The recent notice of intention issued by a Reporter appointed by Scottish Ministers to consider an appeal against the refusal of planning permission in principle for the Lomond Banks development in Balloch, indicating that permission (subject to 49 conditions) would be granted following the registration by the developer of a legal agreement that restricts how it can develop or use the site, has shone a spotlight on the operation of the planning appeals system in Scotland.
This post outlines how planning decisions are made, and answers key questions about the history, purpose, and development of the planning appeals system. It is important to note this post does not consider, or offer any view on, the merits of the decision on the Lomond Banks development.
How are planning decisions made?
Scotland has a ‘plan-led’ approach to decision making on applications for planning permission. National and local land use policies and proposals, plus potential development sites, are set out in the development plan – which is made up of the relevant local development plan and National Planning Framework 4. Decisions on applications for planning permission must be made in accordance with the development plan, unless there are compelling reasons, “material considerations”, which indicate that the decision should be otherwise. It is for the decision maker to assess which considerations are “material” to the application, the weight to be attached to each material consideration, and whether individually or together they are sufficient to outweigh the policies in the development plan.
There is no definitive list of material considerations, as what is “material” will differ between individual applications. However, Annex A of Planning Circular 3/2022 Development Management Procedures provides an explanation of how a decision maker should go about identifying what constitutes a material consideration when deciding an application for planning permission.
What is a planning appeal?
If a planning authority refuses planning permission, or grants permission subject to conditions that the applicant considers unreasonable, then the applicant can appeal. There are two planning appeal systems in Scotland. These are:
- Local Review: Every planning authority is required to produce a “scheme of delegation” which sets out a list of local developments that can be determined by an appointed person, normally a planning officer, rather than Councillors at a committee. If a planning decision was taken by a planning officer under a scheme of delegation, then any appeal will be made to the Council’s Local Review Body and not Scottish Ministers. A local review body is made up of at least three councillors who were not involved in the original decision.
- Planning appeal: If a planning decision was not made by an official under a scheme of delegation, typically decisions made by Councillors or National Park board members, then any appeal against that decision is made to Scottish Ministers.
This post is concerned with the operation of the planning appeals system rather than local reviews.
The role of Scottish Ministers
Consideration of each planning appeal made to Scottish Ministers is delegated to a Reporter. The allocation of cases to Reporters and case-work support is managed by the DPEA on behalf of Scottish Ministers. In most instances the appeal decision is made by the Reporter on behalf of Scottish Ministers. However, in a small number of cases the Reporter does not issue the decision but submits a report with a recommendation to Scottish Ministers, who make the final decision.
Scottish Ministers can ‘recall’ any appeal that has been delegated to a Reporter for decision. Ministers take the final decision on any recalled appeal. There is no Scottish Government policy on the recall of delegated appeals, with the power being used at the discretion of Scottish Ministers.
What is ‘the DPEA’?
The DPEA is the Planning and Environmental Appeals Division, a division of the Scottish Government Legal Directorate. It manages a range of planning and environmental appeal processes and associated case work on behalf of Scottish Ministers.
Who are the Reporters?
Reporters are experienced, impartial planning experts appointed by Scottish Ministers to consider planning, and other built environment, appeals. Reporters are either directly employed by the DPEA or are self-employed.
What safeguards are in place to ensure a Reporter acts impartially?
The independence and professionalism of Reporters is assured through three mechanisms:
- Reporters are experienced built environment professionals, typically chartered town planners, subject to professional codes of conduct, e.g. the Royal Town Planning Institute Code of Professional Conduct includes a requirement that “Members must exercise fearlessly and impartially their independent professional judgement to the best of their skill and understanding.”
- Reporters must act within a clear legislative and policy framework. They must work in accordance with statutory rules designed to give all parties involved in the appeal process fair notice of matters upon which they may wish to be heard, and a full opportunity to present any relevant evidence or submissions. The written report prepared by the Reporter is a public document and must contain findings in fact, a summary of the evidence upon which these findings are based, details of the reporter’s assessment of those findings, the planning issues involved, and reasons for the Reporter’s decision or recommendations to Scottish Ministers.
