidable (e.g. where as a consequence of the site visit the Reporter has requested the main parties to provide further information on a particular matter), the content of the exchange should be brief and to the point.

37. In the case of written submissions appeals, some planning authorities have been in the habit of lodging their statements a day or two before the date of the site visit or seeking to present a copy to the Reporter at the site visit. Both practices are unacceptable. With the former there can be no guarantee that these submissions will be in the hands of the Reporter before his departure. In the latter case neither the Reporter nor the appellant is given advance notice of the matters that concern the council and both are denied the time to analyse the content, to identify the relevant issues and to decide what matters need to be seen at the site visit.

38. Where the main parties agree, the Reporter’s site visit may be unaccompanied. Most site visits are, however, accompanied. The appellant/applicant and the planning authority are usually consulted about the date and invited to attend the site visit. Parties who have lodged written representations on the proposal, either with the planning authority or the Scottish Ministers, are notified of the arrangements and invited to attend.

39. The purpose of the site visit is to familiarise the Reporter with the characteristics of the proposed development site and the surroundings and to relate points raised in the submissions to the situation on the ground. The Reporter is not able to take oral evidence at the site visit and he will not participate in any discussion, argument or debate on the merits of the proposal. Parties are expected to arrive promptly at the site inspection. If one, or more, of the main parties does not arrive by the agreed time, the Reporter may wait for a short time before starting his inspection. If parties arrive late, he will explain to them what features of the site he has seen. Where there are other sites referred to in the submissions and these require to be seen, the Reporter will normally expect to visit these alone.

The period between the site visit and the decision

40. Steps have been taken in SEIRU to ensure that in cases where the exchange of submissions is complete, Reporters will seek to issue decision letters as soon as possible after the site inspection and normally within a period of 6 weeks. Where it is clear that the performance target date for delivery of the decision letter will not be met, SEIRU will provide the appellant and the planning authority with a written explanation of the reason for the delay. For non-delegated appeals and called-in applications, client divisions of the Scottish Executive will, on receipt of the Reporter’s report of the site inspection, seek to reach a final decision in accordance with published targets.

The decision letter

41. In the case of delegated appeals, the decision letter will be addressed to the appellant or agent and a copy will always be sent to the planning authority. Where only a few interested persons have participated in a delegated written submissions appeal, a copy of the decision letter will normally be sent to each party. Where there are a large number of interested persons involved, a copy of the decision will normally only be sent to those who represent more than personal interests. Other interested persons will, however, be advised of the outcome of the appeal and of how they may obtain a full copy of the decision letter if they so wish. In the case of delegated written submissions enforcement notice and listed building enforcement notice appeals, a copy of the decision letter will be sent by SEIRU to all recipients of the enforcement notice, irrespective of whether or not they have appealed against it. Client divisions of the Scottish Executive will adopt similar general principles in relation to non-delegated appeals and call-in cases. For legal reasons decision letters will not be issued electronically.

Awards of expenses

42. The Scottish Ministers’ policy on the award of expenses is set down in SDD Circular 6/1990: Awards of Expenses in Planning Appeals and Other Planning Proceedings and in Compulsory Purchase Order Inquiries. In general, parties are expected to meet their own expenses, the exception being where one party has acted unreasonably and that unreasonable behaviour has caused another party to incur unnecessary expense. The claim may relate to the whole, or only to part, of the proceedings. In the case of appeals against planning decisions or failure to issue a decision within the relevant prescribed period of time, awards of expenses can relate only to proceedings after the appeal has been lodged. Claims for an award of expenses must be made before the conclusion of the written submissions.

43. The circular contains examples of unreasonable behaviour on the part of planning authorities, appellants and others. These include:

• introducing a new matter at a late stage in the proceedings;
• refusing to supply adequate grounds of appeal or to co-operate in settling agreed facts or supplying relevant information which unnecessarily prolongs the proceedings;
• refusing to co-operate in setting a date for an accompanied site inspection; and
• failing to comply with the requirements of any statutory procedural rules, such as failing to lodge written submissions within the prescribed time limits.

In addition, deliberately unco-operative behaviour by a planning authority or by an appellant/applicant, whether or not professionally represented, constitutes unreasonable behaviour.

44. The circular indicates that awards of expenses in favour of, or against, interested persons will be made only in exceptional circumstances.

45. It is normal practice for the decision on a claim for expenses in a delegated written submissions case to be delivered in a separate letter from the decision on the appeal itself. Decision letters concerning expenses claims are usually sent only to the parties directly involved in the claim.

Conclusion

46. The Scottish Ministers remain convinced that the original objective of the written submissions procedure is as valid now as it was in 1990. In planning and planning-related appeals and call-in cases constituted after the date of this circular both the spirit and the letter of the 1990 procedure regulations as embodied in this Code of Practice will be applied equally to all parties by SEIRU and client divisions of the Scottish Executive.

47. The Scottish Ministers encourage all parties to co-operate with the terms of this Code of Practice to ensure its success.

Further information

48. Copies of an explanatory leaflet on each type of appeal and appeal application forms can be obtained from any planning authority or by contacting the Office Manager, SEIRU, 2 Greenside Lane, Edinburgh, EH1 3AG

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