The Appeal Process Ben Linscott Assistant Director, Planning The Planning Inspectorate 15 February 2011 Brighton & Hove Planning Forum

The Planning Inspectorate Planning, enforcement, environmental appeals: Inquiries Hearings Written Representations Decisions are made in the public interest Decisions are made in the public interest Decisions are based on the evidence provided Decisions are based on the evidence provided Principles of openness, fairness and impartiality

Our Performance measures Issue Decisions/Reports in accordance with Bespoke timetable in all cases Determine 80% of householder appeals within 8 weeks Process 80% of remaining s78 appeals end to end within 6 months (26 weeks)

Planning Act 2008 An appeals system that: - is more proportionate to the type and complexity of each appeal - has improved customer focus and efficiency at its core - is better resourced

Key measures Determining the procedure – Written Representations, Hearing or Inquiries Determining the procedure – Written Representations, Hearing or Inquiries Improved procedures/guidance on appeal handling Improved procedures/guidance on appeal handling New Costs Circular – extension of costs to Written Representations New Costs Circular – extension of costs to Written Representations

What has changed / is changing? Nature & content of documents Nature & content of documents Submission of evidence Submission of evidence Introducing new material Introducing new material Fixing of inquiry and hearing dates Fixing of inquiry and hearing dates Statements of common ground Statements of common ground Costs Costs Enforcement provisions Enforcement provisions

Nature and content of documents Appeals should be complete on submission – ie they include: Appeals should be complete on submission – ie they include: - the appeal form - all relevant plans and drawings that were the subject of the application - the relevant certificates - the relevant certificates - design and access statement where required At least 30% of all appeals are incomplete At least 30% of all appeals are incomplete

Submission of evidence Adhere to the timetables set in Rules Adhere to the timetables set in Rules “No surprises” – it is not about wrong footing the opposition “No surprises” – it is not about wrong footing the opposition Evidence should be focused, relevant, necessary and as concise as possible (aim for max 3000 words) – shared core documents. Evidence should be focused, relevant, necessary and as concise as possible (aim for max 3000 words) – shared core documents. PINS to develop Templates to improve the quality and reduce the quantity of evidence PINS to develop Templates to improve the quality and reduce the quantity of evidence Make proper use of the Costs regime to regulate behaviour Make proper use of the Costs regime to regulate behaviour

Introducing new material Appeal should be last resort Appeal should be last resort Minor changes or revised proposals – application of “Wheatcroft principles” Minor changes or revised proposals – application of “Wheatcroft principles” LPA has right to expect fully worked out proposals – not about developers ‘crystal ball gazing’ LPA has right to expect fully worked out proposals – not about developers ‘crystal ball gazing’ “De novo” role of SoS - “may deal with the application as if it had been made to him in the first instance.” S79(1)(b) 1990 Act “De novo” role of SoS - “may deal with the application as if it had been made to him in the first instance.” S79(1)(b) 1990 Act

Amendments to schemes (Wheatcroft judgement) “is the development so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation” “is the development so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation” Crucial to establish whether or not all relevant parties have had the opportunity to consider proposed amendments (inc statutory bodies) Crucial to establish whether or not all relevant parties have had the opportunity to consider proposed amendments (inc statutory bodies) Advise the Planning Inspectorate asap – including reasons Advise the Planning Inspectorate asap – including reasons Unreasonable behaviour? Costs Unreasonable behaviour? Costs

Fixing event dates 20 week target 20 week target Previously high rate of rejection (80%+) of first offer date Previously high rate of rejection (80%+) of first offer date Expectation that appellants are ready when they appeal & LPAs ready to defend decision Expectation that appellants are ready when they appeal & LPAs ready to defend decision Encourage early dialogue between main parties on availability within timetables Encourage early dialogue between main parties on availability within timetables Aim to offer 2 dates one of which will be fixed (or mutually agreed date) Aim to offer 2 dates one of which will be fixed (or mutually agreed date) Bespoke timetabling for more complex cases Bespoke timetabling for more complex cases

