The Town and Country Planning (Appeals) (Scotland) Regulations 2013

• (ii) a copy of every document (or the relevant part of a document) and precognition sent to the appointed person under sub-paragraph (a)(ii) or (iii) and which is not already available for inspection under regulation 6, 15(4) , 18D or 28(2) or paragraph (2) of this rule.

• (2) The planning authority are, until such time as the appeal is determined, to afford to any person who so requests a reasonable opportunity to inspect and, where practicable, take copies of any inquiry statement, precognition or other document (or any part hereof) which, or a copy of which, has been sent to them in accordance with this rule.

• (3) A precognition must not, unless the appointed person otherwise so agrees, contain more than 2000 words.

• (4) Different dates and different persons may be specified for the purposes of paragraph (1).

• (5) In this rule—

• “inquiry statement” means, and is comprised of—a written statement which contains particulars of the case relating to the specified matters which a person proposes to put forward to an inquiry session;a list of documents (if any) which the person putting forward such case intends to refer to, rely on or put in evidence; anda list of witnesses specifying the persons who are to give, or be called to give, evidence at the inquiry session, the matters in respect of which such persons are to give evidence and the relevant qualifications of such persons to do so; and

• “precognition” means a written statement of the evidence which it is proposed that a witness will give to the inquiry session.

Procedure at inquiry session

5

• (1) Except as otherwise provided in these Inquiry Session Rules, the procedure at the inquiry session shall be as the appointed person determines.

• (2) The appointed person is, having considered any submission by the persons entitled to appear at the inquiry session, to state at or before the commencement of the inquiry session the procedure which the appointed person proposes to adopt and in particular is to state—

• (a) the order in which the specified matters are to be considered at the inquiry session; and

• (b) the order in which the persons entitled to appear at the inquiry session are to be heard in relation to a specified matter (a different order may be chosen for different specified matters).

• (3) Any person entitled to appear may do so on that person’s own behalf or be represented by another person.

• (4) Where there are two or more persons having a similar interest in the matter under inquiry, the appointed person may allow one or more persons to appear for the benefit of some or all persons so interested.

• (5) Subject to paragraph (6), any person entitled to appear at the inquiry session is entitled to call evidence and to cross‑examine persons giving evidence and to make closing statements.

• (6) The appointed person may refuse to permit—

• (a) the giving or production of evidence;

• (b) the cross‑examination of persons giving evidence; or

• (c) the presentation of any other matter,

which the appointed person considers to be irrelevant or repetitious.

• (7) If any person entitled to appear at the inquiry session fails to do so, the appointed person may proceed with the inquiry session at the appointed person’s discretion.

• (8) The appointed person may from time to time adjourn the inquiry session and, if the date, time and place of the adjourned inquiry session are announced before the adjournment, no further notice is be required, otherwise rule 3 applies as it applies to the variation of the date, time or place at which a inquiry session is to be held.

SCHEDULE 3 — Notices under regulation 18

PART 1 — Notice for service on owner of the building

PART 2 — Notice for publication in local newspaper

SCHEDULE 4 — Closed Evidence

Modification of provisions where security direction given

1

Where a security direction has been given or a request for a security direction has been made in relation to an inquiry session these Regulations apply in accordance with paragraphs 2 to 12.

2

Where closed evidence is to be discussed at a pre-examination meeting—

• (a) only specified persons and any appointed representative may attend the pre-examination meeting while closed evidence is being discussed; and

• (b) the notice to be given under regulation 10(3) must state that while closed evidence is being discussed at the pre-examination meeting attendance at the meeting is restricted to specified persons and any appointed representative.

3

Where a site inspection will involve inspection of closed evidence—

• (a) regulation 12 does not apply; and

• (b) the appointed person may inspect the land in the company of specified persons and any appointed representative.

4

Where the appointed person is notified that a security direction has been given—

• (a) before the appointed person gives notice that an inquiry session is to be held under rule 1(1) of the Inquiry Session Rules, the appointed person must include in that notice a statement that a security direction has been given; and

• (b) after giving that notice, the appointed person must as soon as practicable after being notified of the making of the direction, give notice of the making of the security direction to any person known at that date to be entitled to appear at the inquiry session.

