Hannah Quarterman runs the rule over the new appeal targets – and aspirations – introduced for the Planning Inspectorate.
Few in the development industry would dispute that the time it takes to secure a decision at planning appeal is both too long and too uncertain. So ambitious performance measures, including determination targets, set by the housing minister at the end of January, should be welcome news. However, many are approaching them with some trepidation, even expressing open concern about proposed future time limits. Is there a risk that in the search for the holy grail of prompt decision-making we sacrifice something far greater?
It is generally agreed that appeal decisions could – and should – be reached more quickly. Indeed, the unpredictable and often slow nature of the process can undermine its utility within the wider development control regime. Instead of being a valuable tool in the arsenal of developers faced with sluggish decision-making or unreasonable refusals at local level, all too often appeals are viewed as a time-consuming, expensive and unpredictable risk. Consequently, instead of taking decisions out of the hands of the local planning authorities, applicants find themselves grinding out a decision at local level.
To address this, the Planning Inspectorate has, for many years, had targets for how long decisions should take. It is these targets which the housing minister has revised down. The Planning Inspectorate, like others, struggled to adapt at the beginning of the pandemic and, although it now benefits from newly bestowed procedural flexibility, and is working hard to make up lost ground, the average periods for the determination of appeals have increased recently.
The new ministerial performance measures are ambitious – all appeals determined by written representations, irrespective of whether they are appeals against a planning refusal or enforcement appeals, should be determined within 16-20 weeks. This compares with an average determination period of 32 weeks as of January 2022. For appeals involving an element of hearing or inquiry, the decision should be reached within 24-26 weeks, increasing to 30 weeks where the secretary of state makes the decision. The January 2022 figures for such appeals show average determination periods of 41 weeks.
If these targets can be met, then that would certainly help to speed up the planning process. However, the government has given no real indication as to how it considers this significant expedition should be achieved, beyond some high-level references to digitisation. It certainly is not the case that the Planning Inspectorate has been deliberately dragging its heels to date and, in light of significant challenges around resourcing, it is unclear where exactly these time savings will come from.
Already appellants have found that the increasingly target-driven approach of the Planning Inspectorate has made some appeals more difficult, for example with less flexibility around inquiry dates meaning that preferred witnesses or representatives are not available. Is there a risk that by further tightening the timescales the experience of those in the system worsens, as they are actually less able to properly engage?
Too much of a good thing?
While a quicker determination of appeals would be a good thing, the final part of the letter, setting out future aspirations for timescales, has left many wondering whether the need for speed could, in fact, go too far.
Not only is the ultimate proposed target of four to eight weeks – or faster – a far cry from where we are currently, it raises real questions about how this could be achieved while maintaining quality in both the process and the decision-making itself. Yes, processes could be sped up with better use of automation and technological advances, but the planning process is, and many would argue should remain, one in which there are many moving parts, which need careful co‑ordination. That takes time.
One of the key features of the appeal regime, especially in hearings and inquiries, is that all those interested in the outcome are able to review the relevant information and have their say. How, if the process is to be done and dusted in under two months, will the Planning Inspectorate possibly be able to accommodate the availability of all those wishing to participate, let alone allow them the time necessary to digest and engage with the information provided?
Truncated process
Further, in many cases, appeals involve complex technical matters, where experts not only need to prepare their evidence, but are currently encouraged to engage with their counterparts, to ensure that agreement can be reached on as many issues as possible. A truncated process reduces the scope for this collaboration, in turn increasing the prospects of inspectors being required to make technical judgments themselves.
Clearly there are efficiencies which can be made to the system but, to ensure thorough examination of often complex issues, and appropriate participation by all interested parties, there is a minimum period for a proper appeal process – which seems likely to be greater than eight weeks. Does this mean that the process will become even more front-loaded, with greater expectations, or requirements, of what must have been achieved before an appeal can be brought? If the goal is to ensure planning decisions are achieved more quickly, restructuring the process to reduce what forms part of the formal appeal is a hollow victory if the overall timescales from submission of the application to determination of the appeal do not also shift.
The headline targets are noteworthy and ambitious. Based on what we have seen so far, however, much more needs to be done to demonstrate what measures will help deliver these targets and to ensure that we see genuinely quicker, high-quality planning decisions.
Hannah Quarterman is a partner and head of planning at Hogan Lovells International LLP
