Planning and Environmental Appeals Division: annual review 2021 to 2022

What We Have Achieved

We anticipated there would be a decrease in our overall performance against our targets this year and engaged in recruitment drives to overcome our losing the services some administrative staff and reporters. We are pleased that even with the inevitable hiatus in getting these new recruits in place we managed to process 30% more appeals than in 2020/21 and exceeded our target of deciding 80% of appeals determined by site visits within 12 weeks of receipt.

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 them increased to 76, although the percentage of these in relation to all those received was much the same. In the course of the year we contacted all parties who had submitted an appeal to DPEA in the previous 12 months that should have been submitted to the appropriate Local Review Body to find out the reasons for this. The responses showed three main areas behind these numbers. These were confusion over terminology – parties wish to appeal rather than review; our guidance could be clearer; and the e-development portal could be clearer in relation to review/appeal. We will look to take forward, where possible, improvements in respect of these areas, albeit these are not issues are not completely within our control. We will also correspond with planning authorities where it is not always clear from the decision notice whether it should be a review or an appeal.

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.

Whilst in 2021/22 our percentage within target for appeals determined by initial written submissions and a site inspection was lower than in 2020/21, a greater volume, 167 compared to 139, were decided within that 12 week target and our average time to determine all such appeals was 12.2 weeks. Likewise in more complex appeals in which the reporter asked for further written submissions, 106 appeals were decided by this method within their 20 week target compared to 90 in 2020/21, although our average time to determine all such appeals did increase from 19.4 weeks to 21.6 weeks.

A high proportion of complex cases have continued to contribute to difficulties in allocating cases to reporters. We have not achieved our targets for delegated appeals conducted by hearing session (26 weeks) or inquiry session (32 weeks) although the average time taken in these cases is down significantly from last year – 56 weeks for inquiries in 2020/21 to 35 weeks to 21/22 and 41 weeks in 2020/21 to 26 weeks for hearings in 21/22. The number of these cases is however small: 4 cases out of 371. Go to performance against our targets for more information.

We have dealt with appeals for significant development proposals including:

Residential Developments Over 10 Units

Location	Houses / Flats	Decision
Aberdeen (Maberly Street)	17	Appeal Dismissed
Aberdeen (Milltimber)	99	Appeal Allowed
Aberdeen (North West Of South Esplanade West)	258	Appeal Allowed
Aberdeen (Stoneywood Park)	50	Appeal Allowed
Aberdour	125	Appeal Allowed
Bishopbriggs	158	Appeal Allowed
Drumnadrochit (Balmacaan Road)	15	Appeal Dismissed
Drumnadrochit (Drum Farm)	93	Appeal Allowed
Dundee (Ballumbie Road)	150	Appeal Allowed
Dundee (Broughty Ferry)	16	Appeal Dismissed
Dundee (Broughty Ferry)	15	Appeal Dismissed
Dundee (North Of Brownhill Street)	12	Appeal Allowed
Erskine	246	Appeal Dismissed
Forfar	81	Appeal Dismissed
Fort William	18	Appeal Allowed
Glasgow (Argyle Street)	84	Appeal Dismissed
Glasgow (Sawmillfield Street/Farnell Street)	182	Appeal Dismissed
Glasgow (Carmunnock Road)	40	Appeal Dismissed
Glasgow (River Kelvin/Blackhill & Balmore Road)	500	Appeal Dismissed
Inverness	24	Appeal Allowed
Kilmacolm	100	Appeal Dismissed
Kilmarnock	49	Appeal Dismissed
Kinfauns	15	Appeal Allowed
Kingseat	80	Appeal Dismissed
Kinross	169	Appeal Allowed
Ladybank	60	Appeal Allowed
Linlithgow	189	Appeal Dismissed
Livingston	140	Appeal Allowed
Mauchline	28	Appeal Dismissed
Musselburgh	300	Appeal Dismissed
Nairn	10	Appeal Allowed
Nethy Bridge	20	Appeal Dismissed
Newmains	92	Appeal Allowed
Peebles	22	Appeal Dismissed
Pool Of Muckhart	50	Appeal Allowed
Portincaple	12	Appeal Dismissed
Quarriers Village	45	Appeal Dismissed
Stepps	300	Appeal Dismissed
Strathkinness	65	Appeal Allowed
Thornton	14	Appeal Allowed
Westhill	63	Appeal Allowed
Wishaw	150	Appeal Allowed in Part

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

Number of Houses Consented in Residential Developments Over 10 Units Over 5 Years

Review year	Houses/Flats consented
2021/22	1815
2020/21	2236
2019/20	3487
2018/19	1516
2017/18	2270

Wind Farm Appeals (Two Or More Turbines)

Location	Turbines	Decision
The St Fergus Gas Terminal, Peterhead	2	Appeal Allowed
Margree, St John's Town Of Dalry, DG3 (SJTD)	9	Appeal Allowed
Cornharrow, (SJTD)	8	Appeal Allowed
Glenshimmeroch Hill And Kinair Hill (SJTD)	10	Appeal Allowed
South West of Moniaive, DG3	9	Appeal Allowed
Farlary, Rogart, IV28	7	Appeal Dismissed
North West of Tannach, Wick	11	Appeal Allowed
Torr Leathann Strathrory, Ardross, Alness, IV17	7	Appeal Allowed
Dykecroft, Boghead, Lanark	2	Appeal Dismissed

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

In 2021 DPEA reporters granted planning permission for 266 MW of output.

