The Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009 as amended (“the Regulations”) govern the conduct of planning, listed building and conservation area appeals in England, where it has been decided that the appeal should proceed by way of written representations. Current guidance on the regulations was published by PINS on 31 July 2015. Crucially, regulation 15 of the Regulations provides that third-party representations must be made in writing and sent to the Secretary of State within five weeks of the starting date, i.e. the date of notification of receipt of the appeal. PINS, in its current guidance, emphasises the importance of that time limit, and warns that representations sent after its expiry will not normally be accepted, but will be returned without the inspector seeing them and taking them into account. In the Annexe to the guidance, it states that only “exceptionally” will late third-party representations be accepted.
In Forster v Secretary of State for Communities and Local Government [2015] EWHC 2367 (Admin), the claimant sought to quash the decision of an inspector on appeal granting planning permission for the demolition of a single storey building next to her public house, and the erection in its place of a three storey building with commercial uses on the ground floor and six flats on the floors above. The appeal proceeded by way of written representations, with a major issue being the possible impact of noise on the residents of those flats from the public house. Two noise assessment reports had been submitted by consultants on behalf of the appellant. (At the relevant time, the Regulations allowed six weeks for the submission of third party representations, and an earlier version of the guidance published by PINS was in force. Nothing, however, hangs on this.)
One of the claimant’s grounds of challenge was that the inspector’s decision as vitiated by procedural unfairness. More particularly, PINS had refused a request made by her, two weeks after the deadline for the submission of third party representations, for extra time to enable her to instruct a specialist to analyse the two noise assessment reports. She pleaded, inter alia, financial difficulties.
The court rejected that ground, stating that there was no unfairness in PINS adhering to its normal and well advertised procedure. The claimant had been made aware of the deadline at the outset. She had also been well aware that the noise assessment reports were being prepared. When an assertion of procedural unfairness in a planning appeal is made, the test is whether the person complaining had been aware of the case that he or she had to meet and had enjoyed “a reasonable opportunity” to put evidence before the decision maker in response to that case and to make any submissions relevant to it. In this case, that test had been satisfied.
John Martin is a planning law consulant
