Planning & Environment

Appeals will always have a role in making development happen. It doesn’t matter how much of a fan you are of partnership between private and public sector, there are always going to be cases where consent is refused and an appeal is the way to proceed. Often a consensus can be achieved between developer and planning officers, but the councillors making the decision take a different view.

Statistically about one-third of appeals are successful, which shows the importance of the right to appeal.

Fundamental changes to that right were introduced in 2009. In typical Scottish fashion, we can claim to have “done” localism first, by creating a new appeal procedure for some forms of local development, which are decided by local review bodies, not the Scottish Government’s reporters (the equivalent of the inspectors in England and Wales). The significance of this is not to be under-estimated: for example, a “local” development can be up to 49 houses or an energy development of up to 20MW.

The local review bodies consist of at least 3 councillors. There were concerns about their ability to be independent and impartial when reviewing decisions made planning officers employed by the same local authority. However, in the first year of operation, the LRBs overturned the officer’s decision in approximately 30% of cases, which shows that the LRBs are making development happen as often as reporters do/did. There are of course regional variations: in Edinburgh only 15% of cases were successful, but in Inverclyde there was a 100% success rate.

Another fundamental change was the removal of the rights that the appellant and planning authority had to require an inquiry to be held. Now the reporter and LRB have the right to decide what further procedure, if any, there should be. The statistics show that the LRBs have grasped this opportunity: in 54% of cases the decision was made on the basis of the initial submissions, without even a site visit; hearings were only held in 6% of cases. In the last 6 months, reporters only required further written submissions or a hearing in 25% of cases.

The starkest illustration is the Invergordon energy from waste case, in which the reporter granted planning permission without any further procedure; in contrast, the reporter deciding the Dunbar EFW case opted for a hybrid of further written submissions, and hearing and inquiry sessions.

The message for appellants is clear: there is a strong likelihood that the initial submissions will be the only opportunity to state your case. This is the time to use a lawyer to present your case, in collaboration with the planning consultant. Lawyers’ skills lie as much in preparing written argument as oral advocacy, as demonstrated in the written closing submissions for public inquiries.

The planning authority only has 21 days to submit its full response to the appeal. Challenging at the best of times, but very taxing where permission has been refused contrary to recommendation.

Neil Collar

Partner at Brodies LLP
Neil is a partner at Brodies LLP and consistently rated as one of Scotland’s leading planning lawyers. He is well known for both his planning inquiry advocacy and his advisory work. Neil has a particular interest in renewable energy developments.
Neil Collar