Planning & Environment

In the last year the decision in fifteen percent of enforcement appeals was that Scottish Ministers had no remit to deal with the appeal. Although the actual numbers are not large (9 decisions out of 61), the proportion of failures suggests further investigation is needed.

The only date stated in an enforcement notice is the date on which the notice takes effect. You are required to appeal before the notice takes effect (i.e. by the day before). In three cases, the appeal was one day late, i.e. it was made on the date the notice took effect.

In three other cases, the appeal was rejected because required information was missing. It appears that this was the appeal form. Strangely, although there are legal requirements about what information must be given with an enforcement notice on appeal rights, there is no requirement to mention that an appeal can only be made using the Scottish Ministers’ official form. Therefore you can follow the appeal instructions on an enforcement notice to the letter and still fail to get your appeal accepted because you haven’t provided the correct form.

There is generally a very short time available to respond to an appeal (an appeal must be made before a notice takes effect, a minimum of 28 days after service). This means that it may be difficult for an individual to get professional advice, particularly if the planning authority has not previously intimated it is investigating the matter. Add to that the poor advice given and the legally formalist approach taken by the DPEA on Ministers’ behalf, and it is no wonder that individuals served with notices struggle to get appeals submitted in the correct form.

There is a basic requirement for fairness in any appeal process, but particularly so for planning enforcement notices, since they can have very serious consequences for the people on whom they are served. It seems to me that justice is not served by the current arrangements.

 

Planning & Environment

Brodies’ planning and environment teams represent clients involved in Scotland's biggest planning issues, offering expert advice to help clients navigate the sometimes daunting Scottish planning law landscape. The Brodies planning team was ranked top tier in both The Legal 500 and Chambers & Partners directories.
Planning & Environment