Scottish Government Consultation on Planning Fees and the Extension of a Statutory Appeal Mechanism


The Scottish Government has published a consultation on proposals for a Better Regulation Bill. The Consultation includes questions on:

(i) how best to link planning fees to the performance of a planning authority; and
(ii) whether a statutory appeal mechanism should be extended to Scottish Ministers’ decisions across a wider range of infrastructure projects

Legislative changes would be through a Better Regulation Bill which may be introduced to the Scottish Parliament in 2013.

Linking planning fees to performance of the planning authority

In March 2012 the Scottish Government consulted on a new fee structure and amended fee levels for planning applications. This reflected the widespread recognition that current levels of planning fee income are insufficient to cover the cost of processing planning applications.

However, the Scottish Government has made it very clear that new fee arrangements must be part of a continued improvement in the performance of planning authorities:

if planning applications are to attract what may be a substantial increase in planning fees then applicants have a right to expect a commensurate increase in the performance of planning authorities;
performance will be measured against the mix of quantitative and qualitative measures contained in the Planning Performance Framework; and
the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) will be amended to allow Scottish Ministers to set the level of fees payable in each planning authority based on its measured performance. The Consultation states that the Scottish Government would first seek to support an under-performing planning authority, but the ultimate sanction would be for Scottish Ministers to reduce the level of fees payable to a planning authority that cannot show sustained performance improvement.

The remaining element is to decide on a mechanism to link the planning fees payable in each planning authority area and the assessed performance of that planning authority. The Consultation does not propose any mechanism but instead seeks consultees’ views.

Extending statutory review mechanisms to challenges against Scottish Ministers’ decisions in infrastructure projects

The Consultation also seeks views on the extension of a statutory appeal mechanism in challenges against Scottish Ministers’ decisions in infrastructure projects. The Scottish Ministers have a decision-making role in infrastructure projects consented under a range of legislative regimes. For example, under the 1997 Act Scottish Ministers determine planning appeals and called-in applications. Scottish Ministers also determine applications under the Electricity Act 1989 (the 1989 Act), such as applications for large scale wind farms. Scottish Ministers have a similar role in areas such as marine licensing and roads orders. A single project may require different consents to be granted or approved by Scottish Ministers.

Large infrastructure projects are frequently controversial and a party may wish to challenge the legality of the Scottish Ministers’ decision. At present there is no common mechanism of challenge. Some legislation, such as the 1997 Act, provides for a statutory appeal to the Court of Session. The permissible grounds of appeal and the time period to lodge the appeal are specified in the legislation. Under other regimes, such as the 1989 Act, challenge is by way of a petitions for judicial review to the Court of Session. Marine licensing decisions must be appealed to the sheriff Court. These legal challenges are subject to different procedural requirements. For example, under a statutory appeal mechanism the aggrieved party has a strictly defined period (usually 6 weeks) in which to lodge a legal challenge. By contrast in Scotland there is no statutory period in which a judicial review must be brought (although delay in bringing the challenge could result in the petition being dismissed).

The Scottish Government considers that the current arrangements create an unnecessarily complex and confusing picture, and it would be better to extend a statutory appeal mechanism across more Scottish Ministers’ decisions on infrastructure projects. The Consultation asks:

whether it is appropriate to extend the types of decision subject to statutory appeal and, if so, for what types of decision?;
whether a statutory appeal mechanism should replace the current arrangements to challenge a marine licensing decision?; and
whether the procedure for a statutory appeal should be made the same across all relevant legislation?


The proposals are to be welcomed. The variety of current mechanisms for legal challenge reflects the incremental development of legislation dealing with the consenting of large scale infrastructure projects. But there is no particular reason why the challenge to a Scottish Ministers’ appeal decision on a wind farm of less than 50MW should require a different mechanism to challenging their decision on a wind farm of more than 50MW. A defined time period in which to lodge a statutory appeal would be especially beneficial. Setting a strict statutory limit, usually 6 weeks, allows the objector a reasonable period in which to consult and prepare any legal challenge, while providing more certainty to the decision-maker and the developer.