If your planning application has been refused, approved subject to unacceptable conditions, or has not been determined within the relevant period, you may have options for challenging the decision.
The planning appeals process in Scotland differs from the system in England and Wales. Depending on the type of application and decision involved, a challenge may be made through a local review body or by appealing to Scottish Ministers through the Planning and Environmental Appeals Division (DPEA).
Understanding which route applies, the relevant deadline, and the planning grounds that can support an appeal is essential before taking action.
What Is a Planning Appeal in Scotland?
A planning appeal is a formal process through which certain planning decisions can be challenged.
In Scotland, the DPEA deals with a range of planning and environmental appeals on behalf of Scottish Ministers. Most appeals are determined by a reporter appointed by Scottish Ministers, although some cases are ultimately decided by Ministers.
A planning appeal may arise where, for example:
- Planning permission has been refused
- Planning permission has been granted subject to disputed conditions
- A planning application has not been determined within the applicable period
- Listed building consent has been refused
- A certificate of lawful use or development has been refused
- A planning enforcement notice has been served
- A planning obligation application has been refused
The precise right of appeal depends on the type of decision and the circumstances of the application.
When Can You Appeal a Planning Decision in Scotland?
Not every planning decision follows the same appeal route.
For certain local development applications, the appropriate route may be a local review by the planning authority’s local review body rather than an appeal to Scottish Ministers.
For other applications, including certain major, national and other qualifying developments, the applicant may have a right of appeal to Scottish Ministers. The decision notice should explain the available route.
This distinction is important because using the wrong procedure or missing the relevant deadline can prevent a challenge from proceeding.
Planning Appeals to Scottish Ministers
Where there is a right of appeal to Scottish Ministers, the appeal is handled by the Planning and Environmental Appeals Division.
A planning permission appeal can generally arise where the planning authority:
- Refuses the application
- Grants permission subject to conditions the applicant disagrees with
- Fails to issue a decision within the applicable determination period
The Scottish Government confirms that planning permission appeals must generally be made within three months of the planning authority’s decision, or within three months from the date by which the authority should have issued its decision in a non-determination case.
Late appeals cannot generally be accepted, so calculating the deadline correctly is critical.
Local Review or Planning Appeal?
One of the first issues to establish after receiving a planning decision is whether the case should go through a local review or an appeal to Scottish Ministers.
The decision notice should identify the applicable route.
Local review can apply to certain decisions made by planning officers under delegated powers. Other qualifying applications have a right of appeal to Scottish Ministers.
Why the Correct Route Matters
The two procedures are not interchangeable.
Before preparing an appeal, it is important to establish:
- Who made the original decision
- What type of development is involved
- Whether the application is a local, major or national development
- Whether the decision was delegated
- Whether the local review procedure applies
- Whether there is a statutory right of appeal to Scottish Ministers
- The applicable deadline
Professional advice can help establish the appropriate route before a deadline expires.
Common Grounds for Planning Appeals in Scotland
The grounds of an appeal will depend on the reasons given for refusing permission or imposing conditions.
A successful appeal generally requires a clear planning case addressing the relevant policies, evidence and reasons for the original decision.
Conflict With the Development Plan
The development plan is central to planning decision-making in Scotland.
A planning appeal should consider the relevant development plan policies and explain why the proposed development complies with them or why other material considerations support the proposal.
The reporter is required to make a decision in accordance with the development plan unless material considerations indicate otherwise.
Incorrect Interpretation of Planning Policy
An appeal may address whether the planning authority has correctly interpreted or applied relevant planning policies.
This could involve policies concerning:
- Housing
- Design
- Green Belt
- Transport
- Heritage
- Landscape
- Biodiversity
- Flood risk
- Economic development
- Rural development
The appeal should identify the relevant policy and explain how it applies to the particular proposal.
