Planning Circular 4/2013: Planning appeals

PLANNING APPEAL PROCESS

15. This section describes the appeal process with regard to applications for planning permission and for approval, consent or agreement required by a condition attached to a planning permission. Subsequent sections describe how this process is applied with any modifications in relation to appeals in other types of case and applications called-in for determination by Scottish Ministers to which the 2013 Regulations apply .

Notice of appeal

16. An appeal to Scottish Ministers against a decision on a planning application (or a failure to make a decision) needs to be made in writing. Regulation 3 requires the notice to be given in a form obtained from Scottish Ministers. Appeals may be submitted online; forms and guidance for doing so are available at www.eplanning.scotland.gov.uk .

17. The notice of appeal needs to be served within a period of three months beginning with the date of the decision notice or, in the case of an appeal against non-determination, beginning with the date of expiry of the period allowed for determining the application. For example, if the date of the planning authority's decision notice were 1 September, an appeal would have to be received by DPEA on or before 30 November. An appeal submitted on 1 December would be out of time and not accepted. If the period within which the planning authority had to make a decision expired on 17 March, without one being issued, an appeal on the grounds of failure to determine would need to be made by 16 June. There is no discretion to accept late appeals ^[7] .

18. The period allowed for determining an application is specified in regulation 3(2). With applications for planning permission for major or national development or where environmental impact assessment is required, the period allowed for determination is four months. With any other application for planning permission or for approval, agreement or consent required by a condition attached to a planning permission, the period is two months. Where the applicant and planning authority agree in writing to an extension to these statutory periods, such extended period counts as the period allowed for determination.

19. Regulation 3 sets out what is required to accompany a notice of appeal to Scottish Ministers. The notice of appeal must include the following information:

• the name and address of the appellant;
• the date and reference number of the relevant planning application;
• the name and address of any representative of the appellant for correspondence purposes;
• a statement setting out full particulars of the appeal including a note of what matters the appellant considers should be taken into account in determining the appeal and by which procedure (or combination of procedures) the appellant would prefer the appeal to be conducted; and
• where the appeal is against the planning authority's decision, a copy of the decision notice.

20. The appeal form provided by the Scottish Government will prompt the provision of all of this information. While DPEA will request any missing information, if the statutorily required information is not submitted within the period for making the appeal, the appeal will not be accepted.

21. Regulation 3(5) specifies that all matters that the appellant intends to raise in the appeal must be set out in the notice of appeal (on a form obtained from Scottish Ministers) or in the accompanying documents. All documents, including a copy of the planning application and all accompanying certification and copies of plans submitted to the planning authority and any other evidence that the appellant intends to use to support his or her case must also accompany the notice of appeal.

22. Section 47A restricts the ability of parties to introduce new matters at the appeal stage unless they are material to the determination of the case. The restriction on raising new matters on appeal does not prevent the submission of new documents, material or evidence on issues that were before the planning authority.

23. Section 47A applies only in relation to appeals under section 47(1) against refusal or a grant with conditions in relation to applications for:

• planning permission;
• consent, agreement or approval required by a condition attached to a planning permission;
• approval required under a development order;
• consent to display advertisements; and
• consent, agreement or approval required by a condition on a consent to display advertisements.

24. Regulation 3(6) makes clear that the appellant may only raise additional matters or submit further documents, materials or evidence in accordance with and to the extent permitted by the 2013 Regulations. That is, in accordance with:

• regulation 4(3), in commenting on the planning authority's response to the appeal;
• regulation 5(6), in commenting on the interested parties' responses to the appeal;
• regulation 11, where the appointed person seeks further written submissions;
• the Hearing Session Rules; or
• the Inquiry Session Rules.

25. These requirements are intended to ensure that the relevant matters and items of information are provided efficiently at the start of the appeal process, rather than at varying points throughout the process.

26. Section 32A of the 1997 Act specifies that an application is not to be varied after an appeal has been made. This provides clarity about the extent to which the appeal process should focus on the proposal that was considered by the planning authority. Where an applicant considers that it would be beneficial to revise a proposal, a new planning application should be submitted for consideration by the planning authority.

