Feb 082012
 

If you are unfortunate enough to get your planning application refused, what can you do about it?

If it is a large enough development the decision will have been taken by a committee of the council, usually the planning committee.  You can then appeal to the Scottish Ministers whose “Directorate of Planning & Environmental Appeals” is generally credited with treating your case fairly and without bias.   But the new Scottish planning system created a category of minor planning applications – know as “local” developments, which sometimes can be decided by the council officers, rather than by the councillors.  It is then known as a “delegated” application.  When your refusal decision has been taken by a delegated officer you cannot appeal to the Scottish Ministers.  Your only right is to request that the Council (which employs the official who refused your application) “reviews” your case. Our comment on “Local Development” gives information on how your application could be delegated, and the consequences of this.

Local Review

When a “local” application is first submitted to the council, it will usually be registered as “delegated” or “not delegated”.  However this may change during its processing, for example if there are objections from neighbours (see my comment on Local Development).

It is important to remember that if the application is decided by committee it cannot be categorised as “delegated” even if it was initially registered as such,  and you can appeal refusal to the Scottish Ministers.

The Local Review Body

When you submit the request for review, it will be dealt with by the council’s “Local Review Body”.  This is a panel of councillors (usually between 3 and 5), a clerk (sometimes from the council’s legal department), and a planning official who is supposed to be kept separate from the decision making process so that he or she can offer unbiased advice to the Body.

Can I speak to the Local Review Body?

Most Local Review Bodies assume that review requests will be dealt with on the basis of written submissions (where the applicant and objectors are not allowed to speak).  With these councils you have to specifically request to be heard (present your case verbally to the councillors).  Many, such as Glasgow, rarely grant such requests.  If the Review Body reject your request for a hearing, you can still attend the Review which is conducted in the same way as a small planning committee meeting.  It can be galling to sit there listening to the planning official giving supposedly “unbiased” advice to the Body – which sometimes is anything but unbiased, and you cannot utter a word of dissent.

However some councils freely offer the option of a hearing, and indeed a few (such as Midlothian) deal with all reviews by a hearing, even if nobody has objected to the application.  A tiny proportion of the Review cases in Scotland are dealt with by hearings, although the exact number cannot be discerned from the Government statistics.

Chances of success

In the six months between August 2010 and February 2011, only 35% of Reviews throughout Scotland overturned the officer’s refusal.  Even this was an improvement on the previous six months, up from 32%.  The chances of success seem to vary from council to council : Inverclyde and Fife established an early reputation for thorough scrutiny of their officer’s refusals and overturned a high proportion.  Other councils, such as the cities, rarely do this.  This contrasts with a 45% chance of success of appeals to the Scottish Ministers over the year 2011.

The simple message is that your chance of success in asking that a council review a delegated refusal is poor.  If you can manage to have the application referred to the committee for decision, you can then appeal to the Scottish Ministers and have a greater chance of success.

February 2012

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