Planning authorities in Scotland currently have a two month period in which to determine planning applications, extended to four months in the case of EIA development. If no decision is taken within the determination period, then the applicant has a statutory right to lodge an appeal to the Scottish Ministers within six months. It is open to applicants and planning authorities to agree to extend the determination period where it is not going to be met.
However, the decision of the Inner House of the Court of Session on 25 March 2009 in the case of Vattenfall Wind Power Limited v the Scottish Ministers has reinforced the need to observe good practice in reaching such agreement, to avoid the right of appeal against non-determination being lost. The case looks at whether an appeal against non-determination, following an agreed extension to the period for determination by the planning authority, was valid.
When does the appeal period start?
On 10 April 2003, Vattenfall applied to Scottish Borders Council for planning permission to erect twelve wind turbines at a site in Peeblesshire. The Council did not determine the application within the four month determination period, but it was not until 2007, some four years later, that Vattenfall and the Council agreed to extend the determination period to 31 December 2007, with the expectation that that would also extend the appeal period by a further six months to 30 June 2008.
Scottish Borders Council made no determination during this extended period and so, on 6 June 2008, Vattenfall appealed to the Scottish Ministers against the failure of the Council to determine the application. The Scottish Ministers' response to Vattenfall, however, was that it appeared that their appeal was out of time.
The issue in question was the date from which the six-month period in which to lodge the appeal began. Vattenfall argued that the six month period ran from the expiry of the agreed extended determination period i.e. 31 December 2007. The Scottish Ministers took the contrary view, that the six month period ran from the end of the initial determination period in 2003, and this contrary view has been upheld by the Inner House of the Court of Session, meaning that the appeal was out of time.
What are the guidelines for appeals against non-determination?
There are clear legal principles governing timescales for determination of planning applications by local authorities and appeals against non-determination.
Town and Country Planning (Scotland) Act 1997
Section 47(2) provides that a person who has made a planning application may appeal to the Scottish Ministers if the planning authority has not given notice of their decision within such a period as may be prescribed by regulations, or development order, or within such extended period may at any time be agreed upon in writing between the applicant and the authority.
Town & Country Planning (General Development Procedure) (Scotland) Order 1992
Article 14(2) provides that the relevant period for determination of an application is two months.
Article 14(4) extends that period to four months in the case of EIA development.
Article 23 (2) provides that an appeal against non-determination must be lodged within six months of the expiry of the appropriate determination period i.e. within six months of the end of the two or four month period.
If the applicant does not appeal within that period, the planning authority remains the decision maker for the application and is obliged to make a decision on it.
Extension of an expired determination period
The Vattenfall case distinguished the applicant's rights in relation to the planning authority from those in relation to the Scottish Ministers. The judgment describes the entitlement to appeal against non-determination as arising "at once" upon the expiry of the determination period. As such, any agreement to extend a determination period which has already expired, does not have the effect of reviving the right to appeal against non-determination of the application. In other words, if the applicant and planning authority do not agree to extend the determination period before it expires and then attempt to do so some time later as in Vattenfall, the right of appeal against non-determination will expire at the end of the six months following the initial two or four month determination period. There must be no break in extending the determination period from the initial one if the right of appeal against non-determination is to be retained. This distinction has practical implications for developers.
The burden is on the applicants to watch the timescales
While paragraph 77 of PAN 40 Development Control advises that authorities should try to determine applications within the statutory determination period and must seek the applicant's agreement in writing to extend the time as soon as they become aware of possible overrun, there is no obligation on them to adhere to that guidance. In practice, the onus remains on the applicant to monitor timescales and ensure that necessary extensions to determination periods are obtained, to preserve the statutory right of appeal against non-determination.
This burden on applicants will be all the more pertinent when reforms to appeals procedures introduced by the Planning etc. (Scotland) Act 2006 come into force. There will be limited opportunity to augment information in support of an application at appeal stage. The process of responding to statutory consultees or providing additional information to the planning authority at the application stage may be crucial to the prospects of success at appeal. This can take some time, particularly with more complex applications. Therefore it will often be in the applicant's interest to extend the determination period to ensure that all supporting information needed is available to, and is in front of the planning authority before an appeal against determination is lodged.
It is therefore important for an applicant to seek to extend the determination period, to avoid having to appeal against non-determination at the end of the initial determination period, simply because of the fact that the right of appeal will otherwise be lost.
Applying good practice will assist applicants
The decision in the Vattenfall case reinforces the need to observe good practice when agreeing to extend a timescale for determination of an application:
- The extension must be agreed between the planning authority and applicant before the initial determination period expires.
- If the initial determination period expires without being extended, then the six-month appeal period for non-determination applies automatically. There is no opportunity to extent this period by subsequent extension to the local authority's determination period.
- The agreement should be in writing to be effective in providing clear evidence of the right to raise an appeal against non-determination.
As reforms to the planning system begin to come into force, it is increasingly important that this good practice is observed, to prevent the right to appeal against non-determination from being lost.
To access the decison in the case of Vattenfall Wind Power Limited v the Scottish Ministers click here