Planning and Environmental Appeals: annual review 2020 to 2021

What We Have Achieved

The trend of improving our performance against targets was consolidated in 2020/21 with 81% of appeals decided within the target compared to 82% in 2019/20. Overall, the average time taken to decide an appeal in 2020/21 was 15.3 weeks, compared to 15.4 weeks in 2019/2. DPEA targets are calculated from the date of receipt of a valid appeal.

We continue to recognise that to improve the quality and speed of our decision making we need to remain focused on continuous improvement and enhance the support systems we have in place for all reporters to broaden and deepen their skills.

The number of planning appeals turned away as we had no remit to consider the appeal fell slightly to 66 from 74 the previous year. We will look to take further steps in the coming year to reduce this.

Planning and Other Appeals

The Scottish Government places great emphasis on the importance of a modern planning service to stimulate sustainable economic growth and to encourage investment in Scotland. One of the key objectives of planning reform was to remove unnecessary delays and to speed up decisions on planning applications and appeals.

Prior to planning reform, appeals based upon a consideration of the appeal file and a site inspection took an average of 18 weeks. In 2020/21 we decided 88% of appeals by initial written submissions and a site inspection within the 12 week target, compared with 90%, 82% and 72% respectively in the previous three years. The overall average time of 10.7 weeks for deciding appeals following this procedure compares with an average time of 11.0, 11.6 and 12.6 weeks respectively in the previous three years. In more complex appeals in which the reporter asked for further written submissions, the 20 week target was met in 76% of cases with an average time of 19.4 weeks to determine appeals of this type, compared with 73% and 20.7 weeks, 61% and 23 weeks, 67% and 21.4 weeks respectively in the previous three years.

As can be seen from the table below appeals involving residential developments over 10 units have formed a substantial part of our planning appeals work over the course of the year.

A high proportion of complex cases have continued to contribute to difficulties allocating cases to reporters. We have not achieved our targets for delegated appeals conducted by hearing session (26 weeks) or inquiry session (32 weeks). The number of these cases is however small: 6 cases out of 284. Go to performance against our targets for more information.

Our stakeholder forum provides us with constructive feedback on our performance, our business improvements, how they see the new Planning Act impacting on the work of DPEA and e-development in the wider planning system. We have continued to hold meetings with planning authorities to look at ways to try and improve our methods of working together.

We have dealt with appeals for significant development proposals including:

Residential Developments Over 10 Units

Location	Houses/Flats	Decision
Aberdeen	245	Appeal Allowed
Bellshill	14	Appeal Allowed
Biggar	100	Appeal Dismissed
Boness	200	Appeal Allowed
Carrbridge	47	Appeal Allowed
Clarkston	14	Appeal Dismissed
Clydebank	99	Appeal Allowed
Coatbridge	17	Appeal Dismissed
Crook of Devon	10	Appeal Dismissed
Dundee	100	Appeal Allowed
Dunfermline	92	Appeal Allowed
Edinburgh (Lower Gilmour Place)	20	Appeal Allowed
Edinburgh (Lower Gilmour Place)	74	Appeal Allowed
Edinburgh (Old Dalkeith Road)	199	Appeal Dismissed
Edinburgh (Old Dalkeith Road)	505	Appeal Dismissed
Forres	316	Appeal Allowed
Glasgow (Bridgegate)	169	Appeal Allowed
Glasgow (Burnfield Road)	165	Appeal Allowed
Glasgow (Port Dundas Road)	614	Appeal Dismissed
Glasgow (Tollcross Road)	143	Appeal Dismissed
Kilmacolm	88	Appeal Dismissed
Kilpatrick	48	Appeal Allowed
Linlithgow	250	Appeal Allowed
Livingston	18	Appeal Allowed
Milnathort	67	Appeal Allowed
Motherwell	86	Appeal Allowed
Muirhead	34	Appeal Allowed
Perth (Muirhall Road)	70	Appeal Allowed
Perth (Muirhall Road)	58	Appeal Allowed
Pitmedden	64	Appeal Allowed
Ratho	11	Appeal Dismissed
Symington	20	Appeal Dismissed

We now publish weekly statistics on all developments with 10 or more houses.

