Planning Circular 5/2013: Schemes of delegation and local reviews

LOCAL REVIEWS

20. Where an application for planning permission, or for consent, agreement or approval required by a condition on such permission, is for a proposal in the category of local development falling within the scheme of delegation and has been:-

• refused by an appointed officer;
• granted subject to conditions*; or
• has not been determined within the period allowed for determination (see footnote 4),

the applicant has a right to a review of the case by the planning authority (section 43A(8)). The Regulations set out the procedures for requiring a review and the process that should then be followed.

* Section 58(1) of the Act specifies that planning permission will expire after three years from the date on which it is granted unless the development to which it relates has been started. The Act also allows at section 58(2) that the planning authority may direct that a longer or shorter period than three years may apply. Although these time periods are not a condition to the planning permission, it is open to the applicant to seek a review against the three year time period, or any different period directed, as if it were a condition ⁷ . Similar provisions apply to the duration of planning permission in principle under section 59.

Notice of review

21. Regulation 9 provides for the applicant to seek a review by giving written notice to the planning authority (the local review body). The request to review is referred to in regulation 9 as the "notice of review".

22. This notice must be served on the planning authority within three months beginning with the date of the decision notice or the date of expiry of the period allowed for determining the application (see footnote 4) ⁸ .

23. The notice of review can be made on an e-form or its paper equivalent produced by the Scottish Government or on a planning authority form (if available). It needs to include sufficient information to allow the planning authority to review the case. Accordingly, regulation 9 sets out that the information to be provided by the applicant is:-

• the name and address of the applicant;
• the date and reference number of the application which is the subject of the review;
• the name and address of the representative of the applicant (if any) and whether any notice or correspondence required in connection with the review should be sent to the representative rather than the applicant; and
• a statement setting out the applicant's reasons for requiring the review and by what procedure (or combination of procedures), if any, the applicant wishes the review to be conducted. In this regard the procedures that may be used are set out in regulation 13(4) and include written submissions, the holding of one or more hearing sessions and a site inspection.

24. All matters that the applicant intends to raise in the review should be set out in or accompany the notice of review, as should all documents, material and evidence on which the applicant intends to rely.

25. Section 43B restricts the ability of parties to introduce new matters at the review stage unless they are material to the determination of the case. This restriction does not apply to information on matters that were before the appointed officer at the time of the decision on the application or a notice of review relating to its non-determination .

26. Regulation 9(5) makes it clear that, apart from information in the notice of review and accompanying documents, the applicant will only be able to raise matters or submit further documents to the extent permitted by the Regulations. That is either where the local review body request further written evidence or where requested as part of a hearing session. These requirements are intended to ensure that the relevant matters and items of information are provided efficiently at the start of the review process, rather than at varying points throughout the process.

27. Regulation 18 sets out that withholding information from a notice of review which the applicant considers to be national security sensitive does not invalidate that notice. This is subject to the requirement that a written statement is included explaining that this national security consideration (as defined in regulation 18) is the reason for not submitting the information. If the local review body are unable to determine the review without the withheld information, then the case could be called in for determination by Scottish Ministers, and special procedures for dealing with national security sensitive information applied.

Local review body

28. Regulation 7 requires that a review case is to be conducted by a committee of the planning authority comprising at least three members of the authority. The Regulations do not define an upper limit on the number of members that should comprise the local review body: the size will be for the planning authority to determine. In cases where the local review body comprise a small number of elected members, the authority should ensure a larger pool of elected members is available to provide cover where appropriate.

29. Regulation 7 requires that any meeting of the local review body considering how the review, or stages of it, should be conducted and the review itself must be in public. Consistent with the approach on appeals made to Scottish Ministers, the decision on the procedure of how a case should be reviewed will be for the local review body, although the applicant and planning authority can indicate their preferences. While meetings are to be held in public, this does not itself confer any entitlement on the applicant or others to make representations, either orally or in writing. After the initial request for review has been made, it is for the local review body to determine, in accordance with the Regulations, whether and how any further representations or information should be given.

