Planning appeals and other cases: guidance on taking part

Other cases

Non-appeal cases referred to the DPEA

The initial exchange of information required in the relevant application/order regulations will be completed before the file is referred to DPEA. Cases that are referred to DPEA by other Scottish Government departments for examination are always decided by Scottish Ministers. See Section 16 for further information on what matters are considered in a non- appeal case. See Annex 3 of this note for further information on matters considered in applications referred to DPEA for  wind energy proposals under Section 36 of the Electricity Act.

As soon as possible upon receipt of a request to hold an examination, we will write to all parties who submitted representations on the case (objectors, supporters, consultees) advising that Ministers have decided that an examination should be held and asking whether they wish to take part in any further procedure. This is also known as the opt-in process. If you opt-in we will inform you of all arrangements as appropriate. People who do not opt-in may not have the opportunity to participate in further procedures, however, their representation will be fully taken into account by the reporter. All parties will be given details of the DPEA website where they can follow the progress of the case and will be advised that the date and venue for the inquiry will be published in a local newspaper. All parties will also be informed of the outcome of the case, regardless of their participation in any further procedure.

Participating in non-appeal case types

In practice, anyone who wishes to participate and appear at inquiry will usually be allowed to do so.

When it comes to Compulsory Purchase Order cases, the rules give special status to ‘statutory objectors’, who are owners, lessees, occupiers and others with an interest in the land which is being compulsorily acquired, and whose objection has not been withdrawn. Those entitled to appear at the examination for CPO cases are:

• the acquiring authority
• any statutory objector; and
• anyone else whom the reporter has asked to serve a statement of case

Any other person or organisation may appear or be represented at the examination at the discretion of the reporter.

Matters considered in a non-appeal case type

The term “non-appeal case types” applies to such a wide range of cases, all with different legislations/regulations, that it is not easy to succinctly sum up what is considered in these case types, and so this section is neither explicit nor prescriptive. More information about Section 36 windfarm applications under the Electricity Act, including use of the DPEA core documents library, is available at Annex 3.

Regardless of the legislation or process being followed all parties will be kept informed of the processes for the case in which they are involved, and notified of what it expected of them.

In general, a lot of similar matters are considered in non-appeal case types as are considered in appeals - proposed local development plans, community plans, the environmental impact of the proposal as well as legitimate public concern or support expressed on relevant matters.

Some applications/orders are only sent to DPEA if there are objections that have been made and not withdrawn. In the absence of any objections, DPEA will not be involved in the process – likewise, if a case is referred to us, and all objections are then withdrawn in the course of our consideration of the case, no examination is necessary and the case is sent back to the referring client division. In these types of cases, the examination (and subsequent recommendations to Scottish Ministers) focuses upon the objections to be considered, in the context of wider policy considerations, rather than the principle of the application/order in general.

Where some applications and orders differ from appeals is in the ability to amend the proposal as a result of objections or discussions with other parties. It is also not unusual for further assessments or appraisals to be carried out after the application or order has been made. Parties will be kept informed of any additional material submitted during a non-appeal case type examination, and be provided with the opportunity to make comment.

The reporter appointed to carry out the examination of the case will consider the application/order and supporting documents, the representations and responses from consultees and will identify the main issues in the case and make a provisional assessment of the appropriate procedure for examination of those issues.

Initial stages of a non-appeal case type

If you wish to participate in further procedure, you should respond to the initial opt-in correspondence from DPEA requesting confirmation of this. Should the reporter feel that a pre-examination meeting is required, you will also be asked whether you wish to participate in this. Parties should note that should they opt not to participate in further procedure, their initial representation/objection will still be fully taken into account by the reporter.