Planning appeals

Peter FordHead of Development Management

Planning Committee Training – 30th July 2015

What is a planning appeal?

If an applicant is unhappy with the decision made by the Planning Authority they can appeal to the Planning Inspectorate who will independently assess the decision

Normally applicants appeal against refusal, but they can appeal against a condition

Only applicant can make an appeal, not third parties

Planning application or enforcement action

Time limits to appeal

• Householder appeals 12 weeks• Other appeals 6 months• Enforcement notice 28 days

Written representations

Householder appeals serviceDesigned for Householder applications e.g. extensions, garages, minor alterations etc.Electronic fast track appeal. No opportunity for representations from others unless requested by Inspector, but interested persons can withdraw earlier commentsInspector visits site unaccompanied unless access issue. No discussion of merits

Written representations

Standard written representationsCouncil sends relevant background documents e.g. officer report, Planning Committee minute etc.Both sides can send further information if necessaryOther interested persons can send further representationsBoth sides can comment on new representationsInspector visits site and may ask appellant and Officers to be present. No discussion of merits

Hearings

Start with exchange of information as with written representations

A public hearing with the main parties Any interested person welcome to attend and

participate The Inspector identifies the issues for discussion

based on the evidence and representations made Less formal than a Public Inquiry, but face to face

discussion rather than exchange of statements No need for legal representation Normally no cross examination Site visit either for debate or factual information

Public inquiries

Interested parties may be formally represented by legal advocates

Detailed timetable set Statement of common ground prepared

so that inquiry can focus on main differences. This statement prepared jointly by Council and appellant

Statement of case by both parties

Statistics

In 2014/15 all the appeals that reached a conclusion were decided by Written Representations.

There was also a Public Inquiry which was still ongoing at the end of 2014/15.

Challenging a decision made by Inspectorate

Inspectorate has power to correct simple errors that would not change substance of decision

High Court challenge within 6 weeks

Complaint about Inspector

Role of Councillors – Ward Councillors

Can send representations as part of any type of appeal except Householder

Can attend hearings or public inquiries in support or against appeal

Free to raise any issues they feel appropriate without fear of costs

Role of Councillors – Planning Committee

Main role is support decision of Planning Committee when it is a Committee overturn

For delegated items can act as Ward Councillors if you wish

Beware of costs if justifying Planning Committee decision

Costs applications

Costs can be awarded for any type of appeal Separate from the decision Costs can be for full or partial Inspector does not fix the actual amount. To

be negotiated or through courts New legislation will mean costs can be

claimed against other statutory consultees e.g. Historic England, Environment Agency etc.

Costs – examples of unreasonable behaviour / procedural

Late submission or failure to provide statement of case

Introducing new ground of appeal, or issue reason for refusal

Introducing fresh and substantial evidence at a late stage

Withdrawal of appeal or a reason for refusal

Failure to attend (including site visit)

Costs – examples of unreasonable behaviour / procedural

Appellants at riskFailure to produce requested information at application stage, but does so at appeal (so refusal reason no longer sustained)Repeat appeal without changed circumstancesProposal clearly contrary to Development PlanIgnoring national policyRefusing to enter into a planning obligation or to provide one in appropriate termsUnreasonably introducing substantial new evidence

Costs – examples of unreasonable behaviour / substance of case

Council at risk Failure to produce evidence to substantiate

every reason for refusal Where there are vague, generalised or

inaccurate assertions about a proposal’s impact unsupported by any objective analysis

If an overturn, to show reasonable planning grounds and produce relevant evidence

Failure to give proper consideration to technical advice

Failure to demonstrate, on design issues, a clear understanding of context

Costs – examples of unreasonable behaviour / substance of case

Ignoring national policy e.g. NPPF Not following well established case law Refusing on basis of local objection only Failure to consider if conditions could make scheme

acceptable Refusing a renewal application where no new

circumstances Imposing a condition that does not comply with 6

tests Requiring a planning obligation that does not meet

CIL test Unreasonably refusing pre-app negotiations or to

provide reasonably requested information