Planning circular 3/2022: development management procedures

Annex E

Declining to Determine Planning Applications

Repeat Applications

1. Section 39(1) contains discretionary powers for planning authorities to decline to determine repeat planning applications. Where the Scottish Ministers have, within the previous 5 years, refused permission on a similar application on call-in or appeal and, in the opinion of the planning authority, there has been no significant change in the relevant parts of the development plan or other material considerations since that decision, the planning authority can refuse to deal with the application.

2. The same discretionary power applies where more than one similar application has been refused in the previous 5 years and no appeal has been made or has been made but not determined. In these cases the above criterion relating to changes in the development plan or other material considerations relates to the period since the most recent refusal of a similar application.

3. The discretionary powers to decline to determine a repeat application also apply where an application is subject to a right to local review by the planning authority rather than a right to appeal to the Scottish Ministers. For example, where a similar application has been refused on local review within the previous 5 years and there is no change in the development plan or other material considerations, then the planning authority may decline to determine the application.

4. Section 39(2) outlines what constitutes a similar application for the purposes of planning authorities' power to decline to determine applications for planning permission. It states that applications are only to be taken as similar if the development and the land to which the applications relate are - in the opinion of the authority - the same or substantially the same.

5. Whether the development and land to which the applications relate are the same (i.e. identical) will be a matter of fact. However, whether the development and land to which the applications relate are "substantially the same" will depend upon the degree to which they differ from the proposals for which planning permission was sought by the earlier application. As section 39(2) states, this is a matter of judgement for the authority.

6. The planning authority's opinion on this will be dependent on the specific circumstances of the case, the particulars of the proposed development and its planning context. In exercising this judgement, authorities will wish to consider the extent to which there has been a change in:

• The type of development proposed;
• The scale of the proposed development;
• The design and layout of the proposed development;
• The nature and scale of any mitigation proposed as part of the development; and
• The site boundaries of the proposed development

7. Whether there has been a "significant change" in the development plan which is material to the current application, or a significant change in any other material consideration, will also depend on the circumstances of the particular case and is also a matter of judgement for the planning authority. Relevant considerations will include:

• The reasons why a similar application was refused and the policies and/or considerations on which that decision was based;
• Any relevant planning decisions (including appeal or local review decisions) taken in the intervening period;
• Whether, during the intervening period, any new national or local plans, policies, proposals or provisions have been published;
• Whether such plans, policies, proposals or provisions were published in draft or finalised – and whether they have any relevance to the current application;
• Whether such plans, policies, proposals or provisions are substantively different from any equivalents that were applicable when a similar application was refused; and
• Whether, during the intervening period, any other developments have been approved, completed or are under construction which affect the planning context or setting of the site (e.g. the provision of new or upgraded infrastructure that is relevant to the proposed development).

8. In general terms, there is likely to have been a significant change where part of the development plan has been updated or amended (for example, the adoption of a new local development plan or the NPF becoming part of the statutory development plan) unless the provisions of the development plan which are material to the particular case are essentially unchanged.

9. These are discretionary powers. A planning authority is not obliged to decline to determine an application even if, in the opinion of the authority, it constitutes a similar application and there has been no significant change in the development plan or material considerations, and all other relevant criteria have been met.

Applications without the necessary pre-application consultation (PAC)

10. Section 39(1A) requires that planning authorities decline to determine a planning application to which the PAC requirements apply and where the applicant has not complied with those requirements.

11. The planning authority may, before declining to determine an application in these circumstances, ask the applicant to provide such additional information as they may specify. There is therefore some discretion for the planning authority to request additional information to demonstrate that the requirements have been complied with or that some previously missing aspect of required PAC had subsequently been undertaken.

12. When declining to determine an application in these circumstances, the planning authority must advise the applicant of the reasons for its opinion that the applicant has not complied with the PAC requirements. The requirement to decline to determine due to an absence of required PAC does not apply where the applicant has:

• a statement of the planning authority's opinion under section 35A(3) to the effect that the proposal is not in a class of development which requires PAC; and
• submitted the related application within 12 months after submitting the notice seeking the planning authority's opinion, and the proposal does not differ materially from the information provided in that notice.

Or

• an exemption from PAC applies under section 35A(1A)(a) or (b).

13. See paragraphs 1 to 3 in Annex B on PAC exemptions. Where an applicant is intending to rely on an exemption from PAC under section 35A(1A)(b), they are to include a statement to that effect with their application (Regulation 4A(3)^[38].

No Right to an Appeal to Scottish Ministers or Local Review where a Planning Authority Declines to Determine and Application

14. Where a planning authority declines to determine an application under section 39, the applicant does not have a right to an appeal or a local review on the grounds of non-determination (Sections 43A(8A) and 47(2)). As no decision has been made to either refuse planning permission or grant it with conditions, then no right to appeal or seek local review of such decisions under sections 43A and 47 applies.