Design and Residential Amenity
Where permission has been refused because of concerns about design or neighbouring amenity, an appeal may address matters such as:
- Building scale
- Height
- Layout
- Massing
- Overlooking
- Privacy
- Daylight
- Sunlight
- Relationship with neighbouring buildings
- Character of the surrounding area
Supporting evidence, revised drawings or additional technical information may be relevant depending on the reasons for refusal.
Highway and Access Issues
Highway concerns can be significant in planning decisions.
Where an application has been refused because of access, traffic or road safety issues, an appeal may need to address:
- Site access
- Visibility
- Parking
- Traffic generation
- Pedestrian safety
- Road capacity
- Vehicle movements
- Servicing arrangements
Technical transport evidence may be appropriate for larger or more complex proposals.
Heritage Considerations
Where a planning application or Listed Building Consent application has been refused because of heritage concerns, the appeal may need to address the impact of the proposal on the relevant heritage asset.
This could involve:
- Listed buildings
- Conservation areas
- Historic structures
- Historic landscapes
- The setting of heritage assets
The appropriate evidence will depend on the nature and significance of the asset and the proposed works.
Environmental and Landscape Issues
Planning appeals may also involve environmental matters.
Depending on the proposal, these could include:
- Biodiversity
- Ecology
- Landscape character
- Trees
- Flooding
- Drainage
- Water environment
- Environmental impacts
Technical reports may be required to address specific reasons for refusal.
What Happens During a Planning Appeal in Scotland?
Once an appeal is submitted, the DPEA checks whether it is valid and whether it has jurisdiction to deal with the case.
A reporter is then appointed in appropriate cases.
The planning authority is given an opportunity to respond, and the appellant may have an opportunity to comment on that response. The reporter considers the submissions and may request additional information where necessary.
The appeal may be dealt with through different procedures.
Written Submissions
Many appeals are considered through written submissions.
The appellant and planning authority provide written evidence, with the reporter assessing the planning issues based on the material available.
The current DPEA guidance identifies a target timescale of 12 weeks for written-submission cases, although this is a target rather than a guaranteed determination date.
Hearing Sessions
For some appeals, a hearing session may be appropriate.
A hearing allows participants to present their positions directly before the reporter and discuss the relevant planning issues.
The current DPEA target for cases determined through a hearing session is 40 weeks from receipt of the appeal.
Inquiry Sessions
More complex cases may involve an inquiry session.
This can provide a more formal process for examining evidence and planning issues.
The current DPEA target for inquiry-session cases is 50 weeks from receipt of the appeal.
Site Inspections
A reporter may also inspect the site to understand the physical characteristics of the development and surrounding area.
A site inspection does not normally provide an opportunity for participants to argue the merits of their case. The DPEA guidance explains that attendees at an accompanied inspection may point out physical features but cannot use the inspection to present arguments about the case.
How Long Do You Have to Appeal a Planning Decision in Scotland?
For many planning permission appeals to Scottish Ministers, the deadline is three months from the date of the decision notice.
Where the planning authority has failed to determine an application within the applicable period, the three-month period generally runs from the date on which the determination period expired.
However, different deadlines can apply to other types of appeal.
For example, an appeal against a planning enforcement notice must generally be made before the date specified in the notice for it to take effect.
It is therefore important to check the specific decision notice and applicable appeal regulations rather than assuming that every planning challenge has the same deadline.
What Happens After a Planning Appeal?
Once the appeal has been considered, the reporter issues a decision notice.
The appeal will generally either be allowed or dismissed.
Where an appeal is allowed, this may result in planning permission or another form of consent being granted contrary to the original decision of the planning authority.
The decision will set out the relevant conclusions and, where appropriate, conditions attached to the consent.
Can a Planning Appeal Decision Be Challenged?
A planning appeal decision is not normally reconsidered simply because a party disagrees with the reporter’s conclusions.
However, a person with sufficient interest may be able to challenge a decision in the Court of Session on a point of law.
The Scottish Government states that such a challenge must generally be brought within 42 days (six weeks) of the decision.
A Court of Session challenge is different from making a further planning appeal. It concerns whether there has been an error of law affecting the decision.
