Planning Appeals

• Against refusal

• Against non-determination

• (No right of appeal against granting of an application, but legal challenge/judicial review available if decision not properly arrived at. Also prior call-in available.)

Appeals against refusal

• Appellant tells Inspector why the application should be granted.

• Planning Authority tells Inspector why it should be refused (including arguments used in its original refusal).

• Inspector decides.

Appeals against non-determination

• If LPA does not determine case within 8 weeks from “validation” (13 weeks for large applications >10 dwellings, 1000m2 or 1ha), applicant can appeal “against non-determination”.

• Inspector takes over the role of the LPA and hears both sides of the argument.

• Inspector decides.

Before an appeal against non-determination is heard

LPA can no longer determine the case.

• LPA may take a “minded-to-refuse” decision, to confirm that it will resist the case and state the reasons.

• LPA may invite the applicant/appellant to resubmit, if it can see a way through or wishes to change its mind.

• Applicant/appellant may resubmit anyway to “encourage” the LPA to re-consider.

Costs of Appeals

• Normally, each side in an appeal must pay its own legal costs.

• But if one side’s position is “unreasonable”, the other side can ask the Inspector to require the other party to pay its costs.

• “Unreasonable” will typically be a position that:

- flies in the face of planning guidance or of the Authority’s own Plan, or is completely illogical or inconsistent.

- is different from the position taken by the Authority earlier for no good reason.

- disregards previous inspectors’ decisions regarding the same site.

Why did AVDC concede over Buckingham?

Either

• They thought they had a very weak case which they were unlikely to win and which might even give rise to an award of costs against them. (Their legal advisers might have been telling them this out of overcaution!)

Or

• They thought Buckingham should take its fair share of the housing that the SE Plan has placed on Aylesbury Vale, and that they should override the Town Council’s views.

Why might AVDC think they had a weak case at appeal (1)?

Extract from PPS3

“71. Where LPAs cannot demonstrate an up-to-date 5-year supply of deliverable sites… they should consider favourably planning applications for housing, having regard to the policies in this PPS, including para 69.”

“69. ….high quality housing… sustainability… using land effectively… in line with spatial vision for the area…”

Why might AVDC think they had a weak case at appeal (2)?

Section 106 negotiations were bogged down.

Why?

Normally, authorities do not get stuck into Section 106 agreements until they have indicated they are willing to concede the principle of the development. Had they already conceded this in negotiations?

Some more points about Section 106 procedures

• It is normal when a LPA wishes to approve an application to delegate the final decision to officers following their conclusion of Section 106 negotiations – “DEFOBL”.

• Negotiations over Section 106 contributions are less likely to get bogged down if the Planning Authority has a clear policy on the level of contributions.

Advantages of having an LDF!

A Local Development Framework can specify, either in its Core Strategy or later in the Site Allocations Document, areas for development that meet the 5-year requirement, including timing criteria, and the Planning Authority is then well able to resist applications for major development on other sites.

If Buckingham has to have new housing, where would people like

it to be?

• Town centre? If so, where?

• Out of town? If so, where?

Issues for Discussion

•How to get a LPA to make progress with its LDF and identify enough housing sites?

•How to get a LPA to consult fully in drawing up its LDF documents?

•How to get a LPA to seek solutions acceptable to all its towns/parishes/areas?

How does YOUR Local Planning Authority cope with these issues?