5

While closed evidence is being considered at an inquiry session the persons entitled to appear at the inquiry session are restricted to—

• (a) specified persons; and

• (b) any appointed representative.

6

Where any provision of these Regulations requires or permits a document (or other materials or evidence) to be sent to any person that provision is to be read as requiring, or permitting—

• (a) the sending of such documents (or other materials or evidence) which contain or make reference to any closed evidence to specified persons or any appointed representative; and

• (b) the sending of such documents (or other materials or evidence) to any other person only to the extent that they do not contain or make reference to any closed evidence.

7

Where any rule of the Inquiry Session Rules requires or permits an inquiry statement (including any amended or additional inquiry statement) to be sent to any person that rule is to be read as requiring, or permitting—

• (a) a closed inquiry statement to be sent to specified persons and any appointed representative; and

• (b) an open inquiry statement to be sent to any other person.

8

Where any rule of the Inquiry Session Rules requires or permits a precognition (including any amended or additional precognition) to be sent to any person that rule is to be read as requiring, or permitting—

• (a) a closed precognition to be sent to specified persons and any appointed representative; and

• (b) an open precognition to any other person.

9

Where closed evidence was considered at an inquiry session the assessor, where one has been appointed, if making a report in accordance with regulation 30 is to set out in a separate part (“the closed part”) of the report any matters which relate to that evidence.

10

Where the appointed person’s reasons for a decision relate to matters in respect of which closed evidence has been given, nothing in these Regulations requires notification of those reasons to any person other than a specified person and any appointed representative.

11

Closed evidence must not be published and nothing in these Regulations is to be taken to require or permit closed evidence to be disclosed to a person other than—

• (a) a specified person; and

• (b) any appointed representative.

12

• (1) In this Schedule—

• “appointed representative” means a person (who is also a specified person) appointed to represent the interests of any party to the inquiry, under or by virtue of—section 265A(5) of the Act (planning inquiries to be held in public subject to certain exceptions); orparagraph 6(7) of Schedule 3 to the Listed Buildings Act (determination of certain appeals by person appointed by the Scottish Ministers);

• “closed evidence” means evidence which is subject to a security direction;

• “closed inquiry statement” means such part (if any) of an inquiry statement as includes or refers to closed evidence;

• “closed precognition” means such part (if any) of a precognition as includes or refers to closed evidence;

• “open inquiry statement” means such part (if any) of an inquiry statement as does not include or refer to closed evidence;

• “open precognition” means such part (if any) of a precognition as does not include or refer to closed evidence;

• “potentially closed evidence” means evidence in respect of which a request for a security direction has been made; and

• “specified person” means a person specified in, or a person of such description as is specified in, a security direction as being entitled to hear or inspect closed evidence.

• (2) Where a request for a security direction has been made to the Scottish Ministers or the Secretary of State but no determination as to whether or not to give a direction has been made, references in paragraphs 2 to 12(1) to closed evidence are to be treated as references to potentially closed evidence and references to specified persons are to be treated as references to persons who, in terms of the request for a direction, would be permitted to hear or, as the case may be, inspect closed evidence if a security direction is given.

SCHEDULE 5 — Revocations

Column (1) Regulations revoked	Column (2) References	Column (3) Extent of Revocations
The Town and Country Planning (Appeals) (Scotland) Regulations 2008	S.S.I. 2008/434	The whole Regulations
The Town and Country Planning (Miscellaneous Amendments) (Scotland) Regulations 2009	S.S.I. 2009/220	Regulation 4
The Town and Country Planning (Modification and Discharge of Planning Obligations) (Scotland) Regulations 2010	S.S.I. 2010/432	Regulation 9
The Town and Country Planning (Modification and Discharge of Good Neighbour Agreement) (Scotland) Regulations 2010	S.S.I. 2010/433	Regulation 9
The Town and Country Planning (Miscellaneous Amendments) (Scotland) Regulations 2011	S.S.I. 2011/138	Regulations 3, 6 and 7
The Town and Country Planning (Appeals) (Scotland) Amendment Regulations 2011	S.S.I. 2011/378	The whole Regulations

