Planning Circular 3/2012: planning obligations and good neighbour agreements (revised 2020)

5. Right of Appeal to Scottish Ministers

78. Where an application under section 75A to modify or discharge a planning obligation is refused, there is a right of appeal to the Scottish Ministers in certain circumstances. The applicant (i.e. the person who applied for the obligation to be modified or discharged) may appeal if the planning authority decides that the obligation should not be modified or if the planning authority fails to give notice of its decision within the 2 month period allowed. The appeal must be made to the Scottish Ministers within 3 months beginning either with the date of the planning authority's decision or the end of the 2 month period. Where the appeal is on the grounds that the planning authority has failed to give notice of its decision, it is assumed that the authority has determined that the planning obligation is to continue to have effect without modification.

79. For good neighbour agreements either the community body or the person against whom the GNA is enforceable may appeal the planning authority decision (or failure to reach a decision) to the Scottish Ministers. It should be noted that the person or body who appeals need not be the person or body who originally sought the modification or discharge of the GNA. An appeal may therefore be made against a planning authority decision to allow an application to modify or discharge a GNA. The appeal must be made to the Scottish Ministers within 3 months beginning either with the date of the planning authority's decision or the end of the 2 month period.

80. The Town and Country Planning (Appeals) (Scotland) Regulations 2013 apply (see regulation 21 of those Regulations) to all appeals made in respect of planning obligations. Detailed guidance on appeals procedures, including how to appeal and what information is to be submitted by the appellant and the planning authority, is contained in Planning Circular 4/2013: Planning Appeals.

81. On an appeal under section 75B, the Scottish Ministers may determine that the planning obligation:

• Is to continue to have effect without modification (i.e. refuse the appeal)
• Is discharged; or
• Is to have effect subject to modifications. 

82. Where an appeal relates to more than one planning obligation, Scottish Ministers may make a separate determination in relation to each obligation. Scottish Ministers must obtain the consent of the applicant where, on an appeal under section 75B, they propose to either:

• discharge the planning obligation despite that not being sought in the section 75A application; or 
• modify the planning obligation in a way that was not proposed in the section 75A application.

83. Similarly, where Scottish Ministers propose to modify the planning obligation in such a way that would put or increase a burden on any non-applicant, that person’s  consent must be obtained before making such a determination. 

84. In the case of an appeal under section 75F (relating to modification or discharge of a GNA),  the legislation does not permit Scottish Ministers to determine that the obligation should be subject to any modification (or modifications), other than that which was set out in the application.

85. Most appeals will in practice be delegated to Reporters for determination. Appeals will normally be determined through written submissions. In some cases disputes about the relevant facts may necessitate the hearing of evidence. In such circumstances, the Reporter may make arrangements for an inquiry or hearing session to take place and the Reporter may decide that witnesses should be placed under oath.

86. Once the Scottish Ministers, or a Reporter exercising delegated powers, have decided an appeal, they cannot reconsider or correct it. A further appeal can be made to the Court of Session, under section 239 of the Act, within 6 weeks of the date of decision, on the ground that the action is not within the powers of the Act or that any "relevant requirement" as defined in section 239 has not been complied with.