Planning is never an exact science and many decisions can be based on the subjective nature of the particular project, local support for the project, and the stance the local authority take towards it, to name but three factors.
However when considering planning appeals, the ‘nature of the beast’ is something almost entirely different and moves into a more legalistic arena. Initially parties considering an appeal must be aware that time frames are vital, as appeals can only be made within a certain period following a refusal, and the applicable time frames vary depending on the type of application/appeal being made. These can be from 28 days to six months, depending on, for example, whether the appeal is following a refusal of permission, the type of initial application, and whether an enforcement notice has also been served. It is therefore vital to ensure you are well versed in the procedural matters before embarking on a planning appeal of any kind.
Appeals can take one of three forms; written representations, oral hearings or a formal inquiry. The Planning Inspectorate, or PINS, when deciding on the format of the appeal, will reserve the inquiry procedure for all but the most complex appeals. Each form of appeal has a strict set of procedural guidelines for the submission of documents, comments and responses from principal parties. It is vital that a full Statement of Case is provided within the relevant time frame, otherwise one risks that one’s submissions will not be considered at all. Oral hearings are usually more likely to happen when a point of law must be considered, or a particular element of the appeal will draw much debate, and often parties will have a solicitor or barrister deal with any legal elements whether the appeal is to be by writing or in person. A hearing takes the form of an inquisitorial discussion and parties are often represented, whereas an inquiry is a more formal situation where parties are usually represented by an advocate such as a planning consultant, solicitor, barrister or a combination depending on the needs of the case.
Further procedural differences occur in respect to the reason for an appeal. For example one can appeal the decision of a local authority if they refuse an application, grant permission but set objectionable conditions, serve an enforcement notice which is unjustified or where permission already exists, and for several other reasons. Each can have differences in the procedure adopted by PINS and the time frames for the submission of representations and evidence.
Once an appeal has been lodged, PINS will confirm the time frame for full statements of case, including evidence, to be submitted by the principal parties, one being the local authority, and also any comments from interested parties (if applicable). Statements of case must clearly set out all the matters in dispute, as only in very particular circumstances can new material be introduced during proceedings. Usually new material submitted after a deadline will be returned and will not be seen by an inspector.
If a third party supports a local authority decision, it can also be important to make representations, either as an interested party or, if their interest is sufficient, by obtaining ‘rule six status’ through an application to PINS. This enables a third party to the initial application to become a named party and present a full statement of case and also comment on the appellant’s case in due course, something not permitted for an ‘interested party’. This can be vital as a local authority’s representations may only include the grounds they consider applicable, whereas a party with ‘rule six status’, for example an interested owner, can add substantively to the case being made by a local authority.
Costs for preparing an appeal can be significant and parties should be aware that although parties are usually only expected to meet their own costs, an inspector can award the costs incurred by one party, in part or in full, to the other side where, for example, that party has acted unreasonably at a hearing or site visit by, say, delaying proceedings for no good reason. To protect against this, professional advice is vital to ensure that costs are not awarded for unnecessary actions during proceedings. Planning appeals can be stressful times for individuals and often the process is better dealt with by an experienced representative in any case, who is not emotionally attached to the property in question. The key is to take advice as soon as you become aware that an application has been refused, or that you may need to consider making an appeal. This will give you and your advisers time to decide on an appropriate course of action, without imposing unnecessary time pressures due to delays in seeking advice.