Wind Farm Appeals (Two or More Turbines)

Location	Turbines	Decision
Mains of Cairnbrogie	3	Appeal Allowed
Wull Muir	8	Appeal Dismissed
Larbrax	8	Appeal Dismissed
Millenderdale Farm, Lendalfoot	5	Appeal Dismissed
Kirk Hill	8	Appeal Allowed
Dykecroft, Boghead, Lanark	3	Appeal Dismissed

Statistics on all wind turbine appeal decisions are published on our website.

Other notable appeals decided in this year include:

• As in 2018/19 and 2019/20 a number of enforcement notice appeals relating to short stay commercial visitor accommodation
• A building designation appeal for the Castle Terrace car park in Edinburgh
• Mineral extraction in Ellon
• Holiday lodges in Foulden
• Extension to golf course in Bearsden
• Fish farm in Portree
• Care home and student accommodation in Stirling

Recalled Appeals

Reports were submitted to Scottish Ministers in four appeals related to the proposed Od Royal High School development that were recalled by Ministers.

Called In Planning Applications

Nine reports were submitted to Scottish Ministers. They related to six wind turbines at Quanterness, Orkney; one wind turbine at Pitheavlis, Perth; a mixed use business and residential development at Eastfield Road, Edinburgh; a retail unit, visitor centre and self-catering accommodation at Ledaig, Tobermory; a retail unit and restaurant in Hawick; conversion of steading to house at Westhill, Inverness; conversion of steading at Glengairn, Ballater; and change of use from agricultural land to form caravan stances at Eskview Farm, St Cyrus.

Planning Obligation Appeals

Decisions were issued in eight planning obligation appeals, as shown in the text below. This was an increase from two decisions in 2019/20.

Decisions Issued

Authority: City of Edinburgh Council

Modification Sought: Education Contributions

Decision: Appeal Dismissed

Authority: City of Edinburgh Council

Modification Sought: Education Contributions

Decision: Appeal Allowed

Authority: City of Edinburgh Council

Modification Sought: Education Contributions

Decision: Appeal Dismissed

Authority: City of Edinburgh Council

Modification Sought: Tram Contributions

Decision: Appeal Dismissed

Authority: Clackmannanshire Council

Modification Sought: Education Contributions

Decision: Appeal Dismissed

Authority: Dumfries and Galloway Council

Modification Sought: Remove Ownership and Occupancy Restrictions

Decision: Appeal Allowed

Authority: East Dunbartonshire Council

Modification Sought: Remove Selling Restrictions

Decision: Appeal Dismissed

Authority: West Lothian Council

Modification Sought: Road Contributions

Decision: Appeal Allowed

Local Development Plan Examinations (LDP)

Scottish Planning Policy emphasises the importance of development plans being up to date, place-based and enabling with a spatial strategy that is implemented through policies and proposals. Circular 6/2013: Development Planning provides further guidance on Ministers' expectations in terms of moving swiftly from the main issues report stage through to proposed plan, examination and adoption with a view to ensuring that we have an up to date, plan led system.

Planning Circular 6/2013: Development Planning sets out Ministers' expectations of the examination process. Examinations should:

• Ensure the process is understandable and transparent to the public;
• Examine any unresolved issues raised in representations rather than responding to each individual representation;
• Be succinct and proportionate. Scottish Ministers expect the process from appointment to reporting normally to take around six months, and rarely to exceed nine months;
• Be focused on the reporter seeking out the information they feel they need to reach conclusions on the matters at hand. As the onus is on the planning authority and interested parties providing information in advance, further procedure will rarely be required and will be at the discretion of the reporter; and
• Identify any deficiencies in the plan, arising from the examination of the unresolved issues, and recommend modifications to rectify these or, where this is not possible within the constraints of the examination, identify post-adoption actions to rectify the deficiency.

The Circular provides further guidance, at paragraphs 121 to 123, on the approach that reporters should take in the event of their identifying a deficiency in the plan.

