The modernising planning reforms were also heavily reliant on
streamlining the planning appeal process. The objectives are to
make the administration of appeals "proportionate"; and to "avoid
unnecessary complexity or lengthy procedures that do not add value
to the quality of decision". It is clear that there is a general
aim to move firmly away from the formal public inquiry process.
While the present appeal system is regarded as fair, transparent
and independent, it is apparently regarded as difficult for
ordinary people to engage with. There is also a perceived tendency,
which is regarded as unfair, for proposals to change during the
planning and appeal process and for the justification for them to
alter without reference to the local community. Applicants are
being asked to specify their proposals more fully at the outset,
and their ability to change these, either through the application
or by implication to the appeals process, will be restricted.
The streamlining of the appeals process is also to be supported
by increasing delegation of applications to officers for
determination. The idea is to allow elected members to focus their
attention on complex or controversial applications and officers are
to take more delegated planning decisions. Appeals against
decisions taken by elected members will continue to be made to the
Scottish Ministers, but for those falling within the terms of the
new scheme of delegation, appeals are to be determined locally. The
"review" function is to be conducted by a local review body made up
of Councillors advised by officials who were not involved in
reaching the decision under the review. While some of the larger
Councils in Scotland will be able to accommodate these
arrangements, for smaller Councils this may well have resource
implications. There are also issues about independence, fairness
and transparency. There are many concerns about whether this
mechanism will achieve a "fair trial" under Human Rights
principles. For those used to the planning process, it is fairly
clear that the existence of local review bodies and schemes of
delegation will change the relationship between officers and
elected members in ways which are not yet clear.
Schemes of Delegation. New Section 43A of the
Town and Country Planning (Scotland) Act 1997 allows Ministers to
prescribe the form and content of schemes of delegation. This
scheme is envisaged to run in parallel with the existing schemes of
delegations which Councils have under the Local Government
(Scotland) Act 1973. Some types of application should not be
determined under the new schemes of delegation, and these are
• Applications subject to an unresolved objection from a
statutory consultee;
• Applications made by the planning authority or a member of the
planning authority;
• Applications on land in the ownership of the planning authority,
or on which it has an interest;
• Applications requiring environmental impact assessment;
• Applications relating to development which is significantly
contrary to the terms of the development plan;
• Applications subject to a substantial body of objection;
• and a group of applications requiring enhanced scrutiny including
a pre-determination hearing.
Appeals to Local Review Bodies. These are for
applications determined by officers under the new schemes of
delegation. We are some distance away from settling exactly how
these arrangements will work in practice. The government clearly
envisages that the review process will strive to achieve the same
standard of review and assessment that applicants are used to in
the existing appeal process, where appeals are considered by the
Scottish Executive Inquiry Reporters. The current concept includes
a review body of a small number of elected members - between 3 and
5 - with a larger pool of specially trained elected members
available to ensure that if there is a conflict of interest, the
appeal system will still operate. The new body will need
administrative support which is envisaged to be provided by the
authority's legal officer. The consultation paper does not address
in detail how the review body is to obtain access to professional
planning advice, when the officer promoting the original decision
is part of the Council's Planning Service. It has been pointed out
that it may be difficult for the local review body to demonstrate
fairness if one of the advising officers is also part of the
department promoting the particular case. The government expects
the majority of these cases will be determined by written
submissions. However, in some cases a hearing will be permissible.
The discussions about how this will work are ongoing.
Appeals to Scottish Ministers. Despite all
advice to the contrary, the timescale for making an appeal to
Scottish Ministers is to be reduced from six months to three
months. When this occurred in England, this resulted in a
substantial overload to the planning system because a large number
of "holding" appeals were made. The Scottish Government believes
that other reforms ensuring delegated appeals sent to the local
review bodies will prevent this problem happening in Scotland.
Because of the perceived risk that applications will change through
the appeal process, the trend towards "front loading" the system is
reinforced through appeals, by limitations on when it will be
possible to change the application. New material will only be
allowed in if the applicant can explain why it was not possible to
put these proposals before the authority originally. In most
situations any new proposals will always result in a new
application having to be made. This may cause difficulty where
advice from a statutory consultee such as SNH or SEPA results in
ongoing dialogue and late change, as is frequently the case at
present.
Methods of examination of planning appeals.
Appeals are currently dealt with either through written
submissions, hearings, or public inquiries. This is because the
existing provisions include that an applicant has a right to be
heard. This essential right is to be abolished. Scottish Ministers
will have the right to choose their preferred method of
determination of appeals.
Choice of appeal mechanism. As the Appeal
process is to be "front loaded"; the application for an Appeal will
require a full and comprehensive statement of case. The Government
wants to minimise the need for any subsequent documentation. Once
an Appeal has been made, the planning authority should provide a
response to Scottish Ministers within fourteen days. These initial
comments will be used by the Scottish Ministers to identify what
mode of hearing will be chosen. In many instances only the Appeal
and the planning authorities response have been received, the
Appeal will be decided without further reference to the parties.
Where Scottish Ministers require additional information to arrive
at a decision, they may ask for that information, but appellants
and Councils should regard themselves as only having one chance to
make their case. Where Scottish Ministers decide that a Hearing is
to be held, they will specify the matters to be considered.
Planning Appeals are clearly intended to be very different
in future.