30. Membership of the local review body and administrative arrangements for supporting the review process will be for the planning authority to decide and so are not set out in the Regulations. Scottish Ministers expect that arrangements put in place by planning authorities to review decisions will follow a process that is demonstrably fair and transparent. Planning authorities should ensure members participating in review cases receive appropriate training in planning issues and in holding hearing sessions. In most instances, one local review body per planning authority will carry out the review function effectively. However, some authorities may consider that more than one local review body would provide an appropriate service, perhaps given the size of the geographic area to be covered.

31. Planning authorities will want to ensure that the local review body are supported by appropriate administrative and legal advice to ensure that members are guided on the review process. Where the local review body consider it necessary to take further advice before reaching a decision on the review it will be for the planning authority to arrange such advice. Scottish Ministers expect that all administrative arrangements required to support the review process should respect the principles of fairness and transparency that must underpin the operation of the system.

Notification to interested parties and publication

32. Once a notice of review has been submitted by an applicant, regulation 10 requires the local review body to acknowledge it and make interested parties aware of the review request within 14 days of the notification. Interested parties are defined in regulation 2 and include any statutory consultees or other parties who have made, and have not withdrawn, representations in connection with the application. Regulation 10 requires statutory consultees to be notified by post of the review and for other persons either by post or by local newspaper advertisement. The Regulations allow that wherever there are notification requirements, these can include arrangements for electronic notification (see paragraph 58).

33. The notice to interested parties must contain the following information:

• the name of the applicant and the address of the site to which the review relates;
• a description of the application;
• an explanation that copies of any representations previously made regarding the application will be considered by the local review body when determining the review;
• an indication that further representations may be made to the local review body and explain how representations may be made and by what date;
• an explanation that copies of any further representations made regarding the application will be sent to the applicant for comment;
• details of where a copy of the notice of review and other related documents can be inspected.

34. An interested party has 14 days, beginning with the date on which this notice is given, to make representations on the review to the local review body. The local review body must send the applicant copies of all such further representations received as a result of the notice to interested parties. The applicant must be given at least 14 days to make comment to the local review body on such representations.

35. The local review body must ensure (regulation 11) that a copy of the notice of review, and any related documents or representations are available for inspection at an office of the planning authority. The legislation does not rule out electronic access in this regard; however, it must be possible to view the information effectively. The planning authority are to give any person who requests it the opportunity to inspect and, where practicable, take copies of any review documents, until such time as the review is determined.

Compliance with development management procedures

36. Regulation 20 sets out that where requirements set out in regulations 18-20 and 25 of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013 ⁹ on notification, publication and consultation have not already been complied with by the planning authority, the local review body must ensure that these are carried out before determining the review. This is most likely to arise in instances where the review is sought on the basis of non-determination of the application (i.e. where it is not determined within the statutory timescale, or any extended period agreed upon in writing by the planning authority and applicant).

Review procedure

37. In cases where the local review body consider that there is sufficient information from the material before it (including the notice of review, the decision notice, report on handling and any further representations from interested parties), it may under regulation 12 proceed to determine the review. It is expected that the majority of cases coming before the local review body will be accompanied by sufficient information in order for the review to be determined quickly.

38. However, in some cases, it will be necessary for the local review body to obtain additional information. Part 4 and Schedule 1 to the Regulations set out the procedures for doing so. Regulation 13 confirms that the local review body may determine at any stage of the review process that further information or representations should be made to enable them to determine the review. Further information may be required by one or a combination of procedures, namely:

• written submissions;
• the holding of one or more hearing sessions;
• inspecting the land which is the subject of the review case.

39. Under regulation 14 the local review body can hold a pre-examination meeting to consider the manner in which the review or any part of the review is to be handled. This will not be appropriate in every case. However, where, for example, there is a range of issues to be examined or more than one procedure is likely to be used to support the review process, such a meeting can clarify for the applicant and interested parties the procedures and their respective roles and help ensure the review is conducted efficiently and expeditiously. It is stressed that a pre-examination meeting will not be necessary in all but the more complex cases.

Matters which may be raised in a review

40. Paragraphs 25 and 26, on the notice of review and accompanying documents, cover the submission of further information and the raising of new matters.

