Planning Circular 4/2013: Planning appeals

SCOPE OF THE REGULATIONS

8. Certain planning applications have a right to a review by the planning authority instead of a right of appeal to Scottish Ministers, and the 2013 Regulations do not generally apply to such cases. The right to a review applies where applications for planning permission ^[4] for local development ^[5] , or applications for consent, approval or agreement required by a condition attached to such permission, are delegated to an appointed officer for decision. Applications for review are conducted by the local review body of the planning authority and there is no right of appeal to Scottish Ministers against their decision.

9. Where a review is sought on the grounds that the appointed officer has not issued a decision on the application within the period allowed and the local review body of the planning authority fails to issue a decision within three months, the application is automatically refused planning permission. In this situation the applicant has a right of appeal to Scottish Ministers and may do so within three months. The 2013 Regulations would apply to such an appeal.

10. The requirements in relation to reviews are contained in the 1997 Act and the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2013 ( SSI 2013/157) ^[6] . Further information can be found in Circular 5/2013 on Schemes of Delegation and Local Reviews.

11. Where such applications for local development are not so delegated for decision, then the applicant has a right of appeal to Scottish Ministers, as they do in relation to major developments and national developments.

12. The 2013 Regulations and this circular apply to appeals in relation to the following:

The Town and Country Planning (Scotland) Act 1997

• decisions on planning applications, or the failure to take such decisions (section 47 - including those appeals recalled for a decision by Scottish Ministers);
• refusal or the failure to take a decision on an application for the modification or discharge of planning obligations (section 75B);
• refusal or the failure to take a decision on an application for the modification or discharge of good neighbour agreements (section 75F);
• enforcement Notices (section 130);
• refusal of certificates of lawful use or development or failure to determine an application in this regard (section 154);
• notices requiring replacement of trees (section 169); and
• amenity Notices (section 180).

The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997

• decisions on applications for listed building consent or the failure to take such decisions (section 18);
• decisions on applications for the variation or discharge of conditions on listed building consent or the failure to take a decision (section 18 applied by section 17);
• decisions on applications for conservation area consent, or the failure to take such decisions (section 18 as applied by section 66); and
• enforcement notices in relation to listed building consent (section 35) and conservation area consent (section 35 as applied by section 66).

The Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984

• decisions on applications for advertisement consent or the failure to take a decision (section 47 of the 1997 Act as applied by regulation 21 of the 1984 Regulations);
• discontinuance Notices (section 47 of the 1997 Act as applied by regulation 21 of the 1984 Regulations); and
• enforcement Notices (section 130 of the 1997 Act as applied by regulation 25 of the 1984 Regulations).

Applications called-in for determination by Scottish Ministers

13. The 2013 Regulations also set the relevant processes for handling applications called-in from planning authorities for decision by Scottish Ministers under section 46 of the 1997 Act and section 11 of the Listed Buildings Act.

Other cases

14. There remain certain cases within the wider planning regime where the 2013 Regulations do not yet apply. For example, the right to be heard remains in relation to appeals and called-in applications for hazardous substances consent under the Planning (Hazardous Substances) (Scotland) Act 1997. Such cases are dealt with under the Town and Country Planning (Inquiries procedure) (Scotland) Rules 1997 ( SI 1997/796) or Annex F of Circular 17/1998. The principles underpinning the 2013 Regulations will be applied wherever possible.