Planning matters

Following on from our blog celebrating 10 Years of Lichfields in Scotland, which focused on what we’ve learned and what’s next, this blog will discuss the proposed new fees for Local Review and Planning Appeals in Scotland.

 

The Scottish Government has made changes to Scotland’s planning fees which come into force today on 09 June 2025. This includes the introduction of fees for Planning Appeals and appeals to a Council’s Local Review Body for the first time anywhere in the United Kingdom. The introduction of this follows on from the Scottish Government’s ‘Investing in Planning’ consultation which concluded in September 2024.

The proposed regulations will introduce fees for Planning Appeals and appeals to a Council’s Local Review Body where a notice of appeal is given on or after 9 June 2025 relating to applications for;

There is a staggered approach to the fees payable in respect of an approval, consent or an agreement required by a permission in principle, depending on the date the planning permission in principle was granted. Where several approvals relating to permission in principle have been made such that the application fee is capped, any appeal that follows will also benefit from a capped fee.

Other types of planning-related appeal will also attract a fee. The fee required for these will be determined based on the category of development proposed (with these categories matching the categories of development which planning application fees are already subject to).

 

 

As noted in our May 2024 blog Investing in Planning: Resourcing Scotland’s Planning System, the Investing in Planning consultation asked for views on whether the appeal fee, if brought in, should be set at 10, 20, 30, or 40 percent of the application fee and provided a breakdown of potential cost (capped at £60,000) for certain planning applications.

The Scottish Government’s Impact Assessment[1] regarding the introduction of these fees notes that despite only 5 respondents to the consultation having preferred to introduce a 40% level of fees for Planning Appeals and Local Reviews, the Planning and Environmental Appeals Division has opted to pursue this fee level regardless as they considered this to most accurately reflect the cost of resourcing of Planning Appeals.

The maximum fee for Planning Appeals and Local Reviews will be £71,424 from 09 June 2025  for Planning Applications or AMSC Applications for housing developments, non-residential buildings, change of use of a building, plant and machinery on a large site, wind turbines, oil and gas drilling, waste, mineral extraction or storage.  Planning applications to which the fees for appeals for non-residential buildings, energy generation, fish and shellfish farming, use of and change of use of a building, will also be subject to a maximum fee of £71, 424.

For Planning Permission in Principle Applications for housing and non-residential buildings, the maximum fee will be £35,712. Other types of development including agricultural buildings, fish farming, hydro-electric and solar have a smaller maximum charge of £11,904. For householders the fee is £143 and this is also the fee for Section 42 applications.

No fees will be payable in a number of situations including those relating to developments:

• for the provision of means of access to or within the dwellinghouse for a disabled person or facilities designed to secure that person’s greater safety, health or comfort
   
• where permitted development right have been restricted
    
• for advertisement consents
   
• for permitted changes of use or uses within the same class
   
• for the winning and working of minerals where a subsisting permission exists

As with planning applications, Scottish Ministers and Local Authorities will have the discretion to waive or reduce fees for Planning Appeals and Local Reviews. A charter setting out the circumstances for such will be required and must include but not be limited to:

Appeals/Local Reviews sought by not-for-profit and social enterprises, and;

Appeals/Local Reviews for developments where it is likely to contribute to improving the health of residents of the area to which the appeal relates.

 

The Scottish Government’s Impact Assessment advises that the intention of introducing fees for Planning Appeals and appeals by Local Review is to fund the cost their operation and to ensure that this is not a burden to the tax payer. The Impact Assessment also emphasises that even taking into account the costs of appealing, fees for applications remain lower than equivalent fees in England.

Some argue that better resourcing Local Planning Authorities (LPAs) is a much wider and complex issue and that more priority instead should be given to increasing Planning Application fees and other mechanisms to support the Scottish planning system. Indeed, RTPI Scotland noted in response to the question as to whether the appeal fees should be set as a percentage of the original application fee: “Our members did not comment on this question, but we can see the logic in applying this approach. We believe this is a small component of a much broader resourcing question which should be addressed as part of a broader Resourcing Framework”.

The Impact Assessment itself acknowledges that the focus of most calls for additional resourcing is directed towards LPAs, but concludes that the Scottish Government’s Planning and Environmental Appeals Division (DPEA), who assess Planning Appeals, should be appropriately resourced through fee income as well. While fees for Local Reviews may provide some help to support LPAs in operating their planning departments, these fees are not ringfenced so may not directly contribute to resourcing planning activities.