Written submissions

41. Where the local review body requires further information to determine a review, regulation 15 allows them to request information from the applicant or any other body or person by sending a written notice. This procedure notice must set out the matters on which further information is required, specify the date when it is required by and set out who else has been asked to provide additional information (including their address details). Where the local review body issue a procedure notice requesting further information from a body or person other than the applicant, they must send a copy of that notice to the applicant.

42. When a party responds to the local review body with any further information (the procedure notice response) it must send copies to the applicant and to such other bodies or persons as the local review body specified in the procedure notice. The applicant and any other parties have a period of 14 days in which to give comments to the local review body on the procedure notice response(s), again providing copies to the applicant and other bodies or persons specified in the procedure notice.

Site inspections

43. Regulation 16 sets out the procedures for site inspections. At any point in the review process the local review body may inspect the land to which the review relates. They may do this either unaccompanied or accompanied by the applicant and any other party the local review body consider should attend. Where the inspection is to be accompanied, the local review body are required to give reasonable notice to the applicant and any interested party (defined in regulation 2). However, the local review body are not required to defer an inspection if any person to whom notice was given is not present at the appointed time.

44. The purpose of the site inspection, even if accompanied, is to allow the local review body to see the site and is not an opportunity for parties to discuss with them the merits of the case.

Hearings

45. Whenever the local review body propose to hear oral evidence, the hearing procedures apply. Schedule 1 to the Regulations contains rules for holding hearing sessions. These are intended to provide a framework within which a local review body can hear evidence from the applicant or from interested parties on specific matters only. Hearing sessions are not intended to be adversarial: the hearing should take the form of a discussion led by the local review body. Only exceptionally is it envisaged that cross-examination would be required in order to provide a thorough examination of a particular issue. The schedule provides a framework for advising the principal parties of the hearing and for them to set out clearly and in advance their respective positions.

46. Where a local review body decide that a hearing session should be held, they are to write to the parties who have an interest in the issues to be discussed at the hearing. These include:

• the applicant;
• any interested party who made representations in relation to specified matters; and
• any other body or person from whom the local review body wish to receive further representations or to provide information on specified matters.

47. The local review body must set out in writing to the above parties the matters that are intended to be considered at the hearing session - only those matters are to be considered at the hearing session. The parties then have 14 days in which to confirm their appearance at the hearing session. Whilst the applicant has an automatic right to appear at the hearing, this written confirmation entitles the other persons to appear at a hearing session.

48. The local review body will determine the arrangements for the hearing session and can vary the arrangements where it appears reasonable in the circumstances. They must give notice of these arrangements (and any change in them) to the persons entitled to appear.

49. Before a hearing session is held, those entitled to appear are expected to provide in advance a statement that fully sets out the case they intend to put forward. This is referred to in the Regulations as a hearing statement. Those entitled to appear are also required to provide a list of, and copies or extracts of, any supporting documents they intend to rely on in presenting their case. It is for the local review body to set out the timescale for submitting this information or for requesting further information from the parties following submission of their hearing statements (parties are to copy any further information they submit to the other recipients of their hearing statement). The planning authority are to make this information available to anyone requesting a reasonable opportunity to inspect it and, where practicable, take copies of it until the review is determined.

50. The procedure to be followed at the hearing session is for the local review body to determine. The Regulations do require that before the hearing takes place, or at the outset, the local review body explain the procedure it intends to adopt, including the order both in which the specified matters are to be considered and in which parties are to be heard.

51. The Regulations enable those entitled to appear at the hearing to do so on their own behalf or to be represented by another person. Where two or more persons have a similar interest in the issues being considered, one or more persons may appear on behalf of some or all of the parties where the local review body allow. It is not intended that the review process should be adversarial or that it must involve parties having legal or other professional representation. The intention is that the planning authority put in place a fair and transparent process that enables the local review body to reach a decision on the review.

52. Parties entitled to appear at the hearing will be entitled to bring forward evidence from another party in support of their case. The Regulations are clear that the hearing process should take the form of a discussion led by the local review body and that cross-examination should not be permitted unless the local review body consider it necessary to ensure a thorough examination of the issues. The local review body are entitled to refuse to allow evidence to be given, and to refuse cross-examination or presentation of other issues which they consider to be irrelevant or repetitious. The local review body may from time to time adjourn the hearing session, giving such notice to the parties entitled to appear as the local review body consider reasonable in the circumstances.

