Planning appeals and other cases: guidance on taking part

Further procedures

Site inspections

A site inspection may take place to allow the reporter to familiarise themself with the area and the site. It is usually unaccompanied and can be carried out at any time during the examination. Where there are difficulties obtaining access or identifying particular features the reporter may invite the parties to attend an accompanied site inspection at a specified time and meeting place.

There will be no discussion on site relating to the merits or otherwise of the case. Attendees can point out and/or ask the reporter to view any particular physical characteristics of the site/surrounding area but cannot express views about how this supports or negates the case. All arguments for or against the case must be set out in parties’ written submissions (unless the reporter indicates otherwise).

Further written submissions

At any stage of a case the reporter may ask one or more parties for further written submissions on a particular topic or topics (sometimes known as a procedure notice or further information request). The reporter identifies the issues requiring further information, identifies the parties to be involved in the exchange and sets the deadline for receiving these. DPEA will initially contact the relevant parties requesting the information the reporter requires. This request will list the matters about which the reporter requires further information, those parties who are to provide the information and those parties who are being invited to comment on any response. Deadlines for submissions will also be confirmed by DPEA at the time of the request.

Each party taking part in a further written submission request should send any document(s) they are lodging to all other parties named on the procedure notice request (a list of contact details of parties will be provided with the request). They should send a copy to DPEA at the same time and confirm that these exchanges have taken place.

Pre-examination meeting (PEM)

The reporter may require that a pre-examination meeting (PEM) is held. These may be held virtually or in-person. The purpose of a PEM is to discuss the administrative arrangements for any further procedures (further written submissions, hearing and/or inquiry sessions) that are to be held and to discuss how the case can be conducted in the most efficient manner. DPEA will set the date, time and venue for the meeting and will give notice of the arrangements to the parties.

The PEM is a public meeting and so members of the public can attend. It should be noted, though that only those who submitted responses for/against the original proposal (interested parties) will be invited to provide their views on the proposed arrangements for further procedure. No discussion on the merits of the appeal will be discussed at the PEM, only the procedural aspects of making arrangements for any further submissions or oral sessions that will be held. The reporter will set the agenda for the PEM. Amongst other things the agenda will identify the reporter's provisional views on the issues requiring no further procedure and the issues requiring further information or evidence and the reporter's proposed procedures for dealing with them. The reporter will give parties the opportunity to make representations on the identification of the issues, the proposed method of procedure and the arrangements for site inspections. At the PEM, the reporter will consider parties' representations on the issues to be further examined, the procedure to be adopted and likely duration of proceedings and will fix a timetable for the case and the dates of any oral sessions. If an issue is not identified as one to be further examined, the reporter is unlikely to allow evidence to be presented at the inquiry. For appeals, the decision with regards to further procedure rests with the reporter alone. For non-appeal cases, there may exist the right to be heard, in which case parties may be able to insist on an oral process.

Following the PEM, the reporter will issue a note of the meeting that records the matters discussed and the reporter's decision on the procedure to be adopted. It will also contain dates for submission of any statements, documents and precognitions required by the reporter. Parties must advise DPEA within 14 days of receiving the note of the PEM whether or not they intend to participate in any hearing and/or inquiry sessions and, if so, in which they intend to participate.

No further submissions are required in advance of a PEM.

An explanation of the purpose of a PEM is available on our webcasting site in the DPEA Guide to Appeals Videos section. Full length webcasts of recent PEMs are also available on the page.

Hearings

These sessions, which may be held virtually or in-person, are held as a means of enabling the reporter to have a full understanding of the issues before them and to gain any extra information they need to make their decision (or recommendation to the Scottish Ministers). They are a more informal alternative to an inquiry session and generally make it easier and more comfortable for those taking part.

• A hearing session may be held where:
• the reporter needs to enhance their understanding by asking questions, seeking explanations of evidence or opinions
• where there is some dispute but where cross examination of professional or other witnesses is not necessary; or
• where the evidence to be examined is largely a matter of opinion rather than settled fact, such as design or policy issues or impact on the surroundings, and which could benefit from being explored through discussion led by the reporter to enable them to reach their own opinion

Anyone entitled to appear at the hearing session may do so on their own behalf or be represented by another person.

