Planning Circular 3/2015: Planning controls for hazardous substances

Annex E - Hazardous Substances Consent - Appeals and Called-In Applications

Rights of Appeal

E1. There are no local review procedures for applications for hazardous substances consent, or for applications for consent, agreement or approval required by a condition attached to a hazardous substances consent. Appeals relating to such applications are made to the Scottish Ministers (section 19 of the Principal Act).

E2. Appeal forms are available from the Directorate for Planning and Environmental Appeals (DPEA), or can be downloaded from the appeal section of the Scottish Government web site (see link in Annex M for contact details and links).

Applications for hazardous substances consent (regulation 6) or changes to conditions on hazardous substances consent (regulation 7)

E3. Applicants for hazardous substances consent under regulations 6 and 7 have a right of appeal to the Scottish Ministers against a refusal of such consent by the planning authority or against any condition attached to a grant of consent (section 19 of the Principal Act). In the absence of a decision notice or notice that the application has been referred to the Scottish Ministers (also known as "called-in"), they can also, after the expiry of the period allowed for determination (see paragraph E12 below), appeal on the grounds of non-determination.

Application for continuation of consent (regulation 8)

E4. An applicant under regulation 8 for the continuation of hazardous substances consent upon a change in the person in control of part of the land to which consent relates has a right of appeal against refusal of such an application (section 19 of the Principal Act).

E5. There is no right of appeal on the grounds of non-determination of the application in such cases. If no decision or notice of call-in by Scottish Ministers has been issued within the period of 2 months after the validation date, or any extension to that period agreed upon in writing by the applicant and the planning authority, the continuation of consent is deemed to be granted.

Application for consent, agreement or approval required by a condition attached to hazardous substances consent

E6. An applicant for consent, agreement or approval required by a condition attached to a hazardous substances consent also has a right of appeal under section 19 against a refusal by the planning authority or against conditions attached to an approval, agreement or consent. There is no right of appeal on the grounds of non-determination in such cases.

Right to be Heard

E7. In any appeal under section 19 of the Principal Act in relation to hazardous substances consent or consent, agreement or approval required by a condition attached to such consent, the appellant and planning authority have a right to appear before and be heard by a person appointed by the Scottish Ministers (a 'right to be heard'). Where the appellant or the planning authority wish to exercise their right to be heard in relation to certain matters by making oral submissions, those matters will be considered via one or more hearing sessions and/or one or more inquiry sessions.

E8. It will be for the person appointed by Scottish Ministers to determine the appeal to decide which of these procedures, alongside any other further processing of the case, are appropriate in a specific case.

Appeal Procedures

E9. The appeal procedures in Part 5 of the 2015 Regulations, and the related Town and Country Planning (Hazardous Substances Inquiries Session Procedure) (Scotland) Rules 2015, are very similar to those for planning permission. A major difference is the above mentioned (paragraph E7) "right to be heard" in hazardous substances consent appeal procedures.

Notice of Appeal

E10. An appeal to Scottish Ministers must be made in writing. Regulation 24 requires the notice to be given in a form obtained from Scottish Ministers (see paragraph E2 above and link to appeal forms in Annex M).

E11. The notice of appeal must be served within a period of three months beginning with the date of the decision notice or, in the case of an appeal against non-determination, beginning with the date of expiry of the period allowed for determining the application. For example, if the date of the planning authority's decision notice were 1 September, an appeal would have to be received by DPEA on or before 30 November. An appeal submitted on 1 December would be out of time and not accepted. If the period within which the planning authority had to make a decision expired on 17 March, without one being issued, an appeal on the grounds of failure to determine would need to be made by 16 June. There is no discretion to accept late appeals^[7].

E12. The period allowed for determining an application is specified in regulation 24(3) and is two months after the validation date of the application. Where the applicant and planning authority agree in writing to an extension to this statutory period, the extended period counts as the period allowed for determination.

E13. Regulation 24 sets out what must be contained in or accompany a notice of appeal to Scottish Ministers, namely:

• the name and address of the appellant;
• the date of the notice and reference number of the relevant application;
• the name and address of any representative of the appellant for correspondence purposes;
• a statement setting out full particulars of the appeal including a note of what matters the appellant considers 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;
• in relation to the above, a statement as to whether the appellant wants to exercise their right to appear before and be heard by an appointed person and, if so, on which matters he or she wishes to be heard; and
• where the appeal is against the planning authority's decision, a copy of the decision notice.

E14. The appeal form provided by the Scottish Ministers will prompt the provision of all of this information. While DPEA will request any missing information, if the statutorily required information is not submitted within the period for making the appeal, the appeal will not be accepted.

