by Bernard Webster
At the outset of a planning appeal the opportunity to indicate whether the written representations procedure is acceptable is offered to both the appellant and the local planning authority. The written procedure is followed only when both parties agree to it: if either party does not, the inquiry procedure is initiated. Where the inquiry route is followed it is now increasingly common for a hearing to be offered as an alternative to a full-scale inquiry. In practice, about 85% of appeals follow the written route and thus it should be considered as the norm. This fact might be taken as an indication of a high level of satisfaction with written representations as a means of dealing with straightforward appeals, but it might equally be interpreted as an indication of substantial dissatisfaction with the alternative.
Practitioners need to be able to advise clients as to the choice of procedure in terms of both the practical implications and the possible effects on the outcome. The aim of this article is to provide a more detailed examination of some aspects of the choices within the appeals system than that offered in the DOE’s Planning Appeals — A Guide. The principal issues are identified and explained from the appellant’s point of view, but the treatment is necessarily generalised and application of the principles to the unique circumstances of individual cases will always require careful consideration. It should be noted that the article relates only to appeals made under section 78 of the Town and Country Planning Act 1990 (equivalent to section 36 of the 1971 Act) and transferred for determination by inspectors. All figures quoted relate to such appeals in England and are drawn from the chief planning inspector’s reports, unless otherwise stated.
Time taken
The written procedure generally takes less time than an inquiry. The target timetable set in Circular 11/87(1) for a written representations appeal suggested that the former should take less than 12 weeks from the “start date” notified by the DOE. This consists of 52 days to the cut-off date for further comments, 14 days to the site visit and 14 days to the issue of the decision letter. The circular states that “these time-limits will be extended only in exceptional circumstance”.
Unfortunately, there is a substantial difference between theory and reality. In practice, local planning authorities (LPAs) are sometimes found to be unable or unwilling to meet the deadlines set. Whenever this happens the appellant’s representative can contact the case officer at the regional office of the DOE and ask that pressure be brought to bear on the LPA. However, this does not always produce the desired effect and at present delays extending to months, attributable to LPAs, are not unknown. The DOE itself is the principal cause of delays and is still having enormous difficulty in moving towards meeting the targets set for inspectors’ site visits and decisions because of staff shortages. This is exacerbated by the continuing preference of both parties for accompanied site visits when convenient dates have to be found.
The median time overall for a written representations appeal in 1988-89 was 23 weeks, slightly worse than the average of the four preceding years. The median time from cut-off date to site visit was eight weeks and from site visit to decision seven weeks. Information on recent experience from a sample of practitioners in the South of England suggest that there has been little change overall in the past year, but examples of very long delays were cited. The aim set out in Circular 18/86(2) was to reduce the median time to 11 weeks by the end of 1988. That has not been achieved.
The timetable for inquiry appeals set out in Circular 10/88(3) gives a target of 20 weeks from the “relevant date” to the opening of the inquiry. To this must be added the time taken by the inquiry itself and to the issue of the decision. It should be noted that the “relevant date” is not the same as the “start date” for the written procedure. The “relevant date” is the date on which the DOE issues a notice to the parties that an inquiry is to be held, and is not the date of receipt of the appeal forms as is the “start date”.
Again, practice bears little relation to theory and inquiry appeals are subject to considerable delays. The 1988 rules allow “further time for the taking of any step which is required or enabled to be taken . . .” and therefore the time-limits are not enforced. The median time taken for appeals determined by inspectors was 28 weeks to the opening of the inquiry and 37 weeks to the decision in 1988-89. There is little evidence that the new rules have significantly reduced it. It should also be noted that many inquiry appeals take very much longer and that the median time to the decision in Secretary of State cases was 62 weeks in 1988-89!
