The world of planning decisions can be a complex place at times, with specific terms used that can confuse those who are less familiar with the process or the glossary of terms used. Two recent Scottish planning appeal decisions – both of which have attracted controversy - show the significance of when the final decision is made.
Those appeal decisions relate to Flamingo Land Ltd’s proposals for a mixed use tourism and leisure development at Balloch, and an application to build a house at Blenheim Place in Edinburgh.
Let's take a closer look.
The Balloch development
The latest for the Balloch development is the Scottish Ministers’ reporter having issued a notice of intention, indicating he is 'minded' to allow the appeal by Flamingo Land, against the refusal of planning permission by the Park Authority.
Inevitably, that led to calls for the Scottish Ministers to exercise their call-in powers, to recover jurisdiction over the appeal and decide it themselves.
However, it is no surprise that the Ministers have confirmed they will not call-in the appeal - previous statements from government have indicated that the Ministers will only ever exercise that call-in power “very sparingly”.
A 'minded to grant' decision – what does it mean?
If the reporter had granted the appeal and issued the permission, it would have been too late for the Ministers to exercise their call-in power.
The style of 'minded to grant' decision issued by the reporter is not unusual for complex developments, typically where a section 75 planning agreement is needed to regulate issues that cannot be dealt with by conditions imposed on the planning permission.
There is no mention of 'minded to grant' decisions in the Town and Country Planning (Scotland) Act 1997. It is not a planning permission. It does not oblige the decision-maker to issue the permission – and if there is a significant change in the planning circumstances, it could be justifiable for the decision-maker to refuse to grant the permission.
The Blenheim Place appeal decision
The recent appeal decision by The City of Edinburgh Council’s Local Review Body (LRB) has also attracted controversy. The LRB decided to grant permission for a five-bedroom house at 12 Blenheim Place, to which the New Town and Broughton Community Council decided to pursue a complaint about the proceedings, seeking reversal of the decision.
As the development did not require a planning agreement to be entered into, the LRB issued the planning permission, rather than entering into a 'minded to grant' decision. Reversal of the decision would require the City of Edinburgh Council to revoke the planning permission. If a revocation order was granted, the Council would be liable to pay compensation to the landowner. It therefore seems unlikely that it will reverse the decision.
What do these two outcomes show?
These two appeals show the importance of the status of the decision and the difference in meaning of the terms used. Once the permission has been issued - as per Blenheim Place - the decision cannot be reversed, and it is unlikely the permission would be revoked. Where a section 75 agreement is required - as per the Balloch development - the 'minded to grant' decision is not final, and the Scottish Ministers could have called-in the appeal to decide it themselves (although chose not to do so).
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