Appointment of an assessor

53. Regulation 21 permits the local review body to appoint an assessor who can advise it on specified matters. Assessors are used infrequently in the appeal system to advise on specialist or technical matters that are at issue. It is for the local review body to consider to what extent there is a role for a specialist assessor to sit with it at a particular hearing session. It is also for the local review body to decide where the assessor comes from, be it a private expert consultant, a specialist from a neighbouring authority or an expert from within the authority who has not had a previous involvement in the application. Where an assessor is appointed, those entitled to appear at the hearing session must be advised of the name of the assessor and the matters on which they are appointed to advise on. The assessor may make a written report to the local review body (and must do so if the local review body require it) after the close of the hearing session.

New evidence

54. If, having carried out any additional procedure as listed in paragraph 38, the local review body propose to take into account any new evidence which is material to the review, regulation 17 requires that it must first allow the applicant and any other relevant party (defined in regulation 17) an opportunity to make representations on that evidence.

Decision notice

55. The local review body must give a decision notice to the applicant. It is important that the terms of the decision of the local review body are clear. Under section 43A(15) the local review body have the full powers to uphold, reverse or vary a determination. Section 43A(12)(a) requires that the decision notice includes a statement of the terms in which the local review body have decided the case reviewed. The decision notice must also include a statement of the reasons on which the local review body based that decision. Regulation 22 sets out a number of requirements to ensure that there is consistency in the quality of decisions from local review bodies. The local review body must also notify every person who made (and has not subsequently withdrawn) representations in respect of the review to inform them that a decision on the review has been made, and where a copy of the decision notice is available for inspection.

56. In cases where planning permission is refused or granted subject to conditions, the decision notice must be accompanied by a notification as regards the applicant's right to take the decision to the Court of Session and their right to serve a purchase notice ¹⁰ on the planning authority. Schedule 2 to the Regulations provides the template for such notification.

Review on failure to determine the application

57. Where the appointed officer has not determined the application within the period allowed for determination (see footnote 4), the applicant may require the planning authority to review the case. Section 43A(17) provides that if, following the applicant requiring a review on such grounds, the local review body have not conducted the review within three months, as set out in regulation 8(3), the authority shall be deemed to have refused the application. The applicant will then have the right to appeal to Scottish Ministers under section 47(1).

Electronic communication

58. Regulation 23 sets out that, subject to certain criteria, any document required or authorised to be sent under the Regulations may be sent by electronic communications, and the requirements in the Regulations that any document is to be in writing will be fulfilled. The criteria relate to where the recipient consents, or is deemed to have agreed to receive it electronically (i.e. if they have already used electronic communication to send a document). The document sent by means of electronic communication must be capable of being accessed by the recipient and legible in all material respects (i.e. all the information must be available to the recipient to no lesser extent than it would if sent by hard copy), and must be sufficiently permanent to be used for subsequent reference.

Notification and call-in of applications

59. Directions requiring planning authorities to notify to Scottish Ministers specified applications or classes of application where the authority is minded to grant permission, apply to applications delegated to an appointed officer and those before a local review body. The power to call-in applications for determination by Scottish Ministers also applies to applications before a local review body.

Transitional arrangements

60. Regulation 24(3) contains a transitional arrangement to deal with a change in the description of the hearing statement in Schedule 1. Previously this was "an outline" of the case to be made at the hearing. This has been changed to "fully sets out the case". Where notice of the hearing was given prior to 30 June 2013, the previous version applies.

61. The removal of the requirement for schemes of delegation to have a restriction on delegating planning authority interest cases, will only take effect once planning authorities have adopted a new scheme with the requisite changes.

62. The change in the period for dealing with local reviews on the grounds of non-determination from two to three months (regulation 8(3)) applies to all cases. This means any such review which was applied for before 30 June 2013, where the former two month period has not elapsed before that date, moved to a three month period.