Ministerial involvement in planning decisions
Scottish Ministers deal with a variety of casework in relation to the planning system and have a role in confirming various legislative orders and directions.
Applications for planning permission, listed building consent and conservation area consent are dealt with firstly by the local planning authority. Scottish Ministers can intervene in the determination of a planning application where a matter of genuine national interest may be at stake.
Ministers only intervene occasionally because local authorities have an important decision-making role in the future development of their areas. Ministers can only intervene before the planning authority's decision letter is issued.
Planning authorities must notify Scottish Ministers if they intend to grant planning permission for certain categories of development or if a key agency has objected to a development. These are known as notified applications.
These include planning applications, listed building consent applications, conservation area applications and scheduled monument consent applications.
Planning Circular 3/2009: Notification of Planning Applications describes this procedure; we have also produced a Notified Application process map and checklist.
Directions are now in place for the following development types:
Listed Building, Conservation Area and Scheduled Monument Consents
Since the creation of Historic Environment Scotland (HES), Scottish Ministers' duties now include handling:
- notified Listed Building Consents and Conservation Area Consents
- applications where HES has advised against the granting of permission
- Scheduled Monument consent where HES is minded to grant consent for works which exceed the minimum necessary to protect what is culturally significant about the monument
- other ministerial casework such as Listed Building Compulsory Purchase Orders
New notification directions were published covering listed building consent, conservation area consent, scheduled monument consent and heritage impacts.
- Heritage Management: directions and guidance, Chief Planner Letter
- Scheduled Monument Consent: Notification directions and changes to other directions
- Heritage Management: directions and guidance, Chief Planner Letter 2
The Historic Environment Circular 1 outlines planning process changes relating to the historic environment.
Conservation Area Notifications
It is a statutory requirement for local authorities to notify Scottish Ministers of any designation, boundary variation or cancellation of a conservation area made under Section 61 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997.
Historic Environment Scotland (HES) must also be informed of any changes to conservation areas. Planning authorities are required to email HES (HMConsultations@hes.scot) and Planning Decisions (Planning.Decisions@gov.scot) simultaneously when a conservation area notification is required.
Certain information must be included with a notification:
- the publication of the designation, de-designation or changes to boundaries by way of an advert/notice in the Edinburgh Gazette and one local newspaper within the planning authority area
- a location map showing the conservation area boundary
- a GIS shapefile showing the conservation area boundary
- an address list of all streets/properties affected by the designation
- a copy of the conservation area character appraisal and/or conservation area management plan, if available
The applicant has a right of appeal to Scottish Ministers in cases where
- a planning application for development is refused by the planning authority
- the proposed conditions are unacceptable
- the local authority has not issued a decision within eight weeks
In the case of delegated decisions the appeal would be made to the council's Local Review Body.
Appeals to Scottish Ministers that do not raise issues of national importance are usually delegated to a reporter from the Planning and Environmental Appeals Division who will make a decision on their behalf. Appeals for Listed Building Consent and Conservation Area Consent do not go the Local Review Body but straight to the Planning and Environmental Appeals Division (DPEA). The planning appeals page contains more information.
Where issues raise matters of genuine national concern or where there is a connection with another ministerial case, appeals can also be 'recalled' to be determined by Scottish Ministers themselves.
A decision on a planning application or an appeal by ministers (or under delegated powers on their behalf) is final. Parties may, however, seek an appeal to the Court of Session within six weeks of the final decision. The Court of Session cannot change a decision but it can quash the decision and force ministers to reconsider.
Compulsory Purchase Orders
A Compulsory Purchase Order can allow councils and other organisations to acquire property without the owner's permission, if there is a strong enough case for this in the public interest. For example, a Compulsory Purchase Order can be used to enable the commencement of:
- major road construction projects
- restoration of derelict historic buildings
- housing developments
- town centre regeneration
Orders promoted by other public bodies must be confirmed by Scottish Ministers. Orders with objections against them are referred to DPEA for a report to be prepared for Scottish Ministers' consideration. Ministers will consider the report and the objections, and weigh up the proposed public benefit against the interests of the people affected.
We have published a number of relevant documents:
- Scottish Government policy on making Compulsory Purchase Orders: guidance for acquiring authorities
- Compulsory Purchase Orders: process maps and checklist
- Compulsory Purchase Orders: list of contacts
- Planning Circular 5 2011: Disposal of Surplus Government Land - The Crichel Down Rules, which sets out the circumstances and basis on which surplus land that was compulsorily acquired is offered back to the former owner
- The Scottish Law Commission's review of compulsory purchase and land compensation law
More information information about appealing against Compulsory Purchase Orders is on the planning appeals page.
Article 4 Directions
An Article 4 Direction is made by a local planning authority. It is a statement made under the Town and Country Planning Act which restricts permitted development rights. These directions must usually be approved/confirmed by Scottish Ministers before coming into effect. Local residents and others likely to be affected by any proposed Direction will normally be consulted by the planning authority.
Within conservation areas planning permission will usually be required for specific types of development which would otherwise be permitted. For example:
- the replacement of doors and windows
- the erection of gates, fences, garages, sheds, porches or storage tanks
- the installation of satellite antennae
You can find more information in our 'Guide to Conservation Areas in Scotland'.
Stopping Up Orders
If there is a need to divert or 'stop up' a road, footpath or bridleway permanently to enable a development to be carried out, a 'Stopping Up Order' may be required. Stopping Up Orders are usually enforced by councils and should only be submitted to Scottish Ministers for action if the planning authority has been unable to resolve any objections they receive. Find out more in our process map and checklist for Stopping Up Orders.
Flood Protection Schemes
Where a local authority confirms a proposed Flood Protection Scheme under paragraph 4(1) or 9(1) of schedule 2 to the Flood Risk Management (Scotland) Act 2009, it must request that the Scottish Ministers direct that planning permission for any development described in the scheme is to be deemed to be granted. It is Scottish Ministers' role to grant, grant with conditions or refuse a Flood Protection Scheme (FPS).
We've produced a process map and checklist to help authorities when submitting Flood Protection scheme cases to Scottish Ministers. This clarifies the required information we need from you to make a decision.
Other Ministerial decisions
Other types of cases should be submitted to Scottish Ministers. These are submitted less frequently than those case types listed above:
- Modification Orders
- Revocation Orders
- Control of Advertisement
- Hazardous Substance Orders
- Completion Notices
- Discontinuance Notices
- Purchase Notices
Disclaimer on Ministerial Decisions
There may be other cases which are not included in this list or where the process is different or more complex. In these instances, our Planning Decisions team can provide advice.