Intimation to the planning authority

27. At the same time that the appellant gives notice of appeal to Scottish Ministers, the appellant must also inform the planning authority. Regulation 4 requires that the appellant sends to the planning authority a copy of the notice of appeal and a list of all documents, materials and evidence which the appellant intends to rely upon and which accompanied the notice of appeal. There is no need for the appellant to send the planning authority copies of documents that the appellant has already submitted to that authority. The appellant must, however, also send to the planning authority a copy of any documents, materials and evidence which had not already been provided to the planning authority while it had been considering the application.

Planning authority response

28. Having received the notice of appeal from the appellant, regulation 4(2) requires the planning authority to provide a response within 21 days, beginning with the date of receipt. It is important that authorities meet this deadline as any delay at this stage has a particularly detrimental effect on the running of the appeal as a whole. The planning authority should send to Scottish Ministers and the appellant:

• a note of the matters that the planning authority considers should be taken into account in determining the appeal and by what procedure (or combination of procedures) the authority thinks these should be examined;
• a copy of the documents (other than those specified by the appellant in his or her list of documents, materials and evidence) which were taken into consideration by the planning authority in making its decision;
• a copy of any Report on Handling of the planning application; and
• the conditions that the planning authority consider should be imposed in the event that planning permission is granted.

The DPEA provide a form to assist the drafting of this submission. The form is available at:

http://www.scotland.gov.uk/Topics/Built-Environment/planning/Appeals/appealformsguidancenotes

29. Regulation 4(3) allows that, having received the planning authority's response, the appellant can, within 14 days beginning with the date of receipt, send to Scottish Ministers and to the planning authority any comments on matters raised by the planning authority which had not previously been addressed in the decision notice. At the same time, the appellant can also provide any further documents or other evidence in support of those additional comments. Planning authorities are expected to provide full reasons in their decision notice and so this provision should not normally be needed. This is not intended to be a chance for appellants to add to their response to issues raised in the decision notice.

30. Under the terms of the 2013 Regulations, no additional response will routinely be sought from the planning authority; although the appointed person may specifically request further submissions from the appellant, planning authority and any other specified party through a subsequent procedure notice (see paragraphs 36 to 56).

Notification to interested parties

31. Regulation 5 requires planning authorities to give interested parties notice of the appeal within 14 days of the authority being notified of the appeal. "Interested parties" are any statutory consultees or any other persons who made representations to the planning authority during the authority's consideration of the planning application, which were not subsequently withdrawn. Interested parties should be advised of where the notice of appeal can be inspected, and also that the representations they previously made will be sent to Scottish Ministers and the appellant by the planning authority.

32. As representations previously made and lodged with the planning authority by interested parties will be taken into account before a decision is reached on the appeal, there is no need or expectation for the same matters to be raised again with Scottish Ministers. Nevertheless, regulation 5(4) allows that interested parties may make further representations to Scottish Ministers in respect of the appeal within 14 days beginning with the date notice is given of the appeal. In turn, the 2013 Regulations require Scottish Ministers to send a copy of any representations received by them to the appellant and to the planning authority, each of whom are provided with an opportunity to respond within a specified period, being not less than 14 days after the copies were sent.

33. The planning authority are to make all the relevant appeal papers available for inspection and for copying at an office of the planning authority (regulation 6). The legislation does not rule out electronic provision in this regard; however, it must be possible to view the information effectively.

Deadlines for provision of statements and other evidence

34. As noted above, the 2013 Regulations set a number of statutory deadlines for the provision of:

• the planning authority's response to the appeal (21 days);
• the appellant's further comments (14 days);
• the planning authority's notification to interested parties (14 days);
• further representations from interested parties (14 days); and
• the appellant's and planning authority's comments on representations from interested parties (specified date, not less than 14 days).

In the interests of efficiency in decision-making, the Scottish Government expects parties to provide this information at the earliest opportunity.

Matters which may be raised in an appeal

35. See paragraphs 21 to 25 on limitations under section 47A and regulation 3 on the introduction of new matters ( i.e. issues relevant to the decision) and of documents, materials or evidence in relation to new matters or those matters which were before the planning authority.

Procedure for determination

36. Once the exchange of information set out in the paragraphs above has been completed, and where the person appointed to decide the appeal has sufficient information to make a decision, regulation 7 allows the decision to be made, without there being any further procedure or information gathering. It is at the appointed person's discretion whether further procedure is needed. For example, a request by the appellant or the planning authority for a hearing session or an inquiry session does not mean that such a session would be arranged.