- The actions of a reporter can be subject to judicial review. More information on this process can be found in the SPICe briefing on Judicial Review.
Challenging a planning appeal decision
A planning appeal decision can only be challenged through judicial review at the Court of Session. A challenge can be lodged by a person aggrieved by the decision who has an interest in the case, such as the applicant, planning authority, or individual who lodged an objection to the original application for planning permission.
The Court can only decide whether the appeal decision was made in a legal manner, it cannot consider the planning merits of a case. If the Court finds an appeal decision was made illegally then it will be quashed and returned to the DPEA for a fresh decision to be reached. It is important to note that the Reporter allocated the returned case, not necessarily the same Reporter as considered it the first time, can reach the same decision, but in a legal manner.
The DPEA has published a short leaflet on challenging its decisions.
How long has the planning appeal process been a feature of the Scottish planning system?
The ability of a developer to appeal to Ministers where planning permission has been refused, or granted subject to conditions that they consider unreasonable, has existed since the creation of the modern Scottish planning system in 1947.
Compatibility with democratic principles
Media reports about the Lomond Banks development include claims that the appeal process itself is anti-democratic, with a particular focus on the role of the Reporter.
The rules governing the operation of the Scottish planning system, including the appeals process, were developed by democratically elected Governments and scrutinised by MPs and, since 1999, MSPs. The principal planning law, the Town and Country Planning (Scotland) Act 1997 (“the 1997 Act”), has been substantially amended twice during the devolution era – through the Planning etc. (Scotland) Act 2006 and the Planning (Scotland) Act 2019. Both statutes were subject to significant scrutiny and amendment during their passage through the Scottish Parliament. No major changes were made to the planning appeal process or role of the Reporter on either occasion. The Local Review process was introduced by the Planning etc. (Scotland) Act 2006, but this did not directly affect the handling of planning appeals by Scottish Ministers.
Scottish Ministers’ power to delegate the determination of planning appeals to a Reporter is set out in the 1997 Act, with more detail on the operation of the system provided in the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) (Scotland) Regulations 2010, as amended. These Regulations were also subject to scrutiny and agreement by the Scottish Parliament.
Scottish Ministers can recall any delegated appeal for their own decision.
As outlined above, decisions on applications for planning permission are plan-led. The policies and development priorities set out in the National Planning Framework were specified by Scottish Ministers and subject to scrutiny and approval by the Scottish Parliament. Similarly, Local Development Plan policies are developed, scrutinised, and adopted by elected Councillors.
Anyone deciding on an application for planning permission, elected member or official, must work within the legislative and policy framework developed, scrutinised, and approved by national and local elected members.
Can communities appeal against an award of planning permission?
No, communities cannot appeal against an award of planning permission.
A long-standing campaign to introduce such a right, often referred to as a “third-party right of appeal” or “equal right of appeal”, has been led by the charity Planning Democracy. The introduction of such a right was considered and rejected during the passage of the two planning Bills considered by the Scottish Parliament. Arguing against the introduction of such a right during consideration of amendments to the Planning (Scotland) Bill in June 2019, then Minister for Local Government, Housing and Planning, Kevin Stewart MSP, stated:
An additional right of appeal may, on the face of it, appear to promise a lot to communities and individuals, but I am concerned that those claims are misguided. The reality is that an additional right of appeal will simply add time, cost, procedure and conflict to an already stretched planning service, and there are better options for people. At the end of the day, all that an equal right of appeal would mean is that reporters—who have been cited today as all bad, it seems—would take the decisions, or I would. I would be much happier for people to become involved at the beginning and for there to be no conflict at the end.
Alan Rehfisch, Senior Researcher (Planning and Transport), SPICe