The “new matters” rule is just such a source of fascination, you can’t help returning to it. To recap: the rule (in section 47A of the Town and Country Planning (Scotland) Act 1997) prohibits any party to an appeal from introducing matters that were not before the planning authority unless it was not possible to do so at that time or its not being raised was a consequence of exceptional circumstances. Section 43B applies a similar rule to local review of decisions delegated to officers.
The rule only applies in appeals under section 47(1) of the Act, i.e. appeals against refusal or against unacceptable conditions. It does not apply in appeals against deemed refusal under section 47(2) (i.e. where the planning authority hasn’t taken a decision within the statutory period and the applicant appeals without waiting for a decision). There is some logic to that: in a deemed refusal appeal, the application is effectively determined as if it had been made to the Scottish Ministers and new matters might naturally arise in that process.
If you look back at the equivalent section 43B rule for local reviews you find it is ambiguous. The section applies to any review under section 43A(8), but it only prohibits the introduction of any matter which was not before the appointed person at the time the determination reviewed was made. Does this apply where the determination is deemed? I’d expect section 43B should be interpreted similarly to section 47A, and therefore the new matters rule would not apply in deemed refusal reviews.
But here’s the nerdy punchline: if both the officer fails to determine the application and the local review body fails to determine a review within the statutory timescale (a “double-deemed refusal” as it’s known colloquially), that is treated automatically as a refusal when the statutory timescale for decision runs out, and any appeal is made under section 47(1). That means the new matters rule does apply to double-deemed refusal appeals.
On March 7, 2011