When the option of a hearing is offered, one of the principal advantages is that it will reduce the time taken. The target set by the code of practice is to offer the opportunity of a hearing, in suitable cases, within five working days of receiving notification from either party that they do not agree to written representations; to give seven days for acceptance; and to convene the hearing within 12 weeks. The median time to the decision was 28 weeks in 1988-89. Indeed, a number of the practitioners in the sample expressed the view that a hearing could prove quicker than written representations in some cases.
Direct costs
It is more difficult to make a direct comparison between the direct costs of a written representation as compared to an inquiry appeal. Straightforward cases are usually dealt with by the written procedure and more complex cases by inquiry. Not surprisingly, therefore, appellants’ costs at inquiry appeals are typically greater. However, the difference in practice is substantially greater than that which can be explained simply in terms of the complexity of the case, and the appellant must expect to incur a substantial financial penalty for using the inquiry system. It should also be remembered that the indirect costs of an inquiry appeal will be greater, and controlled by the difference in the time taken.
The direct costs of an appeal can be considered under three headings: agents’ fees; expert evidence; and legal costs. To these will be added the appeal fee, when Government proposals are implemented.
Agents’ fees are likely to vary according to the overall time taken and the extent to which the work can be fitted in with other activities. Clearly the fact that an inquiry appeal takes longer in itself justifies a higher fee. It is also necessary to produce comprehensive statements for an inquiry, with supporting material where necessary. The agent must also take time to attend the proceedings to present his evidence and to represent the appellant in cross-examination if counsel is not used. If counsel is used, he will have to be briefed both before and during the inquiry.
Expert evidence will sometimes be required to support a case dealt with by written representations, but much more substantial evidence is almost always needed for an inquiry. Such evidence will usually be required from a surveyor and/or a planner, in addition to the appellant’s agent. Many cases will also require a wide range of other experts to deal, for example, with highways, landscaping, architectural, conservation and ecological issues. Fees will have to be paid to suitably authoritative individuals or organisations to prepare appropriate material. At an inquiry both sides are likely to use experts (as are third parties in some cases) and they must be available to present and be cross-examined on their own evidence and to brief the representative or counsel on cross-examination of other witnesses. It is also important to appreciate that an expert witness at an inquiry puts his professional reputation at risk whenever he submits himself to cross-examination — and rightly expects to be rewarded accordingly.
Legal representation during an inquiry is not strictly necessary. However, the quasi-judicial style of procedure and the importance of cross-examination make it necessary to consider it whenever the issues are complex, contentious or of substantial interest to third parties. Rather as in a game of poker the use of a QC has the effect of raising the stakes: it is certainly an expensive option.
One of the principal purposes of a hearing is to reduce the direct costs. The guidelines issued indicate that it is not usual to be legally represented and that an inspector will abort a hearing if he feels that the legal representation of one party disadvantages the other. The appellant will normally use an agent or adviser, but this, too, is not essential. All evidence to be discussed must be circulated in advance and expert evidence will not normally be required.
Third party involvement
The alternative methods of appeal provide for significantly different degrees of third party involvement. Third parties play a much more substantial role in inquiry appeals and are therefore much more likely to be able to influence the outcome.
Under the written procedure, representations prior to the determination of the original application must be presented as part of the LPA statement of case for the appeal. Further representations made to the DOE with regard to the appeal are copied to the appellant. No other third party involvement is possible and though, in theory, large numbers of such representations might be made, in practice they almost never are. Equally, those who make such representations rarely present a fully documented and professionally presented case. Therefore, it is not often necessary to deal specifically with issues raised by third parties, and their effect can fairly be described as marginal.
If either side wishes to increase third party involvement because it is thought helpful to their case, they should opt for an inquiry. The current inquiry rules give wide discretion to the inspector to permit third party participation in the proceedings. In the great majority of cases third parties are likely to be anti-development, and their participation rarely helps the appellant. In cases where powerful environmental pressure groups are likely to become involved, the appellant must be prepared to counter professionally presented expert evidence and to contemplate a relatively protracted inquiry. The greatest risk of all is that some unexpected issue might be raised by a third party which is prejudicial to the appellant’s case. LPAs will opt for inquiries when they are confident of third party support and when they believe that the appellant may be forced to withdraw. However, there are some occasions when third parties will support the appellant and this can be very helpful in demonstrating that the LPA has failed properly to recognise the wider public interest.