Regardless of whether someone represents themselves, or has an agent to do so on their behalf, they are expected to treat other parties with respect during proceedings, and it is conventional to address the reporter as Sir or Ma’am.

Where two or more persons or bodies have a similar interest in the issues being considered at the hearing session, the reporter may allow or encourage one or more of them to appear on behalf of some or all.

A hearing takes the form of a round-table discussion that is chaired by the reporter. This is guided by an agenda that is circulated in advance. At the start the reporter will welcome participants and observers and explain the procedures to be followed. They will normally set out their understanding of what the examination is about and the main issues to be discussed.

Formal cross examination is not permitted but questions can be asked of other parties through the reporter.

Parties may be asked in advance to provide a hearing statement, a list of documents to be referred to or relied on, and a list of the names and relevant qualifications of those who will take part to represent each side. The hearing statement is a written statement which fully sets out the case relating to the matters to be discussed at the hearing session. Only those listed as taking part in the hearing session will normally be allowed to join the discussion and ask questions. The hearing is public and members of the public may observe.

DPEA do not normally advertise hearing sessions in the local press, as this is not required by planning legislation.

Each party taking part in a hearing session should send their statements and any document(s) they are lodging to all other parties taking part in the same session. They should send a copy to DPEA at the same time and confirm that these exchanges have taken place.

An agenda of topics to be discussed at the hearing session will be circulated by DPEA in advance of the hearing session.

The hearing venue layout will be arranged to facilitate discussion – generally one large table placed in a central position in the room, around which the reporter and other participants sit. Seating is usually provided separate from this table for any observers who wish to attend. The need for a public address/amplification system may be considered for larger appeal types and it has become commonplace to webcast oral sessions. Microphones and camera equipment will be placed to ensure coverage, without being intrusive.

On the first day of the hearing, it will be opened by the reporter who will welcome parties, introduce themselves and invite would-be participants to identify themselves. Following this, the reporter will explain the procedures to be followed and the issues to be discussed.

A hearing is a discussion among parties, and the reporter’s role is to lead the discussion, investigate the facts and obtain the information necessary to determine the appeal, giving all participants the opportunity to present their own case and respond to the cases of others. The reporter will encourage interested parties to contribute to the discussion, for example by inviting comments from a local perspective.

However, if a reporter feels that they have enough information and that participants have had a fair opportunity to speak, they will move the discussion onto the next topic.

Before the end of the hearing session, the reporter will decide whether there is to be an inspection of the site, specific to the matters which are the subject of the hearing session, accompanied by the parties involved in the hearing session. This may be in addition to an earlier inspection of the site made by the reporter. If appropriate, the reporter may allow further limited discussion of relevant matters on site before formally closing the hearing session.

An explanation of the purpose of a Hearing is available on our webcasting site in the DPEA Guide to Appeals Videos section. Full length webcasts of recent Hearings are also available on the page.

Inquiries

An inquiry, which may be held virtually or in-person, 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.

An inquiry session may be held where:

• there is a dispute between the parties on complex or technical matters and the evidence needs to be thoroughly tested by cross-examination to enable the reporter to reach clear conclusions either on an important material consideration, or whether the proposal is in accord with a key provision of the development plan
• essential facts are in dispute and cross-examination is necessary to clarify matters; or
• where there is a conflict of professional opinion or evidence and the reporter would find it helpful for that evidence to be tested by cross-examination

Anyone entitled to appear at an inquiry session may do so on their own behalf or be represented by another person.

Regardless of whether someone represents themselves, or has an agent to do so on their behalf, they are expected to treat other parties with respect during proceedings, and it is conventional to address the reporter as Sir or Ma’am.

Where two or more persons or bodies have a similar interest in the matter under inquiry, the reporter may allow or encourage on or more of them to appear for the benefit of some or all.

Parties may be asked to provide an inquiry statement on the matters to be discussed, including a list of witnesses. It can be helpful to receive as much information about witnesses’ availability as possible, as this assists the reporter to schedule the evidence to be heard, especially where an inquiry may last longer than 1 day.