 

Planning officers and elected members undoubtedly have a difficult task when determining planning applications. Determining an application requires the interpretation and application of a number of often complex, and often competing, policies which reflect national and local priorities. These must be considered alongside legal requirements, site-specific material considerations, the merits of planning conditions to control development and the need for legal agreements. This broad complexity and need for a weighing up of conflicting priorities can, at times, lead to errors in policy application, inconsistent decision making and occasionally fundamental errors in fact and law. Decisions however must be “well made” because a decision to refuse that is not “well made” can lead to an appeal with potential costs awarded against the planning authority where it is deemed to have acted unreasonably. If it is known that there is little chance of an applicant making an appeal because it would be cost prohibitive then perhaps planning decisions might not be “well made” or made on an unreasonable basis.

The ability to challenge planning decisions that an appellant does not consider have been “well made” to an independent third party not directly involved in the original decision, either by to the Council’s Local Review Body or the Scottish Government’s Planning and Environmental Appeals Division (DPEA), forms a vital aspect of Scotland’s Planning System. The importance of this is highlighted by the fact that 45% of all Appeals to the Scottish Government relation to planning permissions were successful in 2023/24. (Planning and Environmental Appeals Division (DPEA): annual review 2023 to 2024).

 

Being able to previously challenge a planning decision at appeal or Local Review without a fee has enabled an applicant of any scale and of any financial means to challenge decisions and ensure that decisions have been made robustly on a firm and evidential basis in reference to applicable national and local planning policies. This is fundamentally important in providing checks and balances within the Scottish planning system. While there have always been some costs in preparing a Planning Appeal or an appeal to a Council’s Local Review Body in terms of gathering and collating background evidence and preparing appeal statements to develop appeal arguments, the lack of a fee for simply lodging an appeal balanced this.

The introduction of fees, particularly significant fees relating to larger developments, will undoubtedly discourage some applicants from challenging decisions which may have been successful if pursued. This is particularly worrying in terms of housing development applications given the recent publication of new housing starts figures in Scotland that show these to be significantly down on past numbers and given the ongoing housing crisis. This was explored in our blog: Housing in Scotland: Is it time for cautious optimism?

The Scottish Government’s Impact Assessment highlights that, even accounting for the costs of appealing, fees for applications overall remain lower than equivalent fees in England. However, the significant scale of the new fees has the potential to constrict the financial viability of potential developments quite considerably – particularly where there is already limited financial headroom to begin with. This could have a chilling effect on development projects in Scotland and lead to acceptable developments not being consented and implemented. This in turn has the potential to adversely impact economic growth, particularly at a local level.

In terms of housing development, the maximum fee of £71,424 and this is reached by a development of just 555 new homes (see table 1).  An appeal for a development of just 49 new homes would be £11,206 and for 100 homes it would be £17,275.  At such a low level of development it is likely that the introduction of fees will act as barrier to pursuing an appeal or Local Review of a planning decision particularly for SME builders and applicants who do not have the means to absorb additional costs or where financial viability is already a challenge. This is particularly important considering Scotland’s Housing Emergency and the need to deliver more homes and also given that the regulations offer no mechanism for the refund of fees for where a Local Review or a Planning Appeal is successful[2] which could have potentially have acted as a counterbalance to the introduction of fees.

 

 

The Scottish Government position in its Impact Assessment notes that all applicants are affected in the same way, that appeal fees are based on a percentage of application fees and that expanded permitted development rights (PDRs) mean that appeals or local reviews may not be required. This however does not address the specific concerns of SME builders in my view, given that novel or innovative SME proposals are often the types of development which are resisted by LPAs and likely to benefit from PDRs.

The imposition of fees for Planning Appeals and Local Reviews also raises concerns regarding public trust in Scotland’s Planning System. It could be perceived that planning is only for those who can afford it and those with the deepest pockets have the greatest opportunity to get planning permission as they essentially get 2 bites of the cherry because they can pay. To implement fees to review planning decisions creates the impression that the planning system is a two-tier system where only those with the financial means have the ability to challenge decision makers.

The proposed fees for Planning Appeals and Local Reviews may be well intentioned and may well seek to provide additional funding for Scotland’s Planning System. However, the introduction of these seems fraught with potential unintended consequences.  It raises significant questions regarding the ability to challenge decision makers, on the impact on the development industry and whether developers will continue to want to invest in Scotland when there are not the checks and balances that the appeal system affords without additional cost.  It seems inevitable that this will have an impact on economic growth and investment.  Fundamentally though it has the potential to raise questions about the overall fairness and objectiveness of the Scottish Planning System.

Lichfields will continue to monitor the implementation and impact of fees for Planning Appeals and Local Reviews in Scotland to understand the impact of these moving forward and this will inform considerations for development proposals and inform our advice to our clients. It is also likely to be monitored by the Welsh Government and the UK Government, with regard to consideration whether appeal fees should apply there.