The DPEA have issued guidance on how they will deal with interpretation of the “new matters” rule in sections 43B and 47A of the Town and Country Planning (Scotland) Act 1997.
In brief, the question is whether the restriction on the introduction of matters that were not before the planning authority at the time of its decision on an application refers to the introduction of any new evidence or just new issues.
The DPEA have come down on the side of the “issues” interpretation. I think this must be right, but it does leave some questions unanswered about certain cases where a party to an appeal might be looking for a second bite at the cherry. For example:
- Let’s say the planning authority having considered an application, then requests an applicant to submit a tree survey to support the application. The planning authority gives the applicant what it considers a reasonable amount of time to submit the survey. The applicant does not submit it. The application is refused on the ground that there is insufficient information on impact on trees and related ecology. The applicant appeals and submits a tree survey with the appeal. Is the issue of trees a new matter or not?
- Having considered an application, the planning authority refuse it against their officers’ recommendation. One of the issues mentioned in broadly drafted reasons for refusal is “impact on trees at the site”. There is no further explanation and the issue has not been previously discussed by officers or the developer. Clearly the appellant is entitled to respond in an appeal by submitting information on predicted impact of the proposed development on trees. But in its response, the planning authority raises impact on protected species as a consequence of the loss of trees. This seems to be a new topic – but is it a new matter in law?
To be fair, it’s probably difficult to draft any general rules for specific circumstances. Given that the reporter has a duty to take into account all material considerations, he or she may well let in such evidence. However, it seems to me that the prohibition on new matters was intended precisely to prevent parties taking a second bite at the evidential cherry.
I’d be interested in your thoughts.
On August 16, 2011