by Bernard Webster
It is clear from the comments of the Chief Planning Inspector that many practitioners dealing with planning appeals are not providing the best possible service to clients because of weaknesses in the presentation and content of their written representations appeals statements.
The aim of this article is to identify some ways in which statements might be improved so as to increase the chances of success. The basic requirements are that statements be clearly structured, concise, relevant, expressed in a dispassionate style and written from a planning point of view. However, there are several aspects that merit closer examination, arising partly from recent procedural changes and partly from inappropriate practices that are commonly encountered. These are considered under a number of subheadings
Dealing with the reasons given for the decision
Local planning authorities are required to give reasons for their decisions on the appropriate notices issued, and these reasons must be sufficient to explain that decision. Whether the reasons relate to a refusal of consent or to the imposition of conditions, they provide the essential point of reference for testing the decision on appeal. The appellant’s statement must therefore deal directly with the reasons given. The task is to show that the LPA could properly have made a different decision, more favourable to the applicant, in excercising its statutory powers. This is best achieved by accepting that there is always some logic in planning terms in the decision made — however unwelcome that decision may be to the client.
The LPA is constrained by the requirement that in making its decision it should have regard to the development plan and “any other material considerations”. In general, where a decision is clearly justified by reference to a statutory plan or to infrastructure problems, there is relatively little chance of overturning it on appeal. However, it should be noted that an LPA is not absolutely bound to follow the provisions of a statutory plan, especially if it is not entirely up-to-date, and that it is in the nature of the current development plan system that in many cases the provisions of a plan are difficult to relate to a specific development site. Equally, while infrastructure problems are common, they affect only a small minority of all applications and can often be overcome by agreements. The overwhelming majority of decisions are made by reference to “other material considerations” encompassing non-statutory policies, central government guidance and the widest range of amenity, aesthetic and environmental issues. A case can almost always be made on appeal for some variation to any decision made on such grounds, because no objective test can be applied to prove the validity of any particular judgment.
Sometimes it may be suspected that the reasons given do not fully reflect issues that influenced a decision. It is difficult to give definitive advice as to how such situations might best be handled. It is possible, of course, that the reasons given may not stand up to close scrutiny, in which case an appeal may be won without bringing other matters into the open. However, this is not always so, and it is perilous to raise issues not directly covered by the reasons given unless there is incontrovertible evidence that they are relevant. An inquiry appeal will almost always be a more appropriate choice in such circumstances because of the opportunity for cross-examination.
It should be noted that an inspector is required to make his decision on the same statutory basis as an LPA and may take into account “material considerations” which have been disregarded or overlooked. If the appellant realises that there is some important issue, prejudicial to his case, that has not been referred to by the LPA but is unlikely to be missed by the inspector, it is advisable to deal with it at the further observations stage. This has the advantage of restricting the LPA’s opportunity to make good its omission.
Further observations on the LPA statement
Under current procedure the LPA is required to submit its basic evidence within 14 days of the start date and a full statement within 28 days, if it chooses to present one. The appellant has a further 17 days to present any further observations.
Further observations are not essential, but the LPA submissions may well contain points that were not effectively dealt with in the appellant’s initial statement. It is neither necessary nor appropriate to try to refute the LPA case line by line. Indeed, such an approach is almost bound to be counter-productive because there will be substance to most of the evidence and arguments of the LPA. The appellant needs to recognise this and to argue not the validity of the opposing case but that different conclusions could, on balance, have been reached. It is therefore important to identify areas of agreement and to present differences of interpretation in a disinterested, non-confrontational style, avoiding contradiction and emotive expressions. In general, the appellant should be as succinct as possible, cross-referencing with the initial statement to avoid repetition.
Some appellants consider that it is best not to reveal their hand fully in the initial statement, but, rather, to use the further observations stage to develop their case fully. While there are circumstances in which this may be desirable, such as those outlined above, this practice is contrary to DOE guidelines and contrary to the spirit of the written representations procedure.
Dealing with third-party representations
It is at the further observations stage that the appellant obtains access to representations from third parties received by the LPA prior to determining the original application. It is unlikely that their content will reveal anything that could not have been anticipated, and many authorities consider that they should be studiously ignored, to avoid giving credence to their content. Exceptionally, an issue is raised that cannot be ignored and this is the only opportunity to deal with it. However, there is a particular advantage to receiving those representations and that is that they give some measure of public interest and some indication of the balance of opinion. Both may deserve comment.
Third-party representations with regard to the appeal are made direct to the DOE and copied to both sides. There is a possibility that they will not be received until too late to be dealt with in the appellant’s further observations, in which case it is almost always best to ignore them rather than trigger further exchanges with the LPA.
