Appeals and Statutory Review of Planning Decisions

46.7 The vast majority of planning appeals are determined by way of written representations,12although this may be inappropriate where the case involves disputed questions of fact which called for cross-examination in order for the dispute to be resolved.13The criteria for a determination by written representations are:14

(a) that the planning issues raised or, in an enforcement appeal, the grounds of appeal, can be clearly understood from the appeal documents and, if required (and a small number of appeals do not require a site visit and can be dealt with on the basis of the appeal documents), a site inspection; or

(b) the issues are not complex and the inspector is not likely to need to test the evidence by questioning or to clarify any other matters; or

(c) in an enforcement appeal, the alleged breach, and the requirements of the notice, are clear.

46.8 Fairness does not demand that there should be a general obligation upon an appellant in every case conducted by the written representations procedure, to disclose documents which contained facts which were adverse to his appeal. However, a duty to disclose material facts which were adverse to the appellant’s case would probably arise where the appellant had chosen to give voluntary disclosure of a document containing factual material or voluntary disclosure of information in non-documentary form, and his failure to disclose other documents or information would have the effect of misleading or even potentially misleading an inspector about the true nature of the undisclosed material.15

12See Town and Country Planning (Appeals) (Written Representations Procedure) (England)

Regulations 2009 (SI 2009/452), Pt 2, as amended by the Town and Country Planning (Appeals) (Written Representations Procedure and Advertisements) (England) (Amendment) Regulations 2013 (SI 2013/2114).

13Shaw v Secretary of State for the Environment and Wirral Metropolitan Borough Council [1998]

JPL 962. See also Hahajan v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 33 (Admin), where a decision by a planning inspector, dealing with an appeal by way of written representations, to accord written statements from the appellant limited weight on the basis that they were untested was flawed in view of his failure to provide reasons and his apparent disregard of the source, content, consistency and reliability of the written material. The court held that although a written representation procedure was not unfair in principle, in the circumstances of this case, fairness necessitated that there should have been a careful examination of the untested written material and a consideration of its relative merit rather than according it limited undifferentiated weight just because it was untested. The inspector should have given reasons for the conclusions reached in the light of the written material. There was uncertainty in the absence of proper reasons as to whether the inspector had carried out such an exercise but, if he had, the appellant had not been given adequate reasons as to why the written material was rejected. Planning Inspectorate Procedural Guide, Annex C contains the written representations procedure for an appeal against a refusal of a householder application, an application for advertisement consent and a ‘minor commercial’ (shop front) application, and Annexe D contains the procedure for other written representations’ appeals.

14See Planning Inspectorate Procedural Guide, Annexe K.

15Eley v Secretary of State for Communities and Local Government [2009] EWHC 660 (Admin);

Birds Eye Walls Ltd v Harrison [1985] ICR 278.