Determining the procedure Adopting the procedure appropriate to the case Adopting the procedure appropriate to the case Applying published criteria to identify appropriate procedure Applying published criteria to identify appropriate procedure Extending costs to Written Representation cases Extending costs to Written Representation cases Parties to suggest appropriate procedure against published criteria Parties to suggest appropriate procedure against published criteria Professional expertise informs administrative decisions – reasons given where disagreement Professional expertise informs administrative decisions – reasons given where disagreement Inspector discretion to change procedure Inspector discretion to change procedure Everybody’s interests to get correct procedure Everybody’s interests to get correct procedure

Determining the procedure

Challenges

Charging for appeals Appellant to pay – less burden placed on public purse (around 30% of cost) Appellant to pay – less burden placed on public purse (around 30% of cost) Based on appeal method and time taken Based on appeal method and time taken Proposal for Section 78 appeals - planning application submitted to LPA on or after 6 April HAS 1 October 2010 Proposal for Section 78 appeals - planning application submitted to LPA on or after 6 April HAS 1 October 2010 Formal consultation from DCLG due Spring Formal consultation from DCLG due Spring

Costs Extended to Written Representation cases Extended to Written Representation cases Importance of robust costs process to regulate system Importance of robust costs process to regulate system Important for parties to use the costs regime effectively Important for parties to use the costs regime effectively Costs do not follow outcome – basis is unreasonable behaviour leading to unnecessary expense Costs do not follow outcome – basis is unreasonable behaviour leading to unnecessary expense Revised Circular 3/2009 Revised Circular 3/2009

Guidance Procedural guidance: Planning appeals and called in planning applications Planning appeals and called in planning applications Enforcement appeals Enforcement appeals Good practice advice notes: Bespoke casework Bespoke casework Amendments Amendments New evidence/material New evidence/material

Good Practice Advice (GPA) 01/2009 Further advice on applying the criteria 01/2009 Further advice on applying the criteria 02/2009 Household Appeals Service 02/2009 Household Appeals Service 03/2009 Called in planning applications 03/2009 Called in planning applications 04/2009 Secretary of State recovered cases 04/2009 Secretary of State recovered cases 05/2009 Bespoke casework service 05/2009 Bespoke casework service 06/2009 Communicating electronically with PINS 06/2009 Communicating electronically with PINS 07/2009 Nature and content of appeal documents 07/2009 Nature and content of appeal documents 08/2009 Guidance on statements of common ground 08/2009 Guidance on statements of common ground 09/2009 Amendments to Schemes (Wheatcroft) 09/2009 Amendments to Schemes (Wheatcroft) 10/2009 Introducing new material at appeal 10/2009 Introducing new material at appeal 11/2009 Meeting the timetables 11/2009 Meeting the timetables 12/2009 Fixing dates 12/2009 Fixing dates 13/2009 Appeal Procedures – Events 13/2009 Appeal Procedures – Events 14/2009 Correction of errors 14/2009 Correction of errors 15/2009 Complaints and challenges 15/2009 Complaints and challengeshttp://

Good Practice Advice - I Two main documents Procedural Guidance: Planning appeals and called-in planning applications (PINS 02/2009); Procedural Guidance: Planning appeals and called-in planning applications (PINS 02/2009); Procedural Guidance: Enforcement appeals and determination of appeal procedure (PINS 02/2009) Procedural Guidance: Enforcement appeals and determination of appeal procedure (PINS 02/2009) It replaces DETR Circular 05/2000 It replaces DETR Circular 05/2000 Underpinned by a written ministerial statement Underpinned by a written ministerial statement

Good Practice Advice Notes - II Further advice on applying the criteria for determining the appeal method Further advice on applying the criteria for determining the appeal method Criteria for Determining the appeal method Criteria for Determining the appeal method Household Appeals Service Household Appeals Service Bespoke casework service Bespoke casework service Communicating electronically with PINS Communicating electronically with PINS Amendments to Schemes (Wheatcroft) Amendments to Schemes (Wheatcroft) Introducing new material at appeal Introducing new material at appeal

