INTRODUCTION
1. Part 3 of the Planning etc. (Scotland) Act 2006 (the 2006 Act) introduced a number of important changes to the planning appeal system in Scotland. At the centre of these are the provisions covering new schemes of delegation for local developments and the opportunity for the applicant to seek a review of a decision by the planning authority in certain circumstances where an appeal to Scottish Ministers will no longer be available.
2. This circular accompanies the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 20081.
3. The 2006 Act contains a number of provisions on procedures to be followed in preparing the new schemes of delegation and for requiring reviews of decisions taken under these. The Regulations set out detailed requirements within the framework provided in the primary legislation: they do not restate the provisions in the primary legislation. This circular explains how the two sets of requirements fit together and is intended to provide an overview of the new regulatory requirements.
4. Planning authorities currently ensure that certain decisions can be taken by officials under powers delegated to them instead of being considered by elected members of the authority at committee. Provisions for authorities to do this are currently available under the Local Government (Scotland) Act 1973. Delegation to officials is an important means of adding efficiency to administrative processes and the Government wants to encourage an appropriate level of delegation to officials to support modernising of the planning system. Where a decision is taken by an officer under powers delegated to him, the decision is taken as being a decision by the planning authority. The officer is simply acting in the role of a person appointed by the planning authority to issue a decision or to act in some other way on its behalf. Under the new system section 43A(1) of the amended Town and Country Planning (Scotland) Act 1997 (the Act) notes that applications determined under the scheme are determined by the appointed person instead of by the planning authority. This allows the applicant to request a review of the appointed person's decision, by the planning authority and provides a degree of separation. Mostly however, other than for section 43A (8) to (16) or section 47 of the Act the determination of an appointed person is to be treated as that of the authority.
5. At present, an applicant may appeal to the Scottish Ministers should they be aggrieved at a decision taken by the planning authority in respect of any application for planning permission. In future, where a decision on an application for planning permission for a local development2 (as defined in the Hierarchy of Development) is taken, or could be taken 3, by an appointed person the applicant will no longer be entitled to appeal to Scottish Ministers. Instead, they may require the planning authority to review the decision. The new requirements apply in instances where the application for planning permission has been refused, granted subject to conditions, or where the application has not been determined within the period prescribed in regulations. The 2006 Act inserts these new provisions into section 43A and 43B of the Act.
6. The new provisions described in this circular relate only to the applications for planning permission described in paragraph 4 above. They do not relate to other types of planning applications (for example those in the category of major or national developments) or to other types of permission, such as listed building consent, conservation area consent, hazardous substances consent or consent to display advertisements. These other forms of permission will retain their existing rights of appeal to Scottish Ministers.
7. The new provisions are intended to improve efficiency in the decision making process whilst retaining a high quality of determination. The Government's intention is that planning authorities should make the most effective use of powers to delegate decisions on straightforward planning applications to officials, allowing elected members to focus attention on more complex or controversial applications. The approach taken in Regulations is to provide planning authorities with significant scope to develop schemes of delegation that are appropriate to local circumstances and to provide a clear framework for conducting reviews of decisions locally.