Five LDP examinations were completed in 2020/21. Modifications were recommended in relation to all proposed plans, ranging from minor modifications to conclusions regarding deficiency or non-compliance with national policy. Further details are given in table 6A.

The examinations were completed in an average of 41 weeks which is slightly outside the target of 9 months (39 weeks) referred to in Circular 6/2013. This compares with an average time of 30.5 weeks in 2019/20, 41 weeks in 2018/19 and 45 weeks in 2017/18.

Three examinations were ongoing at the end of the review period. Subsequent to which we received a further plan for examination and completed the examination of a another one. Six further plans are due to be submitted for examination before the end of March 2022 and a further eight plans in 2022. It is likely, therefore, that development plan examinations will continue to form a substantial part of our work.

We continue to drive continuous improvement in this area of our work, learning lessons from previous examinations and actively reviewing procedures and practices in dealing with development plan examinations.

To support that, we encourage those authorities that are in the process of preparing a proposed development plan to engage with us at an early stage. This should be before the proposed plan is published, in order to discuss the resources that are likely to be required to support the examination process. This is important because, once the proposed plan is published, there is limited scope to make significant modifications to it without republishing and inviting a further round of representations.

In 2018/19 we started to liaise earlier and more regularly during the plan preparation stage and we have continued to build on this in 2019/20 and 2020/21. A key aim of this engagement is to assist the authority in marshalling the representations into sensible groups. Schedule 4 forms should be accompanied by the evidence upon which the planning authority relies in support of its position, including any documentation referred to in the response to representations. Some issues, such as housing land supply, may need to be addressed in greater detail than allowed for in the Schedule 4 form. It is possible for the authorities, and other parties when submitting representations on the plan, to submit supporting documentation such as reports or technical papers. Authorities will also want to ensure that sufficient time is factored into their timetable for the administrative task of pulling their examination material together.

We work closely with authorities in the period leading up to submission of the plan for examination. If we are to complete examinations within the timescales set out in the circular it is essential that authorities provide accurate timescales of when the plan will be submitted. We have previously sought to line reporters up for examinations in order that work can commence as soon as possible after it has been submitted. However, slippage in submission of plans has resulted in reporters not being allocated to a plan until it is actually received. As reporters workloads are scheduled up to six months in advance this has meant delays to the examination commencing with a knock on impact on the time taken to complete the examination.

Other Casework

DPEA deals with a wide variety of non-planning casework including inquiries held under the Electricity Act, the Transport and Works Act and inquiries into Roads Orders and Compulsory Purchase Orders. These casework types tend to be very resource-intensive for DPEA, both in terms of reporter and caseworker commitment, and are now a focus of efficiency initiatives.

We also have responsibility for determining environmental appeals made to Scottish Ministers against decisions made by SEPA in relation to the control and prevention of pollution, water quality and waste management.

Statistics giving the volume and breakdown of casework are in tables 1 to 3 of Appendix A to this report.

Electricity Act Cases

Applications to construct or vary electricity generating stations (including onshore wind farms) with a capacity of more than 50 megawatts are made to the Scottish Ministers under section 36 and 36C of the Electricity Act 1989. Scottish Ministers also deal with applications to construct overhead electric power lines (section 37) and, where these cannot be agreed, applications for any necessary wayleaves over land for the purpose of constructing or maintaining access to power lines.

This year reports were submitted to Ministers on one application for a pumped storage hydro scheme at Dores, Inverness and three applications for wind farms. Those three were North Lowther, near Sanquhar; Pauls Hill 2, Ballandalloch and Crystal Rig IV, Crichness, Scottish Borders. At the end of the review period we had a further twelve Section 36 applications for wind farms in hand, as listed below. Reports for Blargour and Glenshero wind farms have been submitted.

