Planning & Environment

Neil blogged several weeks ago about the difficulty knowing how reporters might apply the “no new matters” rule for appeals (s47A of the 1997 Act), which has an equivalent for local reviews (s43B of the 1997 Act). The key problem is to know whether “new matters” means “new evidence” or “new issues”.

Earlier this year a dispute arose in the Shebster windfarm appeal before a reporter over whether the submission of a revised landscape and visual assessment in the appeal had to be dealt with as a new matter, since it had not been put before the planning authority. The appellant submitted that it did not constitute a new matter since the issue had been before the planning authority, even if the evidence had not been. The reporter accepted this submission. So it looks like that reporter’s view at least is that “new matters” means “new issues”.

Edinburgh’s local review body decided that the identical provisions in section 43B had the opposite meaning (see case of 147 Whitehouse Road). They were presented with a tree survey, submitted to the review in response to the appointed officer’s decision to refuse permission, partly on the basis of inadequate evidence on trees. The LRB decided that “new matters” means “new information”, and since there had been no explanation of why the tree survey should be allowed, they excluded it.

The clerk to Moray’s local review body has wrestled with the interpretation of “new matters” too, deciding with very thorough reasoning that it meant “new information” (see para 3.10). The appointed officer had turned down a proposal for a new house in the countryside. The question was whether a revised plan showing an acceptable access to the otherwise acceptable development could be accepted at review, although it had not been before the appointed officer. There being no extraordinary circumstances as to why it had not been submitted previously, the clerk advised the new evidence could not be accepted. However, she also advised the LRB could grant permission subject to a condition requiring submission of satisfactory revisions to access, which it then did.

Further interpretations of the rule can be seen in decisions in two decisions from Dundee here, and here. Dundee’s clerk considered that if new evidence contained material considerations, it had to be taken into account. So, even where the decision-maker found there was new evidence, they have in all but one of our examples found an exception that meant the rule should be disapplied.

I mention these cases just to show the different interpretations taken of the same rule in different places, not to criticise the interpretations. The issue here is that no one really knows what the rule means. The Scottish Ministers’ guidance in circular 6/2009 on appeals evades the issue (see para 20) – it does not even use the wording of the act, but refers instead to “new material”. The Scottish Ministers stand at the apex of the planning system – it’s time they gave a lead and said what they believe the “new matters” rule means.

Planning & Environment