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 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
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Determining the procedure – Written
Representations, Hearing or Inquiries
Improved procedures/guidance on appeal
handling
New Costs Circular – extension of costs to
Written Representations
What has changed / is changing?
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Nature & content of documents
Submission of evidence
Introducing new material
Fixing of inquiry and hearing dates
Statements of common ground
Costs
Enforcement provisions
Nature and content of documents
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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
- design and access statement
where required
At least 30% of all appeals are
incomplete
Submission of evidence
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Adhere to the timetables set in Rules
“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.
PINS to develop Templates to improve the
quality and reduce the quantity of evidence
Make proper use of the Costs regime to regulate
behaviour
Introducing new material
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Appeal should be last resort
Minor changes or revised proposals – application
of “Wheatcroft principles”
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
Amendments to schemes
(Wheatcroft judgement)
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“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)
Advise the Planning Inspectorate asap –
including reasons
Unreasonable behaviour? Costs
Fixing event dates
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20 week target
Previously high rate of rejection (80%+) of first
offer date
Expectation that appellants are ready when they
appeal & LPAs ready to defend decision
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)
Bespoke timetabling for more complex cases
Determining the procedure
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Adopting the procedure appropriate to the case
Applying published criteria to identify
appropriate procedure
Extending costs to Written Representation cases
Parties to suggest appropriate procedure against
published criteria
Professional expertise informs administrative
decisions – reasons given where disagreement
Inspector discretion to change procedure
Everybody’s interests to get correct procedure
Determining the procedure
Planning: Determination of procedure by procedure type 9 April 2010 - 1 April 2011
120
110
100
90
80
72
70
58
60
58
56
50
45
44
40
69
58
42
32
30
14
20
10
0
8
2
0
01
12
4
1
24
Apr
May
WR to Hearing
4
10
0
1
422
0
0
Jun
Jul
WR to Inquiry
334
0
11
4
0
0
Aug
Sep
Hearing to WR
42
11
3
02
6
0
3
02 10
Oct
Nov
Hearing to Inquiry
7
01
3
6
1
00
Dec
Jan
Inquiry to WR
10
001000 000
Feb
Mar
Inquiry to Hearing
Challenges
Planning: Determination of procedure and Challenges 9 April 2010 - end Jan 2011
1726
1750
125
1718
1500
1335
1547
1447
1400
1357
1309
1422
1254
100
82
Intake .
81
78
1000
69
64
59
55
750
75
68
49
50
500 34
250
6
8
12
6
7
13
10
5
7
2
11
4 5 3
8
5 4 4
5 4
Sep
Oct
2
5
3
0
Apr
May
Jun
Changed from appellant choice
Jul
Aug
Challenged by appellant
6
0
Nov
Challenged by LPA
25
16377
12
Dec
9
7
4
Jan
2
0 0 1 0 0 0 0
Feb
PINS agreed with challenge
Changes and challenges
.
1250
0
0
Mar
Intake
Charging for appeals
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Appellant to pay – less burden placed on
public purse (around 30% of cost)
Based on appeal method and time taken
Proposal for Section 78 appeals - planning
application submitted to LPA on or after 6
April 2010 - HAS 1 October 2010
Formal consultation from DCLG due Spring
Costs
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Extended to Written Representation cases
Importance of robust costs process to regulate
system
Important for parties to use the costs regime
effectively
Costs do not follow outcome – basis is
unreasonable behaviour leading to unnecessary
expense
Revised Circular 3/2009
Guidance
Procedural guidance:
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Planning appeals and
called in planning
applications
Enforcement appeals
Good practice advice notes:
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Bespoke casework
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Amendments
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New evidence/material
www.planningportal.gov.uk
Good Practice Advice (GPA)
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01/2009 Further advice on applying the criteria
02/2009 Household Appeals Service
03/2009 Called in planning applications
04/2009 Secretary of State recovered cases
05/2009 Bespoke casework service
06/2009 Communicating electronically with PINS
07/2009 Nature and content of appeal documents
08/2009 Guidance on statements of common ground
09/2009 Amendments to Schemes (Wheatcroft)
10/2009 Introducing new material at appeal
11/2009 Meeting the timetables
12/2009 Fixing dates
13/2009 Appeal Procedures – Events
14/2009 Correction of errors
15/2009 Complaints and challenges
http://www.planningportal.gov.uk/england/public/planning/appeals/guidance
Good Practice Advice - I
Two main documents
 Procedural Guidance: Planning appeals and
called-in planning applications (PINS 02/2009);
 Procedural Guidance: Enforcement appeals and
determination of appeal procedure (PINS
02/2009)
 It replaces DETR Circular 05/2000
 Underpinned by a written ministerial statement
Good Practice Advice Notes - II
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Further advice on applying the criteria for
determining the appeal method
Criteria for Determining the appeal
method
Household Appeals Service
Bespoke casework service
Communicating electronically with PINS
Amendments to Schemes (Wheatcroft)
Introducing new material at appeal
Core Principles - I
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Critical importance of regular and
continuing dialogue between parties
Meet the statutory timetables to ensure
no-one is disadvantaged
Reasons for refusal are clear,
comprehensible but precise – this includes
member overturns
Appellants – clear, precise and
comprehensive grounds of appeal
Core Principles II
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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
Only appeal when ready & committed
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, evidence
Role of the witness
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To assist the Inspector
Present evidence and answer questions
Failure to answer questions harms credibility
OK if outside your expertise or knowledge
Expect robust questioning
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 may ask questions to clarify a point
The expert witness - duty
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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.
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.
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Identify the main issues
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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
Simpler
and saves all parties’ time and
resources
Builds
on good practice of Local Planning
Authorities (LPAs)
Uses
proportionate process & procedure
Maintains
quality
Householder Appeals Service – Making it easier, simpler and quicker
Franks Principles
 Openness
 Fairness
 Impartiality
Contact details
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Ben Linscott
Assistant Director – Planning
Room 3/12, Temple Quay House, 2 The
Square, Temple Quay, Bristol BS1 6PN
0117 372 8955
ben.linscott.p4@pins.gsi.gov.uk