Electricity Act Applications

DPEA Reference	Planning Authority	Proposed Wind Farm
WIN-110-1	Aberdeenshire Council	Fetteresso
WIN-130-4	Argyll and Bute Council	Blarghour
WIN-130-5	Argyll and Bute Council	Sheirdrim
WIN-170-2005	Dumfries and Galloway Council	Shepherds Rig
WIN-170-2006	Dumfries and Galloway Council	Sanquhar II
WIN-270-11	Highland Council	Glenshero
WIN-270-12	Highland Council	Strathy Wood
WIN-270-13	Highland Council	Limekiln Extension
WIN-300-4	Moray Council	Clash Gour
WIN-300-5	Moray Council	Rothes III
WIN-370-2	South Ayrshire Council	Arecleoch Extension
WIN-370-3	South Ayrshire Council	Clauchrie

This year we submitted a report to Ministers on 3 applications for a necessary wayleave.

Compulsory Purchase Orders

Three reports were submitted relating to compulsory purchase orders, these were for the A9 Dualling Tay Crossing to Ballinluig; land at Laurieston Road, Grangemouth and Westmoreland Street, Glasgow.

Other Orders and Reports

A report for a side roads order relating to the above dualling order was also submitted, as was a stopping up order for a footpath at Polmont Community Centre.

Core Path Plans

Two core path plan reports were also submitted, one for Caithness and Sutherland, the other for Loch Lomond & The Trossachs National Park.

Environmental Appeals

In 2020/21 we issued seven decisions on environmental appeals. Two were related to applications to permitted the discharge of trade effluent and solid waste from fish fam cages at Shapinsay Sound, Orkney. Three were related to notices of variation of waste handling permits at Blantyre Muir, Blantyre; Dalcross, Inverness and Cowie, Stirling. The other two were in relation to an application to carry out abstraction and engineering work necessary to build and operate a hydroelectric scheme at Calderbank, Lochwinnoch and an application for variation of a registration in order to carry out a controlled activity at Pencaitland, East Lothian.

High Hedges

We made eight decisions in 2020/21 on cases dealt with under the High Hedges (Scotland) Act 2013.

Further information about high hedges can be found in the Scottish Government's guide to local authorities and our high hedge appeals forms and guidance page.

Historic Environment (Scotland) Act 2014

In 2020/21 we made two decisions on Building Designation Appeals. These related to a car park at Castle Terrace, Edinburgh and a former convalescent hospital at Cults, Aberdeen. In April 2021 we received five building designation appeals relating to blocks of flats in Aberdeen.

Community Asset Transfer Appeals

CAT Appeal Reports Submitted To Scottish Ministers

DPEA Reference	Authority	Asset
CAT-120-1	Angus Council	Carnoustie & Monifieth Mens Shed
CAT-370-1	South Ayrshire Council	Muirhead Activity Centre, Troon
CAT-210-1	East Lothian Council	Lime Grove Council Deport, North Berwick
CAT-260-1	Glasgow City Council	Buildings and Land, Wallacewell Road
CAT-180-1	Dundee City Council	Wedderburn House
CAT-170-1	Dumfries & Galloway Council	Portpatrick Village Hall

We have two other appeals of this type in progress. Based on lessons learned from this first tranche of CAT appeals, we have engaged with the client division to assist in improving guidance and processes.

Court of Session Appeals

The table below sets out cases appealed to, and decisions made by, the Court of Session in 2020/21 in relation to appeals decided by reporters.

Court of Session Appeals Position

Case Reference	Date Referred to Court of Session	Court of Session Outcome Date	Court of Session Outcome
PPA-170-2135	08/03/2019	03/09/2020	Withdrawn
ENA-190-2009	30/05/2019	24/04/2020	Upheld
PPA-230-2253	10/09/2019	09/04/2020	Upheld
PPA-280-2027	11/09/2019	03/06/2020	Quashed
CLUD-390-2002	27/11/2019	02/02/2021	Upheld
PPA-360-2009	06/03/2020	30/09/2020	Withdrawn
PPA-320-2139	09/03/2020	29/01/2021	Quashed
PPA-160-2030	05/11/2020
PAC-120-2001	03/12/2020	04/03/2021	Withdrawn

Customer Feedback

We welcome feedback on any aspect of the service that we provide as well as suggestions as to how we can further improve. Please send any comments to DPEA@gov.scot.

