One of the innovations introduced last year is the prohibition on raising new matters in a planning appeal (“not to raise any matter which was not before the planning authority at the time the decision appealed against was made …” – section 47A). A similar rule applies to applications for review to a Local Review Body (section 43B).
There has been much speculation about how reporters will apply this prohibition. Brodies have recently obtained a ruling from a reporter that the planning authority could not submit documents which had been prepared during the application process but not published.
The planning authority sought to submit two internal memos. Neither were specifically referred to in the committee report, nor made available in the planning file relating to the application. The reporter decided that, as they were internal consultations, the issues should have been dealt with in the committee report. He refused to accept the documents.
This ruling shows the potential disadvantage of using a brief style of committee report.
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Hello.
Doesn’t seem to apply to developers appealing to the Scottish Ministers on a refusal of planning permission. An agent has introduced previously unseen documentation relating to traffic flow. shadowing and overlooking in an appeal where Glasgow’s Planning Applications Committee refused its application for a housing development on the grounds of traffic safety and visually unnacceptable design and build materials for its proposed location. Perhaps you might wish to comment?
Regards,
Alex.
Difficult to comment without details of the case. Did the planning authority object and get a ruling from the reporter? The prohibition on new matters is not absolute – there is an exceptional circumstances exception, and also an exception if the matter could not have been raised before – had the applicant been given the opportunity to respond to the issues on traffic safety and materials prior to the refusal? There is also uncertainty about what Parliament meant by “new matters” – is it permissible to submit new material on an existing matter? Also, did Parliament intend the prohibition to override the general duty to have regard to all material considerations? Under the old system, reporters often permitted late evidence at inquiries, under what might be described as a best evidence rule, provided a fair opportunity could be given to the other party to respond. Some reporters might consider that this approach can still be taken to ensure that they take account of all material considerations. Unfortunately this is all open to debate until a case goes to court and a ruling is issued by a judge.
Good day Neil.
Hello Neil.
I was on leave when your response came in.
I think you would be interested in the dynamics of this case:-
http://www.dpea.scotland.gov.uk/casesearch.aspx?T=1
Land at Manse Brae/Old Castle Road, Glasgow – PPA-260-2014
The decision on PPA-260-2013 in my opinion, would be appropriate for Manse Brae, etc. It is featured onm the same page and refers to scale, etc.
Regards,
Alex.
Alex – it is interesting to see the different approaches in these cases to new matters. In both the parties made it easier for the reporter by not arguing for the new matters to be excluded from consideration, probably because they had strong responses to the new matters.
Neil