Introduction
At Planning Clarity Legal we have a vast amount of experience acting on behalf of developer clients on planning appeals and have achieved some great successes at appeal over the past few years. Therefore, we thought we would use this blogpost as an opportunity to answer some of the Frequently Asked Questions (FAQs) we typically receive from developer clients about the planning appeal process when they first approach us to act on their behalf.
Is an appeal the only option available to a developer when a planning application is refused?
No, there are two main options available to a developer in the face of a planning refusal by the Local Planning Authority (LPA) should they wish to continue to seek planning permission for the development. These are:
1) revising the development scheme where possible to address the concerns expressed by the LPA and submitting a further planning application for determination by the LPA; or
2) preparing and submitting a planning appeal.
Where there is a design issue or another issue of concern to the LPA which 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 having to go 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 or if there are planning conditions and planning obligations under section 106 agreements to be discharged in the future which will require a developer to continue to deal with the LPA. However, on the downside submitting a revised planning application still carries the risk of a further planning refusal.
Where planning permission has been refused on the basis of weak planning grounds or 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. A planning lawyer can advise you on whether this is the best option in the circumstances.
What is the time period for submitting a planning appeal?
There is a period of 6 months to submit a planning appeal from the date of the refusal of the planning application, which importantly 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 a planning appeal?
Planning appeals in England are dealt with by the Planning Inspectorate, which is an executive agency sponsored by the Department for Levelling Up, Housing and Communities. An appeal is submitted to the Planning Inspectorate which will be assigned a case officer and an Inspector is appointed to determine the appeal.
What are the methods for determining an appeal?
There are three methods by which an appeal can be determined:
1) written representations;
2) and informal hearing; or
3) a public inquiry.
There can be strategic reasons for preferring a particular method for determining an appeal which can have an important effect on the outcome of the appeal and each method also has its own advantages and disadvantages. Written representations appeals are determined based on the papers and are typically the quickest and cheapest method of appeal. Public inquiries are the longest and most expensive, while informal hearings represent the middle ground. If there are complex points which need to be discussed, then an informal hearing or public inquiry are 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, one risk associated with this method is that it can also provide a greater platform for objectors to interrupt and seek to dominate proceedings as they are also entitled to have their say and this should be considered where a development receives a large number of objections. The method of appeal which is chosen can also in some cases determine the quality of the Inspector who is appointed to the appeal.
An appellant will be able to make representations to the Planning Inspectorate and indicate their preference for a particular method of determination, as will the LPA, however ultimately the decision rests with the Planning Inspectorate which has regard to specific criteria which refers 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 to determine an appeal?
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 to deal with appeals. The Planning Inspectorate has a website (https://www.gov.uk/guidance/appeals-average-timescales-for-arranging-inquiries-and-hearings) which it updates monthly stating its timescales for determining appeals by each method of determination.
What is the cost of an appeal?
The cost of an appeal is clearly an important issue for a developer to consider before proceeding to submit an appeal. Costs typically include the fees of legal representatives, planning consultants, architects, and any other experts required to assist with the appeal. The experts required for an appeal 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 the appeal process, the test for obtaining an award of costs is difficult to satisfy as the Inspector must determine that the LPA has behaved unreasonably and 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 proceeding with an appeal.
How can we assist a developer with an appeal?
Planning Clarity Legal can act on behalf of a developer to prepare and submit the planning appeal on their behalf, whether this be an appeal determined by written representations, informal hearing or public inquiry. We can also liaise with the Planning Inspectorate and the LPA and prepare the requisite appeal documentation throughout the appeal process until the appeal is determined, including any Section 106 legal agreement which is required (which only a lawyer is qualified to prepare). In some cases where an appeal has already progressed, our firm is brought in solely to deal with the preparation of the Section 106 legal agreement and we are happy to liaise with the developer’s existing appeal team to deal with this agreement.
If a public inquiry or informal hearing is required to determine the appeal then we can retain on your behalf a planning barrister to carry out the advocacy. We can also recommend any other experts required for the appeal and have a network of professional contacts in this respect.
If you have received a refusal notice for your planning application and are considering whether an appeal is appropriate, then please approach us in the first instance and we can provide you with our initial comments on whether an appeal is suitable and the appropriate method for determining the appeal. We can also advise you on the procedural aspects and costs associated with the appeal so that you can then make an informed decision whether or not to proceed with the appeal.
Note: all comments and views expressed in this blog are merely opinions and provided for information purposes only and do not constitute legal advice which can be relied upon. Should you require legal advice on a matter then please contact us