Core Principles - I Critical importance of regular and continuing dialogue between parties Critical importance of regular and continuing dialogue between parties Meet the statutory timetables to ensure no-one is disadvantaged Meet the statutory timetables to ensure no-one is disadvantaged Reasons for refusal are clear, comprehensible but precise – this includes member overturns Reasons for refusal are clear, comprehensible but precise – this includes member overturns Appellants – clear, precise and comprehensive grounds of appeal Appellants – clear, precise and comprehensive grounds of appeal

Core Principles II Appellants – do not introduce substantial changes which could lead to any party being prejudiced (Wheatcroft case) Appellants – do not introduce substantial changes which could lead to any party being prejudiced (Wheatcroft case) The appeal should not be used as a bargaining tactic, but as a last resort The appeal should not be used as a bargaining tactic, but as a last resort Only appeal when ready & committed Only appeal when ready & committed Costs regime to regulate the system Costs regime to regulate the system

Role of the Inspector Impartial judgement – wholly independent of parties Clear as to what evidence is required – early identification of issues Ensure that evidence to inquiry or examination is properly tested The Inspector is not there to negotiate The Inspector is not an expert in all matters – hears evidence Reasoned decision based on law, policy, evidenceReasoned decision based on law, policy, evidence

Role of the witness To assist the Inspector To assist the Inspector Present evidence and answer questions Present evidence and answer questions Failure to answer questions harms credibility Failure to answer questions harms credibility OK if outside your expertise or knowledge OK if outside your expertise or knowledge Expect robust questioning Expect robust questioning Inspector will normally intervene if advocate is harassing witness or being intimidating Inspector will normally intervene if advocate is harassing witness or being intimidating Inspector will also intervene if witness is being repetitive, or failing to answer question Inspector will also intervene if witness is being repetitive, or failing to answer question Inspector may ask questions to clarify a point Inspector may ask questions to clarify a point

The expert witness - duty Expert evidence is evidence that is given by a person who is qualified by training and experience in a particular subject or subjects to express an opinion. It should be endorsed as such. Expert evidence is evidence that is given by a person who is qualified by training and experience in a particular subject or subjects to express an opinion. It should be endorsed as such. It is the duty of an expert to help the Inspector on matters within his or her expertise. This duty overrides any obligation to the person from whom the expert has received instructions or by whom he or she is paid. It is the duty of an expert to help the Inspector on matters within his or her expertise. This duty overrides any obligation to the person from whom the expert has received instructions or by whom he or she is paid. The evidence should be accurate, concise and complete as to relevant fact within the expert’s knowledge and should represent his or her honest and objective opinion. The evidence should be accurate, concise and complete as to relevant fact within the expert’s knowledge and should represent his or her honest and objective opinion. Identify the main issues Identify the main issues Look at all evidence (for and against) objectively / in the round Look at all evidence (for and against) objectively / in the round

The Householder Appeals Service Making it easier, simpler and quicker Householder Appeals Service – Making it easier, simpler and quicker

Householder Appeals Service - Principles New way of working New way of working Simpler and saves all parties’ time and resources Simpler and saves all parties’ time and resources Builds on good practice of Local Planning Authorities (LPAs) Builds on good practice of Local Planning Authorities (LPAs) Uses proportionate process & procedure Uses proportionate process & procedure Maintains quality Maintains quality Householder Appeals Service – Making it easier, simpler and quicker

Franks Principles Openness Openness Fairness Fairness Impartiality Impartiality

Contact details Ben Linscott Ben Linscott Assistant Director – Planning Assistant Director – Planning Room 3/12, Temple Quay House, 2 The Square, Temple Quay, Bristol BS1 6PN Room 3/12, Temple Quay House, 2 The Square, Temple Quay, Bristol BS1 6PN