Signed

DEREK MACKAY — Authorised to sign by the Scottish Ministers — 21st May 2013

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations make provision in connection with appeals to the Scottish Ministers under sections 47, 75B, 75F, 130, 154, 169 and 180 of the Town and Country Planning (Scotland) Act 1997 (c.8) (“the Act”) and appeals under sections 18 and 35 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (“the Listed Buildings Act”). They apply to appeals under sections 47 and 130 as those sections are applied in relation to the control of advertisement by regulations under section 182 of the Act. These Regulations also apply in relation to the procedure for dealing with applications made under section 242A of the Act and applications called-in for determination by the Scottish Ministers by virtue of a direction under section 46 of the Act or section 11 of the Listed Buildings Act.

Part 1 of the Regulations sets out how the Regulations apply to these various appeals and applications.

Part 2 of the Regulations makes provision in relation to the time period within which and how an appeal under section 47 must be made. Regulation 3 sets out the requirements for the form and content of the notice of review and the documents which must accompany such notice. Regulation 3(3) requires the notice of appeal to be given to the Scottish Ministers within three months of the date of the planning authority’s decision or of expiry of the period allowed for determination of the application, which is defined in regulation 2. Regulation 4 requires the notice of appeal to be given to the planning authority and makes provision for the planning authority to respond to the notice and for the appellant to make comments on such response. Regulation 5 makes provision for notification and publication of the appeal and gives interested parties an opportunity to make representations on the case to the Scottish Ministers. The appellant is given the right to respond to any such representations. Regulation 6 requires the planning authority to make the documents relating to the appeal available for inspection and, where practicable, to allow copies to be made of such documents.

Part 3 of the Regulations relates to the process of determination of the appeal. Where the appointed person consider that no further information is required to enable the case to be determined the appointed person may, under regulation 7, do so without any further procedure. The appointed person is not required to determine the case without further procedure and may under regulation 9 seek further information or representations by means of further procedure. The procedures available are those described in regulation 9(4). The procedures to be followed are, in terms of regulation 9(5), further written submission in accordance with regulation 11, a hearing session held under the Hearing Session Rules in Schedule 1, an inquiry session held under the Inquiry Session Rules in Schedule 2 and a site visit in accordance with regulation 12. Regulation 10 makes provision for the holding of pre-examination meetings to consider how the appeal may be conducted. Regulation 8 enables the appointed person to seek confirmation from interested parties as to whether they wish to be involved in any further procedure.

Regulation 13 requires the appointed person to afford the appellant and other parties a further opportunity to make representations in respect of any new and material evidence which the appointed person proposes to take into account in determining the appeal.

Part 4 of the Regulations makes provision relating to how an appeal under sections 130, 169 and 180 of the Act or under section 35 if the Listed Building Act is made. Regulation 14 specifies information which must be included in a statement of appeal. Regulation 15 requires the appellant to give a copy of the notice of appeal and supporting documents to the planning authority when making an appeal and allows the planning authority to respond to the appeal and the appellant to make comments on their response. Regulation 16 provides for the notification to be given to other parties on whom a notice which is the subject of the appeal was served and allows such persons to make representations.

Part 5 of the Regulations makes provision in relation to appeals under section 18 of the Listed Buildings Act. Regulation 17(6) requires an appeal to be accompanied by a certificate required under regulation 18 and the forms of notice to be used in relation to this requirement are set out in Schedule 3.

Part 6 of the Regulations makes provision in relation to appeals under section 47 of the Act as that section is applied by regulations made under section 182 of the Act, currently the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984.

