Appeals and Statutory Review of Planning Decisions

AuthorWilliam Webster/Robert Weatherley
Pages471-484
Chapter 46


Appeals and Statutory Review of Planning Decisions1

RIGHT OF APPEAL AGAINST LOCAL AUTHORITY DECISIONS ON PLANNING MATTERS

46.1 If an application for planning permission is refused by the LPA, or if it is granted with conditions which the applicant considers unacceptable (including where planning permission has been applied for to develop land without compliance with conditions previously imposed),2an appeal can be made3to the Secretary of State against the decision or the conditions. An appeal also lies to the Secretary of State in the case of a refusal or conditional grant of any consent, agreement or approval required by a planning condition or in relation to any approval of the LPA required under a development order.4It may be, of course, that re-engagement with the LPA with a view to making the proposal more acceptable, so that a revised application could then be submitted, would be a more pragmatic way of dealing with matters.

46.2 An appeal may also be made if the LPA fails to issue a decision within the prescribed period: the deadline is 8 weeks for non-major applications, 13 weeks for major applications and 16 weeks in the case of applications subject to an EIA (albeit subject to written agreement to extend the decision-making period).

TIME LIMIT FOR SUBMITTING AN APPEAL

46.3 Most planning appeals must be received within 6 months of the date of the decision notice or, in the case of a non-determination appeal, on the expiry of the

1Note the guidance to be found in the revised versions of the four procedural guides on: (a) planning appeals; (b) called-in planning applications; (c) enforcement notice appeals; and (d) lawful development certificate appeals, published by the Planning Inspectorate on 23 March 2016.

2TCPA 1990, s 73.

3The appellant must be the applicant for permission (or his successor in title) who may not even be the owner of the land who has no independent right of appeal if he was not the applicant. The right of appeal under TCPA 1990, s 78 is disapplied in the case of determinations by an LPA where it proposes to develop the land itself or jointly with a third party in the case of land in which it has an interest (Town and Country Planning General Regulations 1992 (SI 1992/1492), regs 3 and 5(1)(a)).

4TCPA 1990, s 78(1) and (2).

472 Restrictions on the Use of Land

prescribed or agreed period.5Where an appeal relates to an application for householder planning consent, and is to be determined via the fast track Householder Appeals Service, there are only 12 weeks to make the appeal.6There are different deadlines within which to submit an appeal under the Commercial Appeals Service.7

POWERS OF THE SECRETARY OF STATE ON APPEAL

46.4 The Secretary of State may allow or dismiss the appeal, or reverse or vary any part of the decision of the LPA, whether or not the appeal relates to that part, and he may deal with the application as if it had been made to him in the first instance.8

46.5 In terms of appeal procedure and guidance, reference should be made to the Planning Inspectorate Procedural Guide in relation to planning appeals issued on 23 March 2016. The guide applies to planning appeals, householder development appeals, minor commercial appeals, listed building appeals, advertisement appeals and discontinuance notice appeals. Reference should also be made to the PPG in the section ‘Appeals’.9

WHO DECIDES THE APPEAL AND BY WHAT PROCEDURE?

46.6 Nearly all appeals are decided by inspectors of the Planning Inspectorate. Only a very small percentage are decided by the Secretary of State, and these tend to be the very large or contentious proposed schemes (these are known as ‘recovered appeals’).10Recovered appeals can occur at any stage of the appeal, even after the site visit, a hearing or an inquiry has taken place. In recovered cases, a report will be passed to the Secretary of State to make the final decision, taking into account the inspector’s recommendation.11

5DMPO, art 37, and the Town and Country Planning (Development Management Procedure)

(Wales) Order 2012 (SI 2012/801). The notice of appeal is on the prescribed form obtained from the Secretary of State and is effective once served on the Secretary of State (along with copies of the necessary documentation mentioned in DMPO, art 37) and should be lodged with the First Secretary of State at Temple Quay House, 2 The Square, Temple Quay, Bristol, BS1 6PN (or in Wales at The National Assembly for Wales, Cathays Park, Cardiff, CF1 3NQ). Copies of the notice and accompanying documents should also be served on the LPA.

6See Planning Inspectorate Procedural Guide, Annex C.

7Appeals related to shop fronts must be submitted within 12 weeks. Advertisement consent appeals must be submitted within 8 weeks.

8TCPA 1990, s 79(1).

9PPG, reference 16-001-20140306 to 16-064-20140306.

10See Encyclopaedia of Planning Law and Practice (Sweet & Maxwell, looseleaf) (Encyclopaedia of Planning) at P79.40-54 for Secretary of State’s cases (post-inquiry procedures).

11See PPG, reference 16-005-20150917.

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.

474 Restrictions on the Use of Land

46.9 In some cases, something less than a full-blown public inquiry may be warranted. In these cases, the appeal may be determined by way of an informal hearing,16the criteria for which will be as follows:

(a) if the inspector is likely to need to test the evidence by questioning or to clarify matters (as for instance where detailed evidence on housing land supply needs to be tested by questioning); or

(b) the status or personal circumstances of the appellant are at issue (as for instance whether in traveller appeals the definition in Annex 1 of the DCLG’s planning policy for traveller sites is met, or in agricultural dwelling appeals); or

(c) there is no need for evidence to be tested through formal questioning by an advocate or given on oath; or

(d) the case has generated a level of local interest such as to warrant a hearing; or

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