Stakeholders Forum

Our Stakeholders Forum continued to meet this year in the virtual world to allow us to share experiences and provide us with constructive feedback on our performance and to make suggestions for improvement of the service that we offer.

At the suggestion and in collaboration with the group DPEA produced the attached easy read guidance for those taking part in appeals and other cases.

Stakeholders Forum Members

• Scottish Property Federation
• Homes for Scotland
• CBI Scotland
• Scottish Renewables Planning Group
• Heads of Planning Scotland
• Planning Aid Scotland
• Planning Democracy
• Royal Town Planning Institute Scotland
• Royal Institute of Chartered Surveyors Scotland
• Royal Incorporation of Architects in Scotland
• Royal Society for the Protection of Birds
• Scottish Planning, Local Government and Environmental Law Bar Group
• The Society of Local Authority Solicitors
• Scottish Environment Protection Agency
• Historic Environment Scotland
• Scottish Environment Link
• The Law Society of Scotland
• Scottish Natural Heritage
• Scotland Against Spin
• Balerno Community Trust and South West Edinburgh Communities Forum
• The Royal Burgh of St Andrews Community Council
• The Association for the Protection of Rural Scotland
• Sustainable Communities Scotland
• Sir Frank Mears Associates & Association of Mediators

Staff Engagement

In the course of the year our staff were invited to take part in a civil service wide staff survey that asked questions on leadership and managing change, their work, their line manager, pay and benefits, resources and workload, learning and development, organisational objectives and purpose, inclusion and fair treatment and their team. Overall, the results showed an improvement from 2019/20. We are continuing to look at how we can improve on these results in the coming year.

Learning and Development

With regard to the professional development of reporters, we have held virtual seminars at which external and in-house speakers give talks on planning policy, legislative reform and new issues for our casework. The topics have included aviation lighting on wind turbines; Community Asset Transfer cases; virtual site inspections and PEM's, inquiries and hearings; safety on countryside inspections; renewables issues; design quality in housing; and coal legacy casework. Reporters are divided into four discussion groups, each of which is led by a Principal Reporter and provides a forum for reporters to discuss problems or difficulties, to consult with colleagues, to identify best practice and to promote consistency.

The Principal Reporters act as professional mentors for more junior reporters and offer advice on procedure and best practice. We also have a system of peer review where a small group of reporters meet to critique their work. The purpose is to enable reporters to exchange constructive criticism on a confidential basis, to benefit from the experience of other colleagues, to resolve problems and again to share best practice.

In suitable cases a junior reporter is paired with a more senior colleague to gain experience of working on more complex cases. This enables a sharing of the burden on complex cases, and more importantly has been invaluable in training less-experienced reporters to undertake more significant casework, particularly those that proceed by hearing or inquiry.

Our system of Specialist Advisers continues to operate where reporters take responsibility for a specific area of our work and feedback to the group on issues arising as well as providing advice with regard to their area of specialism. These subjects include aquaculture; development economics; ecology; energy from waste; flooding; human rights; national park/rural issues; noise; and ornithology.

Complaints

In the course of the year we received seven formal complaints regarding our work – down from 13 in 2019/20. The complaints were about the decision and how it was reached, the administrative process and rights of appeal. On complaint was taken to Stage 2 of the complaints process. The wider Scottish Government process involving Stage 2 reviews has improved significantly since last year when we expressed our concerns in the Annual Review.

Where there is a complaint about an administrative error or some other failure in the service we provide we try to ensure that this is investigated promptly, that an apology is given where our service falls short of acceptable standards and that appropriate remedial action is taken to ensure that this does not happen again. We try to resolve complaints informally in the first instance but a customer may elect to pursue a complaint on a more formal basis, in which case the procedure in our Complaints Policy applies.

If the complaint is about the outcome of an appeal then we explain that the decision of the reporter is final and cannot be revoked or reviewed by DPEA or by Ministers. Customers are, however, made aware of their statutory right to appeal to the Court of Session on a point of law.

In the course of the year one complaint, that we are aware of, about our service has been received and is currently being considered by the Scottish Public Services Ombudsman.