Planning officers’ reports to committee
Until the Local Government (Access to Information Act) 1985, planning officers’ reports to committee were confidential, except in so far as reported in committee minutes. Experienced practitioners, rather like investigative journalists, had ways of obtaining access to them, either from members or, sometimes, from disgruntled officers. Now they are readily available and have become a required part of the LPA evidence. It is advisable to find out what the report said at the start of the appeal, but defer any specific reference to it until the further observations stage.
Clearly, if a committee can be seen to have disregarded its officers’ advice it is potentially helpful to the appellant. This is especially so if it contained technical evidence that can be turned to advantage. It might even be thought that in such cases there is little need to set out a substantial statement. However, it is very dangerous to assume that an inspector will follow an officer’s advice, when the LPA did not, because cases in which that has not happened are commonly encountered.
Circulars and guidance notes
It is important to appreciate the role and significance of central government circulars and planning policy guidance notes to the appeals system, if effective use is to be made of their content in the preparation of statements. Their role is to give advice on good practice, to ensure reasonable consistency between different LPA areas, to interpret the legislation and the effects of case law and to promulgate central government policy for the exercise of planning powers by LPAs. Their significance is that their contents are a “material consideration” in the determination of planning applications by LPAs and by inspectors on appeal. An LPA that disregards circular advice can usually expect its decisions to be overturned on appeal and, since March 1987, to have costs awarded against it if the appeal goes to an inquiry.
There are two particular dangers that attach to the use of circulars and guidance notes. The first is to ensure that, if they are cited in support of an appeal, the advice referred to is current. In general, the more recent the better and practitioners need to watch very carefully for amendments and cancellations. Nothing is more damaging to the appellant’s case than to cite obsolete advice in its support. It should be particularly noted that, while the principal purpose of the planning policy guidance notes is to provide “concise and practical guidance on planning policies in simpler and more accessible form” than circulars, they have been used to amend and cancel circulars and may eventually replace them entirely. The second danger is to attempt, by selective quotation, to reinterpret or even misrepresent the contents. Inspectors can be relied on to be completely familiar with circulars and guidance notes and they will make decisions on the basis of their spirit and overall intent. They will not be deceived by selective quotation nor impressed by legalistic dissection of the text.
Validity of conditions
The High Court has the ultimate responsibility to supervise and review the exercise of planning powers by LPAs and by the Secretaries of State. However, the appeals system serves as a screening process to overturn decisions in which there is reason to believe that an LPA has not acted lawfully and thus to obviate the need for High Court action. This is particularly important in relation to appeals against the imposition of conditions thought to be ultra vires.
In such circumstances it is necessary to cite case law in an appeal statement and the inspector’s decision will be influenced by his judgment on the basis of the legal argument. However, it is important to recognise that the legality of a decision is not normally an issue at appeal and that case law is often cited unnecessarily and commonly misinterpreted. This does not help the appellant’s case at all, especially as it is often at the expense of thorough treatment of the planning issues. If there is any reason to believe that a decision is ultra vires, expert legal advice should normally be sought. It should also be remembered that if an inspector considers a condition to be ultra vires he is at liberty to substitute a lawful alternative or to refuse permission outright.
Precedents
In preparing statements it is important to make use of comparable evidence from previous planning applications and appeals. When previous decisions can be interpreted as favourable to the appellant it would be foolish not to make use of them, particularly so when an appeal decision is involved. However, it is important to recognise that neither LPAs nor inspectors are bound to follow precedents but to decide each individual case on its merits.
While precedents can help the appellant’s case, it must be appreciated that an LPA is in a much better position to search out appropriate examples and to use them to support its own position. Partial or highly selective treatment of precedents is always likely to rebound against the appellant and must be avoided. When citing precedents full references should be given but, in general, the substance of the case should be dealt with very succinctly.
Proposing conditions
Whether an appeal is against a refusal of permission or against the imposition of conditions, it is often advantageous to propose that conditions or different conditions could have achieved the objectives of the LPA and been acceptable to the appellant.
When proposing such conditions, reference should be made to the relevant circular advice, at present DOE Circular 1/85 The Use of Conditions in Planning Permissions. It goes without saying that the client must also have agreed the proposal and satisfied himself as to the likely effects if the inspector accepts it.
Particularly in cases where the problem identified by the LPA is one of amenity, it is important to recognise that consent could almost certainly not be given without appropriate regulation by condition and that it is often pointless to seek an unrestricted consent.
In many other cases, the suggestion of conditions is evidence that the appellant is sensitive to the wider public interest in his development and may well serve to counter third-party objections. Proposing conditions does not prejudice the chance of obtaining an unconditional consent because the inspector will use conditions only when he is satisfied that consent could not be given without them.
Conclusions
It is impossible to provide a model for the drafting of written representations appeals statements that will apply in all circumstances. In the end there is no substitute for experience, but that is not to say that experienced practitioners do not develop bad habits or make mistakes. The best guarantee of success is to remember that appeal decisions are made by reference to planning issues, and that the arguments presented must reflect the social rather than the private costs and benefits.