Parties may also be asked to provide any supporting documents not already received that they intend to rely on, including a comprehensive list of said documents.

As required by planning legislation, a notice is placed in the local press in advance of the inquiry to advise that it will be taking place.

Finally, about 2 weeks prior to the inquiry, parties will be required to submit a document called a precognition. This is a written statement of their evidence that will be read out by each witness at the inquiry. A precognition must not, unless the reporter agrees otherwise, contain more than 2000 words. It will rarely be appropriate to depart from the 2000 word limit.

Each party taking part in an inquiry session should send the statements, document(s) and precognitions they are lodging to all other parties taking part in the same session. They should send a copy to DPEA at the same time and confirm that these exchanges have taken place.

An agenda of topics to be discussed at the inquiry will be circulated by DPEA in advance of the inquiry.

The inquiry venue layout will be suitably arranged, usually in a rectangular layout of tables. The main party groups will usually be facing each other with the reporter at the head of the room facing the public seating. Interested parties should be seated alongside, but separate from, the main party that reflects their position (e.g. objectors alongside the planning authority, supporters alongside the appellant in an appeal). There should be a specific, separate table for the witness giving evidence, placed for audibility. The need for a public address/amplification system may be considered for larger appeal types and it has become commonplace to webcast oral sessions. Microphones and camera equipment will be placed to ensure coverage, without being intrusive.

On the first day of the inquiry, it will be opened by the reporter who will welcome parties, introduce themselves and invite would-be participants to identify themselves. Witnesses should also be identified and introduced. Following this, the reporter will explain the procedures to be followed and the issues to be discussed.

In particular, the reporter will state:(a) the order in which the specified matters are to be considered at the inquiry session; and (b) the order in which the inquiry participants will be heard in relation to a specified matter (a different order may be chosen for different specified matters).

The legislation for inquiry sessions does not specify an order of appearance of parties. However, evidence is normally heard in the following order:

1. Appellant/Applicant.
2. Anyone else who supports the development.
3. Parties who are opposed to the development.

In some instances, it will be appropriate to start with the planning authority’s evidence e.g. an enforcement notice appeal.

Where an inquiry session is likely to last more than one day, some assistance on timing (including the site visit) will be given at the outset to interested parties who wish to contribute, and it should be made clear that their normal place in the sequence will be towards the end of the inquiry, but that there is no obligation on them to attend throughout the entire inquiry. However, if they wish to be able to question a particular witness opposed to them, they will need to be present at the time that evidence is given.

The usual way that the reporter hears evidence from a witness is as follows:

1. Evidence in chief – the witness reads out their precognition that has previously been supplied to the DPEA and all other parties.
2. Cross-examination – the opposing party will have an opportunity to cross examine the evidence put forward by the witness and ask questions to test the robustness of the evidence. Those matters likely to be subject to cross-examination must be referred to in the precognition of each party, so that the opposing party has fair warning of such cross-examination.
3. Reporter’s questions – the reporter then has an opportunity to ask questions of the witness that have not already been covered in evidence and cross examination, but that they require in order to determine the case.
4. Re-examination – the witness may be asked some further questions by their own advocate or solicitor and is intended to deal with matters raised during cross- examination. No new matters should be introduced at this stage.

If any person entitled to appear at the inquiry session fails to do so, the reporter may proceed with the inquiry session at their discretion.

It is expected that all participants in hearings and inquiries will treat each other with courtesy. Aggressive questioning or cross-examination can be upsetting for non-professionally represented participants and will not be tolerated by the reporter.  Such behaviour does not in any event assist the reporter in gathering best evidence.  Reporters will absolutely ensure that local participants or witnesses expressing their opinion of the proposed development are treated with courtesy at all times.  However, on occasion, a non-expert witness may claim to have expertise or otherwise present detailed evidence which seeks to undermine either government policy or the evidence of expert witnesses.  In such cases it is necessary to permit testing cross-examination so that the reporter can make a decision or recommendation based on the most robust and reliable evidence.

