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Rights of Appeal in Planning - A Consultation Paper


Rights of Appeal in Planning


1.1 When an application for planning permission is refused by a council, in its role as planning authority for the area, the applicant has a right to appeal to the Scottish Ministers against that decision. An applicant can also appeal where planning permission is granted subject to conditions which the applicant finds unacceptable. The applicant may appeal where the council has failed to reach a decision on the application within the relevant timescale. However, while applicants have the right to appeal against a decision made by the planning authority, that right of appeal does not extend to others who may have some interest in whether, or on what terms, planning permission is granted, such as the owners of neighbouring property for example.

1.2 In March 2003, the Scottish Executive published Your Place, Your Plan, A White Paper on Public Involvement in Planning. This recognised that the question of 'third party appeal' (i.e. appeal by parties other than the applicant) in the planning system is a topical subject that involves strongly held views. However, it is also a complex issue with potentially significant implications for the planning system and beyond. Given the ongoing debate about third party appeals, the Scottish Executive concluded that there would be value in carrying out a detailed examination of the issues involved. Your Place, Your Plan announced the Executive's intention to carry out a full consultation

" … to examine the issues and options on third party appeals in planning in the context of the measures already proposed in this White Paper to increase public involvement."

1.3 Following the Scottish Parliament election in May 2003, the subject of this consultation was defined further on publication of A Partnership for a Better Scotland: Partnership Agreement which said

"We will consult on new rights of appeal in planning cases:

  • where the local authority involved has an interest;
  • where the application is contrary to the local plan;
  • when planning officers have recommended rejection; or
  • where an Environmental Impact Assessment is needed."

1.4 This commitment is stated as one of the 'supporting activities' in the Partnership Agreement and must be seen in the context of the high level commitment that

"We will improve the planning system to strengthen involvement of communities, speed up decisions, reflect local views better and allow quicker investment decisions."

The Partnership Agreement also stated other Scottish Executive commitments which some consultees may see as relevant to the issues involved in considering whether to widen the right of appeal, such as

"Growing the economy is our top priority. A successful economy is key to our future prosperity and a pre-requisite for building first class public services, social justice and a Scotland of opportunity."

"We want a Scotland that delivers sustainable development; that puts environmental concerns at the heart of public policy and secures environmental justice for all of Scotland's communities."

1.5 This consultation must also be seen in the context of the Executive's ongoing and wide-ranging programme of changes to the land use planning system. There are reforms in hand following the Review of Strategic Planning, such as our National Planning Framework and the public consultation on Making Development Plans Deliver (both of which are being published at the same time as this paper). Your Place, Your Plan brought forward the Scottish Executive's proposals to strengthen and enhance public involvement at all stages in the planning system, while the consultation on Modernising Public Local Inquiries, the outcome of which is yet to be concluded, aimed to increase certainty about the 'planning inquiry' process and improve the experience of inquiry participants. These are relevant to the way in which members of the public can engage with the planning system and have been the subject of wide public consultation.

Purpose of this consultation

1.6 Through this public consultation, we need to explore:

  • whether new rights of appeal should be created in the circumstances set out in the Partnership Agreement (see paragraph 1.3 above); and
  • if so, how they might operate in practice.

1.7 This consultation paper considers not only whether there should be a third party right of appeal, but also whether other related changes to existing appeal rights might be necessary.

1.8 There are a number of other decision-making processes comparable to those in the planning system. This paper consults on new rights of appeal in the context of the land use planning system only. It should not be taken to imply any comment on other decision-making systems, which serve different purposes and are established under separate legislation.

1.9 The paper assumes no change to the current role of Courts and the Public Services Ombudsman, although their case loads could potentially increase if more planning decisions are made and are subsequently challenged. To a large extent, the pressure for a third party right of appeal comes from those who seek a further opportunity to review the planning merits of a case. Neither of these bodies do so, as their function and expertise lie in the fields of law and procedure. If an additional planning process were to be introduced, we consider that it must operate within the planning system.

1.10 In considering whether to widen the right of appeal in planning cases to third parties, we need to look closely both at the potential benefits and any detrimental impacts to our society. There are complex issues involved and we recognise that there are strongly held, and often polarised, opinions on the subject. We need to consider all of the arguments very carefully. At this stage no decision has been made on the way ahead and we offer no firm proposals or opinions.

1.11 Although this paper looks at the arguments around new rights of appeal and considers some possible changes to the planning system, maintaining the status quo remains a serious option for the long term. This public consultation aims to address the core issues and thus to inform the Scottish Ministers' decision on the matter.

1.12 This consultation paper is accompanied by a Regulatory Impact Assessment, which looks at the potential areas of costs and benefits, in financial terms, should the right to appeal be extended.