Planning appeals and other cases: guidance on taking part

Common enquiries

The right of appeal

The requirement for planning permission means that people can be prevented from carrying out works to land which would otherwise be legitimate, because the wider public interest would be affected by the impacts on amenity or the environment. It is considered appropriate that such intervention in the rights of individuals or other organisations should have a right to challenge, on planning grounds, the initial decision on planning permission. In recent years, the right of appeal to Scottish Ministers for applications for local development delegated to planning officers for decision has been replaced by a right to review of the decision by a local review body.

The right to submit an appeal as an interested party against a decision by a planning authority

The Town and Country Planning (Scotland) Act 1997 sets out the legal basis for the right of appeal, which rests only with the person or organisation who either: made the application to the planning authority, seeking a consent OR are covered by that notice. There is no right of appeal for anyone else to challenge a planning authority’s decision or action. There are, however, opportunities for anyone to get involved and make their views known at the various stages of the process, prior to a decision. The reporter will consider all the evidence submitted by all parties before reaching a decision.

Appeal not been recalled by Scottish Ministers

Scottish Ministers can intervene at any point before a final decision is issued on a planning appeal. This is done by directing that the appeal, which would otherwise fall to be determined by an appointed person (the reporter), should instead be determined by Ministers. The issue of a recall direction is, therefore, a matter for Ministers’ discretion, the power used sparingly and normally only in circumstances where a proposal raises issues of genuine national interest.

Contacting Planning Minister

Ministers receive a voluminous amount of correspondence on a daily basis, it is impossible for them respond to all correspondence personally, therefore a system is in place whereby officials from the appropriate division respond on their behalf. Generally speaking, Ministers will respond directly to correspondence received from their own constituents, from MPs and from MSPs.

Make a complaint about the planning authority’s conduct

Reporters are appointed to consider the planning merits of the appeal only, not the conduct of the planning authority. Local authorities are independent corporate bodies, whose powers and duties are set out in statute. They are free to exercise discretion within the law so far as carrying out their planning functions are concerned. The powers of the Scottish Ministers to investigate their actions or to intervene in their day-to-day activities are similarly expressed in, and limited, by statute. The Scottish Government puts in place the relevant planning legislation and policies and publishes guidance and advice to local authorities but it does not oversee an authority’s processing of applications or undertake a policing role and has no power to investigate an authority’s handling of an application or to question or influence the decisions it takes in relation to that application.

It is open to anyone to make an approach to the Planning Authority’s Chief Executive and raise their concerns about the actions or decisions of planning authority officers. Additionally if an individual feels that they have personally suffered an injustice as a result of maladministration, and if no other remedy is available, a complaint can be made to the Scottish Public Services Ombudsman. The Ombudsman cannot consider complaints about discretionary decisions, but can look into the administrative processes involved in reaching that decision. Responsibility for deciding whether or not to investigate a complaint rests wholly with the Ombudsman who is entirely independent from the Scottish Government. Before taking on a case the Ombudsman would expect the local authority’s complaints process to have been exhausted.

Make a complaint about DPEA’s handling of a case

Details on how to lodge a complaint about DPEA.

The basis on which a reporter makes a decision on a planning appeal

The reporter is required to make their decision in accordance with the development plan unless material considerations indicate otherwise. Further information on what constitutes material considerations.

Reviewing the decision on a planning appeal if a mistake has happened

We cannot reconsider a reporter’s decision or their reasoning in reaching the decision. The decision can only be changed following a successful Court of Session challenge. Any party aggrieved by the reporter’s decision can appeal to the Court of Session. This appeal can only be made on a point of law and you may wish to seek professional advice before taking any action in this regard.

Appeal has succeeded despite local residents all being against it

Local views are important but reporters have to determine an appeal on the basis of all the evidence submitted and on the planning merits of the case.

A common misconception about representations is that the volume of these impacts on the decision made by the reporter – this is not necessarily the case. The submitted representations ought to raise material planning considerations that can be taken into account by the reporter in balancing their decision – matters such as strength of public feeling or loss of a view from existing properties are not material planning considerations.

Reporter’s knowledge of local feeling and issues despite not living in the area

Appointing reporters who do not live locally ensures that they have no personal involvement in any local issues or any ties with the planning authority or its policies. However reporters will be aware of local views from the representations people have made on the case and will, in the vast majority of cases, have carried out an inspection of the appeal site.

Contact with the reporter

All correspondence and submissions relating to an appeal/application must be directed to the case officer for that case, who will then pass these to the reporter for their consideration. The case officer’s name and contact information will available to view on the DPEA website page for the relevant case and will also be found on correspondence issued by DPEA relating to the case. This procedure ensures that all parties can be confident that other parties cannot submit evidence direct to the reporter and that all evidence is shared in a fair and transparent manner.

Reporter’s decisions being issued and reports submitted to Scottish Ministers

Timescales for issue of the reporter’s decision/submission of report to Scottish Ministers vary depending on the complexity of the case and the method of determination selected by the reporter. See the relevant section above for more information on these timescales. The reporter will endeavour to meet these timescales although other factors, such as the complexity of the case, may impact the reporter’s ability to do so.

Representations submitted not mentioned in decision notice/report to Scottish Ministers

Reporters must give reasons for their decision and take into account all views submitted but it is not practicable or necessary to list every bit of evidence.

Responsibility for ensuring compliance with conditions attached to an award of planning permission by a reporter

Once a reporter has issued a decision they have no further jurisdiction in the case. Responsibility for ensuring compliance with any conditions rests with the local planning authority.

Difference between a hearing and an inquiry

A hearing takes the form of a round-table discussion that is chaired by the reporter. No formal cross-examination is permitted but questions can be asked of other parties through the reporter. An inquiry is a more formal event, where witnesses give their evidence in front of the reporter and can be cross-examined by other parties, similar to what you might see in the law courts.

Participating at a hearing session, with a professional representative or consultant or representing yourself

You can represent yourself at the hearing session or you can have a representative to help you. The procedure is fairly informal and the reporter will ensure that you know what is happening. There is no requirement for you to be professionally represented at a hearing session. If you do decide to enlist the help of a representative you should provide advance notice of the person you wish to speak on your behalf.

Participating at an Inquiry session, with a professional representative or consultant or representing yourself

You can represent yourself at the inquiry session or you can have a representative to help you. An inquiry is a more formal event than a hearing session, where witnesses give their evidence in front of the reporter and can be cross-examined by other parties, similar to what you might see in the law courts. There is no requirement for you to be professionally represented at an inquiry session. The reporter will ensure any unrepresented party is not unfairly disadvantaged. If you do decide to enlist the help of a representative you should provide advance notice of the person you wish to speak on your behalf.