Certificate of lawfulness appeals

Last updated: 19 April 2018

You can apply to your local planning authority for a 'certificate of lawful use or development' (also known as a certificate of lawfulness) if you want to know whether:

  • an existing use of land or buildings is lawful (allowed)
  • works that have been carried out in the past were lawful
  • any works that may be planned would be lawful if they went ahead

The planning authority must decide within 2 months whether to send you a certificate of lawfulness.

Appealing

You have the right to appeal to Scottish Ministers if the planning authority:

  • refuses to send you a certificate of lawfulness
  • partly refuses to send you a certificate
  • doesn't give you a decision within two months

Further information is available in:

How to appeal

If the authority refused your application, you have 3 months to appeal starting from the date of its decision.

If the authority didn't give you a decision, you have 3 months to appeal starting from the date it had to decide by.

You can appeal online using the Online Appeal and Application System.

Alternatively, you can download a 'Certificate of lawful use or development appeals' form and submit it to Scottish Ministers by either email or post to the address on the form. You should also send a copy to the planning authority.

If you need help filling in the form, there are guidance notes in the supporting files on the gov.scot website.

Your appeal submission must include:

  • your original application
  • the local planning authority's decision notice
  • all documents, materials and evidence you wish to rely on
  • any letters or emails between you and the local planning authority
  • your appeal, if you're appealing by post

You'll also need to submit any other documents that directly support your appeal, like your appeal statement.

There's no cost for sending an appeal, but you'll be responsible for your own expenses.

The appeals process

Once you make an appeal the Scottish Government will choose a reporter to decide the appeal.

The planning authority must give its response to your appeal within 21 days. You'll then have a further 14 days to comment on any new information that was submitted by the authority.

The appeals process has a strict timetable with deadlines for each stage. If you send information after the deadline, it'll be sent back to you and may not be considered. Make sure everything's sent on time.

The reporter may need to get more information before they can reach a decision. If they do, they might ask for:

  • an inspection of the site
  • more written submissions
  • a hearing session (a structured meeting)
  • an inquiry session (a more formal event similar to a court case)

Inspection of the site

A site inspection allows a reporter to view the site and understand the issues that have been raised.

The reporter decides if a site inspection will be accompanied or unaccompanied. If it's accompanied, the planning authority and person making the appeal will be invited to attend. Anyone else, like those who have made representations about the appeal, will be told about the arrangements and invited to the site inspection.

The reporter can't discuss the merits of the appeal during the site inspection.

If the reporter chooses an unaccompanied visit, they will inspect the site alone.

If the reporter thinks a decision can be made based on submissions and a site inspection, they will aim to issue a decision within 12 weeks of receiving the appeal.

Further written submission

If the reporter needs further written submissions they will request it from the person they think will be most suitable to provide it. Other parties might be asked to comment on these further written submissions.

If this happens the reporter will aim to issue a decision within 20 weeks of receiving the appeal.

Hearing or public local inquiry

The reporter may decide that the information they need would be best presented at hearing or inquiry session.

The difference between a hearing sessions and an inquiry session is:

  • a hearing session is a structured discussion led by the reporter
  • an inquiry session is more like a court case - witnesses give evidence in front of the reporter

The reporter will decide if a hearing or inquiry session is required. If it is, they will aim to issue the decision on the appeal within 26 weeks (if it's a hearing) or 32 weeks (if it's an inquiry session).

Claiming expenses

You can submit a claim for expenses against a person or organisation if you think they have acted unreasonably and caused you unnecessary expense. This can be in the form of a written statement sent by email or letter.

After getting a claim of expenses, the person or organisation who the claim is made against (the 'opposing party') will be given 14 days to provide any comments.

The reporter will decide if they have acted unreasonably and will decide any costs that should be paid to cover the expenses.

The expenses claim is separate to the appeal. If you get awarded expenses this doesn't necessarily mean your appeal will be successful too.

If you want to withdraw your appeal

You must contact the Scottish Government if you want to withdraw your appeal.

You can do this any time before the reporter makes a decision.

You must contact the Scottish Government if you want to withdraw your appeal or put in a request to the reporter to apply a hold on the appeal (known as a SIST).

Email the Scottish Government at DPEA@gov.scot or write to them at:

Planning and Environmental Appeals Division
4 The Courtyard
Callendar Business Park
Falkirk
FK1 1XR

The decision

After taking all the evidence into account, the reporter will either:

  • support the authority's original decision
  • overturn the authority's decision
  • issue a decision (if the authority originally failed to give one)

You'll get a decision notice sent to you once the reporter has made a decision.

This will include the terms of the decision and the reasons for it.

How to challenge a reporter's decision

You can challenge the reporter's decision at the Court of Session.

You can't appeal the decision because you disagree with it, but you can challenge the decision if you think there was important evidence that the reporter misunderstood or didn't take into account.

If you want to challenge a reporter's decision:

  • the appeal to the Court of Session must be submitted within 42 days (6 weeks) of the date of the decision
  • you may have to cover the legal costs and any expenses should the challenge fail
  • anyone with sufficient interest can submit a challenge

If you're unsure about any part of this process, you should get advice from a lawyer.