Steeles Law Head of Planning & Environment David Merson looks at the Coalition’s proposals to revise the planning appeal process to: “…make the appeals process faster and more transparent, improve consistency and increase certainty of decision timetables, reducing wasted time and expense for all parties and lead to quicker development where the appeal is upheld”.
The CLG ‘Technical Review of Planning Appeal Procedures’ Consultation document contemplates a number of possible changes to the appeals regime.
It is suggested that the process will benefit from:
1. Ensuring earlier submission and notification of appeal statements to allow early and full disclosure of issues and evidence by amending the rules and regulations to require the appellant to submit their full appeal statement as part of their grounds of appeal on submission of the appeal, and to ensure local planning authorities notify interested parties within one week rather than the current timetable of 2 weeks after they have received notice of a valid appeal.
This would happen at the time the authority submits its questionnaire form to the Planning Inspectorate, a week earlier than is currently the case. Interested parties will then see the key issues at the time that they have the opportunity to comment which will encourage earlier engagement on the key issues. Only in respect of inquiries will the submission of more detail, in the form of proofs of evidence, be acceptable.
In addition it is proposed that parties will have to provide information on the appeal forms of the number of witnesses and the length of time they need to give their evidence. Model appeal forms questionnaires will be revised accordingly and Inspectors will be enabled to hold parties to their forecast time estimates unless the party can demonstrate that there has been a clear change in circumstances which warrant a change. If a party extends their evidence beyond their submitted estimate without adequate reasons then the Inspector could challenge them on their timetable and whether anything new is going to be said. If the party continues beyond the timetable following such challenge other parties could apply for costs if the extended period did not result in evidence being presented that was not previously covered in the written or oral evidence to that point.
2. Securing early agreement on ‘Common Grounds’ upfront to facilitate sharing of documents, narrow the areas of dispute, and focus the parties’ effort on the main issues by bringing discussion on common ground issues to the forward in the timetable. This is to be achieved by amending the Development Management Procedure Order and the Inquiry Rules to require the appellant to table a first draft of a document containing the factual background to the case at the time they make the appeal. The local planning authority would then have until week 5 to negotiate with the appellant a final version of the agreed matters which should then require no or little consideration at the event. If the local planning authority does not signal to the appellant that they disagree with the appellant’s facts then they will be considered to be uncontested by the local planning authority.
3. Ensuring parties are prepared to present their case earlier within tighter Planning Inspectorate timetabling guidelines so that hearings and inquiries are started sooner by shortening the time between the start of the appeal and the appeal event and amending the relevant secondary legislation so that an inquiry determined by an inspector should be held not later than 16 weeks (and for hearing later than 10 weeks) after the starting date unless such a date is considered impracticable.
4. Introducing an expedited ‘Commercial Appeals Service’ (CAS) along the lines of the Householder Appeals Service to deal with appeals on some minor commercial planning applications where the planning issues raised are straight forward, the appeal can be dealt with without the need for further representations, and there is not a significant level of broader community interest.
It is also suggested that there is merit in applying this more transparent legislative process to Advertisement Consent appeals to allow for more consistent administration of the process by the Planning Inspectorate.
The CAS would be an expedited form of the written representations procedure to offer a faster commercial planning appeal procedure for less complex appeals, enabling the Inspectorate to make a decision in 8 weeks. The time period for lodging such an appeal would be reduced to only 12 weeks rather than the usual 6 months. The process would require early identification of such applications so that interested parties could be notified at the application stage that there would not be a further opportunity to make comment should the application go via the expedited appeal route. The Planning Inspectorate would retain the power to determine the appropriate appeal procedure where an individual case was not appropriate for an expedited process.
There would be an element of choice for qualifying commercial appeals and appeals determined by the CAS would be based on the appellant’s brief appeal statement plus the original planning application documentation and any comments made at the application stage (including those of interested parties). It is anticipated that such appeals would include Advertisement consent appeals, Appeals on changes to shop fronts, and Change of use and other minor development that relate to straight forward proposals of under 1000m2.
It is also proposed to improve the certainty and consistency of the process in so far as it relates to a number of other areas such as enforcement, and Listed Building consents etc. The existing rules and regulations will therefore be amended so that the Planning Inspectorate is allowed to determine the procedure (in consultation with appellants and local planning authorities) for other types of appeals, such as Advertisement consent, Listed Building and Lawful Development Certificate appeals. It is also suggested that the rules governing Enforcement appeals could be amended to bring Enforcement hearings and inquiries into line with the procedural changes made in 2009 to planning appeals.
The Coalition will also consider whether its other proposals referred to above should be applied more widely to other appeal proceedings, in particular enforcement appeals. Finally, the rules and regulations that set out the appeals procedures will be brought together into a simple single merged statutory instrument.
5. The issuing of a single streamlined guide to planning appeal procedures setting out national criteria and guidance on appeals and setting expectations for appeal party documentation and evidence together with clarity on any grounds for a submission for an award of costs.
6. Moving to a more transparent online appeals model to fit in with the Coalition’s broader ‘Digital by Default’ agenda to assist the Planning Inspectorate to streamline some of its business processes will mean that appellants will need to be further encouraged to submit appeals on-line.
7. Revising and clarifying the determination criteria for determining the correct procedure for planning appeals and Enforcement appeals so that it is clearly understood what kind of reasons indicate that any particular appeal procedure be followed, thereby reducing the likelihood of challenge and subsequent delay.
In respect of the existing guidance on contentious proposals that have generated significant local interest, the amendment is to make it clear that a hearing or inquiry will be arranged where the local planning authority is aware that there is significant local interest and that: (i) it demonstrably requires that an Inspector hears evidence and / or asks questions of appeal parties, and (ii) where the local authority considers that (and can explain why) there is good reason to expect that it is necessary for the significant public representation to give evidence at an oral event.
8. More bespoke timetables for inquiries will need to be agreed and it is proposed that this process is applied to inquiries forecast to last 3 days or more.
The closing date for responses is 13 December 2012.
Full details of the proposals and consultation can be found here.
If you require further information or advice on any issues raised in this article or any other planning & environmental matter please contact David Merson on 020 7421 1720 or [email protected]
