Scottish Planning Series: Planning Circular 1/2010: Annex to Circular 1/2010: Planning Agreements. Planning Obligations And Good Neighbour Agreements

RIGHT OF APPEAL TO SCOTTISH MINISTERS

33. Under sections 75B and 75F there is a right of appeal to the Scottish Ministers in certain circumstances. In respect of planning obligations the person who applied for the obligation to be modified or discharged may appeal if the planning authority decides that the obligation should not be modified or if the planning authority fail to give notice of their decision within the 2 month period allowed. The appeal must be made to the Scottish Ministers within 3 months beginning either with the date of the planning authority's decision or the end of the 2 month period. Where the appeal is on the grounds that the planning authority has failed to give notice of their decision it is assumed that the authority have determined that the planning obligation is to continue to have effect without modification.

34. For good neighbour agreements either the community body or the person against whom the GNA is enforceable may appeal the planning authority decision (or failure to reach a decision) to the Scottish Ministers. It should be noted that the person or body who appeals need not be the person or body who originally sought the modification or discharge of the GNA. An appeal may therefore be made against a planning authority decision to allow an application to modify or discharge a GNA. The appeal must be made to the Scottish Ministers within 3 months beginning either with the date of the planning authority's decision or the end of the 2 month period.

35. The Town and Country Planning (Appeals) (Scotland) Regulations 2008 apply (with modifications) to all appeals made in respect of either planning obligations or GNAs. Detailed guidance on appeals procedures, including how to appeal and what information is to be submitted by the appellant and the planning authority, is contained in Planning Circular 6/2009: Planning Appeals.

36. On appeal, the Scottish Ministers have powers, depending on whether the appellant is seeking discharge or modification of the planning obligation or good neighbour agreement, to;

• Discharge the obligation;
• To determine that the obligation should be modified in accordance with the changes sought in the application; or
• To determine that the obligation should continue to have effect without modification (i.e. to refuse the appeal).

37. Most appeals will in practice be delegated to Inquiry Reporters for determination. Appeals will normally be determined through written submissions. In some cases disputes about the relevant facts may necessitate the hearing of evidence. In such circumstances, DPEA may make arrangements for an inquiry or hearing session to take place and the Reporter may decide that witnesses should be placed under oath.

38. Once the Scottish Ministers, or a Reporter exercising delegated powers, has decided an appeal, they cannot reconsider or correct it. A further appeal can be made to the Court of Session, under section 239 of the 1997 Act, within 6 weeks of the date of decision, on the ground that the action is not within the powers of the Act or that any "relevant requirement" as defined in section 239 has not been complied with.