One possible pitfall of the written representations appeal procedure illustrated
When a planning appeal is lodged under section 78 of the Town and Country Planning Act 1990 (“the Act”) section 319A(1) of the Act obliges the Secretary of State to determine whether the appeal is dealt with at a local inquiry, at a hearing or by means of written representations. The criteria applied by the Secretary of State are set out in Annexe C of PINS 01/2009, and the appellant and the local planning authority (“LPA”) are invited to identify which appeal procedure they consider to be most appropriate. Furthermore, section 319A(4) allows a determination to be varied by a subsequent determination at any time before the appeal is decided.
In recent times, almost 90% of planning appeals have been dealt with on the basis of written representations. The relevant criteria in that respect are (1) that the grounds of appeal and the issues raised can be clearly understood from the appeal documents plus a site inspection and/or (2) the inspector should not need to test the evidence by questioning or to clarify any other matters and/or (3) an EIA is either not required or the EIA is not in dispute. Nevertheless, even where the criteria are clearly met, the appellant may subsequently regret this procedure having been chosen.
In R (on the application of Garlick) v Secretary of State for Communities and Local Government [2013] EWHC 1126 (Admin) the LPA had refused to grant retrospective planning permission for independent residential use of an annex standing in the grounds of a bungalow. The reason for refusal referred solely to conflict with local plan policy BD6. The claimant, in his written representations, sought to demonstrate compliance with BD6. In dismissing the appeal, the inspector concluded that the relevant local plan policies were H4 and C3. These had played no part in the principal parties representations.
In support of his section 288 challenge, the claimant alleged manifest unfairness on the ground that he should have been given the opportunity to analyse and submit representations on the potential relevance of these two policies.
The court, in dismissing the claim, held on the facts that no such unfairness had occurred, in part because H4 had been raised by a third party objector before the LPA reached its decision and C3 had been referred to specifically in the officer’s report. However, while the judge referred to the claimant being largely to blame for his predicament, he nevertheless pointed out that the situation had no doubt been aggravated by use of the written representations procedure.
John Martin