E15. Regulation 24(5) provides that all matters that the appellant intends to raise in the appeal must be set out in the notice of appeal or in the accompanying documents. All documents, material and evidence the appellant intends to use to support the appeal must also accompany the notice of appeal.

E16. Regulation 24(6) provides that the appellant may only raise additional matters or submit further documents, materials or evidence in accordance with:

• regulation 25, in commenting on the planning authority's response to the appeal;
• regulation 26, in commenting on the interested parties' responses to the appeal;
• regulation 32, where the appointed person seeks further written submissions;
• the Hearing Session Rules (Schedule 7); or
• the Inquiry Session Rules.

E17. These requirements are intended to ensure that the relevant matters and items of information are provided efficiently at the start of the appeal process, rather than at varying points throughout the process.

Intimation to the Planning Authority

E18. At the same time that the appellant gives notice of appeal to Scottish Ministers, the appellant must also inform the planning authority. Regulation 25 requires that the appellant sends to the planning authority a copy of the notice of appeal and 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 to the planning authority copies of documents that the appellant has already submitted to that authority. The appellant must, however, also send to the planning authority a copy of any documents, materials and evidence which had not already been provided to the planning authority while it had been considering the application.

Planning Authority Response

E19. Having received the notice of appeal from the appellant, regulation 25(2) requires the planning authority to provide a response within 21 days, beginning with the date of receipt. It is important that authorities meet this deadline as any delay at this stage has a particularly detrimental effect on the running of the appeal as a whole. The planning authority should send to Scottish Ministers and the appellant:

• 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;
• in relation to the above, a statement of whether or not the authority wants to exercise its right to appear before, and be heard by, an appointed person and the matters on which the authority wishes to be heard;
• a copy of the documents (other than those specified by the appellant in their list of documents, materials and evidence) which were taken into consideration by the planning authority in making its decision; and
• the conditions that the planning authority considers should be imposed in the event that consent is granted.

E20. Regulation 25(3) allows that, having received the planning authority's response, the appellant can, within 14 days beginning with the date of receipt, send to Scottish Ministers and to the planning authority any comments on matters raised by the planning authority which had not previously been addressed in the decision notice^[8]. At the same time, the appellant can also provide any documents, materials or evidence in support of those additional comments. Planning authorities are expected to provide full reasons in their decision notice and so this provision should not normally be needed. This is not intended to be a chance for appellants to add to their response to issues raised in the decision notice.

E21. There is no provision in the 2015 Regulations giving the planning authority an opportunity to respond to the appellant's additional comments, 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 E28 to E54).

Notification to Interested Parties

E22. Regulation 26 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 those consulted by the planning authority under regulation 14 and any other persons who made representations (which were not subsequently withdrawn) to the planning authority during the authority's consideration of the application.

E23. Regulation 26(3) covers the content of such a notice. This includes details of the appellant, the proposal, the site address/ location and statements advising interested parties of where the notice of appeal can be inspected, that the representations they previously made will be sent to Scottish Ministers and the appellant by the planning authority and details of how to make any further representation at this stage.

E24. 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 Scottish Ministers. Nevertheless, regulation 26(4) allows that interested parties may make further representations to Scottish Ministers in respect of the appeal within 14 days beginning with the date notice of the appeal is given to interested parties. In turn, the 2015 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 within a specified period, being not less than 14 days after the copies were sent.

E25. The planning authority is to make all the relevant appeal papers available for inspection at an office of the planning authority (regulation 27). The legislation does not rule out making the information available in electronic form. However, such information should not be made available on the internet (see Annex L on Security and Confidentiality).

Deadlines for Provision of Statements and Other Evidence

E26. As noted above, the 2015 Regulations set a number of statutory deadlines for the submission of:

• the planning authority's response to the appeal (21 days);
• the appellant's comments on the planning authority's response (14 days);
• the planning authority's notification to interested parties (14 days);
• further representations from interested parties (14 days); and
• the appellant's and planning authority's comments on representations from interested parties (a specified date not less than 14 days after they are sent a copy of any further representations from interested parties).

E27. In the interests of efficiency in decision-making, the Scottish Government expects parties to provide responses, comments, notifications and representations at the earliest opportunity.

Procedure for Determination

E28. Once the above exchange of information is completed, regulation 28 allows the person appointed to decide the appeal, where they conclude they have sufficient information, to proceed to a decision without any further evidence gathering procedure. This does not apply where either the appellant or the planning authority wishes to exercise their right to be heard.

Further Evidence

E29. If the appointed person decides that further information or additional representations are required to allow the appeal to be determined, the appeal is to be conducted by one of, or by a combination of, the procedures set out in regulation 30(3) (further written submissions, hearing sessions, inquiry sessions or site inspections). 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 a procedure notice. Where the appellant or the planning authority exercise their right to make oral submissions in relation to any matter, the appointed person will decide whether such submissions should be made at a hearing session or an inquiry session, or a combination of these.