Before the end of the inquiry session, the reporter will decide whether there is to be an inspection of the site, specific to the matters which are the subject of the inquiry session, accompanied by the parties involved in the inquiry session. This may be in addition to an earlier inspection of the site made by the reporter.

It is normally expected that the Inquiry Session rules and procedure set out here will be applied by analogy to non-appeal casework, tailored to reflect the particular circumstances of the case and where no other procedure rules apply. Compulsory Purchase Order inquiries have procedural rules which can be adopted for other Order inquiries.

An example of the different stages of an inquiry session is available on our webcasting site in the DPEA Guide to Appeals Videos section. Full length webcasts of recent inquiries are also available on the page.

The case officer is responsible for making the arrangements for the procedures listed above. Where the reporter requires further information from you or wishes you to attend a site inspection, hearing or inquiry, you will be sent a letter detailing the exact nature of the request and the required timescales.

If no information is requested from you, this does not mean that your concerns are being treated differently or with any less weight. It simply means that the reporter has fully understood your position and does not need to ask you anything else.

When all procedures have completed, the reporter may request closing submissions, which is a written summary of a party’s case, and will provide a timescale for doing so. Normally the requirement for closing submissions will have been discussed at a hearing or inquiry session. Closing submissions should be based on the evidence brought out during hearing or inquiry sessions. New matters should not be introduced at the stage of closing submissions. The appellant will normally be allowed to make their closing submission last.

Recordings of hearings and inquiries and social media

No minutes of the session are taken, however, the reporter will make their informal notes. The sessions may be webcast and made available to view live or at a later date on our website. Webcasting is used as a means of enhancing openness and transparency of proceedings.

For data protection and privacy reasons we request that participants and attendees do not take any photographs or other recordings of their own during the session unless those being photographed or recorded have consented to this.

All parties should be courteous with each other throughout the proceedings. We should all take responsibility to respect differences in thought, background and experience.

You will no doubt hear people say things you don’t agree with but please give others the time and courtesy they need to express their views, give their evidence, and answer questions in the same way that you would expect.

The principles of courtesy and respect for other participants extend beyond the confines of the inquiry  itself,  whether in person or virtual, and we also request that those principles are followed if those taking part or observing an inquiry wish to comment on the proceedings via social media.

Disability and reasonable adjustments

Should you wish to participate in further procedure and consider that (as a result of any disability) reasonable adjustments may be required to facilitate that, please let us know. Any such response will be treated in confidence and only shared with other parties if necessary, and with your agreement. DPEA Guidance Note 20 contains explains how we might be able to help.

Claims lodged for award of expenses

You can submit an expenses claim against a person or organisation if you think they have acted unreasonably and caused you unnecessary expense.

After getting an expenses claim, the person or organisation who the claim is made against (the 'opposing party') will be given 14 days to provide any comments.

Claims for award of expenses may only be made if another party to the appeal has acted unreasonably, and this caused the party making the claim to incur unnecessary expense, either because it should not have been necessary for the case to come before Scottish Ministers or because of the manner in which the party against whom the claim is made has conducted their part of the proceedings.

This list is not exhaustive, but some examples of unreasonable behaviour could include:

• the planning authority’s failure to give complete, precise and relevant reasons for the refusal of an application
• pursuing an appeal in circumstances where there is no reasonable likelihood of success, which may have been made clear from a decision on a previous appeal in respect of the same site/same development, and there has been no material change in circumstances
• introducing a new matter at a late stage in the proceedings
• refusing to supply adequate grounds of appeal or supplying relevant information which unnecessarily prolongs proceedings
• refusing to co-operate in setting a date for a hearing or inquiry session or accompanied site inspection
• failing to comply with the requirements of statutory procedural rules by, for example, not providing a statement when required to do so, or failing to submit written submissions within the prescribed time limits; or
• failure to comply with procedural requirements to the serious prejudice of another party and leading to the adjournment of any hearing or inquiry sessions

Expenses claims are separate to the appeal. If you are awarded expenses this does not necessarily influence the decision made on the appeal.

You can find more information on expenses in this Planning Circular.