Other notable appeals decided in this year include:

• As in the last couple of years a number of enforcement notice appeals relating to short stay commercial visitor accommodation
• Building designation appeals for flats in Aberdeen
• Appeals relating to penalty notices issued by SEPA
• A care home in Langholm
• A reserve gas generation facility at Fishcross
• A hotel at Inglilston, Edinburgh
• A sports village at Peffermill Road, Edinburgh
• Salmon fish farms at east of Balmaqueen; and Isle of Arran

Recalled Appeals

Reports were submitted to Scottish Ministers in four appeals that had been recalled for their consideration.

Appeal Reports Submitted To Scottish Ministers

Location	Proposed developments
Culloden Moor, Inverness	Leisure and hospitality facilities
Westhill, Inverness	Conversion of steading to private dwelling
Bridge of Allan, FK9	Residential development
Strathblane, G63	Residential development

Called In Planning and Listed Building Applications

Eight reports for planning applications were submitted to Scottish Ministers for their consideration. Two related to applications for six wind turbines each at Quanterness and Lyness, Orkney; and the others were for a residential developments at Kilmalcolm, PA13 and Corstorphine Road, Edinburgh; a mixed use development including residential flats and student accommodation at Gorgie Road, Edinburgh; holiday accommodation at St. Cyrus, DD10; the erection of a dwelling houses at Baldovan, Strathmartine, DD3 and on the Isle of Lewis.

A report for a listed building application for alterations to a building on James Craig Walk, Edinburgh was also submitted to Ministers.

Planning Obligation Appeals

As with the previous year decisions were issued for eight planning obligation appeals in 2021/22, some details of which are shown in the following table.

Planning Obligation Appeal Decisions Issued

Authority	Modification sought	Decision
Angus Council	Affordable Housing (Commuted Sum)	Appeal Dismissed
City of Edinburgh Council	Transport Contributions	Appeal Allowed
Dumfries & Galloway Council	Ownership and Occupancy Restrictions	Appeal Allowed
East Lothian Council	Timing of Education Contributions	Appeal Dismissed
Fife Council	Education Contributions & Affordable Housing (Commuted Sum)	Appeal Allowed
North Lanarkshire Council	Affordable Housing (Commuted Sum)	Appeal Dismissed
West Lothian Council	Education Contributions	Appeal Allowed
West Lothian Council	Town Centre Improvement Contributions	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.

Three LDP examinations were completed in 2021/22. 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.

As with the previous year 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.

There were four ongoing examinations at the end of the review period. Subsequent to which we completed the examination of the Aberdeenshire Local Development Plan. Five more full plans are due to be submitted for examination before the end of March 2023 and we expect three planning authorities will submit evidence reports by then for us to carry out the new Gatecheck process. One full plan and one evidence report are so far expected in the following review year.

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 years following. 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 nine reports were submitted to Ministers for applications for wind farms. Those were for; Fetteresso, Stonehaven; Sanquhar II, Sanquhar, DG3; Arecleoch, Barrhill, KA26; Glenshero, Laggan, PH20; Clash Gour, Forres, IV36; Rothes III, Rothes, AB38; Blarghour, Portsonachan, PA33; Strathy Wood, Strathy, Sutherland and the Limekiln Extension, Reay, Caithness.

At the end of the review period we had a further seven Section 36 applications for wind farms plus five related Section 37 applications for a power line in hand, as listed below. A report for WIN-170-2005, Shepherds Rig Wind Farm was submitted just after the end of the review period.

Electricity Act Applications

DPEA reference	Planning authority	Type & Name
WIN-370-3	South Ayrshire Council	Wind Farm - Clauchrie
WIN-130-5	Argyll and Bute Council	Wind Farm - Sheirdrim
WIN-270-14	Highland Council	Wind Farm - Kirkan
WIN-110-2	Aberdeenshire Council	Wind Farm - Clashindarroch II
WIN-170-2007	Scottish Borders Council	Wind Farm - Faw Side
WIN-110-3	Aberdeenshire Council	Wind Farm - Glendye
WIN-270-15	Highland Council	Wind Farm - Kintradwell
TRL-170-1, 2, 3, 4 & 5	Dumfries and Galloway Council	Transmission Line - Kendoon To Tongland

This year we submitted reports to Ministers on two applications for a necessary wayleave. Decisions issued by Scottish Ministers following a reporters report and recommendation to grant consent totalled 193 MW of output.