Part 7 of the Regulations makes provision relating to how appeals under section 75B of the Act relating to planning obligations (regulation 21), section 75F of the Act relating to good neighbour agreement (regulation 22) and section 154 of the Act relating to certificates of lawfulness of existing use or development or proposed development (regulation 23) are made.

Part 8 of the Regulations makes provision in relation to applications called-in by the Scottish Ministers for determination by a direction under section 46 of the Act or section 11 of the Listed Buildings Act. In addition Part 8 makes provision in relation to applications made directly to the Scottish Ministers under section 242A of the Act. In these situations the determination is made by the Scottish Ministers rather than by a person appointed to do so. Regulations 24 and 25 apply specified provisions of the Regulations with modifications to take account of this distinction in both cases and, in the case of called-in applications to refer to an application and applicant rather than an appeal and appellant.

Part 9 of the Regulations contains general provisions. Regulation 26 sets out how the Regulations apply in relation to non-delegated appeals. The provisions of the Regulations are generally framed in the context of delegated appeals. An appeal is a delegated appeal where it is to be determined by a person appointed for that purpose under Schedule 4 to the Act or Schedule 3 to the Listed Buildings Act. The prescribed classes of appeals which are to be determined by an appointed person are specified in the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) (Scotland) Regulations 2010 (S.S.I. 2010/467). Those Regulations also set out classes of appeal which are reserved for determination by the Scottish Ministers. Appeals falling within that class or within a class specified in directions made under Schedule 4 to the Act or Schedule 3 to the Listed Buildings Act are, together with those appeals which are recalled for determination by virtue of powers contained in those Schedules, defined as non-delegated appeals. Part 9 in addition makes provision relating to cases giving rise to national security issues (regulation 27), the provision of further copies of documents (regulation 28), the appointment of an assessor to advise the appointed person (regulation 30) and the use of electronic communications (regulation 32). Regulation 29 requires the appointed person to comply with consultation and notification requirements in connection with an appeal or application to the extent that they have not already been met. Regulation 31 makes provision for the content and publication of the decision on the appeal or application.

Part 10 of the Regulations and Schedule 5 revoke the Town and Country Planning (Appeals) (Scotland) Regulations 2008 and other enactments which amended those Regulations and make transitional and saving provisions.

Footnotes

Editorial notes

PART 5A — Appeals under section 5B of the Listed Buildings Act

Appeals under section 5B of the Listed Buildings Act

18A

• (1) An appeal to the Scottish Ministers under section 5B of the Listed Buildings Act is to be made by giving notice in writing in accordance with this regulation.

• (2) The notice of appeal must be served on the Scottish Ministers within the period of three months beginning with the date of the notice given under section 1A(2) of the Listed Buildings Act of the inclusion of a building in the list compiled or approved under section 1 of the Listed Buildings Act or the amendment of an entry in that list, as the case may be.

• (3) The notice of appeal (on a form obtained from the Scottish Ministers) must include—

• (a) the name and address of the appellant;

• (b) the name and address of the representative of the appellant (if any) and whether any notice or other correspondence which is required by these Regulations to be sent to the appellant should be sent to the representative instead of the appellant;

• (c) a statement setting out full particulars of the appeal including a note of the matters which the appellant considers require to be taken into account in determining the appeal and by what, if any, procedure (or combination of procedures) mentioned in regulation 9(4) the appellant considers the appeal should be conducted; and

• (d) a copy of the notice given under section 1A(2) of the Listed Buildings Act.

• (4) The notice of appeal may include as the ground or one of the grounds of appeal a claim that the building is not of special architectural or historic interest and ought to be removed from the list compiled or approved under section 1 of the Listed Buildings Act.

• (5) Subject to paragraph (6)—

• (a) all matters which the appellant intends to raise in the appeal must be set out in the notice of appeal or in the documents which accompany the notice of appeal; and

• (b) all documents, materials and evidence which the appellant intends to rely on in the appeal must accompany the notice of appeal.

• (6) In addition to matters set out in the notice of appeal and documents which accompany the notice of appeal, the appellant may raise matters and submit further documents, materials or evidence only in accordance with and to the extent permitted by regulations 11, 18B and 18C, the Hearing Session Rules and the Inquiry Session Rules.