Again, the option of a hearing involves a reduction in third party participation. The procedure will not be offered if there is evidence of considerable third party interest at the outset and the hearing will be aborted if there is evidence of such interest subsequently.
Awards of costs
The power to award costs created by the Housing and Planning Act 1986 is at present used only in relation to inquiry appeals, and costs cannot be awarded in relation to a hearing. Therefore the possibility of the appellant being awarded costs or of having costs awarded against him is a factor in the choice of procedure.
Circular 2/87(4) explains Government policy on the award of costs. Reasons for awards of costs against LPAs include unreasonable refusal of consent, disregard of circular advice on the use of conditions, unreasonable issue of an enforcement notice, and conduct prolonging or disrupting inquiry proceedings. Reasons for awards of costs against appellants include unreasonble appeals, failure to comply with normal procedural requirements and late withdrawal.
In 1988-89 applications for costs were made in a third of all inquiries and 38.6% were successful. The overwhelming majority of the applications were by appellants and 85% of awards were made to them.
The effect of these provisions is that if either party considers that they may be able to claim costs they should opt for the inquiry procedure and refuse the offer of a hearing if it is made. In the appellant’s case this may prompt the LPA to reconsider its position and invite the resubmission of the application so as to allow the appeal to be withdrawn. In the LPA’s case this may prompt the appellant to withdraw his appeal.
Outcome
In theory, the choice of procedure should have no effect on the outcome of an appeal. Statistics, however, suggest otherwise. The success rate for written representations appeals is significantly lower than for inquiries and hearings. In 1988-89 success rates were: written representations 36.6%; inquiries 44.8%; and hearings 42.4%. During the six years from 1983 to 1989 success rates were: written representations 35.1%; inquiries 46.9%; and hearings 43.1%.
These figures appear to contradict the view that written representations may help the appellant by reducing the influence of third parties. Most practitioners consider that the difference in the success rate is much less significant than the figures suggest, because among the written representations appeals there are a substantial number of ill-advised and poorly prepared cases. Nevertheless, it still appears that the ability to test the LPA case by questioning at a hearing or cross-examination at an inquiry is of advantage to the appellant.
Conclusion
It is difficult to give clear guidance to clients as to the implications of the choices of procedure within the appeals system. While it is generally true that, compared with an inquiry appeal, the written procedure is quicker, cheaper, less influenced by third parties and avoids the problem of cost awards, the extent and significance of these differences in any particular case is almost impossible to predict. Similarly, it is almost impossible to assess the potential benefits of an inquiry when it might increase the chances of a successful outcome.
The matter is further complicated by the increasingly common option of a hearing, which, according to some practitioners, can prove to be quicker and better for the appellant than written representations. The situation would be clearer were there greater consistency in the operation of appeals procedures by LPAs and the DOE, and the time targets set actually achieved in practice. Unfortunately, it seems that, for the foreseeable future, practitioners will continue to find themselves unable to offer the quality of initial advice that would protect them from criticism from clients frustrated by unexpected delays and escalating indirect and direct costs.
Notes
Department of the Environment Circulars referred to in the text:
(1) 11/87 Town and Country Planning (Appeals) (Written Representations Procedure) Regulations 1987.
(2) Planning Appeals decided by Written Representations.
(3) 10/88 Town and Country Planning (Inquiries Procedure) Rules 1988, Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) Rules 1988. Code of practice on preparing for major planning inquiries in England and Wales. Code of practice for bearings into planning appeals.
(4) 2/87 Awards of Costs Incurred in Planning and Compulsory Purchase Order Proceedings.
