To appeal, or not to appeal

So you have found a great site, secured financing and have come up with a brilliant design for your scheme. All is going well until you submit a planning application for the development and receive a refusal notice from the local planning authority (LPA). So what to do now? This scenario is well known to anyone who has been involved long enough with the planning system. Planning can be a murky process that can lead to the demise of many a scheme, despite the best intentions of the developer. The process can be frustrating at times to developers who seek to work with the LPA to obtain the grant of permission, but then find out that their development scheme is to be refused planning permission, too often for political rather than any material planning reasons. What are the options? Apart from simply giving up and walking away from a development scheme, there are two main options available to a developer in the face of a planning refusal, should they wish to continue to seek planning permission. First, revising the development scheme where possible to address the concerns expressed by the LPA and submitting a further planning application for determination. Secondly, preparing and submitting a planning appeal. Where there is a design issue or another issue of concern to the LPA that can be addressed by revising the development scheme, and it is possible to continue to work with the LPA in a positive manner to obtain planning permission, then the first option of submitting a revised planning application is the best option for the developer. This process will be potentially quicker than going down the appeal process and will also allow a developer to maintain a good working relationship with the LPA, which may, for example, be important should the developer have other development schemes in the LPA’s administrative area. However, there always remains the residual risk of a further refusal of the new application. Where planning permission has been refused simply for political reasons (for example LPA members have overturned a recommendation of approval by the LPA planning officer due to objections from local residents) and it would appear that there is little prospect of obtaining planning permission for a revised development scheme, then the second option of submitting a planning appeal may be more attractive to a developer. However, before proceeding to submit a planning appeal, a developer should be aware of the procedural aspects and consequences of an appeal. There is a role here for planning lawyers and other planning professionals to play in advising clients on how best to proceed. Period for submitting a planning appeal The refusal of an application for planning permission gives rise to a right of appeal under section 78 of the Town and Country Planning Act 1990. There is a period of six months to submit a planning appeal from the date of the refusal, which is the date of the refusal decision notice and not the LPA committee’s resolution to refuse. A lesser period of 12 weeks applies to appeals relating to householder planning applications – these applications relate to smaller projects such as dwelling extensions and loft conversions. Who determines the appeal? Planning appeals in England and Wales are dealt with by the Planning Inspectorate, which is an executive agency sponsored by the Department for Communities and Local Government and the Welsh government. An appeal is submitted to the inspectorate and an inspector is appointed to determine the appeal. Methods for determining an appeal There are three methods by which an appeal can be determined: written representations, an informal hearing, or a public inquiry. There can be strategic reasons for preferring a particular method that can have an important effect on the outcome. Each method also has its own advantages and disadvantages. Written representation appeals are determined based on the papers and are typically the quickest and cheapest method. Public inquiries are the longest and most expensive, while informal hearings represent the middle ground. If there are complex points that need to be discussed, then an informal hearing or public inquiry is usually considered more appropriate. Although informal hearings are sometimes favoured because they provide an informal setting for the developer to discuss issues with the inspector, they also present a platform for objectors to interrupt and seek to dominate proceedings, as they are also entitled to have their say. The method of appeal that is chosen can also determine the quality of the inspector who is appointed. An appellant will be able to make representations to the Planning Inspectorate and indicate their preference for a method of determination, as will the LPA. However, ultimately the decision rests with the Planning Inspectorate, which has regard to criteria that refer to factors such as the complexity of the issues in dispute, the need for the evidence to be tested through formal questioning by an advocate, and the level of local interest. How long does it take? Once an appeal has been submitted, the timing for determining an appeal is influenced not just by the procedure and timescales for the particular method chosen for determining the appeal, but also by the current capacity of the Planning Inspectorate (which receives around 20,000 appeals each year) to deal with appeals. The Planning Inspectorate has a website it updates monthly stating its current timescales for determining appeals by each method of determination. Costs Costs, clearly an important issue, typically include the fees of legal representatives, planning consultants, architects, and any other experts required to assist with the appeal. The experts required should be guided by the nature of the issues in dispute – which can be identified by reference to the LPA’s reasons for refusal. For example, if there is an issue in relation to noise impacts from the development, then a developer might consider retaining an acoustic consultant as an expert for the appeal. Although there is the opportunity to apply for an award of costs against the LPA as part of an appeal, the test for obtaining an award of costs is difficult to satisfy because the planning inspector must determine that the LPA has behaved unreasonably and that such behaviour has directly caused the developer to incur unnecessary or wasted expense in the appeal process. Developers should therefore not seek to wholly rely on a successful costs application when deciding whether they can afford the costs of an appeal. Key points ■ Options available to a developer in the face of a planning refusal include revising the development scheme and submitting a new planning application, or submitting a planning appeal ■ Section 78 of the Town and Country Planning Act 1990 provides a right to appeal against the refusal of an application for planning permission ■ Planning appeals are dealt with by the Planning Inspectorate ■ Considerations when submitting an appeal include cost and timing consequences, and the appropriate method for determination of the appeal Who needs to know ■ Developers of land ■ Land owners and purchasers of land where planning permission is to be sought for development ■ Professionals working with the planning system Why this matters The refusal of a planning application can leave a developer in a difficult situation and they therefore need to be aware of all of the options available to them. Whether to revise the scheme and submit a new planning application, or submit a planning appeal, is an important strategic decision that can have consequences in terms of timing, cost and whether the ultimate aim is achieved of delivering a successful development. When submitting an appeal, developers should seek the appropriate method for determining the appeal, as each has its own advantages and disadvantages, and can have a substantive effect on the likelihood of success on appeal. Practical tips for developers ■ Where possible, try to work with the LPA to achieve a positive outcome on planning and to preserve a working relationship ■ If there is merely a concern expressed by the LPA regarding a design issue or other issue that can be easily resolved, then consider revising the development scheme and submitting a new planning application ■ If there is only a political objection from the LPA and the planning merits of the development scheme stack up, then this is a good sign to consider an appeal ■ Don’t fall into the trap of continually revising a scheme and making successive planning applications over a long period of time if you know that you have a good case to make on appeal Chad Sutton is a solicitor and the managing director of specialist planning law firm Planning Clarity Legal Main image: PhotoAlto/REX/Shutterstock