• (7) In relation to an appeal made under section 5B of the Listed Buildings Act this Part applies and Parts 1, 3 and 9 (other than regulation 29), the Hearing Session Rules and the Inquiry Session Rules apply with the modification that references to the planning authority are to be treated as if they are references to Historic Environment Scotland.

Intimation to Historic Environment Scotland and Historic Environment Scotland’s response

18B

• (1) The appellant must at the same time as giving the notice of appeal to the Scottish Ministers send to Historic Environment Scotland—

• (a) a copy of the notice of appeal;

• (b) a list of all documents, materials and evidence which the appellant intends to rely on in the appeal and which accompanied the notice of appeal in accordance with regulation 18A(5)(b); and

• (c) a copy of all documents, materials and evidence specified on such list which the appellant has not already provided to Historic Environment Scotland.

• (2) Historic Environment Scotland must, not later than 21 days beginning with the date of receipt of notification of an appeal under paragraph (1), send to the Scottish Ministers and the appellant—

• (a) a note (“Historic Environment Scotland’s response”) of the matters which Historic Environment Scotland consider require to be taken into account in determining the appeal and by what, if any, procedure (or combination of procedures) mentioned in regulation 9(4) Historic Environment Scotland wish the appeal to be conducted; and

• (b) a copy of the documents (other than those specified on the list mentioned in paragraph (1)(b)) which were before Historic Environment Scotland and which were taken into account in reaching their decision.

• (3) The appellant may, within 14 days beginning with the date of receipt of Historic Environment Scotland’s response, send to the Scottish Ministers and Historic Environment Scotland—

• (a) comments on any matters raised in Historic Environment Scotland’s response which had not been raised in the decision notice; and

• (b) any documents, materials or evidence on which the appellant intends to rely in relation to such comments.

Notification to interested parties

18C

• (1) Historic Environment Scotland must not later than 14 days following notification of the appeal under regulation 18B(1) give notice of the appeal to each interested party.

• (2) Notice under paragraph (1) is to—

• (a) state the name of the appellant;

• (b) include a description (including where available a postal address) of the building to which the appeal relates;

• (c) state that copies of any representations previously made to Historic Environment Scotland, other than representations which the interested party has asked to be treated as confidential, will be sent to the Scottish Ministers and the appellant and will be taken into consideration in the determination of the appeal;

• (d) state that further representations may be made to the Scottish Ministers and include information as to how any representations may be made and by what date they must be made; and

• (e) state how a copy of the notice of appeal and other documents related to the appeal may be inspected.

• (3) An interested party may, within 14 days beginning with the date on which notice is given under paragraph (1), make representations in respect of the appeal to the Scottish Ministers.

• (4) The Scottish Ministers are to send a copy of any representations received under paragraph (3) to the appellant and to Historic Environment Scotland and are to inform them how and by what date (being a date not less than 14 days after the date on which such copy is sent under this paragraph) they may make comments to the Scottish Ministers on such representations.

• (5) The appellant and Historic Environment Scotland may, on or before that date, make comments on such representations to the Scottish Ministers.

Publication of appeal documents

18D

• (1) Historic Environment Scotland must, in relation to an appeal under section 5B of the Listed Buildings Act, make copies of—

• (a) the notice of appeal;

• (b) Historic Environment Scotland’s response and any comments sent under regulation 18B(3)(a);

• (c) the documents—

• (i) specified on the list mentioned in regulation 18B(1)(b);

• (ii) sent in accordance with regulation 18B(2)(b) and (3)(b);

• (d) any notice given under regulation 18C(1); and

• (e) any representations or comments made under regulation 18C(3) or (5),

available for inspection at an office of Historic Environment Scotland until such time as the appeal is determined.

• (2) Historic Environment Scotland are until such time as the appeal is determined to afford to any person who so requests the opportunity to inspect and, where practicable, take copies of any such documents (or any part thereof).