Further evidence

37. However, if the appointed person decides that further information or additional representations are required to enable him or her to determine the appeal, the appointed person may do this by one of, or by a combination of, the procedures set out in regulation 9 (further written submissions, hearing sessions, inquiry sessions or a site inspection). The appointed person will identify each of the matters on which further information is needed, and also the procedure to be used to obtain it. This will be clearly set out to the parties involved in what the regulations refer to as a "procedure notice".

Opt-in notice

38. Where further information is required, regulation 8 allows the appointed person to write to interested parties seeking their confirmation that they wish to be involved in the further processing of the case ( e.g. hearing or inquiry sessions). Interested parties will be given a specified period (being at least 14 days from when notice is given) within which to give confirmation, otherwise they may lose the opportunity to be involved. In any event, their original representation will still be given due consideration and they will be informed of the decision on the appeal in due course.

39. The intention is that this "opt-in" procedure would be used in those cases where there are a significant number of interested parties; for example, where a large number of representations had been made by petition or by standard letter. The aim is to identify those interested parties who wish to play an active role in any further procedure in the appeal and to avoid repeatedly sending information about the progress of an appeal to people who, though they may be interested in the case and want their original views to be considered, do not want to be involved in any further appeal procedure.

Site inspections

40. The appointed person may, at any stage of an appeal, decide to carry out an inspection of the appeal site. Regulation 12 sets out details about site inspections. These may be either unaccompanied or accompanied. Where the appointed person intends to make an unaccompanied inspection of the site they will inform the appellant and the planning authority. If, for any reason, the appointed person considers that an accompanied site inspection would be appropriate, then the appellant, the planning authority and all interested parties (subject to any "opt-in" procedure - see paragraphs 38 and 39) will be informed of the arrangements, including the date and time. The appointed person is not obliged to defer the site inspection if any of the parties or interested persons are not present or available on the set date.

41. The purpose of the site inspection, even if accompanied, is to allow the appointed person to see the site and is not an opportunity for parties to discuss with him or her the merits of the case.

Pre-examination meetings

42. In some instances it will be helpful for the appointed person to hold a pre-examination meeting to consider how the appeal or a particular stage of it can best be conducted efficiently and expeditiously. Regulation 10 provides a procedure for this and for involving the appellant, the planning authority and the interested parties (subject to any "opt-in" procedure - see paragraphs 38 and 39). The arrangements for holding and giving notice of such a meeting and for deciding the matters to be discussed are for the appointed person to determine. It is likely that pre-examination meetings will only be required in a small number of complex cases.

Written submissions

43. Regulation 11 sets out the procedure for seeking further written submissions on an appeal. The appointed person is free to seek additional representations or information from the appellant, the planning authority or from any other body or person. The procedure notice will set out what information is required and by what date and will provide details of those who have been requested to provide the additional information.

44. Parties providing such further information (a procedure notice response) to the appointed person should at the same time send copies to all parties specified in the procedure notice, including the appellant and the planning authority. All of these parties then have an opportunity to send comments on a procedure notice response to the appointed person within 14 days from the date they received it, again providing copies to the appellant, planning authority and others specified in the procedure notice. The timetables for the provision of this information must be observed; late submissions might not be taken into consideration in the final decision.

Hearing sessions

45. Schedule 1 to the 2013 Regulations sets out the Hearing Session Rules. These provide the appointed person with scope to determine what procedure should be followed at a hearing on the specified matters or topics that are set out in the procedure notice. The hearing is intended to take the form of a discussion led by the appointed person. Formal cross-examination of participants will not be allowed. While the rules provide discretion for the procedure the appointed person thinks appropriate to follow during the hearing, they also provide a framework to ensure that the relevant parties have clear notice of the hearing session, the other participants in the process and clarity about the issues and evidence to be considered.

46. Where the appointed person intends to hold a hearing session, he or she must give written notice to the appellant, to the planning authority and to those parties who made representations on the specified matters (subject to any "opt-in" procedure - see paragraphs 38 and 39). Any party intending to participate in the hearing session must inform the appointed person within 14 days of the date of the notice as set out in rule 2. Only those matters specified in the procedure notice will be considered at the hearing: consequently, only those who made related representations are required to be given notice of the hearing. The appointed person may also give notice to any other body or person who is to provide further representations on the specified matters.

