Regulation 7 of the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2008, provides that local review bodies must, not later than 14 days following notification of a review, give notice of the review to each interested party. An interested party is by definition any authority or person consulted by the planning authority in compliance with a requirement imposed by virtue of section 43(1)(c) of the TCPSA 1997 (aka statutory consultees) and from whom the planning authority received representations (which were not subsequently withdrawn) in connection with the application, and any other person who has made timeous representations in connection with the application (most often objectors, but on occasion supporters). Thereafter any interested party may , within 14 days beginning with the date on which notice was given, make representations in respect of the review to the local review body.
This notice will generally set the ball rolling for representations by interested parties, ordinarily by way of comments on the notice of review.
Missing from this procedural requirement is any notice being given to the appointed officer – who is not an interested party for the purposes of the Regulations, although a roads officer who has maintained an objection will be an interested party where the roads authority is a statutory consultee.
It is quite likely, is it not, that local review bodies will often wish to know what the appointed officer has to say about the notice of review? So, unsurprisingly, we are aware that some local review bodies are going down the route of sending notice, of the notice of review, to the appointed officer at the same time as they are sending notices to interested parties. The attraction in this approach is that it is more efficient as it saves time and duplication of effort. It is assumed that representations made by the appointed officer at this stage will be dealt with in the same way as representations form interested parties.
Other planning authorities are adopting a different approach. As the regulations do not provide for notice, of the notice of review, to be served on the appointed officer ( because he or she is not an interested party) no notice is served on the appointed officer. This line of thought is predicated on the basis that if the regulations do not provide for notice, then notice should not be give. (There is, however, nothing in the regulations that says that notice shall not be given to the appointed officer). The effect of this approach is that if the local review body, wishes to receive information from the appointed officer they must formally request this information. But this cannot happen until the local review body has met and has determined that further procedure is necessary before the review can be determined. This is likely to be in the order to 5- 6 weeks after the notice of review was first received. It might be argued that this latter approach is less efficient and effective than the former. But then, those who have adopted it will argue that it may be less efficient and less effective , but it is procedurally correct.
Where the former approach is adopted, presumably the appointed officer will assume free rein to comment on all aspects of the notice of review. Where the latter approach is adopted he/or she will presumably respond only in so far as required by the local review body. For example, if the further information is to be provided by way of written submissions, then it will be provided in response to a procedure notice served in terms of Regulation 6 which will set out the matters on which further representations or information is requested.
So, does the more efficient and effective approach inadvertently assume too much in terms of what the local review body may or want by way of information from the appointed officer, if indeed, it wants any further information whatsoever?
Regulation 12 states that where the local review body consider that the review documents provide sufficient information to enable them to determine the review, they may determine the review without further procedure. The review documents are defined as meaning the notice of the decision, in respect of the application to which the review relates, the Report on Handling (initial capitals noted) and any documents referred to in that Report, the notice of review,all documents acompanying the notice of review and any representations or comments made under regulation 10(4) or 10(6) in relation to the review.
Where the appointed officer has not made representations under regulation 10(4) because he or she has (intentionally) not been notified of the notice of review, then his or her position on the application will, in the event of the local review body determining the review without further procedure, rest on the contents on the Report on Handling (see I am remembering about the initial capitals). This, not withstanding anything that might have crept in via the notice of review (no capitals for this document). Of course the local review body might take the view that further procedure is required, but that no further information is required from the appointed officer, in which case the position on the application would also rest on the contents of the Report on Handling (maybe that’s why it has initial capitals).
The point of this blog is not to say what is right or what is wrong. Arguments might be made for serving notice, of the notice of review, on the appointed officer ; arguments might be made for not doing that. But the procedure that is adopted does have implications in terms of the information that is before the local review body when it meets to consider whether further procedure is necessary.
Circular 7/2009 is silent on these matters, so it will be very much up to each local planning authority to take its own advice which is likely to mean variations in procedure across the country.
So much variety, so soon!
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