Without a timely planning appeals process, the system doesn’t work. Local planning authorities know applicants will accept almost anything to avoid unacceptable delays, and the appeals themselves become bogged down as policies and circumstances invariably change during the procedure.
As at 13 June 2019, from “valid appeal” to decision, the average times were 27 weeks for appeals by written representations, 45 weeks for appeals by hearing, and 44 weeks for appeals by way of inquiry. Add to these times a period of weeks – sometimes months – for validation.
But the position is to change radically for the most significant appeals – those that proceed by way of inquiry.
What’s new?
Bridget Rosewell OBE carried out an independent review of planning appeal inquiries for the government and reported in December 2018. Her report contained a series of practical steps that could be taken by the Planning Inspectorate (PINS) to radically reduce the time that appeals take, without diluting the rigour of the inquiry process itself. PINS appears to have embraced the recommendations and is undertaking various changes, some with immediate effect.
Rosewell’s central recommendation was that PINS should adopt the targets set out (see box) for effective management of inquiry appeals, from receipt to decision. If these targets are met, I will have happy clients.
However, for a transitional period at least, there will be tensions. The imposition of inquiry dates, generally within 13 to 16 weeks of the “start date”, has predictably created the greatest fuss in relation to appeals which are already being piloted under the new process. PINS explains the position as follows in its 3 May 2019 update:
“To implement the recommendations of the Rosewell review we must move away from our ‘bespoke’ arrangements which gave specific provision for the parties to agree an inquiry date after an appeal had been submitted.
“Instead, now we are taking the lead in setting an inquiry date at the earliest opportunity, and this has led some parties to ask if there could be a degree of flexibility after the date had been fixed, or whether they could be given time to negotiate a new date.
“We appreciate that this new procedure, for affected appeals, is very different to the way inquiry appeals were managed previously, and that some of the recommendations may be challenging for everyone involved in the appeal. But it would be difficult to deny the significant advantages that an early inquiry date – and thus an early decision date – will bring to all concerned with the process.
“We will of course consider whether wholly exceptional circumstances are demonstrated by the parties to explain the unreasonableness of the inquiry date that has been set, but at the same time momentum must be maintained if the review is to pay the dividends it promises.”
Other changes
Speedier inquiry dates represent only one aspect of the changes. PINS’ Independent Review of Planning Appeal Inquiries – Action Plan sets out the other changes being introduced, many with immediate effect. For instance:
■ Appellants should now notify the local planning authority, copying in PINS, at least 10 days before submitting an appeal where they consider that the appeal should be dealt with by way of inquiry.
This is important as PINS then requests a view from the authority on whether an inquiry is appropriate within one day of receiving the appeal (in the current interim stage of bringing in the reforms this is within three days). In turn PINS can then issue the start date for the appeal, from which procedural deadlines flow, within five working days of receipt of the appeal – rather than the average of seven weeks taken in 2017/2018.
After six months of monitoring whether appellants are routinely giving 10 days’ notice, the government may introduce legislation to make it mandatory.
■ Early case management engagement from the inspector, within seven weeks of the start date, which will increasingly be by way of a conference call between the inspector and the parties (informed by a pre-conference note and agenda), followed by the inspector issuing “clear directions to the parties about the final stages of preparation and how evidence will be examined”, no later than eight weeks after the start date.
■ The inspector’s directions to include identifying the “key matters in contention, where cross-examination of witnesses is required“, and decisions as to whether a topic-by-topic approach to the calling of evidence is required. We can expect a range of issues to be dealt with by way of roundtable sessions, without cross-examination.
■ Encouragement for potential “rule 6” parties to be identified at an earlier stage.
■ Consultation is taking place to achieve improved and timely statements of common ground so that they can properly inform preparation of proofs of evidence.
■ Greater focus on deadlines. The Ministry of Housing, Communities and Local Government “will look at the policy for award of costs to see whether it can be extended to include a fine type of award, such as evidence not submitted on time“.
Only a small proportion of appeals proceed by way of inquiry, but they generally relate to the largest and most complex development proposals. If PINS can deliver on the targets that Rosewell has set, the overall system will be hugely improved – although appeals by way of written representations and informal hearing now need equivalent focus.
Rosewell’s recommended targets
- Inquiry appeals decided by the inspector: Receipt to decision – within 24 weeks – 90% of cases. Receipt to decision – within 26 weeks – remaining 10% of cases
- Inquiry appeals decided by the secretary of state: Receipt to submission of inspector’s report – within 30 weeks – 100% of cases
Simon Ricketts is a partner at Town Legal LLP