Compulsory Purchase Orders

Ten reports on compulsory purchase orders were submitted this year. Two were for the A9 Dualling sections of Dalraddy to Slochd and Crubenmore to Kincraig and another two were for the Denny Eastern Access Road, Denny. Others were for Phase 2 of the Cross Tay Link Road, Perth; the Berryden Corridor Improvement, Aberdeen; the Forres Waste Water Treatment Works Expansion, Forres; the Glenwood Centre, Glenrothes; a building at 2 High Street/12 Market Place, Jedburgh and land at Nithsdale Crescent, Bearsden.

Other Orders and Reports

Reports related to the A9 dualling including two each for side roads orders, trunking orders and extinguishment of public rights of way orders were submitted. Others submitted related to a traffic regulation order for the (Meadowhead Highway, East Kilbride; the creation of a path at Mill Street, Dingwall and a flood protection scheme at Comrie, Perthshire.

Core Path Plans

The Moray Amended Core Path Plan 2018 report was also submitted during the review year. Similar to what we do with Local Development Plans we have commenced early engagement with authorities due to submit a Core Path Plan for examination.

Environmental Appeals

In 2021/22 we issued four decisions on environmental appeals involving the Scottish Environment Protection Agency (SEPA). Three were in regard to penalty notices they issued regarding non-compliance with regulations of the Greenhouse Gas Emissions Trading Scheme at various addresses in Elgin. The other one was in regard to their partial refusal to consent to the variation of a permit to allow the burning of an extra waste product in a combustion plant at Station Road, Cowie.

High Hedges

We made eleven decisions in 2021/22 on appeals 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 2021/22 we made six decisions on building designation appeals. Five of these were for blocks of flats in various locations in Aberdeen and the other one was for gates and gatepiers at Linden Park, Hawick.

Community Asset Transfer Appeals (CAT)

CAT Appeal Reports Submitted To Scottish Ministers

DPEA Reference	Authority	Asset
CAT-120-2	Angus Council	Carnoustie Police Station
CAT-180-2	Dundee City Council	Brechin Infirmary
CAT-250-1	Fife Council	St Andrews Local Office
CAT-320-1	North Lanarkshire Council	Viewpark Gardens, Uddingston

We have one other appeal of this type in progress. We have continued to engage 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 2021/22 in relation to appeals decided by reporters.

Court Of Session and Sheriff Court Appeals* Position

Case reference	Date referred to Court of Session	Court of Session outcome date	Court of Session outcome
PPA-160-2030	05/11/2020	05/10/2021	Upheld
ENA-110-2029	01/04/2021	26/04/2021	Withdrawn
ENA-110-2030	01/04/2021	26/04/2021	Withdrawn
ENVC-003-10	06/05/2021	29/11/2021	Upheld
ENVC-003-11	06/05/2021	29/10/2021	Upheld
ENA-120-2019	11/05/2021	08/04/2022	Upheld
PPA-400-2113	07/07/2021	29/10/2021	Withdrawn
PPA-220-2066	07/07/2021	17/08/2021	Withdrawn
ENVC-003-15*	17/11/2021
PPA-170-2157	01/03/2022

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. In the course of the year we initiated a customer survey for parties involved in delegated casework. A link to the DPEA Customer Survey is sent to all parties with the notification of the final decision and is also available on case publication page on the web. Questions are asked relating to the case publication site, guidance and forms on our web pages, communication, clarity of the decision notice and interactions with staff. Responses so far have been limited but we will look at ways of increasing this in the coming year.

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. The Group covered a wide range of issues including the challenge presented by delivering our business during the pandemic; planning reform; core documents library for Section 36 cases; the customer survey; the high number of cases submitted to DPEA that should have gone to the Local Review Body; publication timescales; DPEA performance; Guidance Note 23 relating to the management of an efficient inquiry process; and the future use of in-person and virtual hearings and inquiries.

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

NatureScot

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 a slight improvement from 2020/21. Now that our recruitment issues have been resolved we anticipate being able to give the necessary focus to work in this area 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 the Global Climate Emergency; Compulsory Purchase Orders; Core Path Plans; Forestry Appeals; and NPF4. 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. This has especially been the case in the last year in relation to Section 36 Electricity Act cases.

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 three formal complaints regarding our work – down from 7 in 2020/21 and 13 in 2019/20. The complaints were about a decision and how it was reached, lack of notification of a site visit and a local development plan. One complaint was taken to Stage 2 of the complaints process.

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.

Finance

DPEA Expenditure and Income

Expenditure	£
Salaries	3,157,883
Self-Employed Reporter Fees	277,856
Travel & Subsistence	46,032
Administration	148,815
Venue Hire	1,200
Advertising	22,428
Legal Services	66,325
IT Development	63,324
Total	3,783,863
Income*	277,777

*This income, which is earned from the examination of local development plans, is not retained by DPEA.