Falling at the first hurdle – no remit appeals
The website of the Directorate for Planning and Environmental Appeals (the DPEA) is a mine of fascinating information – at least for the kind of person who can be fascinated by the DPEA website. It allows the user to find individual appeal decisions, but also to search by Case Type (planning permission, listed building consent etc) or Case Characteristics (housing, wind farm etc) or Case Status (decision issued, case withdrawn etc).
One of the no doubt lesser used searches is “No remit”. This occurs where someone has submitted an appeal to Scottish Ministers (through the DPEA) only to be told that the appeal cannot be accepted. This has occurred 322 times since July 2009, an average 5 to 6 times a month and the reasons are set out below:
Reason 1 – Appeal should have been to a Local Review Body
The clear winner. Prior to 3 August 2009 all planning permission appeals were to the Scottish Ministers (with the appeals being administered by the DPEA). However, with planning reform came the hierarchy of developments, new schemes of delegation and the Local Review Body (LRB). An LRB is a committee of elected members of the Council.
All applications for planning permission are categorised as national, major or local development. Local developments are all developments other than national or major and are, in essence, smaller developments. The local development category constitutes the vast majority of planning applications. All local authorities have adopted a scheme of delegation (a section 43A scheme) to delegate determination of most local developments to appointed officers rather than elected members. The key legal point is that where an application is determined by an appointed officer under a section 43A scheme there is no right of appeal to Scottish Ministers. The disappointed applicant has only a right of review by a LRB. Nor is there any further appeal of the LRB’s review decision to Scottish Ministers.
But note that not all local development appeals will be to a LRB. For various reasons an application for planning permission for a local development may be determined by elected members rather than by a planning official. If for example it generates a certain number of objections. In such cases the appeal is to the Scottish Ministers rather than the LRB.
A degree of confusion over the dual system was perhaps inevitable, but it is notable that 5 years after the system came into force this appears to remain the most common reason why the DPEA has no remit. A perception that if “the Council” refuse your application you should appeal to “the Government” probably remains widespread.
Reason 2 – Appeal is late
The second major reason. There are strict statutory deadlines for submission of an appeal and no provision for an opportunity to justify a late appeal. The DPEA cannot accept an appeal submitted after the relevant period has expired.
Most no remit cases concern applications for planning permission where the appeal period is 3 months beginning with the date of the decision notice. However, it is important to remember that different decisions can have different appeal periods. For example, a planning enforcement notice must be appealed before the date specified in the enforcement notice as the date on which it is to take effect. This may well be considerably less than 3 months. Virtually all enforcement no remit cases are because the appeal is submitted late, suggesting that this requirement is not well understood or that parties may wait until the potential enforcement becomes “real”, by which time it is too late to appeal.
Reason 3 – Confusion over non-determination
Probably a sub-set of Reason 1. In a significant number of cases applicants submitted an appeal to the DPEA where an appointed officer failed to determine their application within the prescribed period. This is known as an “appeal for non-determination” and proceeds on the basis that the application is deemed to have been refused.
However, where the determination was to be made by an appointed officer under a section 43A scheme there is no appeal to the Scottish Ministers, but rather a right of review by a LRB.
Reason 4 – Failure to provide required information
The Appeals Regulations prescribe certain (fairly basic) information that must be included in the notice of appeal or accompany the appeal. If an appeal does not include the prescribed information this will be requested from the appellant by the DPEA. But if the information is not provided within the period for making the appeal the DPEA will not accept the appeal as valid.
Reason 5 – High hedges
A recent addition. The High Hedges (Scotland) Act 2013 concerns disputes between neighbours about high hedges and contains several rights of appeal against local authority decisions (e.g. the decision that a high hedge does not have an adverse effect or the issuing of a high hedge notice). In a handful of recent cases the DPEA has refused to consider appeals from disappointed neighbours. In these cases the local authority had decided that the offending vegetation was not a “high hedge” as defined in the Act. As there is no right of appeal against this preliminary determination the DPEA refused to accept the appeal.
Avoiding the pitfalls
None of these reasons are the fault of the DPEA. Appeals are regulated by legislation and the DPEA cannot consider a matter outside its statutory remit or that fails to meet some statutory requirement. Indeed the DPEA appears to notify appellants very quickly where it becomes apparent that their appeal cannot be accepted.
Equally, the news that the DPEA has no remit is not necessarily the end of the road. In many cases the mistake can probably be rectified, for example by the appellant re-directing their case to a LRB. But in reality appeals are often submitted just before the deadline. The appellant may have been seeking advice, or assembling further information or, more prosaically, it may take a looming deadline to concentrate minds and prompt action. In this circumstance there may be little or no time to rectify the mistake or re-direct the appeal.
To avoid these pitfalls there are a few simple guidelines:
- Carefully read the whole decision notice – every decision notice must include prescribed information. For planning applications refused or granted subject to conditions this includes the date of the notice, notification of the applicant’s right of appeal or review, the relevant appeal or review period, and how further information may be obtained. Of course the decision notice will also relate why the application was refused, and this should be reflected in the appellant’s case.
- Remember that different decisions have different appeal periods – do not assume that all decisions are subject to a 3 month appeal period.
- Try not to leave an appeal or review to the last minute – the deadline might seem a long way away but time passes quickly and mistakes do occur. The appellant should strike a balance between formulating the best possible case (remembering there may well be no further opportunity to input into the appeal process) and avoiding a last minute rush.
- Make sure all necessary information is included – the Scottish Government’s prescribed appeal form includes a checklist of all the information that must be included with an appeal.
Remember, the planning merits of an appeal, and the likelihood success, are an entirely separate issue. But a necessary preliminary step is to ensure that the appeal will at least be heard.