Opt-in Notice

E30. Where further procedure is required, regulation 29 allows the appointed person to write to interested parties inviting them to confirm if they wish to be involved in such further procedure (e.g. hearing or inquiry sessions). Interested parties will be given a specified period (being at least 14 days from when notice is given) within which to give confirmation. In the event that they do not wish to be involved in the further procedure, their original representation will still be given due consideration and they will be informed of the decision on the appeal in due course.

E31. The intention is that this "opt-in" procedure would be used in those cases where there are a significant number of interested parties; for example, where a large number of representations had been made by petition or by standard letter. The aim is to identify those interested parties who wish to play an active role in any further procedure in the appeal and to avoid repeatedly sending information about the progress of an appeal to people who, though they may be interested in the case and want their original views to be considered, do not want to be involved in any further appeal procedure.

Site Inspections

E32. The appointed person may, at any stage of an appeal, decide to carry out an inspection of the site to which the appeal relates. Regulation 33 sets out details about site inspections. These 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 that an accompanied site inspection would be appropriate, then the appellant, the planning authority and all interested parties (subject to any "opt-in" procedure - see paragraphs E30 to E31) will be informed of the arrangements, including the date and time. The appointed person is not obliged to defer the site inspection if any of the parties or interested persons are not present or available on the set date.

E33. The purpose of the site inspection, even if accompanied, is to allow the appointed person to see the site and is not an opportunity for parties to discuss with the appointed person the merits of the case.

Pre-examination Meetings

E34. 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 be conducted most efficiently and expeditiously. Regulation 31 provides a procedure for this and for involving the appellant, the planning authority and any interested party who wishes to participate in further procedure (see paragraphs E30 to E31). 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

E35. Regulation 32 sets out the procedure for seeking further written submissions on an appeal. The appointed person may, by written notice, request that additional representations or information from the appellant, the planning authority or from any other person should be provided by means of written submissions (a procedure notice). The procedure notice will specify those matters on which written submissions are required and by what date and will provide details of those who have been requested to provide the additional information.

E36. Parties providing such further information (a procedure notice response) 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 a procedure notice response to the appointed person within 14 days from the date they received it, 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.

Hearing Sessions

E37. Schedule 7 to the 2015 Regulations sets out the Hearing Session Rules. These provide the appointed person with some scope to determine what procedure should be followed at a hearing on the matters specified in a procedure notice. The hearing is to take the form of a discussion led by the appointed person. Formal cross-examination of participants is not 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.

E38. Where the appointed person intends to hold a hearing session, they must give written notice (a procedure notice) to: the appellant; the planning authority; those parties who made representations on the specified matters who wish to participate in further procedure (see paragraphs E30 to E31); and any person the appointed person wishes to submit further representations or information. Any party intending to participate in the hearing session must inform the appointed person within 14 days of the date of the written notice. As only those matters specified in the procedure notice will be considered at the hearing, only those who made related representations are required to be given notice of the hearing.

E39. 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 they consider 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. A hearing statement is a written statement which fully sets out 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 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.

E40. At the start of the hearing session, the appointed person is to explain the procedure that 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. The appointed person may proceed with the hearing in the absence of anyone entitled to appear.

Inquiry Sessions

E41. The Town and Country Planning (Hazardous Substances Inquiry Session Procedure) (Scotland) Rules 2015 set out the Inquiry Session Rules. In common with the procedure for hearing sessions, the inquiry sessions will examine only those matters specified in the procedure notice issued under rule 4. The parties entitled to appear at inquiry sessions will be:

• the appellant;
• the planning authority;
• any interested party who made representations in relation to specified matters and wishes to participate in further procedure; and
• those whom the appointed person wishes to make representations on the specified matters.

E42. Those provided with written notice of the inquiry session by the appointed person must confirm their intention to attend the session within 14 days of the date of the notice.

E43. Rule 6 requires the appointed person to provide such notice of the date, time and place fixed for holding 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.

E44. Where required to by notice from the appointed person, those entitled to appear at the inquiry session must provide copies of an inquiry statement to the appointed person and to the appellant and planning authority. This should contain a written statement with the particulars of the case relating to the specified matters, a list of documents to be relied upon and a list of any witnesses 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.

E45. The appointed person's notice will also specify the date by which the documents listed in the inquiry statement must be submitted to the appointed person and to the appellant, planning authority and other persons entitled to appear at the inquiry session. It will also specify the date for submission of precognitions setting out the evidence to be given by the witnesses listed in the inquiry statement. The Inquiry Session Rules require that precognitions should not exceed 2,000 words in length.