Planning Appeals for Different Types of Development
Planning appeals in Scotland can arise across a wide range of property and development projects.
Residential Development
Appeals may involve:
- New-build housing
- House extensions
- Flats and conversions
- Housing developments
- Rural residential development
- Replacement dwellings
Commercial Development
Commercial planning appeals can involve:
- Offices
- Retail premises
- Restaurants
- Hotels
- Industrial buildings
- Change of use applications
Rural and Agricultural Development
Planning disputes may also involve:
- Agricultural buildings
- Barn conversions
- Rural diversification
- Tourism developments
- Renewable energy proposals
Heritage Properties
Appeals can also concern listed buildings, conservation areas and other historic properties.
The appropriate appeal strategy will depend on the particular reasons for refusal and the applicable planning policies.
Planning Enforcement Appeals in Scotland
A separate appeal route exists for certain planning enforcement notices.
A planning authority may serve an enforcement notice where it considers that development has been carried out without the required planning permission or where a person has failed to comply with a planning condition.
A person with an interest in the land covered by the notice may have a right to appeal to Scottish Ministers. The appeal must generally be submitted before the enforcement notice takes effect.
Enforcement appeals can involve different statutory grounds from an ordinary planning permission appeal, making early legal and planning advice particularly important.
How Charrette Law Can Help With Planning Appeals in Scotland
A planning refusal does not necessarily mean that development cannot proceed. However, the appropriate next step depends on the decision, the development type, the reasons for refusal and the applicable appeal or review procedure.
Charrette Law can assist property owners, developers and businesses with planning matters, including:
- Reviewing planning refusal notices
- Assessing reasons for refusal
- Advising on planning appeal options
- Reviewing development plan policies
- Preparing planning appeal submissions
- Responding to planning conditions
- Planning enforcement matters
- Listed building and heritage planning issues
- Development strategy
- Planning and property-related legal advice
A detailed review of the planning decision and supporting documents can help establish the issues that need to be addressed before an appeal is submitted.
Frequently Asked Questions About Planning Appeals In Scotland
How do I appeal a planning refusal in Scotland?
The appropriate route depends on the type of application and the decision-making process. Some decisions can be challenged through a local review body, while qualifying applications may be appealed to Scottish Ministers through the DPEA. The decision notice should identify the applicable procedure.
How long do I have to appeal planning permission in Scotland?
For many appeals to Scottish Ministers concerning planning applications, the deadline is three months from the date of the planning authority’s decision. Different deadlines can apply to other types of appeal, so the relevant decision notice should be checked carefully.
What is the DPEA?
The Planning and Environmental Appeals Division is a division of the Scottish Government Legal Directorate that handles planning and environmental appeals and other related casework on behalf of Scottish Ministers.
Can I appeal a planning condition in Scotland?
In qualifying cases, an applicant can appeal where planning permission has been granted but conditions have been imposed that they disagree with.
Can I appeal if the council has not decided my application?
In qualifying cases, an applicant can appeal to Scottish Ministers where the planning authority has failed to issue a decision within the applicable determination period. The relevant appeal period generally runs from the expiry of that determination period.
Can neighbours appeal a planning decision in Scotland?
The right to appeal depends on the type of planning decision and the statutory appeal provisions. A person who did not make the planning application does not generally have the same appeal rights as the applicant. Other legal routes may be available in specific circumstances.
Can a planning appeal be challenged in court?
A planning appeal decision may be challenged in the Court of Session on a point of law where the relevant requirements are met. The Scottish Government states that the challenge must generally be brought within 42 days of the decision.
Get Expert Advice on Planning Appeals in Scotland
Planning appeals require careful consideration of the original decision, the relevant development plan, national planning policy, supporting evidence and the applicable procedural rules.
Whether you are dealing with a planning refusal, disputed conditions, non-determination or an enforcement notice, taking advice before the relevant deadline can help you understand your available options.
Contact Charrette Law for expert planning and legal advice on planning appeals, development proposals and property matters in Scotland and across the UK.
