Planning Circular 4/2013: Planning appeals

APPEALS IN RELATION TO PLANNING OBLIGATIONS, GOOD NEIGHBOUR AGREEMENTS AND CERTIFICATES OF LAWFUL USE OR DEVELOPMENT

Appeals in relation to planning obligations

86. Where an application is made under section 75A of the 1997 Act for the modification or discharge of a planning obligation and is refused, the applicant can appeal under section 75B. The same right of appeal applies should the planning authority fail to issue a decision within two months. Regulation 21 covers such appeals.

87. Notice of appeal must be given to Scottish Ministers within three months beginning with the date of the decision notice refusing the application or, where the planning authority fail to determine the application, within three months beginning with the date of expiry of the two month period for determination of the application (see paragraph 17 on examples of when such three month periods begin and end).

88. The following provisions, in common with the processes for considering planning application appeals, apply in relation to appeals regarding planning obligations:

• regulation 3(4) to (6) on the content of notices of appeal, accompanying information and that the subsequent introduction of new matters, documents, materials or evidence can only be in relation to procedures under regulations 4, 5 and 11 and the Hearing Session and Inquiry Session rules (see paragraphs 21 to 25);
• the same provisions for notifying the planning authority and for the response to that as set out in regulation 4 (see paragraphs 27 to 30) with the exception of the requirements for Reports on Handling and proposed planning conditions;
• the same provisions on notifying interested parties as set out in regulation 5 (see paragraphs 31 to 33), except regulation 5(2) and (3)(c) and that the description of development is modified to refer to the obligation and the instrument within which it is contained;
• the same provisions in regulation 6 on making appeal documents available to the public;
• the provisions of Parts 1, 3 and 9 of the 2013 Regulations; and
• the Hearing Session Rules and the Inquiry Session Rules.

Appeals in relation to good neighbour agreements

89. Regulation 22 deals with appeals in relation to applications to modify or discharge good neighbour agreements (section 75F of the 1997 Act). Appeals against a decision on such applications must be made within three months beginning with the date of the decision notice. Where the planning authority has not issued a decision on such an application within two months after the date the application was made, the applicant has three months, beginning with the date of expiry of the two month period, to appeal on the grounds of non-determination.

90. The following provisions, in common with the processes for considering planning application appeals, apply in relation to appeals regarding good neighbour agreements:

• regulation 3(4) to (6) on the content of notices of appeal, accompanying information and that the subsequent introduction of new matters, documents, materials or evidence can only be in relation to procedures under regulations 4, 5 and 11 and the Hearing Session and Inquiry Session rules (see paragraphs 21 to 25);
• the same provisions for notifying the planning authority and for the response to that as set out in regulation 4 (see paragraphs 27 to 30 above) with the exception of the requirements for Reports on Handling and proposed planning conditions;
• the same provisions on notifying interested parties as set out in regulation 5 (see paragraphs 31 to 33), except regulation 5(2) and (3)(c) and that the description of development is modified to refer to the obligation and the good neighbour agreement within which it is contained;
• the same provisions in regulation 6 on making appeal documents available to the public;
• the provisions of Parts 1, 3 and 9 of the 2013 Regulations;
• the Hearing Session Rules and the Inquiry Session Rules.

Appeals in relation to certificates of lawful use or development

91. Regulation 23 supplements the provisions in section 154 of the 1997 Act on appealing against refusal or failure to determine an application for a certificate of lawful use or development ( CLUD) within the prescribed period. The regulation requires the notice of appeal to be served within three months beginning with the date of the decision or from the expiry of the period allowed for determining the application (two months beginning with the date of receipt of the application and fee or any extended period agreed upon in writing between the applicant and the planning authority).

92. The following provisions, in common with the processes for considering planning application appeals, are required in relation to a CLUD appeal:

• the same provisions for notifying Scottish Ministers of the appeal as set out in regulation 3(4) to (6) (see paragraphs 19 to 25);
• the same provisions for notifying the planning authority and for the response to that as set out in regulation 4 (see paragraphs 27 to 30) with the exception of the provisions for reports on handling and planning conditions;
• the same provisions in regulation 6 on making appeal documents available to the public, except in relation to the notices to interested parties and responses to these, as specified in regulation 5(1), (4) and (6), which do not apply to these appeals;
• provisions in Parts 1, 3 and 9 (other than regulation 29 - see paragraph 101) of the 2013 Regulations; and
• the Hearing Session Rules and the Inquiry Session Rules.