E.46 The Rules provide the appointed person with scope to determine the procedure at the inquiry session but they are to state at or before the 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 state 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.

E47. 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 the giving of evidence, cross-examination or the presentation of any other matter which they consider to be irrelevant or repetitious.

New Evidence

E48. Where, following conclusion of any further procedure, such as a hearing session or inquiry session, the appointed person intends to take into account new evidence, the 2015 Regulations (regulation 34) require that the appellant, the planning authority and other relevant parties described in the 2015 Regulations be given an opportunity to make representations on the new evidence before a decision can be made on the appeal. Regulation 34 defines "relevant party". Where new evidence relates to a specified matter which was the subject of a hearing or inquiry session, everyone entitled to appear at that session is a relevant party. Where new evidence relates to a matter on which further written representations or information was sought by a procedure notice under regulation 32, a relevant party is anyone to whom the procedure notice was sent.

Further Copies of Documents

E49. Regulation 35 enables the appointed person to require any party who has submitted documents, materials or evidence under the 2015 Regulations to provide them or other parties with such additional copies as the appointed person specifies. The appointed person may also require the planning authority to make copies of the documents, materials or evidence available for inspection at an office of the planning authority until the appeal is determined and to allow anyone reasonable opportunity to inspect the documents.

Compliance with Notification and Consultation Procedures

E50. Under regulation 36 the appointed person must comply with any consultation and publicity requirements in relation to the application where this has not already been done by the planning authority.

Appointment of Assessors

E51. Scottish Ministers may appoint an assessor to sit with the appointed person at a hearing session or at an inquiry session to advise on such matters as Scottish Ministers may specify (regulation 37). Where this happens Scottish Ministers must notify every person entitled to appear at the inquiry or hearing session of the name of the assessor and of the matters that the assessor is to advise upon.

Decision Notice

E52. Under regulation 38 the Scottish Ministers must give a copy of the decision notice to the applicant (or agent), planning authority, HSE or ONR, as appropriate, and SEPA. In addition they must notify all those who made, and did not withdraw, representations on the appeal, indicating where a copy of the decision can be viewed.

E53. The decision notice must contain the decision on the appeal, indicating any change to the decision of the planning authority. In addition, it must identify any parties consulted, explain the reasons for the decision, contain a statement of the numbers of representations received on the appeal, a summary of the main issues raised in these representations and explain how they were taken into account in the decision, and contain information on the right to challenge the validity of the decision and the procedures for doing so.

Non-delegated Appeals

E54. Some appeals are not delegated to an appointed person, for example where they are recalled by the Scottish Ministers for their decision. Part 5 of the 2015 Regulations, the Hearing Session Rules and Inquiries Session Rules all apply to such appeals. Regulation 40 applies modifications to the 2015 Regulations and the Hearing Session Rules in such cases.

Called-in Applications

E55. Under section 18 of the Principal Act, the Scottish Ministers can require an application for hazardous substances consent to be referred to them for determination - see paragraph D35 to D37.

E56. As described in paragraphs D35 to D37 of Annex D, planning authorities are required to notify applications to Scottish Ministers where they are minded to grant consent, or not to impose a condition, contrary to the advice of HSE, ONR or SEPA.

E57. As with appeals, where applications are called-in, the applicant and the planning authority have a right to appear before and be heard by a person appointed by the Scottish Ministers.

E58. Regulation 39 provides that Part 5 of the 2015 Regulations, except regulations 24 to 27 (which deal with certain appeal specific requirements), apply to applications for hazardous substances consent called-in for determination by Scottish Ministers. It also applies the Hearing Session Rules (Schedule 7) to such cases. The Inquiry Session Rules also apply to called-in applications.

E59. Modifications to the applied provisions are made by regulation 39(2) and rule 10 of the Inquiry Session Rules, as applications rather than appeals are involved and decisions will be by Scottish Ministers, not delegated to an appointed person.

E60. Regulation 36 as modified requires that Scottish Ministers must comply with notification, publication and consultation requirements in respect of an application insofar as these have not been complied with by the applicant or the planning authority.

Key Points: Hazardous substances consent appeals and called-in applications

• There are no local review procedures in relation to hazardous substances consent applications
• The procedures for appeals and called-in applications for hazardous substances consent are substantially the same as those for planning permission.
• The main difference is that with hazardous substances consent cases, the applicant and the planning authority still have a right to appear before and be heard by a person appointed by the Scottish Ministers (the right to be heard).
• Where the planning authority or applicant/appellant exercise their right to be heard on certain matters, the appointed person will decide whether this will be by hearing session(s) or inquiry session(s) or combination of these.
• Other than in relation to the right to be heard, the appointed person will decide whether further processing is required and in what form (hearing sessions(s), inquiry session(s), written submissions or site inspection or combination of these).