47. It is for the appointed person to give those entitled to appear notification of when and where the hearing is to take place, and to give whatever notice he or she considers to be reasonable in the circumstances (rule 3). Those who are entitled to appear at a hearing session may be required to send a hearing statement and any supporting documents to the other parties entitled to appear at the hearing and to the appointed person (rule 4). This will not be required in every case and will be for the appointed person to determine. Rule 4(5) confirms a hearing statement to be a written statement which fully sets out the case relating to the specified matters on which the appointed person has sought information in the procedure notice, together with a list of supporting documents to be relied upon and a list of any persons who are to speak at the hearing session, including the matters to be covered by each person and their relevant qualifications. The rules are intended to ensure that all parties are clear on the issues and evidence to be considered at the hearing session.

48. At the start of the hearing session, the appointed person is to explain the procedure that they intend to adopt, taking into account submissions made by any of the parties entitled to appear. Parties may be represented or, where two or more persons have a similar interest, one or more may appear for the benefit of some or all. The appointed person may proceed with the hearing in the absence of anyone entitled to appear.

Inquiry sessions

49 . Schedule 2 to the 2013 Regulations sets out Inquiry Session Rules. In common with the procedure for hearing sessions, the inquiry sessions will examine only those matters specified in the procedure notice issued under rule 1. The parties entitled to appear at inquiry sessions will be:

• the appellant;
• the planning authority;
• any interested party who made representations in relation to specified matters; and
• those who the appointed person wishes to make representations on the specified matters.

50. Those provided with written notice of the inquiry session by the appointed person must confirm their intention to attend the session within 14 days of the date of the notice.

51. Rule 3 requires the appointed person to provide such notice of the date, time and place fixed for holding the inquiry session as he or she considers reasonable to those parties entitled to appear at the inquiry session. However he or she may also require the planning authority to take one or more of the following additional steps to publicise the inquiry session:

• publish notices in a local newspaper and on a website not less than 14 days before the inquiry session; or
• serve notice of the inquiry session in a form and on such parties as the appointed person specifies.

52. Where required to by notice from the appointed person, those entitled to appear at the inquiry session need to provide copies of an inquiry statement to the appointed person and to the appellant and planning authority. This should set out the particulars of the case relating to the specified matters, a list of documents to be relied upon, and a list of any persons who are to speak at the inquiry session including the matters to be covered by each person and their relevant qualifications. The appointed person will provide those entitled to appear at the inquiry session with details of when information should be submitted.

53. The appointed person's notice will also specify the date by which the documents listed in the inquiry statement must be submitted to the appointed person and to the appellant, planning authority and other persons entitled to appear at the inquiry session. It will also specify the date for submission of precognitions setting out the evidence to be given by the witnesses listed in the inquiry statement. The Inquiry Session Rules require that precognitions should not exceed 2,000 words in length.

54. The rules provide the appointed person with scope to determine the procedure at the inquiry session but he or she is to state at commencement of the session what the procedure will be, taking account of submissions from those entitled to appear. The rules require the appointed person to explain the order in which specified matters are to be considered and the order in which those entitled to appear are to be heard. Parties may be represented or, where two or more persons have a similar interest, one or more may appear for the benefit of some or all.

55. Those entitled to appear at an inquiry session may call evidence, cross-examine witnesses and make closing statements. However, the appointed person can refuse to permit this wherever he or she considers that to be irrelevant or repetitious.

New evidence

56. Where, following conclusion of any further procedure, such as a hearing session or inquiry session, the appointed person intends to take into account new evidence, the 2013 Regulations require him or her to give the appellant, the planning authority and other relevant parties described in the 2013 Regulations an opportunity to make representations on the new evidence before a decision can be made on the appeal. Regulation 13 defines "relevant party". Where new evidence relates to a specified matter which was the subject of a hearing or inquiry session, everyone entitled to appear at that session is a relevant party. Where new evidence relates to a matter on which further written representations or information was sought by a procedure notice under regulation 11, a relevant party is anyone to whom the procedure notice was sent.